Earlier this year, Oklahoma Republican Senator James Lankford took a much-needed stand against the Department of Education, sending a letter demanding to know the legal basis for the DOE’s infamous 2010 and 2011 “Dear Colleague” letters. These letters together imposed on colleges a number of legal requirements, including the now-infamous “preponderance of the evidence” legal standard for adjudicating campus sexual assault cases and a sweeping definition of sexual harassment — a definition that encompasses a wide range of First Amendment-protected expression.
As Senator Lankford notes, before an agency promulgates new regulatory policy, the proposed regulations are supposed to go through the Administrative Procedure Act’s required notice-and-comment rulemaking process. This process — though inferior to statutory lawmaking — at least gives the public an opportunity to comment on proposed rules and to offer legal critiques before they’re formally adopted by the agency. 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.
As the Washington Examiner’s Ashe Schow reports, the DOE has now responded to Senator Lankford, and the response is weak indeed:
Catherine Lhamon, OCR’s assistant secretary for civil rights, spent several pages recounting earlier guidance documents that had gone through the notice-and-comment period as justification for the 2011 “Dear Colleague” letter. But the 2011 letter included noticeable changes that vastly expanded OCR’s authority while sending a clear message to schools that if they don’t begin holding accused students accountable (which has come to mean, in practical terms, suspend or expel anyone accused) they will lose federal funding. These changes did not go through the notice-and-comment period.
The DOE is extraordinarily vulnerable to a lawsuit, but so far I’m not aware of a single college or university mounting a direct challenge to the Department’s unlawful memoranda. Simply put, campus radicals have such a stranglehold on college administrations (indeed, they often are the college administration) that universities don’t have the courage to confront a lawless administration. They’d rather defend lawsuits filed by male students victimized by campus kangaroo courts than respect individual liberty or federal statutes.
The lesson is clear — if you’re a big enough bully, you don’t have to comply with the law.