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Fighting the Dept. of Education in Court-Declaratory Judgement

The Education Dept. is bullying colleges by making absurd definitions of “sexual harassment”, something that itself is not part of the federal statute they are using. See http://www.insidehighered.com/news/2013/06/21/ocr-official-explains-harassment-policies-skeptical-college-lawyers, http://thefire.org/article/15970.html, http://pjmedia.com/instapundit/171165/ .

Some college has to actually fight the OCR in court. But who will bell the cat? The OCR knows that college administrators are generally cowards, and so they push them around, confident that the OCR can ignore the law because it won’t go to court. Could a college association perhaps ask for a declaratory judgement on behalf of its members, or could 50 or so colleges ask together, to avoid reprisal? The suit could ask for a declaration that a college is free under the statute to violate the OCR standard stated in the Montana agreement. The colleges would win, because OCR assertions that didn’t go through notice and comment and have no basis in the statute wouldn’t get Chevron deference. And it wouldn’t cost much to file such a challenge.

It would help the case that the colleges could quote the OCR representative as saying that he’ll “take it under advisement” as to whether the Dept. of Education should follow the Administrative Procedure Act. (“the entire room broke into applause in response to the notice and comment question”)

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