Last week, The Huffington Post’s Tyler Kingkade took a look at why the Department of Education’s Office for Civil Rights (OCR) fails to regularly report schools being investigated for mishandling sexual harassment cases under Title IX. Kingkade reported that only those cases which deal with sexual assault, a more severe Title IX violation, make the case list OCR gives to the media. He also noted the extreme backlog of Title IX investigations and its impact on students.
Certainly, Kingkade’s concern over whether sexual misconduct on America’s campuses is being adequately addressed is not misplaced. However, he seems to agree with several of his sources who think the solution is increasing OCR’s funding for more people and for additional, faster investigations. That assertion extends from the flawed premise that what OCR is doing when it comes to investigating Title IX violations is an appropriate way of addressing sexual assault on campus.
In April, FIRE submitted written testimony to Congress about its concerns with OCR’s no-holds-barred approach to eradicating campus sex discrimination, which unfortunately includes trampling on the constitutional rights of students and faculty:
While FIRE supports OCR’s goal of effectively addressing sexual assault and sexual harassment on college campuses, we have serious concerns about the manner in which the agency is pursuing that mission. In pursuit of this objective, OCR has unlawfully ordered institutions of higher education to reduce the due process protections afforded to individuals accused of sexual misconduct and has redefined sexual harassment to include speech protected by the First Amendment under precedent from the Supreme Court of the United States. Until OCR stops infringing on the First Amendment and rolling back due process protections, the agency should not receive budget increases.
Earlier this month, we announced a FIRE-sponsored federal lawsuit on behalf of a student who challenged these mandates. Specifically, a former University of Virginia School of Law student is challenging OCR’s directive that schools use a low, “preponderance of the evidence” standard for finding guilt in campus tribunals or face losing federal funding. The lawsuit alleges that OCR’s mandate was unlawfully imposed without going through the notice and comment procedures required by the Administrative Procedure Act.
What advocates for increasing OCR’s budget ignore is the near-certainty that OCR’s caseload is so large precisely because it has stretched the definitions of sexual assault and harassment beyond their lawful and plain meanings. If OCR is so overwhelmed, perhaps it should stop encouraging people to file complaints over clearly protected speech.
In his piece, Kingkade quotes a law professor who has has “closely monitored Title IX investigations”:
It might be “one of the few places where throwing money at a problem” would actually fix things, said Nancy Chi Cantalupo, a Barry University law professor who has closely monitored Title IX investigations.
“The main solution is really to just get OCR more money and more staff,” Cantalupo said. “If they don’t get more money and more staff, then this backlog is never going to be fixed.”
As of 2015, OCR had at least 554 employees and a $100 million budget.
Essentially, the “problem” here is not that the system isn’t working as well or efficiently as it should, as Cantalupo implies, but that the system itself is inherently flawed. Success for the system OCR has devised requires disregarding due process and free speech on campus.
Before OCR gets any funding increases, it should demonstrate an ability to play by the procedural rules, and make a real effort to ensure the rights of both complainants and accused students are respected. So far, OCR’s actions have fallen woefully short in both regards.