How the Feds Use Title IX to Bully Universities Lowering the burden of proof for sex-assault cases isn’t required—but schools don’t dare challenge it. By Jacob E. Gersen
http://www.wsj.com/articles/how-the-feds-use-title-ix-to-bully-universities-1453669725
Mr. Gersen is a professor at Harvard Law School.
In the past several years politicians have lined up to condemn an epidemic of sexual assault on college campuses. But there is a genuine question of whether the Education Department has exceeded its legal authority in the way it has used Title IX to dictate colleges’ response to the serious problem of sexual assault.
When an administrative agency makes rules and regulations—which are a form of law every bit as binding as those passed by Congress—it must follow the requirements of the Administrative Procedure Act, the bible of the bureaucracy. The process most often used involves “notice and comment”: The agency must publish the proposed regulation and respond to comments before issuing the final rule. This can take months or years, and at the end of the process parties affected by the new rule can challenge it in court.
There’s a point to making the government jump through these hoops: By demanding transparency and facilitating public participation and judicial review, we can be more confident that the bureaucracy is up to good rather than ill.
The trick is that the Administrative Procedure Act contains an exception for nonbinding “general statements of policy.” If the agency isn’t announcing new requirements, but merely offering general guidelines or clarifying what the law already requires, then no procedures are needed. The government can simply post the new policy statement. But it really must be nonbinding; if an agency announces a policy it claims is nonbinding, but treats it as binding in the real world, courts will not allow its enforcement.
Which brings us back to colleges. In 2011 the Education Department’s Office for Civil Rights issued a “Dear Colleague” letter to explain what schools must do to comply with Title IX. On its own terms, this letter was one of those nonbinding documents. Yet it contains obligations that exist nowhere else in federal law. For example, in 2014 the office found that Harvard Law School violated Title IX because, among other things, it did not use a “preponderance of the evidence” standard in its disciplinary proceedings for allegations of sexual assault. Instead, it used a higher standard of “clear and convincing evidence.”
But the requirement that such proceedings follow the “preponderance” standard does not exist in the law. It was announced for the first time in the “Dear Colleague” letter. Regardless, in the end Harvard agreed to adopt the new standard and overhaul the way it handles sexual misconduct—as has every university facing investigation under Title IX. Although the letter is allegedly nonbinding, the Education Department has used it as leverage. College presidents, faced with an announcement that their school is being investigated, a potential loss of federal funds, and a public-relations nightmare of being seen as soft on sexual assault, have declined even to challenge the overreach, much less to sue the government for acting unlawfully.
With this method, the agency has achieved complete adherence to its desired policy, without that pesky and time-consuming public input and litigation. The regulated schools are not so insulated. Many now face lawsuits from students disciplined under the new procedures. Courts are taking these claims seriously. Not our fault, the Education Department might say. After all, that letter wasn’t legally binding.
This kind of policy-making process—or, rather, policy-making without process—is unlawful and wrong. The country ought to be embarrassed when officials who make law exempt themselves from legal requirements, as they too often do. The Fifth Circuit Court of Appeals concluded that President Obama’s immigration policies were likely issued without the right administrative process. Now that the Supreme Court has taken up the case, we will find out if the justices agree.
Americans often disagree about what policy is best, but they have long agreed on the legitimate procedures for making law. In education, immigration or any other field, administration in the shadows is no way to lead—and surely no way to be led.
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