Elizabeth Busch provides us with a compelling account of how the Department of Education’s disregard for legal process has produced deeply flawed public policies. Especially since she has included me in her list of “constitutionalist” good guys, I find much to praise and little to criticize. In fact, I can discover only one point on which I mildly disagree. She labels the Obama and Biden administrators who used truncated procedures to announce flawed Title IX mandates “anti-constitutionalists.” I would argue that they do have an implicit constitutional understanding that is widely shared among the educated elite. Recognizing this helps us see just how much their constitutional vision departs from our written Constitution and our traditions.
Busch argues that administrative entrepreneurs such as Catherine Lhamon and Vanita Gupta (both of whom are now back in the Departments of Education and Justice) adopt an “ends justifies the means” approach to wielding power: promoting equality is so important that formalities such as due process or the Administrative Procedure Act (APA) should not stand in the way. When asked in 2017 what in retrospect she might have done differently during her first term as Assistant Secretary of Education for Civil Rights, Lhamon answered with breath-taking hubris:
We were working at breakneck speed trying to achieve as much justice as was possible with the time that we had. And looking back, with the benefit now of six months’ time to reflect, I continue to not be able to think of another way to have done more good than we did.
When you are so confident that you are on the side of the angels, why worry about procedural constraints which can only slow you down? When the Department of Education did go through the full notice-and-comment rulemaking process that culminated in its 2020 regulations on sexual harassment, it devoted two years to the task, received 120,000 public comments, and provided a 2,000-page explanation of its new rules.
When challenged about her use of unilateral “Dear Colleague Letters” to circumvent well-established legal procedures, Lhamon responded with a series of obfuscations designed to hide the audacity of her assertion of administrative power. In a 2014 hearing, Senator Lamar Alexander asked then-Assistant Secretary Lhamon whether she expected schools throughout the country to comply with the 66 pages of “guidance” on sexual harassment her office had issued under Title IX. Her answer: “We do.” Why, then, Alexander pressed, did you not go through the standard rulemaking process? Because, she replied, these aren’t actual regulations, just “an explanation of what Title IX means.” Who gave her the power to spin out such lengthy, legally binding “explanations”? Lhamon replied to Alexander, “you did when I was confirmed.” In other words, once confirmed by the Senate, Department officials have full authority to explain in great detail what vague statutory language means—the APA be damned.
Lhamon later retreated somewhat from this extreme position, conceding that her “guidance” does not have the full “force and effect of law.” At the same time, though, she explained that administrative “guidance” spells out “what policies and practices will lead the Office of Civil Rights (OCR) to initiate proceedings to terminate Federal financial assistance.” In other words, if you don’t follow this “guidance,” watch out! The wrath of the Department will fall upon you.
Behind this double-talk lies a widely shared but seldom enunciated understanding of administrative power. As the term “Dear Colleague Letter” suggests, Department of Education officials consider themselves the “colleagues” of teachers, administrators, and elected officials at every educational institution in the country. Their job is to provide enlightened “guidance” to these “colleagues.” These are not so much legal commands, as professional norms—“best practices” to use the commonly invoked term. This form of regulation is allegedly based on cooperation among fellow “educators” rather than coercion by government officials—unless, of course, some of these “educators” fail to see the light. Then they will be subjected to long and costly investigations until they fall into line.
In writing these reams of “guidance,” how do officials like Ms. Lhamon determine “what Title IX means”? They don’t arrive at their understanding from studying the short text of the statute or its truncated legislative history. After all, in 1972 the term “sexual harassment” was hardly ever used. No member of Congress who voted for it gave any thought whatsoever to how Title IX would affect transgender students.
To understand the roots of Catherine Lhamon’s expansive assertion of administrative authority, it is useful to examine William Eskridge’s theory of Dynamic Statutory Interpretation. Eskridge teaches at Yale Law School (where Lhamon received her J.D.) and is considered by many to be the nation’s leading expert on statutory interpretation. The goal of his 1994 book was to bring “pragmatic and postmodern theoretical insights” to the prosaic world of judicial reading of legislation. Eskridge devotes much of the book to explaining why we can never know what the text of a statute means or what the legislators who voted for it intended. The meaning of statutes, he confidently asserts, can evolve not only “beyond original expectations,” but also “against original expectations.” So even when statutory language is clear (his chief example here is the wording of Title VII in the Weber affirmative action case) judges and administrators should ignore it when it conflicts with our constantly evolving understanding of justice. Who defines our current understanding of justice? Well, judges and administrators, especially those educated at Yale.
Eskridge is much better at statutory deconstruction than at explaining how judges and administrators should decide what statutes such as Title IX and the Civil Rights Act of 1964 mean. He does, though, propose a “mega-canon” of statutory interpretation: “judges should decide close cases against politically salient interests and in favor of those interests that have been subordinated in the political process.” They should come to the aid not only of “African Americans, women, Native Americans, noncitizens and nonmarital children,” but also the poor, gay men and women, working mothers, migrant workers, “minor” ethnic and religious groups, criminal defendants, consumers, blue-collar workers, and many more. In other words, use judicial and administrative power to help those for whom you have sympathy, especially those who lost in Congress or state legislators. Since I described the multiple shortcomings of this approach at length in a 1995 article, I will not belabor the point here.
For evidence that this understanding of statutory interpretation has influenced officials in civil rights agencies, consider the defense of the 2016 transgender DCL offered by another Yale-educated lawyer featured in Busch’s article, Vanita Gupta:
The project of civil rights has always demanded creativity. It requires being bold. Often that means going against the grain of current-day popular thinking. Or it requires going to the more expansive reading of the law to ensure that we are actually ensuring equal protection for everyone.
Those who interpret civil rights laws must seek “to bend the arc of history itself.”
One of the most remarkable features of the transformation of Title IX is that regulation became especially extensive, demanding, and controversial after it had achieved its original purpose. The success of women and girls in educational institutions since 1972 is nothing short of astounding. They now surpass males in virtually every corner of education, including the number of PhDs in the natural sciences. Once the doors of opportunity were opened to them, female students rushed through. Now it is male students who are struggling to keep up. So why the dramatic expansion of regulatory demands?
The simple answer is that the central purpose of regulation changed. Originally the goal was to eliminate institutional barriers to classroom education. Once that was largely achieved, the objective expanded to include reeducating everyone—students, faculty, and the American public at large—on all matters sexual, including intimate sexual relations and the very meaning of “sex.” The purpose, as proponents of the Obama administration’s sexual harassment regulations frequently repeated, was to “change the culture.” Regulation that initially targeted classrooms spread first to playing fields, then to bedrooms (peer sexual harassment) and to bathrooms (transgender). The connection between Title IX and education as conventionally understood became weaker and weaker.
This is, in its own way, a constitutional vision, a vision of a national government that uses its extensive power to create a more egalitarian culture. This is not a constitution devoted to limited government—just the opposite. Nor, in the end, is it the constitution of a liberal democracy, which requires government by consent of the governed. It empowers those who are convinced that they know the direction of progress, removing all legal constraints from their efforts to “do as much justice as possible.”
Between 2016 and 2020 we saw the damage that can be done by executive branch officials who showed contempt for legal and constitutional limitations on their power. The civil rights administrators Elizabeth Busch describes are more subtle and more urbane, but in the end equally contemptuous of the forms and formalities of a liberal democracy. Those of us who are proud to be called “constitutionalists” need to identify and condemn both forms of anti-constitutional behavior.