Title IX Emerges as Top Obstacle to Higher Ed Law Deal

  • For the past two years, Senator Lamar Alexander of Tennessee, has worked towards a goal of producing new landmark Higher Ed legislation. Although, reauthorization of the Higher Education Act never occurred last year and with Congress in August recess the deal will likely not come together any time soon.
  • One of the biggest issues in the negotiations is addressing how colleges should handle complaints of sexual misconduct on campus. Specifically in regards to how language addressing live hearings for campus proceedings and cross-examination rights for accused students will fit into the bill.
  • Federal guidance under the Obama administration discouraged cross-examination of complainants, but the Trump administration is proposing to require colleges to allow it.
  • 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.
  • A Democratic committee aide said campus sexual misconduct is one of the biggest challenges to reaching a deal on HEA reauthorization and “any proposal, any solution that has the potential to re-traumatize survivors is not something she’s going to support.”
  • Shiwali Patel, senior counsel for education at the National Women’s Law Center, and her group have 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?”
  • Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, also an advocate for cross-examination rights for accused students, said lawmakers will have to reckon with recent court rulings on due process issues.