Can a federal agency find you in violation of the law, not for actions that violate a statute, but for failing to parrot the agency’s controversial views about how the statute should be applied in hypothetical situations?
Recently, the Education Department did just that. Its Office for Civil Rights, where I used to work, found Harvard Law School to be in violation of Title IX not just in the past, but in the present – for its failure to recite at length OCR officials’ views about the optimal handling of Title IX claims. Ironically, these views were expressed in “guidance” from agency officials that had expressly claimed to “not add requirements to applicable law.” This guidance was found not in the text of the statute, or even anything in the Code of Federal Regulations, but rather in a 2011 “Dear Colleague” letter and a 2014 “Questions and Answers” document authored by OCR officials. (That guidance, which was criticized by civil libertarians, “supplements” and effectively rewrites the Clinton Administration’s uncodified January 2001 “Revised Sexual Harassment Guidance.” It also contradicts the Supreme Court’s 1999 Davis decision, such as its requirement that harassment must be both “severe and pervasive” to violate Title IX).
This is an egregious violation of the Administrative Procedure Act. But Harvard has acquiesced in this finding, since the Office for Civil Rights has the power to cut off all of Harvard’s hundreds of millions of dollars in federal funds. Harvard has also entered into a settlement agreement agreeing to make all the changes demanded by the Education Department.
The Education Department declared Harvard in violation of Title IX not only for its old, due-process-friendly procedures for handling sexual harassment cases, but even for its new, pro-complainant procedures, which 28 Harvard Law faculty (including even a feminist former federal judge, two feminist legal scholars, and President Obama’s mentor Charles Ogletree) had denounced as being slanted against accused students, and hostile to fairness, due process, and transparency.
Although the new procedures were adopted precisely to appease the Education Department, OCR nevertheless found them in violation of Title IX, not for what they did, but what they failed to say: For failing to make assertions about sexual harassment made in OCR’s own sexual harassment guidance which are seldom found in any real-world sexual harassment policy, including about obscure procedural or jurisdictional matters that seemingly had nothing to do with any specific harassment case that actually occurred at Harvard Law School. (Title IX is much shorter and less complex than other civil rights laws, like Title VII of the Civil Rights Act, but employers routinely win sexual harassment lawsuits under Title VII despite having a sexual harassment policy that runs only a few sentences, and recites none of the assertions that OCR faulted Harvard for not reciting).
OCR’s bureaucratic overreaching based on its uncodified, unvetted agency rules also illustrates how hard it is to calculate the overall cost of regulations. Many such regulations fly below the radar. Before an agency imposes new obligations on regulated entities, it is supposed to include them in a proposed rule, provide an opportunity for notice and comment in the Federal Register, and then publish the final rule containing them in the Code of Federal Regulations. But agencies often don’t do so, instead imposing the obligations in obscure “guidance” letters, under the fiction that they are just restating the law – the fiction relied upon by the Education Department’s Office for Civil Rights in the “guidance” it enforced against Harvard.
The result is that a researcher combing the Code of Federal Regulations in an attempt to tally the overall cost of federal regulations is likely to entirely overlook many costly obligations imposed on businesses and other institutions by federal agencies outside the lawful rulemaking process. But woe be unto the person who ignores such illegal rulemaking. That person will be deemed to be in violation of federal law by power-hungry agency officials, for failure to comply with assertions contained in such illegally promulgated rules – or even, in Harvard’s case, for failure to publicly parrot those assertions.
If federal agencies like the NLRB cannot order institutions to post notices containing the requirements of actual federal laws (as the U.S. Court of Appeals for the Fourth Circuit ruled regarding federal labor law notices, see Chamber of Commerce v. NLRB, 721 F.3d 152 (4th Cir. 2013)), then it is hard to fathom how OCR could lawfully order a college like Harvard to parrot passages from its uncodified guidance and correspondence (especially given the absence of notice and comment rulemaking accompanying them).
But that is what OCR did. For example, it demanded that the university add “supplemental guidance” to its already lengthy “University-wide Title IX Policy and Procedures” to trumpet its “obligation to address incidents of sexual harassment it . . . should know about, even when a complaint or report is not filed” by any student. It also required Harvard to include “[a] statement that mediation will not be used in sexual assault and sexual violence cases” and that “students who report sexual harassment will not be required to resolve the problem directly with the alleged harasser.” And required it to declare that “the University has an obligation to consider the effects of off-campus conduct when evaluating whether there is a hostile environment” on campus. See December 30, 2014 Letter of Findings re: Complaint No. 01-11-2002, Harvard Law School, at pp. 14-15.
OCR did this even though nothing in the University’s policies actually contradicted these tenets; it had merely, in some cases, failed to explicitly state them. See, e.g., Letter of Findings at pg. 11 (“the former Sexual Harassment Policy did not expressly state that mediation must not be used to resolve complaints of sexual assaults and violence complaints.”)
OCR also went even further, making up at least one new requirement out of thin air. It demanded that the university prevent any individual school within the University from reviewing disciplinary sanctions imposed by the University’s Title IX adjudicators against its students, by requiring that Harvard add to its sexual harassment policy “Language clarifying that no School or unit-based policy, procedure or process can reverse or alter a factual finding, remedy, or other decision made through the University’s Title IX Policy and Procedures.” See Letter of Findings at pg. 14.
This demand was wholly absent from OCR’s prior guidance, but rather likely a slap at Harvard Law faculty who had complained that under Harvard’s new sexual harassment policy, the “provision purporting to leave the schools with decision-making authority over discipline is negated by the university’s insistence that its Title IX compliance office’s report be totally binding with respect to fact findings and violation decisions.”
Even OCR’s other requirements were not found in any regulation or statutory provision, and in some cases, were explicitly stated for the first time only in OCR’s April 29, 2014 “guidance” and its accompanying outline for students. And that guidance explicitly stated that it was not binding law, declaring that “This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how OCR evaluates whether covered entities are complying with their legal obligations.” See Questions and Answers on Title IX and Sexual Violence, pg. 1, footnote 1.
In addition, the Education Department wrongly found Harvard Law’s former policy in violation of Title IX for using the traditional clear-and-convincing standard for “formal discipline,” rather than a lesser “preponderance” standard (an issue that was moot, since Harvard Law School had already adopted the preponderance standard in July 2014 under pressure from OCR).
In its April 4, 2011 “Dear Colleague” letter, the Education Department had banned the clear-and-convincing standard in sexual harassment cases. This ban is clearly wrong, since Title IX merely requires schools to respond to harassment in ways that are not “clearly unreasonable,” and there is nothing unreasonable at all about using a traditional standard of proof like the clear-and-convincing evidence standard. As a Yale Law Journal article once observed, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (See University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987)).
That 2011 Dear Colleague letter purported to merely restate applicable law, declaring in footnote 1 that “this letter does not add requirements to applicable law, but provides information and examples to inform recipients about how OCR evaluates whether covered entities are complying with their legal obligations.” See Dear Colleague Letter: Sexual Violence Background, Summary, and Fast Facts (April 4, 2011), at pg. 1 fn. 1.
That claim was very disingenuous. As the civil liberties group Foundation for Individual Rights in Education notes, “in issuing its 2011 Dear Colleague letter, OCR effectively enacted new, substantive, binding rules without subjecting those rules to public notice and comment as required by the Administrative Procedure Act. As FIRE has argued, those rules should therefore be considered invalid.” Similarly, law professors such as Cornell’s Cynthia Bowman, a professor of feminist jurisprudence, noted that the “Dear Colleague” letter could not be a valid “administrative regulation,” since it “has not been subjected to notice and comment, and thus does not have the status of law.”
Putting aside its administrative overreaching, the Education Department’s demands on Harvard also raise serious due process (and potentially free speech) problems. As Professor K.C. Johnson notes, “As has occurred in previous settlements with SUNY and SMU, OCR also inserted an ex post facto review of cases from the past two academic years, ordering the law school to reinvestigate sexual assault [and harassment] claims (under the new, lower threshold) and to provide ‘any additional remedies necessary.’ Will previously acquitted students now be branded rapists?”
Moreover, Section VII.A. of the Resolution Agreement hints that interim measures (measures against accused students who may later be absolved) must be imposed in not just in sexual assault cases but also in sexual harassment cases in general (which could include complaints based on things like offensive speech or requests for a date). As a result, classroom speech deemed harassing by a complainant based on its viewpoint might now give rise to interim measures like removal from class pending a disciplinary hearing, despite the serious First Amendment problems that would entail. This is problematic, because the First Amendment generally prohibits viewpoint-based speech restrictions in the university setting (as the Supreme Court made clear in its Rosenberger decision), campus speech codes modeled on ordinary workplace harassment rules have accordingly been struck down by the courts [see, e.g., Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995); DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008); UWM Post, Inc. v. Board of Regents, 774 F.Supp. 1163 (E.D. Wis. 1991)], and the First Amendment requires the dismissal of harassment lawsuits based on constitutionally-protected speech [See Rodriguez v. Maricopa Community College, 605 F.3d 703 (9th Cir.2010)]. Even outside the context of speech, constitutional due process protections forbid the imposition of even temporary measures against someone absent some quantum of evidence. [See Tyree v. Evans, 728 A.2d 101 (D.C. 1999); Connecticut v. Doehr, 501 U.S. 1 (1991)]. We previously discussed the constitutional problems created by OCR’s overly broad demands for “interim measures” here and here.
While Harvard is a private college, the government cannot force a private institution to regulate speech that is protected by the First Amendment against government interference [see Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991)], nor can it force a private institution to punish someone without due process. [See Merritt v. Mackey (1987)]. Moreover, punishment for (or restrictions on) speech prior to a finding of guilt runs afoul of First Amendment rules such as the rule against prior restraints. [See Vance v. Universal Amusement Co. (1980)].
The Education Department’s claim that Harvard violated Title IX by not reciting elements of OCR’s harassment guidance ad nauseam is not consistent with its prior findings of violation at other colleges, which did not suggest that colleges have a duty to parrot OCR’s guidance, as opposed to simply following it (i.e., investigating and punishing harassment in accordance with OCR’s guidance) and providing basic notice of their harassment policy (such as prohibiting harassment and designating a Title IX coordinator). OCR’s deviation from its past practice seems to be designed to punish Harvard Law School’s faculty for raising civil-liberties objections to Harvard’s new, pro-complainant policy, and for criticizing OCR. The 28 faculty had criticized OCR by lamenting the fact that “Harvard apparently decided simply to defer to the demands of certain federal administrative officials,” at the expense of being “consistent with law and with the needs of our students and the larger university community.”
As Professor Johnson noted:
A considerable portion of the resolution agreement … amounted to little more than OCR lashing out at the Harvard Law professors, and reminding the law faculty who now has the power in campus due process debates. The resolution deemed Harvard’s current, extremely due process-unfriendly, sexual assault policy in violation of Title IX. But it did so not for any meaningful substantive reason. Instead, OCR seemed not to like what Harvard officially said about its provisions.
If OCR thus retaliated against a university for its faculty’s criticism of OCR, that could violate the First Amendment, even if OCR never imposes any monetary sanctions against the university. Non-criminal, non-monetary sanctions, such as governmental reprimands for alleged violations, can still violate the First Amendment. [See Columbus Education Association v. Columbus Board of Education, 623 F.2d 1155 (6th Cir. 1980); Little v. N. Miami, 805 F.2d 962 (11th Cir. 1986)].
