• About
  • Contact
  • Staff
  • Home
  • Essays
  • Forum
  • Podcasts
  • Book Reviews
  • Liberty Classics

February 14, 2020|affirmative action, Christopher Caldwell, Civil Rights Act of 1964, Donald Trump, Great Society, Identity Politics, Office for Civil Rights, Political Correctness, Richard Nixon, Ronald Reagan, The Age of Entitlement

Did the Civil Rights Constitution Distort American Politics?

by Christopher Caldwell|

Christopher Caldwell discusses his new book, The Age of Entitlement.

January 30, 2019|Dear Colleague Letter, Equal Protection Clause, Office for Civil Rights, Price Waterhouse v. Hopkins, Title IX, transgender rights, Whitaker By Whitaker v. Kenosha Unified School District

Regulating Identity

by R. Shep Melnick|

Image: elvis091/shutterstock.com
The regulatory attack on stereotyping has been extended to an assault on almost all conventional understandings of sex, sex differences, and sexuality.

May 18, 2015|Administrative Law, Dear Colleague Letter, FDA, Guidance Documents, Office for Civil Rights

Give Me Guidance

by Michael S. Greve|

Breaking in to opportunity as a business man climbing a broken brick wall in the shape of a glowing light keyhole with a red ladder as a concept of success and winning.

Breaking in to opportunity as a business man climbing a broken brick wall in the shape of a glowing light keyhole with a red ladder as a concept of success and winning.

This past week, the Food and Drug Administration formally withdrew 47 draft guidances. (I have no idea what they were about. If you’re sufficiently intrepid to pursue this, the Federal Register notice is here.) FDA’s step may or may not have to do with a May 7 letter from Senators Lamar Alexander (R-TN) and James Lankford (R-OK) to several federal departments and agencies (Department of Labor, Department of Education, HHS, EEOC) requesting information on the agencies’ use of guidance documents. The letter expresses concern that the agencies may be using guidance documents in ways that circumvent the notice and comment requirements of the Administrative Procedure Act.

Read More

April 29, 2015|Office for Civil Rights, Rape Culture, Sexual Assaults

Lawlessness at the Office for Civil Rights – and How to Address It

by Mike Rappaport|

One of the areas of alleged lawlessness by the Obama Administration has been the Office for Civil Rights of the Department of Education (OCR).  OCR has been pushing the agenda of a rape culture on college campuses.  OCR has used guidances and “Dear Colleague” letters to effectively impose a series of questionable practices on colleges, such as depriving the accused of fair procedures.

There are numerous problems with this agenda.  Some of them are substantive, such as the muddying of the definition of consent.  Some of them are procedural, such as depriving the accused of procedural rights.  But a third set of problems are legal.  The problem is that the rules that OCR is imposing are questionable as a matter of law and have not been tested in the courts.

This is hardly an accident.  The Office strategically imposes these standards through guidances because it knows that it is much more difficult for the guidances to be challenged in court ahead of time. 

Read More

October 15, 2014|Administrative Law, Civil Rights Act, Grover Norquist, Office for Civil Rights

Tyranny on the Margin

by Michael S. Greve|

Crisis Management

I’m grateful for the responses to my earlier Office for Civil Rights post, especially the comments that illustrate the corrupting consequences of “government by guidance.” As I suggested, and as many readers emphasized, the subject raises much larger questions about lawful government. Herewith a few more comments on how difficult this is—and a hopefully cheerful suggestion as to what could be done.

The trajectory from lofty, well-meant enactments (the Civil Rights Act, Title IX) to the scape-goating of students, teachers, and bandleaders is a straight line: statute to regulation to “interpretation/guidance” to “voluntary” compliance. But the incentives are lousy each step of the way. Congress would rather delegate than legislate; the agency would rather bully than write a rule; and the regulated entities would rather throw people overboard and kowtow or pay money than fight back. This happens everywhere; OCR is just an example. And, no: this isn’t about the Obama administration or particularly wayward bureaucrats. If it were, things could be fixed at the ballot box, or by courts. The grim, incentive-driven march of government by guidance isn’t.

Read More

October 7, 2014|Civil Rights Act, Dear Colleague Letter, Department of Education, Office for Civil Rights, Title VI

Prescription for a Banana Republic

by Michael S. Greve|

dept of ed

This past Friday, Boston College’s excellent Shep Melnick (interviewed on this site not long ago) gratuitously ruined my weekend by alerting me to the latest “Dear Colleague Letter” (“DCL”) from the Education Department’s Office for Civil Rights (“OCR”). The DCL “shares” OCR’s views on “resource compatibility” at the nation’s schools, district by district. Horrendous in its own right, the letter also prompts broader thoughts on “government by guidance”: it’s a prescription for a banana republic.

Read More

August 11, 2014|Administrative State, Civil Rights Act, Office for Civil Rights, Title IX

Rule by Edict: Shep Melnick on the Power of the Civil Rights State

by R. Shep Melnick|

This conversation with Shep Melnick looks into the enforcement practices of the Office for Civil Rights in the Department of Education, one of the most powerful and secretive agencies in the administrative state. This agency caught the attention of many in 2011 when Russlynn Ali, Assistant Secretary for Civil Rights, sent a “Dear Colleague” letter to colleges and universities lowering the standard of guilt in a sexual harassment or sexual violence proceeding from guilt beyond a reasonable doubt to preponderance of the evidence (i.e., it is more likely than not that sexual harassment or violence occurred). Topping it off was…

Read More

Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

Read More

The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

Read More

Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

Read More

James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

Read More

Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

Read More

Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

Read More

Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

Read More

America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

Read More

About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
  • Home
  • About
  • Staff
  • Contact
  • Archive

© 2021 Liberty Fund, Inc.

This site uses local and third-party cookies to analyze traffic. If you want to know more, click here.
By closing this banner or clicking any link in this page, you agree with this practice.Accept Read More
Privacy & Cookies Policy
Necessary Always Enabled

Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
Close