Congress Wants a Say in the Title IX Debate. What Might That Look Like?

Campus sexual assault should be addressed in the reauthorization of the Higher Education Act, U.S. senators emphasized during an education-committee hearing on Tuesday.

The question is how legislation might complement the Title IX regulations that Betsy DeVos, the secretary of education, has proposed — and, given how controversial the draft rules are, whether lawmakers can agree on what that legislation should look like.

Most of the hearing was spent discussing three of the most hotly debated components of the proposed rules: the requirement for cross-examination in live hearings, the fact that colleges would no longer have to investigate many off-campus assaults, and the narrower definition of sexual harassment.

DeVos’s new regulations, as well as Education Department guidance documents, will continue to do much of the work of interpreting Title IX on campus, said Sen. Lamar Alexander, Republican of Tennessee, who is the committee’s chair.

“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,” Alexander said. “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.”

The sexual-harassment definition in particular prompted a lot of discussion. Under the Obama administration, sexual harassment was defined as “unwelcome conduct of a sexual nature.” 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.”

That shift would scale back the amount of sexual misconduct that colleges would be obligated to respond to and investigate. Some incidents, such as a single incident of unwanted touching, might no longer meet the threshold. Several senators and witnesses expressed concern about what effect that change, and other efforts to roll back colleges’ responsibilities, would have on the willingness of victims to come forward.

“We have to make it easier to report sexual harassment, not make it harder,” said Sen. Patty Murray, Democrat of Washington. “And that’s what I fear Secretary DeVos’s proposed Title IX rule would do when it only requires schools to respond to reports of campus sexual assault that were made specifically to a very small group of campus officials.

“I’m doubting most kids know who their Title IX coordinator is,” Murray added.

Defining Sexual Harassment

Jeannie Suk Gersen, a law professor at Harvard University, said the federal government should provide a basic definition of sexual harassment. But she called attention to the difference between “severe and pervasive,” which is what the proposed regulations say, and her preferred definition, “severe or pervasive.”

That’s a subtle but significant distinction, she said, that would ensure that colleges are still held responsible for investigating the kinds of sexual misconduct that can derail students’ education.

Sen. Tina Smith, Democrat of Minnesota, dug into the fact that colleges would have to dismiss many complaints of off-campus sexual assaults under the proposed regulations. “A strictly arbitrary definition of ‘only on campus’ probably has the goal of limiting liability, but not limiting discrimination,” Smith said.

The hearing also touched on how direct cross-examination, which several senators and panelists didn’t support, would work in a hearing, and what alternatives exist for students to ask each other about an alleged assault, like having each student submit questions to a hearing officer. Sen. Maggie Hassan, Democrat of New Hampshire, said she wanted to know more about “other techniques for getting at the truth in situations like this.”

Also on Tuesday, a bipartisan group of senators reintroduced the Campus Accountability and Safety Act. The legislation, which has appeared multiple times since 2014, would standardize some elements of the campus disciplinary process and require colleges to provide confidential advisers for sexual-assault victims.

Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.