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School Boards' Group Wary of High Court Decision on Federal Agencies' Rules

The U.S. Supreme Court has ruled that federal agencies do not need to submit "interpretive rules" to the same notice-and-comment procedures required of formal regulations.

The decision is a victory for President Barack Obama's administration in a case about a U.S. Department of Labor interpretation of wage and hour rules, but it could be influential well beyond that. 

The National School Boards Association, which had joined other local government groups in filing a brief against the administration, says the decision could embolden the U.S. Department of Education to exert authority through "dear colleague" letters and other less formal guidance.

"'Interpretive rule' really has no definition," said Naomi Gittins, the deputy general counsel of the NSBA. "The power has definitely shifted toward agencies."

In Perez v. Mortgage Bankers Association (Case No 13-1041), the Supreme Court on March 9 held that under the Administrative Procedures Act, interpretive rules are categorically exempt from the notice-and-comment procedures that apply to formal regulations put forth by an agency related to federal statutes.

The court was unanimous in its outcome, with Justice Sonia Sotomayor writing an opinion for seven justices that repudiated a doctrine from a 1997 decision known as Paralyzed Veterans, in which the U.S. Court of Appeals for the District of Columbia Circuit had required agencies to submit interpretive rules that significanty revised formal regulations to notice and comment.

"The Paralyzed Veterans doctrine is contrary to the clear text of the APA's rulemaking provisions, and it improperly imposes on agencies an obligation beyond the "maximum procedural requirements" specified in the APA," Sotomayor wrote.

Three justices wrote opinions expressing concerns about the growing administrative power of the executive branch of the federal government. Justice Samuel A. Alito Jr. signed most of Sotomayor's opinion but issued an opinion of his own.

Justices Antonin Scalia and Clarence Thomas concurred in the result, and each issued opinions suggesting that the high court reconsider its decisions giving at least some judicial deference to interpretive rules and other less-formal agency guidance. 

Justice Scalia, who has warned of the power of the administrative state before, said the Paralyzed Veterans doctrine was incompatible with the text of the APA but he warned that federal agencies now use interpretive rules "not just to advise the public, but also to bind them."

To expand its power, Scalia said, an "agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment."

The NSBA's Gittins says the APA's notice-and-comment requirements give interested parties, such as states and school districts, the opportunity to review and weigh in on federal policies that can have broad implications.

In the friend-of-the-court brief filed on the side of the mortgage-bankers group in Perez, the NSBA did not cite any Education Department interpretive rules as illustrative of its concerns. (It did cite a Labor Department interpretation that required some school districts to pay overtime to school staff members who volunteered to coach school athletic teams.)

Gittins said there was a recent example of an Education Department "Dear Colleague" letter that the NSBA has found problematic. In November, the department issued the informal guidance on how school districts must provide effective communication for students with hearing, vision, or speech disabilities.

The "Frequently Asked Questions" document, issued by the department's office for civil rights and office of special education and rehabilitative services, along with the U.S. Department of Justice,  endorses a 2013 decision by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that the Americans with Disabilities Act of 1990 requires, in some instances, that one-on-one transcription services to a student with a communications disability.

In a March 5 letter to the agencies, the NSBA said the informal guidance "is a misplaced statement of the law" that threatens to interfere with procedures under the Individuals with Disabilities Education Act, and "will burden schools administratively and financially." (Education Week's Christina Samuels wrote about the letter in her On Special Education blog.)

Gittins said in the interview that from NSBA's perspective, the guidance "is changing the IDEA and ADA ballgame."

She said that even if the Education Department elects to avoid the full-blown notice-and-comment requirements outlines in the APA, it could do a better job of reaching out for input from interested parties on less formal guidance.

"When they're issuing these 'Dear Colleague' letters," she said of Education Department officials, "we encourage them to reach out to us."

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