DeVos Rule on Sexual Harassment Restores Primacy of Law

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DeVos Rule on Sexual Harassment Restores Primacy of Law
AP Photo/Gerald Herbert
DeVos Rule on Sexual Harassment Restores Primacy of Law
AP Photo/Gerald Herbert
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The Department of Education’s new rule on sexual harassment has been challenged as protecting schools but not students. In reality, however, DOE’s proposal brings its sexual harassment rules back into compliance with the Constitution and laws. This should be an example for other administrative agencies that have moved beyond their statutory authority.

Before Secretary Betsy DeVos’s initiative, DOE’s rules on sexual harassment had no statutory foundation. The Supreme Court had made clear in a 1999 decision exactly when student-to-student sexual harassment would have to be punished by a school, but DOE ignored this decision and continued to develop rules that went beyond any authority it received from Congress.

The relevant language is in Title IX of the Education Amendments of 1972: “No person…shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or subjected to discrimination under any education program or activity receiving Federal financial assistance.” Under this law, then, schools that excluded men or women from any educational program or activity could lose their federal funding. 

Clearly, the statutory language applies only to actions by schools, not by students—and  covers only discrimination in educational programs, not how one student treats another—so the obvious question is how the law gave DOE the authority to require that schools set up elaborate procedures to discipline students for engaging in sexual harassment.

The Supreme Court answered this question in 1999, deciding that sexual harassment was only covered by Title IX if it was “so severe, pervasive and objectively offensive that it effectively denies a person access” to education. Thus, the court’s language puts a school in jeopardy of losing federal funds only if it fails to address harassment that rises to a high level of severity.    

However, this reasonable interpretation of the language of Title IX was never accepted by DOE or its Office of Civil Rights. Since 1999, and particularly during the Obama administration, DOE has continued to act as though schools were required to punish sexual harassment of any kind, no matter how limited its extent.

Thus, DOE’s rules defined what sexual harassment is, outlined the nature of the inquiry required after a charge of harassment has been made, specified the evidence necessary for conviction, and required other mandatory steps if a school wanted to continue receiving federal assistance.   

DeVos’s proposed rule is founded—as it must be—on the Supreme Court’s 1999 decision. Accordingly, in the words of the DOE summary, the new rule does not “demand any particular type of discipline against offenders” unless the school’s treatment of harassment fails to meet the Supreme Court’s “Title IX definition of harassment.” Only in that case does DOE have authority under the law to require a school to set up particular rules on sexual harassment or deny federal funds to a school that does not.

Of course, schools will adopt and enforce their own rules on sexual harassment after the new rule is put into effect, because they will want to keep attracting students who are concerned about this issue, but it will be the institution’s choice rather than a one-size-fits-all government rule. Obviously, this loose arrangement will be unsatisfactory to many, but it has one important quality—it conforms to the law. 

Unfortunately, the unauthorized expansion of Title IX is not a unique case. Administrative agencies have been abusing their statutory authority for years. Their motives might or might not be well-intentioned, but the continuous expansion of agency authority raises a question whether the laws passed by Congress have any real meaning, or are simply jumping-off points for the priorities of the Washington bureaucracy.

These abuses of statutory limits have been fostered in part by a 1984 Supreme Court decision in Chevron v. Natural Resources Defense Council. There, the high court directed lower courts to defer to administrative interpretations of statutory authority, if these interpretations are “reasonable.” This has provided agencies with considerable latitude to broaden their regulations beyond the boundaries initially set by Congress.

Last week, the Supreme Court signaled that it is willing to review some aspects of its deference to administrative agencies by accepting a case, Kisor v. Wilkie, that challenges the concept. If the court ultimately restricts deference in this case, the likely reason will be its view that deference of this kind is inconsistent with the judiciary’s constitutional responsibility to interpret the law. A decision along these lines  will augur major new restrictions on the powers of administrative agencies—including those conferred in Chevron—and will be a key result of the changes in the makeup of the court over the last two years.

Peter J. Wallison a senior fellow at the American Enterprise Institute. His most recent book, “Judicial Fortitude: The Last Chance to Rein In the Administrative State” (Encounter Books), was published in October. 



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