Washington Monthly - September/October 2015 - 73

Many of the DRS's staff-including its longtime career chief, John Wodatch-had experience working at the OCR. But they never allowed the work of the DRS to be dominated by individual, adversarial complaint processing. Rather, from the beginning the DRS focused on policy, training, and technical assistance to translate the broad and revolutionary promises of the ADA into digestible and achievable directives for implementation. Through extensive letter writing, presentations to industry groups, and a continuously updated technical assistance manual, the DRS let regulated entities know both what the new statute required and, crucially, what it did not require. And the communication was not one way. Rather, the DRS's directives were informed by extensive input from disability rights advocates and the regulated entities. Led by Wodatch, who had worked in the executive branch since the Nixon administration, and whose frequent off-therecord conversations with his extensive Rolodex of contacts in Washington and around the country was legendary, if (plausibly) denied-the DRS made sure to understand the legitimate interests of those it was regulating and to accommodate those interests when possible. Sometimes that meant requiring less, or going slower, than advocates urged. And that approach hardly avoided all fights over the ADA's requirements. But Wodatch and his staff had built up so much credibility on all sides of these fights that most knowledgeable observers, most of the time, regarded their compromises as Solomonic. The DRS's approach led to widespread voluntary compliance, particularly among large businesses and organizations. And when some businesses inevitably resisted the DRS's directives, those businesses became isolated and highly vulnerable to litigation brought by the Department of Justice or private parties. The results, twenty-five years after the ADA's enactment, have in fact been revolutionary. The OCR's history and orientation stacked the deck against its following the DRS's successful path. How might the OCR fix the problem now? The agency needs to make clear, in its guidance documents, in the public statements of its leaders, and in ongoing technical assistance conversations with school administrators, that merely making students uncomfortable does not constitute unlawful harassment, that complaints such as the one filed against Laura Kipnis can be resolved quickly and without an "inquisition," and that the "balanced and fair process" required by its sexual violence guidance demands that the respondent receive procedural protections as well as the complainant. Doing so will empower those university constituencies that fight risk aversion and defend the academic values of robust, often uncomfortable inquiry. And it will help to protect the viability and legitimacy of the important effort to promote safety and equal opportunity on campus. Samuel R. Bagenstos, the Frank G. Millard Professor of Law at the University of Michigan Law School, served as principal deputy assistant attorney general for civil rights from 2010 to 2011, and as a career attorney in the Civil Rights Division of the Department of Justice from 1994 to 1997. With 28 undergraduate and 4 graduate programs of study, ECSU offers degrees in aviation and natural sciences, business and economics, teaching and administration, visual and performing arts, mathematics and computer science, social and behavioral sciences and other select professional and pre-professional areas. for the third consecutive year in Washington Monthly's College Issue (2012, 2013, and 2014) As a constituent institution of the University of North Carolina System, ECSU is the most affordable academic success university in North Carolina. Our intimate class sizes afford our student body a small, yet challenging learning environment. We teach, train, and mold our students in an environment representative of today's global economy. by U.S. News and World Report's 2015 edition of Best Colleges in the publication's category of Top Public Schools (Regional Colleges in the South). 1704 Weeksville Road , Elizabeth City, North Carolina, 27909// 800.347.ECSU// 252.335.3305// www.ecsu.edu Washington Monthly 73 http://www.ecsu.edu http://www.ecsu.edu

Table of Contents for the Digital Edition of Washington Monthly - September/October 2015