Federal Interpretation -- or Legislation?

Federal court ruling on Obama administration guidance on use of school facilities by transgender students could clear the way for a challenge to the Education Department's 2011 letter on campus sexual assault.

August 23, 2016

Disagreement over the legality of the 2011 guidance that spurred the U.S. Education Department's toughened enforcement of campus sexual assault has been building in recent months, with many college officials, Republican members of Congress and others questioning the legitimacy of the federal guidelines and dozens of legal and advocacy groups defending the guidance.

Now a federal judge has weighed in -- sort of -- with a ruling that several legal experts say could have significant implications for the Obama administration's attempts to regulate education issues, including sexual violence.

On Sunday, a federal judge in Texas issued a preliminary injunction that bars the administration from enforcing its May guidance requiring schools and colleges to give transgender students access to facilities and services in a way that's consistent with their gender identity.

The judge's ruling, which came in a lawsuit brought by officials in 13 states, focuses narrowly on the transgender guidance that has become a major cause for social conservatives. The issue has been much more controversial at the K-12 level than in higher education, where many colleges have for several years been steadily expanding the services they provide to transgender students.

But the 38-page opinion by Judge Reed O'Connor may be most noteworthy for its critique of how the Education Department promulgated the guidance on transgender students and the nature of the guidelines -- which arguably share much with the 2011 guidance on Title IX and sexual assault.

O'Connor concluded that in issuing the transgender guidance without giving notice and seeking public comment about it, the agency violated the terms of the federal Administrative Procedure Act, which requires such steps for federal guidance that is legislative rather than interpretive. While the Education Department has described the transgender guidance as merely interpreting existing laws and rules, O'Connor wrote, the effects of the rule on schools and colleges proves it to be otherwise, since they could lose access to federal financial aid if they violate the guidance.

"The information before the court demonstrates defendants have 'drawn a line in the sand' in that they have concluded plaintiffs must abide by the guidelines, without exception, or they are in breach of their Title IX obligations," O'Connor said.

Blueprint for Challenge to Sexual Assault Guidance

Several lawyers who work with colleges say the parallels between the transgender guidance and the department's 2011 guidance on sexual assault are many -- such that O'Connor's ruling could give colleges or others unhappy with the requirements of the latter a playbook for challenging them.

The 2011 Dear Colleague letter, which urged institutions to better investigate and adjudicate cases of campus sexual assault, was, like the transgender guidance, issued without going through a formal comment period. Critics, echoed by many college officials, have argued that it imposes requirements on them that did not exist before then, such as relaxing the burden of proof they must use when adjudicating cases of sexual assault. (Many law professors contest that view.)

"This provides ammunition to those parties that are looking to shoot holes in DOE's regulatory efforts on Title IX," said Jim Newberry, a lawyer who heads the higher education practice at Steptoe & Johnson. "There's a pretty good road map of the issues to raise, the arguments to be made, the legal authorities to cite."

"If I was a school in the northern district of Texas, I would take this decision and run with it," said another higher education lawyer who requested anonymity. "I would not feel uncomfortable bringing this into court, and feel that I would have a very good chance of success" based on the precedent in the transgender policy case.

Kent Talbert, who was general counsel in the Education Department under President George W. Bush, said the legal issues in a potential sexual assault case around the burden of proof standard are not nearly as clear-cut as they were, in O'Connor's estimation, anyway, concerning transgender policy.

But he said the transgender policy case represents the "first time that you've had a Dear Colleague guidance letter come before a court, and the judiciary is saying here's our view of the law, and the department's wrong and the challengers are correct." It is unlikely to be the last, he said.


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