You are here

OpenMarket: Law and Constitution

  • Another Illegal Rule from the Education Department

    March 2, 2015 8:19 AM

    Recently, I wrote about a report to the Senate by a task force of college presidents, on how the Education Department is illegally dumping an avalanche of new rules and regulations on America’s schools, without even complying with the Administrative Procedure Act’s notice-and-comment requirements.

    Yet another example of such mischief is the 2014 sexual harassment guidance issued by the Education Department’s Office for Civil Rights. That guidance radically expanded liability for harassment under Title IX from OCR’s past 1997 and 2001 harassment guidance, and deviated sharply from principles of harassment liability developed by the courts. And it imposed new obligations on colleges without any notice or opportunity to comment.

    (The Administrative Procedure Act requires notice and comment before an agency imposes new obligations on regulated entities. In addition, the D.C. Circuit Court of Appeals’ Paralyzed Veterans decision also requires notice and comment for changes to many interpretive rules. The Education Department ignores these requirements.)

    OCR’s 2014 harassment guidance generally imposes liability on institutions even if they correctly discipline those who engage in sexual harassment or sexual assault, if they do not also “prevent its recurrence” and “remedy its effects,” and it warns that even punishing the harasser “likely will not be sufficient” to comply with Title IX. See Office for Civil Rights, “Questions and Answers on Title IX and Sexual Violence“ (April 29, 2014), at pg. 25 (“imposing sanctions against the perpetrator, without additional remedies, likely will not be sufficient to eliminate the hostile environment and prevent recurrence as required by Title IX,” since the school must not just “end the sexual violence,” but also “eliminate the hostile environment, and prevent its recurrence”), and at pg. 1, Question A-2 (institution must “eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects”).

  • Education Department Floods Schools with New Uncodified Bureaucratic Mandates

    February 25, 2015 3:17 PM

    Recently, a task force of college presidents chronicled massive regulatory overreaching by the U.S. Department of Education, which, on a daily basis, floods the nation’s schools with new, uncodified agency requirements that have never even been vetted through the formal rulemaking process. “The Report of the Task Force on Federal Regulation of Higher Education: Recalibrating Regulation of Colleges and Universities,” correctly notes that:

    “According to the basic tenets of administrative law, Congress passes laws, and it is up to the agencies to implement them. However, in recent years, the Department has increasingly used the regulatory process not in response to any specific legislative change enacted by Congress, but rather as a means to achieve its own policy objectives.” (Pg. 35)

    “The compliance problem is exacerbated by the sheer volume of mandates—approximately 2,000 pages of text—and the reality that the Department of Education issues official guidance to amend or clarify its rules at a rate of more than one document per work day. As a result, colleges and universities find themselves enmeshed in a jungle of red tape, facing rules that are often confusing and difficult to comply with.”

    (Executive Summary, pg. 2).

    The report, issued by a task force set up by a bipartisan group of U.S. Senators, cites examples such as a needlessly expensive distance-education regulation imposed on colleges without the notice and comment required by the Administrative Procedure Act. It carries an enormous price tag for schools that provide online learning, discouraging cheap and innovative forms of learning: 

    “A public institution with a well-established online program estimated the costs at nearly $800,000. One private institution has estimated that it will cost $290,000 and take up to 2,000 hours annually to deal with the changes. . . . In 2012, a federal appellate court upheld the original decision to vacate the regulation due to the Department’s failure to properly give notice of this issue in its pending notice of proposed rulemaking and provide stakeholders with a meaningful opportunity to comment on the policy. Despite the court’s ruling, the Department continues to pursue this policy.” (Pg. 24)

  • Victory for "Caveman" Blogger and Free Speech in North Carolina

    February 19, 2015 6:54 AM

    Many people associate professional licensing with consumer safety. For example, we wouldn’t want any schlub doing surgery. But where occupational licensing laws may have started out with the goal of protecting consumers, they have now become a means by which certain professionals restrict competition. States require licenses for hundreds of occupations including perilous professions like florist, funeral director, hair braider, and fortune teller.

    The case of the “Caveman” blogger who was bullied by the North Carolina Board of Dietetics/Nutrition for providing nutritional advice without a license illustrates how licensing threatens not just our economic freedom, but our other basic freedoms. Luckily for blogger Steve Cooksey, his right to express his opinion and give advice to fellow dieters won out over the need to protect licensed dieticians from competition.

    As the Institute for Justice, which has been fighting on Cooksey behalf, wrote yesterday:

    In December 2011, Steve Cooksey started an advice column on his blog to answer reader questions about his struggle with Type II diabetes. Cooksey had lost 78 pounds, freed himself of drugs and doctors, and normalized his blood sugar after adopting a low-carb “Paleo” diet, modeled on the diet of our Stone Age ancestors. He wanted to use his blog to share his experience with others.

    However, in January 2012, the North Carolina Board of Dietetics/Nutrition informed Cooksey that he could not give readers personalized advice on diet, whether for free or for compensation, because doing so constituted the unlicensed practice of dietetics. The board deemed Cooksey’s advice the unlicensed practice of nutritional counseling, sent him a 19-page print-up of his website indicating in red pen what he was and was not allowed to say, and threatened him with legal action if he did not comply.

  • Coming Up: King Plaintiffs’ Day in Court

    February 13, 2015 5:20 PM

    Oral arguments before the U.S. Supreme Court in King v. Burwell will be held on March 4, 2015. The Competitive Enterprise Institute is coordinating this case, which challenges an IRS regulation that illegally distributes subsidies in states that refused to establish state-based health insurance exchanges. The IRS regulation is illegal because it is contrary to the plain language of the law passed by Congress.

    The four plaintiffs involved are individuals who are harmed by this regulation because it makes them subject to Obamacare’s individual mandate, which requires people to enroll in comprehensive healthcare coverage or pay a tax penalty. Both lower courts unanimously agreed that the individual plaintiffs have standing and the Justice Department expressly abandoned any challenge to their standing before the Supreme Court.  

  • NPR Wrongly Suggests Hate Speech and Blasphemy Are Unprotected by First Amendment

    February 11, 2015 12:13 PM

    NPR gets a lot of taxpayer money based on a false pretense of objectivity and accuracy. Its departing ombudsman, Edward Schumacher-Matos, says that “as a public media that receives some 11 percent of its funding indirectly from the government, it cannot be partisan or have a declared bias.”

    But it routinely gets basic facts wrong. While touting NPR’s supposed superiority over other media, such as Fox News, ombudsman Matos recently made the false claim that the French satirical magazine Charlie Hebdo, whose staff were massacred by terrorists, would not be protected in the U.S. under the First Amendment, because it made “fun” of people’s “prophets and gods,” and constituted “hate speech.”

    This was simply ignorant, because the Supreme Court declared blasphemy laws unconstitutional in Joseph Burstyn, Inc v. Wilson, 343 U.S. 495 (1952), stating that “it is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches or motion picture.”

  • Congress Should Reject Obama Budget Increase for Education Department Office for Civil Rights

    February 4, 2015 4:14 PM

    The Obama administration perversely rewards agencies that overstep their authority by giving them budget increases to handle the increased workload that results. 

    A classic example is the Education Department’s Office for Civil Rights (OCR), where I used to work. President Obama wants a 31% budget increase for OCR for Fiscal Year 2016. That is a very bad idea.

    OCR’s budget should be cut, not increased. Cutting its budget would make it harder for it to punish school districts and colleges for perfectly lawful and reasonable policies. People who write about educational issues, such as Reason magazine’s Robby Soave, and the National Review’s George Leef, rightly oppose the proposed budget increase for OCR.

    OCR has twisted virtually every statute it is charged with enforcing, such as Title VITitle IXthe Rehabilitation Act, and the Americans with Disabilities Act. Citing Title VI, which bans racial discrimination, OCR has demanded that school districts adopt what are effectively illegal racial quotas in school discipline, even though that violates the Constitution, the Seventh Circuit’s decision in People Who Care v. Rockford Board of Education (1997), and the plain language of the Title VI statute.

    Moreover, OCR has micromanaged college investigations in sexual harassment and assault cases in ways that make them more costly, unfair, and likely to cause the expulsion of innocent people. It also has undermined efforts to criminally prosecute rapists and prevent future rapes by failing to ensure that such crimes are properly reported to prosecutors.

  • Did Slanted NPR Story Lead to Hasty, Illegal Education Department Sexual Harassment Rules?

    January 26, 2015 7:21 AM

    Bad things can happen when an agency (like the Education Department) throws caution to the wind and regulates based on slanted media coverage from National Public Radio, rather than facts and evidence.

    Checks and balances exist for a reason. When agencies impose new obligations on the institutions they regulate, they are supposed to first give the public notice of their proposed rule, and an opportunity to comment on it. This requirement, mandated by the Administrative Procedure Act, enables members of the public to point to legal or factual mistakes that may have precipitated the agency’s proposed rules.

    But under the Obama administration, the Education Department has ignored these requirements. In “Dear Colleague” letters and “guidance” documents issued without any prior notice or comment, it has imposed on colleges a series of detailed, prescriptive, and controversial rules for responding to allegations of sexual harassment or assault—rules very much at odds with the deferential tenor of the Supreme Court’s Gebser and Davis decisions.

    Those rules include procedures, time tables, and evidence rules that sharply contrast with those previously used by many colleges for all categories of offenses. This has pressured colleges to create a costly, specialized bureaucracy on campus to handle sexual offenses, rather than using one disciplinary system for all offenses.  

    In recent investigations, the Education Department has interpreted this “guidance” as mandating “interim measures” against accused students who have yet to be found guilty of anything, and as restricting certain evidence of innocence that would be permitted in court, as law professor David Bernstein noted at the in the Volokh Conspiracy, and I describe in the Daily Caller.

    This unfair micro-management of college discipline has led to a series of costly lawsuits against colleges by students claiming they were unfairly expelled as a result. For example, in Wells v. Xavier University, 7 F. Supp. 3d 746 (S.D. Ohio 2014), a judge allowed a student’s lawsuit claiming the college used unfair procedures to expel him to appease the Education Department’s Office for Civil Rights, where I used to work.

    But it now appears that the Education Department’s rules micromanaging college discipline were precipitated by a deceptive NPR report about the University of Wisconsin’s purported mishandling of a sexual assault claim. That report, jointly produced with the Center for Public Integrity, made statistical claims that would later be debunked, and ignored evidence of accused students’ innocence that any judge—female or male, liberal or conservative—would take seriously, and would be admissible in any sexual assault prosecution in America. (See, e.g., State v. Garron (2003).)

  • Terrorist Attack on Charlie Hebdo Reveals the Sorry State of Free Speech in the West

    January 8, 2015 6:03 PM

    My wife Sylvie, who grew up in France, is terribly shocked about yesterday’s terrorist attack on the French satirical weekly Charlie Hebdo, which murdered 12 people, including four prominent French cartoonists.

    Its editor had been on an Al Qaeda hitlist, and this vicious attack was immediately cheered by supporters of the Islamic State and Al Qaeda. According to Vice News, “Minutes before the attack, the Charlie Hebdo account had tweeted out a cartoon mocking the Islamic State's leader, Abu Bakr al-Baghdadi.”

    My wife calls the attack “France's 9/11,” and says Charlie Hebdo was a symbol of free speech for the French people, and much more culturally significant than publications like National Lampoon or The Onion is for Americans. French people across the political spectrum, from left-wing Trotskyites like my father-in-law, to conservative Gaullists, were appalled by the attack.

    The slain cartoonist Cabu was not just a Charlie Hebdo cartoonist, but had also, years earlier, been perhaps the leading cartoonist of Sylvie's childhood. He drew cartoons for children, such as for “the children's TV programme, Récré A2,” making his murder as culturally significant for her as it would be if Charles Schultz, the creator of Peanuts and Charlie Brown, had been assassinated.

    One obvious way to push back against the terrorist attack would be to publish some of the Charlie Hebdo cartoons, such as this onethis onethis onethis one, and this one.

    But most of the media are too cowardly to do so (which they should be doing, because doing otherwise rewards the terrorists who sought to eradicate such depictions). Instead, many are cropping historical photos, or blurring out images, to censor depictions of the prophet Mohammed found in newsworthy photos of Charlie Hebdo and its staff. Some are even effectively blaming Charlie Hebdo for the attack, like Tony Barber of the Financial Times referring to it as “being stupid” and aiming to “provoke Muslims.” 

    By contrast, Charlie Hebdo’s staff showed incredible courage over the years. As Matt Welch of Reason notes, it had the courage to not “just print original satirical cartoons taking the piss out of Islamic-terrorist sensibilities, but do so six days after [it was] firebombed . . .and do so in such a way that's genuinely funny (IMO) and even touching, with the message ‘Love is stronger than hate.’” And not “just print original cartoons of the Prophet Muhammad—a historical figure, lest we forget—but then defending and winning the right to do so after being charged with offensive speech.”

  • CEI's 2015 Unconstitutionality Index: 27 Regulations for Every Law

    January 4, 2015 6:43 PM

    There’s this idea floating around about America’s do-nothing Congress, that laws aren’t being passed.

    The Los Angeles Times called Congress “ineffective,” in 2013 since it passed so few laws. By such standards it was a tad more “effective” at year-end 2014, with 129 laws compared to 2013’s 72.

    Such tallies always include things ranging from naming post offices after politicians and dignitaries. to the likes of Obamacare. 

    Actually, the real story is that there’s a heck of a lot of lawmaking going on behind the scenes, but elected representatives aren’t involved. Bureaucrats are doing it, and you must heed them.

    The president, via unilateral executive actions—the now famous “pen and phone”—is making law, too, no matter what the Constitution says.  

    The new 114th Congress kicks off this week, so let’s look at where we are. The new GOP majority is readying Keystone, jobs bills, regulatory liberalization and tax reform.

    It’s becoming clear, though, that Obama’s emphasis will remain his own executive actions, not the presumed trade deal and tax reform that were acknowledged mutual interests.

    Between now and the January 20 State of the Union Address, the president will be out on a nationwide PR swing touting other kinds of programs like housing and higher education assistance that involve unilateral executive actions—and taxing and spending.

    The November election’s message to Obama to back off notwithstanding, the president knows he can count on a friendly media saying Congress is blocking his “reforms” rather than challenge his not meeting Congress in the middle on their ideas.  

    Note that the defining feature of the 114th Congress’ agenda is not so much things they will do, but reforms to undo. The congressional emphasis, really, is reforming government excess, to reduce government to its proper size.

    This contrasts markedly with Obama’s vision and, say, Rolling Stone’s rallying of millennials to government-guaranteed work for everybody and collective ownership of resources.  

    It’s actually supposed to be hard to pass laws; government isn’t always our friend or acting in the general interest. Usually, to turn the famous phrase on its head, "There ought not be a law," because most aspects of our lives and communities are not public policy issues (let alone federal policy issues) and should not be turned into such.

  • Gruber Testifies Before Congress on Obamacare Transparency Issues

    December 9, 2014 11:12 AM

    Today, the Centers for Medicare and Medicaid Services Administrator Marilyn Tavenner and MIT economist Jonathan Gruber are testifying before the House Oversight and Government Reform Committee on repeated transparency failures and enrollment issues surrounding the Affordable Care Act. CEI General Counsel Sam Kazman explains what this hearing could mean for ongoing Obamacare litigation efforts.

    Sam Kazman, CEI general counsel:

    “Regardless of what happens at the hearing, Jonathan Gruber has already had a major impact on the ongoing Obamacare litigation, as in CEI’s King v. Burwell and Halbig v. Burwell cases. This is due to both the content of his 2012 video, where Gruber refers to the subsidy issue saying if states don’t set up exchanges then citizens won’t get tax credits, and to how the government dropped nearly all mention of Gruber and his three-legged stool analogy from the court briefs following the video’s rise in popularity.

    “And according to a recent CEI report by Scot Vorse, we see that Gruber isn’t the only thing the administration flip-flopped on. Based on a trail of government documents, we find that actions taken by the HHS, Treasury, and IRS to implement the law, especially when it comes to developing a tax-credit calculator, show the administration was only focused on providing subsidies on the state exchanges, not the federal exchange.”

    >> View CEI report by Scot Vorse: “Beyond Gruber: How HHS Flip-Flopped on Federal Exchange Subsidies

Pages

Subscribe to OpenMarket: Law and Constitution