Recently, a task force of college presidents chronicled massive regulatory overreaching by the U.S. Department of Education, which, on a daily basis, floods America’s schools with new rules and obligations that Congress never intended. Most of these rules are not even listed in the Code of Federal Regulations, and have never gone through the formal rulemaking process, much less been adequately vetted. “The Report of the Task Force on Federal Regulation of Higher Education: Recalibrating Regulation of Colleges and Universities” correctly notes that:
“According to the basic tenets of administrative law, Congress passes laws, and it is up to the agencies to implement them. However, in recent years, the Department has increasingly used the regulatory process not in response to any specific legislative change enacted by Congress, but rather as a means to achieve its own policy objectives.” (Pg. 35)
“The compliance problem is exacerbated by the sheer volume of mandates—approximately 2,000 pages of text—and the reality that the Department of Education issues official guidance to amend or clarify its rules at a rate of more than one document per work day. As a result, colleges and universities find themselves enmeshed in a jungle of red tape, facing rules that are often confusing and difficult to comply with.” (Executive Summary, pg. 2).
The report, issued by a task force set up by a bipartisan group of U.S. Senators, cites examples such as a needlessly-expensive regulation of distance-education imposed in violation of the notice-and-comment requirements of the Administrative Procedure Act. That regulation carries an enormous price tag for schools that educate students online, discouraging cheap and innovative forms of instruction:
“A public institution with a well-established online program estimated the costs at nearly $800,000. One private institution has estimated that it will cost $290,000 and take up to 2,000 hours annually to deal with the changes. . . . In 2012, a federal appellate court upheld the original decision to vacate the regulation due to the Department’s failure to properly give notice of this issue in its pending notice of proposed rulemaking and provide stakeholders with a meaningful opportunity to comment on the policy. Despite the court’s ruling, the Department continues to pursue this policy.” (Pg. 24)
But this problem is not limited to higher education. The clearest example of the Education Department creating burdensome new legal obligations without even bothering to publish a formal regulation in the Code of Federal Regulations, or give schools advance notice and opportunity to comment on the proposed obligations, is in the K-12 context. It radically expands the reach of Title VI of the Civil Rights Act, a statute that bans racial discrimination in schools or colleges that receive federal funds or whose students receive federal financial aid.
The Education Department’s Office for Civil Rights has interpreted the Title VI statute as banning racially disparate impact (unintended racial disparities resulting from colorblind school rules) in school discipline, when the Supreme Court has ruled that the Title VI statute only bans intentional racial discrimination, not racially disparate impact.
The Supreme Court ruled in Alexander v. Sandoval that disparate impact doesn’t violate Title VI, only “intentional” discrimination does. The Education Department claimed in that case that even if the Title VI statute itself doesn’t reach disparate impact, regulations under it can and do (an idea that the Supreme Court decision described as “strange” in footnote 6 of its opinion, but did not definitively reject).
Even if the Education Department’s claim is right, if it wishes to ban disparate impact in some area, it still has to adopt a formal regulation (in the Code of Federal Regulations) doing that, after notice and comment. It can’t just pretend the Title VI statute itself bans it, because the Supreme Court has said it doesn’t.
But that is what its January 2014 guidance does, interpreting the Title VI statute contrary to the Supreme Court’s ruling 13 years earlier, without even bothering to codify a regulation extending its reach. See January 8, 2014 “Dear Colleague Letter: Nondiscriminatory Administration of School Discipline,” available at this link.
The Education Department claims that the Title VI statute itself demands that schools eliminate colorblind disciplinary rules just because they have a “disparate impact”–i.e., if a higher percentage of blacks than whites are suspended, and the school cannot prove to bureaucrats’ satisfaction that the disciplinary rule is essential to maintain order. The Education Department’s January 2014 guidance to the nation’s schools insists that a school can be guilty under Title VI of the Civil Rights Act (for disparate impact) solely due to “neutral,” “evenhanded” application of discipline rules, just because more minority students violate such rules (see pp. 11-12 of the January 8, 2014 “Dear Colleague” Letter). It does not cite to any regulation in the Code of Federal Regulations for this school-discipline requirement, but to the Title VI statute itself (The government has adopted a number of formal disparate impact regulations under Title VI in other areas prior to 2001, but nothing in the area of school discipline).
For example, the Education Department states in its January 2014 guidance that even if the only reason a school punishes more black students for unauthorized “use of electronic devices” is because blacks actually “are engaging in the use of electronic devices at a higher rate than students of other races,” it can still be liable for disparate impact — under the Title VI statute itself.
But even if the Education Department can adopt disparate impact regulations extending the Title VI statute’s reach – something the Supreme Court sounded skeptical about in footnote 6 of its Alexander v. Sandoval ruling – that can’t justify it doing so outside the Administrative Procedure Act regulatory process, under the fiction, already rejected by the Supreme Court that the regulatory requirement is already part of the statute itself. (For more background, see this link, discussing how the Education Department’s rule also raises serious constitutional problems under People Who Care v. Rockford Bd. of Education (1997).)
Hans Bader is a senior attorney at the Competitive Enterprise Institute.