This past week, the Food and Drug Administration formally withdrew 47 draft guidances. (I have no idea what they were about. If you’re sufficiently intrepid to pursue this, the Federal Register notice is here.) FDA’s step may or may not have to do with a May 7 letter from Senators Lamar Alexander (R-TN) and James Lankford (R-OK) to several federal departments and agencies (Department of Labor, Department of Education, HHS, EEOC) requesting information on the agencies’ use of guidance documents. The letter expresses concern that the agencies may be using guidance documents in ways that circumvent the notice and comment requirements of the Administrative Procedure Act.
One of the areas of alleged lawlessness by the Obama Administration has been the Office for Civil Rights of the Department of Education (OCR). OCR has been pushing the agenda of a rape culture on college campuses. OCR has used guidances and “Dear Colleague” letters to effectively impose a series of questionable practices on colleges, such as depriving the accused of fair procedures.
There are numerous problems with this agenda. Some of them are substantive, such as the muddying of the definition of consent. Some of them are procedural, such as depriving the accused of procedural rights. But a third set of problems are legal. The problem is that the rules that OCR is imposing are questionable as a matter of law and have not been tested in the courts.
This is hardly an accident. The Office strategically imposes these standards through guidances because it knows that it is much more difficult for the guidances to be challenged in court ahead of time.
I’m grateful for the responses to my earlier Office for Civil Rights post, especially the comments that illustrate the corrupting consequences of “government by guidance.” As I suggested, and as many readers emphasized, the subject raises much larger questions about lawful government. Herewith a few more comments on how difficult this is—and a hopefully cheerful suggestion as to what could be done.
The trajectory from lofty, well-meant enactments (the Civil Rights Act, Title IX) to the scape-goating of students, teachers, and bandleaders is a straight line: statute to regulation to “interpretation/guidance” to “voluntary” compliance. But the incentives are lousy each step of the way. Congress would rather delegate than legislate; the agency would rather bully than write a rule; and the regulated entities would rather throw people overboard and kowtow or pay money than fight back. This happens everywhere; OCR is just an example. And, no: this isn’t about the Obama administration or particularly wayward bureaucrats. If it were, things could be fixed at the ballot box, or by courts. The grim, incentive-driven march of government by guidance isn’t.
This past Friday, Boston College’s excellent Shep Melnick (interviewed on this site not long ago) gratuitously ruined my weekend by alerting me to the latest “Dear Colleague Letter” (“DCL”) from the Education Department’s Office for Civil Rights (“OCR”). The DCL “shares” OCR’s views on “resource compatibility” at the nation’s schools, district by district. Horrendous in its own right, the letter also prompts broader thoughts on “government by guidance”: it’s a prescription for a banana republic.
This conversation with Shep Melnick looks into the enforcement practices of the Office for Civil Rights in the Department of Education, one of the most powerful and secretive agencies in the administrative state. This agency caught the attention of many in 2011 when Russlynn Ali, Assistant Secretary for Civil Rights, sent a “Dear Colleague” letter to colleges and universities lowering the standard of guilt in a sexual harassment or sexual violence proceeding from guilt beyond a reasonable doubt to preponderance of the evidence (i.e., it is more likely than not that sexual harassment or violence occurred). Topping it off was…