Senator Lankford Opposes Confirmation of Secretary of Education

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WASHINGTON, DC – Senator James Lankford (R-OK) today delivered a speech on the Senate floor regarding his concerns with the confirmation of John B. King, Jr. as Department of Education Secretary.

On January 7, 2016, Lankford sent a letter to King to question the authority under which the Office of Civil Rights issued two particular Dear Colleague guidance documents, prescribing policies relating to harassment, bullying and sexual violence. The Department of Education responded on February 17, but failed to address Lankford’s legal concerns. Lankford has continued to press the Department by responding with another letter on March 4 and during a Q&A in a Senate Appropriations Subcommittee hearing. 

Excerpts:

On the issues with Secretary King’s Confirmation:

I share with Dr. King and the view of many legal experts and school officials across the country, the Department of Education has been bullying schools to comply with policies that simply do not have the force of law. This use of power, however well intentioned, is wrong and it’s unlawful. Leadership requires making sure the department conducts themselves in full compliance with the law. I have an obligation to the people of Oklahoma to ensure that the President’s nominees adhere to the law. Regrettably, Dr. King has refused to commit to stopping these regulatory abuses if he were confirmed. For that reason, I will oppose his nomination today. 

For far too long, we have witnessed executive overreach in this administration. From the Clean Power Plan to the Waters of the United States, federal departments and agencies have usurped the power to invent law with increasing boldness. The Department of Education overreach is similar in this kind. Instead of promulgating rules that conflict with Congressional intent, the Department of Education has skirted the rule-making process altogether by issuing guidance documents they call ‘Dear Colleague’ letters. 

On the issues of federal agencies using guidance documents:

Guidance documents cannot and do not have the force of law. Guidance documents only interpret existing obligations found in statute or regulation. Some agencies complain that the rule-making process is too long and requires too much public input so it’s easier just to say the new rules simply interprets an existing rule and then skip the compliance with the Administrative Procedures Act that’s required for a new rule. It’s a complete irony that agencies see regulatory compliance as too burdensome so they impose new regulatory guidance on states, local governments, tribes and private institutions at a faster pace, and those institutions have no way to fight the rules, only comply. 

On the examples of executive overreach:

Let me give you an example, from the Department of Education’s Office of Civil Rights. They have a great responsibility to promote our shared American values of equal opportunity, ensuring gender equality and work with federally funded schools to prohibit sexual harassment and sexual violence. As a father of two daughters, I fully support the objectives with Title IX and condemn all forms of sexual discrimination. The Office of Civil Rights’ enforcement authorities that come from Title IX of the Education Department’s 1972 bill, those Office of Civil Rights’ Dear Colleague letters that are now being put out there supposedly notify schools of their obligations under Title IX, but two of the Office of Civil Rights Dear Colleagues letters significantly expands schools liability by prescribing policies required neither by Title IX nor by OCR’s regulations.

On the abuse of power stopping universities from challenging the letters:

While individual companies or entire industries can and often do fight back against regulatory overreach by the Department of Labor or EPA, the Department of Education positions itself to hold federal funding ransom if universities don’t comply with its policies even when those policies are unlawful abuses of regulatory power. This is unacceptable. Just because we share an objective of equality and school safety doesn’t mean we can turn a blind eye to a federal department running roughshod over the very regulatory process we require. Here the ends certainly do not justify the means. Schools and the very students we want to protect suffer as a result.

On the path forward to ensure departments do not overstep their authority:

As part of my continued discussions with the Office of Civil Rights, the Department has assured me they will take steps to clarify the interpretive role of guidance, increase its transparency and enhance opportunity for public input. I’m encouraged that the Office of Civil Rights has committed these improvements and I look forward to a continued discussion on how better guidance practices, both within the Office of Civil Rights and across the entire government, can actually occur. Unfortunately, these proposals don’t answer the questions that I’ve asked Dr. King…

Dr. King does not acknowledge that this overreach is even occurring within the agency he’s nominated to lead, I have no choice but to oppose his nomination today. Time will tell whether this Department of Education is about to take a new direction with new leadership or continue the same path of coercive overreach they’ve already been on. This needs to stop. The American people require a voice into the rule-making process and I hope this can press on today.

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