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Senator Lankford Presses Acting Education Secretary on Department’s Executive Overreach

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WASHINGTON, DC – Senator James Lankford (R-OK) today pressed Department of Education Acting Secretary John King during a hearing before a Senate Appropriations Subcommittee. Lankford challenged Dr. King on the Department’s overreaching use of ‘guidance documents’ to mandate policy for colleges and universities without adhering to the transparent regulatory process as required by law. 

Lankford pressed Dr. King to justify the Department’s improper use of guidance documents that circumvented notice-and-comment rulemaking procedures. Dr. King admitted that guidance documents are not binding, but insisted that the Department’s interpretation of Title IX’s regulatory language is the only allowable interpretation. 

Lankford has challenged the Department of Education on this since May 2015. On January 7, Lankford sent a letter to King, questioning the authority under which the Office for 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. Therefore, Lankford continued his oversight by responding to the Department with a March 4 letter

As chairman of the Senate Subcommittee on Regulatory Affairs and Federal Management, Lankford has led hearings that confirm that many federal agencies, including the Department of Education, use regulatory guidance inappropriately, instead of using the notice-and-comment regulatory process as required by law.

Excerpts from Hearing Q&A:

Senator Lankford: …I have serious issues with the Department of Education and how they’ve promulgated some of the “guidance” documents which you call “dear colleague” letters. They appear to be policy documents and they appear to be regulations more than they are just clarifications in the process.

So here’s my question, do these letters form a legal precedent? Do other people have to be able to follow a letter of finding from a different university? Is that a legal precedent?

Secretary King: No. As we’ve talked about, we don’t view those findings as setting precedent.

Lankford: So, let me ask you this. So another school shouldn’t have to rely on compliance to a different school’s letter of finding?

King: That’s right. The institutions are accountable to the law and regulations. The guidance is intended to provide clarity and examples of best practices.

Lankford: So, if schools were to ignore the letters of findings and the guidance documents, which are all non-binding, rely on their own good faith of interpretation of Title IX language which is equitable resolution; if they were to rely on their own good judgment on that, their own legal counsel on that, then are they okay on that? If they rely, instead of preponderance of the evidence, they rely on clear and convincing evidence – are they okay? Are they within their bounds to do that?

King: …our interpretation of equitable resolution is that requires the preponderance of evidence standard. Our goal with the guidance is to convey our interpretation of the law. But an institution has the opportunity to go to a hearing, or beyond that to go to court, to challenge a potential finding from the Department.

Lankford: So what I’m trying to determine here is – if there is a letter of finding which you say is the precedent for it that they can’t use clear and convincing evidence, they now have to use preponderance of evidence, and they have to shift to that. Why that isn’t a regulatory decision that’s made?

King: We believe, based on the Department’s longstanding, as we discussed, this is a longstanding interpretation of equitable resolution that predates this administration. Longstanding interpretation of equitable resolution would mean preponderance of the evidence that is the civil standard as well.

Lankford: It didn’t at Yale; it didn’t at Harvard; it didn’t at Princeton; it didn’t at UVA; it didn’t at Ohio State, and I could keep going through a lot of universities that all use clear and convincing evidence that now had to shift to a new form of that because of a guidance document ‘dear colleague’ letter that came out to them that they felt compelled to shift from one to the other..  

The issue is this came out from a ‘dear colleague’ letter, not from regulation. There wasn’t an open conversation on this. It didn’t go through the process.