OCR is Harming Free Speech and Due Process

BREAKING: On September 22, the OCR announced its withdrawal of the 2011 Dear Colleague Letter and its 2014 Questions and Answers. The same day the OCR released a new Q and A on Campus Sexual Misconduct guidance document.

In 2015, Northwestern University professor Laura Kipnis published “Sexual Paranoia Strikes Academe” in the Chronicle of Higher Education. The article questioned the aggressive sexual harassment policies in place on her campus. But instead of being applauded for her thoughtful analysis of an important topic, Kipnis found herself the target of a Title IX complaint, alleging her essay imposed a “chilling effect” on students’ ability to report sexual misconduct. Wryly noting, “I hadn’t sexually assaulted anyone,” Kipnis decried the expanding reach of Title IX administrators across the country:

“Ambivalent sex becomes coerced sex, with charges brought months or even years after the events in question. Title IX officers adjudicate an increasing range of murky situations involving mutual drunkedness, conflicting stories, and relationships gone wrong.”

The reason for this state of affairs is the U.S. Department of Education’s Office for Civil Rights (OCR) and its ever-expanding interpretations of Title IX. The 1972 Title IX law states simply:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

In 1999 the Supreme Court ruled that student conduct must be “severe, pervasive, and objectively offensive” to be considered in violation of Title IX (Davis v. Monroe County Board of Education). But over the years, a series of OCR guidances, enforcement actions, and settlement agreements have served to undermine the Supreme Court’s Davis decision, thus curtailing the civil rights of college students:

  • 2010: OCR Dear Colleague Letter on bullying that nullified the Supreme Court’s requirement that harassment must be “pervasive.”
  • 2011: Dear Colleague Letter on sexual assault which mandated that campus disciplinary committees handle felony sex cases.
  • 2013: University of Montana Letter of Findings which required the university to disregard the Supreme Court’s “objectively offensive” definition of sexual harassment. The Letter was also referred to as a “blueprint” for other universities. This has had the effect of creating a new cause of action by students who file complaints about “micro-aggressions” and “lack of safe spaces” on campus.

In a letter to Congress, two members of the U.S. Commission on Civil Rights noted that the Office for Civil Rights:

“…has all too often been willing to define perfectly legal conduct as unlawful. Though OCR may claim to be underfunded, its resources are stretched thin largely because it has so often chosen to address violations it has made up out of thin air. Increasing OCR’s budget would in effect reward the agency for frequently overstepping the law.”

In a Statement to the House of Representatives Committee on the Judiciary, constitutional attorney Hans Bader concludes the OCR “has ignored Supreme Court rulings and other court decisions, which require that speech or conduct be offensive to a reasonable person to constitute sexual harassment [and] be both severe and pervasive to trigger Title IX liability.”

There is some evidence that the OCR has begun to moderate its approach. In late 2016 the Office for Civil Rights issued a Determination Letter and Settlement Agreement regarding due process violations at Wesley College of Delaware. These actions represent a change from the OCR’s long-standing neglect of due process rights of accused students. SAVE has prepared a six-page summary of the Determination Letter and Settlement Agreement, as well as a summary, analysis, and recommendations of these documents.

Beginning in March 2017, organizations began to issue independent reports calling for an overhaul of the campus-based system:

  1. SAVE: Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade
  2. American College of Trial Lawyers: Position Statement Regarding Campus Sexual Assault Investigations
  3. NCHERM Group: Due Process and the Sex Police
  4. American Bar Association Task Force for Promoting Fairness in Campus Sexual Misconduct Cases
  5. Heritage Foundation: Campus Sexual Assault: Understanding the Problem and How to Fix It

LAWSUITS AGAINST THE OCR

COMMUNICATIONS WITH LAWMAKERS

  • Letter from Sen. James Lankford calling on the OCR to explain the legal basis for its policies (January 7, 2016)
  • OCR response to Sen. Lankford stating its policies represent OCR’s long-standing “practice” (February 17, 2016)
  • Questions by Rep. Virginia Foxx to Department of Education Secretary-Designate John King about OCR abuses (February 24, 2016)
  • Letter from Sen. Lankford calling on John King to “immediately rein in the regulatory abuses” at the OCR (March 4, 2016)

STATE-LEVEL BILLS: SAVE has tracked the status of state-level bills on free speech and due process. The analysis, current as of August 1, 2017, is available HERE.

LETTERS

Numerous organizations have issued letters criticizing the 2011 Dear Colleague Letter or calling on the Department of Education to rescind the directive:

1. Stop Abusive and Violent Environments:

2. Group Letters

  • Letter to the Senate Appropriations Committee to include a rider that would require OCR to follow the requirements of the Administrative Procedure Act (December 9, 2015)
  • Leading Law School Professors (May 16, 2016)

3. American Association of University Professors:

4. Foundation for Individual Rights in Education:

  • Letter of May 5, 2011
  • Letter of May 7, 2012 – co-signers:
    • Alliance Defense Fund
    • Feminists for Free Expression
    • American Booksellers Foundation for Free Expression
    • Tully Center for Free Speech at Syracuse University
    • Accuracy in Media
    • Heartland Institute
    • American Council for Trustees and Alumni
    • National Association for Scholars
    • John William Pope Center for Higher Education Policy
    • Defending Dissent Foundation
    • Eight civil rights scholars
  • July 16, 2013 – co-signers:
    • Foundation for Individual Rights in Education
    • Academic Freedom Coalition of Nebraska
    • American Booksellers Foundation for Free Expression
    • American Council of Trustees and Alumni
    • Defending Dissent Foundation
    • Electronic Frontier Foundation
    • First Amendment Coalition
    • Goldwater Institute
    • The John William Pope Center for Higher Education Policy
    • National Coalition Against Censorship
    • The Rutherford Institute
    • Students For Liberty
    • Student Press Law Center
    • The Tully Center for Free Speech at Syracuse University
    • Woodhull Sexual Freedom Alliance

5. National Association of Scholars:

 

LAW REVIEWS