OCR’s Evasive Letter to Sen. Lankford about Colleges and Title IX

An agency can disregard logic and jump to conclusions when it imposes legal mandates outside the notice-and-comment rulemaking process, since it never has to address the substance of comments questioning their basis. It can just ignore them. A classic example is the letter sent to Oklahoma Senator James Lankford by the Education Department’s Office for Civil Rights (OCR) on February 17. 

The Senator asked OCR asked for the basis of certain requirements OCR imposed on the nation’s schools in a 2011 Dear Colleague Letter. That letter, which is part of a flood of uncodified rules that have raised concern in Congress, micromanages school discipline: For example, it ordered colleges to discard the “clear-and-convincing evidence” standard used by most Ivy League colleges in 2011 (and once used by most colleges in general back in the 1980s). 

In response, OCR simply repeated the same question-begging rationalization it gave in that letter, and added nothing to it, nor did it address the criticisms of its letter made by many lawyers and law professors. Instead, it simply assumed once again that since an institution’s actions are judged by a preponderance-of-evidence standard in civil litigation (as no one denies, and as Supreme Court precedent makes clear), that same burden of proof must be applied by a college to its students in internal college disciplinary proceedings that are not taking place in court.

Why the burden should be the same, it never explains. It just assumes it. Students are not schools. Title IX and other federal civil rights laws impose obligations on schools, not individuals. (See, e.g., Smith v. Metropolitan School District (1997).)

 A student’s misconduct is generally not attributable to the school, especially since students “are not agents of the school.” Indeed, even the conduct of an employee is often not attributable to his employer. As applied by the courts, federal sexual harassment law does not require institutions to be omnipotent in preventing or punishing harassment; omniscient as to who is guilty; or hostile to traditional presumptions of innocence. What it requires is taking actions “reasonably calculated” to end the harassment and prevent a recurrence.  

“Reasonably calculated” does not mean invariably successful, nor does it require imposing a meager burden of proof. For example, a company’s disciplinary actions were deemed “reasonably calculated” to prevent harassment even though one hard-headed harasser persisted in his ways. (See Adler v. Wal-Mart, 144 F.3d 664 (10th Cir. 1998).) An employer was found not liable in where it refused to discipline the harasser in a he-said, she-said situation, due to the absence of clear corroborating evidence. (See Knabe v. Boury Corporation, 114 F.3d 407 (3rd Cir. 1997).) 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 failed to credit plaintiff's allegations, even though they turned out to be true. 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 earlier court rulings).)

In all of these cases, lawsuits were dismissed because no reasonably jury could find by a preponderance of the evidence that the employer’s actions were not “reasonably calculated” to prevent further harassment. That is true regardless of the fact that (for purposes of deciding the case) the courts assumed that, in fact, the plaintiff had actually been harassed by the accused employees. The existence of a preponderance of evidence against the harasser did not show a preponderance against the employer, or even create a rigid rule requiring discipline.

Conversely, the use of a preponderance standard in civil litigation against the employer does not prevent the employer from giving the accused a strong presumption of innocence in its internal disciplinary proceedings. As the Tenth Circuit Court of Appeals explained in dismissing a lawsuit where it was assumed that one of the harassers had escaped punishment due to the murkiness of a he-said, she-said situation, “It would be unreasonable, and callous toward [the accused harasser’s] rights, for the law to require Wal-Mart to discipline [him] for events he denies, of which Wal-Mart could not find evidence.” (See Adler v. Wal-Mart, 144 F.3d 664 (10th Cir. 1998).)

Ironically, when it is convenient, OCR admits that a student’s being guilty of harassment is not enough for liability under Title IX, and that 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.” (Federal Register, 62 FR 12034, 12040 (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.

Similarly, in its February 17, 2016, letter to Sen. Lankford, in order to justify other overreaching that I don’t have space to discuss here, it notes on page 3 that “conduct, even if characterized as sexual harassment, is not prohibited by Title IX as unlawful sexual harassment unless . . .  the educational institution fails to take prompt and effective steps reasonably calculated to eliminate the hostile environment, prevent its recurrence and, as appropriate, remedy its effects.”

So even if harassment has occurred—whether by a preponderance, or, indeed, an absolute certainty—does not necessarily determine whether an institution is liable, so why the institution should have to use a preponderance standard remains unclear.

(I previously discussed how this language in the letter—“eliminate the hostile environment, prevent its recurrence and . . . remedy its effects”—actually overstates Title IX liability, and is at odds with the Supreme Court’s Davis decision, at this link, discussing the use of this language in a 2014 Dear Colleague Letter that imposed new legal mandates on colleges out of thin air.)

Given the logical gaps in its reasoning, and the false claim that it was merely restating existing law, OCR’s Dear Colleague Letter was legally invalid, and is not entitled to any deference from the courts to begin with (much less Chevron deference), even putting aside the fact that it has never gone through notice and comment, as required by the Administrative Procedure Act. I explain that at great length at this link.  

OCR thus violated the Administrative Procedure Act, when it abrogated the traditional clear-and-convincing evidence standard that was used by most Ivy League schools (like Harvard, Yale, Princeton, and Cornell) and many flagship state universities (like Ohio State and the University of Virginia).

The 2011 Dear Colleague Letter that was the subject of Senator Lankford’s questions is just the tip of the iceberg when it comes to the Education Department imposing new legal rules out of thin air, without codifying them in the Code of Federal Regulations, or complying with the notice-and-comment requirements of the Administrative Procedure Act, as I explain at this link.