The Administrative Procedure Act requires an agency to put a regulation that expands someone’s legal obligations into the Code of Federal Regulations, before it can go into effect. The APA also requires the rule to go through the notice-and-comment process before it can be implemented.
In addition, agencies are expected to notify Congress of their rules. Under the Congressional Review Act (CRA), Congress can repeal a rule up to 60 days after being notified, using an expedited process. When Congress adopts a joint resolution of disapproval for a regulation, this not only nullifies the regulation in question, it also prohibits an agency from reissuing the same regulation again or from promulgating a regulation that is substantially similar, unless Congress authorizes it through a subsequent statute.
The Clinton Administration’s harassment rules for colleges and schools were invalid, because they did not meet either of these requirements. They imposed new obligations, by defining harassment more broadly than judicial precedent does under Title IX and Title VI. As I have explained elsewhere, these rules define harassment so broadly as to violate free speech, and they have been used to harm innocent students and colleges.
The Clinton-era Education Department did so without putting the rules into the Code of Federal Regulations – by labeling the rules as “guidance” rather than formal rules—and without notifying Congress. The failure to notify Congress means the deadline for Congress to repeal them under the CRA never started ticking, and Congress can repeal them at any time, according to the Wall Street Journal and former Justice Department lawyer Todd Gaziano, who helped draft the CRA. As former White House Office of Management and Budget official Susan Dudley notes in Forbes, “the breadth of the CRA’s definition of ‘rule’ covers guidance documents…even those that didn’t go through the Administrative Procedure Act (APA) notice-and-comment rulemaking process or get published in the Federal Register.”
In 1994 and 1997, the Clinton Administration issued racial-harassment and sexual-harassment “guidance” that departed from the judicial definition of harassment by merely requiring that speech or conduct be either “severe” or “persistent” or “pervasive” enough to create a hostile or offensive educational environment, or to limit one’s benefit from an education. See Office for Civil Rights, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed Reg. 12034, 12041 (March 13, 1997); Racial Incidents and Harassment Against Students at Educational Institutions: Investigative Guidance, 59 Fed. Reg. 11448 (Mar. 10, 1994).
By contrast, the Supreme Court’s Davis decision says that harassment must be “severe” and “pervasive” enough to interfere with access to an education. See Davis v. Monroe County Board of Education, 526 U.S. 629, 633, 650, 651, 652, and 654 (1999) (emphasizing five times that the conduct must be “severe, pervasive, and objectively offensive" and interfere with educational access to violate Title IX). This language defines what “harassment” is serious enough to constitute “discrimination” in violation of anti-discrimination statutes such as Title IX, Title VI, and the Rehabilitation Act. (See, e.g., Hawkins v. Sarasota County School Board, 322 F.3d 1279, 1289 (11th Cir. 2003) (holding for conduct to have the necessary “systemic” effect of denying equal access to an education under Davis, the conduct must be more widespread than a single incident and “must touch the whole or the entirety of an educational program or activity”); S.B. v. Harford County Board of Education, 819 F.3d 69, 76 (4th Cir. 2016) (Davis decision required student to show harassment was “sufficiently ‘severe, pervasive, and objectively offensive’ that it effectively deprived him of ‘access to educational benefits and opportunities’ at school”)).
But the Clinton Administration effectively ignored this narrow definition of harassment in the Supreme Court’s 1999 Davis decision. It pretended it left undisturbed its more expansive 1997 definition of harassment, in a 2001 statement that “reaffirms the compliance standards” of its 1997 guidance. Revised Sexual Harassment Guidance, 66 Fed. Reg. 5512 (Jan. 19, 2017). It did so even though the 1997 guidance had expressly rejected the requirement later found in the Davis decision, that conduct must be both severe and pervasive to constitute illegal harassment. The guidance did this by claiming that “a single or isolated incident of sexual harassment” may “create [an illegally] hostile environment.” (See 62 Fed. Reg. at 12041).
Later, the Obama administration went on to expand schools’ liability for “harassment” even further by demanding that colleges regulate off-campus conduct and speech. That is something that the preceding Clinton and Bush administrations had found was not required by either Title IX or Title VI due to language in the Davis decision.
It did so in “Dear Colleague” letters on harassment issued in 2010, 2011, and 2014, which also reiterated the Clinton administration’s erroneous ban on speech or conduct “persistent” or “pervasive” enough to merely create a hostile environment or limit educational benefits. For example, the Obama Education Department’s October 26, 2010 Dear Colleague Letter on Harassment and Bullying stated that:
Harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school. When such harassment is based on race, color, national origin, sex, or disability, it violates the civil rights laws that OCR enforces.
By saying that harassment does not have to “involve repeated incidents,” it rejects the requirement of “pervasiveness” contained in the Supreme Court’s Davis decision. It also ignores the Davis decision’s requirement that conduct be “severe” enough to interfere with educational access, not just “persistent.”
Although these “Dear Colleague” letters contained footnotes saying they did not add requirements to applicable law, they in fact did so, since colleges whose harassment policies did not recite passages from them word-for-word were declared by the Obama administration to be in violation of Title IX solely due to the failure to parrot those letters in detail. (This demand to parrot its guidance was extraordinarily prescriptive, since institutions are not expected by courts to parrot even Supreme Court rulings in their harassment policies, much less parrot obscure “guidance” from administration officials).
For example, the Obama administration found Harvard Law School in violation of Title IX because its written policy did not parrot language in the Obama administration’s April 4, 2011 and April 29, 2014 Dear Colleague letters about regulation of off-campus conduct, and how to handle mediation and third-party complaints. It did so even though the Obama administration’s letter of findings did not cite any actual student who was adversely affected by Harvard’s failure to include such language in its already lengthy and detailed harassment policy. Nor did it point to any court ruling ever that requires institutions to address such minute details in their harassment policies. (See Complaint No. 01-11-2002, Harvard Law School (Dec. 30, 2014)).
In doing so, it directly contradicted Education Department rulings under prior administrations that Title IX does not apply to off-campus conduct, such as one by its Dallas office noting that “a University does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus.” (See Oklahoma State University ruling, OCR Complaint No. 06-03-2054, at pg. 2 (June 10, 2004)).
It also ignored court rulings rejecting Title IX lawsuits over “off-campus” sexual assaults and harassment, such as Roe v. St. Louis University, 746 F.3d 874, 884 (8th Cir. 2014) (citing Davis, 526 U.S. at 645).
Congress should also reject these improper Obama-era “Dear Colleague” letters through the expedited repeal process created by the CRA, as the Wall Street Journal has urged.
This Clinton/Obama demand for regulation of “persistent” offensive speech that is not threatening or otherwise “severe” is particularly dangerous, since controversial and opposing views are of course “persistent” on any college campus. As former ACLU leader Harvey Silverglate once noted, “the essence of being educated is being offended daily.” Speech doesn’t lose its constitutional protection just because it is offensive: as the Supreme Court noted in Texas v. Johnson (1989), “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
The Clinton/Obama demands completely ignored the very purpose of a university, which is to follow wherever the truth may lead, even when that offends people. Debate on campus must persist, even when that offends listeners. As an appeals court noted: “the efficient provision of services by a State university’s law school actually depends, to a degree, on the dissemination in public fora of controversial speech implicating matters of public concern,” and “excessive regulation of the speech...may actually impair the ability of a law school to function efficiently.” (Blum v. Schlegel, 18 F.3d 1005, 1011-12 (2d Cir. 1994)). As another appeals court noted, society has a “compelling interest in the unrestrained discussion of racial problems.” (Belyeu v. Coosa County Bd. of Educ., 998 F.2d 925, 928 (11th Cir. 1993)). That interest would be defeated if persistent discussion of racial issues such as immigration, affirmative action, and the role of race in the criminal justice system could be punished (viewpoints on these topics have in fact been punished under overly broad campus racial “harassment” codes).
In rulings striking down overly broad campus sexual and racial harassment policies as a violation of free speech, courts have cited their potentially punishing speech that was not objectively “severe.” (See, e.g., Saxe v. State Coll. Area School District, 240 F.3d 200, 205-06, 210 (3d Cir. 2001) (faulting harassment policy because its “’hostile environment’ prong does not, on its face, require any threshold showing of severity or pervasiveness,” despite the Supreme Court’s statement in Davis that to be discriminatory, harassment must be “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim students are effectively denied equal access to an institution's resources and opportunities”); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (voiding hostile-environment racial harassment policy that had “subjective” element and was applied to unintentionally offensive speech)).
As courts have recognized, persistence is not the same thing as severity or pervasiveness, and persistence alone does not violate even workplace law, which, unlike Title IX, requires only a showing of severe or pervasive conduct, not severe and pervasive conduct. (See, e.g., Baird v. Gotbaum, 792 F.3d 166, 172 (D.C. Cir. 2015) (persistent trivially offensive remarks did not violate federal workplace law, which requires a showing of “severe or pervasive” harassment; “The sheer volume of Baird's allegations does not change our conclusion: a long list of trivial incidents is no more a hostile work environment than a pile of feathers is a crushing weight.”); Skouby v. Prudential Ins. Co., 130 F.3d 794, 797 (7th Cir.1997) (trivial although “constant unwelcome sexual references” by male coworkers were not severe or pervasive enough to violate federal law); Mendoza v. Borden, 195 F.3d 1238, 1247 (11th Cir. 1999)).