A few weeks ago FIRE sounded the alarm on the Departments of Education and Justice’s "blueprint" for campus speech codes, which defines sexual harassment as "any unwelcome conduct of a sexual nature" (including "verbal conduct") and thus turns virtually every student and faculty member on campus into a harasser.
Since then, we’ve received many variations of the same question: Can the federal government do that? The short answer: Only if universities let them.
Strictly speaking, the resolution agreement that spells out everything the University of Montana (UMT) must do to satisfy the Department of Education’s (ED’s) Office for Civil Rights (OCR) is a settlement binding only on the parties involved. And OCR states on its website that findings letters sent to schools are not statements of policy and do not affect third parties. Nevertheless, in the UMT findings letter, OCR announced that it intends to impose the policy changes it has demanded from UMT on every other federally funded college and university. By labeling the letter and the agreement a "blueprint for colleges and universities throughout the country," OCR has sent an unmistakable warning to institutions: If your institution’s policies don’t track this analysis, you’re not in compliance with Title IX.
But under federal law, colleges and universities should remember that OCR has not taken the proper steps to obtain the authority to enforce its blueprint on any institution but UMT. Instead, OCR appears to be simply hoping that no school will risk its wrath by defying the agency—and, given its recent success in putting regulations into effect without following proper procedures, it has good reason to think this will work again. That’s why the "blueprint" is so threatening.
The federal Administrative Procedure Act (APA) dictates how federal agencies like the ED may exercise the authority granted to them under federal statutes and is designed to protect citizens by forcing agencies to abide by established procedures when implementing regulations. Here’s the gist: Congress delegates power to federal agencies to issue regulations that can have the force of law. If an agency wants to create a new regulation, it must go through a process of "notice and comment." 5 U.S.C. § 553. This is an elaborate process (as it should be) in which the agency publishes a draft rule in the Federal Register, solicits feedback from affected parties (generally for 30–180 days), and explains how it resolved the concerns raised by those comments. OCR went through this process when it issued its 2001 "Revised Sexual Harassment Guidance."
Apparently OCR these days doesn’t like to go through the notice and comment process, though.
OCR issued its 2011 "Dear Colleague" letter (DCL) that lowered the standard of proof in campus sexual misconduct cases to "preponderance of the evidence" without submitting this substantive new mandate to notice and comment—a decision that FIRE argued violated the APA and denied the public the right to participate to which it is statutorily entitled. And as FIRE learned when reviewing documents released by the agency in response to a Freedom of Information Act (FOIA) request by nonpartisan non-profit organization Cause of Action, OCR’s decision to evade the APA’s rulemaking requirements seems deliberate. When OCR was working on the 2011 DCL, one of its lawyers, Francisco Lopez—now deputy assistant general counsel for Educational Equity and Research—emailed his colleagues:
I do not know what our position should be on the type of clearance needed [for the DCL]. I know that for other Title IX guidance documents, we have put it out for public comment, though I don’t know why. The statute requires that regulations and rules be approved by the President, but I don’t think this type of guidance is necessarily a rule for that purpose, but it does suggest a higher level of scrutiny. This document is only supplements the 2001 guidance in a couple of areas, most notably the standard of proof. [Emphasis added.]
OCR is tipping its hand here on its reluctance to go through formal procedures. By law, OCR can either make a rule with the force of law that requires notice and comment, or it can make a policy statement or interpret an existing rule that doesn’t require public involvement because it does not impose new obligations or requirements. Simply deeming a new rule an "interpretation" doesn’t cut it, either. As the United States Court of Appeals for the D.C. Circuit has pointed out, "an agency may not escape the notice and comment requirements … by labeling a major substantive legal addition to a rule a mere interpretation." Appalachian Power Co. v. EPA, 208 F.3d 1015, 1024 (D.C. Cir. 2000).
The 2011 DCL was a significant step away from providing notice and comment for substantive regulations. Now, with the Department of Justice lamentably in tow, OCR has taken this self-exemption from public input one step further by announcing that a findings letter directed to only one school, the University of Montana, should be considered as a "blueprint for colleges and universities throughout the country." OCR does not have the power to enforce this proclamation; to be legally binding, the "blueprint" would require notice and comment, because it announces new requirements for colleges and universities under Title IX and breaks with earlier agency interpretations. For anyone not affiliated with the University of Montana, the findings letter, despite its "blueprint" label, is technically a legal nullity.
But unfortunately, OCR’s blueprint more than compensates for what it lacks in legal authority with institutional fear. Vested with the power to enforce Title IX, OCR has the ability to launch costly, time-consuming investigations that exact a heavy financial and reputational cost, or even initiate official enforcement actions that include loss of federal funding. Colleges and universities know this all too well. When OCR says jump—even if only to one institution—the message is heard loud and clear nationwide. FIRE has already heard from administrators who are reviewing the blueprint to make policy changes to inoculate their schools from investigation or sanction.
Colleges and universities should publicly identify OCR’s "blueprint" for what it is: de facto rulemaking, an attempt to force institutions to comply with a new conception of "sexual harassment" without going through the hassle of notice and comment. In other words, colleges and universities should call OCR’s bluff. This is not a trivial thing to do, certainly, given the amount of federal funding at stake. But if enough schools refuse to be intimidated, OCR’s attack on campus free speech nationwide will ultimately fail. In order for this to happen, the higher education community would need to find the courage to say that the emperor has no clothes. One of the many depressing things about this episode is that OCR seems to be counting on colleges and universities to roll over—and the historical evidence suggests that they will.
The reality, though, is that OCR can’t launch enforcement actions against every college in the country. It is relying on universities voluntarily making changes to their Title IX policies to avoid trouble with OCR. FIRE recognizes that OCR has the power to cut off a school’s federal funding to those who don’t play ball (assuming the agency can make these rules stick in court, which we doubt). But, as the D.C. Circuit made clear in Appalachian Power, a "more expansive reading of the rule, unveiled in the Guidance, cannot stand." (p. 1028). OCR is bluffing—effectively bluffing, but bluffing nonetheless—and both the agency and the colleges it regulates need to be aware of that.
Colleges and universities should remember that, except for the University of Montana, the "blueprint" is not binding. FIRE calls on schools to push back.