March 11, 2016

GOOD FOR LAMAR: Senator grills acting education secretary over agency overreach.

Did the Education Department overstep its authority when it threatened to withhold funding from schools by changing the law regarding campus sexual assault?

This was the question Sen. Lamar Alexander, R-Tenn., attempted to get to the bottom of during an Appropriations Subcommittee hearing. During the hearing, Alexander grilled the department’s acting secretary, Dr. John B. King, about a non-legally binding document issued by the department that has actually carried the force of law.

Alexander kept asking King if the department’s “Dear Colleague” letters carried the force of law, to which King kept replying that they did not, and that the documents were merely his department’s “interpretation of the law and regulations, which are binding.”

Except, as Alexander went on to point out, colleges and universities are treating the “Dear Colleague” letters as the law for fear of what the department would do if they did not comply. Currently, schools face federal investigations and a loss of federal funding if they do not comply with the alleged “guidance” documents.

“In 2011, the Department put out a guidance and basically said ‘equitable resolution cannot mean either clear and convincing evidence or preponderance of the evidence, it’s got to mean preponderance of the evidence,'” Alexander said. “So that would mean to me that the U.S. Department of Education could today initiate an action and say to a school: ‘You’re violating Title IX if you use the standard of clear and convincing evidence.’ Is that correct?”

King reiterated that his department made clear that the guidance does not have the force of law.

“We do believe that equitable resolution means preponderance of the evidence—” King began to say before Alexander interrupted.

“Well who gave you the right to believe that?” Alexander said.

Give ’em hell, Lamar — though I believe that the universities were happy to roll over in a way that they wouldn’t have if this had been a GOP administration using similar reasoning to make them do something their internal constituencies opposed, instead of a Dem administration pressuring them to do something internal constituencies supported.

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