As the Commissioners observed in their letter, there has been “a disturbing pattern of disregard for the rule of law at OCR. That office has all-too-often been willing to define perfectly legal conduct as unlawful. Though OCR may claim to be under-funded, its resources are stretched thin largely because it has so often chosen to address violations it has made up out of thin air. Increasing OCR’s budget would in effect reward the agency for frequently over-stepping the law. It also would provide OCR with additional resources to undertake more ill-considered initiatives for which it lacks authority. We strongly encourage Congress to take into account this troubling pattern of overreach in deciding whether to support the President’s proposed increases to OCR’s budget.”
The Commissioners’ letter focuses on OCR’s attacks on free speech. For example, it discusses OCR’s 2013 attempt to redefine constitutionally protected speech about sexual issues in college classrooms as sexual harassment in a case involving the University of Montana, an act of overreaching criticized not just by free-speech groups like the Foundation for Individual Rights in Education, but also by law professors like Eugene Volokh and even by liberal commentators in the Washington Post and Chronicle of Higher Education, as well as by moderate Republican Senator John McCain. As the Washington Times and The College Fix note, it also criticized OCR’s 2011 attempt to federalize school bullying, and its related guidance redefining some speech protected by the First Amendment among K-12 students as illegal racial or sexual harassment. (See my discussion of that guidance here and here.)
The Commissioners’ nine-page letter also criticizes the Education Department’s twisting the law to attack colorblind school discipline policies (which I previously discussed at this link). As it notes, “OCR’s school discipline policy has encouraged districts across the country to adopt racial quotas in discipline,” even though that violates the federal appeals court ruling in People Who Care v. Rockford Board of Education, 111 F.3d 528 (7th Cir. 1997). OCR did this by redefining Title VI of the Civil Rights Act to include “disparate impact liability,” in a way at odds with the Supreme Court’s 2001 decision in Alexander v. Sandoval, which ruled that Title VI requires a showing of “intentional discrimination,” not mere disparate impact or racial disproportionality, for liability. Although OCR’s school discipline rules were imposed through a “guidance” document that pretended to simply restate the requirements of Title VI of the Civil Rights Act, in reality, they improperly “impose new duties on regulated persons,” note the Commissioners, without ever having been “made subject to notice and comment” as is required by the Administrative Procedure Act. “Making up new duties not contained in the statute itself is not part of an agency’s discretionary authority,” notes the letter.
The Commissioners’ letter also points out that OCR’s recent sexual harassment rules have improperly abrogated traditional academic norms and procedures for handling allegations of misconduct. That has undermined due process in some cases (see my discussion of that here and here). OCR has done so based on unsupportable interpretations of the Title IX law (which, as I noted earlier, were issued in violation of the Administrative Procedure Act’s notice-and-comment provisions). OCR’s guidance also creates serious constitutional problems. For example, the Commissioners note that OCR “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.”
I previously objected to the proposed budget increase for OCR—where I used to work—in a commentary you can find at this link.
Hans Bader is a senior attorney at the Competitive Enterprise Institute.