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FIRE has long questioned whether the Department of Education’s Office for Civil Rights (OCR) has the authority to enforce as law its (DCL), which dictates how colleges and universities receiving federal funding must respond to allegations of sexual misconduct in order to comply with Title IX. Last month, United States Senator James Lankford wrote to Acting Secretary of Education John B. King to request the “precise governing statutory or regulatory language that support[s the] sweeping policy change” effected by both the 2011 letter and a dictating how schools must respond to bullying. Last week, Catherine Lhamon, the head of OCR, to Senator Lankford. Unfortunately, she didn’t really answer his concerns.

Concern #1: Interpretations of What?

As Lankford detailed in his letter, the Administrative Procedure Act mandates that new substantive rules imposed by government agencies be offered for public , so that those most affected by the proposed rule can offer their input. Agency “guidance,” which doesn’t create new rules but describes an agency’s interpretation of already-existing rules, does not have to go through the notice-and-comment process.

OCR has argued that the 2011 DCL’s text comprises only its interpretation of Title IX law, not new substantive rules, and therefore falls within the “interpretive rule” exception to the notice-and-comment requirement. In support of this argument, Lhamon cited last year’s Supreme Court case . Victims’ advocate group the same case in a letter to two senators last Thursday. But in Perez, the Court wrote, “From the beginning, the parties litigated this suit on the understanding that the Administrator’s Interpretation was—as its name suggests—an interpretive rule.”

In stark contrast, FIRE, Lankford, and others have argued that OCR’s “guidance” is not an “interpretive rule” because it imposed wholly new obligations on institutions—particularly the 2011 DCL’s mandate that colleges use the low, “preponderance of the evidence” standard when adjudicating allegations of sexual misconduct. Perez cannot provide support for an argument otherwise because the Court simply didn’t analyze whether the contested rule in that case was “interpretive.”

To get to the root of the issue, Lankford asked a critically important question in his letter: If OCR’s Dear Colleague letters are simply interpretations of pre-existing statutes and regulations, what are those statutes and regulations? As Lankford wrote, simply citing Title IX is insufficient:

What language does OCR purport to construe in its 2010 and 2011 Dear Colleague letters? The Dear Colleague letters cite Title IX at-large as authority for the letters’ policies on sexual harassment and sexual violence. Yet, OCR fails to cite to specific statutory or regulatory authority that the letters purport to “interpret.” … Regulated parties deserve a more precise legal justification than an “et seq.” citation to a 3,400-odd-word law and corresponding chapter in the Code of Federal Regulations.

He also pointed out that although —a federal regulation implementing Title IX, enacted lawfully through the —requires schools to “adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints” of sexual misconduct, that “regulation does not contemplate any standard of proof.” FIREagrees.

So what does Lhamon cite as the source of the “preponderance” mandate in her response to Lankford? 34 C.F.R. § 106.8(b)—the exact provision that Lankford already noted contains no specifications about standard of proof.

In an attempt to bolster this insufficient response, Lhamon’s response proceeds to cite past findings letters written by OCR as part of its investigations of individual institutions, in which OCR instructed those institutions to use the preponderance standard. Of course, findings letters are not submitted for public notice-and-comment. OCR’s defense is essentially that because it began enforcing this mandatory standard before publicly proclaiming it, the mandate isn’t new anymore and doesn’t have to go through the normal rulemaking process. We are unconvinced. As my colleague Ari Cohn pointed out here on the Torch in 2011, pre-2011 directions to individual schools reflected “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”—a significant difference from a top-down mandate. Through the 2011 DCL, OCR imposed the preponderance standard on all schools governed by Title IX regardless of their other policies or circumstances.

Lhamon also asserts that “OCR’s construction of the Title IX regulation is reasonable and, as explained in the 2011 DCL, is based on case law, mainly under Title VII of the Civil Rights Act of 1964 (prohibiting sex discrimination in the employment context), which courts have relied upon in analyzing Title IX.” It’s true that civil rights cases in court are judged with the preponderance of the evidence standard, but these cases are substantially different from campus hearings regarding alleged sexual misconduct. Most critically, the defendant in Title IX and Title VII cases is an institution, and the question is not whether harassment happened, but whether the school responded adequately. As former OCR attorney in his response to Lhamon’s letter, “FIREare not schools. Title IX and other federal civil rights laws impose obligations on schools, not individuals.” Besides the parties involved and the key questions being different, what’s at stake for the winner and loser is different in court and in campus hearings, and the afforded the parties are different. As Bader writes, OCR “just assumes” the burden of proof should be the same in cases against an institution and hearings against a student, but “it never explains” why—and it certainly doesn’t cite the specific legal authority Lankford asked it to produce to justify this mandate.

Finally, Lhamon argues that the widespread use of the preponderance standard before the 2011 DCL demonstrates that its “construction is also practicable.” First, that many schools might adopt this standard on their own does not mean that OCR may lawfully impose this standard on all other institutions, as well, without complying with the APA. Second, relying on the mere existence of policies as proof of their legality is extremely tenuous—anyone who reads ��֭����’s annual Spotlight on Speech Codes report can tell you that most public colleges and universities maintain policies that violate students’ First Amendment rights, for example.

In short, none of Lhamon’s arguments regarding the 2011 DCL adequately respond to Lankford’s—and ��֭����’s—concerns.

Concern #2: “Dear Colleague” Letter Mandates Enforced as Law

Lankford requested in his letter that OCR clarify that institutions will not be punished for noncompliance with guidance that cannot validly be enforced as law. He wrote:

For those policies that cannot be reasonably said to merely construe statutory or regulatory language, and are therefore not mere interpretations of existing law, please clarify, in no uncertain terms, that failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding, or rescission of federal funding.

Such clarification is vital. Senate hearings have revealed disagreement even within the Department of Education (ED) as to whether the 2011 DCL binds schools. ED deputy assistant secretary Amy McIntosh testified at a Senate committee hearing last fall that “guidance that the Department issues does not have the force of law.” On February 24, 2016, to a House committee hearing that “[t]he ‘Dear Colleague’ letters that we issue do not have force of law. They are not, from our perspective, the same as—clearly—as the statute or a regulation.” Yet as in an article published last Thursday (and as many have observed before), the 2011 DCL states that schools “must use” the preponderance standard in sexual misconduct hearings, and in recent years, OCR has consistently found institutions in violation of Title IX for not doing so.

in response to Lankford:

The Department does not view such guidance to have the force and effect of law. Instead, OCR’s guidance is issued to advise the public of its construction of the statutes and regulations it administers and enforces. [Footnote omitted.]

Since OCR plainly does require institutions to use the preponderance standard in order to be compliant with Title IX, the question again becomes whether OCR can point to a statute or regulation that requires this standard—that is, evidence that it is only enforcing law or an interpretation of law that already exists. Without that, OCR’s explanation here boils down to this: The agency isn’t making a new rule; it’s just saying it’s going to punish schools if they don’t do this thing that is not mentioned in any previous laws or regulations. Confused? Imagine how colleges and universities feel.

Bonus Round: Harassment Versus Unlawful Harassment

Lankford also expressed concerns about the 2010 DCL and its statement that Title IX prohibits a number of examples of expression that are in fact usually protected by the First Amendment, e.g., “making sexual comments, jokes, or gestures”; “distributing sexually explicit drawings, pictures, or written materials”; and “circulating, showing, or creating emails of Web sites of a sexual nature.”

In her response, Lhamon wrote: “OCR has … consistently made clear that such conduct, even if characterized as sexual harassment, is not prohibited by Title IX as unlawful sexual harassment unless it creates or contributes to a hostile environment” and the institution fails to properly respond to it.

To say that “any unwelcome conduct of a sexual nature” is the appropriate definition of “sexual harassment”—but not unlawful sexual harassment—is unhelpful, to say the least. OCR fails to appreciate the fact that if it labels something “sexual harassment,” reasonable members of the campus community will assume it’s prohibited. FIREwill self-censor, and administrators will punish such speech. They already have. Expecting students, faculty, and administrators to categorize protected expression as “harassment” but not take action against it is ridiculous—and contrary to OCR’s own advice. In its , OCR wrote:

If harassment has occurred, doing nothing is always the wrong response. … The important thing is for school employees or officials to pay attention to the school environment and not to hesitate to respond to sexual harassment in the same reasonable, commonsense manner as they would to other types of serious misconduct.

Note that the passage never specifies unlawful harassment, as opposed to ordinary, might-be-constitutionally-protected “harassment.”

And Lhamon is right: OCR has previously announced this confusing, speech-threatening conception of harassment. In 2013, OCR and the Department of Justice wrote that sexual harassment as “any unwelcome conduct of a sexual nature,” including “verbal conduct.” This definition was announced at the conclusion of the agencies’ investigation of the University of Montana, but they wrote that it should serve as “a blueprint for colleges and universities throughout the country.” As FIREand other free speech advocates noted, the agencies’ new definition encompasses a huge range of constitutionally protected expression. Disappointingly, colleges across the country are, indeed, adopting policies that mirror the “blueprint,” infringing on student and faculty rights to freedom of expression.

Even after reading OCR’s , due process and free speech advocates are still left without real answers about the statutory source of authority for OCR to enforce its “preponderance of the evidence” mandate and about the unconstitutionality of OCR’s overbroad definitions of “sexual harassment.”