If Congress Wants to Reassert Its Constitutional Powers, It Needs to Start with the Dept. of Education Office for Civil Rights


February 7, 2016

Last Tuesday, Sen. Mike Lee of Utah and Rep. Jeb Hensarling of Texas admitted in a National Review editorial, “The federal government is broken. And while there is plenty of blame to go around, only Congress can fix it.”

At a Hillsdale College event the next day, Sen. Lee expounded on the priorities of the newly established Article 1 Project – “A1P” for short:

First, reclaiming Congress’ power of purse; second, reforming legislative cliffs; third, reasserting congressional authority over regulations and regulators; and finally, curbing executive discretion.

During the question-and-answer period that followed, discussion focused on the Department of Education’s Office for Civil Rights. In recent years, the OCR has issued a series of policy directives that dramatically expand the Supreme Court’s definition of campus sexual harassment (see Davis v. Monroe). These directives remove any requirement that the alleged incident be “objectively” offensive. As a result, basic principles of free speech and due process on campus have become upended.

Two OCR Dear Colleague Letters have attracted particular criticism: the 2010 DCL on bullying and the 2011 DCL on sexual assault. Even though these DCLs impose substantive new policy mandates on colleges, they did not comply with Administrative Procedure Act requirements for public review and comment. Hence, these DCLs were issued in an unlawful manner.

The policies required by these DCLs have drawn condemnation from law school professors, members of the United States Commission on Civil Rights, higher education organizations, and media representatives. Former ACLU president Nadine Strossen recently explained:

By threatening to pull federal funds, the OCR has forced schools, even well-endowed schools like Harvard, to adopt sexual misconduct policies that violate many civil liberties…OCR’s flawed sexual harassment concept reflects sexist stereotypes that are equally insulting to women and men.

These concerns were highlighted in a January 7, 2016 letter from the Senate Committee on Homeland Security and Governmental Affairs to Department of Education Secretary John King: http://www.lankford.senate.gov/imo/media/doc/Sen.%20Lankford%20letter%20to%20Dept.%20of%20Education%201.7.16.pdf

So what needs to be done to rein in the roguish behavior of the Office for Civil Rights?

  1. Require the OCR to comply with the Administrative Procedure Act and stop its illegal issuance of Dear Colleague Letters that lack proper statutory or regulatory authority.
  2. Require the OCR to bring previously issued policy directives into compliance with APA requirements.
  3. Hold oversight hearings to assure OCR accountability and transparency.
  4. Fund the OCR through regular order, i.e., by means of the annual HELP appropriations bill, not via an omnibus bill.
  5. Not pass proposed bills that represent tacit endorsements of unlawful OCR policies. For example, the Campus Safety Accountability and Safety Act (S. 590 and H.R. 1310) would serve to consolidate and expand upon the policies enumerated in OCR’s unlawful 2011 Dear Colleague Letter on sexual assault.

Additional recommendations on how to rein in the OCR are contained in the bi-partisan report commissioned by the Senate HELP Committee, “Recalibrating Regulation of Colleges and Universities.”

More information: www.saveservices.org/sexual-assault/ocr