Can agency officials declare you in violation of the law, not for actions that flout the text of a statute, but for failing to parrot the agency’s controversial views about how the statute should be applied in hypothetical situations?
Recently, the U.S. Department of Education (DOE) did just that to Harvard. DOE’s Office for Civil Rights (OCR), where I used to work, found Harvard Law School in violation of Title IX for its failure to recite at length OCR officials’ views about the optimal handling of Title IX sexual harassment claims—even though those views were expressed in a “guidance” from agency officials that had expressly claimed to “not add requirements to applicable law.”
As I’ve explained previously, this is a violation of the Administrative Procedure Act. The federal government’s settlement with Harvard also contains provisions mandating “interim measures” against accused students who may later be absolved of any wrongdoing—measures that may lead to free-speech and due-process violations (since the federal government is not allowed to pressure a private institution to restrict the free speech or due process rights of its students).
I previously discussed OCR’s idiosyncratic views about disciplinary procedures and how they differ from federal court Title IX precedents, at this link. The constitutional problems created by OCR’s overly broad demands for “interim measures” are discussed here and here.
As Reason Magazine and others have noted, 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.