Alexander: Where Does Department of Education Get Authority to Tell 100,000 Public Schools What to Do About Bullying?

“Bullying is a serious problem. But the United States Senate doesn’t agree that the federal government ought to be telling the local school what its bullying policy ought to be. So how does the Department of Education get the right to make a guidance which will be under Title IX, when the head of Title IX thinks everybody she issues a guidance to has to do what she says?”

– Lamar Alexander

WASHINGTON, D.C., Sept. 23 – The chairman of the Senate education committee today questioned the authority of the Education Department official in charge of enforcing civil rights to issue guidance on bullying that she views as binding for the nation’s 100,000 public schools.

“We’ve had a big debate on bullying in the United States Senate. We just passed in the Senate a reauthorization of the Elementary and Secondary Education Act, which got 81 votes…And the one overriding subject that we agreed on both sides of the aisle was that we don’t want a national school board, but we didn’t have any agreement on whether we should be telling 100,000 public schools what their discipline or bullying policy should be,” said Chairman Lamar Alexander (R-Tenn.) today, joining a hearing of the Senate Homeland Security and Government Affairs subcommittee on regulatory affairs.

“So where does the Department of Education get the authority to even issue a guidance or a rule or a regulation on bullying? Where is that in the law?”

The Department of Education has issued guidance on bullying in 2010, 2013 and 2014. An agency’s guidance communicates the agency’s thinking on interpretation of laws and rules and does not have to follow notice and comment requirements because it is not, by law, binding. But the public may feel bound by the agency’s interpretations and the agency’s own staff may treat them as binding.

Alexander pointed to a hearing last year where Catherine Lhamon, the assistant secretary for civil rights at the U.S. Department of Education, was testifying before the Senate Health, Education, Labor and Pensions Committee and was asked by Alexander whether she expects our more than 6,000 institutions of higher education to comply with her agency’s guidance. She responded, “We do.”

Alexander said today: “Bullying is a serious problem. But the United States Senate doesn’t agree that the federal government ought to be telling the local school what its bullying policy ought to be. So how does the Department of Education get the right to make a guidance which will be under Title IX, when the head of Title IX thinks everybody she issues a guidance to has to do what she says?”

“[This official] says her edicts are binding and she issued a guidance on bullying and to me, that’s not appropriate.”

In testimony today, Amy McIntosh of the Department of Education said “Guidance that the department issues does not have the force of law.” She reiterated later that “guidance under Title IX is not binding.”

Alexander said of Lhamon: “She apparently hasn’t gotten the word. Who’s going to tell her?”

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