Education Department Says Harvard Violated Title IX By Not Parroting Bureaucrats

January 6, 2015

By Hans Bader at

Can a federal agency find you in violation of the law, not for actions that violate a statute, but for failing to parrot the agency’s controversial views about how the statute should be applied in hypothetical situations?

Recently, the Education Department did just that. Its Office for Civil Rights, where I used to work, found Harvard Law School to be in violation of Title IX not just in the past, but in the present – for its failure to recite at length OCR officials’ views about the optimal handling of Title IX claims. Ironically, these views were expressed in “guidance” from agency officials that had expressly claimed to “not add requirements to applicable law.” This guidance was found not in the text of the statute, or even anything in the Code of Federal Regulations, but rather in a 2011 “Dear Colleague” letter and a 2014 “Questions and Answers” document authored by OCR officials. (That guidance, which was criticized by civil libertarians, "supplements” and effectively rewrites the Clinton Administration’s uncodified January 2001 “Revised Sexual Harassment Guidance." It also contradicts the Supreme Court’s 1999 Davis decision, such as its requirement that harassment must be both “severe and pervasive” to violate Title IX)...