Drive to Restore Due Process on Campus Gains Traction


March 7, 2016

The Department of Education’s Office for Civil Rights issued a Dear Colleague Letter (DCL) on campus sexual assault in 2011. Even though the directive imposed a substantial number of new mandates on colleges, the OCR neglected to submit the policy for public review and comment – in direct violation of the Administrative Procedure Act.

In response, a growing number of lawmakers are speaking out on the need to refer campus sex cases to criminal justice authorities and restore due process on campus:[i]

  • Sen. Chuck Grassley (R-IA): “I think a crime of rape off campus or a crime of rape on campus ought to be treated the same way. And the sooner it’s treated the same way, the sooner the message is going to get out that you can’t get away with something on campus that you couldn’t get away with someplace else.”
  • Sen. Bernie Sanders (D-VT): “If a student rapes another student it has got to be understood as a very serious crime, it has to get outside of the school and have a police investigation.”
  • Sen. Sheldon Whitehouse (D-RI): “As a former United States Attorney and Attorney General for my state, I am concerned that law enforcement is being marginalized when it comes to the crime of campus sexual assault.”
  • Sen. Marco Rubio (R-FL): “Sexual assault can destroy lives, but so can false allegations of sexual assault. One need only review recent news reports to know that false allegations do, in fact, happen. Certainly, we should make additional efforts to protect due process on campus.”
  • Sen. Mark Warner (D-VA): “I do believe you do need, for the accused, you need to maintain due process rights.… I think this part of the legislation [Campus Accountability and Safety Act] will probably require some additional review.”

Senate Committee on Homeland Security and Governmental Affairs

In January, Sen. James Lankford, chairman of the Senate Committee on Homeland Security and Governmental Affairs, wrote a letter to the Department of Education asking the agency to justify the legal authority behind its DCLs of 2010 on bullying and of 2011 on sexual assault.

The Department of Education responded on February 17, saying its new mandates represented a “construction” of its interpretation of Title IX.

In his March 4 reply, Sen. Lankford stated the Dept. of Education letter “failed to assuage my concerns that OCR has issued guidance documents” that “advance policies not found within the pages of [Title IX’s] statutory and regulatory texts.” Sen. Lankford called on Acting Secretary King to “immediately rein in the regulatory abuses within the Department of Education.”[ii]

It’s deplorable that the Office of Civil Rights would repeatedly violate the Administrative Procedure Act, and then make shallow excuses for its pattern of abusive behavior to a Congressional oversight committee.