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Academics and Legal Experts Agree with Senator Lankford: Dept. of Education Actions Are Clearly Executive Overreach

WASHINGTON, DC – On January 7, Senator James Lankford challenged the Department of Education on their use of guidance documents that attempt to inappropriately establish regulatory-type policy changes for colleges and universities without going through the legal rule-making process. The Department of Education’s  response (nearly 2 weeks late), confirmed the suspicion for many academics, journalists and legal experts that these actions constitute executive overreach.

Here is what they’re saying:

The Washington Post: The legislative and judicial branches strike back against Obama’s overreach

By George F. Will, February 20, 2016

The legislative branch… is retaliating against executive overreach. Consider the lethal letter Sen. James Lankford (R-Okla.) sent to the Education Department concerning its Office for Civil Rights.

[The Department of Education Office of Civil Rights] OCR is insisting on practices discordant with constitutional values. These practices include denying people accused of sexual assault the right to confront their accusers, and subjecting the accused to convictions based on a mere “preponderance of evidence” rather than “clear and convincing” evidence.


The Chronicle of Higher Education: Education Dept. Defends Its Approach to Title IX in Face of Senate Pressure

By Peter Schmidt, February 19, 2016

…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.

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.

Inside Higher Ed: Must vs. Should

By Jake New, February 25, 2016

…many college presidents and lawyers argue that the [Education] department’s Office for Civil Rights (OCR) treats the guidance as far more than a series of recommendations. Instead, they say, OCR uses the letter to determine which colleges are in violation of Title IX and to threaten the federal funding of those that don’t follow every suggestion.


Competitive Enterprise Institute: OCR’s Evasive Letter to Sen. Lankford about Colleges and Title IX

By Hans Bader, former Department of Education OCR Lawyer

February 22, 2016

An agency can disregard logic and jump to conclusions when it imposes legal mandates outside the notice-and-comment rulemaking process, since it never has to address the substance of comments questioning their basis. It can just ignore them. A classic example is the letter sent to Oklahoma Senator James Lankford by the Education Department’s Office for Civil Rights (OCR) on February 17.

National Review: When You’re a Big Enough Bully, You Don’t Have to Comply With the Law

By David French, February 24, 2016

In this case, however, the Obama administration tried to change the law merely by writing a memo— the same kind of maneuver it used to accomplish executive amnesty.

Simply put, campus radicals have such a stranglehold on college administrations that universities don’t have the courage to confront a lawless administration.

Washington Examiner: Education Dept. tries and fails to justify Title IX overreach

By Ashe Schow, February 23, 2016

OCR’s response to Lankford doesn’t answer the questions raised by the Oklahoma senator and provides vague and twisted justifications for the massive overreach wrought by the department. The 2011 letter had devastating consequences for hundreds of students across the country who were accused of sexual misconduct and not afforded a meaningful chance to defend themselves.

The College Fix: Department of Education official bizarrely claims it’s not threatening colleges in rape disputes

By Greg Piper, February 19, 2016

The chief of the Department of Education’s Office for Civil Rights, whose 2011 “Dear Colleague” letter set off a panic among colleges to lower their standards for judging students accused of sexual harassment (and worse) or risk losing federal funding, claims that its letter and follow-up “guidance” did no such thing.