In a major speech Thursday, Education Secretary Betsy DeVos indicated that the Education Department may withdraw some of the regulatory “dark matter” discussed by my colleague Wayne Crews, such as its April 4, 2011 “Dear Colleague” letter micromanaging college discipline in sexual harassment and assault cases.
Crews’ 2016 congressional testimony described how agencies violate the Administrative Procedure Act by issuing what he dubbed “dark matter”—binding rules that have never been codified, much less gone through the notice and comment process mandated by federal law. As examples, he gave the Obama Education Department’s 2011 Dear Colleague letter about sexual assault and harassment, and its October 26, 2010 letter about school bullying.
Secretary DeVos apparently agrees. She said that:
For too long, rather than engage the public on controversial issues, the Department’s Office for Civil Rights has issued letters from the desks of un-elected and un-accountable political appointees. …
Washington dictated that schools must use the lowest standard of proof. …
The era of “rule by letter” is over.
Through intimidation and coercion, the failed system has clearly pushed schools to overreach. With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today.
Her reference to “the lowest standard of proof” refers to a demand made by the Obama administration’s April 4, 2011 “Dear Colleague” letter. It demanded that colleges and schools use a “preponderance” standard rather than a “clear and convincing evidence” standard for one category of accusations: sexual harassment or assault. This demand is legally suspect, since colleges should be able to use either burden of proof if they choose.
A generation ago, most colleges used a “clear and convincing” evidence standard in student and faculty discipline cases, to safeguard due process. As James Picozzi noted in 1987 in the Yale Law Journal, “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.” (University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987)).
As a result of the 2011 Dear Colleague letter, Ivy League universities such as Cornell, Princeton, Yale, and Harvard Law School lowered the burden of proof in sexual harassment and assault cases. Although colleges stopped using the clear-and-convincing standard for harassment and assault allegations, many of them (such as Duke University, or the University of Virginia’s Honor System) still use a higher burden of proof for other types of allegations, such as vandalism, non-sexual assaults, or honor code violations
The Education Department’s April 4, 2011 “Dear Colleague” letter also urged colleges to restrict cross-examination in sexual harassment and assault cases. As its Office for Civil Rights (OCR) put it in that letter, “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.”
When schools take that advice, it can violate a student’s rights under a state’s Administrative Procedure Act (APA). Under some state APAs, students have a right to cross-examine their accuser, as courts have made clear in cases such as Arishi v. Washington State University, 385 P.3d 251 (Wash. App. 2016) and Liu v. Portland State University, 383 P.3d 294 (Or. App. 2016). The U.S. Supreme Court has called cross-examination the “greatest legal engine ever invented for the discovery of truth” in its decision in Lilly v. Virginia, 527 U.S. 116, 124 (1999).
The 2011 Dear Colleague Letter also ignored past Office for Civil Rights rulings by telling schools to regulate and investigate off-campus conduct. In its April 4, 2011 letter, the Office for Civil Rights told colleges they “have an obligation” to investigate even when an incident “occurred off school grounds.” This contradicted what OCR’s career staff told colleges in Title IX rulings during the Bush administration, when I worked there.
For example, OCR’s Dallas office noted that “a University does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity of the recipient.” See Oklahoma State University ruling, OCR Complaint No. 06-03-2054, at pg. 2 (June 10, 2004).
The Obama OCR’s position was at odds with court rulings saying Title IX does not require regulation of off-campus conduct, as I have noted in the past. For example, an appeals court rejected a lawsuit by a student over an off-campus sexual assault in Roe v. St. Louis University, 746 F.3d 874, 884 (8th Cir. 2014). Quoting the Supreme Court’s Davis decision, it noted that “The Supreme Court has made it clear, however, that to be liable [under] Title IX, a University must have had control over the situation in which the harassment or rape occurs,” which is not the case for an “off campus party.”
Since free-speech protections are stronger outside of school than within K-12 schools (see, e.g., Klein v. Smith (1986)), the Obama-era OCR’s pressure on schools to investigate what it labeled as verbal sexual “harassment” (such as vulgar speech) outside of school could give rise to constitutional lawsuits against a school. That pressure was thus at odds with the Supreme Court’s Davis decision, which said that Title IX liability does not require schools to do things that could give rise to “constitutional or statutory claims” against them.
This Obama administration demand for regulation of off-campus speech and conduct resulted in absurdities such as a Title IX investigation of Prof. Laura Kipnis for an essay published off campus in the Chronicle of Higher Education, “Sexual Paranoia Strikes Academe.” Hypersensitive students claimed the essay constituted “sexual harassment.” The students then accused Kipnis of “retaliation” when she took issue with their charges on Twitter. Only after an outcry from free speech advocates were charges dismissed months later.
As Secretary DeVos noted:
Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes.
Any perceived offense can become a full-blown Title IX investigation.
But if everything is harassment, then nothing is.
Punishing speech protected by the First Amendment trivializes actual harassment. It teaches students the wrong lesson about the importance of free speech in our democracy.
Harassment codes which trample speech rights derail the primary mission of a school to pursue truth.
The Obama administration helped fuel pressure for campus censorship through its demands that colleges adopt overly broad definitions of verbal “sexual harassment,” as I discussed in the Chronicle of Higher Education in 2013. The demands led to colleges adopting definitions of verbal “sexual harassment” broader than those struck down by federal courts as overly broad in First Amendment rulings such as DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008).
The “Dear Colleague” letter issued by the Obama-era Office for Civil Rights in 2011 also wrongly ignored past Education Department rulings in demanding that colleges not allow accused students to appeal findings of guilt unless they also allowed complainants to appeal not-guilty findings — a position that some civil liberties groups viewed as akin to double jeopardy.
Under the Clinton administration, OCR had conceded that a school need not let accusers challenge not-guilty verdicts, because it is the accused who “stands to be tried twice for the same allegation.” (Skidmore College, OCR Complaint No. 02-95-2136 (Feb. 12, 1996)).
This position was reaffirmed in the Bush Administration. Contrary to the Dear Colleague Letter, it noted that “there is no requirement under Title IX that a recipient provide a victim’s right of appeal,” (University of Cincinnati, OCR Complaint No. 15-05-2041 (Apr. 13, 2006)), “whereas an accused student’s appeal rights are a standard component of University disciplinary processes in order to assure that the student is afforded due process.” (Suffolk University Law School, OCR Complaint No. 01-05-2074 (Sept. 30, 2008)).
The Obama administration’s April 4, 2011 Dear Colleague letter completely failed to acknowledge its conflict with prior OCR practice. Thus, it acted arbitrarily and capriciously in violation of the Administrative Procedure Act by issuing guidance that “glosses over or swerves from prior precedents without discussion.” (Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1971)).
This violated the Education Department’s “duty to explain its departure from prior norms.” (Atchison, Topeka & Santa Fe Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973)).
“An agency’s failure to come to grips with conflicting precedent constitutes an inexcusable departure from the essential requirement of reasoned decision-making.” (Jicarilla Apache Nation v. U.S. Department of the Interior, 613 F.3d 1112, 1120 (D.C. Cir. 2010)).