Practically all of the changes in how colleges and universities handle sexual-assault allegations and investigations were spurred by a 2011 letter from the Department of Education’s Office for Civil Rights (OCR).
Known as a “Dear Colleague” letter, the OCR proceeded to threaten the higher education community with the loss of federal funding if institutions didn’t adopt slanted procedures against students accused of sexual misconduct, notably the low “preponderance of evidence” standard.
It was issued without a notice-and-comment process, making OCR’s guidance arguably unenforceable, yet the office has launched Title IX investigations against scores of schools for allegedly violating its unenforceable rules emanating from that letter.
OCR’s guidance overreach has been weighing on Sen. Lamar Alexander, R-Tennessee, chairman of the Senate committee that handles education, and President George H.W. Bush’s education secretary.
It bothered him so much that he crashed a different committee’s hearing Wednesday to lecture a Department of Education official about her lawless underling at OCR.
Circumventing ‘the principles of transparency and accountability’
The Senate Governmental Affairs Committee’s regulatory affairs subcommittee was meeting to consider the use of regulatory guidance by federal agencies, with particular focus on the Department of Education:
Because the distinction between legislative rules and guidance is in many instances blurred, and because opting to issue guidance when rulemaking would be appropriate circumvents the principles of transparency and accountability built into the [Administrative Procedure Act], this hearing examined if and how the Departments of Labor and Education improperly issue guidance, its effects on regulated parties and the public at large, and ways to ensure guidance is utilized diligently going forward.
RELATED: Reminder to Harvard Law: Department of Ed’s rape standards aren’t enforceable
You have to feel sorry for Education’s Amy McIntosh, whose unwieldy title is “principal deputy assistant secretary delegated the duties of the assistant secretary” in the Office of Planning, Evaluation and Policy Development. (For an amusing discussion of ludicrous federal job titles and hierarchies, with full bearing on OCR’s work, read Charles Murray’s excellent new manifesto on civil disobedience, By the People.)
McIntosh’s written testimony doesn’t at all mention OCR, but she walked into a folksy buzzsaw when Alexander took the mic at the invitation of subcommittee Chairman James Lankford, R-Okla.
Alexander had temporarily silenced University of California President Janet Napolitano at his own committee’s July hearing on campus sexual assault, when he asked her about due-process protections for accused students.
This time around, McIntosh could barely string together a full sentence as Alexander continually interrupted her, asking her to explain the actions of Catherine Lhamon, the head of OCR, as they affected 6,000 higher-education institutions – a number he repeatedly cited.
‘Did she have a lapse of memory that day?’
In Tennessee if not elsewhere, “Washington, D.C. looks like a Mount Vesuvius of rules, regulations, guidances, spewing forth from all directions,” Alexander said in opening his inquisition of McIntosh. (See the full exchange in the six-minute video above.)
Reading from their exchange at his own committee’s hearing last year, Alexander recounted asking Lhamon whether she expects institutions to comply with all 66 pages of Title IX guidance from OCR despite none of it going through a public-comment process. Yes, Lhamon replied.
On whose authority did you issue it? Alexander asked then. Yours, when the Senate confirmed her, Lhamon had replied. The bewilderment on Alexander’s face at Wednesday’s hearing was obvious.
Looking up at McIntosh, he asked who gave Lhamon the authority. McIntosh said she already made clear that “guidance that the department issues does not have the force of law,” but Alexander interrupted. Lhamon is her Title IX chief yet “she apparently hadn’t gotten the word. Who’s going to tell her? Are you?”
McIntosh conceded that OCR guidance was not binding, but “guidance helps the many people who are subject to Title IX understand what they need to do to comply with the law.” Pressed by Alexander, McIntosh said she “had the discussion with Ms. Lhamon and she is fully agreeing …” before Alexander cut her off again: “Did she just have a lapse of memory that day” when Lhamon testified?
Bullying schools with bullying guidance
Alexander zeroed in on OCR’s “bullying” guidance, which he said the Department of Education had not listed as “significant” (the threshold at which notice-and-comment is triggered).
“Now that’s odd to me because bullying is a big subject,” Alexander said. “We’ve had a big debate” on bullying in the Senate and purposely left out prescriptive rules in its recent education reauthorization bill, approved by bipartisan majorities, because nobody wanted a “national school board” to set bullying policies for 100,000 schools:
So where does the Department of Education get the authority even to issue a guidance or even a rule or regulation on bullying? Where is that in the law, if the United States Senate thinks that it’s making the law on bullying or not?
McIntosh cited civil rights law as the source of the bullying guidance: “I think you would agree that bullying could be a serious problem.” Alexander shot back:
It is a serious problem, but the United States Senate doesn’t agree that the federal government ought to be telling the local school what its bullying policy ought to be, so how does the Department of Education get the right to make a guidance, which would be under Title IX, when the head of Title IX thinks everybody she issues a guidance to has to do what she says?
When McIntosh said OCR’s duty is to follow up on all civil-rights complaints, Mount Alexander exploded again, saying OCR’s Lhamon was making up rules out of thin statutory air:
Off she goes as a national school board telling 100,000 schools, whether they’re a native Alaskan school or whether they’re in the mountains of Tennessee, “this is how you ought to handle your discipline problems.”
Continuing the semantics samba, McIntosh said her department didn’t make any law or binding requirements, but Alexander brought it back once more to OCR claiming its guidance is binding, “and to me that’s not appropriate.”
Now would be a good time for a school with deep pockets and moral backbone (not Harvard), already under the thumb of a Title IX investigation, to challenge OCR guidance in court and free itself from reams of invalid rules.
Whoever does that has the backing of a powerful senator, who is clearly itching for a brawl with regulators who act the way they do because they only have to deal with a pompous panel of lawmakers a couple times a year.
RELATED: Due-process questions stump witnesses at Senate hearing on campus sexual assault
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IMAGE: Senate HELP Committee screenshot
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