Last November, the U.S. Department of Education proposed a rule that would govern cases in which universities receive complaints that a student sexually assaulted another student. The rule by the Trump Administration would allow students who are accused of sex assault to cross-examine, directly or indirectly, their accusers and other witnesses against them. The notice of proposed rulemaking issued by the Trump Education Department provides a stark contrast with the way that the Obama Administration addressed the problem of sexual misconduct by university students.

During the Obama years, the Education Dept. consistently refused to conduct a notice-and-comment rulemaking to decide how to regulate the procedures that universities use to investigate and adjudicate charges of sexual misconduct. As a legal matter, the letters were interpretative rules that do not have any legally binding effect. An agency can issue a legally binding rule only through the notice-and-comment process. The approach taken by the Education Dept. in the Obama Administration had two major practical advantages for the Administration. First, it enabled the Education Dept. to choose the procedures it wanted universities to follow and to coerce universities into adopting those procedures without having to consider criticisms of its preferred procedures or being required to defend its preferred procedures in court. By contrast, the approach taken by the Education Department in the Trump Administration requires it to solicit and consider comments from the public. The Education Department has received over 100,000 comments on its proposed procedures. It must now consider all of them and explain to the satisfaction of a court why it disagrees with the views expressed in any well-supported comments that criticize its proposed procedures.

Second, the Obama-era approach insulated the Education Department’s preferred procedures from judicial review. If anyone attempted to obtain direct review of the procedures, the Education Dept. could argue successfully that its Dear Colleague letters were unreviewable because they were mere non-binding announcements of agency interpretations of a statute. By contrast, the final version of the rule issued by the Trump Education Department would be subject to judicial review to determine whether the agency complied with proper rulemaking procedures, whether the agency adequately explained why it rejected criticisms of its proposed rule contained in well-supported comments, and whether the final rule is lawful.

It was particularly important for the Obama Education Dept. to insulate the procedures it urged in its Dear Colleague letter from judicial scrutiny. Those procedures clearly violate the due process rights of students who are accused of engaging in sexual misconduct.  Over the last six months, five courts have held in favor of accused students who were subjected to procedures of the kind that the Obama Administration urged universities to use in its Dear Colleague letters.  Judge Arthur Gilbert, of the 2nd District Court of Appeal of the state of California, described the situation created by the Obama Education Department well in a recent opinion he wrote reviewing such a case: “It is ironic that an institution of higher learning, where American history and government are taught, should stray so far from the principles that underlie our democracy.”

theregreview.org By Richard J. Pierce, Jr.

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