Law Professors: Department of Education Office for Civil Rights is Guilty of Overreach

WASHINGTON, DC – Senator James Lankford (R-OK) has repeatedly challenged the Department of Education’s inappropriate use of ‘Dear Colleague’ letters and ‘guidance documents’ to mandate policies for schools without adhering to legally required regulatory processes — and threatening federal funding if a school fails to comply. He has led hearings that confirm that the Department’s Office for Civil Rights (OCR) is a frequent abuser of executive overreach. In February, numerous academics and legal experts agreed with Lankford’s concerns regarding the Department’s overreach. Now, a group of well-respected college professors is speaking out against the overreach in an unprecedented show of unity against the government entity that regulates their institutions. The list of colleges represented include: Harvard Law School, Stanford Law School, George Washington University Law School, and the University of Pennsylvania, among others.

Here are some excerpts from their letter:

“In pursuing its objectives, OCR has unlawfully expanded the nature and scope of institutions’ responsibility to address sexual harassment, thereby compelling institutions to choose between fundamental fairness for students and their continued acceptance of federal funding.” (p. 1)

“The federal Office for Civil Rights has ignored constitutional law, judicial precedent and Administrative Procedure Act requirements by issuing numerous directives, and then enforcing these directives by means of onerous investigations and accompanying threats to withhold federal funding… These unlawful actions have led to pervasive and severe infringements of free speech rights and due process protections at colleges and universities across the country.” (p. 6)

“OCR needs to clarify which directives it considers to be guidance documents vs. regulations. Directives that are guidance documents need to be revised to eliminate provisions containing obligatory wording, unless these provisions are expressly supported by prior legislation or regulation. Directives that are deemed to be regulations need to be brought into compliance with requirements of the Administrative Procedure Act, including review and comment procedures.” (p. 5)

“[A] cursory examination of these OCR documents reveals they frequently incorporate language such as “must,” “require,” and “obligation,” without citing any regulatory or statutory basis. Furthermore, the OCR has instituted numerous compliance investigations against universities, compelling institutions to implement the policies and procedures prescribed in these documents.” (p. 2)

Most recently, Senator Lankford has challenged the Department of Education’s legal justification for its May 13 guidance directive to local school districts regarding the use of public school bathrooms. CLICK HERE to read the letter. 

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