Tuesday Talk*: Does APA Notice And Comment Help With Title IX?

The proposed Title IX campus sex policing rules (which, I note, are not changes since the prior “rules” were “guidance” rather than regulations, having never gone through the Notice and Comment required by the Administrative Procedures Act, and were merely instituted by bureaucratic fiat during the Obama administration), are coming to the end of their comment period. So how’s that working out?

“F— you Betsy,” reads one comment.

“DeVos is a traitor to women everywhere,” another wrote. One chimed in with: “Ms DeVos: for the good of ALL women: PLEASE RESIGN!!!!!!!!!!!!!!!”

Well, not too bad, apparently. There are more substantive comments as well.

As of Friday, there were nearly 72,000 comments on the Education Department’s proposed rule. The proposal is controversial, viewed by critics as DeVos doing President Donald Trump’s bidding to protect sexual harassers, pointing to such accusations against the president. The comments are peppered with references to Supreme Court Justice Brett Kavanaugh, whose nomination was nearly tanked by sexual assault allegations.

Unsurprisingly, there was a huge push by advocacy and feminist groups for comments against the rules, Some provided templates, both for attorneys and “survivors” and their allies, since those cover all potential views. In a sense, the approach was democratic, with the side submitting the most comments hoping to sway the outcome. And advocacy groups on the other side of the issue did their best as well.

The notion behind Notice and Comment was to provide a mechanism for people to present, perhaps argue, their reasoning for being for or against a regulation. In a perfect world, the agency would be sufficiently open-minded to consider the arguments and, if they were persuasive and compelling, adjust accordingly. But this time?

But the personal animus toward the Title IX proposal makes it stand out.

“We don’t live in normal times so it makes perfect sense that this is not normal,” said Barmak Nassirian, director offederal relations and policy analysis at the American Association of State Colleges and Universities. He said historically “you were looking at comments that were at most in the dozens.”

“The Title IX stuff transcends all that,” he said. “It’s obviously one of those issues that people have very personal feelings about, and add to that it’s the Trump administration.”

One of the most serious complaints about the 2011 Dear Colleague Letter and its progeny was that it was unlawful rulemaking under the guise of “guidance,” a radical invention by two unelected bureaucrats who studiously chose not to comply with the law while threatening colleges with the loss of federal funds, and very public announcements of “investigations” for their failure to address rape on campus. It was unlawful. They didn’t care. And they got away with it.

But as the Notice and Comment period comes to an end, does it matter? Are the comments helpful or merely a product of how many outraged people are sufficiently moved to scream into the void about their feelings? If these comments contribute nothing new, little of substance, then what purpose is served going through them, but for the fact that the law says the agency should?

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Tuesday Talk*: Does APA Notice And Comment Help With Title IX? curated from Simple Justice