Title IX Complicates Hill Negotiations on Higher Ed

Any deal to update the law governing federal student aid would have to overcome concerns about the highly charged new rule U.S. Education Secretary Betsy DeVos is about to release on what colleges are required do about allegations of sexual assault or harassment on campuses.

That was the message from an aide to Senator Patty Murray, the top Democrat on the Senate education committee, who said the Title IX rule would be a stumbling block toward reauthorizing the Higher Education Act.

"Senator Murray is a vocal opponent of Secretary DeVos’ efforts to roll back Title IX protections for students and has made clear from the start of negotiations that any reauthorization of our country’s higher education laws must address the four key challenges of affordability, accountability, accessibility and campus safety," the aide to the Washington Democrat said Friday in a statement. "So the question is how much Senate Republicans will be willing to work with her in a serious way to protect students."

In recent days, the two top members of Congress involved in negotiating HEA's reauthorization -- Murray and Lamar Alexander, the Republican chairman of the Senate education committee -- have expressed optimism about being able to cut at least a limited deal by the end of year, before Alexander retires.

Speaking Tuesday at a meeting of community college trustees​, Alexander said, "That doesn't mean we're going to take that whole big act and reauthorize everything." But he added, "I think we can make some progress."

Murray agreed on Monday. “We have been making progress in the negotiations, and I think we can get that done,” she told Inside Higher Ed Monday.

However, the statement from Murray's aide illustrates a concern of many higher education lobbyists that the release of the final Title IX rule will be one of several key stumbling blocks that will make it harder to reach a deal on a broader reauthorization bill that would address a range of issues on student aid.

The Title IX issue has posed a challenge since DeVos proposed a number of changes in November 2018. Perhaps most controversially, the proposed rule would force complainants who say they’ve been sexually assaulted or harassed to submit to cross-examination in a live hearing, despite fears that doing so would further traumatize victims.

The debate will come to a head when DeVos issues a final rule that's not expected to differ much from what she proposed. The administration is expected to release the final version of the rule in coming days.

Lobbying and Legal Challenges

Even as Alexander and Murray were expressing optimism on being able to reach a deal on the broader reauthorization bill, women’s and civil rights groups were gearing up to fight the rule in the courts, in state legislatures, at colleges and universities, and by getting Congress to include a provision in the reauthorization bill that would block the rule.

“Any controversial issue undermines the chances we will see a comprehensive reauthorization act,” said Terry Hartle, the American Council on Education’s senior vice president for government and public affairs.

In interviews, opponents of the rule like Elizabeth Tang, the National Women’s Law Center’s counsel for education and workplace justice, said a first battle in Congress could be over passing a resolution of disapproval blocking the rule -- similar to the one the Democratic House approved in January opposing DeVos’s borrower-defense rule, which makes it significantly harder for student borrowers to receive debt forgiveness after being defrauded by colleges.

But as with the borrower-defense measure, chances are slim that a resolution on Title IX would pass the Republican Senate. And even if it were to pass both chambers, President Trump probably would veto it anyway, pushing the debate over Title IX to the higher education bill.

The Democratic House's version of the reauthorization bill, passed by the education committee last October, would block the rule. In interviews, Tang and Liz King, education program director at the Leadership Conference on Civil and Human Rights, were adamant that the Senate version would also block the rule.

“We encourage Congress to use every tool it has to make sure this dangerous rule never goes into effect,” Tang said.

However, higher education lobbyists said adding a provision to block the rule proposed by Trump’s administration would make it difficult for the Senate’s Republican majority to support the reauthorization bid.

A spokesman for Alexander didn’t return a request for comment.

“You never say never, but it’s hard to see a path forward,” Hartle said.

Illustrating the partisan nature of the debate, all Democrats on the House oversight committee criticized the rule in a letter to DeVos on Friday, saying, “your proposal would limit the circumstances under which schools are required to investigate sexual misconduct and make it more difficult for student survivors to resolve their claims.”

In addition to subjecting accusers to cross-examination, the DeVos proposal is expected to require or allow colleges to dismiss complaints that happened outside campus programs, like rapes at off-campus apartments. Also troubling, Tang said, are provisions that would raise the bar on what’s considered sexual harassment.

Instead of it being defined as “unwelcome conduct of a sexual nature,” as it has been since 2001, the proposed rule would make the definition more stringent, limiting it to conduct that is “so severe, pervasive and objectively offensive” that it “effectively denies” a student equal access to a school’s “program or activity.”

According to Tang, "this rule essentially means many students would be forced to endure repeated and escalating levels of abuse before they can receive help. Some schools might not help sexual assault survivors until after they have already dropped out of a class or out of school altogether."

However, to some, like Teresa Manning, director of the National Association of Scholars’ Title IX project, DeVos’s proposals, including the right to cross-examine accusers, would give much-needed due process protections to men who increasingly have been unfairly accused of sexual misconduct, “causing terrible if not ruinous damage.”

If anything, Manning is hoping the final rule will be stronger than DeVos’s original proposal. Even if the proposal is changed, Manning said she’s done research showing Title IX staff have no practical legal experience, are predominantly female and have feminist beliefs. Believing staff members are likely to be biased against the accused, she wants the final rule to require institutions to provide them an attorney or an expert in due process who is independent of the college.

"If they are not fair in hiring, how will they be fair in hearings?" she said. “The system is only going to be as good as the people in them."

In addition to the fight in Congress over the HEA, Sage Carson, executive director of Know Your IX, said the advocacy group is preparing to campaign to prod colleges and universities to take steps like continuing to investigate off-campus sexual assault and harassment, even if they are no longer required under the new rule. Carson said her group also is planning to lobby state legislatures to pass laws requiring institutions to go beyond requirements of the rule.

Title IX is expected to be fought in the courts as well. The National Women’s Law Center is waiting to see the final rule. If it has the same problems the group had with the proposal, as is assumed, the center will sue. Mark Shade, a spokesman for Pennsylvania attorney general Josh Shapiro, said his office plans to sue if the final rule has the same legal questions a coalition of 19 state attorneys general raised last year in a letter to the Education Department.

Among other concerns, the attorneys general said the proposal violated administrative procedures by not making public studies and reports it used to come up with its proposals.

In its own letter to the department, which could be the basis of legal challenges, the National Women's Law Center raised a number of other issues. The group, for instance, said Title IX requires institutions to provide “equitable” resolution of complaints, but “a presumption in favor of one party against the other is not equitable.”