George Leef’s latest Pope Center commentary probes the potential illegality of a federal regulation targeting higher education.
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.”
