The “Dear Colleague” Letters and John King’s Homework
IN GENERAL.—Nothing in this Act shall be construed to
permit discrimination on the basis of race, color, religion, sex (except as otherwise permitted under title IX of the Education Amendments of 1972), national origin, or disability in any program funded under this Act.
Exceptions in the Title IX document from 1972 include but are not limited to institutions controlled by religious organizations “with contrary religious tenets” and organizations that traditionally admit only a single sex.
In ESSA, the title that incorporates civil rights and that refers back to Title IX amendments from 1972 is now labeled Title VIII. Still, the civil rights component is in ESSA just as it was in NCLB. And there is not much to that civil rights component (which might be broadly referred to as Title IX, even though Title IX has many more sections than just the one on civil rights).
The importance of the above information is that it provides background for a six-page letter dated January 07, 2016, from Senator James Lankford, who chairs the Subcommittee on Regulatory Affairs and Federal Management (part of the Senate Committee on Homeland Security and Governmental Affairs), to Acting US Secretary of Education John King. Lankford’s letter concerns the USDOE’s Office of Civil Rights (OCR) and its issuance of what it calls “Dear Colleague letters,” or letters sent to states and that are supposed to offer “guidance” regarding interpretation of laws, including civil rights issues conveyed via Title IX.
The problem with those Dear Colleague letters is that their so-called guidance has been handed down from USDOE’s OCR without OCR’s following proper procedure for public consideration, and the content of the letters is improperly influencing policy because OCR is interpreting its own “guidance” as legally binding.
Lankford cites two Dear Colleague letters in particular– both of which generally reference Title IX. The first is dated October 26, 2010, and concerns bullying, and the second is dated April 04, 2011, and concerns sexual violence. (A fact sheet is also available on each: bullying letter fact sheet; sexual violence letter fact sheet.)
Here are Lankford’s concerns, in part:
As guidance, both letters purport to merely interpret statements of existing law; however, while both broadly cite 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. …
I… believe that the Dear Colleague letters advance substantive and binding regulatory policies that are effectively regulations.
Lankford continues by noting that the letters should have been subjected to “public notice-and-comment procedures.” He also calls on USDOE to identify exactly which policies the letters supposedly interpret; otherwise, Lankford notes, USDOE needs to “clarify, in no uncertain terms, that failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding, or rescission of federal funding.”
Regarding the 2010 Dear Colleague letter, Lankford states:
…The letter provides no citation to underlying statutory or regulatory used to arrive at the conclusion that Title IX, on its own terms, prohibits [conduct detailed in the letter].
As for the 2011 Dear Colleague letter, Lankford observes that USDOE’s guidance regarding grievance procedures tied to “preponderance of evidence” standard “merely reflects a preferred OCR convention.”
I am perplexed as to why OCR would prefer to issue guidance citing exceedingly broad and attenuated Title IX authority instead of engaging in APA (Administrative Procedure Act)-required rulemaking procedures. Perhaps OCR sought to avoid notice-and-comment procedures, fearing that education officials and other interested groups would have voiced substantive objections to the letters’ policies if given an opportunity. If so, this fear would have been well-placed: legal scholars and academics across the political spectrum have decried the Dear Colleague letters as offensive to First and Fourth Amendment protections– protections that Title IX and its implementing regulations alone have never been said to imperil.
For me, these concerns are about more than policy disagreements: they are evidence that OCR’s Dear Colleague letters are not merely interpretive, but alter the regulatory and legal landscape in fundamental ways.
Lankford provides a number of detailed examples to support his concerns. The primary issue is that OCR is pressuring institutions to shape policy according to the dictates of its letters or risk losing federal funding. Lankford cites former American Civil Liberties Union (ACLU) President Nadine Strossen, who commented, “OCR has forced schools, even well-endowed schools such as Harvard, to adopt sexual misconduct policies that violate many civil liberties… by threatening to pull federal funds.”
Lankford’s entire, six-page letter to King is worth reading. He closes as follows:
Colleges and universities across the nation, in addition to prestigious legal scholars, government officials, and members of the U.S. Congress view the Dear Colleague letters as improperly issued guidance that require constitutionally questionable and ill-conceived policies– policies that fail to accomplish our common regulatory goals of school safety and gender equality in education as required by Title IX. Here, I present you an opportunity to correct the muddled record. For each policy mandated by the 2010 and 2011 Dear Colleague letters, please clarify the regulatory authority, citing to specific statutory and/or regulatory language that, in your view, the letters interpret or construe. For those policies that cannot be reasonably construed from existing statutory or regulatory language, and therefore constitute substantive requirements that, to be binding, must be subjected to APA notice-and-comment procedures, please clarify, in no uncertain terms, that failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding, or rescission of federal funding.
Please provide a complete response to this request no later than February 4, 2016. If you have any questions, please contact RAFM (Regulatory Affairs and federal Management) staff at (202)224-2862.
Senator James Lankford
Looks like Arne Duncan successor John King has some federally-mandated, text-dependent homework to do based on an OCD squeeze that happened on his pal Duncan’s watch.