Last Thursday, the Senate Committee on Health, Education, Labor, and Pensions (HELP) held a hearing on colleges’ and universities’ handling of sexual assault cases. As one might have predicted from the tough questions raised at Senator McCaskill’s (D-MO) roundtable discussions on the topic and the recent media coverage of how universities are struggling with federal guidance, the HELP Committee hearing got heated at times.

An especially intense exchange occurred between Senator Lamar Alexander (R-TN) and Catherine Lhamon, the Assistant Secretary for Civil Rights at the Department of Education. Alexander questioned the extent to which the Office for Civil Rights (OCR) has the authority to take several recent steps to combat campus sexual assault, such as issuing the April 4, 2011, “Dear Colleague” letter instructing institutions to use the “preponderance of the evidence” standard in adjudicating sexual misconduct cases, as well as OCR’s “Questions and Answers on Title IX and Sexual Violence” (PDF), released this April. (Skip to 50 minutes into the video of the hearing for this discussion.)

Alexander expressed concern that by calling its dictates “guidance,” OCR was essentially trying to create new law without adhering to the procedures normally required for new federal regulations under the Administrative Procedure Act (APA), particularly notice of the proposed regulations and an opportunity for public comment. Alexander zealously pursued this line of questioning, emphasizing the huge effect such guidance has on students nationwide:

What you’re doing is writing out detailed guidance for 22 million students on 7200 campuses, and it’s just — it could be your whim, your idea. We make the law. You don’t make the law. Where does such a guidance authority come from?

FIRE has previously argued that OCR had failed to comply with the APA in issuing the 2011 Dear Colleague letter—back in 2011, and more recently in an amicus curiae brief in the case of Harris v. Saint Joseph’s University, for two examples. Relatedly, in June 2013, Senator John McCain wrote to Attorney General Eric Holder to share his disapproval of several aspects of the May 9, 2013, “blueprint” for sexual misconduct policies created by a resolution agreement among OCR, the Department of Justice, and the University of Montana. He argued that significant policy changes were “unilaterally dictated by DOJ—through a settlement—rather than through congressional or regulatory action.”

Last week, Lhamon asserted that OCR guidance didn’t constitute new regulations; it simply explained what the law is. But several of the “guidance” documents from OCR have established—either explicitly or through an implicit threat—new standards and requirements for colleges and universities in dealing with sexual assault. In disagreeing with Lhamon’s assessment of the guidance, Alexander asked his colleagues to help draw a line between regulations that have been subject to notice and comment and mere guidance provided by OCR.

Senator Sheldon Whitehouse (D-RI), too, shared some of FIRE’s concerns with respect to campus sexual assaults. About 83 minutes in, Whitehouse explained the necessity of universities working with law enforcement in order to better protect students on campus. Without a prompt police investigation, evidence can be lost and, with it, the opportunity for a strong prosecution. And because colleges can, at most, only expel a student, students who have in fact committed a crime will remain free to commit further crimes off campus, he argued. Whitehouse also pointed out that college and university administrators lack the expertise and resources of law enforcement. Whitehouse asked Lhamon whether OCR could provide a model for a relationship between institutions and local law enforcement. Lhamon responded that guidance would be forthcoming on that issue.

Earlier in the session, HELP Committee Chairman Senator Tom Harkin (D-IA) focused his attention on increasing OCR’s authority. He suggested to Lhamon that OCR and Congress work together to establish lesser punishments for Title IX violations that can be implemented before the point at which OCR would revoke all of an institution’s federal funding—a step OCR has never taken. This idea isn’t new, but it would constitute a significant change in the system, and Lhamon emphasized that the threat of entirely cutting of federal funds has been a powerful tool for OCR to incentivize institutions to comply with Title IX. Advocacy group Know Your IX and others dissatisfied with the current system, though, argue that “[i]ntermediate sanctions would allow the OCR to hold schools accountable without hurting students in the process.”

The hearing also included testimony from victims’ rights advocates, as well as James L. Moore III, Director of the Clery Act Compliance Division of the Department of Education. Click over to the HELP Committee’s website to watch the full video.