The Senate education committee is trying to clarify three issues as it looks to address campus sexual assaults through the reauthorization of the Higher Education Act (HEA).
During an HEA hearing on the topic Tuesday, members of the Senate Health, Education, Labor and Pensions Committee queried witnesses on those three issues, which include: due process, particularly cross examination; the location of the alleged assault; and the definition of sexual harassment.
The issues are central to the U.S. Education Department’s proposed regulation for Title IX, which is one of two federal laws governing allegations of sexual assault on college campuses. (The other is the Clery Act.)
“The more we clarify these issues raised by the U.S. Department of Education’s proposed rule, the more certainty and stability we will give to the law governing how institutions of higher education should respond to accusations of sexual assault,” committee chair Sen. Lamar Alexander (R-Tennessee) said in his opening statement.
Ranking member Sen. Patty Murray (D-Washington) blasted ED’s proposed rules.
“Thousands of students, parents, teachers and experts across the country have pointed out that parts of the rule are callous, ignore the experiences of survivors and the advice of experts, and are likely to discourage students from coming forward,” she said.
One of the elements the committee focused on was ED’s proposal to require colleges to hold a “live hearing,” which would allow the parties involved to ask each other questions, either directly or through a selected third party, which could be a family member, friend or lawyer.
Opponents of the proposal say such a setting could become very adversarial, and with lawyers involved could become more like a court setting. Allowing people not qualified to question survivors could re-traumatize victims, Murray said.
Proponents, however, argue there must be an opportunity to get to the facts of a case. Patricia Hamill, a Philadelphia lawyer who often represents men accused of sexual misconduct, said live hearings and direct questioning is critical.
“They allow decision-makers to get a clear understanding as possible of what occurred from everyone’s perspective,” she said. “They allow advocates for each party to thoroughly and respectfully explore people’s memory and credibility.”
She added that written questioning doesn’t “allow for a true exploration of these situations. There’s no dialogue, no flow and no opportunity to follow up.”
Hamill acknowledged that direct questioning can cause emotional duress, “but that is the case for both parties.”
“If we are to ensure a fair process, every reasonable effort to get at the truth must be pursued. There is too much at stake to do anything less,” she said.
Jeannie Suk Gersen, a law professor at Harvard University, disagreed, noting that written questions or asking questions through a third party is adequate.
“We have to make comprises here,” she said. “It may be that cross-examination is the ideal vehicle for getting the truth in some context, but in this context there are other considerations.”
Fatima Goss Graves, president and CEO of the National Women’s Law Center, agreed. She said a model to consider is one that many companies use. They routinely examine complaints of discrimination and harassment without having live hearings or direct cross-examinations.
ED’s proposed rule also would require colleges to respond to allegations of sexual assault off campus if it occurred at a program or event related to the school. But the rule isn’t clear if colleges would have discretion to determine that, even if the conduct appears to be against the school’s values or conduct codes, said Anne Meehan, director of government relations at the American Council on Education (ACE).
A recent U.S. Department of Justice report found that 95 percent of sexual assaults occur off campus, Graves said. She noted that there is a strong relationship between what happens off campus and on campus the next day.
“If there is an assault off campus and you’re sitting next to the person in class the next day, that harm is continuing,” she said.
Several lawmakers added that they would like to see other related issues addressed in HEA. Murray noted she would like to include discussions on bullying, hazing and harassment on campuses.
Sen. Maggie Hassan (D-New Hampshire) added mental health issues and substance misuse are also important issues to addresses in HEA. This year so far, 643 students at the University of New Hampshire have sought psychiatric help. “It is stunning,” she said.