Office Of Civil Rights Should Be Retitled The Office Of Kafkaesque Rights
Hans Bader writes at CEI of all the ways the OCR is pushing colleges to remove due process -- mainly from men on campus, since they are largely the ones accused of sexual assault or harassment. One way the OCR does this is through the "massive financial risk colleges face if they do not swiftly expel accused students":
Thanks partly to OCR stacking the deck, it can be much cheaper for a college to expel a possibly innocent student than to find him not guilty. Even before OCR's recent rules changes, colleges had massive incentives to suspend or expel students who might be guilty of sexual assault or harassment.For example, last year, the University of Connecticut settled a Title IX lawsuit by paying $900,000 to a student who alleged sexual assault. In 2009, the University of Arizona paid $850,000. In 2007, the University of Colorado paid $2.5 million. A jury awarded $1 million against the Pine Plains school district to a racial harassment plaintiff. And if students win their Title IX lawsuit, the school also has to pay their attorney's fees, under a pro-plaintiff rule known as the Christiansburg Garment rule.
Colleges' financial risks are multiplied by the fact that in addition to being sued by students, OCR can cut off all their federal funds and student financial aid. OCR doesn't view itself as being bound by a court's earlier ruling rejecting a student's harassment lawsuit, and it argues that the standard of culpability is less in an administrative investigation.
Moreover, although OCR is not likely to cut off a typical college's federal funds, since a college will do whatever it takes to appease OCR and prevent that from happening, that doesn't mean a college will not experience massive costs. When OCR investigates a college, it has to devote a small army of employees to cooperate with its investigation.
Here's where it goes especially Kafka:
Moreover, even when no court would award damages, OCR will. It has recently given itself the power to award monetary damages against colleges, even in situations where the Supreme Court's Davis decision says damages would be inappropriate under the Constitution's spending clause. To resolve a recent OCR investigation, Tufts had to pay a complainant "monetary compensation," even though OCR never specifically found that she was sexually assaulted, because OCR ruled that Tufts had wrongly allowed the accused to submit the complainant's private medical records to show that the complainant had lied and that the accused thus was innocent.In its April 29, 2014 harassment guidance, OCR generally imposes liability on institutions even if they do correctly discipline those they discover have engaged in sexual harassment, if they do not also "remedy its effects," and "prevent its recurrence." Even punishing the harasser "likely will not be sufficient," OCR said. What does OCR mean by "remedy"? In its 2013 retaliation guidance, it suggests money, saying that "OCR will determine which remedies, including monetary relief, are appropriate based on the facts presented in each specific case."
So in addition to being sued by complainants, colleges may also be forced to pay money by OCR.
And that's just the beginning.
I wouldn't let Tufts off so easy, or many of the schools for that matter.
Does Tufts not have a law school?
Does Tufts not have wealthy and well connected alums?
There is no moral excuse for any school to not be fighting the OCR on this, tooth and nail.
OCR deserves every bit of condemnation, and protest, but so does Tuft's administration, it's President, it's Board of Trustees and it's Law School Faculty.
Come to our law school to learn the noble profession of law, and learn how to use law to protect the innocent and the weak.
Come to our business school to rationalize doing the wrong thing in the name of protecting the bottom line.
Schools aren't protesting because it's no skin off the Administration's nose. They are cowards who should not be let off with easy rationalizations concerning the fear of losing Federal funds.
jerry at March 24, 2015 11:15 PM
"Schools aren't protesting because it's no skin off the Administration's nose."
They're also not protesting because they're feminists who think trampling accused men's rights is a Good Thing.
They would like to do away with hearings entirely and just go from accusation to expulsion with no delay.
dee nile at March 25, 2015 4:38 AM
"Does Tufts not have a law school? "
I assume that, given the political philosophies that prevail in most American law schools today, that the law school has zero interest in defending a wrongly accused male, especially if that person happens to be white. Not only would that bring additional OCR scrutiny, but many of the law school deans and faculty are fellow travelers with the OCR on this.
Cousin Dave at March 25, 2015 7:08 AM
jerry and dee nile nail the highlights.
But there's more to it than that: if OCR can influence federal government research granters to put offending colleges on a blacklist for future grants, that will be a tremendous blow to any university that also conducts research.
If OCR can also deny students attending those colleges federal student loans and grants, then it is game over, man!
Those two, together, would keep most university presidents awake at night, or cause them to awaken in a cold sweat.
I'm going to go out on a limb and say it would be less expensive to negotiate with an accused student and buy them out and then "expel" them.
I R A Darth Aggie at March 25, 2015 7:11 AM
Since OCR = Office of Civil Rights is busy denying civil rights, "Orwellian" is a better adjective than "Kafkaesque"
markm at March 26, 2015 7:36 PM
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