The Office for Civil Rights (OCR) is a sub-office of the U.S. Department of Education described in these episodes as the agency chiefly responsible for determining whether schools violate Title IX and for enforcing that statute through the threat of withholding federal funds. Guests and host on The Bob Zadek Show characterize OCR as an opaque regulatory body that has expanded its reach by issuing “Dear Colleague” letters rather than formal rules.
Origins and enforcement structure
In a 2018 episode, R. Shep Melnick, identified by Bob Zadek as a professor of law at Boston College and author of The Transformation of Title IX, explains that Title IX began as a 1972 statute whose goal Zadek describes as laudatory. Melnick says the statute was initially effective in reducing discrimination against women on college campuses, to the point that “if this statute were considered being passed today, there would be a shrug.” Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Melnick describes two sets of actors—administrators and judges—building on each other in a process he calls “institutional leapfrogging.” Because withholding federal funds was too politically dangerous and administratively cumbersome, courts recognized a “private right of action” allowing any private citizen to sue a university or school system to require compliance with Title IX, even though that mechanism was not in the statute. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
In a 2022 episode, Joe Cohn quotes the operative language of Title IX: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Cohn says courts in the late 1970s began tackling whether a school violates that promise by allowing campuses to be “permeated with sex-based harassment,” concluding a school cannot be deliberately indifferent to known instances of sex-based harassment between students. Joe Cohn on Title IX and Due Process on Campus (2022)
The “Dear Colleague” letter
The episodes return repeatedly to the “Dear Colleague” letter as OCR’s signature instrument. Melnick says that rather than following the Administrative Procedure Act, which requires a proposal, public comment, an explanation, and judicial review, “the Office for Civil Rights in the Department of Education, OCR, bypassed that and started to use so-called ‘interpretations’ and the now-ubiquitous ‘Dear Colleague’ letters.” He describes these as unilateral letters to colleges, universities, primary and secondary schools receiving federal funds stating how OCR interprets the statute and what schools are required to do. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Melnick notes that OCR considers these letters legally binding and that courts have frequently deferred to them, and that the letters can run ten, twenty, thirty, or forty pages when combined with “Questions and Answers.” He calls the practice “an evasion of the Administrative Procedure Act” and “a very unilateral effort to try to say what the law is.” He adds that the 2011 letter said there was nothing new in it while the White House called it a pathbreaking policy. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Cohn, in the 2022 episode, describes the 2011 letter from OCR as “an informal letter telling all of the schools that they regulate its views on what’s required under Title IX.” He explains the structure of Title IX provides that a school is not eligible for federal funds if it has sex-based discrimination on campus, so the penalty for violating Title IX is losing all federal funds. Because the Department of Education decides whether there are violations, a general counsel who ignored the letter’s warning would be committing malpractice: “a letter to every school saying, ‘If you don’t do this, we might go after you for all of your federal dollars.’” Joe Cohn on Title IX and Due Process on Campus (2022)
Bob Zadek, in the 2022 episode, characterizes the Department of Education as “nothing other than a disbursement office, with the teeth being that they hold back the money,” noting that it has no SWAT team or police force but has the dollars. He describes the dynamic as the federal government accumulating money through income tax, using that money as a source of power, and then using the power to coerce private colleges that are not per se subject to federal regulation but need the money. Joe Cohn on Title IX and Due Process on Campus (2022)
The 2011 letter and the standard of proof
In a 2014 episode, Cathy Young describes the background to the April 2011 letter. She says colleges had been setting up alternative disciplinary systems for sexual assault cases for about twenty years, and that several complaints from women who felt their cases were not handled well enough were taken up by the Justice Department as sex discrimination cases in 2011. Around the same time, the Department of Education Office of Civil Rights sent a letter to the presidents of colleges and universities about the handling of sexual assault and sexual harassment. Aren’t Men Entitled to Due Process on Campus? (2014)
Young identifies the most important recommendation as shifting the standard of proof from clear and convincing evidence—which she says was traditionally the campus standard for all kinds of complaints against students—to the preponderance of the evidence. She describes preponderance as the lowest standard of proof in a legal case, meaning the triers of fact believe there is a slightly greater probability, like 51 percent, that the evidence favors the complainant. She adds that a joint letter from the Department of Education and the Department of Justice in March of the prior year reiterated that this standard is the only appropriate one and said colleges not using it stand to lose their federal funds. Aren’t Men Entitled to Due Process on Campus? (2014)
Bob Zadek responds by listing what he calls libertarian principles involved: that the feminist lobby is a potent political force with no equivalent countervailing male political lobby; that the federal government uses the coercive power of federal grants to influence campuses; that the federal government should not be involved; and that colleges are being dragged into becoming quasi-judicial bodies though they are not skilled at it. He says the accused male has the same taint as if convicted of a crime, and that colleges are becoming private criminal justice systems doing it backwards and badly, “sticking a thumb in the eye of the Constitution.” Aren’t Men Entitled to Due Process on Campus? (2014)
The regulatory state and separation of powers
In the 2018 episode, Bob Zadek argues that the regulatory state combines legislative, executive, and judicial functions in the same body. He quotes James Madison: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, of few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Zadek says the regulatory state undoes the separation of powers. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
In the same episode, Zadek asks why criminal statutes are not sufficient and what is special about the educational environment that requires students to behave above the merely criminal level. Melnick distinguishes what schools might want to do from what they should be federally mandated to do, saying it is reasonable for schools to have their own standards of conduct—citing Brigham Young University’s rule against sex outside of marriage and Boston College’s unenforced rule on the same subject—but that the big question is whether those norms should be federally mandated the same for all universities. He says the Obama administration tried to establish very detailed rules about acceptable behavior and “seriously overreached in that effort.” Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Zadek tells Melnick that although Melnick says he is “not a libertarian,” he could have fooled him, and says he believes in academic freedom and that the strength of American higher education is its diversity. Melnick replies, “I’m not sure Oberlin will survive, but I’m sure BYU will.” Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Across episodes
The topic is treated in a 2014 episode with Cathy Young, a 2018 episode with R. Shep Melnick, and a 2022 episode with Joe Cohn. The 2014 episode focuses on the 2011 letter’s recommended shift to the preponderance standard and the due process consequences for accused students. The 2018 episode widens the frame to the administrative state, the private right of action, and institutional leapfrogging between courts and agencies. The 2022 episode returns to the 2011 letter and the mechanics of the power of the purse. The excerpts show the same core claim—that OCR used informal letters and funding threats to expand federal control over campus policy—recurring across all three, with the later episodes supplying more detail about the enforcement mechanism and the earlier episode supplying the account of the standard-of-proof change.
What the sources do not cover
The excerpts do not state OCR’s founding date, its organizational history before the events described, or the names of any officials who signed the letters. They do not describe any court case by name or holding beyond the general recognition of a private right of action, and they do not state which amendment or constitutional provision the due process objections rest on. The excerpts also do not say whether any school actually lost federal funds as a result of noncompliance.