In a “sharply worded missive,” two Republican Senators criticized the Department of Education last week for process it used to develop the guidance contained in the 2011 Dear Colleague Letter that clarifies universities’ obligations under Title IX to address campus sexual assault.
As I told the reporter from Inside Higher Ed, I believe that it was legal for the Department to consider it guidance exempt from the notice-and-comment procedures that agencies have to follow when they promulgate binding regulations. The Administrative Procedure Act, which sets those requirements, exempts interpretations of existing regulations from that process, and the Dear Colleague Letter qualifies as an interpretation of Title IX’s regulatory requirement that institutions provide a “prompt and equitable” response to reports of sexual violence.
“The letter takes those words — ‘prompt and equitable response’ — and gives them a specific meaning,” [I] said. “The department already had the enforcement authority to bring enforcement action against an institution for violating Title IX, because that regulation did go through notice and comment in the 1970s. The department could have chosen to exercise that option for the guidance, as well, but that takes a lot of time. All the letter does is say to colleges, ‘You’re not getting the message, so we’re going to tell you in advance what the compliance standard is, so if you want to avoid an enforcement action, this is how you do it.’ It’s important to get that message out there as quickly as possible.”
But the advantage of expediency comes with a tradeoff, which is that guidance documents issued without notice-and-comment procedures can more easily be revoked by a subsequent administration. For example, a controversial 2005 guidance document that permitted institutions to use interest surveys to with Title IX’s requirement to provide equitable opportunities in athletics was revoked in 2010 by the current administration. Because the 2005 guidance did not use notice-and-comment procedures, neither did the 2010 revocation. As I told IHE, “That’s the trade-off. Easy come, easy go.”