Title IX Senate Hearing Adds to National Discussion
4/12/2019
The Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing on April 2 to discuss the handling of campus sexual assault on college and university campuses. The hearing comes on the heels of the Trump administration’s significant proposed overhaul of campus sexual assault regulations under Title IX and in advance of draft legislation from both the Senate and House of Representatives concerning Higher Education Act reauthorization.
Sen. Lamar Alexander (R-TN), chairman of the HELP Committee, framed the hearing around three primary concerns: due process in campus hearings, the effect the location of the alleged assault may have on whether an institution can pursue investigation, and the definition of sexual harassment. Committee Ranking Member Patty Murray (D-WA) utilized this framework as an opportunity to highlight her own concerns with the Trump administration’s proposed rule, particularly with the redefining of sexual harassment from “unwelcome conduct of a sexual nature” under the Obama administration to a much narrower “unwelcome conduct of a sexual nature that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity” definition.
Hearing testimony was offered by Fatima Goss Graves, president and CEO of the National Women's Law Center; Jeannie Suk Gersen, a Harvard Law School professor; Patricia Hamill, a partner with Conrad O'Brien in Philadelphia; and Anne Meehan of the American Council on Education (ACE). NACUBO endorsed Meehan’s testimony as accurately representing many of the concerns the higher education community has with the Trump administration’s proposed rule, and previously joined over 50 other higher education associations in responding to the proposed rule in an effort led by ACE earlier this year.
Just four days before the hearing, the Department of Education (ED) won a minor legal battle related to interim campus sexual assault guidance published in 2017 that formally rescinded previous Obama administration guidance and is intended to serve as a placeholder until ED completes its ongoing Title IX overhaul rulemaking process. A cohort of advocacy groups sued ED over the guidance, arguing that it violated the equal protection clause of the Fifth Amendment by "disproportionately burden[ing] women and girls" and "was motivated by the baseless and discriminatory but longstanding stereotype that women and girls tend to lie about or exaggerate experiences of sexual assault and harassment." While Magistrate Judge Jacqueline Scott Corley ultimately determined that the groups in this particular case lacked standing to make an equal protections claim because no individual plaintiffs were involved, she did also concede to revisit the groups’ earlier claims that the interim rules represent a violation of the Administrative Procedures Act. Similar litigation is currently ongoing in a Massachusetts court, where advocacy groups and individual complainants have joined together to sue over the guidance.
