Higher Education Watch
Civil Liberties Group to Challenge Federal Due Process Crackdown

This is big: The Foundation for Individual Rights in Education, a legal advocacy organization devoted to protecting free speech and due process in American higher education, is seeking to force the federal government to reverse its 2011 mandate that laid the groundwork for the growing campus sex bureaucracy and undermined the civil liberties of college students and faculty. From the group’s website:

Five years ago today, the Department of Education’s Office for Civil Rights (OCR) announced sweeping new requirements for colleges and universities adjudicating allegations of sexual misconduct. By unilaterally issuing these binding mandates via a controversial “Dear Colleague” letter (DCL), OCR ignored its obligation under federal law to notify the public of the proposed changes and solicit feedback.

To correct this error, and to begin to fix a broken system of campus sexual assault adjudication that regularly fails all involved, the Foundation for Individual Rights in Education (FIRE) seeks a student or institution to challenge OCR’s abuse of power.

The mandate in question has been subject to growing scrutiny in recent months, with some Republican Senators questioning the OCR’s authority to unilaterally rewrite campus disciplinary procedures, the left-leaning American Association of University Professors decrying its impact on academic freedom, and major media outlets starting to explore the costs to students and taxpayers of the nascent cottage industry of Title IX administrators. But as long as the deeply ideological lawyers in the Department of Education stand their ground—as they have been doing, and as they seem likely to continue to do in a Hillary Clinton administration intent on proving itself to the campus activist base—the current draconian policies will stay in place, and PR-conscious campus administrators will continue to enforce them.

Will a lawsuit brought by FIRE be enough to rein in the OCR? FIRE has a near-perfect record in its past litigation projects, but until now it has always faced off against colleges, not well-funded federal agencies. We’ll be watching as the case moves forward, in what is sure to be a long and arduous process. In the meantime, Congress should do more than hold hearings: It should pass legislation clarifying the limitations of OCR’s authority, so that it doesn’t overreach so brazenly in the future.

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