Professors from across the country, as well as several rights groups, have written a letter to the Senate Appropriations Committee condemning the evisceration of due process rights for college students.
The letter, addressed to Sens. Thad Cochran, R-Miss., and Barbara Mikulski, D-Md., describes the example of Northwestern University professor Laura Kipnis, who earlier this year faced a Title IX investigation for writing an article condemning current campus sexual assault policies. Title IX is the federal law that bans gender discrimination and has been used in recent years to justify adjudicating sexual assault as campus disciplinary matters.
The letter points out that it was the Education Department’s Office for Civil Rights that reinterpreted Title IX as an adjudication tool, and the signees believe OCR violated the Administrative Procedure Act when issuing its directive for schools to apply this.
“The Administrative Procedure Act (APA) requires that all proposed regulations undergo a review-and-comment process to solicit public input,” the signees wrote. “Unfortunately, the OCR has repeatedly sidestepped the APA requirements by misleadingly portraying its Dear Colleague Letters as ‘guidance,’ not regulations. By definition, a guidance document consists of recommendations that are suggested, not required, and are meant only to interpret preexisting laws and regulations.”
The “guidelines,” which are currently the law of the land, “have served to frustrate congressional oversight efforts and to vitiate the principle of public accountability,” the signees wrote.
The letter notes several examples in which OCR “guidance” documents have overstepped the Supreme Court’s decision in Davis v. Monroe, when the court defined campus sexual harassment as speech or conduct that is “severe, pervasive and objectively offensive.” Three OCR documents have changed the court’s definition.
In 2010, OCR issued a “Dear Colleague” letter that removed the “pervasive” requirement when applied to bullying. In 2011, a “Dear Colleague” letter required colleges and universities to begin adjudicating felony sexual assault. And in 2013, a “Letter of Findings” to the University of Montana told the school to ignore the “objectively offensive” standard set by the Supreme Court.
The new definition, according to the letter, is effectively speech or conduct that is “pervasive, severe or subjectively offensive.”
The letter also points to some opposition to OCR’s guidance, including strong words from former Homeland Security Secretary and current University of California President Janet Napolitano, 28 faculty members from Harvard Law School and 16 faculty members from the University of Pennsylvania Law School.
The letter also quotes former ACLU President Nadine Strossen describing the current state of campus due process rights.
“By threatening to pull federal funds, the OCR has forced schools, even well-endowed schools like Harvard, to adopt sexual misconduct policies that violate many civil liberties,” Strossen said. “OCR’s flawed sexual harassment concept reflects sexist stereotypes that are equally insulting to women and men.”
The signees called on the Senate Appropriations Committee to “include a rider in the upcoming omnibus appropriations bill that would require the Office for Civil Rights to follow the requirements of the Administrative Procedure Act.”
Some of the signees include Elizabeth Bartholet from Harvard Law, several professors from the George Mason School of Law, as well as past and current directors of the ACLU. The organizations that have signed the letter are heavily involved in defending due process rights for accused students, including Families Advocating for Campus Equality and the group Stop Abusive and Violent Environments, as well as the National Association of Scholars.
