SAVE has provided some serious fodder for due process advocates by preparing questions and legal arguments to show how the OCR has violated multiple laws and flouted Supreme Court decisions in its “Dear Colleague” Letter regarding sexual assault enforcement at U.S. colleges. And the Senate Health, Education, Labor, and Pensions committee is set to begin hearings tomorrow, February 24.

Under what legal authority is the Office for Civil Rights overriding a Supreme Court decision in order to dictate the standard (preponderance of evidence) that courts must use to resolve private disputes?

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How can the Office for Civil Rights fulfill its Congressional mandate when it apparently believes that equitable procedures only need to be provided to one party in the dispute?

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The OCR guidance generally imposes liability on institutions even if they discipline the accused harasser, if they do not also “prevent its recurrence” and “remedy its effects,” and OCR says that even punishing the harasser “likely will not be sufficient” to comply with Title IX. (See “Questions and Answers on Title IX and Sexual Violence” (April 29, 2014), pg. 25 —http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf ).

This was major change accomplished without any notice and comment, as required by the Administrative Procedures Act.