Tuesday, October 1, 2019
We are, once again, in the middle of a battle over the legitimacy of the administrative state. An increasingly vocal band of scholars criticizes administrative agencies as unaccountable, elitist, captured, and implementing bad policy. The more populist elements of the Trump Administration’s rhetoric have taken this critique to a broader audience, to great political effect. Though the picture is complex, the Roberts Court has appeared sympathetic to important aspects of the critique. Agencies enforcing civil rights laws — and particularly the Department of Education’s Office for Civil Rights (OCR) — have been a principal target of the critics of the administrative state.
With The Transformation of Title IX, R. Shep Melnick steps into this fight — and he takes the side of those who find OCR’s actions illegitimate. Melnick focuses particularly on three especially controversial contexts in which the courts and OCR have applied the statute: intercollegiate athletics, campus sexual harassment and assault, and the treatment of transgender students in elementary and secondary schools. He argues that OCR and the courts have, through a process of “institutional leapfrogging,” steadily adopted more and more intrusive rules governing educational entities. He contends that these rules are highly contestable and neither specifically required by the statutory text nor envisioned by the statute’s drafters. But, he argues, the leapfrogging process — in which the agency pushes forward, then the courts go a bit farther than the agency, then the agency goes even a bit farther, and so on — has enabled these massive innovations in the law to fly under the radar and evade democratic checks or debate.
This piece reviews The Transformation of Title IX. The book offers an important take on some issues of high public salience. It reflects a detailed immersion in the operations of OCR, as well as a strong understanding of the legal-doctrinal issues. But the book’s thesis is fundamentally misguided. OCR has not subverted or evaded democracy. Rather, the agency has served as a catalyst for democratic debate, a forum in which that debate has played out, and an implementer of the will of the people. The Title IX experience rather supports the claim made by some scholars that administrative agencies can be a key locus of democratic deliberation over the scope of basic rights.