Sometimes I think it would be fun to be a college lawyer. This isn’t one of those times.
Yesterday, college lawyers from across the country gathered in Philadelphia (welcome, folks!) for the annual meeting of the National Association of College and University Attorneys (NACUA). Of course, the Department of Education’s Office for Civil Rights’ (OCR’s) latest efforts to enforce Title IX in new, interesting, and legally dubious ways have been a hot topic of discussion, and OCR’s John K. DiPaolo was on hand to address the assembled attorneys.
And boy, it sounds like a heck of a talk, forcing Inside Higher Ed’s Doug Lederman to resort to deadpan comedy to truly capture the nature of the proceedings. Lederman begins with what might be the understatement of the year so far:
College lawyers are far from thrilled with how DiPaolo's employer—the U.S. Education Department’s Office for Civil Rights—is regulating colleges’ handling of sexual harassment of students...
Unfortunately, however, DiPaolo wasn’t there to make amends or walk back OCR’s disregard for freedom of speech and academic freedom. Granted, he only got to talk after several lawyers on the panel related some of what Lederman gently termed “highlights (or lowlights, depending on one’s perspective)” of OCR’s work the last few years. But when DiPaolo came out, it looks like he stole the show:
With those cautionary tales setting the stage for him, DiPaolo did his best to reassure the assembled lawyers that despite what they might have heard, OCR has not sought to alter federal sex harassment laws and policies in the Montana or other recent agreements. First of all, he said, the Montana letter described the settlement there as “a blueprint for other colleges, not the blueprint” -- a distinction unlikely to satisfy many of them.
Really? That’s OCR’s defense? I understand that DiPaolo’s job is to try to make the college lawyers believe that the lemons OCR has been hurling at them for the last few years are actually lemonade, but come on. “A blueprint, not the blueprint”? It’s a testament to the fortitude of these attorneys that DiPaolo wasn’t laughed out of the room.
More importantly, he continued, echoing a statement the agency made last month amid the post-Montana frenzy generated by civil liberties advocates, resolution agreements for individual campuses are specific to the issues and problems at those institutions, and apply only to those places. “No resolution agreement represents OCR policy,” he said. “Policies are what we issue in ‘Dear Colleague’ letters.”
If the letter and resolution agreement with the University of Montana doesn’t represent broad policymaking by OCR that applies far beyond the Montana case, why in the world does it say on page 1 that the “Agreement will serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault”? Does that sound like something that’s safe to ignore?
Here’s another gem:
Another college lawyer drew significant applause from his colleagues when he challenged DiPaolo to “commit” that if the Education Department seeks to make significant changes to Title IX in the future, it will do so through the normal (and more democratic) process of negotiated rule making rather than through more “Dear Colleague” letters. DiPaolo’s good-humored response: “I will take that as a suggestion, not merely a question, and take it under advisement.”
This casual dismissal of administrative law is frightening to hear from the federal government, however “good-humored” it may be. Since its passage in 1946, the Administrative Procedure Act has set forth a process for administrative rulemaking—including public notice and comment—that OCR blithely dismissed for its April 4, 2011, “Dear Colleague” letter and has completely ignored in its “blueprint.” Since college lawyers got neither notice of or a chance to comment on OCR’s latest moves on Title IX, you can see how they’d be miffed. How patronizing, then, is it for DiPaolo to say he will take the recommendation for OCR to actually follow legally required rulemaking procedures “under advisement?” Note to OCR: That’s not a suggestion. It’s the law.
But the pinnacle of this article, and the key to understanding why OCR has made such a hash of its regulations, has to be this segment:
And to the extent that college officials read the Montana agreement to say that OCR was altering the definition of sexual harassment to include things that were something less than “objectively offensive,” he insisted that the agency remains faithful to legislative language that defines sexual harassment or other misconduct under Title IX as something that “limits or denies a student's ability to benefit from their educational program.”
“Whether it's severe or pervasive or objectively offensive isn't really what matters,” he said. “The Title IX standard is that there has been unwelcome sexual conduct that is sufficiently serious that it limits or denies the student’s ability to benefit from the educational program.”
The audacity of an OCR attorney telling a roomful of college and university attorneys that legal standards don’t matter is breathtaking. Here you have it, plainly stated: To OCR, it doesn’t matter whether allegedly harassing conduct is severe, or whether it’s pervasive, or whether it’s even offensive to a reasonable person. Expression that is minor, isolated, or inoffensive to most people can be sexually harassing as long as it “limits” in some way a student's ability to benefit from the educational program. Considering that nearly anything you don’t like to hear can “limit” the benefit of your education in some possibly minuscule way, this is practically no limitation at all. If a class discussion about women in the military made you angry enough that you stopped paying attention, you have had the benefit of your education limited to some extent. Does that make it harassment? Under OCR’s definition, yes. As FIRE has been saying, such a standard makes practically every student a harasser and makes the idea of harassment into a joke, trivializing real harassment.
OCR is also ignoring the Supreme Court’s decision in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), which said that student-on-student harassment in the educational context is conduct that is targeted, discriminatory, and “so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit.” Severity, pervasiveness, and objective offensiveness might not matter to OCR bureaucrats, but it does to the Supreme Court. (Actually, OCR is not ignoring Davis so much as discounting and misquoting it.)
As for the claim that “the agency remains faithful to legislative language” about sexual harassment, I can only ask: What legislative language? Because it’s not Title IX, which reads in pertinent part: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance....” As far as we can determine, Congress has not given its imprimatur to legislation that would make reading The Canterbury Tales a punishable offense.
Again, I understand that DiPaolo was personally in a bad spot, having to defend the indefensible in front of a knowledgeable and skeptical audience. But my sympathy is limited—DiPaolo is OCR’s Deputy Assistant Secretary for Policy and presumably had plenty of input on developing this policy. OCR has made its bed; it’s only right that occasionally its key personnel be made to lie in it. Having heard DiPaolo’s “arguments” for OCR’s actions, it’s now up to college and university attorneys to decide whether they’ll buy what OCR is selling or finally begin to stand up and say “no” to the agency’s increasingly burdensome demands.