Law profs. condemn fed overreach on sex harassment

An open letter released Monday by 21 prominent law professors warns that the Department of Education’s sexual harassment directives are undermining both free speech and due process.

The signatories include legal minds from across the ideological spectrum—among them Alan Dershowitz, Foundation for Individual Rights in Education (FIRE) co-founder Alan Kors, and the libertarian-leaning Richard Epstein—all of whom concur that “free speech and due process on campus are now imperiled” by instructions that have emanated from the Department’s Office of Civil Rights (OCR) over the past two decades.

“We recognize that sexual harassment represents unacceptable conduct, and those found responsible should be appropriately sanctioned … and we commend OCR for taking a proactive approach to this problem,” the professors concede at the start of their letter. “In pursuing its objectives, however, OCR has unlawfully expanded the nature and scope of institutions’ responsibility to address sexual harassment, thereby compelling institutions to choose between fundamental fairness for students and their continued acceptance of federal funding.”

Despite the fact that OCR directives are considered “guidance” documents and do not rise to the level of either regulation or law, the letter claims that OCR frequently incorporates terms such as “must,” “require,” and “obligation” without justification, then conducts “compliance investigations” against universities as a means of circuitous enforcement. Currently, they say, 228 such investigations are underway at 181 institutions across the country.

In 2010, for instance, the OCR declared in a Dear Colleague Letter that “harassment does not have to … involve repeated incidents” to be actionable, directly contradicting the Supreme Court’s ruling that conduct must be “pervasive” to constitute harassment.

The letter also cites several more-recent directives, such as a 2013 Letter of Findings—which was explicitly held up as a “blueprint” for other schools—in which OCR “mandated that the University [of Montana] define sexual harassment broadly to include ‘any unwelcome conduct of a sexual nature,” including verbal comments.

[RELATED: Goucher College forbids ‘unwelcome flirtation’]

According to the law professors, these OCR directives have had detrimental consequences for basic rights on college campuses, inspiring reflexive policies that restrict free expression and deprive accused individuals of fundamental protections during disciplinary proceedings.

In an effort to avoid the OCR’s wrath, for example, “many universities feel obligated to investigate virtually any allegation of harassment, regardless of its objective merit,” implicitly legitimizing complaints about “microaggressions” and a “lack of safe space” that, “by virtue of their vague and subjective nature … are not amenable to being disproven in any legal sense.”

Moreover, they contend that the profusion of such allegations has directly contributed to the rise of “free speech zones” limiting expression to designated areas of campus, as well as to the creation of speech codes outlawing potentially offensive terms.

[RELATED: ‘Kissing sounds’ and ‘leering’ considered sexual harassment at UWM]

The letter then goes on to argue that OCR directives have also undermined the ability of accused individuals to defend themselves during investigations by requiring schools to determine guilt based on preponderance of the evidence rather than beyond a reasonable doubt, prohibiting cross examination, and drastically restricting access to legal counsel.

“Unfortunately, OCR’s relentless pressure on institutions to respond aggressively to sexual assault allegations has undermined the neutrality of many campus investigators and adjudicators by forcing them to consider the broader financial impact of their actions,” the professors complain, alleging that “in an effort to preclude a costly Title IX investigation, some institutions interrogate accused students before informing them of the specific conduct code they are alleged to have violated, and many deny them access to witnesses or potentially exculpatory evidence.”

[RELATED: UC San Diego treated alleged sexual assaulter unfairly, judge says]

To reverse those effects, as well as to mitigate the negative consequences of future directives, the professors issue three recommendations to OCR, starting with clarification of their legal status and removal of all obligatory wording from existing documents.

They also call on lawmakers to “enact legislation to replace the Education Department’s overly broad harassment definition with a narrower formulation”—specifically suggesting the one outlined by the Supreme Court in Davis v. Monroe—but point out that college administrators can revise their speech and harassment policies in accordance with that definition even without legislative action.

Lastly, they encourage the OCR to return discretion over disciplinary procedures to individual institutions, particularly for internal matters like conduct code violations, insisting that schools “must afford due process protections that are appropriate to the particular circumstances.”

The professors are hardly alone in criticizing the OCR’s sexual assault guidance, and reference a number of similar condemnations that have been issued by other professors (both singly and in groups), civil liberties organizations, and even members of Congress. In 2015 alone, they add, “nearly 900 editorials were published … decrying the abrogation of free speech and due process on campus.”

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