In a weekend opinion piece for the The Wall Street Journal, Harvard Law School professor Jacob Gersen criticized the federal government for enforcing its Title IX “guidance” as law.
Since the Department of Education’s Office for Civil Rights’ (OCR’s) 2011 “Dear Colleague” letter, which threatened non-complying colleges and universities with loss of federal funding, FIRE has repeatedly warned that the guidance was being enforced as law. As Gersen points out, the guidelines were published by OCR as a “general policy statement,” meant to be merely advisory and, thus, not subject to the notice-and-comment procedures required by the Administrative Procedure Act. Gersen argues OCR’s repeated assurances that such a statement was indeed nonbinding, but then enforcing it, amounts to procedural loophole jumping:
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.
Gersen also echoes FIRE’s concerns that the guidance all but requires that schools dispense with due process, telling them to investigate sexual assault claims using a much lower standard of proof than would be required in a criminal court (“a fraction of a percent more likely to be true than false”) and without even minimal judicial protections for the accused, such as the right to hire counsel, to hear evidence against them, and to cross-examine their accuser.
As FIRE has reported, OCR’s subsequent widespread and aggressive investigations into colleges and universities for Title IX violations support the proposition that OCR is enforcing its guidance as if it has the power of law.
Gersen explains why this kind of enforcement is not just problematic, but illegal:
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.
Torch readers should head over to The Wall Street Journal’s website to read Gersen’s piece in full.