- The Washington Times - Wednesday, March 4, 2015

Two federal civil-rights commissioners are calling on Congress to nix a proposed budget increase for the Department of Education’s Office for Civil Rights, charging it with enacting overreaching and even unlawful policies on school discipline, sexual harassment and bullying.

“In our study of all three topics, we have noticed a disturbing pattern of disregard for the rule of law at OCR,” said U.S. Commission on Civil Rights members Gail Heriot and Peter Kirsanow in a Feb. 26 letter to House and Senate Appropriations Committee leaders.

In the letter, which was released this week, the commissioners argue that the office’s proposed 31 percent budget increase should be rejected.

“That office has all-too-often been willing to define perfectly legal conduct as unlawful,” the letter said. “Though OCR may claim to be under-funded, 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 over-stepping the law.”

The commissioners, speaking for themselves and not the entire commission, cite the OCR’s efforts to expand federal authority on three fronts: school bullying at the K-12 level; school discipline that has a “disparate impact” on minority students; and campus sexual harassment.

Since 2010, the OCR has rewritten the rules by issuing guidances in the form of Dear Colleague letters that have increased the federal government’s reach, opened universities and school districts to greater legal liability, and eroded the due process rights of the accused, the commissioners said.

The OCR has defended its request for more funding by saying that its caseload has doubled from 5,000 complaints in 2004 to more than 10,000, even though its staff has decreased during that time by about 17 percent. The agency is required to evaluate every complaint it receives.

“The Department’s programs and responsibilities have grown substantially over the past two decades,” according to the Department of Education’s budget justification. “From elementary and secondary education reform to the transition to 100 percent direct lending to the significant increase in civil rights related complaints, the past decade has seen a steady and significant growth in Department workload.”

The commissioners, however, argue that the OCR has brought the workload upon itself by creating an unnecessary federal role in matters more appropriately handled at the micro level, like playground bullying.

OCR has turned many schools’ imperfect efforts to handle ordinary incidents of schoolyard bullying into violations of federal law by issuing an expansive guidance on bullying and harassment,” said the letter, referring to the agency’s 2010 Dear Colleague letter.

The OCR expanded the definition of bullying with a redefinition that “could also cover mild but persistent teasing by one student of another, thus literally ‘making a federal case’ out of ordinary childhood misbehavior,” the commissioners said.

In 2014, the OCR and Justice Department Office of Civil Rights issued a joint Dear Colleague in which “they stated that schools may be liable for ‘disparate impact’ race discrimination if different racial groups are disciplined at different rates, even if these disparities do not result from intentional race discrimination,” the commissioners said.

Finally, in a series of documents, the agency has weighed into campus sexual harassment by requiring universities to adopt the lower “preponderance of the evidence” standard of proof when weighing complaints against accused offenders. The result has been an outcry against watered-down due process and campus tribunals tilted in favor of the accuser.

The commissioners also said that the office enforces its guidances by launching investigations against academic institutions, which are eager to settle rather than face a federal lawsuit.

“But this means that OCR is almost never seriously challenged, and the courts never have the opportunity to rule OCR’s guidance out of bounds,” the letter said. “Individual students who are disadvantaged by OCR’s policies either would not have standing to challenge them or would not have the resources and grit to endure being dragged through the courts for years.”

Congress, using the power of the purse, is the institution that is best able to check OCR’s overreach,” the commissioners said.

The commission is an independent federal agency charged with investigating and advising on civil rights issues.

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