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Obama’s Budget Proposal Portends More Problematic Micromanaging by OCR

By February 5, 2015

Given recent oversteps by the Department of Education’s Office for Civil Rights (OCR), FIRE was dismayed to learn of President Obama’s proposal to increase OCR’s funding by 31 percent—to 131 million dollars—for 2016. According to The Chronicle of Higher Education, this would allow OCR to hire 210 additional full-time employees to join its current staff of 544, for a total of 754 employees. As Competitive Enterprise Institute (CEI) senior attorney Hans Bader, who used to work for OCR, argued in a post on CEI’s blog yesterday, OCR has already done significant damage and should not be rewarded for hurtling beyond the bounds of its authority.

He writes:

OCR has micromanaged college investigations in sexual harassment and assault cases in ways that make them more costly, unfair, and likely to cause the expulsion of innocent people. It also has undermined efforts to criminally prosecute rapists and prevent future rapes by failing to ensure that such crimes are properly reported to prosecutors.

OCR recently found Harvard Law School’s current sexual harassment policy in violation of Title IX for failing to parrot at length OCR guidance about how to apply sexual harassment policies to hypothetical situations, even though no court ever requires an institution’s sexual harassment policy to include such details, and even though that OCR guidance imposed procedural and substantive requirements that no  court ever said is required by Title IX.

OCR found Tufts University in violation of Title IX for failing to curtail the due process rights of accused students, and for allowing an accused student to prove his innocence using exculpatory evidence (the complainant’s lies about her medical history) that OCR viewed as an invasion of her privacy (never mind that under Title IX, OCR has no authority to punish privacy violations, only acts of sexual discrimination or harassment).

And in an April 4, 2011, Dear Colleague letter hurriedly issued for political reasons, without the legally required notice and comment (and in response to inaccurate media coverage), it ordered colleges nationwide to abandon traditional standards of evidence and discouraged them from allowing cross-examination even when it is useful in proving innocence.

In other words, OCR has arguably violated federal law while denying due process rights to students accused of sexual misconduct. It is, Bader contends, making itself appear overworked and underfunded by taking on projects that aren’t even properly under its jurisdiction—and now, the agency may get a bonus for this strategy.

Reason’s Robby Soave similarly objected on Tuesday:

If OCR’s efforts thus far are the result of inadequate resources, I shudder to think what the runaway agency will be able to accomplish with an even bigger budget.

FIRE shares Soave’s concern. Optimists can only hope that any OCR budget increase would go towards considering whether universities have violated the rights of students accused of sexual misconduct.

Cases: Departments of Education and Justice: National “Blueprint” for Unconstitutional Speech Codes U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections