February 23, 2015

OPEN LETTER TO MEMBERS OF THE SENATE HELP COMMITTEE

Dear Chairman Alexander and Ranking Member Murray:

Stop Abusive and Violent Environments (SAVE), a national organization working to end sexual assault on campus, requests that the following questions be asked of the witnesses during the February 24, 2015 hearing of the Health, Education, Labor, and Pensions Committee.

These questions highlight a troubling pattern by the Department of Education’s Office for Civil Rights (OCR) of regulatory over-reach, apparent disdain for the Administrative Procedures Act, flouting of Congressional authority, and open disregard of Supreme Court decisions.

Question 1: IGNORING SUPREME COURT DECISIONS

In Davis v. Monroe County Board of Education, the Supreme Court held that actual knowledge and deliberate indifference are the standards for liability under Title IX for peer-to-peer sexual harassment.

The United States argued in an amicus brief that suits seeking injunctive relief should be held to a lower standard; the Court did not endorse that argument. Yet OCR continues to maintain that suits for injunctive relief are held to a lower standard.  (See April 2014 Q and A footnote 9 http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf).

Under what legal authority is the Office for Civil Rights overriding a Supreme Court decision in order to dictate the standard that courts must use to resolve private disputes?  

Question 2: ASSURING FAIRNESS TO BOTH PARTIES

The Code of Federal Regulations governing Title IX grievance processes requires adjudications to be “equitable” (34 CFR 106.8(b)).  When OCR announced a settlement with the University of Montana in 2012, OCR ignored a federal judge’s opinion characterizing the school’s grievance processes during the relevant time period as fundamentally unfair to accused students (http://www.huffingtonpost.com/stephen-henrick/a-tale-of-two-montanas_b_4003420.html).  OCR in fact has never issued any guidance to make sure proceedings are fair for those facing sexual harassment allegations.

How can the Office for Civil Rights fulfill its Congressional mandate when it apparently believes that equitable procedures only need to be provided to one party in the dispute?    

Question 3: EXPANDING THE SCOPE OF INSTITUTIONAL LIABILITY

OCR’s 2014 sexual harassment and assault guidance “Questions and Answers about Title IX and Sexual Violence” substantially altered harassment liability from its previous 1997 harassment guidance, as well as general principles of harassment liability developed by the courts.

The OCR guidance generally imposes liability on institutions even if they discipline the accused harasser, if they do not also “prevent its recurrence” and “remedy its effects,” and OCR says that even punishing the harasser “likely will not be sufficient” to comply with Title IX. (See “Questions and Answers on Title IX and Sexual Violence” (April 29, 2014), pg. 25 — http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf ).

This was major change accomplished without any notice and comment, as required by the Administrative Procedures Act.

What are your views about the appropriate role of Congress in enforcing the Administrative Procedures Act?

Question 4: OPERATING WITHIN THE LIMITS OF CONGRESSIONAL INTENT

The report, Recalibrating Regulation of Colleges and Universities correctly notes (http://www.help.senate.gov/imo/media/Regulations_Task_Force_Report_2015_FINAL.pdf):

“According to the basic tenets of administrative law, Congress passes laws, and it is up to the agencies to implement them. However, in recent years, the Department has increasingly used the regulatory process not in response to any specific legislative change enacted by Congress, but rather as a means to achieve its own policy objectives.”

In the Office for Civil Rights’ (OCR’s) April 2014 guidance, “Questions and Answers on Title IX, and Sexual Violence” (http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf, page 31), the Department declared for the first time that evidence of a complainant’s sexual history should never be admitted in a campus sexual assault adjudication. There is nothing in Title IX, its legislative history, or the legislative history of any subsequent amendment that purports to give OCR the power to set procedural and evidentiary rules for how allegations of sexual harassment must be resolved.

What should Congress do to rein in the Office for Civil Rights so it operates within the bounds of Congressional intent?

Question 5: UTILIZING THE CONGRESSIONAL REVIEW ACT

The Recalibrating Regulation of Colleges and Universities report recommends, “The Department should not make significant changes in policy without following the APA’s notice and comment procedures” (page 36).

The Report singles out the Office of Civil Rights’ 2011 “Dear Colleague” regarding how universities are to comply with Title IX as it pertains to defining, reporting, and handling sexual harassment and assault cases. The “Dear Colleague” letter was issued without notice and comment, yet imposed what the Recalibrating Regulation report termed “complex mandates” (p. 12). These mandates required further clarification in a follow-up 53-page document, also issued without notice and comment.

Do you believe that Congress should take a more active oversight role of the Office for Civil Rights, such as use of the Congressional Review Act which allows the Congress to veto agency regulations?

Question 6: UTILIZING THE APPROPRIATIONS PROCESS

The Office for Civil Rights has maintained that its Dear Colleague letters and similar sub-regulatory guidances do not fall under the Administrative Procedures Act, a position that many view as disingenuous.

Should Congressional appropriators employ the power of the purse to encourage the Office for Civil Rights to operate within Congressional intent, obey the Administrative Procedures Act, and respect Supreme Court decisions?

 

We will be happy to meet with you to discuss our concerns. Thank you.

Everett Bartlett

Everett Bartlett, PhD, President