    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                          PREVENTING AND RESPONDING TO
                       SEXUAL ASSAULT ON COLLEGE CAMPUSES

    =======================================================================

                                     HEARING

                                   BEFORE THE

                        SUBCOMMITTEE ON HIGHER EDUCATION
                             AND WORKFORCE TRAINING

                             COMMITTEE ON EDUCATION
                               AND THE WORKFORCE

                         U.S. House of Representatives

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

               HEARING HELD IN WASHINGTON, DC, SEPTEMBER 10, 2015

                                   __________

                               Serial No. 114-27

                                   __________

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                    COMMITTEE ON EDUCATION AND THE WORKFORCE

                        JOHN KLINE, Minnesota, Chairman

    Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott,
    Virginia Foxx, North Carolina            Virginia
    Duncan Hunter, California              Ranking Member
    David P. Roe, Tennessee              Ruben Hinojosa, Texas
    Glenn Thompson, Pennsylvania         Susan A. Davis, California
    Tim Walberg, Michigan                Raul M. Grijalva, Arizona
    Matt Salmon, Arizona                 Joe Courtney, Connecticut
    Brett Guthrie, Kentucky              Marcia L. Fudge, Ohio
    Todd Rokita, Indiana                 Jared Polis, Colorado
    Lou Barletta, Pennsylvania           Gregorio Kilili Camacho Sablan,
    Joseph J. Heck, Nevada                 Northern Mariana Islands
    Luke Messer, Indiana                 Frederica S. Wilson, Florida
    Bradley Byrne, Alabama               Suzanne Bonamici, Oregon
    David Brat, Virginia                 Mark Pocan, Wisconsin
    Buddy Carter, Georgia                Mark Takano, California
    Michael D. Bishop, Michigan          Hakeem S. Jeffries, New York
    Glenn Grothman, Wisconsin            Katherine M. Clark, Massachusetts
    Steve Russell, Oklahoma              Alma S. Adams, North Carolina
    Carlos Curbelo, Florida              Mark DeSaulnier, California
    Elise Stefanik, New York
    Rick Allen, Georgia

                        Juliane Sullivan, Staff Director
                     Denise Forte, Minority Staff Director

                                 ---------

            SUBCOMMITTEE ON HIGHER EDUCATION AND WORKFORCE TRAINING

                   VIRGINIA FOXX, North Carolina, Chairwoman

    David P. Roe, Tennessee              Ruben Hinojosa, Texas
    Matt Salmon, Arizona                   Ranking Minority Member
    Brett Guthrie, Kentucky              Hakeem S. Jeffries, New York
    Lou Barletta, Pennsylvania           Alma S. Adams, North Carolina
    Joseph J. Heck, Nevada               Mark DeSaulnier, California
    Luke Messer, Indiana                 Susan A. Davis, California
    Bradley Byrne, Alabama               Raul M. Grijalva, Arizona
    Carlos Curbelo, Florida              Joe Courtney, Connecticut
    Elise Stefanik, New York             Jared Polis, Colorado
    Rick Allen, Georgia

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on September 10, 2015...............................     1

    Statement of Members:
        Foxx, Hon. Virginia, Chairwoman, Subcommittee on Higher
          Education and Workforce Training...........................     1
            Prepared statement of....................................     3
        Hinojosa, Hon. Ruben, Ranking Member, Subcommittee on Higher
          Education and Workforce Training...........................     4
            Prepared statement of....................................     6

    Statement of Witnesses:
        Cohn, Mr. Joseph, Legislative and Policy Director, Foundation
          for Individual Rights in Education, Philadelphia, PA.......    36
            Prepared statement of....................................    39
        Maatz, Ms. Lisa M., Vice President for Government Relations,
          American Association of University Women, Washington, DC...    26
            Prepared statement of....................................    29
        Rue, Dr. Penny, Vice President for Campus Life, Wake Forest
          University, Winston-Salem, NC..............................    19
            Prepared statement of....................................    21
        Scaduto, Ms. Dana, General Counsel, Dickinson College,
          Carlisle, PA...............................................     7
            Prepared statement of....................................     9
    Additional Submissions:
        Mr. Hinojosa:
            U.S. Department of Education's 2014 guidance on Title IX
              and sexual violence....................................   132
            U.S. Department of Education's list of Higher Education
              Institutions With Open Title IX Sexual Violation
              Investigations.........................................   185
            Chart: Intersection of Title IX and the Clery Act........   188
            Letter dated August 12, 2015, from The National Alliance
              to End Sexual Violence.................................   196
            Letter dated September 10, 2015, from Feminist Majority
              Foundation.............................................   199
            Prepared statement of Speier, Hon. Jackie................   204
            Letter dated September 24, 2015, from The National
              Domestic Violence Hotline..............................   209
        Salmon, Hon. Matt, a Representative in Congress from the
          State of Arizona:
            Letter dated September 10, 2015 from, The National
              Coalition For Men Carolinas (NCFMC)....................   212
        Byrne, Hon. Bradley, a Representative in Congress from the
          State of Alabama, questions submitted for the record to:
            Dr. Rue..................................................   217
            Ms. Scaduto..............................................   219
        Response to questions submitted:
            Dr. Rue..................................................   222
            Ms. Scaduto..............................................   225

                      PREVENTING AND RESPONDING TO SEXUAL
                          ASSAULT ON COLLEGE CAMPUSES

                                  ----------

                          Thursday, September 10, 2015

                         U.S. House of Representatives,

                 Subcommittee on Higher Education and Workforce

                                   Training,

                   Committee on Education and the Workforce,

                                Washington, D.C.

                                  ----------

        The subcommittee met, pursuant to call, at 10:01 a.m., in
    Room 2261, Rayburn House Office Building, Hon. Virginia Foxx
    [chairwoman of the subcommittee] presiding.
        Present: Representatives Foxx, Roe, Salmon, Guthrie, Heck,
    Curbelo, Stefanik, Allen, Hinojosa, Jeffries, Adams,
    DeSaulnier, Davis, Courtney, and Polis.
        Also present: Representatives Kline, Scott of Virginia,
    Bonamici, and Speier.
        Staff present: Lauren Aronson, Press Secretary; Janelle
    Belland, Coalitions and Members Services Coordinator; Tyler
    Hernandez, Press Secretary; Amy Raaf Jones, Director of
    Education and Human Resources Policy; Nancy Locke, Chief Clerk;
    Brian Newell, Communications Director; Krisann Pearce, General
    Counsel; Lauren Reddington, Deputy Press Secretary; Alex Ricci,
    Legislative Assistant; Mandy Schaumburg, Education Deputy
    Director and Senior Counsel; Emily Slack, Professional Staff
    Member; Alissa Strawcutter, Deputy Clerk; Juliane Sullivan,
    Staff Director; Tylease Alli, Minority Clerk/Intern and Fellow
    Coordinator; Jared Bass, Minority Education Policy Counsel;
    Tina Hone, Minority Education Policy Director and Associate
    General Counsel; Brian Kennedy, Minority General Counsel;
    Veronique Pluviose, Minority Civil Rights Counsel; Rayna Reid,
    Minority Education Policy Counsel; Michael Taylor, Minority
    Education Policy Fellow; and Arika Trim, Minority Press
    Secretary.
        Chairwoman Foxx. Good morning, everyone. A quorum being
    present, Subcommittee on Higher Education and Workforce will
    come to order.
        Welcome, everyone, to today's committee hearing. We are in
    a different location and we are a little tighter in here today
    than we normally would be, and ask everybody's indulgence as
    the renovation work goes on in the committee room. We will all
    be friendlier and kinder to each other today--and closer to
    each other.
        I would like to thank our witnesses for joining us to
    discuss an issue that affects far too many students: campus
    sexual assault.
        Earlier this week, as millions of students stepped foot on
    a college or university campus, members of Congress returned
    from their districts to continue their work strengthening
    America's higher education system. As we all know, that effort
    often requires difficult but necessary conversations about
    tough issues, which is why we are here today.
        Every college student should be able to learn in an
    environment that is free--safe and free from fear and
    intimidation. Yet, for some students that is not the case.
        According to one study, approximately one in five women in
    college has been sexually assaulted. Several universities,
    including Rutgers, Michigan, and MIT, report similar findings,
    and a number of recent high-profile cases further highlight the
    scope and seriousness of this important issue.
        As a former community college president, mother,
    grandmother, I know I am not alone when I say that all of us
    have a responsibility to protect students from sexual assault
    on campus. As one university president exclaimed, ``The issue
    of sexual assault keeps me awake at night. I feel personally
    responsible for the safety and well-being of all students.''
    Another said, ``I see the issue of sexual violence and sexual
    assault on colleges and universities as a matter of national
    importance.''
        Students, parents, educators, administrators, and
    policymakers across the country share this same sentiment and
    have joined a national conversation about these heinous crimes
    and how we can better protect students.
        At the college and university level, efforts to prevent and
    respond to sexual assault are underway. For instance, some
    colleges and universities now require students to participate
    in seminars to help them understand what sexual assault is and
    how to prevent and report it. At the University of North
    Carolina Chapel Hill, for example, these seminars reinforce a
    safe campus culture and explain university policies and
    procedures for responding to reports of sexual violence.
        Institutions are also improving how they support victims of
    sexual assault, providing resources and counseling services to
    help students recover from such a terrible event, complete
    their education, and continue with their lives. Just as
    important, administrators are working to put in a place a fair
    resolution process that respects the rights of the victim and
    the accused.
        At the national level, the federal government has been
    working with colleges and universities to prevent and respond
    to sexual assault for decades. More recently, members of
    Congress have introduced legislative proposals intended to
    improve protections for college students. Additionally, the
    administration has established new policies institutions must
    follow.
        Colleges and universities have rightly raised concerns
    about the administration's one-size-fits-all regulatory
    approach. While well-intended, the administration has further
    complicated a maze of legal requirements; added to the
    confusion facing students, administrators, and faculty; and
    made it harder for institutions to guarantee student safety.
        As Dr. Rue will explain during her testimony, the patchwork
    of federal and state policies has impeded the efforts of
    administrators and educators to prevent and respond effectively
    to sexual assault on their campus.
        As Congress works to strengthen higher education it must
    ensure tough, responsible policies are in place to fight these
    crimes and support the victims.
        I am pleased to have a panel of witnesses to represent all
    sides of this difficult yet important discussion. Your
    observations and recommendations are vital to our efforts to
    help colleges and universities provide students the safe
    learning environment they deserve.
        With that, I now recognize the ranking member, Congressman
    Hinojosa, for his opening remarks.
        [The statement of Chairwoman Foxx follows:]

     Prepared Statement of Hon. Virginia Foxx, Chairwoman, Subcommittee on
                    Higher Education and Workforce Training

        Earlier this week, as millions of students stepped foot on a
    college or university campus, members of Congress returned from their
    districts to continue their work strengthening America's higher
    education system. As we all know, that effort often requires difficult
    but necessary conversations about tough issues, which is why we are
    here today. Every college student should be able to learn in an
    environment that is safe and free from fear and intimidation. Yet for
    some students, that is not the case. According to one study,
    approximately one in five women in college has been sexually assaulted.
    Several universities - including Rutgers, Michigan, and MIT - report
    similar findings, and a number of recent high-profile cases further
    highlight the scope and seriousness of this important issue.
        As a former community college president, a mother, and grandmother,
    I know I'm not alone when I say that all of us have a responsibility to
    protect students from sexual assault on campus. As one university
    president exclaimed, ``The issue of sexual assault keeps me awake at
    night ... I feel personally responsible for the safety and well-being
    of all students.'' Another said, ``I see the issue of sexual violence
    and sexual assault on colleges and universities as a matter of national
    importance.''
        Students, parents, educators, administrators, and policymakers
    across the country share this same sentiment, and have joined a
    national conversation about these heinous crimes and how we can better
    protect students.
        At the college and university level, efforts to prevent and respond
    to sexual assault are underway. For instance, some colleges and
    universities now require students to participate in seminars to help
    them understand what sexual assault is and how to prevent and report
    it. At the University of North Carolina - Chapel Hill, for example,
    these seminars reinforce a safe campus culture and explain university
    policies and procedures for responding to reports of sexual violence.
        Institutions are also improving how they support victims of sexual
    assault, providing resources and counseling services to help students
    recover from such a terrible event, complete their education, and
    continue on with their lives. Just as important, administrators are
    working to put in place a fair resolution process that respects the
    rights of the victim and the accused.
        At the national level, the federal government has been working with
    colleges and universities to prevent and respond to sexual assault for
    decades. More recently, members of Congress have introduced legislative
    proposals intended to improve protections for college students.
    Additionally, the administration has established new policies
    institutions must follow.
        Colleges and universities have rightly raised concerns about the
    administration's one-size-fits-all regulatory approach. While well-
    intended, the administration has further complicated a maze of legal
    requirements, added to the confusion facing students, administrators,
    and faculty, and made it harder for institutions to guarantee student
    safety. As Dr. Rue will explain during her testimony, the patchwork of
    federal and state policies has impeded the efforts of administrators
    and educators to effectively prevent and respond to sexual assault on
    their campuses.
        As Congress works to strengthen higher education, it must ensure
    tough, responsible policies are in place to fight these crimes and
    support the victims. I am pleased we have a panel of witnesses to
    represent all sides of this difficult yet important discussion. Your
    observations and recommendations are vital to our effort to help
    colleges and universities provide students the safe learning
    environment they deserve.
                                     ______

        Mr. Hinojosa. Thank you, Chairwoman Foxx.
        I join you in welcoming our distinguished panel of
    witnesses.
        The subject of this hearing is extremely sensitive. As
    ranking member of this subcommittee, I believe that we must
    raise the level of awareness in our communities and throughout
    our nation about the seriousness of campus sexual assault and
    its impact on our victims, both women and men, and their
    families. These impacts are far-reaching and include poor
    academic performance, stress, depression, and abuse of alcohol
    and drugs.
        In addition to supporting the victim, we must also be
    sensitive to the rights of the accused. Institutions of higher
    education must have processes that ensure fairness in handling
    the allegations of campus sexual assaults and that campus
    investigations are consistent with our nation's longstanding
    principles of due process.
        Whatever system is put in place, we must ensure that
    victims are not afraid to come forward. Unfortunately, many
    victims are reluctant to report sexual assaults because of
    shame, or fear of retaliation, or worries about lack of proof,
    uncertainty that what happened constitutes assault, or possibly
    because they lack information on where or how to report the
    assault, and fear of being treated poorly by the criminal
    justice system.
        As a nation, we have made progress towards better
    understanding and addressing this serious challenge of campus
    sexual assault. For example, through the development of the
    White House Task Force to Protect Students from Sexual
    Assaults, the Department of Justice's Office of Violence
    Against Women developed a multiyear initiative to provide
    support to programs to prevent campus sexual assault and their
    recent online resource center for changing our campus culture.
        In the year 2007, the U.S. Department of Justice also
    funded a groundbreaking study on campus sexual assault. The
    findings of that study were staggering. Let me give you some
    examples.
        Among- women in college, nearly 20 percent will bevictims
    of attempted or actual sexual assault; as well, about 6 percent
    of undergraduate men. Most victims were violated in their first
    or second year at college. The majority, 75 to 80 percent, knew
    their attackers--often a friend, a classmate, acquaintance, or
    someone they dated.
        The study also confirmed that the risk of campus sexual
    assault for undergraduate women increases greatly with the
    consumption of alcohol and/or drugs. It is clear, our concerted
    efforts are needed to deal with these serious issues.
        In addition to these federal efforts, I am proud to report
    that my own home state of Texas is responding to calls of
    action. Starting this year, colleges and universities are
    required to inform students of campus sexual assault policies
    during freshmen orientation. Schools are also required to
    review and update those policies every 2 years.
        Students returning to class at the University of Texas
    campuses this fall will also be participating in the nation's
    most comprehensive study on sexual assaults ever conducted in
    higher education. The Cultivating Learning and Safe
    Environments case study will be led by researchers at U.T.
    Austin School of Social Work and will include online
    questionnaires for students; surveys and focus groups of
    faculty, staff, and campus law enforcement; and a 4-year cohort
    study of entering freshmen to identify the psychological and
    economic impact of sexual violence. The U.T. system is spending
    $1.75 million dollars on this study.
        So I applaud U.T.'s effort to address campus sexual assault
    and urge other colleges and universities throughout our country
    to join in the commitment to end sexual violence on their
    campuses.
        In closing, let us renew our efforts to support victims of
    campus sexual assault. We can't wait for yet another high-
    profile incident to occur before we address this issue.
        I look forward to hearing what recommendations our panel of
    witnesses may have to reduce sexual assault on our college
    campuses, and I thank you.
        And with that, Madam Chair, I yield back.
        [The statement of Mr. Hinojosa follows:]

    Prepared Statement of Hon. Ruben Hinojosa, Ranking Member, Subcommittee
                   on Higher Education and Workforce Training

        Thank you, Chairwoman Foxx. I join you in welcoming our witnesses,
    Ms. Lisa Maatz, Mrs. Dana Scaduto, Mr. Joseph Cohn, and Dr. Penny Rue.
        The subject of this hearing is extremely sensitive. as Ranking
    Member of this Subcommittee, I believe that we must raise awareness in
    our communities and throughout our nation about the seriousness of
    campus sexual assault and its impact on our victims both women and men
    and their families. These impacts are far reaching and include poor
    academic performance, stress, depression, and abuse of alcohol and
    drugs.
        In addition to supporting the victim, we must also be sensitive to
    the rights of the accused. Institutions of higher education must have
    processes that ensure fairness in handling allegations of campus sexual
    assaults, and that campus investigations are consistent with our
    nation's long standing principles of due process.
        Whatever system is put in place we must ensure that victims are not
    afraid to come forward. Unfortunately, many victims are reluctant to
    report sexual assaults because of shame; fear of retaliation; worries
    about lack of proof; uncertainty that what happened constitutes
    assault; or because they lack of information on where or how to report
    the assault; and fear of being treated poorly by the criminal justice
    system.
        As a nation, we have made progress toward better understanding and
    addressing this serious challenge of campus sexual assault. For example
    through the development of the white house task force to protect
    students from sexual assaults, the department of justice's office on
    violence against women developed a multiyear initiative to provide
    support to programs to prevent campus sexual assault and their recent
    online resource center for changing our campus culture.
        In 2007, the U.S. Department of Justice also funded a
    groundbreaking study on campus sexual assault. The findings of the
    study were staggering. For example: among women in college, nearly 20%
    will be victims of attempted or actual sexual assault, as will about 6%
    of undergraduate men. Most victims are violated in their first or
    second year at college. The majority -75% to 80%--knew their attackers
    - often a friend, classmate, acquaintance, or someone they dated. The
    study also confirmed that the risk of campus sexual assault for
    undergraduate women increases greatly with the consumption of alcohol
    and/or drugs.
        It is clear our concerted efforts are needed to deal with these
    serious issues in addition to these federal efforts, I am proud to
    calls for action. starting this year, colleges and universities are
    required to inform students of campus sexual assault policies during
    freshman orientation. Schools are also required to review and update
    those policies every two years.
        Students returning to class at the University of Texas campuses
    this fall will also be participating in the nation's most comprehensive
    study on sexual assaults ever conducted in higher education. the
    cultivating learning and safe environments (clase) study will be led by
    researchers at UT Austin's Achool of Social Work, and will include
    online questionnaires for students; surveys and focus groups of
    faculty, staff and campus law enforcement; and a 4-year cohort study of
    entering freshman to identify the psychological and economic impact of
    sexual violence. The UT system is spending $1.7 million on this study.
        I applaud UT's effort to address campus sexual assault and urge
    other colleges and universities to join in the commitment to end sexual
    violence on their campuses.
        Let us renew our efforts to support victims of campus sexual
    assault. We cannot wait for yet another high- profile incident to occur
    before we address this issue. I look forward to hearing what
    recommendations our witnesses may have to reduce sexual assault on our
    college campuses.
        Thank You, and with that, I yield back.
                                     ______

        Chairwoman Foxx. Thank you, Mr. Hinojosa.
        Pursuant to committee rule 7(c), all members will be
    permitted to submit written statements to be included in the
    permanent hearing record. And without objection, the hearing
    record will remain open for 14 days to allow such statements
    and other extraneous material referenced during the hearing to
    be submitted for the official hearing record.
        It is now my pleasure to introduce our distinguished
    witnesses.
        Ms. Dana Scaduto is the general counsel at Dickinson
    College in Carlisle, Pennsylvania. Previously, she was in
    private practice in Harrisburg, Pennsylvania, where she chaired
    her firm's education law practice and represented several
    Pennsylvania private colleges, including Dickinson. Ms. Scaduto
    is an active member of the National Association of College and
    University Attorneys and a member of the Legal Services Review
    Panel of the National Association of Independent Colleges and
    Universities.
        Dr. Penny Rue is vice president for campus life at Wake
    Forest University in Winston-Salem, North Carolina. Dr. Rue is
    responsible for the well-being and safety of Wake Forest
    University students and their education outside the classroom
    and is nationally known for her creative leadership in
    strengthening campus communities.
        Ms. Lisa Maatz is vice president for government relations
    for the American Association of University Women, AAUW, here in
    Washington, D.C. Ms. Maatz previously spent 16 months serving
    concurrently as the interim director of the AAUW Legal Defense
    Fund. She has done similar work for the NOW Legal Defense and
    Education Fund and the Older Women's League.
        Mr. Joseph Cohn is legislative and policy director at the
    Foundation for Individual Rights in Education, FIRE, in
    Philadelphia, Pennsylvania. He is a former staff attorney for
    the United States Court of Appeals for the third circuit and
    law clerk in the Philadelphia Court of Common Pleas.
    Immediately prior to joining FIRE, Mr. Cohn served as the
    interim legal director for ACLU affiliates in Nevada and Utah.
        I now ask our witnesses to stand and raise your right hand.
        [Witnesses sworn.]
        Let the record reflect the witnesses answered in the
    affirmative.
        You may take your seat.
        Before I recognize you to provide your testimony, let me
    briefly explain our lighting system. You have 5 minutes to
    present your testimony. When you begin, the light in front of
    you will turn green; when 1 minute is left, the light will turn
    yellow; when your time is expired, the light will turn red. At
    that point, I will ask that you wrap up your remarks as best as
    you are able.
        Members will each have 5 minutes to ask questions.
        Now I want to recognize Ms. Scaduto for her comments.
        Thank you.

       TESTIMONY OF MS. DANA SCADUTO, GENERAL COUNSEL, DICKINSON
                         COLLEGE, CARLISLE, PA

        Ms. Scaduto. Thank you, Chairwoman Foxx, and good morning.
        And good morning, Ranking Member Hinojosa and Chairman
    Kline.
        I thank you for the opportunity to be here today. As a
    higher education senior administrator with a long history of
    involvement in the issue of sexual misconduct on our nation's
    campuses, I am here today because we share the committee's
    commitment to educating our nation's students in safe and
    supportive environments.
        American colleges and universities are happy to work in
    partnership with the government and others on finding solutions
    that will help bring about cultural change and put an end to
    this most serious problem. As we move forward, I want to take a
    few minutes to share with you some of the challenges higher
    education is facing in our efforts and to propose some ways in
    which our government and this subcommittee can further help us
    achieve greater success in preventing and responding to sexual
    violence.
        As I make my comments this morning, I will use the term
    ``victim'' out of expediency and because it is referenced in
    the Campus SAVE Act, but without any personal preference as to
    terminology.
        First, please recognize that the reports of sexual violence
    we receive on our campuses are not straightforward or easy to
    resolve. The sexual violence claims we see most frequently do
    not involve force or attacks by strangers, but happen between
    individuals who are acquainted, where one or both are
    intoxicated, and where the primary issue is whether consent to
    a sexual act was given. We are left to resolve word-on-word
    conflicts between two people whose memories may be impaired and
    where there are no witnesses.
        Add to this the fact that reports may not be made for days,
    weeks, or months following an event, and I can hope you see the
    complexity of resolving such issues in a manner that the
    parties believe to be fair.
        And while speaking of fairness, colleges and universities
    are committed to providing fair treatment to all of our
    students, including not only victims of sexual violence but
    also to those accused of sexual violence. The changes over the
    last 4 years have resulted in complexities and challenges in
    maintaining the necessary balance.
        For example, on a small campus, removing an accused student
    from a class in order to keep the student away from an alleged
    victim before any determination of responsibility can be made
    may result in the accused student being forced out of a class
    where there are no other sections or being forced out of a
    class shortly before graduation. We are also often trying to
    navigate the complexities of VAWA, Clery, and Title IX laws,
    regulations, and guidance, as well as state laws simultaneously
    and without the confidence that we can do so to the
    satisfaction of all.
        Employees' duties to report under various standards differ.
    What and how we are supposed to advise victims of their options
    for moving forward when they report a sexual assault are just
    two examples of those complexities.
        Additionally, the current laws and guidance do not appear
    to recognize that college disciplinary proceedings are not
    equipped to replace law enforcement or judicial functions. The
    members of our campus communities who are expected to meet and
    discharge the new standards established for resolving sexual
    violence claims are faculty, staff, and, historically,
    students--not judges nor lawyers.
        To support colleges' and universities' efforts to improve
    culture around this serious issue and to help us in our efforts
    to hold violators accountable through processes that are fair,
    equitable, and impartial, I recommend the following four points
    for your consideration: First, pause in considering legislation
    that adds additional requirements to those already complex
    network of federal and state laws, regulations, and OCR
    guidance until there has been an opportunity to evaluate
    whether the efforts to date are working. As a reminder, the
    VAWA regulations only went into effect July 1st of this year.
        Second, consider creating a safe harbor for higher
    education that does not relieve us from accountability for
    failures to comply, but which provides us with certain
    presumptions of good faith when reviewing our conduct. For
    example, when we are applying fact-based tests established by
    various laws, such as in deciding whether to investigate or not
    over a victim's objection, if we miss the mark but are found to
    have acted in good faith in our efforts, provide us with
    protection from penalties or administrative action.
        Third, if new requirements are considered at some point in
    the future, OCR should follow notice and comment requirements
    of the Administrative Procedures Act. The Title IX guidance put
    into place since 1991--since 2001 was done without notice or
    comment from parties outside the agency, depriving colleges and
    universities, victims and survivors, and other interested
    parties of the opportunity to provide input that may have been
    helpful in improving clarity and alignment with existing laws
    and regulations.
        I will leave my fourth point for your reading.
        Thank you for listening and considering my perspective as a
    higher education administrator.
        [The testimony of Ms. Scaduto follows:]
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        Chairwoman Foxx. Dr. Rue, you are recognized for 5 minutes.

      TESTIMONY OF DR. PENNY RUE, VICE PRESIDENT FOR CAMPUS LIFE,
               WAKE FOREST UNIVERSITY, WINSTON-SALEM, NC

        Ms. Rue. Thank you, Chairwoman Foxx, Ranking Member
    Hinojosa, and honorable committee members, for the opportunity
    to testify about this critically important issue.
        The higher education community takes the problem of campus
    sexual assault very seriously, and we are working diligently to
    prevent sexual assault and to manage systems fair to all
    students. These are not new issues for us. It has been a
    priority for decades because of our genuine care for the
    health, safety, and well-being of our students.
        Currently, we must address sexual violence compliance
    responsibilities under a swirl of regulations. This one-size-
    fits-all can create resource challenges that impede our effort
    to prevent and respond to sexual assault. Added to these
    challenges now are state legislatures that are enacting
    statutes, creating a patchwork of conflicting regulations.
        Prevention and education efforts are critical to reducing
    incidents of sexual violence. Many campuses employ online
    modules, allow new students to participate in prevention
    programming at orientation and belong--and beyond, online
    training programs to education faculty and staff to whom
    students might report about where to turn.
        According to the CDC, bystander intervention training and
    social norms training are promising practices but have not yet
    been validated through rigorous design, so more grant support
    is needed to conduct evaluation research in this growing field.
        At Wake Forest we use PREPARE peer educators to deliver
    highly interactive, situational programs to put incoming
    students' attitudes to the test and really get them to think. A
    highly engaging peer theater program reinforces those messages
    and is followed by an online curriculum that uses scenarios
    highly relevant to students. This program, Haven, will also
    give us benchmark attitudes that we can use to assess the
    effectiveness of our programs over time.
        After students have time to navigate the social scene, they
    will participate in a program in their residence halls on
    bystander intervention training using the Step-Up model.
        Campus climate surveys are another growing practice. These
    are used to assess students' perception of and experience with
    sexual violence, and these surveys are designed to provide an
    institution-specific picture that in turn enables leaders to
    coordinate with the campus community to strengthen prevention
    efforts.
        One standardized survey imposed on all institutions would
    likely not accommodate the wide array of campus environments
    that range from 4-year residential, like my own, to community
    colleges and even primarily online universities. Each
    institution should have the autonomy to develop the best
    survey, given benchmarks to hit.
        Although prevention strategies are in place, sexual
    violence will still occur on our campuses. Student affairs
    administrators are committed to being fair and balanced to all
    of our students engaged in the conduct process.
        Critical to this process is the widely established practice
    of confidentiality for the victim and the accused, one of the
    primary reasons that a student will choose an on-campus
    practice over reporting to the police.
        One of our most important points in trauma-informed work is
    to allow the survivor the right to choose the path to follow in
    the wake of an incident. Some may want to report to the campus,
    some may want to report to the police, or both. Some may only
    want support.
        The institution really needs to respect that choice. To
    take the decision out of the victim's hand by mandating that a
    report of sexual violence to campus automatically is turned
    over to the police will create a chilling effect on the
    willingness of victims to come forward, exactly the opposite of
    what we want to happen.
        The confidentiality of our conduct processes guaranteed
    under FERPA creates uncertainty about their fairness--we know
    that--most recently towards the respondent. But it is important
    to reiterate the campus processes are carefully structured to
    be fair and equitable to all parties.
        In the recent Washington Post Kaiser Family Foundation
    poll, 84 percent of current and recent college students said
    they are very or somewhat confident in the school
    administration's ability to address complaints.
        We are not a court of law. Ours is an educational process
    intended to arrive at a fair and equitable outcome for all
    parties. At the core of this distinction is our standard of
    scrutiny, preponderance of the evidence.
        I think I speak for most colleges and universities in
    saying that we do not need more regulation; we need more
    consultation. Guidance from the Department of Education coming
    without notice often does not help us navigate these waters.
        I strongly believe it is important to provide opportunities
    for public comment and discussion where the full complexity of
    the issues can be explored from those who know them firsthand.
        In closing, I must express deep concern about the narrative
    from the media that colleges and universities care more about
    their institution's reputation than the rights and experiences
    of our students. Nothing could be further from the truth.
        Instead, those of us who handle incidents of sexual
    violence are professionals who share an overwhelming commitment
    to strike the delicate balance in today's legislative
    environment to preserve the educational rights of students, to
    manage fair and equitable conduct systems, and above all, to
    prevent sexual violence.
        Thank you, Chairwoman.
        [The testimony of Ms. Rue follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Foxx. Thank you very much, Dr. Rue.
        Ms. Maatz, you are recognized for 5 minutes.

       TESTIMONY OF MS. LISA M. MAATZ, M.A., VICE PRESIDENT FOR
    GOVERNMENT RELATIONS, AMERICAN ASSOCIATION OF UNIVERSITY WOMEN,
                            WASHINGTON, D.C.

        Ms. Maatz. Good morning. On behalf of the more than 170,000
    members--is that on? There we go.
        Good morning.
        On behalf of the more than 170,000 members, over 1,000
    branches, and almost 900 colleges and university partners of
    the American Association of University Women, I thank you for
    inviting us to testify today. My remarks are informed by my 12
    years with AAUW as well as my tenure as the executive director
    of Turning Point, a domestic violence program recognized for
    excellence by the Ohio Supreme Court; and also at Wittenberg
    University, where I was a hall director and ran a women's
    center that responded to incidents of sexual assault. I can
    personally attest to the fact that this is not a new problem.
        When campus environments are hostile because of sexual
    harassment and violence, students can't learn. It is that
    simple and that devastating.
        Schools have an important and necessary role to play in
    addressing this epidemic. Why? Because student rights to an
    education free of sex discrimination are on the line.
        AAUW has long identified the need to end sexual harassment
    and violence on campuses. Our own research revealed that nearly
    two-thirds of college students experience sexual harassment.
        Just this year, a national poll found one in five women
    said they had been sexually assaulted in college. This issue
    impacts both men and women and students from all walks of life
    at all types of schools.
        Title IX and the Clery Act provide the very tools schools
    need to improve campus climates for everyone.
        Passed in 1972, Title IX is a gender-neutral law that
    prohibits sex discrimination in federally funded education
    programs. The law requires schools to take steps to eliminate
    sexual harassment and violence, prevent their recurrence, and
    address their impacts on individual students and the entire
    campus. This includes evaluating current practices, publishing
    anti-discrimination policies, and implementing grievance
    procedures providing for a prompt and equitable resolution of
    complaints.
        Schools must also provide accommodations to students, such
    as adjusting housing arrangements and class schedules and
    providing academic support--actions that schools are uniquely
    situated to provide.
        All schools should have a Title IX coordinator to oversee
    these activities as well as monitor patterns and address
    systemic problems. It is important to note that these
    requirements are not new, but date back to the law's first
    regulations back in 1975. Since then, over the course of
    Republican and Democratic administrations, the Department of
    Education has continued to provide technical assistance and
    guidance that promotes compliance with the law.
        Schools also follow a consumer protection law known as the
    Clery Act. It requires colleges and universities that
    participate in federal financial aid programs to disclose crime
    statistics and security information.
        Originally passed in 1990, Congress updated the Clery Act
    in 2013 as part of a bipartisan reauthorization of the Violence
    Against Women Act. These updates require schools to report
    additional crime statistics on domestic violence, dating
    violence, and stalking, and provide ongoing sexual assault
    prevention and bystander intervention training campus-wide.
    This public report of a school's safety efforts is valuable to
    students and parents and provides insight to schools working to
    improve campus safety.
        Title IX and the Clery Act are longstanding complementary
    laws that work together to ensure that students and schools
    have a clear course of action when sexual violence occurs.
    Appropriately, schools are not in the business of imposing
    criminal punishments. Those decisions are best left to
    authorities in charge of criminal investigation and prosecution
    if a survivor chooses to pursue that course.
        The school's civil rights proceedings and any criminal
    investigation represent parallel yet equally necessary paths.
    Laws and legal precedence spell out clear requirements for
    schools to be prompt, fair, and impartial in all disciplinary
    proceedings, and Title IX echoes these due process
    requirements.
        Similarly, the Clery Act requires that school processes be
    prompt, fair, and impartial, and that both parties receive
    timely notice regarding the outcomes of proceedings.
        There are next steps that Congress can take to help assist
    schools and students in their efforts to end sexual harassment
    and violence. We know that the time immediately following an
    incident is especially critical for survivors.
        They need access to a safe space, medical and counseling--
    medical care and counseling, and information about their rights
    and where they can seek additional support. Schools should also
    ensure an advisor is available to connect survivors to all of
    these resources.
        The AAUW-supported Survivor Outreach and Support Campus
    Act, or the SOS Campus Act, would ensure schools take these
    critical steps.
        In addition, climate surveys can help schools better to
    understand the dynamics behind reported and unreported
    incidents of sexual violence. Schools need information in order
    to effectively combat this epidemic. When done well, climate
    surveys provide transparency that is crucial for student safety
    and a useful tool to help schools fine-tune their response.
        The AAUW-supported HALT Campus Sexual Violence Act would
    also require surveys at all schools.
        Finally, we urge Congress to provide additional resources
    for the Department of Education to support Title IX
    coordinators and other stakeholders on relevant laws and best
    practices. There are schools that are working diligently to
    respond to incidents of sexual violence, and technical
    assistance can help them make real change.
        Further, with more attention to sexual violence we have
    also seen an uptick in complaints, and an unprecedented number
    of schools are under investigation for Title IX compliance. The
    Office for Civil Rights needs additional funding to provide
    ongoing technical assistance for schools, as well as to hold
    bad actors accountable.
        We all believe, I think, that a single incident of sexual
    violence is one too many. When it interferes with students'
    education it adds insult to injury.
        But we have the tools to make real change, and AAUW looks
    forward to working with you as you reauthorize the Higher
    Education Act and consider this important topic.
        Thank you.
        [The testimony of Ms. Maatz follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Foxx. Thank you.
        Mr. Cohn, you are recognized for 5 minutes.

    TESTIMONY OF MR. JOSEPH COHN, LEGISLATIVE AND POLICY DIRECTOR,
    FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION, PHILADELPHIA, PA

        Mr. Cohn. Chairwoman Foxx, Ranking Member Hinojosa,
    honorable members of the subcommittee, and members of the
    committee at large, thank you for the introduction.
        I am the legislative and policy director at the Foundation
    for Individual Rights in Education, or FIRE. We are a
    nonpartisan, nonprofit organization dedicated to defending
    student and faculty civil liberties on America's college
    campuses. I thank you for the opportunity to discuss this
    critical issue.
        One of the core constitutional rights that FIRE defends is
    due process. Universities are both morally and legally
    obligated to respond to known instances of sexual assault in a
    manner reasonably calculated to prevent its recurrence. And for
    more than 50 years, courts repeatedly have held that the
    Constitution requires public institutions to provide meaningful
    due process protections to accused students.
        FIRE believes that these twin obligations need not be in
    tension. Access to higher education is critical. The stakes are
    extremely high for everybody in campus disciplinary proceedings
    and it is essential that no student's education is curtailed
    unjustly.
        While efforts to address campus sexual assault have focused
    on eliminating bias against complainants, far too little
    attention has been placed on preventing bias against the
    accused. And even more insufficient attention has been placed
    on addressing what I call the competency gap--the difference
    between what college administrators are equipped to do and what
    the Department of Education's Office for Civil Rights is
    demanding of them.
        Campuses are ill-suited to adjudicate allegations of sexual
    assault. While colleges and universities have a role to play in
    tackling the issue, we must make sure that we are assigning
    them responsibilities they are capable of performing well.
        Having defended campus due process for 15 years, FIRE is
    convinced that colleges are simply unequipped to serve as
    investigators and fact-finders in these challenging issues.
        Rape is a crime. It should be treated as such. Using
    amateur systems is insulting to victims and disastrous to
    fundamental fairness.
        Unsurprisingly, injustice for both victims and accused is
    commonplace.
        Sound public policy requires adjudicating these cases in
    courts after professional investigations. Only courts have the
    power to take violent predators off the streets. After all, a
    student has been expelled but not jailed is free to commit rape
    again.
        Complicating matters further, in the April 4, 2011 dear
    colleague letter, which OCR did not subject to public notice
    and comment as required under the Administrative Procedure Act,
    the agency mandated that institutions adjudicate sexual assault
    cases using the low preponderance of the evidence standard.
    OCR, while well-intentioned, has done more harm than good in
    this arena.
        Since issuing the 2011 DCL, OCR has conducted over 130
    Title IX investigations, several of which have resulted in
    settlement agreements. To the best of FIRE's knowledge, only
    one such investigation is looking into whether the disciplinary
    process is biased against the accused. The resulting perception
    of top-down federal bias against the accused is inescapable.
        I would like to briefly address three bills currently
    pending before Congress: the Campus Accountability and Safety
    Act, CASA; the Safe Campus Act; and the Fair Campus Act. There
    are aspects of each that FIRE supports and there are provisions
    in each that give FIRE pause.
        On the positive side, all three bills aim to increase the
    involvement of law enforcement. If our goal is to implement a
    serious response to a serious problem, involving professionals
    in the criminal justice system is necessary.
        FIRE has multiple concerns about CASA, chief among them the
    fact that the bill provides no meaningful due process
    protections for the accused. None.
        Conversely, the Safe Campus Act and Fair Campus Act both
    include important procedural safeguards that will benefit
    accused students and complainants alike. What is more, both the
    Safe Campus Act and the Fair Campus Act would repeal OCR's
    preponderance of the evidence mandate, provide the complainant
    and respondent crucial rights to active assistance of counsel,
    and require institutions to turn over inculpatory and
    exculpatory evidence to both sides.
        To encourage more complainants to report allegations to the
    proper authorities, the Safe Campus Act prohibits institutions
    from taking action on complaints unless they choose to report
    the allegation to law enforcement. FIRE agrees that punitive
    measures should be waived if a complainant does not report the
    accusation to law enforcement for investigation. However, we
    strongly urge Congress to amend the language so that non-
    punitive measures and accommodations may still be made
    available regardless of the student's decision to report.
        While colleges have proven incapable of competently
    determining the truth or falsity of felony accusations, they
    are well-equipped to secure counseling for alleged victims,
    provide academic and housing accommodations, secure necessary
    medical attention, and provide general guidance for students as
    they navigate the criminal justice system. Institutions should
    perform these functions regardless of the complainant's
    decision to report the incident. The bill should be amended to
    encourage them to do so.
        I provide a more detailed analysis of the bills in my
    written testimony to the committee.
        To sum up, there is no simple solution to the problem of
    sexual assault on campus, but lowering the bar of finding guilt
    and eliminating criminal due process protections--by doing
    that, we are creating a system that is impossible for colleges
    to administer fairly. Congress can help reverse this trend by
    taking all student interests into account. To accomplish that,
    Congress should include the best aspects of each pending bill
    in a comprehensive, balanced measure.
        Thank you again for the opportunity to address you, and I
    look forward to answering your questions.
        [The testimony of Mr. Cohn follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Foxx. Thank you very much.
        I would now like to recognize the chairman of the
    committee, Chairman Kline, for 5 minutes.
        Mr. Kline. Thank you, Madam Chair, and thanks for holding
    the hearing.
        Thanks to all the witnesses for being here. Real experts
    and excellent testimony.
        I picked up a theme, if I can use that term, when I was
    listening to both Ms. Scaduto and Dr. Rue, about complexity.
    Somebody, I think it was Dr. Rue, used the words ``swirl of
    regulations'' and a ``patchwork of regulations.'' And Ms.
    Scaduto, in her four recommendations, the one that is written
    and not--wasn't oral has--says ``harmonize standards,
    obligations, expectations under Title IX, VAWA, and Clery.''
        It does seem to me that it is confusing because you have
    different statutes with different requirements, and I have
    great confidence that everybody in this room--sitting up here,
    sitting there, or sitting in the gallery, so to speak--wants to
    find a way to eliminate sexual assaults on campus, and should
    it occur, to make sure that we are holding perpetrators
    accountable and that we are providing support and protection
    for victims. But it does seem to be complex.
        So I will just go to you, Ms. Scaduto, in part because I
    lived in the beautiful town of Carlisle for a while. It is a
    beautiful part of the country and of the state, and my son
    graduated from Carlisle High School. And so I have got this
    tie. I have just got to go to Carlisle. And it is Carlisle,
    not--anyway, it is a long story.
        Are you concerned that the emphasis that is being placed,
    the focus that is being placed on complying with these
    different federal laws, regulations, and guidance is detracting
    from your ability to do what is in the best interest of your
    students?
        Ms. Scaduto. I apologize.
        Yes, we are. I think it is a concern shared not only on
    Dickinson's campus in Carlisle, but on campuses around the
    country.
        If we were able to harmonize--and we understand that the
    promulgation of legislation and regulations is done with the
    best of intentions in protecting our students, and it is a goal
    we support. But when we are spending our time trying to
    harmonize our compliance with the various statutes, it takes
    away from where I think we as educators excel, and that is in
    educating. And that is on the side of prevention and training
    that Dr. Rue spoke so eloquently about.
        When we have different reporting requirements, for example,
    under Clery and under the OCR guidance, who--we have the same
    group of employees who are interacting with the same students
    but we are getting different standards for who must report and
    what they must report when they learn of an incident of sexual
    misconduct. And when that type of analysis detracts from
    making--getting the report made and responding to a student in
    need, it is problematic.
        There are ways to improve harmonization, such as the notice
    and comment period that could be used by OCR when it enacts new
    guidance, because even there are distinct differences between
    that and the VAWA regulations or the Clery regulations, for
    example.
        So yes, the disharmony does present complications and takes
    us off the real important work we need to do around this issue.
        Mr. Kline. Thank you very much.
        I yield back.
        Chairwoman Foxx. Thank you, Mr. Chairman.
        I now recognize the ranking member, Mr. Scott.
        Mr. Scott. Thank you, Madam Chairman and Ranking Member
    Hinojosa, for calling this hearing on preventing and responding
    to sexual assault on college campuses.
        This issue of campus safety is foremost in the minds of
    American families as they send their children away to college.
    Congress in 2009 declared September the National Campus Safety
    Awareness Month to help bring awareness to incidents of campus
    rape, mass shootings, and other forms of violence at
    educational institutions.
        Twenty-five years ago, Congress passed the Clery Act to
    require institutions of higher learning to report campus crime
    statistics and to publish campus safety and security policies.
        We know the issue of campus sexual assault is complex.
    Nevertheless, Title IX and the Clery Act require that once the
    school knows or reasonably should know of possible sexual
    violence it must take immediate and appropriate action to
    investigate or otherwise determine what occurred.
        Unfortunately, campus sexual assault is usually addressed
    only after there is an alleged incident. We have to have
    meaningful procedures to hold accountable those who commit
    sexual assaults, but we also must do more to try to prevent
    them from occurring in the first place.
        One strategy is to educate young people about healthy and
    safe relationships before entering college. The Teach Safe
    Relationships Act of 2015, introduced by Senator Tim Kaine of
    my home state of Virginia, would require that health education
    in public secondary schools include learning not just biology
    but also safe relationship behavior aimed at preventing sexual
    assault, domestic violence, and dating violence. Currently,
    federal law does not require health and sex education classes
    to include information regarding these relationships, which can
    prevent sexual assault.
        There is also a study published in the June 2015 New
    England Journal of Medicine that found that college women who
    participated in an intensive program showing students how to
    recognize and resist sexual aggression reduced their chance of
    being raped by nearly 50 percent and attempted rape by 62
    percent.
        And we know that funding is also an issue, and funding is
    needed to implement educational programs and robust enforcement
    of all civil rights laws on campus. But the Department of
    Education's funding has decreased or been flat-lined over the
    years and the agency staffing level is the lowest it has been
    in 34 years despite having a record of nearly 10,000 civil
    rights complaints.
        We can also do more to train campus public safety
    personnel, and support evidence-based research to strengthen
    college safety and security, and have a clearinghouse for
    dissemination of relevant campus public safety information. As
    an example, the National Center for Campus Public Safety in
    January 2015 conducted its first pilot program, offered in a
    course in Richmond, Virginia, to develop a trauma-informed
    sexual assault investigation and adjudication training for
    campus officials, including Title IX coordinators, advocates,
    legal counsel, and others.
        Let me ask just a question to all of the witnesses. Some
    have alluded to some of the things we can do. Can the witnesses
    talk about--I know we are going to talk about what to do after
    the fact, but what kind of strategies can we do before the fact
    to actually reduce the incidence of campus sexual assault?
        Ms. Maatz. That is an excellent question, Mr. Scott. Thank
    you so much for asking it.
        You know, working on relationships and students'
    understanding of safe relationships is key, and doing that
    before they get to college is also important. AAUW's research
    shows that sexual harassment and bullying is prevalent in K-12
    schools starting really, quite frankly, with preschool. So
    having conversations about safe relationships, having good
    curriculum about how to talk about those issues, and also
    encouraging students to look at themselves as someone who can
    help, you know, to look at the bystander intervention kinds of
    models have been really successful.
        The CDC studies have shown that when you really do
    relationship education and an emphasis on safe and healthy
    relationships you do start to erode campus sexual assault.
        So you do need to start young. It needs to be consistent.
    It needs to be ongoing. And it is something that we need to get
    behind.
        Mr. Scott. Are you familiar with Senator Kaine's bill?
        Ms. Maatz. I am familiar with Senator Kaine's bill.
        Mr. Scott. Can you make a comment about it?
        Ms. Maatz. It is a bill that AAUW supports. I think it is
    smart to look at this kind of curriculum across the country.
        And right now, since we know we have this epidemic of
    campus sexual assault, starting young is great. Doing it in
    high school is fine, but I also would submit you probably need
    to start in elementary school.
        Ms. Rue. Let me just add briefly that the research is
    inconclusive because rarely do we have the opportunity to do
    random assignment of subject to group, which is where you can
    get really rigorous testing. So more support for research in
    this area would really be useful. We have what we know and what
    CDC calls ``promising practices,'' but we don't actually have
    proven effectiveness.
        Mr. Scott. Thank you, Madam Chair.
        Chairwoman Foxx. Thank you very much, Mr. Scott.
        Dr. Rue, you mentioned the importance of prevention and
    education efforts on the campus in reducing incidents of sexual
    assault. Do you have written evaluations that you can provide
    us on the results of those efforts? And could you give us just
    a thumbnail of the greatest--what have had the greatest impact
    on the campus safety climate, from what you have experienced?
        Ms. Rue. Yes, ma'am. Thank you for the question.
        The two most promising practices are bystander intervention
    training and social norms training.
        In bystander intervention training, people learn the steps
    it takes to disrupt or interrupt what looks like it is going to
    be problematic behavior. The truth is peers are often able to
    do this, but they need the courage to essentially change the
    code, if you will, of what is agreed upon as appropriate social
    behavior.
        And this has been effective. Again, we haven't had studies
    that have shown random assignment of subject to group so we
    call it a promising practice.
        The other practice is the social norms practice, and what
    social norms does is look at the gap between what people think
    and what people think other people think. And it really
    contributes to things such as rape myth.
        And so when you can ask, through research, ``Does a woman
    drinking too much suggest that she wants to have sex?'' you can
    actually measure that and you will find that people think other
    people think that but they don't think that themselves. And so
    you can go back to your campus with that gap and combat those
    norms that are actually creating a hostile environment.
        Chairwoman Foxx. Thank you very much.
        Mr. Cohn, in your testimony you make the important point
    that rape is a crime and should be treated as such. How could
    using what you call amateur systems on campus lead to injustice
    for both victims and accused students?
        Mr. Cohn. Thank you for the question, Chairwoman Foxx.
        The primary way that--the way the status quo works harms
    both the accused students and the complainants is that we get
    unreliable findings because the people adjudicating cases don't
    have the right tools to do it. The same people who would be
    fine on juries are doing--you have deans of physics
    departments, English professors, and sophomores trying to
    figure out if a rape occurred.
        And they are doing without forensic evidence, they are
    doing it without the subpoena power, without the ability to put
    witnesses under oath. They are doing it without rules of
    evidence to make sure that relevant information is included and
    irrelevant is excluded. The idea that they are going to get it
    right consistently with all of those limitations is a fantasy.
        So the primary thing that we can do is make sure that we
    ask people to play a role that they are competent to fulfill,
    one that takes advantage of the skills and what they bring to
    the table, and work together. And that is what I mean when I
    say that amateurism affects injustices.
        Chairwoman Foxx. Thank you very much.
        Ms. Scaduto, you mentioned that you were a negotiator in
    the rule-making process for implementation for VAWA. Could you
    tell us a little bit more about that experience and how you
    believe the opportunity for stakeholders to contribute to the
    development of the regulations resulted in clearer and more
    transparent expectations for schools, especially in contrast to
    sub-regulatory guidance?
        Ms. Scaduto. Happy to do so, Chairwoman Foxx.
        Through the negotiated rule-making there was a group of I
    believe 14--28 with our alternates, who were very much a part
    of the process--and we represented divergent points of views,
    every view, however, being equally committed to dealing with
    the issue of sexual violence.
        We had higher education administrators, like Dr. Rue, at
    the table; we had counsel, like me; we had security officers
    from higher ed; we had survivors and victims of rape, male and
    female both represented; we had advocacy groups at the table.
    And we did very hard work.
        We came together over a 3-month period and we looked at
    proposed language proffered by the Department of Education, and
    we had the opportunity to talk about whether we should drill
    down in a particular area and impose a single standard on a
    particular issue and talk about, as Dr. Rue mentioned earlier,
    the fact that we need language which is fluid because colleges
    and universities are so different across this country: large,
    small, public, private, online, commuter--all those different
    issues.
        And it was very difficult work, but I am confident that the
    product we ended up with at the end of that process was a
    better reflection of the wider community in rules and
    regulations that work on college campuses than without it.
        Chairwoman Foxx. Thank you very much.
        Mr. Hinojosa, I recognize you for 5 minutes.
        Mr. Hinojosa. Thank you.
        My first question is to Ms. Lisa Maatz.
        You state in your statement that you read to us that
    current law requires schools to respond to campus sexual
    assault because a student's civil rights are on the line. You
    also said that a school's civil rights investigation and any
    law enforcement criminal investigation represent parallel and
    equally necessary paths.
        Can you please explain the parallel tracks of Title IX
    enforcement interact as compared with criminal investigations?
    And why is it so important for the victim to be able to decide
    whether he or she wants to pursue a criminal investigation as
    opposed to campus disciplinary process?
        Ms. Maatz. Well, I think--thank you very much for the
    question. I think there is great confusion between what a
    criminal process looks like and what the civil rights process
    on a college campus is supposed to look like.
        College campuses are not supposed to be nor would we expect
    them to be enforcing criminal law. What they are doing is
    looking at civil rights: Has Title IX been violated? Has a
    woman in this case been--has her education been impacted and
    therefore she can't, obviously, take advantage of her civil
    right to a sex discrimination-free education?
        So it is really in that sense--they are parallel tracks,
    but they are very different. Schools can't send people to jail.
    You know, schools really look at enforcing student code of
    conduct.
        And, you know, before when we were talking about the notion
    of kind of amateur courts, I do take exception to that in many
    respects on behalf of schools, because they have been dealing
    with - and enforcing their student code of conduct for decades,
    in some issues for hundreds of years. So the reality is, they
    know how to do that.
        Where there is confusion, I think, is that when it comes to
    campus sexual assault, schools are supposed to be dealing with
    the civil rights impact not just on that individual student but
    how it impacts the campus as a whole, and that is different
    than the criminal proceedings that we have talked about.
        Mr. Hinojosa. Thank you.
        Ms. Dana Scaduto, you said that colleges and universities
    are very concerned that despite their best efforts to follow
    applicable laws and guidance, achieving full compliance is not
    possible. And you also said proposing--creating safe harbors
    where colleges are not held liable under Title IX if they can
    show good-faith efforts to meet the requirements of conflicting
    provisions.
        Can you help me understand how creating such a safe haven
    would reduce and help prevent instances of campus sexual
    assault?
        Ms. Scaduto. Certainly, Mr. Hinojosa. It is my privilege to
    do so.
        Let's take the example--there are a couple of examples I
    can give you. If you take the OCR guidance, in it we are
    supposed to advise a victim of her right to report. Clery uses
    the language that we have to advise the victim of her right not
    to report.
        Is there an intended difference between those? And when you
    put those--you take that and you put it up against a state law,
    where, if you take Clery and you have to advise an individual
    of her right not to report but there is a state law that
    mandates reporting of felonies by the institution, have we
    created a conflict between--in executing on a plan that
    everyone wants the same outcome but we have this swirl of
    differences and we are not quite sure how to comply with all of
    them?
        And in our best efforts to do so, if we err by reporting
    under the state law when we have Clery telling us we have to
    report--advise a woman of her right--or a victim of her right
    not to report, provide us with protection and support that if,
    in our best efforts to comply, we miss the mark, that we won't
    be held accountable for penalties or agency action. That is
    just one example.
        Mr. Hinojosa. Thank you.
        Mr. Cohn, time is running out and as I heard your
    presentation, brought back memories of what is approximately 20
    years of service on this committee. Congresswoman Patsy Mink,
    from Hawaii, led a group of members of Congress to focus on
    Title IX and there was a mindset throughout the country,
    especially from some certain states, that wanted--that Title IX
    removed or weakened so that it wouldn't be a problem for them,
    their mindset that women were not supposed to have the same
    opportunities in sports.
        Now that we are dealing with this, you talk about allowing
    schools to set a higher burden of proof in these proceedings
    could make it more difficult to punish offenders. How does that
    contribute to making campuses safer?
        Mr. Cohn. Thank you, Congressman Hinojosa, for the
    question.
        I think reliability in outcomes makes campuses safer. And
    when you reduce the amount of certainty that fact-finders need
    to hold without providing them the tools to reach the fact-
    finding in the first place, you are not really making campuses
    safer.
        At the end of the day, don't forget, someone who has been
    expelled from a campus is not removed from society. They are
    still free to walk the streets. The campus isn't actually safer
    either, even with the expulsion.
        The truth of the matter is that schools need to not be
    indifferent to claims, need to make sure that they can provide
    the kind of services necessary to make sure that complainants
    can get an education the next day. And that isn't tied
    necessary to being a fact-finder.
        Mr. Hinojosa. Well, I want to go on record that I disagree
    with you because the list of universities throughout the
    country with violations that are under investigation right now
    has doubled, tripled, and quadrupled. So I think that we really
    in the Congress need to address this, and be very, very
    strong--
        Chairwoman Foxx. The ranking member's time has expired.
        Mr. Hinojosa. I yield back.
        Chairwoman Foxx. Dr. Roe, you are recognized.
        Mr. Roe. Thank you.
        And thank you, for the panel. This is an incredibly
    complicated, difficult situation, and I think probably I am the
    only one sitting on the dais, except perhaps Dr. Heck, who has
    examined women for sexual assault and has testified in court.
    It is my lifelong job as an obstetrician/gynecologist. It is an
    incredibly difficult, complicated issue you all are dealing
    with.
        And, Ms. Scaduto, you brought out a couple of points that
    hit me. Requirements we have from the state--if I examine a
    woman in the emergency room, I break state law if I don't
    report that if this is a student, and they are in conflict. And
    I think it puts a great pressure, I mean, on you to know if you
    are doing the right thing.
        And I know that--and I am going to ask Mr. Cohn in a minute
    about this--we certainly want to protect the rights of each
    one, but I can tell you, I have dealt with patients over
    decades who have dealt with the consequences of sexual assault,
    and how you deal with it and--I mean, it changes--it is life-
    changing, and I mean forever life-changing. So how you deal
    with this is incredibly important, and I think the start you
    all made is that early on is education is absolutely the key to
    prevention.
        And I know, Dr. Rue, you mentioned a couple of things that
    really intrigued me about how you prevent that. And the results
    in--I mean, the incidence is lowered greatly.
        I don't know whether the incidence is greater now or just
    the reporting is greater. I have a feeling it is just the
    reporting is greater. I think the crime has been there all
    along, and I think it just has been grossly underreported.
        So a couple things that I would like to know is--and I will
    start, Mr. Cohn, with you, is that you are absolutely right. To
    gather this information--I have done it meticulously before--is
    very difficult to do to protect the rights of everybody
    involved.
        And I know, Ms. Maatz, you mentioned we are dealing with a
    civil rights issue and a criminal issue.
        When does a school--when do you determine to turn this over
    to the police as a criminal--because it is a criminal act?
        Mr. Cohn. Well, I think that is really one of the key
    questions in this debate is what is the appropriate role of law
    enforcement here? And I am glad you zoned in on it.
        At the end of the day, mandatory reporting doesn't require
    a complainant to cooperate with an investigation. It does,
    however, require that the law enforcement is aware of it so
    they can at least reach out and offer the services they
    provide.
        One thing that we know--and it is a fact--is that you have
    only 72 hours to get a rape kit done; you have only 48 hours to
    get blood collected that can show whether someone was drugged
    against their will or perhaps if they were so intoxicated they
    couldn't possibly have consented. Once that timeframe is
    elapsed, it is--the window is gone to have that physical
    evidence help a claim.
        FIRE primarily believes that everyone will be helped by
    getting the right professionals plugged in as quickly as
    possible. That is the way to build trust with the--with law
    enforcement is to make sure that they get the information as
    fast as possible when they can take the best and strongest
    actions on behalf of victims.
        It will also help the falsely accused to have information
    recorded quickly, too. It will help everyone.
        Mr. Roe. Of course, we have seen over time where with new
    DNA evidence and new evidentiary things we have had that--where
    people have been falsely accused, and obviously you want due
    process for everybody.
        Dr. Rue, to you, at Wake Forest University, what resources
    do you have for a student, either male or female, after this
    has occurred? Because I can tell you, as a physician it is
    absolutely critical.
        Ms. Rue. Thank you for your question, Representative Roe.
        I agree with you that it is a life-changing event. I have
    sat with many, many students in that process, both men and
    women, quite honestly, and it is devastating.
        We do have 24/7 on-call confidential advisors that are
    available to go wherever the student is, if the student is in
    the emergency room or if the student has gone to student
    health. We have 24/7 student health and we have 24/7 student
    EMTs on campus, and so we have got a nice safety net right
    there.
        The most critical link is our confidential advisor. This is
    the person that reaches out and establishes trust.
        If the first questions someone is asked by their friends
    are about their own behavior they are likely to completely shut
    down. And so if we can get that person as fast as possible to
    our confidential advisor, who is trauma-informed in her
    counseling techniques and who can create that bond, and then
    accompany her or him throughout whatever processes, whether it
    be sitting through a police investigation, whether it be going
    to the housing department to make room changes or to the
    academic advisor. And that bond is the most important bond, and
    it is the most important role on campuses today.
        Mr. Roe. My time is expired, but one other thing that I
    want to--you all to think about is how can we streamline this
    so that you are not checking boxes but taking care of students.
    That is where the resources need to be.
        And I see it all the time where you--all this confab of
    things you have to do takes away from the real--which is taking
    care of the student and the patient.
        I yield back.
        Ms. Rue. I appreciate your commitment.
        Chairwoman Foxx. Thank you, Dr. Roe.
        Dr. Adams, I would like to recognize you for 5 minutes.
        Ms. Adams. Thank you very much, Chairman Foxx, Ranking
    Member Hinojosa, for holding this important meeting.
        My thanks, also, to the witnesses for your testimony, and
    special shout-out to Dr. Rue, from Wake Forest, which is
    partially in my district.
        Campus sexual assault is a very serious issue. It affects
    entirely too many of our students. And to be clear, even one
    student is too many.
        And so while I believe prevention through education is the
    best way to combat this growing problem, and I appreciate your
    speaking to that, we must still deal with the incidents that
    occur. Unfortunately, that is nearly impossible to do with all
    the differing ways in which institutions of higher education
    and law enforcement agencies handle sexual assault, and it is
    becoming more complicated with efforts to weaken Title IX.
        Although North Carolina has--does not have a significant
    number of incidents currently open, the case open at the
    University of North Carolina Chapel Hill is particularly
    disturbing, and I am disappointed that there is a case that is
    open in my city of Greensboro, at the University of--at
    Guilford College.
        I spent 40 years as a faculty member on the campus, Bennett
    College, a small women's college, primarily African-American
    women, in Greensboro, and I had ongoing concerns then and I
    still do. And there are many things that I could talk about
    surrounding sexual assault, but I want to hone in just for a
    moment on the effects of women of color.
        According to the Centers for Disease Control, approximately
    34 percent of multi-racial women, 27 percent of Alaskan Native
    American Indian women, and 22 percent of black women, and 14.6
    percent of Hispanic women are survivors of sexual violence.
        Ms. Scaduto and Dr. Rue, both Dickinson College and Wake
    Forest University are liberal arts institutions with pretty
    good resources, I think. Can each of you speak to your campus
    initiatives that address the need for cultural-specific
    prevention education for your minority students who might be
    dealing with the weight of other issues, like racial
    discrimination and economic disparities?
        Ms. Rue. Yes. Thank you, Representative Adams. I appreciate
    your question.
        We do take our responsibilities to all students very
    seriously and we know one size doesn't fit all. With our
    African-American students, we have a peer mentoring program
    that creates a very tight-knit bond with well-resourced upper-
    class students.
        And we have an increasing number of first-generation
    students--students whose parents didn't attend college. And we
    have the First in the Forest program that really helps those
    students navigate, as well.
        We do try to utilize the best research to understand
    differential impact and also to get within the peer culture,
    because that is where these things occur. So the use of peer
    educators is our most important tool.
        Ms. Scaduto. All I can say is the programs at Dickinson are
    similar. We have specialized training for African-American men
    in healthy choices and healthy habits, called MANdatory. We do
    many of the same things that Dr. Rue is doing.
        There is no question but that we can do more in cultural-
    specific impact, but right now we are putting in place--the
    issue is so prevalent that right now the issue is getting all
    of our students trained. It is using things like Green Dot and
    healthy relationships and sexuality training on our campuses
    for all students.
        And I do imagine that as time passes we will become more
    proficient at looking at specific communities and how they are
    impacted.
        Ms. Adams. Thank you both.
        Ms. Maatz, within the same vein, do you have any
    recommendations for the best way to ensure historically black
    colleges and universities who have less resources, less staff,
    are able to provide comprehensive prevention and response?
        Ms. Maatz. Well, number one, I would always encourage
    colleges and universities to not reinvent the wheel. There are
    local community services often--rape crisis hotlines, domestic
    violence shelters--that can help with prevention programs and
    potentially being these confidential advisors, which is a great
    best practice.
        The other thing I would say, though, specific to women of
    color is that we need to be really sensitive especially about
    mandatory reporting. We know that there are issues in terms of
    gender bias in policing and racial bias in policing, and for
    women of color, to mandate that they report to law enforcement
    is a great way to ensure that they don't report to anybody,
    that they don't get any help, that they don't get any support.
        So we need to be culturally competent about that and
    sensitive, and I think that it is one of the reasons, quite
    frankly AAUW has sent a letter to the Department of Justice
    asking them to create new guidance in gender bias in policing
    to deal with some of the different things that women of color
    are facing.
        Ms. Adams. Thank you very much. I am out of time.
        Madam Chair, thanks very much.
        Chairwoman Foxx. Thank you, Dr. Adams.
        Mr. Guthrie, you are recognized for 5 minutes.
        Mr. Guthrie. Thank you all for being here. I appreciate it.
    It is important for us to move forward on this as we work on
    higher ed reform.
        I am in this situation. I had a daughter just graduate from
    college, but I have a son in college and before I came here was
    planning our college tour for my senior in high school, my
    little girl, and so when we leave--drop them off those days
    that crush us all; we leave them on campus and drive away.
        We want to make sure that we are doing everything we can
    here and you are doing everything you can to make sure they are
    in a safe place. And so this information is going to be good
    for us.
        And you look at, like, harmonizing requirements. I have
    learned--I was in state senate and now here--that when there is
    a requirement added or things done it is because something
    happened. And so we are reacting to something that happened and
    trying to prevent it in moving forward, and sometimes you get
    different bills that happen at different times and so you get
    different requirements.
        And it should be an opportunity for us all to sit down
    during the higher ed reform and say, ``What is this report
    trying to accomplish and what is it trying to prevent, and how
    can we harmonize them and do them together?'' So that is
    important to do.
        And, Ms. Scaduto, you talked in your written testimony, I
    believe, about some of the requirements that are established by
    the administration that don't necessarily--or it is difficult
    to work around--with nontraditional campuses, nontraditional
    students.
        Would you care to elaborate on that and talk about how that
    is difficult too? We need a system to take care of that, but we
    want to see how the particular requirements make it difficult
    to comply.
        Ms. Scaduto. Higher education would greatly appreciate
    frameworks rather than one--it goes to what Dr. Rue said
    earlier, one-size-fits-all. Let's take, for example, the
    differences in how--in training or education of different
    constituencies on various campuses.
        Let's just take, for example, if it were determined by good
    research that having students in a chair to receive training on
    sexual--on violence prevention is the best method, but you are
    a commuter campus, you are a community college, or your
    students don't live there, you don't have the opportunities to
    reach them outside the classroom, as you do on a residential
    campus. If you are an online school--and there was an online
    school represented in negotiated rule-making, and her
    perspective kept popping up, and I have to admit, I was like,
    ``Oh, I hadn't thought about that.''
        We need standards for reaching them with--rather than a--
    other than bright-line test. Even the question of what is a
    student. If you are an--if a student is taking one class as an
    adult learner who is taking one class, is that part of the
    cohort that raises the risk of sexual violence on your campus,
    or is it the 18-to 22-year-olds who live in residence?
        These are all complexities about the differences in who we
    are as institutions and how we most effectively reach those who
    need the information. If we are going to engage in cultural
    change and cultural shift, we have to have the flexibility on
    the various campuses across this country to reach those
    different audiences in different ways.
        Mr. Guthrie. And, Dr. Rue, I was going to ask you to
    elaborate more on your prevention, because that is where we
    are--want this--we would love to--we want to get to zero. We
    know we have to have systems because we are not at zero, but
    elaborate on your preventions that you were--you mentioned
    earlier, and then the ones that you think are most effective to
    students.
        Ms. Rue. Right. I am going to turn to some work done by the
    Centers for Disease Control on this, and they have nine
    principles of effective sexual misconduct prevention programs.
        The first is that it is comprehensive--it is multiple
    methods, not a one-shot deal, with varied teaching strategies.
    We know that people learn differently. Some learn through
    active engagement, others learn more theoretically, others more
    visually.
        Sufficient dosage; opportunity over time to deal with these
    issues; theory-driven, they have a foundation in theory; that
    they foster positive relationships--they are not focused on
    what not to do, but instead, what to do; that their time to
    developmentally appropriately--if you are just getting ready to
    graduate versus if you are just arriving, those developmental
    needs are different; that they are socially, culturally
    relevant, as Representative Adams has suggested, that we
    understand the different backgrounds that students bring to us;
    and that there is an outcome evaluation as well as well-trained
    staff.
        So those are--that is what the CDC had--has. We strive for
    all of those.
        I will say that without getting into the curriculum it is
    difficult to deliver over long periods of time. We are usually
    working within a voluntary workshop format for students in our
    prevention programs. So I would say curricular innovations in
    this area would be very welcome.
        Mr. Guthrie. Thanks.
        And I will just conclude with the day that you drop them
    off and you drive off campus, you are--like I said, you are
    crushed because you are--they are leaving home; but you leave
    them, I mean, you are also excited for them, and you want them
    to have the experience of a lifetime, and you want it to be
    safe and secure. So thank you so much for that.
        And I yield back.
        Chairwoman Foxx. Thank you, Mr. Guthrie.
        Mrs. Davis, you are recognized for 5 minutes.
        Mrs. Davis. Thank you, Madam Chair.
        And thank you all for being here today. I appreciate that.
        You know, we--before I--we dealt with a lot of campus
    issues around sexual violence--and I understand that we have
    been--campuses have been dealing with them for many years, but
    in terms of the visibility and the issue, it followed, to a
    certain extent, looking at sexual assault in the military. And
    we introduced a number of bills to try and get at this issue.
    Not so easy, and I have a few colleagues here from the Armed
    Services Committee that know and understand that.
        One of the things that we have been talking about here,
    which was really critical, was the support for victims, men and
    women, to have access to--you mentioned a trauma-informed, but
    a highly professional individual who really can help victims
    navigate the system and provide the kind of options available
    to them that they have, whether it is, you know, reporting or
    non-reporting and what that means, actually, for them.
        So I was just wondering, in terms of what you have seen in
    the Campus--the Safe Campus Act or other acts, are there some
    that you think actually would make it difficult for a student
    who chooses not to report to have those services--to receive
    those services? Are there bills that actually do tie the
    opportunity for victims to be informed by someone who really is
    highly trained in this area?
        And quite frankly, I am not sure that we are there yet, in
    terms of the ``highly trained,'' but at least we know where we
    have to go with it.
        Anybody want to--do you see that? Are we--
        Mr. Cohn. If I can respond real quickly, Congresswoman. The
    Safe Campus Act has its mandatory reporting provision that
    would limit a campus' response if a student doesn't choose to
    report, and FIRE has urged Congress to amend that provision to
    leave all of the non-punitive measures still on the tables--the
    ones that you identified that shouldn't hinge on that student's
    decision.
        But we do think it is generally a good idea to have
    campuses make sure that police are investigating. So we think
    it is a good idea to limit the punitive responses the school
    can make.
        Mrs. Davis. Yes.
        Ms. Rue. I am going to respectfully disagree--
        Mrs. Davis. But, Dr. Rue, yes--
        Ms. Rue. Yes.
        Mrs. Davis.--Rue?
        Ms. Rue. We know that, again, that ability to navigate to
    that confidential victim support person is the most critical
    thing. And if universities are mandated to report criminally,
    we know it is going to have a chilling effect on people even
    getting to the very first resource to help.
        The truth is, people do--most students do not want to go
    through a law enforcement interview. Our experience teaches us
    that cops look for violence, for signs of struggle for weapons;
    they don't understand the nuance of campus sexual assault; they
    tend to minimize--if you have read the book ``Missoula'' it
    provides a beautiful picture of what happens when individuals
    report in that setting: the kinds of questions they are asked,
    the kind of doubt that is cast upon them. And again, it has a
    chilling effect and it causes many to shut down, so I can't
    support it.
        Mrs. Davis. And, Ms. Maatz, I--and addressing, as well, the
    harmonizing issue that we--that we mentioned earlier in terms
    of how universities, how institutions deal with this.
        Ms. Maatz. Well, I think the mandatory reporting absolutely
    has a chilling effect. I think if you are looking for a way to
    not have students report not only just to the school, but also
    to law enforcement, make it mandatory.
        Part of what we are trying to do with Title IX and the
    Clery Act is create a environment on campus that supports
    reporting. If it is going to be supportive to students, it
    needs to actually be helpful to them. And that kind of
    reporting not only helps that individual student but sets the
    tone on campus, in terms of creating a safe--
        Mrs. Davis. I think what is important about that, as well,
    and the SOS Act that I have authored along with Senator Boxer
    basically has, I think, actually brought about a number of
    special advocates on campuses in 30--in the University of
    California system and others, and I think you have mentioned
    many schools have them.
        Ms. Maatz. Thank you for that.
        Mrs. Davis. I think the real key is the level of training
    that they have.
        But more than that, I think what we have seen in the
    military system, as well, is the fact that people generally
    become more knowledgeable about this process, which has been a
    very well-kept secret in the past and is--I think has
    contributed to the fact that it is a fearful system, and that
    is what we are trying to get away from.
        Ms. Rue. And thanks to your work on the military, our ROTC
    programs are among our best partners now. They are part of our
    sexual misconduct working group, helping in lockstep with their
    training resources, and it is a great partnership.
        Mrs. Davis. Thank you.
        Thank you, Madam Chair.
        Chairwoman Foxx. Thank you very much, Mrs. Davis.
        Dr. Heck, you are recognized for 5 minutes.
        Mr. Heck. Thank you, Madam Chair.
        I thank you all for being here and discussing this
    critically important topic.
        Like my colleague, the gentlelady from California, I too
    was struck by what I thought was a lot of similarities between
    what you are experiencing on campuses and what we are
    experiencing within the military, which in and of itself is
    experiencing an epidemic of military sexual assault.
        And, both Dr. Rue and Ms. Scaduto, in your comments you
    talked about things that are very similar: not straightforward
    or easy to resolve; do not involve force or attacks by
    strangers but between individuals who are acquainted; questions
    about effective consent; word-on-word conflicts may not be
    reported for days, weeks, months; and where the survivor has
    the right to choose a path within the wake of an incident, some
    reporting on campus or some to law enforcement, similar to the
    military restricted and unrestricted reports, where in a
    restricted report it is not referred to law enforcement but
    allows the victim to partake of the supportive services
    necessary to help them heal.
        Question I have is, one, amongst anybody, has there been
    any review of what perhaps might be best practices developed
    within the military, realizing that we are not fully there yet
    either, but any best practices that might have been implemented
    in the military's response to this epidemic of sexual assault
    that may have application into what is being done on campuses?
        Ms. Rue. I would have to say I need to learn more about
    what they have done, and I am eager to do so. Thank you for
    that referral.
        Ms. Maatz. I think, Dr. Heck, one of the things that I
    would say is that we have seen an increase in the reporting in
    the military, and part of the reason for that is because the
    conversation is being had, because there is now a top-down as
    well as a bottom-up kind of conversation being had; and there
    is training going on, and that makes all the difference in the
    world. The prevention is key, and I think those are all good
    lessons that we can use for campus sexual assault.
        Mr. Heck. Thank you.
        Mr. Cohn. I don't know enough about the military practice
    to weigh in on there. What I can say is that one interesting
    parallel is that last year we heard a lot of chatter about how
    the military tribunals should not be adjudicating these matters
    because of the potential for bias there and that instead it
    should be removed to civil courts--essentially the same
    argument I have been making to you today, which is that
    campuses maybe shouldn't be adjudicating the facts because of
    the potential for bias and conflicts of interest instead, and
    that we should be relying on professionals and courts.
        Mr. Heck. Thank you.
        A question for my own edification: So if a victim on a
    campus chooses not to report to law enforcement but comes to
    the campus authorities to receive the supportive services, does
    that automatically then result in that case going forward for a
    disciplinary hearing on a college campus?
        Ms. Scaduto. No, it does not. It is a very insightful
    question.
        The best guidance we get on dealing effectively with
    survivors of sexual assault tells us that they need the control
    to decide how to go--if they want to go forward, when they want
    to go forward, and how they want to go forward. Although the
    guidance is inconsistent, we get guidance both from OCR and
    under the VAWA regs about--that mandate that we give them their
    options and tell them.
        And it is funny, as I have listened to the conversation
    from Congresswoman Davis and others about the use of report, it
    is banging around in my head because we use report very
    specifically on campuses, and a report means someone coming
    forward and telling someone. That is a report, and that is it
    at its essence.
        And if they do that then we wrap our arms around them as a
    community and make sure that they get the resources they want,
    they know their options, and if they want confidential
    reporting, we can direct them in that.
        But if they come to us and they tell us, that report does
    not move forward under most circumstances--whether it is
    internally through our conduct processes, or externally through
    law enforcement, or both--without their consent and
    participation. There are exceptions, as you can expect. I mean,
    you are lawmakers; you know there are exceptions.
        If we have an ongoing threat to our community we might have
    to move forward without the consent of the person who brought
    the report forward, and that also is an example of why safe
    harbors are important. If we are being guided by the wishes of
    the victim but we have an ongoing threat on our campus and we
    make that decision to move forward, being protected from action
    by administrative agencies would be helpful.
        Mr. Heck. Great. So as a father of three, one who--a
    daughter who is a graduate of college, a daughter who is a
    junior, and a son who just started his freshman year, I thank
    you all for what you are doing to try--trying to make our
    campuses a safer place.
        Thank you, Madam Chair. I yield back.
        Chairwoman Foxx. Thank you, Dr. Heck.
        Mr. DeSaulnier, you are next.
        Mr. DeSaulnier. Thank you, Madam Chair. And I do want to
    say, consistent with some of my colleagues, first of all, thank
    you for having the hearing. I think the hearing helps to draw
    attention to what is, I feel, is of real urgency, and I think
    everyone else does. I hear a great commonality, in terms of our
    desire to take effective action, and we are struggling what
    that is.
        And also, as a parent who has dropped two kids off at
    college, the rite of passage that all of us have shared and the
    conveyance of that trust that we put in the institutions that
    we leave them at, and the expectation that these wonderful
    institutions will not just education them well but provide a
    culture where they feel safe and that they aren't put in the
    situation of either being a victim or a bystander.
        So my analogy--and I appreciate the last two comments about
    the analogy to the military--a lot of this conversation reminds
    me of the early 1990s when I was in local government and the
    Clinton administration was bringing up domestic violence. And a
    lot of the conversations we have had remind me very
    specifically of the challenges. And even though everybody
    wanted to stop it, we have got to be careful of our approaches
    because we are all subject to subjective opinions about the
    relationships between men and women.
        So, to Ms. Maatz, or maybe Dr. Rue or anyone else, CDC,
    when they look at the history of, for instance, domestic
    violence--and no analogy is perfect; I understand they are--but
    we know a lot now from the 20 years since 1994, when the
    Federal Government took a leadership role and passed the
    Violence Against Women Act that was just recently reauthorized.
    So not dissimilar, certainly.
        And I remember talking to mandated reporters then,
    particularly educators in high school, who struggled with many
    of the same issues that you do, although because they were in
    the community I think they didn't have some of the--maybe the
    cultural or professional insular--not insular; that is a poor
    choice of words. Maybe you understand what I am getting at--the
    uniqueness of academia at a college campus.
        Ms. Maatz. Right. Congressman, I share your sense of a
    flashback in many respects. When I was the executive director
    of Turning Point, which is a domestic violence shelter and
    program in Ohio, it was during the O.J. Simpson trial; it was
    during the first efforts to pass the Violence Against Women
    Act. And so it felt like there was kind of a national teach-in
    on domestic violence and people were talking about it.
        And I see that bright spotlight today on campus sexual
    assault. I think many of the same things are happening. It is
    being very much driven by survivors and advocates who feel the
    time has come. And I think that also is very similar.
        I think we can take some lessons from that. We have a lot
    more data. After 20 years of the Violence Against Women Act, we
    have a lot more data about how violence occurs; we have
    police--law enforcement that are a lot more--have a lot more
    data and a lot more experience in dealing with it, prosecutors
    as well.
        But I also would continue to stress that when we are
    talking about campus sexual assault we want to be mindful of
    the fact that we are dealing with that as a civil rights issue
    and that we need to be really concerned about the access to an
    education that does not contain sex discrimination. We know too
    often that survivors will have problems.
        Oftentimes they will drop out. That obviously is an
    interference with their education. Some of them, because of
    some of the post-traumatic stress and other issues that they
    have had, their grades go down, and then they lose their
    scholarships, and then they are the ones who aren't on campus.
        So it is something that we need to be mindful of. There is
    the criminal element that we need to talk about and need to
    harmonize, but at the same time, they are separate and distinct
    and equally necessary paths.
        Mr. DeSaulnier. And I appreciate that.
        I will let Dr. Rue respond, as well, because you were
    relating to my initial comments.
        But we know from domestic violence and we know, as your
    comments said, of the causality and the multigenerational
    aspects of this. So the sooner we get the regulations right,
    the better.
        And I would opine, based on that history and others, that
    the Federal Government does have an appropriate role in it.
    Making sure that role is effective I think is what we are all
    talking about.
        Doctor?
        Ms. Rue. I appreciate the earlier representative who
    brought up the issue of earlier education. We sadly know
    through our incoming student surveys that students have already
    been in abusive relationships. They have already had
    relationships that were controlling, that left them with self-
    doubt and unable to stand up for themselves.
        So we do support--and we do understand these as
    multigenerational issues. If students don't have excellent role
    models to look to, where do we find that?
        So we would love Department of Education to engage the K-12
    system in these conversations, as well.
        Mr. DeSaulnier. Thank you.
        Thank you, Madam Chair.
        Chairwoman Foxx. Thank you.
        Mr. Salmon, you are recognized for 5 minutes.
        Mr. Salmon. Thank you.
        My first question is, is there any data out there that we
    can access that would deal with a victim that has initially
    chosen not to report to law enforcement who later regrets that
    and decides they want to report it to law enforcement and they
    want the individual prosecuted? Is there any data on that?
        Mr. Cohn. Congressman Salmon, interestingly enough, there
    is an absence of that data. We don't know, when a prosecutor
    chooses not to bring a case forward, why they made that
    decision all the time. Sometimes it could be because of
    outdated modes of thinking about women and stereotypes, but
    other times it could be because of spoliation of evidence.
        We simply don't track that, and that is a major concern.
    And that is one of the reasons why we think it is so important
    to get the right medical and--
        Mr. Salmon. Well, and I guess that is one of my big
    concerns. I was talking to Dr. Roe, who has dealt with a lot of
    victims and had to examine them and deal with them and court
    proceedings, and a lot of times later on an individual who
    decides they don't want that person prosecuted decides they do.
    And I have these concerns about going to the university or the
    college, and maybe the counselor or advisor leaning on them,
    maybe talking them out of prosecuting because of concern for
    the alleged perpetrator's career or education.
        Whatever the case may be, I worry about the fact that an
    individual who decides initially not to prosecute or not to
    report to the law enforcement, all the forensics is lost and
    then several months later or several years later they decide,
    still within the statute of limitations, ``I want that
    individual prosecuted so they are not going to do that to
    anybody else,'' and then the forensics is not there because it
    was never reported to law enforcement and the people that ended
    up dealing with it didn't have the capability to even put a
    case together in the first place.
        Mr. Cohn. One other critical aspect of mandatory reporting
    is that there is no way to build up more trust with police than
    to work with them. You know, we can't fix a problem--if there
    is a problem in the criminal justice system it needs to be
    tackled directly with the criminal justice system.
        If we are concerned about the chilling effect of having a
    police officer pick up the phone and say to them, ``I heard
    about your complaint. Is there something I can do to help?'' we
    will never get beyond the barrier of improving that system.
    They can only do that through working together with trust.
        And hopefully you will get more prosecutions and more
    convictions, you know, if law enforcement is brought in faster.
        Mr. Salmon. Well, it seems to me that the dialogue here
    today has been much more a focus on helping the victim cope and
    deal, and that is all incredibly important, and to deal with
    the aftermath and go forward. But I don't hear a lot of
    dialogue about justice.
        Mr. Cohn. But that is--
        Mr. Salmon. I don't hear a lot of dialogue about keeping
    evil perpetrators off the streets so they don't do it to
    another girl. I mean, I have two girls that have graduated from
    college too, and I would be livid if some perpetrator who has
    sexually abused numerous girls and they all decided not to
    report, and that kid is still out there, you know, seeking to
    harm other girls and my girl ends up getting harmed, I am going
    to be pretty ticked off that guy is allowed to keep
    perpetrating these crimes.
        Mr. Cohn. Right. And I think one other thing needs to be
    said here about justice.
        People keep saying that this isn't a criminal justice issue
    and that the panel isn't going to send someone to jail. That is
    only partially true.
        The dean isn't going to sentence someone to 20 years in
    jail. That is true. But what is important for you to all hear
    as well is that the transcripts of the hearings are admissible
    in criminal trials and have been admitted across the country.
        A prosecutor can independently decide if they want to click
    ``print'' and use everything that was said against an accused
    student. There are tremendous Fifth Amendment considerations
    here, so justice really requires meaningful due process, which
    I am so glad is part of the conversation--
        Mr. Salmon. Can I just interject, because that was one of
    my other questions. Talk a lot about due process, and that is a
    fundamental right here in the United States for anybody that is
    accused of crimes. Can you tell me the difference between
    ``preponderance of evidence'' and ``beyond a reasonable
    doubt''?
        Mr. Cohn. Sure. The criminal justice system used--
        Mr. Salmon. Because that is very fundamental.
        Mr. Cohn.--``beyond a reasonable doubt,'' which is almost
    near--you know, near certainty. ``Preponderance of the
    evidence'' is 50.01 percent certainty that something was more
    likely to have happened than not. The difference between being
    50.01 percent certain and 49.9 is so minimal it really amounts
    to just which hunch you believe more.
        That is not a problem in civil courts, where there are all
    of the procedural protections that go into play--discovery,
    lawyers, rules of evidence, subpoena power, all of those
    things. But when you ask people without those other tools to
    then just decide who you agree with more, that is where you get
    an injustice. It is when you decouple preponderance from all of
    the other protections.
        Ms. Rue. I am going to have to disagree with that. Quite
    honestly, preponderance is the standard that precludes giving
    presumption for or against either party. It is the most
    equitable. Any other standard has already tipped the scale on
    who to believe.
        Ms. Maatz. It is not only the most equitable; it is also
    the standard that most schools have been using throughout the
    years so that it is not new or different.
        The other part of the preponderance standard is that it is
    what is used when we are talking about, for instance, Title VII
    cases, civil cases that are dealing with these kinds of issues,
    which both have a civil remedy and maybe also could have some
    criminal implications. So the reality is this is something that
    schools understand, that they have been using for a long time,
    and that there is plenty of guidance from the Department of
    Education as to exactly how they should be using it.
        Everything is about being equitable, being fair, and being
    impartial.
        Chairwoman Foxx. Mr. Salmon's time has expired.
        Mr. Jeffries, you are recognized for 5 minutes.
        Mr. Jeffries. Well, thank you, Madam Chair.
        I thank the distinguished ranking member, as well, for his
    leadership, and all of the witnesses for your presence here
    today on such an important topic.
        I want to start my questioning with Mr. Cohn.
        So it is my understanding you advocate for weakening the
    Title IX process in the context of investigating campus sexual
    assault. Is that accurate?
        Mr. Cohn. No. I mean, I wouldn't characterize it as
    weakening Title IX at all. There are so many things that
    schools should be doing morally and legally under Title IX to
    make sure that campuses are safe places. Fact-finding just is
    not really one of the things they are equipped to do well.
        Mr. Jeffries. Okay. But the Title IX process provides for
    campus adjudications, but you contend that those adjudications
    are ill-equipped and therefore that should be abandoned. Is
    that a fair characterization of your position?
        Mr. Cohn. I think that would be a fair characterization.
    There is a long track record of the injustices against both
    accused and complainants when amateurs are handling these
    matters.
        Mr. Jeffries. And you have a greater degree of confidence
    in law enforcement and the criminal justice system to handle
    these--
        Mr. Cohn. Right.
        Mr. Jeffries.--issues. Is that true?
        Mr. Cohn. So there is no doubt that the criminal justice
    system is imperfect, but that is a persuasive argument for
    trying to fix and improve that. I have greater confidence in
    that system because it provides real tools and the actual
    structures that make sure that everyone's rights are taken into
    account.
        And that is so important because I want them to get it
    right. I want to make sure that if there is a rapist on campus
    there are actual consequences that take them off the streets
    and protect people.
        Mr. Jeffries. Right. But you acknowledge, of course, that
    the criminal justice system is imperfect, correct?
        Mr. Cohn. Absolutely.
        Mr. Jeffries. And, you know, there are examples in the
    criminal justice system of people who have been sentenced to
    the death penalty who have subsequently been found to have been
    innocent, true?
        Mr. Cohn. There is no system that is perfect. But the
    criminal justice system is dramatically better at doing this
    than campuses, again, because of the tools that they bring to
    bear--
        Mr. Jeffries. The reason the criminal justice system--
        Mr. Cohn.--one that is awful and one that might not be very
    good.
        Mr. Jeffries. The reason the criminal justice system is
    imperfect--would you agree--is because of just the context of
    human error? And whenever you have got humans involved in the
    absence, perhaps, of adequate training, sensitivity,
    preparation, mistakes will be made.
        Mr. Cohn. Absolutely. But that is why we have so many
    procedural tools in the criminal justice system to try to
    balance that out so individual bias can't control that entire
    process; why we have meaningful appeals afterwards in the
    criminal justice system to provide additional levels of
    protection for error that don't really exist in campuses where
    the appeal often goes to the same person that decided the case,
    which is why the Safe Campus Act includes that provision about
    no commingling of responsibilities.
        Mr. Jeffries. Ms. Maatz, could you comment on, you know,
    whether you think there are meaningful protections and/or
    safeguards in the campus process as it relates to sexual
    assault, outside of the availability of the criminal justice
    system?
        Ms. Maatz. There absolutely are meaningful protections.
    That is the whole point of Title IX; that is the whole point of
    the Clery Act, is to have colleges and universities examine
    those situations when they occur and to respond to them.
        And respectfully, I would say, with Mr. Salmon's bill, if
    you make reporting mandatory to the police you have weakened
    Title IX. End of story. You have already said that it is not
    going to be a parallel process, that it is not going to be an
    equal process in terms of the emphasis.
        So that is a bill, I think, that would weaken Title IX at a
    time, quite frankly, when we need it to be strong and we need
    as much technical assistance as we can get from the Department
    of Education so schools can be the good actors they want to be.
        The reality is within the system they are supposed to have
    prevention training ongoing; they are supposed to be doing
    bystander intervention training ongoing; they are supposed to
    be training the folks who will be hearing these kinds of
    issues. And they have a choice as to what kind of format they
    will use in terms of administration hearing or student code of
    conduct.
        There is flexibility here so that they can match it to
    their school, match it to the circumstances, match it to the--
    to their community, so that they can get a just result. It is
    supposed to be impartial and fair, and I do believe that it is.
        Mr. Jeffries. Thank you.
        I would just note in closing, as my time is about to
    expire, that it does seem to me that to the extent that there
    are imperfections in the context of the campus adjudication
    process that we should mend it not end it and address issues
    perhaps endemic to the fact that human error exists in all
    contexts, just like human error exists in the criminal justice
    context.
        But we shouldn't abandon the entire process, particularly
    given there is a long history in American jurisprudence of
    having a parallel process: the criminal adjudication process,
    the opportunity for people to pursue vindication through the
    civil adjudication process, which, as all of you have pointed
    out, uses a preponderance of the evidence standard, the same
    exact standard used in the campus adjudication process.
        Thank you for your testimony.
        I yield back.
        Chairwoman Foxx. Thank you very much.
        Mr. Allen, you are recognized for 5 minutes.
        Mr. Allen. Thank you, Madam Chair.
        And thank you all for coming and sharing a--back when it--
    course, my kids say I am old-fashioned--back in my day we
    didn't talk about things like this, other than--I will tell you
    this: Growing up, if I ever did anything to harm another--a
    woman, I had to answer to my father. And it was--even my little
    sister. She could hit me and I couldn't hit her back, and that
    is the way I was taught.
        I have three grown daughters, and, course, full disclosure,
    my--I have a son and he attended Wake Forest University, and we
    were on the parents' council there. And I will tell you this:
    They showed a film there to the parents' council that they show
    every freshman at Wake Forest College about the problems with
    alcohol.
        That was the scariest thing I have ever seen in my life.
    And I tell you, any freshman that saw that obviously was
    prepared to know the consequences at least of misbehavior.
        Having three grown daughters, you know, I understand--I
    mean, you--when your kids go off to college, I mean, you just
    pray they will live through the experience, you know, because
    it is just--you know, I mean, they are free to do things that--
    and it--course, I went to college so I remember things I did I
    shouldn't have done.
        But anyway, let me just say this, that would it be
    appropriate--like I said, I knew the consequences of my
    actions. Could colleges and universities--and I know it is very
    difficult to get in Wake Forest, for example. I mean, it is--my
    son thought it was a great honor to attend that university.
        But, I mean, can you read the riot act to these young men
    and just say, ``You know, these are things that if you do you
    won't be here next semester''?
        Dr. Rue, would you--I mean, is that--I mean, looks like to
    me that this is a--the universities should set the pace on this
    and say, ``There are just some things we are not going to put
    up with here--put up here--put up with here at Wake Forest.''
    Can you comment on that?
        Ms. Rue. I would be happy to. I am going to go back to what
    CDC recommends in terms of multiple methods.
        We know that the parental voice is one that students tend
    to tune out at this time of their lives, as they struggle for
    independence and define themselves. What we would say is that--
    and research shows--that if you approach men as brothers and
    boyfriends of people who might be assaulted, what you get is
    their empathy. And empathy is a much more powerful motivator
    than fear of some consequences. And you know, 18-year-olds
    think they are immortal, so--
        Mr. Allen. Right.
        Ms. Rue.--we really--
        Mr. Allen. Bulletproofs is what we call them.
        Ms. Rue. Yes. There you go.
        We believe that engaging men in the prevention effort as
    coaches, as peers, is way more powerful than finger-wagging
    them, and mobilizing their maturity and their ability to care
    for their dear friends who have been assaulted. So treating
    them as potential allies rather than as potential perpetrators
    is way more powerful.
        Mr. Allen. So I was not--when my daughters would date young
    men I would have them in, I would put the fear of God into
    them. That was the wrong idea?
        [Laughter.]
        Ms. Rue. With you, sir, I think it might work.
        [Laughter.]
        Mr. Allen. Well, obviously, you know, we were very
    fortunate, but I have eight grandchildren and three on the way,
    and six of them are little girls. And I have got a 14-year-old,
    and of course, she is entering high school now, so I have had
    my little talk with her and--but, yes, it seems to me that in
    so many cases that young men just don't know exactly right from
    wrong. I mean, they have been in--raised in an environment
    where they just don't have a value system, and then they commit
    a horrible thing and it is like, ``What have I done here?''
    They really don't know until the consequences are forced on
    them.
        So I would please just let, you know, your freshman class
    know--I know that alcohol--you know, they showed us a film in
    high school, the state patrol did, about driving, you know,
    and--of course, we didn't have texting back then or phones back
    then--but basically not paying attention, and the consequences
    of that. And, you know, that stuff, it does register.
        And at least, you know, someone will know, ``Well, gosh, I
    didn't know there was anything wrong with this. I mean, you
    know, this--these are modern times,'' or whatever.
        But anyway, anything else that, Ms. Maatz or Mr. Cohn, you
    would like to comment on how we--you gotta--we gotta stop it.
        Ms. Maatz. Yes.
        Mr. Allen. How do we stop this?
        Ms. Maatz. Well, and I think you have hit on a key point in
    terms of getting men involved. And the reality is, when you are
    doing this kind of programming, men as allies, not accusing,
    pointing fingers.
        ``We know that this happens. Here is what you can do about
    it because you have sisters, because you may have daughters,
    because you have friends that this could--this could impact.''
        That bystander intervention in particular can be
    particularly effective with men because they can distract, they
    can have another conversation.
        And that peer pressure, you know? Never underestimate the
    power of the peer pressure.
        Right now in some respects it is working against us, in
    terms of campus sexual assault, in terms of the norms, in terms
    of the stereotypes. And we need to make it work for us. And I
    think working with men in the process is a great way to do
    that.
        The other thing I would say is that you need to bring in
    other folks from the entire community--not just fraternities
    and athletics departments, but the entire male community--
        Mr. Allen. Save that comment--
        Mr. Cohn. May I have one--
        Chairwoman Foxx. Mr. Cohn, I am going to have to ask you to
    put it in writing. Thank you very much.
        Mr. Cohn. Not a problem.
        Chairwoman Foxx. Mr. Polis, you are recognized.
        Mr. Polis. Thank you.
        Mr. Cohn, is the problem that you have with the campus
    judicial processes, is it the standard or is it what you
    consider to be a flawed implementation of the standards they
    use, or both?
        Mr. Cohn. I think both.
        Mr. Polis. So, now, I mean, it certainly seems reasonable
    that a school, for its own purposes, might want to use a
    preponderance of evidence standard, or even a lower standard,
    perhaps a likelihood standard. I mean, we are talking about a
    private institution, and if I was running one I might say,
    ``Well, you know, even if there is a 20 or a 30 percent chance
    that it happened I wouldn't want a--would want to remove this
    individual.''
        Why shouldn't a private institution, in the interest of
    promoting a safe environment, use an even lower standard than a
    preponderance of evidence, like a reasonable likelihood
    standard?
        Mr. Cohn. Right. Private institutions operate under
    different rules than the public ones because the Constitution
    doesn't necessarily apply. So that question has been answered
    in the public institutions so that due process is paramount and
    due process requires reasonable determinations, which you don't
    get under the even lower standards of preponderance.
        Prior to the Department of Education--
        Mr. Polis. So is the--the lowest standard use under due
    process is preponderance of evidence?
        Mr. Cohn. The lowest standard you can use in a court for
    the fact-finding portion--
        Mr. Polis. Okay.
        Mr. Cohn.--would be preponderance. But that is--
        Mr. Polis. Well, but I think we are talking about, again,
    a--now, so if you are saying--say it would be a public
    university, can they say, ``We want to use a reasonable
    likelihood standard for purposes of expulsion or whether a
    student can reenroll''?
        Mr. Cohn. I don't think that would have any chance of
    satisfying a due process challenge, but I also--
        Mr. Polis. But a preponderance of evidence would. Is that--
        Mr. Cohn. No. I mean, a preponderance of the evidence can
    in some circumstances pass it, and it could fail in others,
    depending on what other procedural protections it is coupled
    with.
        Mr. Polis. Okay.
        Mr. Cohn. When a preponderance of the evidence--
        Mr. Polis. Well, it seems like we ought to provide more of
    a legal framework, then, that allows a reasonable likelihood
    standard or a preponderance of evidence standard. I mean, if
    there are 10 people that have been accused and, you know, under
    a reasonable likelihood standard maybe one or two did it, it
    seems better to get rid of all 10 people.
        We are not talking about depriving them of life or liberty;
    we are talking about their transfer to another university, for
    crying out loud, or they go do something else.
        Mr. Cohn. Well, let's be more--let's be--
        Mr. Polis. I mean, you know, it is--
        Mr. Cohn. Let's be clear about this. That is not what we
    are talking about.
        Mr. Polis. Let me move on. I have a question for Ms. Maatz.
        I want to thank you for your willingness to be here today,
    and I want to address specific concerns of sexual assault
    within the LGBT community. Polls have shown that 46 percent of
    bisexual women have been sexually assaulted and gay men are
    more than 10 times more likely to experience sexual assault
    than heterosexual men; 25 percent of transgender people have
    been assaulted after age 13.
        What steps can schools take to ensure that sexual assault
    response teams and outreach is done in a culturally competent
    way regarding potential victims of sexual assault, including
    those who are sometimes marginalized and who identify as LGBT?
        Ms. Maatz. Right. Those statistics obviously are horrible.
    And they are more likely to be sexually harassed, as well, so
    the whole continuum of violence is something, obviously, that
    we know LGBTQ people experience at a much higher rate.
        The great thing about Title IX, the beauty of it, is that
    it is a gender-neutral law, and so right from the get-go we
    have a tool that we can use for students to file a grievance if
    they would like to seek assistance.
        We have talked about having these advisors that could be
    helpful to students in telling them what their rights are,
    telling them what the process will be, helping them understand
    and talk about whether they want to file official charges or
    not, and all of that needs to be culturally competent and
    understand that sexual assault is not just a heterosexual
    phenomenon; it is something--
        Mr. Polis. And along those lines, I think earlier where we
    were talking about engaging the men, engaging the men, I wanted
    to talk a minute about male victims, as well. What additional
    steps or outreach needs to be done with regard to reporting for
    male victims, for whom there could be a whole other set of
    issues, whether it is heterosexual or homosexual assault--or
    abuse?
        Ms. Maatz. Well, I think there is a variety of things that
    can happen, but I do think in this instance technology is our
    friend: making sure that information that is culturally
    competent on these issues is available to students, that it is
    sent out to them regularly, that is on the website, that is
    available in the student code of conduct, that is in the health
    center, that is in places where gay students socialize and
    congregate. Making sure all of that is available is huge.
        Mr. Polis. And it is important to show that potential
    victims of sexual assault can be of all genders and all sexual
    orientations, as well.
        Ms. Maatz. Absolutely. And so when you are training the
    folks who are going to be dealing with these cases, that has to
    be a huge element of it. It needs to be something that everyone
    understands.
        And, quite frankly, there is wonderful guidance from the
    Department of Education about how Title IX applies specifically
    not only in terms of campus sexual assault, but also harassment
    based on gender identity as well.
        Mr. Polis. Thank you.
        I yield back.
        Chairwoman Foxx. Thank you, Mr. Polis.
        Mr. Messer, you are recognized for 5 minutes.
        Mr. Messer. Thank you, Madam Chair. Thank you for holding
    this very important hearing.
        Thank you, to the witnesses, for being here as well.
        I am the father of a 12 and 11-year-old daughters and an 8-
    year-old son, and so they are not quite to college yet, but
    certainly an issue that means a lot to me. And we have several
    different college campuses on my--in my district, as well.
        You know, to reiterate what many of my colleagues have
    said, when parents send their children off to college they
    deserve to know that they should be safe. And frankly, if even
    one student doesn't feel that way or isn't that way, that is
    one too many.
        I wanted to give Mr. Cohn just a quick chance to respond to
    the comments. Just let me ask this question this way, and what
    can--so, given your testimony, what can colleges and
    universities do to improve their disciplinary processes in an
    effort to be more fair?
        Mr. Cohn. Right. I mean, you know, our Plan A would
    obviously have them not be doing that. But in our Plan B, where
    tomorrow campuses will still be adjudicating these cases, it is
    important to include real, meaningful protections like a right
    to counsel and active assistance of counsel for both parties.
        By the time a school is trying to expel a student, they are
    not in the category of schools that is trying to sweep it under
    the rug, but they might not make the case particularly well. So
    having a lawyer who can speak up for the victim, you know, is
    also helpful to them to make sure the questions they want asked
    gets asked. So that is number one, the no comingling rule, so
    the same person who does the investigation isn't also serving
    as judge, jury, and fact-finder.
        Making sure that you actually have the right to question,
    you know, the--you know, your accuser is important because we
    know that the ability to a confrontation type of clause is what
    helps us find truth. So there are ways that we can make it
    better.
        But I do want to be clear about one last thing: We are not
    talking about just expelling someone so they can go to another
    school. That is not what is going on, because when students get
    expelled it tracks them for the remainder of their life.
        Forget about getting a job with security clearance here in
    this town. Not too many schools are lining up to admit people
    who have been expelled for sexual assault elsewhere.
        And again, the statements are admissible against them in
    criminal court. You are having 18-year-olds talk on the record
    about felonies that can put them in jail in Virginia, you know,
    or Missouri for the remainder of their lives.
        Mr. Messer. Well, reclaiming my time, I mean, I think we
    all recognize that this is a serious, important crime, needs to
    be dealt with, needs to be dealt with in a way that practically
    works. And so kind of opening up to the broader panel, I wanted
    to talk just a second and get some counsel.
        As Congress is working through these issues, of course we
    have to deal--we have to work through the intersection between
    the sort of local law enforcement issues and the campus-based
    disciplinary processes that are in place to deal with student
    discipline, as well, and I think that our legislation needs to
    recognize and accommodate those differences. So could we get
    maybe some testimony on how to work through that?
        Ms. Scaduto. I would be happy to at least pile on, if you
    will, on the issue.
        The goals and objectives of our internal discipline
    processes are different than those of the criminal justice
    system, and I think what has been lost over the last 4.5 years
    in the efforts of government and other interested parties to
    make sure that there is accountability for sexual violence on
    our campuses is the waters are muddied right now about what is
    the purpose of an on-campus disciplinary proceeding?
        I will not call it a judicial proceeding. We are not going
    to find someone guilty of a crime; we are going to be looking
    at conduct in the framework of our campus community and our
    campus culture.
        As Congress moves forward, as OCR moves forward, we need to
    tease out--and I addressed this in my written comments to this
    subcommittee--we need to tease out what is the purpose that you
    see for an on-campus discipline process. I can't speak for Dr.
    Rue, and I would ask her to answer quickly on her own behalf,
    but I believe there are very different purposes.
        And please keep in mind that not every incident of sexual--
    of a violation of our sexual misconduct policies is sexual
    assault. It--
        Mr. Messer. So invite Dr. Rue to also respond?
        Ms. Rue. Yes, certainly.
        Again, we are trying to determine whether or not we have a
    safe and effective educational environment and whether our
    policies have been violated. We are perfectly comfortable with
    individuals choosing both pathways--choosing a criminal justice
    pathway and the university pathway.
        No quarrel. We really believe the student should be able to
    decide that.
        But our goal is to make sure we can remediate our own
    environment if needed through understanding what the risks are,
    and to making sure we are lowering barriers to individuals
    reporting right now, because that is our biggest concern. We
    know that the incidence, established by polls and studies, is
    nowhere near the number of reports, and we would like to close
    that gap, and we don't believe that approach would do so.
        Mr. Messer. Thank you for your testimony.
        Chairwoman Foxx. Thank you. Gentleman's time has expired.
        Ms. Bonamici, you are recognized for 5 minutes.
        Ms. Bonamici. Thank you very much, Chair Foxx and Ranking
    Member Hinojosa. Thank you for having me join your subcommittee
    today.
        This is a topic that has been of import in my state of
    Oregon as well as across the country. We have had a lot of
    conversations about it. And in fact, just last week I had a
    great discussion hosted by Portland State University with our
    Oregon institutions, primarily the Title IX coordinators.
        There are a lot of common themes that we heard today not
    only emphasizing the importance of the issue but the regulatory
    overlap and sometimes conflict--I think you will find a lot of
    support among this committee for clarifying that; but also the
    resources needed to address these issues.
        And I am glad we have had a lot of conversations this
    morning about prevention and the importance of educating
    students about healthy relationships, consent and what that
    means, healthy sexual encounters. And I am glad we are talking
    about that before college--before they get to college.
        Now, there were some conversations about the Teach Safe
    Relationships Act. There is a House version, which I am proud
    to cosponsor, along with a couple of other members of this
    committee. I do invite the other committee members and other
    colleagues to take a look at that and join on because if we are
    preventing, that is the best approach.
        So we know we can take stronger steps not only in
    prevention, we want to make sure that survivors of sexual
    assault have access to resources, services, and privacy on and
    off campus. And I want to emphasize that we really need to have
    policies that encourage not discourage survivors from reporting
    and seeking counseling and assistance.
        Dr. Rue, you discuss the important role of confidential
    advisors, and that is something that we are seeing in more
    institutions.
        Now, earlier this year I wrote a letter to the Department
    of Education about an apparent loophole in FERPA. In some
    circumstances, attorneys for an institution can access
    students' counseling records without a court order.
        The Department of Education's recent draft guidance to
    address this issue is encouraging, and I look forward to
    working with the administration and advocates and colleagues to
    close that loophole and provide survivors with the support and
    assurance of privacy. We want them to be safe and we want them
    to feel safe, and if they have a sense that their records are
    not going to be kept confidential, that may discourage them
    from seeking the support that they need.
        So my home state is working on this issue. Earlier this
    year our governor, Kate Brown, signed legislation making clear
    that conversations between alleged campus assault survivors and
    their advocates are confidential.
        Oregon also passed a bill that requires schools to give
    students who report sexual assaults written notification about
    their rights, legal options, campus services, and the state and
    community resources. And I just want to give a shout-out to
    Brenda Tracy, a brave survivor of a gang rape on a campus
    several years ago, who is now a nurse and an advocate.
        So these policies are important for students not only in
    Oregon but, you know, across the country, and I am really glad
    we are having these conversations today.
        And I want to ask you, Ms. Maatz, we know that more
    institutions are starting to educate students about their
    rights under Title IX. Oregon State University, for example, is
    going to be opening a survivor advocacy center to provide
    confidential and accessible services; they are going to have a
    full-time advocate there.
        So what can we do to expand services like that so more
    students know their rights? And what is the best way to let
    survivors know what resources are available to them on and off
    campus, and also let all students know that, not just
    survivors? They need to know what is there, and the best way to
    do that.
        Ms. Maatz. Right. Well, Title IX absolutely requires
    schools to not only put together an anti-discrimination policy,
    but to also have grievance procedures and, most importantly, to
    publish it in an ongoing way, to publicize it to students, to
    faculty, to staff. And technology can be our friend there, in
    terms of making sure that it is distributed frequently. It
    should also be used, obviously, in any on-campus prevention
    programs, and so forth.
        I would like to get back, truthfully, to the climate
    surveys, because one of the things that I think is overlooked
    with the tool of the climate surveys is that it does give an
    opportunity for students to talk about their experiences. And
    in a climate--
        Ms. Bonamici. And reclaiming my time, I wanted to get to
    that issue, so in the few remaining seconds, could you talk
    about--because there is such a diversity among colleges and
    universities in size and resources, and we want meaningful
    responses. So do you have any suggestions about how we can
    accomplish that in a nationwide climate survey so that we get
    equity in response and distribution and participation?
        Ms. Maatz. Right. Well, we need to actually make sure that
    there are certain questions that all climate surveys ask. I
    think that is very important. The HALT Act would do climate
    surveys, and we need to have that generalizability across the
    country.
        At the same time, each campus can personalize that
    particular climate survey to make sure they are asking
    questions key for their community, key for their constituents.
    And what is good about that is that it not only provides
    information to the school about what they should be doing--what
    they are doing that students don't like, what they are doing
    that could be better--but it lets the students know that the
    university is paying attention, that there are these programs,
    that there are these rights, that there are these protections.
    And that in and of itself is a huge community education program
    as well as a data-finding program that helps to make things
    better.
        Ms. Bonamici. Terrific.
        My time is expired.
        Chairwoman Foxx. Thank you.
        Ms. Bonamici. I yield back. Thank you, Madam Chair.
        Chairwoman Foxx. I understand that Congresswoman Speier
    would like to speak, and I ask unanimous--
        Mr. Hinojosa. I ask unanimous consent that she be allowed
    and permitted to join the committee members for today and
    participate in this important hearing.
        Chairwoman Foxx. Without objection, Congresswoman Speier is
    recognized for 5 minutes.
        Ms. Speier. Thank you very much for allowing me to
    participate today. I apologize for not being here for the
    entire hearing--excuse me. I had a funeral to attend.
        But I want to applaud the committee for recognizing the
    gravity of this issue and the importance of putting a spotlight
    on the issue and coming up with some solutions to dealing with
    it. I am sure you have undertaken a complete review with the
    panelists that are with us today, who are--many of whom are
    experts, about the fact that this is, indeed, a very serious
    problem. Regardless of how you crunch the numbers, the
    incidence is widespread on college campuses and we need to take
    steps to address it.
        Let me say at the outset that I have worked on this issue
    now for over 2 years. I have worked very closely with my
    colleague on the other side of the aisle, Pat Meehan, and we
    have introduced the HALT Act.
        But in doing all of this we have spent time with the Office
    of Civil Rights, and I want to commend them. The OCR within the
    Department of Education in the last couple of years has done an
    outstanding job of creating greater accountability, frankly,
    because we have seen for a very long period of time that the
    Title IX coordinators on most college campuses weren't even
    available to people. They were oftentimes buried in Web sites.
        That all is changing now due in large part to dear
    colleagues letters that have been sent out by OCR and others.
        It is personal to me because I have a daughter who is in
    college, and every college that we visited before she chose the
    college that she is now at, the first question that was asked
    by every parent--the first question when we were at
    orientations was what was the safety of that college for their
    child.
        And this is a bipartisan issue, Madam Chair. I can't tell
    you the number of Republican fathers and Republican mothers who
    have said to me, ``I am really upset that this issue hasn't
    been dealt with appropriately.'' And frankly, sometimes it is
    not until you are six degrees of separation that you appreciate
    how close it can come to you.
        So climate surveys, which we have used very effectively in
    dealing with sexual assault in the military and has been used
    in the military for a long period of time, is something that we
    want to see incorporated by universities. It is a picture that
    helps them appreciate how significant the issue is.
        The HALT Act will also provide for a number of other
    elements. You know, one of the things that Title IX does, it
    has a--it is a heavy hammer. If you aren't providing the kind
    of nondiscrimination in education you can lose all your federal
    funding, which means you lose all the grant money, you lose the
    option for student loans. And so it is a heavy hammer.
        But it is, I think, important to create a system that
    provides some fiscal penalties short of that heavy hammer, and
    the HALT Act would do that.
        It would also increase the violations--the penalties for
    violations to the Clery Act from $35,000 to $100,000 and create
    a private right of action under Clery for students whose
    institutions failed to inform them of safety risks and of their
    rights.
        It provides more money for investigators in the Office of
    Civil Rights by about 5 million and--as an effort to decrease
    the backlog that exists right now with the Title IX complaints
    that have been filed.
        Now, I spoke to a number of young women who had been
    assaulted at the University of California. I won't name the
    campus so they won't be drawn that closely under the
    microscope.
        But in talking to these young women--and there is nothing
    like hearing the stories of these youngsters to appreciate how
    insidious this can be. And in many of those cases, the victims
    were never even interviewed.
        That may be shocking to some of you, but that was
    commonplace. And how can you properly evaluate a case unless
    you interview both the perpetrator, or alleged perpetrator, and
    the victim as well?
        The question as to whether or not colleges should be
    engaged in this at all--and, Ms. Scaduto, you had referenced
    that a few moments ago--you know, is probably a legitimate
    question. You all have codes of conduct, though, and under that
    code of conduct, if you violate that code of conduct you take
    actions to remove those individuals from the campus.
        So you certainly have the wherewithal, and you certainly
    use that code of conduct in dismissing or suspending students
    who don't comply with the rules of the university. And I would
    suggest by being engaged in something that is clearly a crime,
    which rape is, that meets the standard of suspending or
    terminating a student. But I also appreciate that you, you
    know, have to weigh the various interests.
        I do think that the Office of Civil Rights needs more
    resources. I do think that we should create a proactive
    responsibility that institutions, you know, plaster the notices
    of how you can seek Title IX coordinators in the bathrooms of
    every dorm and sorority and fraternity, and those simple
    things. The HALT Act goes beyond that.
        And I see my time is expired, and I thank, again, the chair
    for the opportunity to participate.
        Chairwoman Foxx. Thank you very much.
        I want to thank our witnesses again for taking time to be
    here today.
        I would like to recognize the ranking member for any
    closing comments.
        Mr. Hinojosa. Madam Chair, before I give my closing
    statement, I ask unanimous consent that the following five
    documents be submitted into the hearing record: number one, the
    U.S. Department of Education's 2014 guidance on Title IX and
    sexual violence; number two, U.S. Department of Education's
    list of higher education institutions with open Title IX sexual
    violation investigations as of September 2, 2015; number three,
    U.S. Department of Education's table chart Title IX, Clery Act,
    FERPA; number four, the letter from the National Alliance to
    End Sexual Violence; and lastly, number five, the letter from
    Feminist Majority Foundation. I ask unanimous consent that be
    done.
        [The information follows:]
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        Chairwoman Foxx. Without objection.
        Mr. Hinojosa. Thank you.
        For my closing statement I would like to thank all of our
    witnesses for spending their time with us at this important
    hearing this morning.
        A combination of publicity and heightened scrutiny is
    leading colleges across the entire nation to place more
    emphasis than ever on preventing and responding to sexual
    assault on their campuses. Sometimes victims of these
    horrendous crimes do not know who or where to turn because they
    believe no one will understand them or they believe that
    reporting a crime could bring them much more harm.
        This is why it is imperative that institutions of higher
    education which deal directly with our students have the
    resources to provide the victims of sexual assault and the
    accused with help and comfort so that they and those affected
    by that crime will fully recover and not miss out on their
    educational opportunity.
        And with that, I yield back.
        Chairwoman Foxx. Thank you, Mr. Hinojosa.
        Again, I want to thank our witnesses.
        I want to thank everyone who came here today.
        I especially want to thank our staff for the excellent work
    done on putting this hearing together.
        And in the interest of time at the beginning I did not
    acknowledge that Dr. Rue is from Wake Forest, which is in my
    district, and I am very grateful to her and for that wonderful,
    wonderful institution that is there.
        I want to say that I deplore violence of any kind. I don't
    even watch any kind of movies with violence in them because I
    cannot abide violence.
        And this is a very important issue. It is important to all
    of us. Again, I have a grandson who went off to college this
    fall for the first time, so those of us in particular, again,
    who have children at colleges and universities, but every
    American, everybody on a college campus deserves to have a safe
    environment to learn. We want that for all of our students.
        And so I believe that today's hearing has brought forth
    some important information that will inform us as we go forward
    in the reauthorization of the Higher Education Act, and I
    appreciate, again, the witnesses, my colleagues who came and
    asked very thoughtful questions, and everyone who is here to
    learn more about this issue.
        There being no further business, the subcommittee stands
    adjourned.

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        [Whereupon, at 12:13 p.m., the subcommittee was adjourned.]

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