Former OCR Lawyer Hans Bader Responds to Finding of Title IX Violation at Harvard Law School

Last week, the Department of Education’s Office for Civil Rights (OCR) announced its finding that Harvard Law School (HLS) failed to comply with Title IX. Former OCR attorney Hans Bader responded to OCR’s findings and resolution agreement with HLS on Examiner.com yesterday, reiterating concerns that he, FIRE, and other due process advocates have raised previously in the context of other institutions and guidance documents from OCR.

FIRE has argued before that OCR’s April 2011 “Dear Colleague” letter (DCL) is not binding law, and in fact violates the Administrative Procedure Act (APA), because it imposes new legal requirements on schools but was not subject to “notice and comment”—an opportunity for those affected by new agency regulations to give feedback before they are implemented. Despite this, and despite OCR’s own statement that the DCL “does not add requirements to applicable law,” Bader demonstrates that OCR continues to treat provisions of the DCL as new, binding law. Most obviously, OCR found that HLS’s use of the “clear and convincing” standard of proof in sexual misconduct cases violated Title IX; it says that the school must use the “preponderance of the evidence” standard. Yet such a requirement is found nowhere in Title IX or even in regulations that went through the notice and comment process—it is found in the 2011 DCL.

Bader notes that OCR’s enforcement of new requirements based solely on its own DCL and other guidance means that it will be very difficult for institutions to assess and comply with their Title IX obligations in the manner that they would research their obligations under other laws. He writes:

OCR’s bureaucratic overreaching based on its uncodified, unvetted agency rules also illustrates how hard it is to calculate the overall cost of regulations. Many such regulations fly below the radar. Before an agency imposes new obligations on regulated entities, it is supposed to include them in a proposed rule, provide an opportunity for notice and comment in the Federal Register, and then publish the final rule containing them in the Code of Federal Regulations. But agencies sometimes don’t do so, instead imposing the obligations in obscure “guidance” letters, under the fiction that they are just restating the law – the fiction relied upon by the Education Department’s Office for Civil Rights in the “guidance” it enforced against Harvard.

The result is that a researcher combing the Code of Federal Regulations in an attempt to tally the overall cost of federal regulations is likely to entirely overlook many costly obligations imposed on businesses and other institutions by federal agencies outside the lawful rulemaking process. But woe be unto the person who ignores such illegal rulemaking. That person will be deemed to be in violation of federal law by power-hungry agency officials, for failure to comply with assertions contained in such illegally promulgated rules – or even, in Harvard’s case, for failure to publicly parrot those assertions.

Read more of Bader’s thoughtful analysis of OCR’s findings and resolution with HLS at Examiner.com.