Vice President Pence said that he and President Trump “believe that education is a state and local function that should be controlled by” states, not the federal government. A great way to restore local control would be rescind the Obama administration’s federal micromanagement of college discipline. Under Obama, the Education Department sometimes pressured colleges to do things that could lead to lawsuits being filed against them by their students.
For example, the Education Department’s April 4, 2011 “Dear Colleague” letter 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 many 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).
(It is conceivable that the advice in the “Dear Colleague” letter could also lead to violations of federal law at colleges that follow it. In a few campus disciplinary cases, such as Donohue v. Baker, 976 F.Supp. 136 (N.D.N.Y. 1997), and Doe v. Univ. of Cincinnati, 2016 WL 6996194 (S.D. Oh. 2016), judges have ruled that some cross-examination was constitutionally required on due-process grounds to test the credibility of the accuser. But the Supreme Court has not ruled on whether cross-examination is ever required by the federal constitution in the college setting, even though it lauded cross-examination as 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 Education Department’s “Dear Colleague” Letter purported to apply the federal sex discrimination law Title IX. But it misconstrued Title IX, as I explain in detail at this link. Moreover, in advising colleges to restrict the rights of their students, it ignored language in a 1999 Supreme Court ruling that emphasized that schools don’t need to risk violating the rights of their students to comply with Title IX. In setting forth a standard for when schools need to take action against sexual harassment or assault by students, the Supreme Court said that “the standard set out here is sufficiently flexible to account both for the level of disciplinary authority available to the school and for the potential liability arising from certain forms of disciplinary action. … [I]t would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims.” (See Davis v. Monroe County Board of Education, 526 U.S. 629, 649 (1999)).
The Supreme Court plainly meant to allow colleges to avoid acting in ways giving rise to statutory claims against them under state law, since it was in response to a dissenting opinion that cited both federal and state laws limiting the ability of schools to discipline students (such as state constitutional provisions. See Davis, at pg. 649, citing the dissenting opinion in Davis, at pp. 666-668).
In addition to ignoring the Supreme Court, this “Dear Colleague” letter also wrongly imposed new obligations on schools without notice and comment, in violation of the Administrative Procedure Act (as I explained earlier). For example, it “ignored past Office for Civil Rights rulings authored by its own career lawyers and civil servants in forcing colleges to investigate off-campus conduct. Such ‘unexplained departures from precedent’ are arbitrary and capricious, as the D.C. Circuit Court of Appeals noted in Ramaprakash v. FAA (2003). The Obama administration also ignored two federal appeals court rulings, and language in a Supreme Court decision, by demanding that colleges do so.”
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 contrary position, which it later used to find colleges such as Harvard Law School in violation of Title IX, is clearly at odds with court interpretations of Title IX as not applying off campus, as I have noted in the past. For example, a federal 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” (quoting Davis v. Monroe County Board of Education, 526 U.S. 629, 645 (1999)).
Since free-speech protections are stronger outside of school than within K-12 schools (see, e.g., Klein v. Smith (1986)), OCR’s pressure on schools to investigate what it labels as verbal sexual “harassment” (such as vulgar speech) outside of school can give rise to statutory and constitutional claims against a school. That pressure is thus at odds with the intent of the Supreme Court’s Davis decision to avoid subjecting schools to the risk of “constitutional or statutory” claims.