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In Open Letter, Professors Criticize Department of Education’s Overreach

By May 19, 2016

The Wall Street Journal reports that earlier this week, a group of 21 professors issued an open letter sharply criticizing the Department of Education’s Office for Civil Rights (OCR) and accusing the agency of threatening both freedom of expression and due process protections on campuses nationwide.

Echoing concerns voiced by FIRE in recent years, the professors write:

We recognize that sexual harassment represents unacceptable conduct, and those found responsible should be appropriately sanctioned. Some of us have witnessed the injustices resulting from institutions that downplay or ignore sexual harassment on their campuses, and we commend OCR for taking a proactive approach to this problem.

In pursuing its objectives, however, OCR has unlawfully expanded the nature and scope of institutions’ responsibility to address sexual harassment, thereby compelling institutions to choose between fundamental fairness for students and their continued acceptance of federal funding. In 1997, OCR issued its Sexual Harassment Guidance, which interpreted sex discrimination to include sexual harassment. Through a series of subsequent directives and enforcement actions, OCR has steadily expanded the definition of sexual harassment and imposed a growing range of responsibilities on colleges to curb such conduct. As a result, free speech and due process on campus are now imperiled. [Citations omitted.]

FIRE strongly agrees with the professors’ analysis. Perhaps even more importantly, we agree with their recommendations. The professors call for OCR to clarify the status of its recent guidance and bring it into compliance with Administrative Procedure Act requirements where necessary; for legislators and college administrators to adopt the precise definition of sexual harassment formulated by the Supreme Court in Davis v. Monroe County Board of Education (1999); for students to be afforded appropriate due process, depending on the allegations against them; and for colleges to work with law enforcement in responding to allegations of sexual assault.

We are pleased to have the support of the distinguished signatories, the ranks of which include University of Pennsylvania professor and FIRE co-founder Alan Charles Kors; Harvard Law School professors Alan Dershowitz, Elizabeth Bartholet, Charles Donahue, and Richard D. Parker; Stanford Law School professor Michael McConnell, who also serves as the director of the school’s Constitutional Law Center; New York University School of Law professor Richard A. Epstein; University of Pennsylvania Law School professor Stephanos Bibas; University of Wisconsin – Madison professor Donald Downs; and many more.

For more, be sure to read the full letter.