[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.

                          ____________________