Last month, Georgia’s Forsyth School District entered into a voluntary resolution agreement with the Biden Department of Education’s Office for Civil Rights (OCR), concluding a federal investigation into its removal and review of eight sexually explicit library books. I covered the substance of this episode in Newsweek . Ultimately, the school district only prohibited one book which contained a graphic depiction of underage incest. But setting content aside, it’s worth focusing on the process by which Biden’s OCR transformed civil rights enforcement into a tool to coerce school districts to do whatever it wants without any remotely plausible pretext.

OCR’s investigation established as a fact that the school district reviewed the books exclusively on the basis of sexually explicit content. But it nonetheless said that by doing so, “a hostile environment may have arisen that the District needed to ameliorate.” There are clear statutory definitions for “hostile environment” under Titles VI and IX, which no reasonable person could possibly argue were met in this situation.

When it comes to a racially hostile environment, Title IV says that racial harassment perpetrated or permitted by the school must be “sufficiently severe, pervasive, or persistent so as to interfere with or limit an individual’s ability to participate in or benefit from a[n educational] program.” OCR must establish that (1) a hostile environment existed, (2) the district had actual knowledge of it, and (3) that it failed to respond to address it.

What evidence was there suggesting that reviewing books for sexually explicit material met the statutory definition for a hostile environment that the district knew about but didn’t address? One Asian student complained that there weren’t enough library books featuring Asian protagonists. And parents at a school board meeting where the books were discussed objected to critical race theory and diversity, equity, and inclusion. The notion that an alleged lacuna of fictional racial protagonists constitutes harassment so “severe, pervasive, or persistent” that it limits a child’s ability to participate in school has no basis in civil rights jurisprudence or reason. And the notion that parents objecting at a school board meeting to CRT/DEI creates a hostile racial environment that a school district must remedy is both facially absurd and poses a threat to parents’ first amendment rights.

When it comes to a sexually hostile environment, Title IX sets a higher bar. Harassment must be so “severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program.” The “objectively offensive” grounds by which students may have been denied equal access to school? One student complained that the book removal targeted LGBT authors. (For the record, only one of the eight books — the one featuring underage incest — depicted non-heterosexual explicit content.) Another said that the removals made the school climate feel harsher. Beyond these two comments, OCR “identified no other complaints from students, parents, staff, or others.”

Any reasonable person reading the resolution agreement must conclude that OCR unilaterally transformed the definitions of a racially or sexually hostile environment from those provided above into: “Somebody said something.”

Somebody saying something might be an adequate jumping-off point for an investigation. But investigations are supposed to be fact-finding missions. The only facts that OCR found undercut the allegations. Yet the investigation continued nonetheless, and the school district “voluntarily” settled by agreeing to conditions set by OCR. The district had little real choice; it’s not possible to legally challenge the basis of a civil rights investigation, only an adverse ruling. And adverse rulings are never reached because districts can’t tolerate the financial and public affairs cost.

The district promised to publicly insist that its decision to review books for sexually explicit content was not rooted in racial or sexual animus, and to post a commitment that its library book selection would proceed on the basis of providing “global perspectives” and promoting “diversity.”

Never mind that, as an excellent analysis of this episode by the Defense of Freedom Institute points out, the Department of Education is prohibited by law from influencing school library content. There is an administrative grey area — if not quite a black hole — at the center of civil rights enforcement in education. OCR never officially finds fault with districts, and districts officially “voluntarily” agree to do what OCR wants. Aside from substantively inventing a federal civil right to sexually explicit material at school, Biden’s OCR has procedurally declared: “If somebody says something, we can make you do anything.”

This article originally appeared in the AEIdeas blog and is reprinted with kind permission from the American Enterprise Institute.