Academic journal article Northwestern University Law Review

Ocr’s Bind: Administrative Rulemaking and Campus Sexual Assault Protections

Academic journal article Northwestern University Law Review

Ocr’s Bind: Administrative Rulemaking and Campus Sexual Assault Protections

Article excerpt

Introduction

In an age when the seriousness of the United States' campus sexual assault problem has gained national prominence,1 but public sexual assault accusations against celebrities and the President of the United States are frequently ignored,2 the federal government's efforts to reform public schools' approach to these matters has never been more critical. In April 2011, the Office for Civil Rights (OCR) issued a "Dear Colleague Letter" (DCL) as a "significant guidance document" to aid schools in navigating their Title IX duties3 to "take immediate and effective steps to end sexual harassment and sexual violence" on campuses.4 The DCL included an array of previously undisclosed directives that inform schools of the standards they will be held to if OCR ever evaluates them for Title IX violations. These directives cover how schools are expected to investigate sexual assault investigations,5 how the adjudications should proceed,6 and what standard of proof should be used in those proceedings.7 However, OCR disseminated the DCL to schools without undergoing notice-and-comment rulemaking-the process normally required if agencies wish to legally enforce the provisions within a given document.8 Although the DCL did not undergo the notice-and-comment process, over the past several years, OCR has concluded investigations of schools with resolution agreements requiring the institution to alter aspects of their campus adjudicatory processes to align with provisions in the DCL.9 This enforcement scheme has raised concerns among jurists, legal scholars, activists, and the broader legal community about whether OCR abused its power by misusing exceptions to the rulemaking processes.10

Additionally, some educators and lawyers disagree with the letter's requirement that schools utilize a preponderance of the evidence standard in all campus sexual assault adjudications.11 This requires a showing that "it is more likely than not that sexual harassment or violence occurred."12 Some believe that this standard provides marginal protection for the accused and creates an unjust risk that a finding will be entered against them.13 The history of campus sexual assault proceedings says otherwise, however, and many schools applied the preponderance standard long before the DCL was published.14 Victims of sexual assault need the procedural protections provided by the preponderance standard, but it cannot be legally enforced unless it is a valid exercise of agency rulemaking.

The DCL's legitimacy has been an open question since its implementation15 and has taken center stage since the appointment of Betsy DeVos as the Secretary of the Department of Education in early 2017.16 Petitioners have legally challenged the DCL, and some have directly challenged the enforcement of the preponderance of the evidence standard. The plaintiff in one such case, Doe v. Lkamon,11 argued that the DCL's assertion that schools utilize a preponderance of the evidence standard in campus adjudications "ensures that victims, like Plaintiff John Doe" become "collateral damage" in the government's battle to reform Title IX.18 Though the suit is not yet resolved,19 and though the DCL's fate may have recently been sealed by Secretary DeVos's decision to denounce the DCL,20 the dispute provides insight into the controversy surrounding the measures the DCL attempted to implement. The Doe case demonstrates the procedural deficiencies of the DCL and why documents of this kind can be so easily revoked-something that President Trump's Administration has apparently taken note of.21

This Note addresses both the need for sexual assault reform and the limits of OCR's power within our country's agency-based federal legal system. In a sense, this Note sides with anti-DCL advocates who believe the guidance was always invalid. But, while those advocates believe that the DCL's procedural deficiencies go hand in hand with the perceived substantive shortcomings of the preponderance standard, this Note demonstrates that they should be considered separately and that the substantive preponderance requirement should be preserved. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.