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OCR Descends into Self-Parody in Front of Incredulous College Lawyers

Sometimes I think it would be fun to be a college lawyer. This isn鈥檛 one of those times.

Yesterday, college lawyers from across the country gathered in Philadelphia (welcome, folks!) for the annual meeting of the (NACUA). Of course, the Department of Education鈥檚 Office for Civil Rights鈥 (OCR鈥檚) latest efforts to enforce Title IX in new, interesting, and legally dubious ways have been a hot topic of discussion, and OCR鈥檚 John K. DiPaolo was on hand to address the assembled attorneys. 

And boy, it sounds like a heck of a talk, forcing Inside Higher Ed鈥檚 Doug Lederman to to truly capture the nature of the proceedings. Lederman begins with what might be the understatement of the year so far:

College lawyers are far from thrilled with how DiPaolo's employer鈥攖he U.S. Education Department鈥檚 Office for Civil Rights鈥攊s regulating colleges鈥 handling of sexual harassment of students...

Unfortunately, however, DiPaolo wasn鈥檛 there to make amends or walk back OCR鈥檚 disregard for freedom of speech and academic freedom. Granted, he only got to talk after several lawyers on the panel related some of what Lederman gently termed 鈥渉ighlights (or lowlights, depending on one鈥檚 perspective)鈥 of OCR鈥檚 work the last few years. But when DiPaolo came out, it looks like he stole the show:

With those cautionary tales setting the stage for him, DiPaolo did his best to reassure the assembled lawyers that despite what they might have heard, OCR has not sought to alter federal sex harassment laws and policies in the Montana or other recent agreements. First of all, he said, the Montana letter described the settlement there as 鈥a blueprint for other colleges, not the blueprint鈥 -- a distinction unlikely to satisfy many of them.

Really? That鈥檚 OCR鈥檚 defense? I understand that DiPaolo鈥檚 job is to try to make the college lawyers believe that the lemons OCR has been hurling at them for the last few years are actually lemonade, but come on. 鈥A blueprint, not the blueprint鈥? It鈥檚 a testament to the fortitude of these attorneys that DiPaolo wasn鈥檛 laughed out of the room. 

More importantly, he continued, echoing a statement the agency made last month amid the post-Montana frenzy generated by civil liberties advocates, resolution agreements for individual campuses are specific to the issues and problems at those institutions, and apply only to those places. 鈥淣o resolution agreement represents OCR policy,鈥 he said. 鈥淧olicies are what we issue in 鈥楧ear Colleague鈥 letters.鈥

If the letter and resolution agreement with the University of Montana doesn鈥檛 represent broad policymaking by OCR that applies far beyond the Montana case, why in the world does it say that the 鈥淎greement will serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault鈥? Does that sound like something that鈥檚 safe to ignore? 

Here鈥檚 another gem:

Another college lawyer drew significant applause from his colleagues when he challenged DiPaolo to 鈥渃ommit鈥 that if the Education Department seeks to make significant changes to Title IX in the future, it will do so through the normal (and more democratic) process of negotiated rule making rather than through more 鈥淒ear Colleague鈥 letters. DiPaolo鈥檚 good-humored response: 鈥淚 will take that as a suggestion, not merely a question, and take it under advisement.鈥

This casual dismissal of administrative law is frightening to hear from the federal government, however 鈥済ood-humored鈥 it may be. Since its passage in 1946, the has set forth a process for administrative rulemaking鈥攊ncluding public notice and comment鈥攖hat OCR blithely dismissed for its April 4, 2011, 鈥淒ear Colleague鈥 letter and has completely ignored in its 鈥渂lueprint.鈥 Since college lawyers got neither notice of or a chance to comment on OCR鈥檚 latest moves on Title IX, you can see how they鈥檇 be miffed. How patronizing, then, is it for DiPaolo to say he will take the recommendation for OCR to actually follow legally required rulemaking procedures 鈥渦nder advisement?鈥 Note to OCR: That鈥檚 not a suggestion. It鈥檚 the law.

But the pinnacle of this article, and the key to understanding why OCR has made such a hash of its regulations, has to be this segment:

And to the extent that college officials read the Montana agreement to say that OCR was altering the definition of sexual harassment to include things that were something less than 鈥渙bjectively offensive,鈥 he insisted that the agency remains faithful to legislative language that defines sexual harassment or other misconduct under Title IX as something that 鈥渓imits or denies a student's ability to benefit from their educational program.鈥

鈥淲hether it's severe or pervasive or objectively offensive isn't really what matters,鈥 he said. 鈥淭he Title IX standard is that there has been unwelcome sexual conduct that is sufficiently serious that it limits or denies the student鈥檚 ability to benefit from the educational program.鈥

The audacity of an OCR attorney telling a roomful of college and university attorneys that legal standards don鈥檛 matter is breathtaking. Here you have it, plainly stated: To OCR, it doesn鈥檛 matter whether allegedly harassing conduct is severe, or whether it鈥檚 pervasive, or whether it鈥檚 even offensive to a reasonable person. Expression that is minor, isolated, or inoffensive to most people can be sexually harassing as long as it 鈥渓imits鈥 in some way a student's ability to benefit from the educational program. Considering that nearly anything you don鈥檛 like to hear can 鈥渓imit鈥 the benefit of your education in some possibly minuscule way, this is practically no limitation at all. If a class discussion about women in the military made you angry enough that you stopped paying attention, you have had the benefit of your education limited to some extent. Does that make it harassment? Under OCR鈥檚 definition, yes. As FIREhas been saying, such a standard makes practically every student a harasser and makes the idea of harassment into a joke, trivializing real harassment. 

OCR is also ignoring the Supreme Court鈥檚 decision in , which said that student-on-student harassment in the educational context is conduct that is targeted, discriminatory, and 鈥渟o severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit.鈥 Severity, pervasiveness, and objective offensiveness might not matter to OCR bureaucrats, but it does to the Supreme Court. (Actually, OCR is not ignoring Davis so much as discounting and misquoting it.)

As for the claim that 鈥渢he agency remains faithful to legislative language鈥 about sexual harassment, I can only ask: What legislative language? Because it鈥檚 not , which reads in pertinent part: 鈥淣o 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....鈥 As far as we can determine, Congress has not given its imprimatur to legislation that would make reading The Canterbury Tales a punishable offense.

Again, I understand that DiPaolo was personally in a bad spot, having to defend the indefensible in front of a knowledgeable and skeptical audience. But my sympathy is limited鈥擠iPaolo is OCR鈥檚 and presumably had plenty of input on developing this policy. OCR has made its bed; it鈥檚 only right that occasionally its key personnel be made to lie in it. Having heard DiPaolo鈥檚 鈥渁rguments鈥 for OCR鈥檚 actions, it鈥檚 now up to college and university attorneys to decide whether they鈥檒l buy what OCR is selling or finally begin to stand up and say 鈥渘o鈥 to the agency鈥檚 .

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