Education Department should withdraw college rule likened to double jeopardy

Education Department should withdraw college rule likened to double jeopardy

Earlier, I wrote about how the Trump administration should end the Obama-era micromanagement of college discipline by the Education Department. But I overlooked one form of federal meddling that needs to be fixed.

On April 4, 2011 the Education Department’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter demanding that colleges not allow students or faculty accused of sexual harassment to appeal findings of guilt unless they also allowed complainants to appeal not-guilty findings — a position that some critics viewed as akin to double jeopardy.

This demand ignored OCR’s own past agency rulings to the contrary, even though “unexplained departures from precedent” violate the Administrative Procedure Act, and are arbitrary and capricious.

Before the Obama administration, OCR had stated that “there is no requirement under Title IX that a [school] provide a victim’s right of appeal.” (See University of Cincinnati, OCR Complaint No. 15-05-2041 (Apr. 13, 2006)).

Under the Clinton administration, OCR had approved a school’s limiting appeal rights to the accused because “he/she is the one who stands to be tried twice for the same allegation.” (See Skidmore College, OCR Complaint No. 02-95-2136 (Feb. 12, 1996)).

Similarly, under the Bush administration, OCR had concluded that “appeal rights are not necessarily required by Title IX, whereas an accused student’s appeal rights are a standard component of University disciplinary processes in order to assure that the student is afforded due process before being removed from or otherwise disciplined by the University.” (See Suffolk University Law School, OCR Complaint No. 01-05-2074 (Sept. 30, 2008)).

In addition to demanding what critics viewed as double jeopardy, the April 4, 2011 Dear Colleague letter also departed from prior Education Department policy in other ways, such as ignoring past agency rulings (and court rulings) recognizing that Title IX does not apply off campus, and does not require that colleges to investigate off-campus conduct even if it does have on-campus effects. For example, the Dallas office of the Education Department’s Office for Civil Rights noted in 2004 that “a University does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity of the recipient.” See Oklahoma State University ruling, OCR Complaint No. 06-03-2054, at pg. 2 (June 10, 2004).


Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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