Whatever one’s views about the policy judgments the Department of Education made in its Title IX sexual harassment rule, the process the Department used in promulgating its rule represents the best of administrative decision making. Rather than using unreviewable guidance documents and the threat of lost federal funding as cudgels to force schools to conform to the Department’s preconceived policy preferences, the Department instead opted to promulgate regulations after an exhaustive, multi-year effort to solicit and account for public comments reflecting a wide variety of perspectives. The Rule’s preamble devotes hundreds of pages to a reasoned discussion of the policy tradeoffs involved and the evidence and arguments offered in over 124,000 comments. Given the Rule’s importance and controversial subject matter, it was inevitable that some would be dissatisfied with any approach the Department ultimately adopted. But to accept Plaintiffs’ invitation to turn such disagreement into a basis for throwing out the Rule would send a troubling message to administrative agencies tasked with making rules that touch upon politically charged topics: don’t bother. The Department deserves praise for opting to do the hard work that was involved in promulgating these most important regulations in its history, and Plaintiffs do not come close to making a persuasive argument for setting aside the Rule under the deferential standard that applies under the Administrative Procedure Act.
The full Motion for Summary Judgement can be found here.