Widely Welcomed and Supported by the Public: A Report on the Title IX-Related Comments in the U.S. Department of Education's Executive Order 13777 Comment Call
9 California Law Review Online 71 (2019)
33 Pages Posted: 18 Oct 2018 Last revised: 23 Mar 2019
Date Written: September 25, 2018
This report reviews research that coded the content of the 16,376 comments filed with the U.S. Department of Education (ED) in response to ED’s call for public comments on Executive Order 13777 (establishing a federal policy to “alleviate unnecessary regulatory burdens”), which closed on September 22, 2017. This research focused on the 12,035 comments that addressed Title IX of the Educational Amendments of 1972 (Title IX) because ED announced, simultaneously with the last weeks of the comment period, that the Obama administration’s enforcement of Title IX was a “failed system” that had been “widely criticized,” leading ED to rescind the 2011 Dear Colleague Letter (2011 DCL) guidance document regarding sexual violence in schools. Based on what the 12,035 public comments in fact stated, this report concludes that the system of Title IX enforcement implemented by the Obama administration was in fact widely welcomed and supported by the public, the exact opposite of ED’s characterization regarding the extent of public support for this system in September 2017.
Researchers’ analysis of the 12,035 public comments addressing Title IX resulted in the following research findings:
Of the 12,035 public comments addressing Title IX, 99 percent (n: 11,893) of the commenters filed a comment in support of Title IX, with 97 percent of Title IX supporters (n: 11,528) specifically urging ED to uphold the 2011 Dear Colleague Letter: Sexual Violence (2011 DCL). Only one percent (n: 137) filed comments opposing Title IX, of which 90 percent (n: 123) specifically urged that ED rescind the 2011 DCL.
10,363 comments used the same core language, although 749 of these comments included unique language added by the individual commenter. If all of these 10,363 comments were counted as only one comment (including the 749 with unique individual additions), then, of the resulting 1,673 total comments, 92 percent supported Title IX and only 8 percent opposed Title IX.
Commenters who described themselves self-identified as attorneys; college/university professors (of multiple disciplines, including law); family members or friends of accused students or student victims/survivors; non-profit professionals; people who work in state Departments of Education, school principals; students accused and/or found responsible of sexually harassing/assaulting other students; teachers; therapists and counselors (including those working in schools and colleges or universities); U.S. veterans; and victims/survivors of sexual violence (both students and non-students).
Of the 11,893 comments that were filed in support of Title IX, 0.9 percent (n: 104) were posted anonymously. Of the 137 comments that opposed Title IX, 44.5 percent (n: 61) were posted anonymously.
Two non-profit organizations filed comments that represented individual members of the public who signed petitions or similar joint statements, including one comment representing 38,713 signatories to a petition and sixty comments representing 10,190 individuals in all 50 states, as well as the District of Columbia, U.S. territories, and commenters serving in the military, all in support of Title IX and the 2011 DCL.
When all the individual comments, as well as the petition and jointly-signed comments, are included, 60,796 expressions of support for Title IX were filed by members of the public, in marked contrast to the 137 comments in opposition.
Keywords: Sexual Harassment, Sexual Assault, Sexual Violence, Title IX, Administrative Agency Action, Notice and Comment Process, Office for Civil Rights, U.S. Department of Education
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