It looks like President Obama isn’t the only one ignoring the US Congress!

Today, the Department of Education began the second of three sessions of negotiated rulemaking on changes to federal campus crime reporting requirements. Unfortunately, negotiators are attempting to advance regulatory measures specifically rejected by lawmakers in the 2013 reauthorization of the Violence Against Women Act (VAWA), including a requirement that campus judiciaries employ our nation’s lowest evidentiary standard in sexual harassment and sexual assault hearings.

Participants in today’s rulemaking are supposed to negotiate regulatory changes made by VAWA to campus safety and security reporting requirements in the Jeanne Clery Act, which mandates that colleges accepting federal funding publicly disclose information about campus crime. But the Foundation for Individual Rights in Education (FIRE) is concerned by the negotiators’ disregard for both the statutory boundaries of the rulemaking and clear legislative intent.

“Several negotiators have been explicit about their desire to insert language requiring that campus judiciaries use the preponderance of the evidence standard when deciding sexual harassment and sexual assault cases,” said FIRE Legislative and Policy Director Joe Cohn.

..Following numerous suggestions regarding the topics that the negotiated rulemaking should address, the Department of Education announced the parameters of the rulemaking in a notice published in the Federal Register on September 19, 2013…

Despite the limited scope of the notice, negotiators are attempting to expand their reach by addressing issues relating to campus discipline which cannot fairly be categorized as campus safety and reporting requirements. Multiple negotiators have raised the possibility of mandating the preponderance of the evidence standard.

Early drafts of the Reauthorization of the Violence Against Women Act included language that would have mandated the preponderance of the evidence standard’s usage in campus sexual harassment and sexual assault cases, but that language was intentionally removed before the bill was passed. In fact, Congress also removed language that required universities to “provide a prompt and equitable investigation and resolution” in those cases, and replaced it with a requirement that proceedings be “prompt, fair, and impartial.” This change was made because in a 2011 “Dear Colleague” letter, the Department of Education stated that Title IX’s implementing regulations, which mandate “prompt and equitable resolution” of complaints, require the use of the preponderance standard Congress sought to avoid mandating.

But the draft regulations authored by the Department of Education circumvent congressional intent by including a provision that states, “An institution’s disciplinary proceedings are prompt, fair, and impartial if the proceedings … comply with guidance issued by the U.S. Department of Education’s Office for Civil Rights.”