Beyond the U. Va. scandal: will courts disallow feds’ rule by “Dear Colleague” letter?

The crackdown on college grievance procedures by the U.S. Department of Education’s Office for Civil Rights (OCR) paved the way for such developments as the administrative panic at the University of Virginia following Rolling Stone’s bogus assault article. I’ve got some thoughts at Cato about how the OCR crackdown grows out of a type of federal agency power grab — rule by “Dear Colleague” letter, sometimes known as sub-regulatory guidance or stealth regulation — that did not begin with this issue. As federal agencies have learned how to wield broad regulatory power without having to go through the formal regulatory process with its legal protections for affected parties, the courts have begun to apply skeptical scrutiny — which could open up one avenue of challenging the federal guidelines. Earlier on subregulatory guidance/stealth regulation here, here, etc. More: related from John Graham and James Broughel, Mercatus.


  • One aspect of the “protections for affected parties” that the feds seem to be trying to avoid is the publicity that will accompany, or could accompany, the rulemaking process, with its notice requirements etc.
    It worries me very much when the government tries to impose new regulations without the opportunity for public input, or even knowledge.
    You can’t count on the media to publicize this stuff, either.

  • And, perniciously, the regulator will disclaim any responsibility when policies it crams down people’s throats actually harm real people.

  • @SPO,

    FDIC has already tried exactly that in the operation choke point scandal.

  • A fundamental legal principle is that punishment should be commensurate with the transgression to which it is applies. Holding off all Federal aid to schools is excessive in almost all cases, and the courts should inform regulatory bullies of the fifth amendment to our constitution. Justice Roberts came close to my view in his ruling on the Affordable Care Act. And we have CPSIA over reach problem. I am amazed that our regulatory agencies are hair-on-fire crazy. There is no science to justify the administration jihad against coal.