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Law profs slam Education Dept for end run on campus sexual assault guidelines

A group of 21 law professors, including Elizabeth Bartholet and Alan Dershowitz of Harvard Law, penned a letter to the Education Department's Office for Civil Rights objecting to its overreach under President Obama on the issue of campus sexual assault.

The professors criticized the way OCR is now compelling schools to ignore due process and punished the accused, all the while claiming the new regulations for schools are merely "guidance" and need not be adopted according to the steps outlined in the Administrative Procedure Act. The APA requires, among other things, a notice and comment period for new regulations.

OCR maintains they did not adopt any substantive changes in the documents, even though schools are suddenly being threatened with a loss of funding and an investigation if they don't comply.

"OCR needs to clarify which directives it considers to be guidance documents vs. regulations," the professors wrote. "Directives that are guidance documents need to be revised to eliminate provisions containing obligatory wording, unless these provisions are expressly supported by prior legislation or regulation. Directives that are deemed to be regulations need to be brought into compliance with requirements of the Administrative Procedure Act."

The "Dear Colleague" letters, which have been released with increasing frequency since 2011, have had "detrimental effects" on colleges across the country, according to the professors. Not only has student autonomy, due process and the presumption of innocence been eviscerated, but free speech has also taken a hit.

"In the wake of these directives and enforcement actions, many universities feel obligated to investigate virtually any allegation of harassment, regardless of its objective merit," the professors wrote. "These complaints are often cloaked in language such as 'micro-aggressions' or a 'lack of safe space.' By virtue of their vague and subjective nature, these allegations are not amenable to being disproven in any legal sense." (Northwestern University professor Laura Kipnis was actually investigated for merely writing an article voicing opposition to the way the school was handling such complaints.)

When sexual assault is alleged, the professors wrote, law enforcement should be informed so that they, at a minimum "may investigate, collect and preserve evidence for potential future use." The professors wrote that the decision to prosecute criminally should be determined jointly by the institution, accuser and law enforcement, and emphasize the fact that criminal justice authorities have the resources to properly investigate and sanction when necessary.

The law professors join many others, as well as scholarly groups like the American Association of University Professors and the National Association of Scholars, as well as members of the U.S. Commission on Civil Rights, who have criticized OCR's overreach. Their opposition, in addition to Georgia State Rep. Earl Ehrhart's lawsuit against the federal government, might finally send a signal to OCR that what they are doing is constitutionally dubious and even morally wrong.

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