Rule by ‘Dear Colleague’ Letter: The Department of Education’s Stealth Regulation

We’ve noted repeatedly how the U.S. Department of Education, using authority it claims under Title IX and other federal laws, has arm-twisted the nation’s colleges and universities into stripping away procedural protections for faculty and students facing charges of sexual misconduct, sought to regulate speech as “verbal conduct,” and urged colleges to record microaggressive behaviors that do not rise to the level of harassment or assault but might add up in time to some future pattern. The resulting federal pressure has done much to generate a campus atmosphere in which administrators like those at the University of Virginia react even to unsubstantiated and soon-refuted assault claims with harsh crackdowns directed at whole groups of students against whom no misconduct whatsoever has been charged.

The substance of what the feds have been doing in this area has rightly stirred outrage, but another side of it also deserves scrutiny: it’s based on sheer fiat, on a series of “because we say so” edicts. A few recent items:

  • Early this year, the Senate Health, Education and Labor Committee released “Recalibrating Regulation of Colleges and Universities,” the lengthy report of a group called the Task Force on Federal Regulation of Higher Education with assistance from the American Council on Education. The federal government, according to the report, has entangled colleges in a continually expanding “jungle of red tape” (the Department of Education now “issues official guidance to amend or clarify its rules at a rate of more than one document per work day”). Not only does the department’s regulatory process (see pp. 32 et seq.) generate new rulemakings that are not well grounded in statutory authority, but it regularly takes the form of “Dear Colleague” letters, informal field advisories, and other “subregulatory guidance” that dodges the important legal safeguards of actual rulemaking, such as notice and comment to the public and the generating of a decisionmaking record well suited to judicial review (pp. 35–37). The crackdown on college discipline famously has taken the form of a “Dear Colleague” letter and associated guidance, not a formal regulation.
  • Both the task force report and our friend Hans Bader of the Competitive Enterprise Institute show how the Department now routinely uses these free-floating processes to extend regulatory burdens across a whole range of issues, not just Title IX: rules on for-profit college performance, Clery-law crime reporting, disability-based harassment (on which more, and note the push for school authority over students’ off-campus social media use), race-conscious K–12 discipline, information collection, and on and on.
  • Boston College Prof. R. Shep Melnick, an expert on regulatory procedure, casts a critical eye on the enforcement practices of the Department’s Office for Civil Rights (OCR) in this Liberty Law Forum podcast (and don’t miss Michael Greve’s eloquent reactions here and here, focusing on OCR’s interpretation of “disparate impact” theory to devise new guidance on what it calls “resource comparability” between schools). Relatedly, a symposium in the Federalist Society’s Harvard Journal of Law and Public Policy last year examined possible remedies to stealth or back-door regulation [see John Graham and James Broughel’s summary]

All that brings us to the big question: were someone to challenge OCR’s kangaroo-court regulations on college discipline, would they stand up in court? David Bernstein at Volokh Conspiracy in November offered three reasons why they might not. It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption. But given the spectacular collapse of the University of Virginia allegations, might this not be a good time to try?