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Sunday, May 04, 2014

Why the Obama Administration Should Not Rule Schools and Universities by Decree

The Obama Administration is currently fighting two ferociously contentious educational battles with states and universities -- the Title IX fight over procedural standards in universities' sexual misconduct hearings and the curriculum and teacher evaluation standards for waiver of No Child Left Behind (NCLB) program. In both fights, the Administration's weapon of choice is the guidance document -- a set of criteria that have never been tempered with the crucible of notice and comment ordinarily required of "legislative rules." With Title IX and campus sexual abuses, the Department of Education has announced in a report not subject to notice and comment that the nation's universities all shall henceforth deny the right of cross-examination to students accused of sexual abuses. With NCLB waivers, the Administration has announced four "principles for improving student academic achievement and increasing the quality of instruction" in a 2011 letter and accompanying 27-page memo. The Administration is not kidding in enforcing these policies: They have suspended Washington State's waiver from NCLB because the state has rejected the Administration's call for basing teacher evaluations on student test scores, and they are investigating 55 colleges and universities for not complying with DOE's guidance.

In my view, governing by opaque and unilateral decrees in this manner is not just a crime but a blunder. By refusing to respond to critics in a public setting with substantial evidence in any administrative record, the Administration actually is undermining the very policies that it seeks to advance. This is a shame, because the Administration is taking stances that could win conservative support: They are fighting teachers' unions on the use of test scores in teacher evaluation, and they are reducing procedural safeguards to protect victims and campus law and order. These are rightly controversial but defensible (and traditionally conservative) political stances. (As I have noted in an earlier post, I am inclined to agree with their views on the due process issue). So why not defend them, responding to critics with reasons and evidence, rather than merely announce them?

Below the jump, I suggest how the friends of the Obama Administration can use administrative law to save the Department of Education from itself, by forcing DOE to give reasons and respond to critics.


1. Can the Obama Administration be forced to use notice-and-comment rule-making for educational policy? At least with waivers of the NCLB, one might argue that, because the NCLB's waiver provision contains no reviewable criteria, no policy setting forth the criteria for waivers can fall within the exception from notice-and-comment procedures for "interpretive rules" contained in APA section 553(b)(3)(a).

The Obama Administration seems to have conceded that the NCLB lacks any reviewable criteria for waivers: That is how the Administration successfully argued, back in 2006, that its denying a waiver to Connecticut was committed to agency discretion and, therefore, not reviewable under APA section 706. Using Judge Posner's reasoning in Hoctor v. USDA, one might defend a disjunctive principle for reason-giving: Either the statute itself contains criteria sufficient to support judicial review of an agency action, or the agency guidance that carries out the statute must be subject to notice-and-comment process: A "guidance" cannot be regarded as an interpretative rule, after all, when the statute provides nothing for the agency to interpret.

2. Why require reason-giving for federal policies affecting education? Educational policy tends be hotly contested policy. Just consider the two policies at stake here: It would be difficult to imagine rules better calculated to raise hackles than the demands that teachers must be judged by their students' test scores or that students accused of rape be denied the right to confront their accusers. When the federal government imposes uniform rules on the nation for such matters, it will predictably ignite an inferno of controversy. At the very least, it ought to give the sides of such bitter disputes an opportunity to be heard in a public setting.

Using notice-and-comment process is not, however, merely politically fair but also politically canny. The fruits of such rule-making are harder to reverse under State Farm, and the opponents of the policy can be mollified by the chance to have their day in the Federal Register and, eventually, court.

Indeed, here the Obama Administration can use notice and comment process to show that it has Republican allies. Arne Duncan's criteria for approving waivers follow a traditional Republican script of demanding accountability from teachers for their students' performance. Why ram such a policy down conservative throats when one can co-opt sympathetic conservatives into submitting favorable comments? The same goes for university hearing procedures: It is not as if conservatives are all lined up behind greater procedural protections for persons alleged to have committed felonies. Building an administrative record showing a diversity of interest groups backing one's policy is a good way to signal to the courts and the public more generally that one is not taking a purely partisan stance

Instead, the Obama Administration has achieved the remarkable feat of uniting Left and Right by ramming policies traditionally favored by the former down everyone's throats with peremptory processes. The GOP is now, in the name of federalism, denouncing educational rules (e..g, the Common Core standards, outcome-based evaluations of teachers) that it not only favored but previously championed. Diane Ravitch, the teachers' union's champion sings paens of praise to Lamar Alexander, begging him to "[r]estore federalism" and "[s]top the assault on state and local control of education."

When an agency's playing the heavy turns out to be such lousy politics, one might hope that the agency might pause to ask whether their methods are good administrative law.

Posted by Rick Hills on May 4, 2014 at 11:07 AM | Permalink

Comments

The Obama Administration's pressure on colleges not to allow cross-examination doesn't just violate the APA (because it is contained in "guidance" documents issued without any notice and comment, yet imposes new legal duties not found in Title IX caselaw). It also violates the canon of constitutional doubts, under which agencies should not interpret statutes in ways that raise even POTENTIAL constitutional problems. That canon requires the invalidation of even otherwise valid agency rules that WERE adopted through notice and comment.

Banning cross-examination raises serious constitutional issues, because several judges have ruled that due process requires that the accused student be allowed to cross-examine the accuser when the case boils down to a credibility contest. See, e.g., Donohue v. Baker, 976 F.Supp. 136 (N.D.N.Y. 1997) (cross-examination required in sexual-assault case) ("if a case is essentially one of credibility, the 'cross-examination of witnesses might [be] essential to a fair hearing'")

The courts must not defer to an agency’s interpretation, even when it was adopted through notice and comment and would otherwise be entitled to Chevron deference, when the agency’s position would raise potential constitutional problems. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) ("where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress"; rejecting agency interpretation of statute and refusing to apply Chevron); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979) (Court would decline to construe an act of Congress "in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religious Clauses").

In any event, the Education Department April 4, 2011 "Dear Colleague" letter discouraging cross-examination, was, by its very nature, not entitled to binding force — that is, Chevron deference. See, e.g., Christensen v. Harris County, 529 U.S. 576, 587 (2000); Grimes v. Sobol, 832 F.Supp. 704, 712 n.13 (S.D.N.Y. 1993) (unlike regulatory interpretations "embodied in the form of a formal adjudication or rulemaking," an Education Department 'letter' interpreting Title IX’s sister statute, Title VI, was not entitled to Chevron deference)

As Cornell law professor Cynthia Bowman has noted, the April 4, 2011 Dear Colleague letter’s position regarding the burden of proof in campus disciplinary proceedings is not binding, and cannot legally impose legal obligations on colleges, because it is "not an administrative regulation, has not been subjected to notice and comment, and thus does not have the status of law." See Michael Linhorst, Rights Advocates Spar Over Policy On Sexual Assault, Cornell Sun, April 4, 2012, at 1.

The recent White House Task Force on campus sexual assault ratchets up the assault on cross-examination. The Education Department earlier guidance just "strongly discourages a school from allowing the parties to personally question or cross-examine each other during a hearing on alleged sexual violence," without categorically forbidding it. By contrast,the White House Task Force Report states flatly that under "this new guidance" from the Education Department, "the parties should not be allowed to personally cross-examine each other." (Pg. 19).

These attacks by the administration ignore the reality that the Supreme Court has characterized cross-examination as the "greatest legal engine ever invented for the discovery of truth." (Lilly v. Virginia, 527 U.S. 116, 124 (1999)). They also ignore the fact that cross-examination is invariably allowed in court (showing that it is not at odds with civil-rights precedents), and often used to defeat racial and sexual harassment claims, in court. See, e.g., Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001) (using deposition testimony of harassment plaintiff about the limited impact of the alleged harassment on him to obtain summary judgment against plaintiff).

Posted by: Hans Bader | May 5, 2014 10:07:58 AM

These are all correct and thoughtful observations, Hans. Three further thoughts:

1. Insofar as private universities are concerned, might there be a defense of "no state action" to objections that the private universities' policies on cross-examination deprive students of due process?

2. If the "state action" is supplied by the federal threat to terminate grants, then should conditions on funds be treated differently than regulations, a la Rust v. Sullivan?

3. Finally -- and most importantly -- if (1) and (2) are difficult questions of constitutional law, then would it be wise for either a court or an administrator to invoke the canon of constitutional avoidance, thereby refraining from adopting a constitutionally controversial interpretation of Title IX that nevertheless was not plainly unconstitutional?

On this third question, I confess that I tend to favor the narrow interpretation of the avoidance canon, reserving it for cases in which a particular interpretation of a statute would undoubtedly be unconstitutional under clearly established law. As many commentators have noted, the "lite" version of the canon, used to construe statutes narrowly where there is a "serious" constitutional question, can over-enforce the Constitution while shortchanging genuine constitutional analysis. NLRB v Catholic Bishop, 440 U.S. 490 (1979) is the best example of the wost use of the canon, in which the Court invokes the "serious" constitutional question without ever explaining precisely what that question is and adopting a narrow view of the Wagner Act in conflict with the plain text that, it turned out in light of Employment Div. v. Smith, 494 U.S. 872 (1990), was not actually constitutionally required.

Avoidance "lite," in other words, can be used to avoid not only unconstitutionality but also avoid constitutional analysis itself, while distorting the meaning of statutes.

But your comment provides all the more reason for the Obama Administration to put its guidance out for public comment, where you and others would undoubtedly raise these constitutional questions that would require a thorough response in the DOE's Basis and Purpose for the final rule. That they took such controversial and plausibly unconstitutional positions in a mere Guidance strongly suggests that they are trying to bury the constitutional questions, not answer them or avoid them. I take this approach to be the absolute worst of all possible approaches -- and the most egregiously irresponsible.

Posted by: Rick Hills | May 5, 2014 10:33:33 AM

As Professor Hills earlier noted, it does not violate the Constitution for a college to VOLUNTARILY use the "preponderance-of-the-evidence" standard, rather than the higher "clear and convincing evidence" standard, for student and faculty discipline.

But ORDERING schools to reduce the burden of proof to the preponderance standard from the traditional clear-and-convincing standard was nevertheless beyond the Obama administration's authority, and its "guidance" mandating that reduction should be declared void.

Once upon a time, most colleges used a "clear and convincing" evidence standard in student and faculty discipline cases of all types (not just harassment or rape). 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." (James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987); see also Nicholas Trott Long, The Standard of Proof in Student Disciplinary Cases, 12 J. College & U.L. 71 (1985)).

As of 2011, most Ivy League universities still used the clear-and-convincing standard. But in an April 4, 2011 "Dear Colleague" letter that purported to merely restate existing Title IX law on this issue, the Education Department insisted that colleges stop using the "clear and convincing" evidence standard and instead use the "preponderance" standard instead.

The Education Department’s reasoning for imposing a low 'preponderance' standard on campus disciplinary proceedings was that this 'is the standard of proof established for violations of civil-rights laws' in lawsuits brought in federal court. Therefore, it claimed, preponderance must also be 'the appropriate standard for' schools to use in "investigating allegations of sexual harassment or violence.'"

It is completely true, and completely irrelevant, that the preponderance of the evidence standard applies in lawsuits in general, as well as civil-rights cases. But that burden of proof applies to whether the school violated Title IX by behaving inappropriately, not whether students or staff engaged in harassment. Students cannot violate Title IX; only schools can be sued under Title IX, not individuals. (See, e.g., Smith v. Metropolitan School District (1997).) Moreover, Students "are not agents of the school," so their actions don’t count as the actions of the school.

The mere existence of harassment by students isn’t enough for liability under Title IX. More is required. The school’s own actions in response to the harassment must be culpable. As the Education Department admitted in its 1997 "Sexual Harassment Guidance," "Title IX does not make a school responsible for the actions of harassing students, but rather for its own discrimination in failing to remedy it once the school has notice." (62 FR 12034 (1997)). So to violate Title IX, an institution’s own actions must be proven culpable under a "preponderance" standard — not the mere occurrence of harassment.

Since an institution itself must behave in a culpable fashion, not just the accused harasser, federal courts have held that there is no violation of the civil rights laws even if harassment occurs, as long as the institution investigates in good faith in response to the allegation of harassment. That’s true even if the institution ultimately refuses to discipline a harasser based on the reasonable belief that he is innocent, after applying a firm presumption of innocence.

For example, a federal appeals court reversed a jury verdict that awarded a worker $85,000 against the Postal Service for sexual harassment, even though harassment by Postal employees did occur, since the Postal Service had, after investigating the worker’s sexual harassment complaint, reasonably, but erroneously, failed to credit plaintiff’s allegations. As the court explained, "a good faith investigation of alleged harassment may satisfy the 'prompt and appropriate response' standard, even if the investigation turns up no evidence of harassment. . .[and] a jury later concludes that in fact harassment occurred." See Swenson v. Potter, 271 F.3d 1184, 1196 (9th Cir. 2001), quoting Harris v. L & L Wings, 132 F.3d 978, 984 (4th Cir. 1997); see also Knabe v. Boury Corp., 114 F.3d 407, 414 (3d Cir. 1997); Adler v. Wal-Mart, 144 F.3d 664, 676, 678 (10th Cir. 1998).

Because it is based on a (faulty) analysis of Supreme Court decisions dealing with an inapposite question (the burden of proof in employment discrimination cases), the Education Department's position is not entitled to any deference at all from the courts, and should be declared void. For its preponderance mandate, it cites not sexual harassment cases, but Supreme Court decisions dealing with discriminatory firing and promotion. See Dear Colleague Letter: Sexual Violence Background, Summary, and Fast Facts (Apil 4, 2011) at 10-11 & n. 26, citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003)(discriminatory firing) and Price Waterhouse v. Hopkins, 490 U.S. 228 (1990) (discriminatory promotion)).

But analysis of court decisions is obviously an area where courts owe an agency no deference, because that is judges' area of expertise, not the agency's. As courts have noted, an agency's interpretation of the law is not entitled to any deference at all where "the agency's interpretation is based on analysis of Court decisions." Konstantopoulous v. Westvaco Corp., 1992 WL 162957, *4 (D. Del. June 19, 1992). Thus, where a civil-rights agency, the EEOC, stated a position on whether a civil-rights law it administered was retroactive, based on Supreme Court decisions, its position was entitled to no deference. See Id. As another court likewise observed, "Because the EEOC's expertise does not encompass Supreme Court cases, this Court will not rest its holding on deference to the EEOC's Policy Statement." Crumley v. Delaware State College, 797 F.Supp. 341, 347 (D. Del. 1992); accord Aiken v. B.A.R.C., 799 F.Supp. 522, 533 (E.D. Pa. 1992) (quoting and following Crumley, supra). Such "a pure question of statutory construction" interpreting judicial precedent is logically "for the courts to decide." See INS v. Cardoza-Fonseca, 480 U.S. 421, 445 (1987).

Nor does the Obama administration's position regarding the burden of proof purport to fill any gaps or gray areas in Title IX. Instead, the Education Department's Office for Civil Rights (OCR) claims that the law on this issue has long been clear, and was decided years ago by the Supreme Court, and that it is merely following previously-established legal standards. An agency that claims its hands are tied due to longstanding precedent gets no deference from the courts in interpreting a statute, even when its interpretation actually does fill a gap or ambiguity in the statute, and otherwise would receive Chevron deference. See Phillips Petroleum v. FERC, 792 F.2d 1165, 1169-70 (D.C. Cir. 1986) (agency received no deference at all, much less Chevron deference, where it erroneously "believed itself" compelled to a certain result by a Supreme Court decision, even though statute was "admittedly vague"); Transitional Hospitals Corp. v. Shalala, 222 F.3d 1019, 1029 (D.C. Cir. 2000) (agency receives no deference where it believed its position was the only one permitted by federal law; "discretion must be exercised through the eyes of one who realizes she possesses it"); Planned Parenthood v. Heckler, 712 F.2d 650, 666 (D.C. Cir. 1982) (Bork, J., concurring in part and dissenting in part) (regulation was invalid if based even partly on an "incorrect view" that particular statutory interpretation was compelled by Congress, unless that view "clearly had no bearing" on the agency's interpretation).

Moreover, the April 4, 2011 Dear Colleague letter that imposed this mandate is unlike other OCR guidance that has received deference from the courts, in that it did not follow notice-and-comment procedures. It is quite unlike Title IX's famous Policy Interpretation on Intercollegiate Athletics, which has often been deferred to by the courts, because that was an area specifically delegated to OCR by Congress, and the policy was issued only after OCR solicited and received more than 700 comments. See Policy Interpretation, 44 Fed. Reg. 71,413 (Dec. 11, 1979). Compare Astrue v. Capato, 132 S.Ct. 2021, 2034 (2012) (Chevron deference applied to regulations because they were promulgated pursuant to a Congressional delegation of authority, and were "published after notice-and-comment rulemaking").

Posted by: Hans Bader | May 5, 2014 10:44:24 AM

In response to Professor Hills' question above:

"1. Insofar as private universities are concerned, might there be a defense of 'no state action' to objections that the private universities' policies on cross-examination deprive students of due process?"

A private college can VOLUNTARILY use whatever procedures it wants without violating constitutional due-process guarantees.

But if the Education Department FORCES it to do something that would violate the Constitution if done by a state university, then that can violate the Constitute, even if a private college could have done that very same thing voluntarily. See Merritt v. Mackey, 827 F.2d 1368 (9th Cir.1987) (pressure by federal official on private employer to fire private employee could violate due process).

Government pressure on private entities to terminate or expel someone can violate the Constitution. For example, when the government forced a private employer who had no duty to hire aliens to fire enough aliens to keep his percentage of alien employees below a specified percentage, the U.S. Supreme Court ruled that the violated the Constitution. See See Truax v. Raich, 239 U.S. 33 (1915) (declaring that the fact that the employment was at the will of the employer did not mean it was at the will of the government).

For example, the federal appeals court in New York ruled that a city official’s letter urging a billboard company to stop displaying a church’s anti-homosexuality billboard potentially violated the First Amendment, since the letter cited his "official authority as 'Borough President of Staten Island' and thus could constitute an "implicit" threat, even though the official lacked direct regulatory authority over the billboard company and did not explicitly threaten any reprisals. See Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003). That court also revived a First Amendment lawsuit by a businessman over a village official’s letter to the local Chamber of Commerce criticizing it for publishing the businessman’s ad critical of village policies in the Chamber’s publication. See Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991).

On another note, the federal government can be liable when it forces third parties to take action against someone. For example, when the Office for Civil Rights (OCR) of the Department of Health, Education, and Welfare forced a school district to expel the Klan from using school facilities after hours because of its viewpoint, that was deemed to be a First Amendment violation by OCR. See Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 578 F.2d 1122 (5th Cir. 1978).

Posted by: Hans Bader | May 5, 2014 10:58:47 AM

I would just add Brentwood Academy v. Tenn. Secondary Sch. Athletic Assoc., 531 U.S. 288 (2001), to the list.

There are two hurdles here, only one of which I think you've addressed, Hans. One issue is can third parties be state actors? And that's hard enough.

But the next question is, presuming ED can be considered a state actor in this case, whether a guidance doc that formally says all the right magic words ("non-binding" chief among them) would be found coercive enough? You mention cases where there is evidence of attempted coercion, even if not formal authority.

But what about cases of formal authority that the agency explicitly declines to use?

And while I'm not a fan of "disparate impact" in EP jurisprudence, I wonder if DI as evidence of state action might be called for as a way to reign in wayward informal agency action. "Well, of the 80% of schools that used C&C burden of proof, 100% of them have changed policies since April 4, 2011--- isn't that proof enough of state action?"

Posted by: AndyK | May 5, 2014 12:39:07 PM

Also, as an aside, I had Prof. Hills in ad law at NYU, and I'm having flashbacks to the "bear in the woods" re: constitutional avoidance.

Posted by: AndyK | May 5, 2014 12:40:53 PM

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