A coalition of 80 organizations representing women, the LGBT community and minority groups issued a letter Wednesday defending the U.S. Department of Education’s increased Title IX enforcement efforts.
Led by the National Women’s Law Center, the groups argue that critics of how the Education Department’s Office for Civil Rights is enforcing Title IX are wrong to say students accused of sexual assault are being denied due process rights. The letter further insists the Education Department did not violate administrative law when it issued guidance on how schools should handle sexual assault cases, as three federal lawsuits filed this year argue.
“Unfortunately, the Department is facing unwarranted criticism for doing its job,” says the letter, which was sent to Education Secretary John B. King Jr. on Wednesday and obtained by The Huffington Post. “Some advocacy organizations, law professors, and legislators claim that the Department violated the Administrative Procedure Act (APA) by issuing the above guidance documents without going through a formal notice and comment process. They also allege that grievance procedures outlined in the 2011 sexual violence guidance violate due process rights of students accused of sexual assault. Both of these arguments are without merit.”
Major civil rights groups like the Anti-Defamation League, NAACP, National Council of La Raza and the Human Rights Campaign signed the letter. The two biggest teacher unions, the National Education Association and American Federation of Teachers, also added their names to the list.
Other groups that signed the letter include the American Association of University Women, End Rape On Campus, Know Your IX, Georgetown Law Center on Poverty and Inequality, Women’s Law Project and Campus Pride.
Schools are required under the gender equity law Title IX to respond to reports of sexual harassment and address them, and courts have held assault constitutes the most extreme form of harassment under civil rights statutes. Colleges have adjudicated cases of sexual assault for decades as violations of school policy, as they would for cases of physical assault or theft.
Under the Obama administration, OCR has issued several pieces of guidance to schools outlining what they must do when a student reports sexual assault. The most consequential of these, a 2011 Dear Colleague letter, mandated that schools use a preponderance of evidence standard in adjudications ― essentially determining guilt based on whether it’s more likely than not that someone did what they’re accused of.
OCR has also opened an unprecedented number of investigations of K-12 school districts and universities regarding allegations they mishandled sexual assault cases.
Yet groups like the Foundation for Individual Rights in Education, and some Republican members of Congress, have said the Education Department essentially issued new regulations under this guidance without going through the proper procedures. These critics, along with groups of Harvard University and University of Pennsylvania law professors, say some of what OCR is mandating does not afford due process to students accused of rape. The GOP platform is on track to include criticism of OCR’s efforts to enforce Title IX under the Obama administration.
Wednesday’s letter says OCR did not violate administrative law because it was only clarifying existing rights under Title IX; the Education department has responded similarly to criticism. Further, the letter argues, the guidance actually enhances due process rights for accused students.
“The Department reminded schools that both the complainant and the respondent should have the same rights in any grievance procedure—e.g., the same right to review documents, the same right to counsel, the same right to present witnesses and evidence, and the same right to an appeal,” the letter says.
By demanding equitable treatment of both the complainant and respondent, the letter adds, the department has given students accused of sexual assault more protections than what the Supreme Court says is required.
In the decision Goss v. Lopez, the high court said schools aren’t required to give students the right to a lawyer, to confront and cross-examine witnesses or to call their own witnesses. The letter cites that Supreme Court case as establishing that only public schools are required to provide notice of charges and offer a hearing when a student faces suspension or expulsion.
Read the full letter below:
Tyler Kingkade covers higher education and sexual violence, and is based in New York. You can reach him at firstname.lastname@example.org, or find him on Twitter: @tylerkingkade.