They quote the Bible, W. Somerset Maugham, Jimi Hendrix. They use MLA citations and footnotes, or write nothing but a single sentence. Many mention sexual-assault scandals — Larry Nassar at Michigan State University, or Richard Strauss at Ohio State University.
More than 50,000 people and counting have written to decry, praise, or try to modify the Education Department’s proposed overhaul of Title IX, according to the proposal’s docket.
Betsy DeVos, the education secretary, triggered almost immediate controversy in her campaign to refashion Obama-era guidance on the gender-equity law, which affects colleges that receive federal funding. After rescinding key parts of a seven-year-old enforcement framework and replacing them with interim guidance, the department in November released its formal plan to reinforce the rights of the accused and relax colleges’ obligations to investigate cases.
Now that those regulations are open for public comments, the responses have poured in.
Many commenters describe their own experiences of sexual assault. Students, faculty members, and former academics use the space to tell harrowing stories that are months, years, or decades old.
Others say they were falsely accused, and welcome changes that they view as reinforcing due process.
The proposed rules would roll back a raft of Obama-era guidelines. They narrow both the definition of sexual harassment and the route by which it can be formally reported. They provide accused people the right to cross-examine their accusers through an adviser. They also allow colleges to raise their standards of proof, to resolve complaints through less-formal channels like mediation, and to limit investigations to cases that happen on campus.
More than 5,700 comments are publicly searchable as of Friday. A brief review of them shows how the public, and some academics, have filtered the monthslong debates around DeVos’s campaign.
Due (and Efficient) Process
DeVos’s first hints of a Title IX overhaul drew support from due-process advocates and students who said they had been falsely accused of sexual misconduct.
Many supporters of the rules who choose to name themselves in public comments cite personal experiences with proceedings gone awry.
Reginald L. Robinson, a professor of law at Howard University, briefly made headlines when a university Title IX investigation found that one of his exam questions, a hypothetical about Brazilian waxing, constituted harassment. (A federal judge dismissed some of Robinson’s claims last month after he sued Howard, a decision Robinson said he would appeal.)
“Had strong due process protections been in place,” Robinson wrote in a public comment, “Howard would have been required to show me the actual words of the two female students who made these allegations against me. Moreover, I would have been able to cross examine them and their factual allegations.” (Robinson did not respond to a request for comment.)
The Foundation for Individual Rights in Education, a free-speech advocacy group that briefly took up Robinson’s case, has supported the department’s changes on the grounds of strengthening due process.
“The accused can have their lives ruined by a false claim. Many have,” wrote A. Dwayne Ball, an associate professor emeritus of marketing at the University of Nebraska at Lincoln, who supports the changes. Although “universities have no business setting up court systems for serious crimes,” he wrote, “the accused should be entitled to all the protections afforded in a proper court.”
But supporters of the rules aren’t the only ones to cite due process. Opponents, some in form letters, argue that the changes would deny harassment victims due process by exposing them to “retraumatizing investigations” that can be drawn out “indefinitely.”
And Colleen M. Opal, an administrator at the University of Iowa’s college of business who contributed a comment, said in an interview that the talk about due process is a “red herring.”
“University judicial proceedings are not courts of law where due process and ‘beyond a reasonable doubt’ are the guiding principles,” she wrote in her comment.
The department justified its new rules in part by pointing to a figure from KC Johnson, a professor of history at Brooklyn College who has been a vocal critic of the Obama-era Title IX framework. Johnson has written that more than 200 accused students have sued colleges for allegedly violating due process (in an email, Johnson said the current number is 271 federal lawsuits, and around 100 at the state level). As part of a routine cost analysis, the department also said the rules would lower the average number of investigations by 39 percent, saving colleges money.
Other experts, though, have said that the new rules are unlikely to lower costs. The new rules introduce “all sorts of gray space for campuses” and “could easily lead to a flood of litigation,” Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, told The Chronicle in November.
A Wave of Opposition
Many of the comments have come from a wave of grass-roots organizing, Politico reported, as students and faculty members at campuses across the country have organized comment-writing events to voice their opposition.
Many come in the form of standardized letters provided by advocacy organizations that oppose all of the changes. Sometimes commenters add personal details to those templates.
But organizers of one comment-writing event warned against using form letters or boilerplate text. About 120 people met in early December in a law-school lecture hall at the University of Michigan at Ann Arbor, writing their submissions over Middle Eastern food, said Anna Kirkland, a professor of women’s studies and the director of the Institute for Research on Women and Gender.
The organizers answered questions about the regulations and explained why writing public comments is important, Kirkland said. Telling your story and how you feel in your own words is more effective than using duplicate language, they said.
Kirkland, a contributor to a major report on sexual harassment released this June by the National Academies of Sciences, Engineering, and Medicine, wrote her own letter while keeping an eye on her 11-year-old son, who had tagged along.
“The new rules will propel education policy against the weight of social scientific evidence about how sexual assault on college campuses happen and how best to handle them,” she wrote.
Other Approaches?
Kirkland didn’t oppose every element of the proposed rules. “I support the move towards greater informality in adjudications, however,” she wrote in her public comment, referring to options like mediation, “because our research clearly showed that victims want more informal options with less mandatory reporting. The fact that the definition is so much more narrow, however, limits the reach of the rule.”
This is where Kirkland tried to “tread a careful line” with the rules, she said in an interview. A better framework would be “greater informality plus a very wide definition” of sex discrimination, in which smaller proceedings can match smaller offenses, she said.
“We can’t forget that people can be falsely accused, and we need to have the same level of protection,” she said. “If somebody wants an adversarial process, it should be full and fair.” But not every offense needs to be litigated in a trial-like setting.
The new rules lack that nuance, she said. Instead, DeVos’s rules mismatch the most serious assaults with more-informal adjudication.
And John F. Banzhaf III, a professor of law at George Washington University, used the comment space to promote the idea of outsourcing investigations from colleges to “regional centers,” a solution DeVos and sexual-assault-prevention advocates alike have floated before.
The new regulations will remain open for public comment through January 28, 2019.
It’s unclear how much those alternative proposals, or the comments in general, will affect the final regulations.
Since the 2011 guidance, colleges have hired Title IX coordinators and reshaped bureaucracies. The Education Department’s Office for Civil Rights has investigated more than 500 cases in which colleges may have mishandled reports of sexual misconduct. More than 300 cases remain open.
After the department moved to scrap Obama-era guidance, many Title IX coordinators told The Chronicle they would keep the procedures they had in place, including the existing standard of evidence, though some of them welcomed the new guidance’s allowance of longer investigation periods.
Many commenters, in any case, thanked the department for providing a chance to share their views.
Some weren’t so sanguine. “I doubt anyone relevant is reading this anyway,” wrote one student. “Writing a letter so insignificant is all I feel I can do sometimes.”
Follow Steven Johnson on Twitter at @stetyjohn, or email him at steve.johnson@chronicle.
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