Jake Goldberg & Fellow Students

Prepared for the Subcommittee on Labor, Health and Human Services, and Education, and Related Agencies
Department of Education

Dear Chairman Cochran, Vice Chairwoman Mikulski, Chairman Blunt and Ranking Member Murray:
I am writing on behalf of myself and my fellow students, whose names are listed below as a
pledge of support, to express our strong disapproval for Senator Gillibrand and her colleagues request for
$137.7 million in FY 2017 for the Office for Civil Rights of the U.S. Department of Education (OCR).
We believe that no further funding should be provided to this department until OCR revises its illegal and
immoral guidance to our colleges and universities.
Through its 2011 Dear Colleague letter (DCL), OCR has severely threatened students rights to
free speech and due process on our college campuses. DCL fails to explicitly differentiate offensive
speech from sexually harassing conduct. This was not always the case with OCR guidelines. In OCRs
2001 Guidance, acceptance of the Supreme Courts Davis v. Monroe delineation between free speech and
sexual harassment was unequivocally stated. In 2003, OCRs DCL once again clearly substantiated the
separation between offensive expression and sexual harassment. However, these protections were lost
with the issuance of the 2011 DCL, which lacked any substantial speech protective directives. This lack
of safeguarding free speech enabled OCRs 2013 Findings Letter with the University of Montana to
further jeopardize our rights. This document created a broad definition of sexual harassment by defining it
as unwelcome conduct of a sexual nature that does not have to be objectively offensive. Though
expressed as non-binding, this definition has still been widely adopted by our campuses all across the
country. By allowing vague and far-reaching restrictions on speech to be incorporated into sexual
harassment policies, DCLs directives have led to the deprivation of our constitutional and contractual
rights to free speech and expression.
Equally as important is the fact that the mandates set forth in the 2011 DCL have forced our
schools to enact policies which effectively deny us of our due process rights when we are accused of
violating sexual harassment policies and face disciplinary proceedings. By mandating a preponderance of
the evidence standard for vague and far-reaching sexual harassment codes, DCL promotes a standard of
evidence that is inconsistent with the severity of alleged conduct. Colleges and universities have
responded to the mandates of OCR by establishing biased procedures with no regard to due process
protections or a presumption of innocence. There is no reason that sexual harassment cannot be
adequately addressed and simultaneously provide all students involved with fair and balanced procedures.
We will never support codes that promote disciplinary proceedings with high risks of error, as
such flawed proceedings serve the interests of neither party involved. We will never support overly broad
definitions of threatening conduct, as such policies undermine those who truly suffer from deplorable acts
of sexual misconduct, and result in innocent people being accused of serious violations. OCRs guidance
does not offer more security for those who genuinely need it. Its guidance allows for the punishing of
those of us who hold thoughts and beliefs which others simply dont wish to hear. Its guidance promotes
biased, unfair procedures through illegal mandates that our schools are forced to adhere to. OCRs
guidance does nothing to protect our civil liberties; it destroys them.
Let us be clear. Today our voices number in the hundreds, next month they will be in the
thousands, and within a year we will number over a million. We will not go away; we will no longer be
silent; we will always be monitoring OCRs actions. We as students will no longer tolerate unelected,
unaccountable bureaucrats usurping our rights to free speech and due process. We will not stop speaking
out until our requests become our realities. Our generation has ideals and views that should rise to the
stars, yet OCRs actions leave us suffocating in the strict stripes of their red tape. For these reasons, we
ask that you withhold funding for the Office for Civil Rights of the U.S. Department of Education until
they change their guidelines to conform with constitutionally established principles of free speech and due
process. We appreciate your consideration of this request.
Sincerely,