OCR Mandates Non-Mandatory Guidelines and Strong-Arms Universities into Compliance
February 26, 2016
This past Wednesday John King, Secretary-Designate for the Department of Education gave testimony before the House of Representatives Education and Workforce Committee.
During the hearing, Rep. Virginia Foxx expressed concerns about the failure of the Office for Civil Rights to adhere to notice-and-comment requirements of the Administrative Procedure Act in the issuance of its Dear Colleague Letters.
In response, John King stated the Letters are considered to be guidance, not binding regulations. In King’s own words, “The Dear Colleague Letters that we issue do not have force of law.” (See exchange at https://www.youtube.com/watch?v=LpBbS2gLXU8 beginning at 1:19:15).
But King’s statement directly contradicts the prior statement of an OCR official.
At a 2014 conference at Dartmouth College, OCR director Catherine Lhamon made it clear she would strip federal funding from any recipient found to be non-compliant the Dear Colleague Letter’s requirements. “Do not think it’s an empty threat,” Lhamon emphatically warned. “It’s one I’ve made four times in the 10 months I’ve been in office. So it’s one that’s very much in use.” http://www.huffingtonpost.com/2014/07/14/funding-campus-rape-dartmouth-summit_n_5585654.html
King’s claim is also inconsistent with numerous OCR investigations, such as the one conducted at Tufts University in response to a student’s complaint that she was sexually assaulted.
Following a four-year investigation, Tufts and OCR entered into a Voluntary Resolution Agreement on April 17, 2014. The agreement indicated that Tufts had agreed to retain its Title IX Coordinator, continue the work of a sexual misconduct prevention task force, revise its grievance policies and procedures, and improve documentation of complaints.
Shortly after Tufts executed the Resolution Agreement, the university was informed that OCR believed the university’s newly implemented policies were still non-compliant with Title IX. Tufts vehemently denied that its new policies were non-compliant, stating that it “could not, in good faith, allow [its] community to believe that [it was] not in compliance with such an important law.”
OCR responded to Tufts in a published letter dated April 28, 2014 asserting that Tufts’ decision to remove its signature from the Voluntary Resolution Agreement constituted a material breach of the agreement. OCR notified Tufts that it might initiate administrative enforcement or judicial proceedings to enforce specific terms of the agreement.
In a separate statement, OCR specifically warned that it “may move to initiate proceedings to terminate federal funding of Tufts or to enforce the agreement.” http://www.bsctrialattorneys.com/Collateral/Documents/English-US/Emerging%20Litigation%20White%20Paper.doc
The harmful effects of the OCR’s Dear Colleague Letters on students’ free speech and due process rights have been thoroughly documented in testimony to the House Judiciary Committee, and in a January 2016 letter from Sen. James Lankford to the OCR. http://www.saveservices.org/sexual-assault/ocr/
It’s hard to imagine a more worrisome issue than an unaccountable federal agency seeking to single-handedly abrogate the constitutionally rooted free speech and due process rights of the 22 million students attending colleges throughout the country. One day these students will be the nation’s lawmakers, teachers, and voters.