ASHE SCHOW: Due process defenders back Education Department critic to lead Office for Civil Rights.
Critics and supporters alike are wondering who might be the next person to lead the Education Department’s Office for Civil Rights, which has overseen in recent years an expansion of responsibilities related to campus sexual assault.
One name being pushed as a nominee is Gail Heriot, a law professor at the University of San Diego and a member of the U.S. Commission on Civil Rights. Heriot has been a critic of OCR’s overreach, even joining fellow Civil Rights commission member Peter Kirsanow in writing a letter to Congress opposing a budget increase for the department.
“[W]e have noticed a disturbing pattern of disregard for the rule of law at OCR,” the two wrote in the letter. “That office has all-too-often been willing to define perfectly legal conduct as unlawful.”
Heriot and Kirsanow added that OCR was only “under-funded” because it had given itself additional responsibilities. “Increasing OCR’s budget would in effect reward the agency for frequently over-stepping the law. It also would provide OCR with additional resources to undertake more ill-considered initiatives for which it lacks authority,” they wrote.
Heriot and Kirsanow argued that OCR’s 2011 “Dear Colleague” letter, which greatly expanded the office’s role in combating an alleged epidemic of campus sexual assault, created a dangerous situation for accused students by requiring schools to adopt a low “preponderance of evidence” standard.
“[G]iven the importance of safeguarding the rights of accused students, the ‘clear and convincing’ standard would seem to be the more appropriate one in at least some situations,” the two wrote.
A group dedicated to the rights of accused students sent a letter to the Trump transition team after the election in support of Heriot to lead OCR. The letter, written by a group called Stop Abusive and Violent Environments (SAVE), was sent with more than 240 signatures supporting Heriot and was published last week.
Although I’ve pushed Robert Shibley of FIRE for this position, I’d also be quite happy with Gail Heriot.