Over the past two years, Senator Lamar Alexander of Tennessee, chairman of the Senate Education Committee, has set ambitious goals to produce landmark new higher education legislation.
But lawmakers were never close to reaching an agreement on the reauthorization of the higher education law last year. And as the August holidays begin this week, there are few signs of a deal coming up.
One of the biggest sticking points in the negotiations, according to several people familiar with the discussions, is how colleges should handle complaints of sexual misconduct on campus. Specifically, committee members are discussing how language regarding live hearings for on-campus proceedings and the rights of cross-examination of accused students should be included in a bill. Federal guidelines under the Obama administration discouraged cross-examination of complainants, but a Trump administration proposal would require colleges to allow it.
The question 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 the negotiations for a new HEA.
A Democratic committee aide acknowledged that sexual misconduct on campus is one of the biggest challenges in reaching an agreement on the HEA reauthorization. The aide said that the goal of Washington Senator Patty Murray, the leading Democrat on the education committee, was to find the creation of a fair process that would not re-traumatize survivors.
“Any proposal, any solution that has the potential to re-traumatize survivors is not something she will support,” the assistant 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 away.
On top of those talks, federal regulations on dealing with sexual misconduct on campuses are expected to be finalized by the Trump administration later this fall. Recent search decisions, meanwhile, criticized the colleges for not having respected due process standards in Title IX proceedings.
A rule proposal released by Education Secretary Betsy DeVos last year would require colleges to allow students, through a lawyer, to cross-examine their accusers. Ensuring that accused students have the opportunity to question the allegations against them has been a priority many champions of due process. Advocates for survivors of sexual assault, however, Argue that cross-examination could discourage complainants from coming forward. And college groups have warned that imposing a requirement for live hearings for all misconduct would create a quasi-legal system on campuses and create a “cottage industry” of student advisers to assist with those hearings.
A decision by the United States Court of Appeals for the Sixth Circuit concluded last year that colleges must allow students accused of sexual assault, or their representatives, to question their accusers. Some survivor advocates argue that other court decisions make it clear that students accused of misconduct are not entitled to a process modeled on the criminal justice system. But the ruling has given new impetus to groups arguing for more due process protections.
Alexander’s office did not comment on the HEA discussions. But he made due process requirements, including cross-examination, a primary focus of an audience on campus sexual misconduct policies in April.
Title IX is not the only major challenge for negotiators. Lawmakers on both sides of the aisle have indicated they are eager to add new accountability standards for colleges. What these look like is far from settled, however. Alexander proposed to keep all higher education programs to the same loan repayment standards. Democrats like Connecticut Senator Chris Murphy have advocated for rules that take into account the low-income populations served by colleges.
Negotiators will also need to determine how a new higher education law will address college affordability. Murray said earlier this year that she wanted new law that included a state-federal partnership to increase funding for higher education institutions.
But people connected to the HEA talks say Title IX could be the biggest obstacle to a deal. In a move that seemed to signal the difficulties surrounding the issue, Alexander and Murray formed a bipartisan Title IX task force earlier this summer, a development first reported by the Bloomberg government.
Shiwali Patel, senior education advisor at the National Women’s Law Center, said the group was gravely concerned about HEA legislation requiring a single process for all campuses to resolve complaints of sexual misconduct.
“These are not courtrooms,” she said. “How are schools going to ensure that there are meaningful protections against inappropriate questions or blaming victims?” “
Patel said live hearings into misconduct allegations can be conducted properly with certain safeguards. Some, for example, have argued that allowing a third party to ask questions – as the proposed settlement allows – could allay fears of re-traumatizing survivors. But Patel said not all colleges have the resources or the capacity to effectively hold live hearings.
The Obama administration has told colleges in federal guidelines that they can choose to use a single investigator model for Title IX cases, in which an official interviews both parties involved and collects other evidence before proceeding. make a decision on the alleged misconduct or present panel of campus officials. The proposed DeVos rule would ban this model and require live hearings.
Joe Cohn, legislative and policy director of the Foundation for Individual Rights in Education, one of the biggest supporters of cross-examination rights for accused students, said lawmakers will need to heed recent court rulings on the issues due process.
“The courts have recognized the importance of more procedural protections than the norm on college campuses,” he said.
