Tag Archives: OCR overreach

The Office of Civil Rights Is Still Out of Control

As it left office last year, Barack Obama’s administration made one final move in its crusade against campus due process: it requested a massive increase—$30.7 million, or 28.7 percent—in funding for the Office for Civil Rights (OCR). The previous year, at a time when discretionary federal spending was barely rising, the office had received a 7 percent increase.

The Trump “skinny budget” contained an overall cut for the Department of Education, but included no specifics about OCR (or any other Education Department office). Based on its performance of the last six years in higher education, OCR deserves a dramatic reduction in its funding—rather than the huge boost it desires.

The Obama-era request envisions OCR hiring 157 new staff investigators. (OCR had asked for 200 new employees in fiscal year 2016 and received funding that allowed around 50 additional hires.) At a time of limited hiring by the federal government, why would OCR have demanded such a massive personnel increase?

A clue came in a recent article from BuzzFeed’s Tyler Kingkade. Over the past six years, Obama OCR heads Russlynn Ali and Catherine Lhamon—joined by grassroots accusers’ rights organizations such as Know Your IX—encouraged campus accusers to file Title IX complaints against their institutions.

These filings served multiple purposes for Lhamon and Ali. First, each Title IX complaint would give OCR jurisdiction to investigate individual universities, at which point the federal government could impose a “voluntary” resolution letter on the affected institution. These letters lock into place procedures for that school, even if the Trump administration eventually withdraws the Dear Colleague letter.

Second, Title IX complaints provided an opportunity for the Obama administration to stoke the public frenzy around the purported campus rape epidemic. In a highly unusual move, OCR publicized the identities of schools under investigation. This approach pressured the affected institutions to settle quickly while also leaving the impression that many of the nation’s elite institutions were indifferent to the large number of rapists in their midst.

Finally, the complaints provided a rationale for ever more frantic demands for more funding from Congress. As the 2016 budget justification explained, complaints addressing “sexual violence” were “both more complex and more high profile,” and “inadequate staffing” led to intolerable delays in handling the questions.

The resulting surge from a couple of dozen to hundreds of Title IX complaints against colleges and universities might have provided more than enough work for OCR. But, incredibly (and without announcing the shift publicly), Lhamon seized even more authority. According to Kingkade, who would have had no reason to misstate the claim (indeed, his reporting has consistently defended the accusers’ rights cause), Lhamon “expanded all Title IX sexual violence investigations to become institution-wide, so investigators reviewed all cases at a school rather than just the cases that sparked federal complaints.”

To translate: on her way out the door, Lhamon wanted to hire nearly 200 permanent employees, who would work under a true believer (Harvard’s ex-Title IX coordinator), because she had decided OCR would investigate not merely the complaints it received but thousands of other cases, even though no accuser had filed a Title IX complaint about any of these individual cases. On this matter, as on virtually all OCR-related matters during the Obama years, no sign of congressional oversight existed.

It would be difficult to imagine a more wasteful use of federal funds. Reducing OCR’s budget would help to bring the rogue office back under congressional oversight, and likely would force the new OCR head to (at the very least) temper Lhamon’s investigatory zeal.

The new administration will need to make key decisions not only on OCR’s funding level. Trump’s Education Department continues to enforce the flawed 2011 and 2014 guidance for sexual assault cases, which required colleges to use a preponderance of the evidence standard, discouraged cross-examination, instituted double-jeopardy regimes allowing accusers to appeal not-guilty findings, and urged subordinating public university students’ constitutional rights to due process to OCR’s interpretation of Title IX.

The slowness with which Trump has filled executive appointments has maximized the power of Obama holdovers. This situation is especially problematic with OCR, whose current head of enforcement, former Harvard Title IX director Mia Karvonides, dropped into her civil service position a mere three days before Trump was sworn in as president. Karvondes’ rushed appointment leaves the impression that the outgoing administration intended to maintain the unfair Obama rules regardless of what Trump did. Every day that passes without Trump staffers in OCR allows Karvonides to implement her agenda unchecked.

Finally, the Jeff Sessions-led Justice Department must decide to whether to defend Obama’s OCR overreach. The key lawsuit challenging the 2011 Dear Colleague letter—a case from the University of Virginia, which remains pending—was coordinated by FIRE, and filed by lawyer Justin Dillon. The UVA adjudicator, a retired judge, admitted that “there were signs” that the accuser “may have been capable of effective consent,” but nonetheless found the student guilty, in a case that she deemed “very close” and “very difficult.”

The most recent filing in the case came around a month before Obama left office. The Justice Department urged dismissing the student’s complaint on grounds that OCR policies are, basically, set in stone. Since UVA “knows” that “OCR considers the preponderance of the evidence standard to be the only standard consistent” with Title IX, the university would have no choice but to maintain its unfair procedures under threat of punishment from federal bureaucrats—even if a federal court overturned the Dear Colleague letter. Sessions used the excuse of a pending legal fight to reverse Obama’s era Title IX guidance designed to protect transgender teens. Will he defend the Dear Colleague letter, which actually harms accused students?

Moving beyond the Obama-era’s OCR abuses will take years. But Congress exercising the power of the purse is a needed first step in the process.

Senators Reward OCR Abuses with Budget Hike Proposal

Twenty-two Senators have asked the Appropriations Committee to increase the budget of the Education Department’s Office for Civil Rights (OCR) by almost 30%. All of those Senators are Democrats except for Sen. Dean Heller of Nevada.

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.

The “Dear Colleague” letter lowered the burden of proof in campus cases of sexual misconduct from ”clear and convincing evidence” to “preponderance of the evidence,” in effect just over 50 % certainty of guilt. It also helped erode other due process protections.

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? OCR expanded its own responsibilities — it wasn’t Congress or anyone else who gave it more authority. 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% 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 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.