The Title IX debate grows.

Christine Brennan weighs in and trashes the Bush administration.

Julie Foudy, a member of the president's now-disbanded commission, is flummoxed. "I can hear it now," she said. "'We lost a women's team because the e-mail survey got stuck in my spam folder for six months.'"

Senator Hilary Clinton is urging the administration to reconsider. (And who has more influence with Bush than Hilary?)

The LA Times and the Washington Post each publish their first article on the new rules.

In the Times, the DOE takes a new tack and argues that the new rules really actually strengthen Title IX. If anything, said James Manning, who oversees the OCR, the government "is raising the bar for using surveys."

In the Post, the DOE explains why it made the change without public comment: spokeswoman Susan Aspey said public consultation was "not required" as "this is not a policy change."

Hmmmm... doesn't the APA require notice and an opportunity for public comment before a federal agency enacts a proposed rule? Is that why the DOE is so insistent that this isn't really a new rule?

I think I smell a litigation strategy here...

UPDATE: The APA requires notice and comment for rulemaking by federal agencies. The issuance of mere "interpretive rules," however, is exempted from the requirement.

Agencies want to avoid scrutiny and cost, so they call decisions "interpretive rules." Adverse parties want a voice and want to slow things down, so they call the decisions "legislative rules." Litigation ensues.

As Judge Posner has said,

Distinguishing between a "legislative" rule, to which the notice and comment provisions of the Act apply, and an interpretive rule, to which these provisions do not apply, is often very difficult--and often very important to regulated firms, the public, and the agency.

I really don't know which side of the line the recent decision falls on. I'll try to do a little research later today to figure it out.

Also, over in comments at Off Wing, Jim McCarthy (who is intimately involved with this issue) says that Myles Brand and the NWLC are being hypocritical by complaining that they were excluded from the debate. "What’s especially galling about the NWLC’s complaint that the clarification was done behind closed doors is that that’s exactly how the three part test was implemented in the first place."

ANOTHER UPDATE: Greg at the Sports Law Blog has more. And at the Volokh Conspiracy, Juan has some thoughts.