Transition Rules in Administrative 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.

The Hypothetical

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?

Claimed Answers

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 Issues

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.

Common Law Principles

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 in Particular: The Funding of Federal Programs

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.

Implementing Regulation versus Statutory Interpretation

Nothing here yet.

Doe v. Rensselaer Polytechnic (2020)

"In Doe v. Rensselaer Polytechnic Institute, the Federal District Court of the Northern District of New York halted RPI’s scheduled Title IX hearing regarding a complaint that “Doe” had sexually assaulted “Roe” in part because the School was using its policies from before the new Title IX regulations were implemented, which did not involve steps such as allowing cross-examination of witnesses (a requirement for college level Title IX investigations in the new regulations), rather than its new policies implemented after the regulations went into effect. The Court suggested that the college should use the new procedures even though the alleged conduct had occurred prior to the effective date of the regulations. " New York Federal District Court Holds That Title IX Regulations Apply Retroactively," Melinda Kaufmann Pullman & Comley - School Law "Plaintiff alleges that defendant is discriminating against him on the basis of sex in contravention of Title IX of the Education Amendments of 1972 ("Title IX") through procedural irregularities in its disciplinary process and its disposal of his own Title IX sexual assault complaint....

On January 31, 2020, defendant notified Doe that it was initiating a Title IX investigation against him as a result of that incident. Dkt. 1-1, p. 2. On June 9, 2020, plaintiff filed his own Title IX complaint against Roe, alleging that he was too intoxicated to consent to sexual activity on the night of January 23. Dkt. 10-15, p. 9. Roe was interviewed by a Title IX investigator concerning her own complaint on February 3, 2020, Roe Int. 1, p. 1, and interviewed again concerning plaintiff's complaint on July 17, 2020, Roe Int. 2, p. 1.

On August 4, 2020, RPI concluded by a preponderance of the evidence that it was more likely than not that Doe violated the school's August 24, 2018 Student Sexual Misconduct Policy ("the 2018 policy") by sexually assaulting Roe. As was his right, plaintiff requested a hearing to challenge the initial finding that plaintiff had violated defendant's sexual misconduct policy. That same day, defendant dismissed plaintiff's Title IX complaint against Roe, finding that he had failed to establish his allegations by the same standard. ...

Doe timely appealed RPI's determination on August 11, 2020, requesting a hearing as to his claim's dismissal. ...

Defendant denied plaintiff's appeal on August 25, 2020, claiming that plaintiff had failed to demonstrate an error in the denial that would merit a hearing. ...

Practically speaking, the new rules would guarantee Doe eight rights, among others: (1) notice of the allegation, including sufficient details of the complaint and time to prepare a response; (2) the college being required to carry the burdens of proof and production against plaintiff; (3) a requirement that the evidence be evaluated objectively and not weighted differently for the complainant, respondent, or witnesses; (4) a presumption of his innocence; (5) notice of the applicable standard of proof; (6) plaintiff's ability to inspect and review evidence obtained as part of the investigation into the allegations; (7) the ability for plaintiff's advisor, be it an attorney or a school-provided counselor, to cross-examine witnesses; and (8) a limited right to appeal the school's ultimate determination. See U.S. DEP'T OF EDUC., SECRETARY DEVOS TAKES HISTORIC ACTION TO STRENGTHEN TITLE IX PROTECTIONS FOR ALL STUDENTS (2020), https://www.ed.gov/news/press-releases/secretary-devos-takes-historicaction-strengthen-title-ix-protections-all-students (last visited Oct. 13, 2020).

However, according both to the preamble of the new rules and to a blog post published by the Department of Education's Office of Civil Rights (the "OCR post"), the Department of Education "will not enforce [the new Title IX rules] retroactively." Dkt. 1-8 ("OCR Post") pp. 2-3. Instead, the OCR post states that a school will only be found to be noncompliant with Title IX if schools do not use the new rules to investigate and adjudicate instances of sexual harassment events "that allegedly occur[ed] on or after August 14, 2020."

Doe and his counsel, naturally interested in the new rules' additional protections for students accused of sexual assault, spoke to defendant's Title IX coordinator to request that the remainder of his investigation and his impending disciplinary hearing be conducted under the 2020 policy. Hardy Aff., ¶ 44. Citing the OCR post, defendant's Title IX coordinator responded that his hearing would follow the 2018 policy because the new rules were not retroactive. ...

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NOtes

Nothing here yet.

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