A majority of Americans surveyed have no knowledge of upcoming changes to how colleges must respond to sexual misconduct on campus, according to a new poll conducted by Fairleigh Dickinson University and sponsored by a law firm known for representing students accused of sexual misconduct.
Sixty percent of the survey’s 1,003 respondents, all of whom were over 18 years old, said they had heard or read “nothing at all” about new regulations issued by the United States Department of Education that will govern the policies and procedures used by colleges and universities for handling sexual misconduct complaints. The new procedures fall under Title IX of the Education Amendments of 1972, the law that prohibits sex discrimination at federally funded institutions, and they must be implemented by Aug. 14.
The survey respondents were interviewed from May 20 to 25, weeks after the regulations were issued on May 6. The survey is believed to be the first to gauge the opinions of a representative sample of a cross-section of Americans on the new Title IX policies.
Krista Jenkins, professor of government and politics and executive director of Fairleigh Dickinson Poll, the university's public research center, said the lacking public awareness about the changes may be due to the regulations being issued, and the poll conducted, in the midst of "a news environment that’s been dominated by COVID."
Sage Carson, manager for Know Your IX, a national advocacy organization for survivors of sexual violence on campus, said Education Secretary Betsy DeVos’s timing was to blame.
“It’s been extremely difficult to get folks to talk about this issue and organize,” Carson said. “They were simply trying to shove through a bad rule when no one’s paying attention.”
An overwhelming majority of the survey respondents, 84 percent, said all colleges should have the “same legal protections” for students when a report of sexual assault is made, the survey found. Respondents were split when asked whether campus is a "difficult place" for victims of sexual assault to safely meet the person they are accusing or if colleges "need to provide the opportunity for those accused to meet their accuser." Forty-three percent said that colleges are a "difficult place" for such meetings, while 47 percent said colleges need to provide them.
Jenkins, who helped develop the survey, said while most survey respondents indicated they support consistent policies and procedures among all higher ed institutions, they were conflicted about what the procedures should entail.
“What those same legal protections look like become a source of uncertainty,” Jenkins said.
The respondents were also asked if they are in favor of colleges providing a live hearing and cross-examination process with attorneys present, which has been one of the most controversial aspects of the new requirements. Responses were mixed on whether an in-person or remote hearing would be appropriate. Sixty-two percent favored an in-person option, whereas 67 percent favored a remote meeting.
“That’s one of the most hotly contested issues,” Andrew Miltenberg, managing partner at Nesenoff & Miltenberg, the firm that sponsored the poll, said of the hearing requirement. “On one hand, you don’t want to turn every sexual assault hearing into someone towering over and berating the complainant. On the other hand, there has to be a manner in how you can, in real time, question statements made by a complainant or witness.”
Carson also questioned the potential biases of a survey sponsored by advocates for students accused of sexual misconduct. She said the questions provided a very narrow picture of how Title IX policies and procedures would change under the new regulations. She cited as examples new limitations on colleges’ responsibility to respond to sexual misconduct that occurs off campus, and no time limitations to respond to complaints. (Guidance issued by the Obama administration in 2011 said that the average investigation into a report of sexual misconduct should take 60 days.) Carson said these aspects of the new regulations will damage the rights of survivors, but they were not mentioned in the survey.
Elizabeth Tang, counsel for education and workplace justice for the National Women's Law Center, a legal advocacy group for women's equality, said in an email that the outpouring of public comments posted on the website of the Federal Register during the comment phase of the new regulations showed "strong opposition" to the changes over all. When DeVos repealed the Obama administration's 2011 guidance, 97 percent of the comments explicitly asked the department to reverse the decision, Tang said.
"The poll fails to address the harmful scope of the new rule," she wrote of the Fairleigh Dickinson survey. "By focusing on live cross-examination, the poll fails to address at all that the new rule contains numerous harmful provisions that will require schools to dismiss many reports of sexual harassment."
Shep Melnick, professor of political science at Boston College and author of The Transformation of Title IX: Regulating Gender Equality in Education, said the survey questions “didn’t go to the heart of the most important issues.” He said he was unaware of any other public opinion polls on the new regulations and that more research is needed. He also noted the difficulty of gauging public support for regulations outlined in 2,000 pages.
“You want to have some sophistication about what reflects the policy choices, but it might lead more people to say, ‘I don’t know,’” Melnick said.
The survey asked respondents to consider a scenario where a loved one was sexually assaulted on campus and whether the respondents would prefer an in-person live hearing and cross-examination or a remote process “so that they would not have to be face-to-face.” The results for each option were split over all, but women were 13 percent less likely to support the in-person hearing than men, which Jenkins said was a statistically significant difference.
Carson said it’s not surprising that more women would favor a process that doesn’t put victims face-to-face with their alleged abuser. Know Your IX, along with other survivors’ and women’s rights groups and the American Civil Liberties Union, argues the new regulations are discriminatory against women, and they are suing the Department of Education to block them from being implemented.
“Many, many women experience sexual violence or harassment in their lifetime,” Carson said. “Often one of our largest fears is having to come face-to-face with the person that has caused harm to us … They change jobs, classes, friend groups, just to avoid running in face-to-face with their abuser.”
Although the survey found such gender differences in opinions, the results did not have stark differences when it came to the political affiliations of respondents.
Melnick noted that responses from self-identified Democrats and Republicans were surprisingly similar given how polarized political leaders are over how colleges respond to campus sexual misconduct.
While 58 percent of Democrats said they supported the in-person live hearing process, 68 percent of Republicans did, according to the survey.
Democratic leaders have taken a strong stance against the new regulations. For example, 18 Democratic attorneys general recently filed a lawsuit challenging the new regulations. Many Democratic members of Congress have also spoken out against the regulations in recent months, and some urged DeVos to hold off on issuing the rule until the pandemic was under control.
“Among the political elites, there’s a very strong polarization on this,” Melnick said. But among the general public, “It doesn’t seem to go down very far. By that, I was surprised.”