[Senate Hearing 113-840]
[From the U.S. Government Publishing Office]
S. Hrg. 113-840
SEXUAL ASSAULT ON CAMPUS: WORKING TO ENSURE STUDENT SAFETY
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HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
ON
EXAMINING SEXUAL ASSAULT ON CAMPUS, FOCUSING ON WORKING TO ENSURE
STUDENT SAFETY
__________
JUNE 26, 2014
__________
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington MICHAEL B. ENZI, Wyoming
BERNARD SANDERS (I), Vermont RICHARD BURR, North Carolina
ROBERT P. CASEY, JR., Pennsylvania JOHNNY ISAKSON, Georgia
KAY R. HAGAN, North Carolina RAND PAUL, Kentucky
AL FRANKEN, Minnesota ORRIN G. HATCH, Utah
MICHAEL F. BENNET, Colorado PAT ROBERTS, Kansas
SHELDON WHITEHOUSE, Rhode Island LISA MURKOWSKI, Alaska
TAMMY BALDWIN, Wisconsin MARK KIRK, Illinois
CHRISTOPHER S. MURPHY, Connecticut TIM SCOTT, South Carolina
ELIZABETH WARREN, Massachusetts
Derek Miller, Staff Director
Lauren McFerran, Deputy Staff Director and Chief Counsel
David P. Cleary, Republican Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
THURSDAY, JUNE 26, 2014
Page
Committee Members
Harkin, Hon. Tom, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Alexander, Hon. Lamar, a U.S. Senator from the State of
Tennessee, opening statement................................... 2
Murray, Hon. Patty, a U.S. Senator from the State of Washington.. 22
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts.................................................. 23
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania................................................... 26
Prepared statement........................................... 27
Baldwin, Hon. Tammy, a U.S. Senator from the State of Wisconsin.. 28
Murphy, Hon. Christopher, a U.S. Senator from the State of
Connecticut.................................................... 30
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 32
Witnesses--Panel I
Lhamon, Catherine, J.D., Assistant Secretary for Civil Rights,
U.S. Department of Education, Washington, DC................... 4
Prepared statement........................................... 7
Moore, James, L. III, Compliance Manager, Clery Act Compliance
Division, U.S. Department of Education, Philadelphia, PA....... 12
Prepared statement........................................... 14
Witnesses--Panel II
Renda, Emily, Special Intern, Office of the Vice President and
Chief Student Affairs Officer, University of Virginia,
Charlottesville, VA............................................ 37
Prepared statement........................................... 39
Kelly, John, Student, Tufts University, Medford, MA.............. 44
Prepared statement........................................... 46
Stapleton, Jane, Co-Director of Prevention Innovations: Research
and Practices for Ending Violence Against Women, University of
New Hampshire, Durham, NH...................................... 50
Prepared statement........................................... 52
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Senator Blumenthal........................................... 63
Senator McCaskill............................................ 64
Jocelyn Samuels, Acting Assistant Attorney General, Civil
Rights Division, U.S. Department of Justice................ 64
Letter from American Civil Liberties Union................... 73
Response by Catherine Lhamon to questions of:
Senator Alexander........................................ 77
Senator Whitehouse....................................... 79
Senator Kirk............................................. 82
Response by James L. Moore III to questions of:
Senator Alexander........................................ 83
Senator Kirk............................................. 85
(iii)
SEXUAL ASSAULT ON CAMPUS: WORKING TO ENSURE STUDENT SAFETY
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THURSDAY, JUNE 26, 2014
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:02 a.m., in
room 430, Dirksen Senate Office Building, Hon. Tom Harkin,
chairman of the committee, presiding.
Present: Senators Harkin, Murray, Casey, Hagan, Whitehouse,
Baldwin, Murphy, Warren, and Alexander.
Opening Statement of Senator Harkin
The Chairman. Good morning. The Senate Committee on Health,
Education, Labor, and Pensions will come to order.
This is the 11th in a series of hearings to inform this
committee's reauthorization of the Higher Education Act.
Yesterday I released my opening thoughts on what a
comprehensive Higher Education Act reauthorization should look
like. I've asked all stakeholders to submit their thoughts and
comments on that proposal by the end of the summer. That's
August 29th. And I plan to continue to add to that proposal,
and today's hearing will help to determine how best to proceed
on that very important topic.
The focus of today's hearing, campus sexual assault, is a
profoundly important one. Too many students are being assaulted
on our Nation's college campuses. According to current
research, an estimated 1 in 5 women are sexually assaulted or
victims of attempted sexual assault while in college.
As we will hear today, sexual assault does not just happen
to women. Approximately 1 in 16 men are victims of completed or
attempted sexual assault.
Research also shows that LGBT students, as well as students
with disabilities, may face a higher risk of sexual assault.
No student should have to endure something so terrible as
sexual assault while they are in college, and today we are
going to hear from the Administration, from survivors and a
researcher about the work they're all doing to make our college
campuses safer for everyone.
This hearing will also explore the Higher Education Act and
Title IX and how these two laws address issues related to
campus sexual assault. The Clery Act provisions within HEA, the
Higher Education Act, play a critical role in ensuring the
proper reporting of campus sexual assault and that the
appropriate supports and systems are in place for when these
assaults occur.
Title IX, one of our Nation's landmark civil rights laws,
which celebrated its 42d anniversary just this week, also plays
a substantial role in ensuring colleges have adequate processes
in place to quickly and fairly address reports of sexual
assaults. Title IX is critical to providing survivors with some
of the supports they need in the aftermath of a sexual assault.
Today we will hear about the work the Administration is doing
to ensure that colleges meet their title IX obligations.
The Clery Act and title IX seek to address these issues in
different ways, and I appreciate that some colleges are finding
it challenging to understand their obligations under both Clery
and title IX. I hope today's hearing will bring to light how we
can make it easier for colleges to understand their obligations
under both important laws.
I will close by saying that this is an issue that has for
far too long been swept under the rug, been put in the closet
to try to hide it. We have to address this forthrightly. We
know it's happening. We're getting more and more data that's
coming forward. I read the testimonies of the people who are
testifying today. There is some compelling testimony in there
in terms of how we need to change some of our systems to bring
more of this to light, to provide colleges with the kind of
flexibility that they might need.
The one thing that came through to me in the testimonies
that I read last evening more than anything else was that one-
size-does-not-fit-all, that these are not all the same acts.
They vary in intensity. They vary in approach. They vary in
victims. They vary in perpetrators. They vary in a lot of
circumstances. Therefore, perhaps one stringent provision that
cuts off all aid, all title IV money to a college--which is
never used, by the way--is not really a deterrent at all.
So we have to look both for the deterrents, the adequate
penalties and fines that accrue, setting up structures with
colleges so that they can prevent this--determines what is the
best course of action--and to let victims know that they have
recourse and they have the support systems in place so that
they can report and bring this to light without the victim
being a victim twice or three times over.
I hope that this hearing now will start that process to
where we can address this adequately in the Higher Education
Act reauthorization.
With that, I will turn to Senator Alexander for his opening
statement.
Opening Statement of Senator Alexander
Senator Alexander. Thanks, Mr. Chairman.
Thank you to the witnesses for coming. We look forward to
your comments.
I was once a college president. I have had children in
college, and I went to college myself. We know that's a very
special experience when you hug your parents goodbye and
students are turned over to a college campus, and the parents
are anxious and the students are nervous, and you hope everyone
is safe and everything is successful. Unfortunately, and the
focus of the hearing today, is sometimes that turns out not to
be true.
So the purpose of what I think we should be doing today is
finding out what we in Washington can do to help create an
environment that helps campuses discourage sexual assaults,
which is the subject of this hearing, and then to make sure
that if there are any requirements that we have from here to
campuses, that they be clear and that they don't cause campuses
to spend more time filling out forms than they do creating an
environment to discourage sexual assault.
I think it's important to remember, too, the limits of what
we're able to do from here. On campuses in Tennessee, there's a
dean of students, and there's a president of the college, and
there are trustees, all of whom have the primary responsibility
for the environment on the campus and for taking action. And if
it's a public institution, where three out of four of our
students go, there are legislators and there is a Governor. I
know that about the time I was president of the University of
Tennessee, the State of Tennessee passed a Crime on Campus bill
which was modeled after the Clery Act, which was the work of
parents in Pennsylvania whose child was murdered.
Just as we want gun-free school zones, if we really want
gun-free school zones in our 100,000 schools, it's primarily
the responsibility of those in the community, the principal,
the parents, and the students in that school.
Whatever we do here I think needs to make sure that we
don't suggest to anybody that we in Washington can make the
campuses--should be primarily responsible for making the
campuses safe. I mean, I don't think the country would want to
look up here and say the Senate, the U.S. Senate that can't
even balance a budget and can't even agree on how to consider
an appropriations bill, ought to be the one who you look to to
be responsible for campus safety in 6,000 institutions with
7,200 campuses and 22 million students. If my child were going
to a campus, I would look to the dean of students and to the
faculty and to the environment on that campus first.
But there is a role we have to play, primarily because we,
along with the States, help fund campuses, and we've been
playing that role. There is the Clery Act which I mentioned
just earlier, and these are the rules and regulations that any
campus administrator will have to consider, these proposed
rules and regulations. The question we should have is do these
really help to create an environment to discourage sexual
assaults, or is there something we can do that's simpler and
clearer and more effective.
And then under title IX there are responsibilities and
guidances and steps that we need to take.
I'm glad that we're having the hearing. I especially
appreciate the efforts of several of our Senators, Senator
McCaskill, who is not a member of this committee but is very
interested in this. I've met with her about this, and one of
the things I would suggest to the Chairman and the other
members of the committee, at least one of whom is formally a
member of a faculty of a distinguished institution, I think at
some point we ought to have informal or formal discussions with
the people on the 7,200 campuses who actually have the job of
creating an environment for campus safety, including
discouraging sexual assault and responding to it appropriately
and making sure that the things that we do from here are
helpful and not burdensome, which is sometimes the case.
I welcome the hearing. I congratulate the Senators who have
made this a focus of their attention. I look forward to
learning from both panels of witnesses.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Alexander.
We will have two panels. Our first panel will basically be
our Administration witnesses, and then we'll move rapidly to
our second panel.
I would like to start by welcoming our first witness, Ms.
Catherine Lhamon. Ms. Lhamon is the Assistant Secretary for
Civil Rights in the U.S. Department of Education. Prior to
coming there, she was the director of Impact Litigation at
Public Council, the Nation's largest pro bono law firm. Before
that, she practiced for a decade at the ACLU of Southern
California, serving as assistant legal director. She also
served as a teaching fellow and supervising attorney in the
Appellate Litigation Program at Georgetown University Law
Center. She received her J.D. from Yale Law School and
graduated from Amherst College.
Next is Mr. James Moore, manager of the Clery Act
Compliance Division of the U.S. Department of Education. Mr.
Moore joined the Department of Education in 1997 and has become
a nationally recognized expert on the Clery Act. He also serves
as a representative on the White House Task Force to Protect
Students from Sexual Assault.
Welcome. Both your statements will be made a part of the
record in their entirety.
Ms. Lhamon, we will start with you. If you could sum up
your statement for us in a few minutes, and then we will move
to Mr. Moore, afterwards we will open it up for questions and
answers.
Welcome, Ms. Lhamon. Please proceed.
STATEMENT OF CATHERINE LHAMON, J.D., ASSISTANT SECRETARY FOR
CIVIL RIGHTS, U.S. DEPARTMENT OF EDUCATION, WASHINGTON, DC
Ms. Lhamon. Thank you so much, Chairman Harkin, Ranking
Member Alexander, and members of the committee. I appreciate
the opportunity to share our work with you today.
I am Catherine Lhamon, Assistant Secretary for Civil Rights
at the U.S. Department of Education. The enormously talented
staff that I work with and I have the privilege of enforcing
our Nation's Federal civil rights laws in schools, including
title IX of the Education Amendments of 1972, and we have made
as a country great strides in the 42 years since title IX
became law, with many colleges and universities having changed
their policies, their practices so that they are not
discriminating and in compliance with the law, and I applaud
those colleges and universities for recognizing that their core
educational mission includes ensuring safety of their students
on campus.
Still, sexual violence is pervasive across too many of our
campuses. We are committed to ending that reality in schools.
In this Administration, we have investigated more than 100
institutions of post-secondary education. We've issued policy
guidance, and we've delivered significant technical assistance
to colleges and universities that have reached out to us.
The President and Vice President have prioritized this
issue, including by creating the White House Task Force on
Protecting Students from Sexual Violence this last January. One
key deliverable in the first 90 days from that task force was
the issuance from my office of a 52-point questions and answers
document that supplements our previous guidance related to
sexual violence so that we could answer the many questions that
have come to us from colleges, from universities, from the
community about ways to comply with the law, the ways that we
enforce, and what it is that we expect in schools.
We had already issued guidance in 2001 related to sexual
harassment, and then in 2011 this Administration was the first
administration ever to issue guidance specifically focused on
sexual violence and calling out sexual violence as a civil
rights issue.
In addition to issuing that guidance, we have, as I
mentioned, delivered significant technical assistance to
colleges and to universities who have reached out to us with
questions about what they can do to better deliver for their
students, and we're very pleased to be able to use that tool,
and we use all tools available to us, including our enforcement
tool, and I'd like to share some of our recent examples of
enforcement in this area as examples of the ways that we've
been able to achieve robust agreements to change the experience
of students on campus.
Just last fall, we entered into an agreement with the State
University of New York, which is the largest institution of
public higher education in the country, serving 219,000
students across 29 State-operated campuses. It was the largest
single impact that we could have had with a single
investigation. I am enormously impressed with the SUNY system
for having the courage and the leadership to commit that across
all of its campuses they would change their policies so that
they are fully compliant with title IX and so that they deliver
the message to their students on all of their campuses of
disapprobation related to sexual violence.
They have also committed to reopen their case files, their
investigative files since 2011 to identify whether there is
more relief that can be delivered to the complainants who have
come to them and what more should be done. They will report to
us what it is in addition that they will do, and if not, why
not, so that we can evaluate whether they have changed their
practices to make sure that they are responding in a timely
fashion to the complainants who come forward to them.
We, as part of our investigation for the SUNY system,
reviewed 159 case files across their campuses to take a look at
the ways the university system had investigated the complaints
that had come to it, and we had significant concerns. We are
really impressed with the SUNY system for agreeing to reopen
those files and to identify what, if anything more, should be
done.
Another really key component of that resolution agreement
is an agreement for each of their campuses across the State of
New York to bring in the community to evaluate what more may
need to be done to make students safe. That recognizes, as
Chairman Harkin noted, that there is no one-size-fits-all
approach. What works at SUNY Albany may not be the same thing
that is necessary at SUNY Stony Brook. So they are involving
their communities to identify what needs to be done at each
campus to make sure that the students are safe, and they will
report to our office what it is that the community members have
asked for; what, if any, changes they will make; and if not,
why not, so that we can be part of ensuring the full community
response and the solution at those schools.
Moving from a very large institution to a much smaller
scenario, just this last spring we entered into a resolution
agreement with the Virginia Military Institute, which has about
1,500 students. It's a much smaller campus, a much smaller
institution, but also very significant concerns and very
significant resolution that commits for retraining, a change in
policy at the campus, and ensuring safety for all the students
on that campus, even after some fairly significant harrowing
sets of facts that included a system that had a policy that
required students who became pregnant to leave the Virginia
Military Institute altogether and could no longer be students
there. That has also changed as a result of the resolution
agreement.
But as against that backdrop, the institution had failed to
involve the title IX coordinator when a senior cadet had issued
wire hangers to young women cadets and called them their
abortion tools. The school had not taken appropriate steps to
discipline the student and also to ensure that the title IX
coordinator was involved in making sure that that campus could
be safer. That will be changed going forward. I'm very pleased
that the Virginia Military Institute has agreed to enter into a
resolution agreement to change those practices and ensure non-
discrimination for all of the students on that campus.
And then moving from the large and the small to the mid-
size campus, also last spring we entered into a resolution
agreement with Tufts University, and on the next panel you'll
hear from a student at Tufts about his experience there as
well. I'm really impressed with Tufts for agreeing to new
training to rectify a situation where they had not had a title
IX coordinator at all for a year and a half during the course
of our investigation, and for agreeing to make sure that they
do provide interim relief for students, that they do
investigate the complaints that come to them appropriately, and
that they change their policy to end practices, for example, of
including students' prior sexual history as part of an
investigation, which is, as we know, inappropriate, consistent
with title IX.
We have entered into very robust agreements with
universities of a variety of size across the country in our
enforcement space. I'm enormously proud of what my staff has
been able to achieve, and I look forward to continuing because
it is so critically important that we change the current
practice where there are people who think that they don't need
to comply with the law and that we don't need to satisfy what
it is that title IX has very clearly set out.
I look forward to answering any questions from this
committee, and I again really appreciate the opportunity to
share our work experience with you.
[The prepared statement of Ms. Lhamon follows:]
Prepared Statement of Catherine E. Lhamon, J.D.
Chairman Harkin, Ranking Member Alexander, members of the
committee--thank you for this opportunity to share the work of the
Department of Education's Office for Civil Rights, which enforces our
Nation's civil rights laws to ensure equal educational opportunity for
young women and men attending more than 7,000 colleges and universities
across the United States. It is critically important that we ensure
safe, nondiscriminatory learning environments for students in schools
and I am privileged to lead a dedicated, experienced, and visionary
staff that is committed to that critical work.
office of civil rights
As Assistant Secretary for Civil Rights at the Department of
Education, I am charged with enforcing Federal civil rights laws,
including Title IX of the Education Amendments of 1972, which prohibits
sex discrimination in education programs and activities receiving
Federal funds. Since the beginning of this Administration, my office
has investigated over a hundred sexual violence cases at the
postsecondary level, issued policy guidance documents regarding sexual
harassment and sexual violence, and provided technical assistance
related to sexual violence. Over my office's decades of work in this
area, OCR has developed significant expertise in these issues that we
regularly share with our Federal partners in the effort to address
sexual violence in schools.
As effective as we have been over the years, the problem of sexual
violence has nonetheless persisted across too many of our students'
experiences in institutions of higher education. The best available
research suggests that 20 percent of college women, and roughly 6
percent of college men, are victims of attempted or completed sexual
assault.
Operating from the fundamental principle that one student subject
to sexual assault is too many, President Obama established the White
House Task Force to Protect Students From Sexual Assault on January 22,
2014, directing the Task Force to focus specifically on permanently
ending the cultural prevalence of sexual violence during our young
people's typical transition from home to independence through college
or university degree completion. This charge from the President commits
the Task Force to ``develop a coordinated Federal response to campus
rape and sexual assault'' to end what the President rightly called ``an
affront to our basic decency and humanity.''
Colleges' and universities' core mission to educate students
necessarily includes ensuring that their students are safe to learn in
class, in school facilities, on their campuses. Sexual assault denies
students the right to learn in an educational environment free from sex
discrimination. When universities fail to respond adequately to campus
sexual assault, they may be forcing the affected students to attend
school in a sexually hostile environment. This environment deprives
them of their freedom to go to class without being re-traumatized by a
perpetrator sitting a few seats away, walk on campus without being
harassed by a perpetrator's friends, attend a party on-campus, or even
feel safe in their own dorm rooms. And it can profoundly damage
students' physical and emotional well-being in ways that deprive them
of the opportunity to obtain an education altogether.
I am pleased to see that many colleges and universities are
stepping up to the challenge of addressing the problem of sexual
assault. For example, within months of the release of the Department of
Education's Office for Civil Rights 2011 Dear Colleague Letter on
sexual violence, many colleges and universities revised their sexual
violence policies and procedures consistent with our guidance. We
applaud these schools for taking the initiative to keep their students
safe without waiting for enforcement intervention from my office or
from the Department of Justice.
But some schools still are failing their students by responding
inadequately to sexual assaults on campus. For those schools, my office
and this Administration have made it clear that the time for delay is
over. This Administration is committed to using all its tools to ensure
that all schools comply with title IX so campuses will be safer for
students across the country.
coordinating across government and with students, school officials, and
other stakeholders
President Obama launched the White House Task Force to Protect
Students from Sexual Assault (Task Force) in January 2014. This
interagency effort is charged with addressing campus sexual assault by
coordinating Federal enforcement efforts; consulting with advocates,
students, colleges and universities, and other stakeholders; and
developing recommendations and resources for students and higher
education institutions. Led by the Office of the Vice President and the
White House Council on Women and Girls, the Task Force includes
designees of the Attorney General, the Secretary of the Interior, the
Secretary of Health and Human Services, the Secretary of Education, the
Director of the White House Office of Science and Technology Policy,
the Director of the White House Domestic Policy Council, and the
Cabinet Secretary. I serve as Secretary of Education Arne Duncan's
designee on the Task Force.
During its first 2 months, the Task Force prioritized hearing from
people across the country who are invested in this issue, holding 27
listening sessions (12 webinars and 15 in-person meetings) with
thousands of people including survivors; students; alumni; faculty,
staff, and administrators from colleges and universities; parents;
national survivors' rights and education associations; local and
campus-based service providers and advocates; law enforcement; civil
rights activists; school general counsels; men's and women's groups;
Greek organizations; athletes; and researchers and academics.
After hearing from these stakeholders, the Task Force delivered its
first report to the President in April 2014, which included
recommendations and resources aimed at preventing and addressing campus
sexual assault. Key deliverables in that first Task Force report
included a 53-page detailed question and answer (Q&A) document issued
from my office on April 29th of this year, regarding title IX
requirements for campus investigation and enforcement regarding sexual
violence; the creation of a new website--www.NotAlone.gov--that
compiles, in one place for the public to access, information related to
the law, enforcement, and available government and nongovernmental
resources; a compilation of materials related to effective training for
students and for school and health center and victim services staff
regarding such important topics as trauma-informed responses and best
practices for investigations; a chart detailing a school's reporting
obligations under title IX and the Clery Act, and how each intersects
with the Family Educational Rights and Privacy Act (FERPA); and a
public service announcement about the need for transformation in
attitudes toward sexual violence.
Among other provisions, the report calls on colleges and
universities to conduct a campus climate survey to assess perceptions
of safety on campuses and help identify areas for targeted safety
efforts, identifies resources on primary prevention strategies and
bystander intervention programs, provides schools with a sample
reporting and confidentiality policy so that it is clear to whom on
campus students can report confidentially, and delivers a checklist for
colleges and universities to use while developing a sexual misconduct
policy.
The Task Force report also details commitments to conduct more
research, develop additional sample policy language on other key
issues, develop training programs for school officials and
investigators, and identify promising practices for investigating and
adjudicating campus sexual assault cases. For example, several
universities have volunteered to pursue research that will help us
better understand and prevent sexual assault.
The Task Force report also details this Administration's commitment
to improving and better coordinating our enforcement efforts within and
across responsible agencies. For example, the Department's Federal
Student Aid (FSA) office is responsible for Clery Act compliance,
whereas OCR enforces title IX, and sometimes our efforts overlap. The
Clery Act requires institutions of higher education to provide current
and prospective students and employees, the public, and the Department
with crime statistics and information about campus crime prevention
programs and policies. The Clery Act requirements apply to many crimes
other than those addressed by title IX. For those areas in which the
Clery Act and title IX both apply, the institution must comply with
both laws. To clarify roles and increase efficiency, FSA and OCR have
formalized an agreement to ensure effective handling of complaints and
to facilitate information sharing.
Similarly, OCR and the U.S. Department of Justice's Department's
Civil Rights Division (CRT) both enforce title IX, and we have
committed to improving our coordination and collaboration. The two
offices have entered into an agreement to enhance our collaboration and
strengthen enforcement. These changes will improve the Administration's
collective enforcement efforts to ensure that schools comply with title
IX.
Finally, the Task Force report announced our commitment to make OCR
enforcement activity more transparent, in this and all areas. Shortly
after the Vice President released the Task Force report, my office
began making public the list of colleges and universities we are
investigating regarding sexual violence concerns. This new transparency
adds an important tool to the culture change President Obama called for
when creating the Task Force, beginning a new era when our collective
disapprobation of sexual violence holds fuller salience and effect at
colleges and universities.
ocr's efforts to address sexual assault on college campuses
OCR's work begins with the recognition that each school has the
ultimate responsibility for creating a nondiscriminatory learning
environment and ensuring that its policies, practices, and procedures
protect all students from discriminatory abuse, violence, and
harassment. There is no universal, one-size-fits-all approach that will
be right for every school or all students; and the Department makes no
effort to mandate a single approach. School policies will vary in
detail, specificity, and components, reflecting differences in State or
local legal requirements and each school's students, size,
administrative structure, and what it has learned from past
experiences.
Issuing Policy Guidance on Title IX and Sexual Violence
OCR issues policy guidance to inform schools and the public about
critical and emerging issues arising under the laws and regulations OCR
enforces, as a complement to our technical assistance and enforcement
activities. This policy guidance offers clear direction to schools in
areas of pressing concern, including sexual violence.
Despite the fact that schools have had a longstanding obligation
under title IX to respond to sexual harassment and sexual violence
against students, our enforcement work and the technical assistance
requests that we receive indicate that schools have been unsure of how
to handle some of the unique issues that arise in this context. For
example, through our investigations, we know that some colleges and
universities are:
Retaliating against students for filing complaints thereby
discouraging other survivors from filing complaints;
Delaying investigations for months or longer;
Delaying services and support to survivors when their
investigations are pending or providing inadequate interim relief;
Utilizing policies and procedures that are not clear,
transparent, or fair, or not following its own procedures;
Addressing sexual violence solely as a criminal matter and
not under title IX or delaying the title IX investigation pending the
conclusion of the criminal investigation; and
Allowing the perpetrator to remain in school after being
found responsible for sexual assault and then sexually assaulting
another student.
To address this, OCR issued guidance in April 2011 in the form of a
Dear Colleague letter (2011 DCL) to help schools better understand
their obligations under title IX to prevent and respond to sexual
violence. OCR's 2011 DCL marked the first time that any Administration
had issued guidance under title IX specifically dealing with sexual
violence.
The 2011 DCL affirms that the title IX requirements for sexual
harassment and OCR's 2001 guidance on sexual harassment also apply to
sexual violence and lays out the specific title IX requirements
applicable to sexual violence. It addresses the unique concerns that
arise in sexual violence cases, such as the role of criminal
investigations and a school's independent responsibility to investigate
and address incidents of sexual violence, regardless of whether a
criminal violation is found. It also provides guidance and examples
about key title IX requirements and how they relate to sexual
violence--including schools' obligations to have a policy against sex
discrimination, the important role of title IX coordinators, and the
requirements for a school's grievance procedures to be prompt and
equitable. The 2011 DCL discusses the proactive efforts schools can
take to prevent sexual violence and to educate employees and students
and provides examples of the types of remedies that schools and OCR may
use to respond to sexual violence.
Our release of the 2011 DCL is widely credited with having sparked
significant changes at colleges and universities as they worked to meet
title IX's requirements consistent with the 2011 DCL. Those efforts
generated many further questions from schools and students about how to
apply the requirements and recommendations articulated in the 2011 DCL.
To answer those questions, OCR issued a Q&A document on title IX and
sexual violence (Q&A) on April 29, 2014, to give schools and students
the information they need to ensure compliance with title IX, and, more
importantly to prevent and effectively respond to victims of sexual
violence.
The Q&A answers questions OCR has received since the release of the
2011 DCL, provides perspective based on our more recent sexual violence
investigations and resolutions, and offers recommendations for good
policies and practices. It provides more guidance on what OCR means
when we say that title IX requires schools to take interim measures
before the outcome of an investigation. It makes clear that title IX
protects all students from sexual violence, regardless of whether they
have a disability or are international or undocumented, and regardless
of their sexual orientation and gender identity. The Q&A provides
answers to a number of questions OCR received with respect to
confidentiality requests and employees' reporting obligations. It also
provides more information on training, education, and prevention,
including detailed guidance on training employees to understand their
role in protecting student's rights and education and prevention
programs aimed at students. Finally, the Q&A answers questions that OCR
has received regarding the intersection of title IX and the Clery Act.
The Q&A explains that title IX and the Clery Act are two separate
statutes and that schools must comply with both. It also reiterates
that the amendments to the Clery Act in the Violence Against Women
Reauthorization Act of 2013 in no way alter schools' obligations under
title IX, including those set forth in OCR's 2011 DCL.
Providing Resources and Technical Assistance
OCR has 12 regional offices around the country that are equipped to
provide technical assistance to school officials, parents, students,
and others to inform them of their rights and responsibilities under
the law. OCR does this through a variety of methods, and the form of
our assistance is dictated largely by the needs of the school, group,
or individuals requesting information. In some instances, a school will
contact OCR because it has questions about the best way to comply with
title IX, and OCR will have a phone or in-person meeting with the
relevant administrators of the school to listen to their concerns and
provide guidance on how to ensure compliance. This provides schools
with a way to come into compliance without the threat of enforcement
action. Likewise, OCR routinely participates in trainings and
conferences conducted by groups that count college and university
leadership among their members, such as the National Association of
College and University Attorneys. Again, this type of assistance
provides schools with an outlet to ask questions and receive answers
directly from OCR--without worrying about opening themselves to an
enforcement action. OCR also participates in community meetings, and
publishes and disseminates materials to students, parents, teachers,
administrators, schools, and community groups.
Enforcing Title IX
OCR's complaint process allows any member of the public to file a
complaint with our office. Since the beginning of this administration,
OCR has received 260 complaints involving sexual violence in
educational institutions as of June 19, 2014. Of those 260, 147 were at
the postsecondary level. My office also launches proactive
investigations, such as compliance reviews and directed investigations,
to remedy possible violations of students' rights. We initiate
compliance reviews to examine potential systemic violations based on
various sources of information, including statistical data, news
reports, and information from parents, advocacy groups, and community
organizations.
We can also initiate directed investigations when a report or any
other information indicates a possible failure to comply with the
regulations and laws enforced by OCR. A directed investigation is a
review that allows for immediate investigation of urgent and critical
civil rights problems where the effects of possible discrimination are
sufficiently serious to deny or limit the ability of students (and
others) to participate in, or benefit from, the educational program or
activity. Since January 2009, OCR has initiated 20 proactive
investigations (i.e., compliance reviews and directed investigations)
focused on sexual violence and 14 of these are at the postsecondary
level. The Obama administration has prioritized addressing sexual
violence in our Nation's schools: sexual violence compliance reviews
are almost 13 percent of the total number of compliance reviews that my
office has initiated since 2009, while sexual violence complaints are
less than 1 percent of the total number of complaints we receive.
Under the statutory enforcement scheme, when we find a recipient of
Department funding to have violated title IX or any of the civil rights
provisions we enforce, we must attempt to obtain voluntary compliance
by the recipient. If OCR cannot secure voluntary compliance from the
recipient, OCR may initiate an administrative action to terminate and/
or refuse to grant Federal funds or refer the case to the DOJ to file a
lawsuit against the school. To revoke Federal funds--the ultimate
penalty--is a powerful tool because institutions receive billions of
dollars a year from the Federal Government for student financial aid,
academic resources and many other functions of higher education. OCR
has not had to impose this severe penalty on any institution recently
because our enforcement has consistently resulted in institutions
agreeing to take the steps necessary to come into compliance and ensure
that students can learn in safe, nondiscriminatory environments.
OCR has strengthened our enforcement procedures, including
instituting time limits for negotiating voluntary resolution
agreements. The voluntary resolution process is usually much faster
than litigation but it can still take time and include frustrating
delays. To ensure efficient as well as effective resolution of
noncompliance findings, and to help guard against the risk that a
school might extend negotiations to delay enforcement, OCR has placed a
90-day limit on voluntary resolution agreement negotiations where we
have found a school in violation of the civil rights laws we enforce,
including title IX. In addition, we have changed our procedures to make
explicit that schools should provide survivors with interim relief--
such as changing housing or class schedules, issuing no-contact orders,
or providing counseling--where necessary because of safety concerns
pending the outcome of an OCR investigation.
These outcomes highlight the robust remedies we require in our
resolution agreements, which are designed to empower the entire school,
college, or university community to address issues of sexual violence.
Our remedies engage schools and communities to create lasting and
meaningful change, and we remain actively involved in monitoring to
ensure that paper promises translate into lived reality for students in
affected schools.
Increasing Transparency
Soon after I took office in August 2013, I instructed my staff to
post nearly all recent resolution letters and agreements with
recipients on our website, except those documents that raise individual
privacy concerns. In addition, as discussed above, we have posted
sexual violence resolution agreements and letters on NotAlone.gov to
make them more accessible to students, parents, and community members.
And, as discussed above, we have made public, for the first time, a
list of all colleges and universities under OCR investigation for the
handling of sexual violence and harassment complaints. My hope is that
this increased transparency spurs community dialog about this important
issue. I expect that this additional transparency regarding resolution
agreements, as well as institutions under investigation will be an
important enforcement tool, raising public awareness regarding the
issues and prompting action at additional schools to achieve fuller
compliance with the laws.
Consistent with these transparency efforts, the Department also
plans to collect and disseminate a list of title IX coordinators at the
postsecondary level starting in 2015. Every college and university is
required by law to designate at least one title IX coordinator, an
employee charged with coordinating the school's title IX
responsibilities. Schools are required to notify students and employees
of the name and contact information of the title IX coordinator.
However, there is currently no central, national repository of
coordinator contact information. My office is working with the
Department's Office of Postsecondary Education to collect and
disseminate the list of higher education title IX coordinators annually
so students, employees, parents, and community members can easily
locate their school's coordinator. We also hope that this information
will encourage title IX coordinators to communicate with each other and
share best practices for title IX compliance.
conclusion
As Secretary Duncan has said,
``All members of the campus community bear responsibility for
acting now to end campus cultures that tolerate sexual
violence. The days of telling survivors they should just
forgive and forget sexual assaults must come to an end.''
Along with the rest of the Administration, we at OCR are committed
to helping colleges and universities achieve these goals. By
coordinating with other government agencies, vigorously enforcing title
IX, increasing transparency in our investigations and resolutions,
issuing policy guidance on title IX and sexual violence, and providing
resources and technical assistance, OCR continues to work to remedy
hostile campus climates and make campuses safe for all students.
I would be happy to respond to questions from the committee.
The Chairman. Thank you very much, Ms. Lhamon.
Mr. Moore.
STATEMENT OF JAMES L. MOORE III, COMPLIANCE MANAGER, CLERY ACT
COMPLIANCE DIVISION, U.S. DEPARTMENT OF EDUCATION,
PHILADELPHIA, PA
Mr. Moore. Good morning, Chairman Harkin, Ranking Member
Alexander, and members of the committee. My name is James
Moore, and I manage the Clery Act Compliance Division at the
U.S. Department of Education. Thank you for inviting me to
discuss the Department's role in enforcing the Clery Act, and
especially the implementation of the amendments to the Clery
Act in Section 304 of the Violence Against Women Act
reauthorization.
College should be a special time in the life of every
student, a time of exploration, discovery, and joyful memories.
But for far too many of our students, they have been denied the
best of the college experience because of the crisis of sexual
assault and other violent crime on campus.
As you know, the Clery Act promotes consumer protection and
transparency about crime and other public safety matters by
promoting transparency and by requiring institutions that
participate in the Federal Student Aid programs to provide
accurate and realistic views of campus crime on campus and in
the surrounding area.
It is essential that campus safety and crime prevention
information as provided to students, parents, and employees is
of the highest quality. Members of our campus community should
not have to wonder if the crime information that is provided to
them is accurate, or have to worry that the information has
been purposefully manipulated to create false impressions or to
protect their school's brand. For young people who are often
new to a community on campus, anything that creates a false
sense of security is especially dangerous.
To hold institutions accountable, the Department created a
dedicated team to monitor and enforce these rules. The original
Clery team was formed in 2010, and in 2012 FSA, Federal Student
Aid, realigned the team to strengthen it and make it more
prominent within the Office of Program Compliance. In a short
time, the team now known as the Clery Act Compliance Division
has had a significant impact on the way that institutions
confront campus crime. This team of highly skilled
professionals that I am honored to lead is dedicated to the
cause of campus safety and carries out its mission with the
safety of the Nation's students and educators foremost in their
mind.
The Department is committed to improving Clery Act
compliance and campus safety through a balanced approach of
enforcement and technical assistance. One of our operating
principles is that we will assist schools whenever we can and
enforce whenever we must.
The campus crime program review process is the primary
component of our enforcement effort. The Clery Division
conducts these reviews to assess compliance with the Act and
the Department's regulations. It also works with institutions
to ensure that corrective actions are implemented and
sustained.
Recently, most of our reviews have been driven by
complaints from our students, who are always our best source of
information and who help us understand how crime is affecting
their lives on campus. Here, I must pause to thank the new
generation of student advocates and activists who have
developed a sophisticated understanding of the Clery Act and
title IX. These students are using their knowledge to assist
survivors and to make their campuses safer for everyone.
I also want you to know that we supplement our complaint-
based reviews with proactive compliance examinations that we
conduct as part of a partnership with the FBI. In addition, our
Office of Program Compliance conducts about 300 program reviews
each year. Most of those reviews focus on financial aid
compliance matters, but we have added a Clery Act and Drug-Free
Schools and Communities Act test component to each of those
reviews, and my team oversees the work that those teams do on
these matters to ensure consistency across the country.
The Clery Division also monitors media coverage of campus
crimes, and we conduct assessments of major incidents to
determine if institutions have complied with the Clery Act in
response to those incidents.
I would like to share with you a little bit of information
about the recent work that we've done to implement the Violence
Against Women Act reauthorization components of the Clery Act.
As you know, last week the Department published proposed
regulations that will fully implement the changes made to the
Clery Act by VAWA. I can tell you that in my 17-plus years in
this agency, I have never been more impressed or proud of a
rulemaking effort.
Work began on our implementation strategy immediately after
VAWA's passage, and from the very beginning we have focused on
reaching out to the people who are most affected by campus
sexual assault and to top experts in the field who have
dedicated their lives to addressing this problem. In May and
June of last year, the Department held public hearings where we
heard from students and advocates and institutional officials
on a range of campus crime topics, including the proper role of
law enforcement in campus sexual assault investigations and the
need to find a balance between transparency and
confidentiality.
In fall 2013, we conducted outreach sessions with student
groups, campus safety advocates, campus law enforcement and
other stakeholders to develop our understanding of their
concerns and to hear directly from them about how the law
should be implemented. We also built relationships with
colleagues across the government and higher education so that
our rulemaking effort and enforcement program could benefit
from their expertise.
From January through March of this year, we brought
together 28 negotiators, including one who will be on your next
panel, representing a broad range of experience, interests, and
perspectives, including campus law enforcement professionals,
victim advocates, school attorneys, title IX coordinators and,
most importantly, our students themselves in three negotiating
sessions. After careful consideration and extensive discussion,
the committee reached consensus on proposed regulatory language
on April 1st. This is a truly great accomplishment. While we
always strive to reach consensus during our negotiated
rulemaking sessions, it is often difficult to do so with so
many competing interests and perspectives represented.
After reviewing and considering the public comments we
receive on the proposed rule, we plan to issue final
regulations by November 1st of this year.
The Department is confident that the new VAWA provisions
will provide powerful tools to prevent incidents of campus
sexual assault, dating and domestic violence and stalking, and
to more effectively respond when these crimes do occur. These
changes will also ensure a fair and more orderly path for
survivors and their advocates to seek redress through campus
disciplinary bodies and ensure better access to the
accommodations and services to which survivors are entitled.
It is my sincere belief that these improvements to the
Clery Act, along with the hard work of our OCR colleagues and
the outstanding contributions of the White House Task Force to
Prevent Students from Sexual Assault, on which the Assistant
Secretary and I both serve, will result in meaningful and
lasting change.
In closing, I want to reiterate that we look forward to
continuing our collaboration with this committee, with our
institutional officials and our students in pursuit of our
collective goal to put an end to campus sexual assault. Thank
you, and I would be happy to take your questions.
[The prepared statement of Mr. Moore follows:]
Prepared Statement of James L. Moore III
Good afternoon Chairman Harkin, Ranking Member Alexander, and
members of the committee. Thank you for inviting me to discuss the
Department of Education's (Department) and specifically Federal Student
Aid's (FSA) role in enforcing the Clery Act and the implementation of
the amendments to the Clery Act in Section 304 of the Violence Against
Women Reauthorization Act of 2013 (VAWA 2013).
clery act
The Clery Act promotes consumer protection and transparency about
crime and other public safety matters by requiring institutions which
participate in the Federal student financial aid programs under Title
IV of the Higher Education Act of 1965, as amended (HEA) to provide
accurate and complete information about campus safety and crime
prevention to the campus community. The Clery Act requires schools to:
Collect and disclose statistics for the most serious
incidents of crimes against persons and property that are reported to
Campus Security Authorities and local law enforcement agencies that
occur on the campus or in the near-campus community;
Prepare, publish, and distribute to students and employees
an accurate and complete Annual Security Report that includes 3 years
of campus crime statistics, policy statements, and other safety-related
information;
Issue Timely Warnings and Emergency Notifications in
response to serious ongoing threats;
Maintain an open and easily understood daily crime log (if
they have a campus police or campus security office);
Submit crime statistics to the Secretary of Education
annually for inclusion in the Department's publicly available websites;
Comply with fire safety requirements, including
statistics, policies, and drills (if the school maintains on-campus
student residential facilities); and
With the passage of the amendments to the Clery Act in the
VAWA 2013 reauthorization, take additional specific steps to disclose
statistics, policy statements and other safety-related information on
sexual assaults, dating and domestic violence, and stalking on campus.
The Department's Clery Act Compliance Division (Clery Division)
within FSA has developed a monitoring and enforcement program to assess
compliance with these requirements. The Clery Division conducts in-
depth campus crime program reviews to identify any violations of the
Clery Act or the Department's regulations and appropriate responsive
corrective actions that need to be taken by the institution. There are
47 open Clery Act-focused program reviews or investigations.
Additionally, many reviews are the result of complaints filed by
victims of campus crime or their advocates--we are currently assessing
46 complaints filed by students or other stakeholders.
The Department proactively conducts non-complaint-based reviews.
Some of these latter reviews are conducted jointly with staff from the
Federal Bureau of Investigation (FBI) under a Memorandum of
Understanding between FSA and the audit unit of the FBI's Criminal
Justice Information Service. Of the 47 open Clery-Act focused program
reviews or investigations, 17 are part of our Quality Assurance Review
(QAR) partnership with the FBI.
In addition, FSA's Office of Program Compliance also conducts
approximately 300 program reviews each fiscal year to evaluate selected
institution's compliance with the Department's regulations. While these
reviews focus primarily on financial aid issues, a Clery Act and Drug-
Free Schools and Communities Act testing component is a part of each
general assessment review. We developed procedures for regional teams
to guide the conduct of the compliance checks and provide training to
regional office staff as well. In addition, we review each finding of
non-compliance for accuracy and completeness and revise them as needed.
Since we implemented this consultation process in June 2012, we have
completed work on 531 program review and audit findings.
The Clery Division also monitors media coverage of campus crime
activity and conducts a preliminary assessment of major campus crimes
to determine if any additional investigation is needed to determine if
the institution complied with the Clery Act in response to these
incidents. Since this program was put into place in January 2012, 477
incidents requiring an assessment have been identified. To support this
work, the Clery Division has developed a strategic plan through which
they are leveraging crime analytics and other technology to more
effectively monitor crime trends and identify possible compliance
failures.
The Department also utilizes the services of Westat, a Federal
contractor, to collect campus crime statistics from institutions and to
provide customer support services. At the beginning of each year,
Westat assists the Department in collecting annual crime and fire
safety data from postsecondary institutions. In January, Westat sends a
broadcast email to all institutions participating in the title IV
programs, reminding them of their responsibility under the Clery Act to
make a good-faith effort to collect crime statistics from local and
State law enforcement agencies. The process includes reminding
institutions of their obligations, administering the on-line data
collection of crime statistics, monitoring submissions by institutions,
and data review and correction, if necessary.
Westat also maintains a year-round Help Desk to provide assistance
to postsecondary institutions and agencies without interruption. All
Help Desk staff members receive annual training on all Clery Act
requirements, the content of the annual data collection, and the online
data collection tool. In 2013, the Help Desk responded to 5,207
incoming phone calls and 1,684 incoming emails from postsecondary
institutions or agencies looking for guidance on Clery Act compliance
or seeking assistance in submitting their annual statistics.
vawa 2013
Over the years, Congress has amended and expanded the Clery Act to
confront new and emerging security threats, and to address impediments
to campus safety. In March 2013 President Obama signed VAWA 2013, which
strengthened Clery to more effectively address, and ultimately reduce,
all forms of violent campus crime, including many insidious 21st
Century safety threats such as cyber-stalking and other acts of
harassment and intimidation that are committed by electronic means.
Soon after VAWA 2013 was signed into law, the Department developed
a strategy to ensure that these new provisions were implemented as
quickly as possible and in a manner that ensured that the specific
goals of section 304 were achieved. Like each of you, we at the
Department are very concerned about the crisis of sexual violence on
college campuses. Because of that concern, we have focused a great deal
of time and attention on issues of campus crime, including a particular
focus on campus sexual assault.
First, in May 2013, the Department provided guidance to
institutions explaining the basic requirements of the law, and how they
would be impacted by the rulemaking process. Because we knew the
changes made to the Clery Act would take effect before we had an
opportunity to finalize our regulations, we informed institutions that
they should prepare to make a ``good faith effort'' to comply with the
law in this year's reports, which are due on October 1, 2014. As
schools begin to compile those reports over the next few months, the
Department will be reaching out with more detailed guidance on how best
to comply with the law in the absence of final regulations. This
outreach will include direct communication with institutions' chief
executive officers, financial aid administrators, and chief campus
safety officers at all title IV institutions. The Department will
continue to offer support and technical assistance to institutions as
they make their good faith effort to comply with the new requirements
between now and October.
At the same time, the Department has been working to finalize the
regulations that will fully implement the changes made to the Clery Act
under VAWA 2013.
I can tell you that in my 17+ years in this agency, I have never
been more impressed or proud of a rulemaking effort. Planning efforts
began immediately after VAWA's 2013 passage, and we strove from the
beginning to gather as much input directly from the people who have
been most affected by campus sexual assault and from those with
expertise in addressing this problem. In May and June last year, the
Department solicited written comment and held public hearings, where we
heard from student advocates and institutional officials on a range of
topics, from the appropriate level of enforcement to the need to
balance transparency with requests for confidentiality. In the fall of
2013, in anticipation of our negotiated rulemaking sessions, we reached
out to students, survivors, campus safety advocates, campus public
safety officials, and other institutional officials to learn more about
the issues they believed were most critical to the implementation of
the law and to deepen our understanding of their concerns. We also
built relationships with colleagues across the government and higher
education, including the Departments of Justice and Health and Human
Services (HHS), and the Centers for Disease Control and Prevention in
HHS, so that our rulemaking effort and enforcement program could
benefit from their expertise.
From January through March of this year, we brought together 28
negotiators representing a broad range of experience, interests, and
perspectives including campus law enforcement and security
professionals, victim advocates, school attorneys, title IX
coordinators, student affairs professionals, and most importantly,
students themselves, for three negotiating sessions to develop the
regulations.
Working together under considerable time pressures, the committee
reached agreement on proposed regulations that would:
Clarify definitions for dating violence, domestic
violence, and stalking;
Develop instructions for counting incidents of the new
VAWA 2013 crimes--especially patterns of stalking;
Specify requirements for prevention and awareness programs
and campaigns;
Ensure that institutional disciplinary proceedings are
prompt, fair, and impartial;
Set standards for the protection of survivor
confidentiality while still ensuring survivors have access to the
support, treatment, and disciplinary and legal options they need; and
Ensure that accused individuals are treated fairly in
student disciplinary proceedings.
After careful consideration and extensive discussion, the committee
reached consensus on proposed regulatory language on April 1st. This is
a great accomplishment--while we always strive to reach consensus
during our negotiated rulemaking sessions, it is often difficult to do
so with so many competing and affected stakeholders. We published the
proposed regulations in mid-June to once again receive feedback and
guidance from the public. After reviewing and considering the public
comments we receive, we plan to publish final regulations by November
1, 2014.
In the rulemaking process for VAWA 2013, the Department made clear
that the VAWA 2013 amendments to the Clery Act in no way alter on a
school's obligations under title IX. Nothing in section 304 or any
other part of VAWA 2013 relieves a school of its obligation to comply
with the requirements of title IX, including those set forth in Q&A
documents, Dear Colleague Letters, or forms of guidance issued by the
Department.
The Department is confident that the new VAWA 2013 provisions will
provide powerful tools for preventing and addressing campus sexual
assaults, dating and domestic violence, and stalking. These changes
will ensure a fairer and more orderly path for survivors and their
advocates to seek redress through campus disciplinary processes, and
will help to ensure better access to the accommodations and services to
which survivors are entitled.
compliance
In addition to our recent rulemaking effort, institutions that
participate in our programs have been put on notice that the Department
has expanded and enhanced its compliance monitoring and enforcement
program--we now have 13 staff dedicated to ensuring Clery compliance.
For example, FSA and the Office for Civil Rights have formalized an
agreement to ensure the most efficient and effective handling of
complaints and to facilitate information sharing. The Department takes
its responsibility to monitor and enforce compliance with the Clery Act
very seriously, because all students should have the opportunity to
pursue their education without fear.
For that reason, we also continue to work proactively with
institutions to develop effective campus safety operations and to
enhance their Clery Act compliance programs. In recent years, we have
enhanced our guidance on Clery Act compliance and will be publishing a
new version of our Handbook for Campus Safety and Security Reporting to
inform institutional officials about the new VAWA 2013 requirements. We
have also ramped up our training efforts on compliance with the Clery
Act and the Drug-Free Schools and Communities Act, a companion law that
we also enforce. We have had the opportunity to train institution
officials at several national and regional training conferences
including FSA's National Training Conference, which consistently draws
more than 5,500 institutional officials each year. In an effort to
complement this work, FSA is in the process of developing a new online
Clery Act compliance training module that will be available to all
schools free of charge.
white house task force
In addition to my work at Federal Student Aid, I am honored to
serve on the White House Task Force to Protect Students from Sexual
Assault. As part of the Task Force's work, we have had the chance to
hear from many of our key stakeholders and have had the unique
opportunity to contribute to an ambitious effort that has as its
ultimate goal to finally put an end to campus sexual assault. All of us
at the Department will continue to partner with each other and to
collaborate with this committee, the advocacy and law enforcement
communities, and, most importantly, with our students, in pursuit of
that goal.
conclusion
Once again, it is an honor to have this opportunity to be here and
on behalf of Secretary Duncan and my colleagues at the Department, I
thank you for your leadership on this issue and for all that this
committee is doing to make America's college campuses safer and I
welcome the committee's questions.
The Chairman. Thank you both very much for your statements.
We will now turn to a round of 5-minute questions.
Ms. Lhamon, about title IX and enforcement mechanisms for
title IX: basically terminating all Federal funding for an
institution, if I remember right in reading your statement last
night, you said that has never been used.
Ms. Lhamon. It has never been used in an institution of
higher education. It has been used with school districts.
The Chairman. But not for an institution for this kind of
an incident.
Ms. Lhamon. We have not had to actually withhold Federal
funds for a college or university. If I may, just last April we
have, I think, the best example of how well that tool is
working for us. Tufts University, after they entered into a
resolution agreement with us, purported to revoke that
agreement, and I sent them a letter telling them that they were
in breach of the agreement and telling them that they had 60
days to cure or that we would begin the process to revoke
Federal funds. Within 2 weeks, Tufts University came back into
compliance, not into compliance with title IX but into
compliance with the resolution agreement itself.
So the threat of withholding Federal funds is a very
significant enforcement tool for us. It's one of the reasons
that we've been able to see our institutions enter into
agreements with us.
The Chairman. You've given me one example, but your
statement says it's never been used.
Ms. Lhamon. It's never been used that we've actually had to
withhold the funds. It has been used as an incentive for the
institutions to be able to comply with the law.
The Chairman. What we call a nuclear option around here.
Ms. Lhamon. And it's a pretty good nuclear option. My
concern would be not having the nuclear option because----
The Chairman. It is a very good option. It may be something
that you have in the background, but there may be other options
that you can use, such as diverting funds for example--in other
words, saying as part of your title IV money, because of this
violation now, some of those funds have to be diverted to
campus-based programs for prevention and information and
support activities for students.
Ms. Lhamon. With respect to that, Senator Harkin, I think
we do have that opportunity. As part of the resolution
agreements, we do enter into agreements with institutions that
they change their practices, which have costs associated with
them. The institutions have to have counsel who----
The Chairman. You have the authority to divert funds.
Ms. Lhamon. Not to divert funds, but we do have the
authority to direct them to take steps that have to use funds
and that are costly.
The Chairman. But you don't have the authority to tell them
that, no, you have to direct funds for that.
Ms. Lhamon. I think that's a semantic difference. The
schools, when they have to take steps that cost money, do
divert funds toward those practices, and those practices
include, for example, paying damages to complainants who have
come forward. They include retaining additional staff who have
to focus on a particular project and report to us about it.
They include creating climate surveys and conducting them on
their campus. They include taking steps to train students that
cost money, and to train staff that cost money. That is a
diversion of funds, and that's very significant for the
campuses.
In my 17 years as a civil rights litigator before I came to
this Administration, what I did was use what is a nuclear
option, which is to say there will be a very significant
consequence.
The Chairman. Are you telling me you don't need any more
authority or anything else from this committee or from the
Congress to carry out your oversight and your ability to
sanction, to redirect funds at any of these institutions? You
don't need anything else from us? You have all the authority
you need?
Ms. Lhamon. I am saying I think I have all the authority I
need. It's not my view that we lack a tool that is meaningful
for us.
The Chairman. That's amazing to me.
Ms. Lhamon. And it's very satisfactory for me.
The Chairman. That you have all the tools you need.
Ms. Lhamon. I think that we have the enforcement tool that
we need.
The Chairman. Because obviously something is not working
out there. I'm sorry, Ms. Lhamon, but some things aren't
working.
Ms. Lhamon. Some things are not working.
The Chairman. Students still continue--even you in your
testimony said that through your investigations we know that
colleges and universities are retaliating against students for
filing complaints, discouraging other survivors from filing
complaints, delaying investigations for months or longer,
delaying service and support to survivors when their
investigations are pending, or providing inadequate interim
relief, and on and on and on, addressing sexual violence solely
as a criminal matter and not under title IX. You're saying this
is what's happening out there.
Ms. Lhamon. Those are very, very significant concerns, and
those are things that we want to see changed on campuses all
over the country, anywhere that they happen. I think that we've
been able to enter into robust agreements that are taking those
steps. I would be delighted to work with you and your staff on
this as we go forward. It's critically important to us to make
sure that all of our students are safe, and I think that we're
moving in that direction.
The Chairman. Maybe I'm not hearing this right, but I guess
what you're saying is nothing more needs to be done on our end.
You have all the authority you need to take care of this.
Ms. Lhamon. I apologize if I even suggested that that were
true. I would love to identify ways that we could work
together. My view is that the importance of the threat of
withholding Federal funds is something that should not be
undermined, and that that is something that has been a very
effective tool for us. I think that we should be clear that
that is so, and that there may well be more things that we
could do, and I would welcome them to add to the arsenal
because I think it's critically important that we deliver for
all kids.
The Chairman. Mr. Moore, let me ask you--my time is running
out, I only have 1 second left. But in terms of information on
the Clery Act, schools are required to provide this information
to the students, and the general public at large. How good a
job do they do of informing incoming students and their
families as to what the incidences are of sexual violence on
the campus? I mean, in other words, when students look at
colleges, where they ought to go, are they able to look at this
information? Is this presented in a format that they can see
and compare from one college to another what's happening?
Mr. Moore. Thank you, Senator Harkin, for the question. All
institutions are required to notify prospective students and
employees about this material, what we call the Annual Security
Report, and make it available upon request. Most schools have
put it on their websites and it's right there when you go on to
apply to a school for a job or for enrollment.
The Chairman. So are you saying, again, that the schools
are basically doing a good job of this, that they're being
accurate, they're being honest about reporting this to
prospective students and their families?
Mr. Moore. They're doing a relatively good job of producing
the reports. We do find significant violations at some
institutions with the statistics. So I would say that there are
violations out there. We know that. We find those in our cases,
and where we find them, we take action. We're hoping that these
new requirements under VAWA, they will give us some additional
tools and require additional disclosures that will allow
students to have better information about the environment that
they're going into with regard to sexual assault.
The Chairman. Got it. Thank you very much.
Senator Alexander. Thanks, Mr. Chairman.
Ms. Lhamon, Mr. Moore, you're both in the U.S. Department
of Education, right? Same department.
Ms. Lhamon. That's correct.
Senator Alexander. And Mr. Moore has just talked about
regulations that you are proposing under the Violence Against
Women Act amendments to the Clery Act. You've gone through a
public notice, or you're about to go through a comment period
on these where institutions will have a chance to say what they
think about it, anyone else will as well. Is that correct?
Mr. Moore. That's correct, Senator.
Senator Alexander. Ms. Lhamon, you talk about something
called ``guidance,'' and I have here about 66 pages of guidance
under title IX. Do you expect institutions to comply with your
title IX guidance documents?
Ms. Lhamon. We do.
Senator Alexander. You do. What authority do you have to do
that?
Why do you not then go through the same process of public
comment and rule and regulation that the same department over
here is going through under the Clery Act?
Ms. Lhamon. We would if there were regulatory changes.
Senator Alexander. Why are they not regulatory changes? You
require 6,000 institutions to comply with this, correct?
Ms. Lhamon. We do.
Senator Alexander. You do, even though you're just making
an edict without any chance for public comment, without any
regulatory approval? How can you do that?
Ms. Lhamon. I would not describe it that way.
Senator Alexander. I would. How can you do that? Why would
you not go out and ask institutions and people who might have
been assaulted what they think about your guidance before you
apply your guidance to 22 million students on 7,200 campuses?
Ms. Lhamon. First, we do. We have quite a long list of
conversations that we've had in person and through letters
and----
Senator Alexander. But you're in the same department of the
U.S. Department of Education. Under the Clery Act, he's going
through a regulatory process which publishes what he's doing
after stakeholder meetings, after discussions. He's asking for
comment. Then there's a regulation, and the Congress actually
has a chance to weigh in. But you're over there issuing your
own opinions, as far as I can tell. Correct?
Ms. Lhamon. No, that's not correct. We have gone through
the regulatory process----
Senator Alexander. Who is responsible for this? You?
Ms. Lhamon. I am, yes. But those are not just my opinions.
That is actually what the law is, and it's guidance about the
way that we enforce.
Senator Alexander. Is this the law? I thought we made the
law.
Ms. Lhamon. You do.
Senator Alexander. Do you make the law?
Ms. Lhamon. I do not make the law, but we explain----
Senator Alexander. All right. Then why do you say this is
what the law is?
Ms. Lhamon. Because it's an explanation of what title IX
means.
Senator Alexander. Who gave you the authority to do that?
Ms. Lhamon. With gratitude, you did when I was confirmed.
Senator Alexander. We told you that you could make the law
in title IX? Then why does he go through a public notice and
comment under the Clery Act if you don't have to?
Ms. Lhamon. I do have to go through a public notice and
comment period when we regulate. This is not regulatory
guidance.
Senator Alexander. I greatly disagree with that. I greatly
disagree with that. I think what you're doing----
Ms. Lhamon. I hear that.
Senator Alexander. What you're doing is writing out
detailed guidance for 22 million students on 7,200 campuses,
and it could be your whim, your idea. We make the law. You
don't make the law. Where does such a guidance authority come
from? Has it just grown up over time? Why would the same
department--how often do the two of you meet within your
department? How many times in the last year have you met?
Ms. Lhamon. I couldn't count them because it is so many.
Jim and I work together very, very closely.
Senator Alexander. And did you have input in his rules that
are proposed to be rules?
Ms. Lhamon. Yes. A member of my team has been part of the
notice and comment process.
Senator Alexander. I'm very concerned about the
arbitrariness of an individual in the Department saying what
the law is when I thought we were supposed to do that.
I understand your two offices have signed a formalized
agreement to better handle title IX and Clery Act complaints
and to share information. Is that correct?
Ms. Lhamon. That's correct.
Senator Alexander. Is that because in the past you have
really failed to coordinate and have created a good deal of
confusion on college campuses about how to coordinate the
responsibilities for dealing with sexual assault as they look
up at title IX and look up at the Clery Act?
Ms. Lhamon. Again, I wouldn't describe it that way. But I
do think that there was room for growth for us, and I'm really
pleased with the collaboration that my office and the Federal
Student Aid Office have been able to enter into and to
effectuate for students, certainly in the 10 months that I've
been here, and I think it's been working extremely well.
Senator Alexander. What kind of formal procedures did you
have to discuss your guidance with institutional officers who
have to comply with your guidance? How many meetings did you
have with institutional officers around the country?
Ms. Lhamon. I don't have the number off the top of my head,
but it took about 3 years to prepare that question and answer
document that followed the 2011 guidance, and in those 3 years
we had many, many meetings with college and university
officials, with associations of college and university
officials, with student activists, with survivor organizations,
with title IX coordinators. We had a tremendous number of
actual in-person meetings, telephone conversations, letters
that came to us asking questions, telling us what more we need.
It was a long, iterative process that involved many
stakeholders with many different opinions so that we could give
them greater guidance and clarity about the ways that we
enforce.
Senator Alexander. My time is up. But I would say to my
colleagues who are here, I think we should carefully consider,
not just in this case but in other cases, whether it's FDA or
anything else, what the difference is between a law and a
regulation which is proposed by the Department of Education and
this growing business of issuing guidance where there's no
opportunity for the kind of public comment and approval that
the regulatory procedure has.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Alexander.
In order, I have Senator Murray, Senator Warren, Senator
Hagan, Casey, Baldwin, Murphy, and Whitehouse.
Senator Murray.
Statement of Senator Murray
Senator Murray. Thank you very much, Mr. Chairman. I really
appreciate your holding this important hearing.
The Department of Education investigates allegations of
title IX and Clery Act violations, and earlier this spring
listed 55 colleges, including Washington State University,
under investigation for title IX violations. What are some of
the best practices in the field that universities can take to
proactively prevent sexual assault?
Ms. Lhamon. Thank you, Senator Murray. Among the best
practices that we hope to see is the conduct of a climate
survey as a way of identifying how students feel, how faculty
feel about safety at campus as a way of identifying whether the
campus message has been received by the students and the
community at that campus about where to go, what is tolerated,
what is not tolerated, whom to complain to if necessary, and
whether there is a feeling of safety on the campus so that
schools can respond. So we think that a climate survey is a
really important first step.
In addition, it's critically important to communicate
disapprobation about sexual violence on campus, about sexually
hostile environments so that the entire school community is
clear about what is and is not acceptable on the campus.
It's also critically important to let students know who a
title IX coordinator is, where to go if the students need help,
how to complain, and who are resources on that campus so that
students can access those resources if they need them.
And then finally, it's extremely important to have a
transparent and fully functional investigative process where
students need to complain so that interim relief is available
to students when they need it so that students can be clear
that effective and appropriate steps are taken to address
sexual violence when it occurs.
Senator Murray. Very good. I really appreciate that
response.
I have sponsored, along with Senator Baldwin and many other
members of this committee, the legislation called the Tyler
Clementi Higher Education Anti-Harassment Act that requires
colleges and universities to prohibit harassment and
establishes within the Department of Education a grant program
to support campus anti-harassment programs.
Wouldn't such a grant program be helpful in addressing
campus sexual assault?
Ms. Lhamon. It would be enormously helpful. I can't tell
you how much that tool would mean to us to be able to deliver
for students around the country. As part of my role in
representing Secretary Duncan in the White House Task Force to
Protect Students From Sexual Assault, I visited campuses around
the country as part of the Office of Violence Against Women in
the Department of Justice grant program to see what kinds of
successes they're able to see from the grants that they're able
to deliver, and I have to confess that I have real jealousy
that they're able to give those grants and to ask for changes
that they know need to be made and for research about best
practices that can come from the delivery of those grants. It
would be incredibly meaningful for us.
Senator Murray. Wonderful.
Mr. Moore.
Mr. Moore. Yes, Senator, thank you very much for your work
on that initiative. What we find with the Clery Act, and it's
one of the reasons why we are very excited about the work of
the task force and the work that the CR is doing with regard to
climate surveys, you have to understand what the campus climate
and culture is before you can address it effectively.
One of the other tools that is in the new VAWA requirements
is that we are going to require schools to have primary
prevention programs. Primary prevention, again, only works in a
proactive way, if you understand what's going on on your
campus. If you have problems in an ROTC program, in the
athletic department, in fraternities and sororities, then you
have to make sure that that training is designed to address all
of those issues.
To get to these issues of culture and climate and tradition
that are problematic on campuses, we have to get an
understanding of harassment, hazing, several other factors if
we're going to be effective. Thank you very much.
Senator Murray. Perfect. Thank you very much to both of
you.
Thank you very much, Mr. Chairman.
The Chairman. Senator Warren.
Statement of Senator Warren
Senator Warren. Thank you very much, Mr. Chairman.
The topic of this hearing couldn't be more important. Our
young people go to college to learn about the world, to start
their careers while they're working hard to build their
futures. They should at the least feel safe on campus, and they
should feel confident that if they are victims of crimes, the
people around them will respond quickly and with respect and
compassion.
I know now that for 20 years the Federal Government has
been collecting and disclosing data on alleged campus crimes
under the Clery Act. Mr. Moore, you just noted that last week
the Department of Education released draft rules on expanded
data collection.
Data can be a powerful tool in helping us understand the
problems we face and possible solutions. I want to ask about
how the data are used. Mr. Moore, can you tell me about what
kind of analyses the Department of Education conducts with
Clery Act data and, taken as a whole, what these analyses have
shown?
Mr. Moore. Yes. Thank you, Senator, for the question. What
we do to validate this information is we go out to schools and
we conduct assessments, compliance assessments, and when we do
that we will look at substantial samples of incident reports to
see if they were classified the right way.
Senator Warren. All right. Just so I'm following you here,
what you're saying is you go out and you validate that you're
getting good data that come in.
Mr. Moore. Correct.
Senator Warren. And so you make an independent, on-the-
ground evaluation. You look through what kinds of records?
Mr. Moore. Police incident reports, security documents,
student conduct records, sometimes the HR records. Sometimes
you have to go into athletic departments or fraternity offices.
Anybody who can adjudicate, discipline, or investigate issues
of discipline, we have to look at records from those offices.
Senator Warren. OK. So you look at the records, you look at
what was reported, and you see how good the match is, and then
you know about the quality of your data. And I presume if the
match is not good, then you have an ongoing relationship with
the school about how it is they need to improve their data
reporting.
Mr. Moore. There are several things we do. There's a
technical assistance and corrective action component, and if
what we find constitutes a substantial misrepresentation, the
school could be subject to administrative action. Usually that
would mean a fine.
Senator Warren. OK. So you try to get everyone in
compliance in terms of reporting the information. Now my
question is, we have this information, we've been collecting
information for 20 years now. Presumably, the quality of the
information has gotten better over time and more complete over
time. What do you do with the information?
Mr. Moore. We do collect that information from all of our
institutions, and we do analyses of it to try to track trends
in campus crimes----
Senator Warren. You look for trend lines on a school-by-
school basis?
Mr. Moore. Sometimes on a school-by-school basis, but also
across sectors of education. We will often look at community
colleges and look for trends there. Obviously, the crime
environment is very different at a community college that
doesn't have dormitories versus, let's say, for-profit
educational institutions that don't have the big sports
programs, big fraternity programs, those kinds of things, and
then we'll look at our traditional institutions that are likely
to have more types of crime occurring.
Senator Warren. And do you make all of those reports public
when you do these analyses? Are you putting them out there,
making them public?
Mr. Moore. The statistics are publicly available.
Senator Warren. I understand the statistics are publicly
available.
Mr. Moore. The analysis is not.
Senator Warren. You do the analysis. Then what happens with
it when you discover a problem?
Mr. Moore. Basically, we use it to formulate our compliance
program, we use it in the conduct of our cases, and it also
gets used in terms of possible proposals for changes to the
rules.
Senator Warren. Actually, then, let me switch it over to
Ms. Lhamon. Do you use these data as part of your enforcement
strategies and designing your enforcement strategies?
Ms. Lhamon. We do, and we use it in two ways. One is that
Jim and I work together when we collectively have concerns
based on the analysis that Jim and his staff have done. He may
refer something to us so that we can begin to investigate. We
also take a look at the data itself to decide whether we should
do a proactive investigation of our own. It may be a little bit
counter-intuitive, but sometimes very low data from a school is
a reason for us to go in and investigate because it will seem
like they may not be reporting appropriately. But we use the
data very often in our own assessments for where we should look
at a school, and also when we have a complaint that comes to
us, what we should do as we're evaluating that complaint.
Senator Warren. I'm just about out of time here, too. But
let me ask one more question that ties this together. Are there
other data that you should be collecting or that you would find
helpful in making your decisions about where you have
compliance and where you don't that you feel ought to be there?
Ms. Lhamon. Sure. There's one that I think is coming that
we will access and another that I would like to have that we
don't have now. The one that's coming----
Senator Warren. Very quickly.
Ms. Lhamon. I'll get to the one we don't have. I have a
civil rights data collection that I conduct for the K-12
schools around the country, and it gives me a picture of equity
health for those schools that I find enormously useful for the
enforcement work that we do. I don't have that same data access
at the higher education level, and I think it would be
terrifically useful in this area, among others, for civil
rights compliance in higher education. I think it would be
very, very helpful to have it.
Senator Warren. As I said, I've run out of time. I very
much appreciate this. I do think that we have to be very
careful about the quality of our data--I'm very glad to hear
about this part of it--how we use those data to identify and
analyze problems and collect more and better data if we need
it, because I think the focus on prevention needs to be far
more intense than it has been.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Warren.
Senator Casey.
Statement of Senator Casey
Senator Casey. Mr. Chairman, thank you very much. I
appreciate you having this hearing, and I want to thank our
witnesses for your testimony and for your work on this.
I have to commend, even though we have a long way to go on
this issue, I have to commend the work that you've done, the
White House, Vice President Biden, and so many others who are
working on this problem. This problem has persisted now for
generations, and we're finally getting to the point where we're
reacting appropriately to it.
We should react with a sense of outrage. This is the
ultimate betrayal of a woman who attends college. We all say we
want people to get higher education. We all say it's important.
And then we send them to institutions where many institutions--
not every, but many--don't seem to take this issue very
seriously.
It should be under the category of a zero tolerance effort,
and the perpetrators should be labeled as such, or labeled with
words like ``coward'' and ``monster'' and whatever else we can
come up with. I know that upsets some people, but it's the way
I see it. There should be zero tolerance, and that means the
institutions should be doing a lot of things already without
any laws, without any regulations, but some of them haven't
gotten the message, so you have to send the message more
directly and have some rules.
I'm glad that we made great progress when we reauthorized
the Violence Against Women Act. One of the component parts of
that was my Campus SaVE law, which you're now working on
implementing. We're grateful for that. I'm grateful to Senator
Leahy in his work to get that done.
We've made progress with Campus SaVE. We have to get it
implemented, but I'm sure there will be gaps and other matters
that weren't addressed. So we've made progress; we have a long
way to go.
In light of the Campus SaVE elements which you've spoken to
a little bit, Mr. Moore, I think on page 4, talking about
clarifying definitions, keeping data, having better prevention
strategies, getting bystanders involved--too many students who
don't want to do what they should be doing to help when they're
bystanders. A whole range of changes that will take place.
But the one thing I wanted to ask you in particular was
now, that you're in the process of making sure these provisions
get implemented, how long will schools have to come into
compliance?
Mr. Moore. Thank you, Senator, for the question, and thank
you for your work on the Campus SaVE Act. As a fellow
Pennsylvanian, you make me very proud, sir.
Senator Casey. Thank you.
Mr. Moore. What we have been very clear on, and we're going
to issue additional guidance in the coming days to reiterate
that institutions have to make their best good-faith effort in
this first year, OK? Their best good-faith effort to comply
with the statutory language, since we don't have final
regulations. When institutions issue their annual security
reports in October of this year, what we're going to be looking
to see is indicia that schools are looking for ways to
implement these requirements, and then we will have a full year
to recalibrate that properly with the schools, issue additional
guidance to clarify where there are problems. With all the work
we've done on this, you can guarantee that there's a piece here
or there that we didn't consider, and we will have to go back
and address that in our guidance.
We are also going to have a complete re-write of our
handbook for Clery Act compliance, and that will be available
to the schools. We're also working on some other training
materials that will be available free of charge to all of our
schools. So by the time we get to October 1, 2015, everybody
should be on the same page.
Senator Casey. That's great. I wanted to ask as well, in
the remaining time I have, about the education of institutions.
I realize that institutions tend to feel that they're
overwhelmed with rules, but this is one they have to comply
with. You can't really call yourself a university or college if
you're allowing this problem to persist. So tell me a little
bit about how currently, or how upon implementation, the
Department will be helping to educate institutions going
forward.
Mr. Moore. One of the things we've done is we've increased
our presence at training conferences, and we have increased
both the number of guidance documents that we've put out and
the quality of those documents. We've brought them down to a
level that will be, that should be easy for all institutions to
implement. That's one of the issues with the Clery Act, that
you have 6,000 schools, some of them with 25 students and maybe
3 or 4 employees in a strip mall running a cosmetology school,
up to a mega State university. It's actually a very flexible
program. A lot of what's in the Clery Act is not terribly
prescriptive. It requires schools to take that law and
implement it at their schools. They need an implementation
plan.
In this new guidance that we're putting out, we want to
give them best practice information that will allow them to
develop that implementation plan in an appropriate way at the
very little school and the large school.
Senator Casey. That's great. I appreciate that. I'm over
time, but thanks for your work.
[The prepared statement of Senator Casey follows.]
Prepared Statement of Senator Casey
I would like to thank Chairman Harkin and Ranking Member
Alexander for calling this hearing today to address one of the
most serious issues facing the higher education community:
campus sexual assault.
In recent months, there has been renewed attention on this
troubling issue, for which I am deeply grateful. Too many
survivors of sexual assault have suffered in silence, or been
silenced when they have attempted to speak out, and it is
fitting that we are giving them a voice and shedding light on
this issue.
In that vein, I am particularly honored to welcome the two
survivors here today, Emily Renda and John Kelly. I admire
their strength in coming forward to tell their stories in such
a public forum, and for advocating on behalf of all survivors
of sexual violence.
I have been working to address sexual assault on college
campuses for several years now, and I am pleased that, with
Senator Leahy's help, we were able to include significant
improvements to the Clery Act in the reauthorization of the
Violence Against Women Act last year, based on my legislation
called the Campus Sexual Violence Elimination Act or Campus
SaVE Act. These provisions are now referred to as the ``VAWA
amendments to the Clery Act.''
The Campus SaVE Act represents a significant step forward
in providing clear standards and guidance to institutions of
higher education on what they should be doing to prevent sexual
assault and how they should respond to sexual assault. The law
provides flexibility, recognizing that a large public
university is very different from a small private university in
terms of its resources, its administrative structure and how it
handles law enforcement. But it also firmly establishes the
need for these institutions to have robust procedures in place
that are fair for both the survivor and the accused individual;
that respect the survivor and his or her needs; and that
promote safer campus communities.
I would also like to emphasize that while we are primarily
discussing sexual assault, Title IX and the Campus SaVE Act
both address the full range of intimate partner violence,
namely domestic violence, dating violence, sexual assault and
stalking. In many cases, the needs of the survivor are the same
(access to healthcare and mental health services; changing
living, working or academic arrangements; the ability to pursue
campus or legal proceedings), but the specifics of a response
may differ based on the specific incident that occurred and the
parties involved.
The Campus SaVE Act is currently being implemented by the
Department of Education. I am pleased to recognize, in
particular, James Moore, who is from my home State of
Pennsylvania, and who currently serves as the Compliance
Manager for the Clery Act Compliance Division at the Department
of Education. The Department recently released the proposed
rule implementing the Campus SaVE Act, following a successful
negotiated rulemaking committee, and I am grateful for the hard
work that the negotiators and the Department put in to making
the regulations a reality.
Implementing the Campus SaVE Act is one of my top
priorities, and I believe that the law will lead to significant
improvement in how colleges and universities prevent and
respond to cases of sexual violence, dating violence and
stalking. However, I recognize that we may need to take further
steps once the law is fully implemented to ensure that
institutions of higher education are living up to their moral
and ethical responsibilities to protect their students from
sexual violence, so I look forward to hearing the testimony and
suggestions from our witnesses today.
The Chairman. I thank you, Senator Casey.
Senator Baldwin.
Statement of Senator Baldwin
Senator Baldwin. Thank you, Mr. Chairman.
Earlier in this session of Congress we took some incredibly
important and, I would argue, very long overdue steps toward
combating the epidemic of sexual assaults in the military. In
examining the problem of sexual assaults in the military and
the steps that were taken, I discovered that there was no
specific focus on looking into and collecting data on sexual
violence in Reserve Officer Training Corps programs on our
Nation's college campuses.
I view ROTC programs as standing at the intersection
between the crisis of sexual assaults in the military and the
issue of sexual assault on campus. Nearly 40 percent of all new
officers commissioned into the Army and Navy combined since
2012 have come out of ROTC programs on our Nation's campuses,
and I really think it's critical that we understand how the
issue of sexual assault is being addressed among the
commissioning source of so many of our military's future
leaders.
That's why I earlier this session asked the Department of
Defense and the White House to ensure that data from ROTC
programs contributes to the full understanding of the problem
of sexual violence at our colleges and universities. I was
disappointed that the report by the White House Task Force to
Protect Students From Sexual Assault that was released in April
didn't address these issues, nor does, as I understand it, any
Department of Education title IX guidance speak specifically to
how ROTC codes of conduct should address this issue.
And to both of our panelists, while I understand that
instances of sexual assaults against students who are in ROTC
programs should be investigated and reported in the same manner
as other campus sexual assaults, my questions are: have you
undertaken any formal or informal collaboration with the
Defense Department on the issue of sexual violence in ROTC
programs on college campuses, and can you tell me why the
Department of Education has not apparently spoken specifically
to this aspect? I would ask both of you to respond.
Ms. Lhamon. Thank you. I, No. 1, want to say that I'm sorry
to have disappointed you in the task force so far, and I hope
that we can redeem ourselves going forward.
Senator Baldwin. It's a focused criticism.
Ms. Lhamon. A fair point. Thank you.
No. 2, I want to be sure that I say that our goal,
especially in the most recent frequently asked questions
document, was to make very, very clear that there is no student
on a college campus whom the college title IX obligations do
not extend to. It was our goal not to take away from that
overarching message that title IX obligations extend to every
student of every type on every campus so that the schools will
make them all safe, and I had some worry that if we
disaggregated any particular type of student, we would
undermine that message.
I would be very pleased to work with your office as we go
forward about ways that we can make sure that we are sending a
clear message also about the ROTC students. I want to assure
you that we have been in our investigative space working
specifically with ROTC students.
One complaint that comes to mind--this is in the K-12
space. But a young woman came to us with a complaint that she
had not been able to be promoted to a commander in her Army
ROTC, and we investigated. We found some really harrowing facts
about the way that she was treated and the way that the ROTC
lead talked to her in sexually discriminatory ways in that
school, and her mom thanked us at the end of the resolution to
let us know that she was the first young woman ever to be
promoted in that ROTC campus.
So we are working in this space in our enforcement work.
We're trying to send a really clear message. And specifically
to your question about the ways that we work together with the
Department of Defense, we're working arm-in-arm with them in
the White House Task Force, and our work is ongoing. We put out
our first 90-day report, but the President has directed us and
reminded us repeatedly that he expects an annual report with
new progress each time going forward. So there will be further
steps.
Senator Baldwin. Thank you.
Mr. Moore.
Mr. Moore. Senator Baldwin, I want to thank you for your
work on the Defense aspect of this. I think one of my takeaways
from the fine work that you all did was that you have to have
meaningful punishments for sexual assaults if you're going to
change the culture.
One thing I can assure you of is that in our work, we look
at institutions across the board. We're looking at crimes that
occur on campus regardless of where they occur. But one of the
important changes under the VAWA amendments, again, is that
we're going to start to look more closely at issues of culture,
climate, damaging traditions. There's lots of that in the
military that we see, especially along the lines of hazing. But
when you create that culture where these things are allowed to
occur, then one of the next things you get is sexual assault
happening in high numbers without any proper law enforcement
response or disciplinary response.
This is something that we would definitely like to work
with you on going forward, and to also look beyond ROTC to the
very enduring problems that we see in athletic programs,
fraternities and sororities, and other kinds of organizations
on campus.
The Chairman. Thank you, Senator Baldwin.
Senator Murphy.
Statement of Senator Murphy
Senator Murphy. Thank you very much, Mr. Chairman.
Thank you both for being here.
I wanted to followup on the question Senator Murray asked.
She was asking about best practices with respect to prevention.
I wanted to turn to the investigation and disciplinary process,
a fairly well publicized case in Columbia. Emma Sulkowicz talks
about the fact that many students there feel a second
victimization when they go through the process of reporting and
testifying to the abuse. She tells the story of being asked
some incredibly insensitive and irrelevant questions in the
process of trying to gain justice and speaks to a much broader
concern about there being a rather uninformed and sometimes
under-trained set of investigators and people who are
overseeing the disciplinary process.
So what have we learned from what happened at Columbia?
What are the recommendations that you're making to schools so
that we don't have a reputation of re-victimization happening
when someone has the courage to report and bring it to a
disciplinary board?
Ms. Lhamon. Thank you. It's critically important. We have
seen all too often that the investigative process at a school
can be so invasive, so unpleasant, so ill-handled that students
elect not to use it, which sends its own message to students on
the campus that it's just not worth coming forward and this is
not safe.
That's one of the key things that we want to see campuses
change, that they need to be sending a message to their
students that the process will be fair, that it will be
effective, and that it will be impartial and it will not
involve inappropriate questions about students' backgrounds, it
will not involve a way of further victimizing people who have
the courage to come forward.
One thing that we've tried to do about that is to put
information specifically about the conduct of investigations in
the Frequently Asked Questions document that we just released
this spring. We also are making our investigation results more
public so that schools can see the kinds of things that we find
unacceptable when we investigate. Going back to the Tufts
example, that specific set of concerns is exactly what we saw
with Tufts. It's exactly what we saw with Virginia Military
Institute. It's exactly what we saw with SUNY, frankly.
We have been able to highlight what it is that we thought
was wrong with the way that those investigations were
conducted. We have been able to highlight what it is that the
universities have agreed they will do to change that going
forward, and we're monitoring those changes to make sure that
they are lived reality for students in the next years.
Senator Murphy. Let me ask you that question. How do you
monitor these processes? These processes happen behind closed
doors. You don't get data about the kinds of questions that are
being asked, I can't imagine. So how do we track whether this
is getting better or worse for students other than hoping
there's a handful of students who go through an experience that
is unpleasant and report it back through a chain that ends up
in your hands?
Ms. Lhamon. Certainly at the schools where we have
resolution agreements, we do get their case investigation
files, and so we do get to see the ways that they investigate.
That's a subset of all the schools, but that's a very important
piece of data for us, and it's also a very important component
of getting to a place where we can say, ``OK, this school is
now behaving in an appropriate manner so that we do not need to
keep monitoring.'' So we will see the ways that the schools
investigate, what it is that they do, the degree to which they
comply with their policy which says that they can't do those
things going forward, and the degree to which they satisfy
their obligations for their students.
Senator Murphy. Mr. Moore.
Mr. Moore. Senator Murphy, this is a very key point.
Whatever number you look at, if it's one in five, if it's one
in six, if it's something else, what we know is that campus
sexual assault is vastly underreported, and one of the main
reasons is that there's not a good path for redress, OK? The
criminal justice system is often re-victimizing, and these
campus judicial systems, if they are not well formulated, can
be even more so.
One of the things that we did in these new rules is that we
tried to fix some of the procedural elements around these
hearings. For instance, now there is a notice requirement.
There have been students who have come to us and shown with
documentation that they were given an hour, 2 hours to prepare
for a hearing, or evidence that is supposed to be provided to
both sides was given to them as they entered the door for the
hearing with no opportunity to review it. We now will allow on
both sides, both the accused and the accuser, to have an
advocate with them, an advisor of choice.
One thing that may be valuable to consider in the future
would be a basic relevancy rule in these hearings. I can tell
you, having reviewed documents for many of these hearings, the
kinds of information--you can't call it evidence--that is
submitted and considered by these boards of under-trained
people very often is frightening. I have seen cases where
people take things off of Facebook pages and something like
this and have that submitted as evidence, as if it's
dispositive of something. This is something that we might want
to look at going forward, a basic relevancy rule that says only
relevant evidence should be admitted, and even relevant
evidence should be excluded if it has a substantial risk of
unfair prejudice.
Senator Murphy. Makes sense to me.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Murphy.
Senator Whitehouse.
Statement of Senator Whitehouse
Senator Whitehouse. Thanks, Mr. Chairman, and thank you
both for being here.
It strikes me that the relationship between the college or
university and the local police department is very important,
and that missteps in that relationship are fraught with danger
both for the alleged victim and the alleged perpetrator,
including loss of an opportunity to gather necessary evidence
if the police aren't brought in quickly enough, interference by
the university or college in an ongoing criminal investigation.
There is a public safety value to making sure that these
offenses are reported, and there's a potential liability to
universities if it keeps one student's confidence and that
causes another student to be attacked by the individual about
whom they had not brought that information to the police.
That's a doctrine that is so longstanding that it's a common
law crime to commit misprision of a felony, which is
concealment of a felony even if you had nothing to do with it,
even if you're just aware of the information. And, of course,
investigation is not a core expertise of a college or a
university that we expect.
My sense is that the handoff between the university and the
local law enforcement authorities is not very well managed in a
lot of places and that there are very simple things that could
make a big difference. I think it's probably a very big
difference if the victim or the alleged victim is having her
conversation--presumably her, but also his conversation--with
the university if they say, ``well, you should consider
reporting this to the police, and they're downtown, and we may
give you cab fare.'' As the student, you're kind of going off
into the unknown, waiting in line in the police station, not
knowing who you're going to talk to, versus we have a very good
relationship with the local police department, and Officer
Jones is right outside, she works all these cases, we know her
very well, you really should let her into this conversation
because you'll be making choices now that will really change
the way you can pursue this down the road if you don't have her
or him in this conversation. That seems to be an area that
isn't getting the attention that it deserves.
So I guess my question to you is, have you identified
colleges and universities that have what you would consider to
be a model relationship with their local police department in
terms of making sure that handoff between the two isn't
mishandled from the perspective of the students that have their
interests involved?
Ms. Lhamon. Yes, we have. And also I want to say how
strongly I agree with you about the concern certainly from the
perspectives that you raise, but also from some of the college
and university staff that I've heard from where they say that
there isn't even a local law enforcement agency nearby that has
the capacity to take a rape kit, as one example. So there is
certainly the dimension of the problem that you described,
which is that the connect isn't good between the school and the
place that they could go. But there's also the disconnect where
there isn't a place to send students that's nearby in the first
place. It's a very significant issue for us.
Senator Whitehouse. What are your model relationships
between a university and a police department? I don't expect
you have them at the top of your head right here, but I would
like, as a response for the record----
Ms. Lhamon. Sure.
Senator Whitehouse [continuing]. To have each of you
identify where you think model relationships exist between
campuses and the local police department and what you think the
elements are in that relationship that make them a model
relationship. I was a U.S. Attorney. I was an Attorney General.
I come at this from a little bit of a different perspective,
and it's a little bit alarming to hear how much completely
untrained, completely inexperienced, completely unauthorized
people are meddling around in a matter in which a felony has
been alleged.
Ms. Lhamon. Yes.
Senator Whitehouse. And if you don't bring people in who
have the proper authority, who know what they're doing, and who
have the process in place to make sure that evidence is
gathered, which degrades very rapidly in some cases, then
you've created a real problem. And similarly, if you force the
college to go and maintain an investigation and produce a
report at a time when the police are saying,
``For God sake, we're investigating this, knock it
off, we're trying to interview these witnesses, we
can't have you running around and interviewing
witnesses, this is interference with a criminal
investigation.''
That seems to me to be a pretty serious challenge as well.
Ms. Lhamon. If I could, Jim and I have been working
together, and also with the Department of Justice, to create a
model memorandum of understanding that colleges and
universities could have together with local police departments.
We hope that will be out in the world in just a few weeks. So
we should be able to at least give you those points. I have
seen----
Senator Whitehouse. My time is up, so I should ask you to
followup for the record rather than extend this.
Ms. Lhamon. OK.
Senator Whitehouse. But I know that our police departments
and universities in Rhode Island would welcome that.
Ms. Lhamon. Thank you.
The Chairman. Thank you very much.
I know we want to get to the second panel, but I want to
clear up perhaps a misunderstanding with Ms. Lhamon here. On
the next panel there will be a witness, Ms. Renda, Emily Renda.
This is what she said, and I read it last night. She said that,
``The disproportionate and impractical nature of the
only sanction available to OCR hinders its efforts at
enforcement. OCR should be given the latitude to design
smaller and more flexible sanctions appropriate to the
violations.''
Not everything rises to the level, I would say to my
friend, to the level of a felony.
``Additionally, rather than simply imposing fines of
varying sizes, OCR should be empowered to impose fines
in the form of forced budgetary reallocations to help
push schools into compliance.''
When we were talking earlier, I think you may have thought
that I was trying to say that we should take away the nuclear
option. That's not what I'm saying. That's fine. But if that's
the only thing you have in your arsenal, then it makes it very
hard to respond to incidences that may not rise to the level of
a felony but still are egregious actions on the part of one
student to another student.
I wanted to make that clear. I thought you were saying, no,
you don't need anything other than the nuclear option.
Ms. Lhamon. If I may, I just want to say that I think it is
really useful to us to have the nuclear option in our back
pocket. I didn't hear you saying you would take it away. I have
a worry that if we have a lesser tool, then it would make it
harder for colleges and universities to expect us to use the
nuclear option, and that is a very valuable tool for us.
The Chairman. Then you're going to disagree with Ms. Renda.
I thought maybe you were, but I see now that that's not the
case.
Second, again I say to Senator Whitehouse, I've been
involved in some of these in the past, too, when my wife was a
prosecuting attorney. A lot of times, students who are the
victims of this, just need to know what to do. They need to
have somebody that they can trust to go to, like an ombudsman
on a campus that has been trained, that has the qualifications
to at least initially be on the side of the person who has been
victimized to give them the kind of information about where
they should go.
How many colleges have that kind of ombudsman? Do they have
them or not?
Ms. Lhamon. The title IX coordinator can function as an
ombudsman, and every campus is supposed to have a title IX
coordinator.
The Chairman. But the title IX person is sort of in the
hierarchy of the school, and that's the problem, that's the
problem.
Ms. Lhamon. Yes.
The Chairman. You need somebody not in that hierarchy of
the school. OK, got that.
Are military academies exempt from title IX? I'm told they
are. I just found that out. Do we know?
Senator Warren, do you know?
Ms. Lhamon. I think the answer is yes. I'm stuck on
Virginia Military Institute, but I think it's because it's a
different institution.
The Chairman. No, I'm talking about our military academies.
I've just been informed that they're exempt from title IX. No
one seems to know.
Senator Warren. Does that mean they're not reporting data,
either? Do they report data to you?
Mr. Moore. Senator, the military academies are exempt from
the Clery Act.
Senator Warren. So you collect no data from the military
academies?
The Chairman. They don't even have to report? They don't
even have to report.
Mr. Moore. It's something that probably should be
corrected. But because of the way the title IV financial aid
rules are written----
Senator Warren. You think?
[Laughter.]
Mr. Moore. The rules say that if you don't receive funds
from our programs, you don't have to comply with the Clery Act.
The Clery Act simply doesn't apply to those institutions.
The Chairman. Now, wait a second. I thought that applied to
any school that receives Federal funds.
Mr. Moore. Not the Clery Act, because it's only in title
IV.
Senator Baldwin. Mr. Chairman, just on that topic, and I
asked the earlier question about the ROTC programs, Congress
did take some new steps on combating military sexual assaults,
in the Defense authorization budget we did include the military
academies under those provisions. And yet, ROTC was not
included, which is why I feel like we have to focus some
attention on the training of many of our future officers. But
you're accurate about title IX.
The Chairman. So they don't have to report under the Clery
Act like other colleges. I didn't know that.
Thank you very much, panel. I really appreciate it very
much.
Now we will call our second panel. There are some votes
coming up at 11:45.
Ms. Lhamon. Thank you.
The Chairman. Thank you both very much.
We'll call Emily Renda, John Kelly, and Jane Stapleton.
Senator Whitehouse. Mr. Chairman, while the next panel is
assembling itself----
The Chairman. Yes?
Senator Whitehouse [continuing]. Let me say that I
understand that there are circumstances that come through the
sexual assault reporting mechanism at these universities that
amount to less than criminal activity. My point is that unless
you have somebody in the room who understands what felony
sexual assault is, and an ombudsman is not anywhere near as
expert as a prosecutor or police officer, and if the
institution can't support connecting with the police department
in a way that is easy and supportive for the alleged victim,
then you have real problems down the road, because by the time
they do figure it out, it could easily be too late to gather
the appropriate evidence. All sorts of statements have been
made that will foul up a criminal prosecution. You've really
put the individual at risk in terms of defending her rights as
a victim through the law enforcement process.
The Chairman. I got that. But I think we'll hear from some
on this panel that maybe a victim doesn't--they get caught up
and they get pushed into a felony accusation, and that takes on
a life of its own when maybe that's not really what they were
seeking, and maybe they get a little reticent to go down that
pathway.
Senator Whitehouse. If the person presents the risk of
being a serial offender, there are very good reasons why
sometimes the law enforcement process goes forward even with an
uncooperative victim. We do it in violence against women
prosecutions all the time.
The Chairman. Sure.
Senator Whitehouse. A woman recants, but you go ahead with
the excited utterance and you make the prosecution because of
the statistical likelihood of re-offending.
The Chairman. I think this panel has some thoughts on this
subject.
We'll start with Emily Renda, a recent graduate of the
University of Virginia, completed a thesis in Sociology on the
relationship of title IX compliance to sexual assault reporting
rates. As an intern to the university president, she also
completed research on sexual assault resource utilization. I am
told now that she works as a special intern for the office of
the vice president and chief student affairs officer at the
University of Virginia to help with title IX compliance
efforts.
And then next we have Mr. John Kelly, a rising senior at
Tufts University, where he studies Religion. He is a survivor
of intimate partner violence and rape while a college student.
He is the special project organizer for Know Your 9, a campaign
that aims to educate all college students about their rights
under title IX.
We are grateful that you are here.
And then Jane Stapleton, a co-director of the University of
New Hampshire Prevention Innovations: Research and Practices
for Ending Violence Against Women. She has extensive experience
in working to end violence against women in college and
university settings. She's a lead developer and evaluator of
the Know Your Power bystander social marketing campaign. She
trains colleges, universities, and community organizations in
how to facilitate and implement comprehensive strategies to end
this kind of violence.
With that, your statements will be made a part of the
record in their entirety.
I'll start with you, Ms. Renda. Could you start and sum up
maybe in 5 minutes the essence of yours? And then we'll move to
Mr. Kelly, and then Ms. Stapleton, and hopefully we'll have
time for some questions and answers.
Welcome, Ms. Renda.
STATEMENT OF EMILY RENDA, SPECIAL INTERN, OFFICE OF THE VICE
PRESIDENT AND CHIEF STUDENT AFFAIRS OFFICER, UNIVERSITY OF
VIRGINIA, CHARLOTTESVILLE, VA
Ms. Renda. Thank you, Senator Harkin, Senator Alexander,
and other members of the committee present today, for the
opportunity to speak. As noted, my name is Emily Renda, and I'm
a recent graduate of the University of Virginia. In my
experience as a survivor, and in the course of my work as an
advocate and activist, I have learned a great deal about the
dynamics around campus sexual assault that I hope will be
informative for the committee today. I want to lay out several
observations I've made about the challenges survivors face and
the way that Federal law and regulation influence or could
influence those challenges.
As requirements under title IX and Campus SaVE amendments
expand the mandate for prevention and education outreach, it is
critical we ensure colleges are also providing education about
peer support to their students. Self-blame and victim blame are
among the primary factors that deter victims from reporting.
Personal feelings of responsibility for an attack, especially
when reinforced by peers, undermine a survivor's sense that it
is his or her right to seek justice.
One survivor I worked with did not report her gang rape
until almost a year later because immediately after the attack
she confided in peers who did not believe her, who told her
that she was wrong about what had happened to her because
``those were all great guys.'' Her friends' responses took away
her confidence to report or seek help, which meant those five
young men went unpunished and remained a threat to the other
students throughout that year. Education on supporting a
survivor can prevent these re-victimizing responses from peers.
Though the current national media spotlight has almost
exclusively focused on the lack of punitive sanctioning for
students found responsible in sexual assault cases, we must
maintain a range of available sanctions for colleges to employ
to respect survivors' various needs and wants. Especially in
cases where the perpetrator is known, or in cases of
relationship abuse, many survivors I have known were initially
scared to report because they did not want to ``ruin his life''
or ``get him into trouble.''
In the case of one young woman in an abusive relationship,
the dean of students was only able to convince her to take
disciplinary action by reassuring her that the disciplinary
process could be used to get him help. Her views may have
changed later down the line, but that's what got her in the
door. Had mandatory expulsion been the only option, she would
have waited much longer to report, if she ever came forward at
all.
A range of sanctions is about getting survivors in the door
with respect for their agency and their shifting needs. Getting
more survivors through the door rather than discouraging them
gives universities a better chance to be fully aware of and
combat hostile environments.
Also, as title IX investigations shed light on the way that
cases are mishandled in universities, it may discourage future
survivors from coming forward out of mistrust for their own
institutions. In order to rectify that potentially chilling
effect on reporting and seeking resources from that publicized
title IX investigation, resolution agreements with OCR should
incorporate recommendations and requirements to form working
committees of students and administrators to help keep students
informed and involved in the steps that a university is taking
to rectify the issues from that initial public complaint. A
top-down communications approach of university to student does
not ameliorate fears and concerns about mistreatment as much as
student-to-student communication about what the administration
and students are working on together.
The knowledge of and opportunity for input is also certain
to reassure students that the administration is transparent
about the way it handles cases and will handle cases in the
future. By including formal requirements for student-
administrator working groups, resolution agreements can help
address some of the fears raised by publicized complaints so
that survivors can feel safe and supported when they seek
resources from the offices and administrators best suited to
connect them to those resources and remedies.
Additionally, in order to address some concerns about
equity commonly being raised, it may be helpful to statutorily
define the requirements and procedures for sexual assault
hearings on campus raised by OCR in their guidance. By
specifically codifying some of the recommendations, it may
clarify concerns colleges have about how to appropriately
adjudicate. Many colleges appear hesitant to strongly sanction
because of concerns that the accused student may appeal or sue
the school, as more and more young men are now doing. This may
then contribute to schools insufficiently sanctioning in cases
where a hostile environment exists. Statutory clarification of
how procedures ought to look based on OCR recommendations may
help distinguish the campus process from criminal proceedings
and draw distinct boundaries between the two so that colleges
have a clear sense of how to proceed and address hostile
environments without fear of civil action from accused
students.
When it comes to OCR's enforcement of title IX, the
impractical nature of the only sanction available hinders its
efforts to what you spoke to before. Their only stick for
enforcement is really more of a tree trunk. OCR should be given
the latitude to design smaller and more flexible sanctions
appropriate to the violations. Rather than simply imposing
fines of varying size, OCR should be empowered to impose fines
in the form of forced budgetary reallocations to help push
schools into compliance. Rather than a purely punitive
financial sanction which may take resources away from students,
budgetary reallocations could force schools to appropriate
resources for students to improve its title IX efforts. For
example, a sanction could mandate that a school must allocate
$50,000 a year, per year, for 4 years to fund a trauma-specific
counseling position at the student health center.
Finally, while it may fall outside the scope of today's
hearings, I think it's important to note that while the use of
title IX to address sexual assault and sexual discrimination is
an incredibly important tool, a more comprehensive approach to
the issue of sexual assault would also consider potential
reforms to State and Federal criminal law. If we improved our
prosecution efforts, we would not have to rely so heavily on
colleges to address the problem of sexual violence. Colleges
may be more effective at addressing sexual violence, and
offenders would be addressed outside of the college context
much more meaningfully. Options for criminal reform may make it
possible to better address this problem holistically.
Thank you so much for the opportunity to speak, and I'm
happy to answer any questions.
[The prepared statement of Ms. Renda follows:]
Prepared Statement of Emily Renda
summary
The following are the primary points raised in this testimony:
Mandated prevention programming must include education
about supporting peer survivors to foster a culture of reporting. Self-
blame and victim-blame strongly discourage survivors from seeking
remedies or disciplinary action. Peers are the most common primary
disclosure point, and a negative response to an initial disclosure can
invalidate a survivor's confidence about his or her experience. To help
reduce negative peer responses that reinforce self-blame, prevention
programs should incorporate information on how to support and respond
to survivors.
Universities should ensure access to advocacy and/or
counseling to increase reporting. Mental health care and crisis
counseling can critically address issues of self blame and help
survivors to recognize an assault as wrong. Confidential resources
often facilitate formal reporting and seeking resources, so colleges
should ensure access to these critical services to help encourage
survivors' well-being and confidence to report assaults formally.
Colleges must maintain a range of sanctions so as not to
deter survivors from reporting and respect the variety of resolutions
survivors seek. Though much attention has focused on pushing for
harsher sanctioning, many survivors resist reporting or seeking
disciplinary action because of the prospect of punitive sanctioning,
especially in cases of intimate partner violence or where the
perpetrator is known. Maintaining informal resolutions and lower level
sanctioning encourages survivors to seek remedies while respecting
their wishes with regard to the accused.
Resolution agreements should foster cooperation between
administration and students to combat mistrust of the university that
could deter reporting. Especially following highly publicized
allegations of universities mishandling of cases, students may fear
their complaints would be similarly treated and decide not to come
forward. Establishing formal collaborations between administrators and
students on recommendations and requirements by resolution agreements
will facilitate communication among students about a university's
changes and help ameliorate fears of mistreatment.
Structured followup and public progress reports by a
university following a title IX investigation will help ensure--and
communicate to students--a university's commitment to rectifying its
policy and procedures. Joint committees of students and administrators
could issue reports on progress to OCR and the university communities
on recommendations for title IX compliance to help hold the institution
accountable and keep open channels for feedback regarding procedural or
programming changes. Creating a feedback loop between students and
administrators in particular will help reassure students who might seek
help from administrators.
Codification of OCR recommendations for title IX may
ameliorate due process concerns about equity for accused students. As
more men accused of sexual misconduct bring title IX suits against
their schools, it seems that statutory clarification of the hearing
procedures and rights afforded each student involved in the process may
alleviate tensions schools face when attempting to balance due process
rights of the accused and title IX rights of the complainant.
Provide OCR with more flexible sanctions and forced budget
reallocations. The current sanction available to OCR in title IX
complaints is too heavy handed and has never been used. By allowing OCR
to levy smaller penalties, OCR could mete out fines that could be
enacted as forced budgetary reallocations--appropriating a certain
amount of a school's budget to funding for prevention programming,
trauma counseling, etc. in order to assure that the fines change
university behavior while benefiting students at the school with
greater provision of resources.
A holistic approach to the issue of sexual assault cannot
ignore possibilities for criminal law reform at the Federal and State
level.
______
experience and context
Like many others who work on the issue of campus sexual assault, my
connection to this cause is a personal one. Nearly 4 years ago, 6 weeks
into my first year, I was raped by a fellow student on my campus after
a night out with friends. In the time following the assault, I became
active in peer sexual assault education, worked for the University of
Virginia's Women's Center, interned with the Commonwealth Attorney's
Victim Witness Program, worked with U.Va. administration to improve
prevention and response efforts, and chaired Take Back The Night, a
national campaign to raise awareness about sexual violence.
Beyond prevention and response work, I also conducted research on
topics including intimate partner violence prevalence on campus, the
relationship of title IX compliant policy elements to reporting rates,
and how survivors' primary disclosure point affects subsequent resource
seeking.
This past year, I helped organize and presented at the national
conference U.Va. hosted to discuss sexual misconduct at colleges and
universities. Finally, I also consulted with the Whitehouse's Task
Force to Protect Students from Sexual Assault. I am now working in the
office of the vice president for student affairs at U.Va. as we try to
revamp our prevention and response efforts, taking into account recent
guidance from the Department of Education's Office of Civil Rights.
In my experience and course of work, I have learned a great deal
about the dynamics around campus sexual assault that I hope will be
informative for the committee. In this testimony, I lay out several key
observations I have made about the challenges survivors of sexual
assault face and the way that Federal law and regulation influence--or
could influence--those challenges.
Section One
This section will address four points relating to the way Federal
regulation or oversight on university campus-level policies can help
address challenges specific to survivors.
I. Mandated prevention programming must include education about
supporting peer survivors to foster a culture of reporting.
Self-blame and victim-blame are among the primary factors that
deter victims from reporting.\1\ Personal feelings of responsibility
for an attack, especially when reinforced by peers, undermine a
survivor's sense that it is his or her right to seek justice.
One of the student survivors I worked with, Jenna*, was gang-raped
by five fraternity men early in her freshman year. Despite the severity
of the assault and injuries she sustained, Jenna still experienced a
feeling of personal responsibility. Looking for affirmation, she sought
out peers and told her story. Sadly, each and every one of the friends
she reached out to responded with varying denials of her experience;
these responses worsened her feelings of self-blame--that she must be
confused because that fraternity ``is full of great guys''; that she
must have made them think she was ``down for that''; questioning how no
one else at the party could have heard what was going on if she was
telling the truth; or discouraging her from seeking help because ``you
don't want to be one of those girls who has a reputation'' for
reporting ``that kind of thing.'' These statements haunted Jenna. She
told me that they made her feel crazy, and made her question whether
her own understanding of the rape was legitimate.
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* Not the survivor's real name for the purpose of confidentiality.
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Survivors who receive disaffirming responses to initial disclosures
are more likely to experience negative mental health consequences as
well.\2\ These negative and victim-blaming responses from her peers
reinforced Jenna's sense of fault, and prevented her from coming
forward to the University's administration or the Police. When she
finally sought assistance from the Dean of Students' office, after
struggling and nearly failing out of her classes for two semesters, it
was difficult for the university to conduct a meaningful investigation
because much of the evidence had been lost, and witnesses were more
difficult to locate.
Though assault ``severity'' (i.e., degree of physical force) is
typically correlated with faster self-identification as a victim,
powerful cultures of victim-blame and self-blame hinder that self-
identification that would encourage help seeking and reporting.\3\ In
my own case, despite explicit force (e.g., strangulation, loss of
consciousness and injuries to my head and torso), I still felt
responsible for the assault because I had been drinking and had
willfully gone to my assailant's dorm room. If victimized students are
unable to overcome feelings of responsibility reinforced by victim-
blaming statements made by peers, we will not see the kinds of
reporting behaviors it will take to identify and remove the violent
perpetrators on our campuses.
Subsequently, as the VAWA amendments to the Clery Act and title IX
recommendations both provide for prevention efforts on campuses (e.g.,
``bystander intervention training''), these prevention efforts should
acknowledge the importance of supportive responses to survivors. A
strong culture of bystander intervention should also intervene after an
assault has occurred in order to both encourage reporting and encourage
seeking resources for the health of survivors individually and the
university community more generally.
II. Universities should ensure access to advocacy and/or counseling
to increase reporting.
As mentioned above, self-blame and victim-blame are critical
factors for discouraging reporting they produce more severe mental
health consequences for victims. As such, access to crisis advocacy and
counseling services is crucial for helping survivors receive
affirmation of their experiences and alleviate feelings of self-blame.
Furthermore, support from mental health and advocacy personnel is
positively related to formally reporting assaults.\4\ By ensuring
access to these resources, colleges and universities increase the
likelihood that they will receive more information and reports, while
also reducing the number of student survivors who are unable to receive
the care they need to continue succeeding in the campus environment.
Access to these resources must be free, and universities must offer
assistance in helping survivors access them. Simple referral processes
by campus mental health services to community providers are
insufficient--the process of setting up a second appointment with a
stranger after having already taken steps to receive care, not to
mention the burden of managing cost and insurance, can all too easily
prevent survivors from accessing needed care. I was fortunate to be
retained by my university's counseling center for long-term care, but
other survivors I worked with, such as a sophomore student named
Ashley*, was not accepted for treatment because her needs were ``too
extensive.'' Ashley was referred to a community provider, but she did
not followup because she felt too overwhelmed by setting up her own
appointments and coordinating her insurance and payment. As such, she
did not receive adequate care until her parents pulled her out of
school for a semester and set up treatment for her close to home (long
after she had begun struggling academically). Ashley did not feel
comfortable reporting her assault until after she had received
counseling, but, by then, it was too late; her assailant had already
graduated.
By mandating that universities ensure access to mental health and
advocacy services, we can improve the likelihood that survivors like
Ashley receive timely care and are able to make informed decisions
about reporting.
III. Colleges must maintain a range of sanctions so as not to deter
survivors from reporting and respect the variety of resolutions
survivors seek.
The current national media spotlight has almost exclusively focused
on the lack of punitive sanctioning for students found responsible in
sexual assault cases. The knee-jerk reaction is often to move toward
mandatory expulsion policies that send a strong message about a
community's lack of tolerance for sexual violence and increase the
number of offenders removed from campus. This viewpoint narrowly
considers those highly publicized cases in which complainants were
unsatisfied with the harshness of the penalty after they brought
forward a hearing. Oftentimes, though, survivors do not all have the
same desires and goals for reporting or for seeking disciplinary
action; in fact, many survivors are discouraged from reporting because
they are afraid of overly punitive sanctioning for the accused.
Especially in cases where the perpetrator is known, and for intimate
partner violence in particular, many survivors hesitate to initiate the
complaint process or seek informal resolutions because they are only
interested in disciplinary action aimed at making their perpetrators
acknowledge responsibility or getting their attackers help.
Sarah*, an entering first year student I worked with, had a
mentally unstable abusive boyfriend in high school who would also be
attending U.Va. with her in the fall. She sought and obtained a
protective order through the courts, and a no contact order through the
Dean of Students' Office. Her former boyfriend violated the protective
order dozens of times during her first semester, but Sarah was afraid
for his well-being (he had, as many abusers do, threatened to kill
himself if she came forward) and she did not want to see him get in
trouble. The only way she could be persuaded by staff at the Women's
Center and by administration in the Dean of Students' Office to seek
disciplinary action against him for the protective order violations was
by assuring her that the process could be used to mandate that he
receive counseling. The ability to seek a ``lower-level'' or ``non-
punitive'' sanction that offered help for the accused through
discipline helped the school to respond to the hostile environment and
helped Sarah come forward.
In my own experience, I resisted formally reporting and seeking
disciplinary action after the assault because I fixated on the fact
that my assailant had parents who cared about him, and that I did not
want to ruin his life over what I then viewed as a mistake. Many
survivors I have met and worked with echo the same concerns when
thinking about bringing a complaint: that he used to be a friend; that
he is generally a ``good guy''; that it was a one-time mistake. Even
though I now disagree with my former self 's evaluation of my
assailant, and though I quietly disagree with many of these survivors,
I know that fear of expelling him or suspending him was a serious
barrier to reporting for me, and continues to be one for other
survivors.
The prospect of informal resolutions and lower-level sanctions are
sometimes a comfort and a reassurance to survivors that they will have
some control over the resolution of their case. Mandatory expulsion
polices have a strong likelihood of deterring survivors who are
initially afraid of holding a friend or romantic partner accountable in
a disciplinary setting. Not all survivors want the same resolution, and
mandatory expulsion policies assume a one-size-fits-all approach that
may have a chilling effect on reporting. It will prevent a college from
getting as many reports as possible and from being able to more fully
respond to sexual violence to rectify the hostile environment.
IV. Resolution agreements should foster cooperation between
administration and students to combat mistrust of the university that
could deter reporting.
Highly publicized cases of university mishandling of sexual assault
complaints, such as the title IX complaint brought against U.Va. in the
fall of 2012, while forcing universities to reevaluate and improve
policies and procedures to better serve victims, also paradoxically
tend to scare other survivors away from seeking resources or
disciplinary action through the school. Many survivors I worked with
following news of U.Va.'s title IX complaint expressed strong
reservations about going to the Dean of Student's office for
information about resources available or filing a report. They assumed
that their cases would be mishandled or not taken seriously as was
alleged in the public complaint. This prevented survivors from
receiving interim remedies (e.g., no contact orders, changes in classes
or housing arrangements) because they were too afraid to seek
assistance from the Dean of Students.
In order to rectify the chilling effect on reporting and seeking
resources that publicized title IX investigations might have,
resolution agreements with OCR should incorporate recommendations and
requirements to form working committees of students and administrators
to help keep students involved in and informed of steps a university is
taking to rectify issues from the initial public complaint. Ensuring
student involvement is likely to lead to not only a response from the
administration that is better tailored in its procedural and
programmatic changes to what students actually need, but also improved
communication among students about the changes being made. A top-down
communications approach of university to students does not ameliorate
fears and concerns about mistreatment as much as student-to-student
communication about what the administration and students are working on
together. The knowledge of and opportunity for input is also certain to
reassure students that administration is transparent with students
about the way it handles cases (and will handle cases in the future).
By including formal requirements for student-administrator working
groups, resolution agreements can help address some of the fears raised
by publicized complaints so that survivors can feel safe and supported
when they seek resources from the offices and administrators best
suited to connect them to those resources and remedies.
Section Two
This section will address four points related to improving Federal
oversight of universities and title IX compliance more broadly.
V. Structured followup and public progress reports from a
university following a title IX investigation will help ensure--and
communicate to students--a university's commitment to rectifying its
policy and procedures.
Similar to the point made in IV, structured followup from OCR and
public progress reports on recommendations from title IX resolution
agreements that are drafted by committees of administrators, faculty,
staff and students will help to improve compliance with the agreements.
Public progress reports that are jointly drafted and distributed to the
university community will help hold the university accountable to the
student body and help to inform students of the changes being made.
These public reports will help create feedback loops for universities
to receive continual input from students on the program and procedural
changes, and actively keep OCR aware of steps taken to comply with the
resolution agreements.
Jointly drafting progress reports also helps to guarantee that
members of all parts of the university have an up to date and
consistent understanding of the university's plans and progress. Having
stakeholders across the university well-informed helps to standardize
the dissemination of information so that all members of the community
are receiving consistent messaging about the university's stance on
sexual violence, and makes it more likely that survivors are receiving
uniform information about reporting options and resources.
VI. Provide OCR with more flexible sanctions and forced budget
reallocations.
In OCR's title IX enforcement efforts it seeks to obtain voluntary
compliance from universities, but carries sanctioning power as a threat
to obtain compliance. OCR's current sanction, however--to remove all
Federal funding--has never been used, and is often painted as punishing
innocent students rather than the institution for non-compliance. The
disproportionate and impractical nature of the only sanction available
to OCR hinders its efforts at enforcement. OCR should be given the
latitude to design smaller and more flexible sanctions appropriate to
the violations. Additionally, rather than simply imposing fines of
varying sizes, OCR should be empowered to impose fines in the form of
forced budgetary reallocations, to help push schools into compliance.
A fine imposed on a school ultimately detracts from a school's
resources that could be used for student services. Rather than a purely
punitive financial sanction, budgetary reallocations could force
schools to appropriate resources to students to improve its title IX
efforts. For example, a sanction could mandate that a school must
allocate $50,000 per year for 4 years to fund a trauma specific
counseling position at the student health center. A sanction could
require a school to set aside $5,000 per year for several years to fund
implementation of climate and incidence surveys to require and help a
school measure the nature of sexual violence on its campus and respond
more effectively. In both of these examples, the financial sanction
does not deprive a school of any of its resources, but rather
guarantees that students and survivors will directly benefit from
budgetary allocations to improve title IX compliance. Smaller, more
flexible sanctions would help OCR to obtain compliance more effectively
and forcefully, while avoiding penalizing innocent students in the
effort to punish the institution.
VII. Codification of OCR recommendations for title IX may
ameliorate due process concerns about equity for accused students.
Though OCR and the courts have repeatedly assured that campus
disciplinary hearings, including hearings for sexual assault, do not
have to mirror the justice system. Public concerns, however, tend to
focus on the ways in which accused students are potentially being
denied their due process rights because these hearings address conduct
that would otherwise constitute a violation of State and Federal law.
In order to address concerns about equity, it may be helpful to
statutorily define the requirements and procedures for sexual assault
hearings on campus. By specifically codifying some of the
recommendations and interpretations forwarded by the OCR, it may
clarify concerns colleges have about how to appropriately adjudicate.
For example, interim measures such as changes to academic and housing
arrangements are defined as critical to a quick and effective response
to a potential title IX violation. OCR recommends that a school should
not place undue burden on the complainant and move his or her schedule
or housing while allowing the accused to remain, but there may be some
due process concerns about whether it is fair to move the accused while
allowing the complainant to remain.\5\ The legislature may want to
consider whether mandating a particular course of action, such as
requiring that both parties be moved in those cases, would ensure
greater equity.
Many colleges appear hesitant to strongly sanction because of
concerns that the accused student may appeal or sue the school--as more
and more young men are now doing.\6\ This may then contribute to
schools insufficiently sanctioning in cases where a hostile environment
exists (JMU imposing expulsion after graduation for several accused
students found responsible for sexual assault is a particularly salient
recent example\7\). Statutory definition of how procedures ought to
look, based on OCR recommendations, may help to distinguish the campus
process from criminal proceedings and draw clear boundaries between the
two so that colleges have a clear sense of how to proceed and address
hostile environments without fear of civil action from accused
students.
VIII. A holistic approach to the issue of sexual assault cannot
ignore possibilities for criminal law reform at the Federal and State
level.
It is important to emphasize that title IX was extended to address
sexual violence on campus mostly because of the recognition that the
criminal justice system failed to meaningfully address the issue. While
the use of title IX to address sexual assault and sex discrimination is
an incredibly important tool, a more comprehensive approach to the
issue of sexual assault would also consider potential reforms to State
and Federal criminal laws. We would not have to rely so heavily on
colleges to address the problem of sexual violence, colleges may be
more effective at addressing sexual violence, and offenders would be
addressed outside of the college context more meaningfully if we
improved our criminal prosecution efforts. Options for criminal reforms
may make it possible to better address this problem more
comprehensively.
References
1. Sabina, Chiara and Lavinia Ho. (2014). ``Campus and College
Victim Responses to Sexual Assault and Dating Violence: Disclosure,
Service Utilization, and Service Provision.'' Trauma, Violence, &
Abuse.
2. Relyea, Mark and Sarah Ullman. (2013). ``Unsupported or Turned
Against: Understanding How Two Types of Negative Social Reactions to
Sexual Assault Relate to Postassault Outcomes.'' Psychology of Women
Quarterly. Vol. 30. 1-16.
3. Ullman, Sarah, Stephanie Townsend, Henrietta Filipas, and Laura
Starzynski. (2007). ``Structural Models of the Relations of Assault
Severity, Social Support, Avoidance Coping, Self-Blame, and PTSD Among
Sexual Assault Survivors.'' Psychology of Women Quarterly. Vol. 31. 23-
37.
4. Ruch, Libby and Susan Chandler. ``Sexual Assault During the
Acute Phase: An Explanatory Analysis.'' Journal of Health and Social
Behavior. Vol. 24, No 2. 174-85.
5. Department of Education, Office of Civil Rights. ``Dear
Colleague Letter.'' April 4, 2011.
6. ``Students Expelled For Sexual Assault Turning To Lawsuits To
Regain Diplomas.'' June 4, 2014. http://www.huffingtonpost.com/2014/06/
04/sexual-assault-expulsions-lawsuits_n_5440665.html.
7. ``Students Are Outraged At JMU Over Unusual Punishment For
Filmed Sexual Assault.'' June 20, 2014. http://www.huffingtonpost.com/
2014/06/20/jmu-sexual-assault-punishment_n_5515408.html.
The Chairman. Thank you very much, Ms. Renda.
Mr. Kelly, welcome. Please proceed.
STATEMENT OF JOHN KELLY, STUDENT, TUFTS UNIVERSITY, MEDFORD, MA
Mr. Kelly. Thank you, Mr. Senator.
When I was an 18-year-old college freshman, I entered into
what would soon become an abusive relationship with another
student. On the last night of my freshman year, he ignored my
noes, raped me, and then physically grabbed and restrained me,
not letting me leave his room until I told him I loved him.
Three months later, during my first week back at school for my
sophomore year, he raped me again.
Since then, I have become an advocate for the rights of
student survivors, especially those who are often overlooked,
in this case the queer community, my community.
Senators, I thank you for giving me this opportunity to
testify on the topic of sexual assault on college campuses. I
come here today with a number of policy recommendations that I
hope to address which are outlined more fully in my written
testimony provided.
First, Congress must give the Department of Education's
Office for Civil Rights the power to levy substantial fines
against schools found out of compliance with title IX. As we've
heard, the only recompense available to OCR currently is the
full removal of Federal funds, something that would hurt the
group of students that this law is intended to protect.
Schools found out of compliance must be punished to signal
the seriousness of their failure, and also to prevent schools
from becoming repeat offenders. In addition, these fines can
then go to help subsidize OCR's costs for enforcement, or go
directly into victim services.
At Tufts University, we were recently found out of
compliance, but no fines were levied. Without this ability,
schools cannot truly be held accountable.
Second, Congress must compel the Department of Education to
continuously release a list of schools under investigation for
title IX complaints. Without this information, complainants may
be deprived of information surrounding their own complaints,
and prospective students cannot possibly make an informed
decision regarding their choice of college.
Tufts University was under investigation when I was
applying to schools, and I made the choice to attend Tufts
without this information. When I was raped, Tufts was still
under investigation, and I still didn't know. Had I known, I
could only hope I would have chosen another school to begin
with. Perhaps I would have attended Tufts all the same, but
it's not within the purview of the Department of Education to
deny students the opportunity to make educated decisions for
themselves.
I only wish I had known Tufts was under investigation when
I began going through my campus' traumatizing judicial process
so I could have had at least a modicum of preparation for the
humiliation I would endure at the hands of administrators that
I trusted to protect me. They didn't protect me, but I had no
cause to suspect anything but support from them because of
OCR's opacity.
I was thrilled to see that OCR, under the leadership of
Catherine Lhamon, recently released a list of schools currently
under investigation, but that must become the norm. Please,
compel OCR to continuously and publicly release the names of
schools under investigation so that my experience can soon
become an outlier and not stay the norm.
My partner didn't use physical force at first. Indeed, he
didn't use physical force until the last day of our
relationship. But in the months and weeks leading up to that
fearful moment, he utilized psychological and emotional abuse.
It starts out as little things, a controlled move here, an
outburst there, and insult here, a put-down there. Most abuse
starts like this, with emotional and psychological abuse, but
these things are by no means little. Indeed, research shows
their effects are just as deleterious as any bruise or broken
bone.
In addition, 99 percent of survivors of domestic violence
experience economic abuse. In recent rulemaking, the Department
of Education and its rulemakers agreed that we did not have the
authority to expand the definitions of dating and domestic
violence to include emotional, psychological, and economic
abuse without the statute stating as much. So, please, state as
much. Policies inform expectations and culture, and the
expectation should not be to wait until you have a
hospitalization under your belt before you can report your
abuser and receive justice.
My self-identity as a rape survivor is not contingent on
the State or territory in which I currently live, and neither
should my ability to receive justice.
It is time for Congress to standardize the definitions of
sexual assault and rape that colleges use so that they apply
equally to male survivors and survivors in the greater queer
community. The estimate of lifetime sexual assault for gay or
bisexual men is 30 percent. For lesbian and bisexual women, it
is 43 percent.
In addition, about one-third of same-sex relationships
involve domestic violence, and about one-half of all trans
people experience sexual violence in their lifetime. The queer
community as a whole experiences sexual violence at staggering
rates, and this Nation's policies on the local, State, and
Federal level fail to fully address this. This failure not only
perpetuates the silencing of queer survivors but also prevents
queer college students from being able to fully access their
civil right to education.
Please, make consistent and inclusive definitions so that
this ceases to be an issue. All students have a right to
education, and policies that discriminate or ignore certain
marginalized identities fail to provide us that right.
Senator Harkin, Senator Alexander, members of the Senate
HELP Committee, thank you for including me in this opportunity
to provide testimony. In summary, transparent, trauma-sensitive
and inclusive policies are a must for institutions of higher
education and for the Federal Government. Thank you.
[The prepared statement of Mr. Kelly follows:]
Prepared Statement of John Kelly
summary
1. Currently, the only sanction explicitly available to the
Department of Education (ED) against schools out of compliance with
title IX is the full removal of Federal funding. As such a sanction
would devastate the very population title IX aims to help--students,
including those dependent on Federal financial aid--I respectfully call
upon Congress to provide the Department's Office for Civil Rights (OCR)
the authority to levy fines against non-compliant universities.
2. In Spring 2014, the Department of Education took the important
step of releasing the names of 55 schools currently under investigation
for title IX violations. This one-time release, however, is
insufficient. Congress should compel the Department to publish and
continuously update the list of schools under investigation, to ensure
that current students remain abreast of any issues at their schools and
prospective students have the information necessary to choose the
safest college for them. Such transparency would similarly allow the
public to hold the Department of Education accountable for lengthy
investigations that drag on for years with no conclusion.
3. In the recently published rulemaking on the Violence Against
Women Reauthorization Act (VAWA), dating and domestic violence are
defined to state that each, ``includes, but is not limited to sexual or
physical abuse or the threat of such abuse.'' It is imperative that
Congress legislate a change in these definitions to explicitly include
psychological, economic, and emotional abuse. As these behaviors often
precede physical or sexual abuse, we should not wait until behavior
manifests itself in bruises or broken bones to call it dating and
domestic violence.
4. State laws vary widely in their definitions of rape. Some still
maintain that only women can experience rape, while others fail to
recognize that it can happen between individuals of the same sex. At
the same time, the Federal Government's definitions are inconsistent,
with UCR and NIBRS each offering a different definition, and NIBRS now
failing to include male survivors within their definition of rape.
These variations must be addressed to define sexual assault and rape in
a way that is inclusive of the LGBTQ community and survivors of same-
sex sexual violence.
5. The campus judicial system has the unique ability to cater to
students' needs in a way that the criminal justice system cannot,
through providing remedies and resources to ensure a student's
continued ability to access their education. Any move to intertwine the
two systems or reduce access to the campus system in favor of the
criminal justice system will not only chill reporting, but prevent
students from accessing their full title IX rights. In addition,
providing multiple paths for reporting promotes a survivor's ability to
choose what is best suited to their needs.
______
fining authority for the office for civil rights\1\
Congress should propose legislation that gives the Department of
Education's Office for Civil Rights the ability to levy fines against
universities found out of compliance with title IX.
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\1\ Special thanks to Know Your IX's ED ACT NOW organizers, S.
Daniel Carter, and Nancy Cantalupo for their guidance and assistance
with this testimony.
Currently the Department of Education, through the Federal Student
Aid Clery Compliance Office, has the ability to levy fines against
schools found out of compliance with the Clery Act, but lacks the
authority to do so through its Office for Civil Rights (OCR) for
violations of title IX. Currently, the only sanction explicitly
available to the OCR against schools in violation of title IX is the
full removal of Federal funding. Such a sanction would devastate the
very population title IX aims to help--students, particularly those
dependent on Federal financial aid--and is an action the OCR has never
taken, and never should take.
Congress has the ability to change this course, through legislation
that grants the Department of Education the ability to levy fines
against schools found out of compliance. Such an action would send a
clear message to students, prospective students, alumni, and the public
that a university is in violation of Federal civil rights law--and that
such noncompliance will not be tolerated.
Fines should be levied based on a sliding scale model. A single set
fine amount would unduly burden smaller schools while leaving larger,
wealthier institutions virtually untouched. Proportionality could be
accomplished by tying the size of a fine to a school's yearly operating
budget.
continued release of schools under investigation
It is imperative that the Department of Education publish on an
ongoing basis an updated list of schools currently under title IX
investigation.
On May 1, 2014, the Department of Education released a list of 55
schools under sexual violence-related title IX investigations.\2\ This
was an unprecedented move, one that gave students, prospective
students, and alumni more information than ever previously available
about their respective universities' track records on sexual violence.
However, this vital transparency is not long-lasting: the Department
has billed the list as a one-time release, available in the future upon
private request but not released publicly in a manner that is
transparent and easily accessible to all. I believe students have the
right to know whether or not their institution is under investigation
for violations of Federal civil rights law, as do all prospective
college students and alumni prepared to donate to their alma mater.
Know Your IX, as well as other student activists and victims' rights
advocates, has long called for clarity and transparency in regard to
title IX investigations.
---------------------------------------------------------------------------
\2\ U.S. Department of Education. ``U.S. Department of Education
Releases List of Higher Education Institutions with Open title IX
Sexual Violence Investigations.'' http://www.ed.gov/news/press-
releases/us-department-education-releases-list-higher-education-
institutions-open-title-i.
---------------------------------------------------------------------------
Such openness serves a dual purpose. First, it holds schools
accountable for their (mis)treatment of survivors, ensuring that the
public eye is turned to schools that fail to provide their students
with a safe learning environment, and allowing additional student
survivors to provide further evidence of wrongdoing to the Office for
Civil Rights during an investigation. Second, it serves as a check on
the Department of Education, holding the agency accountable for the
timely resolution of outstanding complaints. We have heard horror
stories of complaints that have been lost, dragged on for over 5 years,
or were subsumed by other complaints without notice to the complainant,
and ongoing transparency will prevent that from remaining possible.
expansion of dating and domestic violence definitions
Congress should legislate the explicit inclusion of emotional,
economic, and psychological abuse within definitions of dating and
domestic violence, for the purpose of investigation and enforcement on
college campuses.
In recent rulemaking sessions on the Violence Against Women Act
Reauthorization, dating violence and domestic violence definitions have
been defined to state that each ``includes, but is not limited to
sexual or physical abuse or the threat of such abuse.'' \3\ The
committee felt it lacked the power to expand the definition beyond what
was specified by law, and also that such a definition would be hard to
enforce. However, the Department of Justice Office on Violence Against
Women includes emotional abuse, psychological abuse, and economic abuse
within its definition of domestic violence, as do numerous other
Federal agencies.\4\ \5\ The rates at which these forms of abuse occur
are staggering. Nearly half of all women and men experience
psychological aggression by an intimate partner in their lifetime.\6\
Ninety-nine percent of domestic violence victims experience economic
abuse.\7\ In addition, emotional, economic, and psychological abuse
often serve as stepping stones before behavior becomes physically or
sexually violent.\8\ It is imperative that students be able to report
abuse as soon as it becomes realized and not wait for it to escalate.
As the law and regulations currently stand, they incentivize waiting
for behavior to become physically manifested. Bruises and broken bones
are rarely the first form dating and domestic violence take, and
students must be guaranteed safety on their campuses at the first sign
of such violence.
---------------------------------------------------------------------------
\3\ Federal Register. ``Violence Against Women Act: A Proposed Rule
by the Education Department.'' https://www.federalregister.gov/
articles/2014/06/20/2014-14384/violence-against-women-act.
\4\ ``Domestic Violence.'' USDOJ: Office on Violence Against Women:
Crimes of Focus: Domestic Violence. http://www.ovw.usdoj.gov/
domviolence.htm.
\5\ These agencies include the Centers for Disease Control and
Prevention, the Department of Health and Human Services Office on
Women's Health, and the Department of Justice Office on Violence
Against Women.
\6\ Black, M.C., Basile, K.C., Breiding, M.J., Smith, S.G.,
Walters, M.L., Merrick, M.T., Chen, J., & Stevens, M.R. (2011). The
National Intimate Partner and Sexual Violence Survey (NISVS): 2010
Summary Report. Atlanta, GA: National Center for Injury Prevention and
Control, Centers for Disease Control and Prevention. http://
www.cdc.gov/violenceprevention/pdf/nisvs_executive_summary-a.pdf.
\7\ Adrienne E. Adams and others, ``Development of the Scale of
Economic Abuse,'' Violence Against Women 14 (5) (2008).
\8\ O'Leary, K. Daniel. ``Psychological Abuse: A Variable Deserving
Critical Attention in Domestic Violence.'' Violence and Victims 14.1
(1999): 3-23.
---------------------------------------------------------------------------
The necessity of this legislative change cannot be overstated.
Intimate partner homicide makes up around half of all female homicides
in the United States, and in 70-80 percent of cases the homicide is
preceded by physical abuse.\9\ In addition, research clearly shows that
psychological abuse often times precedes physical abuse, and can be
just as serious in its effects as physical manifestations of abuse.\10\
Therefore, in order to prevent domestic and dating violence from
escalating, psychological and emotional abuse must be considered part
and parcel of their definitions, so students who report abuse in its
earlier stages are protected.
---------------------------------------------------------------------------
\9\ Campbell J.C., Webster D., Koziol-McLain J., Block C.R.,
Campbell D.W., Curry M.A., Gary F., McFarlane J.M., Sachs C., Sharps
P., Ulrich Y., Wilt S.A. Assessing Risk Factors for Intimate Partner
Homicide. National Institute of Justice journal 2003; (250): 14-19.
https://www.ncjrs.gov/pdffiles1/jr000250e.pdf.
\10\ O'Leary, 3-23.
---------------------------------------------------------------------------
The Department of Justice Office on Violence Against Women already
utilizes a definition of domestic violence that includes the following:
physical abuse, sexual abuse, emotional abuse, economic abuse,
psychological abuse, and emotional abuse. We recommend that these added
aspects become part of the standardized definitions of dating violence
and domestic violence.
standardization of definitions to include same-sex sexual violence
Congress should expand existing definitions of rape and sexual
assault to be inclusive of the experiences of male survivors and the
LGBTQ community.
State law definitions of sexual assault and rape vary widely and
only some sufficiently recognize male survivors and victims of same-sex
violence. Some definitions still maintain that only women can be raped,
while others fail to recognize that assaults can and do happen between
individuals of the same sex. The Federal Government's definitions also
vary. The National Incident-Based Reporting System (NIBRS) and Uniform
Crime Reporting (UCR) each offer a different definition,\11\ and NIBRS
does not include male survivors within its definition of rape. Instead,
NIBRS divides forcible sex offenses into rape, sodomy, and sexual
assault with an object. Separating rape into these distinct categories
disenfranchises queer and male survivors of sexual violence, and these
variations lead to a chronic misrepresentation of rape outside of the
male perpetrator, female victim context.\12\ Within the Uniform Crime
Reporting (UCR) Program, each of these is included in the definition of
rape.
---------------------------------------------------------------------------
\11\ FBI. ``Frequently Asked Questions about the Change in the UCR
Definition of Rape.'' http://www.fbi.gov/about-us/cjis/ucr/recent-
program-updates/new-rape-definition-frequently-asked-questions.
\12\ Federal Register. ``Violence Against Women Act: A Proposed
Rule by the Education Department.'' https://www.Federalregister.gov/
articles/2014/06/20/2014-14384/violence-against-women-act#p-227.
---------------------------------------------------------------------------
Members of the LGBTQ community are disproportionately victimized.
In a survey of academic studies of sexual violence within the LGBTQ
community, the median estimate of lifetime sexual assault for gay or
bisexual men was 30 percent, and for lesbian or bisexual women the
median rate was 43 percent.\13\ A 2008 study found that 25-33 percent
of all surveyed same-sex relationships involved domestic violence.\14\
---------------------------------------------------------------------------
\13\ Rothman, E.F., D. Exner, and A.L. Baughman. ``The Prevalence
of Sexual Assault Against People Who Identify as Gay, Lesbian, or
Bisexual in the United States: A Systematic Review.'' Trauma, Violence,
& Abuse 12.2 (2011): 55-66.
\14\ Mallon, Gerald P. Social Work Practice with Lesbian, Gay,
Bisexual, and Transgender People. 2d ed. New York: Haworth, 2008.
---------------------------------------------------------------------------
The Department of Education's Q&A document\15\ importantly
addresses LGBTQ and male survivors. We ask that Congress follow the
Department's example and author legislation that standardize the
definitions of sexual violence under title IX. In addition, we ask that
this legislation specifically require that schools follow these
definitions in order to continue to receive Federal funding. This can
be bolstered through requiring that colleges and universities must
explicitly state that their policies apply equally to all students,
regardless of sex, gender, or gender identity. We support and very much
encourage an expansion of this right to all survivors in the next
Violence Against Women Act reauthorization.
---------------------------------------------------------------------------
\15\ U.S. Department of Education Office for Civil Rights.
``Questions and Answers on title IX and Sexual Violence.'' http://
www..ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
---------------------------------------------------------------------------
criminal justice system and campus judicial processes
The campus and criminal justice systems must remain separate, in
order to protect students' civil right to education.
I reaffirm students' right to report to local law enforcement, a
campus official, both, or neither. The White House Task Force to
Protect Students from Sexual Assault's extensive research concluded
that giving survivors multiple reporting options and control over to
whom and how they report is the best way to promote reporting of this
vastly underreported crime. In addition, rape crisis counseling best
practices continuously point to the importance of returning as much
agency and control to the hands of survivors in the aftermath of an
assault.\16\ Trauma-sensitive policies are a must, and allowing
students to choose the path that makes the most sense for them is a
major part of restoring agency to student survivors.
---------------------------------------------------------------------------
\16\ Herman, Judith Lewis. Trauma and Recovery. New York, NY:
Basic, 1992. See also: Yassen, Janet and Mary, R. Harvey. ``Crisis
Assessment and Interventions with Victims of Violence.'' Emergencies in
Mental Health Practice: Evaluation and Management. Ed. Phillip M.
Kleespies. New York: Guilford, 1998. 117-44.
---------------------------------------------------------------------------
Additionally, campus judicial processes provide resources and
remedies to survivors that the criminal justice system simply cannot,
including academic accommodations, housing changes, and counseling and
support services on campus. These responses are available to students
without them needing to file a police report or press charges, ensuring
access to education whether or not they choose to file a criminal
report.
The Chairman. Thank you, Mr. Kelly, for being here and for
being so forthright in your testimony. Appreciate it very much.
Ms. Stapleton, please proceed.
STATEMENT OF JANE STAPLETON, CO-DIRECTOR OF PREVENTION
INNOVATIONS: RESEARCH AND PRACTICES FOR ENDING VIOLENCE AGAINST
WOMEN, UNIVERSITY OF NEW HAMPSHIRE, DURHAM, NH
Ms. Stapleton. Good morning. Thank you, Chairman Harkin,
Ranking Member Alexander, and committee members. My name is
Jane Stapleton from the University of New Hampshire and, along
with Dr. Sharon Potter, I am the co-director of Prevention
Innovations: Research and Practices For Ending Violence Against
Women. It is an honor to be asked to testify before the HELP
Committee on an issue that has been an important part of both
my personal and professional lives for the past 30 years.
Prevention Innovations is made up of researchers and
practitioners who work together to create, evaluate, and
disseminate evidence-based prevention and responses to sexual
and relationship violence and stalking. We are invested in
building practitioners' capacities to respond to survivors,
measure climate and incidence, prevent violence, and comply
with recent Federal laws and mandates. We believe that to truly
end sexual and relationship violence on campus, we must
understand what works in prevention and response; evaluate
effectiveness; document climate, incidence, and readiness to
change; and implement evidence-based best practices.
During my career I have had the opportunity to witness a
dramatic shift in prevention approaches. In the early days, we
attempted to end the problem of sexual assault on campus by
educating people about the facts and risk reduction, talking to
women on how they can stay safe, and asking men please don't
rape. Bystander intervention, however, is a different approach
where women are not approached as victims or potential victims
and men are not approached as perpetrators or potential
perpetrators. Instead, we utilize a community approach to
prevention where everyone has a role to play in ending sexual
and relationship violence and stalking.
Together, my colleagues and I have developed, evaluated,
and implemented bystander intervention prevention strategies
where we teach college students, faculty, staff, and
administrators to safely intervene before, during, and after
instances of sexual and relationship violence and stalking.
Prevention Innovations' evidence-based bystander intervention
prevention strategies include bringing in the bystander, an in-
person prevention program, and Know Your Power, a bystander
intervention social marketing campaign. Both have been proven
to reduce participants' rape myth acceptance; increase
knowledge of the problems of sexual and relationship violence
and stalking, and bystander behaviors; increase people's
willingness to intervene before, during, and after; and
increase people's self-reported bystander behaviors.
Our prevention strategies have been developed with
considerable input from students, staff and faculty
representing a diversity of backgrounds, and have been adopted
by colleges and universities across the country and adapted for
the U.S. Army. Several members of Prevention Innovations have
administered an Unwanted Sexual Experience Study every 5 years
at the University of New Hampshire since 1988. The campus-wide
survey measures our male and female undergraduate students'
experiences of unwanted sexual intercourse and sexual contact.
In 2012, the survey incorporated questions related to
relationship violence and stalking, and included participants
from eight New England colleges and universities.
Additionally, my colleagues have developed and evaluated a
Community Readiness to Engage Survey for campuses to measure
their communities' readiness to change behaviors, social norms,
policies and practices to prevent sexual and relationship
violence and stalking.
Prevention Innovations has just launched the Campus Sexual
and Relationship Violence Prevention Consortium in an effort to
provide technical assistance to colleges and universities as
they work to meet legislative requirements to reduce campus
sexual and relationship violence.
Finally, Prevention Innovations has been asked by the White
House Task Force to Protect Students from Sexual Assault on
Campus to conduct a study on sexual assault policy education
for first-year students. I am delighted to see the extent to
which the U.S. Department of Education, through title IX and
the Clery Act, have prioritized campus safety not only related
to sexual assault but also dating and domestic violence and
stalking. When we discuss these important reforms, it is
important for us to remember the multiple forms of violence,
not just focus on sexual assault, as well as acknowledge a
diversity of survivors.
The recent mandates for campuses to ensure swift and
effective responses to reports of sexual and relationship
violence and stalking, sensitive and confidential support
services for survivors, and prevention education are essential
to stopping these preventable offenses. All of the recent
Federal mandates hold colleges and universities accountable for
ensuring safety and accountability on campus. For some
campuses, these mandates buildupon work, service, and policies
that they have already begun to develop and implement. For many
campuses, however, these mandates provide an opportunity to
begin this work in formal ways for the first time.
In thinking about how Federal law needs to be reformed and
strengthened to better address these issues, I suggest that
Federal regulations provide guidance and requirements for
colleges and universities to build comprehensive prevention
strategies and responses that focus on a continuum of violence
that includes dating and domestic violence, sexual assault and
stalking; conduct community-wide prevention that engages all
members of the campus community--including undergraduate and
graduate students, staff, faculty, administrators, parents,
community members, businesses, and alumni; conduct regular
climate studies that measure the extent and nature of the
problems of sexual and relationship violence and stalking.
Climate study results should be made public both in academic
journals and campus websites, and they must and they can
utilize uniform questions; utilize prevention strategies that
are scientifically evaluated and evidence-based research-
informed.
Too many non-research-based quick solutions are popping up
everywhere. For-profit companies with no subject matter experts
are seizing the opportunity to make money off recent Federal
mandates. A number of these solutions to recent mandates are
not research-informed or evidence-based, and this is
problematic.
We must assess campus readiness to change. Campuses fall
along a continuum of readiness to engage in prevention
responses. We must create confidential support services and
advocacy for survivors. Campuses need to identify and advertise
on-campus confidential support and partner with community-based
crisis centers to provide support for survivors and evidence-
based research-
informed prevention. Most importantly, everything and everyone
needs to keep survivors in the center of all prevention,
response, and compliance strategies.
I would echo the discussion on the need for the Department
of Education to identify a grants program focused on dating and
domestic violence, sexual assault and stalking.
Thank you very much for inviting me here, and I'd be more
than happy to answer any of your questions.
[The prepared statement of Ms. Stapleton follows:]
Prepared Statement of Jane Stapleton
Summary
bystander intervention
Bystander intervention to prevent sexual and relationship
violence and stalking is a different approach where women are not
approached as victims or potential victims and men are not approached
as perpetrators or potential perpetrators. Instead, we utilize a
community approach to prevention, where everyone has a role to play in
ending sexual and relationship violence and stalking.
how federal law is working to help prevent campus sexual assault
I am delighted to see the extent to which the U.S.
Department of Education, through Title IX and VAWA Amendments to the
Clery Act, have prioritized campus safety, not only related to sexual
assault, but also dating and domestic violence and stalking. When we
discuss these important reforms, it is important for us to remember
multiple forms of violence and not just focus on sexual assault. The
recent mandates for campuses to ensure swift and effective responses to
reports of sexual and relationship violence and stalking, sensitive and
confidential support services for survivors and prevention education
are essential to stopping these preventable offenses. All of the recent
Federal mandates hold colleges and universities accountable for
ensuring safety and accountability on campus. For some campuses, these
mandates build upon work, services and policies that they have already
begun to develop and implement. For many other campuses, these mandates
provide an opportunity to begin this work in formal ways.
To help ensure effective prevention, response and
compliance, colleges and universities need evidence-based and research-
informed models of best practice. It is essential that training and
technical assistance be provided by subject matter experts and people/
organizations that understand a diversity of campus cultures.
if federal law needs to be reformed and strengthen to better address
these issues
Build comprehensive prevention strategies and responses
that focus on a continuum of violence that includes dating and domestic
violence, sexual assault and stalking.
Conduct regular and appropriate and community-wide
prevention that engages all members of the campus community, including
undergraduate and graduate students, staff, faculty, administrators,
parents, community members/businesses, and alumni. Prevention
strategies should be comprehensive and occur with students during every
year of their college experience.
Conduct regular and appropriate climate studies to measure
the extent and nature of the problems of sexual and relationship
violence and stalking on campus.
Prevention strategies should be scientifically evaluated
and evidence-based/research-informed. Too many non-research-based
``quick solution'' programs are popping up and have not been evaluated
at all. For-profit companies, with no subject matter experts, are
seizing the opportunity to make money off of recent Federal mandates. A
number of these ``solutions'' to recent mandates are not research-
informed or evidence-based. This is problematic.
Prevention and response approaches need to be translated
for a diversity of campuses. For example social marketing campaign
images developed at the University of New Hampshire, even though they
are effective, will not easily translate to an HBCU campus.
Campuses fall along a continuum of readiness to engage in
prevention and response. Thus, it makes sense that some campuses need
different approaches themselves.
While bystander intervention is important, it is also
essential to teach students about sexual consent and healthy
relationships, We expect them to be bystanders in instances of sexual
and relationship violence if they don't know how to identify sexual
consent and healthy relationships. Ideally, this formal education
should occur at least in high school.
Bystanders need to assess the situation for safety.
Bystanders need to be safe in order to help others.
Survivors need access to confidential support services and
advocacy. Campuses need to identify and advertise on-campus
confidential support AND partner with community-based crisis centers to
provide confidential support for survivors and evidence-based/research-
informed prevention.
______
Good Morning Mr. Chairman and members of the Senate HELP Committee:
My name is Jane Stapleton and I am the co-director of Prevention
Innovations: Research and Practices for Ending Violence Against Women
at the University of New Hampshire. It is an honor to be asked to
testify before the HELP Committee on an issue that has been an
important part of both my personal and professional life for nearly 30
years. I began my work as a student activist responding to a well-
publicized gang rape that was perpetrated on the UNH campus in 1987. It
was a time when we didn't have words such as ``date rape,
``acquaintance rape'' or ``gang rape'' and these crimes were often
committed as dozen of people could have stepped in to stop the
perpetrators, but didn't. The university held administrative hearings
where the three men sat with their lawyers in front of a standing room
only crowd and the survivor, whose name was published in the local and
campus papers, sat silently with her victim advocate. The men were
found responsible of ``disrespectful behavior'' and their punishment
was summer suspension. In the criminal justice proceedings, two of the
men were found guilty of sexual assault misdemeanors and spent 2 months
in the county house of corrections. They returned to the University the
following year; one of them became the president of his fraternity; one
of them was a bartender at a popular bar; and both of them had their
criminal records annulled. The survivor dropped out of school, never to
be heard of again. I often wonder where and how she is, if she ever
finished college, how she makes meaning of what was perpetrated against
her. I would like her to know that things have changed even though more
change is needed and that I and many other women and men have dedicated
our lives to stopping very preventable crimes. I dedicate my testimony
today to her in the hope that she has healed from the pain that
perpetrators and those that re-victimized her caused.
prevention innovations
I am fortunate to be part of the movements to prevent sexual and
relationship violence and stalking on campus. Over the past 10 years, I
have been an active member of Prevention Innovations and I currently
serve as the co-director, with Dr. Sharyn Potter. Prevention
Innovations is made up of researchers and practitioners who work
together to create, evaluate and disseminate evidence-based prevention
and responses to sexual and relationship violence and stalking. We are
invested in building practitioners capacities to respond to survivors,
prevent violence and comply with recent Federal laws and mandates. Our
research, practice and technical assistance are firmly grounded in the
belief that prevention and response strategies that are developed on
one campus or community, do not always easily translate to another
campus. As many of us know, college and universities differ greatly, in
size, mission, demographics of students, geographic location and much
more. Thus, we do not advocate a ``one-size-fits-all'' solution to the
problems of sexual and relationship violence and stalking.
Bystander Intervention
During my career, I have had the opportunity to witness a dramatic
shift in prevention approaches. In the early days, we attempted to end
the problem of sexual assault on campus by educating people about the
facts, and risk reduction: talking with women about how to stay safe
and asking men not to rape. Bystander intervention is a different
approach where women are not approached as victims or potential victims
and men are not approached as perpetrators or potential perpetrators.
Instead, we utilize a community approach to prevention, where everyone
has a role to play in ending sexual and relationship violence and
stalking.
Together, my colleagues and I have developed, evaluated and
implemented bystander intervention prevention strategies where we teach
college students, staff, faculty and administrators to safely intervene
before, during and after instances of sexual and relationship violence
and stalking. Prevention Innovations' evidence-based bystander
intervention prevention strategies include Bringing in the Bystander,
an in-person prevention program and the Know Your Power bystander
intervention social marketing campaign. Both have been proven to reduce
participants' rape myth acceptance; increase knowledge of the problems
of sexual and relationship violence and stalking and bystander
behaviors; increases people's willingness to intervene before, during
and after instances of sexual and relationship violence and stalking;
and increases people's self-reported bystander behaviors. Our
prevention strategies have been developed with considerable input from
students, staff, and faculty representing a diversity of backgrounds
and have been adopted by colleges and universities across the United
States and adapted for the U.S. Army. We regularly train students,
faculty and staff on campuses across the country to facilitate Bringing
in the Bystander and are currently working with several colleges and
universities to adapt Know Your Power using photos and scenarios from
their campuses.
Measuring the Problems of Sexual and Relationship Violence and Stalking
on Campus
Several members of Prevention Innovations and other UNH faculty
colleagues have administered an ``Unwanted Sexual Experiences
Survey''\1\ every 5 years since 1988. The campus-wide survey measures
our male and female undergraduates experiences of unwanted sexual
intercourse and contact. In 2012, the survey also incorporated
questions related to relationship violence and stalking and included
participants from eight colleges and universities. Additionally, my
colleagues have developed and evaluated a ``Community Readiness to
Engage'',\2\ modeled after the Tri-Ethnic Center at the University of
Colorado, survey for campuses to measure their communities' readiness
to change behaviors, social norms, policies and practices to prevent
sexual and relationship violence and stalking. The prevention
strategies for a particular community are dependent on where the
community is at with readiness to change/engage. Thus, ``prevention in
a box'' is not always the most appropriate approach to community
change, as we can't assume that prevention strategies developed for one
community will naturally transfer and translate to another community.
---------------------------------------------------------------------------
\1\ http://cola.unh.edu/justiceworks/reports.
\2\ Modeled after the `` Community Readiness to Change'' Tri-Ethnic
Center at the University of Colorado.
---------------------------------------------------------------------------
Helping colleges and universities prevent sexual and relationship
violence and stalking on campus, effectively respond to
survivors, comply with Federal laws and mandates
Prevention Innovations has just launched the Campus Sexual and
Relationship Violence Prevention Consortium in an effort to provide
technical assistance to colleges and universities as they work to meet
the legislative requirements and reduce campus sexual and relationship
violence. The Consortium is a project between Prevention Innovations
university and college campuses across the United States that provides
members with training, prevention strategies, technical assistance and
evaluation tools to assess and effectively address sexual and
relationship violence and stalking in their communities. Technical
assistance is provided by leading researchers and practitioners in the
prevention, direct services and compliance fields and is grounded in
research, theory and evidence-based evaluation. Consortium goals
include assessment, implementation and sustainability of compliance,
response and prevention strategies to create violence-free university
and college campuses.
Prevention Innovations is also working with the 14-member programs
of the New Hampshire Coalition Against Domestic and Sexual Violence to
build local community-based crisis centers' capacities to respond to
the recent Federal legislation related to campus sexual and
relationship violence and stalking. Community-based programs have the
potential to provide important support to campus survivors and campus
communities, both in terms of crisis response and prevention.
Unfortunately, many community-based programs do not have in-depth
knowledge of recent changes in Federal laws related to campus violence
and there are not strong models of community and campus partnerships in
this area. Community-based programs need to increase their
understanding of recent reforms and identify ways that they can meet
the needs of campus survivors and campus prevention requirements.
Likewise, campuses need to see community-based programs as partners in
meeting new requirements. We are piloting this project in New Hampshire
and are currently outlining plans to implement this technical
assistance nationally.
How Federal Law is working to help prevent campus sexual assault
I am delighted to see the extent to which the U.S. Department of
Education, through Title IX and VAWA Amendments to the Clery Act, have
prioritized campus safety, not only related to sexual assault, but also
dating and domestic violence and stalking. When we discuss these
important reforms, it is important for us to remember multiple forms of
violence and not just focus on sexual assault. The recent mandates for
campuses to ensure swift and effective responses to reports of sexual
and relationship violence and stalking, sensitive and confidential
support services for survivors and prevention education are essential
to stopping these preventable offenses. All of the recent Federal
mandates hold colleges and universities accountable for ensuring safety
and accountability on campus. For some campuses, these mandates build
upon work, services and policies that they have already begun to
develop and implement. For many other campuses, these mandates provide
an opportunity to begin this work in formal ways. Prevention
Innovations has had the opportunity to work with many colleges and
universities across the country. While campuses are diverse on many
levels, our advice to them is structured around the following
framework. I believe that these suggestions can also be applied to
reform and strengthen Federal laws related to campus dating and
domestic violence, sexual assault and stalking.
If Federal Law needs to be reformed and strengthen to better address
these issues
Build comprehensive prevention strategies and responses
that focus on a continuum of violence that includes dating and domestic
violence, sexual assault and stalking.
Conduct regular and appropriate and community-wide
prevention that engages all members of the campus community, including
undergraduate and graduate students, staff, faculty, administrators,
parents, community members/businesses, and alumni. Prevention
strategies should be comprehensive and occur with students during every
year of their college experience.
Conduct regular and appropriate climate studies to measure
the extent and nature of the problems of sexual and relationship
violence and stalking on campus.
Prevention strategies should be scientifically evaluated
and evidence-based/research-informed. Too many non-research-based
``quick solution'' programs are popping up and have not been evaluated
at all. For-profit companies, with no subject matter experts, are
seizing the opportunity to make money off of recent Federal mandates. A
number of these ``solutions'' to recent mandates are not research-
informed or evidence-based. This is problematic.
Prevention and response approaches need to be translated
for a diversity of campuses. For example social marketing campaign
images developed at the University of New Hampshire, even though they
are effective, will not easily translate to an HBCU campus.
Campuses fall along a continuum of readiness to engage in
prevention and response. Thus, it makes sense that some campuses need
different approaches themselves.
While bystander intervention is important, it is also
essential to teach students about sexual consent and healthy
relationships. We expect them to be bystanders in instances of sexual
and relationship violence if they don't know how to identify sexual
consent and healthy relationships. Ideally, this formal education
should occur at least in high school.
Bystanders need to assess the situation for safety.
Bystanders need to be safe in order to help others.
Survivors need access to confidential support services and
advocacy. Campuses need to identify and advertise on-campus
confidential support AND partner with community-based crisis centers to
provide confidential support for survivors and evidence-based/research-
informed prevention.
bystander intervention resources
Engaging communities to end sexual violence: Current research on
bystander focused prevention [Special issue]. Potter, S.J., & Banyard,
V. (Eds.). (2011). Violence Against Women, 17(6).
Using a Multimedia Social Marketing Campaign to Increase Active
Bystanders on the College Campus. Potter S. (2012). Journal of American
College Health, 60(4): 282-95.
Bringing in the target audience in bystander social marketing
materials for communities: Suggestions for practitioners. Potter S.J. &
Stapleton J.G. (2011). Violence Against Women, 17: 797-812.
Using Social Self-Identification in Social Marketing Materials
Aimed at Reducing Violence Against Women on Campus. Potter, S.J.,
Moynihan, M.M., & Stapleton, J.G. (2011). Journal of Interpersonal
Violence, 26(5), 971-90.
Designing, Implementing, and Evaluating a Media Campaign
Illustrating the Bystander Role. Potter, S.J., Stapleton, J.G., &
Moynihan, M.M. (2008). Journal of Prevention & Intervention in the
Community, 36(1), 39-55.
Unwanted Sexual Experiences--Reports http://cola.unh.edu/
justiceworks/reports.
How do we know if it works? Measuring outcomes in bystander-focused
abuse prevention on campuses. Banyard, V.L., Moynihan, M.M., Cares,
A.C., & Warner, B. (2014). Psychology of Violence, 4(1), 101-15.
Who Are You? http://whoareyou.co.nz/.
Stepping Up to Stop Sexual Assault NY Times http://www.nytimes.com/
2014/02/09/education/edlife/stepping-up-to-stop-sexual-
assault.html?ref=us.
Improving College Campus-Based Prevention of Violence Against
Women: A Strategic Plan for Research Built on Multi-pronged Practices
and Policies. Banyard, V. B. (2014). Trauma Violence Abuse http://
tva.sagepub.com/content/early/2014/02/04/1524838014521027.
The Evaluation of Campus-Based Gender Violence Prevention
Programming: What We Know about Program Effectiveness and Implications
for Practitioners, Roberta E. Gibbons and Julie Evans http://
vawnet.org/Assoc
_Files_VAWnet/AR_EvaluationCampusProgramming.pdf.
Changing Perceptions of Sexual Violence Over Time, Sarah McMahon
and Karen Baker http://vawnet.org/Assoc_Files_VAWnet/
AR_ChangingPerceptions
.pdf.
What Works in Prevention. Nation, M., Crusto, C., Wandersman, A.,
Kumofer, K.L., Seybolt, D., Morrisey-Kane, E., & Davino, K. (2003).
American Psychologist, 58(6/7).
Engaging Bystanders to Prevent Sexual Violence Packet, National
Sexual Violence Resource Center. This online resource collection offers
advocates and preventionists information and resources on bystander
intervention. It includes resources to use with community members, as
well as information and research on the effectiveness of bystander
intervention. This 4-part collection was developed for use by
advocates, preventionists, and community members. http://www.nsvrc.org/
projects/engaging-bystanders-sexual-violence-prevention/bystander-
intervention-resources.
The Chairman. Thank you all very much.
We'll try to do a quick round. I'll have basically one
question because we have votes starting at 11:45. So we have
about 15 more minutes.
Let me ask you, Ms. Stapleton, do we have any information,
data, on college orientation? Do colleges have sessions on
sexual assault, other forms of violence which you point out,
that it's not just sexual assault, it's other forms of
violence? It could be stalking. It could be intimidation that
Mr. Kelly spoke about in terms of that type of intimidation of
students. Do we have any data?
Ms. Stapleton. We don't, actually, Senator Harkin, have any
data. The VAWA amendments to Clery actually do outline, as Mr.
Moore did talk about, primary prevention programs for dating
and domestic violence, sexual assault and stalking. But we have
no data, and that actually is what we've been asked to do a
study on for the White House Task Force.
The Chairman. When is that going to be done by?
Ms. Stapleton. It actually is a campus-wide study involving
seven campuses, and we're conducting it in September, and we
will report to the White House in January.
The Chairman. Ms. Renda, you are also a survivor of
assault, and I read your testimony last night, and it seems to
me we have a little bit of a difference here with Ms. Lhamon.
Maybe we'll work this out, but you are basically advocating
that we have different levels of sanctions, ``maintain a range
of sanctions so as not to deter survivors from reporting, and
respect a variety of resolutions survivors seek.'' That sort of
gets into what Senator Whitehouse and I were talking about, do
all these rise to the level of felonies but maybe the survivor
doesn't want to push it that far?
I'm sort of a little confused myself, because I agree with
Senator Whitehouse, you don't want to permit a perpetrator who
is guilty of a felony and who may be a serial perpetrator from
escaping the provisions of law pertaining to felony assault. On
the other hand, you're saying there ought to be other
approaches also. Can you help me think this through?
Ms. Renda. I think the kind of clear point of distinction
is that maintaining a range of sanctions is about being able to
offer survivors on the front end a range of different outcomes
and to be able to say we can use this to mandate that your
assailant get counseling or something along those lines. That's
not to say though, that once the disciplinary proceeding
begins, that a survivor maintains the same goals or wishes. A
lot of times the recovery process causes you to change your
intentions over time. Many victims feel a lot of self-blame
initially that prevents them from really wanting to report in a
punitive way. That changes the more the involvement on the
school's part really becomes available.
That range of sanctions is a comfort in some ways, and then
also allows the school to act. And once a school has initiated
its formal disciplinary proceeding, it is entirely possible
that they can determine that a hostile environment exists
regardless of exactly what the survivor wants and would be able
to work with that person to say,
``I know you didn't want to see this person expelled,
but we believe that they pose a threat to other
students, and so we have to take that action.''
It's a way of cooperating with survivors on their needs
with and throughout that process that still allows a school to
evaluate a hostile environment and still make choices that are
best for the safety of campus as a whole. I think the risk that
mandatory reporting would deter someone from coming forward in
the first place, which prevents that whole process from taking
place.
The Chairman. Mr. Kelly, again, and perhaps also Ms. Renda,
again, the sanctions in the Office of Civil Rights, what they
can levy against institutions out of compliance, inform me, Mr.
Kelly, inform me about how you might see this. Rather than just
this big nuclear option where we threaten to take away all your
funds, or we're going to go to the police and have this person
prosecuted as a criminal, are there other things that we need
to be looking at here and approaches on this, especially as it
pertains to the gay and lesbian community?
Mr. Kelly. Yes. Thank you for your question, Senator
Harkin. I think that in the testimony that I provided, I think
that what makes the most sense is to provide the Office of
Civil Rights with numerous avenues for compliance and for the
punishment of non-compliance. So if a school is found out of
compliance, right now the only option is either the full
removal of Federal funding or no fines at all. There needs to
be some sort of middle ground here.
What's been happening recently is students have been using
the Clery Act more and more because they levy some fines. But
the Clery Act fines are not tied to a campus' endowment or
yearly earnings or anything like that. It's just one standard
set fine that's pretty low and doesn't really have any effect
on schools with hundreds of millions of dollars in their
endowment.
I think that what makes most sense is to have fines tied to
a school's yearly operating budget or a school's funds in some
ways. That way, you see fines that are not unduly affecting the
small campuses that Jim Moore was talking about earlier, the
small for-profit schools that have 12 students, things like
that. But also if you have a school like the University of
Michigan or the University of Tennessee, where you have
hundreds of millions of dollars, if not more, at their
disposal, you're actually having a fine that really does have
some effect, and I think that's really important.
The Chairman. Ms. Renda, do you kind of agree with that?
Ms. Renda. I would absolutely agree. I think the key issue
is that idea of budgetary reallocation on a year-to-year basis
that can be flexible, that can cooperate with the current
resolution agreements, may provide bystander education. The
Office of Civil Rights could mandate that they provide $5,000 a
year to fund those programs for a certain number of years as
part of that agreement, and that would really kind of push
compliance in a way that it's voluntary and in good faith now
but I think would have a lot more teeth to it if it was forced.
The Chairman. What do you think of that, Ms. Stapleton?
Ms. Stapleton. I'd like to see the discussion focus on
prevention as well.
The Chairman. OK, I got that.
Ms. Stapleton. Just because I think if we're really, truly
looking to stop the problems, of course, we want to have
responses to survivors and adjudication, but we really need to
focus on stopping the problem.
The Chairman. I agree. We need colleges to set up better
structures, better orientation, provide Clery Act information
to incoming students. But they need structures in place that
inform students as to what violence is, what campus violence
is, what sexual violence is, what stalking, what intimidation
is, yes.
Ms. Stapleton. Absolutely, and I think an important piece
of the Clery statistics is that the Clery statistics really
aren't--they are what gets reported to formal structures.
That's why I think----
The Chairman. Say that again?
Ms. Stapleton. The Clery statistics really are reports that
come through the university through formal structures. So in
many campuses it's the campus police or the Dean of Students'
office.
The Chairman. Right.
Ms. Stapleton. What we found in our climate studies, our
Unwanted Sexual Experience study that we do, is that actually a
very small percentage of students who report their sexual
assault experiences actually report to those formal structures.
Students are most likely to report to a friend or their
roommate. That's why I think bystander intervention is so
important, and also it's so important to release the findings
of those climate studies so that when a prospective student and
their family look at the Clery statistics and they say, ``well,
this is really low,'' it's not necessarily indicative of what's
happening on the campus. A climate study would give them a much
more comprehensive view of what's happening on that campus.
The Chairman. Great. Thank you.
Senator Baldwin.
Senator Baldwin. Thank you, Mr. Chairman.
I want to start by thanking this panel for your testimony,
and particularly those of you survivors who have taken
something horrible and turned it into very positive advocacy
and support for others.
I want to continue to highlight one aspect of the issue of
campus sexual assault, the one that Mr. Kelly spoke to in his
testimony; namely, how it may uniquely impact lesbian, gay,
bisexual, transgender and queer people. Same-sex sexual
violence has certainly not always been taken seriously by law
enforcement, and social stigma and discrimination still mean
that many in the LGBTQ community are reluctant to report that
they have been victims of crime.
And furthermore, while title IX prohibits all forms of sex
discrimination, including that based on sex stereotypes, and
the Clery Act requires reporting of campus hate crimes based on
sexual orientation and gender identity, there is no Federal law
that specifically addresses discrimination in education based
on sexual orientation and gender identity.
You heard earlier today with Senator Murray's questioning
that she and I and other colleagues have introduced legislation
called the Tyler Clementi Higher Education Anti-Harassment Act
which would require colleges and universities to address
harassment, including cyber bullying, based on sex, sexual
orientation, gender identity and other characteristics. This
legislation would add to the important protections that we're
already discussing today and that are already on the books and
ensure that colleges and universities take steps to avoid and
to address harassment in all of its forms.
I would like to hear from the panel, but, Mr. Kelly, I'd
love to start with you. I know you've outlined some very
specific things in your written testimony, but are there other
ways in which Congress or the Administration can better ensure
that our response to campus sexual assault and other forms of
campus violence is truly inclusive of the LGBT community?
Mr. Kelly. Thank you so much for your question, Senator
Baldwin, and thank you for your work on the legislation that
you were speaking about. I think it's so incredibly important.
I think that when we're talking about the harassment that
queer students have occur to them, in a similar way that we
talk about sex discrimination under title IX as including
sexual harassment and sexual violence, I think we could be
talking about sex discrimination that queer students face. The
unfortunate reality is that hate crimes still happen on campus,
and the unfortunate reality is that sexual violence within the
queer community is still pretty rampant.
I think that making sure that policies cater specifically
to those who have been most often hurt by it is the best place
to start. I know there's been a lot of talk about the place of
the criminal justice system here. I tried to go to the criminal
justice system, but I have an unwinnable case because I'm a
male. I could never prosecute against my assailant. We need to
be talking about how better to have State legislation, how
better to have local legislation that expands definitions of
sexual violence to include male survivors and survivors of
same-sex sexual assault.
I mean, some of the States that Senators on the HELP
Committee are from, even, have laws that are discriminatory on
the books. I was doing a quick search. You see male pronouns
when we're talking about assailants. You see female pronouns
when we're talking about survivors. Things like that need to be
eradicated from the law, from the top-down, and I think the
Senate is the place to start with it. You have to start at the
top, and I appreciate all the work that you've done on this
topic, and it's one that we have to keep talking about and we
have to keep legislating. Thank you.
Ms. Renda. I would reiterate that point about language.
Something as simple as it's called the Violence Against Women
Act, or the Office of Violence Against Women, it paints a very
clear picture of who violence happens to and who perpetrates
violence, and it really leaves those people out. I think
something to be mindful of as well is that we're requiring
colleges now to consider doing climate surveys--and you may
speak better to this than I, but those should be made sure to
have language that's inclusive that really measures incidence
across groups and that doesn't presume opposite-sex partners or
opposite-sex assailants.
Ms. Stapleton. I would agree with my two panelists and say
that I know that we work very hard to build prevention
strategies that are very inclusive as well. I think, again, we
need evidence to know what works.
Senator Baldwin. Thank you.
The Chairman. Thank you.
A vote has started. I just have one pointed thing I wanted
to bring up and get your thoughts on.
The Department published a proposed rule to the VAWA, the
Violence Against Women Act amendments to the Clery Act just
last week. One of the provisions that's gaining a great deal of
attention is the new provision clarifying that both parties may
have others present during an institutional disciplinary
proceeding, including an advisor of their choice.
On the one hand some argue that this erodes an
institution's ability to control its own proceedings, that it
chips away at the institution's ability to marshal its students
and community members to police their own. Others indicate that
this offers both parties the right to have someone to accompany
them and offer advice during what could amount to a very
traumatic proceeding on either side.
OK, what are your thoughts on that?
Ms. Renda. I would say I think both points are very salient
in terms of it's really important, especially for a survivor,
to have someone present during that hearing, someone to just
sit next to you or to consult with in recess, or just make sure
that you're managing your expectations.
Accused students also deserve that right.
The risk, I believe, comes with lawyers and advisory
counsel and the inequity that could occur if one student can
afford a lawyer and the other cannot, and the types of advice
that might be given that would be privileged in one sense to
one side of the investigation, but then it's not available
because the other student can't afford it. I think that's where
that advisory role perhaps presents a serious problem.
The Chairman. Very, very good point. You're right, one
student might have the financial resources to have all kinds of
lawyers and legal, and the other person may not. That's a good
point.
Mr. Kelly, any thoughts on that?
Mr. Kelly. What I think is really important to note is that
it does not limit who the advisor can be, but it gives the
school leeway to limit what the advisor can do in the meeting.
A school has the ability to limit the advisor to only be
present in the room and not allowed to speak, and I think
that's really important because oftentimes schools, especially
smaller schools, don't have victim resources. I'm talking about
rape crisis counselors, domestic violence advocates, things
like that. Whereas an outside crisis counseling center, a local
crisis counseling center would have those resources.
To be able to limit who the advisor could be to only
members within the institution, which I know a lot of schools
have historically done, can be really problematic because then
you can leave survivors with no one who has training in how
best to support a survivor in a difficult time.
I do understand the difficulty with having attorneys
present and things like that. But again, if you're limiting
what's able to be said in these meetings by advisors, if you're
limiting the role of the advisor, as long as you have the
ability to have someone present, I think that's what matters
the most.
The Chairman. Yes, exactly.
Ms. Stapleton.
Ms. Stapleton. I think it's really essential to allow
survivors to have outside support people because I think
sometimes, and I've seen it happen, colleges and universities
do not provide survivors with the most informed and supportive
people. I would advocate heavily to have survivors have outside
people, and I agree with John on schools can limit what those
advisors do.
The Chairman. But again, I just raise this, and the issue
of ombudsmen, having somebody that a student can go to who is
not in the hierarchy of the school's structure is of critical
importance.
Ms. Stapleton. Right, very important.
The Chairman. They're not the athletic director.
Ms. Stapleton. And particularly if that person can have
confidential communications either through a counseling or
health center or a victim advocate provision I think is the way
to go.
The Chairman. Yes, they may not be trained legally to know
all the legal nuances and stuff.
Ms. Stapleton. Victim advocates are.
Mr. Kelly. Yes. I was actually about to say that most
district attorney offices have victim witness advocates who
operate basically to provide victims of crimes, a variety of
crimes, with all of the resources at their disposal and sort of
accompany them through the legal process. To have a victim
witness advocate liaison to a specific campus I think would be
a good solution to that problem.
The Chairman. Yes, exactly.
I have 2 minutes left, they tell me, to get over there.
First of all, I'd like to thank all our witnesses for
sharing their expertise and views with us today. I particularly
want to thank the survivors who are here with us today and for
your personal courage in coming forward and speaking with us. I
must say that when I hear you, I put a lot of weight on what
you are suggesting rather than perhaps others. I give a lot of
weight to that, and that goes to that issue of having sliding
scales and things like that, that I seem to have a disagreement
with the Department on. I just want to thank you for that.
Especially Ms. Stapleton, thank you for all the wonderful
research you have done. You're absolutely right, I am sort of
the father of prevention and health and everything else, and we
have to do a better job of having structures in our schools
that inform students, that set up preventive type measures.
Yes, that is the first.
Ms. Stapleton. And thank you for all your work.
The Chairman. We have to do that. But again, we have to do
something also to respond to the assault victims that are
there. We know it's under-reported.
Ms. Stapleton. Absolutely.
The Chairman. Second, I want to say that I just found out
that the academies, the military academies don't have to report
under the Clery Act. That needs to be fixed, too. That needs to
be fixed.
Again, I thank all of you. I thank my colleagues. I
especially want to thank Senator Alexander for his partnership
on this hearing. He had to go vote, and I know he had a plane
to catch, but I want to thank the committee's efforts to
examine this very critical issue. It will be a part of our
Higher Education Act reauthorization.
Ms. Stapleton. Wonderful.
The Chairman. Exactly how it's going to do, well, that's
why we're having this hearing, to try to inform us as to what
to do.
I request the record remain open until July 10th for
members to submit statements and additional questions for the
record.
The committee will stand adjourned.
Thank you very much.
Ms. Stapleton. Thank you.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Senator Blumenthal
Mr. Chairman, I appreciate the opportunity to submit
testimony for the record on the urgently important topic of
sexual assault on college campuses. I hosted seven roundtable
discussions earlier this year at schools in Connecticut on the
issue of campus sexual assault, and that experience really
opened my eyes to the shameful prevalence of this crime. I
listened to students, faculty, administrators, alumni, and
experts give their personal and professional opinions on this
pressing and difficult issue--including some who shared deeply
painful experiences.
Based on the input I received from these roundtables, I
developed and published a College Sexual Assault Bill of Rights
Report in May 2014 which is available at http://
www.blumenthal.senate
.gov/download/college-sexual-assault-report-final. I have
spoken with schools in Connecticut and urged them to use this
Bill of Rights report to ensure that their institutional
policies provide all students with the rights and protections
that they deserve.
What I heard from the Connecticut community underscores
what I have known for a long time: the prevalence of a sexual
violence in schools is an urgent civil rights issue. Although
this crime is vastly underreported, it is disturbingly common.
Multiple aspects of campus life create the conditions that
enable sexual violence to occur. Many students do not
understand how to address--or even to recognize--a potentially
dangerous situation. Inadequate enforcement of drug and alcohol
policies by some schools gives perpetrators easy access to
tools that they can use to facilitate the crime of assault.
Additionally, social pressure, a lack of information, and
apathetic or hostile administrative responses discourage
reporting.
We can and must take concrete steps to both reduce the
number of assaults and improve how they are dealt with when
they occur so that students can successfully achieve their
academic goals. Campus communities should strive to establish a
culture that treats sexual assault as completely unacceptable,
and legislators and regulators should encourage and support
this.
I am grateful for the work of my colleague Senator Casey,
who has been a leader on this issue for many years. His success
in passing the Campus Sexual Violence Elimination Act was a
significant step forward, and I look forward to building on his
efforts once the Department of Education finalizes the
regulations to implement his legislation. I'm also very
appreciative that Chairman Harkin has brought additional
attention to this issue through this hearing. I have been
working on a comprehensive piece of legislation with my
colleagues Senators Gillibrand and McCaskill, and I'm hopeful
that we can all move forward together in the fight to end
campus sexual assault.
The scourge of sexual violence in schools is a difficult
issue that we must seek to understand with sensitivity and
steadfast commitment. We owe it to those who have been brave
enough to share their stories to make concrete and
comprehensive efforts to eradicate this pernicious problem.
Prepared Statement of Senator McCaskill
Thank you, Chairman Harkin and Ranking Member Alexander,
for holding this important hearing on the issue of sexual
assault on our college campuses. As you know, about 25 percent
of women and 4 percent of men are victims of sexual assault
during their college years. These numbers are troubling to
parents, students, and educators. As a mother and former
prosecutor of sex crimes, I am working extensively with my
Senate colleagues to ensure students are protected from
incidents of sexual violence and perpetrators are held
accountable.
As Chairman of the Subcommittee on Financial and
Contracting Oversight in the Committee on Homeland Security and
Governmental Affairs, I recently completed a series of three
roundtables to examine sexual assault on college campuses that
brought together advocates, sexual assault survivors,
prosecutors, police, and university faculty and staff.
Throughout the course of these three roundtables, common themes
from participants were the importance of the Federal Government
offering support to universities to combat this problem, the
need to hold schools accountable for protecting students, and
the importance of universities working with local police and
prosecutors to ensure these crimes are handled appropriately.
As a former prosecutor, I take special interest in ensuring
that survivors are given adequate support and feel empowered to
make informed decisions regarding the adjudication and
disposition of their cases. This cannot succeed without
survivors meeting, as soon as possible, with personnel trained
in interview techniques designed for victims of traumatic
events. This interviewing technique, known as the forensic
interview, is a vital tool in supporting survivors as well as
ensuring the preservation of evidence to build strong cases
against perpetrators. I am concerned that interviews of this
sort are used far too infrequently in sexual assaults and
hardly ever, if at all, on college campuses.
Additionally, campuses, local law enforcement, and
prosecutors must work together to protect students from sexual
violence on campuses. This cannot be done without cooperation
between colleges and universities and local law enforcement.
Rather than compete or work against one another, colleges and
universities and local law enforcement must share the
responsibility of supporting survivors and punishing
perpetrators.
I look forward to working with my Senate colleagues and
members of this committee on this issue in the coming months.
We must continue to work to improve survivor confidence in the
judicial and campus systems, which will, in turn, increase
reporting, support survivors, and punish perpetrators of sexual
assault on our college campuses.
Prepared Statement of Jocelyn Samuels, Acting Assistant Attorney
General, Civil Rights Division. U.S. Department of Justice
The Department of Justice appreciates the opportunity to submit
this statement for the record of the committee's June 26, 2014 hearing
on combating sexual assault and violence under Title IX of the
Education Amendments of 1972 (Title IX) and related legislation. In
this statement, the Department will outline its responsibilities under
title IX, Title IV of the Civil Rights Act of 1964 (Title IV), and
other laws, as well as provide some examples of Department's work on
campus sexual violence issues. Our enforcement work under these
statutes and the stories of the brave survivors we have met through
that work have further strengthened our commitment to use all of the
tools at our disposal to combat sexual assault.\1\
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\1\ Sexual violence refers to physical sexual acts perpetrated
against a person's will or where a person is incapable of providing
consent. Sexual violence includes rape, sexual assault, sexual battery,
sexual abuse, and sexual coercion. When using the term sexual assault,
this testimony refers to all forms of sexual violence on campus.
---------------------------------------------------------------------------
Sexual harassment and assault deny students the ability to live and
learn in a safe educational environment--and are a form of sex
discrimination that can violate the Nation's civil rights laws when
they create a hostile environment. Survivors are often unable to
complete their academic work, and suffer serious short- and long-term
negative mental health consequences.
Feeling unsafe on campus, they are more likely to leave the
university before graduating. The devastating rates of sexual assault
remind us of the continuing critical importance of enforcing these
civil rights laws to address sex discrimination in all education
programs.
i. introduction
Passed by Congress on June 23, 1972, title IX bars sex
discrimination in education programs and activities offered by entities
receiving Federal funds. In the 42 years since its enactment, title IX
has improved access to educational opportunities for millions of
students, helping to ensure that they all have an ``equal opportunity
to aspire, achieve, participate in and contribute to society based on
their individual talents and capacities.'' \2\ In 2012 alone, title IX
protected over 49 million students enrolled in elementary and secondary
schools,\3\ as well as over 20 million students enrolled in
postsecondary education.\4\
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\2\ U.S. v. Virginia, 518 U.S. 515, 532 (1996).
\3\ ``Digest of Education Statistics, 2012,'' National Center for
Educational Statistics available at http://nces.ed.gov/programs/digest/
d13/tables/dt13_203.20.asp.
\4\ ``Digest of Education Statistics, 2012,'' National Center for
Educational Statistics available at http://nces.ed.gov/programs/digest/
d13/tables/dt13_302.10.asp.
---------------------------------------------------------------------------
Title IV was passed in 1964 to prohibit public schools, colleges,
and universities from discriminating against students on the basis of
race, color, national origin, and religion, and was amended in 1972 to
prohibit sex discrimination as well. As applicable here, the
fundamental principle underlying both title IX and title IV is that
students may not be denied educational opportunities based on their
sex--a principle that applies to the wide range of educational programs
and activities offered by schools, including but not limited to:
academic programs; financial aid for post-secondary institutions;
student services and counseling; and athletics and physical education.
Additionally, educational institutions may not retaliate against a
person because he or she opposed, reported, or complained about sex
discrimination or participated in a discrimination investigation or
proceeding.
These laws protect students from sexual harassment, including
sexual assault, that creates a hostile environment. When educational
institutions fail to respond adequately to campus sexual assault, they
engage in discrimination by forcing the affected students to attend
school in a hostile sex-based environment. Under title IX, title IV,
and other laws discussed below, educational institutions must respond
to sexual assault quickly and effectively, including supporting
survivors during the investigation and bringing perpetrators to
justice. Ensuring that campus police respond to complaints of sexual
assault, and that educational institutions' investigative and
disciplinary processes are prompt, fair, adequate, and reliable for
both victims and alleged perpetrators is critical to protecting the
civil rights of all students on campuses.
ii. department of justice enforcement authority
The Department of Justice's commitment to preventing and responding
to sexual assault and to holding schools accountable for fulfilling
their obligations under Federal law is one that is shared across
different divisions of the Department, including the Civil Rights
Division, the Office on Violence Against Women,\5\ and the Office of
Justice Programs.
---------------------------------------------------------------------------
\5\ The Department of Justice's Office on Violence Against Women
administers grant programs that provide Federal funds to colleges and
universities under the Violence Against Women Act (VAWA). The
Department's Office of Justice Programs, Office of Civil Rights
enforces the provisions of the Violence Against Women Reauthorization
Act of 2013 that prohibit discrimination on the basis of sex, among
other bases, by recipients of VAWA funds.
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The Civil Rights Division of the Department of Justice combats
sexual assault through enforcement of four laws: title IX, title IV,
Section 14141 of the Violent Crime Control and Law Enforcement Act of
1994, and the Omnibus Crime Control and Safe Streets Act of 1968. The
Department's unique enforcement authority under these four laws enables
the Division to address sexual assault in a holistic manner by engaging
all of the entities that play a role in preventing and responding to
sexual assault, thus strengthening the potential for sustainable and
community-wide solutions.
a. Title IX of the Education Amendments of 1972 (``Title IX'')
As described above, title IX applies to all educational
institutions that receive Federal funds, including all K-12 public
school districts and almost every college and university. When the
Department of Justice provides Federal funds to a school, it can
initiate a title IX compliance review or title IX complaint
investigation. The Department of Justice also coordinates title IX
enforcement for all Federal agencies and can initiate litigation to
enforce title IX upon referral from the agency funding the
discriminating school when findings of sex discrimination cannot be
voluntarily resolved with the educational institution. In addition, the
Department of Justice can intervene, file amicus (friend-of-the-court)
briefs, or file statements of interest in title IX lawsuits initiated
by private parties.
b. Title IV of the Civil Rights Act of 1964 (``Title IV'')
Title IV prohibits discrimination on the basis of sex, as well as
race, color, national origin, and religion in public schools, colleges,
and universities, regardless of whether they receive Federal funds.
Under title IV, the Department of Justice may conduct investigations
and, upon receipt of a complaint, file enforcement actions in court to
address sex-based discrimination, including sexual harassment, at
public educational institutions.
c. Section 14141 of the Violent Crime Control and Law Enforcement Act
of 1994 (``Section 14141'') and the Omnibus Crime Control and
Safe Streets Act of 1968 (``Safe Streets Act'')
These two laws prohibit law enforcement agencies, including campus
police, from engaging in a pattern or practice of discriminating on the
basis of sex in their response to sexual assault. Section 14141
authorizes the Department of Justice to review whether a law
enforcement agency engages in a pattern or practice of misconduct that
violates people's Federal statutory or constitutional rights. Where the
Department of Justice finds such a pattern or practice of misconduct,
it may seek injunctive relief to remedy these violations. Additionally,
the Department of Justice enforces the anti-discrimination provisions
of the Safe Streets Act. Under this Act, the Department is authorized
to investigate and, where appropriate, file suit to address allegations
of a pattern or practice of discrimination on the basis of race, color,
sex, or national origin by law enforcement agencies receiving Federal
funds.\6\
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\6\ Under the Safe Streets Act, the Department of Justice's Office
of Justice Programs, Office for Civil Rights has the authority to
investigate individual complaints that grantees of Department of
Justice funds have violated the Safe Streets Act's prohibition on
discrimination.
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Below, we address the standards applicable under title IV and title
IX in more detail.
iii. investigative standards
Sexual violence is a form of sexual harassment. It refers to
physical sexual acts perpetrated against a person's will or where a
person is incapable of providing consent. Sexual violence includes
rape, sexual assault, sexual battery, sexual abuse, and sexual
coercion. An educational institution violates title IX and title IV if:
(1) a student is sexually harassed and the harassing conduct is
sufficiently serious to deny or limit the student's ability to
participate in or benefit from the program (i.e., the harassment
creates a hostile environment); (2) the educational institution knew or
reasonably should have known about the harassment; and (3) the
institution fails to take immediate effective action to end the
harassment, eliminate the hostile environment, prevent its recurrence,
and address its effects, where appropriate.
To determine whether a hostile environment based on sex exists, the
Civil Rights Division considers whether there was any harassing conduct
that was sufficiently serious--that is, sufficiently severe, pervasive,
or persistent--to deny or limit a student's ability to participate in
or benefit from a school program, activity, or opportunity based on
sex. Under title IX's administrative enforcement standard and title
IV's injunctive relief standard, ``severe, pervasive, or persistent''
sexual harassment establishes a hostile environment; if an educational
institution knew or reasonably should have known of it, the school must
effectively address it.
In determining whether it is fulfilling its legal obligations, an
educational institution must examine from an objective and subjective
perspective all relevant circumstances with respect to whether a
hostile environment exists, including: the type of sexual harassment
(e.g., whether it was verbal or physical or both); the frequency and
severity of the conduct; the age, sex, and relationship of the
individuals involved (e.g., teacher-student or student-student); the
setting and context in which the harassment occurred; whether other
incidents have occurred at the educational institution; and other
relevant factors. The more severe the conduct, the less need there is
to show a repetitive series of incidents to prove a hostile
environment, particularly if the harassment is physical, e.g., rape.
As the Office for Civil Rights' (OCR) of the U.S. Department of
Education has stated, when a school knows or reasonably should know of
possible sexual assault, the educational institution must take
immediate and appropriate steps to investigate or otherwise determine
what occurred, subject to the survivor's requests for confidentiality,
in which case the school must consider a range of factors. These
factors are discussed in OCR's recent Questions and Answers guidance
about sexual violence issued on April 29, 2014. Investigations must be
prompt, thorough, and impartial to reliably determine what occurred. If
the educational institution finds that a hostile environment has been
created, it must take prompt and effective action to stop the
harassment, eliminate the hostile environment, prevent its recurrence,
and, as appropriate, address its effects. A series of escalating
consequences may be necessary if the initial steps are ineffective in
stopping the harassment.
In its investigation and enforcement work determining whether a
hostile environment exists and whether an educational institution has
adequately responded to allegations of sexual assault, the Civil Rights
Division considers whether schools:
Have and implement sexual assault policies that are clear,
consistent with Federal law, and readily accessible to students;
Provide appropriate training for school officials and
campus law enforcement;
Respond promptly and effectively to complaints of sexual
assault; and
Eliminate sex-based hostile environments when they are
found, including providing meaningful relief to address the impact on
affected students and, where appropriate, the larger campus community.
In addition to working with educational institutions to address
sexual assault, the Division also provides guidance to courts through
its filings of complaints, motions, and amicus briefs to ensure the
application of proper legal standards under title IX and title IV.
a. Developing Clear and Accessible Policies That Protect All Students
To effectively prevent sexual assault, schools' sexual misconduct
policies should provide definitions of sexual assault, sexual
harassment, and other relevant terms that are clear and consistent with
Federal law. Confusion over what constitutes ``consent'' or where and
when ``sexual harassment'' should be reported can make it more
difficult to hold alleged perpetrators accountable. For example, by
definition, being under the influence of psychoactive substances can
impact an individual's ability to consent to sexual activity. While the
reporting rate for all sexual assaults is low, in cases where the
survivor has used alcohol or drugs, reporting rates are even lower. In
a recent study of rape among college women, 11.5 percent of survivors
reported the rape to law enforcement officials, but only 2.7 percent of
survivors who had used alcohol or drugs at the time of the rape
reported the crime.\7\ Sexual misconduct policies must be drafted to
make clear that all survivors can come forward for counseling and to
file a complaint.
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\7\ Wolitzky-Taylor KB1, Resnick, H.S., Amstadter, A.B., McCauley,
J.L., Ruggiero, K.J., Kilpatrick, D.G. Reporting rape in a national
sample of college women. J Am Coll Health. 2011;59(7):582-7. doi:
10.1080/07448481.2010.515634. available at http://www.ncbi.nlm.nih.gov/
pmc/articles/PMC3211043/.
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These policies also should be drafted in culturally responsive and
inclusive ways to protect all survivors of sexual violence. Without
inclusive policies, schools too often inappropriately treat survivors
of same-sex violence and dating violence differently than other
victims--by perpetuating the perception that rape is only acted out by
a man against a woman or by a stranger, for example.
Schools must also broadly disseminate policies so that students
know how to report assaults; who they can talk to--both confidentially
and when they want to file a complaint; and how to access support
services. Students must be clearly informed that the decision as to
whether to file a complaint with law enforcement is the survivor's
decision. And most importantly, schools must implement their policies
and grievance procedures to ensure safe, nondiscriminatory learning
environments for all students.
b. Providing Appropriate Training for School Officials
Individuals investigating sexual assault and harassment complaints
and those responsible for coordinating title IX compliance must also
receive adequate training. All first responders and persons involved in
the investigation and disciplinary process should be ``trauma
informed''--meaning that they understand the physiological and
neurobiological changes caused by trauma, which affect how survivors
behave, recall information, and interact with investigators and
prosecutors.
School employees tasked with investigating and adjudicating sexual
misconduct must also be trained on the school's policies applicable to
the adjudication process, and those policies must be fair to both
survivors and perpetrators. And all students on campus should receive
training on the school's policies and procedures as well.
Finally, training is also critical for campus law enforcement.
Investigating sexual assault can be difficult even for seasoned police
officers, and a survivor's interaction with law enforcement can affect
whether the survivor is willing to go forward with the case. In
addition to jeopardizing an investigation, ineffective or sporadic
sexual assault response and investigation training can deprive officers
of the knowledge necessary to avoid re-traumatizing survivors.
c. Ensuring Prompt and Effective Responses to Complaints of Sexual
Violence
Schools have a duty to respond promptly and effectively to
complaints of sexual assault. Delayed investigations and other flawed
responses can too often lead to the loss of critical evidence and to
students missing class, taking leaves of absence, or dropping out of
school due to fears for their safety or retaliation. The Civil Rights
Division looks carefully at how campus law enforcement responds to
complaints of sexual assault, and how the colleges' investigative and
judicial processes treat both survivors and alleged perpetrators.
Ensuring that the college adjudication process is prompt, fair, and
impartial is critical to compliance with Federal civil rights laws.
d. Delivering Meaningful Relief to Students and Campus Communities
When schools learn of a report of sexual assault, they must offer
interim relief as necessary to protect the student's safety and well-
being. This can involve a number of accommodations, from providing
counseling or legal services to changing the student's living, class,
or testing arrangements. The school should provide these supports as
necessary regardless of whether the student wants to proceed with an
investigation or discipline the accused.
If a school determines that sexual assault has created a hostile
environment for the student or for the campus more broadly, it must not
only take effective steps to stop the harassment but also to remedy its
effects, where appropriate. These steps can include ensuring that the
student is safe from further harassment and is able to stay in school
with appropriate supports and accommodations, such as medical,
counseling, and academic support services. This also can include
campus-based remedies such as providing training for students and
employees, strengthening school policies, conducting bystander
intervention programs with students, and undertaking other activities
to prevent the recurrence of sexual assaults. And, of course,
institutions should ensure that no student is subject to retaliation
for complaining about sexual assault or bringing concerns to the
institution's attention.
In our complaint investigations and compliance reviews, the
Division works to design resolutions that will bring meaningful relief
to student survivors and create lasting change to improve the campus
climate for all students. Our agreements addressing sexual assault
under title IX, title IV, the Safe Streets Act, and section 14141
agreements are posted publicly on the Department's and White House's
websites and provide information to students, advocates, and
universities that can be used to help improve schools' and law
enforcement's responses to and prevention of sexual assault.
iv. examples of investigative activities
In May 2012, the Department of Justice announced investigations of
the University of Montana at Missoula, the University of Montana's
Office of Public Safety (OPS), the Missoula Police Department (MPD),
and the Missoula County Attorney's Office (MCAO) to ensure that these
entities were adequately responding to reports of sexual assaults and
meeting their legal obligations under title IX, title IV, Section
14141, and the Safe Streets Act. With cooperation from the University
president, the Departments of Justice and Education reached an
agreement with the University of Montana, and the Department of Justice
reached a separate agreement with OPS. The Department of Justice also
reached separate agreements with MPD and MCAO. These agreements
embodied a comprehensive approach to resolving sexual assault issues;
it is our hope that they will serve as an example for other
postsecondary institutions and law enforcement agencies seeking to
ensure compliance in these areas.
In addition, the Department of Justice has pursued title IV and
title IX cases in K-12 schools, protecting young people against sexual
assault and harassment. In recent years, in Tennessee, Pennsylvania,
California, and New York, the Department of Justice has reached
settlements or consent decrees with school districts to resolve issues
of sexual assault or sexual harassment.
a. Missoula, MT
In Missoula, MT, the Department of Justice engaged in four
investigations of sex discrimination using the full breadth of our
enforcement authorities under the four applicable statutes just
mentioned. As detailed below, the investigations found serious
deficiencies in the response to sexual assault by the University of
Montana-Missoula, OPS, MPD, and MCAO. In May 2013, the Department
entered into agreements with the University, OPS, and MPD to resolve
findings related to those parties. In June 2014, the Department entered
into an agreement with MCAO. All of the entities have agreed to work
cooperatively together and with the Department of Justice to implement
these agreements and improve the safety of all students and other
members of the Missoula community.
i. University of Montana-Missoula and the University of
Montana's Office of Public Safety
The Department of Justice's title IV investigation and the title IX
compliance review conducted jointly by the Departments of Justice and
Education identified several ways in which the University's response to
sexual assault fell short of its legal responsibilities. The
Departments found that the reported incidents of rape or sexual assault
were sufficiently serious that they interfered with or limited female
students' ability to participate in or benefit from the school's
program. As a result, students faced a hostile environment--they could
not engage in or complete their academic work; they experienced
negative mental health consequences; they felt unsafe on campus; and
some left the University. The Departments further found that the
University failed to take effective action to fully eliminate this
sexually hostile environment, prevent its recurrence, and remedy its
effects. For example, the Departments' investigation determined that
the University's sexual harassment and assault policies did not provide
clear notice of the conduct prohibited by the University or clear
direction about where and how to file complaints; the University's
grievance procedures did not ensure prompt and equitable resolution of
complaints of sex-based harassment; and the individuals investigating
sexual assault and harassment complaints and those coordinating the
University's title IX efforts did not receive adequate training.
In May 2013, with the full cooperation of the University
administration, the Departments of Justice and Education reached a
comprehensive resolution agreement with the University to resolve the
findings of noncompliance under title IX and title IV. The agreement
requires the University to, inter alia: revise its sex-discrimination
policies and grievance procedures; retain a consultant with expertise
in addressing sexual assault and harassment to help the University
develop effective sexual assault and harassment policies and grievance
procedures; conduct extensive training for University employees and
students; develop a system for tracking and resolving reports of sexual
assault and harassment in a timely and effective manner; and conduct
campus climate surveys to assess whether the reforms put in place by
the agreement are proving successful at preventing and effectively
responding to sexual assaults.
The Department of Justice also conducted a comprehensive
investigation of OPS, under the Safe Streets Act and Section 14141, to
assess whether OPS was discriminating on the basis of sex in responding
to reports of sexual assault. The investigation found that the OPS'
response to sexual assaults was compromised by deficiencies in policy,
training, and practice. These deficiencies made it more difficult for
law enforcement to effectively investigate allegations of sexual
assault, depriving female sexual assault survivors of basic legal
protections, and reducing the ability of OPS to protect the public
safety of the entire campus. In May 2013, the Department reached an
agreement with the University that required OPS to develop new
policies, training, and supervision related to handling sexual assault
cases. This agreement also requires the University to participate in
innovative initiatives such as a ``community safety audit'' focused on
sexual assault, and an external group that reviews sexual assault cases
handled by the Missoula Police Department and OPS. The implementation
of these measures is being assessed and guided by an agreed-upon
monitor.
ii. Missoula Police Department and Missoula County
Attorney's Office
Using its authority under the Safe Streets Act and section 14141,
the Department conducted a comprehensive investigation of the MPD's
response to sexual assault at the University of Montana-Missoula and in
Missoula more generally. The Department found that deficiencies in
MPD's response to sexual assaults compromised the effectiveness of
sexual assault investigations from the outset, making it more difficult
to uncover the truth and having the effect of depriving female sexual
assault survivors of basic legal protections In May 2013, the
Department reached an agreement with MPD requiring it to develop new
policies, training, and supervision related to handling sexual assault
cases. The agreement requires MPD to participate in the ``community
safety audit'' focused on sexual assault and to establish an external
group to review sexual assault cases handled by the MPD and OPS. A
monitor will assess and guide implementation of all of these measures.
The Department also investigated alleged gender bias in the
prosecution of sexual assaults by the MCAO. In June of this year, the
Division reached a landmark agreement to resolve its investigation
under which the MCAO and Missoula County agree to improve MCAO's
response to allegations of sexual assault and eliminate discrimination
and gender bias. Under the agreement, the MCAO will take many
significant steps to address gender bias and help restore community
confidence in the county criminal justice system. These steps include
the development and implementation of sexual assault policies and
training for county prosecutors, the improvement of county prosecutors'
treatment of individuals who report sexual assault, and enhanced county
prosecutor collaboration with local law enforcement agencies in
conducting investigations and pursuing prosecutions. The MCAO also
agreed to hire an in-house survivor witness coordinator and analyze
survivor witness surveys to improve coordination and communication with
other Missoula stakeholders regarding sexual assault response. The
implementation of these measures is being assessed and guided by an
agreed-upon technical advisor and the Montana Attorney General's
office.
b. Allentown, PA
In July 2012, the Department of Justice and the Allentown School
District filed a consent decree addressing multiple complaints of
sexual assault of students at an elementary school, including
allegations that 6- and 7-year-old students were sexually assaulted by
another student in the boys' bathrooms. The Department had intervened
in the private title IX lawsuit against Allentown in 2009 to ensure
that title IX was properly interpreted and that the serious claims were
effectively remedied. In this case, the Department alleged that the
sexual assaults occurred on at least five separate occasions; that the
district was made aware of each incident immediately after it occurred;
and that despite this notice, the district did not take appropriate
action, and in some circumstances took no action, to prevent the
harassment from recurring. Furthermore, the Department alleged that
both before and after the sexual harassment of the students, the
district failed to adopt and implement adequate and effective sexual
harassment policies and procedure as required by Federal law.
The consent decree requires systemic relief, including:
implementation of a comprehensive plan to prevent and address sexual
harassment in all district schools; revised and effective sexual
harassment policies and procedures, including procedures for
communicating with police, hospital, and child protection agencies; and
training of administrators, faculty, staff, students, and parents. We
have been actively monitoring this consent decree to ensure that the
district fulfills its obligations and provides a safe learning
environment free of sex discrimination.
c. Nashville, TN
In 2008, the Department intervened in another privately brought
title IX case against the Nashville public school district. The parent
alleged that her 9-year old autistic child was sexually assaulted by
another student while riding a special education school bus. After
conducting extensive discovery, the Department determined that the
student perpetrator had a lengthy and well-documented history of sexual
misconduct prior to assaulting the young autistic boy, that district
officials were aware of this history, and that the district did not
take steps to protect the passengers on the perpetrator's school bus.
In 2010, the Department of Justice successfully negotiated a consent
decree with the school district that requires it to take extensive
steps to enhance the security of students with disabilities on public
school buses. These steps include: staffing bus monitors to assist
drivers on all special education buses; implementing comprehensive
screening procedures to ensure that students with disabilities are not
assigned to buses where they would be at risk of harassment; expediting
the investigation of suspected acts of sexual harassment involving
students with disabilities; and ensuring open lines of communication
between transportation officials and school-based personnel. The
district also agreed to pay the family $1.475 million as part of the
settlement. The Department of Justice continues to monitor compliance
with the consent decree, including conducting a recent site visit of
the district.
d. Other Cases
The Department has addressed sexual assault and sexual harassment
in other cases. For example, in 2011, the Department of Justice and the
Department of Education reached a settlement with the Tehachapi, CA
school district to resolve a complaint of sexual harassment and assault
of a middle-school boy who committed suicide. Both Departments also
collaborated with the U.S. Attorney's Office in Minnesota in a title
IX-title IV investigation involving gender stereotyping and other
harassment that culminated in a 2012 consent decree with the Anoka-
Hennepin school district in Minnesota.
The Civil Rights Division and the U.S. Attorney's Office for the
southern district of New York also successfully intervened in a private
title IX case against the Rhinebeck, NY school district, and from 2006
through 2009 jointly monitored the district's implementation of a
comprehensive consent decree to resolve the hostile environment created
in the district by a decade of sexual harassment of female students by
a school principal.
v. other activities
In addition to its investigative and enforcement work, the
Department of Justice participates in a variety of programs to prevent
campus sexual assault. The Office on Violence Against Women helps
colleges and universities improve their response to sexual assault
through grant funding. The Office of Justice Programs funds law
enforcement agencies developing innovative methods to respond to and
prevent sexual harassment and assault. And the Department of Justice
coordinates with other agencies and participates in the White House
Task Force on Protecting Students from Sexual Assault.
a. Office on Violence Against Women
The Department of Justice's Office on Violence Against Women (OVW)
administers grant programs that provide Federal funds to colleges and
universities under the Violence Against Women Act. Specifically, the
Grants to Reduce Sexual Assault, Domestic Violence, Dating Violence,
and Stalking on Campus Program makes competitive grant awards to
institutions of higher education, and grantees are required to
implement evidence-informed prevention programs like bystander
education. The Campus Program strengthens on-campus victim services,
advocacy, security, and investigation and improves both prosecution and
prevention of sexual assaults. Campus Program grantees must: provide
prevention programs for all incoming students; train campus law
enforcement or security staff; educate campus judicial or disciplinary
boards on the unique dynamic of sex-related crimes; and create a
coordinated community response to enhance victim assistance and safety
while holding offenders accountable.
Since the inception of the Campus Program in 1999, OVW has funded
approximately 388 projects, totaling more than $139 million, for
grantees addressing domestic violence, dating violence, sexual assault,
and stalking on campuses. The Office solicits applications from
institutions of higher education across the country, including
community colleges, historically black colleges and universities,
tribal colleges and universities, universities and colleges that serve
primarily Latino or Hispanic populations, and universities and colleges
based in the five U.S. territories.
To reach beyond Campus Program grantees, OVW is working to share
information with colleges and universities across the country. In the
coming weeks, OVW will launch the first phase of a comprehensive online
technical assistance project for campus officials. Key topics will
include victim services, coordinated community responses, alcohol and
drug-facilitated sexual assaults, and compliance with the Jeanne Clery
Disclosure of Campus Security Policy and Crime Statistics Act (Clery
Act). Webinars and materials will include the latest research,
promising practices, training opportunities, policy updates, prevention
programming, and recent publications. The project will feature
strategies and training materials for campus and local law enforcement.
OVW also uses Violence Against Women Act grant programs to help
communities institute sexual assault response teams, support sexual
assault nurse examiners, train law enforcement on trauma and special
investigative techniques, and develop special prosecution units. The
Grants to Encourage Arrest Policies and Enforcement of Protection
Orders Program is particularly essential to supporting these proven-
effective strategies. In addition, OVW funds cutting-edge technical
assistance projects with law enforcement associations, including the
International Association of Chiefs of Police and the Police Executive
Research Forum. Universities and colleges can collaborate with these
community resources to improve and ensure the most effective responses
to sexual assault.
b. Office of Justice Programs
In fiscal year 2014 the Department of Justice's Office of Justice
Programs (OJP) Office of Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (SMART Office) is launching the
Campus Sexual Assault Perpetrator Treatment Pilot Project. The SMART
Office will award a grant to develop a treatment curriculum for campus
sexual assault offenders based upon evidence-based approaches with a
proven track record. The curriculum will be implemented on one or more
campuses, and made available for implementation at other colleges and
universities across the country.
c. Coordination with Other Agencies
Partnering with other Federal agencies to combat sexual assault
sends a powerful message. For example, the Civil Rights Division
partnered with the Department of Education's Office for Civil Rights in
its investigation of allegations of sexual assault and harassment at
the University of Montana. The Civil Rights Division has also worked
closely with the Office for Civil Rights on title IX guidance, and
assists other Federal agencies to promote consistent enforcement of
title IX.
The Civil Rights Division is also a member of the White House Task
Force to Protect Students from Sexual Assault. Created this year by
President Obama, the Task Force works to increase transparency,
enforcement, public awareness, and interagency coordination to prevent
sexual violence and support survivors. The first report of the Task
Force was released on April 29, 2014, and on the same day, a website to
assist students and schools and to increase transparency was launched
at NotAlone.gov. Resources include a sample Sexual Assault Policy
Checklist and a sample Campus Climate Survey.
vi. challenges
In its enforcement efforts against sexual assault and harassment,
the Civil Rights Division has encountered numerous challenges, a few of
which are included here.
First, it is important to increase reporting of sexual assault and
ensure that those who report get the help they need. Vague or unclear
policies that create confusion about where to report and/or the
misimpression that sexual misconduct needs to be quite severe before
reporting contribute to underreporting. This problem can be mitigated
by a single comprehensive policy with clear definitions that encourages
reporting; wide distribution of available resources; more streamlined
procedures for handling reports; and training for all students,
employees, and faculty.
The Departments of Justice and Education have further found that
too many schools, colleges, and universities fail to respond to
complaints properly and effectively, including by failing to conduct
investigations or failing to support complainants during and after
investigations. We also have found instances when schools did not
respond adequately to complaints of retaliation following a report,
which in turn exacerbates under-reporting. It is critical that when
students report traumatic experiences of sexual assault, those who
respond are properly trained to do so. Unfortunately, both Departments
have found that individuals investigating and adjudicating sexual
assault complaints and those responsible for coordinating title IX
compliance across campuses often do not receive adequate training.
Finally, despite recognizing that sexual harassment is a form of
discrimination prohibited by title IX, the Supreme Court has
established legal standards in two cases--Gebser v. Lago Vista Ind.
School District\8\ and Davis v. Monroe County Board of Education\9\--
that impose significant burdens on students who attempt to recover
damages under title IX for harassment suffered at the hands of school
employees or fellow students. Under Gebser and Davis, it is harder for
students to gain full relief in title IX sexual harassment cases than
it is for employees to obtain redress for sexual harassment in the
workplace under Title VII of the Civil Rights Act of 1964.
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\8\ Gebser v. Lago Vista Independent School District, 524 U.S. 274
(1998).
\9\ Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
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vii. conclusion
Education is the great equalizer--it offers a lifeline to young men
and women for whom a successful future is not predetermined. And for
all students to have the opportunity to succeed, all students must feel
safe and have confidence in schools' demonstrated commitment to protect
them. For that reason, the Department of Justice will continue to
vigorously enforce our Nation's civil rights laws, including by
ensuring that sex discrimination does not prevent students from
achieving their goals and by fostering safe and nurturing environments
where every student has the opportunity to prosper.
______
U.S. Senate,
Washington, DC 20510,
July 10, 2014.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
Dirksen Senate Office Building, Room 428,
Washington, DC 20510.
Dear Chairman Harkin: I would like to request inclusion of the
enclosed letter from the American Civil Liberties Union in the record
for the June 26, 2014 hearing entitled, ``Sexual Assault on Campus:
Working to Ensure Student Safety.'' I appreciate your consideration of
this request.
Sincerely,
Robert P. Casey, Jr.,
U.S. Senator.
______
American Civil Liberties Union (ACLU),
Washington, DC 20005,
June 26, 2014.
Hon. Tom Harkin, Chairman,
Health, Education, Labor, and Pensions (HELP) Committee,
U.S. Senate,
Washington, DC 20510.
Hon. Lamar Alexander, Ranking Member,
Health, Education, Labor, and Pensions (HELP) Committee,
U.S. Senate,
Washington, DC 20510.
Re: Hearing on Sexual Assault on Campus--Working to Ensure Student
Safety
Dear Chairman Harkin and Ranking Member Alexander: For nearly 100
years, the American Civil Liberties Union (ACLU) has been our Nation's
guardian of liberty, working in courts, legislatures, and communities
to defend and preserve the individual rights and liberties that the
Constitution and the laws of the United States guarantee everyone in
this country. The ACLU takes up the toughest civil liberties cases and
issues to defend all people from government abuse and overreach. With
more than a million members, activists, and supporters, the ACLU is a
nationwide organization that fights tirelessly in all 50 States, Puerto
Rico, and Washington, DC, for the principle that every individual's
rights must be protected equally under the law.
On behalf of the ACLU, we thank the committee for convening this
hearing on campus sexual assault and efforts to ensure student safety.
This is an important and timely discussion, and one in which we are
pleased to participate. We very much hope the committee will consider
the recommendation offered below as it grapples with these issues.
the work of the department of education's office for civil rights (ocr)
on sexual violence and harassment in schools
OCR is to be commended for its attention to and impactful
enforcement of title IX\1\ against schools in cases involving sexual
violence and harassment. The ACLU's Women's Rights Project has filed
complaints with OCR using the administrative process, challenging how a
Texas school district\2\ responded to a high school student who
reported sexual assault and another involving a student at Carnegie
Mellon University.\3\ The OCR process is an important avenue for relief
and has helped bring about comprehensive changes at some schools. We
urge continued support for OCR's critically important work on these
issues.
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\1\ 20 U.S.C. 1681-88 (2012).
\2\ See Sandra Park, Title IX Victory: Civil Rights Office Condemns
School's Actions in Sexual Assault Case, ACLU Blog of Rights (June 20,
2012, 5:16 PM), https://www.aclu.org/blog/womens-rights/title-ix-
victory-civil-rights-office-condemns-schools-actions-sexual-assault-
case.
\3\ See Complaint, available at https://www.aclu.org/sites/default/
files/assets/2013_12_
18_-_carnegie_mellon_complaint_-_redacted_and_sanitized.pdf.
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dating violence, domestic violence, stalking, and title ix
In its April 2011 ``Dear Colleague Letter,'' OCR discussed how
title IX's protections apply to actions such as rape, sexual assault,
sexual battery, and sexual coercion.\4\ Yet OCR did not address how
other forms of gender-based violence, such as domestic violence, dating
violence, and stalking, fall within title IX's reach. In contrast,
other Federal agencies have recognized that discrimination against
victims of domestic violence can constitute sex discrimination.\5\
Moreover, the Clery Act now requires schools to incorporate domestic
violence, dating violence,\6\ and stalking into their policies and
procedures, and thus the need to explain how title IX applies in those
situations is even more pressing.
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\4\ See Letter from Russlynn Ali, Assistant Sec'y for Civil Rights,
Office for Civil Rights, U.S. Dep't of Educ. to Colleagues, 1-2 (Apr.
4, 2011), available at http://www2.ed.gov/about/offices/list/ocr/
letters/colleague-201104.pdf.
\5\ See, e.g., Memorandum from Sara K. Pratt, Deputy Sec'y for
Enforcement and Programs, Office of Fair Hous. & Equal Opportunity,
U.S. Dep't of Hous. & Urban Dev. to FHEO Office Directors and FHEO
Regional Directors: Assessing Claims of Housing Discrimination against
Victims of Domestic Violence under the Fair Housing Act and the
Violence Against Women Act (Feb. 9, 2011) (``[S]tatistics show that
discrimination against victims of domestic violence is almost always
discrimination against women. . . . domestic violence survivors who are
denied housing, evicted, or deprived of assistance based on the
violence in their homes may have a cause of action for sex
discrimination under the Fair Housing Act.''); Questions and Answers:
The Application of title VII and the ADA to Applicants or Employees Who
Experience Domestic Violence, Sexual Assault or Stalking, EEOC, http://
www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm (last visited
May 29, 2014) (citations omitted) (``Title VII of the Civil Rights Act
of 1964 (title VII) prohibits discrimination based on . . . sex . . .
and the Americans with Disabilities Act (ADA) prohibits discrimination
on the basis of disability. . . . Title VII and the ADA may apply to
employment situations involving applicants and employees who experience
domestic or dating violence, sexual assault, or stalking.'').
\6\ Violence Against Women Reauthorization Act of 2013, Pub. L. No.
113-4, 304(a)(1)(B)(iii), 127 Stat. 89 (2013).
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Congress should urge OCR to address this oversight as soon as
possible. OCR should acknowledge that dating violence, domestic
violence, and stalking are encompassed by title IX and provide guidance
on the issue so as to ensure that survivors of stalking, domestic
violence, and dating violence on college campuses have access to the
protections of title IX to which they are entitled.
need for greater guidance on the due process rights of the accused
OCR has made great progress in providing guidance to schools on the
rights of students who report experiencing sexual harassment and sexual
violence. In guaranteeing those rights, OCR should also give clear
guidance on the due process rights and other rights of the accused. OCR
acknowledged the rights of the accused in its 2001 Guidance by
referring to confidentiality concerns of the accused, due process
rights of the accused, and First Amendment issues when ``speech or
expression are involved.''\7\ Additional guidance issued by OCR has
briefly mentioned the rights of the accused as well.\8\ However, OCR
guidance does not describe such rights with the level of detail that
would inform students and institutions about the rights to which the
accused is entitled.\9\ Guidance from OCR regarding guaranteeing the
accused's rights, in a manner that preserves the protections afforded
to the complainant, would ensure that all parties involved have access
to justice.
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\7\ See U.S. Dep't of Educ., Revised Sexual Harassment Guidance:
Harassment of Student by School Employees, Other Students, or Third
Parties 16, 22 (2001), available at http://www2.ed.gov/about/offices/
list/ocr/docs/shguide.pdf.
\8\ See U.S. Dep't of Educ., Office for Civil Rights, Questions and
Answers on Title IX and Sexual Violence 13, 26, 43-4 (2014), available
at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-
ix.pdf (addressing due process, First Amendment, and other rights of
the accused); Letter from Assistant Sec'y for Civil Rights, Office for
Civil Rights, U.S. Dep't of Educ. to Colleagues (July 28, 2003),
available at http://www2.ed.gov/about/offices/list/ocr/firstamend.html
(addressing First Amendment rights of the accused); Ali, supra note 4,
at 12 (addressing due process rights of the accused).
\9\ For example, the 2001 Guidance refers to due process rights in
a general sense by stating,
``A public school's employees have certain due process rights
under the U.S. Constitution.
The Constitution also guarantees due process to students in
public and State-supported schools who are accused of certain types of
infractions. The rights established under title IX must be interpreted
consistent with any federally guaranteed due process rights involved in
a complaint proceeding. . . . Procedures that ensure the title IX
rights of the complainant, while at the same time according due process
to both parties involved, will lead to sound and supportable decisions.
. . . Schools should be aware of these rights and their legal
responsibilities to individuals accused of harassment.''
U.S. Dep't of Educ., supra note 8, at 22.
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need for an increased k-12 focus
Due to impressive student activism, the issue of campus sexual
assault has begun to receive the attention it deserves. School
districts' responses to sexual harassment similarly require increased
focus, as sexual harassment and assault occur at significant rates in
the K-12 grades.\10\ Compared to colleges and universities, school
districts are less likely to have formal policies, procedures, and
trainings on the proper response to allegations of sexual violence. In
addition, K-12 students are rarely educated about their rights under
title IX. All of these problems were evident in an OCR complaint
brought by the ACLU on behalf of Rachel Bradshaw-Bean, a high school
student who was accused of ``lewdness'' after she reported being
sexually assaulted at school and was sent to the same disciplinary
program as her attacker.\11\ Ultimately, OCR found that the school
district violated title IX by failing to conduct its own investigation
and retaliating against Rachel after she made the report.\12\ To avoid
additional cases like this one, greater awareness about sexual violence
and increased enforcement of title IX at the K-12 level is vitally
important.
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\10\ A report by the American Association of University Women found
that nearly half of middle and high school students experienced some
form of sexual harassment in the 2010-11 school year, that 13 percent
of girls reported being touched in an unwelcome sexual way, and that 4
percent of girls reported being forced to do something sexual.
Catherine Hill And Holly Kearl, American Association Of University
Women, Crossing The Line: Sexual Harassment At School 2, 12 (2011),
available at http://www.aauw.org/files/2013/02/Crossing-the-Line-
Sexual-Harassment-at-School.pdf. Another study by researchers at the
University of Illinois at Urbana-Champaign found that 21 percent of
middle school students surveyed in 2008 experienced a form of physical
sexual violence. Sarah Rinehart, Namrata Doshi, & Dorothy Espelage,
Sexual Harassment And Sexual Violence Experiences Among Middle School
Youth 4 (2014), available at http://www.aera.net/Portals/38/
Newsroom%20-%20Recent%20
Research/
Sexual%20Harassment%20and%20Sexual%20Violence%20Experiences%20Among%20
Middle%20School%20Youth.pdf.
\11\ See Abigail Pesta, Kicked out of high school for ``public
lewdness'' after reporting rape, NBC News (Dec. 23, 2013, 9:41 AM),
http://www.nbcnews.com/news/other/kicked-out-high-school-public-
lewdness-after-reporting-rape-f2D11794148.
\12\ See Park, supra note 2.
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civil rights obligations of law enforcement
Much of the discussion about sexual violence in schools has rightly
focused on the schools' responses and compliance with title IX. It is
important to recognize, however, that the criminal justice system is
another key player and is also governed by civil rights laws. In some
cases, student survivors will report the violence to law enforcement
authorities only to have their complaints treated with hostility and
dismissal. Moreover, some survivors will be deterred from filing
complaints because of this expectation and experience.
When police officers rely on gender stereotypes and bias in
addressing sexual violence complaints, they deny victims equal
protection under the law. The Department of Justice has exercised its
authority under 42 U.S.C. 14141 and 3789d to reform how police
departments in New Orleans, Puerto Rico, and Missoula, MT respond to
complaints of sexual violence,\13\ and in the case of Missoula,
coordinated its investigation with the Department of Education to also
examine the University of Montana's practices.\14\ This work highlights
that any examination of a school's response to sexual violence should
also include the relevant law enforcement agencies, as all are
important components to whether a student has equal access both to
educational opportunity and the justice system.
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\13\ See U.S. Dep't of Justice, Civil Rights Div., Investigation of
the Puerto Rico Police Department (2011), available at http://
www.justice.gov/crt/about/spl/documents/
prpd_letter.pdf; U.S. Dep't of Justice, Civil Rights Div.,
Investigation of the New Orleans Police Department (2011), available at
http://www.justice.gov/crt/about/spl/nopd_report.pdf; U.S. Dep't of
Justice, Civil Rights Div., Investigation of the Missoula Police Dep't
(2013), available at http://www.justice.gov/crt/about/spl/documents/
missoulapdfind_5-15-13.pdf; U.S. Dep't of Justice, Civil Rights Div.,
Investigation of the Univ. of Montana's Office of Public Safety (2013),
available at http://www.justice.gov/crt/about/spl/documents/
missoulafind_5-9-13.pdf.
\14\ U.S. Dep't of Justice, et al., Investigation of the Univ. of
Montana (2013), available at http://www.justice.gov/opa/documents/um-
ltr-findings.pdf.
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doj guidance would improve law enforcement engagement
DOJ's work in this area would be amplified by issuing guidance that
addresses the civil rights obligations of law enforcement agencies,
including those responding to sexual assault on campus and at schools.
Such guidance would address how sexual violence investigations should
be conducted, supervision and oversight, classifying and tracking of
complaints, and the training provided to officers. The guidance should
also tackle issues that commonly arise when sexual violence occurs at
school. For example, it should be clear that law enforcement should not
dissuade victims from pursuing criminal justice charges by encouraging
them to file complaints through school grievance or disciplinary
procedures. Additionally, law enforcement should be aware that schools
have independent legal obligations to respond to sexual assault and
harassment, and thus schools are not bound by the findings of any
criminal justice investigation. We urge members of the committee to
encourage DOJ to continue its work on these critical issues.
need for explicit protections for lgbt students
We know that students who are, or perceived to be, lesbian, gay,
bisexual, or transgender (LGBT), are especially vulnerable to
discrimination, harassment, and violence, including sexual violence, in
our Nation's schools. A nationwide 2011 survey of more than 8,500
students between the ages of 13-20 found that 8 out of 10 LGBT students
reported experiencing harassment at their school within the past year
based on their sexual orientation.\15\ Six in ten LGBT students
reported feeling unsafe at school because of their sexual
orientation.\16\ Transgender students experienced more hostile climates
than their non-transgender peers, with 8 in 10 reporting feeling unsafe
at school because of their gender expression.\17\ The effect of a
hostile school climate on LGBT students has a direct and negative
impact on the student's education. Nearly a third of LGBT students
reported skipping at least once, and 3 in 10 reported missing at least
one entire day of school in the past month because of safety
concerns.\18\
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\15\ Joseph G. Kosciw, et al., Gay, Lesbian & Straight Education
Network, The 2011 National School Climate Survey: The Experiences of
Lesbian, Gay, Bisexual, and Transgender Youth in Our Nation's Schools
23 (2012), available at http://glsen.org/nscs.
\16\ Id. at 20.
\176\ Id. at 89.
\18\ Id. at 21.
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Despite these sobering statistics and the clear need for action,
there is no Federal law that explicitly protects LGBT students from
discrimination. There is legislation modeled on title IX currently
pending in the Senate, the Student Non-Discrimination Act (S. 1088),
which would establish a comprehensive, explicit prohibition against
discrimination and harassment in all public elementary and secondary
schools across the country based on a student's actual or perceived
sexual orientation or gender identity. Congress should make passage of
this civil rights measure a priority.
In the absence of a law like the Student Non-Discrimination Act,
guidance like the recent Q&A on title IX and sexual violence from OCR
within the Department of Education is even more important. OCR made
clear in that guidance that a school's obligation to respond
appropriately to sexual violence complaints is the same irrespective of
the sex or sexes of the parties involved, and that title IX's sex
discrimination prohibition extends to claims of discrimination based on
gender identity or a failure to conform to stereotypical notions of
masculinity or femininity.\19\ The guidance further stated that schools
should investigate and resolve allegations of sexual violence regarding
LGBT students using the same procedures and standards that it uses in
all complaints involving sexual violence.\20\ This clarity from OCR on
the scope of the protections of title IX is very important to LGBT
students; however, it should not be read as an excuse for inaction on
the part of Congress. The need for an explicit sexual orientation and
gender identity non-discrimination prohibition in Federal law remains
as vital as ever. This gap in our civil rights laws has left LGBT
students uniquely vulnerable to discrimination, harassment, and
violence for far too long.
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\19\ Office of Civil Rights, U.S. Dep't of Educ., Questions and
Answers on Title IX and Sexual Violence 5 (2014), available at http://
www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
\20\ Id. at 5-6.
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Fifty years of civil rights history demonstrate that laws similar
to the Student Non-Discrimination Act are effective in preventing
discrimination and harassment from occurring in the first place by
prompting schools to take proactive steps to ensure a safe and
supportive learning environment for all students who are in their care.
Thank you for the opportunity to offer our views. Please do not
hesitate to call Vania Leveille at (202) 715-0806 should you have any
questions or need additional information.
Sincerely,
Laura W. Murphy,
Director, Washington Legislative Office.
Vania Leveille,
Senior Legislative Counsel.
Ian S. Thompson,
Legislative Representative.
Sandra J. Park,
Senior Staff Attorney, Women's Right Project.
______
Responses by Catherine Lhamon to Questions of Senator Alexander,
Senator Whitehouse and Senator Kirk
senator alexander
On May 1, 2014, the Office for Civil Rights (OCR) released a list
of 55 higher education institutions under investigation for possible
title IX violations related to sexual violence. As explained in OCR's
press release, the list includes investigations opened due to
complaints received and due to compliance reviews. However, the list
does not differentiate which schools fall under each respective
category. Why doesn't the list indicate whether an institution is under
investigation because of a complaint or because of a compliance review?
Question 1a. Did OCR consider providing that additional context? If
not, why not?
Answer 1a. In order to best protect complainants and survivors, OCR
decided not to indicate if the investigation was a result of a
complaint or a compliance review. Consider that if the campus community
knew that a particular investigation was triggered by a person (or set
of persons), the public might seek to identify that person or persons
through contextual clues (regarding timing of the complaint, for
example) that could contribute to unwarranted invasions of personal
privacy.
Question 1b. Does OCR plan to update the list to indicate when
investigations are closed and how they are resolved? If not, why not?
Answer 1b. As you noted, the list only addresses institutions under
investigation. When an investigation is closed for any reason, the
institution is removed from the list, and both the institution and the
complainant are notified of the closure and/or resolution. Due to
staffing limitations, OCR does not intend to report in list form how
each case removed from the list was resolved. However, OCR provides
that information upon request.
Question 2a. When a complaint against an institution of higher
education is filed with OCR and OCR initiates an investigation, how
does OCR ensure the institution has fair notice of the allegations
against it?
Answer 2a. Immediately after OCR determines that it will
investigate a complaint and opens the complaint for investigation, it
sends a notification letter to the institution that contains the
following information:
OCR's legal authority to investigate the complaint;
The complaint allegations that OCR will investigate; and
Contact information for the OCR staff person who will
serve as the primary contact during the investigation and resolution of
the complaint.
Question 2b. Please describe the process and procedures used by OCR
to respond to a title IX complaint involving sexual violence, including
all steps from the initial receipt of the complaint to the options for
final resolution.
Answer 2b. OCR's mission is to ensure equal access to education and
to promote educational excellence throughout the Nation through
vigorous enforcement of civil rights. OCR's Case Processing Manual
(CPM) details the specific procedures used by OCR to promptly and
effectively investigate complaints and compliance reviews, issue
findings, and secure resolution agreements that remedy discriminatory
policies or practices. You can find the CPM on our public website here:
http://www2.ed
.gov/about/offices/list/ocr/docs/ocrcpm.html.
Question 3a. How is OCR staff trained to investigate title IX
complaints, specifically related to sexual violence? How often must OCR
staff complete this training?
Answer 3a. OCR conducts ongoing mandatory and supplemental
trainings that cover substantive legal and procedural areas, including
sexual violence, for new and current investigative staff, which handle
enforcement actions, in OCR's 12 regional offices. In addition, OCR
headquarters coordinates training for all staff on sexual violence and
other policy issues when new regulations, policy, or guidance are
issued or when it is determined that there is a need for such training.
Investigative staff also hold regular national discussions among each
other about how best to investigate and resolve sexual violence cases.
Question 3b. Please provide any training materials used.
Answer 3b. Training materials vary based on the subject matter. The
CPM described in the second question is an example of materials that
have been used to train OCR staff on sexual violence investigations.
Question 4. How does OCR ensure the process for conducting
investigations of alleged title IX violations related to sexual
violence is fair and consistent across the national and regional
offices?
Answer 4. OCR's CPM guides all investigations, including those
involving sexual violence. The CPM outlines the procedures to promptly
and effectively investigate cases, issue findings, and secure
resolution agreements that remedy discriminatory policies or practices
identified by OCR. OCR issues policy guidance and provides training to
staff on its implementation to ensure fair and consistent practices. In
addition, OCR management participates in critical decisions
commensurate with the complexity of the case, to ensure consistently
high-quality casework and to ensure proper procedures have been
followed. Also, sexual violence cases require headquarters enforcement
staff approval before issuance of any determinations.
If OCR determines that it is appropriate to enter into an agreement
with an institution to voluntarily resolve a sexual violence case, the
factual and legal justification for the resolution as well as the
agreement must be approved by the chief attorney and the director of
the regional office that investigated the case. The regional office
director then forwards this documentation to headquarters enforcement
staff who have final approval authority before issuance of any
determinations as a second step to ensure fair and consistent
enforcement. This is the same process that is followed for all
compliance reviews and sensitive cases.
Question 5a. Have you observed challenges that institutions of
higher education encounter when trying to comply with the Clery Act and
title IX? If so, please describe those challenges.
Answer 5a. Some institutions have communicated confusion with
obligations under different Federal laws such as title IX, the Clery
Act, and the Family Educational Rights and Privacy Act (FERPA). OCR is
committed to helping schools to comply with title IX and other laws
enforced by the Department. To this end, in April 2014, OCR issued
detailed guidance on schools' title IX obligations, including with
respect to its intersection with other laws such as FERPA and the Clery
Act. The guidance notes that Section 304 of the Violence Against Women
Reauthorization Act (VAWA) amended the Clery Act, but does not alter a
school's obligations under title IX or OCR's title IX guidance. The
guidance also explains the information that a recipient must disclose
to a complainant in the notice of the outcome of a title IX complaint,
and how that requirement intersects with the Clery Act and FERPA. The
Department also created a chart, posted on the notalone.gov website,
outlining a school's reporting obligations under title IX and the Clery
Act, and how each intersects with FERPA. The chart shows that although
the requirements of title IX and the Clery Act may differ in some ways,
they do not conflict. (See http://www2.ed.gov/policy/highered/reg/
hearulemaking/2012/vawa-reviewoftitle9.pdf.)
Question 5b. What actions has OCR taken to address these
challenges?
Answer 5b. We will continue to update ed.gov and notalone.gov with
additional resources. In the interim, OCR's 12 regional offices are
available to answer questions and provide training presentations for
colleges, schools, and others. In fiscal year 2013, for example, our
regional offices conducted more than 300 technical assistance
activities (not limited to sexual violence issues or higher education).
Title IX and the Clery Act have overlapping, but different
disciplinary standards that an institution of higher education must
follow to address allegations of sexual assault. Under title IX, an
institution's grievance procedure must provide a ``prompt and equitable
resolution,'' and the investigation must be ``adequate, reliable,
impartial, and prompt.'' Under the Clery Act, an institution's
disciplinary procedure must provide a ``prompt, fair, and impartial
investigation and resolution.'' Have you discussed with the Clery Act
Compliance Division the fact that these standards, at least on their
face, are different?
Question 6. In your view are they, in effect, the same or
different?
Answer 6. The Clery Act and title IX serve distinct, but related,
functions in combating sexual violence. The Department's office of
Federal Student Aid (FSA) is responsible for Clery Act compliance,
whereas the Department's Office for Civil Rights (OCR) enforces title
IX. The Clery Act requires institutions of higher education to provide
current and prospective students and employees, the public, and the
Department with crime statistics and information about campus crime
prevention programs and policies. Title IX prohibits discrimination
based on sex in education programs and activities that receive Federal
financial assistance. Clery Act requirements apply to many crimes that
are not enforceable under title IX, and title IX applies to many forms
of sex discrimination that do not constitute reportable crimes under
the Clery Act. For those areas in which the Clery Act and title IX both
apply, the institution must comply with both laws.
As the Department stated in its Notice of Proposed Rulemaking for
the changes made to the Clery Act by VAWA, the Clery Act and its
implementing regulations in no way alter or conflict with the title IX
requirements. For example, in order to meet Clery Act requirements an
institution must state in its annual security report what standard of
evidence it uses in its disciplinary proceedings regarding sexual
assault, dating violence, domestic violence, and stalking. This Clery
Act requirement does not conflict with the title IX obligation to use
the preponderance of the evidence standard in title IX proceedings. An
institution can comply with title IX and the Clery Act by using a
preponderance of the evidence standard in proceedings regarding title
IX complaints and disclosing this in its annual security report.
OCR worked closely with the Department's Office of Postsecondary
Education and FSA, including the Clery Act Compliance Division,
throughout the VAWA rulemaking process to minimize the burden placed on
institutions and to better align how schools respond to Clery Act and
title IX requirements. And OCR continues to work closely with FSA on
sexual violence issues. To clarify roles and increase efficiency, FSA
and OCR have formalized an agreement to ensure effective handling of
complaints and to facilitate information sharing.
Question 7. After OCR has completed a compliance review or reached
a voluntary resolution agreement with an institution of higher
education, does OCR affirmatively inform the institution that its
policies are title IX compliant? If so, which institutions have
received such notification?
Answer 7. Yes. When an institution enters into a voluntary
resolution agreement with OCR as a result of a complaint or a
compliance review, OCR monitors the implementation of the agreement and
requires the institution to submit followup information. OCR concludes
the monitoring of a case when it determines that the institution has
effectively implemented the terms of the resolution agreement,
including any subsequent modifications to the agreement, and is in
compliance with title IX. When OCR determines that an institution has
fully implemented the terms of a settlement agreement,
OCR notifies the institution in writing of this decision and closes
the case. OCR issues this notification in all cases where institutions
are compliant.
senator whitehouse
Question 1. Department of Education regulations require an
institution of higher education to act on a report of sexual violence
within 60 days of learning of it. I have heard from Rhode Island
schools that if the local police are involved, they often do not want a
school conducting a parallel investigation because they prefer to keep
certain facts confidential for a period of time. Would the Department
consider some flexibility around this 60-day requirement in the case of
episodes where law enforcement becomes involved?
Answer 1. The title IX regulations do not require a school to
complete investigations within 60 days; rather they require a school to
resolve sexual violence complaints promptly and equitably. The
Department's Office for Civil Rights' (OCR) 2011 Dear Colleague letter
(DCL) on sexual violence noted that, based on OCR's experience, a
typical investigation takes approximately 60 days.
Regardless of whether there is a parallel criminal investigation,
title IX requires a school to take steps to ensure equal access to its
education program and activities and protect the complainant as
necessary, including taking interim measures before the final outcome
of an investigation.
OCR stated in the 2011 DCL, and in a subsequent 2014 Questions and
Answers document on title IX and sexual violence (2014 Q&A), that OCR
evaluates on a case-by-case basis whether the resolution of sexual
violence complaints is prompt and equitable. Whether OCR considers an
investigation to be prompt as required by title IX will vary depending
on the complexity of the investigation and the severity and extent of
the alleged conduct. The 2014 Q&A specifically notes that OCR
recognizes that the investigation process may take longer if there is a
parallel criminal investigation.
Question 2. The guidance provided by the White House Task force
entitled ``Sample Language for Reporting and Confidentiality Disclosing
Sexual Violence'' states that ``[a] responsible employee should not
share information with law enforcement without the victim's consent or
unless the victim has also reported the incident to law enforcement.''
Are there, or should there be, any exceptions to this?
Answer 2. Due to the nature of sexual assault, we recognize that it
is imperative that colleges work together with local law enforcement to
address this issue. OCR's 2014 Q&A stresses that school employees
should inform sexual-violence survivors of their right to file a title
IX complaint with the school and/or a separate complaint with campus or
local law enforcement. The 2014 Q&A also notes that title IX does not
require a school to report alleged incidents of sexual assault to
campus and local law enforcement, but a school may have reporting
obligations under State, local, or other Federal laws. While title IX
does not require the school to report such information to law
enforcement, there may be situations in which school employees tasked
with coordinating title IX compliance may share information about
reported sexual assaults with campus law enforcement. For example, the
school may share information with the survivor's consent, or may share
aggregate data, without personally identifiable information, that may
inform campus policing practices. It is important to keep in mind that
reporting incidents of sexual assault to law enforcement when the
survivor does not wish to initiate a criminal investigation can be
detrimental to the needs of survivors and can discourage them from
speaking to any campus employee in the first place.
There may be rare circumstances in which employees should share
information with local law enforcement even without the survivor's
consent. For example, some State laws impose mandatory reporting
requirements with respect to certain crimes, and OCR does not interpret
title IX to generally prohibit compliance with such State law
obligations. Also, FERPA protects the privacy of student education
records, which normally include a student's disciplinary records.
However, FERPA permits schools to disclose, without consent, personally
identifiable information from a student's education records to
appropriate parties in connection with an emergency, if knowledge of
that information is necessary to protect the health or safety of the
student or other individuals.
Question 3. How do victim advocates on campus, who are not licensed
counselors, maintain confidentiality regarding a sexual assault? A
university could be liable under their State negligence law if the
victim advocate, who is not a licensed counselor, keeps the information
about the sexual assault confidential and then the suspect sexually
assaults another student. In most States, victim advocates are not
required by law to keep the information confidential (like a licensed
counselor is), so there are no protections under the law if their
failure to tell someone about the crime results in subsequent crimes.
How should a college/university manage this?
Answer 3. OCR's 2014 Q&A makes clear that responsible school
employees generally must report to school officials when they find out
about sexual violence against students so the school can respond
appropriately in compliance with title IX requirements. But OCR wants
students to feel free to seek assistance from victim advocates and
therefore interprets title IX to give schools latitude to employ these
individuals as confidential resources who are not required to report
sexual violence in a way that identifies the students without the
student's consent. Although title IX does not require that these
individuals be designated as confidential resources, the 2014 Q&A notes
that OCR strongly encourages schools to do so because these individuals
are valuable sources of support for students. Ultimately, the decision
regarding whether to designate these individuals as confidential
resources is up to each school. Each school must determine how its
policy on confidentiality fits with other school policies and how it
complies with the requirements of other applicable Federal, State, and
local laws. For example, employees have legal obligations under FERPA
and State mandatory reporting laws.
The 2014 Q&A also makes clear, however, that victim advocates
should be instructed to inform students of their right to file a title
IX complaint with the school and a complaint with campus or local law
enforcement and should assist students in filing such complaints. And
OCR encourages schools to collect aggregate data about sexual violence
incidents from victim advocates in order to identify patterns or
systemic problems related to sexual violence. Schools can then respond
by taking actions such as reviewing their sexual violence policies,
creating campus-wide educational programs, increasing security at
locations where sexual violence has occurred, and conducting climate
surveys to learn more about the prevalence of sexual violence at the
school.
Question 4. Are there any colleges or universities that have
established what you view as model relationships with local law
enforcement? If so, what makes these relationships productive and
helpful when it comes to responding to campus sexual assault?
Answer 4. Several colleges and universities reported having
positive relationships with local law enforcement, which OCR believes
is a best practice. In fact, OCR's 2011 DCL on sexual violence and 2014
Q&A specifically discussed the need for colleges to coordinate with
local law enforcement on this issue, specifically through an MOU, to
enhance coordination and improve communication. The 2014 Q&A provides
recommendations for what may be covered by an MOU.
During a recent visit to California State Polytechnic University,
Pomona, university officials reported that they believe the
university's close working relationship with local law enforcement
enables the university and the local law enforcement to provide
coordinated services to survivors of sexual assault. For example,
university victim advocates may accompany survivors to local police
stations to provide support. Additionally, the university may arrange
for interviews with survivors and local police on campus.
The University of California, Los Angeles has a close working
relationship with local law enforcement. The university's police
department, for example, will transport survivors of sexual assault to
the Santa Monica-UCLA Rape Treatment Center for treatment.
The Department of Justice's Office on Violence Against Women has
received reports of a number of other strong relationships between
colleges and universities and local law enforcement through their
Grants to Reduce Sexual Assault, Domestic Violence, Dating Violence,
and Stalking on Campus program including:
At Norfolk State University (NSU) in Virginia, the NSU
Police Department and the city of Norfolk Police have a close working
relationship to investigate, prosecute, and prevent sexual harassment.
Together, they have implemented NSU's Campus Program to Reduce Violence
Against Women, under which the Office of the Norfolk Commonwealth's
Attorney and the city of Norfolk Police provide staff to assist NSU in
the delivery of victims' assistance and training to effectively handle
sexual assault cases.
The University of California, Irvine (UC Irvine) works
closely with both the UC Irvine Police Department and the Irvine Police
Department. The campus police meet weekly with UC Irvine's Campus
Assault Response Team to review reported cases and to coordinate campus
response. The campus police also provide extensive training on sexual
assault; all officers are required to participate in an 8-hour training
on sexual assault, and conduct ongoing briefs on issues such as
stalking, dating, and domestic violence. The campus police also partner
with local law enforcement agencies to provide victim counseling,
facilitate communication with a local District Attorney's office,
provide access to forensic nurses in a single location, and provide
resources to obtain emergency protective orders or temporary
restraining orders.
The University of Iowa (UI) Police work actively with the
UI Coordinated Community Response Team (CCRT) to investigate sexual
harassment cases and to promote prevention. The UI Crime Prevention
Officer serves on CCRT's Education subcommittee, which is developing a
survey for education providers aimed at identifying gaps in complying
with Federal guidance.
The University of Northern Iowa (UNI) fosters a strong
relationship between the campus and local law enforcement. UNI Center
for Violence Prevention has collaborated with campus police to assess
and resolve the occurrence of campus sexual violence. The director of
public safety helped revise UNI's sexual misconduct policies and serves
as a liaison between the Center for Violence Prevention and the
University President's cabinet. The director of public safety also
helps plan Victim Services Institutes, a program hosted by the Center
for Violence Prevention designated to train campus and community
personnel who are points of first contact or service providers for
campus victims.
senator kirk
Question 1. This question is for Catherine Lhamon, Assistant
Secretary for Civil Rights, U.S. Department of Education: Some schools
have expressed concerns that the notice requirement from the 2011 title
IX Guidance conflicts with the Family Educational Rights and Privacy
Act (FERPA), which gives broad discretion to schools to disclose
student records in the case of violent and non-forcible sex offenses.
How can Congress address this barrier when responding to sexual assault
claims? How often do schools disclose this information? Are there any
repercussions for schools that do not adequately disclose this
information? How has the Department addressed the incongruence in law?
Answer 1. Title IX requirements do not conflict with FERPA. The
requirements related to notice of the outcome that are discussed in the
Department's Office for Civil Rights' (OCR) 2011 Dear Colleague letter
and 2014 Questions and Answers document are consistent with a school's
obligations under FERPA.
Title IX requires both parties to be notified, in writing, about
the outcome of both the complaint and any appeal in cases involving
sexual harassment or sexual violence. For title IX purposes, a school
must inform the complainant as to whether or not it found the alleged
conduct occurred, any individual remedies offered or provided to the
complainant or any sanctions imposed on the perpetrator that directly
relate to the complainant, and other steps the school has taken to
eliminate the hostile environment and prevent recurrence.
If schools are not complying with the requirements related to
notice of the outcome under title IX, they risk being found in
violation of the law.
FERPA permits any school to disclose to the complainant information
about the sanction imposed upon a student who was found to have engaged
in harassment when the sanction directly relates to the complainant.
FERPA also permits postsecondary institutions to inform the complainant
of the institution's final determination and any disciplinary sanctions
imposed on the perpetrator in cases of sexual violence (as opposed to
all sexual harassment or misconduct covered by title IX), not just
those sanctions that directly relate to the complainant.
Question 2. According to ``Not Alone,'' the White House Report on
Sexual Assault, the Department of Education offices responsible for
title IX and Clery Act enforcement have entered into an agreement to
clarify their respective roles. What specifically does the agreement
address? Will you disclose to Congress the contents of this agreement?
Answer 2. Specifically, the Department's office of Federal Student
Aid (FSA), Clery Act Compliance Division, and OCR commit to work
together to increase awareness in the public and within the Department
of their potentially overlapping jurisdictions. The offices commit to
improve efficiency and reduce the burden on complainants, including by
reviewing materials provided to the public (e.g., complaints), to
determine ways each office can improve that information and better
assist complainants. The offices also commit to share non-confidential
information with each other about complaints, investigations, and
expected resolutions or determinations. For example, FSA will notify
OCR when opening a review involving the portions of the Clery Act that
may overlap with title IX.
Since the Clery Act and title IX serve distinct, but related,
functions in combating sexual violence we believe that this
coordination is important. FSA, through the Clery Division, is
responsible for Clery Act compliance, whereas OCR enforces title IX.
The Clery Act requires institutions of higher education to provide
current and prospective students and employees, the public, and the
Department with crime statistics and information about campus crime
prevention programs and policies. The Clery Act requirements apply to
many crimes other than those addressed by title IX. For those areas in
which the Clery Act and title IX both apply, the institution must
comply with both laws. As you mentioned, our formalized agreement will
help clarify roles and increase efficiency, to improve effective
handling of complaints and to facilitate information sharing.
Response by James L. Moore III to Questions of Senator Alexander
and Senator Kirk
senator alexander
Question 1. Have you observed challenges that institutions of
higher education encounter when trying to comply with the Clery Act and
title IX? If so, please describe those challenges.
What actions has the Clery Act Compliance Division taken to address
these challenges?
Answer 1. The Department, through the Federal Student Aid office's
(FSA) Clery Act Compliance Division (Clery Division), has heard from
some institution officials that they may face barriers to implementing
the Clery Act's requirements due to organizational resistance, and
allegiance to long-standing practices and customs. For example, some
institutions report issues with relocating their campus public safety
departments within their organizations. While many institutions now
have professionalized police forces on campus, some house their campus
security staff members under their Facilities or Business Management
divisions, which have little or no professional security experience.
The Clery Division is committed to providing institutions with the
guidance and technical assistance needed to effectively deal with the
types of challenges discussed above, and to ensure their compliance
with the Clery Act. While the Department does not have the authority to
dictate institutional decisions regarding organizational structure, we
have recommended that institutions appoint a Clery Act Compliance
Officer or Team empowered with the requisite access and authority to
establish policies, practices, and systems to facilitate compliance and
greater campus safety. Appointing a Clery Act Compliance Officer or
Team can improve an institution's ability to effectively manage its
statutory obligation to collect Clery reportable data.
The Department also maintains a Clery Act helpdesk to provide
information and technical assistance to institutions by telephone and
e-mail to help institutions address challenges as they arise. In
addition, the Department provides direct technical support to
institutional officials and complainants, in-person training at the FSA
training conference, and is developing online training. And the
Department will publish an updated version of the Handbook for Campus
Safety and Security Reporting (Handbook) in 2015 to better inform
institutional officials about the Clery Act requirements.
Question 2a. Under the Violence Against Women Act amendments to the
Clery Act, an institution is required to, among other things, educate
its students and employees about the definition of dating violence in
the local jurisdiction. Since not all jurisdictions specifically define
dating violence how does the Clery Act Compliance Division plan to
evaluate whether an institution is in compliance with the Clery Act?
Answer 2a. The Department published regulations to implement the
changes made to the Clery Act by the Violence Against Women
Reauthorization Act of 2013 (VAWA) on October 20, 2014.
The Clery Act specifies that the term ``dating violence'' is to be
defined in accordance with section 40002(a) of the Violence Against
Women Act of 1994. While incidents that might be considered ``dating
violence'' may not be considered crimes in all jurisdictions, under our
proposed regulations the Department would treat such incidents as
``crimes'' for the purposes of the Clery Act. We believe that this
approach would make it clear that all incidents that meet the
definition of dating violence in Federal law must be recorded in an
institution's crime statistics, whether or not they are crimes in the
institution's jurisdiction.
During our investigations, the Department's Clery Division examines
an institution's training materials, conducts interviews, and reviews
case documents to evaluate the extent to which an institution is
educating students and employees about applicable laws and the extent
to which an institution is setting a standard and communicating its
expectations for acceptable conduct of campus community members.
Information about the Department's expectations and recognized best
practices will also be included in the next edition of the Handbook.
Question 2b. Similarly, how will the Clery Act Compliance Division
evaluate compliance with the requirement to educate students and
employees on the meaning of ``consent'' when it is not defined in the
local jurisdiction?
Answer 2b. During the negotiated rulemaking process to develop the
proposed rules to implement the changes made to the Clery Act by VAWA,
the negotiating committee considered including a definition of
``consent'' for purposes of the Clery Act. A definition of consent
would provide clarity for institutions, students, and employees for
when a reported sex offense would need to be included in the
institution's Clery Act statistics. However, some negotiators argued
that a definition of consent would create ambiguity in jurisdictions
which either do not define consent or have a definition that differed
from the one that would be in the regulations. The Department and the
negotiated rulemaking committee eventually decided against including
the definition of consent in the proposed regulation as we were not
convinced that it would be helpful to institutions in complying with
the Clery Act.
For purposes of Clery Act reporting, all sex offenses that are
reported to a campus security authority must be recorded in an
institution's Clery Act statistics and, if reported to the campus
police, must be included in the crime log, regardless of the issue of
consent.
Question 3. Title IX and the Clery Act have overlapping, but
different disciplinary standards that an institution of higher
education must follow to address allegations of sexual assault. Under
title IX, an institution's grievance procedure must provide a ``prompt
and equitable resolution,'' and the investigation must be ``adequate,
reliable, impartial, and prompt.'' Under the Clery Act, an
institution's disciplinary procedure must provide a ``prompt, fair, and
impartial investigation and resolution.'' Have you discussed with the
Office for Civil Rights the fact that these standards, at least on
their face, are different?
In your view are they, in effect, the same or different?
Answer 3. The procedures an institution must use to address
allegations of sexual assault under the Clery Act and title IX are
substantially the same. Although they are related, title IX and the
Clery Act are separate statutes and their requirements do not conflict
with each other. The Clery Division is in close communication with the
Department's Office for Civil Rights (OCR) on matters related to
compliance by institutions with requirements for the adjudication and
reporting of sexual assault. In fact, OCR was one of our most important
and active partners during the recent rulemaking process.
Question 4a. In the notice of proposed rulemaking to implement the
Violence Against Women Act amendments to the Clery Act, the Department
of Education states it is clarifying that an institution is not
supposed to remove a reported crime from its crime statistics based on
a decision by a court, jury, or prosecutor. Is that the position of the
Department?
Answer 4a. The Department has consistently advised, through the
Clery Handbook and other sub-regulatory guidance, that institutions
should include all reported crimes in the Clery Act statistics, except
in the rare case that a crime report is ``unfounded.'' The Clery Act
statistics are not based on the identity of the perpetrator. A verdict
that a particular defendant is not guilty of a particular charge does
not mean that the crime did not occur. If, after fully investigating a
reported crime, law enforcement authorities make a formal determination
that the report was false or baseless when made, and the crime report
was therefore determined to be ``unfounded'' by sworn or commissioned
law enforcement personnel, the institution may exclude from its
upcoming annual security report, or remove from its previously reported
statistics, the reported crime. The recently published regulations
formally address how these situations are to be handled.
Question 4b. If someone is found not guilty in a court proceeding,
would that reported crime still be included in Clery Act crime
statistics? If so, how does that promote accurate crime reporting?
Answer 4b. The Clery Act requires that institutions report the
number of ``reported crimes.'' A verdict that a particular defendant is
not guilty of a particular charge does not mean that the crime did not
occur. Therefore, as discussed above, all reports of crimes must be
included in the statistics, except in the rare case that a crime report
is ``unfounded.''
Question 5a. How is the Clery Act Compliance Division staff trained
to investigate Clery Act complaints? How often must Clery Act
Compliance Division staff complete this training?
Answer 5a. FSA takes the need for continuous training and
improvement seriously, and encourages every employee to pursue training
opportunities to improve their performance. All Clery Division staff
members receive ongoing training throughout the year. This training is
provided during team meetings as well as through fieldwork, scenario-
based training exercises, individual self-paced study, formal staff
training events, and external training provided by experts in the
field.
For example, our office conducted a week-long training event in
April and May 2014 which included an in-depth instruction on crime
classification, proper application of the ``Clery Geography''
definitions, and the role of campus security authorities, among many
other topics. We also heard from guest speakers from OCR and the Clery
Center for Security On Campus, Inc. One of our staff members focused on
physical security matters attended a training event on the National
Threat Assessment Center presented by the U.S. Secret Service. Selected
staff also recently attended training on the Safe School Initiative,
Safety and Security Considerations for High-Rise Buildings, and
Situational Awareness in Active Shooter Incidents. Later this year,
several members of the Clery Division team will be taking sexual
assault investigator training and others will attend an advanced course
in interview and interrogation techniques.
Question 5b. Please provide any training materials used.
Answer 5b. Though training on policy updates varies based on the
changes being made, all internal training is based on the Handbook,
which is currently being revised to reflect the changes to the statute
and recent regulatory changes. We will furnish the revised copy to your
office once finalized.
Question 6. How does the Clery Act Compliance Division staff ensure
the process for conducting investigations of alleged Clery Act
violations related to sexual assault is fair and consistent across the
national and regional offices?
Answer 6. The Clery Division works closely with FSA's regional
compliance teams to ensure that Clery Act and Drug-Free Schools and
Communities Act enforcement is conducted in a fair and consistent
manner for all potential violations, including those related to sexual
assault. The Clery Division has developed procedures and tools for
these teams, and we also provide ongoing training focused primarily on
the publication and distribution of Annual Security Reports and the
development and implementation of proper drug and alcohol abuse
prevention programs. Finally, the Clery Division reviews and approves
every finding of noncompliance for accuracy and completeness as a
further check on consistency. We also work with a dedicated paralegal
specialist and program attorney to ensure proper checks and balances.
Since the consultation process was implemented in June 2012, we have
completed work on more than 500 program review and audit findings.
Question 7. When an institution is fined for a Clery Act violation,
where does that fine go?
Answer 7. Funds collected as the result of civil penalties imposed
for Clery Act violations are remitted to the Department of the
Treasury.
senator kirk
Question 1. Currently, there are less than a dozen staff members
who are responsible for enforcement of the Clery Act at over 6,000
colleges and universities. How rigorous is the compliance process, and
is there insufficient staff to fully accomplish compliance? How often
are institutions of higher education audited for compliance, and is
there a backlog for establishing compliance? How will the addition of
added staff and increased training result in greater compliance and
enforcement of Federal regulations surrounding campus sexual violence?
Answer 1. The Department is committed to improving safety for
students and employees on our Nation's college campuses and to ensure
compliance with the Clery Act. As such, the Clery Division has
developed a rigorous compliance oversight and enforcement program that
includes assessments of high-profile campus crimes and compliance
checks as part of each general assessment review.
The centerpiece of the oversight program is the campus crime
program review process, which I highlighted in my written testimony.
Program reviews give us an important on-the-ground view of an
institution's campus safety and crime prevention operations. While
effective, these reviews are labor and time-intensive and as a result,
there is a backlog of open cases.
The Clery Division undertakes a number of the regularly recurring
reviews. Our team is singularly focused on improving public safety and
crime prevention on our Nation's campuses with the well-being of our
students and educators foremost in our minds. Following regular
recurring review, the Clery Division focuses on enforcement areas that
require more targeted reviews. The Department understands that optimum
compliance is best achieved through a balanced mix of enforcement and
technical assistance.
The Clery Division's 13 full-time employees manage the workload to
their best ability with the resources available.
[Whereupon, at 12:02 p.m., the hearing was adjourned.]
[all]