Does Subregulatory Guidance Protect Students’ Civil Rights?

Agencies’ consistent use of informal policy guidance to set regulatory policy has attracted much scrutiny. The U.S. Department of Education’s Office for Civil Rights (OCR) is no stranger to this scrutiny, as the agency has used guidance documents more frequently than traditional rulemaking to effectuate some civil rights regulations.

OCR holds responsibility for enforcing federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age in schools. In addition to conducting complaint investigations and compliance reviews, OCR also issues “Dear Colleague Letters,” which are informal policy guidance documents that inform schools of their obligations under these laws and encourage compliance with civil rights statutes.

Some scholars argue that OCR’s use of policy guidance documents may allow the agency to “evade the more onerous constraints imposed on rulemaking,” especially since the Administrative Procedure Act exempts policy guidance from close scrutiny. According to these scholars, OCR’s reliance on issuing interpretive rather than legislative rules through its Dear Colleague Letters allows political appointees to evade judicial, congressional, and public review and leaves new policy guidance subject to rescission by subsequent presidential administrations.

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

Notably, the Trump Administration rescinded policy guidance introduced by the Obama Administration’s OCR officials about the rights of transgender students, the administration of the Title IX complaint process, and lessening disparate impacts in school discipline. Although some advocates praised the rollback of Obama-era guidance documents, others have more recently focused on how the Biden Administration should go about reinstating them.

In this week’s Saturday Seminar, we collect scholarship that discusses the implications of OCR’s reliance on informal policy guidance to further students’ civil rights.

• In an article published in Education Policy Analysis Archives, Maria M. Lewis and Sarah Kern of Pennsylvania State University explain that less than 5 percent of the policy guidance documents issued by OCR during the Obama Administration cited peer-reviewed education policy research. Lewis and Kern note that one concern with using more research in OCR policy guidance is that such guidance could be rescinded for insufficient reliance on legal analysis. Nonetheless, they suggest that policymakers at OCR could better protect the rights of historically marginalized student groups by incorporating more high-quality social science research into their policy guidance documents.
• In an article in Publius: The Journal of Federalism, Kenneth K. Wong of Brown University contends that the Trump Administration curtailed OCR’s enforcement priorities by reducing the number of civil rights investigations conducted and rescinding Obama-era policy guidance. According to Wong, civil rights advocates feared that the rescission of the Obama Administration’s guidance documents would undo progress toward advancing educational equity. The implications of this rescission, Wong argues, included President Trump’s ability to rely on administrative tools to lessen federal oversight of civil rights mandates in schools and yield greater deference 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 create an overview of OCR’s policy efforts during the Obama Administration. Lewis, Garces, and Frankenberg argue that OCR’s efforts, such as publishing interpretive guidance on U.S. Supreme Court cases, were necessary practical guidance to protect students’ civil rights. They further argue for more research into educational disparities to inform OCR’s efforts.
• Subregulatory guidance provides a means for institutions to understand how OCR will interpret statutes and implement regulations, which can save costs of ambiguity, 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 subregulatory guidance but that institutions would have less clarity on how to avoid agency action. Bagenstos then notes that subregulatory guidance is not a strong tool because it can be easily undone by a new administration.
• In an article published in Hastings Law Journal, Ming Hsu Chen of the University of Colorado Law School discusses the limits of guidance to bind agency interpretations, especially in areas of great societal division. Chen recounts the Obama Administration’s efforts to use guidance documents to require schools to provide transgender students with access to bathrooms consistent with their gender identity. Contentious litigation followed, with opponents challenging the change on both substantive and procedural grounds. The Trump Administration ultimately rescinded the guidance. In this instance, Chen contends that “pressure for heightened regulatory procedure functioned as a shield against expanding rights.”
• OCR’s use of “Dear Colleague Letters” is supported by principles of good governance, argues Stephen S. Worthington in an article published in the Brigham Young University Education and Law Journal. Worthington contends that OCR guidance serves as a beacon to clarify—not alter—existing legal requirements. Moreover, the flexibility of guidance documents allows for increased democratic responsiveness, as new administrations are able to implement policy priorities. Worthington warns that absent the relative ease of guidance documents, OCR would likely rely on even more informal policy instruments such as case-by-case enforcement and internal staff communications.