Betsy Devos Rescinded Obama’s Sexual-Harassment Guidance. Here’s the Backstory.

(Reuters photo: Mike Segar)
There’s a tenuous connection between the law and the previous administration’s interpretation of it.

There’s an important backstory to Secretary Betsy DeVos’s recent announcement that the Department of Education (DOE) is rescinding its Obama-era “guidance” on sexual harassment, including sexual assault. Regulations or “guidance” must be based on statutory authority, but there is a tenuous connection at best between the DOE’s statutory authority and what it has been requiring of colleges and universities. The affair explains a great deal about how and why the administrative state — the unelected federal bureaucracy — has grown so powerful in America.

The rescinded ruling, which threatened to deny funds to colleges and universities that did not penalize what DOE saw as sexual harassment, was based on language in Title IX of the Education Amendments of 1972. “No person in the United States,” the statute reads, “shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal assistance.”

A federal court later interpreted this language, which Congress almost certainly meant to apply to discrimination against women in the provision of educational resources, to apply to the failure of a school to respond to allegations of sexual harassment by professors. The court reasoned that denying someone educational resources because they refused to accede to sexual demands came within the statutory language.

But what was later spun out from this rationale went far beyond what Congress could have had in mind. The Department of Health, Education, and Welfare (the predecessor of today’s Department of Education) claimed that the act’s language also applied to employment discrimination in public schools that received federal support. This was upheld by the Supreme Court in 1982. DOE later claimed that the language applied to schools receiving federal financial aid only indirectly, through aid to their students. The Supreme Court upheld this interpretation as well, in 1984.

The scope of the law’s application continued to grow. In 1994, the DOE’s Office of Civil Rights (OCR) sent a letter to Santa Rosa Junior College agreeing with two students that sexually oriented offensive speech had created a “hostile educational environment” and directed the college to adopt a policy to prevent it. In 1997, OCR, still basing its rulings on Title IX, released a document called “Sexual Harassment Guidance,” which applied the hostile-environment idea to student-to-student sexual harassment.

Although the Supreme Court decided in one case that student-to-student sexual harassment had to be “so severe, pervasive, and objectively offensive that it can be said to deprive victims of access to educational opportunities,” by 2008 OCR was defining sexual harassment as “unwelcome” sexual references, which included “telling sexual or dirty jokes” — speech protected by the First Amendment.

The Office of Civil Rights became even more aggressive under the Obama administration. In April 2011, it issued another letter, ordering schools to respond to claims of sexual harassment with a grievance procedure using a “preponderance of the evidence” standard — meaning that the defendant can be convicted even though there is reasonable doubt about guilt.

Most significant was OCR’s agreement with the University of Montana, described officially as “a blueprint for colleges and universities.” The blueprint decreed that “sexual harassment should be more broadly defined as any unwelcome conduct of a sexual nature” and need not be “objectively offensive.” Under this standard, the important question was whether the complainant was offended, not whether a reasonable person would be offended.

This is a clear example of how legislative language can be perverted — that’s the right word — into something unrecognizable when courts will not challenge the administrative agencies’ interpretations of their legal authority. We started with a relatively simple and sensible idea — that no one should be deprived of the benefits of a federally supported education because of sex or other discrimination — and we ended with a system in which communications between college students are punishable even though protected by the First Amendment.

Clearly, we’ve lost our way.

Clearly, we’ve lost our way. Congress does what it wants, and the administrative agencies, with the apparent acquiescence of the courts, use the congressional language to create what they want. It is difficult to square this result with a constitutional system in which Congress is supposed to make the laws and the executive branch is meant only to enforce them.

Alexander Hamilton wrote, in Federalist  No. 78, that the judiciary was given lifetime appointments in the Constitution so it would have the necessary “fortitude” to stand up to the political branches. But fear of “judicial activism” has now brought us to the opposite point — where the courts defer to administrative agencies on the grounds that these bureaucracies are part of an elected branch. This stands the constitutional process on its head. The Framers would be appalled.


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Peter J. Wallison is a senior fellow emeritus at the American Enterprise Institute. His most recent book is Judicial Fortitude: The Last Chance to Rein in the Administrative State.


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