Sometimes, a part of our government goes off-the-rails and pursues policies directly divergent from its purported purpose.  Usually, when one does, we have administrative procedures in place to allow others to challenge and correct those missteps.  When we don’t, we usually have at least a watchdog available to highlight the problem.  But sometimes, everything goes wrong, with the part that went-off-the-rails choosing a tact that prevents any real-time check and with later events gutting the ability of even our public watchdogs to bring light to bear on how wrong we’ve gone.

What Went Wrong

One remarkably clear example: the last Administration saw its Department of Education’s Office of Civil Rights issue three pieces of “guidance” to every educational institution in the country, both private and public, about the application of Title IX of the Education Amendments of 1972 to allegations of sexual harassment or sexual violence.  The first of those issuances of “guidance” included an alteration to substantive law, informing every educational institution in the country that the Department had decided for the first time that they must adopt the preponderance-of-the-evidence standard for all ensuing investigations. 

Given that many allegations of sexual harassment (and all allegations of sexual violence) include alleged criminal violations, it may seem odd that an Office of Civil Rights was ordering into place the use of a standard acceptable for no determination in those parallel proceedings, specifically because of their insufficiency to protect the civil rights of accused Americans.  Have no fear, though: the second “guidance” issuance, if not the first, acknowledged that “[t]he rights established under Title IX must be interpreted consistently with any federally guaranteed due process rights.” But then the second “guidance” letter gutted this belated acknowledgement through the further direction that “a school should ensure that steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.”  And that second “guidance” letter went further, directing that in “a Title IX investigation” the whole host of legal safeguards the U.S. Constitution requires for accused Americans (“the right to counsel, the right to a speedy trial, the right to a jury trial, the right against self-incrimination, and the right to confrontation”) “are not required.”  The third, specifically, coached institutions on the Department’s expectation that they take “immediate action” following any complaint of harassment, even where the accuser preferred to remain anonymous (and the school agreed not to disclose their identity); indeed, the third even suggested methods a school could employ to keep the identity of the accuser unknown to the accused while they were “immediately” investigated.

One might reasonably have questioned the impact on campus debates that all these changes might have had.  One might have questioned the permissibility of a government agency like the Department of Education announcing that all educational institutions receiving federal funds, public or private, must adopt these standards, despite any such impact on campus debate.  Again, the second “guidance” assured that no such worries were necessary, as the Department “protect[s] students from prohibited discrimination and do[es] not restrict the exercise of any expressive activities or speech protected under the U.S. Constitution.”  “[W]hen a school works to prevent and redress discrimination, it must respect the free-speech rights of students, faculty, and other speakers.”  So all righty then!  No reason for concern, not even if the same Department of Education joined with the Department of Justice in 2013 to inform the University of Montana that it being required to investigate “unwelcome conduct of a verbal nature” (even when no reasonable person would find the speech in question objectionable) would serve “as a blueprint for colleges and universities throughout the country” of how “to protect students from sexual harassment and assault.”

The Method Denies a Right to Challenge the Policy

Since the Department of Education pursued this substantive change of law through issuance of “guidance” rather than through the rulemaking process, the Administrative Procedures Act did not apply, leaving no clear way to challenge whether the change was consistent with law, whether it was made in a manner that was neither arbitrary nor capricious, or whether it would have an unconstitutional impact on the free-speech rights of Americans.  It is worth noting that early on in the current Administration, the Department of Education withdrew its predecessor’s “guidance” on these issues.  The Department has since undertaken the rulemaking process – assuring all those checks will apply to its own policy implementation, while bringing greater clarity to this area of law – and a final rule is expected to be announced shortly.  Nonetheless, the prior Administration’s resort to “guidance” instead of rulemaking prevented any real-time check on its action.

Cooption of the Watchdog

And that is where the rest of our story takes flight.  Because, while the Department’s decision to change substantive law through issuance of new “guidance” denied anyone the normal opportunities American law provides to question its decision, it didn’t stop the United States Civil Rights Commission, America’s statutory guardian of civil rights since 1957, from investigating.  And the Civil Rights Commission decided, in 2013 (before the Department’s second and third issuances of “guidance”) to undertake a narrow investigation into the conflict between the First Amendment and free expression, on the one hand, and sexual harassment law as applied on campus, on the other.

But a funny thing happened between that decision and the Commission’s release, in January, of its related report seven years later.  Catherine Lhamon, the Assistant Secretary of Education for Civil Rights who oversaw the preparation of at the last two of those rounds of “guidance[,]” became the Chairman of the Commission.  And Chairman Lhamon had no interest in recusing herself from “grading” Assistant Secretary Lhamon’s previous work.  No, instead, she oversaw the production of the Commission’s final report, published over her signature, with the odd title of “Free to Learn: Speech and Sexual Harassment on Campus[.]”  As her peer Commissioner Gail Heriot (the initial sponsor of the report) notes in her dissenting statement from the final product, this was a departure from the report’s working title of “Sexual Harassment and Free Speech on Campus[,]” which revealed the degree to which even the watchdog’s work had been thoroughly corrupted midstream – “In the first version, by using the term ‘free speech,’ the report implicitly acknowledged the importance of the Constitution’s insistence that speech be free of government control.”  “The latter version sends a somewhat different message.  In it, speech is just speech.  But ‘freedom to learn’ implicitly suggests that the government has a duty to intervene to prevent or discourage certain kinds of speech that may be deemed offensive.”

And those implicit suggestions?  They don’t stay implicit long.  While the report acknowledges that “some” have characterized Title IX procedures as “kangaroo” courts and admits allegations that they “lack [] transparency, lack [] due process, and … chill speech of both students and professors[,]”  it wrongly derides these concerns as “legal[ly] inapplicable[,]” since some schools at issue are private.  Commissioner Heriot rightly notes that the distinction is moot – while a “private college or university may, consistently with the Constitution, require its students to speak and act in ways that the federal government may not… that doesn’t mean the federal government can command a private college or university to do so.”  But equally fundamentally, the dodge doesn’t work because the Department’s “guidances” went to both private and public schools – the U.S. Constitution forbids the latter from engaging in any such speech chilling conduct.

The report then further downplays any remaining concerns that the threat of investigation for “unwelcome conduct of a verbal nature” might chill Constitutionally protected speech with the observation that “[p]olls have found that 72 percent of students support disciplinary action against ‘any student or faculty member on campus who uses language that is considered racist, sexist, homophobic or otherwise offensive.”  Far from showing that the risk is unreal, though, this data proves that the risk is both exactly what is feared and what the Constitution forbids – a government exercising power to aide a majority in silencing specific content it finds “offensive.”  Only later does the report grudgingly acknowledge that multiple federal courts have, indeed, held university sexual-harassment policies to be unconstitutional intrusions on students’ freedom of speech, spinning those decisions as requiring little more than clearer draftsmanship in how universities define the categories of speech they forbid.

At the end of the day, the Commission issued five (5) recommendations.  With one notable exception,[1] those recommendations are for more of the Constitutionally-problematic same.  More “vigorously enforce[d] Title IX[,]” whatever the impact on speech.  More assertions that the Department’s “enforcement standards comport with and … adhere to First Amendment principles[,]” even if at least two (2) federal courts have found that they don’t.  More government by “guidance” to prevent harassment, even if the announcement of substantive policy changes through this vehicle is indefensible under administrative law and plainly denies effected parties the protections to which that body of law entitles them.  More data gathering by the Department on the full panoply of compelled investigations and their outcomes.

Chairman Lhamon, sitting in judgment of Assistant Secretary Lhamon, assured that the Commission would laud her efforts and endorse the policies she implemented in her previous role.  Missing the point that those policies reduced the civil rights of Americans (both those accused and those too afraid to speak lest they be accused of harassment) was the point.  And the fact that, under Ms. Lhamon’s guidance, the Commission would take that stance demonstrates exactly why it is that America has norms requiring parties not to be their own judges, even where, as here, no law expressly forbids it.

[1] The Commission does admonish the Department that it “should … not refer to resolution of any particular case as a blueprint[,]” an implicit criticism of the Department’s treatment of its trumpeting of the direction letter to the University of Montana.