The Department of Education’s proposed sexual harassment rules: Looking beyond the rhetoric

S E E D E D   C O N T E N T

In November of last year, the U.S. Department of Education released its long-awaited proposed regulations on sexual harassment. More than a year earlier, Secretary of Education Betsy DeVos had withdrawn the Obama administration’s controversial Title IX guidelines and promised to develop a fairer, more effective alternative. Criticizing her predecessors’ reliance on unilaterally announced “Dear Colleague Letters,” DeVos announced that the “era of rule by letters is over.” From now on, she vowed, the department would use the notice-and-comment rulemaking process mandated by the Administrative Procedure Act

After meeting with interest groups and engaging in negotiations with other agencies, the department published a After meeting with interest groups and engaging in negotiations with other agencies, the department published a  50-page document that laid out its initial position and invited comment on a variety of issues. The government shutdown forced the agency to extend the original Jan. 28 deadline for submitting comments until Jan. 30, but it could be further delayed as well. Given the thousands of comments already submitted, it will take many months for the department to analyze the response and consider modifications. Meanwhile, Democrats in the House have promised to take “bold, immediate action” to prevent the new rules from going into effect. The department’s final rules will inevitably be challenged in court. In other words, we ar