@Ohiodad51; @HarvestMoon1 : To add to Ohiodad51’s excellent summary of notice and comment rulemaking, there is another kind of publication an agency can put out called “guidance.” Guidance is supposed to be a non-binding statement of how an agency interprets a given rule. So, if the OSHA rule is “guard rails must be 3 feet high” then the agency could put out guidance saying “when we say 3 feet we mean from the ground, not including the foundation.” But they couldn’t mean “guard rails must be attended,” because that would impose a new obligation, which can only be done by rule.
Guidance doesn’t need to go through the formal process because it doesn’t impose new obligations. It just explains what the current obligations mean so as to avoid confusion.
My understanding–and again, I have not looked into this extensively–is that the OCR claims the DCL is guidance, as it interprets Title IX, and therefore OCR did not need to do any sort of rulemaking. I am extremely skeptical about this, as it certainly seems to me that instituting a quasi-judicial proceeding constitutes a new obligation. Further, the threat of losing funds looks to me a lot like they intended the DCL to have force of law, another thing guidance can’t do.
Obviously, I more or less agree with you, @momofthreeboys . But if the facts were more extreme and more clear – as to violence, coercion, restraint, lack of consent – then the existence of a relationship wouldn’t and shouldn’t matter. There’s a lot of violence in some relationships – ask any beat cops how much of their time is spent on domestic disturbances. The relationships of college-age kids can be especially volatile, and some of them enter into a lot of “relationships.” So I wouldn’t say, “Oh, there’s a relationship, it’s not a matter for university discipline.”
I do agree with that JHS. Violence and constraint are all on the law books. The consent issue obviously is much, much murkier especially if in theory it does not allows yes, no, yes, no…which we all know “can” be part of a healthy sexual relationship and a learning curve with a partner to navigate. Both the guy and the girl in the Yale case agreed that “no” had been a part of their relationship and now the claim is “this time” no didn’t mean no. I find that odd unless there was a history of No not really meaning No. But that is all supposition.
@JHS: If the Yale case involved physical force it would be a lot simpler, sure, but I don’t think that’s a good basis on which to say the university should adjudicate it. It would be nice if Yale’s marsupial proceeding dovetailed with what was objectively a clear-cut result, but that wouldn’t make the process any fairer and wouldn’t eliminate the problem of all the other less clear cases.
@Ohiodad51 I took a look at the case dealing with the Clery/SAVE Act referenced in your post #409. Seems like it was filed with Congress in 2011 around the same time (perhaps in response to?) the 2011 DCL. It incorporates the provisions of the DCL and after much lobbying on both sides was signed into law in March 2013. As you noted, some contended it diluted provisions of the DCL, including the provisions addressing burden of proof. This litigation was apparently aimed at ensuring those dilutions weren’t given any force of law.
Keep in mind that I read only Howell’s decision and not the whole record. But it appears to me the decision was favorable to the DOE in that he ruled Clery/SAVE cannot have any affect on Title IX, leaving the DOE’s guidance document as the governing interpretation of the statute. I don’t know if it was ever raised in the briefs, but some legal commentators also noted that SAVE (part of VAWA) was unconstitutional anyway under the Supreme Court’s decision in Morrison - which I think in essence said Congress has no authority to regulate violence against women as it is not a federal issue (I will admit to only reading a short synopsis of that case.) However the schools can still be required to comply with civil rights laws under the Spending Clause as a condition for receiving federal funds. While I don’t believe Howell relied on Morrison, this language was notable to me:
You had addressed in your earlier post the APA procedures and how the OCR has effectively blocked federal lawsuits challenging the DCL. But I recently read about the Grant Neal case that was filed in April in federal court. He is suing the DOE contending among there things that they violated the APA when the OCR issued the DCL. He alleges the letter was issued without going through the regulatory process. Who knows where it will go but the DOE is not shielded from the suit.
@HarvestMoon1, realize that the legal commentator you likely read is the lawyer who filed the writ in the first instance. At least she is the only one who I have seen write about the case extensively. I am not sure anyone else sees the case as broadly as she does. When I read it, it seemed like a typically narrow decision on a writ. If it gets to the Circuit Court, it may get broader treatment, but I am not sure if either party appealed. But yeah, you are correct in that the writ was filed to try and stop Congress from overriding the OCR’s interpretation of contained in the DCL.
We will see how things shake out as time goes on, particularly if Clinton wins in November and maintains the stance of the OCR. As far as Morrison, I would only say (again) that things are never quite as clear cut as advocates on either side of an issue would like them to be. But an argument that Congress can not pass a law that effects other enactments of Congress is a pretty aggressive position.
I haven’t seen the Neal case, but the case cited in the article linked by @momofthreeboys is the precise kind of challenge you are talking about.
I actually have no idea who filed the writ in the SAVE case - the decision I read did not list counsel.
Looks to me that the new litigation is very similar if not exactly like the Neal case from the descriptions - but I have not read the complaint in the new case and I understand an amended complaint was filed in Neal - so am not updated on that either.