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January 24, 2005

Regulations as Compared to Opinion Letters

I just taught and blogged on FERPA, the Buckley Amendment law that is interpreted to say that professors can't post students' grades on office doors. What I'd like to ponder now is a general point of jurisprudence: what is the difference between an opinion letter and a regulation?

The starting point of administrative law is the actual law passed by Congress-- in this case, FERPA. A regulatory agency administers the law, writing regulations to flesh out the details. These regulations are made using a strict and formal process that includes publication of proposed regulations in the Federal Register, a public comment period, cost-benefit analysis, and so forth. Even the regulations do not include all the details, though. The agency gets questions from people who think the law has been violated or are afraid they might violate it themselves, asking about details left unclear by the regulations. The agency answers the letters, and sometimes publicly posts its response, which I will call an "opinion letter" (I don't know if that is the legal term) so that other people can learn the details too.

My problem is this: It appears that a large amount of what agencies require people to obey are not the formal regulations that got public comment and a formal process, but these opinion letters, which as far as I know get no public comment and don't have to obey the usual rules. Thus, an agency that wants to avoid the formal process need only issue sketchy regulations and then use opinion letters to blindside the citizens, avoid political pressure, and avoid having to do things such as cost-benefit analysis.

Is that right?

FERPA is a good example. The federal regulations (here, with the crucial definitions section here) are not so bad, and would have passed through the rulemaking process without much complaint except for lack of specificity. But then the Department of Education issues opinion letters like this one which says a teacher can't mail a student's grade to him on a postcard because the mailman could read it. That, I think, is a rule that would have more trouble in a public comment period.

Posted by erasmuse at January 24, 2005 08:39 PM

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Posted by: Eric Rasmusen [TypeKey Profile Page] at January 25, 2005 01:06 PM

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