Written testimony of National Coalition For Men Carolinas (NCFMC) submitted to the U.S. Senate Committee on Appropriations, Subcommittee on Labor, Health and Human Services, and Education on April 12th regarding the Office for Civil Rights (OCR) 2017 Funding is provided below:
Dear Chairman Cochran, Vice Chairwoman Mikulski, Chairman Blunt, Ranking Member Murray:
The Carolinas chapter of the National Coalition For Men (NCFM), the oldest men’s human rights organization and a national 501(c)(3) nonprofit, is privileged to submit this testimony in response to a recent request (letter dated March 17, 2016 ) submitted by Senators Claire McCaskill, Kirsten Gillibrand, Dean Heller, and nineteen other Senators, asking the Appropriations Subcommittee on Labor, Health and Human Services and Education to increase funding for the Department of Education’s Office for Civil Rights (OCR) by nearly 30% over 2016 funding.
Our organization respectfully asks this Subcommittee to deny any and all requests for increased OCR funding inasmuch as OCR has a well-documented history of circumventing Congressional rulemaking policy by issuing directives via the use of guidance documents that are in violation of the Administrative Procedure Act (APA).
We recognize that APA does allow agencies to produce guidance documents to clarify issues in an existing regulation or law, without publication in the Federal Register and without public notice and comment. While the majority of guidance is used appropriately to provide regulated entities with timely information, there exists a loophole whereby an agency could improperly issue guidance documents instead of regulations, in order to take advantage of the APA’s exceptions and relaxed procedures. OCR has taken full advantage of this loophole and only Congress can put a stop to OCR policy abuse and overreach.
Of specific concern is how OCR has used guidance documents around sexual misconduct, namely OCR’s Dear Colleague letters on harassment (issued October 23, 2010) and sexual violence (issued April 4, 2011) hereafter referred to as the 2010 and 2011 Dear Colleague letters, respectively to satisfy the agency’s agenda while skirting APA requirements for agencies to provide notice of a proposed rule and solicit public comment on the proposal.
In his January 7, 2016 letter addressed to Dr. John King, then Acting Secretary U.S. Department of Education, Senator James Lankford questioned this very issue:
“The 2011 Dear Colleague letter goes so far as to assert that "Title IX regulation requires schools to provide equitable grievance procedures, [in which] OCR reviews a school's procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints." Assuming that here, OCR is citing to 34 C.F.R. §106.S(b), requiring schools to "adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part," the regulation does not contemplate any standard of proof; instead, OCR goes on to justify its requirement of the preponderance of the evidence standard by cataloguing other grievance procedures for which it uses the standard. From this, it is not unreasonable to conclude that the basis for the inclusion of the preponderance of the evidence standard, as articulated in the Dear Colleague letter, seems not to be required by §106.8(b) or broader Title IX principles, but merely reflects a preferred OCR convention. Requiring an evidentiary standard justified only by prior agency practice cannot be said to be merely interpretive of existing legal authority. Instead, the policy more closely resembles the quintessential substantive rule, and accordingly, is precisely the type of policy that must be subjected to the APA's notice-and-comment procedures.”
Additionally, legal experts have also questioned the wisdom of increasing OCR’s budget. In a February 26, 2015, letter to Congress, two members of the U.S. Commission on Civil Rights noted that OCR “has all too often been willing to define perfectly legal conduct as unlawful. Though OCR may claim to be underfunded, its resources are stretched thin largely because it has so often chosen to address violations it has made up out of thin air. Increasing OCR’s budget would in effect reward the agency for frequently overstepping the law.”
OCR often cites campus sexual assault as the underpinning for issuing the 2010 and 2011 Dear Colleague directives and we certainly agree that sexual violence is a serious matter, yet the heavy-handed treatment prescribed by OCR is worse than the disease because it vitiates the presumption of innocence, nullifies equal treatment as provided by the 14th Amendment and denies due process to the accused.
NCFM Carolinas deplores sexual assault, but we cannot close our eyes to the horror stories of young men caught up in a Kafkaesque disciplinary system promulgated by OCR’s 2011 Dear Colleague letter in which the accused are presumed guilty and have no effective means to defend themselves. Have we forgotten the painful lessons learned at the expense of so many college men falsely accused of rape? Duke University and the University of Virginia’ persecution of innocent male students provide a prime illustration of how the Dear Colleague directives can lead to the destruction of student lives based on false sexual assault allegations and a desire by the university to avoid being targeted by OCR investigators for compliance to the Dear Colleague directives.
Today, over 100 lawsuits have been filed by aggrieved students against colleges & universities alleging denial of due process and other violations in adjudicating sexual misconduct cases. We invite this esteemed committee to visit our website to examine the details of these cases at www.ncfmcarolinas.com
In closing, institutions of higher education, along with legal scholars, due process advocacy organizations like ours, government officials, and members of the U.S. Congress are increasingly vocal in concerns of OCR overreach and of ill-conceived policies that fail to accomplish common goals of enhancing school safety and gender equality in education. For the reasons noted in this letter, we urge this esteemed committee to deny any additional funding to OCR.