At Powerline, lawyer Paul Mirengoff described one of the many disturbing provisions buried in the budget-busting omnibus spending bill recently passed by Congress as part of a compromise with the White House (a monstrosity known as “the Consolidated Appropriations Act of 2016”). It increases the budget of the Education Department’s Office for Civil Rights (OCR), which has issued many unvetted and uncodified rules seemingly in violation of the Administrative Procedure Act. As he notes, the bill grants OCR a 7 percent budget increase.
Mirengoff notes that OCR often ignores the law by “defining perfectly legal conduct as unlawful.” As he points out, “If the OCR’s resources are stretched thin, it’s because of its overreach,” based on its own misinterpretation of the law, rather than an increase in law-breaking by the colleges and schools it regulates. As he observes, by “increasing OCR’s budget, Congress rewards its misconduct.” Instead, he argues, its “budget should be slashed, not increased.”
Congressional appropriators gave OCR a budget increase even though OCR has been criticized by the head of the Senate Education Committee for what he and Mirengoff view as its lawless overreach in rewriting laws passed by Congress.
For example, OCR applies an unusually aggressive form of “disparate impact” analysis to school discipline, even though the Supreme Court ruled in Alexander v. Sandoval (2001) that disparate-impact analysis does not even apply in the schools, and that people cannot bring “disparate impact” lawsuits under Title VI of the Civil Rights Act, which applies to schools that receive federal funds.
OCR’s school discipline policy has encouraged districts across the country to adopt racial quotas in discipline. This is perhaps the most perverse battle in the left’s war against standards. Education remains the best pathway to success for minority group members, and education is undermined when unruly students disrupt the process.
OCR has led the charge against school discipline by issuing a Dear Colleague letter that explicitly applies disparate impact analysis to school discipline. Schools thus face legal jeopardy if they discipline black students more often in percentage terms than white students even if black students misbehave more frequently.
Non-discrimination isn’t enough; OCR demands equality of outcomes. However, Title VI of the Civil Rights Act, under which OCR purports to act, prohibits only actual discrimination, not neutral policies that have a disparate impact. See Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
As he asks, “Why is a Republican Congress about to reward OCR for not following the law?”
This was a good question, since OCR’s “Dear Colleague” letter was at odds with settled law. The letter interpreted the Title VI statute as requiring schools to avoid racially “disparate impact” (OCR gave the example of a colorblind ban on cellphone use that more black students violate than white students, contributing to a higher rate of discipline among black students). But it did not do so accurately, since the Supreme Court had explicitly ruled a decade earlier that the Title VI statute does not ban “disparate impact” in schools. (By contrast, in workplace racial discrimination cases, courts have ruled that people can sue over “disparate impact” that is not justified by “business necessity”)
OCR has been criticized in Congress for making up new rules out of thin air without any notice and comment, in violation of the Administrative Procedure Act. Its contempt for checks and balances on agency action is mirrored elsewhere in the Education Department. A 2015 report by College Presidents discusses how the Education Department is flooding schools with obscure, uncodified, but very costly rules, in violation of the Administrative Procedure Act
A government official with inside knowledge says that this increase was included after a “couple Democratic Senators recently circulated a Dear Colleague Letter asking for a $6 million budget increase for the OCR, so they could complete their Title IX investigations in a more timely manner.”
But this budget increase will not reduce the number of incomplete investigations, but rather increase them over the long run. OCR just uses budget increases to make up new legal obligations for colleges out of thin air, and find violations based on conduct previously deemed legal. That it turn leads to even more open, incomplete investigations.
As I noted this spring in the Chronicle of Higher Education, OCR “needs no budget increase.” And the mere fact that “more complaints have been filed at OCR recently” is largely irrelevant, because that
includes many copycat complaints that cost little to investigate. On March 18, The Washington Post quoted OCR’s head admitting that just “two individuals were responsible for filing more than 1,700 of those allegations.”
Many other complaints at OCR result from its own overreaching, not discrimination that needs to be investigated, as two members of the U.S. Commission on Civil Rights noted in a February 26 letter to Congress. As they noted, OCR “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.”
The Commissioners’ letter focused on OCR’s attacks on free speech. For example, in 2013, OCR attempted 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 by free-speech groups like the Foundation for Individual Rights in Education; law professors like Eugene Volokh; and Senator John McCain. As the Washington Times reported, 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 racial or sexual harassment, which it requires schools to punish in order to avoid losing their federal funds.
The Commissioners also criticized 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 discussed how OCR’s recent sexual harassment “guidance” demands that colleges abrogate traditional academic norms and procedures for handling allegations of misconduct. That has undermined due process in some cases. OCR has done so based on unsupportable interpretations of the Title IX law that were issued in violation of the Administrative Procedure Act’s notice-and-comment provisions). OCR’s guidance sometimes 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.”
Many of OCR’s Title IX investigations involve obvious overreaching. In its recent investigation finding the University of Virginia in violation of Title IX, OCR bizarrely said U.Va. should have to conduct an “independent investigation” of sexual assault claims even when the accused admits guilt. Why? Why put the victim through that when the accused’s guilt is already known? Why force the victim to go through the trauma of a needless investigation rather than just punishing the concededly-guilty perpetrator?
In an equally bizarre finding, OCR declared Michigan State in violation of Title IX for not speedily investigating a false allegation of rape that the accuser didn’t even want investigated by the college, and for not giving her “interim measures” before her claim was debunked, even though her complaint was admitted by OCR to be properly held to be false, and thus, there was no reason to give her any relief.
Similarly, OCR found Tufts University in violation of Title IX for failing to curtail the due process rights of accused students, and for allowing an accused student to prove his innocence using exculpatory evidence (the complainant’s lies about her medical history) that OCR viewed as an invasion of her privacy (never mind that under Title IX, OCR has no authority to punish privacy violations, only acts of sexual discrimination or harassment).
OCR’s investigation of Harvard was also peculiar, making up new requirements out of thin air. One reason that OCR found Harvard Law School’s sexual harassment policy in violation of Title IX was because it failed to parrot at length OCR guidance about how to apply sexual harassment policies to hypothetical situations. But no court has ever required an institution’s sexual harassment policy to include such details, nor did OCR itself previously require that degree of detail in colleges’ written harassment policies.