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For over three years now, FIRE has been arguing that the Department of Education’s Office for Civil Rights’ (OCR’s) April 4, 2011 “Dear Colleague” letter (DCL) violated federal law because it did not go through the requisite “notice and comment” process and is thus invalid.

OCR is an administrative agency of the federal government. It is therefore constrained by the (APA). If a proposed agency rule would impose new obligations on the public, the APA requires the agency to subject those proposed rules to notice and comment before they may be adopted. OCR skipped this process altogether when it issued the DCL, despite several new substantive requirements in the document, like the requirement that institutions use the preponderance of the evidence standard when adjudicating claims of sexual misconduct. When an agency imposes new obligations upon the public without subjecting it to public notice and comment, the new rules aren’t legally binding or lawfully enforceable.

Last month, the University of Massachusetts Amherst (UMass Amherst) joined the have made similar observations. In its motion to dismiss a alleging that the university violated Title IX by providing inadequate due process protections to male students accused of sexual assault, UMass Amherst argued (emphasis added):

To the extent Mr. Doe, in Count I [the count alleging that UMass violated Title IX], claims the University violated OCR’s “rules,” that claim should be dismissed: There is no private cause of action for violations of Title IX implementing regulations, let alone for violations of the Dear Colleague Letter. Although OCR is authorized to enforce regulations promulgated under Title IX, the Supreme Court has explained that it has “never held . . . that the implied private right of action under Title IX allows recovery in damages for violation of those sorts of administrative requirements.” Gebser, 524 U.S. at 292. Courts have since affirmed that such regulations are not privately enforceable.¹⁵ Doe v. Bradshaw, No. Civ. A 11-11593, 2013 WL 5236110 at *10 (D.Mass., 2013); Univ. of the South, 687 F.Supp.2d at 758.

FN15: These principles apply with greater force here, as Mr. Doe’s claims appear premised on alleged violations of the Dear Colleague Letter, not on OCR regulation violations. The Dear Colleague Letter, which was not subject to the notice and comment procedures of the Administrative Procedures Act, provides guidance to federal funding recipients about DOE’s policies in reviewing Title IX compliance, but did not create “legislative rules” and cannot “create new law, rights or duties,” let alone free-standing causes of action. See Gill v. Paige, 226 F.Supp.2d 366, 374-75 (E.D.N.Y. 2002); Dear Colleague Letter, p. 1 n. 1 (“This letter does not add requirements to applicable law . . ..”); Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432, 3434 (Jan. 25, 2007) (“Nothing in this bulletin is intended to indicate that a guidance document can impose a legally binding requirement.”)

Some of the procedural inadequacies alleged by the plaintiff include: (1) the failure of the university to provide the accused with relevant documents in the case to use at his hearing; (2) the refusal to direct relevant questions to the complainant or to allow any meaningful cross-examination of the complainant; and (3) bias exhibited by the hearing officer as evidenced through his demeanor and actions during the hearing.

While the campus procedures at UMass Amherst described in the lawsuit are deeply troubling from a constitutional and due process perspective, FIREtakes no position on whether they violated Title IX itself. But we agree with UMass that the directives in the DCL are not binding on institutions as a matter of law.

It’s a shame that more colleges don’t acknowledge the strictly advisory nature of the DCL and use their independent judgment when drafting policies designed to address sexual misconduct on campus.