Lawmakers Speak Out

Numerous senators have expressed concerns how current OCR policies are marginalizing the criminal justice system, about the lack of due process, and regarding federal agencys’ Title IX policy-making or enforcement methods:

A. Minimizing the Role of the Criminal Justice System:

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.”[1]

Sen. Bernie Sanders (D-VT): “Rape and assault is rape or assault whether it takes place on a campus or a dark street…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 and that has to take place.”[2]

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. I am concerned that the specter of flawed law enforcement overshadows the harm of marginalized law enforcement.”[3]

B. Lack of Due Process:

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.”[4]

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.”[5]

C. Unlawful Policy-Making Procedures:

Sen. Lamar Alexander (R-TN): “What you’re doing is writing out detailed guidance for 22 million students on 7,200 campuses, and it’s just — it could be your whim, your idea. We make the law. You don’t make the law. Where does such a guidance authority come from?”[6]

Sen. James Lankford (R-OK): The “Department of Education’s Office for Civil Right (OCR) Dear Colleague letters on harassment and bullying (issued October 23, 2010) and sexual violence (issued April 4, 2011)… purport to interpret statements of existing law; however, while both broadly cite to Title IX of the Education Amendments of 1972 (Title IX), the letters fail to point to precise governing statutory or regulatory language that support their sweeping policy changes.”[7]

Sen. John McCain (R-AZ): “Given that the interpretation of Title IX has such a widespread impact on the well-being of young students, it is troublesome that significant changes to nationwide sexual harassment policy were unilaterally dictated by DOJ – through a settlement – rather than through congressional or regulatory action.”[8] (in reference to the University of Montana Settlement Agreement that was referred to as a “blueprint” for other universities)

D. Heavy-Handed Enforcement Practices:

Sen. Mark Warner (D-VA) and Timothy Kaine (D-VA) sent a letter to Department of Education Secretary Arne Duncan on August 25, 2015 in support of the concerns of Gov. Terry McAuliffe regarding a Title IX investigation of the University of Virginia, and called for a “fair and thorough process for all involved.”[9]

Citations:

1. December 9, 2014 hearing of the Senate Judiciary Committee. http://www.judiciary.senate.gov/meetings/campus-sexual-assault-the-roles-and-responsibilities-of-law-enforcement

2. Speech to the Black and Brown Presidential Forum, January 11, 2016.

3. December 9, 2014 hearing of the Senate Judiciary Committee. http://www.judiciary.senate.gov/meetings/campus-sexual-assault-the-roles-and-responsibilities-of-law-enforcement

4. How Marco Would Combat Sexual Assault and Protect Due Process Rights on Campus.https://marcorubio.com/news/marco-rubio-campus-sexual-assault-bill-due-process/

5. Interview with The Breeze newspaper, September 7, 2014. http://www.breezejmu.org/news/article_63f3f620-3706-11e4-b5db-001a4bcf6878.html

6. Statement directed to Catherine Lhamon, Assistant Secretary for Civil Rights, during HELP Committee hearing, June 25, 2015. http://www.help.senate.gov/hearings/hearing/?id=0b51c18f-5056-a032-5268-c16c292050b5

7. Letter to Department of Education Secretary John King. January 7, 2016.http://www.lankford.senate.gov/imo/media/doc/Sen.%20Lankford%20letter%20to%20Dept.%20of%20Education%201.7.16.pdf

8. Letter from Sen. John McCain to Attorney General Eric Holder. June 26, 2013. http://www.thefire.org/letter-from-senator-john-mccain-to-attorney-general-eric-holder/

9. https://assets.documentcloud.org/documents/2501863/letters-about-the-sexual-violence-investigation.pdf