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stare-nest? Stnseorn?cmtr HOMELAND SECURITY AND GOVERNMENTEL AFFAIRS

DC 26515-6250

May 5, 

President Donaid J. Trump

The White House

1600 Avenue, NW
Washington, DC 20500

Dear Mr. President:

As Chairman of the Senate Homeland Security and Governmental Affairs Subcommittee on

Regulatory Affairs and Federal Management,- I conduct oversight of the federal regulaton

process to ensure regulations and sub-regulatory guidance are promulgated in a law?rl manner.
As part of this oversight I have rcpeatediy- raised ccncems about the Department of Education 
(the Department) use of certain Dear Colleague letters that advance substantive policy but may
have been issued without. any legal basis. I was pleased to see your recent Executive Order,
13791, directing the Secretary of Education to review all regulations and guidance documents
relating to the Department of Education Organization Act, the General Education Provisions Act,
and the Elementary and Secondary Education Act of 1965_as amended by the Every Student
Succecds not.1 I write to you today to seek'ciari?cation as to whether this Executive Order
extends this regulatory review to the Of?ce for Civil Rights as that of?ce, in the previous
Administration, issued several problematic guidance documents.

During the 114?? Congress, [conducted extensive oversight of the Department?s use of Dear
Colleague letters to advance substantive policy changes without proper underlying legal
authority. On January 12016,} wrote to Secretary King regarding the Department 5 Of?ce for
Civil Rights Dear Colleague letters on harassment and bullying (issued October 23', 2610)2 and
sexual violence (issued April 4, On March 4, 2016, I wrote again, reaf?rming my
concerns after the Department 5 response to my initial letter was insuf?cient. Then on July 11,
2016., i sent a letter to Kathleen Tighe, hrspector General for the Department of Education,
raising similar concerns over a Dear Colleague letter regarding nansgender students (issued Ma};
13, which was subsequently wididrawn on Februaryr 22, 2017.5 As guidance, these
letters purport to interpret statements of existing law; however, while they broadly cite to

 

Exec. Order No 13791 (an. as, 2017)

1 U. Dept. of Erin, O?ce fur Civil Rights, Dear Colleague (Oct. 26, 2610).

3 u. 3. Dept. or Edit, Of?ce forCivii Rights, Dear Collages (Apr. 4, 2011).

i U. Dept. of Erin, Grace for Civil Rights, Dear Colleague (May 13, 2016}-

5 U3. Dope of Justice, Civil Rights Div. and USS. Dept. of?Edu, Of?ce for Civil Rights, Dear Colleague-(Feb. 22,
261?}.

 

 

 


. . 
- . .President Donald J. 
Page 2

Title IX of the Education Amendments of 1972, the letters fail to point to precise governing
statuton or regulatory language that support their substantive policy changes.

In my view, the Department's decision to advance these substantive policies through the issuance
of Dear Colleague letters was an attempt to regulate without statutory authorization. Because the
Department issued these Dear Colleague letters without any underlying legal authority, they

. should be considered void and immediately rescinded in the same wasr the May l3, .2016 Dear
Colleague letter was rescinded.

I strongly believe that under the previous Administration, the Denartment?s Of?ce for Civil
Rights has abused its authority and issued Dear Colleague letters without proper statutory
authority. Accordingly, I write to ask that you clarify whether this Executive Order extends to
the Of?ce for Civil Rights, and if it does not, I strongly urge you to direct Secretary DeVos to
review all regulations and guidance documents issued by that office to ensure they comply with
federal law.

i also urge you to require all future guidance documents issued by the Department to state their
statutory authority and which existing regulations they seek to clarify.

Sincerer ff?

I


 

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nines to 5th 
53 . an 
- Subcommittee on Regulatory Affairs
and Federal Management, US. Senate
Committee on Homeland Security and
Goverruuental A?ai rs

cc: The Honorable Betsy DeVos
Secretary,r of Education

cc: The Honorable Heidi Heitkamp
Ranking Minority Member
Subcommittee. on Regulatory Affairs and Federal Management