Friday, September 28, 2018

Vast Majority of Public Comments Supported 2011 DCL, Research Shows

Interesting and helpful research by a Title IX expert and law professor Nancy Chi Cantalupo and colleagues, posted recently on SSRN, documents overwhelming public support for the Obama Administration's 2011 Dear Colleague Letter, which the current administration has repealed and is in the process of replacing.  The researchers examining public comments the Department of Education received in 2017 in response to a call for public comments on Executive Order 13777 (establishing a federal policy to “alleviate unnecessary regulatory burdens”).  Of the comments received, 12,000 specifically addressed Title IX. The researchers' review and coding of those comments generated findings like these:
● 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.

● Even accounting for the fact that many pro-DCL commenters used the same core language, the vast majority of *unique* comments (92%) still supported Title IX.

● Nearly all of the commenters who wrote in support of the DCL and Title IX identified themselves by name. In contrast, of the 137 comments that opposed Title IX, 44.5 percent (n: 61) were posted anonymously.

● Besides comments from individuals, the agency also received comments from two non-profit organizations that had 38,713 and 10,190 signatories respectively, which bring the total expressions of support for Title IX and the DCL to 60,796, in marked contrast to the 137 comments in opposition.
To be sure, comment periods are not a pubic referendum. Agencies are not required to tally the number of comments and adopt the position of the majority.  But agencies are required to express a cogent rationale for their policy choices. If an agency states that it is reversing an existing policy because that policy is unworkable and unpopular, as Secretary DeVos has said, and that statement is defied by an overwhelming record of evidence to the contrary, that agency might not be able to successfully defend that reversal in court if it is challenged.