November 22, 2013
An important victory for FIRE in the organization’s efforts to encourage the Office for Civil Rights (OCR) to return to a position of respecting the due process rights of the nation’s college students. Last week, the OCR (which under 1st-term Obama appointee Russlynn Ali consistently ignored FIRE) sent a rather churlish letter to FIRE president Greg Lukianoff in which the agency nonetheless conceded–apparently for the first time–that “the agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.” In other words: the Montana “blueprint” is a “blueprint” no more.
Thanks in large part to a public backlash in which FIRE played a key role, OCR’s retreat means that no other universities will be required by the federal government to adopt a sexual harassment policy that covers clearly protected speech. No other universities will be required to report to the federal government the names of faculty members or students who were investigated for engaging in 1st amendment protected speech that somehow offended a single person on campus. And, in a major retreat from the Ali-era OCR, the agency has reaffirmed its commitment to the definition of sexual harassment that the Supreme Court articulated in Davis v. Monroe (“harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”).
That a willingness to respect relevant Supreme Court precedent is seen as a new, welcome development gives a sense of how off course the OCR has gone.
That said, it’s worth noting what the OCR response to FIRE did not do. The letter defended Montana’s practice of handing out punishments to students accused of sexual harassment before any investigation has occurred. The new OCR letter suggested that the blueprint-no-more didn’t require Montana to mete out such discipline (even though the blueprint, in fact, did seem to require this), the agency implied it had no problem with Montana doing so.
While retracting the blueprint concept, there’s no reason to believe the OCR has suddenly rediscovered due process, as seen in the recent settlement with SUNY. That settlement, as noted previously, repeatedly referred to students who merely alleged sexual assault as “victims” (not alleged victim or accuser), required SUNY to investigate complaints of sexual assault even in cases where the local police had determined that the claim was baseless, and appeared to mandate a double-jeopardy system on four SUNY campuses.
Finally, while the blueprint may be no more, OCR continues to stand by its 2011 “Dear Colleague” letter, which ordered colleges and universities to diminish due process protections for students accused of sexual assault on campus–and which has been used as an excuse by some institutions (Cornell, Stanford, Yale) to create sexual assault procedures that all but presume guilt.
In short, the new letter is a victory for due process, but the OCR still has a long, long way to go.