Does sub-regulatory guidance protect student civil rights?

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In this week’s Saturday seminar we are collecting scholarship on the effectiveness of the Department of Education’s policy guidance.

Agencies’ consistent use of informal guidelines to set regulatory policy has attracted much attention. The Office of Civil Rights (OCR) of the US Department of Education is no stranger to this test, having used guides more often than traditional rulebooks to enforce some civil rights regulations.

OCR is responsible for enforcing state civil rights laws that prohibit discrimination based on race, color, national origin, sex, disability and age in schools. In addition to conducting grievance investigations and compliance reviews, OCR also issues Dear Colleague Letters, which are informal policy documents that inform schools of their obligations under these laws and promote compliance with civil rights laws.

Some scholars argue that OCR’s use of policy documents could allow the agency to “evade the more stringent limitations imposed on rulemaking,” particularly since the Administrative Procedures Act exempts policy guidelines from scrutiny. According to these scholars, OCR’s reliance on the issuance of interpretative, rather than legislative, rules through its letters to dear colleagues allows political appointments to evade scrutiny by the courts, Congress, and the public, and leaves new policies to be overturned by subsequent presidential administrations.

OCR itself acknowledges that its policy documents “lack the force and effect of law,” and the state of many such documents has remained in flux with shifting political tides.

Specifically, the Trump administration rescinded policies introduced by Obama administration OCR officials on the rights of transgender students, administration of the Title IX grievance process, and reducing miscellaneous impacts on school discipline. Though some proponents have hailed the rollback of Obama-era guides, others have more recently focused on how the Biden administration should go about reinstating them.

In this week’s Saturday seminar, we are raising grants that discuss the implications of OCR’s reliance on informal policy guidance to promote student civil rights.

  • In an article published in Archives for analyzing education policy, Pennsylvania State University‘s Maria M. Lewis and Sarah Kern explain that less than 5 percent of the policy guides published by OCR during the Obama administration cited peer-reviewed education policy research. Lewis and Kern point out that one concern with using more research in OCR guidelines is that such guidelines could be rescinded due to insufficient reliance on legal analysis. Nonetheless, they suggest that policymakers at OCR could better protect the rights of historically marginalized student groups by including more high-quality social science research in their policy guides.
  • In an article in Publius: The Journal of Federalism, Brown University’s Kenneth K. Wong alleges that the Trump administration has narrowed OCR’s enforcement priorities by reducing the number of civil rights investigations conducted and overturning Obama-era policy guidance. According to Wong, civil rights activists feared that withdrawing the Obama administration’s guidance would nullify progress in promoting equity in education. Among the implications of this revocation, Wong argues, was President Trump’s ability to rely on administrative tools to reduce federal oversight of civil rights mandates in schools and show more respect to states.
  • In an article in educational researcher, Maria M. Lewis of Pennsylvania State University, Liliana M. Garces of the University of Texas at Austin, and Erica Frankenberg of Pennsylvania State University provide an overview of OCR’s policy efforts during the Obama administration. Lewis, Garces, and Frankenberg argue that OCR’s efforts, such as publishing interpretative guidance on US Supreme Court cases, provided necessary practical guidance for protecting student civil rights. They also advocate more research on educational disparities to inform OCR efforts.
  • Sub-regulatory guidance provides institutions with a means to understand how OCR interprets laws and enforces regulations, which can help avoid ambiguity costs, argues Samuel R. Bagenstos of the University of Michigan Law School in an article in the Michigan Law Review. Bagenstos argues that the costs of OCR investigations, including public relations costs, would exist even without sub-regulatory guidance, but that institutions would have less clarity on how to avoid regulatory action. Bagenstos then notes that sub-regulatory guidance is not a strong tool as it can easily be reversed by a new government.
  • In an article published in Hastings LawJournal, Ming Hsu Chen of the University of Colorado Law School discusses the limits of leadership to bind agency interpretations, particularly in areas of great societal division. Chen recounts the Obama administration’s efforts to use guidelines to require schools to allow transgender students access to gender-consistent bathrooms. Contentious litigation ensued, with opponents challenging the amendment on both substantive and procedural grounds. The Trump administration eventually repealed the guidelines. In this case, Chen claims that “pushing for tighter regulatory procedures acted as a shield against the expansion of rights.”
  • OCR’s use of “Dear Colleague” letters is supported by principles of good governance, argues Stephen S. Worthington in an article published in Brigham Young University Education and Law Journal. Worthington claims that OCR guidelines serve as a beacon to clarify existing legal requirements – not change them. In addition, the flexibility of guides allows for greater democratic responsiveness as new administrations are able to implement policy priorities. Worthington warns that without the relative simplicity of guides, OCR would likely rely on even more informal policy tools such as case-by-case enforcement and internal employee communications.

The Saturday Seminar is a weekly feature that aims to put into writing the type of content that would be conveyed in a live seminar with regulatory experts. Every week, The regulatory review publishes a brief overview of a selected regulatory topic and then distils current research and academic papers on that topic.

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