An executive order signed by President Donald Trump last week shows just how far away we are from how the Obama administration handled guidance, which is provided by agencies regarding how to follow federal law, including for controversial issues in public schools.
The order, entitled “Promoting the Rule of Law Through Improved Agency Guidance Documents,” requires guidance from each federal agency to “clearly state that it does not bind the public” except under narrow circumstances. It also requires agencies to seek input from the public through a formal process before drafting and releasing guidance, and allows the public to formally petition for those agencies to withdraw guidance.
The order says that agencies have sometimes used their power to issue guidance “inappropriately in attempts to regulate the public.”
“Even when accompanied by a disclaimer that it is non-binding, a guidance document issued by an agency may carry the implicit threat of enforcement action if the regulated public does not comply,” the order states. “Moreover, the public frequently has insufficient notice of guidance documents, which are not always published in the Federal Register or distributed to all regulated parties.”
The order also requires agencies to post guidance documents in searchable form on their websites. Like the documents, the websites must note that the guidance is nonbinding.
The Trump administration has withdrawn prominent guidance about transgender students’ access to facilities, as well as guidance intended to address racial disparities in student discipline issued by the U.S. Department of Education under President Barack Obama. Those decisions represents a fundamental difference of opinion about the role of federal agencies in how they interact with local authorities.
Critics of those pieces of guidance, which were officially nonbinding for schools, argued that they were an attempt by the Obama education team to improperly strong-arm districts into enacting official policies that matched their priorities. They said they impeded districts from making their own determinations about what was best for those schools.
However, the Obama administration and its supporters argued that in both cases, the guidance attempted to ensure that schools were adhering to civil rights law and providing students with the equitable treatment they deserved.
Photo: President Donald Trump in 2017 (Matt Rourke/Associated Press)