Betsy DeVos has withdrawn the 2011 Dear Colleague Letter as well as the 2014 Frequently Asked Questions document. In their place, she has issued “Interim Guidance.” DeVos has stated that she will replace this document with new regulations for schools, which will be established through what is known as a “notice and comment” process. Although notice and comment may sound boring and innocuous, it will have significant implications for students’ civil rights and federal enforcement of Title IX.
UPDATE: The Department of Education has announced that notice and comment will open in March 2018.
1. WHAT IS “NOTICE AND COMMENT” AND WHY DOES IT MATTER?
The Department of Education issues regulations, requirements with which schools must comply. Much like laws, these regulations are legally binding. The Department of Education solicits public input on proposed regulations through “notice and comment,” and it’s required to respond to this input when it issues final regulations. A court can strike down a regulation if the Department cannot properly explain its reasoning, or if the regulation itself is inconsistent with Title IX.
Because courts can strike down regulations that are insufficiently responsive to public input, writing a detailed comment is an important way for students and advocates to influence the Department of Education’s decision-making.
2. WHAT DOES THE NOTICE AND COMMENT PROCESS LOOK LIKE IN PRACTICE?
Notice and comment typically has four stages: a notice of proposed rulemaking (NPRM), a comment period, issuance of the final rule, and a 30-day delay in the date the rule goes into effect. The most important steps for our purposes are the NPRM and the comment period.
In order to kick off the notice and comment period, the Department of Education will publish a notice of proposed rulemaking requesting comments on the regulation. The notice will state the date by which all comments must be submitted.
Once the comment period opens, individuals and organizations may submit comments to the Department of Education through Regulations.gov. You should also send a copy of your submission to Know Your IX at info@knowyourIX.org.
As Regulations.gov notes, “There is no minimum or maximum length for an effective comment. The comment process is not a vote – one well supported comment is often more influential than a thousand form letters.” This means that thousands of comments can be less influential than one long and detailed comment.
3. HOW CAN I MAKE SURE THAT THE DEPARTMENT TAKES MY COMMENT SERIOUSLY?
Notice and comment is a technocratic process that favors well-resourced organizations, such as schools and expensive law firms. We’re writing this guide to help provided students and parents with the information that they need to write a thoughtful comment that gets the Department’s attention and levels the playing field.
Until we see a notice of proposed rulemaking, we can’t know exactly what the contents of the proposal will be. We encourage students and parents to start drafting potential topics for comment now. When the comment period opens, Know Your IX will provide further information online.
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