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?

*Tuesday Talk rules apply.

29 thoughts on “Tuesday Talk*: Does APA Notice And Comment Help With Title IX?

  1. Oskar von Ahn

    Why in the world do you have comment boards for federal decision making?

    I hate the template answers/comments. We get those at work all the time. Most of ours are about saving the environment or investing in green funds. A half hour of answering those makes me want to buy a truck and start rolling coal.

    1. SHG Post author

      In a better world, comments would inform bureaucrats of how the plublic sees their actions and, perhaps, give them better insight into the problem. We don’t live in a better world.

      1. rojas

        Having a large stake in the proposed tariff and exceptions process I certainly hope all the effort is not going into a black hole somewhere.

      1. John Barleycorn


        Just protecting the demographics of my future investment. Duh!

        Will bend you over for at least 80K while acknowledging the hit and miss of inflating your Tuesday numbers.

        P.S. notice; I did not post up a video of the coffee guy jerking-off to a glossy adult comic book of Ronald and Nancy checking out Sandra and Antonin’s pubescent “tweets” via two editions in a 30 edition run.

      2. REvers

        Given the sheer numbers of people who get screwed by politicians, PornHub is a totally appropriate place to host the videos.

      3. ShootingHipster

        I searched PornHub for “Raw video of Canadian girlfriend” and all I got was 30 minutes of Ted Cruz.

  2. wilbur

    “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?”


    1. grberry

      If the comments here contribute nothing new, little of substance, then what purpose is served by sJG allowing us to make them?

  3. Keith

    I have always assumed that these comment periods were treated as more or less an “up-vote/down-vote” reddit style proxy.

    Have they ever produced significant or notable results?

    1. SHG Post author

      I assume on less controversial issues, where they get a half-dozen comments from “experts” (who are the only ones who bother to notice), they might have an impact.

      1. B. McLeod

        On the tax and finance side of things, various industry groups (and sometimes niche legal practice groups) write in with technical points that help to refine and clarify proposed rules. This crapstorm is the first instance I have ever seen where garden variety morons wrote in under the apparent impression that they were being asked for their personal opinions about the head of the agency.

  4. Peter

    Don’t even the most hateful screams and useless form comments provide some information about the extent and (especially) the character of public support or opposition? I have to imagine that using a form here is similar to sending form letters to legislators: it makes it clear to the recipient that you could only be bothered to copy-and-paste a form, not to offer any actual ideas. Maybe the quality of comments speaks to the weight their “side” should (or in this case shouldn’t) be given?

    1. Gregory Smith

      Both sides are going to put forward their own interpretation. Senate opponents of the reforms (led by Murray) demanded that DeVos not even go forward with the NPRM because comments submitted about the interim guidance were “overwhelmingly” opposed. But as has been reported in the media, something like 87% of those negative comments were copy and paste. So rest assured that Sen Murray and others will insist that the fact that 75000 of 85000 “comments” received were “DeVos Sux! lol!” means that the DoE needs to abandon its efforts to introduce reforms.

  5. szr

    This particular notice-and-comment farce probably serves no useful purpose beyond APA compliance. But I wouldn’t generalize about the value of notice-and-comment based on the Title IX imbroglio. This situation isn’t even close to the norm.

    Immigration regulations change fairly frequently, and practicing attorneys sometimes raise issues that prevent problems. For example, DOJ recently proposed revisions to an attorney form to require, among other things, a US address for an alien’s counsel. The problem is that a number of immigration lawyers live abroad, although they maintain bar membership in a US state. DOJ simply wasn’t aware that this change might deprive people of their counsel until notice-and-comment.

    I worry about what this Title IX notice-and-comment Götterdämmerung means for the process going forward. Immigration-related proposed changes already draw a growing number of crude-to-racist rants against immigrants. Are we looking at a future where useful comments become harder to find in the polluted lagoon of toxic political sludge?

  6. Jake

    I’d love to say “fuck yeah it (notice and comment periods) matters” but since we know that Trump and his appointees are not going to let a little thing like public opinion sway their foregone conclusions about how to govern, I’ll just drop the “yeah” & “matters”. And remind everyone how punchable Ajit Pai’s face looks.

    1. SHG Post author

      Remember, this isn’t a public referendum on the issue, a mistake too often made by the unwary, but informed argument or issues so that the agency exercises its presumptive expertise fully aware of all relevant substantive issues. And it was very gentlemanly of you to turn to Pai rather than DeVos. Nobody should call a woman’s face punchable. It would be very sexist.

      1. Jake

        Anyways, I say Pai because in his case we know that he ignored the consensus on net-neutrality once the Russians and bots were stripped out of the corpus of public comments. Orthogonal, I admit. But related.

        Also, are you assuming Pai can take a punch better than Devos? You’re the sexist!

        1. SHG Post author

          Boy, did this get saved by TT rules. Not a chance in hell I wouldn’t have trashed it as off-topic otherwise.

  7. Scarlet Pimpernel

    Since they are attempting to infringe upon a fundamental privacy right, I would hope that it wouldn’t be decided by popular vote.

    I do think it is rather ironic that the left can look at a long string of social and legal changes with their roots in sexual privacy rights and demand that the government do more to regulate them. I may be going down the rabbit hole, but the left seems like a far bigger threat to Roe V Wade and its legal foundation than the right at this moment.

    On a tangential but related note and in the spirit of Tuesday rules, I find it more than a little troubling that in order take classes at my local community college I must allow the state to regulate my marital interactions. i.e. no more randomly goosing the wife as she walks by or just grabbing and kissing he just because.

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