The Education Department’s Office for Civil Rights just received a 7 percent increase in its budget in the recently passed omnibus spending bill.
The House version of the bill includes a $7 million increase in funding for OCR, while the bill before the Senate includes a $6 million increase. Last year, OCR’s budget was $100 million.
OCR had sought an additional $30 million in funding in part to help ease the burden of campus sexual assault investigations. OCR is currently investigating more than 150 schools for alleged violations of the anti-discrimination law known as Title IX. This is thanks in part to the office’s 2011 “Dear Colleague” letter that forced schools to adjudicate sexual assault accusations under Title IX.
In April 2015, former OCR attorney Hans Bader wrote a letter to the editors of the Chronicle of Higher Education suggesting OCR should have its budget cut, not increased. Bader quoted a letter from two members of the U.S. Commission on Civil Rights who noted OCR’s overreach into the bedrooms of college students in America.
“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,” members Gail Heriot and Peter Kirsanow wrote. “Increasing OCR’s budget would in effect reward the agency for frequently over-stepping the law. It also would provide OCR with additional resources to undertake more ill-considered initiatives for which it lacks authority.”
Indeed, OCR’s “Dear Colleague” letter — which did not go through a proper review process — put an additional burden on the office, not Congress. The office took on additional responsibility without going through proper channels, and now wants more money for it.
Under OCR’s letter, schools must spend money and resources adjudicating felonies using untrained or barely trained administrators posing as investigator, judge, jury and appellate court. Accused students are forced to come up with evidence to prove a crime didn’t occur, while accusers merely have to tell their story.
Accusers have the entire Title IX office behind them without any additional expense, while the accused must pay out of pocket to speak to a lawyer (who can’t represent them in the hearing) or struggle to find a campus administrator willing to support them. Schools were “strongly discouraged” by OCR from allowing the accused to cross-examine an accuser. The accused is often disallowed from providing evidence in their defense such as text messages or Facebook posts and are essentially treated as guilty-until-proven-innocent.
Now OCR will get a little more money to devote to these unfair and unconstitutional processes.
But campus sexual assault is not the only problem facing OCR. As Power Line’s Paul Mirengoff points out, OCR is involved in other areas of school life that are hurting students in what should have been easily foreseen consequences.
For one thing, schools are now, thanks to OCR, required to institute racial quotas when it comes to disciplining students. OCR determined that regardless of the merits of each example of discipline, schools needed to punish black and white students at the same rate.
This stems from a misreading of Title VI of the Civil Rights Act, which prohibits discrimination based on race but does not require policy changes if there is a disparate impact. (Besides, OCR is only using disparate impact as a means to an end when it comes to racial discipline, ignoring the disparate impact on male students from having their constitutional rights trampled once accused of sexual assault.)
Mirengoff also brings up OCR’s response to bullying and how the office converts “ordinary incidents of schoolyard bullying into violations of federal law.” In Davis v. Monroe County Board of Education, the Supreme Court ruled that one incident of bullying is not enough to warrant federal liability of a school.
Seven million dollars – or $6 million – might not be a huge increase in the grand scheme of things, but it’s a reward to an office that has eviscerated the due process rights of students across the country.
