Tuesday, July 19, 2016
On a hot topic from the firm of Liebert Cassidy Whitmore:
A group of law professors from across the country released an open letter to state and federal lawmakers, college administrators, and officials at the U.S. Department of Education Office for Civil Rights (OCR) this month. The letter protests a series of OCR directives and enforcement actions issued pursuant to Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in federally-funded educational institutions.
The letter argues that OCR has unlawfully expanded the nature and scope of institutions' responsibility to address sexual harassment. In particular, it argues that the majority of OCR's directives on the topic of campus sexual harassment have not undergone notice and comment procedures as the Administrative Procedure Act requires of all proposed regulations as part of the rule-making process. Instead, OCR's directives incorporate obligatory language such as "must" and "require" without citing any regulatory or statutory basis.
The open letter further argues that OCR's directives and enforcement actions have had a harmful effect on campus free speech and due process by dramatically expanding the U.S. Supreme Court's definition of "sexual harassment" under Title IX, which is limited to conduct that is "severe, pervasive, and objectively offensive."
You can read more here.