In 2018-2019, civil rights activists organized opposition to a Notice of Proposed Rulemaking, issued by then-Secretary of Education DeVos, designed to gut U.S. Department of Education Title IX enforcement regarding sexual harassment. Although an historic—and overwhelmingly antagonistic—124,000+ comments were filed, ED finalized the rules, without meaningful changes, and four legal challenges quickly followed, several pointing out the both strong and numerous opposing comments. These challenges relied on a particular “story” of the Administrative Procedures Act and its requirements for “notice and comment rulemakings.” That story maintains that the APA directly vested a “commenting power” in the American public as a check and balance empowering the public to stop agencies from following policies that have little to no democratic support. A competing technocratic, oligarchic “story” of rulemakings views the public’s commenting power as simply a way to funnel technical expertise to agencies, not an expression of Americans’ policy preferences. This story ignores and exacerbates socio-economic inequalities, especially those linked to gender and race, doubly excluding already politically marginalized groups from administrative lawmaking. Enter “mass commenting,” which includes “boilerplate comments” that ordinary people often use to exercise their commenting power but agencies discount, treating such comments, regardless of how many people filed them, as a single comment. This article explores how the DeVos rulemaking exposed inequalities and anti-democratic agency practices such as dismissal of legitimate mass comments. It urges agencies instead to adopt more democratic and less technocratic rulemaking procedures, at least for rulemakings implicating equal protection of the law.
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