Since the release of the infamous April 2011 “Dear Colleague” letter, FIRE has argued that the Department of Education’s Office for Civil Rights’ (OCR’s) guidance on Title IX misstates the law and exceeds the agency’s authority. Last July, FIRE President Greg Lukianoff testified before the U.S. Commission on Civil Rights about the threats to civil rights posed—ironically—by OCR’s overreach. Last week, two of the commissioners wrote to key members of Congress to express the same concern.
In their February 26 letter, Commissioners Gail Heriot and Peter Kirsanow explain:
OCR’s guidance documents raise serious concerns. The 2011 Dear Colleague letter on sexual violence required many universities to change the burden of proof used in sexual harassment disciplinary proceedings. Before that, many universities used the “clear and convincing” standard instead of the “preponderance of the evidence” standard that OCR now requires. Yet nowhere in the text of Title IX or in earlier OCR regulations can such a requirement be found, and given the importance of safeguarding the rights of accused students, the “clear and convincing” standard would seem to be the more appropriate one in at least some situations. Further, “Questions and Answers on Title IX and Sexual Violence” strongly discourages cross-examination of accused students by their accusers. Yet one federal district court has held that cross-examination is constitutionally required on due-process grounds when an accuser’s credibility is an important issue in a disciplinary proceeding. [Footnotes omitted.]
The letter also catalogued the adverse effect on free speech caused by OCR’s recent actions:
First Amendment issues loom large in this area. Defining “sexual harassment,” as OCR’s official materials do, to include students’ “telling sexual or dirty jokes,” spreading “sexual rumors” (without any limitation to false rumors), “circulating or showing e-mails or Web sites of a sexual nature,” or “displaying or distributing sexually explicit drawings, pictures, or written materials” can easily cover speech protected by the First Amendment, according to testimony of UCLA law professor Eugene Volokh presented at the Commission briefing. Nonetheless, risk-averse colleges and universities have jumped to adopt the vague harassment standards set forth by OCR.
Calling for Congress to intervene, Heriot and Kirsanow argue:
It is difficult for school districts, universities, and private citizens to combat OCR’s unsound policies. One of OCR’s frequently-used tactics is to launch an investigation of a school that it has reason to believe is out of compliance with its announced policies. Federal agencies claim that investigations are a less severe action than suing an institution outright. Although this is true up to a point, it is important to understand that OCR often takes years to conduct an investigation. The investigations are thus a punishment in and of themselves. The institution must hire attorneys, make staff and students available for interviews, and produce voluminous records for OCR. The institution suffers the reputational harm of being branded as having engaged in or tolerated racial discrimination or sexual harassment. When OCR finally offers the institution a settlement in lieu of going to court, the institution frequently has no alternative but to accept. But this means that OCR is almost never seriously challenged, and the courts never have the opportunity to rule OCR’s guidance out of bounds. Individual students who are disadvantaged by OCR’s policies either would not have standing to challenge them or would not have the resources and grit to endure being dragged through the courts for years. Congress, using the power of the purse, is the institution that is best able to check OCR’s overreach.
FIRE hopes Congress agrees and takes action to restore the rule of law.