FIRE Publishes FAQ for Students on New OCR Mandates

By August 17, 2011

FIRE has published answers to frequently asked questions from students about the new threats to due process and freedom of speech presented by recent guidance from the federal Department of Education’s Office for Civil Rights (OCR).

Among other things, FIRE’s FAQ explains why mandating that colleges and universities employ the "preponderance of the evidence" standard for allegations of sexual harassment and sexual violence is inappropriate and why this lowered standard threatens free speech and due process.

The FAQ also explains why OCR exerts so much power over institutions of higher learning:

What does OCR do?

OCR enforces various federal laws prohibiting discrimination on the basis of race, color, national origin, sex, disability, or age by an educational institution (including colleges and universities) that receives federal funding. One of the most prominent of these laws is Title IX of the Education Amendments of 1972, which forbids discrimination on the basis of sex.

OCR investigates complaints filed by anyone who believes that such discrimination has occurred. Complaints must be filed within 180 days of the alleged discrimination, but the person filing the complaint does not have to be the alleged victim. Discrimination under these statutes includes "harassment" on the basis of any of the protected categories, including sexual harassment or racial harassment.

If a school does not voluntarily comply with the federal laws and regulations that OCR enforces, OCR may formally find a school in violation and begin action to withdraw the school’s Department of Education funding or ask the federal Department of Justice to begin judicial proceedings.

What are the implications of a formal finding of violation by OCR?

Losing federal funding would be disastrous for virtually all colleges and universities, both public and private. For example, Yale University received nearly $510.4 million dollars in federal funding for research and training initiatives in the 2009-2010 academic year, and the University of California at Berkeley received a comparable amount. Federal educational grant funding for all colleges totaled $41.3 billion for the 2009-2010 academic year.

Because the stakes are so high and the possibility of negative publicity is so great, colleges are terrified of the prospect of an OCR investigation. Therefore, universities comply with OCR’s requirements rather than risk an investigation and loss of federal funding.

All students returning to campus this fall should be sure to review our FAQ to see how these new regulations are threatening rights on campus. You’ll be subject to OCR’s new mandates once you’re back at school, so it’s best to educate yourself about them now.

Once you’re up to speed, spread the word: Tell your friends, write an op-ed for the student newspaper, or tell your student government representative to work for student rights. For more on how to be an effective student advocate on your campus, check out the resources maintained by FIRE’s Campus Freedom Network.

Cases: U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections