His Replacement, John B. King Jr, May Have New Priorities, and Confirmation Hearings Before Senate Committee Chairman Lamar Alexander Could Impact King, Even Forcing Him to Take Action

Duncan Resignation Court Lead to New Campus Date-Rape Policies

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-- WASHINGTON, D.C. (October 2, 2015): U.S. Education (DoE) Secretary Arne Duncan announced today that he will be stepping down. Among many other consequences, the appointment of his successor may change the Department’s controversial polices which have pushed colleges to crack down on campus sexual assaults, especially date rape, says public interest law professor John Banzhaf, whose proposals for fixing the current system have been widely publicized in the media, and apparently are being implemented.Duncan’s proposed replacement, DoE Deputy Secretary John B. King Jr., may have very different priorities and concerns, and this could have a major impact on the priorities and policies of the Department, argues Banzhaf. At the very least, his confirmation hearings will provide an opportunity for senators who oppose these policies to pressure King to agree to make changes, or at least to follow what many argue is the legal requirement that they be issued only after a notice and comment period, Banzhaf says.Recently, under harsh questioning by Senator Lamar Alexander, R-Tennessee, chairman of the Senate committee that handles education, Principal Deputy Assistant Secretary Delegated the Duties of the Assistant Secretary Amy McIntosh was forced to admit the "guidance" offered to colleges in a 2011 letter from the Department of Education’s Office for Civil Rights (OCR) was not in fact legal binding.Senator Alexander argued that it was not binding because it was not issued in accordance with federal requirements in the Administrative Procedures Act (APA) which in most cases mandate that an agency must seek and act upon public comment before it issues rules which have the force of law.Even prior to that, the policies put into place by many colleges as a result of DoE pressure were widely criticized by many legal scholars as being not only unfair but illegal and unconstitutional.Indeed, says Banzhaf, in almost two dozen cases, colleges were rebuffed by courts, or otherwise forced into settlements, when students charged with sexual assault under the rules challenged them in court.Banzhaf had previously been in touch with Alexander’s office, suggesting that he take legal action to require DoE to either put the guidance rules up for comment or abandon them.Banzhaf says that he now will suggest that Alexander, who will presumably chair the hearings into the King nomination, use the hearings as a vehicle to pressure DoE to change the rules, or follow the notice and comment procedures.There appears to be an ever-growing chorus speaking out and saying that the DoE has not only gone too far, but has acted illegally in pressuring colleges to crack down on campus date rape.The resignation of Duncan, and the appointment of King, may have an important effect in this area, probably by putting more emphasis on the Due Process rights of students accused of date rape, and possibly even re-thinking whether even small colleges have the resources and expertise to fairly and effectively investigate rape cases, and to then adjudicate them with panels barely able to handle water balloon fights.JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.Professor of Public Interest LawGeorge Washington University Law School,FAMRI Dr. William Cahan Distinguished Professor,Fellow, World Technology Network,Founder, Action on Smoking and Health (ASH)2000 H Street, NWWashington, DC 20052, USA(202) 994-7229 // (703) 527-8418 http://banzhaf.net/ @profbanzhaf