In 2014, the Department of Education and the Department of Justice jointly issued a Dear
Colleague letter on school discipline policies.
A Dear Colleague letter is a form of guidance document.
They put out a guidance document that proposed to enforce disparate impact theories under
Title VI of the Civil Rights Act.
Uh, within months after they put that guidance document out, they were in school districts.
In, in my hometown of Milwaukee,
that school district entered a consent decree with the Department of Education where they
agreed to completely change their school discipline policy.
That has significant, real-world consequences, and that was all the direct result of the
guidance document that many would have argued it was unlawful and has since been repealed.
Guidance documents come from agencies to help implement, uh, and inform the public of how
the agency is going to regulate.
Uh, it's a way of giving a 10,000-foot overview of what the agency's gonna do, that leads to
efficiencies and to transparency and just helps the regulated community work with the
agency.
There's some potential there for abuse in that agencies may overstep their authority
and impose new rules as a guidance document, but by and large, guidance documents are intended
to help the regulated community, as well as the agency, with efficient outcomes.
Agencies use guidance documents for a variety of reasons.
It's mainly to convey information to the public, to summarize, uh, legal requirements and regulations
and law in a plain language way, to provide frequently asked questions or fact sheets
that may be useful for the regulated community, as well as to agency staff.
Guidance documents don't have the force of law.
Sometimes, however, as the rulemaking process can be cumbersome and lengthy, some agencies
may see it as an easy path to go around the rulemaking process and put out a regulation
that could purport to have the effect of law.
There can be a lot of ambiguity between guidance documents and regulations.
When you see an agency speaking, your regulator, somebody that you rely on, uh, to help you
lawfully conduct your business, your natural inclination is to essentially do what they
say, right?
The regulated community wants to follow the law, they wanna do the right thing.
So when agencies put out guidance documents, it's not always clear that it's simply a guidance
document and that it's not something that is required to be followed.
Once guidance documents start becoming less about education of the public and more about
regulation of the public, it can lead to some significant problems for the regulated community
who don't know necessarily what the law is, if an agency is departing from traditional
understandings of what a regulation means in a way that deviates from Congress' original
intent on a law, for example.
It can lead to some significant problems for the regulated community who are trying to
implement the law and comply with it.
The abuse of guidance documents leaves the potential for some significant delegation
problems at the constitutional level.
So, when agencies implement new regulations on the public, they are engaging in legislating,
essentially, under delegated powers to them by Congress.
Congress has given those powers to them, but has retained an oversight role as they engage
in rulemaking.
There is no oversight role really for Congress when guidance documents are put forward.
So the potential is out there for agencies to engage in unlawful legislating, essentially,
and unconstitutional legislating, and that would ultimately lead to a, a challenge under
delegation grounds.
When an agency's going to put out a guidance document, if it wants to minimize controversy
and maximize transparency, it should simply restate the law.
A lot of attention should be given to plain language analysis and to making it a guidance
document that is well-founded in statute or regulation.
Statutes and regulations should be cited too in a guidance document.
Guidance documents should be implemented with the assistance of the regulated community
and the general public.
They should only be implemented when absolutely necessary to resolve conflicts or where people
have a lot of questions.
Think of the IRS when they put up some fact sheets when you're doing your taxes and help
explain what may be available for you in a given situation or what your situation might
entail for taxes, and they could put some examples out there, and you could find an
example that's right on par with your life.
That would certainly make your life a lot easier.
It would make doing your taxes a lot easier.