Republican attorneys general from Texas, Oklahoma, and West Virginia sent a letter to Obama administration officials Tuesday seeking clarification on just what exactly they have to do in order to comply with the administration’s guidance on allowing transgender students to use the proper bathrooms. Bottom line, they don’t want to lose federal education funding and they want specifics:
In your view, must an entity receiving federal funding follow this “significant guidance” in order to be in compliance with Title IX and/or entitled to continued receipt of federal funding? Do circumstances exist in which you would consider a school still in compliance with Title IX despite non compliance with these guidelines? If so, please describe those circumstances and whether you would take steps to recoup or end federal funding.
In other words, please explain exactly how we can get out of doing what you’ve directed us to do (i.e. “comply” without actually complying). The honorable and federally indicted Texas Attorney General Ken Paxton issued a statement saying the administration must be “extremely clear” and “explain how their actions do not add requirements to the law, as their letter claims.”
But aside from the sound input of an attorney general facing multiple counts of fraud, here’s the best part of the correspondence:
In the “Final Bulletin for Agency Good Guidance Practices,” the Office of Management and Budget stated that “given their legally nonbinding nature, significant guidance documents should not include mandatory language such as ‘‘shall,’’ ‘‘must,’’ ‘‘required’’ or ‘‘requirement[.]”2 By our count, your letter uses the word “must” 15 times, and the words “required” and “requirement” 10 times. Because of the mandatory language used in your letter, it is our understanding that you intend the letter to bind recipients of federal funding to compliance.
Heh. They totaled up the instances of “mandatory language”—genius! They’ve given the Departments of Education and Justice until May 24 to respond, seven days from when they sent the letter. But who’s counting?