The Department of Education is issuing guidance that does not have the force of law, but it is enforcing that guidance as if it were binding on educational institutions.

Earlier this week, I wrote about an exchange during a hearing of the Senate Homeland Security and Governmental Affairs Committee’s Subcommittee on Regulatory Affairs and Federal Management, where Senator Lamar Alexander questioned Department of Education (ED) deputy assistant secretary Amy McIntosh about the department’s overreach. McIntosh told the Alexander, “I tried to be very clear in my opening statement that guidance that the Department issues does not have the force of law.”

Yesterday, just a week after this exchange, a second ED official said the same thing.

Under Secretary Ted Mitchell testified that the Department’s guidance was not binding during his sworn testimony before the U.S. Senate’s Committee on Homeland Security and Governmental Affairs. The discussion began when Senator James Lankford noted the distinction between regulations and guidance:

Senator Lankford: Let me move on to another process-type question, and that is guidance. What is your process on making a decision when you are discussing whether you are going to do a guidance document or regulation? Is there a written out process that you have in place to say if all of these things—or even if one of these things—is true then there needs to be a regulation? Mr. Mitchell: So we’re guided by the OMB bulletins and by our own office of general counsel and the bright line as I believe my colleague Amy McIntosh told you last week is that for us, if there is a—if there is a statement that we want to make, or a statement or an area we believe needs to be investigated and where we need consultation with the field that will result in having the force of law, we believe that at that point we are bound to enter into rulemaking. Senator Lankford: Clearly the bright line is, if it is binding, then that is a regulation. Mr. Mitchell: That’s right. Senator Lankford: The challenge that I hear over and over again from institutions of higher education is, they have a tremendous number of guidance documents that are coming to them, and they do not feel the freedom to be able to come back to Education, the Department of Ed, and say this smells a lot like a regulation to me because this is also where a stream of funding comes from. And so, they feel like they have to take it. Where other entities, obviously private businesses, they get a guidance document come down, they file lawsuits, and they challenge, and they push back on it. Institutions of higher education are actually leaning back and saying, I don’t feel the freedom to be able to challenge this for fear that we’ll also have other things. Now, I’m sure your answer is, they shouldn’t be afraid of us; we’re their friends. But I would tell you, they are very concerned that they’re—not only the way the regulations are coming out, but the frequency of those regulations and the pure cumulative result of that is they’re drowning in guidance documents and “Dear Colleague” letters, is actually how they are coming from you, and this sheer number of “Dear Colleague” letters they feel like they can’t challenge. Mr. Mitchell: So let me say that I’m hearing—I hear the same things when I talk to my colleagues in higher education. And in each of those conversations I do try to reiterate what Amy said last week and I will say again. Our guidance does not hold the force of law and our recommendations and illustrations of the ways in which we are interpreting the statute and the regulations. So we are happy, in fact, to continue in conversations with institutions of higher education. Senator Lankford: The hope is that can be an ongoing dialogue, because they feel like the “Dear Colleague” letter shows up and they didn’t have input. Unlike a regulation where they have the opportunity to be able to write in and say when you do this, make sure you consider this, the “Dear Colleague” letter shows up and they assume someone had input, but they weren’t in the clique group that got to have the input on it. And so that is a bigger issue that we need to deal with. [Emphasis added.]

If the April 4, 2011 “Dear Colleague” letter is not binding as these officials state, why is the Department of Education claiming that institutions violate Title IX if they do not conform with the letter’s terms? Why is ED forcing institutions to change their policies to meet the demands of the letter when it enters into settlement agreements with institutions under investigation?

Senator Lankford’s questioning pinpointed the precise problem: Whether the Department of Education’s guidance is off by an inch or a mile, no institution feels it can safely challenge the Department without finding itself subject to an investigation where all its federal funding is on the line. This is not a healthy dynamic.

As Under Secretary Mitchell testified, he is aware of this cloud of fear, and he hears about it regularly from colleagues within the higher education community. He should do more than just tell them that the guidance is not binding. He should use his position to ensure that all institutions know that the guidance is strictly advisory and make sure that ED stops enforcing the terms of non-binding guidance through settlement negotiations with institutions.

Until ED changes its tune, it is taking advantage of this culture of fear to push institutions into falling in line with its non-binding perspective. If ED won’t change its practice voluntarily, hopefully Congress will do it for them. FIRE is always eager to work with the Department or with Congress to make sure that Title IX is enforced lawfully and fairly.