Can federal officials declare you in violation of the law, not for actions that flout the text of a statute, but for failing to parrot the agency’s controversial views about how the statute should be applied in hypothetical situations?
Recently, the Education Department’s Office for Civil Rights (OCR) did just that to Harvard Law School.
OCR, where I used to work, found Harvard Law School in violation of Title IX for its failure to recite at length OCR officials’ views about the optimal handling of Title IX sexual harassment claims.
Ironically, these views were expressed in “guidance” from agency officials that had expressly claimed to “not add requirements to applicable law.”
As I explain at this link, this is a violation of the Administrative Procedure Act.
Although the new procedures were adopted precisely to appease the Education Department, OCR nevertheless found them in violation of Title IX, not for what they did, but what they failed to say: For failing to make assertions about sexual harassment made in OCR’s own sexual harassment guidance which are seldom found in any real-world sexual harassment policy, including about obscure procedural or jurisdictional matters that seemingly had nothing to do with any specific harassment case that actually occurred at Harvard Law School. (Title IX is much shorter and less complex than other civil rights laws, like Title VII of the Civil Rights Act, but employers routinely win sexual harassment lawsuits under Title VII despite having a sexual harassment policy that runs only a few sentences, and recites none of the assertions that OCR faulted Harvard for not reciting)….… For example, it demanded that the university add “supplemental guidance” to its already lengthy “University-wide Title IX Policy and Procedures” to trumpet its “obligation to address incidents of sexual harassment it . . . should know about, even when a complaint or report is not filed” by any student. It also required Harvard to include “[a] statement that mediation will not be used in sexual assault and sexual violence cases” and that “students who report sexual harassment will not be required to resolve the problem directly with the alleged harasser.” And required it to declare that “the University has an obligation to consider the effects of off-campus conduct when evaluating whether there is a hostile environment” on campus. See December 30, 2014 Letter of Findings re: Complaint No. 01-11-2002, Harvard Law School, at pp. 14-15.OCR did this even though nothing in the University’s policies actually contradicted these tenets; it had merely, in some cases, failed to explicitly state them.
The federal government’s settlement with Harvard also contains provisions mandating “interim measures” against accused students who may later be absolved of any wrongdoing, measures that may lead to free-speech and due-process violations (since the federal government is not allowed to pressure even a private college to restrict the free speech or due process rights of its students).
I previously discussed OCR’s idiosyncratic views about disciplinary procedures and how they differ from federal courts’ Title IX and Title VII precedents, at this link. The constitutional problems created by OCR’s overly broad demands for “interim measures” are discussed here and here.
As Reason Magazine and others have noted, the Education Department declared Harvard in violation of Title IX not only for its old, due-process-friendly procedures for handling sexual harassment cases, but even for its new, pro-complainant procedures, which 28 Harvard Law faculty (including even a feminist former federal judge, two feminist legal scholars, and President Obama’s mentor Charles Ogletree) had denounced as being slanted against accused students, and hostile to fairness, due process, and transparency.
OCR has turned Harvard Law School into a politically correct parrot.
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