Sen. James Lankford

WASHINGTON, DC – Senator James Lankford (R-OK) Tuesday challenged the Department of Education’s legal justification for its May 13 guidance directive to local school districts regarding the use of public school bathrooms. Lankford contends the directive is part of a long pattern of attempts to create new mandates and requirements without the normal, transparent rule-making or legislative process.

The Administrative Procedure Act (APA) allows agencies to produce guidance documents to clarify issues in an existing regulation or law. While the majority of guidance directives are used appropriately to provide regulated entities with timely information and necessary clarification, agencies, like the Department of Education, have improperly issued letters and other types of instructions to compel entities to comply with their suggestions and recommendations, rather than pursuing any changes through the regulatory or legislative process.

Through a letter to the Department, Lankford asked them to explain their legal justification for expanding “sex” under Title IX to include “gender identity.” Among other questions, Lankford also asked if schools are prohibited from taking into account the privacy rights of all students in service of adherence to the discrimination policies set forth by the Department’s Office of Civil Rights. Lankford requested a response from the Department by May 31, 2016.

This year, Lankford has repeatedly challenged the Department of Education’s inappropriate use of ‘Dear Colleague’ letters and ‘guidance documents’ to mandate policy for schools without adhering to the legislative process or transparent regulatory process. Academics and legal experts have agreed with Lankford’s criticism of the Department of Education.

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

May 17, 2016

The Honorable John B. King, Jr.
Secretary
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202

Dear Secretary King,

I write today to express my alarm regarding the Dear Colleague letter issued May 13, 2016 by the Department of Education’s Office for Civil Rights (OCR) and the Department of Justice pertaining to transgender students.   As guidance, the Dear Colleague letter purports to merely interpret existing discrimination law under Title IX of the Education Amendments of 1972 (Title IX); in reality however, the guidance represents an abrupt departure from longstanding sex discrimination policy.  In keeping with OCR’s troubling tradition of flouting federal law to advance substantive policy serving the administration’s political agenda, OCR’s latest guidance conflates an individual’s gender identity with the widely accepted and longstanding understanding of sex without support in Title IX. 

As Chairman of the Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management (RAFM), I have consistently proclaimed my gratitude for the hard work that takes place every day in schools in communities throughout the country to ensure safety and equality for all students.  There is no place for bullying or discrimination in our schools and all children should feel safe while they receive an education.  However, in keeping with my oversight of guidance documents in which OCR has prescribed policy preferences not otherwise found in law,  I believe that the Dear Colleague letter on transgender students advances substantive and binding regulatory policies that may only be imposed on schools through an act of Congress followed by the promulgation of rules compliant with notice-and-comment procedures.  Such statutory direction or adherence to rulemaking processes would have shaped a smarter policy better fortified against impending legal challenge.

Before promulgating substantive regulatory policy, the Administrative Procedure Act (APA) requires agencies to provide notice of a proposed rule and solicit public comment on the proposal.   The APA exempts from its notice-and-comment rulemaking “interpretative rules or general policy statements,” also referred to as guidance.   Agencies may issue guidance only to “advise the public of the agency’s construction of the statutes and rules it administers,”  so long as its construction does not impose additional legal requirements and obligations beyond those found in the statutory or regulatory language itself.  If a policy statement does more than bind regulated parties to an agency’s interpretation of a governing statute or rule, it would be properly characterized as a substantive rule, subject to APA rulemaking procedures.