NAICU Washington Update

Senate Holds Hearing on Campus Sexual Assault

April 10, 2019

As part of its efforts to reauthorize the Higher Education Act (HEA), the Senate Committee on Health, Education, Labor, and Pensions (HELP) held a hearing examining campus sexual assault. The bipartisan hearing primarily focused on educational institutions’ legal obligations under Title IX, the federal law that prohibits sex discrimination in education.
In his opening statement, Senator Lamar Alexander (R-TN), chairman of the Senate HELP Committee, declared that the hearing would focus on three issues: the requirement of due process, including cross-examination; the effect of geography on sexual assault; and the impact of the definition of sexual harassment. Although ranking member Senator Patty Murray (D-WA) thanked the chairman for continuing bipartisan talks on a comprehensive HEA reauthorization, she criticized the Trump Administration’s approach to campus sexual assault. According to Sen. Murray, Title IX’s prohibition against sexual harassment should be strengthened rather than weakened, and bullying and hazing must also be addressed in order to ensure campus safety.
During the hearing, committee members and witnesses debated several key issues related to campus sexual assault. In general, witnesses agreed that the current definition of sexual harassment should be maintained and that limiting the scope of sexual harassment only to on-campus interactions would be a disservice to students because of the close relationship between on-campus and off-campus activities. Witnesses also agreed that the same standard of evidence should be applied to sexual harassment as is applied to other types of misconduct and that requiring a clear and convincing standard of evidence would conflict with state laws.
The biggest area of disagreement during the hearing centered on whether institutions should be required to hold live disciplinary hearings that involve direct cross-examination. Some witnesses indicated that live hearings and direct cross-examination are an essential component to establishing the truthfulness of witness testimony, while others argued that such procedures may re-traumatize victims and will discourage students from reporting incidents of sexual assault.
As part of the debate about cross-examination, the hearing also examined alternative models that some colleges and universities rely upon during disciplinary proceedings. In testimony endorsed by NAICU, Anne Meehan, director of Government Relations for the American Council on Education, described how disciplinary procedures vary significantly among colleges and explained the benefits of non-hearing models. Reiterating many of the same themes contained in community comments submitted to the Department of Education on the proposed Title IX rules, Meehan emphasized that “colleges and universities are not courts,” a sentiment shared by other speakers at the hearing.

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