Transition Rules in Adminstrative Law

Note. This is a first draft. I want to write it up to get comments. I have not checked the law, the dates, and the facts in it, and probably some of them are wrong. It is accurate enough to be useful for discussion, however.

Consider the Title IX regulations on the question of whether a university has to allow a professor to know the names of the witnesses against him and let him ask questions. The Obama rules said it does not--let's call those the 2015 rules. In May 2020, the new Trump rules said that it did. Very likely, there will be Biden rules soon that will say it does not again-- let's call those the 2022 rules. Suppose that in 2019 the university starts investigating the professor for allegations of misconduct in 2018, but the investigation continues until 2023. Which rules must the university follow?

My own university takes the position that it should use the Obama rules. The Dept of Education said in August 2020, I think, that it is okay but not necessary to use the Obama rules if the investigation is for "sexual harassment", but is silent as to an investigation for "sexual discrimination". I hear that New York court has ruled against the Department of Education on this point, saying that it is improper to let the university have its choice of whatever rules it likes best depending on the professor being targeted.

The question raises lots of interesting questions, and reaches to the profoundest issues in administrative law. What is a regulation? What deference do the courts owe to the agency, if any? Can Congress really delegate lawmaking authority to the President so that the law changes with each presidential election? Is the President really in charge anyway, or does our system give real sovereignty not to Congress or the President, but to the bureaucracy?

This last question may seem overdramatic, but it is not. Suppose, as is likely, that the Department of Education personnel favor the Obama rule of not allowing the professor to ask questions that might help with his defense. When Trump came to office, it took him 3 years, until May 2020, to get the new rule through the process. The bureaucrats said universities actually did not have to comply until August 2020. Then they said that if the allegations were for behavior before August 2020, the university did not have to comply at all. No doubt, if in 2022 a university wants to investigate allegations of misbehavior between August 2020 and 2022, the Department of Education will say they can use the new 2022 rules. Thus, by playing with transition rules, the Department of Education can entirely thwart a disfavored President and the Administrative Procedure Act.

The courts do provide a check on the Department of Education. Let's think, first, what the law *should* be, according to common law principles. We will ignore Bill of Rights issues, and just think about the contract between professor and university.

That contract says that the professor may be fired for severe misconduct, but not at the whim of the university. It is not employment at will. The contract is unclear about how bad the misconduct must be, or what procedures must be followed, if any, to decide whether it really was misconduct. Common law principles would say that the severity of the misconduct required for dismissal would depend on the past practice of the university and other universities and on both party's reasonable expectations, which could change over the years of the contract. No particular procedures would need to be followed, but the Court would tend to defer to the university if it followed careful procedures that would be likely to produce a fair and accurate result, and to be suspicious and defer to the professor if the university chose arbitrary procedures that looked chosen so as to lead to firing for unlawful reasons that couldn't be exposed to the light of day.

Title IX is special. What the statute says is that the Department of Education will not fund universities that discriminate on the basis of sex.