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Inside Higher Education
Title IX a Sticking Point in Talks Over New Higher Ed Law
Resolving differences over sexual assault procedures, including
requirements for live hearings, emerges as one of the biggest
challenges for negotiating a reauthorization of the Higher Education
Act.
By Andrew Kreighbaum
August 6, 2019
For the past two years, Senator Lamar Alexander of Tennessee, the
chairman of the Senate education committee, has set ambitious goals for
producing new landmark higher ed legislation.
But lawmakers never came close to reaching an agreement on
reauthorization of the Higher Education Act last year. And as the
August recess begins this week, there’s little sign of a deal coming
together soon.
One of the biggest sticking points in negotiations, according to
several individuals with knowledge of discussions, is addressing how
colleges should handle complaints of sexual misconduct on campus.
Specifically, members of the committee are discussing how language
addressing live hearings for campus proceedings and cross-examination
rights for accused students should figure into a bill. Federal guidance
under the Obama administration discouraged cross-examination of
complainants, but a proposal from the Trump administration would
require colleges to allow it.
The issue has been among the most explosive pieces of the debate over
federal policy on campus sexual assault. And how Congress should
address it through legislation has become one of the most troubling
parts of negotiations over a new HEA law.
A Democratic committee aide acknowledged that campus sexual misconduct
is one of the biggest challenges to reaching a deal on HEA
reauthorization. The aide said the focus of Washington senator Patty
Murray, the ranking Democrat on the education committee, was finding
creating a fair process that wouldn't re-traumatize survivors.
"Any proposal, any solution that has the potential to re-traumatize
survivors is not something she's going to support," the aide said.
That could mean a number of options involving live hearings, although
the aide acknowledged that Title IX is one of the areas where
Republicans and Democrats are furthest apart.
Looming over those talks are federal regulations on campus handling of
sexual misconduct that are expected to be finalized by the Trump
administration later this fall. Recent court rulings, meanwhile, have
faulted colleges for not following due process standards in Title IX
proceedings.
A proposed rule released by Education Secretary Betsy DeVos last year
would require that colleges allow students, through an advocate, to
cross-examine their accusers. Ensuring accused students have an
opportunity to question the allegations made against them has been a
top priority of many due process champions. Advocates for sexual
assault survivors, though, argue that cross-examination could
discourage complainants from coming forward. And college groups have
warnedthat imposing a requirement for live hearings for all misconduct
cases would create a quasi-legal system on campuses and create a
"cottage industry" of student advisers to assist in those hearings.
A ruling from the U.S. Court of Appeals for the Sixth Circuit found
last year that colleges must allow students accused of sexual assault,
or their representatives, the chance to question their accusers. Some
survivor advocates argue that other court rulings are clear that
students accused of misconduct don't have the right to a process
modeled on the criminal justice system. But the ruling has added
impetus to groups arguing for more due process protections.
Alexander's office didn't comment on the HEA discussions. But he made
due process requirements, including cross-examination, a chief focus of
a hearing on campus sexual misconduct policies in April.
Title IX isn’t the only major challenge for negotiators. Lawmakers on
both sides of the aisle have indicated they’re eager to add new
accountability standards for colleges. What those look like is far from
settled, though. Alexander has proposed holding all higher ed programs
to the same loan repayment standards. Democrats like Connecticut
Senator Chris Murphy have argued for rules that account for the
low-income populations served by colleges.
Negotiators will also have to settle how a new higher ed law will
address college affordability. Murray said earlier this year she wanted
a new law to include a state-federal partnership to boost funding for
higher ed institutions.
But individuals plugged in to HEA discussions say Title IX could be the
biggest obstacle for a deal. In a move that appeared to signal the
difficulties surrounding the issue, Alexander and Murray earlier this
summer formed a bipartisan Title IX working group, a development first
reported by Bloomberg Government.
Shiwali Patel, senior counsel for education at the National Women’s Law
Center, said the group has serious concerns about HEA legislation
mandating a single process for all campuses to resolve complaints of
sexual misconduct.
“These aren’t courtrooms,” she said. “How are schools going to ensure
there are meaningful protections against inappropriate or
victim-blaming questions?”
Patel said live hearings on misconduct allegations can be conducted
properly with certain safeguards. Some, for example, have argued that
allowing a third party to ask questions -- as allowed in the proposed
regulations -- could address fears of re-traumatizing survivors. But
Patel said not all colleges have the resources or capacity to
effectively hold live hearings.
The Obama administration told colleges in federal guidance that they
could opt to use a single-investigator model for Title IX cases, in
which one official interviews both parties involved and collects other
evidence before either making a decision about the alleged misconduct
or presenting findings to a panel of campus officials. The proposed
DeVos rule would ban that model and mandate live hearings.
Joe Cohn, legislative and policy director at the Foundation for
Individual Rights in Education, one of the biggest proponents of
cross-examination rights for accused students, said lawmakers will have
to reckon with recent court rulings on due process issues.
“Courts have been recognizing the importance of more procedural
protections than has been the norm on college campuses,” he said.
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