UPDATE - Secretary of Education Arne Duncan Steps Down, But Obama "Chickens Out" on Nomination

WASHINGTON - Oct. 2, 2015 - PRLog -- WASHINGTON, D.C. (October 2, 2015):  Despite earlier reports that President Obama planned to nominate Department of Education Deputy Secretary John B. King Jr. to replace current Education Secretary Arne Duncan who announced today that he is stepping down, the "White House Chickened Out" in the words of The College Fix, and instead will simply appoint King in an acting capacity.

        This avoids what would otherwise have been a bruising confirmation battle for King, or even a refusal by Senator Lamar Alexander [R-Tenn], chairman of the Senate's committee on education, to hold a hearing on his nomination, over issues including the Department's current efforts to pressure universities to crack down on alleged rapists on campus.

        More specifically, Alexander had publicly contended that the Department so-called "guidance" letter on this issue to colleges was illegal because it was issued without following the procedure required by the Administrative Procedure Act [APA].  This statute requires the opportunity for the public to comment before binding legal rules are issued.

        Indeed, recently Senator Alexander forced Amy McIntosh, Principal Deputy Assistant Secretary Delegated the Duties of the Assistant Secretary, to admit that 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.

        The College Fix also noted the involvement of public interest law professor John Banzhaf:

    "John Banzhaf, George Washington University law professor, had suggested that Alexander use the Senate Health, Education, Labor and Pensions Committee confirmation hearings for Duncan’s successor to press for an internal crackdown on the department’s legally dubious guidance:"

    "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. …"

    "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."

        Banzhaf notes that there are still other tactics Senator Alexander could use to force the Department of Education to either withdraw its guidance letter, or to permit the public to comment on it before it is issued as a formal rule.

        In such a case, the agency would be faced with a growing chorus of legal scholars who have argued that current campus procedures deny accused students Due Process and other fundamental protections; a claim backed up by several recent court rulings.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf