Earlier, I explained why the Education Department’s Office for Civil Rights (OCR) was wrong to demand in 2011 that colleges lower the burden of proof in campus sexual harassment and assault cases (it wants to abolish the clear-and-convincing evidence standard traditionally used in campus disciplinary cases in favor of a lesser “preponderance-of-evidence” standard). The Education Department was also wrong to suggest that colleges restrict cross-examination in campus disciplinary proceedings. (I was once an OCR attorney.).
OCR’s controversial positions, which have been criticized by many legal scholars, law professors, lawyers, civil-libertarians, and journalists, were not contained in an agency rule preceded by notice and comment. Instead, they were imposed by a mere “Dear Colleague” letter issued without any public input or opportunity to comment (a letter that imposed new legal obligations on colleges under the guise of restating the law). See Dear Colleague Letter: Sexual Violence Background, Summary, and Fast Facts (April 4, 2011).
Now, amazingly enough, a court filing in a recently-filed lawsuit claims that these positions are not only correct, but that they constitute federal law, and that courts are bound to follow them, under Chevron deference, which requires the federal courts to defer to certain agency rules preceded by notice and comment. This is quite wrong. No such deference is warranted to positions advocated by an agency official in a “Dear Colleague” letter.
1. A “Dear Colleague” letter, by its very nature, is not entitled to binding force — that is, Chevron deference. See, e.g., Christensen v. Harris County, 529 U.S. 576, 587 (2000). Depending on its contents and reasoning, such a letter might be entitled to so-called Skidmore deference — a lesser form of deference which means an agency’s decision is not binding, but merely worthy of consideration, and thus to be followed only if it is “persuasive.” See University of Texas v. Nassar, 133 S.Ct. 2517, 2533 (2013) (agency manual was not entitled to even Skidmore deference, much less Chevron deference, since its “explanations lack the persuasive force that is a necessary precondition to deference under Skidmore“); Grimes v. Sobol, 832 F.Supp. 704, 712 n.13 (S.D.N.Y. 1993) (unlike regulatory interpretations “embodied in the form of a formal adjudication or rulemaking,” an Education Department “letter” interpreting Title IX’s sister statute, Title VI, was not entitled to Chevron deference, even when submitted to the court; “A department position stated amicus curiae is instructive, but is not afforded controlling weight.”); compare Christensen v. Harris County, 529 U.S. 576, 587 (“Interpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference,” which applies to agency positions set forth in “a formal adjudication or notice-and-comment rulemaking”); United States v. Mead Data Corp., 533 U.S. 218 (2001) (agency letter had no claim to Chevron deference); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (court can defer to agency position that is not binding only if it is satisfied of the “validity of its reasoning”).
As Cornell law professor Cynthia Bowman has noted, the April 4, 2011 Dear Colleague letter’s position regarding the burden of proof in campus disciplinary proceedings is not binding, and cannot legally impose legal obligations on colleges, because it is “not an administrative regulation, has not been subjected to notice and comment, and thus does not have the status of law.” See Michael Linhorst, Rights Advocates Spar Over Policy On Sexual Assault, Cornell Sun, April 4, 2012, at 1 (quoting Professor Bowman) (available at www.cornellsun.com/section/news/content/2012/04/04/rights-advocates-spar-over-policy-sexual-assault)
2. Moreover, any deference — even of the mild, weak Skidmore variety — is unwarranted as to OCR’s advocacy of a “preponderance” standard in its April 4, 2011 Dear Colleague letter, because, as I explain further below, that position is based largely upon a (faulty) analysis of Supreme Court decisions (dealing with the burden of proof in employment discrimination cases, see Dear Colleague Letter: Sexual Violence Background, Summary, and Fast Facts at 10-11 & n. 26, citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003)(discriminatory firing) and Price Waterhouse v. Hopkins, 490 U.S. 228 (1990) (discriminatory promotion)). Analysis of court decisions is obviously an area where courts owe an agency no deference, because that is judges’ area of expertise, not the agency’s.
As courts have noted, an agency’s interpretation of the law is not entitled to any deference at all where “the agency’s interpretation is based on analysis of Court decisions.” Konstantopoulous v. Westvaco Corp., 1992 WL 162957, *4 (D. Del. June 19, 1992). Thus, where a civil-rights agency, the EEOC, stated a position on whether a civil-rights law it administered was retroactive, based on Supreme Court decisions, its position was entitled to no deference. See id. As another court likewise observed, “Because the EEOC’s expertise does not encompass Supreme Court cases, this Court will not rest its holding on deference to the EEOC’s Policy Statement.” Crumley v. Delaware State College, 797 F.Supp. 341, 347 (D. Del. 1992); accord Aiken v. B.A.R.C., 799 F.Supp. 522, 533 (E.D. Pa. 1992) (quoting and following Crumley, supra). Such “a pure question of statutory construction” interpreting judicial precedent is logically “for the courts to decide.” See INS v. Cardoza-Fonseca, 480 U.S. 421, 445 (1987).
Nor does OCR’s position regarding the burden of proof purport to fill any gaps or gray areas in Title IX, something Chevron deference is intended to facilitate. See Chevron, USA, Inc. v. NRDC, 467 U.S. 837, 843-44 (1984) (Chevron deference applies where Congress has implicitly or explicitly “left a gap for the agency to fill,” resulting in a legislative “delegation of authority to the agency to elucidate” the relevant “provision of the statute by regulation”). Instead, OCR claims that the law on this issue has long been clear, and was decided years ago by the Supreme Court, and that it is merely following previously-established legal standards. An agency that claims its hands are tied due to longstanding precedent gets no deference from the courts in interpreting a statute, even when its interpretation actually does fill a gap or ambiguity in the statute. See Phillips Petroleum v. FERC, 792 F.2d 1165, 1169-70 (D.C. Cir. 1986) (agency received no deference at all, much less Chevron deference, where it erroneously “believed itself” compelled to a certain result by a Supreme Court decision, even though statute was “admittedly vague”); Transitional Hospitals Corp. v. Shalala, 222 F.3d 1019, 1029 (D.C. Cir. 2000) (agency receives no deference where it believed its position was the only one permitted by federal law; “discretion must be exercised through the eyes of one who realizes she possesses it”); Planned Parenthood v. Heckler, 712 F.2d 650, 666 (D.C. Cir. 1982) (Bork, J., concurring in part and dissenting in part) (regulation was invalid if based even partly on an “incorrect view” that particular statutory interpretation was compelled by Congress, unless that view “clearly had no bearing” on the agency’s interpretation).
3. This Dear Colleague letter is unlike other OCR guidance that has received deference from the courts, in that it did not follow notice-and-comment procedures. It is quite unlike Title IX’s famous Policy Interpretation on Intercollegiate Athletics, which has often been deferred to by the courts, because that was an area specifically delegated to OCR by Congress, and the policy was issued only after OCR solicited and received more than 700 comments. See Policy Interpretation, 44 Fed. Reg. 71,413 (Dec. 11, 1979). Compare Astrue v. Capato, 132 S.Ct. 2021, 2034 (2012) (Chevron deference applied to regulations because they were promulgated pursuant to a Congressional delegation of authority, and were “published after notice-and-comment rulemaking”).
4. With respect to the Dear Colleague Letter’s passing suggestion that cross-examination not be allowed, that suggestion should not be deferred to because it raises serious constitutional questions under the due process clause (and that’s even putting aside its qualifying language, and the fact that it is a suggestion, not phrased as a clear command that a court could defer to: “OCR strongly discourages schools from allowing students personally to question or cross-examine on another during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment,” see Dear Colleague Letter: Sexual Violence Background, Summary, and Fast Facts, at 12 (italics added)). The Dear Colleague Letter suggested this even though the Supreme Court has lauded cross-examination as the “greatest legal engine ever invented for the discovery of truth.” Lilly v. Virginia, 527 U.S. 116, 124 (1999).
Although cross-examination is not a general procedural requirement for college discipline cases, the absence of cross-examination can nonetheless violate due process in some cases, such as those that boil down to credibility contests. See, e.g., Donohue v. Baker, 976 F.Supp. 136 (N.D.N.Y. 1997) (cross-examination required in sexual-assault case) (“if a case is essentially one of credibility, the ‘cross-examination of witnesses might [be] essential to a fair hearing'”), quoting Winnick v. Manning, 460 F.2d 545, 549 (2d Cir. 1972). (Ironically, although OCR claims to follow federal court rulings when it wants to try to justify its demand for a lower burden of proof in campus discipline cases, it simply ignores federal court rulings when it comes to cross-examination. It disregards the fact that cross-examination of sexual and racial harassment plaintiffs is not only permitted in federal court, but relied upon by judges to dismiss cases on summary judgment based on admissions that plaintiffs have made in depositions. See, e.g., Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001)).
The courts must not defer to an agency’s interpretation, even if it would otherwise be entitled to Chevron deference, when (as is the case with OCR’s attack on cross-examination) the agency’s position would raise potential constitutional problems. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress”; rejecting agency interpretation of statute and refusing to apply Chevron); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979) (Court would decline to construe an act of Congress “in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religious Clauses”).
Although private colleges are not directly bound by the due process clause (since they are not state actors), when the government forces a private institution to do something that would violate due process if done by a government institution, that does violate the due process clause, as the Ninth Circuit Court of Appeals ruled in Merritt v. Mackey, 827 F.2d 1368 (9th Cir.1987). Thus, OCR’s restriction on cross-examination implicates due process even when it applies to private colleges. And so courts should follow the canon of constitutional doubts by not interpreting Title IX as suggested by OCR in the Dear Colleague letter, even in lawsuits involving private colleges.
5. Even if agencies were entitled to deference when they interpreted federal court rulings, OCR would not be entitled to deference here because, as I explained in my September 21, 2012 article, its interpretation of those rulings is just wrong. To justify Skidmore deference to an agency position, one must show “the validity of its reasoning,” the “thoroughness evident in its consideration,” and “all those factors which give it power to persuade, if lacking power to control.” Gonzales v. Oregon, 546 U.S. 243, 268 (2006), quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). But OCR’s reasoning is not valid, and is so scanty and unthorough that it assumed that Supreme Court rulings addressed the subject at hand, when they addressed a quite different question, even as it ignored the court rulings cited in my earlier commentary that cast its position into doubt.
The Education Department’s primary reason for imposing this low “preponderance” standard on school disciplinary proceedings was that this “is the standard of proof established for violations of civil-rights laws” in lawsuits brought in federal court. Therefore, it claimed, preponderance must also be “the appropriate standard for” schools to use in “investigating allegations of sexual harassment or violence.’” See pp. 10-11 & fn. 26, Dear Colleague Letter: Sexual Violence Background, Summary, and Fast Facts (“The Supreme Court has applied a preponderance of the evidence standard in civil litigation under Title VII of the Civil Rights Act of 1964. . .Grievance procedures that use [a] higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX”), citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (discriminatory firing; noting that under the “conventional rule of civil litigation,” the preponderance of the evidence standard generally applies in cases under Title VII); Price Waterhouse v. Hopkins, 490 U.S. 228 (1990) (preponderance standard applied in Title VII sex discrimination case alleging discrimination in promotion).
But these cases dealt with the burden of proving that the employer itself had committed discrimination in firing or promotions — acts for which it is automatically liable, unlike sexual harassment committed by employees or students. In court, the preponderance standard applies to whether the employer has done something illegal. In employment discrimination cases — the Dear Colleague Letter cites Supreme Court employment discrimination cases — that illegal act is hiring, promoting or firing someone based on their race or sex, which is illegal per se.
6. But in harassment cases, the illegal act is not the harassment per se — since colleges are not strictly liable for harassment by students — but whether an institution improperly responds to it. See, e.g., Gebser v. Lago Vista Indep. School District, 524 U.S. 274, 288-89 (2998) (no “vicarious liability” for harassment under Title IX in administrative or judicial proceedings); Adler v. Wal-Mart, 144 F.3d 664, 675-76 (10th Cir. 1998) (employer is not strictly liable for harassment, even if it has notice of it). Individual harassers cannot violate Title IX through harassment, only the school can violate Title IX, by failing to respond properly to it. To be improper, a response must be “clearly unreasonable,” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 649 (1999), and as the Education Department has elsewhere admitted, a school is not held liable “for the actions of harassing students, but rather for its own discrimination in failing to remedy it one the school has notice.” See Education Department, “Sexual Harassment Guidance,” 62 Fed. Reg. 12034, 12040 (March 13, 1997). So to violate Title IX, an institution’s own actions must be proven culpable under a “preponderance” standard — not just the harassing student’s actions. And there is simply nothing culpable or unreasonable about a college using the higher standard than “preponderance” known as “clear-and-convincing” evidence, which was historically the customary standard for college disciplinary proceedings of all types (including types that could lead to lawsuits), was specifically approved by courts, and thus is reasonable as a matter of law. See James M. Piccozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987) (“Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.”), citing Nicholas Trott Long, The Standard of Proof in Student Disciplinary Cases, 12 J. College & U.L. 71 (1985).
For example, the Third Circuit Court of Appeals held that an employer did not have to discipline an accused employee where the evidence did not convincingly prove he committed harassment, citing the absence of corroborating witnesses, since it responded reasonably to the harassment just by investigating and monitoring the situation. (See Knabe v. Boury Corporation, 114 F.3d 407 (3rd Cir. 1997).) Such corroboration is not required to show guilt by a preponderance of the evidence. But it can be far more crucial in demonstrating guilt by clear-and-convincing evidence. The employer escaped liability for sexual harassment despite requiring more than a simple preponderance of evidence.
7. In addition to interpreting — or rather, misinterpreting — Supreme Court decisions, OCR also cited the burden of proof it uses in determining whether a college has violated Title IX, which, again, is the preponderance standard. (As it noted, a “noncompliance determination” against a school must “be supported by a preponderance of the evidence,” and “OCR also uses a preponderance of the evidence standard in its fund termination administrative proceedings.” See Dear Colleague Letter: Sexual Violence Background, Summary, and Fast Facts, at pg. 11). But, once again, this standard is irrelevant, since that is the burden of proof that applies to whether the college improperly responded to harassment — not to whether the harassment happened or whether the accused student was guilty.
Only institutions — not individuals — can be found in noncompliance with Title IX, which holds schools, not individuals, liable. Smith v. Metropolitan Sch. Dist. Perry Township, 128 F.3d 1014, 1019 (7th Cir. 1997). And, again, as OCR itself has admitted, a school is not deemed to be in noncompliance because of “the actions of harassing students, but rather for its own discrimination in failing to” respond to it. See Education Department, “Sexual Harassment Guidance,” 62 Fed. Reg. 12034 (March 13, 1997).
Since an institution itself must behave in a culpable fashion, not just the alleged harasser, federal courts have held that there is no violation of the civil rights laws even if harassment occurs (by a preponderance of the evidence) and the harasser was not disciplined, as long as the institution investigated in good faith in response to the allegation of harassment. (See, e.g., Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000).) That’s true even if the institution ultimately refuses to discipline a harasser based on the reasonable but mistaken belief that he is innocent, after applying a firm presumption of innocence. For example, 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, but erroneously, failed to credit plaintiff’s allegations. 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 Harris v. L & L Wings, 132 F.3d 978, 984 (4th Cir. 1997).
In short, the fact that the institution’s own actions are judged by a preponderance-of-evidence standard says nothing about the standard that the institution must apply to students in disciplinary proceedings, or what burden of proof applies to their actions. Indeed, institutions are entitled to deference from OCR as long as they do not behave unreasonably — and there is nothing unreasonable about applying the traditional clear-and-convincing evidence standard to accused students, rather than a lower preponderance-of-evidence standard. (As the Supreme Court put it in its 1999 decision in Davis v. Monroe County Board of Education, 526 U.S. 629, 648-49 (1999), “We stress that our conclusion here . . . does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action. . . the dissent erroneously imagines that victims of peer harassment now have a Title IX right to make particular remedial demands . . .school administrators . . .must merely respond to known peer harassment in a manner that is not clearly unreasonable.”)