Senator Lankford Continues Regulatory Oversight of Department of Education

WASHINGTON, DC – Senator James Lankford (R-OK) today continued his regulatory oversight of the Department of Education’s overreaching use of ‘guidance documents’ to college and universities.

On January 7, Lankford sent a letter to the Acting Secretary of the Department of Education, John King, to question their Office for Civil Rights’ improper use of guidance documents that establishes policies without the required notice-and-comment rule-making processes. The Department of Education responded on February 17, but did not satisfy Lankford’s legal concerns. Therefore, Lankford continued his oversight by responding to the Department with today’s letter.

As Chairman of the Senate Subcommittee on Regulatory Affairs and Federal Management, Lankford led a hearing in September on whether federal agencies, including the Department of Education, use regulatory guidance appropriately. Testimony from the hearing raised concerns that federal agencies abuse the guidance process by issuing guidance instead of notice-and-comment rulemaking, as required by law.

A PDF of the letter is available here, and the partial text is below:

March 4, 2016

The Honorable John B. King, Jr.

Acting Secretary, U.S. Department of Education

400 Maryland Avenue, SW, Washington, DC 20202

Dear Mr. King,

On January 7, 2016, I wrote to you with concerns about two Dear Colleague letters issued by the Department of Education’s Office for Civil Rights (OCR): 2010’s letter on harassment and bullying,1 and 2011’s letter on sexual violence.2 As Chairman of the Subcommittee on Regulatory Affairs and Federal Management, I oversee agencies’ adherence to procedures governing the federal regulatory process to ensure that the public is heard and the process produces the best possible policy outcomes. This line of oversight is part of an effort to address what is a government-wide problem—using guidance in lieu of rulemaking. Accordingly, I was troubled that the 2010 and 2011 letters issued by the Department of Education appeared to advance substantive policies in circumvention of the Administrative Procedure Act’s rulemaking requirements.3 In my letter, I asked that you clarify the specific regulatory authority underpinning the policies outlined in each of the Dear Colleague letters, and for those policies that were not plain interpretations of existing law I asked that you clarify that they would not be the basis for inquiry, investigation, adverse finding, rescission of federal funding, or any other enforcement action.

Today I write in response to your February 17, 2016 reply, which failed to assuage my concerns that OCR has issued guidance documents, including the 2010 and 2011 letters, which purport to merely interpret Title IX of the Education Amendments of 1972 (Title IX) but in fact advance policies not found within the pages of its statutory and regulatory texts. We agree that students must be able to enjoy a safe educational environment regardless of sex, and that sexual harassment and violence as a form of sex discrimination must not be tolerated. To that end, I appreciate your desire to inform regulated parties of the proper application of Title IX to accomplish our shared goals of school safety and gender equality in schools across the country. However, instead of merely interpreting statements of existing law, the 2010 and 2011 Dear Colleague letters create uncertainty surrounding policies proscribing conduct and advancing requirements required neither by Title IX nor its implementing regulations. I focused on two particular policies as emblematic of the expansion of Title IX liability for schools in the 2010 and 2011 letters. Specifically, I am left unpersuaded that the 2010 letter, which likely imperils speech protected by the First Amendment, is required by Title IX or its implementing regulations; and that Title IX requires a preponderance of the evidence standard in school disciplinary proceedings, as outlined in the 2011 letter.

……

The letter continues:

I am acutely dismayed that, on the one hand, you are unable to cite to governing statutory or regulatory authority requiring the policies outlined in the 2010 and 2011 Dear Colleague letters—indeed, your letter includes only two excerpts of statutory text—while, on the other hand, you maintain that the only function of OCR’s guidance is to “advise the public of its construction of the statutes and regulations it administers and enforces.”13 What text are you construing to so advise the public? Prior guidance documents and letters of findings are not adequate legal authority on which to justify policies such as those outlined in the 2010 and 2011 letters.

Congressional oversight of agency action is a cornerstone to the checks and balances ensured by our Constitution. I will continue to push back against agencies’ improper use of guidance documents that, while purporting to merely interpret existing law, fundamentally alters the regulatory landscape. Congress enacted the Administrative Procedure Act to safeguard against precisely these threats of administrative fiat, and agencies that spurn such procedures do so contrary to congressional design and at the expense of the American people. Accordingly, I again call on you personally to clarify that these policies are not required by Title IX, but reflect only one of various ways schools may choose to develop and implement policies for the prevention and remedy of sexual harassment and sexual violence that best meet the needs of their students and are compliant with federal law. I further ask that you immediately rein in the regulatory abuses within the Department of Education and take measures to ensure that all existing and future guidance documents issued by your agency are clearly and firmly rooted in statutory authority.

James Lankford, Chairman

Subcommittee on Regulatory Affairs and Federal Management, U.S. Senate Committee on Homeland Security and Governmental Affairs

CLICK HERE to read the full letter. 

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