If Republicans in Congress wonder why so many conservatives are frustrated with them, here is one reason: GOP lawmakers generously fund the Obama administration’s most out-of-control elements while slapping down the conservatives who try to warn them away from such misjudgments.
Consider, for example, the Department of Education’s Office for Civil Rights (OCR). Last year, a Republican-dominated Congress voted to increase by 7 percent that office’s $100 million budget — a lavish hike when compared with the rest of the budget.
Its April 4, 2011, missive on campus sexual violence is a good example. Of course, we all oppose sexual violence. Of course, those who have committed sexual violence should be punished. But by defining sexual assault down and making it seem more common on campus than it really is, OCR has helped to fuel an ugly moral panic. It has pressured colleges to adopt procedures that could result — and almost certainly have already resulted — in innocent students being railroaded.
Meanwhile, OCR’s January 8, 2014, “Dear Colleague” letter pushes K-12 schools to equalize the rates at which students of different races are disciplined. But let’s think about that: It is true that African-American students are more likely than white students to be disciplined in school. It is also true (but unspoken by OCR) that white students are more likely than Asian-American students to be disciplined. But discrimination is unlikely to be a significant reason.
The reality is that misbehavior rates vary by race. This should not be surprising given the stratospheric rates of out-of-wedlock birthrates — hovering near 75 percent — in the African-American community. White rates are a little less than half that but still embarrassingly high. Only in the Asian-American community is the problem under control. Empirical research is clear that children reared in fatherless households, especially poor households, will misbehave more often than others. The only way to equalize discipline rates is to hold different races to different standards. This is the opposite of what OCR is supposed to be encouraging. So far, its efforts have yielded only chaotic classrooms, which is only going to harm minority students who want to get ahead.
The letter urging Congress not to increase the DOE budget was ignored. Make that: worse than ignored.
The letter was ignored. Make that: worse than ignored. Buried in last year’s Senate budget report was a directive, apparently put there at the behest of Senator Barbara Milkulski, a Maryland Democrat, aimed straight at Heriot and Kirsanow: Don’t send any more letters on Commission letterhead; only the full Commission is authorized to send letters.
This effort to silence the Commission’s conservative voices made no sense. There is nothing unusual about individual members of a federal commission using letterhead to express views that may differ from their colleagues’. Note that the Heriot-Kirsanow letter was in no way misleading. It began, “We write as two members of the U.S. Commission on Civil Rights and not on behalf on the Commission as a whole.” Only an illiterate could fail to grasp the distinction.
Nor was there was anything untoward about their commenting on whether another federal agency – OCR — is doing its job properly. Appraising the performance of federal civil-rights agencies is a core Commission function. When the full Commission ignored OCR’s problems, it was perfectly appropriate — indeed commendable — for individual commissioners to speak up.
Was there some mistake? Did Senator Mikulski slip that language in when neither Senator Cochran nor Senator Richard Shelby (R., Ala.), who chairs the relevant appropriations subcommittee, was looking?
Apparently not. When the conservative commissioners sought an explanation from Republican appropriations subcommittee staff members, they were met with stone-faced resistance. When this year’s Senate budget report came out, it doubled down. In addition to reiterating the original gag order, the new report requires the Commission to report “any violation of this direction.”
As for last year’s hefty OCR budget increase, Congress got what it paid for: Expanded OCR activity. In May, for example, it issued a “Dear Colleague” letter requiring schools to permit anatomically male students who regard themselves as “transgender” to use locker room and shower facilities reserved for females.
No sensible interpretation of Title IX would yield such a result. Indeed, OCR does not even try to argue from the statute’s text. Instead, it points to a 1989 Supreme Court decision: Price Waterhouse v. Hopkins. The Price Waterhouse plaintiff was a woman who argued that she was denied a promotion because of her aggressive personality. The Court agreed that if a man with a similar personality would have been promoted, then she was a victim of sex discrimination.As Commissioner Heriot pointed out in her recent testimony before a House Task Force, that case is inapplicable to OCR’s transgender policy. It’s true that if anatomically male students who identify as female had been anatomically female, they would have been permitted to use the facilities assigned to females. But that would be true even if they didn’t identify as female. Moreover, it is irrelevant. Unlike the Price Waterhouse situation, Title IX and its implementing regulations explicitly permit separate locker room and shower facilities based on sex.
Just prior to the issuance of the transgender letter on May, 22 senators, including Republican Dean Heller of Nevada, called for an eye-popping 28 percent OCR budget increase. Luckily, the uproar over transgendered bathrooms has stiffened some spines. The latest budget increase being proposed by the GOP Senate is only 3 percent. But you can bet if Democrats take control of the Senate this November, the sky will be the limit on any increase.
— John Fund is NRO’s national-affairs correspondent.