ACE’s Anne Meehan tells committee members that “colleges and universities are not courts, nor should they be.”
The Senate Committee on Health, Education, Labor and Pensions heard testimony yesterday on addressing sexual assault at colleges and universities, as the Trump administration continues working on its own effort to amend regulations related to campus sexual harassment and assault. Anne Meehan, director of Government Relations for ACE, was among the witnesses.
The committee called the hearing as part of its effort to reauthorize the Higher Education Act (HEA), the sweeping law governing federal higher education programs first signed into law in 1965.
On a parallel track, the administration currently is reviewing comments on its proposed rule amending Title IX, the federal law that bans discrimination on the basis of sex for education programs receiving federal assistance. That effort follows the Education Department’s 2017 rescission of the Obama administration’s Title IX guidance pertaining to sexual harassment and assault. The draft rule received an overwhelming response, with over 100,000 comments submitted, including from ACE.
In his opening statement at Tuesday’s hearing, Committee Chair Lamar Alexander (R-TN) said he wanted to focus on three concerns: due process, including cross examination; the effect the location of the alleged assault may have on whether an institution can pursue investigation; and the definition of sexual harassment. These issues are central to the administration’s proposed rule. Ranking Member Patty Murray (D-WA) condemned the proposed rule and said Congress needed to address these issues through legislation in order to protect students from sexual assault and harassment.
As the hearing progressed, the sexual harassment definition in particular prompted a lot of discussion, The Chronicle of Higher Education wrote in its summary yesterday. Under the Obama administration, sexual harassment was defined as “unwelcome conduct of a sexual nature.” Secretary Betsy DeVos has proposed narrowing it to “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.”
“If Tuesday's Senate hearing is a barometer for how members of Congress might legislate on the issue as part of the larger higher education overhaul, the language is likely to be more measured than DeVos' proposed rules, which largely aim to bolster the rights of those accused,” U.S. News reported this morning.
In her opening statement, Meehan outlined three goals for addressing campus sexual assault from the perspective of colleges and universities: a process that supports the survivor, is fair to both parties, and is flexible enough to make sense for a particular campus.
She asked committee members to keep in mind certain precepts as they considered whether and how to revise the guidelines, including the fact that colleges and universities are not courts, nor should they be. Jeff Howard of East Tennessee State University (ETSU) agreed, saying that colleges and universities "can't duplicate a court of law." Howard, who serves as ETSU’s associate vice president for student life and enrollment, expressed concern that the proposed rules will complicate campus disciplinary hearings.
Meehan also said as important as it is to ensure fair disciplinary processes, “we should not forget that our ultimate goal is to prevent sexual assault from occurring in the first place.”
Also testifying were Fatima Goss Graves, president and CEO of the National Women's Law Center; Jeannie Suk Gersen, a professor at Harvard Law School; and Patricia Hamill, a partner with Conrad O'Brien in Philadelphia.
See the committee’s website for their full testimony and a webcast of the hearing.