Education Dept. Defends Its Approach to Title IX in Face of Senate Pressure

February 19, 2016

Manuel Balce Ceneta, AP Images
Sen. James Lankford, an Oklahoma Republican, has accused the Education Department of overreach in pressuring colleges to fight sexual discrimination to comply with Title IX.
The Education Department is standing by its controversial guidance to colleges on sexual harassment and sexual assault in response to questions raised by a prominent Senate critic.

Catherine E. Lhamon, the department’s assistant secretary for civil rights, defended her agency’s actions in a letter on Wednesday to Sen. James Lankford, who, as head of the Senate’s subcommittee on regulatory affairs and federal management, had accused the department of overreach in pressuring colleges to fight sexual discrimination to comply with the gender-equity law known as Title IX.

Ms. Lhamon’s response to Senator Lankford, an Oklahoma Republican, appears to set the stage for a clash between the Education Department and the Senate over the department’s powers, Darrell (D.J.) Jordan, a spokesman for the senator, said on Thursday. The letter "raises further concerns for Senator Lankford, and he is now contemplating several measures to continue this oversight," Mr. Jordan wrote in an email. He added, however, that "we’re not ready to confirm our next steps just yet."

In a letter last month to John B. King Jr., the Education Department’s acting secretary, Senator Lankford argued that the agency’s "Dear Colleague" letters offering colleges guidance on how to comply with Title IX’s ban on sexual discrimination "are not merely interpretive, but alter the regulatory and legal landscape in fundamental ways."

He said the department’s 2010 guidance letter dealing with sexual harassment and its 2011 guidance letter on sexual violence have been decried by "legal scholars and academics across the political spectrum" as pressuring colleges to take steps that threaten students’ free-speech and due-process rights.

Similar concerns were raised last year by Sen. Lamar Alexander, a Tennessee Republican who is chairman of the Senate Committee on Health, Education, Labor, and Pensions.

Writing on behalf of the acting secretary, Ms. Lhamon rejected the idea that the department’s Office for Civil Rights, or OCR, had exceeded its authority by imposing new legal requirements on colleges in its guidance letters. The Education Department "does not view such guidance to have the force and effect of law," and the civil-rights office issues such guidance solely "to advise the public of its construction" of existing laws and regulations, she wrote.

Assistant Secretary Lhamon’s response to Senator Lankford drew praise from some advocates for women. Among them, Laura L. Dunn, executive director of SurvJustice, a victims’ advocacy group, said colleges should welcome the civil-rights office’s guidance, because without it "you would have many more complaints’ being brought because the standards are unclear."

The civil-rights office is currently investigating more than 200 sexual-violence cases at 165 higher-education institutions for alleged violations of Title IX. Since issuing its April 2011 guidance letter it has resolved at least 46 such investigations, with 30 resulting in resolution agreements.

Points of Contention

Based on concerns raised by Senator Lankford and the Education Department’s response, "it appears the battle lines have been drawn around particular areas of OCR guidance that appear to be most vexatious," said Peter F. Lake, chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University’s College of Law. He described the exchange of letters as representing "a winnowing of the issues" down to the questions of how to define sexual harassment and a hostile environment, and what standard to use in assessing responsibility for sexual misconduct.

In its 2011 guidance letter dealing with sexual misconduct, the Office for Civil Rights said it would be reviewing colleges’ procedures to determine whether they were "using a preponderance-of-the-evidence standard to evaluate complaints." That standard is lower than those used in criminal cases, providing for an accused student to be found responsible if the college determines it’s more likely than not that an incident occurred.

Several professors at Harvard Law School, which was forced to change its standard of proof after the civil-rights office found that its policies violated Title IX, and many advocates for accused students, have questioned the fairness of that lower threshold.

“The battle lines have been drawn around particular areas of OCR guidance that appear to be most vexatious.”
Assistant Secretary Lhamon’s letter to Senator Lankford denied that the department had broken new ground by urging colleges to use a preponderance-of-the-evidence standard for adjudicating charges of sexual harassment or sexual assault. She cited a study by the Foundation for Individual Rights in Education that found that, even before 2011, a preponderance-of-the-evidence standard (or one even lower) was used by 80 percent of colleges as an evidentiary standard for handling such cases.

But William Creeley, vice president for legal and public advocacy at FIRE, a free-speech advocacy group, on Thursday said the civil-rights office had exceeded its authority if even one college felt compelled to change its policies based on how the law was interpreted in the 2011 guidance letter. "They should rip it up and start again," he said, arguing that the document is widely interpreted by colleges as having the force of law.

But Wendy Murphy, a lawyer who has helped students file federal discrimination complaints against several universities, said colleges use a preponderance-of-the-evidence standard in dealing with other complaints of civil-rights violations, and so would be discriminating against women by forcing them to meet some higher burden of proof. "Equity matters," she said.

Ms. Dunn of SurvJustice said colleges dealing with accusations of student misconduct should not be forced to meet the same evidentiary standards as courts handling criminal charges because "it is within their scope of authority for schools to say, ‘This is not who we want on our campus.’"

Kent D. Talbert, a lawyer who served as general counsel at the Education Department from 2006 to 2009, complained, however, that Assistant Secretary Lhamon’s letter "glosses over" the question of whether the department was obliged to use a formal rule-making process, including soliciting public comment, before it could publish guidelines telling colleges to use such an evidentiary standard for misconduct cases.

Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at