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Litigation Is Likely For New Title IX Guidelines


Today the Department of Education closes public comment on proposed new rules for handling college campus sexual assault cases. The comments are coming in so fast the website is having trouble keeping up. Over the past two months, more than a hundred thousand comments have been logged. Secretary Betsy DeVos says the rule changes she's asking for will make the process more fair to the accused. Joining us to talk about this is NPR's Tovia Smith. Hi, Tovia.


SHAPIRO: OK, so it sounds like there's a last-minute rush to get comments in. What are people saying?

SMITH: Yes, the pace has really been picking up all week, so the website has been slow. People are getting error messages. And now advocates are already calling for an extension of the deadline. There's no word yet on that. But meantime, the comments keep coming in. They range really from long legal analyses to very personal and emotional stories from both sides. Some are thanking DeVos for beefing up protections for the accused, and others are expressing a lot of anger and anxiety, some writing really intimate descriptions of traumatic assaults and telling DeVos that these regulations will really make it harder for students to feel safe and for victims to get help.

SHAPIRO: Can you tell whether a majority of the comments are leaning one way or the other?

SMITH: Well, we don't have an official count, but it seems pretty clear that those in opposition outnumber those in support, at least online. And that has a lot to do with how activists have been mobilizing their people. Survivors' advocates especially have been running these big campaigns on social media and hosting comment-writing events, especially on college campuses.

SHAPIRO: I understand you went to one of those events. Tell us about it.

SMITH: Yeah, I went to Boston University where students got a - kind of a crash course in how to use a template that activists made, sort of a Mad Libs-style kind of thing to make submitting comments easier. And these students were writing about several things - for example, how the proposed rules would essentially let schools off the hook from having to automatically investigate certain cases, like if an assault happens in an off-campus apartment or if a student tells a coach about an assault instead of one of a few designated officials.

Another issue is how DeVos wants to narrow the definition of sexual harassment so that the only cases that would count would be those that are so severe they deny a student access to school activities. And one student I spoke to there, Julia Mullert, called that shocking.

JULIA MULLERT: Like, if you're at the point where you need to drop out of a class or stop going to class - I mean, you already have to take a hit to your education before they can do something about it. I mean, it's awful that it has to reach that point to be taken seriously.

SHAPIRO: Tovia, are you seeing the same kind of mobilization on the other side from people who support these proposed changes?

SMITH: On a much smaller scale. I spoke with Cynthia Garrett, who heads a group called FACE that represents accused students and their families. She says the new rules would make the system more fair by, for example, allowing schools to demand more evidence of misconduct before a student can be punished and by guaranteeing that accused students would be able to at least indirectly cross-examine their accuser. So Garrett has been encouraging comments mostly from those who say that they were victims of a biased system.

CYNTHIA GARRETT: Somebody that's expelled or suspended suffers greatly. I mean, they are suicidal.

SMITH: So now officials will have comments like that one and many, many, many more to read through. Presumably some combination of humans and machines will do the job. Then officials have to respond, explaining their reasoning for what they will or won't change. And this could take many months, even more with litigation expected to challenge these regulations. So it might be quite a while before any of these new rules take effect.

SHAPIRO: That's NPR's Tovia Smith. Thank you.

SMITH: Thanks, Ari. Transcript provided by NPR, Copyright NPR.

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Tovia Smith is an award-winning NPR National Correspondent based in Boston, who's spent more than three decades covering news around New England and beyond.