The Chronicle of Higher Education. June 26, 2014.
The two top members of the U.S. Senate’s education committee lambasted a leading Education Department official during a hearing Thursday morning on campus sexual assaults—for reasons that were diametrically opposed.
In a pair of exchanges that illustrated the gulf between the two parties on the question of federal authority on this issue, Sen. Tom Harkin and Sen. Lamar Alexander took the assistant secretary of education for civil rights, Catherine E. Lhamon, to task over the government’s role in stopping campus sexual assaults.
The ‘Nuclear Option’
Mr. Harkin, an Iowa Democrat who is chairman of the Committee on Health, Education, Labor, and Pensions, started the panel’s questioning by asking Ms. Lhamon whether the department had ever revoked a university’s federal funding—what he termed the “nuclear option”—because it did not comply with the rules governing sexual assault under a federal gender-equity law known as Title IX.
When she confirmed that it had not, Senator Harkin argued that the continuing epidemic of sexual violence on campuses suggested that the department felt it had enough authority to combat campus rapes but wasn’t doing so effectively. He went as far as to suggest that Ms. Lhamon should be asking Congress for more power to force colleges’ and universities’ hands on the issue.
Ms. Lhamon responded that she believes the department has enough authority but is willing to work with lawmakers to better deal with their concerns.
‘Who Gave You the Authority to Do That?’
In a 180-degree swing, Senator Alexander of Tennessee, the top Republican on the committee, began his questioning by pointedly suggesting that the department had overstepped its authority by issuing guidance to campuses on the issue. (Two recent pieces of guidance are a 2011 “Dear Colleague” letter and a Q&A released in April.)
He asked Ms. Lhamon why, in issuing the guidance, the department had not allowed for a public-comment period. He noted that regulations amending the Clery Act by way of the Violence Against Women Act are subject to a public-comment period.
“Is this the law?” Mr. Alexander said of the guidance. “Who gave you the authority to do that?”
Ms. Lhamon responded that lawmakers had given her the authority to issue guidance when they confirmed her appointment. Mr. Alexander was not satisfied: “I think we should carefully consider, not just in this case but in other cases … what the difference is between a law and a regulation, which is proposed by the Department of Education, and this growing business of issuing guidance.”
This is not the first time a lawmaker has cried foul over departmental guidance. In 2013 the Education and Justice Departments settled a sexual-assault investigation at the University of Montana at Missoula, calling the agreement reached for the institution to change its policies “a blueprint for colleges and universities across the country,” as a Justice Department official put it. The statement attracted controversy, with critics, including Sen. John McCain, an Arizona Republican, saying he worried about policies that had been “unilaterally dictated” by federal agencies.
Here’s some background: The Education Department has often used guidance to shape the interpretation of federal law on campus sexual assaults. It can do so, legally. Letters like the one to the University of Montana do not carry the same authority, “but you’d be a fool not to be guided by them,” an expert told The Chronicle in April.
Regulations outrank both guidance and agreements that resolve investigations of individual colleges, but all follow in authority legislation enacted by Congress. One example of such a regulation is the proposed new rule under the Violence Against Women Act, which would require colleges to better prevent dating violence, domestic violence, and stalking on campuses.