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

The decision says:

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. 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. Roe was interviewed by a Title IX investigator concerning her own complaint on February 3, 2020, and interviewed again concerning plaintiff's complaint on July 17, 2020.

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;... (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; ...
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.

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." 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 occurred 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. 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. ...

In other words, whether the Department of Education would have penalized RPI for not complying with the new rules or not, it could easily have implemented the 2020 policy for Doe's hearing because it must implement that policy for all future Title IX complaints. Instead, defendant decided that it would be best to maintain two parallel procedures solely to ensure that at least some respondents would not have access to new rules designed to provide due process protections such as the right to cross-examination that have long been considered essential in other contexts. See, e.g., Pointer v. Texas, 380 U.S. 400, 405 (1965) (noting that "to deprive an accused [in criminal settings] of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment's guarantee of due process of law").

Such disregard for the inevitable administrative headaches of a multi-procedure approach certainly qualifies as evidence of an irregular adjudicative process. Similarly, the Court finds that a school's conscious and voluntary choice to afford a plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action. That is precisely what RPI did in this case.

Doe has thus provided ample evidence to demonstrate both the elements of an adverse action and an irregular adjudicative process of his prima facie case for RPI's decision to follow the 2018 policy instead of its 2020 policy. Moreover, neither party can seriously dispute that plaintiff has been subjected to allegations of sexual misconduct. Plaintiff has thus at the very least established a reasonable probability of success on each of the first three elements of a prima facie case of discrimination under Columbia.

As to the fourth element, although there is little evidence in the record to date that RPI has been criticized for reacting inadequately to allegations of sexual misconduct by members of one sex, the Second Circuit has noted that "when combined with clear procedural irregularities in a university's response to allegations of sexual misconduct, even minimal evidence of pressure on the university to act based on invidious stereotypes will permit a plausible inference of sex discrimination." Menaker, 935 F.3d at 33 (emphasis in original). Accordingly, and especially given both the frequency and the publicity of universities being taken to task on this particular and serious subject, the paucity of evidence as to the fourth element at this moment does not meaningfully undermine Doe's probability of success at trial. Of course, Doe must still show that gender was a motivating factor in RPI's decision to employ the 2018 policy instead of the 2020 policy. To defendant's point at oral argument, its decision to apply the 2018 policy for all sexual misconduct complaints filed prior to August 14, 2020 applies equally to both sexes and does not by itself provide evidence that gender played any role, let alone a motivating one, in its action. But Doe's evidence of sex discrimination is not so confined as to only include RPI's conscious choice not to employ the 2020 rules to his disciplinary hearing. Rather, there are two aces up plaintiff's sleeve for that game, each tied to defendant's handling of plaintiff's complaint against Roe. First, RPI specifically noted that Doe's complaint against Roe was insufficiently substantiated because he failed to prove that he did not voluntarily consume alcohol and did not initiate sexual contact with Roe....

In a vacuum, RPI's inventive use of its policies may not say much about the role Doe's gender played in the process, but Roe's complaint arising out of the same encounter was not subjected to any of these fabricated requirements...

RPI counters Doe's showing by arguing that he has no right to have his hearing governed by the 2018 policy because both the preamble to the new Title IX rule and the OCR post state that the Department of Education will not enforce the new rule retroactively.[5] To hear defendant tell it, the preamble and the OCR post provide it license not to impose the new rules for sexual assault allegations where the alleged assault took place before August 14, 2020. In fact, defendant argues that those statements preclude this Court from finding to the contrary because it is bound to defer to an agency's interpretations of regulations that it promulgates. See Auer v. Robbins, 519 U.S. 452, 459-62 (1997).

Doe fires back that the preamble does not have the force of law and that the OCR post is not due any deference because it lacks formality and does not turn on the Department of Education's substantive expertise. Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019) (holding that Auer deference for agency's interpretations of agency regulations only applies to "an agency's authoritative, expertise-based, fair, or considered judgment" (cleaned up)).

Doe has the better of this argument for three reasons. First, even assuming that the preamble is entitled to deference, it would not be enforcing the new Title IX rules retroactively to use them for hearings occurring after August 14, 2020. After all, the preamble itself is unclear what it means when it discusses retroactivity.

It could mean, as RPI suggests, that the Department of Education would not sanction schools for not applying the new rules to any case where the alleged sexual assault took place before they took effect. But it could just as easily mean that schools would not face Department of Education sanctions if they did not reopen previously completed hearings that did not follow the new Title IX rules. After all, if a hearing—Doe's, for example—occurs under the new rules after August 14, 2020, from a certain point of view that hearing would apply the new rules prospectively because the rules were in effect before the hearing itself took place. In other words, defendant's proposed definition of retroactivity is not the only possible meaning of the word, and its argument does not powerfully sway the Court in defendant's favor.[6]

Second, Doe is correct that the Court is not bound to follow the OCR post because it is not an authoritative statement entitled to Auer deference. Kisor, 139 S. Ct. at 2414. As such, the OCR post's position that the relevant date for retroactivity is the date the alleged sexual assault occurred need not be the last word on the matter.

Moreover, given the logistical problems with that interpretation, the Court is not inclined to rally to that position. Under the OCR post's standard, schools may maintain two parallel proceedings until every claim of sexual misconduct allegedly occurring prior to August 14, 2020 is resolved. But it is unclear when that day would come, because there may be several claims that a sexual assault occurred prior to August 14, 2020 that have yet to be brought to a school's attention.[7] After all, under either the 2018 or 2020 policies, "a Complaint of Sexual Misconduct may be filed at any time, regardless of the length of time between the alleged Sexual Misconduct and the filing of the Complaint.

It would thus be difficult for a school to provide any kind of timeframe for sunsetting its policies that predate the new Title IX rules when the anchoring principle keeping those policies alive is the hypothetical possibility that new sexual misconduct claims for sexual assaults that took place before August 14, 2020, could arise. The absurd—yet necessary— result of an institution following the OCR post's guidance to the letter would be that school's indefinite maintenance of an entire alternative procedure, perhaps behind a pane of glass labelled "Break in Case of Emergency," just in case a claim of sexual assault allegedly occurring before August 14, 2020 should arise....

Thus, even if RPI would not be subjected to Title IX consequences from the Department of Education for electing to use the date of the alleged sexual assault as the date that governs which policy it will use, it was still free to choose to use the 2020 policy. It decided not to, despite the sizeable administrative headaches that decision entails. Accordingly, Doe will have several viable arguments at his disposal in dealing with defendant's prospective non-discriminatory reason for not proceeding with plaintiff's hearing under the 2020 rules, and defendant's retroactivity argument does not dip plaintiff's showing of likely success on the merits below the requisite fifty-percent threshold.

RPI's final argument against Doe's likelihood of success is that in Doe v. Rensselaer Polytechnic Institute, (N.D.N.Y. Jan. 11, 2019), Senior United States District Judge Frederick J. Scullin, Jr. found that its 2018 policy afforded accused students adequate due process rights and denied a preliminary injunction in similar circumstances. But that case is fundamentally distinguishable from this one.

First, the new Title IX rules had not even been proposed when Judge Scullin's Doe case was decided, let alone had taken effect and been ready for RPI to implement. Thus, a determination that defendant's policies were sufficient prior to the new rules taking effect means little in the wake of the sea change to the protections afforded to sexual assault respondents at colleges and universities. Moreover, the plaintiff in the earlier case did not advance a sex discrimination claim with the substantial evidence Doe has marshaled now. Instead, Judge Scullin only considered an attack on the procedure defendant employs, not an attack on how that procedure has been disparately applied to men.

All told, RPI's arguments against Doe's evidence do not dissuade the Court from the conclusion that plaintiff has proven that he will likely succeed on his sex discrimination claim under Columbia. He has thus adequately proven his entitlement to a preliminary injunction on the first factor for his first claim.

section 6

Doe v. Rensselaer Polytechnic, No. 1:20-CV-1185, October 16, 2020 (N.D. New York, 2020).

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NOtes

Nothing here yet.

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