Supreme Court of the United States

Transcription

1 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 United States Court of Appeals for the Thirteenth Circuit BRIEF FOR PETITIONER January 2, 2017 Counsel of Record Team Numeric Designation: 649 Regional City: Washington D.C. Counsel for: Petitioner

2 QUESTIONS PRESENTED 1. Does an agency exceed the scope of its authority to interpret its own regulations when an alleged interpretation effectively creates new policy inconsistent with, and neither explicitly nor implicitly authorized by, the underlying regulation? 2. Does the Title IX prohibition against sexual discrimination under any program or activity of a funding recipient preclude a private claim for relief against a university that chose not to investigate an off-campus allegation of student-on-student harassment that occurred purely outside of the university s control when the university took promptly provided reasonable assistance to remedy the harassment and prevent its future occurrence? i

3 TABLE OF CONTENTS Page(s) QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... v STATEMENT OF JURISDICTION... 1 STATEMENT OF FACTS... 1 STATEMENT OF THE CASE... 4 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 8 I. STANDARDS OF REVIEW...8 II. THE DEPARTMENT OF EDUCATION GUIDANCE DOCUMENTS WARRANT NO DEFERNCE BECAUSE THEY WERE NOT THE PRODUCT OF FORMAL RULEMAKING AND ARE NOT REASONABLE INTERPRETATIONS OF PRIOR REGULATIONS....9 A. The Underlying Regulation Is Not Ambiguous, Therefore Auer Deference Is Not Warranted The scope of a school s Title IX liability has been definitively construed The phrase or elsewhere is not ambiguous in reference to the specific and broad context of the regulation B. Even if the Underlying Regulation Is Ambiguous, the DCL Is Plainly Erroneous and Inconsistent with Prior Regulation The DCL is plainly erroneous The DCL is also inconsistent with the prior regulations C. To Protect Constitutional Principles, Courts Should Apply Auer Deference More Strictly when an Agency Interprets Its Own Regulation III. CHILTON STATE DID NOT VIOLATE TITLE IX BECAUSE IT DID NOT HAVE SUBSTANTIAL CONTROL OVER ANY KNOWN ACTIONABLE HARASSMENT AND IT REASONABLY RESPONDED TO DOE S REPORT WHEN, INSTEAD OF INVESTIGATING HER ALLEGATION, IT PROMPTLY PROVIDED SUPPORT TO REMEDY THE SITUATION AND PREVENT FUTURE HARASSMENT ii

4 A. Doe Failed to Identify Any Actionable Discrimination That Occurred Within Chilton State s Substantial Control Chilton State lacked substantial control over both the off-campus assault and the anonymous comments on YakTalk a. Chilton State lacked substantial control over the unsanctioned, offcampus party where Doe was sexually assaulted b. Chilton State lacked substantial control over both the messages on YakTalk and its anonymous users There was no actionable harassment after Chilton State received knowledge of Doe s situation a. Chilton State had no knowledge of actionable harassment b. Refraining from investigating Doe s report and expelling Forester did not constitute actionable sexual discrimination B. Doe Has Not Made a Sufficient Showing to Conclude that Chilton State s Remedial Responses to Her Complaint Were Clearly Unreasonable in Light of the Known Circumstances a. The deliberate indifference standard is a high bar which requires a substantial showing b. A school s failure to investigate a sexual harassment allegation does not necessarily constitute deliberate indifference c. The deliberate indifference standard is a necessary element for private Title IX litigation alleging peer harassment Chilton State s actions were not clearly unreasonable in light of the known circumstances a. Chilton State provided Doe with reasonable remedial assistance b. Chilton State cannot be found deliberately indifferent for its conduct in response to the YakTalk comments c. Chilton State had no knowledge that its actions were not effective Chilton State s response did not cause Doe to experience further harassment or make her vulnerable to it C. Requiring Investigations into Every Sexual Harassment Allegation Would Violate Federalism and Would Counteract the Underlying Purpose of Federal Funding iii

5 Denying schools the broad flexibility they require in handling disciplinary matters would be improper Requiring funding recipients to investigate every allegation of sexual harassment would defeat the reason for the underlying federal funding An expansion of Title IX liability to the situation at hand would implicate serious First Amendment concerns Expansion of Title IX to such conduct is unnecessary as adequate alternatives exist to remedy such injustices CONCLUSION iv

6 TABLE OF AUTHORITIES Page(s) UNITED STATES SUPREME COURT CASES Agosto v. Immigration & Naturalization Serv., 436 U.S. 748 (1978)... 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)... 8 Auer v. Robbins, 519 U.S. 452 (1997)... passim Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)... 9 Cannon v. Univ. of Chi., 441 U.S. 677 (1979) Christensen v. Harris Cnty., 529 U.S. 576 (2000)... passim Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999)... passim Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct (2013)... 18, 20 Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)... passim Gooch v. United States, 297 U.S. 124 (1936) Holy Trinity Church v. United States, 143 U.S. 457 (1892) Pauley v. BethEnergy Mines, Inc., 501 U.S. 680 (1991) Perez v. Mortgage Bankers Assoc., 135 S.Ct (2015)... 18, 19 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) Talley v. California, 362 U.S. 60 (1960)... 27, 39, 43 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)... 26, 39, 43 UNITED STATES CIRCUIT COURT CASES Doe v. Bd. of Educ. of Prince George s Cnty., 605 F. App x 159 (4th Cir. 2015)... 33, 34 Doe v. Galster, 768 F.3d 611 (7th Cir. 2014)... 31, 36, 41 Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248 (11th Cir. 2010) Estate of Lance v. Lewsiville Indep. Sch. Dist., 743 F.3d 982 (5th Cir. 2014) G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016)... 16, 17 Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015)... passim Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir. 2007) Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. 2011) Mansourian v. Regents of the Univ. of Cal., 602 F.3d 957 (9th Cir. 2010) Morgan v. Town of Lexington, MA, 823 F.3d 737 (1st Cir. 2016) v

7 Ostrander v. Duggan, 341 F.3d 745 (8th Cir. 2003)... 24, 28, 32, 33 Pahssen v. Merrill Cmt. Sch. Dist., 668 F.3d 356 (6th Cir. 2012) Porto v. Town of Tewksbury, 488 F.3d 67 (1st Cir. 2007)... 32, 36 Roe v. St. Louis Univ., 746 F.3d 874 (8th Cir. 2014)... 24, 37 Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114 (10th Cir. 2008)... 32, 37, 40 Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156 (5th Cir. 2011) Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001) Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007)... 23, 25 Stewart v. Waco Indep. Sch. Dist., 711 F.3d 513 (5th Cir. 2013) Stiles ex rel. D.S. v. Grainger Cnty., Tenn., 819 F.3d 834 (6th Cir. 2016)... 30, 31, 36 Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000) Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282 (11th Cir. 2007)... 34, 37, 39 UNITED STATES DISTRICT COURT CASES Am. Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993)... 15, 20 Bruning ex rel. Bruning v. Carroll Cmty. Sch. Dist., 486 F. Supp. 2d 892 (N.D. Iowa 2007)... 29, 32 Doe ex rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438 (D. Conn. 2006) Doe v. Round Valley Unified Sch. Dist., 873 F. Supp. 2d 1124 (D. Ariz. 2012) Rouse v. Duke Univ., 914 F.Supp. 2d 717 (M.D. N.C. 2012) FEDERAL RULES 20 U.S.C (2012)... 11, 21, 34, U.S.C (2012) U.S.C. 553 (2012)... 9, 20 Fed. R. Civ. P vi

8 OTHER AUTHORITIES Dear Colleague Letter from Russlyn Ali, Assistant Sec y for Civil Rights, U.S. Dept of Educ. 4 (April 4, 2011) Kevin M. Stack, The Interpretive Dimension of Seminole Rock, 22 Geo. Mason L. Rev. 669 (2015)... 9 Revised Sexual Harassment Guidance: Harassment of Students by School Employers, Other Students, or Third Parties, 66 Fed. Reg (Jan. 19, 2001)... passim William N. Eskridge & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretation From Chevron to Hamdan, 97 Geo. L.J (2008) vii

9 STATEMENT OF JURISDICTION The United States District Court for the District of Chilton Western Division had subject matter jurisdiction over Respondent s 20 U.S.C (2012) claim pursuant to 28 U.S.C (2012). Petitioner, Chilton State University, motioned for summary judgment under Fed. R. Civ. P. 56(a) on Respondent s claim, which the District Court granted, finding Chilton State University not liable under 20 U.S.C (2012). R. at 19. Respondent timely filed its Notice of Appeal. See R. at 20. The United States Court of Appeals for the Thirteenth Circuit had jurisdiction based on 28 U.S.C (2012). Petitioner filed a petition for writ of certiorari, which this Court granted pursuant to 28 U.S.C. 1254(1) (2006) on November 2, R. at 28. STATEMENT OF FACTS Petitioner, Chilton State University ( Chilton State ), in response to a report of off-campus sexual assault brought by Respondent, Jane Doe ( Doe ), provided its assistance to remedy the sexual harassment. R. at 6-7. After Doe reported that she had been sexually assaulted at an unsanctioned, off-campus party and then experienced subsequent, anonymous, online harassment, Chilton State s Title IX officer offered services which would remedy Doe s harassment and prevent its future occurrence. R. at 4-7. Specifically, the officer provided: on-campus counseling services; help to rearrange her class schedule and find an alternative living situation; promise of immediate responses to any on-campus harassment; assurance of complete cooperation in any law enforcement investigation. R. at 7. Afterward, Chilton State did not receive any reports of oncampus harassment from Doe. R. at 7. In the fall of 2013, Doe started as freshman at Chilton State, a public university in Chilton City, Chilton, and quickly joined Beta Kappa Delta ( BKD ), a co-ed fraternity recognized by Chilton State as a student organization. R. at 2. Through her membership in BKD, Doe met Logan 1

10 Forester ( Forester ), the eventual president of the fraternity. R. at 3. During her first year, Doe encountered Forester at multiple BKD events and Forester made several attempts to cultivate a romantic relationship. R. at 3. However, Doe rejected him as she was not interested, but did not tell anyone of his advances. R. at 3. The summer after her first year, Doe lived with two female BKD members in Chilton City. R. at 4. Forester also stayed in Chilton, living with two male BKD members in a house five-blocks from campus that was not owned by Chilton State or BKD. R. at 4. Neither Doe nor Forester were enrolled in classes. R. at 4. Forester and his roommates hosted several gatherings over the summer that were advertised through BKD s normal channels of communication and attended by BKD members. R. at 4. However, these parties were not approved by the Office of Student Activities ( OSA ) which, under Chilton State s policy, required all student organizations to submit all events for approval at least 72 hours prior to the event. R. at 3-4. Particularly, Forester and his roommates hosted an unsanctioned BKD party at their house on July 4, R. at 4-5. The party was not an approved OSA event, the supplies were not purchased with BKD funds, and Doe knew it was not an official BKD event. R. at 4-5, 25. At some point, Forester got Doe to accompany him into the house. R. at 4-5. While inside, Forester began to kiss Doe, which escalated into an assault. R. at 4-5. The assault was fortunately brought to a halt when Forester s roommates entered the room. R. at 5. Doe quickly left the party after the incident. R. at 5. The next day, Doe returned to her hometown for the remainder of the summer without telling others about the incident. R. at 5. Doe s parents worried about her abrupt return, but Doe hid her significant emotional distress, pretending that nothing was wrong. R. at 5. 2

11 In mid-august, Doe confided in her roommate, Sarah Jones, about the incident. R. at 5-6. Two days later, Doe discovered several negative messages about her on the Chilton State page of a social media platform run by YakTalk that compiles anonymous comments from anyone who joins a particular group. R. at 6. The page is neither officially associated with nor endorsed by Chilton State. R. at 6. The messages called Doe sexually promiscuous and a liar but did not reference the Fourth of July incident. R. at 6. When Doe confronted her, Sarah denied writing the comments but admitted she spoke to one of Forester s roommates about the assault. R. at 6. After discovering the messages, Doe began to express to her mother that she wanted to stay at home and take classes at the local community college. R. at 6. When her parents refused, Doe confided in her mother about the assault. R. at 6. Despite this, Doe s mother convinced her to return to Chilton State and report the situation. R. at 6. When Doe returned to Chilton State in the fall, she reported the situation to Chilton State s Title IX officer, Emily Johnson. R. at 6. Because the incident occurred entirely off-campus and was not connected to any official school sanctioned organization or activity, Johnson informed Doe that the school could not investigate. R. at 6-7. Further, Chilton State could not remove Forester as BKD president because Doe had neither filed criminal charges against him nor alleged any on-campus harassment by him. R. at 7. However, Johnson did offer Chilton State s support to remedy the situation and prevent future harassment. R. at 7. After classes began, though Doe complained of further messages on YakTalk, she did not report any additional on-campus harassment. R. at 7. Notably, none of these negative YakTalk messages rose to the level of harassment against Doe; they were either about women in general or about Doe without any connection to the assault. R. at 7. Nonetheless, Doe quit BKD and then, due to her anxiety and depression, began skipping a significant number of classes. R. at 7. 3

12 Eventually, Doe ended up on academic probation and chose not to return to Chilton State for the spring semester. R. at 7. STATEMENT OF THE CASE Respondent, Doe, filed a Title IX lawsuit under 20 U.S.C against Petitioner, Chilton State, alleging Chilton State s response to Doe s complaint violated its Title IX obligations; specifically, its duty to investigate her complaint. R. at 7. After extensive discovery, Chilton State filed a Motion for Summary Judgment which the District Court granted because Doe had not set forth sufficient evidence that Chilton State was liable for an intentional violation of Title IX in two respects. R. at 18. First, Doe had failed to demonstrate any actionable discrimination over which Chilton State had substantial control. R. at 15. Second, Doe did not identify evidence that Chilton State was deliberately indifferent or that its actions caused her harm. R. at 18. In so holding, the District Court afforded no deference to the informal guidance documents upon which Doe relied for the proposition that schools must investigate sexual harassment claims regardless of location. R. at 11, Doe appealed to the United States Court of Appeals for the Thirteenth Circuit. R. at 20. The Thirteenth Circuit, without engaging in a detailed analysis of their consistency and reasonableness, found that the guidance documents should be given deference and reversed the District Court. R. at Particularly, without considering the remedial support Chilton State provided, the Thirteenth Circuit found that Chilton State s policy preventing investigations into off-campus student-on-student sexual harassment was sufficient to raise a jury question of Title IX violation. R. at In October of 2016, Chilton State appealed the Thirteenth Circuit s decision and this Court granted certiorari. R. at 28. The issues preserved for review are (1) what level of deference should 4

13 the court afford to the Department of Education Office of Civil Rights about the duties of educational institutions to adjudicate allegations of student-on-student assault that occurs offcampus and (2) whether Title IX allows a claim for relief against a university that refused to investigate an allegation of student-on student harassment because it occurred purely off-campus and outside the context of any university program. R. at 28. 5

14 SUMMARY OF THE ARGUMENT The purpose of Title IX is to prevent the discriminatory use of federal funds and ensure that all individuals receive equal access to the benefits provided by schools: education and personal development. By finding a university liable under Title IX merely because its policy prevented it from investigating purely off-campus sexual harassment, even though the university provided reasonable remedial assistance, the Thirteenth Circuit effectively forces public universities to become private sexual harassment policing agencies. To set legal precedent mandating university actions under the guise of Congress s spending power is to usurp the role of school officials and disavow the longstanding principle that the administration of education is a complex issue better handled by schools than judges. The Thirteenth Circuit erred in denying Chilton State s Motion for Summary Judgment on Doe s Title IX claim for two reasons. First, the Department of Education s ( DOE ) guidance documents were not reasonable interpretations of prior regulations. Second, Doe failed to put forth sufficient evidence which would allow a reasonable jury to find that Chilton State itself engaged in sexual discrimination. Courts should only defer to an agency s interpretation of its own regulation when, after critical analysis, the interpretation is reasonable and consistent with the underlying regulation. The DOE s Office for Civil Rights ( OCR ) issued informal guidance documents asserting to clarify its own previous regulations. These documents should be afforded no deference on the issue of whether a school is obligated to investigate purely off-campus sexual assault because the underlying regulations, on this specific issue, are not ambiguous. Even if they were ambiguous, the documents are unreasonable interpretations because they do not clarify an ambiguity, but create entirely new policy. And finally, the guidance documents are inconsistent with the text of Title IX, the underlying regulation, and Supreme Court precedent. Additionally, interpretive guidance 6

15 documents should be scrutinized under a strict deference test to ensure that the powers of all three branches of government are not centralized in regulatory agencies. Thus, because these documents create new rules but are not the product of formal rulemaking procedures, these guidance documents should be afforded no deference. Further, Chilton State cannot be liable for sexual discrimination under Title IX because Doe failed to identify any actionable sexual harassment subject to Chilton State s control. Unless a school has the authority to take remedial action against harassment which denies educational benefits or opportunities, the school itself cannot have discriminated on the basis of gender, which is the extent of Title IX s prohibition. Neither the unsanctioned, off-campus party nor the anonymous posts on a social media site not associated with or endorsed by Chilton State were subject to Chilton State s substantial control. Additionally, nothing after Chilton State received knowledge of the situation had the systemic effect of denying educational benefits on the basis of gender. Accordingly, Chilton State could not exercise its control to remedy such matters. Finally, even if some conduct constituted actionable harassment, no reasonable juror could find that Chilton State s actions were clearly unreasonable in light of the known circumstances or that they caused Doe s harassment or made her vulnerable to it. While Chilton State refrained from investigating the off-campus harassment, it provided reasonable services to put an end to the harassment and prevent its future occurrence. And to stretch Title IX to encompass situations such as this would be to deny school administrators the flexibility and discretion they require in educational and disciplinary matters. Thus, because Title IX only prevents a school itself from engaging in sexual discrimination, Chilton State cannot be found to have violated IX. Therefore, this Court should reverse the Thirteenth Circuit s holding. 7

16 ARGUMENT Title IX protects individuals from the sexual discrimination of institutions receiving federal funding and is not an instrument by which the Department of Education may rigidly control the conduct of universities without the safeguards of formal notice-and-comment rulemaking. When we blindly subject schools to liability for not following agencies informal rules without considering the impact of the actions the schools take, we neglect the essential purpose of universities to educate students. The Thirteenth Circuit erred in denying Chilton State s Motion for Summary Judgment on Doe s Title IX claim for two reasons. First, the Thirteenth Circuit improperly granted the Department of Education s guidance documents deference even though they were neither the product of formal rulemaking nor reasonable interpretations of prior regulations. Second, Chilton State was not deliberately indifferent to any actionable sexual harassment in violation of Title IX, which merely prevents a federal funding recipient from engaging in sexual discrimination through its own misconduct. I. STANDARDS OF REVIEW Motions for summary judgment are reviewed de novo. Agosto v. Immigration & Naturalization Serv., 436 U.S. 748, 754 (1978). Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Facts are material only if they may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). And a movant is entitled to summary judgment when, viewing the evidence in the light most favorable to the nonmoving party, no reasonable jury could return a verdict for the nonmoving party. Id. at 248. Finally, in regard to Title IX liability, upon motion for summary judgment, courts may identify a funding recipient s response as not 8

17 clearly unreasonable as a matter of law. Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 649 (1999). II. THE DEPARTMENT OF EDUCATION GUIDANCE DOCUMENTS WARRANT NO DEFERNCE BECAUSE THEY WERE NOT THE PRODUCT OF FORMAL RULEMAKING AND ARE NOT REASONABLE INTERPRETATIONS OF PRIOR REGULATIONS. The mark of any true democracy is that the power lies in the hands of the people not in any one branch of government. Allowing a regulatory agency to create, enforce, and interpret the same rule would be abhorrent to the Constitutional principle of Separation of Powers. Additionally, allowing an agency to issue new, binding rules, without going through the formal rulemaking process established by the Administrative Procedure Act ( APA ), allows an agency which is not directly accountable to the American people to circumvent any democratic checks and balances. This can occur when a regulatory agency issues interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice to clarify a previous regulation, but instead expands its scope. 5 U.S.C. 553(b)(3)(A) (2012). This is a legitimate risk that has been well-documented by Justices and scholars alike. See, e.g., Kevin M. Stack, The Interpretive Dimension of Seminole Rock, 22 Geo. Mason L. Rev. 669 (2015). Interpretative guidance documents are not subject to the APA s formal notice-andcomment rule making and neither offer the public notice that change is on the horizon nor the opportunity to voice legitimate concerns. 553(b)(3)(A). They do not carry the weight of law; however, they may nevertheless be afforded judicial deference, commonly referred to as Auer deference, when: (1) the underlying regulation is ambiguous; (2) the interpretation is not plainly erroneous; and (3) the interpretation is not inconsistent with the regulation. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, (1945); see also Auer v. Robbins, 519 U.S. 452, 461 (1997). Additionally, courts will look to see whether there is reason to suspect that the agency s 9

18 interpretation does not reflect its fair and considered judgment on the matter in question. Auer, 519 U.S. at 462. To address the legitimate concerns that courts defer to agency interpretation too readily, and risk violating Constitutional principles, courts should apply a stricter application of Auer. Here, to establish that Chilton State had an obligation to investigate off campus incidents, Doe relied upon two guidance documents issued by the OCR: the 2011 Dear Colleague Letter ( DCL ) and the 2014 Question and Answer Document ( Q&A ). However, these documents create additional obligations for educational institutions as no relevant statutory provision or formal regulation, explicitly or implicitly, prohibit an educational institution from adopting a policy of abstaining from investigating alleged incidents that occur entirely off-campus. The DCL and Q&A create an entirely new, quasi-police responsibility beyond the pale of a school s Title IX obligations. In addition, these documents are inconsistent with the text of the underlying regulation, Title IX, and this Court s interpretation of the statute. Therefore, the guidance documents should be afforded no deference. A. The Underlying Regulation Is Not Ambiguous, Therefore Auer Deference Is Not Warranted. Deference under Auer is warranted only where the language of the regulation is ambiguous, that is, where the language is susceptible to more than one interpretation. Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000). In Christensen, for example, Harris County adopted a policy which required its employees to schedule time off so that it would not have to pay compensatory time without any further agreement permitting the employer to do so. Id. at 578. The Department of Labor issued a regulation, 29 CFR (a)(2), which provided [t]he agreement or understanding [between the employer and employee] may include other provisions governing the preservation, use, or cashing out of compensatory time so long as these provisions 10

19 are consistent with [ 207(o)]. Id. at The Department of Labor then issued an informal opinion letter which stated [a]bsent such an agreement, it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time. Id. at 581. This Court held that the underlying regulation was not ambiguous, because the only reasonable reading clearly showed that it was plainly permissive. Id. at 588. Because this Court found that the underlying regulation was not ambiguous on the issue of compelled compensatory time, it withheld deference to the informal opinion letter under Auer. Id. The scope of a school s Title IX liability has been definitively construed. Similar to this Court s analysis in Christensen, the question of whether the regulation is ambiguous should be analyzed in terms of the specific issue: whether an educational institution s Title IX obligations extend off-campus, outside of its control. The explicit scope of Title IX protection is limited to an educational institution s education programs and activities, which are defined to include all the operations of the institution. 20 U.S.C. 1681(a), 1687 (2012). And, in 1999, this Court held that operations are limited to activities over which the educational institution has substantial control. Davis, 526 U.S. at Subsequently, the OCR issued a formal regulation which stated in relevant part: Title IX protects students in connection with all of the academic education, 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 program sponsored by the school at another location, or elsewhere. Revised Sexual Harassment Guidance: Harassment of Students by School Employers, Other Students, or Third Parties, 66 Fed. Reg (Jan. 19, 2001). There is no language in Title IX that indicates that an educational institution s obligations should extend to circumstances entirely outside of the school s control. Additionally, Title IX s 11

20 specifically enumerated exceptions share the common nexus of immediate control through either the use of a school s facilities or its programs and activities. 1681(a)(1)-(9). In Davis, this Court established what is implied by the plain text of Title IX protection only extends to situations under the substantial control of the school. Davis, 526 U.S. at 650. The 2001 regulation incorporates the same specific terms as the text of Title IX, which this Court definitively construed, and there is no language throughout the entire regulation that indicates any intent to deviate from such a construction. See Revised Sexual Harassment Guidance at 2-3. In fact, the regulation specifically contemplates situations where the school s available response would be limited, due to a lack of control over the harasser, and explicitly states [t]he type of appropriate steps that the school should take will differ depending on the level of control that the school has over the third party harasser. Id. at 12. Although this section is certainly distinguishable because both Doe and Forester attended the same school, it is a clear indication that the regulation incorporated the general rule that a school s only obligations to take action extends to situations (and individuals) over which it has substantial control. Neither the plain text of Title IX, this Court s interpretation of the scope of its protections, nor the plain text of the regulation are ambiguous on the issue of whether a school s obligations extend off-campus, outside of its control. The 2001 regulation creates a safe environment for students, free from harassment; it does not force an educational institution to investigate every wrong-doing, regardless of where it occurred. The phrase or elsewhere is not ambiguous in reference to the specific and broad context of the regulation. In Robinson v. Shell Oil Co., this Court stated, [t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. 519 U.S. 337, 341 (1997). 12

21 Here, the phrase or elsewhere, in reference to the specific and broad context of the regulation, renders only one logical reading: it must be limited to circumstances under which a school has substantial control. When analyzing the phrase in the specific context of the regulation, it is appropriate to look at the words around it. The rule of Ejusdem Generis limits the meaning of a general term or phrase to the matters specified in a list of specific terms or phrases which precede it. See Gooch v. United States, 297 U.S. 124, 128 (1936). This rule may not be applied, however, when the intention of Congress (or in this case, the OCR) indicates otherwise. Id. at 128. In the 2001 regulation, the phrase or elsewhere is preceded by the phrases programs of the school, in the facilities of the school, on a school bus, and at a class or training program sponsored by the school at another location. Revised Sexual Harassment Guidance at 2-3. Applying Ejusdem Generis, the general phrase or elsewhere is limited by the enumerated, specific examples that precede it. Each of those examples involve situations under the direct and substantial control of the school; they are either on school property, during a school sponsored event, or part of a school sanctioned extracurricular activity. Reading the phrase or elsewhere in light of the preceding examples obviates the fact that a school s Title IX obligations are limited to those situations in which the school has substantial control over. Additionally, in terms of the broader context of Title IX and the 2001 regulation, an expansive reading of the phrase or elsewhere would lead to absurd results. In Holy Trinity Church v. United States, 143 U.S. 457, 460 (1892), this Court established the doctrine of avoiding absurd results, which has withstood the test of time. Particularly, if a literal reading of the statutory language would lead to an absurd result, the court must restrain the words and construe the language otherwise, to avoid the absurdity. Id. If this Court were to accept the Thirteenth Circuit 13

22 and Doe s reading of the phrase or elsewhere to literally means anywhere else, then it would create an unreasonable burden on educational institutions. It would, quite literally, force schools to investigate incidents that occur anywhere on the planet, as long as it involved a student. Accordingly, the phrase or elsewhere cannot be read literally, lest the OCR subject schools to an endless marathon of globe-trotting to investigate an allegation of assault. Additionally, as described above, there is no indication in the text of Title IX nor the text of the 2001 regulation which suggests Congress or the OCR meant for the phrase or elsewhere to be read broadly. Ultimately, or elsewhere can only mean situations under which the school has substantial control. Any other reading would be contrary to the plain language of Title IX, this Court s decision in Davis, and well-established canons of interpretation. Thus, Auer deference is unwarranted because such deference is appropriate only when the regulation s language is ambiguous and, here, the regulation is unambiguous as to the scope of a school s Title IX obligations. B. Even if the Underlying Regulation Is Ambiguous, the DCL Is Plainly Erroneous and Inconsistent with Prior Regulation. Even if this Court finds that the phrase or elsewhere is patently ambiguous, the guidance documents should nonetheless be afforded no deference under Auer, because they are plainly erroneous and inconsistent with the underlying regulation. The DCL is plainly erroneous. Under Auer, an agency s interpretation will be afforded deference unless it is plainly erroneous. Auer, 519 U.S. at 461. This Court has held that an agency s interpretation need not be the best or most natural one by grammatical or other standards. Rather, [it] need only be reasonable to warrant deference. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991). Despite the wide latitude offered to agency interpretations, this Court has reserved an important limitation 14

23 when the interpretations permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation. Christensen, 529 U.S. at 588 (affording no deference to agency opinion letter because it established new policy not contemplated by the underlying regulation). To allow agencies to amend or create new rules through interpretative guidance documents would be to allow an agency to by-pass formal notice-and-comment rulemaking. This is plainly erroneous because a rule promulgated without formal notice-and-comment rulemaking, which purports to be binding, is procedurally invalid. Am. Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993). In 1997, the OCR promulgated 34 C.F.R to establish procedural requirements for a federal funding recipient such as appointing a Title IX officer and publication/dissemination requirements. Additionally in 2001, the OCR issued a formal regulation to provide clarity and reaffirm enduring principles under previous regulations and guidance. Revised Sexual Harassment Guidance, Preamble at i-ii. Ten years later, the OCR issued the DCL, which was the first time that it indicated that an educational institution might have a responsibility to respond to off-campus incidents. In pertinent part, it provides: 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. Dept of Educ. 4 (April 4, 2011) (emphasis added). The DCL transformed an institution s previous obligation to ensure that it does not support, condone, tolerate, or authorize harassment or assault on-campus through policy and procedure, into a quasi-policing obligation to process any and all reported 15

24 incidents, regardless of where they occur. And this new requirement was added without allowing schools to comment or provide their input through notice-and-comment rulemaking. The underlying regulation itself did not, to any degree, contemplate a school s obligations to investigate off-campus assaults. As opposed to clarifying a vague or ambiguous regulation for school administrators, the DCL created a brand new regulatory framework and new, affirmative mandates for educational institutions. Thus, the DCL should not be afforded any deference as it had the same effect vis-à-vis the regulation that the Opinion letter had vis-à-vis the regulation in Christensen it served as an amended and created a new rule under the guise of interpretation. Christensen, 529 U.S. at 588. The DCL is also inconsistent with the prior regulations. Additionally, deference is inappropriate where an agency s interpretation is inconsistent with the underlying regulation. Auer, 519 U.S. at 461. The 2011 DCL and 2014 Q&A are inconsistent with the 2001 regulation for the same reasons they are plainly erroneous. There is not a single indication, explicitly or implicitly, that the regulation contemplated the types of obligations the guidance documents impose on educational institutions. The fact that other courts have afforded the OCR deference in its interpretation of other issues is irrelevant to the issue of whether the particular regulation mandates schools to expand their Title IX obligations. The cases which the Thirteenth Circuit cites to support not finding inconsistency are distinguishable. R. at 22. For example, in G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 715 (4th Cir. 2016), the Fourth Circuit analyzed whether an opinion letter from the OCR, interpreting how a regulation should apply to transgender individuals, should be given weight. The letter, dated January 7, 2015, stated in relevant part: when a school elects to separate or treat students differently on the basis of sex... a school generally must treat transgender students 16

25 consistent with their gender identity. Id. The underlying regulation in that instance permitted the provision of separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex. Id. at 718. The court found that the term sex within the regulation was ambiguous and in so finding, looked to the dictionary definition of the word at the time the regulation was passed. Id at 721. Because the dictionary contemplated more than a dichotomous division of sex based on biological features, the agency s interpretation of the word sex in the regulation was not inconsistent or clearly erroneous with the regulation. Id. at Additionally, the court determined that this was a novel question, not one that was inconsistent with previous agency interpretations. Id. Unlike Grimm, the Thirteenth Circuit and Doe both rely on guidance documents that should be afforded no deference because they neither interpret nor clarify this issue in existing regulations, but instead expand a school s obligations under Title IX. In Grimm, the subsequent guidance document comported with a logical reading of the underlying regulation and it was reasonable to interpret it within the realm of what the regulation contemplated. In that case, the guidance document offered true guidance on an ambiguous issue which stemmed from the regulation. Here, the scope of Title IX protections in the regulations cannot be read in harmony with the overreach of the DCL and the Q&A. Because this expansion was carried out through an informal process, outside of the APA s strict guidelines, the interpretations are clearly erroneous and inconsistent with the regulation on this issue. Accordingly, they should be afforded no deference under Auer. 17

26 C. To Protect Constitutional Principles, Courts Should Apply Auer Deference More Strictly when an Agency Interprets Its Own Regulation. Under Auer deference, it is the court that ultimately decides whether a given regulation means what the agency says. Perez v. Mortgage Bankers Assoc., 135 S.Ct. 1199, 1208 n.4 (2015). And, as the Framers of the Constitution intended, the ultimate power to interpret the laws must remain with the judicial branch. To ensure that it does, this Court should analyze agency interpretations under a strict reading of Auer. The application of Auer, as it is applied today, is more similar to that of the Chevron deference test where courts will defer to an agency s interpretation even though the reading of the underlying regulation is not the best or fairest, but instead, it is a plausible reading within the scope of the ambiguity that the regulation contains. Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, (2013) (Scalia, J., concurring in part, dissenting in part). Shockingly, as of 2008, the rate at which this Court has permitted an agency s interpretations of its own regulations when applying Auer was about 90.9%. William N. Eskridge & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretation From Chevron to Hamdan, 97 Geo. L.J. 1083, 1100 (2008). If the doctrine is to have more bite to ensure that agencies do not go too far through informal means, courts must analyze agency interpretations critically to determine whether they comport with the Auer framework, rather than simply to determine if they are plausible. Multiple Justices have called Auer into question. Particularly, Justice Thomas penned a substantial and thorough critique of the doctrine, invoking concerns for Separation of Powers and judicial checks and balances. Perez, 135 S. Ct. at (Thomas, J., concurring). The late Justice Scalia, also stated, [b]y supplementing the APA with judge-made doctrines of deference, we have revolutionized the import of interpretive rules' exemption from notice-and-comment 18

27 rulemaking. Agencies may now use these rules not just to advise the public, but also to bind them. Id. at (Scalia, J., concurring). Additionally, Justice Alito noted that the Auer doctrine may be incorrect and awaits a case in which the validity may be explored through full briefing. Id. at (Alito, J., concurring). To ensure that the concerns of these Justices are adequately addressed, this Court need not overturn precedent and establish a new test. Instead, courts may quell the legitimate concerns by simply applying Auer under more rigorous standards. Under a strict application of Auer, the underlying law would not change. An agency s interpretation may still be afforded deference when the regulation is ambiguous, unless it is plainly erroneous or inconsistent with the regulation. Auer, 519 U.S. at 461. However, the difference between a permissive and a strict application of Auer, is the depth into which courts analyze these issues before rendering such a determination. If there is any indication that an interpretative rule creates a new, binding rule, which is not a natural outgrowth from the regulation, the court should afford it no deference. When an interpretative guidance document goes beyond the scope of clarifying a previous regulation, courts should strike it down as an attempt to create a de facto new rule under the guise of interpretation just as this Court did in Christensen. Christensen, 529 U.S. at 588. This Court need look no further than the record to find an exemplary case where the reviewing court did not apply a strict Auer deference test and came to an improper conclusion. Specifically, the Thirteenth Circuit fell short of a proper analysis under Auer as it only analyzed the guidance documents under three general criteria: (1) agency expertise; (2) reasonability; and (3) consistency with existing laws. R. at 22. It failed to engage in a detailed, specific analysis into whether the regulation was ambiguous, whether the interpretation technically created a new rule, or whether the interpretation was consistent with the regulation. 19

28 Additionally, applying a more stringent Auer test will not stop agencies from issuing actual guidance documents, as the APA clearly authorizes agencies to issues such interpretive rules without going through formal notice-and-comment rulemaking. 553(b)(3)(A). Agencies will still be able to issue detailed guidance as long as it does not go beyond the pale of the regulation it is interpreting. See Am. Mining Congress, 995 F.2d at 1112 (finding an interpretive guidance does not become an amendment to a law merely because it supplies crisper and more detailed lines than the authority being interpreted. ). Accordingly, a stricter application of Auer would not prevent an agency from issuing guidance which clarify an ambiguous issue. It would only prevent agencies from creating new rules through informal means. Allowing an agency to issue, interpret, and enforce the same rule creates a Separation of Powers conflict. Granting agencies wide-latitude in interpreting their own regulations effectively incentivizes an agency to promulgate ambiguous regulations, so that is may ease through formal notice-and-comment with little resistance, and then amended and expanded later. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1341 (2013) ( But when an agency interprets its own rules that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a flexibility that will enable clarification with retroactive effect. ). A strict application of Auer will return the ultimate power to interpret a statute or regulation to the court, and provide the necessary check to ensure that regulatory agencies do not become omnipotent government entities. 20

29 III. CHILTON STATE DID NOT VIOLATE TITLE IX BECAUSE IT DID NOT HAVE SUBSTANTIAL CONTROL OVER ANY KNOWN ACTIONABLE HARASSMENT AND IT REASONABLY RESPONDED TO DOE S REPORT WHEN, INSTEAD OF INVESTIGATING HER ALLEGATION, IT PROMPTLY PROVIDED SUPPORT TO REMEDY THE SITUATION AND PREVENT FUTURE HARASSMENT. Title IX of the Education Amendments of 1972 prevents federal funds from being used for discriminatory purposes by prohibiting funding recipients from engaging in conduct which would deprive benefits based on sex. In pertinent part, it provides: 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. 1681(a). And because the statute prohibits a funding recipient itself from sexual discrimination, the recipient of federal funds may be liable in private lawsuits only for its own misconduct which excludes persons from participation in, denies persons the benefits of, or subjects persons to discrimination under its programs or activities. Davis, 526 U.S. at Where there are insufficient facts to conclude that a school s misconduct resulted in sexual discrimination, a court may grant summary judgment as a matter of law. Id. at 649. While the statute provides a blanket prohibition against sexual discrimination and does not expressly authorize a private right of action, this Court has recognized an implied private right of action. Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979). Both injunctive relief and money damages are available in such suits. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009). However, the primary purposes of Title IX is not to compensate victims but to avoid the use of federal resources to support discriminatory practices and to provide citizens effective protection against discriminatory practices carried out by the recipients. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, (1998). 21

30 Effectively, Title IX operates as a contract where the federal government premises funding on the recipient s agreement not to discriminate on the basis of sex. Id. While Title IX explicitly prohibits only the funding recipient from sexual discrimination, this Court has expanded a school s liability to encompass sexual harassment conduct by a teacher against a student, Id., and by a student against another student. Davis, 536 U.S. at However, under each extension, liability only attaches where the recipient intentionally acted in clear violation of Title IX by remaining deliberately indifferent to the acts of harassment of which it had actual knowledge because such indifference amounts to an intentional violation which effectively causes the discrimination. Davis, 526 U.S. at (citing Gebser, 524 U.S. at 290). Accordingly, a school is liable for student-on-student sexual harassment only where the school is deliberately indifferent to known acts of sexual harassment that are so severe, pervasive, and objectively offensive as to deprive the victims of equal access to the educational benefits and opportunities provided by the school, and which occur in a context in which the school exercises substantial control. Davis, 526 U.S. at 650. There is no dispute that Chilton State is a recipient of federal education funding for Title IX purposes. Nor is it disputed that a school official with authority to remedy the situation ultimately received knowledge of the harassment. However, Doe has failed to put forth sufficient evidence which would allow a reasonable jury to conclude either (1) that the harassment was actionable against Chilton State or (2) that Chilton State was deliberately indifferent and that it either directly caused abuse to occur or made her vulnerable to such abuse. A. Doe Failed to Identify Any Actionable Discrimination That Occurred Within Chilton State s Substantial Control. Chilton State cannot be found liable under Title IX for the sexual harassment which occurred because the school lacked control over the off-campus contexts and because no other 22