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

Statement

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.

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