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As Torch readers are aware, we have spent significant time exploring the problems with the April 4, 2011, "Dear Colleague" letter issued by the Department of Education's Office for Civil Rights (OCR). That time has primarily been spent examining the negative effects of OCR's mandate that colleges and universities use the "preponderance of the evidence" standard when adjudicating cases of sexual misconduct. But we've also hinted at another major issue, as have  (a former OCR attorney) and, most recently, : Did OCR violate the law when it issued the "Dear Colleague" letter?

A brief history and explanation of administrative law is useful in order to adequately grapple with this question. "Administrative law" refers to the body of law concerned with the powers and functions of the various administrative agencies contained within the federal government. As commerce, technology, and society advanced throughout the history of the United States, the federal government increasingly found itself unable to manage and administer the complex day-to-day issues arising under its laws, due to time constraints and limited expertise on a wide range of matters. To alleviate this, starting in 1887 with the Interstate Commerce Commission, Congress began to enact statutes creating various governmental agencies to regulate and administer laws in particular areas. Regulations enforced by these federal agencies were to generally have the force of law. Some of these agencies were independent of any branch of government, and others were placed under control of the executive branch. (A small number were placed under the control of other branches.)

Though initially challenged as unconstitutional delegations of Congress' constitutional powers, the Supreme Court upheld the practice of delegating to regulatory agencies, even under the control of other branches of government, so long as Congress established "an intelligible principle to which the person or body . . . is directed to conform." J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). Shortly thereafter, as a result of New Deal policies, the number and authority of federal agencies rapidly expanded, creating a labyrinth of laws, regulations, and agencies through which individuals and businesses had to find their way. The United States Department of Education was established in 1979 and placed under the control of the executive branch as a cabinet-level department, tasked with, among other things, enforcing federal laws regarding privacy and discrimination in education (for example, Title IX).

Because these regulatory agencies were imbued with legal authority over individuals and businesses, the Administrative Procedure Act of 1946 (APA) was passed to ensure a level of protection for those affected by regulations issued by federal agencies. The APA established procedures for rulemaking, informing the public of agency activity, and adjudication. One such protection is the "notice-and-comment" requirement found in 5 U.S.C. § 553, which requires agencies to notify the public of proposed rulemaking and allow them to participate by submitting comments and concerns within a specified period of time (generally anywhere from a 30- to 180-day period). After considering issues raised by public comments, the agency publishes the final rule, in which it must "respond in a reasoned manner to the comments received, to explain how the agency resolved any significant problems raised by the comments, and to show how that resolution led the agency to the ultimate rule . . . [as the] basis and purpose statement is inextricably intertwined with the receipt of comments." Action on Smoking and Health v. Civil Aeronautics Bd., 699 F.2d 1209, 1216 (D.C. Cir. 1983) (quoting Rodway v. Dep't of Agric., 513 F.2d 809, 817 (D.C. Cir. 1975)). This allows those who may be affected by the regulation to raise concerns before any final action is taken, and thereby protect their interests. It also may prevent agencies from over-regulating, or imposing regulations not envisioned by Congress.

At this point, it is important to realize that OCR sent out its April 4 letter without any notice, comment period, or publication. It was an internally developed document that had no input from anyone other than whomever OCR might have requested input from.

However, not all actions taken by an agency are subject to the notice-and-comment requirement of the APA. Interpretive rules, statements of policy, and general policy guidance (which I will collectively refer to as "non-substantive rules") are excluded from the notice-and-comment requirement, for the general reason that they either only affect internal office policy, or simply clarify the agency's interpretation of its regulations or enabling legislation, rather than imposing new requirements on the public.

Unfortunately, Congress never precisely defined how those actions not subject to notice-and-comment differ from substantive rules, which do require notice-and-comment. (Note: While courts often use the term "legislative rules," this term often leads to significant confusion; as such, I prefer to use "substantive rules"). The result: years of litigation, tortured analyses, conflicting decisions, and utter confusion. As one court facing the issue put it, "[the distinction is] enshrouded in considerable smog." Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987).

However, one fairly consistent line of analysis has emerged from courts that have examined this crucial distinction. The Supreme Court has found that a crucial differentiator between substantive and non-substantive rules is whether they affect "individual rights and obligations." See Chrysler Corp. v. Brown, 441 U.S. 281, 301-02 (1979). The U.S. Court of Appeals for the D.C. Circuit—which likely decides more administrative law cases than any other federal circuit—has followed this distinction, holding that any agency action that imposes a new obligation or legal requirement on the public is a substantive rule and requires a notice-and-comment period. Young, 818 F.2d at 946. As such, courts will examine agency publications for mandatory words such as "must," "shall," or "will," in an effort to determine whether or not the agency intended to impose a new requirement or standard on the regulated person or entity. Id. Additionally, courts will examine whether the agency intended to bind itself, and thus constrain its own discretion in the matter. If so, then by nature the agency has imposed a binding obligation which creates rights and obligations. McClouth Steel Prod. Corp. v. Thomas, 838 F.3d 1317, 1320 (D.C. Cir. 1988). Other federal circuits have followed suit, holding that when agencies impose new obligations or limit their own ability to make individualized determinations when implementing regulations such that the policy has a binding effect on the public, the notice-and-comment procedures of the APA must be followed.

Conversely, an interpretive rule is one in which the agency merely explains what the agency thinks a statute means, and provides some instructional guidance. Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984). Even then, when an interpretive rule gives meaning to a vague term such as "fair" or "equitable," it may be deemed substantive and thus subject to notice-and-comment procedures. Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997).

This approach has support from the federal government itself. The "" categorizes substantive rules as those which "have the force and effect of law," whereas general statements of policy advise parties prospectively of how an agency will exercise a discretionary power. And the Office of Management and Budget's "" warns that "significant guidance documents" "should not include mandatory language such as ‘shall,' ‘must,' ‘required,' or ‘requirement,' unless the agency is using those words to describe a statutory or regulatory requirement."

So what happens if an agency promulgates a substantive rule without adhering to the proper notice-and-comment procedures? If proper procedures are not followed, the regulation is without the force of law, and will typically be invalidated and set aside by a court. Agencies will be unable to enforce their mandates until they issue them in accordance with the strictures of the APA. Courts have shown little tolerance for skirting of procedural requirements, particularly because they are in place for the purpose of protecting the public who are subject to the resultant regulation.

And so we reach the ultimate question: Did OCR improperly issue a substantive rule by sending out its April 4 letter without first giving notice, obtaining and responding to comments, and publishing the proposed rule as prescribed by the APA?

In the very first footnote in its letter, OCR claims that the letter is issued as a "significant guidance document," and does not add any requirements to applicable law. But of course, the fox cannot be left to guard the henhouse. The strictures of the APA were adopted to restrain agency action, and so we must remain skeptical of agency claims that its actions are exempt from them. Indeed, courts will not acquiesce to an agency's own characterization of its action if the language used by the agency indicates that it is in fact something else. See Young, 818 F.2d at 946.

So we are left with the task of examining the substance of the letter, in order to determine whether OCR has complied with the APA, or attempted to skirt it.

OCR is charged with enforcing Title IX, and may begin action to withdraw a school's Department of Education funding or ask the federal Department of Justice to begin judicial proceedings if the school does not comply with OCR's enforcement. In previous correspondence with individual schools, OCR has recommended that schools adopt a preponderance of the evidence standard when adjudicating cases of sexual misconduct or harassment. However, these were the results of investigating each school's policies as a whole, and the recommendation to adopt the "preponderance" standard was made in light of the totality of the circumstances at that particular school, in order to bring it to an overall acceptable level of Title IX compliance.

Here, however, for the first time, OCR has mandated that all schools, regardless of any particular circumstances or policies at individual schools, use the preponderance standard:

"[I]n order for a school's grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard.

[...]

Grievance procedures that use this higher standard [of "clear and convincing evidence"] . . . are thus not equitable under Title IX." [Emphasis added.]

The April 4 letter marks the first time that OCR has universally bound all federally funded institutions to the preponderance standard. This mandate quite clearly imposes a new substantive requirement on all funded institutions which had never before been imposed. That OCR intended to legally bind all institutions is not even in question—the letter itself admits to it. And indeed, within weeks of the letter going out, institutions across the country were in a frenzy to change their policies to comply—even if it meant trampling on the due process rights of their students, and even if the students were in the middle of the disciplinary process.

Moreover, OCR has for the first time bound itself to the preponderance standard, removing any opportunity for it to exercise discretion. Now, a university's use of the more robust "clear and convincing evidence" standard does not raise a rebuttable presumption of non-compliance with Title IX; it explicitly constitutes non-compliance. The D.C. Circuit has recently warned that if an agency wishes to avoid notice-and-comment, it must keep an "open mind" when applying its regulations. Intermountain Ins. Serv. of Vail v. C.I.R., No. 10-1204, WL 2451011 at *5 (D.C. Cir. June 21, 2011). OCR does not even pretend to retain discretion. The letter is nothing short of a rigid, strict mandate. Again, would schools have been in such a rush to hastily change their policies if the standard of evidence would be evaluated in light of the schools' policies and climate overall?

Nor can OCR evade the notice-and-comment requirement by claiming that this mandate is merely its interpretation of what is "equitable" under Title IX and its regulations. As I previously mentioned, interpretation of a particularly vague statutory or regulatory term can, and often does, rise to the level of a substantive rule. This is clearly the case here. Whereas previously the unique circumstances of each school drove OCR's determination of whether hearing procedures were "prompt and equitable," there is now a hard-line, inflexible measure that defines exactly what is not equitable. Put that together with the fact that OCR has bound itself to this mandate, and it is clear that this policy should have been subject to rulemaking procedures under the APA.

It is our conclusion that in issuing this mandate, OCR failed to comply with the required APA procedures, and has robbed the public of its opportunity and duty to participate in the rulemaking process. And we have already seen the negative effects of the myopic mandate, which a measure of public participation may have prevented or alleviated. Unfortunately, I suspect that we have not seen the middle—let alone the end—of these effects. A brave student or school may be able to successfully challenge this mandate, but it will involve enough time and expense that few are likely to be willing to stand up for their rights.

OCR seriously overstepped its boundaries in denying the public its right of participation in the rulemaking process, and in a short time we have seen exactly why that right of participation exists in the first place. Anyone who values the right to be involved in their governance should be outraged. Given the intense debate sparked by the "Dear Colleague" letter, we can be sure that there would have at least been a public conversation about it had OCR subjected it to notice-and-comment. Who knows if public participation would have resulted in a more rational, thought-out policy. The point is that none of us ever had the chance.