Lawlessness at the Office for Civil Rights – and How to Address It

One of the areas of alleged lawlessness by the Obama Administration has been the Office for Civil Rights of the Department of Education (OCR).  OCR has been pushing the agenda of a rape culture on college campuses.  OCR has used guidances and “Dear Colleague” letters to effectively impose a series of questionable practices on colleges, such as depriving the accused of fair procedures.

There are numerous problems with this agenda.  Some of them are substantive, such as the muddying of the definition of consent.  Some of them are procedural, such as depriving the accused of procedural rights.  But a third set of problems are legal.  The problem is that the rules that OCR is imposing are questionable as a matter of law and have not been tested in the courts.

This is hardly an accident.  The Office strategically imposes these standards through guidances because it knows that it is much more difficult for the guidances to be challenged in court ahead of time. 

Instead, OCR uses the threat of a loss of federal funds to force universities to conform to its wishes – a threat that has worked even against the likes of Harvard University, one of the most powerful institutions in the country.  If the a college does not conform to the Office’s interpretation of Title IX, the college risks losing large amounts of federal funds.

While the Office’s decision is subject to judicial review, if the college loses on judicial review, then the college can lose all federal funding.  For most colleges, this is a devastating result – one that they would not risk.  Therefore virtually all colleges cave, agreeing to the Office’s views. As a result, there are virtually no adjudications of whether OCR’s determinations are legal.  The risk of all federal funds being eliminated is simply too much for colleges to bear.

But there is a way to change the law that would allow judicial review without such a threat.  Congress should pass a statute that provides that when a college does not follow an OCR interpretation, and that interpretation has not been judicially reviewed by the relevant Circuit Court, the college will only lose a limited amount in federal funds, such as $5000.  In this way, OCR cannot coerce colleges into following its interpretation of the law without judicial review.

It is hard to see how one might oppose this reform – unless of course one believes that the executive branch should be able to operate without judicial supervision.  People who believe this should be forced to acknowledge it in public.