The Tactics of Title IX
R. Shep Melnick’s new volume, The Transformation of Title IX: Regulating Gender Equality in Education (Brookings 2018) recounts the startling expansion of the scope of Title IX in the decades since its enactment. Particularly notable is Melnick’s analysis of the methods by which the Office of Civil Rights (OCR) in the United States Department of Education engineered that transformation. One important tactic, Melnick argues, was to cultivate interest groups, most notably by carefully seeding Title IX offices in schools and universities across the country. Another was to abjure notice and comment rulemaking, instead promulgating controversial initiatives in ex cathedra, procedurally unencumbered, unilateral epistles (in recent years often introduced with the faux-familiar salutation “Dear Colleague”). Melnick argues that the agency should revert to standard notice and comment procedures. The OCR could thus legitimate its justifiable moves and recognize when it should walk back its more tendentious ones. But it may be the agency’s interest group strategy, rather than its unilateral approach to administrative procedure, that has cemented the transformation of Title IX. The Trump Administration recently initiated informal rulemakings in order to revise several of previous OCRs’ most aggressive “Dear Colleague” letters. But the Trump proposals, and the comments received about them, contemplate a Title IX every bit as transformed as the statute inherited from prior administrations.