The Department of Education’s Title IX Power Grab

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The Department of Education (typically abbreviated as ED) recently issued a notice of proposed rulemaking regarding Title IX, the federal statute that forbids educational institutions receiving federal money from discriminating on the basis of sex. The proposed new rules would make it more difficult for colleges and universities to hold accountable those students who sexually assault or harass their fellow students.

Whether the proposed new rules strike the ideal balance between the interests of victims and the interests of people who may be wrongly or mistakenly accused of sexual harassment or sexual assault is a question that has already proven divisive. However, that policy question is not my main concern in this column. Instead, after explaining the key provisions of the proposed rules, I shall focus on an issue of law: Does Title IX give the ED the authority to mandate procedural rules that do not in any way appear to further the statute’s aim of sex equality in education?

Title IX, the Obama Policy, and the Trump Shift

First enacted in 1972, Title IX applies a broad prohibition on sex “discrimination under any education program or activity receiving Federal financial assistance.” It does not specifically refer to sexual harassment or sexual assault, but court rulings under Title IX and other federal anti-discrimination statutes make clear that an organization that fails to respond adequately to such offenses is culpable in that harassment or assault.

Faced with evidence that numerous (mostly female) students were the victims of sexual violence, the ED under President Obama issued guidance to covered institutions about how they should reform their approach to addressing allegations of such conduct. That guidance attracted criticism partly because it was not promulgated as a formal regulation but was instead embodied in a so-called “Dear Colleague” letter in 2011 and a follow-up Questions-and-Answers document in 2014. Critics also disliked some of the substance of the Obama ED policy, including its requirement that a “school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.”

Why was the ED specifying the burden of proof in college grievance procedures? Some schools had been requiring that complaints of sexual violence be proven by clear-and-convincing evidence or even proof beyond a reasonable doubt. The rationale for these heightened evidentiary standards was dubious. The beyond-a-reasonable-doubt standard applies in criminal cases where a defendant risks imprisonment. The clear-and-convincing standard applies in civil commitment hearings, where personal liberty is also at stake. It also applies in some other settings. However, in the vast majority of civil cases, the preponderance standard applies, even when the stakes are high, as when a plaintiff sues for defamation based on damage to her reputation. The preponderance standard applies even when the underlying conduct could be the basis for a criminal prosecution in which the beyond-a-reasonable-doubt standard would apply. By using a heightened evidentiary standard, the Obama ED concluded, schools were under-valuing the interests of victims of sexual violence relative to the interests of those accused of such violence.

The Trump administration withdrew the Obama-era guidance documents last year, replacing them with interim guidance that in some ways continued in force past ED policy. However, it also made clear that henceforth schools would be permitted to apply a clear-and-convincing standard in grievance proceedings. Why? The document cited a 2016 case involving Brandeis University, in which the judge objected to the university’s use of a preponderance test in sexual misconduct cases but a higher evidentiary standard in other disciplinary proceedings.

That sounds like a sensible objection, but it does not withstand careful scrutiny. After all, a standard of proof reflects a judgment about how to balance competing interests, which will differ from one context to another. Some kinds of serious misconduct at a university lack identifiable victims. For example, a school can permit a student accused of plagiarizing a term paper to remain on campus absent clear and convincing evidence of such plagiarism without worrying that his victims will stop going to class for fear of encountering him and being re-traumatized. In such cases, the cost of some extra “false negatives” is tolerable. By contrast, in a case of alleged sexual violence, the costs of false negatives and false positives are both high, which argues for an evidentiary standard that favors neither side.

A better justification for allowing schools to use a clear-and-convincing standard is institutional autonomy. Traditionally, Republican administrations have justified deregulation on the ground that private and nonprofit actors should be subject to government mandates only when strictly necessary. The proposed rulemaking includes some language about the importance of such institutional autonomy, and to the extent that the new rules take a hands-off approach, they will almost certainly be found valid if challenged in court.

The Difference Between “May” and “Must”

Yet the proposed rules would do more than merely permit schools to adopt procedures making it more difficult for victims of sexual harassment or assault to prove their cases. In some respects, the new rules would require that approach.

For example, the proposed rulemaking builds on last year’s interim guidance by affirmatively forbidding the use of a preponderance standard unless a school “uses that standard for other conduct code violations that carry the same potential maximum sanction as the recipient could impose for a sexual harassment conduct code violation.” Nor can a school use the preponderance standard for allegations against students if it uses a higher evidentiary threshold in cases against faculty. The Trump ED cannot justify these restrictions on the ground that they increase a federally funded educational institution’s autonomy, because they in fact limit such autonomy.

The proposed rulemaking prescribes the details of a recipient school’s grievance procedures in other respects as well. For instance, colleges and universities must conduct live hearings at which “the decision-maker must permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” The Trump administration seeks to justify these requirements on the ground that they are needed to ensure fair treatment of persons accused of sexual misconduct.

Well, what’s wrong with that? Don’t we want the ED to ensure fair processes for determining whether students are or are not responsible for sexual misconduct? If the Obama administration was allowed to strike a balance that was relatively favorable to alleged victims, why can’t the Trump administration strike a balance that is relatively favorable to alleged perpetrators?

The Scope of Agency Authority

In a recent column on this site, Professors Joanna Grossman and Deborah Brake provided powerful arguments against the substance of the ED’s proposed new rule. But before one comes to those objections, the ED must overcome a threshold issue: Does it have the statutory authority for the new rules? Even if one thought that the Trump ED’s proposed rulemaking struck the ideal balance between the interests of accusers and the interests of accuseds, that would not mean that it falls within the ED’s legal authority.

The Trump ED claims authority to promulgate new rules under Title IX and no other delegation of power from Congress. Title IX does indeed authorize agency administrative action, but it only authorizes agencies to establish rules that “effectuate the [substantive] provisions of” Title IX. Those regulations must be “consistent with the objectives of” whatever statutes provide federal funding, but that caveat restricts rather than enlarges the ED’s authority under Title IX.

One can think that the Obama ED policy on addressing sexual misconduct at Title IX-covered educational institutions was wrong-headed or under-valued the interests of students accused of such misconduct, but there was little doubt that it aimed to “effectuate” Title IX’s anti-discrimination mandate. By contrast, those provisions of the Trump ED’s proposed rulemaking that do not simply roll back Obama policies but affirmatively impose procedural requirements that aim at protecting persons accused of sexual misconduct do not effectuate Title IX’s policy against sex discrimination.

To reiterate, the problem here has nothing to do with the policy question whether the Trump approach is better or worse than the Obama approach. The question is whether Title IX delegates to the ED the authority to tell recipients of federal funds not to do too much to protect students against sex discrimination. It pretty clearly does not.

An analogy may be helpful. Suppose that a federal statute delegated to the Environmental Protection Agency (EPA) the authority to “restrict pollution from coal-fired power plants.” A provision of the Clean Air Act actually does more or less that, but for purposes of my hypothetical example, I want to suppose that the quoted language is the entirety of the delegation. Now let’s imagine that a Democratic administration adopts regulations setting certain limits on emissions from coal-fired power plants. A new Republican administration comes into office having pledged to relax regulations in order to promote economic growth. It would have the authority to ease the prior administration’s requirements by replacing them with laxer regulations. After all, a leading Supreme Court case said pretty much exactly that.

However, suppose that the Republican EPA tried to adopt rules that not only allowed coal-powered plants to emit more pollutants than they were emitting under the Democratic EPA’s rules, but that actually required such higher levels of pollution. Even if one agreed with the Republican administration that the higher pollution levels struck the optimum balance between clean air and economic growth, one would have to say that the Republican EPA’s rules were unlawful as ultra vires. The statute I hypothesized above authorizes the EPA to “restrict pollution.” That necessarily delegates some discretion to each administration to decide how much pollution to restrict. But it delegates no authority whatsoever to require pollution.

The Trump ED’s notice of proposed rulemaking is just like the regulation requiring pollution—at least to the extent that it purports to find in Title IX the authority to direct colleges and universities receiving federal funds to adopt procedures that make it harder for victims of sexual misconduct to prove their cases. If such procedures are a good idea (or even if they’re a bad idea), the ED can tell colleges and universities they may adopt such procedures. But Title IX gives the ED no authority to mandate them.

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Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.