The New Title IX Regulations Have the Force and Effect of Law – What Does That Mean?
Articles and statements about the new Title IX Regulations (“Regs”) released May 6, 2020 keep repeating that the Regs have “the force and effect of law” as if that phase has some commonly understood meaning. No one has really unpacked it, so let’s explore it briefly and as non-legalistically as possible.
To understand the meaning of “force and effect of law,” we look to agency and regulatory law. This is the law that governs how federal agencies make and enforce rules that derive from statutes, and how courts recognize and uphold those rules. One of the primary roles of Federal agencies, is to take the statues – which are often vague or general – and provide detail and interpretations as to how that agency determines and enforces compliance. Agencies like the Department of Education (ED) typically want to be able to enforce the laws Congress creates, and Congress then authorizes ED (and other agencies) to create rules for that purpose.
There are two types of rules – interpretive rules and substantive rules. The process of making rules is – not surprisingly – called “rulemaking,” and is governed by a federal statute called the Administrative Procedure Act (APA). The APA divides rules into those that are interpretive and those that are substantive. Interpretive rules (those just interpreting a statute) are not subject to the requirements of APA notice and comment rulemaking, and do not have the force and effect of law.
Thus, documents like the 2011 Office for Civil Rights Title IX Dear Colleague Letter were not strictly enforceable by the OCR (though the OCR acted as if they were during the Obama administration). Substantive regulations, which expand the boundaries of a statute, are subject to APA requirements for notice and comment rulemaking. That process requires the agency to write a proposed rule, to circulate it for public notice and comment, to incorporate those comments into a response, and publish a final rule that not only defines requirements for compliance, but also assesses the costs and burdens of doing so. Once regulations are finalized through this process, they are said to have the force and effect of law, meaning that they are enforceable by any agency of jurisdiction (e.g., HHS, DOE, DOJ, NASA, NOAA, State, DOD, Commerce, etc.).
So, the Title IX Regs were issued after notice and comment in the Federal Register, and thus are enforceable by the ED’s OCR and the OCRs of other federal agencies having jurisdiction over education programs that receive federal funds. These entities may now initiate actions that lead to adverse findings of non-compliance, imposition of fines, restriction of federal funds, and/or order payment of compensation on the basis of the new Regs.
That leaves one last question to be answered. Must courts follow/enforce the Regs if they have “the force and effect of law”? The lawyer’s answer – it depends. Courts may show deference to ED’s interpretation of Title IX (though deference principles themselves are disfavored by this Supreme Court, with existing precedent cases like Auer and Chevron at risk), but as largely procedural rules, they do not bind courts. So, for example, if a student were deprived of cross-examination rights, the student could complain to OCR, but we don’t think the student has a cause of action under Title IX against the recipient in federal court (though other causes of action like breach of contract, §1983 actions, due process, etc. will still be available and are currently the subject of significant litigation).
Why not under Title IX? The failure to provide cross-examination isn’t sex/gender based. Title IX causes of action still require disparate treatment on the basis of sex or deliberate indifference. Most courts deny the right of respondents to bring deliberate indifference claims, per the language of the Davis v. Monroe County Bd of Education (USSC, 1999) opinion. And we have language in the Gebser v. Lago Vista Ind. Sch. Dist. (USSC, 1998) opinion in which the Court ruled that private suits are precluded under Title IX for damages based on a failure to follow “administrative requirements.” 524 U.S. at 292. That’s exactly what these OCR Regs are.
Don’t get us wrong, we expect plenty of suits by respondents trying to enforce every right OCR has just given them, but we expect the courts will continue to interpret the rights created under the OCR Regs as procedural administrative requirements and that sex/gender bias will still be a necessary element of a Title IX cause of action. Thus, a claim would only lie if the student was deprived of cross-examination (or any other right under Regs) because of their sex. That seems unlikely.
Just because OCR recently invented a bunch of new Title IX rights doesn’t require courts to fashion a new Title IX cause of action to effectuate them, though as mentioned above, a §1983 action against a public administrator may pertain. OCR will likely be the primary enforcement venue for respondents whose rights are ignored, as OCR appears from the Regs to support complaints filed on the basis that recipients were deliberately indifferent to the rights OCR has created.