Senator Lankford Questions Federal Education Department's Authority to Issue Guidance on Bullying, Harassment and Sexual Violence #bully #harrassment

Last week Senator James Lankford of Oklahoma sent a letter to the Acting Secretary of Education questioning the Department's authority to issue regulatory guidance such as OCR's guidance on bullying and harassment (2010) and sexual violence (2011). The Senator contends that the guidance letters avoid the proper rule making regulatory procedures. Here is his press release. A pdf of the entire letter is available here.

Here is an excerpt from the letter:

"Dear Mr. King: 

I write today to express my continued alarm regarding the Department of Education’s Office for Civil Rights (OCR) Dear Colleague letters on harassment and bullying (issued October 23, 2010) and sexual violence (issued April 4, 2011).  As guidance, both letters purport to merely interpret statements of existing law; however, while both broadly cite to Title IX of the Education Amendments of 1972 (Title IX), the letters fail to point to precise governing statutory or regulatory language that support their sweeping policy changes. 

Based on a robust record of congressional testimony I have heard as Chairman of the Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management (RAFM), I condemn all types of sex-based discrimination, including sexual violence and harassment, in the strongest possible terms, but believe that the Dear Colleague letters advance substantive and binding regulatory policies that are effectively regulations.  As such, the letters should have been promulgated subject to notice-and-comment procedures—procedures that ensure that agencies hear from affected parties to create the best possible regulatory outcomes for all stakeholders.  Accordingly, I ask that you provide a thorough justification as to the interpretive nature of the letters by providing the precise statutory and/or regulatory authority under Title IX for each policy that the letters purport to interpret.  For those policies that cannot be reasonably said to merely construe statutory or regulatory language, and are therefore not mere interpretations of existing law, please clarify, in no uncertain terms, that failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding, or rescission of federal funding."

What are your thoughts?