Campus Free Speech

Five Years After Feds Escalated the Title IX Inquisition, Are Students Ready to Sue?

The Foundation for Individual Rights in Education says the Office for Civil Rights broke the law.

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Catherine Lhamon
Screenshot via Stephanie Haven / Youtube

It's time to settle the campus speech and sex wars once and for all—in a court of law, says the Foundation for Individual Rights in Education. 

As I previously noted, today marks the fifth anniversary of the infamous "dear colleague" letter that initiated the federal government's current crackdown on free expression and due process on college campuses. On this day, five years ago, the Education Department's Office for Civil Rights advised colleges and universities that they would lose federal funding if they did not strengthen their efforts to protect students from sexual harassment and violence. 

OCR's authority stems from Title IX, a one-sentence-long federal statute mandating gender equality in higher education. The Obama administration's OCR team, however, has interpreted Title IX in a manner that gives the agency seemingly limitless power to compel universities to follow speech-suppressing policies. The dear colleague letter, for instance, obligates universities to adjudicate sexual misconduct using a preponderance of the evidence standard, even though this dictate cannot be found within Title IX itself. OCR is essentially making up rules to advance its agenda that fall outside of the scope of the law, critics contend.

Enough is enough, says FIRE. The organization is asking a student or institution to sue the agency directly—and will pay all relevant legal fees: 

Five years ago today, the Department of Education's Office for Civil Rights (OCR) announced sweeping new requirements for colleges and universities adjudicating allegations of sexual misconduct. By unilaterally issuing these binding mandates via a controversial "Dear Colleague" letter (DCL), OCR ignored its obligation under federal law to notify the public of the proposed changes and solicit feedback. 

To correct this error, and to begin to fix a broken system of campus sexual assault adjudication that regularly fails all involved, the Foundation for Individual Rights in Education (FIRE) seeks a student or institution to challenge OCR's abuse of power. FIRE has made arrangements to secure legal counsel for a student or institution harmed by OCR's mandates and in a position to challenge the agency's violation of the Administrative Procedure Act(APA). In keeping with FIRE's charitable mission to advance the public interest, representation will be provided at no cost to the harmed party. 

FIRE's argument is that OCR has violated the Administrative Procedure Act, which requires agencies to make new rules available for public scrutiny before they go into effect. Since OCR never gave the public a chance to weigh-in on the preponderance of the evidence standard, the agency violated APA, according to FIRE. 

When cornered on this question, OCR has suggested that its guidance isn't actually mandatory, meaning that it hasn't violated APA. Of course, the guidance certainly looks mandatory to the hundreds of institutions meekly submitting to it. 

The law firm of Kaiser, LeGrand & Dillon is prepared to represent the student or students who answer FIRE's call for a lawsuit. 

"For months now, people have been asking how OCR could possibly think it had authority to essentially take over campus sexual misconduct proceedings nationwide simply by sending out a letter that no one in the general public got to look at before it went out," Justin Dillon, a partner at the firm, wrote in an email to Reason. "We're obviously thrilled to partner with FIRE and see if we can finally make OCR answer that question."  

Interested students can contact FIRE at APA@thefire.org. 

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  1. The SCOTUS will side with OCR. Because FYTW.

    1. Followed by headlines celebrating the defeat of a right-wing attempt to undermine President Obama’s tireless efforts to protect sexual assault victims, of course.

      1. Does this mean women can smoke Virginia Slims in the mens room of Nassau Hall?

    2. the history of title IX cases suggests that SCOTUS has already granted extradordinary powers under the act. there’s almost nothing new that couldn’t be justified

      from the above, though, it sounds like they’re going to go after OCR on procedural grounds rather than trying to invalidate any part of title IX itself.

      1. My suspicion is that the “any school that doesn’t like it can just forfeit all of their federal funds” thing will give them enough wiggle room to get away with it.

        1. This court has proven that it will go with the flow. Roberts seems to be a true believer on “judicial deference”. They wouldn’t have had enough votes to stop it even if they hadn’t lost a conservative voice. Kagan will be penning the rights-crushing decision, should it ever come to that – this is right up her alley. Plus, she still seems to see herself as a member of the administration, rather than a check on the use of power by the executive.

  2. Who is that man and why is he wearing such a bad wig?

    1. To make America great again, natch.

      1. I thought I recognized him.

        1. I do not think he is not as good as his reputation makes him out to be, but he likes Jack Reacher, and who could dislike someone who likes Jack Reacher?

          1. Dudes slamming the movie. I recall it being pretty decent.

    2. I don’t know but he’s butt ugly. Like, literally, I’ve seen asses that are more attractive.

      1. It’s a lawyer with power to ignore the law so all the much worse.

  3. Good, but it’s sad that the challenge amounts to “OCR didn’t file the right paper work” instead of “OCR has no power to do this, period”.

    1. as noted above = it may be legally a better case than trying to claim that title IX has limits, which previous cases have already basically said, ‘it doesn’t’

      1. I suppose you could try to say that the federal government can’t use the carrot and stick of federal funding to coerce recipients of said funding to violate other’s civil rights.

        Which is what most of Title IX does.

        1. Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)

          The U.S. Supreme Court ruled that a school is liable under Title IX for student-to-student harassment that deprives the harassed student of access to educational opportunities, if the school has notice of the harassment and is deliberately indifferent to it

          basically this is the “You Can’t Do Nothing” requirement under law, which a lawyer can fall back on to defend any of the decisions to expel students sans ‘due process’. they’re not required to provide due process under law in making decisions about whether students can continue to be students. Whether its sexual harassment, or just a student failing classes, or just bad-behavior, its the school’s prerogative.

          Schools can argue that lacking more-specific guidance from OCR on what is *specifically required* for compliance w/ title IX, they default to ‘expel the accused’ sans any real trial. OCR can argue that they are leaving decisions to the schools as to how to implement appropriate measures to ensure ‘non-hostile environments’. I don’t see where anyone get cornered.

          maybe i misunderstand your argument

  4. I got Nungesser who they could rope into doing such a thing.

  5. Universities could always eschew federal funding.

    1. Any president or board of trustees that did that would get the boot and it would quickly get reversed.

      1. Though it does make me wonder how a place like Hillsdale handles student misconduct. Given the lack of federal funding I assume it’s literally worse than if ISIS ran the prison from Oz

        1. “literally worse than if ISIS ran the prison from Oz”

          Kill the prisoners and then then secure this prison as a fortress to defend our ideology??

          Actually yeah, that does sound exactly like that…

      2. There are schools that do it.

        1. A few, but I’d wager that any school that tried to make that transition now would face a revolt from faculty, students, alumni, politicians…

          1. Something something… RAPE APOLOGISTS… mumble mumble… PATRIARCHY…

  6. It really is shocking how much damage the Obama administration has done over the last 7 years.

    1. Obama’s not very damaging, really. Kind of a loser at it. When I take office, I’ll cause more damage on the first day than he did in 7 years. It’s gonna be yuuuuge, and I’ll make Mexico pay for it.

      /Trump’s next walkback

    2. He did promise “fundamental transformation” by the way.

      1. Earthquakes, tidal waves, forest fires — all fundamentally transform the world.

  7. The OCR should be paying FIRE to sue them. Isn’t that how the EPA does it?

  8. The Office for Civil Rights should not be sued. It should be abolished for un-American activities.

    1. Go ahead and get rid of the Department of Education and that goes with it.

      1. No, first abolish OCR for un-American activities and only then get rid of the Department of Education for being a useless department. Okay, that’s what I’ll do when I rule the world.

        1. That’s fine. I’m not one to quibble over the details.

      1. No need for a committee, a new US President should close it on his first day in office for un-American activities.

  9. Title Vagine
    Title Nein
    Title Nine Planes of Hell

  10. Smart Cookies: The Gendered Spaces of Labor, Citizenship, and Nationalism in the Girl Scout Cookie Sale

    Denise Goerisch

    Abstract:

    Each year thousands of Girl Scouts sell cookies to friends, family, and neighbors to raise money for their troops and local councils. Lauded as the largest girl-led financial literacy program, the annual Girl Scout cookie sale not only teaches girls important business and leadership skills but also prepares girls for their roles as American women in a neoliberal and capitalist society. Girls learn the importance of ‘giving’ through multiple spaces of the cookie sale. Scouts learn to give and care for others under the veil of market capitalism, neoliberalism, and American nationalism, which seeks to reproduce hegemonic gender roles regarding labor, education, and citizenship. Based on a two-year study on the Girl Scout cookie sale, using qualitative methods and rooted in feminist methodologies, this project seeks to understand how ‘spaces of giving’ emerge in the cookie sale and how these spaces shape social constructions of gender, citizenship, and national identity.

    I’d be suing over the fact that they don’t deliver an education.

    1. “Girls learn the importance of ‘giving’ through multiple spaces of the cookie sale. Scouts learn to give and care for others under the veil of market capitalism, neoliberalism, and American nationalism”

      Burn it all down

      1. which seeks to reproduce hegemonic gender roles regarding labor, education, and citizenship

        Right. It really is becoming the Tower of Babel. There’s probably somewhere in the GS handbook or guides that is a near word-for-word translation of the above sentence. One person reads it, “Girls will sell cookies.” and the next reads it “Female gender-identifying individuals will be trained to seize control of the capitalist-based social order.” Both will talk to each other using the same words and neither will ever understand one another.

        1. Those types of organizations tend to have a lot of parental involvement. Parents who mostly aren’t going to be putting up with sjw nonsense.

          1. As a parent in one who’s had a ‘debate’ about the acceptability of teaching cub scouts to clean fish I can say, not necessarily. The helicopter parents/SJWs always want to be involved and are excellent at badgering others about ‘not-strictly/explicitly-scouting’ issues. Unless, in your particular area, ‘true’ scouting parents outnumber SJWs by a wide margin, you end up with islands of people involved in scouting to scout in a sea of people looking to pin badges on their kid.

            1. the acceptability of teaching cub scouts to clean fish

              I would agree that it is unacceptable for a vegan to clean a fish that he’s not going to eat.

              Oh, that’s not the problem they had with it….

              1. Is that another of those masturbation metaphors? Asking for a friend.

            2. the acceptability of teaching cub scouts to clean fish

              I wouldn’t think it was a matter of ‘acceptability’ so much as, “fish are less likely to cause sickness and is more palatable without the guts in it, or the scales on it”. Its a practical necessity, just like building a fire, or how to treat snakebite.

              I mean fuck – you catch fish in order to eat them, not because ‘fishing’ is some abstract Indian ritual that helps people harmonize their spirit with nature, or some shit.

    2. Perhaps women shouldn’t be involved in the workplace at all.

      Based on a two-year study on the Girl Scout cookie sale, using qualitative methods and rooted in feminist methodologies

      Sounds extra rigorous.

      1. qualitative methods and rooted in feminist methodologies

        SCIENCE!

      2. “Qualitative methods” = no data were harmed, or even bothered, in conducting this study.

      3. Well, if it weren’t for the damn Girl Scouts I could get some damn Samoas *RIGHT NOW*!.

        Fuck your ‘Caramel delight’ and fuck your ‘only available for a limited time’.

    3. using qualitative methods and rooted in feminist methodologies

      This is prog-speak for “making up bullshit that confirms my preconceived biases” isn’t it?

    4. While I was getting my pockets picked clean by Girl Scouts during the cookie sale this year, I talked with them about the business.

      They “knew their numbers”, cold – how much they kept from each box sold, etc. I was impressed.

    5. Yeah, teaching girls to 1) help pay for their activities by raising money to defray the costs 2) be able to approach adults they don’t know and make a sale 3) accept rejection when they are told no and 4) learn to track sales, collect money, follow up on open receivables is just horrible.

      The horrors. I’ve had relatives acquire some valuable skills selling the cookies, as silly as it may sound. After a couple of years of doing the sales, you can see the improvement in their self confidence. You can tell some of these kids are going to go on and be good sales/marketing people, they have the knack.

      Plus, I have no use for anybody that tries to get in between me and my dealer, I mean supplier, of Tagalongs.

      1. Samoas. Highest calorie output of any cookie known to man. Useful as a firestarter in a pinch. Good for marathon runners.

    6. “Which seeks to reproduce hegemonic gender roles regarding labor, education, and citizenship.”

      I sincerely hope they get what they want. As an Eagle Scout, I would LOVE if they made a situation where the Boy Scouts were the ones selling cookies and the Girl Scouts were the ones stuck with wreaths or other stupid fundraising that is impossible to sell. Girl Scout Cookies are an easy product to move, it’s a lot harder to try to sell Christmas decorations to someone.

      1. My brother, on the other hand, sold Christmas trees as a Boy Scout.

        Very lucrative.

      2. Eh, my troop sold high-grade Oaxacan bud. Easy as hell to move, good profit margins.

        1. Was the badge a pharmacy symbol?

          1. Pfft. This was ages before medpot.

            No merit badge. We counted ourselves amply rewarded by the skim.

  11. Five Years After Feds Escalated the Title IX Inquisition, Are Students Ready to Sue?

    At least with the Inquisition, you had the right to face your accuser.

  12. The law firm of Kaiser, LeGrand & Dillon is prepared to represent the student or students who answer FIRE’s call for a lawsuit.

    Best of luck tilting at that windmill…

  13. Talk dirty to the OCR.

  14. “a one-sentence-long federal statute mandating gender equality in higher education”

    Complain about laws when they’re too long, complain about laws when they’re too short… how long is the 2nd amendment? How about the 1st?

    1. both situations result in unfathomable enforcement. How is anyone supposed to know if theyre violating obamacare until someone finally finishes reading the full text sometime next century? On the other hand, when a law gives the enforcing agency complete discretion in the definition of what’s being enforced and how to enforce it, well, you’re probably going to be in violation when the enforcers put their spotlight on you.

      but you’re right, the length of a law isn’t the issue, rather the quantity of them.

  15. OCR’s authority stems from Title IX, a one-sentence-long federal statute mandating gender equality in higher education.

    Too long to quote?

    1. https://en.wikipedia.org/wiki/Title_IX

      Title IX … states (in part) that:

      No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

      Is the “one sentence” I think, but I’m too lazy to keep reading to figure out the “(in part)” referred to by the article.

      1. problem i have is “on the basis of sex” has come to mean, “are women involved somehow?”, rather than actually looking to see if the discrimination is based on sex specifically.

    2. No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

      What I find interesting is that it applies only to an “educational program or activity”, and not to the educational institution as a whole.

      Note this stolen base in the Dear Colleague letter:

      Throughout this document the term “schools” refers to recipients of federal financial assistance that operate
      educational programs or activities.

      Its gone from applying to educational programs or activities that receive federal financial assistance, to applying to a recipient of federal financial assistance that operates educational programs or activities. That’s a huge jump. As drafted, if my STEM programs get grants to develop new terrorist-killing toys, but my liberal arts programs don’t get a penny, then Title IX would only apply to my STEM programs. But that’s not what OCR now claims as its jurisdiction.

  16. OCR’s authority stems from Title IX, a one-sentence-long federal statute mandating gender equality in higher education. The Obama administration’s OCR team, however, has interpreted Title IX in a manner that gives the agency seemingly limitless power to compel universities to follow speech-suppressing policies.

    The apparatchiks rule the country. Congress is largely democracy theater.

    When cornered on this question, OCR has suggested that its guidance isn’t actually mandatory, meaning that it hasn’t violated APA. Of course, the guidance certainly looks mandatory to the hundreds of institutions meekly submitting to it.

    We’re not saying it’s mandatory or anything, we’re only saying you never know just how hard we might fuck you if you don’t follow our “suggestion”.

    Completely arbitrary power. Government of Men, and not Laws.

  17. The picture in the article–is that a “Real Doll”?? Seriously, it looks so mannequin-like.

    /who the shit would want a Real Doll that looks like that??

  18. The bottom line here is the decimation, deliberate decimation, of due process. This doesn’t end with Title IX, that is just the first step in the progressive incrementalism. Progressives, including this fuckhole Obama intend to decimate due process and replace it with populism. They want to try people, culturally unpopular people, in the media and on social networks because real courts are time consuming and require, gasp, evidence.

  19. The entire administrative state is unconstitutional. That hasn’t stopped them.

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