@HarvestMoon1, let me back way up and bear with me. Congress passes a law and the President signs it. Let’s call that law the Occupational Safety and Health Act. That law says that employers over a certain size have an obligation to provide a safe workplace, safety equipment for workers, etc. But the law itself speaks in generalities, and does not specify standards for compliance with the law, which is generally a good thing because Congress knows bupkis about how to make or build stuff. The Department of Labor is the Executive branch agency which is tasked with ensuring compliance with the mandates of OSHA. It is the Dept’s job to determine what regulations are necessary to ensure a safe workplace. So the way it is intended to work is that the Dept of Labor gets a bunch of labor groups, industry groups and manufacturers together and they talk about things like guarding on pinch points, line speed, guardrail height, etc. In reality what happens is that lobbyists from favored constituencies have a ton of input in the proposed rule making, entities thought to not be supportive of the current administration much less so. Shocking, I know. Then the Dept drafts some regulations on those topics and puts it out for public comment. These proposed rules are in most cases published in the Federal Register, and are intended to be pretty formal. After the proposed rule is published there is a comment period when interested parties can air their opinions about the proposed rule. In reality, the comment period allows those groups who were in less political favor and therefore shut out of the proposed rule making to marshall political support to force modifications in the proposed rule. The Dept is supposed to see what comes out of the comment period, “tweak” the proposed rule as necessary, and then issue a final rule. That is the administrative rule making process.
None of this happened with the DCLs issued by the OCR (there have been several, not just the one we all are talking about). Frankly, this has become a troubling trend over the last several administrations, but has increased exponentially since Obama lost the house in 2010. Why is this a big deal? Because there is no mechanism to provide input by affected parties certainly. But also because it is virtually impossible to challenge the agency’s position in court.
That is kind of where we jumped off here. Normally, the APA allows an affected party to directly challenge an administrative rule in a real court. In these sexual assault cases, that would mean that a guy who got tossed from school could bring an action in federal court and test the constitutionality of the DCL mandates, and you would hear a lot about due process, arbitrariness and whether Title IX was really intended to stretch so far as to mandate a quasi legal system be set up in colleges. But because the OCR did not issue rules covering the topics in the DCL, they can sit back and do what they do, saying the DCL is not mandatory so there is nothing to challenge. The only obvious way to challenge the DCL is for a college to refuse to comply and eat the hundreds of millions of dollars it will lose not only by the summary loss of federal funding, but in defending the extraordinarily vigorous “investigation” the OCR will launch about two minutes after the college says it is not complying. Think the IRS and the Tea Party times a hundred. As a strategy it is great, and effectively means there is no over sight of the agency rule making. The only down side is that a new administration can change the policy at a whim.
So practically, because neither Title IX nor the SAVE act specifies that colleges must apply a preponderance standard of proof (as an example), there is no way to challenge the imposition of that standard. Make sense?
And the case about the SAVE Act is in the DC Circuit. (1:14-cv-00366) As I understand it, it deals with whether the Clery Act can modify the requirements of Title IX or whether it is completely separate.
