Federal Agencies Permitted to Issue “Interpretive Rules” Without Public Notice and Comment

The U.S. Supreme Court recently ruled that federal agencies have the authority to issue “interpretive rules” without having to submit those rules to the same public notice and comment procedures required for issuance of formal agency regulations.Specifically, in the case Perez v. Mortgage Bankers Association, the Court found that under the federal Administrative Procedure Act (the act all federal agencies, including the Department of Education (“DOE”), must follow in issuing rules), federal agencies need not submit “interpretive rules” to the public for comment before issuing their interpretations.

The Supreme Court’s decision may further embolden federal agencies, including the DOE, to exercise authority through less formal guidance, such as “Dear Colleague” letters (“DCL”) and Q&A documents.When the DOE issues less formal guidance, it is not required to submit its contents to the public, including school districts, before issuing the guidance, even though the guidance may have significant implications for schools.For example, in 2010, the U.S. Department of Education’s Office of Civil Rights issued a particularly controversial DCL in which OCR adopted a more expansive view of what constitutes bullying/harassment and what schools must do to address bullying than what the courts actually require.Although such “informal” guidance may not be legally binding, as a practical matter, districts must follow OCR’s rules or they may be required to take corrective actions as a result of an OCR investigation.If a district does not comply with the corrective actions, it could ultimately lose its federal funding.

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