Dive Brief:

• The public comment period for the Education Department’s proposed Title IX overhaul closed Wednesday night, with more than 100,000 comments filed since the draft rules were posted on Nov. 29.
• While the department has said the rewrite intends to give colleges more structure around how they are expected to respond to sexual misconduct allegations involving their campus community, critics say they remove too much accountability and in some cases are unclear.
• The bevy of comments varies in sentiment, with NPR reporting that those submitted online tend to oppose the proposal. That could in part be due to grassroots efforts by activist groups opposing the proposal to encourage people to comment.

Dive Insight:

The proposed Title IX rewrite is "the most controversial regulatory undertaking" in the federal agency's history, Terry Hartle, senior vice president at the American Council on Education, told The Washington Post this week.

And it comes amid a growing focus on accountability around how colleges and universities address allegations of sexual misconduct within their campus communities. While some say Obama-era Title IX guidance was too broad and constituted a federal overreach, not all higher ed leaders agree with the current administration’s approach.

In a 33-page comment, lobbying group ACE pushed back on several areas of the proposal that seeks to govern the way in which colleges must respond to sexual misconduct allegations, such as through live hearings that include cross-examinations.

"Colleges and universities are not law enforcement agencies or courts," the group said, adding that the proposal "relies on formal legal procedures and concepts" that are "wildly inappropriate and infeasible in an educational setting." Several other universities have pushed back on what some call "courtroom-like" processes.

Instead, ACE offers, colleges should be granted flexibility to address each case individually.

The group also criticized the use of the term "due process" in a college setting, saying "the type and amount of process required of colleges in these settings is far less than the process due in a criminal trial." ACE asked the Ed Department to replace the term "due process" with "fair process" that it says "better captures the evenhandedness and equitable treatment that the Department and institutions both seek."

The comment also addresses questions over which cases colleges can address under Title IX. The proposed rules say a formal complaint is required to trigger Title IX grievance procedures, but ACE recommends the Ed Department explicitly allow colleges to take action in cases in which they've heard reports of sexual harassment but there are no formal complaints. 

ACE did note some areas that it said will help institutions address sexual harassment. Among them, giving victims more flexible avenues for addressing their claim and clarifying that colleges can remove a respondent from campus if there is a health or safety threat. It also applauded the removal of the 60-day window to address claims, saying it will prevent colleges from writing off older complaints and allow them to work better with law enforcement agencies.