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Unilateral Federal Action Via Waivers and Dear Colleague Letters. Kinda Not Cool

For the next few weeks, Rick will be out and about discussing his new edited volume, Bush-Obama School Reform: Lessons Learned. While he's away, several of the contributors have agreed to stop by and offer their reflections on what we've learned from the Bush-Obama era. This week, you'll hear from Josh Dunn, a professor of political science at the University of Colorado—Colorado Springs. He'll be discussing the implications of the Bush-Obama emphasis on school reform as a civil rights issue.

After Republicans won the House and the Senate in 1994, Bill Clinton increasingly turned to executive orders when he couldn't get Congress to pass his agenda. His adviser, Paul Begala, famously expressed his approval for this unilateral executive action as "Stroke of the pen. Law of the land. Kinda cool."

The Department of Education probably felt the same way during the Obama administration. Arne Duncan turned to waivers to extract concessions out of beleaguered states, and the Office for Civil Rights (OCR) flooded the zone with Dear Colleague Letters (DCLs). Congress wouldn't give Duncan the authority that he wanted, so he just did what he wanted anyway. OCR knew that its "guidance" went far beyond the four corners of the statutes but said that the statutes required OCR's preferences anyway. Kinda cool, right?

Maybe not. The fallout from this regime by waiver and DCL provides a third lesson from the "civil rights" agenda of the Bush and Obama administrations: Unilateral federal action is a poor substitute for legislation and ordinary rulemaking.

It's easy to see why Duncan resorted to waivers. Passing laws is difficult, and you might not get everything that you want. In fact, you're pretty much guaranteed not to. But the legislative process is there for a reason. Most importantly, it forces you to build a broad coalition for your agenda, and this can help expose the limitations of your agenda and prune impractical goals. For example, the political backlash to the conditions the Department of Education attached to waivers would have been easier to foresee if they had been vetted via the legislative process.

Similarly, DCLs allowed OCR to engage in uninhibited policy freelancing. Normally, agencies are supposed to go through notice-and-comment procedures when making rules. But for decades, OCR has ignored this requirement and circumvented federal law by issuing DCLs instead. Ostensibly, these letters are just guidance but OCR treats them like they were actual rules, and it punishes schools by threatening to withhold federal funds and putting them through onerous and embarrassing investigations when they don't follow them.

OCR's ability to immediately indulge its desires is not costless. It's guaranteed to generate significant unintended consequences. Consider OCR's guidance on school discipline: Giving teachers, school districts, and state boards of education the opportunity to express their concerns would almost certainly have led to more modest ambitions.

Or consider OCR's memo on transgender students. Harvard Law School professor Jeannie Suk Gersen pointed out the DCL rendered Title IX hopelessly contradictory. OCR had long interpreted Title IX to prevent a hostile educational environment. But, as many feminists argue, forcing biological females to use the same locker room as biological males who identify as female could create a hostile environment. "The discomfort that some people, some sexual-assault survivors, in particular, feel at the idea of being in restrooms with people with male sex organs," Gersen pointed out, "is not easy to brush aside as bigotry." OCR was rendering Title IX incoherent and setting schools up to "be sued whichever route they choose."

These kinds of problems were just the natural result of the lawless nature of the DCL. "Unlike the Education Department's many regulations," Gersen said, "the Dear Colleague letter is not law, because it wasn't enacted through legal procedures, involving public input, that federal agencies must follow when making law." Issuing edicts through letters "rather than lawful processes" prevented OCR from confronting the incoherence of its rules.

Instead of building a political coalition that would bring different groups together to discuss what might be a reasonable compromise, it legalized the issue and exacerbated, rather than limited, conflict. In short, OCR's gratuitous insertion of itself via DCL shortcircuited discussion and dialogue on a contentious area that desperately needed it and placed the statutory rights of some students at odds with the dictates of the memo.

Oh, and the first thing the Trump administration did when it assumed control over OCR was to rescind the DCL. If you live by the DCL, you can die by the DCL. A statutory solution would not have been so easily undone. Even if you think the ends justify the lawless means, if you want the end to last, you might want to reconsider policymaking by unilateral edict.

Josh Dunn

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