[Congressional Record Volume 165, Number 72 (Thursday, May 2, 2019)]
[Senate]
[Pages S2602-S2603]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HIGHER EDUCATION ACT
Mr. ALEXANDER. Mr. President, I ask unanimous consent that a copy of
my opening statement at the Senate Health Education, Labor, and
Pensions Committee be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Reauthorizing HEA: Addressing Campus Sexual Assault and Ensuring
Student Safety and Rights
Mr. ALEXANDER. The Senate Committee on Health, Education,
Labor and Pensions will please come to order. Senator Murray
and I will each have an opening statement, and then we will
introduce the witnesses. After the witnesses' testimony,
senators will each have 5 minutes of questions.
Today's hearing will focus on how colleges and universities
should respond to accusations of sexual assault. This is an
important and difficult topic. For that reason, I am glad
that Senator Murray and I have been able to agree to a
bipartisan hearing and to agree on the witnesses.
On these issues, I have the perspective of a father of
daughters and sons, of a grandfather, a lawyer, a governor,
and also a former Chairman of the Board and president of a
large public university. As a university administrator, my
first priority always was the safety of students. My goal was
to quickly and compassionately respond to victims of alleged
assaults, offering counseling and other support, including
assisting the victim if he or she wished to report the
assault to law enforcement. And my goal also was to protect
the rights of both the accused and the victim to ensure that
campus disciplinary processes were fair.
If you are an administrator at one of 6,000 American
colleges and universities and you ask your legal counsel what
laws the institution must follow when it comes to allegations
of sexual assault, your counsel would reply that there are
several places to look.
First, you would look to federal statutes. Two federal laws
govern allegations of sexual assault. All colleges and
universities that receive federal funds, including federal
financial aid, must follow them. First, Title IX of the
Education Amendments Act of 1972, which states ``no person in
the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity.'' In 1999, the Supreme Court ruled in Davis v.
Monroe County Board of Education that student-on-student
sexual harassment is covered by Title IX.
And second, the Clery Act, as amended in 2013 by the
Violence Against Women Act, which requires colleges to have
``procedures for institutional disciplinary action in cases
of alleged domestic violence, dating violence, sexual
assault, or stalking.''
The law mandates ``such proceedings shall provide a prompt,
fair, and impartial investigation and resolution'' and ``the
accuser and the accused are entitled to the same
opportunities to have others present during an institutional
disciplinary proceeding, including the opportunity to be
accompanied to any related meeting or proceeding by an
advisor of their choice.'' That advisor may be a lawyer. The
law also requires institutions to state in their procedures
``the standard of evidence that will be used during any
institutional conduct proceeding,'' but it did not say what
that standard had to be.
Next your counsel would refer you to regulations based upon
these two federal laws. These regulations also have the force
of law. First, the relevant regulation under Title IX
requires schools to have a disciplinary process which is
defined in the regulation as ``a grievance procedure
providing for [a] prompt and equitable resolution.''
Regulations under the Clery Act define a ``prompt, fair,
and impartial proceeding.'' Under these regulations, the
institution ``may establish restrictions regarding the extent
to which the advisor of choice may participate in the
proceedings.'' Your counsel will also tell you that sometimes
the U.S. Department of Education will send out a letter or
guidance to institutions, giving its interpretation of what a
law or regulation might mean. Such letters or guidance do not
have the force of law; they are only advisory.
[[Page S2603]]
But campuses sometimes consider them binding as a law and
unfortunately Department officials have, in the past, made
the same mistake.
For example, in 2011 and 2014, during the Obama
Administration, officials at the U.S. Department of Education
wrote two guidance letters interpreting Title IX, saying, in
deciding whether an accused student is guilty of sexual
assault, the decider ``must use a preponderance of the
evidence standard.''
It was no surprise that many campuses thought this
interpretation was the law because the Department acted as if
it were the law, when it was only advisory. On June 26, 2014,
at a hearing before this Committee, I asked the former
Assistant Secretary for Civil Rights at the Department of
Education, Catherine Lhamon,''do you expect institutions to
comply with your Title IX guidance documents?'' She
responded, ``We do.''
In September 2017, Secretary DeVos withdrew both of these
letters of guidance and a year later, in November of last
year, proposed to replace them with a new rule under Title
IX, a process which allows extensive comment and discussion
and would have the force of law when it is final.
That is not all your legal counsel would tell you. If
you're the president of a public institution--where 80
percent of undergraduates attend college--your counsel would
remind you that your disciplinary process must meet the
standards of the 14th Amendment to the United States
Constitution which says ``nor shall any state deprive any
person or life, liberty, or property without due process of
law.''
And then finally you'd have to look at any applicable state
laws. For example, if you are an administrator at one of
Tennessee's public colleges, the state's Uniform
Administrative Procedures Act mandates that at public
colleges and universities a student facing suspension or
expulsion must be given the option to have a full
administrative hearing with the right to counsel and ``the
opportunity to . . . conduct cross-examination.''
This array of laws and regulations creates a challenge for
college administrators, for students who allege an assault,
and for those who are accused to know what the law requires,
so the purpose of today's hearing is to hear how we can
create more certainty in how colleges and universities should
appropriately and fairly respond to allegations of sexual
assault. During this hearing, I would like to focus on three
issues raised by the Department's proposed rule: The
requirements of due process, including cross examination; the
effect of the location of the alleged assault; and The
definition of sexual harassment.
According to an article published by the Cornell Law
Review, more than 100 lawsuits have been filed by students
accused of sexual assault who claim schools denied them due
process. In one lawsuit, an accused student sued Brandeis
University. The opinion of the judge of the U.S. District
Court for the District of Massachusetts criticized the
Department of Education's earlier 2011 guidance for causing
schools to adopt unfair procedures saying:
``In recent years, universities across the United States
have adopted procedural and substantive policies intended to
make it easier for victims of sexual assault to make and
prove their claims and for the schools to adopt punitive
measures in response. That process has been substantially
spurred by the Office for Civil Rights of the Department of
Education, which issued a `Dear Colleague' letter in 2011
demanding that universities do so or face a loss of federal
funding. The goal of reducing sexual assault, and providing
appropriate discipline for offenders, is certainly laudable.
Whether the elimination of basic procedural protections--and
the substantially increased risk that innocent students will
be punished--is a fair price to achieve that goal is another
question altogether.''
In February of this year, Supreme Court Justice Ruth Bader
Ginsburg told the Atlantic, ``There's been criticism of some
college codes of conduct for not giving the accused person a
fair opportunity to be heard, and that's one of the basic
tenets of our system, as you know, everyone deserves a fair
hearing.''
In an attempt to meet that requirement, the Department's
proposed rule would require institutions to hold a ``live
hearing,'' which is defined as a hearing in which ``the
decision-maker must permit each party to ask the other party
and any witnesses all relevant questions and follow-up
questions, including those challenging credibility. Such
cross-examination at the hearing must be conducted by the
party's advisor of choice.''
The proposed rule would allow parties who do not feel
comfortable being in the same room with each other to request
to be in separate rooms, visible by a video feed, for
example. This definition of a live hearing aligns with recent
decisions by the U.S. Sixth Circuit Court of Appeals and a
California State Court of Appeals.
In the Sixth Circuit case, a student accused of sexual
assault sued the University of Michigan, alleging the school
violated the Due Process Clause of the Fourteenth Amendment
when it did not hold a hearing with the opportunity for the
accused to cross-examine his accuser and other witnesses. The
Sixth Circuit ruled in favor of the accused student stating:
``if a public university has to choose between competing
narratives to resolve a case, the university must give the
accused student or his agent an opportunity to cross-examine
the accuser and adverse witnesses in the presence of a
neutral fact-finder.''
And in California, the State Court of Appeals for the
Second District made a similar finding, stating: ``when a
student accused of sexual misconduct faces severe
disciplinary sanctions, and the credibility of witnesses . .
. is central to the adjudication of the allegation,
fundamental fairness requires, at a minimum, that the
university provide a mechanism by which the accused may
cross--examine those witnesses, directly or indirectly, at a
hearing in which the witnesses appear in person or by other
means.''
Some college administrators have said to me, I do not want
to turn our campus into a courtroom. Others point out that
the requirements of fairness and due process often require
inconvenient administrative burdens. It seems to me that the
question before us is, how can the law satisfy the
Constitutional requirements of Due Process without imposing
unnecessary administrative burdens and expense on higher
education institutions.
A second issue is the location of the alleged assault. The
proposed rule requires schools to respond to an allegation of
sexual assault even if it is off-campus if the ``conduct
occurs within [an institution's] education program or
activity.'' For example, the proposed rule cites a federal
district court in Kansas that held that Kansas State
University was required to respond to an allegation of sexual
assault that occurred at an off-campus fraternity house
because the house was university-recognized and the school
exercised oversight over the fraternity. There is some
question about the definition of university program or
activity. And a second question is if a university can choose
to go beyond university programs or activities to protect
their students.
The third issue is how federal law or regulation should
define sexual harassment. The proposed rule uses a definition
established by the United States Supreme Court in 1999 in the
case Davis v. Monroe County Board of Education, which
requires the conduct to be ``so severe, pervasive, and
objectively offensive that it effectively denies a person
equal access to the [institution's] education program or
activity.'' Some have suggested we look at other definitions
in federal law or Supreme Court precedent.
In the future, regulations with the force of law and
guidance letters that are merely advisory will continue to
interpret federal laws and constitutional requirements
governing allegations of sexual assault on campus. But as
Congress seeks to reauthorize the Higher Education Act this
year, we should do our best to agree on ways to clarify these
three issues. The more we do that the more certainty and
stability we will give to the law governing how institutions
of higher education should respond to accusations of sexual
assault.
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