FIRE: 'This Crystal Ball is Clear: OCR Cannot Issue a ‘Blueprint’ Without Following APA Rulemaking Procedures'
In an article published today in Inside Higher Ed, Allie Grasgreen reports on efforts to force colleges and universities to respond to sexual misconduct cases more aggressively. Grasgreen provides an overview of the efforts of the Department of Education's Office for Civil Rights (OCR) in this vein, including OCR's April 4, 2011 "Dear Colleague" letter (mandating use of the low "preponderance of the evidence" standard of proof in campus hearings for sexual misconduct allegations) and the "blueprint" for sexual harassment policies issued last month by OCR and the Department of Justice.
In the article, Daniel Swinton, senior executive vice president of the National Center for Higher Education Risk Management (NCHERM), believes that university officials should take the blueprint "into account when reviewing or revising their own policies." According to Swinton:
"A lot of those letters tend to be talismans to help us understand how OCR interprets the law, and they say it's specific to that institution, and it's true, but you can see a general set of principles and approaches in those letters that are transferrable to many institutions. ... We look to those as more informal guidance."
The Greeks had their oracles, the Romans their augurs, the Chinese favored omens, and later Western Europeans opted for reading tea leaves. Now university administrators have OCR's "talismans" to direct their decision-making? We hope not.
As we have explained, federal agencies can issue informal guidance to signal how they are thinking about particular policy issues. But if an agency wants to impose its view of the law on those it regulates, then it must go through the process of notice-and-comment rulemaking, as mandated by the federal Administrative Procedure Act (APA). This involves soliciting comments from those who will be affected by the proposed change in regulation and responding publicly in writing to their concerns. Swinton is missing this critical point—one that OCR wants everyone to forget.
OCR has no authority to set policy unilaterally, especially if it imposes a facially unconstitutional definition of sexual harassment on virtually every college and university in the country. But that's what OCR is trying to do. If the educational consultant community is planning to advise its clients to simply go along without insisting on the protections guaranteed by federal law, then higher education in this country will be poorly served indeed.
Serious problems deserve serious thought. That is why FIRE has led the criticism of the blueprint. And it's why we have been joined by many other voices, including The Washington Post, the American Association of University Professors' Committee on Women, and a former OCR lawyer, to name just a few. But there is a silver lining. As we have pointed out here, the blueprint is not legally binding on any institution except the University of Montana. The danger is that university administrators will follow it anyway. Fortune cookie, anyone?