Earlier this month, the Office for Civil Rights (OCR) of the United States Department of Education publicly released a findings letter after completing their investigation of Frostburg State University. OCR is the agency within the federal government that is responsible for, among other tasks, implementing Title IX.
According to the finding’s letter, OCR investigated whether the school failed to properly respond to “Complainant 1’s and Complainant 2’s report of sexual assault, and whether as a result, students, including Complainant 1 and Complainant 2, were subjected to a sexually hostile environment.” The first complainant claimed that the university did not provide adequate services after she was allegedly raped at an off-campus party; the second complainant claimed that the university did not employ proper procedures after she alleged that she was sexually assaulted by a campus police officer. Complainant 1’s alleged incident occurred in February of 2013; Complainant 2’s alleged incident occurred in the Fall of 2009.
On its face, the conclusion of this finding’s letter seems proper. As Blake Neff writes at The Daily Caller, “OCR found the school mishandled sexual misconduct complaints, and the university has agreed to reimburse women for counseling expenses and make other changes to resolve the complaint.” However, as is often the case with OCR’s guidance to schools following investigations, the devil is in the details. Tucked away in the early portions of this investigation letter, OCR added the following: “Additionally, the Sexual Harassment Policy inappropriately stated that ‘in assessing whether a particular act constitutes sexual harassment forbidden under this policy, the rules of common sense and reason shall prevail. The standard shall be the perspective of a reasonable person within the campus community.’ This standard falls short of the preponderance of the evidence standard required to satisfy Title IX.”
“The preponderance of the evidence standard” is a legal term that simply means that 50.1% of the evidence being evaluated by those judging a case is all that is needed to determine guilt. In this provision, OCR seems to be aiding and failing students at the same time. While the terms “common sense and reason” are entirely too subjective a standard for evaluating serious claims of misconduct, the fact that OCR is forcing a school to change its sexual harassment policy during an investigation that arose from cases involving rape and sexual assault is absurd. This portion of Frostburg State’s policies has absolutely nothing to do with the nature of the complaints that spurred on OCR’s investigation.
While OCR’s overreach in this case created a positive change of policy for the students of Frostburg State University, previous examples of OCR altering policies beyond the scope of their investigation’s purpose have yielded awful rules. In 2013, the University of Montana (UM) was being investigated by OCR after a series of sexual assaults were reported from the university’s students. Within their finding’s letter, OCR pointed out Title IX violations with the school’s sexual harassment policy: “Sexual Harassment Policy 406.5.1 improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive. ” Put simply, OCR told UM that their sexual harassment policy needed to include the ability for subjectively offensive forms of harassment to be deemed Title IX violations as well. To make matters worse, this finding’s letter began by saying that its policy proscriptions were to serve as a “blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.”
Federal overreach is never beneficial. For years, colleges, threatened with the lose of federal financial aid, have caved into OCR’s misconduct. It is time for students to take a stand against it, and that can only begin by recognizing wrongdoings, no matter how beneficial they may seem at the time.