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 warned that 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.