A recent public notice from the U.S. departments of Education and Justice that certain informal guidance documents from the agencies—including those outlining schools’ obligations to English learners and addressing race in school discipline and admissions—“are not enforceable” has caused concern among some educators.
Most of the seven documents, each issued during the administrations of Presidents Barack Obama or Joe Biden, had already been rescinded by President Donald Trump’s administration during Trump’s second term, and the Oct. 23 notice in the Federal Register may be little more than a form of bureaucratic file clearing.
The Education and Justice departments say the documents are “under review,” and they stress that as informal guidance, they did not even have the force of law even before they were rescinded.
The guidance documents “do not establish legally enforceable responsibilities beyond what is required by the terms of the applicable statutes, regulations, or binding judicial precedent,” says the Federal Register notice. “Regardless, the departments are concerned about confusion over the non-enforceable nature of the guidance documents and issue this clarification that the guidance documents are not enforceable.”
Still, school districts have long relied on some of this guidance, which federal agencies issue to indicate how they interpret federal laws and will approach enforcing them. One legal expert advised districts to revisit their reliance on the documents.
The departments says they plan to “revisit these guidance documents” in light of a recent U.S. Supreme Court decision to be sure they are consistent with the federal statutes that authorize them.
The notice was signed by Kimberly Richey, the Education Department’s assistant secretary for civil rights, and Harmeet K. Dhillon, who resigned Thursday as the assistant attorney general in charge of the Justice Department’s civil rights division.
Most of the documents have been rescinded
Among the documents are three issued on Jan 7, 2015, about English learner students and limited-English-proficient parents. The Obama-era Dear Colleague letter and two accompanying fact sheets were considered some of the clearest and most comprehensive statements about schools’ expectations for serving English learner students.
The Trump administration quietly rescinded those documents last year, saying the guidance wasn’t “aligned with administration priorities.”
Julie Sugarman, an associate director for K-12 education research at the Migration Policy Institute’s National Center on Immigrant Integration Policy, said that for years, educators focusing on English learners relied on these federal guidance documents to make their case to school and district administrators that they must fulfill their legal obligations to these students.
“A lot of administrators would really take it seriously when it was something coming from the federal government but would not necessarily follow all of the advice given to them by their English-learner leaders,” Sugarman said.
The other documents in the Federal Register notice were issued under the Biden administration. They are a May 10, 2021, brochure on “Confronting COVID-19-Related Harassment in Schools; a May 26, 2023, resource on “Confronting Racial Discrimination in Student Discipline” and an Aug. 14, 2023, Dear Colleague letter and question-and-answer document responding to the U.S. Supreme Court decision that year outlawing most considerations of race in college admissions.
Most of those documents had already been formally rescinded during Trump’s second term before the Oct. 23 notice, except for the student discipline resource. In an Aug. 18 guidance document in which the Education Department instructed schools not to take race into account in student discipline policies, the department described the 2023 Biden document as “in the process of being formally rescinded.”
Miranda Johnson, a professor and the director of the Education Law and Policy Institute at Loyola University Chicago law school, was preparing to give a presentation about student discipline at an education law conference last month when she learned of the Federal Register notice. She quickly tweaked her presentation.
The notice is “clearly signaling very directly that both the departments of Education and Justice won’t rely on these documents in its enforcement proceedings,” Johnson said in an interview. “I think the implication is that school districts really need to look at any instances in their policies where they’re directly relying on these guidance documents and make sure that instead they’re relying on statutes, regulations, and court precedent.”
Schools across the country “have long relied on these types of informal guidance documents to understand how enforcement proceedings from the Education Department’s office for civil rights are likely to proceed,” she said, and with less such guidance, “that puts school districts in a more precarious situation.”
Michael J. Petrilli, the president of the Thomas B. Fordham Institute, an education think tank that supports some, though not necessarily all, of the Trump administration’s education initiatives, said in an interview that he thought the review of the specified documents doesn’t make much of a difference “day to day because this administration wasn’t enforcing them anyways.”
He said the more significant issue is that under a 2024 U.S. Supreme Court decision, courts will be focusing more scrutiny on federal agency regulations that interpret acts of Congress.
“We can expect the courts to be more aggressive in looking at the way that agencies are interpreting laws and trying to rein in agencies if they seem to be going beyond the letter of the law, to create their own preferred policies or programs that Congress did not itself approve,” Petrilli said.
The Federal Register notice itself cites Loper Bright Enterprises v. Raimondo, the 2024 high court decision that overruled a longstanding precedent that had required courts to defer to federal agencies’ interpretations of ambiguous statutes in many circumstances.
Noting that each of the seven Education Department documents listed as up for review were issued before the 2024 ruling, the Federal Register notice says the Education and Justice departments “plan to revisit the guidance documents listed in this notice in light of Loper Bright to determine whether they are consistent with the ‘single, best meaning’” of the relevant federal civil rights laws enforced by the departments.
That is the standard cited by Chief Justice John G. Roberts Jr. in his majority opinion in Loper Bright.
“Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority,” Roberts said.
(The decision did not require federal agencies to reconsider their own older regulations under the clarified standard. And Loper Bright involved the standard of deference for formal agency regulations, not informal guidance documents.)
An Obama and Biden official with a keen interest
Each of the documents in the Federal Register notice was signed, on behalf of the Education Department, by Catherine E. Lhamon, who was assistant secretary for civil rights during both the Obama and Biden administrations.
Lhamon said in an interview that she doesn’t “make anything at all” of the review because the documents had already been rescinded. There are more than 30 guidance documents issued under the Obama administration and more than 60 under Biden that are still in place, she said.
Those other guidance documents “are still operational” and “are still useful for schools,” said Lhamon, who is now the executive director of the Edley Center on Law and Democracy at the University of California-Berkeley law school.
Lhamon said the more significant impact of civil rights enforcement in education under the Trump administration revolves around the cuts to the Education Department and OCR and their enforcement priorities.
“It’s the least effective office for civil rights of any office for civil rights in any administration in the history of the office,” Lhamon said. “They have done very little work. It’s an enormously distressing and weaponized office for civil rights, and it’s clear that the public cannot rely on the federal government today to fulfill its historic charge.”
