House Considers Higher Education Re-authorization

Tim Burke, Manley Burke, tburke@manleyburke.com

On December 13, 2017, the United States House of Representatives Education and the Work Force Committee reported out on a party line vote H.R. 4508, the “Promoting Real Opportunity, Success and Prosperity through Education Reform Act AKA the Prosper Act.  The Bill is also frequently referred to as the Higher Education Reauthorization Act.  Much of the 542 page document relates to various programs that help to fund higher education but the Bill contains a variety of provisions that address topics that have frequently been discussed in Fraternal Law.

As www.usnews.com reported on December 13, 2017 in its article House Republicans Finalize Overhaul of Higher Education Act,  “the proposal included some new provisions on hot-button topics like hazing, sexual assault and free speech – though most of that language would not require colleges and universities to change current policies.

On free speech, the Bill proposes a “sense of Congress that —  free speech zones and restrictive speech codes are inherently at odds with the freedom of speech guaranteed by the First Amendment of the Constitution.”  The bill provides “No public institution directly or indirectly receiving financial assistance under this Act should restrict the speech of such institutions’ students through such zones or codes”.  Note the use of the word “should” rather than “shall” or “must.”

The next provision of the Bill goes on to provide that institutions of higher education receiving funding are required to “certify to the secretary” that “the institution has annually disclosed to current and prospective students any policy held by the institutions related to protective speech on campus, including policies limiting where and when such speech may occur.”  That provision does use mandatory language.  Joe Cohn, the keynote speaker at the 2016 Fraternal Law Conference noted on FIRE’s website that “FIRE is happy that Congress is thinking about ways it can promote free speech on campus.  We are hoping we can work with legislators to strengthen the section on campus free speech to eliminate unlawful speech codes once and for all.”

The Bill would prohibit public institutions of higher education from receiving funds under the Act if the institution denies to a religious organization “any right, benefit or privilege that is generally afforded to other student organizations at the institution. . .because of the religious beliefs, practices, speech, membership standards or standards of conduct of the religious student organization.”  That provision appears to prevent public institutions from adopting provisions requiring that recognized student organizations must be willing to admit any student to membership or officer positions regardless of whether or not their beliefs agree with the beliefs of the organization.

Two lengthy provisions of the Bill address sexual assault.  “Institutions of higher education are required to conduct periodic surveys to measure campus attitudes towards sexual assault and the general climate of the campus regarding the institution’s treatment of sexual assault on campus.”   These campus climate surveys, which would have to be conducted at least once every three years, must be used “to improve the institutions ability to prevent and respond appropriately to incidents of sexual assault”.  Reports of surveys must protect the confidentiality of the individual respondents.

Institutions of higher education must have available the services of “qualified sexual assault survivors’ counselors”.  The counselor is required to inform victims of available options including how to report the assault to the institution or to a law enforcement agency.  The counselor is expected to keep what they learn from a victim confidential.

The Bill encourages (but does not require) that institutions of higher education enter into memorandums of understanding with local law enforcement agencies as to how to coordinate with one another in dealing with sexual assault issues on campus and notes that such memorandums of understanding are “a useful tool to promote. . .coordination and cooperation.”

Amendments are proposed to the CLERY Act but those amendments do not address the issue of who is a “campus security official”.  A university is specifically recognized to have the right to delay investigations or institutional disciplinary proceedings in response to a request from a law enforcement agency or a prosecutor to delay such actions.  Institutions of higher education may not be sanctioned for a CLERY violation for positively responding to such requests for delay.

A second portion of the Bill relating to campus sexual assault deals generally with University disciplinary proceedings and establishes broad due process requirements.  Any institutional disciplinary proceeding “shall be prompt, impartial, and fair to both the accuser and the accused”.  All parties must receive written notice of the allegation two weeks prior to any hearing including a statement to all relevant details of the allegation.  Each accused must be provided “a meaningful opportunity to admit or contest the allegation”.  All parties must “have access to all material evidence not later than one week prior” to a hearing.  There must be “no comingling of administrative of adjudicative roles”.  Those who conduct the investigation as well as those conducting any hearing must “receive annual education on issues related to domestic violence, dating violence, sexual assault, and stalking, and on how to conduct an investigation and an institutional disciplinary proceedi that protects the safety of victims, insures fairness for both the accuser and the accused and promotes accountability.”

In his piece on FIRE’s website, Kohn notes in his report about the Bill also does not include in the due process provisions “the right to active assistance of counsel” or “a guarantee of some form of meaningful cross-examination of witnesses.”

While the Obama administration had mandated by a dear colleague letter that all institutions should utilize a preponderance of the evidence standard, the Bill would provide by law that “The establishment of a standard of evidence that will be used in institutional disciplinary proceedings involving allegations of sexual assault, which may be based on such standards and criteria as the institution considers appropriate (including the institution’s culture, history and mission, the values reflected in its student code of conduct, and the purpose of the institutional disciplinary proceedings) so long as the standard is not arbitrary or capricious and is applied consistently throughout all such proceedings.”

While some earlier provisions suggested in Committee Bill addressed hazing and single sex membership issues, those provisions did not make the final version of the Bill.

An Amendment in the Nature of a Substitute to H.R. 4508, which was approved, includes a provision addressing Single Sex Student Organizations.  An article in the Chronicle of Higher Education suggested “The new provision appears to take aim at efforts, like that undertaken by Harvard University, to rein in single-gender clubs.”  The provision is limited in application only to those institutions of higher education which have a policy of officially recognizing single-sex social student organizations.  But those institutions that do recognize single-sex social clubs would be prohibited from requiring such clubs to admit as members or be required to allow to participate in activities of the organization those who do not meet the organization’s criteria for single-sex status.  Those institutions could not take adverse action against the members of such clubs.  Adverse actions are specifically defined to include such things as expulsions, or suspensions, denying participation in any education program or activity, withholding financial aid or scholarships, denying on campus housing, or leadership positions on sport teams or in clubs.  While it sounds like it would prohibit the types of actions Harvard is taking against members of finals clubs and Greek organizations, the provisions may not actually apply to Harvard unless Harvard is recognizing other single-sex member social organizations.  And the provision appears to go out of the way to limit its impact or enforceability.  Institutions of higher education are specifically not required to recognize single-sex social student organizations and “national student organizations [read Fraternities and Sororities, are specifically denied any ability to enforce the rights of their members established by these provisions.  Individual members of such organizations may have the right to do so.

Fraternal Law has been advised by a long time monitor of Congressional action that a provision on hazing has indeed been added to the bill, but is not yet publicly available.  It is described as a sense of congress provision without enforceability.

In any event, reauthorization of the Higher Education Act has a long way to go.  The version of the Bill reported out by Committee may yet be amended by the full House of Representatives.  And the Senate has yet to have its say.  So there is much more to come on this topic.