Due process defenders back Education Department critic to lead Office for Civil Rights
Critics and supporters alike are wondering who might be the next person to lead the Education Department’s Office for Civil Rights, which has overseen in recent years an expansion of responsibilities related to campus sexual assault.
One name being pushed as a nominee is Gail Heriot, a law professor at the University of San Diego and a member of the U.S. Commission on Civil Rights. Heriot has been a critic of OCR’s overreach, even joining fellow Civil Rights commission member Peter Kirsanow in writing a letter to Congress opposing a budget increase for the department.
“[W]e have noticed a disturbing pattern of disregard for the rule of law at OCR,” the two wrote in the letter. “That office has all-too-often been willing to define perfectly legal conduct as unlawful.”
Heriot and Kirsanow added that OCR was only “under-funded” because it had given itself additional responsibilities. “Increasing OCR’s budget would in effect reward the agency for frequently over-stepping the law. It also would provide OCR with additional resources to undertake more ill-considered initiatives for which it lacks authority,” they wrote.
Heriot and Kirsanow argued that OCR’s 2011 “Dear Colleague” letter, which greatly expanded the office’s role in combating an alleged epidemic of campus sexual assault, created a dangerous situation for accused students by requiring schools to adopt a low “preponderance of evidence” standard.
“[G]iven the importance of safeguarding the rights of accused students, the ‘clear and convincing’ standard would seem to be the more appropriate one in at least some situations,” the two wrote.
A group dedicated to the rights of accused students sent a letter to the Trump transition team after the election in support of Heriot to lead OCR. The letter, written by a group called Stop Abusive and Violent Environments (SAVE), was sent with more than 240 signatures supporting Heriot and was published last week.
The letter points out that the original 2011 “Dear Colleague” letter didn’t go through the proper notice-and-comment period as required by the Administrative Procedure Act. Instead, OCR insisted that the letter merely “clarified” previous language regarding the adjudication of sexual assault, and claimed that lowering the standard of proof from “clear and convincing” was OK because many schools already used the standard.
‘A measure of political cover’
Aside from the letter sent with Kirsanow regarding funding, Heriot has also testified before the House Judiciary Committee on OCR’s actions.
OCR’s overreach on sexual assault, which has led to many, many male students being unfairly punished and branded as rapists in the name of politics, isn’t just an affront to due process. As the SAVE letter notes, OCR’s overreach also has a “pervasive, harmful effect on free speech” because sexual harassment has been broadened to include things such as overheard dirty jokes. The notion that sexual harassment must be objective or pervasive in order to create a hostile environment has gone out the window.
The Chronicle of Higher Education suggested that Heriot is a more viable option than Kirsanow to lead OCR at least in part because “the Trump administration might see her sex as giving her a measure of political cover in carrying out one of its top priorities for the civil-rights office — reducing the office’s guidance on Title IX, the federal gender-equity law.”
Heriot told the Chronicle, however, that she has not “heard a word from anyone within the administration” regarding the position.
Even if Heriot were to become the head of OCR and scale back the past half-decade of Title IX overreach, the culture surrounding campus sexual assault wouldn’t change overnight. Indeed, some college presidents have said they would continue on their current path, which denies male accused students the right to properly defend themselves.
When OCR first issued the 2011 “Dear Colleague” letter, the situation on campus didn’t become terrible overnight. It took years of investigations, accusations and lawsuits to become the mess it is today. Reversing that trend will take time as well, no matter who is in charge at OCR. Even then, the media, activists and lawmakers will continue to browbeat schools to treat the accused like monsters with little or no evidence (or in the face of contradictory evidence) in order to protect alleged victims.