The Obama administration perversely rewards agencies that overstep their authority by giving them budget increases to handle the increased workload that results.
A classic example is the Education Department’s Office for Civil Rights (OCR), where I used to work. President Obama wants a 31 percent budget increase for OCR for Fiscal Year 2016. That is a very bad idea.
OCR’s budget should be cut, not increased. Cutting its budget would make it harder for it to punish school districts and colleges for perfectly lawful and reasonable policies. People who write about educational issues, such as Reason magazine’s Robby Soave, and the National Review’s George Leef, rightly oppose the proposed budget increase for OCR.
OCR has twisted virtually every statute it is charged with enforcing, such as Title VI, Title IX, the Rehabilitation Act, and the Americans with Disabilities Act. Citing Title VI, which bans racial discrimination, OCR has demanded that school districts adopt what are effectively illegal racial quotas in school discipline, even though that violates the Constitution, the Seventh Circuit’s decision in People Who Care v. Rockford Board of Education (1997), and the plain language of the Title VI statute.
Moreover, OCR has micromanaged college investigations in sexual harassment and assault cases in ways that make them more costly, unfair, and likely to cause the expulsion of innocent people. It also has undermined efforts to criminally prosecute rapists and prevent future rapes by failing to ensure that such crimes are properly reported to prosecutors.
OCR recently found Harvard Law School’s current sexual harassment policy in violation of Title IX for failing to parrot at length OCR guidance about how to apply sexual harassment policies to hypothetical situations, even though no court ever requires an institution’s sexual harassment policy to include such details, and even though that OCR guidance imposed procedural and substantive requirements that no court ever said is required by Title IX.
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).
And in an April 4, 2011, Dear Colleague letter hurriedly issued for political reasons, without the legally required notice and comment (and in response to inaccurate media coverage), it ordered colleges nationwide to abandon traditional standards of evidence and discouraged them from allowing cross-examination even when it is useful in proving innocence.
OCR has also jealously guarded its own jurisdiction over campus sexual offenses against competing venues like state criminal justice systems, at the expense of public safety. The Obama administration has failed to encourage all rape victims to report such crimes to prosecutors, who have jurisdiction over such offenses, and can put rapists in jail where they belong. “Federal education officials who enforce the antidiscrimination law known as Title IX have said the 1972 statute does not require schools to report alleged sexual violence to police,” notes The Washington Post, and indeed, OCR guidance interpreting Title IX’s requirements sometimes impedes such reporting. When Virginia state senators sought to mandate reporting of rapes to the police, OCR’s erroneous interpretation of Title IX proved an obstacle. The Chairman of the Courts of Justice Committee in Virginia’s House of Delegates “said the Senate bill may violate Title IX confidentiality requirements” mandated by OCR.
Although the Supreme Court has interpreted Title VI as only banning intentional racial discrimination in decisions such as Alexander v. Sandoval (2001), OCR has falsely claimed that Title VI mandates onerous requirements for educating non-English speaking students that hold well-meaning schools liable without any proof of racism or racially differential treatment. Even schools that earnestly seek to educate such students find it virtually impossible to comply with OCR’s rules in full, so much so that senior OCR attorney Lilian Dorka boasted to me when I worked at OCR that every single school district ever investigated in a compliance review has been found in violation of OCR’s bilingual education requirements. This interpretation contradicts federal appeals court rulings.
If OCR seems “overworked” to President Obama, it’s only because it makes up so many violations out of thin air that the number of OCR investigations have multiplied as a result. If people truly have valid discrimination or harassment claims, and actually were mistreated by a college or school, they can bring a private lawsuit without any participation by OCR.
For example, last year, the University of Connecticut settled a Title IX sexual harassment lawsuit against it by paying $900,000 to a former student who alleged sexual assault. In 2009, the University of Arizona paid $850,000 to a sexual assault plaintiff. In 2007, the University of Colorado paid a sexual assault plaintiff $2.5 million. A racial harassment plaintiff won $1 million in a Title VI lawsuit against the Pine Plains Central School District. So OCR is not even needed to enforce the law as it actually exists (as opposed to enforcing rules made up by the agency using Title IX and Title VI as a pretext). And if students win their Title IX or Title VI lawsuit, the school has to pay their attorney’s fees to boot, under a pro-plaintiff rule known as the Christiansburg Garment rule.
Agencies should not be rewarded for defining lawful conduct as illegal, by giving them more staff and resources to prosecute the increased number of made-up “violations” that result from their own mischief. But that is what President Obama’s budget request does for OCR, rewarding it for its overreaching and overstepping of its authority.
Hans Bader is a senior attorney at the Competitive Enterprise Institute