On November 26, People For the American Way joined allied organizations seeking an extension to the Title IX public comment period so that those most affected by Education Secretary Betsy DeVos’ attempt to gut existing sexual violence and harassment guidance would have adequate time to weigh in. On January 23, we renewed our concerns and called attention to the impact of the ongoing government shutdown as well as a recent temporary closure of the online comment portal. While the Department has since granted a two-day extension through January 30, we believe that at least 60 additional days of public comment are warranted. You can download our January 23 letter here.
Dear Secretary DeVos and Assistant Secretary Marcus,
The National Women’s Law Center and the undersigned 136 organizations request that the Department of Education respond to the attached November 26, 2018 letter sent by the National Women’s Law Center, and signed by 123 organizations, including many of the undersigned, and 231 individuals, requesting an extension of the comment period for the Notice of Proposed Rulemaking entitled Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (Title IX rules).1 We also reiterate the request in that letter to extend the comment period for at least 60 days beyond the currently scheduled public comment deadline.
The November 26 letter emphasized that the far-reaching and extensive nature of the Department’s proposed changes to the Title IX rules require a longer comment period to allow interested parties adequate time to prepare thorough analysis and input. It also highlighted the inopportune timing of the comment period. The proposed Title IX rules were released in the midst of school exams and winter holidays, a time when students and school administrators—the parties whose rights and obligations will be most affected by these proposed changes—are unable to devote the time required to develop meaningful comments. In addition to the many organizations and individuals who signed that letter for these reasons, approximately 8,950 people have joined the National Women’s Law Center’s online petition asking the Department for an extension. State officials, students, members of congress, and members of the public have also requested extensions to the comment period, with no response.2
The effects of the ongoing government shutdown provide yet another reason to extend the comment period. Since December 22, 2018, the partial government shutdown has impacted roughly a quarter of federal agencies. There has not been a definitive statement from administration officials as to whether public comments, or requests for agency action are being accepted and considered by agency officials during the shutdown. It has been unclear whether the main conduits for online public participation in rulemaking, regulations.gov and federalregister.gov, have been operating since that date due to a lapse in appropriations. When visiting federalregister.gov, visitors are confronted with a message stating that the site is not being “supported.” On January 16, 2019, regulations.gov was shut down completely3—with no notice or warning—leaving members of the public with no option to submit their comments electronically.4 While assurances were given that the website would become operational within 24 hours, members of the public continue to be left with the distinct impression that neither site is operational or being updated, and there remains significant confusion about whether both sites will remain available for accepting public comments throughout the government shutdown. Such widespread confusion will discourage the public from submitting comments.
The Department of Education’s recent decision to extend the deadline by two days because of regulation.gov’s inaccessibility is woefully inadequate and does not sufficiently respond to the many requests, including the November 26 letter, for a meaningful extension to the comment period. Further still, because the online comment portals are not being updated due to the shutdown, as of January 23 the comment deadline is still listed as January 28, which is most certainly causing public confusion and uncertainty about when the comment period actually ends. The Department’s proposed “fix” does nothing to alleviate public confusion and provide interested parties with the opportunity to participate in the rulemaking process.
To ensure that the public is not discouraged from commenting on the proposed Title IX rules due to the confusion created by the partial government shutdown, and to give those most affected by the proposed changes the opportunity to engage, we reiterate our request that the Department extend the notice-and-comment period by at least 60 days. For questions, please contact Shiwali Patel ([email protected]) or Margaret Hazuka ([email protected]) at the National Women’s Law Center at (202) 588-5180.