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Yesterday, in a closely watched lawsuit brought by a student expelled from Vassar College for sexual assault, a federal district court issued a ruling sharply in favor of the private liberal arts college. Granting Vassar College’s motion for summary judgment in Yu v. Vassar College, federal judge Ronnie Abrams of the United States District Court for the Southern District of New York rejected student Xiaolu “Peter” Yu’s claims that Vassar’s decision-making violated his rights under Title IX, was procedurally flawed, and failed to comply with the college’s written policies.

Taking note of the current national discussion about how best to address sexual assault on college campuses, Judge Abrams wrote:

A thriving public debate is ongoing as to how colleges should support student victims of sexual assault while still assuring fairness to those who are accused of such conduct. Some have suggested that universities need to do more to encourage victims to report sexual misconduct and to ensure their physical and psychological safety during the investigation and hearing process.  Others have assailed certain schools’ policies as unfair and one-sided. The Court’s role in a Title IX action such as this one, however, is limited to determining whether gender bias was a motivating factor behind an either erroneous or unduly severe penalty. On the facts of this case, Peter Yu is unable to establish a genuine issue as to whether Vassar’s determination that he sexually assaulted a fellow student and his subsequent expulsion were borne out of gender bias, or whether Vassar otherwise violated state law. Accordingly, Vassar’s motion for summary judgment is granted and the case is dismissed.

Judge Abrams’s decision is lengthy and detailed, and those interested in her reasoning are encouraged to review it for themselves. Overall, the opinion presents a meager view of the due process rights to which students at a private college are entitled, so long as the college follows its own procedures (which the court found that Vassar did). The court’s decision should remind prospective students and their parents—particularly those considering private colleges—to take a serious look at what protections those schools offer in their disciplinary procedures before making a decision about where to enroll. Given that expulsion from college is a potentially life-altering event, students should make sure they are comfortable with the level of protection afforded them in expulsion-level hearings.

It is also striking to see a federal court cite the April 2011 “Dear Colleague” letter issued by the Department of Education’s Office for Civil Rights as though it carried the same command as statutory law, or the same persuasive authority as the ruling of a court. Throughout her consideration of Vassar’s procedures, Judge Abrams repeatedly invokes the authority of the controversial letter’s mandates.

For example, when rejecting Yu’s claim that the proceedings were unfair because he had to cross-examine the complainant through a third party who allegedly refused to ask some of his questions, Judge Abrams wrote that “the Dear Colleague Letter specifically states that the Department of Education’s Office for Civil Rights ‘strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.’” In so doing, the opinion grants Vassar its preferred defense: that “Yu cannot show that the disciplinary hearings were ‘flawed’ because they were in compliance with Title IX’s implementing regulations and guidance.”

As ������ýapp�ٷ�’s Ari Cohn explained in September of 2011, just months after the Dear Colleague letter’s release, the letter cited by the court was issued “without any notice, comment period, or publication. It was an internally developed document that had no input from anyone other than whomever OCR might have requested input from.” Because of this, Cohn argued, it is likely “in issuing this mandate, OCR failed to comply with the required [Administrative Procedure Act] procedures, and has robbed the public of its opportunity and duty to participate in the rulemaking process.”

Indeed, FIREhas made this argument explicitly in federal court. In 2013, FIREfiled an amicus curiae brief with the United States District Court for the Eastern District of Pennsylvania in the case of Harris v. Saint Joseph’s University arguing that the Dear Colleague letter should be considered invalid because it contains substantive agency rulemaking but was not subjected to public notice and comment, as required by the Administrative Procedure Act. As FIREexplained:

There can be no doubt that the Dear Colleague letter establishes substantive rules. Indeed, the University’s defense is premised on the theory that its requirements are “mandated” by OCR. Substantive rulemaking requires public notice and comment. 5 U.S.C. § 553. Substantive rules enacted without public notice and comment are invalid. See, e.g., United States v. Picciotto, 875 F.2d 345, 346 (D.C. Cir. 1989) (“A rule which is subject to the APA’s procedural requirements, but was adopted without them, is invalid.”); Abington Memorial Hospital v. Heckler, 750 F.2d 242, 244 (3d Cir. 1984) (stating that the Administrative Procedure Act “envisions the vacation of unlawfully promulgated regulations”); Hoctor v. United States Dep’t of Agriculture, 82 F.3d 165, 167 (7th Cir. 1996) (“A rule promulgated by an agency that is subject to the Administrative Procedure Act is invalid unless the agency first issues a public notice of proposed rulemaking, describing the substance of the proposed rule, and gives the public an opportunity to submit written comments; and if after receiving the comments it decides to promulgate the rule it must set forth the basis and purpose of the rule in a public statement.”). Because OCR enacted the substantive rules contained in the Dear Colleague letter without adhering to the APA’s notice and comment requirement, the rules are invalid.

Yesterday’s opinion should remind due process advocates of why continued pushback against the federal government’s overreach into the operation of university judicial systems is necessary. If courts are to grant OCR’s pronouncements the force of law in precedential opinions, those of us who care about students’ rights must pay close attention to whether OCR is acting within, or is exceeding, its authority in issuing those pronouncements.

A number of cases similar to Yu v. Vassar College are currently working their way through the legal system in various jurisdictions, so time will tell if this decision is an outlier. Either way, FIREwill closely monitor developments and provide analysis here on The Torch.