Supreme Court of the United States

Transcription

1 Team 378 Docket No In The Supreme Court of the United States October Term 2016 CHILTON STATE, Petitioner, v. JANE DOE Respondent. On Writ of Certiorari to the Thirteenth Circuit Court of Appeals BRIEF FOR RESPONDENT Attorneys for Respondent January 2, 2017 Team 378 Region: Philadelphia, PA

2 QUESTIONS PRESENTED I. Is Auer deference the proper standard for courts to apply to the Department of Education Office for Civil Rights interpretative guidance regarding the duty of educational institutions to investigate allegations of sexual assault that occur off campus? II. Can Chilton State be held liable for a violation of Title IX when it was deliberately indifferent to student-on-student sexual assault that created a hostile environment for the victim at the University? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv OPINIONS BELOW... 1 STATUTORY PROVISIONS... 1 STATEMENT OF JURISDICTION... 1 STATEMENT OF THE CASE... 2 Factual Background... 2 Procedural History... 6 SUMMARY OF THE ARGUMENT... 7 STANDARD OF REVIEW ARGUMENT I. This Court should afford the Department of Education Office for Civil Rights promulgated guidance controlling deference under Auer to determine whether a university has a duty to investigate allegations of off-campus sexual assault A. Auer deference is warranted because the OCR guidance is interpretive, consistent with prior regulations, and reflective of the specialized knowledge and expertise of the agency The OCR guidance warrants Auer deference despite its lack of notice-and-comment procedure because the 2011 DCL and the 2014 Q&A are interpretive regulations, not substantive policy changes Applying Auer, the OCR guidance is entitled to controlling deference ii

4 i. Both Title IX and existing OCR regulations are ambiguous regarding the applicability of Title IX to off-campus fraternity social events ii. The OCR interpretations warrant deference as considered policy decisions falling within the specialized expertise of the agency iii. The OCR guidance is not plainly erroneous or inconsistent with the text or comprehensive remedial purpose of Title IX B. This Court should reaffirm Auer deference in recognition that congressionally created, experienced administrative agencies are better-situated than independent courts to resolve the agency s own ambiguous regulations C. Even if this Court applies Skidmore deference, the OCR guidance is entitled to deference as thorough, reasoned, and persuasive interpretations of Title IX II. If this Court does not give deference to the OCR guidance, Chilton State is still liable under Title IX because Mr. Forester s assault of Ms. Doe created a hostile environment at Chilton State, and the University was deliberately indifferent to her complaints of sexual harassment A. Chilton State had a duty to investigate the assault because it created a hostile environment over which the University had substantial control, and this environment deprived Ms. Doe of the educational opportunities and benefits provided by Chilton State B. Chilton State was deliberately indifferent to Ms. Doe s complaints because its response was clearly unreasonable in light of the continued harassment that she experienced CONCLUSION CERTIFICATE OF SERVICE iii

5 TABLE OF AUTHORITIES Cases: Page(s) Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993)... 14, 15 Auer v. Robbins, 519 U.S. 452 (1997)... 12, 22 Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)... 12, 14 Chamber of Commerce v. Occupational Safety & Health Admin., 636 F.2d 464 (D.C. Cir. 1980) Christensen v. Harris Cty., 529 U.S. 576 (2000)... 12, 13, 16 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)... 12, 25 Christopher v. SmithKline Beecham Corp., 132 S. Ct (2012) Crandell v. N.Y. College of Osteopathic Med., 87 F. Supp. 2d 304 (S.D.N.Y. 2000)... 30, 32 Davis v. Monroe Cty Bd. of Educ., 526 U.S. 629 (1999)... 21, 28, 35 Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct (2013)... 23, 26 Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438 (D. Conn. 2006)... 29, 30, 31, 34 Elizabeth Blackwell Health Center for Women v. Knoll, 61 F.3d 170 (3d Cir. 1995) iv

6 TABLE OF AUTHORITIES (con t) Page(s) Erringer v. Thompson, 371 F.3d 625 (9th Cir. 2004) Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016)... 12, 20 Gonzalez v. Oregon, 546 U.S. 243 (2006)... 26, 27 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) Kelly v. Yale Univ., No. 3:01-CV-1591, 2003 WL (D. Conn. Mar. 26, 2003)... 30, 31 King v. Bd. of Control of E. Mich. Univ., 221 F. Supp. 2d 783 (E.D. Mich. 2002) Lyng v. Payne, 476 U.S. 926 (1986) Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999) Martin v. Occupational Safety & Health Review Comm n, 499 U.S. 144 (1991) Morton v. Ruiz, 415 U.S. 199 (1974) NationsBank of N.C. v. Variable Annuity Life Ins. Co., 513 U.S. 251 (1995) Nat l Wildlife Fed n v. Browner, 127 F.3d 1126 (D.C. Cir. 1997) N. Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982) v

7 TABLE OF AUTHORITIES (con t) Page(s) N.Y.C. Emps. Ret. Sys. v. S.E.C., 45 F.3d 7 (2d Cir. 2001) Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997) Perez v. Mortgage Bankers Ass n, 135 S. Ct (2015)... 19, 25 Quinn v. St. Louis Cty., 653 F.3d 745 (8th Cir. 2011) Robinson v. Shell Oil Co., 519 U.S. 337 (1997) Rost v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114 (10th Cir. 2008)... 35, 38 Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007) Skidmore v. Swift & Co., 323 U.S. 134 (1944)... 13, 27 Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50 (2011) United States v. Mead Corp., 533 U.S. 218 (2001)... 11, 27 United States v. Price, 383 U.S. 787 (1966) Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000)... 34, 35, 36, 39 Young v. Cmty. Nutrition Inst., 476 U.S. 974 (1986) vi

8 TABLE OF AUTHORITIES (con t) Statutory Provisions Page(s) 5 U.S.C , 14, U.S.C. 1681(a)... passim 20 U.S.C. 1687(2)(A)... 1, 20, 30 Regulatory Provisions 34 C.F.R (b) (2016) Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12,034, 12,039 (1997) Other Authorities About OCR, U.S. Dep t of Educ., ces/list.ocr.aboutocr.html (last visited December 31, 2016) Attorney General s Manual on the Administrative Procedure Act (1947) Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J Bradley Lipton, Accountability, Deference, and the Skidmore Doctrine, 119 YALE L.J (2010) Conor Clarke, The Uneasy Case Against Auer and Seminole Rock, 33 YALE L. & POL Y REV. 175 (2014)... 25, 26 David Borgen & Jennifer Liu, Significant Legal Developments in Wage & Hour Law: Deference Standards (2007) Dear Colleague Letter from Russlyn Ali, Assistant Sec y for Civil Rights, U.S. Dep t of Educ. (Apr. 4, 2011)... passim vii

9 TABLE OF AUTHORITIES (con t) Page(s) Derek A. Woodman, Rethinking Auer Deference: Agency Regulations and Due Process Notice, 82 GEO. WASH. L. REV (2014) Don Mayor et al, Administrative Agencies: Their Structure and Powers (2012) Letter from Sandra Stephens, Dallas Office Team Leader, Office for Civil Rights, Dep t of Educ., to David Schmidly, President, Okla. State Univ. (June 10, 2004)... 17, 18 Nicholas R. Bednar, Defying Auer Deference: Skidmore as a Solution to Conservative Concerns in Perez v. Mortgage Bankers Association, MINN. L. REV. (June 24, 2015), awreview.org/2015/06/defying-auer-deference-skidmore-solution-c onservative-concerns-perez-v-mortgage-bankers-association/ Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573 (1984) Robert A. Anthony, The Supreme Court and the APA: Sometimes They Just Don t Get It, 10 ADMIN L.J. AM. U. 1 (1996) Thomas J. Fraser, Interpretive Rules: Can the Amount of Deference Accorded Them Offer Insight Into the Procedural Inquiry?, 90 B.U. L. REV (2010) U.S. Dep t of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence (2014)... 5, 16, 18 U.S. Dep t of Educ., Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001)... 16, 21, 30 viii

10 Docket No In The Supreme Court of the United States October Term 2016 CHILTON STATE UNIVERSITY, Petitioner, v. JANE DOE Respondent. On Writ of Certiorari to the Thirteenth Circuit Court of Appeals BRIEF FOR RESPONDENT TO THE SUPREME COURT OF THE UNITED STATES: Respondent, Jane Doe, Appellant in Docket No before the United States Court of Appeals for the Thirteenth Circuit, respectfully submits this brief on the merits and asks this Court to affirm the Thirteenth Circuit s reversal of the United States District Court for the Western District of Chilton.

11 OPINIONS BELOW The decision and order of the United States District Court for the Western District of Chilton is unreported and set out in the record. (R ) The opinion and order of the Thirteenth Circuit Court of Appeals is also unreported and set out in the record. (R ) STATUTORY PROVISIONS The following provisions of the United States Code are relevant to this case: 20 U.S.C. 1681; 20 U.S.C. 1687; 5 U.S.C STATEMENT OF JURISDICTION The United States District Court for the Western District of Chilton entered its decision and order in Docket No. 15-cv The United States Court of Appeals for the Thirteenth Circuit reversed the district court and entered judgment in favor of the Respondent, Jane Doe, pursuant to 28 U.S.C This Court subsequently issued a writ of certiorari to the Thirteenth Circuit Court of Appeals on November 2, Thus, this Court s jurisdiction is proper under 28 U.S.C. 1254(1). 1

12 STATEMENT OF THE CASE Factual Background Chilton State s Official Recognition of BKD. Jane Doe began her freshman year at Chilton State in the fall of (R. at 2.) She was an aboveaverage student and an active participant in extracurricular activities. (R. at 2.) During her freshmen year, Ms. Doe joined the Chilton State chapter of Beta Kappa Delta (BKD) a co-ed fraternity officially recognized by Chilton State. (R. at 2.) Like most fraternities, BKD held weekly meetings, participated in community service events, and hosted many social events. (R. at 3.) Chilton State requires all officially recognized student organizations, including BKD, to submit all events to the Office of Student Activities ( OSA ) for approval at least three days prior to the event. (R. at 3.) In addition to Chilton State-approved events, BKD also hosted many unsanctioned parties. (R. at 3.) Chilton State was aware of the unsanctioned events, yet did nothing to stop to them. (R. at 3.) The Assault. During her freshmen year, Ms. Doe met Logan Forester a sophomore and the head of recruiting for BKD. (R. at 3.) Over the course of the spring semester, Mr. Forester made several sexual advances towards Ms. Doe. (R. at 3.) Ms. Doe made it abundantly clear that she was not romantically interested in Mr. Forester, and repeatedly deflected his advances. (R. at 3.) Following her freshman year, Ms. Doe rented one of the BKD houses on Stars Hollow Street for the summer with two of her female friends. (R. at 4.) Mr. Forester 2

13 and two other male officers of BKD rented the other BKD house on the street. (R. at 4.) Although Chilton State fraternities do not have official houses on campus, the two houses rented by Ms. Doe and Mr. Forester are owned by BKD alumni and have been rented to members of BKD exclusively for over ten years. (R. at 4.) During the summer of 2014, Mr. Forester now the BKD president hosted many BKD parties at his house on Stars Hollow. (R. at 4.) Mr. Forester organized these parties by sending s to BKD members at their ChiltonState.edu addresses using the terms BKD and Chilton State. (R. at 4.) One of these parties took place on the Fourth of July. (R. at 4.) At Mr. Forester s Fourth of July BKD party, Ms. Doe became very intoxicated. (R. at 4 5.) Mr. Forester asked Ms. Doe to come inside to help prepare food for the party. (R. at 5.) As soon as Ms. Doe was inside, Mr. Forester began kissing her. (R. at 5.) Ms. Doe attempted to get away from Mr. Forester, but she stumbled backward on her unsteady feet. (R. at 5.) Mr. Forester then grabbed her, pulled her into the living room, and began assaulting her on the couch. (R. at 5.) The assault continued until Mr. Forester s roommate entered the house. (R. at 5.) Chilton State s Response and the Continuing Harassment. In the aftermath of her assault, Ms. Doe quit her summer job, and moved back home, telling her friends she had a family emergency. (R. at 5.) After leaving Chilton City, Ms. Doe continued to receive text messages from Mr. Forester, none of which received a response. (R. at 5.) Prior to returning to Chilton State for her sophomore year, Ms. Doe confided in her roommate, Sarah Jones, that Mr. Forester had 3

14 assaulted her at the BKD Fourth of July party. (R. at 5 6.) Against Ms. Doe s wishes, Ms. Jones told one of Mr. Forester s roommates about the assault, and word of the assault spread throughout campus. (R. at 6.) Ms. Doe then noticed comments about her on the Chilton State YakTalk page that labeled her as sexually promiscuous and a liar. (R. at 6.) Several other derogatory comments were posted on the same page about women who accuse men of sexual assault. (R. at 6.) Upon reluctantly returning to Chilton State in the fall, Ms. Doe immediately reported the Fourth of July assault and subsequent YakTalk messages to Emily Johnson, the Chilton State Title IX officer. (R. at 6.) She told Ms. Johnson unequivocally that she wanted to pursue a report against Mr. Forester. (R. at 6.) In response, Ms. Johnson told her that Chilton State would not do anything because the assault took place off campus and Chilton State does not control the YakTalk page. (R. at 6.) Ms. Doe pleaded with Ms. Johnson, stating that the assault took place at a BKD event and that it was obvious that it was Chilton State students making these derogatory comments about her. (R. at 6.) She also told Ms. Johnson that she feared for her safety if she returned to campus or BKD. (R. at 6 7.) Ms. Johnson again relayed that the university would do nothing. (R. at 7.) Ms. Johnson did not report the incident to campus or local police, although she did tell Ms. Doe that the university would cooperate with law enforcement if Ms. Doe reported her own sexual assault. (R. at 7.) Nevertheless, the negative messages on YakTalk persisted, and Ms. Doe became increasingly depressed and anxious. (R. at 7.) As a result, Ms. Doe ceased all affiliation with BKD and other 4

15 campus community activities, frequently missed class, and found herself on academic probation. (R. at 7.) Ultimately, Ms. Doe did not return for the spring semester. (R. at 7.) The Lawsuit. After leaving Chilton State, Ms. Doe filed suit claiming that Chilton State did not process the reported sexual assault and online harassment in conformance with its Title IX duties. (R. at 7.) For her claim, Ms. Doe relied upon guidance from the Department of Education ( DOE ) Office for Civil Rights ( OCR ) the agency charged with implementing and enforcing Title IX to establish a university s duty to investigate allegations of off-campus sexual assaults occurring during fraternity social events. (R. at 8.) Specifically, in 2011, the OCR Office of the Assistant Secretary issued a Dear Colleague Letter stating, in relevant part: If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures. Because students often experience the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus. Dear Colleague Letter from Russlyn Ali, Assistant Sec y for Civil Rights, U.S. Dep t of Educ. 4 (Apr. 4, 2011). Then, in 2014, the OCR created a question and answer document to provide further information and illustrative examples of how OCR evaluates whether institutions are complying with Title IX. See U.S. Dep t of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence (2014) [hereinafter Questions and Answers on Title IX]. The 2014 Q&A pertinently states, The mere presence on campus or in an off-campus education 5

16 program or activity of the alleged perpetrator of off-campus sexual violence can have continuing effects that creates a hostile environment. Id. Procedural History District of Chilton. Jane Doe brought suit in the United States District Court for the Western District of Chilton alleging that Chilton State violated its obligations under Title IX for failing to investigate her assault and subsequent online harassment. (R. at 7.) Chilton State responded by filing a motion for summary judgment, arguing that Doe did not adequately establish the elements for a Title IX claim. (R. at 8.) Specifically, Chilton State argued that the sexual assault occurred outside an educational program or activity of the university; therefore, it could not have exercised the required substantial control for a Title IX claim, and it was not deliberately indifferent to Ms. Doe s online harassment. (R. at 9.) The district court declined to afford any deference to the OCR 2011 DCL or 2014 Q&A. (R. at ) As a result, the court concluded that BKD was not a university program or activity over which it could exercise substantial control. (R. at 17.) The court also found that Chilton State was not deliberately indifferent to Ms. Doe s subsequent harassment, or that its actions caused Ms. Doe additional harm. (R. at 18.) Accordingly, the court granted Chilton State s motion for summary judgment. Thirteenth Circuit. Ms. Doe appealed the district court s decision to the United States Court of Appeals for the Thirteenth Circuit. (R. at 20.) The Thirteenth Circuit reversed and remanded the district court s grant of Chilton 6

17 State s motion for summary judgment. (R. at 27.) In reaching this conclusion, the Thirteenth Circuit held that the 2011 DCL and the 2014 Q&A were entitled to controlling deference under Auer; thus, Chilton State had a duty to investigate the allegations of sexual assault at the school-sponsored BKD fraternity. (R. at 23.) Furthermore, the Thirteenth Circuit concluded that Ms. Doe had a triable claim under Title IX because Chilton State committed actionable discrimination and was deliberately indifferent to continuing harassment emanating from student-onstudent sexual assault. (R. at 24.) SUMMARY OF THE ARGUMENT The Appropriate Level of Deference to OCR Guidance. An administrative agency s interpretations of its own ambiguous regulations are entitled to substantial deference under Auer v. Robbins. While an administrative agency is generally required to use formal adjudication or notice-and-comment rulemaking to promulgate such regulations, the agency is not required to use formal procedures to issue informal interpretations. An informal agency interpretation is entitled to deference if (1) the regulation is ambiguous; (2) the interpretation reflects the considered judgment of the agency; and (3) the interpretation is not plainly erroneous with the statute or agency regulation it construes. Here, the 2011 DCL and the 2014 Q&A collectively understood as the OCR guidance are entitled to Auer deference as they represent an interpretation of Title IX and substantive OCR regulations. Contrary to Chilton State s argument, they are not significant policy changes because they are consistent with all promulgated 7

18 OCR guidance on the issue, and reflect the OCR s continued recognition that offcampus sexual assaults permeate and negatively affect the educational environment. Under Auer deference, the OCR guidance is entitled to controlling weight because all statutory and regulatory rules are ambiguous regarding Title IX s applicability to off-campus fraternity social events, the OCR guidance reflects the expert judgment of the OCR, and the guidance is not plainly erroneous or inconsistent with the text or broad, remedial purpose of Title IX. Title IX Liability for Actionable Discrimination and Deliberate Indifference. Chilton State is liable under Title IX because it has substantial control over the environment in which the continuing harassment occurred the university and because it was deliberately indifferent to Ms. Doe s sexual assault. A university that receives federal funds is liable under Title IX for failing to investigate a peer-on-peer sexual assault if: (1) the defendant has actual knowledge of, and (2) is deliberately indifferent to, (3) harassment that is so severe, pervasive and objectively offensive as to (4) deprive access to the educational benefits or opportunities provided by the school; and (5) the harassment occurs in a context over which the defendant exercises substantial control. At issue in this appeal are whether Chilton State had control over the environment in which the harassment occurred and whether it was deliberately indifferent to the sexual assault of Ms. Doe. First, Chilton State has substantial control over its own campus, and is required to investigate when it knows that the campus has become a hostile 8

19 environment for one of its students because of sexual assault by another student. In order for this liability to arise, there must be some nexus between the assault and the university s programs or activities. Here, the assault took place between two members of BKD, an officially recognized student organization, at a party for BKD members at the BKD house using the fraternity s official channels of communication, which includes s to students ChiltonState.edu addresses. The presence of an attacker on campus can create a hostile environment for the victim that constitutes harassment independent of the assault itself. Here, there is ample evidence that the campus was a hostile environment for Ms. Doe, including: dropping out of BKD and other extracurricular activities, frequently missing class, declining academic performance, and, ultimately, withdrawal from Chilton State. Because Chilton State has substantial control over its own campus, yet failed to do anything about the hostile environment, it breached the duty owed to Ms. Doe under Title IX. Additionally, Ms. Doe should be able to recover monetary damages in this case because Chilton State was deliberately indifferent to Ms. Doe s complaint of the sexual assault and the continuing harassment that occurred as a result. A university is deliberately indifferent to harassment only when the response is completely unreasonable in light of the circumstances. If a university knows that its efforts to remedy the situation are ineffective, yet the harassment continues anyway, the response is unreasonable. Even if a university does not think it has the 9

20 power to investigate an assault itself, it should involve law enforcement and attempt to make the student comfortable on campus. Here, Chilton State refused to do anything to remedy the assault and subsequent harassment suffered by Ms. Doe. Chilton State offered to cooperate with an investigation by law enforcement, but did not inform the police themselves. Additionally, Chilton State informed her of counseling services that are available to every student, and offered to allow her to change her schedule and living situation before the semester started. Any student may change their schedule before the semester starts, and Ms. Doe lived off campus, so Chilton had no way of assisting. Essentially, Chilton offered her empty promises while refusing to act. Because it completely refused to do anything other than inform her of options available to any student no matter if the student was a victim of sexual assault or not Chilton State was deliberately indifferent. STANDARD OF REVIEW A district court s grant of a motion for summary judgment is reviewed de novo. Quinn v. St. Louis Cty., 653 F.3d 745, 750 (8th Cir. 2011). Reviewing courts must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party. Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir. 1999) ( We review a district court s grant of summary judgment... applying the same standards as the district court. ). 10

21 ARGUMENT I. This Court should afford the Department of Education Office for Civil Rights promulgated guidance controlling deference under Auer to determine whether a university has a duty to investigate allegations of off-campus sexual assault. Administrative agencies oftentimes deemed the fourth branch of government were delegated lawmaking powers as a practical necessity to provide the government with expert and specialized knowledge in complex matters of public concern, beyond the scope of individual legislator capability. Don Mayor et al, Administrative Agencies: Their Structure and Powers 200 (2012); See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573 (1984). The power of an administrative agency to administer a congressionally created... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. Morton v. Ruiz, 415 U.S. 199, 231 (1974). Thus, administrative interpretation is to be given weight not merely as the opinion of some men or even of a lower tribunal, but as the opinion of the body especially familiar with the problems dealt with by the statute and burdened with the duty of enforcing it. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J The precise amount of weight courts afford to an agency s statutory construction is contingent upon the type of agency action. See United States v. Mead Corp., 533 U.S. 218, (2001). When Congress has delegated authority to the agency to make rules carrying the force of law, and... the agency interpretation 11

22 claiming deference was promulgated in the exercise of such authority, courts afford the highest level of deference Chevron deference. Id. at 218. Agency regulations carry the force of law in exercise of such express congressional authority when an agency uses formal adjudication or notice-and-comment rulemaking. See Christensen v. Harris Cty., 529 U.S. 576, 587 (2000). If Chevron deference applies, agency interpretations are entitled to controlling weight if (1) the statute is ambiguous; (2) Congress has not directly addressed the issue; and (3) the agency interpretation is based on a permissible, reasonable construction of the statute. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). It is [also] well established that an agency s construction of its own regulations is entitled to substantial deference. Martin v. Occupational Safety & Health Review Comm n, 499 U.S. 144, 150 (1991) (quoting Lyng v. Payne, 476 U.S. 926, 939 (1986)). Thus, courts still afford Auer (or Seminole Rock) deference to an agency s guiding interpretations of its own regulations, even though they do not carry the force of law and are not promulgated using formal procedures. Auer v. Robbins, 519 U.S. 452, 461 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). Under Auer, agency interpretations are entitled to deference if (1) the regulation is ambiguous; (2) the interpretation reflects the agency s fair and considered judgment; and (3) the interpretation is not plainly erroneous or inconsistent with the regulation or statute. G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709, (4th Cir. 2016). 12

23 Administrative agency interpretations that do not receive either Chevron or Auer deference are entitled to Skidmore deference. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Under Skidmore, the weight of an agency s judgment is determined in relation to its power to persuade. Id. In this case, the Department of Education ( DOE ) Office for Civil Rights ( OCR ) 2011 Dear Colleague Letter ( 2011 DCL ) and the 2014 Question and Answers on Title IX ( 2014 Q&A ) collectively ( the OCR guidance ) do not warrant Chevron deference because they were not issued pursuant to formal adjudication or notice-and-comment rulemaking. 1 (R. at 11.) Nevertheless, they do warrant Auer deference because they resolve a longstanding statutory ambiguity regarding the applicability of Title IX to off-campus activities. (R. at 11.) In addition, the OCR guidance reflects the considered judgment of the OCR, and is not plainly erroneous or inconsistent with Title IX or prior OCR guidance. 1 In Christensen v. Harris County, this Court stated that [i]nterpretations such as those in opinion letters like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all which lack the force of law do not warrant Chevron-style deference. Christensen, 529 U.S. at 587. Nevertheless, this case provides an opportunity for this Court to afford Chevron deference to authoritative agency positions not created using formal procedures as it has done previously on several occasions. See NationsBank of N.C. v. Variable Annuity Life Ins. Co., 513 U.S. 251, (1995) (applying Chevron deference to a letter from the Comptroller of the Currency); Young v. Cmty. Nutrition Inst., 476 U.S. 974, (1986) (affording Chevron deference to a Food and Drug Administration s no-action notice published in the Federal Register). 13

24 A. Auer deference is warranted because the OCR guidance is interpretive, consistent with prior regulations, and reflective of the specialized knowledge and expertise of the agency. To promulgate regulations, administrative agencies must generally use formal adjudication or the notice-and-comment rulemaking procedures outlined in 553 of the Administrative Procedure Act. See Administrative Procedure Act 6, 5 U.S.C However, when an agency interprets its own regulation rather than creating a new regulation, the interpretive guidance is entitled to near-absolute deference even without formal procedure. Nicholas R. Bednar, Defying Auer Deference: Skidmore as a Solution to Conservative Concerns in Perez v. Mortgage Bankers Association, MINN. L. REV. (June 24, 2015), w.org/2015/06/defying-auerdeference-skidmore-solution-conservative-concerns-perez -v-mortgage-bankers-association/ (citing Bowles, 325 U.S. at 414). Substantive rules or legislative rules, which require formal procedure, are issued by an agency pursuant to statutory authority and have the force and effect of law. Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109 (1993) (D.C. Cir. 1993) (citing Attorney General s Manual on the Administrative Procedure Act 30 n.3 (1947)). In contrast, interpretative rules are rules or statements issued by an agency to advise the public of the agency s construction of the statutes rules which it administers. Id. Under 553(b)(3)(A) of the APA, interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice are specifically exempted from the notice-and-comment rulemaking requirement, while substantive rules are procedurally invalid and may 14

25 be set aside if issued without the formal notice-and-comment procedure. 553(b)(3)(A) (emphasis added). 1. The OCR guidance warrants Auer deference despite its lack of notice-and-comment procedure because the 2011 DCL and the 2014 Q&A are interpretive regulations, not substantive policy changes. While the distinction between substantive and interpretive rules is oftentimes blurred, the United States Court of Appeals for the District of Columbia pronounced a comprehensive, multi-factor test in American Mining Congress v. Mine Safety & Health Administration for determining whether a given agency action is entitled to deference as interpretative guidance. 2 See Am. Mining, 995 F.2d at Under the American Mining test, an agency action is a substantive rule if (1) the rule is published in the Code of Federal Regulations (CFR); (2) the agency explicitly invoked its general legislative authority to pass the rule; (3) the basis for agency enforcement is inadequate without the rule; and (4) the rule repudiates or is irreconcilable with a prior legislative rule. Id. None of these factors operates to render the 2011 DCL or the 2014 Q&A a substantive rule. 2 This Court should adopt the American Mining test in recognition of its support in the lower courts, and inclusive consolidation of the varied inquiries and employed tests for determining whether an agency action is substantive or interpretive. Thomas J. Fraser, Interpretive Rules: Can the Amount of Deference Accorded Them Offer Insight Into the Procedural Inquiry?, 90 B.U. L. REV. 1304, (2010); See Erringer v. Thompson, 371 F.3d 625, 630 (9th Cir. 2004) (adopting the American Mining test); N.Y.C. Emps. Ret. Sys. v. S.E.C., 45 F.3d 7, 13 (2d Cir. 2001) (applying the American Mining test); Elizabeth Blackwell Health Center for Women v. Knoll, 61 F.3d 170, (3d Cir. 1995) (discussing the American Mining test as binding in the Third Circuit). 15

26 First, neither the 2011 DCL nor the 2014 Q&A were published in the CFR. (R. at 10.) Second, the language embedded within the 2011 DCL and the 2014 Q&A illustrates that the agency did not invoke its general legislative authority in promulgating the guidance. See Dear Colleague Letter, supra, at 1; Questions and Answers on Title IX, supra, at Specifically, the OCR stated that this guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how OCR evaluates whether covered entities are complying with their legal obligations. Dear Colleague Letter, supra, at 1; Questions and Answers on Title IX, supra, at Moreover, without noticeand-comment rulemaking or formal adjudication, the OCR cannot invoke its express statutory authority to promulgate rules. See Christensen, 529 U.S. at 587. Additionally, the OCR s enforcement ability to revoke federal funding for institutions that do not comply with Title IX obligations to address off-campus instances of sexual assault is not remiss without the 2011 DCL or the 2014 Q&A. See 20 U.S.C Instead, the 2011 DCL and the 2014 Q&A simply pronounce the OCR s understanding of a university s obligations to respond to allegations of off-campus sexual assault. The OCR has already formally established the applicability of Title IX to off-campus activities. See U.S. Dep t of Educ. Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties 2 3 (2001) [hereinafter Revised Sexual Harassment Guidance] (stating that Title IX protects students in connection with all of the school s... programs... whether they take place in the 16

27 facilities of the school, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere. (emphasis added)). Therefore, the 2011 DCL and the 2014 Q&A are merely declar[ing the OCR s] understanding of what a statute requires rather than imposing an obligation beyond the text of the statute. Chamber of Commerce v. Occupational Safety & Health Admin., 636 F.2d 464, 469 (D.C. Cir. 1980). Chilton State University does not dispute these facts; rather it argues under the last factor that the 2011 DCL and the 2014 Q&A cannot be considered interpretive because these regulations represent a policy change rather than an interpretation of an existing regulation. (R. at 12.) To portray the OCR s alleged policy change, Chilton State relies solely on a prior OCR response to a complaint filed against Oklahoma State University ( OSU ) in 2004 regarding an alleged Title IX violation for OSU s failure to respond to an off-campus sexual assault. (R. at 12.) In its response, the OCR stated, A university does not have a duty under Title IX to address an incident of alleged sexual harassment where the incident occurs offcampus and does not involve a program or activity of the recipient. Letter from Sandra Stephens, Team Leader, Office for Civil Rights, Dep t of Educ., to David Schmidly, President, Okla. State Univ. 2 (June 10, 2004). Chilton State s argument first lacks merit because the OCR response is not inconsistent with the OCR guidance. The 2011 DCL provides, Title IX protects students from sexual harassment in a school s education programs and activities... in connection with all the academic, education, extracurricular, athletic, or other 17

28 programs of the school. Dear Colleague Letter, supra, at 3 4. The 2014 Q&A provides that a school must process all complaints of sexual violence regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an educational program or activity. Questions and Answers on Title IX, supra, at 29. Therefore, read together, both the 2011 DCL and the 2014 Q&A recognize that Title IX applies only to university programs or activities, whether on or off-campus. See id. The OCR response, which states conjunctively that offcampus incidents not involving a university program or activity fall outside the scope of Title IX, is consistent with the former and latter OCR guidance. See Letter from Sandra Stephens to David Schmidly, supra, at 2. Furthermore, the assault prompting the OSU complaint is factually distinguishable from Ms. Doe s assault, which helps clarify the OCR s contextual statement. The facts described in the OSU complaint illustrate that four OSU football players sexually assaulted a fellow student at an off-campus private party. Id. Although one of the football players hosted the party at his private residence, it was not understood to be a OSU football-sponsored party, nor was it advertised using official university channels. Id. at 2 3. Therefore, without any university affiliation, the private party could not be considered a program or activity of the university. Id. at 2. Here, the BKD party had ample university sponsorship. (R. at 3 4.) Chilton State knew BKD hosted unsanctioned parties, owned houses close to campus where it would host these unsanctioned parties, and advertised parties 18

29 using official university channels. (R. at 3.) Therefore, the OCR response was a statement of circumstance, rather than an official agency promulgation. Nevertheless, even if this Court determines that the OCR response is inconsistent with its previous guidance, this Court has recently established that administrative agencies are not bound by their prior interpretations. See Perez v. Mortgage Bankers Ass n, 135 S. Ct. 1199, 1203 (2015). In 1997, the D.C. Circuit stated in Paralyzed Veterans of America v. D.C. Arena L.P. that an agency must use the APA s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from one the agency has previously adopted. Id. (discussing the holding of Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997)). However, this Court recognized last year in Perez v. Mortgage Bankers Association that the Paralyzed Veterans holding was inconsistent with the APA s provided exemption to interpretive guidance from formal notice-and-comment procedures. Id. This Court explicitly stated, Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule. Id. at Therefore, even if the OCR response is inconsistent with the OCR guidance, the OCR is free to amend previously established interpretations without using formal procedure. See id. 2. Applying Auer, the OCR guidance is entitled to controlling deference. Once establishing that an agency regulation is interpretive, not substantive, courts afford controlling Auer deference to administrative agency interpretations 19

30 when (1) the statute or regulation is ambiguous; (2) the guidance reflects the agency s fair and considered judgment; and (3) the guidance is not plainly erroneous or inconsistent with the statute or regulation. Gloucester Cnty. Sch. Bd., 822 F.3d at 719. In this case, the OCR guidance warrants Auer deference because it resolves a longstanding statutory and regulatory ambiguity regarding the applicability of Title IX to off-campus fraternity activities. Moreover, these promulgations reflect the considered judgment of the OCR that off-campus sexual assault has hostile effects that can permeate the educational environment. (R. at 10.) Lastly, this recognition is not plainly erroneous or inconsistent with Title IX s express language or broad purpose. i. Both Title IX and existing OCR regulations are ambiguous regarding the applicability of Title IX to off-campus fraternity social events. The plainness or ambiguity of the statutory language is determined by reference to the language itself, the specific context in which [the] language is used, and the broader context of the statute as a whole. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Looking to the plain language of Title IX, it applies to programs and activities receiving federal financial assistance. 20 U.S.C. 1681(a). A program or activity entails all of the operations of... a college, university, or other postsecondary institution, or a public system of higher education. 20 U.S.C. 1687(2)(A) (emphasis added). Chilton State University argues that Title IX is unambiguous because the Supreme Court definitively construed the term operations in Davis v. Monroe 20

31 County Board of Education as including only those activities where the institution exercises substantial control over both the harasser and the context in which the known harassment occurs. Davis v. Monroe Cty Bd. of Educ., 526 U.S. 629, 645 (1999). While the Court s decision in Davis may limit the type of extracurricular activities that Title IX governs, it does not preclude institutional liability for all offcampus activities. Illustratively, after this Court s decision in Davis, several lower courts have recognized that universities can have substantial control over offcampus events. See Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, (10th Cir. 2007) (stating that a university policy of deliberate indifference towards recruiting activities taking place off campus constitutes a circumstance in which the institution exercises significant control over the harasser and the environment); King v. Bd. of Control of E. Mich. Univ., 221 F. Supp. 2d 783, (E.D. Mich. 2002) (finding that an off-campus study abroad program constituted an educational program where a university could exercise substantial control). Attempting to provide some clarification in 2001, the OCR formally declared that Title IX can apply off campus; however, it failed to resolve the related ambiguity regarding Title IX applicability to fraternity social events, and whether these social events constitute activities or programs of the institution. See Revised Sexual Harassment Guidance, supra, at 2 3. The 2001 Revised Sexual Harassment Guidance states, Title IX protects students in connection with all of the academic, educational, extra-curricular, athletic, and other programs of the school, whether they take place in the facilities of the school, on a school bus, at a class or training 21

32 program sponsored by the school at another location, or elsewhere. Id. Therefore, the 2011 DCL and the 2014 Q&A, which both clarify that fraternity events can constitute university operations under Title IX may be limited by the Davis substantial control analysis, but Davis does not foreclose all Title IX applicability off campus. ii. The OCR interpretations warrant deference as considered policy decisions falling within the specialized expertise of the agency. The Supreme Court has never required an agency s decision to meet a deliberative threshold. Derek A. Woodman, Rethinking Auer Deference: Agency Regulations and Due Process Notice, 82 GEO. WASH. L. REV. 1721, 1743 (2014). Instead, the Court can ensure the agency s deliberative process is sufficient by focusing on the substance of the regulation and whether it conflicted with an existing interpretation. Id. Only when an agency establishes its position in litigation will courts inquire into whether it was developed hastily, or under special pressure, and is not the result of the agency s deliberative processes. Id (quoting Nat l Wildlife Fed n v. Browner, 127 F.3d 1126, 1129 (D.C. Cir. 1997)). As long as the agency interpretation is not a post hoc rationalization[n] advanced by an agency seeking to defend past agency action against attack... it is worthy of deference as the agency s fair and considered judgment on the matter in question. Auer, 519 U.S. at 462 (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988)). 22

33 In this case, neither the 2011 DCL nor the 2014 Q&A were created impulsively in response to pending or upcoming litigation. (R. at 8 10.) Instead, the OCR created this interpretive guidance in accordance with its congressional mandate to ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights. About OCR, U.S. Dep t of Educ., (last visited December 31, 2016). iii. The OCR guidance is not plainly erroneous or inconsistent with the text or comprehensive remedial purpose of Title IX. The existence of other regulations, rulings, or administrative practices that are consistent with the interpretation weigh in favor of it meriting Auer deference. David Borgen & Jennifer Liu, Significant Legal Developments in Wage & Hour Law: Deference Standards 6 (2007). Furthermore, the agency s interpretation need not be the only possible reading of a regulation or even the best one to prevail. Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013). Title IX states, No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. 1681(a) (emphasis added). This Court has repeatedly recognized that if we are to give [Title IX] the scope that its origins dictate, we must accord it a sweep as broad as its language. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 296 (1998); N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982) (quoting United States v. Price, 383 U.S. 787, 801 (1966)). Accordingly, Title 23

34 IX s broad applicability is limited only by the statute s express exemptions. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005). The exemptions outlined in 1681(a)(1) (9) do not impose any geographical boundaries. See 1681(a)(1) (9). While 1681(a)(6)(A) specifically addresses social fraternities and sororities, it exempts only the membership practices of such organizations, not the general operations. See id. Therefore, the OCR guidance, which clarifies that Title IX can extend off campus to fraternity social events, is not plainly erroneous or inconsistent with the text or purpose of Title IX. (R. at 8 10.) B. This Court should reaffirm Auer deference in recognition that congressionally created, experienced administrative agencies are better-situated than independent courts to resolve the agency s own ambiguous regulations. This Court has long held that courts should defer to... an agency s own interpretation of the statutes it implements. Bradley Lipton, Accountability, Deference, and the Skidmore Doctrine, 119 YALE L.J. 2096, 2120 (2010). The primary reason for affording deference to agency interpretations is the agency s specialized expertise. Id. at [A]gency officials who implement and administer statutes on a consistent basis have more expertise to interpret the statute s meaning than courts. Id. Another justification for judicial deference to agency interpretations is that Congress has explicitly or impliedly delegated lawmaking authority to the agency to carry out the purpose of the relevant statute. See id. Most significantly, administrative agencies are bound by political accountability. Id. Writing for the Court s unanimous decision in Chevron, Justice Stevens noted: 24

35 [P]olicy arguments are more properly addressed to legislators or administrators, not to judges.... [I]t is entirely appropriate for this political branch of the Government to make such policy choices resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.... [F]ederal judges who have no constituency have a duty to respect legitimate policy choices made by those who do. Chevron, 467 U.S. at Despite the numerous reasons supporting administrative deference, several legal and judicial scholars have recently criticized Auer deference as inconsistent with the separation of powers. See Perez, 135 S. Ct. at 1213 (Thomas, J., concurring) (discussing how Auer deference raises constitutional concerns because it effects a transfer of judicial power to an executive agency); Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 68 (2001) (Scalia, J., concurring) ( It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well. ). Regardless of these concerns, there are ample reasons why this Court should not abandon Auer deference. First, scholarly concerns that Auer deference gives agencies an incentive to avoid separation of powers by intentionally being vague in framing regulations, with the plan of issuing interpretations... without observance of notice-and-comment procedure are mitigated by several important judicially imposed limitations on Auer deference. Conor Clarke, The Uneasy Case Against Auer and Seminole Rock, 33 YALE L. & POL Y REV. 175, 181 (2014) (quoting Robert A. Anthony, The Supreme Court and the APA: Sometimes They Just Don t Get It, 10 ADMIN L.J. AM. U. 1, (1996)). One such limitation recognizes that, 25