The College Fix

Salvation belongs to our OCR

It’s hard to think of a federal agency that has done more to ruin the lives of college students in the past several years than the Department of Education’s Office for Civil Rights.

By issuing “guidance” documents that have no force of law – while threatening to revoke funding for schools that don’t comply with those meaningless letters – the Obama administration’s OCR has regularly and shamelessly exceeded its authority to set national rules for sexual misconduct and harassment investigations. Its guidance is cartoonishly biased against accused students.

This isn’t news to anyone in higher ed: Sen. Lamar Alexander, head of the Senate committee that oversees education, ripped into an Education official over these repeated violations a year ago.

Yet sadly, the only thing that appears to be ending their attack on the rule of law is the election of a president whose fealty to the rule of law is very much in doubt.

The flunkies who ordered colleges to end the presumption of innocence for accused students hosted a “celebration” of their lawless accomplishments last week, but as The Weekly Standard‘s Alice Lloyd reports, their gathering “was really more of a funeral”:

If an alien from a more sensible planet had dropped in on the event, he would have noted tearful sniffling and prayerful entreaties to stay strong and keep the faith—and assumed something more than federal money and power had been lost.

In nearly eight years under the Obama administration, celebrants recounted, the office has issued 34 “policy guidance documents.” These are edicts reinterpreting existing laws—new executive entanglements, made mandatory by funding incentives, that also serve a moral imperative. …

These bureaucrats who trample the statutory limits on their authority – who are too impatient to go through a rulemaking and formalize their diktats using the rule of law – actually see their work in terms of salvation, Lloyd says:

“The work of OCR,” [outgoing Secretary John] King told the audience, many of whom work at the civil rights office, “is just critical to the mission of schools to save lives.” What he seems to have meant, but cannot say in a secular age, is that before federal education reforms save lives, they save souls …

In a testimonial video in-between tributes, former Assistant Education Secretary for Civil Rights Russlynn Ali cast the office of civil rights as a benevolent higher power. “OCR’s job is to protect young people, and young people and their teachers and communities need to have faith that OCR will respond to them. So call on it.” Seek, she might have said, and ye shall find.

Ali, you may recall, was behind the 2011 “Dear Colleague” letter that ordered colleges to remove every last vestige of due process they had accorded to accused students in sexual misconduct proceedings.

The incoming Trump administration is a critic of OCR’s overreach, but the president-elect’s appointees could just as easily follow Obama’s path of forcing sweeping changes through guidance documents, as Lloyd notes:

However well-meaning, eight years of federal vox dei have dangerously undermined self-government.

Due process not respected in the courts

Unfortunately, the courts have largely ignored their responsibility to rein in this administration’s overreach on education, leaving us with little hope other than a Trump administration rollback.

As analyzed by Brooklyn College Prof. KC Johnson, a federal appeals court last week gave carte blanche to colleges to judge students responsible for sexual misconduct with only a faint whiff of due process – the ultimate aim of OCR’s threat-backed guidance.

The University of Cincinnati had been sued by two students who were punished after campus kangaroo courts found them responsible for sexual misconduct. (We covered the lawsuit earlier this year – Cincy’s defense was based on a legal precedent applicable to high school grooming.)

Those students had documented numerous, obvious failings with their proceedings. The 6th U.S. Circuit Court of Appeals, however, set an incredibly low bar for Cincy and any other college in its jurisdiction of Ohio, Michigan, Kentucky and Tennessee.

As Johnson summarizes, the three-judge panel effectively wrote off the importance of cross-examination to a fair proceeding; said that a proceeding “biased” against accused students was appropriate as long as it wasn’t “inherently biased”; and evaded the central question in any proceeding – is the accused presumed innocent – by saying neither party was presumed anything.

Remarkable items from decision: no X-exam of any type OK b/c in an earlier hearing, before diff. panel, some X-exam occurred: pic.twitter.com/vZLt1H1quu

— KC Johnson (@kcjohnson9) December 6, 2016

A process "biased" against accused students is OK b/c such a process isn't "inherently biased"(!!): pic.twitter.com/abGEXwKxdI

— KC Johnson (@kcjohnson9) December 6, 2016

Per 6th Circuit, constitutionally acceptable for public university not to presume the innocence of accused students: pic.twitter.com/BnrJJdTy9s

— KC Johnson (@kcjohnson9) December 6, 2016

A week before the 6th Circuit ruling, Samantha Harris of the Foundation for Individual Rights in Education wrote despondently about the trend in the courts, citing bewildering recent rulings in California and Florida:

More than a year into covering these decisions for FIRE, it is clear to me that while individual students may find relief in the courts, fully addressing the campus due process crisis is going to take more than just lawsuits. There are many such avenues: lobbying for bills that grant students the right to counsel in disciplinary hearings; continuing to push back against the federal overreach that has contributed greatly to the current climate; and speaking out publicly for the rights of the accused even when doing so is politically unpopular. The state of the law being what it is, all of these efforts will be critically important in the ongoing fight for due process on campus.

We can only hope that a President Trump’s appointees in the Department of Education are more committed to the rule of law than he is.

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