Tuesday, May 17, 2016

More Title IX-Related Concerns on Due Process

From Inside Higher Ed:

Citing an erosion of free speech and due process on college campuses, a group of 21 law professors on Monday released an open letter alleging that the U.S. Department of Education has unlawfully expanded how colleges must define and respond to allegations of sexual assault and harassment.
The same argument has been made frequently in recent months by Republican lawmakers who say that the department’s Office for Civil Rights illegally created new regulations through a series of documents instructing colleges how to handle cases of sexual misconduct. Monday’s letter comes at a time when the department is also facing two lawsuits making the same claim. And a third lawsuit is on the way. The legal argument is an important one, because many colleges revised procedures based on the Education Department guidance -- sometimes saying that they had no choice but to do so.
“OCR needs to clarify which directives it considers to be guidance documents vs. regulations,” the professors wrote. “Directives that are guidance documents need to be revised to eliminate provisions containing obligatory wording, unless these provisions are expressly supported by prior legislation or regulation. Directives that are deemed to be regulations need to be brought into compliance with requirements of the Administrative Procedure Act.”...

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