Ominibus bill rewards Department of Education overreach

On Friday, the House will vote on the year-end omnibus spending bill, formally known as the Consolidated Appropriations Act of 2016. As Heritage Action says, the bill should have been an opportunity for conservatives to reassert their prerogatives on a host of important issues, ranging from appropriate spending levels to substantive action on refugee resettlement, executive amnesty, Planned Parenthood, and many more. Instead, the omnibus spending bill falls far short of achieving substantive policy victories on the issues Americans care about.

I want to focus on one area that I care very much about — education. The omnibus bill apparently grants a 7 percent increase in the budget for the Department of Education’s Office for Civil Rights (OCR).

This outfit does all it can to impose the left’s agenda at the K-12 and college levels. In doing so, it often ignores the law, defining perfectly legal conduct as unlawful.

If the OCR’s resources are stretched thin, it’s because of the Office’s overreach, based on a willful misreading of the law. By increasing OCR’s budget, Congress rewards its misconduct. The budget should be slashed, not increased.


1. OCR’s school discipline policy has encouraged districts across the country to adopt racial quotas in discipline. We’ve written about attempts by “civil rights” groups to limit the ability of teachers to maintain order in the classroom by insisting, in effect, that black and white students by disciplined in the same proportion regardless of their comparative behavior.

This is perhaps the most perverse battle in the left’s war against standards. Education remains the best pathway to success for minority group members, and education is undermined when unruly students disrupt the process.

OCR has led the charge against school discipline by issuing a Dear Colleague letter that explicitly applies disparate impact analysis to school discipline. Schools thus face legal jeopardy if they discipline black students more often in percentage terms than white students even if black students misbehave more frequently.

Non-discrimination isn’t enough; OCR demands equality of outcomes. However, Title VI of the Civil Rights Act, under which OCR purports to act, prohibits only actual discrimination, not neutral policies that have a disparate impact. See Alexander v. Sandoval, 532 U.S. 275, 280 (2001).

Why is a Republican Congress about to reward OCR for not following the law?

2. OCR’s guidance purports to convert ordinary incidents of schoolyard bullying into violations of federal law. Bullying isn’t to be condoned; it can be a serious problem. But absent the most extraordinary circumstances, it’s a problem best dealt with at the local level, by teachers and principals backed up by parents and school district officials.

Federal law doesn’t authorize the kind of expansive federal involvement in anti-bullying undertaken by OCR. For example, the Supreme Court has said that one incident of harassment cannot give rise to federal liability by a school district for bullying. Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999). Yet OCR’s interpretation permits the finding of a violation based on one incident.

OCR’s interpretation also covers mild but persistent teasing by one student of another, thus “making a federal case” out of ordinary childhood misbehavior. This too is inconsistent with what the Supreme Court said in Davis.

OCR also replaces the Supreme Court’s requirement that the harassment “deprive the victims of access to educational opportunities or benefits provided by the school” with a much broader formulation — “interfere with or limit a student‘s ability to participate in or benefit from the services, activities, or opportunities offered by a school.” (Emphasis added)

Why is a Republican Congress about to reward OCR for not following the law?

3. OCR misstates applicable law on sexual assault and harassment on campus, encourages unfair treatment for some accused students, and allows colleges and universities to abridge First Amendment rights.

Even law professors at liberal Harvard and the University of Pennsylvania have expressed serious concern about the sexual harassment policies adopted by their institutions under pressure from OCR. And no wonder. Among other affronts to due process, OCR’s guidance documents required many universities to change the burden of proof used in sexual harassment disciplinary proceedings from “clear and convincing” evidence of improper conduct to a “preponderance of the evidence.”

In addition, OCR strongly discourages cross-examination of accused students by their accusers. This is an obvious affront to due process. Indeed, a federal court has held that cross-examination is constitutionally required on due-process grounds when an accuser’s credibility is an important issue in a disciplinary proceeding. See Donohue v. Baker, 976 F. Supp. 137 (N.D.N.Y. 1997)

In addition to denying due process, OCR also seeks to infringe on First Amendment rights. Eugene Volokh has argued that defining “sexual harassment,” as OCR does, to include students’ “telling sexual or dirty jokes,” spreading “sexual rumors” (without any limitation to false rumors), “circulating or showing e-mails or Web sites of a sexual nature,” or “displaying or distributing sexually explicit drawings, pictures, or written materials” can easily cover speech protected by the First Amendment.

Why is a Republican Congress about to reward OCR for abridging constitutional rights.

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Some readers may think that my criticism of Speaker Paul Ryan the other day was too harsh. But the omnibus bill, taken as a whole, helps illustrate why I’m so disillusioned with Ryan.

I should add that, according to Heritage Action, the bill is a product of closed-door, dual-track negotiation. It was unveiled early Wednesday morning, giving lawmakers little time to decipher its policy implications.

Wasn’t Paul Ryan going to put an end to this sort of abuse?

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