Since 2011, the Department of Education’s Office for Civil Rights has blatantly violated college students’ rights to free speech and due process. Congress has done nothing to fix this abuse of power. Its members are, in fact, currently entertaining President Barack Obama’s proposal to increase OCR’s budget by $137.7 million of funding for the 2017 fiscal year.
When do we, as students, say enough is enough?
The Education Department’s Office for Civil Rights is responsible for enforcing Title IX at federally-funded colleges and universities. Title IX is a federal statute that prohibits discrimination on the basis of gender in educational programs that receive federal funds. The Office for Civil Rights has authority over almost all of the nation’s colleges and universities because almost all of them receive federal funds for their educational operations.
The Office for Civil Rights often gives schools guidance on how to maintain compliance with Title IX’s mandates. In years past, such guidance properly balanced prohibiting acts of harassment with protecting the free speech and due process rights of students. In 2001, for example, the office’s guidance adhered to the Supreme Court’s legal definition of sexual harassment. In an effort to defend students’ rights to due process, the 2001 guidance also granted schools the ability to develop their own specialized procedures for handling sexual misconduct disciplinary hearings. The 2003 guidance explicitly separated Title IX enforcement policies from protected speech.
However, the guidance provided five years ago by the Office for Civil Rights guidance — in a now-notorious 2011 “Dear Colleague” letter — ruined this balance.
The policy promulgated in the 2011 “Dear Colleague” letter lacked the well-crafted protections which enabled institutions to prohibit Title IX violations and promote free speech.
Obama’s Office for Civil Rights has redefined sexual harassment as mere “unwelcome conduct of a sexual nature.” Under “Dear Colleague” letter’s directives, single instances of “jokes,” “insulting sounds” and “degrading remarks” can constitute Title IX violations. The “Dear Colleague” letter has created an atmosphere in which sexual harassment no longer needs to be pervasive or even “objectively offensive.”
The 2011 directives are a drastic, radical shift from the Education Department’s past conformity to Supreme Court precedent and guarantee of First Amendment protections.
According to a federal judge, the 2011 “Dear Colleague” letter also advised disciplinary proceedings which deny accused students the “most basic and fundamental components of due process of law.” The “Dear Colleague” letter has created a bizarre situation which strips America’s college students of many due process rights. Accused students no longer have the ability to see the evidence filed against them. They no longer have the right to an impartial decision-making panel. They no longer are availed the use of a standard of evidence that is consistent with the severity of the charges filed. They are denied the right to have an appeals process that allows a case to be completely reevaluated after the accused party has been found innocent.
The Office of Civil Rights claims that the 2011 “Dear Colleague” letter is not binding upon all colleges and universities. In fact, however, the office has threatened to pull federal funding from those schools that do not comply with these policies. Thus, fearful college officials all over the country have adopted its restrictions on constitutional rights.
Prior to making a decision on the office’s funding request, the Senate Appropriations Committee adheres to a period of public commentary. During this period, citizens can submit their opinions regarding funding requests in the form of public testimonial.
I am a freshman at Tufts University. My fellow students at Tufts and my peers at schools around the country can no longer afford to allow Congress to further fund an agency that conducts itself in a way that fails to provide basic free speech and due process rights. I have drafted a letter of testimony asking the Senate to place a hold on the Office for Civil Rights funding request until it readjusts its policies to guarantee students’ rights to free speech and due process.
Thus far, Tamas Takata, James Grant, and I have accumulated over 320 student signatures of support for my testimonial. These signatures include the name of the supporting students and the schools they attend. If you are a college student who wishes to add your name to this testimonial in support, please contact me at firstname.lastname@example.org.
Jake Goldberg is a student at Tufts University.