[KC Johnson and Stuart Taylor] 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a requirement to use the preponderance of evidence standard, which, she asserted, OCR had previously established in two unpublished letters with individual universities.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, Georget