In his magisterial 2014 book Is Administrative Law Unlawful? Professor Philip Hamburger argued that administrative law is now the chief means by which the government exercises its control over citizens. Legislators don’t have to pass laws and judges don’t have to hear cases involving their purported violation — it’s all handled by bureaucrats working in one of our vast number of administrative agencies. Often, those bureaucrats have a ridiculously elevated sense of their power and act like aristocrats of old, decreeing whatever they want as the law.
The Department of Education has many such people, particularly in the Office for Civil Rights. In 2011, OCR sent around a “Dear Colleague” letter insisting that college officials adjudicate sexual assault cases using a weak preponderance of the evidence standard, replacing the “clear and convincing” standard most schools had used.
Much to the annoyance of the OCR, people who actually have the authority to make laws are starting to ask questions about that, among them Oklahoma Senator James Lankford. Lankford asked by what legal authority OCR imposed its will on colleges. How did it respond? In this post on Competitive Enterprise Institute’s blog, former OCR lawyer Hans Bader observes that it engaged in sheer evasion. Crucially with regard to the evidence standard, OCR came up with the absurd argument that because a college’s actions are subject to a preponderance of the evidence standard in civil litigation, that somehow means that the same standard should apply to disciplinary proceedings it conducts against students accused of sexual assault. Bader writes that OCR “simply assumed once again that since an institution’s actions are judges by a preponderance-of-evidence standard in civil litigation (as no one denies, and as Supreme Court precedent makes clear), that same burden of proof must be applied by a college to its students in internal college disciplinary proceedings that are not taking place in court.”
That response by OCR is simply ridiculous. But there is no downside for federal bureaucrats when they make ridiculous responses. They can’t be sanctioned. Although OCR has violated the Administrative Procedure Act and given the Bronx Cheer to Senator Lankford, nothing will stop it from, as Bader writes “imposing new legal rules out of thin air.”
I say cut the Gordian Knot by abolishing the Department of Education, for which there never was any constitutional warrant in the first place.