Administrative Procedure Act (United States)
The
Administrative Procedure Act (
APA), Pub.L. 79–404, 60 Stat. 237, enacted June 11, 1946, is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations and grants U.S. federal courts oversight over all agency actions. It is one of the most important pieces of United States administrative law, and serves as a sort of "constitution" for U.S. administrative law.
The APA applies to both the federal executive departments and the independent agencies. U.S. Senator Pat McCarran called the APA "a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated" by federal government agencies. The text of the APA can be found under Title 5 of the United States Code, beginning at Section 500.
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Standard of judicial review
The APA requires that to set aside agency actions that are not subject to formal trial-like procedures, the court must conclude that the regulation is "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law." However, Congress may further limit the scope of judicial review of agency actions by including such language in the organic statute. To set aside formal rulemaking or formal adjudication whose procedures are trial-like, a different standard of review allows courts to question agency actions more strongly. For such more formal actions, agency decisions must be supported by "substantial evidence" after the court reads the "whole record," which can be thousands of pages long.
Unlike arbitrary and capricious review, substantial evidence review gives the courts leeway to consider whether an agency's factual and policy determinations were warranted in light of all the information before the agency at the time of decision. Accordingly, arbitrary and capricious review is understood to be more deferential to agencies than substantial evidence review is. Arbitrary and capricious review allows agency decisions to stand as long as an agency can give a reasonable explanation for its decision based on the information that it had at the time. In contrast, the courts tend to look much harder at decisions resulting from trial-like procedures because they resemble actual trial-court procedures, but Article III of the Constitution reserves the judicial powers for actual courts. Accordingly, courts are strict under the substantial evidence standard when agencies acts like courts because being strict gives courts the final say, preventing agencies from using too much judicial power in violation of separation of powers.
The separation of powers doctrine is less of an issue with rulemaking that is not subject to trial-like procedures. Such rulemaking gives agencies more leeway in court because it is similar to the legislative process reserved for Congress. The courts' main role is then to ensure that agency rules conform to the Constitution and the agency's statutory powers. Even if a court finds a rule unwise, it will stand as long as it is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."
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The issuance of the regulations made LBN:
DeVos issues rules for sexual misconduct investigations in schools, bolstering protections for ...
I couldn't find the new final rule in the
Federal Register. It seems that the final rule has been sent to the
Federal Register for publication, but it has not yet been published. Here's the text of the unofficial document. It remains unofficial until it has been published. Please don't go calling up the contact person at Education to give him a piece of your mind. He's just a civil servant who sends documents to the
Federal Register.
https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf
Note: The official version of this document is the document published in the Federal
Register. This document has been sent to the Office of the Federal Register but has not yet
been scheduled for publication.
4000-01-U
DEPARTMENT OF EDUCATION
34 CFR Part 106
[Docket ID ED-2018-OCR-0064]
RIN 1870-AA14
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Final rule.
SUMMARY: The Secretary of Education amends the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The final regulations specify how recipients of Federal financial assistance covered by Title IX, including elementary and secondary schools as well as postsecondary institutions, (hereinafter collectively referred to as “recipients” or “schools”), must respond to allegations of sexual harassment consistent with Title IX’s prohibition against sex discrimination. These regulations are intended to effectuate Title IX’s prohibition against sex discrimination by requiring recipients to address sexual harassment as a form of sex discrimination in education programs or activities. The final regulations obligate recipients to respond promptly and supportively to persons alleged to be victimized by sexual harassment, resolve allegations of sexual harassment promptly and accurately under a predictable, fair grievance process that provides due process protections to alleged victims and alleged perpetrators of sexual harassment, and effectively implement remedies for victims. The final regulations also clarify and modify Title IX regulatory requirements regarding remedies the Department may impose on recipients for Title IX violations, the intersection between Title IX, Constitutional protections, and other laws, the designation by each recipient of a Title IX Coordinator to address sex discrimination including sexual harassment, the dissemination of a recipient’s non-discrimination policy and contact information for a Title IX Coordinator, the adoption by recipients of grievance procedures and a grievance process, how a recipient may claim a religious exemption, and prohibition of retaliation for exercise of rights under Title IX.
DATES: These regulations are effective August 14, 2020.
FOR FURTHER INFORMATION CONTACT:
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