[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:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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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