The path to Obama's 'Dear Colleague' letter

On April 4, 2011, the same day that President Obama formally announced his reelection bid, his Education Department, with no advance notice, reinterpreted Title IX as giving the federal government authority to dictate the specific procedures that colleges must use to adjudicate student-on-student sexual assault allegations.

This "Dear Colleague" letter, issued by the Office for Civil Rights (OCR), told all of the more than 7,000 colleges that receive federal money to use the lowest possible standard of proof, a preponderance of evidence, in sexual assault cases (though not in less serious matters such as cheating and noise violations). The letter required universities to allow accusers to appeal not-guilty findings, a form of double jeopardy. It further told schools to accelerate their adjudications, with a recommended 60-day limit. And, perhaps most important, OCR strongly discouraged cross-examination of accusers, given the procedures that most universities employed.

The Obama administration never explained the timing of this document's release. Nor did it explain how a plainly worded, 40-year-old anti-discrimination law had become a fount of such highly controversial mandates.

In early 2016, Oklahoma senator James Lankford, who has emerged as an important defender of campus due process, requested that the Education Department provide the legal basis for the Dear Colleague letter. The response was less than convincing, even though the Obama administration had nearly five years to come up with a rationale. In a single paragraph, then-OCR head Catherine Lhamon maintained that the 2011 letter merely "reminded" colleges and universities of a requirement to use the preponderance of evidence standard, which, she asserted, OCR had previously established in two unpublished letters with individual universities. (In one of these cases, the alleged perpetrator was a professor, rendering it of little use to analyzing student-on-student allegations.) Lhamon said nothing about the source of OCR's claimed authority to require that colleges allow accusers to appeal not-guilty findings, that they discourage cross-examination of accusers or that they accelerate adjudications. She implied that these provisions were so obvious that OCR correctly issued them without seeking public comment.

The key section of Title IX, enacted in 1972, states that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." Congressional debate gave no hint of an intent to extend federal authority to the point of dictating procedures that colleges must use to adjudicate sexual assault allegations. Nor, for 20 years, did OCR take any steps in that direction.

While the passage of the Clery Act in 1990 highlighted the issue of campus crime, two years later, the Higher Education Amendments required all colleges and universities to "develop and distribute a statement of policy regarding [both] campus sexual assault programs, which shall be aimed at prevention of sex offenses; and procedures followed once a sex offense has occurred." Congress thus distinguished between sexual assaults and other student-on-student felony allegations, for which universities have never been required to develop policy statements.

In 1994, OCR's California regional office issued a resolution letter claiming Title IX gave it jurisdiction to investigate a university's response to student-on-student sexual assault allegations. Bill Clinton's OCR applied this principle nationally in 1997, after notice and comment rulemaking. And in Davis v. Monroe County Board of Education (1999), the Supreme Court held that educational institutions could be held liable, under Title IX, for alleged student-on-student sexual harassment - but only in unusually aggravated circumstances: where the schools "are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school."

It's true, as Lhamon would later maintain, that in a single resolution agreement, Georgetown's in 2003, an OCR regional office took from these developments a belief that it could order a university to use the preponderance of evidence standard. (It buried this finding in a single sentence, on the third page of a 17-page letter, suggesting it conferred on the decision far less significance than would Lhamon 13 years later in her letter to Lankford.) Yet other resolution letters from this same period envisioned sexual assault as a crime for which police, rather than universities, would have responsibility to investigate. That was the thrust of a 2004 resolution agreement with Oklahoma State University involving incidents that occurred off-campus and a 2005 agreement with Buffalo State University (first identified by Jacob Gersen and Jeannie Suk Gersen) involving incidents that had been reported to police. An important article by Stephen Henrick analyzes the pre-2011 sweep of these resolution letters.

Lhamon never explained why the Georgetown resolution letter could serve as the basis for nationwide guidance, even as her OCR issued other guidance explicitly repudiating the terms of the Oklahoma State and Buffalo State resolution letters.

In her letter to Lankford, Lhamon cited no pre-2011 court decisions to bolster the authority claimed by the "Dear Colleague" letter. With the exception of an outlying decision in the District Court of Connecticut, decisions between 2001 and 2011 detected Title IX liability only in limited circumstances, usually when universities recruited star athletes with records of sexual misconduct at their previous institutions. The 11th Circuit, for instance, explained its justification for invoking Title IX: The University of Georgia's basketball coach knew that the accused student had "had disciplinary and criminal problems, particularly those involving harassment of women, while attending other colleges," and had still worked hard to get him admitted.

So what changed between 2001 and 2011? Not the percentage of sexual assaults on campus - according to Joe Biden, that percentage was the "same" in 1995 as in 2017. Rather, the election of Barack Obama had two critical effects.

First, as with any modern Democratic administration, strong advocates of identity politics occupied key bureaucratic positions, which they could use to implement regulatory policies outside of rigorous congressional oversight. In a 2010 interview, OCR's new head, Russlynn Ali, all but begged sexual assault accusers to file Title IX complaints against their colleges, promising that "we will use all of the tools at our disposal including referring to Justice or withholding federal funds or going to adjudication to ensure that women are free from sexual violence."

Second, the Democratic defeat in the 2010 midterm elections focused Obama's attention on how identity politics could rally his base. This model had worked well in one of the few major Democratic victories that year, the Colorado Senate race. So the administration took high-profile positions in favor of marriage for same-sex couples, permitting "dreamers" to remain in the United States and mandating contraceptive coverage in Obamacare. The "Dear Colleague" letter, which appealed to feminists and campus activists, reflected this broader campaign agenda - except that, unlike these other Obama initiatives, it initially encountered no legislative criticism.

In the end, OCR's selective interpretation of Title IX combined elements of a few past resolution letters that would increase the chances of guilty findings with unrelated items (such as discouraging cross-examination) that accomplished the same purpose. The effects have been disastrous, leaving the courts as the most reliable protector of accused students' rights. Tomorrow, we'll look at some of the recent key court decisions on this issue.