Senator: Were the 'Dear Colleague' letters on campus sexual assault legal?

Contends they amount to regulations, not suggestions

The Education Department's 2010 and 2011 "Dear Colleague" letters regarding campus sexual assault amounted to regulations and therefore were issued illegally, one senator is arguing.

Sen. James Lankford (R-Oklahoma), chair of the regulatory affairs subcommittee, wrote to Acting Education Secretary John King and the department, asking him to name the regulations that justify the contents of the Dear Colleague letters, specifically the indication of specific acts schools should consider harassment and recommendations to use "preponderance of evidence" to determine guilt.

From Research and Insights: How to follow federal legislation and guidance

The department has called the letters explanations of Title IX, not "regulatory guidance," but school officials say they are so dependent on federal funding that they are forced to follow any department decisions, even if they are just "suggestions."

The issuance of department regulations involves a lengthy process, including public comment. The Dear Colleague letters did not go through this process.

"We can't just say [the regulatory process] is hard, so I'm going to skip it," Lankford says.

The Education Department did not comment but told the Washington Post they received the senator's letter and will respond to it (Brown, Washington Post, 1/7).

Thoughts on the story? Tweet us at @eab_daily and let us know.


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