Republican lawmakers promote new Title IX rule in House hearing

Dive Brief:

• Republican lawmakers Thursday publicly championed Education Secretary Betsy DeVos’ new rule governing how colleges must investigate and potentially punish sexual violence. 

• During a virtual subcommittee hearing, GOP House members lauded the Title IX regulation, saying it restored fairness to colleges’ processes. 

• The rule, however, has been subject to significant criticism by advocates of sexual assault survivors, who say it erodes protections created under the Obama administration. 

Dive Insight:

DeVos’ Title IX rule took effect last month, vexing sector leaders who argued the timeline for implementation was too short and that the secretary should wait until the health crisis subsides. Meanwhile, Democratic state officials and survivor activists have tried unsuccessfully to block it in federal courts.

The regulation reduces the number of Title IX cases colleges would need to investigate. It also narrows the definition of sexual harassment to one used by the U.S. Supreme Court in civil Title IX cases. 

Perhaps most controversially, it sets up a quasi-judicial system for reviewing sexual misconduct complaints. These are now addressed during a live hearing in which both parties must be allowed to cross-examine the other side through a surrogate. 

Survivor advocates argue this would traumatize a victim. And Title IX practitioners widely believe the new process would be burdensome to survivors and accused students, resulting in fewer students wanting to go through the proceedings. The regulation offers new avenues for informally resolving cases, however.

GOP lawmakers promoted elements of the rule during Thursday’s hearing, entitled “On the Basis of Sex: Examining the Administration’s Attacks on Gender-Based Protections.”

Only one of the four witnesses invited to the panel, Samantha Harris, senior fellow at civil liberties watchdog the Foundation for Individual Rights in Education (FIRE), supported the Trump administration’s equity efforts. Ranking member of the subcommittee, Rep. Ben Cline, R-Va., twice drew attention to this fact.

The other three witnesses were senior officials within the left-aligned think tank Center for American Progress, civil rights group Lambda Legal and the National Women’s Law Center.

Cline, a lawyer and former domestic violence prosecutor, said during the hearing that Democrats have “undermined” fairness for students, referring to guidance President Barack Obama’s Education Department issued in 2011 that survivor activists credit with increasing awareness of campus sexual violence. 

“Some have been critical of the Education Department‘s updated Title IX rule, despite the fact the rule is rooted in our deepest, time-tested legal traditions,” Cline said during his opening remarks. “It requires schools to take all allegations of sexual harassment, including sexual assault, seriously and support and protect survivors during every step of the process.”

Republicans asked only FIRE’s Harris questions about the new rule. Some GOP legislators tried to draw a distinction between the scope of Title IX and other laws designed to penalize sexual assault.

Rep. Virginia Foxx, R-N.C., former chair of the House’s education and labor committee, said she did not believe college officials should be handling episodes of sexual violence at all, saying they do not have the expertise, and that those cases should be left to the criminal justice system.

Whether laws separate from Title IX are being adequately enforced to survivors’ benefit is a different conversation, Harris said, adding that Title IX can only consider students’ access to education. President Donald Trump’s regulation returns focus to the purpose of the sex equity law, Harris said.

Democrats on the panel took aim at the rule. Subcommittee chair Rep. Suzanne Bonamici, D-Ore., expressed concerns about survivors having to “endure” cross-examination, saying it was a “stunning display of callousness” that the administration began enforcing the rule during the pandemic.

“It fails to hold institutions accountable for protecting students,” Bonamici said.