June 27, 2018 

Tomakie Washington 

Acting Director, Information Collection Clearance Division 

Office of the Chief Privacy Officer 

Office of Management 

U.S. Department of Education 

400 Maryland Avenue, S.W. 

Washington, D.C. 20202 

Re: Request for Correction under the Information Quality Act 

Dear Tomakie Washington: 

On behalf of the National Center for Youth Law; SurvJustice; National Women’s Law Center; 

Equal Rights Advocates; Victim Rights Law Center; End Rape on Campus; Futures Without 

Violence; Public Justice; Legal Voice; Know Your IX, a project of Advocates for Youth; 

American Association of University Women; and Legal Momentum, the Women’s Legal Defense 

and Education Fund, we respectfully submit this Request for Correction to the U.S. Department 

of Education (the “Department”) pursuant to the Information Quality Act (“IQA”). 

The 2017 Dear Colleague Letter withdrawing earlier guidance on Title IX and sexual violence 

and issuing a new guidance letter made various factual assertions about procedures that schools 

use or have used to resolve Title IX complaints. These assertions are presented without citation, 

in direct violation of a requirement to identify data sources, and indeed appear unlikely to be 

supported by any accurate and quality information, as required by the IQA. 

Accordingly, on behalf of those 12 affected organizations, Democracy Forward Foundation and 

the National Center for Youth Law make this request for correction, pursuant to the Department’s 

IQA guidelines, of the information contained in the 2017 Dear Colleague Letter. We request that 

you correct this letter to remove the unsupported and incorrect factual assertions. Further, because 

the Department provided no basis other than those erroneous factual assertions to justify its 

rescission of prior guidance on Title IX and sexual violence, the degree of correction that is 

appropriate for the information involved necessitates undoing the rescission altogether. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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I. The IQA’s Requirements 

The IQA, found at Section 515 of Public Law 106-554, together with its implementing 

regulations and guidelines, requires that information disseminated to the public by federal 

agencies, including the Department, be accurate, reliable, and unbiased.1 The IQA directs the 

Office of Management and Budget (“OMB”) to issue guidelines that “provide policy and 

procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, 

utility, and integrity of information (including statistical information) disseminated by Federal 

agencies.”2 Federal agencies, in turn, must issue their own guidelines to promote the quality, 

utility, and integrity of disseminated information and to establish “administrative mechanisms 

allowing affected persons to seek and obtain correction of information maintained and 

disseminated by the agency that does not comply with the guidelines.”3 

Pursuant to these directives, OMB and the Department have promulgated guidelines establishing 

information quality standards and providing a means for parties to seek redress for information 

that does not conform to these standards.4 Under these guidelines, the touchstone for the IQA is 

that (1) information (2) disseminated by an agency (3) be of requisite quality. “Information” 

includes “any communication or representation of knowledge, such as facts or data, in any 

medium or form.”5 And dissemination “refers to any distribution of information to the public that 

is initiated or sponsored by a federal agency.”6 

The Department “assess[es] information quality using three factors: utility, objectivity, and 

integrity.”7 

● Utility “refers to the usefulness of the information to its intended users.”8 Any aggregate 

data or information presented in a Departmental product should be “carefully described 

and documented.”9 “The usefulness of information the Department disseminates will be 

evaluated from the perspective of the Department, educators, education researchers, 

policymakers, and the public.”10 

1 Consolidated Appropriations Act, 2001, Pub. L. No. 106-554 § 515, 114 Stat. 2763, 2763A-153 & 154 

(codified at 44 U.S.C. § 3516 note) (“IQA”); Guidelines for Ensuring and Maximizing the Quality, 

Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. 8452 

(Feb. 22, 2002) (“OMB Guidelines”); U.S. Dep’t of Educ., Information Quality Guidelines (“Departmental 

Guidelines”), https://www2.ed.gov/policy/gen/guid/iq/infoqualguide.pdf. 2 IQA, supra note 1, § 515(a). 

3 Id. § 515(b). As discussed in Part III, infra, the organizations jointly submitting this letter are all affected 

persons.

4 See Departmental Guidelines. 

5 Id. at 1. 

6 Id. 

7 Id. at 4. 

8 Id. 

9 Id. at 5. 

10 Id. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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● Objectivity “refers to the accuracy, reliability, and unbiased nature of information.”11 It 

“involves both the content and the presentation of the information.”12 Content “should be 

complete, includ[ing] documentation of the source of any information used.”13 

Department products should, among other things, “[c]learly identify data sources” and 

“[c]onfirm and document the reliability of the data, and acknowledge any shortcomings or 

explicit errors in any data that is included.”14 

● Integrity “refers to the security or protection of information” and “ensures that the 

information is not compromised through corruption or falsification.”15 

Research findings of third parties are subject to the IQA when the Department “represents, uses, 

or relies upon the information ... in support of the official position of the Department.”16 Indeed, 

when information is “reasonably likely to have a clear or substantial impact on” the Department’s 

policies, it “needs to meet higher quality standards.”17 Such “influential information” must be 

“accompanied by supporting documentation that allows an external user to understand clearly the 

information and be able to reproduce it, or understand the steps involved in producing it.”18 

II. The 2017 Dear Colleague Letter Disseminated Information of Questionable Quality 

On September 22, 2017, the Department issued a Dear Colleague Letter (the “2017 Dear 

Colleague Letter” or “Letter”).19 The 2017 Dear Colleague Letter, and accompanying Q&A 

guidance, both set forth the Trump Administration’s policy regarding Title IX and rescinded a 

2011 Dear Colleague Letter and 2014 Questions & Answers document (collectively “Prior 

Guidance”). 

The 2017 Dear Colleague Letter is covered by the IQA. The Letter contains information, i.e., a 

“representation of knowledge, such as facts or data ... including in textual ... [or] narrative ... 

forms.”20 The information, quoted immediately below, consists of assertions of facts in narrative 

form about what schools were doing before the Prior Guidance was issued and the effect that the 

Department’s Prior Guidance had on the procedures that schools employed to resolve Title IX 

complaints. And the Letter was plainly disseminated to the public. The Department issued the 

2017 Dear Colleague Letter with an accompanying press release and continues to make the Letter 

available to the public on its webpage. 

11 Id. 

12 Id. 

13 Id. 

14 Id. 

15 Id. at 9. 

16 Id. at 3. 

17 Id. at 9. 

18 Id. at 10. 

19 See U.S. Dep’t of Educ., Ltr. from Acting Ass’t Sec’y Candice Jackson (Sept. 22, 2017), 

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf (“2017 Dear Colleague 

Letter”).

20 Departmental Guidelines at 1. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Specifically, the Department disseminated the following information in the 2017 Dear Colleague 

Letter: 

1. “Many schools [before the Prior Guidance] had traditionally employed a higher clear-andconvincing-evidence standard.”21 

2. “[M]any schools [before the Prior Guidance] had previously followed procedures 

reserving appeal for accused students.”22 

3. “As a result [of the Prior Guidance], many schools have established procedures for 

resolving allegations that lack the most basic elements of fairness and due process.”23 

4. “As a result [of the Prior Guidance], many schools have established procedures for 

resolving allegations that ... are overwhelmingly stacked against the accused.”24 

5. The Prior Guidance “led to the deprivation of rights for many students--both accused 

students denied fair process and victims denied an adequate resolution of their 

complaints.”25 

6. The Prior Guidance “has not succeeded ... in leading institutions to guarantee educational 

opportunities on the equal basis that Title IX requires.”26 

Each of the six statements purports to contain factual information about what schools were doing 

prior to 2011 or that the Prior Guidance “result[ed]” in or “led to” particular effects. These cannot 

be considered mere statements of opinion. Although opinions are not generally subject to the 

IQA, any such opinions must be “clearly identified as such” and “not represent facts.”27 The 

information in these statements is not clearly identified as opinion, and the statements each 

represent that the Department is describing true information about the world around us. Thus, 

these statements contain information that is squarely governed by the IQA. 

This information fails the IQA requirements for utility and objectivity, and as a result, the 

Department’s dissemination of and apparent reliance on this information violates the IQA and its 

implementing guidelines. 

21 2017 Dear Colleague Letter at 1. 

22 Id. 

23 Id. 

24 Id. 

25 Id. at 1-2. 

26 Id. at 2. 

27 Departmental Guidelines at 3. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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First, there is no indication where this information comes from, which is critical to both the utility 

and objectivity factors. Absent citations to data sources, it is impossible for members of the 

intended audience – including students, educators, education researchers, policymakers, and the 

public – to fully understand the claims and verify the information. Indeed, the Department failed 

to identify a single source that it considered in drawing these conclusions, despite the requirement 

that it “[c]learly identify data sources.”28 

Second, the utility and objectivity of the information is further undermined by its facial 

implausibility. Four of the statements discussed above use the phrase “many schools” in 

describing the information. There are more than 98,000 K-12 public schools, run by over 16,000 

local education agencies, that receive federal financial assistance; there are an additional 7,236 

such institutions of higher education.29 The term “many” means “a number relatively large as 

compared with the whole or possible number of persons or things.”30 Indeed, as a noun, “many” 

means “majority.”31 With more than 105,000 total schools that receive federal funds, when the 

Department says in its Letter that “many schools” that receive federal financial assistance had 

done certain things a certain way or responded to the Prior Guidance in a certain manner, the 

Department leaves the intended audience – including students, educators, education researchers, 

policymakers, and the public – with the understanding that the Letter is referring to, and asserting 

factual information about, schools numbering in the thousands, even the majority of such schools. 

(If the Department were intending to claim hundreds out of 105,000 schools had done things, the 

word “many” would not be appropriate.) Yet the Department provided no evidence that would 

support such a factual claim, and we are not aware of any that exists. 

In fact, the existing research clearly contradicts the Letter’s conclusions, even if the claim had 

been limited only to the practices of institutions of higher education (which it was not). For 

example, a Congressionally-mandated report submitted to the U.S. Department of Justice in 2002 

revealed that more than eighty percent of schools did not mention the burden of proof used in a 

hearing, and that for those that did, 81% used the “preponderance of the evidence standard.”32 

There is no information reported from that survey as to how many schools actually used the “clear 

and convincing standard.” Nor is there any information reported from that survey regarding 

whether appeal rights were reserved for accused students only, or both the accuser and the 

accused. 

28 Id. at 5. 29 Nat’l Ctr. for Educ. Statistics, Educational Institutions, https://nces.ed.gov/fastfacts/display.asp?id=84 

(last visited June 21, 2018).

30 Ballentine’s Law Dictionary (“Many”). 

31 Oxford English Dictionary (“Many”). 

32 Heather M. Karjane, et al., Educ. Development Ctr., Inc., Campus Sexual Assault: How America’s 

Institutions of Higher Education Respond 122 (Oct. 2002), 

https://www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Further, in 2011, a survey released by the advocacy group Foundation for Individual Rights in 

Education (“FIRE”) of 197 universities – selected because they were ranked the highest by U.S. 

News & World Report – showed that before the Prior Guidance was issued in 2011, only 24 

schools said they used the clear and convincing standard.33 Further, FIRE’s analysis suggested 

that such high-ranking institutions of higher education were more likely to use that standard than 

other schools.34 This survey then further indicates that the total number of schools who used clear 

and convincing evidence before 2011 was not “many” of the 7,236 institutions of higher 

education, much less “many” of the more than 105,000 total schools. 

In 2014, at the request of Senator Claire McCaskill, the Senate Subcommittee on Financial and 

Contracting Oversight of the Committee on Homeland Security and Governmental Affairs 

conducted a comprehensive survey of colleges and universities for school year 2011-12 (shortly 

after the issuance of the 2011 Dear Colleague Letter). That 2014 survey found that only 11% of 

institutions of higher education that responded to the survey employed the clear and convincing 

standard and that only 6% of institutions appeared to provide an appeal right to the accused but 

not the accuser.35 

We are unaware of any other recent large-scale analysis of school sexual assault policy that 

provides a factual basis for the Letter’s assertions and, in violation of the IQA, the Letter did not 

cite any such analysis in support of its assertions of factual information. Indeed, a recent survey of 

the relevant literature, including the effects of federal Title IX policy, does not identify any such 

research.36 Further, we are aware of no information, much less quality information, that is 

available surveying the procedures used before the Prior Guidance at the more than 98,000 K-12 

public schools in the country. 

Third, the Letter asserts that the Prior Guidance led to a deprivation of rights for “many students.” 

Even if the Department had facts of specific examples at particular institutions in mind (which it 

elected not to share) and could establish a causal link between the Prior Guidance and the 

deprivations, the Department has not cited any evidence to support its claim that “many” of the 

Nation’s more than 77 million students experienced such deprivations.37 Its failure to do so again 

demonstrates a lack of utility and objectivity in the information asserted. 

33 FIRE, Standard of Evidence Survey: Colleges and Universities Respond to OCR’s New Mandate 

Appendix (August 2011) (calculated by counting schools that FIRE coded as “Clear and Convincing 

Evidence” in the column “Standard of Evidence used prior to April 4, 2011”), 

http://thefire.org/public/pdfs/8d799cc3bcca596e58e0c2998e6b2ce4.pdf?direct. 34 FIRE, Standard of Evidence Survey: Colleges and Universities Respond to OCR’s New Mandate, at 4 

(2011) (FIRE’s description of survey findings), 

http://thefire.org/public/pdfs/f17fa5caafd96ccdf8523abe56442215.pdf?direct. 35 S. Subcomm. on Financial & Contracting Oversight, Sexual Violence on Campus, App. tbl. F4, F3.14, 

F3.15 (July 9, 2014), https://www.hsgac.senate.gov/download/sexual-violence-on-campus-survey-report2. 36 Carrie A. Moylan & McKenzie Javorka, Widening the Lens: An Ecological Review of Campus Sexual 

Assault, Sage J.: Trauma, Violence, & Abuse (Feb. 6, 2018), 

http://journals.sagepub.com/doi/pdf/10.1177/1524838018756121. 37 Press Release, U.S. Census Bureau, School Enrollment in the U.S. (Oct. 20, 2016), https://www.census. 

gov/newsroom/press-releases/2016/cb16-tps142.html (number of students in United States). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Finally, the Letter’s conclusions about the scope and type of harm the Prior Guidance caused to 

accused students lack utility and objectivity. The Letter fails to define what it means when it 

refers to “the most basic elements of fairness and due process” or what it means to have 

procedures be “overwhelmingly stacked against the accused.” Even so, we are aware of no data, 

either within the Department or based on external research, that identifies a systemic problem. To 

be sure, one can cherry-pick one-sided anecdotes or allegations made (but not yet proven) in some 

litigation. But those assertions are not quality information that the Department may lawfully 

disseminate under the IQA, much less rely on for policy decisions. 

Indeed, those factual assertions run counter to the available evidence. For example, the 2014 

survey of institutions of higher education by a Senate Subcommittee, discussed above, determined 

that while there are ongoing, widespread problems with regard to protecting survivors of sexual 

harassment, including sexual violence, no similar widespread problem exists with regard to 

protecting the due process rights of the accused: 

In the adjudication process, it is necessary to balance the rights of survivors with 

the rights of alleged perpetrators. There has been concern voiced among some 

groups that if universities adopted more victim-centered approaches in their 

handling of sexual assault cases, they would violate the due process rights of 

alleged perpetrators. Some have even said the system is already too survivorfocused. Contrary to these concerns, it appears that some institutions actually 

afford certain due process elements more frequently to alleged perpetrators than 

they do to survivors. For example, 82% of schools allow alleged perpetrators to 

challenge hearing members regarding impartiality or conflicts of interest, while 

only 78% provide the same right to survivors.38 

Even more recent studies in Maryland and North Carolina similarly found that accused students 

were more likely than complainants to be given various procedural rights, including the right to 

receive written notice of the charges, to call witnesses (including character witnesses), to submit 

evidence, to question witnesses, and to challenge decisionmakers for bias.39 The Maryland study, 

moreover, found that in some institutions the procedures were still stacked against the 

complainant: schools that “were strongly oriented to protecting accused students’ due process 

rights did not, as a group, have values for protecting victims/accusers that were above the mean. 

Two, in fact, had victim support values of zero.” The Letter’s failure to acknowledge these and 

other analyses of the ongoing robustness of due process protections violates the IQA and its 

implementing guidelines’ regarding the objectivity and utility requirements. 

38 S. Subcomm. on Financial & Contracting Oversight, supra note 35, at 11-12. 

39 Amanda Konradi, Can Justice Be Served on Campus? An Examination of Due Process and Victim 

Protection Policies in the Campus Adjudication of Sexual Assault in Maryland, Humanity & Soc’y 373, 

387 (2016), http://www.academia.edu/attachments/52957101/download_file?st=MTUyOTAwMDk4 

OCwxOTkuMjMwLjExMi4yMjY%3D&s=profile; Joshua D. Elrod, Prompt and Equitable: A Critical 

Study of Sexual Violence Policies and Procedures at University of North Carolina Systems 86 (Aug. 2015) 

(Ph.D. dissertation, Appalachian State University), 

https://libres.uncg.edu/ir/asu/f/Elrod%20Dissertation.pdf. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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III. The Signatories Are Affected Persons 

Each of the 12 organizations that joins this letter is adversely affected by the Department’s 

dissemination of the information at issue.40 As part of a mission to promote gender justice and 

equal opportunity, the organizations work to prevent and redress sexual harassment, including 

sexual violence, by supporting and representing student survivors and by educating school 

officials, students, and members of the public about their rights and obligations under federal law. 

Consistent with this mission, the organizations have expended, and will continue to expend, their 

resources to ensure that all schools follow Title IX as explained by the Prior Guidance. 

The Department, by making the unsupported assertion in the 2017 Dear Colleague Letter that the 

Prior Guidance resulted in the establishment of inappropriate procedures and the infringement of 

accused students’ rights, makes our organizations’ jobs more difficult because this assertion 

discourages schools from voluntarily complying with the Prior Guidance. 

Further, the 2017 Dear Colleague Letter not only informs schools about the Department’s new 

legal interpretation of Title IX to permit the use of a clear-and-convincing burden of proof and 

one-sided appeals for the alleged perpetrator, but it also asserts that many schools had 

traditionally used such standards and procedures. That inaccurate factual assertion suggests a 

pre-existing consensus among schools in support of those procedures – and approval from the 

Department – that makes it more difficult for our organizations to oppose schools’ adoption of the 

procedures. 

Finally, the inaccurate information disseminated here reinforces an incorrect belief that students 

who claim they have experienced sexual violence (primarily women and girls) are being given 

unfair advantages in comparison to the alleged perpetrators (primarily men and boys). That 

inaccurate information has a chilling effect which discourages victims of sexual harassment, 

including sexual violence, whom our organizations support, from reporting their experiences to 

campus authorities. It also creates and reinforces stereotypical views regarding women and girls 

that our organizations will have to combat in order to achieve our goals of gender justice and 

equal opportunity. 

IV. Remedy and Conclusion 

Prevention and redress of sexual violence in educational institutions is a serious issue. The 

Department disrespects the issue, as well as the people who experience it, when it relies on and 

disseminates information that lack the basic attributes of quality. 

40 Departmental Guidelines at 10 (“An affected person is an individual or an entity that may use, benefit or 

be harmed by the disseminated information at issue.”). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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For the reasons described above, the Department should first correct the Letter by retracting the 

assertions containing unsupported factual information and noting its errors prominently on its 

website, and through a press release and email blast reaching those to whom the Letter was 

disseminated.41 Further, because the Department provided no basis other than that unsupported 

factual information to justify its rescission of the Prior Guidance, the degree of correction that is 

appropriate for the information involved necessitates unwinding the rescission altogether. 

Sincerely: 

Jesse Hahnel Karianne Jones, Counsel 

Executive Director Robin Thurston, Senior Counsel 

National Center for Youth Law Democracy Forward Foundation 

On behalf of the National Center for Youth Law, SurvJustice, 

National Women’s Law Center, Equal Rights Advocates, Victim Rights Law Center, 

End Rape on Campus, Futures Without Violence, Public Justice, Legal Voice, 

Know Your IX, a project of Advocates for Youth, American Association of University Women, and 

Legal Momentum, the Women’s Legal Defense and Education Fund 

cc: Denise L. Carter, Acting Assistant Secretary, Office of Management 

Kathleen S. Tighe, Inspector General, Office of the Inspector General 

Kenneth L. Marcus, Assistant Secretary, Office for Civil Rights 

41 Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information 

Disseminated by Federal Agencies, 66 Fed. Reg. 49,718, 49,721 (Sept. 28, 2001) (“Examples of 

appropriate responses ... include ... press releases or mass mailings that correct a widely disseminated 

error or address a frequently raised complaint.”).