Senator Lankford Calls Out Department of Education for Use of Guidance Documents Over Regulatory Process

OKLAHOMA CITY, OK – Senator James Lankford (R-OK) today sent a letter to the Acting Secretary of the Department of Education, John King, to question their use of guidance documents that attempt to inappropriately establish regulatory-type policy changes for colleges and universities without going through the rule-making process. 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 confirmed that several federal agencies in the Obama administration are issuing complex guidance documents that create new mandates and obligations without the normal transparent rule-making process, which is clearly inconsistent with the law.

Specifically, the Administrative Procedure Act (APA) allows agencies to produce guidance documents to clarify issues in an existing regulation or law, without publication in the Federal Register and without public notice and comment. While the majority of guidance is used appropriately to provide regulated entities with timely information, guidance also leaves open the possibility that agencies improperly issue guidance documents instead of regulations, in order to take advantage of the APA’s exceptions and relaxed procedures. In today’s letter, Lankford specifically points out two Department of Education ‘Dear Colleague’ documents as an example of an overreaching use of guidance documents.

Lankford asks the Department of Education to respond and specifically justify their use of ‘Dear Colleague’ guidance documents by February 4, 2016.

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

The Honorable John B. King Jr.

Acting Secretary

U.S. Department of Education

400 Maryland Avenue, SW

Washington, D.C. 20202

Dear Mr. King: 

I write today to express my continued alarm regarding the Department of Education’s Office for Civil Rights (OCR) Dear Colleague letters on harassment and bullying (issued October 23, 2010) and sexual violence (issued April 4, 2011).  As guidance, both letters purport to merely interpret statements of existing law; however, while both broadly cite to Title IX of the Education Amendments of 1972 (Title IX), the letters fail to point to precise governing statutory or regulatory language that support their sweeping policy changes. 

Based on a robust record of congressional testimony I have heard as Chairman of the Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management (RAFM), I condemn all types of sex-based discrimination, including sexual violence and harassment, in the strongest possible terms, but believe that the Dear Colleague letters advance substantive and binding regulatory policies that are effectively regulations.  As such, the letters should have been promulgated subject to notice-and-comment procedures—procedures that ensure that agencies hear from affected parties to create the best possible regulatory outcomes for all stakeholders.  Accordingly, I ask that you provide a thorough justification as to the interpretive nature of the letters by providing the precise statutory and/or regulatory authority under Title IX for each policy that the letters purport to interpret.  For those policies that cannot be reasonably said to merely construe statutory or regulatory language, and are therefore not mere interpretations of existing law, please clarify, in no uncertain terms, that failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding, or rescission of federal funding.

CLICK HERE to read the remainder of the letter. 

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