Yesterday we told you about the case from Virginia where a federal court held that a public school is not required to allow a transgender student to use the bathroom that corresponds to the student’s gender identity. One of the interesting subtexts to the case involves the role of the Department of Education. Many people have noted the aggressive posture of DOE under the Obama Administration. The pattern is to issue “Dear Colleague” letters and “Guidance Documents” and then intervene in lawsuits citing their own publications as “the law.”
Judge Robert Doumar, of the Eastern District of Virginia, will have none of it.
The context was “the bathroom wars” involving transgender students. The Virginia school district adopted a board “Resolution” that limited transgender students to 1) the bathroom of their biological sex; or 2) “an alternative appropriate private facility.” A transgender male student sued, seeking to be allowed to use the boys’ bathroom.
The Obama Administration jumped into the case in support of the student. The Department of Justice cited a “Dear Colleague” letter from the Department of Education. DOJ also cited a “Guidance Document” from DOE. According to the Obama Administration, both documents supported the student’s case and represented the official position of the agency that enforces Title IX.
The judge, however, rested his decision not on letter or guidance documents, but rather the officially adopted regulations of Title IX. As to the DOE’s position, Hizzoner pretty much accused the Obama Administration of making up the law as it goes along. We quote at length, because we are sure we will see this same argument play out in other cases:
To defer to the Department of Education’s newfound interpretation would be nothing less than to allow the Department of Education to “create de facto a new regulation” through the use of a mere letter and guidance document. If the Department of Education wishes to amend its regulations, it is of course entitled to do so. However, it must go through notice and comment rulemaking, as required by the Administrative Procedures Act. It will not be permitted to disinterpret its own regulations for the purposes of litigation. As the Court noted throughout the hearing, it is concerned about the implications of such rulings. Allowing the Department of Education’s Letter to control here would set a precedent that agencies could avoid the process of formal rulemaking by announcing regulations through simple question and answer publications. Such a precedent would be dangerous and would open the door to allow further attempts to circumvent the rule of law—further degrading our well-designed system of checks and balances. [Citations omitted].
DAWG BONE: REGULATIONS CARRY MORE WEIGHT THAN “DEAR COLLEAGUE” LETTERS.