A “Dear Colleague” letter is a form of sub-regulatory guidance issued by a federal agency to institutions that receive federal funds, stating how the agency interprets a statute and what it expects recipients to do. The device became a recurring subject on The Bob Zadek Show in connection with the Department of Education’s Office for Civil Rights and its 2011 letter to colleges and universities on the handling of sexual assault and sexual harassment cases.
The 2011 letter and the standard of proof
Cathy Young described the background: colleges had for roughly twenty years been setting up alternative disciplinary systems for sexual assault cases, and several complaints from women who felt their cases were not handled well enough were taken up by the Justice Department in 2011 as sex discrimination cases. Around the same time, in April 2011, the Department of Education Office of Civil Rights sent a letter to the presidents of colleges and universities about the handling of sexual assault and sexual harassment. Among its recommendations, the most important was that the standard of proof in these cases be shifted from clear and convincing evidence—traditionally the campus-discipline standard for evaluating complaints against students—to the preponderance of the evidence, which Young characterized as the lowest standard of proof in a legal case, meaning essentially that the triers of fact believe there is a slightly greater probability, like 51 percent, that the evidence favors the complainant. Young added that a later joint letter from the Department of Education and the Department of Justice reiterated that this standard is the only appropriate one and said colleges that do not use it stand to lose their federal funds. Aren’t Men Entitled to Due Process on Campus? (2014)
Bob Zadek framed the letter in libertarian terms: there is no dispute that the feminist lobby is a potent political force, with no equivalent countervailing male political lobby; the federal government uses the coercive power of federal grants to influence what happens on a college campus; the federal government should not be involved; and colleges are being dragged into becoming quasi-judicial bodies they are not skilled at running. He argued that in a criminal justice system there are overwhelming safeguards to protect the accused, whereas here there are overwhelming safeguards to ensure the accused gets convicted, and that colleges are becoming private criminal justice systems doing it backwards and sticking a thumb in the eye of the Constitution. Aren’t Men Entitled to Due Process on Campus? (2014)
Sub-regulatory guidance and “regulatory dark matter”
On a 2017 episode, Bob introduced the subject by saying he had learned about sub-regulatory guidance when a “Dear Colleague” letter was sent by the Department of Education to colleges and universities, which he said caused too much attention to an alleged rape culture and to prosecution and punishment of sexual offenses without due process. A Lame Duck’s Last Stand (2017)
Sam Batkins of the American Action Forum explained that sub-regulatory guidance has been referred to by Wayne Crews, who studies regulation, as “regulatory dark matter.” Batkins said everyone can see major rules under Dodd-Frank or the Affordable Care Act, but sub-regulatory guidance can take the form of a tweet, a “Dear Colleague” letter, or an angry letter to a for-profit university or school warning that its funding might be cut if it does not do X, Y, and Z. It does not go through the same procedures, does not go through the White House for interagency review, and the public has no opportunity to comment. He cited enforcement of the Affordable Care Act, where the government delayed the employer mandate without public comment, without following the Administrative Procedure Act, through a memo posted online at 11:00 before the July 4th holiday. A Lame Duck’s Last Stand (2017)
Bob observed that when you are in a regulated activity and you get a letter or a tweet from your regulator, you tend to perk up because they have their finger on your jugular vein, so these “Dear Colleague” letters almost have the force of law and are taken quite seriously, although there is no control over them. A Lame Duck’s Last Stand (2017)
The APA bypass
R. Shep Melnick, a professor of American politics at Boston College and author of The Transformation of Title IX, explained the procedural mechanics. One form of rulemaking authorized by statute is to issue a rule under the Administrative Procedure Act, which requires a proposal, public comment, an explanation of what was done, and judicial review. Most of the time in recent decades, the Office for Civil Rights has not used that at all, merely issuing a unilateral letter to all colleges, universities, and primary and secondary schools that receive federal funds saying, “Dear Colleague, this is how we interpret the statute. This is what you are required to do.” Melnick noted that the letters say if you have comments, give them after the rule has been issued—just opposite of what it should be—and that the Office for Civil Rights considers them legally binding, so noncompliance subjects a school to enforcement action. Courts have very frequently deferred to these letters in interpreting the statute. The letters can run 10, 20, 30 or 40 pages, especially when combined with documents called “Questions and Answers.” Melnick called it an evasion of the Administrative Procedure Act and a very unilateral effort to say what the law is. He also found it remarkable that the letters all say no formal rules are needed because there is nothing new here: the 2011 letter said there was nothing new in it, while the White House called it a pathbreaking policy—they wanted to have it both ways. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Bob characterized the letter as an interoffice communication: “Dear Colleague, we just want to share some thoughts with you. Here’s how we think the statute—here’s what we think the statute means, here’s what we think the statute requires you to do or not do. And by the way, we’re the paying agent and we approve all the checks you get.” He said any school receiving it will behave in accordance with it or risk losing funds, calling it an implied threat—“your money or your life”—and said the author of the letter has no statutory authority to share what they think if it is at variance from the statute itself. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Scope of the obligation
Melnick said the Office for Civil Rights in 2011 and 2014 went way beyond the reasonable position that a school knowing of serious harassment must address it, instead saying the school’s responsibility is to eliminate and prevent and cure all consequences of sexual harassment—an expanded responsibility no school can adequately comply with. He noted that both the Obama-era letters and the proposal put forth by the Trump administration require much more of colleges, universities, and primary and elementary schools, because the definition of sexual harassment and even of sexual assault is much lower under the Title IX regulation than under most criminal statutes, so schools are required to police a lot of behavior that would not qualify as criminal in almost any state. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Melnick drew a distinction between what schools might want to do and what they should be federally mandated to do, saying it is reasonable for a school to set its own standards—Brigham Young University’s rule against sex outside marriage, or Boston College’s unenforced rule to the same effect—but the question is whether those norms should be federally mandated the same for all universities or left to school discretion. He said the Obama administration tried to establish very detailed rules about acceptable behavior and seriously overreached. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
In the broader critique of bureaucracy
On a 2018 episode with Jonathan Haidt about The Coddling of the American Mind, Bob asked to what extent the phenomenon owed its growth to government endorsement, citing the Obama administration’s “Dear Colleague” letter in 2011 to colleges urging them to be more aggressive in protecting women, and going on to child protective services criminalizing a child walking alone off the parent’s property without being in plain sight of the parent. [[episodes/jonathan_haidt_on__the_coddling_of_the_american_mi|Jonathan Haidt on The Coddling of the American Mind (2018)]]
Haidt said the rise of bureaucracy is one of six causal threads in the book. He argued that government and bureaucracy are subject not to a logic of what is most effective but to a logic of “CYA” or “cover your ass”—what will we get in trouble for—so child protective services tend to be over-reactive. He described cases in the book including an 11-year-old child left in a car while her mother went into CVS to pick up a prescription, after which the police were called and the mother faced weeks of bureaucratic investigation. He said government plays a role in feedback loops that make things more severe, and that in colleges, Title IX—which had good intentions to create educational equality by gender and originally had quite reasonable language—was subject to legal creep and concept creep to the point where if anything is not 50/50 by gender, somebody can charge gender discrimination. [[episodes/jonathan_haidt_on__the_coddling_of_the_american_mi|Jonathan Haidt on The Coddling of the American Mind (2018)]]
Across episodes: the same letter, four treatments
The 2011 letter is discussed in four episodes spanning 2014 to 2018, and the treatment shifts in emphasis rather than in substance. Cathy Young, in 2014, supplies the concrete policy content—the April 2011 date, the shift from clear and convincing evidence to preponderance of the evidence, the 51 percent formulation, and the later joint Department of Education and Department of Justice letter threatening federal funds. Aren’t Men Entitled to Due Process on Campus? (2014) Sam Batkins, in 2017, supplies the general theory of sub-regulatory guidance, naming Wayne Crews’s phrase “regulatory dark matter” and listing the tweet, the “Dear Colleague” letter, and the warning letter to a for-profit school as its forms. A Lame Duck’s Last Stand (2017) R. Shep Melnick, in 2018, supplies the administrative-law account—the Administrative Procedure Act requirements, the post-issuance comment invitation, the binding force the Office for Civil Rights claims, judicial deference, and the 10-to-40-page length—and adds that the Trump administration’s proposal also required much of schools. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018) Jonathan Haidt, also in 2018, places the letter inside a broader account of bureaucracy and feedback loops, alongside child protective services and Title IX creep. [[episodes/jonathan_haidt_on__the_coddling_of_the_american_mi|Jonathan Haidt on The Coddling of the American Mind (2018)]] No speaker in these excerpts reports a change in the letter’s content or legal effect over the period; what changes is the frame—due process, regulatory procedure, administrative law, and social psychology.
What the sources do not cover
The excerpts do not give the text of any “Dear Colleague” letter, the name of the statute under which the 2011 letter was issued, or the outcome of any litigation over such letters. They do not state whether the letters have been withdrawn, superseded, or upheld, beyond Melnick’s reference to a Trump administration proposal. The specific enforcement actions threatened or brought against any named institution are not described. The excerpts also do not state the current status of the preponderance-of-the-evidence standard in campus proceedings.