Abstract
This comment was submitted by Nancy Chi Cantalupo to the U.S. Department of Education (ED) in connection with the public hearings announced in ED's letter regarding its comprehensive review implementing President Biden’s Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. (The Executive Order can be found at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-guaranteeing-an-educational-environment-free-from-discrimination-on-the-basis-of-sex-including-sexual-orientation-or-gender-identity/ and ED's letter at https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=.) This comment includes a cover memorandum and six attached documents collectively demonstrating: (1) how the substance regarding sexual harassment in the Title IX regulations that resulted from a rulemaking conducted by the previous administration from November 2018 through May 2020 violate Title IX itself; and (2) how the process the previous administration used to engage in that rulemaking violated the Administrative Procedures Act. Because of these violations, Professor Cantalupo argues that ED should conduct a new rulemaking, propose rules that fulfill Title IX’s purposes, and give the feedback of the American public, including by those members with appropriate expertise and significant stakes in the final regulations, the serious consideration that it is due under the Administrative Procedures Act. The six attached documents include: Attachment 1: Cantalupo November 2019 Annotated Keynote Address, available at http://ssrn.com/abstract=3870795 Attachment 2: a copy of TITLE IX & THE PREPONDERANCE OF THE EVIDENCE: A WHITE PAPER, signed by 116 law professors Attachment 3: a copy of Cantalupo Declaration (typos corrected) Attachment 4: a copy of Comment in 2018-2020 rulemaking, filed by 93 law professors Attachment 5: Law Professor Amicus Brief in VRLC et al. legal challenge, available at https://www.hwglaw.com/hwg-assists-27-lawprofessors- with-amicus-brief-challenging-title-ixregulations/ Attachment 6: a copy of Law Professor Amicus Brief in Multistate AG legal challenge
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