A growing number of GOP lawmakers are expressing alarm about the Department of Education’s actions, cheered by the campus left, to curtail free speech and due process for college students. The Chronicle of Higher Education reports that the DOE is fielding tough questions from Kansas Sen. James Lankford about its order that colleges adopt a “preponderance of the evidence” standard in adjudicating sexual assault, and about its expansion of the definition of sexual harassment to include what many experts say is constitutionally protected speech:
He [Lankford] said the department’s 2010 guidance letter dealing with sexual harassment and its 2011 guidance letter on sexual violence have been decried by “legal scholars and academics across the political spectrum” as pressuring colleges to take steps that threaten students’ free-speech and due-process rights.
Similar concerns were raised last year by Sen. Lamar Alexander, a Tennessee Republican who is chairman of the Senate Committee on Health, Education, Labor, and Pensions.
Lankford and Alexander aren’t even the two most well-known GOP lawmakers to clash with the Obama Administration on campus civil liberties: In 2013, Sen. John McCain sent a letter to Eric Holder arguing that the Administration’s “suggested disciplinary procedures are direct hindrances to students’ and teachers’ First Amendment rights,” and questioning whether it had the authority to impose them. (The Administration later backed off from the regulations at issue in that particular case).
We are glad to see that Congress is asserting is oversight powers in this way: Under President Obama, the heavily ideological Office for Civil Rights in Education has effectively gone rogue, unilaterally forcing hundreds of colleges to rewrite their rules of conduct while mostly avoiding accountability.
Still, Congress needs to do more. So far, the fierce debate over campus civil liberties has been handled almost entirely by the executive (which has almost always sided with the campus left) and the courts (which are modestly pushing back, at least at the state level). Congress must take a larger role in resolving these questions, and in particular, clarifying its expectations of both campuses and administrative agencies. While this may be a polarizing issue, its likely that at least some Democratic lawmakers would be unwilling to support the more radical initiatives of the Department of Education bureaucrats. After all, President Obama has himself spoken up for campus free speech, and even Sen. Bernie Sanders has suggested that progressives are approaching the sexual assault issue the wrong way.