A Former Regulator's Read of the 2024 Title IX Regulations
By now Title IX practitioners, who may not necessarily have started out as administrative lawyers, will be familiar with the principles of rule interpretation in light of the many pages in the federal register entries for the 2020 and 2024 regulations.
June 06, 2024 at 11:47 AM
7 minute read
The revision of the Title IX regulations by the U.S. Department of Education on April 19 sparked a number of news and legal articles immediately after their release. As a former regulatory officer responsible for drafting (state-level) education regulations and responding to public comments, I read many articles about regulations that I have previously worked on. Many of them provided broad strokes about what the quoted individuals believe the regulations do, without telling you what the regulations say. This may be enough for the general public. But for legal practitioners, the text of the rule (not the individual impressions of readers) is the first step for interpreting it. See Consol Pennsylvania Coal Company, LLC v. Federal Mine Safety and Health Review Commission, 941 F.3d 95 (3rd Cir. 2019) ("Our pole star is the principle that, if a statute or rule is unambiguous, we must give effect to its plain meaning") (citing Kisor v. Wilkie, 588 U.S. 558 (2019)). If that fails, the beautiful thing about regulations is that commenters write in, and the regulators must explain and respond to "relevant" and "significant" public comments, "which, if true … would require a change in an agency's proposed rule." See American Mining Congress v. U.S. Environmental Protection Agency (EPA), 907 F.2d 1179 (D.C. Cir. 1998); Public Citizen v. Federal Aviation Administration (FAA), 988 F.2d 186 (D.C. Cir. 1993). Thus, the text issued by the regulator usually provides a roadmap to understand how or why the rule was drafted in a particular way.
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