Republican legislators have recently become more vocal in questioning the Department of Education's Office of Civil Right's handling of Title IX sexual misconduct and sexual assault cases at colleges and universities not just in New Jersey and Pennsylvania, but nationwide. Republicans have questioned whether the Office of Civil Right has mishandled Title IX campus disciplinary cases and whether the Office of Civil Rights has overstepped its bounds regarding how it enforces campus sexual misconduct and sexual assault cases.
Dr. John King Jr., the acting secretary for the Department of Education, was officially nominated this past week to head the department. Dr. King appeared before House of Representative and Senate committees this past week to discuss Department of Education initiatives. During these meetings, it became clear that a number of Republicans are critical of how the Office of Civil Rights is handling Title IX campus sexual misconduct and sexual assault disciplinary cases. On Wednesday for example, Dr. King was grilled by Republican Virginia Foxx, a Republican from North Carolina. Representative Foxx was "very concerned" that the Office of Civil Rights is bypassing Congress by "legislating" through its use of "Dear Colleague" letters.
("Dear Colleague" letters are issued by the Department of Education to every college and university that accepts federal funding. The letters advise schools as to the current laws and regulations they must comply with in order to remain in compliance to continue to receive federal funds. One such "Dear Colleague" letter, issued in 2011, mandated offenses involving sexual violence be subject to Title IX, and that the standard of evidence that colleges and universities must use when making findings regarding allegations of sexual misconduct and sexual assault could no longer be proof by "clear and convincing evidence." Proof by a "preponderance of the evidence," a much lower evidentiary standard, was mandated by this "Dear Colleague" letter, making it easier for there to be a Title IX finding against an accused student.)
Representative Foxx added that she was "deeply concerned" about the Department of Education's "legitimacy and effectiveness" and the "potential negative impact on students and institutions." Another of Foxx's concerns is whether the Office of Civil Rights, when investigating allegations that schools have mishandled Title IX sexual misconduct and sexual assault, is more concerned with adding more schools under investigation rather than seeking "justice" in individual cases.
Republican criticism of how the Department of Education enforces Title IX cases involving allegations of campus sexual violence was also questioned by legislators during Dr King's appearance before committees this week, but this was not the first time such criticism was noted. In 2013, Senator John McCain, a Republican from Arizona, questioned the agreement made between the Department of Education and the University of Montana. Senator McCain's criticism was that the Department of Education, entirely on its own accord, redefined the definition of sexual harassment at colleges and universities. More recently, Senator John Lankford, a Republican from Oklahoma, asked the Department of Education to explain where it drew its authority to issue its "Dear Colleague" letters. The Office of Civil Rights, in response, contended that its "Dear Colleague" letters do not have the force of law as affirmed by the United States Supreme Court last year. Nonetheless, it is unusual for colleges and universities to not comply with these letters so as to not risk receiving federal funds.
The Office of Civil Rights has also not provided for a "notice and comment" period at times before informing colleges and universities how to remain in compliance with Department of Education regulations; this is known as "consequential guidance." Critics contend that colleges and universities themselves should have more input on how Title IX campus disciplinary cases are handled; arguing that schools are on the front lines in handling Title IX sexual misconduct and sexual assault disciplinary cases on campus, whereas the Office of Civil Rights dictates from afar without always getting the necessary input from those on the front lines. This is troubling to many, especially in light of the direction that Title IX compliance and enforcement has taken, especially since the Office of Civil Right's 2011 "Dear Colleague" letter which made it much more likely that a student charged with Title IX sexual misconduct and/or sexual assault would be found responsible.