22 Senators asked the Appropriations Committee to increase the budget of the Education Department’s Office for Civil Rights by almost 30 percent.
OCR has pressured colleges and high schools to adopt unconstitutional speech codes. It also has pressured school districts to adopt veiled racial quotas in school discipline. And in sexual harassment cases, it has stacked the deck against accused students, and occasionally forced colleges to reward false allegations. It has done all these things by expanding and essentially rewriting the federal civil-rights laws Title VI and Title IX through uncodified administrative “guidance” and “Dear Colleague” letters.
The pretext for this proposed increase is that OCR is supposedly overworked. But if this is actually true (which is doubtful, as I explained in the Chronicle of Higher Education; delays at OCR often occur due to its own slowness, inefficiency, and mismanagement), it is only because of OCR’s own overreaching. It routinely makes up violations out of thin air in a way that generates far more “violations” to investigate.
As The Washington Examiner notes:
“Several Democratic senators are requesting additional funds for the Education Department to continue policing the sex lives of college students.
“Sens. Kirsten Gillibrand, Tim Kaine, Claire McCaskill and Mark Warner have written a letter calling for increased funding for the Department’s Office for Civil Rights … The senators are requesting a budget of $137.7 million for OCR. [The current level is $107 million].
“Here’s how we got to this point, put as simply as possible: In 2011, OCR sent out a ‘Dear Colleague’ letter that vastly expanded the definition of Title IX and what schools needed to do in order to comply with the statute. Because of the broadening of the statute, schools have been accused of violating students’ rights under Title IX and have come under investigation by OCR. Now OCR is requesting more money to investigate these schools because it has become overwhelmed.
“The ‘Dear Colleague’ letter sent by OCR in 2011 did not go through the required notice-and-comment period … This prompted Sen. James Lankford, R-Okla., to demand that OCR justify its overreach. OCR failed to do so to Lankford’s liking.
“Why does this matter? Because it means OCR expanded its own responsibilities — it wasn’t Congress or anyone else who gave it these responsibilities.
“Put another way: OCR expanded its own responsibilities and now wants more money to carry out those responsibilities.”
Sherry Warner, president of Families Advocating for Campus Equality, criticized the proposed increase sought by the Senators in their March 17 letter. “The request by Senators McCaskill and Gillibrand of $137.7 million for the Office for Civil Rights at the Department of Education essentially rewards the OCR for its current overreach on college campuses,” Warner wrote. “This request asks the Appropriations Subcommittee on Labor, Health and Human Services & Education to fund the OCR’s illegal, expansive and nebulous standards which schools around the country are struggling to enforce.”
Legal experts have also questioned the wisdom of increasing OCR’s budget. In a February 26, 2015, letter to Congress, two members of the U.S. Commission on Civil Rights noted that OCR “has all too often been willing to define perfectly legal conduct as unlawful. Though OCR may claim to be underfunded, 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 overstepping the law.”
Congress already increased OCR’s budget by 7 percent last year in the omnibus spending bill passed in December with President Obama’s assent. That drew criticism from Investor’s Business Daily, which lamented that the “omnibus spending bill grants a generous 7% increase in the budget for the Education Department’s Office for Civil Rights, which is pressuring school districts across the country to adopt racial quotas in discipline,” in what the newspaper characterized as “radical, out-of-control, race-mongering.”
It also is not clear that increases in OCR’s caseload in recent years actually reflect much additional work. On March 18, 2015, The Washington Post quoted OCR’s head admitting that just “two individuals were responsible for filing more than 1,700 of those allegations.” Former Congressman John Linder has noted that OCR is extremely inefficient in handling its cases.
If OCR were not stretching and rewriting the law, it would probably have fewer complaints to process than in years past, and could make do with a smaller budget than it now has, as I explained earlier. Its budget should be cut, not increased.
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.