Civil Rights & Wrongs

The Foundation of Individual Rights in Education (FIRE) had a recent Frequently Asked Questions (FAQ) session on the Department of Education’s Office of Civil Rights (OCR). It details the inner workings and purpose of OCR, as well as their recent practices regarding a student’s right to due process and freedom of speech on campus.

The OCR has oversight for enforcing federal civil rights laws that are designed to stop discrimination in educational programs and activities that are funded by the federal government. Federally funded institutions include most, if not all, private and public colleges, as well as K-12 schools. Its purpose is to prevent discrimination based on race, color, national origin, sex, disability, or age by colleges that receive federal education funds. OCR investigates discrimination complaints, which have to be filed within 180 days of the alleged discriminatory act, but technically the person who files the complaint does not have to be the victim. Any form of harassment, sexual or racial in nature, is included under the OCR’s jurisdiction of discrimination.

When the OCR launches a formal investigation, it puts colleges at risk to lose federal funding, many of which rely heavily on these grants. For example, Yale University received “nearly $510.4 million” in the 2009-2010 academic year, and the federal government gave $41.3 billion to colleges for education grants in the same academic year. If a formal investigation does occur, bad publicity will surround the university in question and may lead to a loss of federal funding.

Regarding OCR’s April 4, 2011 letter to colleges, FIRE has great concern for the preservation of a student’s right to due process, especially when it deals with investigations of sexual harassment and violence on campus. Colleges must adhere to the “preponderance of evidence” standard that is common in the lower courts of the judiciary system, the letter advises. The FAQ goes into detail about the issues surrounding the “preponderance of evidence” and the accusers being enabled to appeal verdicts, both of which can be found in this writer’s in-depth summary of the issue here. Another part of the new OCR standard is to allow the accuser to appeal the verdict, which violates the “double jeopardy” standard of the American judiciary.

A worrisome portion of the OCR letter does not explicitly specify that colleges owe their students their rights to free speech, and ignoring harassment conduct is separate from protected speech. These vague explanations, or “lack of clarity,” threaten students with “broad sexual harassment policies” and some First Amendment rights can be considered harassment and be punished accordingly. According to FIRE’s most recent study of university free speech policies, 67% of the top 390 colleges have “policies that are unconstitutional under First Amendment standards.” Specifically, free speech is threatened because of the introduced “preponderance of evidence” standard, which circumvents due process and gives colleges the notion they can monitor free speech. The vagueness of the letter does not protect free speech, but could lead to further censorship and silencing of opposing voices that may be inconvenient or merely “dissenting.” The courts have sided with college students, who are afforded more rights than high school students as they are adults, and require a formal notice and a fair hearing before expulsion from a university for misconduct (mostly limited to public universities).

The reasoning behind colleges becoming involved in criminal behavior is due to Title IX, which obligates colleges to “address and prevent the occurrence of sexual violence on their campuses” and their responses are under OCR oversight and jurisdiction. Sadly, though, criminal investigations may clear defendants, colleges and the OCR are obligated to investigate on their own regardless of local police and the local justice system’s findings.

In response to the question, “How does OCR justify what it is doing?,” FIRE noted that OCR has increased its focus on sexual assault and harassment of college students and issued support for the aforementioned “preponderance of evidence” judicial standard. OCR has also defined sexual harassment as “unwelcome conduct of a sexual nature” and “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical contact of a sexual nature.” It is equivalent to federal workplace standards, which the courts have recognized that both the workplace and college campus are “not functionally equivalent” and therefore should have different standards. OCR continues to expand its reach into students’ First Amendment rights, much to the chagrin of concerned American citizens, and could severely impact America’s future.

Spencer Irvine is a research assistant at Accuracy in Academia.

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