OCR’s April 4 Letter and Opposition in the National Media

By December 26, 2011

As most FIRE supporters probably know, the single event that dominated our advocacy in 2011 was the April 4 "Dear Colleague" letter that the federal Department of Education’s Office for Civil Rights (OCR) sent to virtually every college in the country. The letter, presented as an attempt to address the real problem of sexual assault on campus, promulgated several deeply troubling ways of dealing with the issue, including requiring universities to lower their standard of proof in sexual harassment cases (of which assault is considered a subset) to the lowest possible standard, and imposing something that looks very much like, and shares similar problems with, the judicially forbidden practice of "double jeopardy." All the while, OCR failed to address the havoc that poorly defined and opportunistically applied "harassment codes" have imposed on our campuses.

Indeed, OCR engaged in willful blindness with regard to the free speech issues, given that all you have to do is look at the cases challenging speech codes over the last 30 years to see how abuses campuses abuse "harassment" to justify speech codes and punish speech that is clearly protected. By failing to even mention the First Amendment in its 19-page letter, OCR has opened the door to a revival of the speech code wars of the last 30 years, virtually all of which ended in repeated failure for universities as administrators repeatedly attempted to abuse harassment rationales to punish speech they simply disliked.

Furthermore, OCR’s position that sexual harassment and assault are offenses so serious that we don’t even need to be all that certain that someone actually committed them goes against the ideals of a country that values the idea of "innocent until proven guilty." As FIRE has repeated over and over again, reducing due process is not the way to increase justice. Finally, it is dangerously misguided and naïve for OCR to place such faith in the proposition that universities are well-suited to the role of policing such complex, often criminal cases. Has news of the scandals that have cropped up this year at universities as different as Penn State, Florida A&M, and Syracuse University—not to mention the debacle of the Duke lacrosse case several years ago—not yet made it across the Beltway?

The April 4 letter represented a dramatic switch in OCR’s attitude towards allowing colleges and universities to define their own rules for dealing with sexual and racial discrimination. Previously, in particular in 2003, OCR had taken steps to make sure that harassment would not continue to be abused by campuses as an all-purpose weapon against merely offensive or politically incorrect speech on campus, which it had been since at least the 1980s. (If you check out our FIRE case archive you will see it comes up time and time again.) Also, OCR previously allowed a good deal of freedom to universities in deciding their procedures for dealing with both sexual harassment and assault cases. The April 4 letter was a major reversal on both of these fronts.

In addition to our May 5 response to OCR—which OCR still has yet to answer, over seven months later—we have discussed OCR’s Dear Colleague Letter extensively on our website. I certainly recommend that you review the blogs and articles written by FIRE staff explaining the flaws in the April 4 letter, as well as our FAQ. Our extensive coverage addresses the OCR letter and its impact in depth. (For example, as a preliminary matter, it’s not even clear that the OCR had the power to impose such sweeping changes.)

Fighting a regulation that, no matter how misguided, claimed as its primary goal the reduction of sexual assault—one of the most vile crimes a person can commit—is not a campaign that is necessarily going to be easily understood or very popular. That is why we are so thankful to have the help and support of so many brilliant and thoughtful writers, commentators, and scholars to explain to the public why the April 4 letter poses so many potential legal, moral, and, of course, practical problems for fairness, justice, and basic rights on campus. The following is an abbreviated list of some of the articles explaining what was wrong with the April 4 letter. As you can see, many come from very different political points of view, some are by FIRE staff (including myself), some are by long time friends of the organization, and some, like FIRE chairman Harvey Silverglate’s and Peter Berkowitz’s pieces in The Wall Street Journal or our own Samantha Harris’ piece in the New York Post reached a very, very large number of readers. I would particularly like to thank Hans Bader for his aggressive and incisive work; he has been on this issue from the very beginning and has pursued it with passion, moral force, and legal clarity.

·  Hans Bader, "Education Department shreds presumption of innocence in April 4 letter," The Washington Examiner, April 8, 2011

·  Hans Bader, "Education Department undermines accuracy, due process in sexual harassment cases," The Washington Examiner, April 14, 2011

·  Peter Berkowitz, "Is Yale University Sexist?," The Wall Street Journal, April 16, 2011

·  Wendy Kaminer, "The SaVE Act: Trading Liberty for Security on Campus," The Atlantic, April 25, 2011

·  Hans Bader, "Falsely accused teachers and students will be harmed by new Education Department policy," The Washington Examiner, May 16, 2011

·  Mona Charen, "The Tyranny of Hurt Feelings," National Review Online, May 20, 2011

·  Harvey Silverglate and Kyle Smealie, "What Yale’s President Should Have Said about the Frat Boys," Minding The Campus, May 23, 2011

·  Greg Lukianoff, "Yale, the Department of Education, and the looming free speech crisis," The Daily Caller, May 24, 2011

·  Christina Hoff Sommers, "In Making Campuses Safe for Women, a Travesty of Justice for Men," The Chronicle of Higher Education, June 5, 2011

·  Michael Barone, "Feds crack down on campus flirting and sex jokes," The Washington Examiner, June 21, 2011

·  Harvey Silverglate, "Yes Means Yes–Except on Campus," The Wall Street Journal, July 15, 2011

·  Samantha Harris, "The feds’ mad assault on campus sex," New York Post, July 20, 2011

·  Peter Wood, "Kudos to the AAUP," The Chronicle of Higher Education, August 4, 2011

·  Cynthia Bell, "Rape should be tough to prove," The Philadelphia Inquirer, August 14, 2011

·  Caroline May, "American Association of University Professors expresses concern over Dept. of Education’s new mandates," The Daily Caller, August 18, 2011

·  Peter Berkowitz, "College Rape Accusations and the Presumption of Male Guilt," The Wall Street Journal, August 20, 2011

·  Adam Kissel "Standing Up for Due Process on Campus = ‘Sticking Up for Penises Everywhere?,’" The Huffington Post, August 30, 2011

·  Robert Smith, "On Sexual Harassment and Title IX," Real Clear Politics, August 30, 2011

·  Sandy Hingston, "The New Rules of College Sex," Philadelphia, September 2011

·  David Deerson, "More Likely Than Not: The Office of Civil Rights’ Encroachment on Due Process," Students for Liberty, September 1, 2011

·  Editorial, "OCR guilty of lowering conviction standards," The Delaware County Daily Times, September 1, 2011 

·  Robert Shibley, "How federal regulations are making college ‘risk management’ lawyers rich," The Daily Caller, September 2, 2011

·  Stacy Teicher Khadaroo, "Feds warn colleges: handle sexual assault reports properly," The Christian Science Monitor, September 2, 2011

·  Hans Bader, "Senate Bill Would Further Undermine Due Process on Campus," OpenMarket.org, October 24, 2011

·  Anonymous, "An Open Letter to OCR," Inside Higher Ed, October 28, 2011

·  Cathy Young, "The Politics of Campus Sexual Assault," Real Clear Politics, November 6, 2011

·  Caroline May, "Sen. Leahy removes potential threat to due process from Violence Against Women Act," The Daily Caller, November 15, 2011

Despite these powerful objections to the April 4 letter, coming from people as politically diverse and well respected as Wendy Kaminer and Michael Barone, OCR has still not even bothered to respond to the concerns FIRE laid out in the open letter we sent back in April. But the issues of free speech, due process, and the rights of the accused cannot be so easily wished away. We will continue to raise awareness about the dangerously flawed new direction OCR has taken, and we will not stop fighting until OCR recognizes that Americans will not long tolerate an institution that shows little understanding of principles as fundamental as "freedom of speech" and "innocent until proven guilty."

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