INSOMNIA THEATER (DEPT. OF ED​. EDITION) – ​ICYMI, last week I posted a video of Senator Lamar Alexander (R-TN) challenging Department of Education (ED) Deputy Assistant Secretary Amy McIntosh about past statements made by Catherine Lhamon, the assistant secretary for ED’s Office for Civil Rights (OCR). Lhamon had testified that she expected colleges and universities to comply fully with OCR’s Title IX guidance, despite the fact that federal guidance is not binding. Huh?

McIntosh quickly backtracked from Lhamon’s comments, telling Alexander that “guidance that the Department issues does not have the force of law.” Then, in another congressional hearing just a week after this exchange, a second ED official, Under Secretary Ted Mitchell, also admitted that ED’s guidance “does not hold the force of law.”

I can tell you that after working on campuses for 15 years, I can’t think of one college that actually believes that following any ED ukase is optional, and I can’t believe that ED (which has power over federal funding of universities!) really believes that either.

This week FIRE’s Joe Cohn explained just how OCR’s actions both overstep its authority, violate the Administrative Procedure Act, and intimidate institutions into complying with its “non-binding” guidance.

You can watch the back-and-forth between Alexander and McIntosh in the video below or, for the hardcore issue fans, there’s also the full video of the hearing on the Committee on Homeland Security and Governmental Affairs’ website.