[Congressional Record Volume 162, Number 40 (Monday, March 14, 2016)]
[Senate]
[Pages S1448-S1449]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        NOMINATION OF JOHN KING

  Mr. LANKFORD. Madam President, I rise to speak on the nomination of 
John King to be Secretary of Education.
  Dr. King has impressive credentials and an inspiring personal story. 
I have had the opportunity to meet with him and discuss his leadership 
and his view of the law.
  I shared with Dr. King that in the view of many legal experts and 
school officials across the country, the Department of Education has 
been bullying schools to comply with policies that simply do not have 
the force of law. This coercive use of power, however well intentioned, 
is wrong and it is unlawful.
  Leadership requires making sure that those serving within the 
Department conduct themselves in full compliance with the law.
  I have an obligation to the people of Oklahoma to ensure that the 
President's nominees adhere to the law. Regrettably, Dr. King has 
refused to commit to stopping these regulatory abuses if he were 
confirmed. For that reason, I will oppose his nomination today.
  For far too long we have witnessed executive overreach in this 
administration. From the Clean Power Plan to waters of the United 
States, Federal departments and agencies have usurped the power to 
invent law with increasing boldness. The Department of Education 
overreach is similar in this kind.
  Instead of promulgating rules that conflict with congressional 
intent, the Department of Education is skirting the rulemaking process 
altogether by issuing guidance documents they call Dear Colleague 
letters. Guidance documents cannot and do not have the force of law. 
Guidance documents may only interpret existing obligations found in 
statute or regulation.
  Some agencies complain that the rulemaking process is too long and it 
requires too much public input, so it is easier just to say that the 
new rule simply interprets an existing rule, and then skip the 
compliance with the Administrative Procedures Act that is required for 
a new rule. It is complete irony that agencies see regulatory 
compliance as too burdensome, so they impose new regulatory guidance on 
States, local governments, tribes, and private institutions at a faster 
pace, and those institutions have no way to fight the rules--only 
comply.
  Let me give an example from the Department of Education's Office of 
Civil Rights. They have a great responsibility to promote our shared 
American values of equal opportunity, ensuring gender equality, and to 
work with federally funded schools to prohibit sexual harassment and 
sexual violence. As the father of two daughters, I fully support the 
objectives of Title IX and condemn all forms of sexual discrimination.
  But the Office of Civil Rights enforcement authority comes from Title 
IX of the Education Amendments of 1972 bill, and those Office of Civil 
Rights Dear Colleague letters that are now being put out there 
supposedly notify schools of their obligations under Title IX.
  Two of the Office of Civil Rights Dear Colleagues letters 
significantly expand school liability by prescribing policies required 
neither by Title IX nor by OCR's regulations. I am particularly 
concerned with OCR's 2010 Dear Colleague letter on harassment and 
bullying and a 2011 letter on sexual violence.
  These letters respectively prohibit conduct and require procedures 
not required by law. For example, the 2010 letter says that making 
sexual jokes or distributing sexually explicit pictures or creating 
emails or Web sites of a sexual nature can be actionable under Title 
IX. Well, regardless of what one personally thinks about abhorrent 
things like what I have just described, the First Amendment protects 
all forms of speech, and no part of our Federal Government can dictate 
what is said and not allowed to be said on a university campus. The 
2010 letter leaves schools to wonder whether they should police certain 
speech on their campus or fear a Title IX investigation.
  The 2011 letter requires schools to change their Title IX 
disciplinary procedures to require what is called a preponderance-of-
the-evidence standard of proof. This means that the decisionmaker is 51 
percent sure a student committed an act of sexual assault or sexual 
violence. But the Office of Civil Rights doesn't require many due 
process protections for the accused that he or she would enjoy being 
provided in a court of law.
  The Office of Civil Rights said it was merely interpreting the 
``equitable resolution'' standard that is in the law. So it changed, 
creating a new standard and saying it is just interpreting some 
equitable standard that is in the law--a standard that no other 
administration has ever applied.
  If these policies had been subjected to notice-and-comment 
rulemaking, I wouldn't be standing here today. When agencies follow the 
law, notice and comment allows for public input and leads to better 
regulatory outcomes.
  But universities never got that chance. So on January 7, 2016, I 
asked the Department of Education a simple question: From where in the 
text do you derive this new authority? Where is it in the law that you 
created this new policy? Because the Department of Education can't 
create a new law; they can simply promulgate rules from existing law. 
That is a pretty basic question: Where did it come from in the law?
  Unfortunately, the Department of Education did not answer my 
question. They sent me a letter back, but in their response they 
insisted that they have the authority to issue guidance under Title IX 
and cited general abilities in the statute. They also cited prior 
guidance documents, which are also not legal documents. You can't

[[Page S1449]]

make a new guidance off of old guidance documents.
  So on March 24, 2016, I replied back to them, pointing out that the 
2010 and 2011 letters did, in fact, create new policy. In my reply, I 
also expressed concern over the reliance by the Office of Civil Rights 
on letters of findings to support their policy requiring the 
preponderance-of-the-evidence standard. But these letters are not 
binding on other schools, either. In fact, they show that the Office 
for Civil Rights looks to and has enforced these policies enumerated 
only in ``Dear Colleague'' letters across the country.

  Legal scholars at Harvard Law and Penn Law have argued that the 
Office for Civil Rights' sexual harassment policy was ``inconsistent 
with the most basic principles we teach.'' Title IX was not written and 
has never been said to imperil these ``basic principles,'' as the 
professors pointed out, which include free speech, due process, and 
adherence to good administrative procedures. To me, this is evidence 
that the ``Dear Colleague'' letters changed the application of title IX 
and its regulatory landscape in fundamental ways. These policy changes 
should be subject to rulemaking process, not just inventing new 
guidelines.
  Other prominent voices have also stated their concerns with the 
substance of and the manner in which the guidance documents were 
issued. Take, for example, the director of the civil liberties-minded 
Foundation for Individual Rights and Education, known as FIRE, who 
stated that ``OCR has consistently avoided giving real answers to 
questions about its power to issue regulations outside the bounds of 
the law. It cannot avoid accountability forever.''
  An analysis from Inside Higher Ed, a respected news outlet for the 
postsecondary education community, stated:

       Last week, the Department clarified in a letter . . . that 
     the Dear Colleague letter acts only as a guidance for college 
     and does not ``carry the force of law.'' But many college 
     presidents and lawyers argue that the Department's Office for 
     Civil Rights treats the guidance far more than as a series of 
     recommendations. Instead, they say, OCR uses the letter to 
     determine which colleges are in violation of Title IX and to 
     threaten the federal funding of those that don't follow every 
     suggestion. Some Department officials have recently said 
     there are clear ``musts'' and clear ``shoulds'' in the 
     guidance, though colleges say the Office for Civil Rights 
     does not seem to clearly differentiate between the two. 
     Attempts to clarify which parts of the letter should be read 
     as hard regulations and which should be considered 
     recommendations have only led to more confusion and 
     frustration.

  That from this well-respected entity.
  The publication also quotes Terry Hartle of the American Council on 
Education saying that ``the department's political leadership can say 
or write whatever they want, but where the rubber meets the road is 
where the Office for Civil Rights shows up to investigate cases on 
campus, and in those cases they consistently treat every single word of 
the guidance as an absolute mandate.''
  Kent Talbert, a lawyer who served as general counsel at the 
Department of Education from 2006 until 2009, went on the record to say 
that the response to my letter that I got back from Dr. King and from 
the Department of Education ``glosses over'' concerns regarding whether 
the Department circumvented notice-and-comment rulemaking.
  Hans Bader, another former attorney in the Office for Civil Rights, 
characterized OCR's response as a ``question-begging rationalization'' 
that did not ``address the criticisms . . . made by many lawyers and 
law professors.'' Mr. Bader went on to say that ``the 2011 Dear 
Colleague letter that was the subject of Senator Lankford's questions 
is just the tip of the iceberg when it comes to the Education 
Department imposing new legal rules out of thin air, without codifying 
them in the Code of Federal Regulations, or complying with the notice-
and-comment requirements of the Administrative Procedure Act.''
  Commentator George Will penned an op-ed on the same issue as my 
letter, and he said that when the Department argues ``its `guidance' 
letters do not have the force of law--it's a distinction without a 
difference.''
  Last week in my conversations with Dr. King about the Department of 
Education's practice of issuing guidance in lieu of rulemaking as 
required by law, he stated that if a school has a problem, they can 
challenge the Department in court, basically saying: If the schools 
have a problem with our guidance, they can sue us.
  Were the Office for Civil Rights to take adverse action against a 
school for failure to comply with the guidance documents and if that 
school fought back in court, I believe that school would prevail. In 
fact, the legislative and policy director for FIRE said that 
institutions ``would be on very solid ground in challenging OCR because 
OCR's statements and policies clearly skirted the notice-and-comment 
requirements.'' But you tell me what school would have an incentive to 
accept the existential threat that litigation poses to their university 
when they file suit against the Office for Civil Rights? They risk 
reputational harm, legal penalties, and recision of Federal funding, 
all because the OCR thinks no one would actually sue them. Many schools 
decide the risk is not worth the reward, and the Department of 
Education knows it.
  While individual companies or entire industries can and often do 
fight back against regulatory overreach from the Department of Labor or 
EPA, the Department of Education is in a position to hold Federal 
funding ransom if universities don't comply with its policies even when 
those policies are unlawful abuses of regulatory power. This is 
unacceptable.
  Just because we share an objective of equality and school safety 
doesn't mean we can turn a blind eye to a Federal department running 
roughshod over the very regulatory process we require. Here the ends 
certainly do not justify the means, and schools and the very students 
we want to protect suffer as a result.
  I do want to stress that I admire Dr. King's dedication to bettering 
our Nation's schools. All Americans are undoubtedly enriched by 
contributions made by such conscientious and exceptional educators. I 
thank him for his previous time of service, which is an impressive 
record.
  Likewise, I appreciate that these guidance documents predate Dr. 
King's service at the Department and that he had no role in overseeing 
their development or issuance, but when asked to reexamine them and the 
process of how they were created, he protected them instead of 
acknowledging the problem with the process. That tells me there are 
more ``Dear Colleague'' letters coming to our schools, and this agency 
will continue to make up the rules in a vacuum and threaten Federal 
funding for those who dare not comply.
  As part of my continuing discussions with the Office for Civil 
Rights, the Department has assured me they will take steps to clarify 
the interpretive role of guidance, increase transparency, and enhance 
opportunity for public input. I am encouraged that the Office for Civil 
Rights has committed to these improvements, and I look forward to a 
continued discussion on how better guidance practices, both in the 
Office for Civil Rights and across the entire government, can actually 
occur. Unfortunately, these proposals don't answer the questions I have 
asked Dr. King, nor do they in any way address the fundamental problems 
with the 2010 or 2011 ``Dear Colleague'' letters or the Office for 
Civil Rights' broader practice of issuing guidance in lieu of 
rulemaking. Because I have not received a full answer to the questions 
I asked the Department and because Dr. King does not acknowledge that 
this overreach is even occurring within the agency he is nominated to 
lead, I have no choice but to oppose his nomination today.
  Time will tell whether this Department of Education is about to take 
a new direction with new leadership or whether they will continue the 
same path of coercive overreach they have already been on. This needs 
to stop. The American people require a voice in the rulemaking process, 
and I hope this can press on today.
  With that, I yield the floor.

                          ____________________