Sen. James Lankford (R-Okla.) says he is “alarmed” by sweeping policy changes at the Department of Education he calls “constitutionally questionable” in a letter obtained by The Hill.
At issue is the Education Department’s use of nonbinding guidance documents, which it can push through the regulatory pipeline more quickly and without as much public scrutiny as official rules.
The regulatory process can take years to complete. So federal agencies will often times issue recommended policy changes, known as guidance, that the organizations they oversee are strongly urged to follow.
Lankford is concerned the Education Department and other federal agencies are issuing guidance documents that are essentially mandatory so they can avoid the going through lengthy rulemaking proceedings, including the stage that gives the public an opportunity to comment on policy changes.
The department has overstepped this authority by crafting “improperly-issued guidance” and “ill-conceived policies” in the form of Dear Colleague letters to colleges and universities, Lankford charges in the six-page letter that will be sent Thursday to the agency’s new secretary, John B. King Jr.
“The Dear Colleague letters advance substantive and biding regulatory policies that are effectively regulations,” Lankford writes. They “are not merely interpretive, but alter the regulatory and legal landscape in fundamental ways.”
This is not the first time Lankford has levied such claims. Last fall, he co-authored a letter along with Sen. Lamar Alexander (R-Tenn.) to the Department of Labor.
Lankford also held a hearing on the matter in September with representatives from both agencies.