The Second Title IX “Power Grab”

Of all the aspects of the proposed Title IX revisions to focus on, Cornell lawprof Mike Dorf oddly chose the burden of proof, probably the least significant aspect of the changes to trial lawyers. When Catherine Lhamon, head of the Department of Education’s Office of Civil Rights told colleges to use the “preponderance of evidence” standard or else, her purpose was to facilitate findings of guilt.

Dorf adopts the argument preferred by twitter lawyers in favor of the reduced burden.

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 argument is valid, as far as it goes, but it’s only half an argument. Along with the lower standard comes voluminous discovery, interrogatories, depositions, motion practice and all the accouterments of litigation, not to mention rules of evidence and a judge to preside over the matter rather than a humanities prof. It may be that Dorf wasn’t trying to slip this past anyone, but just doesn’t know any better.

But the proposed change doesn’t require the use of the “clear and convincing” burden, but merely allows it provided the same standard is used for all disciplinary actions. So if colleges are using clear and convincing for plagiarism, they need to use it for sexual harassment as well, which means they can increase it or decrease it, as they prefer. No big deal.

More importantly, burdens of proof are of little practical effect in the hands of non-lawyers. It almost always ends up being decided based on “do we believe he did it,” with the niceties of the standard rationalized away by the outcome since no one wants to let the dude who did it walk. Again, no big deal.

But Dorf makes a remarkable and novel argument in order to blunt this shift.

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.

Among the great many criticisms of the Lhamon “guidance” was that it was a flagrantly unlawful abuse of power. By unilateral fiat, a bureaucrat imposed rules upon the nation’s colleges to create a duty and mechanism to sex police their campus for the sake of Lhamon’s feminist agenda. She didn’t propose regulations. Her demands were never subject to the Administrative Procedure Act, to notice and comment, to review by anyone. Lhamon just did it, and colleges who failed to comply were threatened with loss of federal funds.

The DoE under De Vos rescinded Lhamon’s rules and proposed new rules, this time in accordance with law. When Lhamon, on her own and without complying with law, created an entire structure to force her vision of Title IX sex policing on colleges, that was cool.

Undoing this massive usurpation of authority imposed by a lone bureaucrat without constraint? A power grab.

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.

Trying to be as generous as possible, Dorf’s argument is that Lhamon’s imposition of unlawful rules under the guise of “guidance” upon pain of loss of federal funds was fine because it “effectuated” the law by protecting victims of sexual assault. De Vos’ rules, proposed in accordance with the APA, however, are ultra vires because they provide the small comfort of minimal due process to the accused, and being fair to the accused does not “effectuate Title IX’s policy against sex discrimination.”

In other words, any system that makes convicting male students of sexual assault, regardless of whether they’re guilty or innocent, regardless of whether there was a sexual assault at all or just “felt” like a sexual assault the next day, or month, or year, is fine. Any limit on that system that provides for due process for the accused, on the other hand, is beyond the authority of the Department of Education, as Title IX only allows for the one way street of protecting women from sex discrimination, not men from false conviction and the imposition of disastrous punishment.

There is some merit to Dorf’s contention, in that Title IX prohibition against sex discrimination in education never provided cover for any of this beyond the authority provided by the Supreme Court in Davis v. Monroe County Board of Education. Lhamon’s manufacture of a system out of nothing was no more authorized than had her “Dear Colleague” letter required that males be dunked in a pond to see if they floated, which would have been beyond the scope of any subsequent and sane bureaucrat to modify to a modestly legitimate hearing.

But Dorf’s argument suffers from the same error that has confused so many advocates, that sex discrimination is a two-way street, and much as colleges might prohibit discrimination against women, so too must they prevent discrimination against men. Despite Lhamon’s facile Frankensystem’s euphemistic effort to cast this as “victims” versus “perpetrators,” this system is  emphatically women against men, as fundamentally reflected in every argument for its very existence.

Protecting innocent male students from ruin is just as much effectuating the goal of eliminating sex discrimination as protecting women’s right to enjoy educational opportunities. Plus, there’s that little matter of constitutionally-mandated limited due process before colleges let their male students drown in the pond to prove they aren’t rapists.

While eliminating the nightmarish system Lhamon invented might be the best solution, it’s bizarre to argue that De Vos’ complying with law, with the Constitution, with the Supreme Court’s decision and, indeed, effectuating Title IX for males as well as females, is anything but ultra vires. But Dorf gets credit for the novel, if absurd, argument to stop a bureaucrat from complying with the law and undoing the unlawful.

13 thoughts on “The Second Title IX “Power Grab”

  1. Dan

    The mental gymnastics required to reach this conclusion are actually kind of impressive. But I don’t think that’s a good thing.

    Reply
  2. Random Wine Geek

    Dorf cleverly but disingenuously describes Title IX as forbidding educational institutions from discriminating on the basis of sex because a more accurate description of the statute would undermine his premise. It also prohibits exclusion from participation in and denial of the benefits of any education program or activity on the basis of sex. Expulsion and lengthy suspensions by definition exclude a student from participation in and deny the student the benefits of an education program or activity, so preventing those activities from being errantly imposed on the basis of sex would clearly seem to fall within the ambit of Title IX.

    Reply
  3. Kevin

    I can only add to these arguments that Dorf’s argument is ridiculous, for many reasons. Here are a few more:

    1. The whole Dorf argument rests on the word “effectuate.” The regs must effectuate Title IX, that is, work one-sidedly against discrimination, he says. But “effectuate” means to put into force or operation. If two-sidedness is appropriate to put into operation, so be it.
    2. If the aim of the new regs is to replace the (unlawfully promulgated) Obama system, the new regs should be of a similar scope. They too should be able to set out a procedure for adjudication of these cases, and that procedure can be balanced. The new regs are trying to impose and suggest a system that is in the DE’s view (right or wrong) just right, not one that legally must be one-sidedly trying to protect the accuser.
    3. The Obama regs required protections for the accused (e.g., requiring “adequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence”). Was that ultra vires as well? Wouldn’t that be a silly conclusion?
    4. The current regs still in force require a “prompt and adequate” procedure. Can’t the new regs spell out what “equitable” means? (34 C.F.R. § 106.8 (b) : “A recipient [of federal funds] shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part.”).
    5. Dorf completes his wordplay by a require/allow gambit. Surely the DE can require a fair procedure to stamp out sex discrimination. Wait, it can only allow a fair procedure, says Dorf. Stamp away. I agree that the DE could not require sex discrimination (or pollution). But that has nothing to do with a play on “require/allow.”

    Dorf’s result-oriented impetus is so strong that he has crafted an argument that would hamstring the whole administrative state. Agencies could only promulgate one-sided regs–and that one side will often, in current days, be a side that Dorf detests.

    Reply
    1. Dan

      “Dorf’s result-oriented impetus is so strong that he has crafted an argument that would hamstring the whole administrative state.”

      You say that like it’s a bad thing.

      Reply
    2. szr

      Good points Kevin. If Dorf’s argument were broadly accepted, it would almost require a never-ending regulatory escalation. Regulation becomes a ratchet wrench with no release mechanism.

      Reply
    3. M Gould

      Your argument suffers from the same problem as Greenfield’s post. You are creating a straw man of Dorf’s argument and arguing against that, instead of what Dorf actually said. I have to wonder if you even read Dorf’s posts, or just based your comments on Greenfield’s description of Dorf’s argument. Dorf never makes the claim that title IX requires “one-sidedness.” or that the Obama DE actions were “fine.” You and Greenfield are so focused on the perceived wrongness of Lhamon’s actions that you mischaracterize Dorf’s argument as a defense of those actions.

      Reply
      1. SHG Post author

        Neither of us characterized Dorf’s argument as a defense of those actions. Ironic, given your bald contention that we’ve created a straw man. Dorf’s words are quoted in the post. They say what they say.

        Reply
  4. B. McLeod

    There are various theories, some successfully in play in the courts, as to why the Obama era pen-and-phone (e.g., DACA) can’t be undone by Trump era pen-and-phone. Long-term, I don’t see how this can work in any principled system of law. Short-term, it may keep some Trump era reversals tied up in litigation until his term is over.

    Reply
  5. Osama bin Pimpin

    In terms of the “chess game” mentioned by other poster and in light of fact original poster’s position that burden of proof is the least important part of the DeVos package, and most importantly to preclude rejoinder “it’s not a criminal trial,” why don’t we focus on procedural rights that are also bedrock for civil trials, most importantly right to counsel actively involved, all cards shown (or showable) in discovery, death to single investigator model? That alone may bring some sense of fair play.

    Most most importantly full transcript of proceedings. I’ll bring my tape recorder. I hold this one first because I expect impact of DeVos package is that school administrators will flout new guidance and will only respond to having feet to fire with threat of judicial review by real courts. Down with Star Chambers!

    Reply
  6. Lee

    The simple answer would be to get colleges and universities out of the sexual assault prosecution altogether. But I suppose that that would require action from the Supreme Court. Seeing that in all of the cases I remember hearing of in which a federal lawsuit was filed, the school lost, that seems unlikely.

    Bah! Humbug!

    Reply

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