What If Federal Regulations for Colleges Are Themselves Illegal?

On April 4, 2011, the U.S. Department of Education’s Office for Civil Rights (OCR) sent a letter purporting to give college and university officials guidance in complying with the law. That isn’t unusual; regulatory agencies often issue statements meant to help people understand and obey laws they enforce.

But there was something extraordinary about that letter. It appears to have stepped way over the line between guiding people in understanding and obeying the law (which is all right) and making up new law (which is beyond the legal authority of regulators).

The substance of this “Dear Colleague” letter concerned the OCR’s desire to see colleges and universities become more aggressive in investigating and prosecuting cases where a student was accused of sexual assault or harassment. Title IX of the Educational Amendments of 1972 prohibits schools from discriminating on the basis of sex. For no clear reason, OCR officials decided that complying with Title IX requires colleges to (among other things) adopt a “preponderance of the evidence” standard when they adjudicate cases of sexual assault or harassment.

Traditionally, colleges have used the more demanding “clear and convincing” standard in disciplinary cases. Many influential critics blasted the “guidance” on the grounds that the lower “preponderance of the evidence” standard undermines due process of law for accused students. Under that standard, a student must be found guilty if it seems only slightly more likely that the student committed an offense than not—a weak basis for expulsion or other penalties. 

Among other strong criticism, 28 faculty members at Harvard Law School wrote an open letter in which they argued that the OCR rules are at variance with the principles of law they teach. 

But the way the “guidance” undermines justice wasn’t the only problem critics noticed. 

The federal Administrative Procedure Act (APA) requires agencies, including the Department of Education, to give public notice of proposed new rules if they make a substantive change in the law, then allow time for interested parties to offer comments at public hearings. That was not done in this instance.

Even though the OCR said in a footnote that it had not added anything new to the applicable law, but merely “interpreted” it, many legislators and legal scholars saw things differently. Harvard Law professor Jacob Gersen, for example, wrote in a recent Wall Street Journal op-ed that the letter “contains obligations that exist nowhere else in federal law.”

One legislator who noticed the OCR’s failure to comply with the APA is Oklahoma Senator James Lankford. In this January 7 letter to Acting Secretary of Education John King, the senator pointed out that the “Dear Colleague” letter advances “substantive and binding regulatory policies that are effectively regulations” and therefore “should have been promulgated subject to notice-and-comment procedures. He then asked for a legal justification to explain why the Department ignored the APA.

Referring to the change in the evidentiary standard, Senator Lankford wrote that, far from being compelled by existing law, it “merely reflects a preferred OCR convention.” Instead of clarifying the law, he states that OCR intends to “alter the regulatory and legal landscape in fundamental ways.”

Lankford thus issued a serious challenge to the legality of this “guidance.”  How did the OCR reply?

In a February 17 letter to Senator Lankford, the Education Department’s assistant secretary for civil rights, Catherine Lhamon argued that there wasn’t really anything to complain about because the Department “does not view such guidance to have the force and effect of law.”

The trouble with that claim is that it ignores contrary evidence that Senator Lankford had presented. At Tufts University, for example, the Department threatened to terminate federal funding for the school after officials failed to comply with OCR’s concerns over the way it handled sexual assault and harassment complaints. 

Commenting on the Tufts case, Terry Hartle of the American Council on Education was quoted in this Inside Higher Ed story, “Many universities that have found themselves in conflict with OCR believe that this agency does not act in good faith and that it’s little more than a bully with enforcement powers.”

Despite Lhamon’s denial, it is evident that college officials fear to treat the “guidance” as anything but a mandate that they ignore at their peril.

Her attempted defense of the (supposedly non-binding) preponderance of the evidence standard was just as flimsy. Lhamon argued that because courts use that standard in civil litigation involving a college, the same standard should apply when colleges handle cases of sexual assault or harassment.

Competitive Enterprise Institute (CEI) attorney Hans Bader, who formerly worked for the OCR, found that argument to be merely an evasion of Senator Lankford’s point. In this CEI piece, Bader points out that there is an obvious difference between the way a college’s conduct is judged in civil litigation (over a contract dispute, perhaps), and the burden of proof that should apply to a college’s students in disciplinary proceedings that don’t take place in a court.

“A student’s misconduct is generally not attributable to the school, especially since students are not agents of the school,” Bader explained, driving home the point that Lhamon has confused two completely different legal concepts.

Following receipt of Lhamon’s letter, a spokeman for the Senator quoted in this Chronicle of Higher Education article stated that it “raises further concerns for Senator Lankford and he is now contemplating several measures to continue this oversight.”

In short, rather than answering the criticisms, the OCR’s evasive response merely kicked the can down the road. 

Congressional oversight of administrative agencies like OCR that go beyond their proper boundaries–making the laws they want and enforcing them through costly investigations and threats to withhold funds—is badly needed. Unfortunately, recent history gives us no reason for optimism that OCR will be brought to heel through the budget process. Last year, Congress actually increased funding for OCR (although by less than Obama wanted).

Another way of exerting discipline against an agency that fails to observe the APA’s requirements is for affected parties to sue. 

Addressing this specific controversy, FIRE attorney Ari Cohn writes, “So what happens if an agency promulgates a substantive rule without adhering to the proper notice-and-comment procedures? If proper procedures are not followed, the regulation is without the force of law, and will typically be invalidated and set aside by a court.”

The problem is that few colleges want to get into an extremely expensive legal battle with the federal government. It would be a great public service if a very wealthy institution like Harvard were to devote some of its resources to a precedent-setting case against the rogue OCR, but so far that hasn’t happened.

Again quoting Professor Gersen, “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 sue the government for acting unlawfully.”

Besides, a loss in court wouldn’t prevent OCR from issuing more “guidance” letters that rewrite the law in the future.

In sum, we’ve created a serious problem by allowing federal bureaucrats to dictate education policies nationwide, K-12 through college. Many rules that appeal to ideologically zealous regulators would never be adopted by school and college officials who are in the best position to weigh costs versus benefits.

The only true solution is to abolish the Department of Education and leave education where it belongs under the Tenth Amendment: to the states or the people.