- The Washington Times - Wednesday, May 18, 2016

A group of 21 law professors issued a public letter Monday protesting the U.S. Department of Education’s expanded interpretation of Title IX, which they said is chilling campus free speech and curtailing student due-process rights.

The letter takes issue with a set of regulations unilaterally imposed by the agency’s Office of Civil Rights, mandating how colleges must define and respond to allegations of sexual misconduct in order to receive federal education dollars.

The professors allege the department has routinely contravened the Supreme Court in handing out directives.

For instance, despite the ruling in Davis v. Monroe defining “sexual harassment” under Title IX as conduct that is “severe, pervasive, and objectively offensive,” the OCR sent a letter to universities in 2010 stating “harassment does not have to … involve repeated incidents” to constitute a violation.

The OCR also sent a letter to universities in 2011 mandating the adoption of a preponderance of the evidence standard for adjudicating incidents of sexual assault, but the Supreme Court in Addington v. Texas said low burdens of proof are inappropriate in cases that could cause reputational damage.

And the agency sent a letter to the University of Montana in 2013 broadly defining sexual harassment as “any unwelcome conduct of a sexual nature,” including speech, contravening the “objective offense” standard laid out in Davis v. Monroe, the letter said.

“Through a series of subsequent directives and enforcement actions, OCR has steadily expanded the definition of sexual harassment and imposed a growing range of responsibilities on colleges to curb such conduct,” the letter said. “As a result, free speech and due process on campus are now imperiled.”

Although departmental “guidance” documents acknowledge they do not possess the “status of law” or constitute “administrative regulation,” the professors note, “they frequently incorporate language such as ‘must,’ ‘require,’ and ‘obligation,’ without citing any regulatory or statutory basis.”

“OCR needs to clarify which directives it considers to be guidance documents vs. regulations,” the professors wrote.

Monday’s letter marks the latest batch of law professors to denounce the OCR guidelines. Law professors at Harvard, the University of Pennsylvania and Cornell University have previously spoken out publicly against the directives.

Advocacy groups such as the National Association of Scholars and the American Association of University Professors have also denounced the mandates.

The newest group includes Harvard Law Professor Elizabeth Bartholet, Harvard Law Professor Emeritus Alan Dershowitz, and New York University School of Law Professor Richard A. Epstein.


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