    [Senate Hearing 114-672]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 114-672

    REAUTHORIZING THE HIGHER EDUCATION ACT: COMBATING CAMPUS SEXUAL ASSAULT

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

                                     HEARING

                                     OF THE

                        COMMITTEE ON HEALTH, EDUCATION,
                              LABOR, AND PENSIONS

                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                       ON

    EXAMINING REAUTHORIZING THE HIGHER EDUCATION ACT, FOCUSING ON COMBATING
                             CAMPUS SEXUAL ASSAULT

                                   __________

                                 JULY 29, 2015

                                   __________

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                                    Pensions

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              COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                      LAMAR ALEXANDER, Tennessee, Chairman

    MICHAEL B. ENZI, Wyoming		PATTY MURRAY, Washington
    RICHARD BURR, North Carolina		BARBARA A. MIKULSKI, Maryland
    JOHNNY ISAKSON, Georgia			BERNARD SANDERS (I), Vermont
    RAND PAUL, Kentucky			ROBERT P. CASEY, JR., Pennsylvania
    SUSAN COLLINS, Maine			AL FRANKEN, Minnesota
    LISA MURKOWSKI, Alaska			MICHAEL F. BENNET, Colorado
    MARK KIRK, Illinois			SHELDON WHITEHOUSE, Rhode Island
    TIM SCOTT, South Carolina		TAMMY BALDWIN, Wisconsin
    ORRIN G. HATCH, Utah			CHRISTOPHER S. MURPHY, Connecticut
    PAT ROBERTS, Kansas			ELIZABETH WARREN, Massachusetts
    BILL CASSIDY, M.D., Louisiana

                   David P. Cleary, Republican Staff Director

                      Evan Schatz, Minority Staff Director

                  John Righter, Minority Deputy Staff Director

                                      (ii)

                                C O N T E N T S

                                  ----------

                                   STATEMENTS

                            WEDNESDAY, JULY 29, 2015

                                                                       Page

                               Committee Members

    Collins, Hon. Susan M., a U.S. Senator from the State of Maine,
      opening statement..............................................     1
    Murray, Hon. Patty, a U.S. Senator from the State of Washington..     3
    Cassidy, Hon. Bill, a U.S. Senator from the State of Louisiana...    49
    Bennet, Hon. Michael F., a U.S. Senator from the State of
      Colorado.......................................................    51
    Warren, Hon. Elizabeth, a U.S. Senator from the State of
      Massachusetts..................................................    53
    Baldwin, Hon. Tammy, a U.S. Senator from the State of............    55
    Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
      Pennsylvania...................................................    56
    Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee    58
    Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
      Island.........................................................    61

                               Witnesses--Panel I

    McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri     5
    Heller, Hon. Dean, a U.S. Senator from the State of Nevada.......     7
    Gillibrand, Hon. Kirsten, a U.S. Senator from the State of New
      York...........................................................     9
    Ayotte, Hon. Kelly, a U.S. Senator from the State of New
      Hampshire......................................................    10

                              Witnesses--Panel II

    Napolitano, Hon. Janet, President, University of California,
      Oakland, CA....................................................    13
        Prepared statement...........................................    14
    Bolger, Dana, Co-Founder, Know Your IX, Washington, DC...........    22
        Prepared statement...........................................    24
    Stafford, Dolores A., Executive Director, National Association of
      Clery Compliance Officers and Professionals; President and CEO,
      D. Stafford and Associates, Rehoboth Beach, DE.................    28
        Prepared statement...........................................    30
    Benz-Flounlacker, Mollie, Associate Vice President for Federal
      Relations, Association of American Universities, Washington, DC    39
        Prepared statement...........................................    41

                              Additional Material

    Statements, articles, publications, letters, etc.:
        Senator Dean Heller, a U.S. Senator from the State of Nevada.    64
        Paige Danne, Mother of Accused Son...........................    65
        Nancy Gertner, Harvard Law School Professor..................    67
        Janet Halley, Royall Professor of Law, Harvard Law School....    74
        Joshua C. Strange............................................    75

                                     (III)
        Letters:
            American Federation of Teachers (AFT)....................    80
            Foundation for Individual Rights in Education (FIRE).....    81
            Legal Momentum...........................................    88
            Louisiana Legislature....................................    89
            National Coalition for Men (NCFM)........................    99
            National Domestic Violence Hotline.......................   101
            National Parenthood Conerence............................   103
            Rape, Abuse & Incest National Network (RAINN)............   106
            The State University of New York (SUNY)..................   108
            ZEN Men, LLC.............................................   111
        Response by Janet Napolitano to questions of:
            Senator Alexander........................................   112
            Senator Murkowski........................................   114
            Senator Whitehouse.......................................   117
        Response by Dana Bolger to questions of:
            Senator Alexander........................................   118
            Senator Hatch............................................   120
            Senator Murkowski........................................   122
            Senator Whitehouse.......................................   125
            Senator Casey............................................   127
        Response by Dolores A. Stafford to questions of:
            Senator Alexander........................................   128
            Senator Hatch............................................   133
            Senator Murkowski........................................   135
            Senator Whitehouse.......................................   138
            Senator Casey............................................   139
        Response by Mollie Benz-Flounlacker to questions of:
            Senator Alexander........................................   149
            Senator Hatch............................................   150
            Senator Murkowski........................................   151
            Senator Whitehouse.......................................   153
            Senator Casey............................................   154

    REAUTHORIZING THE HIGHER EDUCATION ACT: COMBATING CAMPUS SEXUAL ASSAULT

                                  ----------

                            WEDNESDAY, JULY 29, 2015

                                           U.S. Senate,
           Committee on Health, Education, Labor, and Pensions,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:01 a.m., in
    room SH-216, Hart Senate Office Building, Hon. Susan Collins
    presiding.
        Present: Senators Collins, Alexander, Cassidy, Murray,
    Bennet, Warren, Baldwin, Casey, Whitehouse, Franken, and
    Murphy.

                      Opening Statement of Senator Collins

        Senator Collins. The Senate Committee on Health, Education,
    Labor, and Pensions will come to order.
        Good morning. Today's hearing marks the committee's seventh
    of this Congress on the reauthorization of the Higher Education
    Act. This morning, we will be discussing sexual assault on
    college campuses and legislative proposals aimed at lessening
    this crime and providing justice for the survivors and alleged
    perpetrators.
        Before we begin, I would like to share a brief statement
    from Chairman Lamar Alexander, who asked me to read the
    following:

              ``I've asked Senator Collins to chair today's hearing
            because I have had to go to Nashville for the funeral
            of a close friend. Before she was elected to the
            Senate, Senator Collins worked at Husson University in
            Bangor, ME, so she brings a valuable perspective to
            this discussion.''

        Oh, it's weird to be reading what someone else is saying
    about you.
        [Laughter.]

              ``I thank her for doing this, and I thank the
            witnesses for attending. The goal of Federal
            regulations and rules should be to help our 6,000
            colleges and universities create campus environments
            that make students safer from sexual assault.
              ``In doing that, we should be careful to (1)
            eliminate duplicative laws and regulations so that
            instead of spending unnecessary time filling out forms,
            colleges have more time to counsel students and create
            a safer environment; (2) help colleges better
            coordinate with law enforcement agencies but not turn
            colleges into law enforcement agencies; and (3)
            establish procedures that are fair and that protect the
            due process rights of both the accused and the
            accuser.''

        I know that the Chairman regrets very much that he could
    not be here today.
        One of the things that I most enjoy as a U.S. Senator is
    the opportunity to meet with students from my home State of
    Maine, a sentiment I'm sure that many of my colleagues share.
    Yesterday, I had breakfast with my summer interns who attend
    six different colleges and universities. We discussed the
    incidence of sexual assault on their campuses and what can be
    done to halt this crime and meet the needs of survivors.
        These students had three insightful recommendations. First,
    they all support mandatory, ongoing training for all students.
    Second, they emphasized that students who are assaulted need a
    confidential advisor to whom they can turn. And, third, as
    Chairman Alexander mentioned, they believed it was important to
    make sure that disciplinary procedures are fair both for those
    who are assaulted and for those who are accused.
        There are two Federal laws to help combat sexual assault on
    campuses, the Clery Act and Title IX of the Education
    Amendments of 1972. Last Congress, provisions of the Clery Act
    were updated by the enactment of the Violence Against Women Act
    reauthorization. Senator Casey, a member of this committee,
    helped lead the effort to include important reforms in VAWA
    related to sexual assault prevention on campuses.
        On July 1, the Department of Education issued new
    regulations implementing these amendments to ensure that
    campuses have policies and procedures in place to prevent and
    respond to sexual assault, domestic violence, dating violence,
    and stalking. These laws include requirements that educational
    institutions file annual reports on the crimes occurring on
    campus, institute security policies and have fair disciplinary
    procedures for sexual assault cases, employ a title IX
    coordinator, educate students and staff about sexual assault
    prevention and awareness, notify survivors about their rights
    and the resources available to them, and provide for staff
    training.
        Many colleges and universities are also engaged proactively
    in raising awareness about sexual assault among the student
    body. For example, the University of Maine launched its Office
    of Sexual Assault and Violence Prevention last year and has
    undertaken a campaign to educate students through posters,
    brochures, presentations, and training.
        Mercedes Dobay, an intern in my office and a senior at the
    University of Southern Maine, who happens to hail from my
    hometown of Caribou, told me that the Office of Greek Life
    requires students in sororities and fraternities to participate
    in sexual assault, domestic violence, and alcohol and drug
    awareness training each year.
        The system we have in place is designed to allow
    administrators to intervene quickly on behalf of students in a
    way that is separate from the judicial system. I hope that this
    hearing will inform the committee of what in the current system
    is working, what needs to be changed, and whether additional
    reforms are needed to help keep students safe while respecting
    the privacy of sexual assault survivors who may be reluctant to
    report these crimes and providing due process rights for all
    students.
        This committee has formed a bipartisan working group to
    explore campus sexual assault and campus safety in greater
    detail. I look forward to hearing from our witnesses on how we
    can build consensus around this important issue.
        Our first panel today is comprised of four Senators who
    have worked tirelessly together on legislation to combat campus
    sexual assault and have introduced the Campus Accountability
    and Safety Act. Senators McCaskill, Heller, Gillibrand, and
    Ayotte are four of the original co-sponsors of this bill and
    have devoted a great deal of time and energy to this effort. I
    also want to recognize the work of Senators Blumenthal,
    Grassley, Warner, and Rubio.
        The Campus Accountability and Safety Act includes several
    provisions that merit our full consideration. All of the
    Senators who will be testifying have shown great leadership in
    addressing campus sexual assault, and I want to thank each of
    them for their participation this morning.
        It's now my great pleasure to turn to the Ranking Member,
    Senator Murray.
        Senator Murray, I will say, this feels like old times when
    we led the Transportation HUD Appropriations Subcommittee.

                          Statement of Senator Murray

        Senator Murray. Well, thank you very much, Madam Chairman.
    It's great to be working with you on this committee. I note
    that the women of the Senate have come today to be on time and
    to be here for this.
        [Laughter.]
        I want to thank all of our witnesses as well who represent
    a wide array of perspectives, and I appreciate all of you for
    taking the time to join us. I join with Senator Collins in
    recognizing the work of our first four witnesses, Senators
    McCaskill, Heller, Gillibrand, and Ayotte, for all of their
    time and attention to this really critical issue.
        Fighting back against campus sexual assault and violence
    really requires coordination and input and focus at every
    level. I'm grateful that all of our witnesses took the time to
    be here today to talk about this.
        I've said before that higher education is an important
    pathway to the middle class. It's an opportunity for students
    to grow personally and to develop skills that will prepare them
    to succeed in today's economy. With all of that to focus on,
    the last thing a student should have to worry about is whether
    they are safe on campus.
        The harsh reality is that one out of five women is sexually
    assaulted in college, and men as well. In 2013 alone, college
    campuses reported 5,000 forcible sex offenses, and a recent
    study indicated that number could be much greater.
        There should be no question that sexual violence on campus
    is a widespread, growing, and unacceptable problem. Simply put,
    in colleges and universities across the country, basic human
    rights are being violated. All too often, current systems and
    campus climates encourage underreporting rather than action.
        As we talk about the seriousness of this problem, it's
    important to acknowledge the work already underway to address
    it. Survivors like Ms. Dana Bolger, who is a witness on our
    second panel, have bravely stepped up to make clear they expect
    far better from their schools and their communities. In doing
    so, they have forced a national conversation and they have
    shown other survivors that they are not alone.
        President Napolitano--great to have you here today--Ms.
    Flounlacker, and other university leaders have made fighting
    campus sexual assault a top priority. They have developed new
    partnerships between schools, communities, and law enforcement
    to coordinate and improve response and taken important steps to
    focus on prevention and improve compliance with the Clery Act,
    which is something Ms. Stafford has worked on closely.
        Just last month, thanks to the work of many here today,
    including Senator Casey, a member of this committee,
    regulations went into effect as part of the Violence Against
    Women Act of 2013 that will require schools to increase
    transparency about sexual violence and assault and strengthen
    prevention efforts. These are critical steps, but, without
    question, there is much, much more to be done.
        I see our conversation about reauthorizing the Higher
    Education Act as a critical opportunity for continued and
    urgently needed progress. I'm very pleased that key Senate
    leaders are here today with us to discuss their Campus
    Accountability and Safety Act legislation that would take steps
    to improve campus climate by requiring far greater transparency
    about the prevalence of campus sexual assault, put in place key
    protections for survivors, improve coordination with law
    enforcement, and impose harsher penalties on schools that are
    not meeting requirements.
        As a mother, a grandmother, and a U.S. Senator, I certainly
    want to know that when a student is attacked, her school and
    her community will be ready to respond with compassion,
    respect, and accountability. I think we can all agree that we
    need to do everything we can to engage students and schools so
    that sexual assaults don't happen in the first place.
        Recent research by the Centers for Disease Control and
    Prevention, which is part of the administration's ongoing
    efforts, has identified campus sexual assault as a public
    health issue and has shown that sustained, comprehensive
    education programs can help prevent sexual assault, especially
    by preparing students to fight back against the damaging myths
    that surround rape and assault. Efforts to encourage bystander
    intervention can help break down social norms that implicitly
    sanction sexual violence.
        I am very eager to hear from all our witnesses today about
    programs and policies aimed at prevention. But, of course, as
    much as more effective programs and requirements can make a
    huge difference, we cannot expect to fix this problem just by
    changing the rules. We have to do something much more
    difficult, and that is to change culture.
        For example, just a few years ago, Ms. Bolger brought to
    light the fact that at her alma mater, Amherst College, a
    fraternity had printed tee shirts depicting a woman being
    roasted on a spit like a pig. Those students went unpunished.
    Take a minute to think about the message that sends to
    students, male and female, about how much their community
    values women. Unfortunately, this is just one example of
    countless cases to choose from across our country.
        That's why the national conversation that students like Ms.
    Bolger have started and that other leaders, including many here
    today, have stepped up to support is so absolutely critical. A
    country that values women and all individuals is stronger for
    it. We all need to do our part to keep this conversation going,
    and we need to make it louder.
        We have done far too little in Congress over the years to
    support survivors and to be a voice for women across the
    country, daughters and granddaughters, who are counting on us.
    I'm glad that Chairman Alexander and I agree that the HELP
    committee needs to join the debate on campus sexual assault
    much more fully.
        Again, I want to thank all our witnesses, including our
    colleagues who are here today, for taking the time to be such a
    critical part of this discussion and for the work that all of
    you have already done with the many other members on both sides
    of the aisle who are very much focused on this fight. As we
    continue our conversation about our country's higher education
    system and throughout our work on this committee, we have an
    opportunity to stand up for survivors, make clear the status
    quo is completely unacceptable, and help continue the
    conversation about changes we absolutely need to see.
        I am very committed to seizing this opportunity. I want to
    thank Senator Collins for being here today, and I want to
    recognize Senator Alexander as Chairman of this committee for
    stepping up to this. Thank you all very much.
        Senator Collins. Thank you, Senator Murray.
        I'm now very pleased to welcome our colleagues as the first
    panel of witnesses today. Missouri Senator Claire McCaskill has
    a long history of fighting sexual violence, going back to when
    she prosecuted sex crimes and established a Domestic Violence
    Unit in the Kansas City region, and leading to her current work
    in the Senate to curb sexual assaults in the military and on
    college campuses. She is the lead on the Campus Accountability
    and Safety Act.
        Nevada Senator Dean Heller has been an advocate for sexual
    assault survivors since his tenure in the House of
    Representatives, where he led a bipartisan effort to reduce the
    rape backlog and to help bring closure to victims and families
    of this horrendous crime.
        New York Senator Kirsten Gillibrand has been a key voice on
    the issue of sexual assault on college campuses and also in the
    military, particularly in her role on the Senate Armed Services
    Committee.
        And New Hampshire Senator Kelly Ayotte, drawing on her
    experience as New Hampshire's chief prosecutor and former
    attorney general, has also worked hard in the Senate to stop
    sexual assault and domestic violence.
        Thank you all for being here today, and we'll start with
    Senator McCaskill.

                         Statement of Senator McCaskill

        Senator McCaskill. Thank you very much, Chairman Collins
    and Ranking Member Murray, for holding this important hearing
    on this issue. These crimes are troubling to parents, students,
    and educators.
        As a mother and a grandmother, but maybe most importantly
    informed by my former work of many years in the courtroom
    prosecuting sex crimes, I am working extensively with my Senate
    colleagues to ensure students are protected from incidents of
    sexual violence and perpetrators are held accountable. I am
    very proud to work with Senators Heller, Gillibrand, Ayotte,
    Grassley, Blumenthal, Warner, and Rubio. We introduced last
    year a version of the Campus Accountability and Safety Act, or
    CASA.
        We didn't stop with the version that we introduced last
    year. Over the past 15 months, our coalition of eight offices
    has met with over 60 organizations, including groups
    representing students who have been victims of college sexual
    assault, colleges and universities and their associations, law
    enforcement, victim advocacy, researchers, and parents of those
    young people who have been accused of sexual assault on college
    campuses.
        After introducing last year's version of CASA in July 2014,
    as we continue to meet with stakeholders and gather additional
    feedback, we have made significant improvements to the bill. We
    have reintroduced this bill with an even larger bipartisan
    coalition.
        Currently, the bill has 33 co-sponsors, 12 Republicans and
    21 Democrats. That's a bipartisan coalition we all know we
    don't see every day in the U.S. Senate. Our legislation is so
    much stronger for it. We are all enormously proud of the work
    we have done together.
        Finally, we want to bring this crime out from the shadows
    and make it a priority on our Nation's campuses. As a former
    prosecutor, I take special interest in assuring that those who
    have been victimized by sexual assault are given adequate
    support and feel empowered to make informed decisions in a very
    complicated situation.
        There are different systems. There is the legal system, and
    there's title IX. There are different obligations, depending on
    who learns of the crime. These young people need to have
    information they can rely on as they navigate this complicated
    scenario. At a moment, they are traumatized, emotional, and
    really are worried that they have no place to turn for reliable
    information or where they will be treated with credibility.
        Our legislation would establish new campus resources and
    support services for victims who have been--who are alleging
    they have been victims of sexual assault. Colleges and
    universities would be required to designate confidential
    advisors to these students. The confidential advisor may be the
    most important part of our legislation. This is a person that
    guides the student through the process of understanding the
    potential legal and campus reporting processes following a
    sexual assault and can provide confidentiality through that
    process.
        Not only would the confidential advisor coordinate support
    services for those who have been assaulted, they would provide
    critical information about options for reporting these crimes
    to campus authorities and/or local law enforcement.
    Confidential advisors will support the students every step of
    the way and will put them back in charge of what happens to
    them moving forward.
        We have heard from advocates and those who have been
    assaulted that they need someone they can talk to in order to
    learn about their options without being forced to make a
    permanent decision right away. Because the confidential advisor
    works solely at the discretion of those who have been assaulted
    and provides important information on reporting sexual assault,
    I believe their creation is critical to tackling the
    underreporting that pervades this issue and leaves perpetrators
    unaccountable.
        It's my hope that this provision empowers the student who
    is assaulted on a Friday night to know on that same Friday
    night who he or she can call and where he or she can go for
    good information and confidential support.
        I also want to mention that our bill now includes a
    provision to ensure more transparency about the campus judicial
    process. Our bill requires that both the victim and the accused
    have timely notice of an institution's decision to proceed with
    an institutional disciplinary process regarding an allegation
    of sexual misconduct. This would provide both the victim and
    the accused student with the opportunity to meaningfully
    exercise the rights afforded to them under institutional
    policy.
        It is critically important that both of the parties
    participate on a level playing field in the campus disciplinary
    process. We must continue to work to improve confidence in the
    judicial and campus systems which will, in turn, increase
    reporting, support survivors, and punish perpetrators of sexual
    assault on our college campuses. In addition, we must make sure
    that these provisions provide transparency for those who are
    accused.
        I look forward to working with my Senate colleagues and
    members of this committee on the provisions of this bill and
    the larger Campus Accountability and Safety Act in the coming
    months. We think that there is--between all of us who have
    worked on this and all of the input we have taken, we believe
    there are several key provisions that could be included in the
    reauthorization of Higher Education that could make a real
    difference going forward, and we really appreciate this
    committee taking the time to deal with it today.
        We've tried to divide up the testimony in a way that we
    won't be too repetitive, and I hope we won't. It's hard for us
    all not to want to be here, so we really appreciate you putting
    up with all four of us wanting to get our words in this
    morning. Thank you.
        Senator Collins. Senator Heller.

                          Statement of Senator Heller

        Senator Heller. Chair Collins and Ranking Member Murray, I
    want to thank you for the opportunity to testify on this
    particular issue that is critically important. But most
    importantly, I want to thank you for your opening statements,
    from both of you, and for your understanding, concern, and
    support of moving something forward here so that we can make
    sure that these campuses are safe.
        I'm proud to work along with my colleagues here. I'm glad
    to see, after Senator Murray's comments, that there are more
    male Senators that have shown up.
        [Laughter.]
        It was lonely for a while, but I assure you that there are
    other male Senators that are just as interested and devoted to
    this issue as I am.
        When we first started working on this legislation, it was
    important for me to sit down with stakeholders in the State of
    Nevada. Last June, I held a roundtable in Las Vegas. I received
    input from title IX coordinators, from police officers, from
    victim advocacy groups on ways to prevent sexual assault and
    assist student survivors.
        I brought their ideas back to Washington, as my colleagues
    did the same in their States. Much of that feedback helped us
    draft our first bill, and this is only one example of outreach
    that most Senators do.
        Since the first introduction of our bill, our bipartisan
    working group continued to meet with stakeholders across the
    Nation, including survivors' groups, students, colleges and
    universities, law enforcement, and others to help strengthen
    and improve our new bill that we introduced earlier this year.
    From the beginning, we've also worked diligently with your
    committee to ensure our final bill incorporated comments from
    experts on our Nation's educational system.
        Our working group strongly believes we have put together a
    comprehensive product that will provide our schools with the
    tools that they need to make our campuses safer. I know for me
    and for many parents, watching your children go off to college
    is one of your prouder moments. Parents want to be confident
    that their sons and daughters will be safe and have access to
    resources that they need from their schools. Unfortunately,
    that's not always the case.
        Today, we have over 100 colleges and universities under
    investigation for violation of title IX in their handling of
    campus sexual violence. While we've all seen news stories after
    news stories about these tragic events, the reality is there
    are many more survivor stories that haven't been heard and
    haven't been told.
        Sexual assault is a crime that more often than not goes
    unreported, which is one of the reasons why data provided by
    our Nation's institutions simply do not reflect the prevalence
    of this crime. In fact, there are many colleges and
    universities that have reported zero incidents of sexual
    assault to the Federal Government.
        I strongly believe that one of the most important
    provisions of our bill is the campus climate survey. This
    survey will improve access to accurate, campus-level data by
    allowing students to anonymously share their experiences
    related to sexual assault.
        Under our bill, schools will give their students anonymous,
    online surveys to gauge the scope of sexual assault on campus
    and the effectiveness of current institutional policies on this
    issue. The Department of Education will be responsible for
    developing this survey, as well as picking up its cost. Schools
    just need to ensure an adequate, random, and representative
    sample of students taking the survey.
        The survey results will be reported to Congress and
    published on the Department of Education's website. Because
    this survey will be standardized, the American public will be
    able to compare the campus climate of all schools.
        As a father of four children, I wish I had access to this
    kind of information when my kids were preparing to attend
    college. Now, as a grandfather of two, my hope is that when
    they grow up and go off to school, our Nation's campuses will
    be safer than ever before.
        The campus climate survey will be a useful educational tool
    for both students and parents, as well as an invaluable
    resource for institutions to help create or enhance efforts to
    prevent sexual assault, assist survivors of this crime, and
    improve campus safety overall. This provision is just one
    example of how Congress can act today and make ending this
    crime a priority.
        While Congress cannot legislate away sexual assault, and no
    bill is perfect, I believe the Campus Accountability and Safety
    Act is a step in the right direction toward combating this
    heinous crime and guaranteeing survivors have access to the
    resources they need and deserve.
        Thank you again for the opportunity to testify today. I
    look forward to hearing from my colleagues that are here at the
    witness table, and it has been an absolute honor and pleasure
    to serve with them and work with them to get this work done.
    Thank you very much.
        Senator Collins. Thank you, Senator.
        Senator Gillibrand.

                        Statement of Senator Gillibrand

        Senator Gillibrand. Well, thank you, Chairwoman Collins and
    Ranking Member Murray. I'm so grateful for your attention to
    this issue and your commitment to this issue. I'm also grateful
    for Chairman Alexander's interest in having this hearing. It is
    invaluable.
        About a year ago, we outlined a path forward to protect
    students from campus sexual violence, and we heard from
    survivors who spoke very passionately about not only the harm
    and physical assault they endured but the second injustice, the
    injustice of feeling betrayed by a school that they loved, an
    administration that they trusted. We listened to law
    enforcement, we talked to campus officials, we talked to the
    advocates for the rights of the accused, all who wanted their
    voices heard.
        As Senator McCaskill said, this bill, this second bill that
    we've introduced, is truly a superior version of the first
    bill. This bill's fundamental objective is to flip the
    incentives so that the first time, it would actually be in the
    school's best interest to solve the problem, to actually do it
    aggressively and get it right. We did it because, obviously,
    the price of a college education should never be the risk of a
    sexual assault.
        Every day, it's becoming increasingly clear that too many
    schools are failing, because they do not take sexual assault
    seriously enough. They do not see it as the violent felony that
    it actually is. They do not treat these as life-altering
    assaults, and they don't treat them as violent crimes.
        Schools all across the country will routinely withhold a
    diploma if you don't pay your fees. They'll routinely kick you
    out if you cheat on a test. The statistics for students who
    have violated other students, who have sexually assaulted or
    raped them and found responsible, show that only one-third are
    actually expelled for the crime. In other words, two-thirds of
    students who were found responsible for sexual assault are
    still on their college campuses.
        What does it say about our schools' priorities if some
    colleges have tougher justice for a student cheating on an exam
    than for someone who has raped another student? The Campus
    Accountability and Safety Act would transform the way colleges
    and universities deal with this crime.
        With this bill, instead of pretending these crimes don't
    happen, schools would be held accountable for reporting their
    sexual assault statistics accurately and publicly. Every
    college and university in the country would give their students
    an anonymous standardized survey to assess students'
    experiences with campus sexual violence. The results of this
    biennial survey would give students, parents, and campus
    administrators a snapshot in time of what's happening on their
    campuses that would paint a far more comprehensive picture of
    the scope and depth of this national problem.
        With this bill, instead of having campus security and local
    police debate jurisdiction after a sexual assault is reported,
    every college and university in the country would be required
    to have a memorandum of understanding with local law
    enforcement to clearly delineate responsibilities. As Senator
    McCaskill said, when you go and see that confidential advisor,
    he or she will be able to tell that survivor what his or her
    options are. This is the campus route. This is the criminal
    justice route. There'll be no confusion, and she'll know
    exactly what happens under each process.
        Instead of a survivor feeling like she has to go public
    with the details of her rape just to capture her school's
    attention, with this bill she now has a dignified path to
    justice without having to broadcast the details of the worst
    nightmare of her life in public and on the cover of the New
    York Times.
        I urge my colleagues here to support this critically
    important bill. I truly believe we have a responsibility to
    keep our young men and women safe on campus.
        Chairwoman Collins, I have for the record a number of
    letters that I'd like to introduce. I have one from the
    American Federation of Teachers. I have one from the anti-
    sexual violence organization, RAINN; one from my State
    University of New York, a system of 64 colleges and
    universities, the largest in the country, who has endorsed
    every provision of this bill.
        I also have one from the representatives from the Louisiana
    Legislature, where a version of the Campus Accountability and
    Safety Act recently just passed into law, and I have another
    one from the student advocacy organization called SAFER,
    Students Active for Ending Rape.
        Thank you again for your attention and your dedication, and
    thank you to all the members who came to this hearing.
        [The letters referred to may be found in Additional
    Material.]
        Senator Collins. Thank you for your testimony, and those
    letters will be entered into the record without objection.
        Senator Ayotte.

                          Statement of Senator Ayotte

        Senator Ayotte. Thank you, Chairman Collins.
        Thank you, Ranking Member Murray, and I want to thank
    Chairman Alexander as well for his focus on this issue. I know
    that many members of this committee have already become co-
    sponsors of our bill and have been real leaders on this issue.
    We're very appreciative of your attention today.
        I'm deeply honored to be here with my colleagues. This has
    been an important process of continuing to seek feedback and
    making sure that we are looking at the best practices that
    occur around the country and also solving some of the worst
    problems that we've seen and inconsistencies that we've seen
    around the country. Thank you all for your leadership on this.
        This is an example of how members of both parties can work
    together, when you see the strong bipartisan support for this
    bill and also the strong bipartisan message that this hearing
    sends today--that we all appreciate that every student deserves
    a safe environment on campus so that students can focus on
    learning instead of being victims of crime or feeling that they
    have to be in fear. That's really what we want to accomplish
    and to give the proper tools and focus on this incredibly
    important issue.
        Campus sexual assault is a serious public safety issue that
    has impacted every State in this Nation, including my home
    State of New Hampshire. Like Senator Heller, in order to hear
    directly from stakeholders, I've held roundtables and
    discussions on this issue at Dartmouth College, Saint Anselm
    College, and the University of New Hampshire, bringing together
    students, survivor advocacy organizations, law enforcement, and
    campus administration officials to talk about these issues in
    different sized colleges with different challenges.
        In New Hampshire, we have seen some positive developments
    when it comes to ensuring that survivors receive support on
    campus. This national discussion has forced many colleges to
    really focus on this issue. Having a hearing like this also
    causes our campuses to again reexamine this issue.
        For example, having met with local law enforcement and
    administrators and students at Dartmouth College in Hanover, I
    know that they are engaged in a process and committed to change
    at Dartmouth. I've also had very candid conversations with the
    administration there.
        The Dartmouth community has struggled with this issue, and
    there's much more work to do. I'm very encouraged that
    Dartmouth recently formalized a relationship with the local
    rape crisis center to provide confidential services to
    survivors of campus sexual assault.
        Over in Durham at the University of New Hampshire, they've
    actually done some nationally recognized work on rape
    prevention. Candidly, much of the focus of our legislation is
    to ultimately bring campus communities throughout the Nation in
    line with some of the efforts that we've seen at UNH. UNH
    police chief Paul Dean proudly characterizes UNH's multiple
    initiatives on prevention and response as a conspiracy of care
    for the students at UNH.
        As a former attorney general in my State, I know that
    crimes of sexual assault are very serious crimes and need to be
    handled by law enforcement if victims choose to pursue that
    route. However, the reality is that for a variety of reasons,
    these crimes are vastly underreported and often unreported.
        Our bill seeks to foster a more cooperative environment
    between schools and local law enforcement by requiring colleges
    and universities to enter what Senator Gillibrand talked about,
    a memorandum of understanding with the entity that has
    jurisdiction to report and investigate crimes on campus. The
    goal of the MOU is to foster a dialog between the school and
    law enforcement before a serious incident takes place.
        An MOU that clearly delineates responsibilities and
    requires that appropriate information sharing can ensure that
    when survivors come forward and choose to report a crime to law
    enforcement, these crimes are properly investigated. It also
    can ensure that an accused individual--that there's a clear
    understanding of what their rights are in this process as well.
        We know that too many of these crimes go unreported on
    campus, and that's why it's so critical--this piece of the
    confidential advisor--so that victims know what their options
    are and that they know that there is someone who can represent
    them in this process and can let them know what their options
    are if they choose to report to law enforcement and what will
    happen during the administrative process. These two provisions
    are critical as you look at this bill.
        Unfortunately, one other issue that came up during the
    course of bringing people together around this--and I know
    Senator McCaskill has focused on this as well. We've been very
    outraged that we found out that on some campuses, the way that
    these crimes have been haphazardly investigated, that you had
    athletic departments that were investigating crimes of sexual
    assault and handling these matters. Consistency in ensuring
    that practices like this never occur again will ensure
    fairness, not only to the accused, but also to victims of
    sexual assault.
        You can imagine that if you're a victim and the athletic
    department is the one investigating an athlete that is accused
    of these crimes, you will not feel that you'll get justice in
    those circumstances. This bill would end practices like this
    and ensure that there's consistency and that there's fairness,
    not only for victims of sexual assault to ensure that a
    confidential advisor will be given to victims, but that the
    accused--that there's a fair and clear process to investigate
    these crimes.
        I thank you so much for your leadership, both the Chair and
    Ranking Member, on this issue and for my colleagues and their
    incredible work today. Thank you.
        Senator Collins. Thank you very much. I want to thank all
    four of our colleagues for coming to testify today and for your
    outstanding leadership on this issue. I know you have busy
    schedules, so at this point, you're free to go, and we'll bring
    forward the second panel.
        I am pleased to welcome our next panel of four witnesses
    today. Our first witness, president Janet Napolitano, is the
    president of the University of California. I had the pleasure
    of working with president Napolitano when she was Secretary of
    Homeland Security and I served as ranking member of the Senate
    Homeland Security Committee. It's a pleasure to welcome her
    back to Washington today.
        President Napolitano leads a university system with 10
    campuses, five medical centers, three affiliated national labs,
    and a statewide agricultural and natural resources program.
    Previously, she served as Governor and attorney general--not at
    the same time, I might add--of Arizona.
        Our second witness, Dana Bolger, is the co-founder of Know
    Your IX. She leads a national survivor and youth-led campaign
    to end campus sexual and dating violence. She is also a
    columnist and a 2014 graduate of Amherst College.
        We thank you for being here as well.
        Next we will hear from Dolores Stafford, who is the
    executive director of the National Association of Clery
    Compliance Officers and Professionals and the Association for
    Campus Administrators who are responsible for managing Clery
    Act compliance. She also serves as the president and CEO of D.
    Stafford and Associates, a professional services firm
    specializing in safety and security-related issues on college
    campuses. It's also interesting to note that she served as
    chief of police at George Washington University for several
    years right here in Washington.
        And, finally, we will hear from Benz-Flounlacker, who is
    the associate vice president for Federal Relations at the
    Association of American Universities, where she has worked for
    some 14 years. She's responsible for higher education policy
    and funding issues.
        Governor Napolitano, we will begin with you.

     STATEMENT OF HON. JANET NAPOLITANO, PRESIDENT, UNIVERSITY OF
                        CALIFORNIA, OAKLAND, CA

        Ms. Napolitano. Well, thank you, Senator Collins, Senator
    Murray, and members of the committee for holding this hearing
    and for the statements of your colleagues earlier this morning
    as well. I'm really pleased to see the bipartisan support on
    this issue.
        Campus sexual assault and sexual violence is a criminal
    issue. It is a public health issue. It is a cultural issue. At
    the University of California, which is the Nation's largest
    public research university, we have no tolerance for it. The
    question is what do you do about it. I'm here today to briefly
    describe what we have done and make just a few brief comments
    on the legislation.
        In June 2014, we established a system-wide task force to
    develop and implement a model for prevention, response, and
    reporting of incidents of sexual violence and sexual assault.
    We broadened the definition to include things like dating
    violence, domestic violence, and stalking, which previously had
    not been clearly included. We adopted an affirmative consent
    standard, meaning consent must be knowing, intentional, and
    revocable in our cases.
        The task force was very broad, but identified eight key
    recommendations. I'm pleased to see that the recommendations of
    the task force are really mirrored in the legislation that you
    are considering now.
        A consistent response team; system-wide investigation and
    adjudication standards, including sanctions; comprehensive
    training and education for the entire UC community;
    communications and public awareness; a confidential advocacy
    and advocate for each survivor; a systemwide website for
    information; standard data collection and increased
    accountability and reporting; and then appropriate support
    services for survivors based on their circumstances--these are
    the eight key pillars of what we are doing. Four have already
    been completely enacted. The remaining four will be implemented
    no later than January 2016.
        The most important is that we have established the
    independent confidential advocate on every campus of the
    University of California. We have funded it. We have supported
    it. We have trained it. We've also set up systemwide education.
    Every person, every freshman reporting this fall will receive
    the same training throughout the system, and that training will
    then include all other students, faculty, and staff. When you
    add all those numbers together, that's over 400,000 people who
    will be receiving the training.
        We have worked with the California attorney general on a
    model, a template, and a tool kit for the linkage between the
    campuses and district attorneys and law enforcement. The
    websites are up and running, and in my written testimony, I've
    given you the website if you have extra time, which you don't,
    but if you have, you could go on the website.
        A couple of brief comments on the legislation. First of
    all, three principles. It has to be flexible enough to allow
    for institutional differences. There's a big difference between
    a big public university like a Berkeley or a UCLA and a very
    small college, and we need to take some of that into account.
        Second, existing rules and regulations within the
    Department of Education need to be better allocated and
    coordinated. There's a lot of redundancy, duplication, and
    delay there. This is something I know the department is working
    on, but it is something that should be taken into account.
        And, third, any new laws should not undo any research-based
    best practices already implemented at campuses across the
    country. In other words, campuses are moving even while the
    legislative process is underway. As I've mentioned, we are very
    close to voluntary compliance with the key elements of CASA.
        One thing--last point. On the MOUs, the legislation should
    recognize that many large campuses have their own sworn police
    departments. How that works in the MOU world needs to be taken
    into account legislatively.
        Again, the importance of this hearing and the importance of
    the support shown in the Senate for this legislation cannot be
    overstated. On behalf of the University of California, we're
    very grateful for your efforts.
        [The prepared statement of Ms. Napolitano follows:]
                     Prepared Statement of Janet Napolitano
        The central vehicle for the University of California's response to
    preventing, responding to, and reporting incidents of sexual violence
    and sexual assault on our campuses is UC's Task Force on Preventing and
    Responding to Sexual Violence and Sexual Assault.
        Sexual violence and sexual assault are issues of national
    significance. The University of California has no tolerance for sexual
    violence and sexual assault and the University has taken steps to drive
    cultural change around these issues.
        In June 2014, UC convened the Task Force, and charged it with
    identifying steps to improve UC's efforts on preventing and responding
    to sexual violence and sexual assault. Because the student perspective
    is vital to UC's ability to improve its efforts, students were actively
    involved in the process at both the undergraduate and graduate level.
    In a very short time, the Task Force developed its recommendations, and
    set timelines and a plan of action.
        The Task Force identified eight recommendations, which constitute
    the UC model:

        1. Establish a consistent ``response team'' model at all 10
    campuses.
        2. Adopt systemwide investigation and adjudication standards,
    including sanctions.
        3. Develop a comprehensive training and education plan for the
    entire UC community.
        4. Implement comprehensive communications and public awareness
    campaigns.
        5. Establish a confidential advocacy office on each campus that is
    available 24/7.
        6. Create a comprehensive systemwide website for information and
    resources.
        7. Develop systemwide standard data collection to increase
    accountability and transparency.
        8. Ensure that respondents receive appropriate support based on
    their circumstances.

        The Task Force will continue to monitor progress, gather metrics,
    and review implementation of the recommendations. Task Force members
    will work with researchers to evaluate new policies and assess their
    effectiveness.
        Regarding S. 590, the Campus Safety and Accountability Act, or
    CASA, UC supports Federal legislation to help address sexual violence
    and sexual assault on college campuses. UC also supports efforts to
    encourage better collaboration and broader accountability among other
    partners in this endeavor, such as prosecutors and the courts.
        With respect to Federal legislation, UC's overarching principles
    include:

         Federal legislation must be flexible enough to allow for
    institutional differences, yet strong enough to ensure full
    accountability.
         Existing rules and regulations now in place through the
    Higher Education Act must be better coordinated.
         Any new law must not undo any research-based ``best
    practices'' institutions have already implemented.

        UC strongly supports the requirement to designate a confidential
    advocate to whom survivors can report anonymously and directly, as well
    as the requirement that each employee who has responsibility for
    interviewing survivors of sexual violence must have training in victim-
    centered, trauma-informed techniques.
                                     ______

        Mr. Chairman and members of the committee: Thank you for the
    opportunity to testify before the committee on the extremely important
    issue of sexual violence and sexual assault on college and university
    campuses. I am Janet Napolitano, President of the University of
    California. Recognized worldwide for its academic distinction, the
    University of California includes more than 238,000 students, 198,300
    faculty and staff and 1.6 million living alumni. UC has 10 campuses at
    Berkeley, Davis, Irvine, Los Angeles, Merced, Riverside, San Diego, San
    Francisco, Santa Cruz and Santa Barbara; five medical centers, which
    provide broad access to specialized care, support clinical teaching
    programs, and develop new therapies; the Division of Agriculture and
    Natural Resources (ANR), which administers research, education and
    outreach programs throughout California; and three national
    laboratories UC manages for the Department of Energy.
        I have been asked to testify today on the efforts the University
    has undertaken to implement a consistent and transparent model for
    preventing, responding to, and reporting incidents of sexual violence
    and sexual assault on our campuses. First let me state that the UC
    system has no tolerance for sexual violence and sexual assault, and I
    see the issue of sexual violence and sexual assault on colleges and
    universities as a matter of national importance. In fact, looking at
    the totality of sexual violence, including stalking, dating violence,
    domestic violence, and sexual assault, this constitutes a serious
    public health issue in this country.
        Recognizing this, in June 2014, I formed a systemwide Task Force to
    develop recommendations for implementing strategies to support
    excellence in prevention, response, and reporting of sexual violence
    and sexual assault, based on evidence-informed solutions and
    approaches, and to identify steps to improve UC's current processes in
    order to drive cultural change in sexual violence and sexual assault
    prevention. The University of California was taking steps to improve
    its prevention, response, and reporting efforts even prior to the
    creation of the Task Force.
        For example, in February 2014 UC significantly broadened and
    clarified its policy against sexual violence and harassment to include
    domestic violence, stalking and date rape. With this policy revision,
    UC also adopted an affirmative consent standard that defines consent as
    unambiguous, voluntary, informed and revocable, before California
    enacted its ``Yes Means Yes'' law. This policy was revised to comply
    with the requirements outlined in the Campus SAVE Act, as part of the
    2013 Reauthorization of the Violence Against Women Act (VAWA) and
    incorporates guidance from the Department of Education's Office of
    Civil Rights April 4, 2011, Dear Colleague Letter.
        The UC Task Force is led by Senior Vice President and Chief
    Compliance and Audit Officer, Sheryl Vacca, who reports directly to me
    and to the UC Board of Regents. To be successful in a system as diverse
    and large as the University of California, we knew that it required a
    range of expertise and participation. Task Force members were selected
    based on their subject matter function and expertise. They include
    representatives from the UC Regents, survivors, students (undergraduate
    and graduate), campus police chiefs, title IX officers, student conduct
    officers, advocates, faculty, legal, compliance, human resources,
    academic affairs, and student affairs. In addition, additional subject
    matter work groups, student groups, affinity groups, and faculty
    research expertise are incorporated into the overall approach of the
    Task Force.
        I wanted to ensure that students are actively involved in the
    process at both the undergraduate and graduate level from multiple UC
    campuses. The student perspective is vital to help the University
    continuously review and improve its efforts.
        I gave the Task Force a very firm--and short--timeline to make
    significant changes across the system, and I believe that over the
    course of the last year the Task Force has made outstanding progress in
    meeting that charge. To meet this demanding timeline, the Task Force
    and its work groups met regularly over the summer of 2014 to develop
    its initial recommendations and plan of action. The campuses were then
    directed to implement the first phase of recommendations on a set
    timeline with a report back to my office and the UC Regents in January
    2015. The remaining recommendations will be implemented no later than
    January 2016.
        In September 2014, the Task Force identified seven initial
    recommendations that form the foundation for the overarching UC model,
    which are to:

        1. Establish a consistent ``response team'' model at all 10 UC
    campuses. This model utilizes two teams with different functions. The
    first is a case management team responsible for ensuring timely,
    objective, and fair institutional responses for survivors and
    respondents. The second is responsible for guiding the campus in
    preventing and responding to sexual violence at a campus level with
    respect to policies, community relations, prevention and intervention.
        2. Adopt systemwide investigation and adjudication standards,
    including sanctions.
        3. Develop a comprehensive training and education plan for the UC
    community including students, staff and faculty that focuses on
    prevention and intervention and is specifically tailored to each
    population and includes on-going education.
        4. Implement a comprehensive communication strategy to educate the
    community and raise awareness about UC programs. The strategy leverages
    national, UC system, and campus communication efforts including the
    White House campaign, It's on Us, and Yes Means Yes.
        5. Establish an independent, confidential advocacy office for
    sexual violence and sexual assault on each campus that is available to
    student survivors on all UC campuses.
        6. Create a comprehensive systemwide website to provide general
    content, information and resources to all campus populations that can
    also be customized for each campus.
        7. Develop a systemwide standard data collection system that
    leverages current information collected, which will allow the campuses
    and the University system to better track claims of sexual assault and
    foster accountability and transparency.

        In January 2015, the Task Force provided further detail on
    implementation of the recommendations, which builds on current
    strengths of the campuses and focuses efforts on enhancing or
    overhauling, as appropriate, existing efforts throughout the system. At
    that time four of the recommendations had been implemented, including
    the CARE Advocate, consistent response team models, the communication
    strategy, and the systemwide website. Additionally, the Task Force
    identified an eighth recommendation: the importance of ensuring that
    respondents receive appropriate support based on their circumstances.
        I would like to highlight the work of the Task Force and the
    campuses in implementing the recommendation to establish a ``CARE:
    Advocate Office for Sexual and Gender-Based Violence and Sexual
    Misconduct'' at every campus. These full-time CARE Advocates have
    received the training required to be confidential and privileged on-
    campus advocates for survivors of sexual violence and sexual assault.
    They utilize a trauma-centered approach to work with and meet students'
    needs and they are available to UC students on a 24/7 basis. This
    responds to what the Task Force specifically heard from students--that
    they wanted more on-campus resources. The implementation of this
    recommendation is also in line with legislation introduced by Senator
    Barbara Boxer and Representative Susan Davis, the Survivor Outreach and
    Support Campus Act (SOS Campus Act), and could serve as a model for the
    Nation.
        Last week, the UC Board of Regents received an update on the four
    remaining Task Force recommendations. These included updates on the
    adoption of investigation and student adjudication standards--including
    a consistent approach to sanctions--across the UC system. The Task
    Force also reported on the development of a common educational
    framework with standardized content goals, objectives, and definitions
    for mandatory annual education for faculty, staff, and students. This
    means that more than 400,000 faculty, staff, and students will receive
    education around preventing and reporting sexual violence and sexual
    assault. The update also outlined progress in providing support
    services for respondents--important to ensure that all parties receive
    appropriate support and information during the investigation and
    student adjudication process. These recommendations will be fully
    implemented by January 2016.
        The work of the Task Force is not finite and the members will
    continue to monitor progress, gather metrics, and review
    implementation. They will focus on evaluating the new changes put into
    place and will work with researchers and other experts to assess the
    effectiveness of the changes made across the University of California.
    We want to make sure our efforts are making a positive difference--and
    indeed changing the culture across our campuses.
        The University did not operate in a vacuum in developing and
    implementing these changes to our processes and approach to addressing
    sexual violence and sexual assault. Research and review of current
    practices across the country were of paramount importance to the work
    of the Task Force. There is a myriad of interconnected psychological,
    social, emotional, legal, and administrative issues involved in trying
    to understand how best to prevent and respond to sexual violence and
    sexual assault. The Task Force reviewed relevant core concepts, current
    UC processes, practices from other universities, and academic research.
    The Task Force consulted with constituents and experts both within and
    outside the University and evaluated and discussed specific issues that
    cross functionalities, processes, and responsibilities throughout the
    system. The Task Force focused on identifying practices which would
    reflect outcomes demonstrating effectiveness.
        The Task Force and its work groups reviewed sexual violence and
    sexual assault prevention practices from 115 universities across the
    Nation. These universities received grants from the Centers for Disease
    Control and Prevention (CDC) or the U.S. Department of Justice (DOJ)
    Office of Violence Against Women (OVW) to address some portion of
    sexual violence and sexual assault.
        Academic research linked to sources from the White House Task Force
    on Sexual Assault and Violence Prevention, as well as accepted
    ``evidence-informed'' research of best practices on policies, training
    and education, case management, and survivor support, was reviewed
    throughout the Task Force's work. The Task Force also called on various
    internal and external experts to advise on and review various parts of
    the recommendations. As new studies, reports, and campus agreements
    from the U.S. Department of Education's Office of Civil Rights (OCR)
    were unveiled, these too were reviewed and incorporated into the Task
    Force's efforts.
                           state legislative activity
        The Task Force continues to develop plans and strategies for
    implementing the remaining recommendations even while the legal
    landscape is changing based on legislation that has been enacted or
    proposed at both the Federal and State levels. California State law
    continues to evolve in this area. In January 2015, the State's ``Yes
    Means Yes'' bill became effective. The law now requires colleges and
    universities to adopt certain policies concerning sexual violence,
    domestic violence, dating violence, and stalking, such as an
    affirmative definition of consent and a preponderance of evidence
    standard. The bill also requires UC and other institutions to
    collaborate with campus and community organizations and implement
    comprehensive prevention and outreach programs. UC, having already
    adopted an affirmative consent policy in addition to many of the other
    requirements of the bill, supported the legislation.
        The California legislature continues to contemplate legislation
    addressing campus sexual violence, including legislation introduced
    this year that seeks to require colleges and universities to carry out
    uniform processes for disciplinary proceedings and consistent standards
    of discipline for students found responsible for sexual assault. The
    California legislature is also considering a bill that would require a
    student's transcript to include a notation when that student has been
    suspended or expelled.
                          federal legislative activity
        The University of California is committed to fostering a healthy
    and inclusive environment where all members of the University community
    can work and learn together free from harassment, exploitation,
    intimidation, or physical harm. UC supports Federal proposals to help
    all institutions of higher education navigate the complex set of issues
    they face in preventing, responding to, and reporting incidents of
    sexual violence and sexual assault. UC also supports broader
    coordination and accountability among other partners in this endeavor,
    such as prosecutors and the courts.
        Before outlining my views on S. 590, the Campus Safety and
    Accountability Act, or CASA, which is the subject of this hearing, I
    would like to note UC's underlying principles:

         Federal legislation must be flexible enough to allow for
    institutional differences, yet strong enough to ensure full
    accountability.
         Existing rules and regulations now in place through the
    Higher Education Act, including for example, the Clery Act and title
    IX, along with the Violence Against Women Act (VAWA) and Department of
    Education oversight through the Office of Civil Rights (OCR) must be
    better coordinated. The definitions, regulations, program guidance,
    timelines, and other programmatic components are not synched, resulting
    in overlapping investigations, confusing interpretations, and at times
    contradictory legal advice. The Department of Education could begin--
    even before Federal legislation is enacted--to streamline its internal
    procedures to better guide institutions toward full compliance with
    current laws and regulations.
         Any new laws or regulations must not ``undo'' or
    contravene programs and policies institutions have implemented that are
    based on sound research and represent best practices for action. With
    MOUs, as one example, there must be flexibility for compliance based on
    what is already in place, and assurances that if Federal guidance and
    standards are adhered to, they will stand up against challenges from
    the courts.
                                uc views on casa
        Implementation of the Task Force recommendations I have outlined
    brings the University of California into voluntary compliance with many
    of the provisions of the Campus Accountability and Safety Act (CASA),
    which are aimed at enhancing campus resources and support services for
    student survivors.
        The Task Force recommendations that will be implemented at UC over
    the next months, including developing a comprehensive education and
    training program on each campus and unified investigation and student
    adjudication standards, build on that progress. UC looks forward to
    working with Senator McCaskill, Senator Gillibrand and the other co-
    sponsors of CASA on the provisions of the bill.
        Here are UC's comments on the legislation as it now stands.
    Support for Survivors of Sexual Assault
        UC strongly supports CASA's requirement for institutions of higher
    education to designate a confidential advocate that survivors can
    report to anonymously and directly. I am pleased that the legislation
    requires each employee of an institution of higher education who has
    responsibility for conducting an interview with an alleged victim of
    sexual violence to complete minimum training requirements in victim-
    centered, trauma-informed interview techniques. This is consistent with
    what we have implemented on our own campuses.
        However, the University does have a few comments and concerns with
    other aspects of this provision:

         The level of ``confidentiality'' these advisors can
    maintain may be dependent on Federal and State law. Any legislation in
    this area must ensure that the ``confidentiality'' of services provided
    by these advisors is clearly defined by the institution and shared with
    students in plain language.
         UC does not believe that institutional size should be the
    determinant factor for the number of confidential advisors on a campus.
    CASA would direct the Department of Education to define, through a
    negotiated rulemaking process, an ``adequate number'' of confidential
    advisors that an institution must appoint based on the institution's
    size. While institution size is one of many factors, instead, as the UC
    Task Force recommended, the staffing level should be sufficient to
    provide support at any time of day for all survivors given the size and
    needs of the individual campus.
         The University is concerned that the legislation's
    requirement that the confidential advisors collect and report
    statistics about crimes as required by the Clery Act may diminish the
    perceived confidentiality of the advisor. I cannot stress enough the
    importance that these advisors must be confidential and independent.
    While a confidential advisor is not obligated to report crimes to the
    institution under CASA, they would still have to report crime
    statistics as part of the Clery Act, which may make students feel the
    advocates are not confidential and independent.
    Amnesty Policy
        UC is pleased CASA's amnesty requirement is narrow enough in scope
    to preserve an institution's ability to protect the health and safety
    of its campus community. UC policy and California law already have
    existing amnesty provisions that ensure that a student who is a
    complainant or witness in an investigation of sexual violence is not
    subject to disciplinary sanctions for violations of student codes of
    conduct at or near the time of the incident. However, both California
    State law and UC policy allow the institution some flexibility for
    egregious violations such as an action that places the health or safety
    of any other person at risk. Federal law should not contradict or undo
    stronger provisions in State law.
    Student Disciplinary Proceedings
        As evidenced by the steps the UC Task Force is taking to develop
    consistent student adjudication and investigation standards, including
    disciplinary proceedings, I support CASA's provisions related to
    developing common, consistent practices and standards in response to
    sexual violence across campuses. Further, I am pleased that the current
    version of CASA has clarified that the provisions apply to student
    proceedings. As previously noted in my testimony, this is another area
    where State law and UC policy are already moving in this direction and
    so I caution against any action in Federal legislation that may undo
    those actions we have already taken.
    Data Collection and Reporting
        CASA would require institutions to report sexual violence and
    sexual assault statistics--such as the number of cases investigated by
    the institution, the number of cases referred for a disciplinary
    hearing, the number of cases referred to law enforcement, and a
    description of the final sanctions imposed on sex offenses--in their
    Annual Security Reports required by the Clery Act. The University
    believes that the collection of data is vital for ensuring
    accountability and transparency and for evaluating our institutional
    efforts to prevent and respond to incidents when they occur. In fact,
    proposed State law in California would require the collection of
    similar statistics and that the data be posted to the University's
    website.
        UC is concerned, however, that data required for collection in the
    Clery Act can lead to false or inaccurate conclusions. For example, not
    all of the sex offenses reported as Clery Act crimes are subject to
    institutional disciplinary proceedings--for example, if the accused
    offender is not a UC student. New proposed statistics could result in
    the mistaken conclusion that an institution is not appropriately
    addressing all reported student sex offenses. Consequently, we must
    ensure that any additional requirement to collect statistics on Clery
    Act offenses be consistent and clear so that the data does not result
    in misleading comparisons of unrelated information. Further, should
    State legislation pass, we may be required to collect and report
    different, though somewhat similar, data points in different manners
    which could create confusion to those individuals reviewing such
    information.
    Surveys
        CASA requires that the Department of Education develop, design and
    administer a standardized, online, annual survey of students regarding
    their experiences with sexual violence and harassment every 2 years.
    Having just conducted the largest university system climate survey of
    its kind in the Nation, I have significant concerns about the
    usefulness of a single survey developed for all institutions given the
    broad diversity in higher education institutions across the Nation and
    the student populations they serve. UC surveyed not only students, but
    also faculty and staff about their experiences and perceptions of the
    campus or workplace climate. We now have a rich baseline of data that
    campuses are analyzing to identify key areas of focus. Institutions
    should be allowed to develop and use their own climate surveys, as long
    as they meet criteria and standards defined by the Department of
    Education and are developed in consultation with stakeholders. Further,
    I believe that it is inappropriate for the legislation to place the
    responsibility on the university for ensuring that an adequate, random,
    and representative sample size of students enrolled at the institution
    completes the survey. This requirement could compromise the perceived
    anonymity of the survey and would be especially challenging if the
    survey would be administered by the Department of Education and not the
    institutions.
    Memoranda of Understanding with Law Enforcement
        CASA would require institutions to enter into and review every 2
    years memoranda of understanding (MOU) with ``each law enforcement
    agency that has jurisdiction to report as a first responder to a campus
    of the institution'' to clearly delineate responsibilities and share
    information about certain serious crimes that shall include, but not be
    limited to, sexual violence. As noted earlier in my testimony I
    strongly believe in the importance of MOUs between institutions of
    higher education and local law enforcement. However, the University is
    concerned that the specific provisions of CASA fail to recognize that
    many colleges and universities employ fully sworn peace officers.
        The University of California, like many university police
    departments nationwide, employs fully sworn law enforcement officers
    with full arrest powers and primary jurisdiction for first-response and
    law enforcement on their campus. According to a survey by the Bureau of
    Justice Statistics, this is especially true for large public colleges
    and universities, and in the 2011-12 school year, 68 percent of the
    more than 900 U.S. 4-year universities and colleges with 2,500 or more
    students employed sworn law enforcement officers who had full arrest
    powers granted by a State or local government.
        UC police officers are trained and certified consistent with the
    California Commission on Peace Officer Standards and Training
    requirements and they investigate incidents of sexual assault and other
    felony and misdemeanor crimes as both first responders and as trained
    and experienced criminal investigators. As with local law enforcement,
    University police follow response and investigative protocols
    established in the county of jurisdiction, including collaboration with
    the County District Attorney's office, adherence to county guidelines
    for sexual assault evidence collection and medical examination by
    specially trained medical personnel, and collaboration with other law
    enforcement agencies as appropriate to increase the likelihood of
    bringing offenders to justice.
        CASA's requirements for an MOU that would allow local law
    enforcement agencies to dictate ``training and requirements for the
    institution on issues related to sexual violence'' is unnecessary and
    fails to recognize the campus police department's primary law
    enforcement responsibilities for the institution. At UC, our campus
    police departments are included in our sexual violence and sexual
    assault training. They receive investigation training, trauma-informed
    training, training from the California Commission on Peace Officer
    Standards and Training, and mandated training regarding sexual violence
    and sexual assault, which is much more than may be required through
    CASA and the training is more focused on the areas that need to be
    emphasized.
    Campus Security Authorities and Responsible Employees
        CASA would designate all responsible employees of institutions of
    higher education as campus security authorities (CSAs) as defined by
    Clery Act regulations, which encompasses a very large number of
    employees. The University is concerned that this broadening of the CSA
    definition would require significant changes in the way UC campuses
    train CSAs and could unnecessarily complicate the processing of Clery
    reports because all CSAs must report statistics for the Clery Act.
    Additionally, CASA gives the Secretary of Education, in coordination
    with the Attorney General, responsibility for determining the minimum
    training requirements for an institution's ``responsible employees.''
    In order to be most effective, I believe that these minimum training
    requirements should be developed in consultation with institutions and
    other affected stakeholders. This ensures that the training
    requirements are based on a clear understanding of institutional
    practices, challenges faced by ``responsible employees,'' and the needs
    of the victims.
    Grants to Improve Prevention and Response to Sexual Violence and Sexual
            Assault
        UC welcomes the opportunity for outside funding to augment our
    current programmatic efforts via a new competitive grant program
    authorized in CASA. The program would allow institutions of higher
    education to apply for grants for the purposes of researching best
    practices for preventing and responding to sexual harassment, sexual
    assault, domestic violence and stalking on college campuses and
    disseminating such research with peer institutions.
    Penalties
        CASA would authorize new civil fines of not more than 1 percent of
    an institution's ``operating budget,'' as defined by the Department of
    Education, for:

         violations of title IX related to sexual violence;
         failure to comply with CASA requirements for establishing
    MOUs with law enforcement; and
         failure to comply with CASA requirements related to
    confidential advisors.

        I am pleased to see that CASA place the funds into the grant
    program created in the legislation.
    Stakeholder Engagement
        UC recommends that the bill require the Department of Education to
    consult with institutions and other affected stakeholders prior to
    implementing any new policies or regulations for CASA. This is the best
    way to ensure that any new institutional requirements are based on a
    clear understanding of institutional practices and challenges, as well
    as the needs of the victims and respondents.
                           additional recommendations
        The University of California is not unique in its desire to protect
    its community and improve its practices. UC has strived to implement a
    robust, comprehensive, consistent, and transparent model to address
    sexual violence and sexual assault across the University. Much of the
    work that has and continues to occur at UC can serve as a model for the
    Nation, though much more needs to be done by all universities.
        For example, we need more engagement on the law enforcement and
    legal fronts. At UC, our activities to prevent and respond to sexual
    violence and sexual assault are well coordinated with our local law
    enforcement agencies, and this is a key component of our efforts. As I
    already explained, UC police officers are fully sworn and trained law
    enforcement personnel who respond to and investigate all crimes,
    including cases of sexual violence and sexual assault. They also work
    with other law enforcement agencies as needed. However, as effective as
    they are, they do not prosecute crimes.
        In this spirit of partnership, back in May, California Attorney
    General Kamala Harris and I unveiled a new toolkit for California law
    enforcement agencies and higher education institutions to help them
    improve their coordination and collaboration in response to cases of
    campus sexual assault and other violent crimes. The template MOU is
    available but not required if a campus already has agreements in place
    with local law enforcement that address this type of collaboration and
    information sharing. It is designed so that it can be adapted to meet
    local needs, ensure consistency with existing agreements, or revisit
    existing agreements to reconcile changes in law or policy. In addition
    to covering various law enforcement entities, if needed, MOUs can be
    set with district attorneys, local medical facilities, or other
    community-based organizations. Using the model MOU will reflect a
    shared commitment among the parties to justice for survivors and
    accountability for perpetrators of sexual violence and build trust and
    ensure appropriate outcomes for criminal acts of sexual violence and
    sexual assault.
        As I stated earlier, much more could be done to improve the clarity
    and coordination of existing laws and policies. Within the Department
    of Education, the Clery Act, title IX, VAWA, and OCR investigations use
    different definitions, coverage, and reporting requirements, and there
    is no coordination of investigations between the Federal Government and
    individual States. For example, this can create great confusion because
    reporting obligations under OCR guidance is driven by who is the victim
    or perpetrator and under Clery reporting is based on where an incident
    occurs. Individuals may have obligation to report under one or both. In
    addition to the fact that there is significant confusion at
    institutions about what is ``recommended'' or ``preferred,'' there are
    legal and financial implications to this lack of regulatory
    coordination.
        Congress must be aware that there is substantial interplay between
    Federal legislation and regulations and State laws, which adds another
    layer of complexity to higher education's efforts to address this
    important issue. Institutions, in following Federal guidance and rules
    and regulations, should not unintentionally run afoul of State legal
    and administrative requirements.
        I am concerned that an entire cottage industry of consultants has
    grown to ``help'' schools manage sexual violence and sexual assault.
    Personally, I would rather invest the university's resources in
    education, training, and prevention programs rather than in untangling
    the web of overlapping State and Federal audits, investigations, and
    laws.
                                   conclusion
        UC holds itself to the highest standards and will continue to work
    to ensure that all of our campuses, medical centers, and labs maintain
    a culture of respect and inclusion. We will continue to review and
    improve our efforts and practices to make sure UC is a place where all
    students, faculty, and staff are safe.
        Thank you very much for your time and attention to my testimony.

        Senator Collins. Thank you very much for your excellent
    testimony.
        Ms. Bolger, welcome.

    STATEMENT OF DANA BOLGER, CO-FOUNDER, KNOW YOUR IX, WASHINGTON,
                                   DC

        Ms. Bolger. Thank you, and good morning, Chairman Collins,
    Ranking Member Murray, and members of the committee. I'm very
    grateful to be here to testify at this committee's hearing on
    campus sexual assault.
        During my time at Amherst College, from which I graduated
    in 2014, I benefited from decades of activism and legislation
    to promote gender equality on campus. I also inherited a
    history of administrative under-enforcement, in the shadow of
    which gender violence was rampant. Schools mistreated young
    survivors with impunity, and few students knew title IX was
    about anything more than women's sports.
        On my campus alone, students who experienced sexual or
    dating violence were discouraged from reporting, denied
    counseling and academic accommodations, and pressured to take
    time off. When I reported my own abuse to my school, I was
    urged to drop out, go home, and return after my rapist had
    graduated.
        Nearly every day, Know Your IX hears from students who have
    had similar experiences, and the hardest hit are often the most
    marginalized--students of color, LGBTQ students, low-income
    students, and students with disabilities. For many survivors,
    these inadequate school responses have not only frustrated
    their efforts to learn and graduate, but have also come with
    staggering financial burdens.
        The costs of violence are very real. Between the expense of
    health services that colleges have refused to provide and
    tuition lost when victims feel they cannot safely remain on
    campus with their assailant without administrative support.
        These costs impact survivors' educational opportunities
    while in school and continue long after graduation. Many
    survivors' grades plummet when they are forced to study in
    libraries with their abusers or when they suffer from
    depression and PTSD without administrative support, often
    leading to diminished wages long down the road. This
    intolerable status quo demands a strong Federal response.
        Due in large part to the important recent guidance from the
    Department of Education's Office for Civil Rights, schools are
    finally beginning to take their responsibilities more
    seriously. Accommodations like housing changes and mental
    health services may seem trivial to the outside observer. To
    student survivors across the country, they are making the
    difference between staying in school and dropping out.
        Title IX is a powerful tool to keep the one in five women
    who will suffer gender violence during college in school and
    learning. In reauthorizing the Higher Education Act, Congress
    should build on previous efforts in order to continue the fight
    to end violence and discrimination in higher education.
        I outlined a number of solutions in my written testimony,
    but here I am going to focus on two: mandating campus
    transparency and promoting effective enforcement of title IX
    through finding authority and funding for the Office for Civil
    Rights.
        First, transparency. There are strong perverse incentives
    for schools to sweep violence under the rug. A school that
    provides clear pathways for reporting may see an increase in
    the number of people disclosing assaults and, hence, a spike in
    its assault numbers under the Clery Act. This could make the
    school seem unsafe compared to a school that discourages
    reporting.
        To counteract these potential negative reputational
    consequences, Congress should mandate that all schools conduct
    yearly campus climate surveys and publish the results. It
    matters how these surveys are instituted. Infrequent climate
    surveys or surveys where the results for each campus are not
    made public or released merely as aggregate data from numerous
    schools will hinder our efforts to create safer campuses.
        Each school should also be required to publish aggregate
    statistics on how and how promptly investigations are being
    handled. Together, this information will help students and
    families assess how each school handles these cases in practice
    and will give policymakers the data they need to continue
    shaping legislative solutions.
        Second, Congress should act to strengthen Federal
    enforcement efforts. The Office for Civil Rights currently
    relies upon the empty threat of revoking all financial support
    from a college or university to motivate schools to comply with
    the law. This is a nuclear option, too disastrous to ever be
    implemented.
        Providing the Office for Civil Rights with the explicit
    authority to levy fines against schools that violate the law
    would give the agency the increased leverage necessary to hold
    schools accountable without devastating programming and aid for
    students in the process. Crucially, this authority must be made
    available for the department to enforce all relevant civil
    rights laws to ensure that students are free from all forms of
    discrimination, including those based on race and disability.
        I also want to point out that serious efforts to combat
    violence on our campuses will require increased appropriations
    for the Office for Civil Rights. As more survivors come forward
    and the number of complaints grows dramatically, OCR remains
    grossly underfunded and understaffed. Increased funding would
    allow OCR to provide additional technical assistance to schools
    on how to comply with title IX, to better inform students about
    their rights, and to improve campus safety by ensuring timely
    investigations.
        Over the last 5 years, we've seen a remarkable
    transformation. Conversations about gender violence once were
    confined to whispers in dorm rooms. Today, survivors and
    advocates like me have the opportunity to discuss these urgent
    issues before this committee.
        Thank you for your time and for your commitment to building
    a future where students can learn and thrive free from
    violence.
        [The prepared statement of Ms. Bolger follows:]
                       Prepared Statement of Dana Bolger
                                    summary
        One in five women will experience sexual assault during her time in
    college, as will many men and gender nonconforming students.\1\ Queer
    and transgender students and students of color are particularly
    vulnerable to violence.\2\ Unfortunately, in the wake of this
    harassment and abuse, many colleges and universities deny students the
    support they need--and to which they are legally entitled under title
    IX.
    ---------------------------------------------------------------------------
        \1\ The White House Council on Women and Girls. (2014). ``Rape and
    Sexual Assault: A Renewed Call to Action.'' Accessed July 25, 2015.
    https://www.whitehouse.gov/sites/default/files/docs/
    sexual_assault_report_121-14.pdf.
        \2\ Ibid.
    ---------------------------------------------------------------------------
        For many students, inadequate school responses have not only
    frustrated their efforts to learn and graduate but have also come with
    staggering financial burdens. The costs of violence are real and range
    from the expense of health services that colleges have refused to
    provide to the tuition and scholarships lost when victims feel they
    cannot safely remain on campus with their assailant without
    administrative support.\3\
    ---------------------------------------------------------------------------
        \3\ Brodsky, Alexandra. (2014). ``How Much Does Sexual Assault Cost
    College Students Every Year?'' The Washington Post. Accessed July 25,
    2015. https://www.washingtonpost.com/posteverything/wp/2014/11/18/how-
    much-does-sexual-assault-cost-college-students-every-year/.
    ---------------------------------------------------------------------------
        This intolerable status quo--in which survivors of gender-based
    violence are still unable to access their right to education, over 40
    years after Congress passed title IX--demands a strong Federal
    response. In reauthorizing the Higher Education Act, Congress should
    build on existing Federal protections for survivors of sexual and
    dating violence and address key remaining obstacles: lengthy Federal
    investigations that conclude with little more than a slap on the wrist;
    widespread opacity; and campus policies that discourage student
    survivors from reporting violence. Toward this end, Congress and the
    Administration should take several critical steps: increase funding for
    the Department of Education's Office for Civil Rights (OCR); empower
    the OCR to issue fines against schools for civil rights violations;
    increase campus transparency by mandating colleges and universities to
    conduct climate surveys and issue aggregate data on disciplinary
    outcomes; and require campus policies, such as disciplinary amnesty
    policies, that create an environment in which students feel safe and
    empowered to report violence without fear of discrimination or
    retaliation.
                                     ______

                                  introduction
        My name is Dana Bolger and I am one of the founding co-directors of
    Know Your IX, a national student campaign against campus gender
    violence. I am grateful for the opportunity to testify at this
    committee's hearing on Reauthorizing the Higher Education Act:
    Combating Campus Sexual Assault.
        I co-founded Know Your IX in 2013 to ensure that title IX's core
    commitment--that students be able to learn free from violence--was a
    right not only on paper but in reality. What began as just a few
    students at their computers working to spread the word about title IX
    to our classmates has grown into an organization supporting a national
    network of students working to build safer schools.
        During my time at Amherst College, from which I graduated in 2014,
    I was a beneficiary of decades of mobilizing for gender equality and
    safety on campus. Title IX is a powerful law, and my generation has so
    many activists and policymakers to thank for its protections. As a
    student, I was also the inheritor of a history of administrative under-
    enforcement, in the shadow of which schools mistreated young survivors
    with impunity and few students knew title IX was about anything more
    than women's sports. On my campus alone, students who experienced
    sexual or dating violence were discouraged from reporting, denied
    counseling and academic accommodations, and pressured to take time off.
    When I reported abuse to my school, I was told I should drop out, go
    home and take care of myself, and return when my rapist graduated. All
    of us were denied our right to learn free from gender violence.
        We as Amherst students were not alone. Know Your IX grew out of
    conversations with survivors across the country, from California to
    Maine, who had experienced similar gender violence and institutional
    mistreatment--all in violation of title IX. Research shows that one in
    five women will experience either sexual assault or attempted sexual
    assault during her time in college, as will many men and gender
    nonconforming students.\4\ We also know that LGBT students and students
    of color are particularly vulnerable to violence.\5\ Yet so many
    students--and particularly the most marginalized--have been dismissed
    by the schools to which they have turned for support. Many colleges and
    universities have denied students the protections they need, like
    Amherst did to me. Many have placed uniquely onerous challenges, like
    higher evidentiary burdens, in the way of rape victims who pursue
    disciplinary charges against their assailants, to which victims of
    other student conduct code violations--like theft and non-sexual
    physical assault--are not subject.\6\
    ---------------------------------------------------------------------------
        \4\ The White House Council on Women and Girls. (2014). ``Rape and
    Sexual Assault: A Renewed Call to Action.'' Accessed July 25, 2015.
    https://www.whitehouse.gov/sites/default/files/docs/
    sexual_assault_report_1-21-14.pdf.
        \5\ Ibid.
        \6\ Anderson, Michelle J. (2004). ``The Legacy of the Prompt
    Complaint Requirement, Corroboration Requirement, and Cautionary
    Instructions on Campus Sexual Assault.'' 84 B.U. L. Rev. 945.
    ---------------------------------------------------------------------------
        For many students, these inadequate school responses have not only
    frustrated their efforts to learn and graduate but have also come with
    staggering financial burdens. The costs of violence are very real,
    between the expense of health services that colleges have refused to
    provide and tuition lost when victims feel they cannot safely remain on
    campus with their assailant without administrative support.\7\ Those
    costs impact survivors' educational opportunities while in school, and
    continue long after graduation: many survivors' grades plummet when
    they are forced to study in libraries with their abusers or when they
    suffer from depression and PTSD without administrative support--often
    leading to diminished wages down the road.\8\
    ---------------------------------------------------------------------------
        \7\ Brodsky, Alexandra. (2014). ``How Much Does Sexual Assault Cost
    College Students Every Year?'' The Washington Post. Accessed July 25,
    2015. https://www.washingtonpost.com/posteverything/wp/2014/11/18/how-
    much-does-sexual-assault-cost-college-students-every-year/.
        \8\ Simon, Cari. (2014). ``On Top of Everything Else, Sexual
    Assault Hurts the Survivors' Grades.'' The Washington Post. Accessed
    July 25, 2015. https://www.washingtonpost.com/posteverything/wp/2014/
    08/06/after-a-sexual-assault-survivors-gpas-plummet-this-is-a-bigger-
    problem-than-you-think/.
    ---------------------------------------------------------------------------
        This intolerable status quo--in which survivors of gender-based
    violence are still unable to access their right to education--demands a
    strong Federal response.
            the vital importance of title ix and the campus save act
        Schools are finally beginning to take seriously their
    responsibilities to survivors thanks to the efforts of students and the
    important work of the Department of Education's Office for Civil Rights
    (OCR).
        OCR's recent clarifications of colleges and universities'
    responsibilities for supporting survivors have elucidated schools'
    obligations to provide accommodations, such as housing changes and
    mental health services. These accommodations may seem trivial to an
    outside observer but, to a survivor, they can make the difference
    between staying in school and dropping out. Other accommodations like
    an extension on a paper due the week after a student's rape, or
    tutoring to help a survivor catch up on classes missed to avoid sitting
    in class with an abusive partner, can ensure a young person is able to
    learn. The title IX framework is uniquely able to deliver these
    valuable services given its focus on access to education as a matter of
    equality.
        Campus SaVE, which was passed as part of the 2013 reauthorization
    of the Violence Against Women Act, represents an invaluable Federal
    effort to provide protections for survivors. It increases transparency
    for students and their families by broadening the Clery Act reporting
    requirements to include incidents of domestic violence, dating
    violence, and stalking. It works to prevent future instances of
    violence by requiring colleges to provide primary prevention and
    awareness programs to new students and employees, as well as ongoing
    prevention and awareness campaigns.
        In addition, Campus SaVE, as well as title IX, requires schools to
    investigate reports of gender violence in a manner that is fair to both
    parties, requiring prompt and equitable procedures and an equal
    commitment to both students. Campus SaVE provides explicit protections
    to complaining and accused parties to ensure that officials conducting
    disciplinary proceedings are well-trained; that each party can have an
    advisor of their choice; and that both parties receive the results of
    the disciplinary proceeding in writing and have the right to appeal the
    decision. Know Your IX strongly supports these requirements, which
    ensure proceedings are prompt and equitable for both parties.
          next steps to promote access to education free from violence
        Even at this time of national scrutiny and campus reform, many
    survivors are still denied the right to learn free from violence and
    discrimination. In reauthorizing the Higher Education Act, Congress
    should build on existing Federal protections for survivors of gender-
    based violence. Congress can help end gender violence in higher
    education by addressing several key remaining obstacles: lengthy
    Federal investigations that conclude with little more than a slap on
    the wrist; widespread opacity; and campus policies that discourage
    student survivors from reporting.
    1. Increasing Funding for the Office for Civil Rights
        Unfortunately, the Office for Civil Rights, which is primarily
    responsible for ensuring that schools are compliant with title IX and
    other civil rights laws, is grossly underfunded and understaffed.\9\
    Thanks to students' efforts, sustained media attention, and increased
    Federal enforcement, the number of complaints filed with OCR has
    increased exponentially in recent years. As of July 22, 2015, OCR is
    investigating 124 institutions, a number which has more than doubled
    since May 2014.\10\ OCR's caseload is now more than triple what it
    received in 1980, but its current staff is only half the size.\11\ As a
    result of the office's workload and the complexity of these cases,
    complainants face long delays: the average length of an investigation
    increased from 379 to 1,469 days between 2009 and 2014.\12\ At the
    postsecondary level, five investigations (the University of
    Massachusetts-Amherst, University of Virginia, Michigan State
    University, Wittenberg University, and Arizona State University) have
    stretched on for longer than 3 years--nearly the length of a student
    survivor's time in college.\13\
    ---------------------------------------------------------------------------
        \9\ Kingkade, Tyler. (2014). ``Senators Push for More Staff at
    Agency to Investigate Sexual Abuse at Colleges.'' The Huffington Post.
    Accessed July 25, 2015. http://www.huffing
    tonpost.com/2014/04/04/agency-sexual-assault-investigations-mccaskill-
    gillibrand_n_5092748
    .html.
        \10\ Ibid.
        \11\ New, Jake. (2015). ``Justice Delayed.'' Inside Higher Ed.
    Accessed July 24, 2015. https://www.insidehighered.com/news/2015/05/06/
    ocr-letter-says-completed-title-ix-investigations-2014
    -lasted-more-4-years.
        \12\ United States Department of Education. (2015). Letter to
    Senator Barbara Boxer. Accessed July 24, 2015. http://
    www.boxer.senate.gov/press/related/150428EducationDepartmentResponse
    toLetter.pdf.
        \13\ Rocheleau, Matt. (2015). ``Most Federal Sexual Cases Against
    Colleges Dropped.'' The Boston Globe. Accessed July 25, 2015. https://
    www.bostonglobe.com/metro/2015/04/08/most-federal-sexual-violence-
    complaints-against-colleges-dismissed-without-penalties-reform/
    tl31LxcXORr
    2Riauxh8iTO/story.html.
    ---------------------------------------------------------------------------
        Increased funding would allow OCR to provide additional technical
    assistance to schools on how to enter into compliance with title IX;
    better disseminate information to students about their rights and how
    to access them; and improve campuses safety by ensuring timely
    investigations, as well as continued monitoring, guidance, and support
    to schools in the months and years following the conclusions of their
    investigations.
    2. Empowering the Department of Education to Issue Fines for Civil
            Rights Violations
        The Department of Education's Office for Civil Rights believes it
    lacks the authority to levy fines against colleges and universities
    that violate civil rights laws like title IX. As a result, OCR relies
    upon the empty threat of revoking all financial support from a college
    or university (a ``nuclear option'' too disastrous to be implemented)
    to motivate schools to comply with the law. OCR has never once applied
    this punishment in a higher education sexual assault case, despite
    finding clear and serious violations of title IX on many campuses.
    Providing OCR with the explicit authority to levy fines would give the
    agency the increased leverage necessary to hold schools accountable,
    without devastating programming and aid for students in the process.
    Crucially, this authority must be available for the Department to
    enforce all relevant civil rights laws to ensure that students are free
    from all forms of discrimination, including those based on race and
    disability as well as sex.\14\
    ---------------------------------------------------------------------------
        \14\ See, e.g., 42 U.S.C.  2000d et seq. (prohibiting
    discrimination in educational institutions on the basis of race); 20
    U.S.C.  1681 et seq. (prohibiting discrimination in educational
    institutions on the basis of disability); 29 U.S.C.  794 (same).
    ---------------------------------------------------------------------------
    3. Increasing Campus Transparency
        There are strong perverse incentives for schools to sweep violence
    under the rug. For example, a school that provides clear pathways to
    reporting and protections for survivors will see an increase in the
    number of people disclosing assaults, and hence a spike in its assault
    numbers under the Clery Act. To untrained observers, such schools tend
    to look more ``unsafe'' than others that actively deter individuals
    from disclosing and have low numbers of reports as a result. This means
    that schools that are more proactively addressing violence may suffer
    negative reputational costs as a result of following the law.
        To counteract the potential negative reputational consequences of
    encouraging survivors to report, Congress should mandate that schools
    conduct campus climate surveys and publish their results publicly. This
    step would provide invaluable information to students and their
    families--including prospective students--and would increase incentives
    for schools to appropriately address violence. Schools should also be
    required to publish aggregate statistics on how investigations are
    being handled, which would provide greater insight into whether or not
    disciplinary proceedings are being handled promptly and equitably. This
    will help ensure that students, parents, and policymakers can evaluate
    and compare how each school responds to complaints of gender violence
    in practice, not just on paper.
    4. Preserving Campus Options
        I have much hope for the future of title IX and our ability to
    foster safe and equitable educational communities. Nonetheless, I do
    see one troubling pattern worth discussion here: Many State and Federal
    lawmakers, surely with the best of intentions, have suggested that
    schools should hand over all sexual assault cases to the police--even
    when the survivor has asked that they not do so. While intuitively
    appealing to many, these ``mandatory referral'' laws, as they are
    known, would actually decrease reporting rates and deprive survivors of
    the on-campus support they so desperately need.
        In a survey that Know Your IX conducted with the National Alliance
    to End Sexual Violence, 88 percent of victims said they believed
    mandatory referral laws would lead to fewer survivors reporting to
    either schools or the police.\15\ Some respondents explained that they
    sought accommodations and support from their schools but did not want
    to go through an arduous trial or did not yet feel prepared to speak to
    the police. Others stressed the importance of respecting victims'
    agency at a time when many feel powerless. One survivor wrote:
    ---------------------------------------------------------------------------
        \15\ Know Your IX. (2015). ``Survey Results: Ask Survivors.''
    Accessed July 24, 2015. http://knowyourix.org/ask-survivors/.

              ``When I reported to campus officials, I was not ready to
            press charges and if I had been forced to report to the police
            I wouldn't have been able to do it. I wouldn't have told anyone
            because I would have felt like I had even less control of
            myself. Having the decision be my own and on my own time make
    ---------------------------------------------------------------------------
            it a lot safer and healthier.''

        If fewer survivors report to their schools, fewer will receive
    access to the accommodations and protections title IX so crucially
    provides. Schools will have fewer opportunities to hold perpetrators of
    violence responsible, leading to less--not more--accountability for
    assailants.
        Ending sexual violence is a complicated task, and often the most
    intuitively appealing ``solutions'' are not really solutions at all. We
    must take the lead from survivors--9 out of 10 of whom tell us that
    mandatory referral laws will only promote silence and discourage
    victims from seeking the school support they need.\16\
    ---------------------------------------------------------------------------
        \16\ See also Ehrenfreund, Max. (2014). ``Virginia Wants to Force
    Universities to Report Every Rape to the Police. That Won't Address U-
    Va.'s Real Problem.'' The Washington Post. Accessed July 25, 2015.
    http://www.washingtonpost.com/blogs/wonkblog/wp/2014/12/03/virginia-
    wants-to-force-universities-to-report-every-rape-to-the-police-that-
    wont-address-uvas-real-problem. Brodsky, Alexandra and Elizabeth
    Deutsch. (2014). ``No, We Can't Just Leave College Sexual Assault to
    the Police.'' Politico. Accessed July 25, 2015. http://
    www.politico.com/magazine/story/2014/12/uva-sexual-assault-campus-
    113294.html.
    ---------------------------------------------------------------------------
    5. Promoting Survivor Reporting through Smart Campus Policies
        Every campus reporting process will be slightly different,
    reflecting the unique culture and structure of the school. Congress has
    an important role to play in ensuring that every college and university
    adopts key policies essential to ensuring survivors can turn to their
    school when in need of help.
                A. Disciplinary Amnesty
        Victims and bystanders are often under the influence of alcohol and
    other drugs at the time of an assault. Schools receiving Federal
    funding should be required to establish a campus policy that grants
    amnesty for any student who in good faith reports sexual violence
    witnessed or experienced while under the influence of alcohol or other
    drugs.
                B. Protections for Queer and Transgender Student Survivors
        Queer and transgender students are disproportionately vulnerable to
    sexual and gender-based violence.\17\ Yet many schools fail to
    recognize these students as victims or provide necessary support. Know
    Your IX has heard too many stories from students whose schools did not
    understand how a man could be raped or how a queer woman could abuse
    her girlfriend. We have heard too many stories from trans survivors
    whose administrations lacked the training and sensitivity to respond
    appropriately to their reports of violence. It is unsurprising, then,
    that many LGBT students decide not to report to their schools at
    all.\18\
    ---------------------------------------------------------------------------
        \17\ Kingkade, Tyler. (2015). ``LGBT Students Face More Sexual
    Harassment and Assault and More Trouble Reporting It.'' The Huffington
    Post. Accessed July 25, 2015. http://www.huffingtonpost.com/entry/lgbt-
    students-sexual-assault_55a332dfe4b0ecec71bc5e6a.
        \18\ Ibid.
    ---------------------------------------------------------------------------
        We cannot abandon these students. Title IX's protections, which
    cover all students, mean nothing if they are only available in practice
    for cis, straight women. Congress and the Administration must ensure
    that schools' policies and practices explicitly apply to queer and
    transgender students and prohibit a full range of forms of sexual and
    gender-based violence, and that administrators tasked with supporting
    students have been adequately trained to assist all students,
    regardless of sexual orientation and gender identity.
                                   conclusion
        Over the last 5 years, we have seen a remarkable transformation.
    Conversations about campus gender violence once were confined to
    whispers in corners of campus; today survivors and advocates like me
    have the opportunity to discuss these urgent issues before this
    committee. We must continue to meet these serious conversations with
    serious action. Thank you for your time and your commitment to building
    a future where students can learn and thrive free from violence.

        Senator Collins. Thank you so much, Ms. Bolger, for your
    testimony. It's so important that we put a human face on this
    problem, as I told you before the hearing, and that is what you
    have done today. I so admire that you turned your horrendous
    experience into advocacy so that others don't go through what
    you did. Thank you for being here today. It is appreciated.
        Ms. Stafford.

    STATEMENT OF DOLORES A. STAFFORD, EXECUTIVE DIRECTOR, NATIONAL
      ASSOCIATION OF CLERY COMPLIANCE OFFICERS AND PROFESSIONALS;
    PRESIDENT AND CEO, D. STAFFORD AND ASSOCIATES, REHOBOTH BEACH,
                                   DE

        Ms. Stafford. Good morning, Chairman Collins, Ranking
    Member Murray, and members of the committee. I appreciate the
    opportunity to join you to briefly discuss the requirements of
    the Clery Act, including the newest requirements added by VAWA
    amendments in addition to what institutions are doing to make
    campuses safer.
        I have a unique perspective on all of this as I had the
    opportunity at the George Washington University to serve as the
    chief of police, where I founded and supervised a sexual
    assault response team for almost 20 years, and it is not a
    common model for a chief of police to also supervise a sexual
    assault advocacy group. This model worked at GW because of my
    passion for wanting to ensure survivors of sexual assault were
    not re-victimized by our response, processes, or actions in
    dealing with what I consider to be one of the most personal
    violations a human being can suffer.
        We dealt with over 250 cases during my tenure at GW. That
    said, I know firsthand that campuses expend significant effort
    and resources in bolstering campus safety, ranging from
    implementing physical security systems to developing
    operational policies and procedures to plan for emergencies and
    crisis scenarios and providing a myriad of educational programs
    to enhance knowledge and awareness regarding crimes on campus.
        Campuses form committees, teams, task forces, and town-gown
    organizations to resolve pressing issues related to campus
    safety, and they consider best practices and research in
    formulating effective prevention and response strategies.
        A cornerstone of campus safety efforts involves compliance
    with the Clery Act. The Clery Act requires all eligible
    institutions to comply with a constellation of annual, ongoing,
    and immediate requirements. Some of these requirements include
    identifying all campus security authorities, or what I like to
    call mandatory reporters of crime, and developing a system to
    gather crime statistics from all of those people on campus
    identified as CSAs.
        This is a significant task. For example, a small
    residential college would typically have between 300 and 500
    CSAs who have to be trained in their responsibilities as
    mandatory reporters of the crimes that they become aware of.
        Publishing and distributing an annual security report.
    These reports must currently include 111 separate policy
    statement disclosures and 3 years worth of crime statistics for
    the 15 Clery reportable crimes.
        Campuses have to quickly alert the campus community via a
    timely warning notice of reported Clery crimes that may pose a
    serious or continuing threat to the community, and they have to
    immediately alert the campus community via an emergency
    notification of any reported or potential incidents that pose
    an immediate threat to the health and safety of the community.
    They have to create and maintain and make available a written
    daily crime log, just to name a few of the requirements.
        The Department of Education has published a 300-page
    handbook as a resource for institutions to comply with this
    incredibly complex law. The handbook contains many rules and
    many exceptions to those rules. To Clery compliance officers,
    the handbook feels as clear as the U.S. tax code.
        In 2013, VAWA amendments to the Clery Act added 47 new
    policy statement disclosures to the law--there were previously
    64 disclosures--effectively doubling its requirements. The new
    policy statements largely require institutions to develop,
    implement, and disclose very specific procedures the
    institution will follow upon receipt of a report of any VAWA
    offense.
        VAWA also includes the new requirement to report crime
    statistics for domestic violence, dating violence, and stalking
    incidents and includes two new categories of hate crime
    reporting. Information concerning a victim's rights and options
    must also be provided in writing to students and employees
    reporting VAWA crimes.
        A new addition per VAWA and, in my opinion, the most
    important one is the mandate for institutions to provide
    education efforts around prevention and awareness of sexual
    assault, domestic violence, dating violence, and stalking.
    These programs for current and new students and employees must
    address a significant amount of required content, i.e., the
    educational programs are now prescriptive, which I elaborate on
    in my written testimony.
        Title IX's indelible influence can be seen throughout VAWA
    amendments. Many of the requirements under Clery have been
    adapted, often wholesale, from the pre-existing title IX sub-
    regulatory guidance and elevated to VAWA's implementing
    regulations, such that they carry the force of law under the
    Clery Act. Specific examples of overlap between the laws may
    also be found in my written testimony. Campuses earnestly want
    to comply with the Clery Act, and many see it as a basement,
    not a ceiling, of campus safety efforts.
        Many of the new requirements proposed by CASA are laudable
    and have potential to enhance existing safety on campus. Each
    of these proposals will require a thoughtful consideration of
    implications, intended or otherwise, of adoption, especially
    from a practitioner's perspective.
        As a professional association representing Clery compliance
    officers and professionals, NACCOP welcomes the opportunity to
    be involved in any efforts to help consider the practical
    implications of the proposed new legislation and any of the
    Department of Education's efforts to provide much-needed
    guidance and resources to institutions as they endeavor to
    comply with this law.
        I sincerely appreciate the opportunity to address the
    committee today, and I welcome any questions you may have of
    me.
        [The prepared statement of Ms. Stafford follows:]
                   Prepared Statement of Dolores A. Stafford
                                    summary
        A cornerstone of efforts to promote campus safety involves
    compliance with the Federal Clery Act, which requires all postsecondary
    institutions that participate in Federal student aid programs to comply
    with a constellation of annual, ongoing, and immediate requirements.
    The 2013 VAWA Amendments to the Clery Act added 47 new policy statement
    disclosures to the law, effectively doubling its requirements. Major
    additions of VAWA include: new reporting requirements for crimes of
    Domestic Violence, Dating Violence and Stalking, as well as unfounded
    reports; mandatory education programs for students and employees
    pertaining to Domestic Violence, Dating Violence, Sexual Assault and
    Stalking (DVDVSAS); and required disclosures and implementation of
    specific response and disciplinary procedures the institution will
    follow when a report of DVDVSAS is made to the institution. Many of the
    new requirements under Clery have been adapted, often wholesale, from
    pre-existing title IX sub-regulatory guidance and elevated to VAWA's
    implementing regulations such that they carry the force of law under
    the Clery Act.
        The new and existing requirements of the Clery Act are multifaceted
    and extremely nuanced. While there are a plethora of unresolved
    questions that stem from the Clery Act's final implementing regulations
    as it pertains to the new VAWA requirements, there are lingering
    challenges that continue to hamper efforts to stay in compliance with
    the Clery Act. For example, the Department's revelation in the 2011
    handbook that the Hierarchy Rule does not apply to the Daily Crime Log,
    or the 2012 email sent by the Help Desk regarding what ``frequently
    used by students'' means, are examples of latent attempts to
    ``clarify'' long-standing expectations for which campuses have never
    before been apprised until 13 years after these requirements went into
    effect. Campuses are also grappling with contradictions between the
    Clery Compliance Division's program review results and guidance being
    provided by the Department through its Handbook for Campus Safety and
    Security Reporting and individualized responses to Help Desk inquiries.
        Given VAWA's prescriptive stance regarding the policies, procedures
    and practices campuses must employ in response to issues of DVDVSAS,
    campuses are going to need significantly more guidance and resources
    than what has been provided in the past. Guidance and resources should
    be clear, timely and afford institutions the flexibility to meet
    compliance requirements within a framework that accounts for the
    diversity of institutions, as they differ in size, mission,
    organization, governance, residential status, resources, and police/
    public safety capacities.
        Campuses earnestly want to comply with the Clery Act, and many see
    it as a basement--not a ceiling--of campus safety efforts. Many of the
    new requirements proposed by the Campus Accountability and Safety Act
    are laudable and have great potential to enhance existing safety on
    campus. Each of these proposals will require thoughtful consideration
    of the implications, intended and otherwise, of adoption, especially
    from a practitioner's perspective. As a professional association
    representing Clery compliance officer and professionals, the National
    Association of Clery Compliance Officers and Professionals (NACCOP)
    welcomes the opportunity to be involved in any efforts that help
    consider the practical implications of proposed or new legislation and
    any of the Department of Education's efforts to provide much-needed
    guidance and resources to institutions as they endeavor to comply with
    the law.
                                     ______

        Good morning Chairman Alexander, Ranking Member Murray, and members
    of the committee. I appreciate the opportunity to join you to discuss
    the requirements of the Jeanne Clery Disclosure of Campus Security
    Policy and Campus Crime Statistics Act (a.k.a. the ``Clery Act''),
    including the newest requirements added by section 304 of the Violence
    Against Women Reauthorization Act of 2013 (VAWA Amendments) and the
    final implementing regulations published by the Department of Education
    on October 20, 2014. I also appreciate the chance to highlight some of
    the existing challenges faced by postsecondary institutions as they
    endeavor to get into and maintain compliance with the ever-evolving
    Clery Act.
        My remarks today are informed by my 26-year career in the law
    enforcement and security industries, of which the last 18 years were
    spent as Chief of Police at The George Washington University until my
    retirement in 2010. Immediately prior to my service at GW, I served as
    the assistant chief of police at Butler University. At both Butler and
    GW, I created, coordinated and supervised the Sexual Assault Response
    Team, which provided advocacy and support services for victims of
    sexual violence. In these capacities, I oversaw approximately 250 cases
    of sexual misconduct, from both an investigatory perspective as well as
    serving as an advocate and overseeing advocates who assisted victims.
    Providing comprehensive, intentional, effective and empowering response
    to sexual assault victims on college and university campuses has been a
    pillar of my campus law enforcement career. Since my retirement in
    2010, I have continued to develop a professional consulting firm
    (through which I have provided Clery Act consulting services since
    1997). Additionally, I serve as the founding executive director of the
    National Association of Clery Compliance Officers and Professionals
    (NACCOP). NACCOP is a professional association with 564 active
    institutional and general members that was launched in 2013 to help
    officials charged with Clery compliance efforts collaborate with each
    other, share resources and best practices, and participate in
    professional development opportunities pertaining to Clery Act
    compliance. I have taught more than 300 classes related to the Clery
    Act and I have assisted more than 250 client institutions in enhancing
    their overall Clery Act compliance programs through reviews of Annual
    Security and Fire Safety Reports and by conducting independent audits.
        Campuses expend significant effort and resources in bolstering
    campus safety. These efforts range from implementation of physical
    safety apparatuses (such as access control systems, intrusion detection
    systems, video surveillance cameras, and fire safety alarm systems) to
    other technological solutions such as social media, incident reporting
    platforms, public safety information systems, computerized automated
    dispatch systems, etc. Institutions consider principles of Crime
    Prevention Through Environmental Design (CPTED) during campus
    construction and renovation projects, and they develop operational
    policies, procedures and contingencies to plan for effective emergency
    and crisis scenarios. They train essential response personnel and
    members of the larger college or university community on applicable
    procedures and protocols for emergency situations. Institutions invest
    significant fiscal resources into hiring personnel across the
    institution to improve campus safety--from campus law enforcement/
    public safety personnel, to other individuals charged with providing
    education, advocacy and support for a wide range of safety-related
    issues (such as alcohol and drug abuse prevention, sexual assault
    prevention, etc.). Many campuses have robust student conduct and
    employee discipline programs with professionals charged with overseeing
    these functions in order to provide swift, effective and fair
    institutional responses to misconduct that may undermine the safety or
    security of the campus. Institutions may conduct pre-employment or pre-
    enrollment screenings as part of the application processes for
    prospective students and employees in order to determine whether there
    is a criminal history of which the institution should be aware. Threat
    assessment and management teams as well as other behavioral
    intervention groups for students, faculty and staff have become an
    industry standard for responding to concerning behavior. Campuses form
    committees, teams, task forces, and town-gown organizations to resolve
    pressing issues related to campus safety and they consider best
    practices and research in formulating effective prevention and response
    strategies. Campus police and public safety units also engage in a
    variety of strategic and tactical approaches to preventing and solving
    campus crime by incorporating community-oriented policing strategies,
    leveraging crime analytics and working collaboratively with other law
    enforcement agencies in the jurisdiction to address important public
    safety issues.
        A cornerstone of contemporary safety and security efforts involves
    compliance with the Federal Clery Act. At its core, the Clery Act is a
    consumer right-to-know law first passed by Congress in 1990. Since its
    inception, the law has been amended six times, most recently by the
    VAWA Amendments. Three months prior to publication of the VAWA
    Amendment's implementing regulations, and 11 months prior to those
    regulations going into effect, a seventh amendment was proposed in the
    Senate and was reintroduced during the 114th Congress in February.
        As you know, the purpose of the law is to provide prospective
    students and employees, as well as current members of the campus
    community, with timely, accurate and complete information about crime
    and the safety and security of the campus so that these populations can
    make informed decisions to keep themselves safe. To fulfill these
    goals, the Clery Act requires all postsecondary institutions that
    participate in title IV student financial assistance programs under the
    Higher Education Act of 1965, as amended (HEA), to comply with a
    constellation of annual, ongoing, and immediate requirements.
    Specifically, institutions must:

         Assess and categorize the buildings and properties
    associated with an institution's campus (or campuses) as well as the
    public property within or immediately adjacent to the campus in order
    to determine how these locations correspond to Clery Act-specific
    geographic categories. The Clery Act requires institutions to disclose
    statistics for select crimes that occur: on campus, on public property
    within or immediately adjacent to the campus, and in or on noncampus
    buildings or property that the institution (or an officially recognized
    student organization) owns or controls.
         Annually identify, notify, train, and collect crime
    reports from Campus Security Authorities (CSAs). CSAs are individuals
    or organizations associated with the institution that are considered by
    the Clery Act to be a person or entity likely to receive crime reports.
    According to ED, Campus Security Authorities include: all members of
    the campus police/security department of an institution; other
    individuals with responsibility for campus security (such as access
    monitors); officials of the institution with significant responsibility
    for student and campus activities (such as a Dean of Students,
    residential life personnel, athletic coaches/administrators, or a title
    IX coordinator), and; any other individual or office an institution
    identifies in its Annual Security Report as a reporting entity of the
    institution.
         Record, collect, classify, count and disclose all reports
    of Clery Act crimes occurring on or within the institution's Clery
    Geography which are made to Campus Security Authorities or local law
    enforcement agencies. Campuses are required to annually request reports
    of alleged criminal incidents from all CSAs. Crime statistics must also
    be requested from all local law enforcement agencies that have
    jurisdiction on or within any of the institution's Clery Geography,
    including both domestic and foreign locations owned or controlled by
    the institution. Crimes must be disclosed for all of the following 15
    Clery Act crimes:

              Murder and Nonnegligent Manslaughter;
              Negligent Manslaughter;
              Sex Offenses (Rape and Fondling);
              Non-forcible Sex Offenses (Incest & Statutory Rape);
              Robbery;
              Aggravated Assault;
              Burglary;
              Motor Vehicle Theft;
              Arson;
              Arrests for liquor, drug and weapons law violations;
              Referrals for disciplinary action for liquor, drug
            and weapons law violations;
              Dating Violence;
              Domestic Violence;
              Stalking; and
              Hate Crimes.

        The most recent 3 calendar years' worth of crime statistics must
    disclosed annually to the Department of Education (ED) via the online
    Campus Safety and Security Survey and to the campus community in the
    Annual Security Report.
         Publish and distribute an Annual Security Report. The
    Annual Security Report (ASR) must contain 111 separate policy statement
    disclosures (including 3 years' worth of crime statistics separated by
    crime type, year, and location). If a campus does not have any on-
    campus student housing facilities, only 92 disclosures are required. It
    is noteworthy that the VAWA Amendments to the Clery Act added an
    additional 47 policy statement disclosures to the ASR, nearly doubling
    the amount of required disclosures. All of this content must be
    contained within the report's front and back covers. Institutions must
    make the report available to all currently enrolled students and all
    employees by October 1 each year in addition to the ongoing requirement
    of providing a notice of the report's availability to all current and
    prospective students and employees.
         Alert the campus community of recent, current or impending
    incidents that may adversely impact the well-being of students and
    employees. Specifically, institutions are required to assess crime
    reports and issue a Timely Warning Notification for any Clery Act crime
    occurring on or within the institution's Clery Geography that is
    considered by the institution to represent a serious or continuing
    threat to students and employees. Additionally, institutions must issue
    an emergency (immediate) notification upon the confirmation of a
    significant emergency or dangerous situation involving an immediate
    threat to the health or safety of students or employees occurring on
    the campus. Institutions must describe their policies and procedures
    for issuing these alerts in the Annual Security Report and must follow
    these policies whenever circumstances warrant.
         Create, maintain and make available a written Daily Crime
    Log (if the institution has a campus police or security department).
    The most recent 60 days of the log must be immediately available to
    anyone requesting access, and the last 7 years of the log must be made
    available to the consumer within 2 business days of the complete log's
    request. The log is intended to be a more comprehensive, specific and
    timely disclosure of all criminal incidents reported to the campus
    police or security department that occur on or within the institution's
    Clery Geography. The log is not limited to the 15 Clery Act crimes for
    which the institution must also disclose crime statistics, and the log
    includes all crimes that are reported to the campus police or security
    department which occurred on or within the institution's Clery
    Geography, which includes the campus agency's expanded patrol
    jurisdiction, if one exists. An entry must be made to the log within 2
    business days of receiving the information, and institutions are also
    required to update, within 2 business days, any dispositions of log
    entries recorded during the prior 60 days.
         Develop, disclose, and annually test the institution's
    emergency response and evacuation procedures. A test is defined as
    regularly scheduled drills, exercises, and appropriate follow-through
    activities, designed for assessment and evaluation of emergency plans
    and capabilities. In conjunction with the annual test, the institution
    must provide the campus community with a summary of the drill and
    exercise that comprised the test as well as a summary of the
    institution's emergency response and evacuation procedures.
         Provide security awareness programs to students and
    employees. These programs must address security procedures and
    practices and encourage the campus community to look out for the safety
    of themselves and each other, and must be described by type and
    frequency in the Annual Security Report. Campuses are also required to
    describe (in the Annual Security Report) any crime prevention programs
    offered to students and employees.

        Additionally, campuses with on-campus student housing facilities
    are also required to:

         Collect and disclose statistics of reported fires
    occurring in on-campus student housing facilities. Statistics for each
    on-campus student housing facility must be published for the most
    recent 3 calendar years. Statistics must include the number of fires in
    each facility, the cause of each fire, the number of persons with fire-
    related injuries, the number of fire-related deaths, and the value of
    any property damage caused by each fire.
         Publish and distribute an Annual Fire Safety Report. The
    report must include the institution's current policies, procedures,
    practices and rules pertaining to fire safety in residential
    facilities, as well as the required fire statistics.
         Create, maintain and make available a written Fire Log.
    The most recent 60 days of the log must be immediately available to
    anyone requesting access, and the last 7 years of the log must be made
    available to the consumer within 2 business days of the complete log's
    request. The Fire Log records, by the date the fire was reported to an
    official, all fires in student housing facilities. The log must be
    immediately available to the consumer and must include the nature, date
    and time the fire occurred; the date reported and general location of
    each fire; and must be made available during normal business hours. An
    entry must be made to the log (or an addition to a prior entry) within
    2 business days of receiving the information.
         Develop, publicize and initiate required notification
    procedures pertaining to reports of missing students who reside in on-
    campus student housing facilities. To meet these requirements,
    institutions must issue a policy statement in the Annual Security
    Report that addresses missing student notification for residential
    students and includes procedures the institution will follow if
    residential students are determined to be missing for 24 hours. At its
    core, the missing student procedures mandate that if a residential
    student is determined (by the campus police/public safety or local law
    enforcement) to have been missing for 24 hours, the campus police/
    security department has only 24 hours after receiving the report in
    which to initiate specific notification procedures, including
    notification of the local law enforcement agency that has jurisdiction.
    In order to facilitate this process, institutions must provide each
    residential student the opportunity to identify one or more
    confidential missing person contact(s) on an annual basis.

        The 2013 VAWA Amendments to the Clery Act added the following
    requirements for all institutions:

         New crime reporting requirements for Domestic Violence,
    Dating Violence and Stalking and expanded hate crime reporting
    requirements. Specifically, institutions are now required to collect
    and disclose the number of Domestic Violence, Dating Violence and
    Stalking incidents reported to CSAs or local law enforcement agencies
    in the annual crime statistics. Additionally, ``gender identity'' was
    added as a category of bias for which hate crimes must now be reported,
    and the existing category of ``ethnicity/national origin'' was split
    into its component parts of ``ethnicity'' and ``national origin,''
    bring the total number of bias categories from 6 to 8.
         New reporting requirements regarding the number of Clery
    Act crime reports withheld from disclosure in the annual crime
    statistics. All reported crimes made in good faith must be included,
    but on the rare occasion that sworn law enforcement determines a crime
    report to be unfounded (that is, false or baseless), institutions must
    now disclose the number of unfounded reports for all 15 Clery Act crime
    categories in the annual crime statistics.
         Provide (and describe in the ASR) primary prevention and
    awareness programs made available to all incoming students and new
    employees which are designed to prevent incidents of Domestic Violence,
    Dating Violence, Sexual Assault and Stalking from occurring. These
    programs must be: culturally relevant; inclusive of diverse communities
    and identities; sustainable; responsive to community needs; informed by
    research or assessed for value, effectiveness, or outcome, and;
    consider environmental risk and protective factors as they occur on the
    individual, relationship, institutional, community, and societal
    levels. Primary prevention and awareness programs must address a myriad
    of required content areas including: Federal and jurisdictional
    definitions of Domestic Violence, Dating Violence, Sexual Assault,
    Stalking and consent; a statement that Domestic Violence, Dating
    Violence, Sexual Assault and Stalking is prohibited by the institution;
    a description of safe and positive options for bystander intervention;
    information on risk reduction; and the procedures the institution will
    follow, including procedures for disciplinary action, when a crime of
    Domestic Violence, Dating Violence, Sexual Assault or Stalking is
    reported to the institution.
         Provide (and describe in the ASR) ongoing prevention and
    awareness campaigns made available to all current students and
    employees which are designed to prevent incidents of Domestic Violence,
    Dating Violence, Sexual Assault and Stalking from occurring. These
    programs must share the same characteristics and address the same
    content areas as those primary prevention and awareness programs
    provided to incoming students and new employees. However, these
    programs must be sustained over time and have a more specific focus of
    enabling audiences to understand topics related to these crimes and to
    provide skills for addressing them.
         Develop, implement and describe in the ASR procedures the
    institution will follow upon receipt of a report of Domestic Violence,
    Dating Violence, Sexual Assault and Stalking. These procedures must
    include: the procedures victims should follow when one of these crimes
    occurs (including information regarding evidence preservation,
    reporting options, and rights and responsibilities pertaining to civil
    or institutional protection, restraining or ``no contact'' orders
    issued by the institution or any lawful authority); information
    regarding how the institution will protect the confidentiality of
    victims and other necessary parties; a statement that the institution
    will provide written notification to students and employees about
    existing counseling, health, mental health, victim advocacy, legal
    assistance, visa and immigration assistance, student financial aid, and
    other services available for victims, both within the institution and
    in the community; a statement that the institution will provide written
    notification to victims about options for, available assistance in, and
    how to request changes to academic, living, transportation, and working
    situations or protective measures (if requested by the victim and
    reasonably available, regardless of whether the victim reports the
    crime to law enforcement), and; an explanation of the procedures for
    institutional disciplinary action that may be used in cases of alleged
    Domestic Violence, Dating Violence, Sexual Assault or Stalking.
         Provide students and employees reporting victimization
    related to Domestic Violence, Dating Violence, Sexual Assault and
    Stalking with a written notification of rights and options. The
    information contained in this notification must include the same
    information required to be published in the ASR pertaining to the
    procedures the institution will follow upon receipt of a report of
    Domestic Violence, Dating Violence, Sexual Assault and Stalking.
         Develop, implement and describe in the ASR procedures for
    institutional disciplinary action in cases of Domestic Violence, Dating
    Violence, Sexual Assault and Stalking. Such procedures must include any
    procedures that could be used in student or employee disciplinary
    action in cases of Domestic Violence, Dating Violence, Sexual Assault
    or Stalking and must share common characteristics and features. Namely,
    these procedures must:

              provide for a prompt, fair and impartial process from
            the initial investigation to the final result;
              be conducted by officials who, at a minimum, receive
            annual training on the issues related to Dating Violence,
            Domestic Violence, Sexual Assault, and Stalking and on how to
            conduct an investigation and hearing process that protects the
            safety of victims and promotes accountability;
              be completed in a reasonably prompt timeframe as
            designated by the institution's policy;
              be conducted by officials who do not have a conflict
            of interest or bias for or against either party;
              be conducted in a manner consistent with the
            institution's policy and transparent to the accuser and the
            accused;
              include timely notice of meetings at which either
            party (or both) may be present; and
              provide timely and equal access to both parties and
            appropriate officials to any information that will be used
            during informal and formal disciplinary meetings and hearings.

          Furthermore, the Clery Act requires parity of treatment between
    the accuser and accused in disciplinary proceedings such that the
    institution must:

              provide the accuser and the accused with the same
            opportunities to have others present during any institutional
            disciplinary proceeding, including the opportunity to be
            accompanied to any related meeting or proceeding by the advisor
            of their choice (without limiting the choice of advisor or
            presence for either the accuser or the accused in any meeting
            or institutional disciplinary proceeding); and
              require simultaneous notification, in writing, to
            both the accuser and the accused, of the result of any
            institutional disciplinary proceeding, the institution's
            procedures for either party to appeal the result of the
            institutional disciplinary proceeding, if such procedures are
            available, any change to the result; and when such results
            become final.

          Institutions must, in the Annual Security Report, describe each
    type of disciplinary proceeding used by the institution, including:

              the steps, anticipated timelines, and decisionmaking
            process for each type of disciplinary proceeding;
              how to file a disciplinary complaint; and
              how the institution determines which type of
            proceeding to use based on the circumstances of an allegation
            of dating violence, domestic violence, sexual assault, or
            stalking.

          Institutions must also describe the standard of evidence that
    will be used during any institutional disciplinary proceeding arising
    from an allegation of dating violence, domestic violence, sexual
    assault, or stalking, lists all of the possible sanctions that the
    institution may impose following the results of any institutional
    disciplinary proceeding for one of these offenses, and; describe the
    range of protective measures that the institution may offer to the
    victim following an allegation of dating violence, domestic violence,
    sexual assault, or stalking.

        With the passage of the VAWA Amendments, the Clery Act and title IX
    are forever linked. Many of the VAWA Amendments reflect the spirit, and
    in some cases the letter, of sub-regulatory guidance provided by the
    Department of Education's Office of Civil Rights (OCR) as it pertains
    to compliance with Title IX of the Education Amendments of 1972
    (``Title IX''). For example, title IX prohibits sex-based
    discrimination, including sexual harassment. Sexual harassment includes
    sexual violence, which has been defined by OCR as, ``physical sexual
    acts perpetrated against a person's will or where a person is incapable
    of giving consent due to the victim's use of drugs or alcohol.'' The
    Clery Act requires institutions to adopt certain procedures in response
    to reports of sexual assault which, in this context, is effectively
    synonymous with sexual violence. Many of the procedures enumerated in
    OCR guidance documents are now the law of the land via the VAWA
    Amendments to the Clery Act. The VAWA Amendments also require
    institutions to prohibit, report statistics, and implement appropriate
    response procedures for the additional crimes of Domestic Violence,
    Dating Violence and Stalking which are most often perpetrated on the
    basis of a victim's sex, therefore bringing the requirements of title
    IX to a vast majority of these cases.
        Both laws also require institutions to inform victims of their
    option to report the incident to law enforcement and be assured certain
    rights and protections independent of whether the victim chooses to
    report the crime to police. Furthermore, the Clery Act and title IX
    each identify categories of personnel that have mandatory disclosure
    requirements when they learn of prohibited conduct (CSAs for the Clery
    Act and Responsible Employees for title IX). When responsible employees
    are notified of sex-based misconduct, they have a duty to report that
    information to the title IX coordinator who, consequently, is a campus
    security authority for Clery Act purposes and must, in turn, report the
    crime to the reporting structure established by the institution for
    potential inclusion in the annual crime statistics as well as an
    assessment of the need to issue a timely warning notification on the
    basis of the crime report. The title IX coordinator must also take
    appropriate interim measures, including the provision of accommodations
    pertaining to the victim's academic, residential, transportation or
    working situations and other appropriate protective measures, which the
    Clery Act also compels be provided if requested by the victim and such
    accommodations and protective measures are reasonably available.
    Victims must also be apprised of their rights, options, and available
    support services under both laws when reporting victimization to the
    institution regardless of whether the victim chooses to report the
    crime to law enforcement.
        Although ED is careful to note when discussing the VAWA Amendments
    that,   ``Nothing in the Clery Act, as amended by VAWA, alters or
    changes an institution's obligations or duties under title IX as
    interpreted by OCR,'' title IX's indelible influence can be seen
    throughout the VAWA Amendments. Many of the new requirements under
    Clery have been adapted, often wholesale, from pre-existing title IX
    sub-regulatory guidance and elevated to VAWA's implementing regulations
    such that they carry the force of law under the Clery Act. This is
    perhaps most apparent when considering the new procedures institutions
    must implement as it relates to managing allegations of Domestic
    Violence, Dating Violence, Sexual Assault and Stalking. For example,
    personnel involved in the investigation or resolution of sexual
    assault/sexual violence complaints are expected to have sufficient
    training to perform these functions, and decisionmakers may not have a
    conflict of interest that would undermine their impartiality. Both laws
    compel institutions to adopt equitable resolution procedures that,
    among other things, establish reasonably prompt timeframes for the
    major steps of the procedures and that provide each party with an equal
    opportunity to:

         participate in the proceedings;
         have timely access to information that will be used during
    the proceedings;
         have the same opportunities to be accompanied by an
    advisor;
         receive contemporaneous written notification of the
    outcome of the proceedings;
         have the same opportunity to appeal the results of the
    proceedings, if any appeal option exists; and
         be apprised of the final results of any appeal.

        These examples are not exhaustive but rather a sampling of how
    inextricably linked title IX and the Clery Act have become with the
    passage of the VAWA Amendments.
                       contemporary compliance challenges
        As you can see, each of the existing requirements of the Clery Act
    are multifaceted and extremely nuanced. The Handbook for Campus Safety
    and Security Reporting, most recently published in 2011, provides more
    than 300 pages of guidance to institutions as they attempt to comply
    with the state of the law prior to the enactment of the VAWA
    Amendments. While the guidance is necessary, and welcome, it is far
    from sufficient. The handbook cannot be read as a ``how-to'' manual and
    instead serves as a reference guide for practitioners that seek to
    understand basic requirements and nuances of the law as interpreted by
    ED. Campuses have few other opportunities to enhance knowledge related
    to the Clery Act, as the Department does not provide sub-regulatory
    guidance (such as Dear Colleague Letters or ``Questions and Answers'')
    with the frequency or specificity as it provides for other laws under
    its jurisdiction, such as title IX.
        Although the Department has sub-contracted with Westat to operate
    its Campus Safety & Security Help Desk, guidance provided by this
    entity is non-binding and, at times, appears to be inconsistent with
    the findings of the Department of Education's Clery Act Compliance
    Division when that division conducts Clery Act program reviews. For
    example, an institution recently wrote the Help Desk to inquire whether
    or not to disclose a Clery Act crime that was reported to a CSA but for
    which the precise location of the crime was unknown, as the handbook is
    silent on this point. The Help Desk advised the campus not to report
    the crime in the annual crime statistics, but when a similar
    circumstance arose at The Ohio State University in 2006, OSU was found
    to be in noncompliance and instructed by the auditors to ``treat the
    incident as an on-campus incident'' and disclose it accordingly in the
    annual crime statistics. These kinds of conflicts create compliance
    quandaries where campuses making earnest efforts to comply must decide
    whether to rely on Help Desk guidance, potentially to their detriment.
        There are a plethora of unresolved questions that stem from the
    Clery Act's final implementing regulations as it pertains to the new
    VAWA requirements related to classification and counting new crimes
    (especially Dating Violence); presentation of crime statistics
    (including ``unfounded'' statistics) in the Annual Security Report,
    required content and length of the written notification of rights and
    options for victims of Domestic Violence, Dating Violence, Sexual
    Assault and Stalking; what constitutes ``simultaneous, written
    notification'' of results to the accuser and accused in disciplinary
    proceedings, etc. The forthcoming handbook, which will be published
    after the effective date of the regulations, will surely address some
    of these foreseeable issues whereas others will present themselves
    after the handbook's publication and will require additional guidance
    from ED.
        Yet there are lingering challenges that continue to hamper efforts
    to stay in compliance with the Clery Act. For example, the Help Desk
    clarified in a 2012 email to campuses that institutions must disclose
    statistics for buildings or properties that are not reasonably
    contiguous to the main campus which are owned or controlled by the
    institution, frequently used by students, and used in support of the
    institution's educational purposes. This definition is well-established
    in the statute, reiterated in the regulations, and discussed in the
    Department's handbook using primarily domestic examples of noncampus
    locations. However, the Department's first attempt at operationalizing
    the definition of ``frequently used by students'' did not occur in
    meaningful form until the 2012 email when it articulated that a
    location is considered ``frequently used by students'' when repeated
    use of the same location is made or when the duration of the use is
    sufficient to trigger the ``frequently used by students'' criterion. In
    the Help Desk email, it offered no guidance for whether gaps in time
    between usage would continue to meet the ``repeated use'' threshold.
    The Department's example includes annual usage, but institutions are
    not afforded any guidance regarding whether used every other year,
    every 10 years, or at other sporadic intervals would also meet the
    ``repeated use'' standard.\1\ Furthermore, the Help Desk's email
    clarified that a ``trip of longer duration'' would satisfy the
    ``frequently used by students'' criterion, and offered an example of a
    3-week trip. However, in the email to campuses, the Help Desk conceded
    ``there is no `magic number' of days that must be met to be considered
    `frequently used by students'.'' The ``trip of a longer duration''
    language was offered in contrast to an example of a short-stay,
    overnight trip. Most practitioners would not regard a 2- or 3-night
    stay as being associated with ``frequent use,'' but the lack of clear
    standards from ED leaves institutions little choice but to do so.
    Therefore, in an abundance of caution, and absent additional specific
    guidance from ED, institutions must now track locations--often in the
    hundreds--being used for more than one night and treat these locations
    as noncampus buildings or properties to ensure they are above reproach
    in an ED audit. ED could greatly diminish the confusion around this
    issue if they were to articulate a bright-line standard with which
    campuses would be expected to comply in order to meet this requirement.
    ---------------------------------------------------------------------------
        \1\ Since institutions are only required to maintain Clery Act
    records for a period of 7 years, it would seem reasonable for ED to
    adopt a standard equal to or less than usage of the same location 7
    years apart.
    ---------------------------------------------------------------------------
        To complicate matters further, the requirement to disclose
    statistics for noncampus locations of U.S. campuses had not been
    previously interpreted by institutions as applying to education abroad
    activities. Following the Help Desk email, campuses that have made an
    attempt to comply with this requirement were left with little choice
    but to develop elaborate systems to track all locations where the
    institution sends students as part of education abroad activities and
    write each local law enforcement agency at those locations to request
    crime statistics. In some instances, this results in campuses sending
    hundreds of letters to foreign law enforcement officials which
    frequently are ignored and divert important human and fiscal resources
    that could otherwise be invested in promoting campus safety. Even when
    campuses do receive responses from law enforcement agencies, these
    statistics are combined into a single statistic which provides the
    consumer with virtually no useful information about where in the world
    the crime occurred. It is hard to imagine this was the intent of
    Congress when the law and its amendments were passed.
        While the issue of noncampus locations provides an example of
    latent ``clarification'' provided by ED, it is not the only occasion in
    which the Department has articulated expectations about which campuses
    were previously uninformed. In 2011, the Department indicated in the
    Handbook for Campus Safety and Security Reporting that the Daily Crime
    Log requires all crimes occurring in a single incident to be disclosed
    on the Daily Crime Log. This practice runs contrary to how crime
    statistics are compiled and reported annually for which the ``Hierarchy
    Rule'' commands that only the most serious crime reported in the
    incident be disclosed when multiple crimes are reported (with some
    notable exceptions, such as Arsons and Hate Crimes).
        The original Daily Crime Log requirement was the result of the 1998
    Amendment to the Clery Act and was addressed in the Department's
    initial Handbook for Campus Crime Reporting, published in 2005.
    However, it was not until 2011 in the revised handbook that the
    Department stated--for the first time--that all crimes occurring in a
    single incident are to be recorded in the log and therefore the
    Hierarchy Rule does not apply to the log. By that point, many campuses
    had made significant financial investments in electronic records
    management systems that were designed to implement the Hierarchy Rule
    when producing the Daily Crime Log, unknowingly in contravention to the
    Department's previously unspoken expectations. Neither the statute, the
    implementing regulations nor prior sub-regulatory guidance had ever
    alerted campuses to this distinction, but the Department took it upon
    itself to create this rule when it published the revised handbook 13
    years after the requirement went into effect.
        Another example of contemporary challenges to compliance is how the
    Clery Compliance Division interprets uniform crime reporting
    definitions and applies these to specific fact patterns for purposes of
    classifying and counting crimes for Clery Act purposes. In a recent
    final program review determination involving the University of
    Missouri--Kansas City, the Department found the institution in
    noncompliance for failure to properly classify and disclose crime
    statistics. Specifically, in one case, the Department noted that some
    of a student's belongings were missing after employees of a contract
    cleaning service packaged the student's property for storage. The
    Department indicated this offense should have been reported as a
    Burglary. It further opined that the offense,

            ``is a Constructive Burglary based on the facts in the report.
            While the cleaning service had legal access to the room, the
            subsequent illegal act converts the larceny to a crime against
            the habitation.''

        There is no such language in the UCR program that speaks to
    ``Constructive Burglary'' nor are there any conditions enumerated in
    the UCR handbooks that would ``convert'' a theft from a structure
    committed by someone with lawful access from a larceny to a burglary.
    Additionally, this conclusion stands in stark contrast to guidance in
    ED's own handbook which states that for an incident to be classified as
    a burglary, ``There must be evidence of unlawful entry (trespass). This
    means that the person did not have the right to be in the structure at
    the time the incident occurred.'' The Department offers an example in
    its handbook whereby a maintenance worker with a work order used his
    keys to enter an on-campus office to fix an air conditioner, and while
    he was there he decided to steal a laptop. The Department's guidance in
    this instance was to classify this incident as a Larceny because the
    maintenance worker had a right to be in the office at the time of the
    theft. The Clery Compliance Division's re-interpretation of UCR
    standards in the University of Missouri-Kansas City case is a clear
    deviation from established burglary classification guidance provided by
    the Department and by the FBI's UCR Program, which the Department
    purports to use for burglary offenses. These audit reports are among
    the few opportunities that campuses have at their disposal glean
    insights about compliance beyond the handbook or institution-specific
    question posed to the Help Desk. As a result, ED needs to be
    painstakingly thorough and clear in describing the specific facts or
    circumstances giving rise to noncompliance findings, with detailed
    rationales as to how campuses fell short of requirements, so that all
    campuses can learn from these errors and correct any potentially
    problematic practices.
                      need for enhanced clery act guidance
        For a majority of the disclosure requirements in the Clery Act,
    campuses are not required to adopt specific policies or procedures,
    they are simply required to identify whether or not they have certain
    policies, procedures or practices and, if so, describe them adequately
    to the consumer. VAWA introduced a series of very specific mandates
    related to policies, procedures and practices campuses must not only
    describe in their compliance documents, but implement in their day-to-
    day operations. As a result, campuses are going to need significantly
    more guidance and resources than what has been provided in the past,
    and they yearn for such guidance and resources. Campuses want to do
    right by all parties affected by these issues while remaining above
    reproach with regard to compliance. In order to do that effectively,
    campuses will need more clear and frequent guidance with regard to how
    the Department expects campuses to operate in response to sexual
    violence and related issues. The guidance should not, however, be
    overly prescriptive. The diversity of institutions--in size, mission,
    organization, governance, residential status, resources, and police/
    public safety capacities--commands the need for regulations, and the
    sub-regulatory guidance that follows, to allow for appropriate latitude
    so that institutions can remain nimble and respond to mandates within
    the context of their unique attributes.
        Overly prescriptive mandates and ``guidance'' has the potential to
    do more harm than good. This is one concern NACCOP has regarding the
    Campus Accountability and Safety Act (CASA). For example, CASA would
    compel institutions to develop their programs to prevent Domestic
    Violence, Dating Violence, Sexual Assault and Stalking in consultation
    with specific external groups. Not only does the list of required
    consultees overlook important constituent groups that would bring about
    critical expertise (such as higher education professional
    associations), but it diminishes any local expertise that may exist
    within the institution's faculty or staff and privileges the voices of
    external groups who may not have the ability or willingness to
    collaborate. The presumption embedded in this requirement--as with many
    other requirements of CASA--is that institutions cannot be trusted to
    competently perform essential functions without external support and
    accountability. While institutions must be held accountable for meeting
    statutory and regulatory requirements consistent with the requirements
    of their Program Participation Agreements, they should be given the
    flexibility to meet these requirements within a framework of clear
    parameters and guidelines where discretion is carefully guided, not
    outsourced.
        Campuses earnestly want to comply with the Clery Act, and many see
    it as a basement--not a ceiling--of campus safety efforts. Many of the
    new requirements proposed by the Campus Accountability and Safety Act
    are laudable and have great potential to enhance existing safety on
    campus. Each of these proposals will require thoughtful consideration
    of the implications, intended and otherwise, of adoption. As a
    professional association representing Clery compliance officer and
    professionals, NACCOP welcomes the opportunity to be involved in any
    efforts that help consider the practical implications of proposed or
    new legislation and any of the Department of Education's efforts to
    provide much-needed guidance to institutions as they endeavor to comply
    with the law.
        I sincerely appreciate the opportunity to address the committee
    today and I welcome any questions you may have of me.

        Senator Collins. Thank you very much.
        Ms. Flounlacker.

    STATEMENT OF MOLLIE BENZ-FLOUNLACKER, ASSOCIATE VICE PRESIDENT
     FOR FEDERAL RELATIONS, ASSOCIATION OF AMERICAN UNIVERSITIES,
                             WASHINGTON, DC

        Ms. Flounlacker. Good morning, Chairman Collins, Ranking
    Member Murray, and members of the committee. Thank you for
    inviting me to testify today.
        I am Mollie Flounlacker, as mentioned, associate vice
    president for Federal Relations at the Association of American
    Universities. I am also the project manager for the AAU sexual
    assault climate survey. I have also been a college student and
    am now a mother. I care deeply, both professionally and
    personally, about this issue, and I'm proud to be a part of
    this effort to confront it.
        In my remarks, I am going to outline six points for you on
    this very important subject. No. 1, presidents and chancellors
    of AAU member universities have long identified sexual assault
    on their campuses as an extremely important issue that they
    need to face head on. It is the issue that is keeping them
    awake at night. I have spent more time talking with our members
    about this issue than any other issue over the last 18 months.
        University presidents make it very clear that one sexual
    assault on their college campus is too many. One of the most
    important goals of our universities is to make their campuses a
    safe place for students to learn and succeed.
        No. 2, individual sexual assault cases can be complex.
    Schools take very seriously their responsibility to educate
    students about awareness and prevention, to encourage students
    to report sexual assaults, to respond compassionately and
    seriously to the needs of survivors, and to ensure that all
    students have access to fair, prompt, and impartial campus
    disciplinary processes.
        No. 3, in keeping with its mission as an association of
    research universities, AAU decided to take a research-based
    approach to help its members understand both the attitudes and
    experiences of their students with respect to sexual assault.
    Accordingly, AAU created and implemented a sexual assault and
    misconduct climate survey in consultation with a leading
    outside social science research firm, Westat.
        The survey was developed by Westat and a multidisciplinary
    team made up of recognized experts across the country. Nearly
    half of the AAU membership has administered the survey this
    spring. AAU will publicly release the results this fall in
    hopes it proves, first and foremost, helpful to schools, but
    also to policymakers in the legislative arena. The data will
    also be made available later to the research community, which
    we expect will be a significant resource to better
    understanding this issue.
        Having spent the last 15 months on this project, I can say
    it is an extremely complicated process. Moving forward, we want
    our experts to be a resource for Congress as they work through
    this issue in the Campus Accountability and Safety Act, in
    particular. We want to get this right, because we strongly
    support the use of climate surveys on college campuses.
        No. 4, the legislative and regulatory landscape around
    campus sexual assault is incredibly messy because of the number
    of different Federal laws and now State laws, regulations, and
    guidance, as Chief Stafford articulated. Overall, we believe
    that schools need a framework of clear and consistent standards
    with flexibility when appropriate so that they have the
    necessary tools to better protect students and support
    survivors.
        No. 5, AAU strongly supports the goal of the CASA bill to
    better inform and protect students, including core elements of
    promoting the use of the campus confidential advisor and campus
    sexual assault climate survey, for example. We support and
    appreciate many of the changes that have been incorporated into
    the current version of CASA. There are still some areas where
    we have remaining concerns, primarily because of unanticipated
    effects on students, as outlined in my written testimony.
        For example, we strongly support giving survivors of sexual
    assault access to a trained confidential advisor whose sole
    responsibility is to counsel the survivor. This is in the best
    interest of the survivor. Any requirement that the advisor ask
    in an investigatory role or reporting role could compromise
    confidentiality both under State law and FERPA and increase the
    likelihood of the advisor being subpoenaed and subsequent legal
    proceedings.
        Absent clarity in the statute, it's inevitable that new
    duties will be assigned to the individual by the Department of
    Education as they implement the law. We are also concerned
    about potential conflict with the advisor's responsibilities in
    CASA and schools' current title IX reporting requirements.
    Again, the sole responsibility of the advisor should be to
    counsel the survivor.
        Last, sexual assault is a societal problem. As important as
    it is for colleges to confront it directly, it does not exist
    in isolation on college campuses. We believe there is a role
    for the entire education community to play in producing
    cultural changes that reduce the incidence of sexual assault.
        AAU and the higher education community look forward to
    continuing to work with Congress and the administration to make
    students safer.
        Thank you again for the opportunity to testify, and I'm
    happy to answer questions.
        [The prepared statement of Ms. Flounlacker follows:]
                 Prepared Statement of Mollie Benz-Flounlacker
                                    summary
        With other higher education associations in Washington, AAU has
    been deeply involved in efforts to combat sexual assault. This
    testimony describes the national climate survey that AAU has undertaken
    as well as AAU's views on the Campus Accountability and Safety Act
    (CASA).
        While there is recognition that sexual assault is a broad societal
    problem, the focus today is on what colleges can do to provide safer
    settings for their students. Schools take seriously their
    responsibility to educate students about awareness and prevention, to
    encourage students to report sexual assaults, to support the survivors
    of sexual assaults and to ensure that all students involved have access
    to fair and equitable processes. One sexual assault on campus is too
    many. Those represented by AAU and by the higher education associations
    with which we work closely are deeply committed to working with
    Congress to better protect students.
        As an association of research universities, AAU decided that the
    best way to help its members address this issue was to develop and
    implement a sexual assault climate survey for its members that would
    enable them to better understand the attitudes and experiences of their
    students with respect to sexual assault. We believe that the survey
    data will help inform campus policies for preventing and responding to
    sexual assault on campus. AAU will publicly release the aggregate
    results this fall. We have encouraged our campuses to release their
    institutional results, and we anticipate that many of the 27
    universities (26 AAU members plus one non-AAU institution) that
    implemented the survey will do so.
        In addition to the survey's value to participating universities and
    their students, we hope the aggregate data and analysis will provide
    useful information to policymakers as they work on possible legislative
    and administrative initiatives. Researchers will also benefit from the
    contribution this survey will make to the body of research on this
    complex issue.
        In addition to our work on the climate survey, AAU has actively
    engaged with the Senate sponsors of the Campus Accountability and
    Safety Act (CASA) legislation. AAU has joined the broader higher
    education community in submitting two sets of comments on the
    legislation, including the most recent on the version of the bill
    introduced earlier this year. AAU supports the goals of CASA, including
    most of the core requirements. Our goal is to help ensure that any new
    requirements in CASA complement existing requirements to better protect
    students and help schools understand their responsibilities. Clarity
    regarding the establishment of new roles and responsibilities for
    colleges regarding sexual assault is particularly important given the
    number of other Federal laws, regulations, and guidance implicated when
    dealing with this issue. We support and appreciate many of the changes
    incorporated into the current version of the legislation. There are
    still some areas where we have some remaining concerns and potential
    solutions, and we believe the bill will continue to improve as the
    legislative process goes forward.
                                     ______

        Chairman Alexander, Ranking Member Murray, and members of the
    committee, thank you for this opportunity to testify on the important
    issue of combating campus sexual assault.
        I am Benz-Flounlacker, associate vice president for Federal
    relations at the Association of American Universities. AAU is a
    nonprofit 501(c)(3) organization of 62 leading public and private
    research universities, 60 of which are in the United States and two of
    which are in Canada. Founded in 1900 to advance the international
    standing of U.S. research universities, AAU today focuses on issues
    that are important to research-intensive universities, such as funding
    for research, research policy issues, and graduate and undergraduate
    education. AAU member universities are on the leading edge of
    innovation, scholarship, and solutions that contribute to the Nation's
    economy, security, and well-being.
        Along with other higher education associations in Washington, AAU
    has been deeply involved in efforts to combat sexual assault. Today, as
    requested by the committee, I will describe the national climate survey
    that AAU has undertaken, and I will provide AAU's views on the Campus
    Accountability and Safety Act (CASA).
        The past year has brought intense scrutiny to the problem of campus
    sexual assault and how colleges handle sexual assault cases. While
    there is recognition that sexual assault is a broad societal problem,
    the focus today is on what colleges can do to provide safer settings
    for their students. Schools take seriously their responsibility to
    educate students about awareness and prevention, to encourage students
    to report sexual assaults, to support the survivors of sexual assaults
    and to ensure that all students involved have access to fair and
    equitable processes. One sexual assault on campus is too many. Those
    represented by AAU and by the higher education associations with which
    we work closely are deeply committed to working with Congress to better
    protect students.
        Campuses need clarity, consistency, and flexibility when
    appropriate with respect to Federal expectations, requirements, and
    enforcement. Congress can be most helpful to colleges' efforts by
    providing clear standards and guidance to help schools understand their
    responsibilities and affording them institutional flexibility to
    improve policies to better protect students.
        AAU member university presidents and chancellors have long
    identified sexual assault on their campuses as an extremely important
    issue that they need to address head-on; some describe it as the No. 1
    issue keeping them awake at night. Over the past 2 years at least, AAU
    has spent more time with its membership addressing this issue than
    almost any other issue.
        As an association of research universities, AAU decided that the
    best way to help its members address this issue was to conduct research
    that would enable them to better understand the attitudes and
    experiences of their students with respect to sexual assault. To do
    this, AAU developed and implemented a sexual assault climate survey for
    its members using a leading social science research firm, Westat. The
    survey was developed by Westat and a multi-disciplinary design team
    created by AAU and composed of recognized experts on survey design and
    methodology, as well as campus leaders directly responsible for dealing
    with sexual assault and issues of gender, health, and student affairs.
    Dr. Bonnie Fisher, a nationally recognized expert on sexual assault,
    was hired by Westat to work closely with the AAU-Westat team to develop
    the content and analysis of the survey. The AAU team was led by Dr.
    Sandra Martin, Professor and Associate Chair for Research, Department
    of Maternal and Child Health, and Associate Dean for Research, Gillings
    School of Public Health, at the University of North Carolina at Chapel
    Hill. The starting point for the survey design team was the survey
    instrument developed by the White House Task Force to Protect Students
    from Sexual Assault, which was included in the notalone.gov April 2014
    report. The survey instrument was designed to address the following
    core research questions:

             What is the campus climate around sexual assault and
            sexual misconduct?
             What do students know about and think of resources
            related to sexual assault and sexual misconduct?
             What are the frequency and nature of misconduct
            because of coercion and lack of consent due to incapacitation?
             What are the frequency and nature of sexual
            harassment, intimate partner violence, and stalking?

        We believe that the survey data will help inform campus policies on
    how to better prevent and respond to sexual assault on campus. AAU will
    publicly release the aggregate results this fall. We have encouraged
    our campuses to release their institutional results, and we anticipate
    that many, if not all, will do so. Twenty-seven universities (26 AAU
    members plus one non-AAU institution) implemented the survey.
        In addition to the survey's value to participating universities and
    their students, we hope the aggregate data and analysis will provide
    useful information to policymakers as they work on possible legislative
    and administrative initiatives. Researchers will also benefit from the
    important contribution this survey will make to the body of research on
    this important and complex issue.
        In addition to our work on the climate survey, AAU has actively
    engaged with the Senate sponsors of the Campus Accountability and
    Safety Act (CASA) legislation introduced by Senator Claire McCaskill,
    and subsequently with Senate Health, Education, Labor, and Pensions
    Committee staff. AAU has joined the broader higher education community
    in submitting two sets of comments on the legislation, including the
    most recent on the version of the bill introduced earlier this year.
    AAU supports the goals of CASA, including most of the core
    requirements. Our goal is to help ensure that any new requirements in
    CASA complement existing requirements to better protect students and
    help schools understand their responsibilities. Clarity regarding the
    establishment of new roles and responsibilities for colleges regarding
    sexual assault is particularly important given the number of other
    Federal laws, regulations, and guidance implicated when dealing with
    this issue. We support and appreciate many of the changes incorporated
    into the current version of the legislation. There are still some areas
    where we have some remaining concerns and potential solutions, and we
    believe the bill will continue to improve as the legislative process
    goes forward. We offer the following examples of some of the most
    pressing issues we would like to see addressed in the legislation.
    Again, previous comment letters have been submitted with a full list of
    concerns.
                              confidential advisor
        We strongly support giving survivors of sexual assault access to a
    confidential advisor whose sole responsibility is to counsel and
    support the victim. In fact, many colleges already provide such
    services. Colleges need to ensure that members of the campus community
    are aware of these confidential counseling services and that they know
    how to contact a counselor in the event of an assault. It is essential
    that confidentiality and support be the core responsibilities of a
    confidential advisor. The advisor should be positioned to provide
    students, regardless of geography of the incident, information on
    college reporting processes, on how to file an official police report,
    and on available on- and off-campus resources. We believe that the
    confidential advisor should not have responsibilities for fact-finding.
    Moreover, the confidential advisor should not have investigatory powers
    (including giving the victim the option to have a recorded interview)
    or reporting requirements. Any requirements that the advisor ask in an
    investigatory role rather than a mental health or trauma counseling
    role would compromise confidentiality under both State laws as well as
    FERPA. We believe it is necessary that these advisors have proper
    training to handle their responsibilities. Colleges should be
    responsible for having a reasonable number of advisors based on an
    assessment of institutional needs. There is no precedent for the
    Department of Education to specify how many employees colleges must
    have for a particular job category. To repeat, we are fully supportive
    of the role of a confidential advisor in helping counsel and support a
    survivor in dealing with events.
             memoranda of understanding with local law enforcement
        Colleges want State and local law enforcement agencies to be
    involved in dealing with crimes on campus, incidents of sexual
    violence. Memoranda of Understanding (MOUs) can be very useful tools
    for improving coordination and establishing procedures for responding
    to and handling reports of sexual assault. Many colleges already have,
    or are in the process of developing, MOUs. Some State laws also require
    colleges to develop MOUs. Under the proposed legislation, institutions
    must enter into MOUs with any law enforcement agencies with ``first
    responder'' responsibilities for the campus.
        Unfortunately, for a large university in particular, this can mean
    any number of agencies; combined with the bill's lack of a clear
    definition of ``campus,'' this would require colleges to negotiate
    multiple MOUs with first-responder agencies for multiple locations. In
    some cases, the first responder is in fact the campus police. We
    believe that the most important MOU is with the local law enforcement
    that may be reasonably expected to respond to reports of sexual assault
    from students regardless of whether the incident takes place on or off
    campus. We believe the content requirements specified in CASA could be
    made more flexible and less prescriptive, while still ensuring better
    coordination and clarification of roles and responsibilities between
    the college and local law enforcement. Additionally, the current waiver
    to the MOU requirement gives the Secretary of Education a wide degree
    of discretion in determining whether to grant a waiver. The language
    needs to be clarified to make it clear that the MOU needs to be
    mutually acceptable to both parties, and that a waiver should be
    granted if the college has acted in good faith.
                                 climate survey
        AAU can offer unique feedback on the survey section of the
    legislation. We strongly support the use of campus climate surveys and
    believe that if based on sound research protocols, they can help
    campuses better understand the attitudes and experiences of their
    students with respect to sexual assault so campuses can make policy
    changes to better prevent and respond to sexual assault on campus. Many
    colleges are currently in the process of developing and implementing
    such surveys.
        We have concerns about the requirement for the Secretary of
    Education to develop a single survey instrument, without the input of
    higher education experts, for use at all institutions. We also have
    concerns about the survey completion standard, because colleges have no
    legal authority to compel student participation in any survey. The
    legislation also leaves important operational questions about the
    survey unanswered, including who administers the survey and how
    information gained from the survey will be made available, in what
    form, and at what level of specificity, and by whom. We believe that a
    campus-controlled (either directly or contractually administered)
    survey would help colleges, to the extent possible, maximize their
    student participation rates. It is important that schools have control
    over survey administration, including incentive options, among other
    issues, in order to ensure that the survey meets the unique and local
    circumstances of the college and thus helps administrators better
    understand students' experiences.
        In order to allow for national reporting, the Department of
    Education, in consultation with higher education survey and content
    experts, could develop a set of core questions based on a clear set of
    measurable objectives around the incidence and prevalence of sexual
    assault and students' use of institutional policies and procedures. If
    colleges are to report survey results to the Department of Education,
    then they should strive to report them in a contextualized manner that
    provides the most accurate information for students and protects any
    personally identifiable information. We recommend that the frequency of
    the survey be reduced to once every 4 years, so as not to burden the
    student body, particularly survivors, and allow schools time to address
    and improve policies, practices, and outreach in between survey
    administration. Again, we support the core concept of a climate survey
    as an important tool for better understanding students' experiences and
    available institutional resources, as well as helping institutions
    improve their policies and protections for students.
                         campus disciplinary processes
        Colleges take very seriously their responsibilities to survivors of
    sexual assault. The legislation creates new 24-hour requirements for
    institutions to notify both the accuser and accused of campus
    disciplinary decisions and outcomes in proceedings for sexual violence.
    While we believe that colleges should make every effort to inform both
    parties promptly, this short timeframe may be unrealistic in certain
    circumstances and is likely to lead to unintended and negative
    consequences for students. A temporary delay also may be necessary to
    protect a student in fragile circumstances following a traumatic event.
    In most cases, these notices would require legal review, thereby
    requiring additional time. We believe that colleges should be given
    greater flexibility, perhaps a 3-day period with flexibility given for
    extenuating circumstances.
                              clery act expansion
        The legislation would expand Clery Act reporting to include
    information about the handling of student disciplinary actions in
    situations involving sexual violence. The expansion conflicts with the
    purposes of the Clery Act, which is designed to disseminate crime
    information as defined by law and as reported to and by police.
    Decisions about whether to proceed with campus disciplinary action
    reflect an entirely different set of considerations. For example,
    certain conduct may be a violation of campus policies even if it would
    not constitute a crime under State law, while crimes reported under the
    Clery Act may involve individuals who are not subject to the campus
    disciplinary process. Combining Clery Act crime reporting with
    information on campus disciplinary proceedings, particularly without
    the appropriate context, would likely be confusing and misleading for
    students and families, as well as policymakers and the media. We
    recommend further consideration be given to appropriate ways to bring
    greater transparency to campus processes without confusing students.
                     higher education responsible employee
        We greatly appreciate the legislative intent to clarify who on
    campus is a responsible employee for purposes of title IX. While we
    understand the authors' reluctance to amend title IX, we are concerned
    that the bill's current language would create two separate categories
    of responsible employees for CASA purposes and Office for Civil Rights
    (OCR) guidance, further complicating and confusing campus efforts.
                                     fines
        The legislation authorizes the Secretary of Education to impose
    fines of up to 1 percent of an institution's operating budget per
    violation for failure to comply with any title IX requirements or with
    various CASA requirements. Unfortunately, the legislation does not
    establish clear standards to guide Federal officials in determining the
    appropriate level within this range and distinguish between technical
    and egregious violations. In testimony before this committee, the
    Department unambiguously stated that it does not need or want the
    authority to impose such fines--it believes it has the tools needed to
    ensure compliance with laws and guidance addressing sexual assault.
       grant program to improve prevention and response to sexual assault
        It is critical to support further research to find the most
    effective policies and strategies for preventing and addressing sexual
    assault on campus. Today there is no definitive body of research on
    best practices for education and prevention, in particular, and we
    support the inclusion of a grant program for this purpose in the bill.
    We recommend that Congress provide a dedicated funding stream for these
    grants rather than rely on fines to fund these grants. We also
    recommend that grants be awarded on the basis of the strongest
    proposals with the most promising ideas rather than criteria such as
    endowment size or tuition rate.
                              ocr responsibilities
        The Department of Education also has a role to play in supporting
    college efforts to better address college sexual assault. OCR should be
    required to resolve its investigations in a timely way. According to
    OCR internal guidelines, investigations are expected to be concluded in
    180 days of the date filed, but this rarely happens. It is not uncommon
    for OCR to take 2 or more years to resolve cases. To ensure prompt
    resolution of civil rights violations and basic equity to institutions
    and their students, OCR should be required to resolve investigations
    within 24 months of their initiation, unless the institution being
    investigated has willfully obstructed or impeded the review. In
    addition, colleges and universities should be provided with appropriate
    notice to be able to respond effectively to complaints filed with OCR.
    This means sharing the specific allegations with the institution once
    an investigation is launched. It also means that a college or
    university should not be expected to sign a voluntary resolution
    agreement without first seeing the findings that OCR intends to issue
    publicly in the case. Transparency and openness would benefit all and
    provide for collaboration and partnership when resolving complaints.
        Last, in recent years, OCR has issued significant guidance
    documents to institutions that it enforces without having subjected
    that guidance to the notice and comment provisions of the
    Administrative Procedure Act. This means that no affected party has the
    opportunity to raise questions or ask for clarifications.
        For example, in April 2011, OCR issued what it termed ``significant
    guidance'' announcing campus obligations to address sexual assault
    under title IX, including the imposition of the ``preponderance of
    evidence'' standard, without seeking public comment. Questions about
    this document quickly emerged, but it took OCR more than 3 years to
    issue further clarification. In the interim, campuses were forced to
    intuit what OCR wanted them to do. OCR has continued this trend. While
    the agency contends that the ``guidance does not add requirements to
    applicable law,'' it is clear from recent resolution agreements with
    OCR that these guidance documents contain new policy positions which
    are being treated as compliance requirements under the law.
        It is essential that all stakeholders, including colleges and
    stakeholder groups, be allowed to comment on and inform policies.
    Ultimately, such input makes policies stronger. Overall, colleges and
    the Department need to work collaboratively to make progress on this
    issue.
        AAU and its members, along with the other associations with which
    we work on these issues, are committed to working with Congress, to
    better protect students. Thank you again for this opportunity to
    testify.

        Senator Collins. Thank you very much for your testimony.
        We have just been notified that votes have started. We're
    going to have two votes, and we'll have a recess while we vote.
    We will be able to continue for now and get through some
    questions before people have to leave to vote. We'll limit
    Senators to 5 minutes on this round.
        I do also want to announce that Senator Alexander will be
    returning, and after the votes he will take over as chairman.
    It's been a great experience, and I would have liked to have
    continued, but I will turn over the gavel, albeit reluctantly,
    to the legitimate chairman of the committee.
        Ms. Flounlacker, I want to pick up on a point that you
    commented on about the confidential advisor. I'm a strong
    supporter of the confidential advisor. I've been surprised when
    I've talked to the University of Maine and other colleges that
    it turns out that this is not as straightforward as I thought
    that it would be.
        On the one hand, confidentiality really focuses on the
    victim, and that's what we should do, and it may encourage
    student victims to report violations and seek the help that
    they need. On the other hand, the requirements of Title IX and
    the Clery Act require various forms of reporting when crimes
    occur on campus. Indeed, the Department of Education's 2014
    guidance says that, ``There are situations in which a school
    must override a student's request for confidentiality in order
    to meet its title IX obligations.''
        It seems to me we're putting schools between a rock and a
    hard place unless we give some clarity here. How can colleges
    and universities provide the confidential services and advising
    that many of us think are vital to students while balancing and
    meeting the requirements of both Federal and, in some cases,
    State law and the desire to respond effectively?
        Ms. Flounlacker. Senator, you've identified a very
    important issue, and we want to get the confidential advisor
    right. It's an essential service offered to students. As you
    articulated, as I mentioned in my opening comments, we have
    concerns that as it's currently drafted, the advisor would be
    tasked with responsibilities that really go outside of what we
    think should be the core responsibility of counseling a
    student.
        As you mentioned, in addition to our issues with any fact-
    finding or investigatory powers or reporting requirements,
    potential conflict with title IX is a real concern and one that
    we'll have to address in the legislation in order to get this
    right.
        Part of the issue in the legislation--and if I'm getting
    too technical, please stop me, Senator. Part of the issue is
    that in the legislation, the advisor may liaise with an
    institution to make accommodation, so this would be changes in
    a dorm room or a change in classroom, for example. It says
    explicitly it shall not trigger an investigation by the school,
    and, clearly, schools are committed to providing accommodations
    and to maintaining confidentiality.
        The problem is many schools typically believe that if
    they're making accommodations for a student, it's sufficient to
    warrant an investigation by an institution. Moreover, as the
    Senator articulated, institutions are required under title IX
    to track and report accommodations provided in response to
    sexual assault. So there is a clear conflict here.
        There are some solutions, and we'd very much like to be a
    part of that conversation. For example, it would be better for
    the advisor to let the survivor know where to go and who to
    talk to about making accommodations rather than that advisor
    actually carrying through the process themselves.
        There are solutions here, and, again, we just have to keep
    focusing on the core responsibility of the advisor, which is to
    counsel, and make sure the guidance is very clear so schools
    know what they're doing, and survivors understand what the
    advisor can do to help them.
        Senator Collins. Thank you.
        I'm going to ask the rest of you to respond for the record
    to that issue, because there is a clear conflict between the
    rules and the regulations.
        I want to get quickly to a second topic in my remaining
    time.
        Ms. Bolger, we have climate surveys that our military
    academies do, and they have a very high response rate because
    the students know that they are expected to fill out those
    climate surveys. That is not necessarily the case for private
    colleges and public universities.
        What suggestions would you have to encourage students to
    participate in the climate surveys so that they're meaningful?
        Ms. Bolger. Thank you for that question, and it's a very
    good one. In thinking through climate surveys, we have to
    remember that this is just one piece of a larger effort to
    change the culture around sexual violence on campus. That means
    doing education work and outreach and training to students that
    raises the profile of this issue and helps them understand how
    incredibly important it is.
        We have, to be honest, seen a lot of change on campuses
    over just the last couple of years as students' peers who are
    survivors are coming forward and telling their stories
    publicly. I suppose I'm a bit more optimistic that students
    will want to be part of the process to complete these surveys.
        I do think that we should certainly build on existing
    structures on campuses, existing structures of students. We
    have fraternities, we have sports teams, and we have
    sororities. These are groups of people who already come
    together around shared values, and if we can create buy-in
    among people in those communities, we will see much higher
    response rates to these surveys.
        Senator Collins. Thank you.
        Senator Murray.
        Senator Murray. Thank you very much.
        Ms. Bolger, I want to just start by saying how much I
    admire you for your courage and how much I appreciate the work
    you've done to empower other students and survivors, and
    creating the Know Your IX organization is just really valuable.
    Thank you for that.
        I did want to ask you--given the fact that sexual assault
    is such an underreported crime to law enforcement, what do you
    think is the most important step for universities to create to
    get a survivor-focused approach?
        Ms. Bolger. Thank you for that question and for your very
    kind words. First off that survivors need to know what they can
    expect to receive out of a reporting process. Schools need to
    ensure that the existence of accommodations and how to access
    them is clear, well-publicized, and well-understood on campus,
    and then, of course, they need to followup and actually issue
    those accommodations and protections to students who request
    them.
        I know a number of survivors on my campus simply didn't
    report because they didn't understand that the school could be
    useful in helping them change a dorm that they shared with a
    perpetrator or switch out of a class section that they shared
    with their abuser.
        The second point I would make is transparency. We've spoken
    a little bit about climate surveys. It's also incredibly
    important that schools release aggregate data about the results
    of disciplinary hearings, how quickly they're proceeding. Of
    course, this shouldn't be identifying information, just in
    aggregate. That will help survivors build confidence in the
    system and trust that schools are there for them and they want
    to help them.
        Senator Murray. Great. Sexual violence is a significant
    health problem in our country. According to the CDC, nearly one
    in five women is sexually assaulted in college, and it's
    oftentimes by someone that's known to the victim. It's a former
    partner or friend or acquaintance or someone they knew in a
    class.
        I know that you see students and faculty and their
    presidents taking the issue--addressing this head on. They've
    formed a system-wide task force to improve the community and
    make campuses safer.
        President Napolitano, I wanted to ask you: How has the UC
    focused its efforts on making sure the focus is not only on
    improving universities' practices in response to sexual assault
    and violence, but also on working toward a culture of
    prevention?
        Ms. Napolitano. Thank you. It begins with raising the
    issue. As I mentioned, from the first day a student shows up to
    start, they will be given specific training on this. They will
    also be made aware of what resources are available to them if
    something were to occur--where to go, who are the independent
    advocates, what they can do.
        We see the independent advocates as really acting as
    gatekeepers, not as reporters, per se, but really as
    gatekeepers for the student in terms of do you go to the campus
    police, should you go to your department chair, et cetera, and
    then to be there to do appropriate followup working with the
    student. It begins with creating that culture from the day they
    begin on campus, and then consistency and persistency
    throughout the college experience.
        Senator Murray. Real quickly, because I know we have a
    vote--in the fall of 2014, I know that California became the
    first State in the country to enact a ``yes means yes'' law
    defining sexual consent. Can you talk with us about how this
    affirmative consent law is empowering students and faculty?
        Ms. Napolitano. Yes, because we had actually changed our
    policy before the law changed, so we've had a year's worth of
    experience with it. It really, in a way, shifts the burden so
    that the survivor isn't the one always trying to explain what
    happened. It means the consent has to be knowing and
    intentional, and if it's not, it's not valid anymore. That gets
    incorporated into all of the training materials.
        Senator Murray. Ms. Bolger, can you share your thoughts
    with us on how a standard like ``yes means yes'' could help on
    campus sexual assault?
        Ms. Bolger. Of course. Affirmative consent is a strong
    important policy that reflects students' values already around
    how they want to engage in relationships with people in their
    community. I do think that affirmative consent will only be
    successful if there is education for students about what the
    expectations are, how to obtain consent.
        Students enter college with a wide array of understandings
    of what consent is, and that orientation programming and
    continuing ongoing training for students, as well as for the
    people who will be hearing these cases and investigating these
    cases, is absolutely necessary to make sure that this becomes
    common and expected on campus.
        Senator Murray. Thank you.
        Senator Collins. Senator Cassidy.

                          Statement of Senator Cassidy

        Senator Cassidy. Ms. Flounlacker, Senator Gillibrand
    circulated some statistics suggesting that 41 percent of
    campuses--I can't verify this, but she circulated this--41
    percent of colleges and universities recently surveyed have not
    conducted a single investigation of sexual violence on their
    campus in the last 5 years. Wow. That seems like there's a
    problem with the universities communicating to their students
    that this is reportable. Do you follow what I'm saying? I can't
    independently verify that.
        But I've got a daughter at a campus. That seems like a
    problem with the universities. Is that a fair statement?
        Ms. Flounlacker. Well, thank you for the question, Senator,
    and I can't speak to the individual statistics. I'm not an
    expert in that arena. I will say that our schools are taking
    this very seriously, both to explain the process, to explain
    how students can report, and explain what happens in a
    disciplinary----
        Senator Cassidy. No offense, but if that statistic is
    correct--and I don't know if it is--if 41 percent have not
    investigated a single incidence, but it is as prevalent as
    Senator Murray suggested, that tells me they're not taking it
    seriously, because that which is measured is addressed. It
    tells me they're not measuring it, or if they are, they choose
    not to address it. Do you follow?
        Ms. Flounlacker. Right.
        Senator Cassidy. You can't speak for all 41 percent, but it
    still seems like we've met the enemy and he is us.
        Ms. Flounlacker. Clearly, in all candor, is the system
    perfect? No. Are mistakes made? Yes. Every system can be
    improved. I don't think there's a president or a chancellor
    that would disagree with that statement. I'm not justifying,
    again, the statistics. There may be truth to it. There may not
    be.
        I know that there are a lot of reasons why cases don't go
    forward. Sometimes the context is really important. There are
    cases where survivors don't necessarily want to go forward.
    There's not enough facts for the case to go forward.
        I can't speak to the specific statistic. I do know, just
    speaking--if I can just say, speaking from the association,
    presidents recognize, most importantly, the need for better
    data, which is where our climate survey comes in. It's really
    important that we understand how students----
        Senator Cassidy. Can I stop you, because I'm almost out of
    time, and as you can tell, everybody has left me.
        [Laughter.]
        Ms. Napolitano, you've got so many titles, I don't know
    which to refer to you as. You mentioned there should be a
    difference between the UC system, a big State university, and
    the small liberal arts college. Could you elaborate on that
    difference in approach?
        Ms. Napolitano. Right. The principles are the same, but,
    for example, big systems, like mine--we have our own police
    departments. They're sworn officers. Small colleges may not
    have any sworn officers on their staff. Should we be required
    to have separate MOUs, or do we start with our own police
    departments? These are the kinds of things that are different
    between campuses.
        Senator Cassidy. Let me ask you something different.
    There's been some high-profile stuff recently about the
    accused--those who felt as if they were wrongly accused and did
    not receive due process from the university. Again, I can't
    attest to that. In our democracy, you're innocent until proven
    guilty. That's one thing.
        Do you have thoughts, or do others How do we address those
    who might be wrongly accused? I actually know a woman who is
    now being accused, and she swears she's accused wrongly. Yet
    her entire career is in jeopardy because of this, and she feels
    as if she has not been accorded her rights. Any thoughts about
    how we address that issue?
        Ms. Napolitano. Right. We're actually looking into that
    right now. How do we make sure the system is fair to both
    sides? Actually, when I look at the litigation that's been
    filed against the University of California, about half of the
    cases have been filed by survivors and half by respondents who
    say they weren't treated fairly. There's a lot of controversy
    in this area.
        One of the issues we're looking at is do we provide--or
    what kind of support do we provide to a respondent in addition
    to a complainant. Right now, we provide the support to the
    complainant. Do we provide the exact same thing to a
    respondent? If not, what do we provide for a respondent?
        Senator Cassidy. Some of the stuff I've read suggests that
    it should actually leave the university system and go to a
    civil court, because that's the only way you ensure that you
    get fair treatment for both parties. Again, I'm looking at 41
    percent. If that statistic is true, it tells me that for a
    sizable minority of the universities, there's inadequacy of
    approach, whether it is for either party. Any thoughts about
    that?
        Ms. Napolitano. Well, if you made it mandatory that these
    cases go into either civil or criminal court, that would be a
    deterrent to complainants coming forward at all. I would be
    very cautious about any kind of mandatory referral process.
        Senator Cassidy. I understand. My time is out.
        I am to announce that the committee stands in recess for
    Senators to vote, and we'll resume shortly after votes have
    ended.
        Thank you each for your testimony. I just can't thank you
    enough.
        [Whereupon, at 10:22 a.m., the committee recessed, to
    reconvene at 10:46 a.m., the same day.]
        Senator Collins [resuming the chair]. The committee will
    come back to order. Contrary to my expectations, although the
    Chairman has returned, he has very graciously agreed to allow
    me to continue wielding the gavel--and so I'm feeling extremely
    powerful--until such time as I have to leave. Then he will
    resume his rightful place as Chairman of the committee. I thank
    Senator Alexander for his courtesy on an issue that matters a
    great deal to me.
        Senator Bennet, we left off with you being next.

                          Statement of Senator Bennet

        Senator Bennet. Thank you, Madam Chair.
        Thank you, Mr. Chairman, for allowing the Senator from
    Maine to continue her able chairing of his hearing.
        And thank you to the witnesses for being here.
        Ms. Bolger, in particular, thank you so much for your
    testimony. I wonder whether you mind touching on something you
    touched in your written testimony, but not in your oral
    testimony, and that is your views on mandatory referral laws
    and how we should think about that and how policymakers at the
    State level should think about it.
        Ms. Bolger. Yes, absolutely. Thank you for the question.
    Are you speaking about mandatory referral laws to the police?
        Senator Bennet. Yes.
        Ms. Bolger. That's a wonderful question and one that many
    people have. I get asked all the time why campuses are dealing
    with this in the first place and why don't we send reports to
    the police, and that's a really intuitive question. The reality
    on the ground is that survivors tell us again and again that
    were their reports to schools that were forced to go to the
    police that they would report to no one at all.
        In fact, 9 in 10 survivors told us that if their reports
    were turned over to the police without their consent, they
    expect fewer victims would report. If we are serious about
    reducing violence on our campuses, perhaps counterintuitively
    the best thing to do is to empower survivors with the right to
    decide who receives their reports.
        Senator Bennet. Does anybody else want to touch on that?
        [No verbal response.]
        Let's stick with you, then, Ms. Bolger. You used such a
    great phrase, the reality on the ground. Are there other things
    that we should be thinking about that either might be
    counterintuitive or not, but in terms of the reality on the
    ground as we act in a well-intentioned way, but in a way that
    could be counterproductive?
        Ms. Bolger. That's also a wonderful question. The first
    thing that comes to mind is that we are hearing a lot on
    college campuses about sexual assault and how schools need to
    take sexual assault seriously, and that's true. That is
    starting to happen.
        There is a real gap, though, between responding to sexual
    assault and responding to other forms of gender-based violence.
    I'm talking about dating violence, intimate partner violence,
    stalking.
        The new components of the Clery Act will require schools to
    report incidents of dating violence, domestic violence, and
    stalking, but it's critically important that schools address
    these issues in their policies. Policies for dating violence
    survivors can look really different than for sexual assault
    survivors--things like providing free transportation to a local
    court to obtain a restraining order, not penalizing survivors
    for missing class in order to obtain a restraining order,
    things like that.
        Senator Bennet. Are you aware, or is anybody else on the
    panel aware of--is there a designation somewhere of
    universities that have set the gold standard for dealing with
    sexual assault and sexual violence on campuses, or some
    standard that students have established or community groups?
    I'm just trying to think about where we would find the best
    practices if we were to look--probably at the University of
    California, I'm sure. But where else?
        Ms. Napolitano. We aspire to be the gold standard, but we
    know we have more work to do. I think every campus in the
    United States recognizes that. We certainly have taken this on
    as a major issue for our students and for our campus community.
        Senator Bennet. Ms. Flounlacker.
        Ms. Flounlacker. If I could add, Senator, you raise a
    really important question, and it speaks to the section of the
    CASA legislation for a grant program, which we think is really,
    really important, particularly focused on more research on
    better awareness and prevention, which our schools are very
    engaged in on the research front. We need more of it so we can
    identify better and best practices. I think everyone can agree
    with that point.
        In an ideal world, with a grant program in the legislation,
    we would want a dedicated funding stream for this kind of
    research, rather than using funding from the fines to go into
    the grant program. We would prefer a dedicated funding stream
    just for this kind of important research.
        Ms. Bolger. At least from where I sit as a recent graduate
    and a survivor and an advocate, I don't think that we know that
    any school is getting it right, perfectly. There are certainly
    schools with strong policies. Until we have more information
    and more data, like what we could obtain from standardized
    climate surveys, I don't think that we're going to have a good
    sense of what policies are necessarily working best until
    students tell us.
        Senator Bennet. Governor, you get the last word.
        Ms. Napolitano. I'm sorry. It goes to the point of
    flexibility in legislation, because evidence-based, data-driven
    best practices will change over time. What the law wants is for
    us to use data-driven best practices and to be able to
    demonstrate that that's what we're doing.
        Senator Bennet. Thank you.
        Thank you, Madam Chair.
        Senator Collins. Senator Warren.

                          Statement of Senator Warren

        Senator Warren. Thank you, Madam Chair.
        Thank you, Mr. Chairman, for holding this hearing today.
    It's a very important hearing, and I really appreciate both of
    you for doing this.
        We've talked about the numbers. According to the CDC, an
    estimated 19 percent of women will experience a sexual assault
    while in college. One in five women means something is very,
    very wrong. Students, all students, should be safe on campus.
        Ms. Bolger highlights the importance of climate surveys
    and, particularly, the importance of making the data that comes
    from those surveys public, and I strongly support this effort.
    Good data can be an important foundation for change, and, as
    you've said, if no one knows what's going on, then there won't
    be any change.
        We've also talked about how colleges respond to reported
    incidents of sexual assault, and that's very important. A
    school's response should be timely, should be appropriate,
    should be respectful. I want to ask about work to prevent
    sexual assaults in the first place and how the Federal
    Government can help.
        Chief Stafford, in your nearly 30 years serving in campus
    law enforcement, what did you or GW's administration do that
    proved effective in preventing sexual assaults on campus?
        Ms. Stafford. The education efforts have to start with--we
    often focus the education efforts on women, because we assume
    that, generally, women are more frequently the victim of a
    sexual assault than men. We have to focus our education efforts
    on men, and we need to do that, quite frankly, when they're in
    high school.
        We should be sending men to campuses who understand
    respecting a woman, understand what consent is. I have huge
    concerns about the level of understanding, and I have friends
    with teenage boys, and I talk to them about their level of
    understanding of consent, and they don't understand consent.
        The education efforts really need to be focused not only on
    women and not becoming the victim of a sexual offense, but on
    men and not victimizing women. It needs to go both ways.
        Senator Warren. Ms. Bolger, would you like to weigh in on
    this, focusing it just a bit more on the prevention part of
    this?
        Ms. Bolger. The most important thing about prevention
    education is that it starts early and it just keeps going. We
    need consent education and healthy relationship education in
    middle and high school and college. It needs to start the week
    that first-years get to campus, and it needs to continue.
        I know that I had no recollection of any sort of
    orientation or education programming I received around this,
    because as a first-year, in your first week, you're getting
    bombarded with so many messages and so much information. It
    needs to be ongoing.
        I see a lot of schools trying to slide by doing online
    prevention education. Online prevention education is not
    education. It needs to be in person, and it needs to be looking
    at the issue both from a skills and information-based level,
    telling students about their rights, telling students what
    consent is, and it also needs to be looking at it from a
    cultural norms values-based level, talking about sexism and
    violence more broadly.
        Senator Warren. President Napolitano, can you tell us a
    little bit more about what you've done in the UC system, what
    you've found effective, or not, in terms of prevention?
        Ms. Napolitano. Again, it's an evolving area. In person
    education, online, supplements, complements--those things can
    happen together--experimenting with peer-to-peer education
    programs, bystander education so that the overall campus
    community is more aware of what it should do if they are a
    witness to an event. Those are the kinds of things that improve
    the overall climate.
        Senator Warren. I'm getting low on time here. Let me just
    ask this question because of where we are today. Where is it
    that the Federal Government can be helpful in this part of
    making campuses safer? What is it that we should be talking
    about and thinking about here at the Federal level? I open this
    to anyone who would like to respond. Don't all jump in at once.
        Ms. Stafford. I'd like to talk for a second about the issue
    of the MOUs that's in CASA, because the reason sexual assault
    survivors have been unwilling to report sex offenses to local
    police and campus police is because they're uncertain of what
    they're going to face and what they're going to deal with when
    they make the report. Are they going to be believed? Are they
    going to be challenged? Are they going to be made to feel
    irrelevant?
        Having or not having an MOU isn't going to change whether a
    survivor reports the incident to police or not. Most campus
    public safety leaders I know have requested MOUs of their local
    police, and the local police--if they have one--it's because
    the local police were willing, and if they don't have one, it's
    because the local police weren't willing. There's nothing
    behind--there's no teeth behind it that forces them to engage
    in getting into an MOU with the campus police departments.
        I would like to see something that actually forces the hand
    of local and State police agencies to actually engage with the
    campus police agencies. Because I know in Washington, DC, every
    time there was a new chief of police, I went to them and asked
    for an MOU. Every time, I was refused.
        Senator Warren. That's a very helpful point. Did anyone
    else want to say something quickly, because I'm out of time
    now.
        Ms. Bolger. I would just say very briefly that the two most
    important things, from my perspective as a former student and a
    survivor, is mandated transparency from schools--do we know
    what's actually going on--so prospective students and their
    families know what to expect, and enforcement from the
    Department of Education. Students have really felt alone on
    their campuses in trying to deal with this, and if the Office
    for Civil Rights can continue to step up, I'm confident things
    would change.
        Senator Warren. Thank you. Since I'm out of time, I'll just
    add this as questions for the record.
        But thank you all very much. We've got to do everything we
    can to keep everyone safe on campus, and I really appreciate
    you being here today. It's our job to do what we can to help.
    Thank you.
        Thank you, Madam Chair.
        Senator Collins. Thank you.
        Senator Baldwin.

                          Statement of Senator Baldwin

        Senator Baldwin. Thank you very much, and I very much
    appreciate the scheduling of this hearing. I really want to
    thank our witnesses today, both for your time and your
    testimony, but also for your life's work and energy devoted to
    advocating for others and improving the climate on our campuses
    across the United States.
        I wanted to start with a question about the climate survey.
    We just had a question before our break about bolstering
    participation rates. In addition to that, I guess I wanted to,
    first of all, recognize that the Association of American
    Universities has been active in developing and beginning to
    implement a sexual assault campus climate survey. I'm proud
    that one of the campuses in Wisconsin, the University of
    Wisconsin Madison, is a part of this effort.
        As I understand it, the results of this survey are due in
    the fall. I would hope that you could perhaps share some of the
    lessons that AAU has learned in its implementation. Especially
    if we are to look at including a climate survey as we
    reauthorize the Higher Education Act, we want to garner the
    best and latest information.
        After Ms. Flounlacker speaks, I want to ask President
    Napoli
    tano--I think the first point you made in your testimony was
    the flexibility, recognizing differences in campuses and how
    that might inform the content of a climate survey. I wonder if
    you can be more specific about how you would alter the climate
    survey from campus to campus or what we should be thinking
    about.
        Let me start with you, Ms. Flounlacker.
        Ms. Flounlacker. Thank you, Senator, for a very important
    question. This is a top priority. Our presidents and
    chancellors asked for better data on this issue, and we are
    delivering through the surveys. As mentioned, we will produce
    the aggregate results in the fall. We've encouraged all
    schools, and I am confident that all will produce their own
    results as well.
        I'd like to offer some specific comments. The first has to
    do with response rates. It's an issue that you raised and,
    actually, Senator Collins raised as well, and it's a really
    important issue. Colleges with any survey want to ensure as
    high a response rate as possible, particularly with a survey of
    this nature.
        Unfortunately, schools have no legal authority to force, to
    compel students to participate. Having said that--and I have
    seen this now firsthand through our survey--there are a number
    of strategies that schools can employ if the survey is locally
    administered, so if the school itself administers the survey,
    versus the CASA legislation, the Department of Education would
    administer the survey. That's one of our concerns.
        If the school administers it, then they have control over a
    whole host of issues: who promotes it, how it's promoted, when,
    how long, whether incentives are used or not. There is a solid
    research-based group of evidence that talks about strategies
    that really can bolster response rates. That's an area that we
    know a lot more about now, and AAU can be a great resource
    moving forward.
        If I have another minute----
        Senator Baldwin. Wait, because I do want to----
        Ms. Flounlacker. OK. I'll stop there, and if there's more
    time, I can comment more.
        Ms. Napolitano. Well, her answer illustrates the point I
    was making about flexibility. You know, a survey administered
    from a Federal department is a lot different than one
    administered on your own campus. How a campus administers it
    and the incentives it uses and what it does to increase the
    response rate can be very specific as to a campus.
        The same thing could be said to content as well, as long as
    certain subject matter areas are covered. The third thing is
    that you can get campus climate through a variety of
    measurement mechanisms. We were talking during the break about
    focus groups to supplement surveys, giving students a greater
    opportunity to discuss.
        We know this from politics. Where a poll just tells you X,
    and it's a snapshot, a focus group gives you an opportunity for
    a longer discussion. The result is for national policymakers to
    know what's happening, parents to know what's happening,
    students to know what's happening, but also campus leadership
    to know what's happening on their campus so they can take
    immediate action.
        Senator Baldwin. Thank you. I notice that I'm about to run
    out of time. I would ask that you do, indeed, followup to make
    your additional points. If either Ms. Bolger or Chief Stafford
    have additional comments on that question, I would appreciate
    it.
        Just let me note that the other question I intended to ask
    but won't have time relates to the fact that we are looking at
    flat funding by the Office of Civil Rights in the Department of
    Education, which is tragic to me in terms of how important you
    have articulated in your testimony that adequate resources are
    there. I would love to hear from all of you on what impact it
    will have on institutions as well as students.
        Senator Collins. Thank you.
        Senator Casey, you missed me lauding you in my opening
    statement, so know that it occurred.

                           Statement of Senator Casey

        Senator Casey. Senator Collins, thank you, and I appreciate
    that, and I appreciate what you have said and what you've done
    on this issue--and Senator Murray as well--the commendation,
    but also the work and leading us in this hearing today. I
    appreciate all of our witnesses who have labored in the
    vineyard a long time, if I can use a line from the Scriptures
    about this issue.
        It's an issue that, I guess, for far too long, we haven't
    been willing to confront as a country, even though it's one of
    the most profound betrayals you can imagine. It's a betrayal
    when you send a daughter to a college--and I've sent two, and I
    have two more--but when you send a daughter to a college, and
    you tell them to study hard and that they're going to have a
    wonderful experience, one of the best experiences of their life
    in most cases, and then the system betrays them. The school
    lets them down. The government lets them down.
        When I say betrayal, we all--not everyone in this room, but
    a lot of us share in that. We have to be very--not just
    determined, but we have to be very insistent on following rules
    and demanding a lot more of our schools than we've demanded up
    until now.
        It's a matter of basic justice. In the Bible, they talk
    about people hungering and thirsting for justice. Well, in this
    case, they have not been satisfied. Victims have not been
    satisfied, families, and communities.
        We have a long, long way to go, and I'm very proud of the
    work that I did and others did to get the recent changes
    through VAWA, get them through the regulatory process and have
    them not just as law, but as law that's being implemented by
    way of regulation. I know there's some discord about the result
    of that. We'll get to that in a moment.
        This has to be a priority for men. Men have been on the
    sidelines too long. Too many young college students standing at
    parties, knowing something's going to happen or having a sense
    that it might happen, having a sense of what their friends
    could do, and just walking away or not doing anything. In some
    ways, as much as the system has betrayed women on campuses, a
    lot of guys have betrayed them as well--sometimes their best
    friends.
        Ms. Bolger, when you testified, we're grateful that you did
    that. I can't even begin to imagine how difficult it is to have
    lived through what you've lived through and then to come before
    a public audience like this. It may not be the first time, but
    it's of great value and benefit. We need to learn--not just
    learn from you, but be inspired and try to move this issue
    forward in a way that commensurate with the spirit that you've
    brought to it.
        I wanted to ask you first a question about, in your
    experience, working with survivors. One of the challenges here
    is reporting. If you could, walk us through, in your
    experience, why victims sometimes have the great difficulty of
    reporting.
        Ms. Bolger. Thank you for that question and for all your
    work on this issue. It means so much to survivors and to
    students. There are a whole host of reasons why it is
    challenging for survivors to report. The person who assaulted
    them is likely someone they know, a friend, a partner. It's
    incredibly difficult to take a person you love and trust, have
    this happen to you, and then report them.
        Many survivors fear reporting to the police for any number
    of reasons. They may be undocumented. They may come from
    already over-criminalized communities. For some survivors,
    reporting to the criminal justice system won't do anything for
    them because their States don't even recognize what happened to
    them as violence.
        It's incredibly important at the campus level that schools
    are open and transparent about the kinds of protections
    students can expect to receive by reporting. It's hard to
    report if you don't know what could come of it and how that
    could help you continue your education and feel safe on campus.
        Senator Casey. We appreciate that, because one of the
    things we tried to do in the campus SaVE changes is to take
    that into consideration, and I appreciate the input.
        Secretary Napolitano, we're grateful that you're here today
    and grateful, again, for your continuing service now in the
    field of education as you did for the country and for your home
    State. I guess one question I have for you is what are some of
    the lessons learned, that you--as the leader of a major
    institution--have been confronting this and trying to deal with
    both the reality of the problem, but also the complexity of
    trying to make the changes that you hope to make and that you
    have made?
        Ms. Napolitano. One lesson is how do you take a large
    system such as a university system, like the University of
    California, and a major issue that is--as I mentioned, it's
    cultural, it's health, it's criminal--and organize it in such a
    fashion that you can take implementable steps on each one and
    work your way through a program and evaluate it as you go along
    as to whether you are really doing what survivors need and what
    justice commands.
        One point I wanted to add with respect to what students
    have told me on the reluctance to report is the issue of
    confidentiality--is the confidential advocate truly
    confidential--and the law needing to be clear about when we
    have somebody we brand as the confidential independent
    advocate--well, does that person also have reporting
    responsibilities? If they do, that undercuts the nature of
    confidentiality. There's a lot of confusion in that area in the
    law right now.
        Senator Casey. I'm out of time. I'll have some more
    questions for the record.
        Senator Collins, Senator Murray, thank you very much, and
    Senator Alexander.

                               Senator Alexander

        The Chairman [presiding]. I know Senator Collins has to
    leave. I had expected to be in Nashville at a funeral today and
    was told a vote might be close on the highway bill. That's the
    way the Senate works. So I came back.
        I thank Senator Collins for, in a short period of time,
    preparing herself and using her usual diligence to chair the
    hearing. She has a background in--we're all experts on
    education, but she actually worked at a university, Husson
    University.
        I thank you very much, Susan, for taking time to do this. I
    know that you have to leave, and we'll wrap up the hearing now
    as you go. We look forward to your advice as we continue with
    this issue.
        As you can tell from the comments of the Senators, there's
    a good deal of concern and a surprising amount of humility
    here, in the sense that we're not sure we know what we can do
    to help you, and we certainly don't want to interfere with your
    efforts. Senator Warren's question was a very good one. She
    simply asked, ``Well, what can we do to help?''
        We'll be finishing our--Senator Murray and I will be
    working with our working groups on the reauthorization of the
    Higher Education Act this fall. We hope to complete that before
    Thanksgiving in the committee.
        I'll have more to say about asking for your advice. Thank
    you, Senator Collins.
        Senator Collins. Thank you very much, Mr. Chairman. It was
    an honor to substitute for you today. Thank you.
        The Chairman. Senator Murray, do you have additional
    questions and comments?
        Senator Murray. Mr. Chairman, I just would like to ask
    unanimous consent to include in the record a statement from the
    Women's Legal Defense and Education Fund. I will submit any
    other questions I have.
        I want to thank all of our panelists today for their really
    expert testimony. This is an extremely important topic, and
    every parent who is sending a daughter or a son off to college
    wants to know that we are doing everything we can to make sure
    they are protected, and you all have given us great insight on
    how to do this correctly.
        Mr. Chairman, I look forward to working with you on this as
    we look at reauthorizing the Higher Education Act.
        The Chairman. Thank you, Senator Murray. I should add that
    this has been a priority of Senator Murray's from the day we
    started working together, and she's going to continue to focus
    on campus safety. We're thinking about a hearing coming up soon
    on that.
        I have three questions I'd like to ask the panel, and the
    answers can come later. If you have something you'd like to say
    about it now, I'd welcome it.
        Question No. 1 goes back to what I said a little earlier.
    Government has a way of expressing its concern in laws, rules,
    and regulations that aren't as efficient as the concern is
    real. In other words, we sometimes duplicate, and we sometimes
    cause campuses to spend more time filling out forms than
    working with students to, for example, have a session informing
    incoming freshmen about what their responsibilities are.
        Let me ask this. Would each of you be willing to give us
    specific suggestions about how you see title IX and its rules
    and regulations, the Clery Act and the new regulations--how
    they could be improved, where they conflict, how they could be
    made clearer so that campuses would have the flexibility that
    you talked about, President Napolitano? I didn't know quite
    what title to give you, but I'll call you President Napolitano.
        Would you be willing to do that and to give it to us in as
    specific form as you could? If you have any comment you'd like
    to make about that, I'd be glad to have that.
        Ms. Napolitano. I welcome the opportunity to do that.
        The Chairman. The University of California--I know that
    through your system, you're so large and such a good system
    that, you're bound to have plenty of people who are wading
    through all the Federal rules and regulations.
        Just tell us, ``We don't know what this means, and this
    duplicates this.'' You've been in so many different positions,
    as Governor and here--you know exactly what I'm talking about,
    particularly, on behalf of all the colleges and universities.
    We need that by around September in order to be able to include
    it in the reauthorization act if there's something that we need
    to do.
        Ms. Flounlacker. Mr. Chairman.
        The Chairman. Yes.
        Ms. Flounlacker. If I could just add, we would absolutely,
    as President Napolitano said, welcome the opportunity. If I
    could go one step further, we should also pay close attention
    to the Department of Education and make sure as the
    reauthorization process goes forward that they do not issue any
    additional guidance without the comment, which is very standard
    rulemaking process, to allow stakeholders, survivor groups,
    higher education, other experts, the time to ask questions, to
    clarify as well as provide important expertise to ultimately
    shape the outcome we all want.
        The Chairman. That's a reasonable request. Several of us on
    the committee asked a distinguished group headed by the
    chancellors of Maryland and Vanderbilt to look at, generally,
    simplifying our education rules and regulations and making them
    more effective.
        One of their findings was that every one of our 6,000
    colleges and universities gets, on average, every work day, one
    new guidance or rule. I will ask the department not to do that,
    especially while we're in the midst of the reauthorization of
    the Higher Education Act.
        The other observation to make as a part of that is that
    only 15 percent of the colleges are private universities. We
    often think about those. There's a difference between Nashville
    Auto Diesel College and UCLA in terms of what we might be
    thinking about doing. We need to keep that diversity in mind.
        A second question I would ask you--one college president, a
    very accomplished one--she's been president of three different
    colleges--when I asked her what we should do about this, she
    said,

              ``You should focus on helping campuses better
            coordinate with law enforcement agencies, but do not
            turn colleges into law enforcement agencies.''

        Do you have any comment on that?
        Ms. Stafford, I would think you might.
        Ms. Stafford. I absolutely agree. There's a reason for a
    campus process, and campuses certainly have a place in the
    process. I don't want to see them become law enforcement
    agencies. Students have the right to choose whether or not they
    want to move forward with pressing charges, and if they do, law
    enforcement is there for that.
        The campuses provide an alternative for students, as far as
    the disciplinary process, and I think VAWA has actually
    continued to strengthen that process. I fully support not
    making campuses try to take the place of law enforcement. Law
    enforcement has a specific place, and they will do their job if
    called upon to do it.
        Ms. Napolitano. I would concur and just say that the goal
    of the student disciplinary process is different than the
    criminal process. However, there can be greater linkage between
    campuses and law enforcement in appropriate cases, and there
    are ways to do that.
        The Chairman. The last question I would have is this. What
    can we do or not do to make sure that colleges establish
    procedures dealing with sexual assault that are fair and
    protect the due process rights of both the accused and the
    accuser? What should we keep in mind as we work on that issue?
        Ms. Napolitano. Senator, that's something that we're
    looking into right now--what should be the rights of the
    accused. It does illustrate the difference between a student
    disciplinary proceeding and a criminal proceeding, the
    confrontation rights, for example. They should be different
    between those two things. We're working our way through that
    right now. It's a difficult issue, as you might imagine.
        The Chairman. Right.
        Ms. Bolger.
        Ms. Bolger. The only point I would add is that title IX as
    well as campus SaVE already requires schools to be fair and
    equitable in their processes. Know Your IX sent a letter to
    university presidents asking for fairness and that they follow
    the law. It's critically important that that is the case, and
    at the end of the day, we're all really on the same piece here.
        There's a way in which we like to pit people who care about
    survivors against people who care about accused students. At
    the end of the day, this is about access to education, and that
    title IX very clearly demands that all parties be treated
    fairly and equitably.
        The Chairman. Thank you.
        Yes, ma'am?
        Ms. Flounlacker. I was going to make the same point Ms.
    Bolger made and just might add that in the CASA legislation
    through the reauthorization process, we need to make sure that
    any new training requirements for the confidential advisor, for
    example, doesn't contradict what's currently in law and with
    respect to a fair and impartial process. Training requirements
    is an area we need to pay particular attention to.
        The Chairman. Thank you.
        Senator Whitehouse has slipped in under the wire. I'll call
    on him, and then we'll conclude the hearing.
        Senator Whitehouse.

                        Statement of Senator Whitehouse

        Senator Whitehouse. Thank you, Chairman. Thank you for this
    hearing and thank you very much to all of the witnesses who
    have been wonderful.
        Given the late stage in the hearing, what I might do is
    offer a few thoughts and ask each of you if you would respond
    to them for the record rather than extend this and perhaps run
    over my time.
        My first thought is that there is not good enough
    coordination between the Clery Title IX process and the
    ordinary and proper course of a law enforcement investigation,
    and that we need to find a way to disentangle those two
    processes so that they're not working at cross purposes with
    us. Too often, we've heard about cases in which evidence is
    unnecessarily lost because law enforcement wasn't brought in at
    a suitable time.
        We've heard about instances in which the university process
    creates opportunities that are prejudicial to the victim in a
    later criminal justice process by opening avenues of cross
    examination, for instance. Are there any thoughts you may have
    on how we can better accommodate the law enforcement process in
    this. Given that--to quote Senator Gillibrand, ``given the
    violent felony that this actually is,'' we need to bring law
    enforcement in at an earlier time, which brings me to my second
    point.
        In my view, the sooner we get law enforcement engaged in
    the process, the better. Now, the counter argument to that is
    that in the past, there have been times and circumstances when
    law enforcement has done a lousy job of participating in these
    investigations. The fact that law enforcement has done a lousy
    job on occasion is not a reason to keep law enforcement out.
    It's a reason to improve law enforcement in this area.
        We have a model with domestic violence. It wasn't too long
    ago when law enforcement was not helpful in domestic violence
    cases--drive the guy around until he sobers up, ask the woman
    victim what she did to provoke him. We've learned a lot, and
    the domestic violence community has something to teach us about
    the integration of victims, advisors, and law enforcement early
    in the process.
        The third point that I'd ask you to respond to is that the
    primary concern that I hear on behalf of victims is that if law
    enforcement gets involved right off the bat, there's the risk
    that the victim will lose control over the proceedings. At a
    time when victims are already feeling that they've lost a lot
    of control and are feeling very vulnerable, that can be a very
    considerable threat.
        I believe that victims are often very poorly informed about
    the reality of a law enforcement intervention. Secretary
    Napolitano and I were both U.S. attorneys and attorneys general
    together, and you really don't have much of a case if you don't
    have a cooperating victim. The likelihood of a criminal case
    being a vehicle for kind of running away with an unwilling
    victim is very small and can probably be addressed.
        The concept--and I'll close with this. The concept that I
    am mulling is that at a very early stage in the report of an
    alleged assault, law enforcement would be involved. The police
    department would be involved. At a time before, unless there
    was some kind of immediate public safety emergency--there are
    times when you need to react, and, obviously, you shouldn't
    prevent that from happening.
        But absent that, there could be a conversation in what, for
    want of a better term, you might call a sort of law enforcement
    vestibule, where the law enforcement officer comes out from his
    pure law enforcement role into the vestibule, sits with the
    confidential advisor, sits with whoever is handling the Clery
    piece, sits with the victim, and, together, they can walk the
    victim through what his or her real prospects are and what the
    real likelihood is of being run away with by a law enforcement
    investigation gone berserk and what the real risks are of not
    reporting to law enforcement timely in terms of cross
    examination vulnerability, and what the real risks are of
    losing both electronic and biological evidence if time goes by,
    and figure out a way to make that happen.
        I worry that we're going to be in a situation in which the
    fears that have been justly provoked by clumsy, untrained, not
    trauma-informed, inexperienced law enforcement interventions in
    these cases are becoming an obstacle for a process where we
    could create experienced, trauma-informed, sensitive, effective
    law enforcement intervention at a very early stage.
        I've run out my time. I hope those are useful thoughts, and
    I hope that they're useful enough to provoke a response from
    you under our questions for the record rule in the committee.
        President Napolitano, you're probably too busy to do this
    yourself, so I'd be delighted to receive a QFR response from
    whoever in the vast University of California system you
    delegate to handle this stuff.
        Ms. Napolitano. I'll write it myself.
        Senator Whitehouse. Mr. Chairman, thank you very much.
        You've known me too long to try to get away with that.
    Thank you. Good to see you here.
        The Chairman. Thank you, Senator Whitehouse.
        I'd like to ask consent to insert statements in the record
    from individuals and organizations interested in due process
    rights. We've received a number of comments on that, including
    from Judge Nancy Gertner at Harvard Law School; Janet Halley,
    Harvard Law School professor; and others.
        [The information referred to may be found in Additional
    Material.]
        The Chairman. The hearing record will remain open for 10
    days. Members may submit additional information for the record
    within that time if they would like.
        The committee plans to hold the next hearing related to the
    reauthorization of the Higher Education Act on Wednesday,
    August 5, to discuss the status of student success at American
    colleges and universities and how to improve it.
        Thank you to the witnesses for coming. We appreciate it
    very much. Some of you have come a long way, and we know that
    you have other things to do, and this has been a big help to
    us.
        I thank my colleagues. The committee will stand adjourned.
        Senator Whitehouse. Mr. Chairman, may I just make one final
    remark for the record?
        The Chairman. Sure.
        Senator Whitehouse. My attorney general at home, Peter
    Kilmartin, has convened a group of folks from domestic violence
    victims' organizations, and Rhode Island has a really rich and
    robust higher ed community that is all participating in a very,
    very good way. I just want to, on the record, commend Attorney
    General Kilmartin and the higher ed and victims' community in
    Rhode Island for the really terrific local work that they are
    doing which is helping to inform what I'm doing here.
        Thank you for the courtesy.
        The Chairman. Thank you. The committee is adjourned.
        [Additional Material follows.]

                              ADDITIONAL MATERIAL

      Prepared Statement of Senator Dean Heller, a U.S. Senator from the
                                State of Nevada

        Chairman Collins, Ranking Member Murray, thank you for the
    opportunity to testify today on the Campus Accountability and
    Safety Act. I am grateful for the committee's attention to the
    important issue of combating sexual assault on our Nation's
    college and university campuses.
        I am proud to have worked alongside Senators McCaskill,
    Gillibrand, Ayotte, Grassley, Blumenthal, Rubio, and Warner to
    introduce our legislation that will address the shortcomings of
    current law and ensure all students working toward a college
    degree are able to focus on their studies instead of worrying
    about the threat of being sexually assaulted.
        When we first started working on this legislation, it was
    important for me to sit down with stakeholders in Nevada to
    build a workable proposal. This is why last June, I held a
    roundtable in Las Vegas to receive input from title IX
    coordinators, police officers, and victim's advocacy groups on
    ways to prevent sexual assault and assist student survivors. I
    brought their ideas back to Washington and much of their
    feedback helped us craft our first bill. This is only one
    example of our outreach.
        Since the first introduction of our bill, our bipartisan
    working group continued to meet with stakeholders across the
    Nation, including survivor groups, students, colleges and
    universities, law enforcement, and others who helped strengthen
    and improve our new bill that we introduced earlier this year.
        From the beginning, we have also worked diligently with
    your committee to ensure our final bill incorporated comments
    from experts on our Nation's education system. Our working
    group strongly believes we have put together a comprehensive
    product that will provide our schools with the tools they need
    to make our campuses safer.
        I know for me, and for many parents, watching your children
    go off to college is one of the proudest moments in your life.
    Parents want to be confident that their sons and daughters will
    be safe and have access to the resources they need from their
    schools. Unfortunately, this is not always the case.
        Today, there are over 100 colleges and universities under
    investigation for violations of title IX in their handling of
    campus sexual violence. While we have all seen news story after
    news story about these tragic events, the reality is there are
    many more survivor stories that have not been heard.
        Sexual assault is a crime that more often than not goes
    unreported, which is one of the reasons why data provided by
    our Nation's institutions simply do not reflect the prevalence
    of this crime. In fact, there are many colleges and
    universities that have reported zero incidences of sexual
    offenses to the Federal Government.
        I strongly believe one of the most important provisions of
    our bill is the campus climate survey. This survey will improve
    access to accurate, campus-level data by allowing students to
    anonymously share their experiences related to sexual assault.
        Under our bill, schools will give their students an
    anonymous, online survey to gauge the scope of sexual assault
    on campus and the effectiveness of current institutional
    policies on this issue. The Department of Education will be
    responsible for developing this survey, as well as picking up
    its cost. Schools just need to ensure an adequate, random, and
    representative sample of students take the survey.
        The survey results will be reported to Congress and
    published on the Department of Education's website. Because
    this survey will be standardized, the American public will be
    able to compare the campus climate of all schools.
        As a father of four children, I wish I had access to this
    kind of information when my kids were preparing to attend
    college. Now as a grandfather of two, my hope is that when they
    grow up and go off to school, our Nation's campuses will be
    safer than ever before.
        The campus climate survey will be a useful, educational
    tool for both students and parents, as well as an invaluable
    resource for institutions to help create or enhance efforts to
    prevent sexual assault, assist survivors of this crime, and
    improve campus safety overall.
        This provision is just one example of how Congress can act
    today and make ending this crime a priority. While Congress
    cannot legislate away sexual assault, and no bill is perfect, I
    believe the Campus Accountability and Safety Act is a step in
    the right direction toward combating this heinous crime and
    guaranteeing survivors have access to the resources they need
    and deserve.
        Thank you again for the opportunity to testify today. I
    look forward to continuing our work together to address the
    issue of campus sexual assault as part of reauthorization of
    the Higher Education Act.
            Prepared Statement of Paige Danne, Mother of Accused Son
        Thank you for this opportunity to tell you our story. Our son was
    falsely accused and expelled in 2013. We settled our civil suit with
    the University and the accuser in 2014. We lived a nightmare last year,
    of injustice and a surreal kangaroo court on campus.
        Our son had just turned 18 years old, had never been in any
    trouble, never even been to the principal's office before, and within 2
    weeks of starting his college career, was defending himself against a
    rape accusation.
        He was taken to the security office late at night, without any
    advocate or support. He was asked vague and misleading questions. He
    was told that there was no need to call his parents, that if he told
    the truth, he would be back in his dorm room later that week. He was
    immediately moved to an isolated room on campus. Our son didn't call us
    right away, because he was raised to trust adults and authority
    figures, and because he was telling the truth.
        We met with the title IX coordinator on the day he was officially
    charged. I inquired about his rights and more about the process. We
    were told to Google ``The Dear Colleague Letter 2011'' and would find
    his rights information listed there.
        We were told by the Dean of Students and the title IX coordinator
    that they could not tell us what he was being accused of doing, but
    that it was ``sexual misconduct'' and that could mean,

            ``penetration by something, anything, into any part of another
            person without their consent--it could be a finger into a nose,
            a tongue into a mouth, or a penis into a vagina''.

        They told us they had a team of ``specially trained individuals''
    who only wanted the truth, and that they would follow every bread crumb
    to find that truth. We trusted the administration to be fair and
    unbiased. We trusted that they would actually talk to both students'
    witnesses, to write in the investigation report truthfully what was
    said, and to be open and caring to both students during the process. We
    were so wrong.
        He was given a choice of an advocate: either the men's or women's
    soccer coach (our student did not play soccer). He was told he could
    not have anyone else involved in the process and that he could not
    speak to anyone else about this proceeding or he would be immediately
    expelled. Our son met with the Dean of Students to discuss the
    investigations findings. He was found ``responsible'' of sexual
    misconduct. When he walked out of the building, he vomited and fell to
    the ground in a crumble--what he told us shocked us all.
        They had not spoken to any of his witnesses.
        We inquired to the title IX coordinator about this and were told it
    would be taken ``under advisement''. This happened many times. Any type
    of question or inquiry into the procedures, any question about the
    equitableness of what was occurring was taken ``under advisement''
    without ever answering questions or giving information that
    professionals trained to adjudicate felony charges under title IX
    should know.
        The investigation report was full of contradictions and one-sided
    accounts. Our son was not given a written copy of the investigation
    report--he could only read it and then tell us verbally what it said.
    His advocate was outraged, but his hands were tied. How could he
    challenge the university administration? He risked his career and would
    put his own family's well-being in jeopardy if he pushed too hard. Our
    son's advocate was contacted by the school administration about the
    case many times without our son's prior knowledge or permission. It was
    clear that the administration were manipulating evidence and witnesses
    to achieve their predetermined outcome.
        It is important that you understand how devastating this process
    was on our son. He was an innocent young student--new to campus and
    college life, first time living on his own--accused of a heinous crime.
    There was an immediate hostile environment for him at school. He was
    treated by some of the investigative team with contempt. He had no one
    to talk to, no one to help him. Because the school had published the
    incident on the school website, he was branded a rapist from the
    beginning. He was alone and under great duress without any support. He
    lost 25 lbs. in 2 months, became chronically ill from the stress, could
    not sleep, could not focus, and could not eat. He was expected to go to
    class, keep up with school without any accommodations. He was not
    allowed to confide in anyone or speak about what was going on or he
    would be immediately expelled. The accuser was spreading rumors all
    over campus. At one point, our son was studying in a common area with a
    friend, when someone walked up to him and asked if he was ``The
    Rapist''. The accuser seemed to seek out our son, and actually went up
    to him (breaking the no contact order) and asked him ``for a hug''. We
    immediately went to security and the title IX office about these
    occurrences, but were told there wasn't anything they could do.
        Preparing for the hearing alone proved difficult. His advisor
    wasn't able to help him prepare for the hearing, but only to guide him
    through the process. Our son had 1 week to prepare for the hearing, and
    to make matters worse, the Dean of Students only allowed our son
    limited ``viewing times'' in the Dean's office to see the investigative
    report. These times were often during his scheduled classes, so he had
    to miss classroom time without being able to give any explanation as to
    why he was absent. He ended up dropping a class, and his grades fell
    from A's to C's and D's. His health became so poor from the stress he
    had to take a medical leave of absence.
        After we hired an attorney, the ``investigative team'' went back
    and spoke to our son's witnesses prior to his hearing. None of the
    witness statements made the final investigative report. There was one
    witness, who could without a doubt prove that our son was innocent. Our
    son listed him and others on the witness list for the ``hearing''. None
    of his witnesses were asked to appear.
        During the hearing one panel member actually put her hand up in our
    son's face to stop him from speaking or asking a question--because the
    hearing was audio taped and not videotaped, she stopped him from
    speaking any way she could. Our son attended his hearing alone, a young
    18-year-old defending himself against a rape accusation. He faced three
    adult university employees, the Dean of Students, and one fellow
    student sitting across a small table. The accuser was across campus, on
    the phone which was muted by her at any time and her advocate/advisor
    giving her advice along the way. The ``hearing'', if you can call it
    that, was a complete mockery of truth and justice. Our son sat there,
    across the small table from the panel, with no way to prove his
    innocence. Any piece of evidence or witness statements he tried to
    bring into the hearing that could prove his innocence were shut down
    immediately. At times the audio recording was stopped, so the panel
    could tell him not to question the proceedings and to ensure he would
    sit quietly while the hearing ensued. We were told that the hearing was
    to dispute any facts in the final investigative report regarding the
    incident. He tried to question the 13 instances of false information/
    inconsistencies with statements and within the report--none of his
    questions were allowed. When he questioned why his witness statements
    or evidence did not make the final report, the investigative team could
    not provide an answer. The blame shifted from one investigator to
    another, saying this person was in charge--no, wait--this other person
    was in charge, etc. The panel decided that they didn't need to see or
    hear his witness statements, that it was ``more likely than not'' that
    he was ``responsible''.
        The adjudication process on campus is biased and unfair. The campus
    tribunal controls what evidence is allowed, what questions are asked,
    and what witnesses will speak--ALL BEHIND CLOSED DOORS. This not only
    hurts innocent students, but hurts true victims as well.
        When we found out what had happened during the hearing and
    investigation we were outraged. How could something as serious as a
    rape accusation be handled in such a biased, unfair way? How could
    professionals we had entrusted to care for our son treat him with such
    disdain, ignore facts, and not call witnesses? How could anyone expect
    a young 18-year-old, who had never lived away from home before, defend
    himself against a rape accusation?
        Our son committed Zero Crime--Yet Suffered 100 percent of the
    Consequences.
        I write today to ask you for some balance on this issue. As a
    survivor myself, as a women, as a mother to a daughter, I strongly
    advocate for a clear easy reporting path, for interim measures, for
    accommodations for survivors, for prevention and education, and for
    support for anyone reporting. I also urge you to consider what is
    missing for accused students. Students should not have to give up their
    constitutional right of Due Process when they cross the college gates.
    They should not be deemed guilty until proven innocent. They should not
    face double jeopardy, have their 5th amendment rights violated, be
    refused appropriate cross examination. Students should be able to have
    full representation of their choice, have their witnesses, evidence and
    testimony allowed. They should have ample time to review and prepare
    for the hearing, and be given written copies of the investigative
    report. They should have academic accommodations and be safe from a
    hostile environment.
        The procedural protections given in civil cases using a
    preponderance of the evidence standard as mandated by the Department of
    Education are missing in college campus tribunals. Campus adjudication
    process is not an ``educational process''. These are serious charges
    with serious consequences. A devastating, life changing trial that
    destroys a young person's will to live. Innocent students are being
    marked as a sexual predator for life, by inept educators acting as
    investigator, judge, jury, and executioner.
        Our son is still recovering. He suffers from PTSD, depression,
    anxiety. His hopes and dreams, all he had worked for, were taken from
    him by an unfounded accusation coupled with a biased process. Our
    entire family lived the nightmare with him and we will never be the
    same. Watching your child crumble before your eyes, bearing witness to
    the wrongs and not being able to stop them is soul crushing.
        I write today to ask you to help give these students a voice. They
    have been wronged by their school administration, an administration
    they also trusted, and have been victimized by their university. We
    need strong elected officials to speak on their behalf. Please bring
    back a sense of balance and justice, so that in the quest to right a
    wrong, we are not creating a new group of victims.
       Prepared Statement of Nancy Gertner, Harvard Law School Professor*
     sex, lies and justice--can we reconcile the belated attention to rape
                          on campus with due process?
        Campus sexual assaults are horrifying, made all the worse because
    the settings are bucolic and presumed safe--leafy campuses, ivy-walled
    universities. Assaults are reported in dormitories, off-campus
    apartments, and fraternity houses, in elite and non-elite institutions,
    from one end of the country to the other. Title IX (of the Education
    Amendments of 1972) was supposed to promote equal opportunity in any
    educational program receiving Federal money. Until recently, title IX
    was dormant and largely ignored. The enforcer, the Federal Government,
    had been a paper tiger. Universities were not reporting, much less
    dealing with, either sexual harassment or explicit sexual violence.
    Sexual misconduct impairs a woman's ability to function as an equal in
    an academic environment--and by extension menaces all women. Unless a
    woman is safe, all the other guarantees of equal treatment are
    irrelevant.
    ---------------------------------------------------------------------------
        * This article appears in the Winter 2015 issue of The American
    Prospect magazine.
    ---------------------------------------------------------------------------
        President Barack Obama, in a January 25, 2014, speech, assured his
    listeners that ``anyone out there who has ever been assaulted: You are
    not alone. We have your back. I've got your back.''
        In 2011, the government's approach changed dramatically: A ``Dear
    Colleague'' letter on sexual violence was sent to colleges and
    universities from the Department of Education's Office for Civil Rights
    (OCR), pointedly reminding them of their obligations under title IX and
    presaging aggressive enforcement. By August 2013, the public face of
    the department's enforcement efforts was Catherine Lhamon, assistant
    secretary at the Office for Civil Rights, a zealous advocate, formerly
    head of impact litigation at Public Counsel, a public interest law
    firm; before that, she was assistant legal director of the ACLU of
    southern California. At a July 2014 meeting of college administrators,
    Lhamon made the threat of disciplinary action unmistakable: While no
    school accused of violating title IX had ever lost its Federal funding,
    ``do not think it's an empty threat,'' she warned them. A department
    website announced the campaign against sexual violence on campus, Not
    Alone. President Barack Obama, in a January 25, 2014, speech, assured
    his listeners that ``anyone out there who has ever been assaulted: You
    are not alone. We have your back. I've got your back.'' Even the
    department's language changed, no longer referring antiseptically to a
    complainant and an accused but rather to victims or survivors, and
    perpetrators.
        To feminists--I among them--it was about time that pressure was
    brought to bear on educational institutions. Too often colleges and
    universities had excused or turned a blind eye to the crimes of serial
    sexual predators. The media, after often dismissing the claims of rape
    victims, was finally more sympathetic, covering accounts of sexual
    violence from the University of Virginia to Yale and Harvard. This kind
    of sustained attention was precisely what was needed to come to grips
    with the problem. Nothing less would have done the trick. Indeed,
    nothing had worked before. It was as if women, especially young women,
    had to speak especially loudly and especially often to finally be
    heard--a not unfamiliar concept.
        The problem was that the issues surrounding campus sexual assault
    were more complicated than the public debate reflected. How were
    universities and colleges to deal with the range of campus sexual
    encounters--a continuum from violent rape, to sex fueled by alcohol
    impairing all involved, to the expectations about women and men in the
    so-called ``hookup culture,'' to consensual sex followed by second
    thoughts. (At least one feminist scholar, Catharine MacKinnon, has
    expressed skepticism that a woman could ever voluntarily have sex,
    given the disparate power relations between men and women in society.)
    There are plenty of bright lines such as forcible rape--but also blurry
    ones. Genuine ambivalence and ambiguous signals seem almost inherent in
    courtship and sexuality, especially in first encounters. Where should
    the title IX violation line be? What was a reasonable adjudication
    process? What was the role of the criminal justice system in cases in
    which university conduct codes overlapped with possible prosecutions?
        Further, how were colleges and universities to balance the
    interests of the complainant with those of the accused? Just as the
    complainants must be treated with dignity and their rights to a fair
    resolution of their charges be respected, so too must those accused of
    sexual misconduct. You don't have to believe that there are large
    numbers of false accusation of sexual assault--I do not--to insist that
    the process of investigating and adjudicating these claims be fair. In
    fact, feminists should be especially concerned, not just about creating
    enforcement proceedings, but about their fairness. If there is a
    widespread perception that the balance has tilted from no rights for
    victims to no due process for the accused, we risk a backlash.
    Benighted attitudes about rape and skepticism about women victims die
    hard. It takes only a few celebrated false accusations of rape to turn
    the clock back.
        Rape, I insisted, is a crime to which women--including me--feel
    uniquely vulnerable, no matter who they are, no matter what their
    class, their race, their status.
        I come to this issue--campus sexual assault--from all sides. This
    is not because I was a Federal judge for 17 years, where ``considering
    all sides'' was part of the job definition. I left the bench in 2011 to
    teach at Harvard Law School, among other things. I am an unrepentant
    feminist, a longtime litigator on behalf of women's rights, as my
    memoir, In Defense of Women, reflects. Rape, I insisted, is a crime to
    which women--including me--feel uniquely vulnerable, no matter who they
    are, no matter what their class, their race, their status. No one
    should have been surprised that I supported stronger enforcement of
    title IX, more training for investigators, more services for
    complainants, systematic assessments of the State of enforcement on
    college campuses, and other tough remedies. What surprised many,
    however, was that I was one of 28 Harvard professors who signed a
    letter opposing Harvard University's new sexual harassment and sexual
    assault policies, policies introduced ostensibly in response to
    pressures from the Department of Education.
        When I was a lawyer, I understood how inadequate the law was in
    addressing sexual violence at all. I worked for changes to the
    retrograde definition of rape in statutes around the country and their
    disrespectful treatment of rape victims, laws that were a throwback to
    medieval conceptions about women. I lobbied for rape shield laws that
    limited the defense counsel's cross-examination of a woman about her
    prior sexual experiences. Little did the law trust a woman's account of
    rape that some States required that a woman's accusations be
    corroborated by independent evidence, a requirement to which no other
    crime victim was subject. The definition of the crime focused on the
    woman's conduct, whether she had resisted ``to the utmost;'' a simple
    ``no'' did not suffice. To the extent that the man's conduct was
    considered at all, the statutes required that he use force before his
    acts amounted to rape; drugging a woman, or having sex with one wholly
    incapacitated by alcohol, was not enough. Date rape was never
    prosecuted no matter what the circumstances.
        But I was also a criminal defense lawyer. I understood more than
    many how unfair the criminal process could be, how critical the
    enforcement of a defendant's rights were to the integrity and, even
    more, to the reliability of the criminal justice system. I understood
    what it meant to have a defendant's liberty hanging in the balance, how
    long terms of imprisonment could wreak havoc on the lives of defendants
    and their families. I appreciated the stigma of the very accusation,
    which persists--especially today on the Internet--even if the accused
    is exonerated. I understood the racial implications of rape
    accusations, the complex intersection of bias, stereotyping, and sex in
    the prosecution of this crime.
        I reconciled the pressures pushing me in opposite directions by
    choosing not to represent men accused of rape, while bringing civil
    lawsuits for women against the universities or the building owners that
    failed to provide them with adequate security, or against psychiatrists
    and psychologists who sexually abused them. I steered clear of
    prosecutions for rape--except for one case.
        A young man, a freshman at a local college at the time the incident
    happened and a friend of a former roommate of mine, was referred to me.
    (In my memoir, I call him ``Paul.'') He'd had sex with a classmate, his
    very first sexual encounter; he believed his classmate had consented.
    While we can never know what went on between them, the facts--her
    actions, her words, the testimony of others--made her charges wholly
    unconvincing. A few examples: She went out of her way to invite him to
    her parents' home a short time after the sex to stay for the weekend.
    Nine months after their sexual encounter, she claimed to have been
    raped and mentioned his name following the breakup of a different
    relationship and her hospitalization for depression. She accused Paul
    during a conversation with her father, but accused another male student
    while speaking to a classmate. Witnesses reported nothing out of the
    ordinary that evening, no evidence of drinking, no impairment, not even
    anxiety about what had occurred. Her account itself was improbable,
    internally inconsistent, and contradicted by the evidence and the
    testimony of her own classmates. While from decades of work on rape and
    my women's rights advocacy, I understood that this young woman could be
    telling the truth--that her behavior in the days and weeks after the
    sex, and even her multiple accounts of what went on, could be explained
    by post-traumatic stress disorder, or simply embarrassment--her account
    seemed unlikely.
        The Phi Kappa Psi fraternity house at the University of Virginia
    has been the scene of numerous protests since the report of an alleged
    gang rape at one of its parties. This demonstration on Saturday night,
    November 22, 2014, was in response to the university's reaction to a
    controversial Rolling Stone article on the allegations.
        By the late 1980s, when the accusations against Paul were brought,
    the women's movement had succeeded in making some of the changes for
    which I and others had fought. The popular media finally reported on
    the horror of date rape and its consequences. District attorneys and
    police belatedly began to prosecute the offense. The definition of rape
    changed in States across the country, although progress was far from
    uniform. Gone was the mandatory corroboration requirement and limitless
    attacks on a woman's ``chastity,'' whatever that meant in the late 20th
    century. Still, we were a long way from adequately dealing with these
    issues. There were many jurisdictions where change came slowly or not
    at all, where prosecutors and even courts not so subtly sided with
    perpetrators and blamed victims.
        While I believed that Paul had been wrongly accused, and would be
    exonerated, true to my practice I declined to represent him. I asked
    one of my law partners to step in, and then watched with horror as the
    prosecution unfolded.
        The atmosphere surrounding date rape had changed more dramatically
    than I had appreciated, at least in Massachusetts. The district
    attorney, though he fully understood the weaknesses of the case, felt
    compelled to bring the charges lest he face political repercussions,
    for being yet another politician ignoring a woman's pain. Even the
    grand jury ignored their serious doubts about the case and indicted
    Paul. As I later learned from one of its members, they felt comfortable
    indicting Paul because I was rumored to be representing him and they
    assumed he would be acquitted. The judge--with life tenure--likewise
    felt the pressure. The judge was critical; my partner decided to waive
    the jury when a program on date rape was aired on the eve of the trial.
    While the judge expressed his skepticism throughout the trial--every
    single comment of his pointed to reasonable doubt about Paul's guilt--
    his verdict was ``guilty.'' He did not say so explicitly, but the
    message seemed clear. If he acquitted Paul, he would be pilloried in
    the press. ``Judge acquits rapist,'' the headlines would scream. If he
    convicted Paul, no one would notice.
        Just because the legal system has moved away from the view that all
    rape accusations are contrived does not mean it must move to the view
    that none are.
        I took over the appeal. The brief my firm filed was what I
    described as a feminist brief: Just because the legal system has moved
    away from the view that all rape accusations are contrived does not
    mean it must move to the view that none are. This conviction was not
    just technically imperfect, I argued, it was a true injustice. I was
    successful. The Massachusetts Supreme Judicial Court reversed Paul's
    conviction on a procedural error, the trial court's evidentiary
    rulings. The prosecutor could have retried the case, but, thankfully,
    chose not to do so.
        After decades of feminist advocacy (the case establishing the right
    to choose abortion in Massachusetts, the first introduction of Battered
    Woman Syndrome in a defense to a murder charge, and on and on), I was
    picketed by a women's rights group when I spoke on a panel following
    the reversal of Paul's case; I was a ``so-called women's rights
    attorney,'' one sign announced, simply because I had represented a man
    accused of rape. When I explained why, including the fact that I
    believed he was innocent, a demonstrator yelled, ``That is
    irrelevant!'' The experience was chilling; to the picketers, a wrongful
    conviction and imprisonment simply did not matter. Paul would have been
    incarcerated, but for my firm's advocacy and the appellate court's
    independent review. Still, advocacy and appellate review could only go
    so far: Though the charges against Paul were dropped, he was expelled
    from the college he had been attending; he struggled to reapply years
    later and finally get his degree. Worse yet, he continues to suffer
    from the stigma of the accusation to this day, many, many decades
    later.
        As a Federal judge, I did not have much occasion to address the
    issues with which I had been so concerned as a lawyer. Rape is
    principally a State, not Federal, crime. I did deal with accusations of
    sexual harassment in the workplace, fully appreciating the extent to
    which sexual harassment obstructs equal opportunity and discriminates
    against women. I wrote articles decrying the state of civil rights
    enforcement in the Federal courts. On the criminal side, while I did
    everything I could to mitigate the harsh effects of onerous drug
    sentencing, I had no problem sentencing sex traffickers as harshly as
    the law allowed.
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        Still, I could not forget Paul's case. It shaped the context in
    which I saw the university sexual assault controversy. As in the 1980s,
    women mobilized against institutions that had woefully failed to deal
    with sexual violence and sexual harassment. While the movement had
    successfully raised public awareness about violence and harassment in
    homes, on the streets, and in workplaces, many police, prosecutors, and
    courts were stuck in an earlier era of victim-blaming. Progress seemed
    to have stalled at the doors of the academy, where at least some
    institutions still dissuaded women from bringing complaints while they
    shielded alleged perpetrators.
        In the summer of 2014, Harvard issued its new Sexual Harassment
    Policy and Procedures. It contained both new procedures for when
    students are accused of title IX violations and new definitions of the
    covered conduct. While ostensibly in response to the Office for Civil
    Rights' pressures, they were released without OCR's approval. In some
    respects, they go beyond what the 2011 ``Dear Colleague'' letter
    spelled out.
        OCR has clearly mandated that universities and colleges evaluate
    accusations of rape under a preponderance of the evidence standard. A
    preponderance of the evidence is in fact the lowest standard of proof
    that the legal system has to offer. In effect, if the evidence leans in
    favor of the victim to any degree, say 50.01 percent, that is
    sufficient. OCR's rationale was that this was the standard for suits
    alleging civil rights violations, like sexual harassment. True enough,
    except for the fact that civil trials at which this standard is
    implemented follow months if not years of discovery--where each side
    finds out about the other's case, knows the evidence and the
    accusations, and has lawyers to ask the right questions. Not so with
    the new Harvard regime, which has no lawyers, no meaningful sharing of
    information, no hearings. It is the worst of both worlds, the lowest
    standard of proof, coupled with the least protective procedures.
        The new standard of proof, coupled with the media pressure,
    effectively creates a presumption in favor of the woman complainant. If
    you find against her, you will see yourself on 60 Minutes or in an OCR
    investigation where your funding is at risk. If you find for her, no
    one is likely to complain.
        But Harvard's new policy goes further than OCR's mandated
    preponderance standard. Harvard establishes a fact-finding process that
    takes place entirely within the four corners of a single office, the
    title IX compliance office. The title IX officer has virtually
    unreviewable power from the beginning of the proceeding to its end. The
    officer deals directly with the complaining witness, advises her,
    determines if the case should be investigated, proceeds to an informal
    or to a formal resolution. If there is a formal investigation, the
    title IX officer appoints and trains the ``Investigative Team,'' which
    consists of one investigator, who is also an employee of the title IX
    office, and a designee of the school with which the accused is
    affiliated. The investigative team notifies the accused of the written
    charges, giving him 1 week to respond. While he has a short deadline,
    there is no time limit for the complainant's accusations, no period of
    time within which she must complain--what the law calls a statute of
    limitations.
        Thereafter, the team interviews the parties and, if it deems
    appropriate, witnesses identified by the parties as well as any others
    it decides to consult. The team issues a final report on a
    preponderance standard and working jointly with the title IX officer--
    who was in fact involved in the investigation throughout--may provide
    recommendations concerning the appropriate sanctions to the individual
    schools. There is an appeal, but it is to that same title IX officer
    and only on narrow grounds. While the final sanction is determined by
    the individual school, the fact-findings on which that sanction is
    based--this critical administrative report--cannot be questioned.
        As the letter of the 28 faculty members noted, this procedure does
    not remotely resemble any fair decisionmaking process with which any of
    us were familiar: All of the functions of the sexual assault
    disciplinary proceeding--investigation, prosecution, fact-finding, and
    appellate review--are in one office, we wrote, and that office is a
    title IX compliance office, hardly an impartial entity. This is, after
    all, the office whose job it is to see to it that Harvard's funding is
    not jeopardized on account of title IX violations, an office which has
    every incentive to see the complaint entirely through the eyes of the
    complainant.
        Nothing in the new procedure requires anything like a hearing at
    which both sides offer testimony, size up the respective witnesses, or
    much less cross-examine them. Nothing in the new procedure enables
    accuser and accused to confront each other in any setting, whether
    directly (which surely may be difficult for the accuser) or at the very
    least through their representatives. Nor is there any meaningful
    opportunity for discovery of the facts charged and the evidence on
    which it is based; the respondent gets a copy of the accusations and a
    preliminary copy of the team's fact findings, to which he or she can
    object--again within 7 days, a very short time--but not all of the
    information gathered is necessarily included. Everything is filtered
    through the investigative team, which decides the scope of the
    investigation, the credibility of witnesses, and whom to interview and
    when.
        Nothing in the OCR's 2011 ``Dear Colleague'' letter called for a
    proceeding remotely like this. Indeed, the letter underscored the need
    for an ``adequate, reliable and impartial investigation of complaints,
    including the opportunity for both parties to present witnesses and
    other evidence,'' and to have access to any information that would be
    used at the ``hearing.'' While the 2014 White House ``Not Alone''
    report mentioned that some schools had a ``single, trained
    investigator'' doing ``the lion's share of fact finding,'' as in
    Harvard's policy, it did not--and I would argue, should not--require
    such an approach.
        Nor is there any meaningful role for lawyers in the Harvard policy.
    The parties may use a ``personal adviser'' who can be a lawyer, but
    that adviser may not speak for their advisees at the only relevant
    stage in this policy, the interview with the investigative team,
    ``although they may ask to suspend the interviews briefly if they feel
    their advisees would benefit from a short break.'' (Indeed, this
    description sounds like a grand jury proceeding, which is notoriously
    one-sided, controlled entirely by the prosecutor with no role for the
    defendant's lawyer, within the hearing room.) Harvard makes no
    provision for representation of the accused, particularly for students
    unable to afford counsel, as the letter of the 28 professors notes.
    Richer students will have lawyers; poorer students will not. Nothing
    should prevent a university with Harvard's resources from providing
    lawyers for those who cannot afford them, as, for example, Columbia
    University does. In contrast, the complainant has advisers and
    advocates from the title IX office at the outset of the proceeding,
    advocates especially provided for under the policy. The respondents are
    left to their own resources.
        As the 28 law school faculty members' letter noted, even the
    definition of the misconduct is skewed. The new Harvard standards
    governing sexual conduct between students when both are impaired or
    incapacitated are ``starkly one sided'' and ``inadequate to address the
    complex issues involved in these unfortunate situations involving
    extreme use and abuse of alcohol and drugs by our students.''
    ``Impairment'' and ``incapacitation'' are not the same, under the law.
    Sex with an individual who is incapacitated or unconscious, who does
    not understand what is happening, is plainly egregious, and is rape by
    any modern definition. ``Impairment'' because of alcohol is surely a
    different matter. Worse yet, the policy is not equally applied: The
    accused's ``impairment'' based on drugs or alcohol is not at all
    relevant; it is not an argument for his ``diminished capacity'' as it
    might be under the criminal law of some jurisdictions. Instead, the
    policy treats him as if he were fully sober, fully responsible for his
    acts. The complainant's ``impairment'' is another matter. If both
    parties are drunk, but not unconscious, not incapacitated, and only
    impaired by their drinking, and they have sex, only he is responsible
    under Harvard's policy.
        In fact, there is no reason to believe that the students themselves
    define what Professor Janet Halley of Harvard Law School calls ``drunk/
    drunk'' cases as rape at all. While 10 percent of female MIT
    undergraduates in a recent study identified themselves as having ``been
    sexually assaulted,'' 44 percent reported having sex while being
    incapacitated by drugs or alcohol. Plainly, some of the students did
    not regard sex under those circumstances as sexual assault. The
    unfairness of this policy is nowhere clearer when the misconduct
    allegations are also the subject of a criminal investigation. The
    policy requires that the respondent be advised to get a lawyer--again
    on his own dime--before he provides any statement, but the
    investigation may well proceed at the discretion of the title IX
    office. Should that investigation continue--given his silence--he
    stands a good chance of losing the disciplinary proceeding and being
    subject to academic sanctions. At the same time, should a legal
    prosecution end with dismissed charges or an acquittal, there is no
    provision for a reconsideration of the academic sanctions.
        Sexual assault advocates will argue that this is as it should be.
    It will be traumatic for the complainant to confront her accuser, even
    if only through her representatives rather than directly. It will be
    traumatic for the complainant to be asked to repeat her story over
    again. A speedy resolution is critical to her recovery, they would
    suggest. These arguments, however, assume the outcome--that the
    complainant's account is true--without giving the accused an
    opportunity to meaningfully test it. However flawed, the way we test
    narratives of misconduct--on whichever side--is by questioning the
    witness, by holding hearings, by sharing the evidence that has been
    gathered, by giving everyone access to lawyers, by assuring a neutral
    fact-finder. While we know from the Innocence Project that even these
    ``tests'' can produce wrongful convictions, they are at least more
    likely to produce reliable results than the opposite--a one-sided,
    administrative proceeding, with a single investigator, judge, jury, and
    appeals court.
        Indeed, the Office for Civil Rights has agreed to investigate a
    claim of a wrongful accusation of sexual assault at Brandeis
    University. A male student was found guilty of assaulting his ex-lover,
    also a man. He claims that the school's investigation was skewed, that
    he was not permitted to respond fully to the accusations, that his
    accuser had counsel while he did not, and that his counter allegations
    were not sufficiently credited in Brandeis's investigation. In effect,
    the complainant is arguing that a flawed, unfair process undermines his
    title IX rights to equal participation in university life. While all of
    the details of the Brandeis complaint are not clear at this time, to
    the extent that Harvard's new procedures mirror those of Brandeis,
    Harvard may also be vulnerable to wrongful-accusation charges.
        Some will say that all of this shows that a university has no
    business at all dealing with sexual misconduct accusations, which
    amount to a crime. The police should be called; the sanction should not
    simply be suspension or expulsion but prison. In a criminal trial,
    there is no question about due process; the accused has the benefit of
    all the rights guaranteed in the Constitution. Indeed, Yale Law
    Professor Jed Rubenfeld argues that recourse to university remedies
    rather than a criminal prosecution for rape trivializes the offense,
    and may even enable serial predators to get away with their crimes.
        Yet women are right to be skeptical about the criminal justice
    system--about full-blown criminal trials and appeals and the toll they
    take on witnesses and accusers, about the higher standard of criminal
    proof, beyond a reasonable doubt, which, though justified by the risk
    of imprisonment, can leave many claims un-redressed. To be sure, there
    is overlap between the two--when a student accused of misconduct under
    title IX is also vulnerable to a criminal prosecution--but they cannot
    be mutually exclusive. In any event, title IX's definition of sexual
    misconduct and sexual harassment is appropriately broader, more nuanced
    than even the recent statutory definitions of rape. While the colleges
    and universities abandoned their role as parens patriae (de facto
    parents) decades ago, in a sense, title IX has invited them back in,
    policing sexual activities and misconduct--although, according to some
    commentators, not paying enough attention to the conditions that make
    that misconduct possible, like alcohol and drugs. Still, just because
    prison is not a risk hardly means that title IX disciplinary
    proceedings are without serious consequences for those accused, and
    surely does not justify a process as one-sided as is Harvard's.
        At Oberlin College, administrators worked with students to arrive
    at a policy for adjudicating campus sexual assault cases that has
    stronger due-process protections than Harvard's.
        There are plainly other options, other ways of protecting the
    rights of both students who bring complaints and of those they accuse.
    The policy adopted by Oberlin College offers an instructive counter-
    example. This is all the more interesting, since Oberlin has a
    reputation as a left-wing and politically correct college. Indeed, the
    college was widely ridiculed last year when a professor proposed a
    conduct code requiring teachers to give ``trigger warnings'' when a
    class included material that might upset some students. (Oberlin
    quickly shelved that proposal.) Yet Oberlin's procedure on sexual
    misconduct may be a model for other schools.
        Oberlin has devised a symmetrical due process proceeding. In
    language suggested by the students, the parties to the case are termed
    ``reporting party'' and ``responding party'' rather than victim and
    perpetrator. After a preliminary assessment, designed both to provide
    support to the complainant and to determine whether there is reasonable
    cause to move to a fact-finding panel, a disciplinary proceeding may be
    called. Both parties may present information, call witnesses, and, in
    lieu of a cross-examination, may forward questions that they want the
    panel to ask the other party. The three panelists are trained
    administrators, none of whom is part of the title IX office. ``That
    would be a conflict of interest,'' says Meredith Raimondo, Oberlin's
    title IX director. In the event that punishment is meted out, the
    responding party has the right of appeal to the dean of students, who
    is also not affiliated with the title IX office. If the complainant
    feels the outcome is unfair, she may also appeal. This policy was
    created by a task force that included students, faculty, and
    administrators meeting over the course of 18 months. ``We feel there
    can be great harm when the process is seen as biased against reporting
    parties,'' says Raimondo, ``and there can be great harm when it is
    perceived to be biased against responding parties.''
        We put our work at risk when the media can dredge up the
    shibboleths about false accusations of rape, a collective ``We told you
    so '' tapping into old attitudes.
        Feminists should be concerned about fair process, even in private
    institutions where the law does not require it, because we should be
    concerned about reliable findings of responsibility. We put our
    decades-long efforts to stop sexual violence at risk when men come
    forward and credibly claim they were wrongly accused. We put our work
    at risk when the media can dredge up the shibboleths about false
    accusations of rape, a collective ``We told you so'' tapping into old
    attitudes. The recent feeding frenzy around Rolling Stone's account of
    a gang rape at the University of Virginia campus shows just how much
    damage can be done by the claim that a rape report was flawed--damage
    to the women making the accusations, to the men who are accused, and to
    the cause of combating sexual violence.
        There is no question that we have to confront sexual misconduct on
    campus and elsewhere as aggressively and comprehensively as we can.
    There is no question that we have to lift the protection offered the
    star athlete, confront the administrators more concerned with the man's
    future than with a woman's trauma, challenge the atmosphere of impunity
    at fraternity houses and social clubs. We can do so without turning
    every disciplinary proceeding into a full-blown trial, without imposing
    the maximum due process protections, on the one hand, or an
    administrative Star Chamber, on the other. It isn't necessary to
    jettison every modicum of a fair process to redress decades-long
    inattention to these issues. It never is. As I argued in Paul's case,
    we should not substitute a regime in which women are treated without
    dignity for one in which those they are accusing are similarly
    demeaned. Indeed, feminists should be concerned about fair process, not
    just because it makes fact-findings more reliable and more credible,
    but for its own sake.
         Prepared Statement of Janet Halley, Royall Professor of Law,
                             Harvard Law School\1\
        Thank you for inviting me to address the important issue of campus
    safety, sexual misconduct on campus, and due process in our
    institutional responses. My experience leads me to stress one
    principle: only a robust and balanced response that guarantees due
    process for both the complainant and the accused can ensure a healthy
    academic environment for all of our students. Only then can we be
    confident all of our youth in college will be safe, protected from
    sexual misconduct and free of institutional over-reaching and simple
    incompetence.
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        \1\ Affiliation provided for identification purposes only.
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        The days when institutions of higher education could use slipshod
    procedures to address complaints of campus sexual misconduct are,
    thankfully, over. The window of opportunity to install just and
    effective processes in their place remains open. Colleges and
    universities nationwide are now installing new disciplinary procedures.
    A few years' experience with their operation provides important
    information on reform work still to do.
        I have assisted both complainants and accused students at Stanford
    University and Harvard University, have written scholarly articles and
    books on the legal regulation of sexual conduct, and have participated
    in the administration of student discipline and sexual harassment
    complaints at Stanford. My experience and study tell me that some
    recent reforms have brought new problems of fairness and due process
    for both complainants and those accused which threaten the
    effectiveness and legitimacy of the important progress we have made.
        Incorrectly believing that they are required to do so by the
    Department of Education Office for Civil Rights, institutions of higher
    education are making all employees, with extremely narrow exceptions,
    into mandatory reporters--people who must convey to the title IX office
    information about alleged sexual misconduct whether or not the
    potential complainant wishes them to do so. This deprives students who
    may be victims of misconduct of their autonomy and exposes them to
    serious harm at the hands of University administrators. It also deters
    students from seeking adult help and advice when they are experiencing
    doubts and distress, and interferes with the faculty's and staff 's
    ability to mentor, counsel and care for our students in an atmosphere
    of trust, particularly when they may need us most.
        The parties are given narrow opportunities to resolve cases through
    mediation, and no such opportunities where the allegations involve
    sexual assault. It is crucial to remember that the definition of
    ``sexual assault'' goes well beyond the inexcusable cases involving
    violence or rape where it is hard to imagine mediation being warranted.
    The bar on mediation also applies to unwanted bodily contact deemed to
    be sexual in nature, and these cases, in my experience, are sometimes
    best resolved by sensitive mediation. Without that pathway, the options
    for those who feel they have experienced sexual misconduct are narrow:
    criminal punishment, student discipline or silence. Complainants often
    express frustration with this narrow array of choices; they object to
    the lack of a non-punitive option. Congress should listen to this, just
    as we in higher education should. Student misconduct policies should
    model the arts of social mediation, negotiation and peacemaking as well
    as providing severe sanctions in the severe cases, where the
    complainant seeks that outcome.
        Indeed, education is what educational institutions are most
    centrally about, and that mission is being forgotten in the rush to
    punish. For example, we must educate ourselves and our students about
    the differences between a ``sexually hostile environment'' and the
    lively exchange, debate, and exploration of ideas that campuses exist
    to foster. Sexual conduct can be verbal, and too many cases charge
    sexual harassment for speech, academic speech, open debate, and even
    first amendment free speech.
        Title IX procedures are being cutoff from normal disciplinary
    processes and are being run by administrators focused exclusively on
    sexual misconduct and compliance with laws addressed solely to that
    very severe problem. While this specialization has some benefits, it
    also runs serious risks. It attenuates awareness of and vigilance
    against race discrimination, including unconscious bias, which is just
    as much a problem in student sexual interactions as it is anywhere else
    in our society. In my experience, the rate of complaints and sanctions
    against male (including transitioning to male) students of color is
    unreasonably high. The process does not pause to make sure that accused
    students with disabilities are offered accommodations they need to
    defend charges against them. Students who lack family money to pay for
    lawyers are at a drastic disadvantage in the process, and, given the
    considerable resources institutions must invest in providing support
    for complainants, this problem cuts strongly against the accused.
    Providing scant due process for these particularly vulnerable groups of
    accused students runs the very real risk that innocent students are
    being held responsible, sanctioned, and given tainted records that will
    haunt them for years.
        Procedures that put accused students at a disadvantage may also
    harm complainants, should they find themselves in a ``he said/she
    said'' of reciprocal complaints. College and university procedures
    often tilt the process unfairly in the following ways:

         The accused has no right to see the complaint. This is
    fundamental to due process no matter how narrowly conceived.
         The accused has no opportunity to argue that, even if
    true, the complaint should be promptly dismissed for failure to allege
    disciplinable misconduct, and administrators are under the incorrect
    impression that they cannot dismiss bad cases without incurring the ire
    of DOE. As a result, those accused are often made to defend cases that
    should have been dismissed early. The resulting process can take months
    and exact severe costs in distress, behavioral restrictions,
    educational impacts, and expenditure. None of this should happen when a
    conclusion of no responsibility is foreordained.
         The entire disciplinary process is administered by title
    IX officers, who advise complainants how to file their complaints,
    receive the complaints, conduct the investigation, hold the hearing if
    any, decide on responsibility, and hear any appeals. A decisionmaker
    designed this way lacks neutrality and independence and is inherently
    biased. Many rightly perceive this process to be unfair: far from
    vindicating our values, this squanders the legitimacy of a vital
    enterprise. Minimal due process requires truly independent and neutral
    decisionmakers, separated by function to provide accountability.
         Many campus processes lack a hearing. The investigator
    interviews the complainant, then separately speaks with the accused
    person and any witnesses, without providing basic information to the
    parties about what he or she is being told. Both parties are completely
    in the dark until the decisionmaker drafts a report tentatively finding
    the facts, at which time their input is limited to objections to a fait
    accompli. This is a terrifying process for both parties and disables
    them from putting their best information forward. It is essentially a
    Star Chamber. Given the seriousness of the stakes for both parties and
    for the vindication of institutional values, it is a shocking
    deprivation of fair process.
         Even when there is a hearing, proper concern for the well-
    being of complainants has led to unfair restraints on the right of the
    accused to probe evidence and ask questions. We call this a ``right to
    confrontation'' in criminal procedure, which makes it sound harsh and
    acrimonious--but it need not be. Procedural fixes allowing for a full
    defense without exposing complainants to harassment and unfair
    questioning are ready at hand and are fundamental to a fair process.
        We have come a long way, but have some further reforms to make
    before we can say that this wave of reform has been a success. Thank
    you for your concern about campus safety and campus sexual misconduct,
    and about the installation of fair and effective procedures to address
    them.
                    Prepared Statement of Joshua C. Strange
        On May 30, 2011 at a party at a friend's house, I was introduced to
    the person who would later become my accuser. We both were students at
    Auburn University. She asked me to spend the night at her condo the
    very first night. Our relationship developed quickly and she and her
    dog began living at my apartment by mid-June. I liked her so much that
    I asked my parents to come to Auburn for a weekend to meet her.
        On the evening of June 29, she and I went to a bar together to
    celebrate a mutual friend's acceptance into law school. By the time we
    left the bar and went back to my apartment, we were both intoxicated. I
    had a female friend/witness that would later offer testimony that when
    my accuser and I got to my apartment, my accuser kept telling my
    witness that she just wanted to have sex with me. After my witness had
    left my apartment that evening, and my accuser and I slept for a
    while--I really have no idea exactly how long--we both woke up and she
    initiated sex. However, during the sex, she suddenly became upset so I
    immediately got up out of bed and asked her what was wrong. I had no
    idea what was wrong but I did not want her to be scared or upset, so I
    told her that I wanted her to have control of the situation. My bedroom
    door in the apartment had a single-key deadbolt on it so that it could
    be locked from the inside and only opened from the outside with a key.
    I told her that I was going to leave the room, lock the door with my
    key and then slide the key (the only key) under the door so that she
    knew that no one could come in unless she allowed it (a fact that she
    confirmed under oath in court).
        After I had left the room and unbeknownst to me, she called an off-
    duty police officer friend who then in turn circumvented the 911 system
    and called the police for her. I was standing in the kitchen of my
    apartment when the police arrived and barged into my apartment
    unannounced. They approached me, instructed me to get on the floor
    (which, obviously, I complied) and handcuffed me. I had no idea what
    was going on but I cooperated. One or two of the officers went back to
    my bedroom and she unlocked and opened the door. They talked to her.
    They talked to me. I was put in the back of a squad car and taken down
    to the Municipal Building. I was asked questions and I gave a
    statement. I was terrified. They took my picture. They took my accuser
    to the hospital for a rape kit. After what seemed like forever the
    officers got a call from the hospital, they took me back to my
    apartment, they said that her statement and my statement of events
    matched each other and that I was free to go, and they left me. I sat
    down on my couch in absolute disbelief at what had happened. I was
    terrified. I did not know what to do so I just sat there in the dark.
        The police came back to my apartment with my accuser around 4:30
    a.m. and asked me to step outside while she gathered her things and her
    dog. They then took her to her apartment and left her there. A short
    time later (around 5:15 in the morning) my phone began to ring and it
    was my accuser calling me. She wanted to come over to talk and I sure
    wanted to know what happened, so I agreed. She asked if the police were
    still there. I walked outside and saw that they were still in the
    parking lot outside my apartment so she said was going to park in
    another parking lot so that ``the officer doesn't see me going up there
    again.'' She and her dog came back to my apartment and we talked. She
    and I both apologized for what had occurred and she told me that she
    saw it as nothing more than a misunderstanding between the two of us. I
    agreed--although I still was not sure what had happened--and she went
    back to my bedroom, got in my bed and went to sleep. She asked me to
    join her because she said I ``looked exhausted''. I said that I did not
    want to go to bed so I sat on my couch. I still needed to wrap my head
    around the events of the evening.
        In early August, we decided to take a break from dating. She was
    getting ready to go through sorority rush. This, coupled with her
    continued close relationship with an ex-boyfriend, led us to break up
    for the time being. We kept in regular contact and it seemed like we
    would probably get back together. The night before classes started
    (August 17, 2011) I awoke to a phone call around 1:30 a.m. It was she.
    She wanted to come over. I had an 8 a.m. class, but I agreed. She came
    over and we had sex. The next morning we parted ways but continued to
    speak through texting. It was not until August 28 that we decided to
    talk about the potential for us rekindling the dating relationship. She
    wanted to ``get back together'' but I had a stipulation. I was not
    comfortable with her extremely close relationship with her ex-
    boyfriend. When I voiced my concern, she became extremely angry. I told
    her, ``Since you will not back away from the relationship you have with
    him, you and I are done.'' This was not what she wanted to hear and she
    stormed away.
        After our conversation, I deleted her phone number from my phone
    and she and I were no longer friends on Facebook. It appeared to me
    that we were done. We had no contact at all from August 28 until
    September 4, 2011. That evening of September 4 (the Sunday of Labor Day
    weekend) I was walking to the bar with a couple of friends and my phone
    began to ring. I looked at the number and although it was no longer
    saved in my phone, I recognized it immediately. It was my accuser. I
    answered to her frantic voice asking where I was. I told her where I
    was and she said, ``So, you're not at your apartment?'' I told her no
    and asked if something was wrong. She said everything was fine and that
    she wanted me to meet her to talk about the possibility of ``us''. I
    could tell something was up but I told her that I was not going to meet
    her that evening. Just before I hung up I told her I would call or text
    the next day--Labor Day--if she wanted to talk. I did send her a text
    that Monday but she never responded to it.
        The day after I sent that text to her (Tuesday, September 6, 2011),
    I went to Wal-Mart with a female friend/neighbor of mine because I
    needed groceries. While in the check out line, my phone began to ring.
    It was one of my roommates telling me that police officers were at my
    apartment and wanted to speak with me. I had no idea what they wanted
    but I checked out quickly and rushed home. When I pulled up to my
    building the police were waiting for me at my parking spot.
        At that point I was arrested, booked and photographed but no one
    would tell me the charge. My best friend, Tim (the one who had
    introduced me to my accuser) called my parents to tell them I had been
    arrested. They arranged for my bail. They told me to deactivate my
    Facebook page and my Twitter account, to stay off my phone and not to
    talk to anyone, including my roommates, about what had happened until
    they got to Auburn the next morning.
        It was not until 2 days later, on September 8, that I finally
    learned the charge. She claimed it was assault and battery--CDV III.
    She said that I had approached her in a parking lot and hit her in the
    face on September 4, the night that I was walking with friends when she
    called on my phone. There is no way I had done this. I had not seen her
    in days and I was nowhere near where she had claimed the battery
    occurred. I could prove it.
        My parents and I met with a lawyer on September 8, 2011. I told my
    parents and my lawyer everything from June 29 all the way to the events
    of that day--not a conversation you EVER want to have, especially with
    your parents.
        My world was crumbling and I had no way to control it. Within a
    short period, I found out that she had filed a charge against me with
    the University for beating her up and using that claim, the school
    allowed her to go outside of the 15-day complaint period to file a rape
    charge against me, too. Then I was told that I was going to be
    presented to a Grand Jury on the sex assault charge and that there was
    a hearing set in criminal court for the battery charge, and the
    university began to pursue disciplinary charges against me for crimes
    that I had not committed. Many of my friends ceased to speak with me.
    My fraternity kicked me out. My accuser had gone to several different
    groups on campus claiming that I had raped her, beaten her up . . . she
    even told some people that I had raped other students and that I had
    tried to poison her dog while she was living with me over the summer. I
    have statements from some of these individuals affirming that she made
    these defamatory statements. I could not talk to anyone in order to
    defend myself. I had to try to make sure that I was not going to prison
    for something I did not do and that, according to my attorney, meant
    silence.
        On September 27, there was hearing on a Protection from Abuse
    complaint that my accuser had filed on September 9 and during the
    hearing, she testified that I had hit her so hard, I had done permanent
    damage. She showed up being escorted by Susan McAllister, the Assistant
    Director of Public Safety for Auburn University. (Funny, no one from
    the school offered to be there to support me.) My parents, my sister
    and my brother-in-law were there for me. Her family was nowhere to be
    seen which the judge found odd and even asked her about it. When she
    took the stand, it was clear that the bruise was on the wrong side of
    her face for my right-hand dominance. She had no medical records to
    show that she had sought any medical treatment. She had waited 2 days
    to even go to the police to file a complaint about the purported
    battery. She had attended the AU/Miss State football game on September
    10, 2011 with another guy and had posted pictures on Facebook of her at
    the game--no bruising on her face to be seen. She said that there were
    witnesses to the battery but she did not want to give up their names.
    The judge issued the PFA--they are easy to get--but it was a mutual
    PFA.
        On October 17, 2011, I got an email from Kelley Taylor, the Auburn
    University then-and-current title IX coordinator, wanting to schedule a
    meeting with me. She refused, however, to ``deal'' with my attorney so
    my attorney advised me not to meet with her since anything that I said
    to her could be subpoenaed for criminal court.
        The university scheduled Student Disciplinary Hearings on both of
    the charges but only one of them came to fruition. The first hearing
    was set for November 8 and was to be on the sex assault, even though
    she had filed that complaint second to the battery complaint. The
    school said that it had to hear the sex assault complaint first because
    it was more serious, but I question that since there was merely 1 week
    between to two scheduled hearing dates. The second hearing on the
    battery was set for November 15, 2011.
        In mid-October, about 3 weeks before the first hearing, the school
    informed me they were lowering the standard of evidence in the sex
    assault to preponderance.
        Prior to that time, everything they had given me about the hearing
    had indicated that it would be clear and convincing. My mother is a
    paralegal and she immediately knew that this was not going to go well.
    How could a battery be ``clear and convincing'' and a rape be
    ``preponderance''?
        In the meantime, walking around campus had taken a terrible turn.
    It is hard to put the feeling into words. As stated earlier, my accuser
    had gone to anyone who would listen on campus and spread the lies about
    me. People were staring at me while I walked to and from class and I
    could hear them talking about me in the line at Chik-fil-A in the
    student center and on the campus bus transits. I could hear comments
    like ``That is Josh Strange. He raped and then beat a girl up.'' I
    heard people whisper and call me a ``monster''. It was the worst
    feeling in the world. I wanted to say something, but I knew I could
    not. There was nothing I could do and it only exacerbated my despair. I
    was all alone. Yes, I had my family and my closest friends who stuck by
    my side, but I was really all alone. What was worse, my school did not
    attempt to reach out to me at all. . . . I had no one.
        I submitted all of my witness information and evidence, as I was
    supposed to do, the Friday before the Tuesday, November 8 sex assault
    hearing. We were supposed to do that so that each of us could view the
    other's information before the hearing. She did not submit hers because
    she claimed she had to be out-of-town due to her brother's injury in a
    very serious accident. (We have information that in fact her brother
    rode in a rodeo that very next weekend so he could not have been
    seriously injured in an accident the weekend before the hearing.)
    Regardless, I did not get to review her ``evidence''.
        The morning of November 8, 2011, I entered the ``hearing'' room and
    saw a black sheet hung across the middle of the room so that my accuser
    and I could not see each other. The minute I entered, a feeling of doom
    came over me. I somehow knew at that moment that my time at Auburn was
    over. For the hearing, I was allowed to have one person in the room
    with me but that person could not speak. She could have a ``silent''
    advisor, too. We could present witnesses and evidence but we could not
    ask each other direct questions nor could we question the witnesses
    directly. My attorney had asked that her ``other'' boyfriend be
    compelled to attend the hearing as we felt that he had pertinent
    information about the night of June 29 since he was also at the bar and
    was, we believe, buying her drinks. However, Dr. Brandon Frye, Dean of
    Students at the time, said that he was not able to compel students to
    attend a hearing.
        My accuser's advisor, much to my dismay, was the prosecutor for the
    city of Auburn that was going to try me in criminal court. As soon as
    my attorney saw him, I was told not to testify in my own defense since
    my attorney could not actively assist me during the hearing. Again,
    anything said in that room could be subpoenaed and held against me in
    criminal court, I would have been testifying in front of the criminal
    court prosecutor, and because my attorney could not speak or object to
    anything said during the hearing, he did not want me to say anything at
    all.
        The hearing began. She presented her case and her ``witnesses''--
    the title IX coordinator and the assistant director of Public Safety
    for the school--neither of who had witnessed anything and even admitted
    that they had not asked her any details about the ``rape'' incident.
    She testified that she had to be tutored/home schooled because I was
    such a threat--I have downloaded her FaceBook information that shows
    her at sorority rush, at fraternity parties, at football games, hanging
    out with her other boyfriend, and at various places on campus during
    this time, which directly contradicts her allegations that I was a
    threat to her and she was afraid of me.
        I then presented my witnesses: Tim, who told about our obvious
    ongoing relationship post-June 29; my sister and her husband who each
    testified about the relationship during the weekend that they spent
    with us in mid-July; and my female friend that had helped us on June 29
    when my accuser had repeated several times that she wanted to have sex
    with me that night.
        After the deliberations, the university hearing panel found me
    ``guilty'' and recommended expulsion. Although I could not see her on
    the other side of the black curtain, I heard a slight laugh come from
    her direction. It felt like being punched in the gut. I walked out of
    the room to see my parents. I had to tell them but the words would not
    come out. My knees buckled. I heard my lawyer tell my mom. She looked
    as though she was going to be ill. I will never forget seeing how much
    this had hurt my parents.
        After she got the result she wanted in the sex assault matter, my
    accuser dropped the battery complaint with Auburn so we never had the
    student hearing set for November 15. The school did not inform us that
    she had withdrawn the complaint until the evening before the hearing so
    my parents had already driven all the way back to Auburn for the second
    time in a week when we found out she had withdrawn it. No matter to the
    school or to her since her parents--her parents had not attended
    anything except football tailgate parties so far that semester. They
    certainly never showed up for the school or for the court hearings.
        The wait for the decision by the VP of Student Affairs then began.
    It was an agonizing 3 weeks before Dr. Ainsley Carry rubber-stamped the
    expulsion. Again, another kick in the gut. I thought surely he would
    listen to the hearing recording and know that her testimony was false--
    the school should know that she wasn't being home-schooled, right? Or
    perhaps ask me or my witnesses questions--something, anything. He
    didn't. To this day, I don't think he ever even knew exactly who I was.
        From the date of Dr. Carry's decision, we had 5 calendar days to
    enter an appeal of the expulsion to the president of Auburn University,
    which we did within the time limit given by the university. We filed it
    at the beginning of December. She, in turn, was to have 5 days to
    respond to my appeal. She finally sent her response in on January 18,
    2012, more than a month later. I assumed that Dr. Jay Gouge would not
    accept her response. Wrong again.
        Keep in mind that while all of this was going on, I was still
    facing criminal charges from the city of Auburn (battery) and potential
    Grand Jury presentation in the State of Alabama (rape). I was in a
    constant feeling of despair and fear, depression. I was always looking
    over my shoulder and putting my head down, hoping that people wouldn't
    notice me and say something. It was a terrible feeling. Even more
    crushing was that I knew my parents were feeling the same way. They
    would call to make sure I was all right, sometimes multiple times a
    day. I knew they were worried for me and about me. It was defeating.
        Finally, after all of this waiting--this pain and anguish that I
    had been experiencing--a small ray of sunshine broke through the
    clouds. I was ``no-billed'' by a Grand Jury on the sexual assault
    charge stemming from the June 29 incident. Surely, if the Grand Jury
    found not even probable cause then the president of Auburn should see
    that there was no preponderance of evidence, since that is a higher
    standard. I was happy that I had finally been cleared and that others
    realized I had not committed a crime.
        That happiness and relief was short-lived. Five days after the
    Grand Jury ``no-billed'' my case, I was called into the Office of
    Student Conduct. The president of the University had finally made a
    decision on my case: it was February 8, 2012. I sat down across from
    the Dean of Student Affairs, Dr. Brandon Frye, and he began to explain.
    His almost smug demeanor and his words will live with me forever:

              ``Some days my job is very good because I get to tell
            students that their troubles are over and they get to stay in
            school. Some days my job is one of the worst because I have to
            tell students that they have been expelled from school and
            cannot return. Unfortunately, this is one of those days. I am
            sorry to say you have been officially expelled from Auburn
            University on the grounds of violating the Code of Student
            Conduct.''

        That was it. I was officially expelled. I was never allowed to
    return to university grounds unless I wished to face charges of
    criminal trespassing. I texted my mom, ``I am gone. Expelled. It is
    over.'' I knew she would be devastated, too. I was at the bottom of the
    pit.
        I had previously thought that I couldn't possibly feel any worse
    than I did the day they recommended expulsion. Oh, how I was wrong. I
    spiraled into a deep depression. I was rejected and shamed. I had spent
    so much time and money with the university and I had absolutely nothing
    to show for it except failure. I felt more alone than ever. I remember
    going home and just sitting on the couch alone and thinking ``What in
    the hell do I do now? What just happened? Why is this happening to
    me?'' I could barely breathe. It hurt so much I could not even cry. I
    guess it was shock.
        We asked for a refund of my tuition for Spring 2012, since it was
    just the beginning of the semester. They refused. I had to remain in
    Auburn from February 8 until the assault hearing 3\1/2\ months later
    because I had to report to a bail bondsman once a week--something I had
    been required to do every single Tuesday at noon for 8 long months. The
    refunded tuition money would have helped me support myself. To add
    insult to injury, when grades came out for Spring 2012, they had not
    withdrawn me and had instead let me fail. They even sent a letter
    saying that according to my professors, I had ``stopped attending
    classes'' and as such, they had returned my student loan money to the
    Federal student loan program and they were going to invoice me for the
    money that I now owed them. I still have that letter.
        Time dragged until it was time for the hearing on May 24, 2012. My
    parents yet again drove the 4 hours to Auburn and paid for a hotel room
    and paid attorney fees for the hearing. My accuser did not show up--
    purportedly because, as she told the court, she had to work at her
    waitressing job. We subpoenaed copies of her work records for that
    day--she had the day off. Her failure to show up for the hearing
    resulted in a dismissal of the case against me. I was glad it was over
    but I was very disappointed that not only did I not get to prove in
    court that she had lied about the entire incident but I had also asked
    my witnesses to drive in from out-of-town for the hearing which turned
    out to be a waste of their time.
        I left Auburn and moved home to South Carolina shortly after May
    24, 2011, still in a relatively deep depression. I constantly felt
    doomed. I began drinking a lot. I spent weeks in my room with the
    drapes drawn. I still had no FaceBook page, no social media at all, no
    social life at all. My parents finally convinced me that I needed to
    try to get into another school--to get a life and find a future. The
    Dean of Students at Auburn had told me that my transcript would be
    stamped ``Expelled'' so I was terrified to try to apply anywhere else.
    I did not want to have to explain it, to have to talk about it. I just
    wanted to hide.
        My mother finally convinced me that I needed to find a way out of
    the despair. She talked me into applying to The University of South
    Carolina-UpState. I was accepted, much to our shock and surprise. My
    transcript from Auburn actually showed me as a ``Student in Good
    Standing.''. Auburn had also changed my ``Fs'' to ``W'' since we
    contacted their outside counsel and pointed out the error of their ways
    in not withdrawing me.
        Unfortunately, because I have spoken to the media, and although her
    name has never appeared in print, Auburn University dragged their feet
    in letting me see my records that I had requested under FERPA because
    they claim that I have divulged her identity to the media. She ran all
    over campus telling anyone she could find all of her claims about me,
    never attempting to hide her identity but I am not allowed to talk
    about my story, according to Auburn University. I was finally allowed
    to view my records this past February--we were required to drive 5\1/2\
    hours to Montgomery, AL to see them--but Auburn has still refused to
    allow me to have a copy of them. In reviewing them, however, I now know
    that all of these false police reports, the lie about the battery
    charge, it is all in there. We have asked Auburn's counsel what we can
    do to get my side of the story into my file, since the hearing on the
    battery never took place and therefore my information has been left
    out. They have refused to let us submit anything in my defense.
    According to them, the case is ``closed'' and nothing can be added or
    removed. Any grad school, any security clearance that I may need to
    further my professional career can be derailed by what is in that file.
    It is a never ending story.
        My life will never be the same. My dreams have changed. My hopes
    have changed. Friendships have been lost. To this day, I am afraid to
    date. My parents have had to struggle to pay legal bills. My mom still
    cries at times. It does not have to be this way. It should not be this
    way.
                                     ______

                 American Federation of Teachers (AFT),
                                          Washington, DC 20001,
                                                         July 29, 2015.
    Hon.  Lamar Alexander, Chairman,
    Hon.  Patty Murray, Ranking Member,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate,
    Washington, DC 20510.

        Dear Chairman Alexander and Ranking Member Murray: On behalf of the
    more than 1.6 million members of the American Federation of Teachers, I
    would like to thank you for holding today's hearing on combating campus
    sexual assault as part of the Higher Education Act reauthorization. It
    is an important step in the effort to end rape and sexual assault on
    our college campuses.
        The incidence of these crimes is both numbing and staggering.
    According to the U.S. Department of Education, more than 5,000 forcible
    sex offenses were reported on college campuses in 2013. Additional data
    tells us that 90 percent of campus rapes are committed by repeat
    offenders and that 73 percent of lesbian, gay, bisexual and transgender
    students reported experiencing sexual harassment. A recent study
    explains that the actual number of offenses on campus is estimated to
    be at least six times higher than the reported number. Sadly, only a
    tiny fraction of the victims will file a report, in part because our
    culture tells them that they are to blame--the same culture that kept
    me from speaking out about my own sexual assault for nearly 30 years.
        We all have our own stories to share, and we all must be part of
    the solution. Here's my part: I represent hundreds of thousands of
    workers at colleges and universities who can help effect change on
    campus. I can do something; our union members can do something--and we
    are. So can Congress.
        Senators Claire McCaskill and Kirsten Gillibrand have introduced
    legislation--S. 590, the Campus Accountability and Safety Act--to
    protect students and hold institutions accountable. They are joined by
    a bipartisan group of 31 Senators who also support this bill. The bill
    would:

         Provide new support services for student survivors on
    campus;
         Allow students, parents and the community to have an
    accurate account of sexual assaults on campus by mandating new
    transparency requirements;
         Require colleges and universities to provide information
    on how they are addressing sexual assaults on campus as well as to
    train their staff to reduce the incidence of these assaults; and
         Require that a uniform student disciplinary process be put
    in place with the coordination of law enforcement.

        Ending the plague of sexual assault on campus is going to take many
    partners--students, administrators, faculty, staff, unions, advocacy
    groups and law enforcement. It will take putting sound policies in
    place on campus and implementing these policies faithfully. Legislation
    like the bill proposed by Senators McCaskill and Gillibrand will ensure
    that colleges and universities are held accountable in these areas.
    Accordingly, the AFT urges you to include the Campus Accountability and
    Safety Act into the HEA reauthorization bill.
        I look forward to working with you to move our country ahead on
    this issue and on the overall HEA reauthorization.
        Thank you,
                                              Randi Weingarten,
                                                             President.

         Foundation for Individual Rights in Education
                                                (FIRE),
                                        Philadelphia, PA 19106,
                                                         July 28, 2015.
    Hon. Lamar Alexander, Chairman,
    Committee on Health, Education, Labor, and Pensions
    428 Dirksen Senate Office Building,
    Washington, DC 20510.

    Hon. Patty Murray, Ranking Member,
    Committee on Health, Education, Labor, and Pensions
    428 Dirksen Senate Office Building,
    Washington, DC 20510.

        Re: Sexual Assault on College Campuses

        Dear Chairman Alexander and Ranking Member Murray: As you know, the
    Foundation for Individual Rights in Education (FIRE; thefire.org) is a
    nonpartisan, nonprofit organization dedicated to defending student and
    faculty rights on America's college and university campuses. These
    rights include freedom of speech, freedom of assembly, legal equality,
    due process, religious liberty, and sanctity of conscience--the
    essential qualities of individual liberty and dignity.
        Last summer we wrote to you to provide our input regarding the
    adjudication of allegations of sexual assault on university campuses.
    See Exhibit A, attached. Today, we write to provide our analysis of S.
    590, the Campus Accountability and Safety Act (CASA).
        As a general matter, FIRE has serious misgivings about the ability
    of colleges and universities to adjudicate allegations of serious
    felonies like campus sexual assaults.
        Campus disciplinary boards lack the ability to collect, hold, and
    interpret forensic evidence. They lack the ability to subpoena
    witnesses or put those that appear voluntarily under oath. The parties
    typically lack the representation of experienced, qualified legal
    counsel, and they do not have the right to discovery. These proceedings
    are not governed by rules of evidence and often disregard the right to
    confront adverse witnesses. Ultimately, the fact-finder--often a single
    investigator--decides whether there was a sexual assault under the low
    ``preponderance of the evidence'' standard, which merely asks the fact-
    finder to decide if one side was even the tiniest bit more persuasive
    than the other. Expecting these tribunals to reach consistently
    reliable findings under these limitations is unrealistic.
        The current approach is unacceptable. In addition to the
    incompetence that permeates this field, college administrators often
    have real or perceived interests in the outcomes of these cases,
    further undermining the reliability of the process. It should go
    without saying that sweeping accusations under the rug is illegal and
    immoral, but so is punishing accused students when there is
    insufficient evidence--and there is overwhelming evidence that both
    situations are occurring with alarming frequency. Legislation may not
    be able to bridge the vast competency gap between the adjudicatory
    capabilities of educational institutions and actual courts coordinating
    with law enforcement, but it can help reduce bias, provide ample
    resources for education and prevention efforts, and provide all the
    affected parties with meaningful procedural rights that will help them
    protect their own interests.
        Under CASA, college communities would continue to rely on campus
    judiciaries to reach factual determinations and punish those deemed
    responsible for committing these heinous crimes. While the bill will
    not alleviate the risk of unjust findings caused by assigning amateurs
    the responsibility of adjudicating these important cases, it does offer
    some improvements over the status quo. It contains provisions FIRE
    supports; specifically, the requirement that institutions enter into
    agreements with local law enforcement agencies, and the important
    provision that prohibits institutions from adjudicating cases against
    student athletes in special proceedings. Other provisions, however,
    require amendment.
                                neutral language
        First, CASA treats the problem of addressing sexual assault on
    campus like a one-sided issue of supporting victims, instead of
    attempting to protect the rights of both complainants and the accused.
    Indeed, the bill presumes the guilt of all accused students, referring
    to accusers as ``victims'' throughout the legislation, even when
    referring to them in the pre-adjudication context. Failure to use
    neutral language that refers to accusers as ``complainants'' prior to
    adjudications signals to institutions that Congress does not truly
    value impartiality in these proceedings.
                   unequal assignment of university resources
        The bill also injects inequality into sexual assault proceedings by
    providing substantial resources--for example, a ``confidential
    advisor''--to complainants without providing similar resources to the
    accused. This imbalance is potentially at odds with regulations
    implementing the reauthorization of the Violence Against Women Act
    (VAWA), which require colleges to provide ``the accuser and the accused
    with the same opportunities to have others present during any
    institutional disciplinary proceeding, including the opportunity to be
    accompanied to any related meeting or proceeding by the advisor of
    their choice.'' Additionally, the Department of Education's Office for
    Civil Rights (OCR) has interpreted title IX's implementing regulations
    to require that colleges allowing advisors to participate ``at any
    stage of the proceedings . . . must do so equally for both parties.''
    As OCR observes, ``[a] balanced and fair process that provides the same
    opportunities to both parties will lead to sound and supportable
    decisions.'' FIRE supports CASA's determination to provide resources to
    help complainants navigate the system, but we urge Congress to provide
    similar resources to the accused.
                   trauma-informed training for fact-finders
        Adding to the imbalance, the bill mandates that university
    employees responsible for ``resolving complaints of reported sex
    offenses or sexual misconduct policy violations'' must receive training
    on ``the effects of trauma, including the neurobiology of trauma.''
    Trauma-informed training asserts that inconsistencies in a witnesses'
    testimony is likely the result of trauma as opposed to being
    inaccurate. While trauma-informed training may be appropriate for first
    responders and those conducting initial interviews, providing that
    training to campus adjudicators potentially undermines the impartiality
    of the process. Certainly inaccuracies in a witness's testimony do not
    increase the reliability of his or her account. The bill should be
    amended to make clear that such training is not to be provided to fact-
    finders, who are supposed to be impartial.
                               penalty provision
        Another problematic aspect of the bill is its penalty provision,
    which allows colleges to be fined 1 percent of their operating budgets
    per violation. While we presume this provision was intended to provide
    a more realistically enforceable penalty than the current penalty
    structure under title IX--which subjects institutions to a loss of all
    Federal funding--this provision potentially increases penalties.
    Federal dollars are only one source of funding for institutions. For
    example, if the Department of Education finds more than 15 violations
    at an institution that receives 15 percent of its operating budget via
    Federal funds, the potential penalty will be greater than it is under
    the current system. Indeed, OCR claimed to have found over 40 unique
    violations at the University of Montana in 2013. The penalty provision
    must be capped, otherwise the status quo, in which institutions are too
    terrified to ever contest OCR's rulings for fear of incurring a
    devastating penalty, will be exacerbated.
                     mandatory reporting to law enforcement
        Despite growing consensus across the country that cutting law
    enforcement out of the loop is dangerous for all involved, including
    future victims, CASA states that the ``victim's wishes'' will determine
    whether an institution must cooperate with local law enforcement ``with
    respect to any alleged criminal offenses involving students or
    employees.'' Students who have committed violence or pose a serious
    threat of committing violence should immediately be reported to law
    enforcement. With limited exceptions, college administrators who
    witness or receive credible allegations of sexual assault or other
    violent criminal activity should be required to report such allegations
    to law enforcement.
        Mandatory reporting by college officials would ensure that law
    enforcement is never left in the dark about a potentially dangerous
    situation. Even with mandatory reporting, victims would still decide
    whether they wished to cooperate with a potential police investigation.
    Even if mandatory reporting deters some victims from reporting,
    Congress should not forget that universities cannot take dangerous
    perpetrators off the streets--only law enforcement can do that. A
    provision requiring administrators to promptly report known allegations
    of sexual assault ensures more timely law enforcement responses, and it
    greatly increases the chances perpetrators will be held appropriately
    accountable. A mandatory reporting provision should be added to CASA.
                           proposed additions to casa
        As remarkable as CASA is for what it includes, it is also worth
    noting what it lacks. The bill mentions due process only in passing,
    and it fails to provide meaningful procedural protections beyond those
    already codified in existing legislation. While it provides both
    students with notice of the charges and sufficient time to
    ``meaningfully exercise the due process rights afforded to them under
    institutional policy,'' this language provides no relief whatsoever to
    the students on campuses where institutional policies are inadequate or
    even biased on their face.
        This deficiency can easily be cured by including provisions that
    offer students tangible procedural protections. For example, Congress
    should insert a provision into CASA that grants both complainants and
    accused students the right to hire lawyers who could actively
    participate in the hearings on their behalf. It should also be amended
    to require institutions to notify students of their rights at the onset
    of an investigation and provide students the right to remain silent,
    without allowing the fact-finder to draw an adverse inference.
        Institutions should be required to allow the parties to
    appropriately confront adverse witnesses, including the complainant.
    Congress should also require campus investigators to turn exculpatory
    evidence it discovers over to the accused. Adding these protections is
    the minimum that must be done to ensure that accused students are given
    fair hearings.
        FIRE is pleased that the Senate Committee on Health, Education,
    Labor, and Pensions is considering legislation on campus sexual
    assault. Before legislation is advanced, FIRE hopes the committee will
    insist that it takes a balanced approach that meets the needs of all
    affected parties. We hope that the committee will consider making the
    changes to CASA that FIRE recommends, so that we can support its
    passage. Thank you for the opportunity to provide our input. We look
    forward to assisting the committee as it proceeds with this important
    task. Please do not hesitate to call on us if we can be of any
    assistance.
                Respectfully submitted,
                                                   Joseph Cohn,
                                       Legislative and Policy Director.
                                     ______

                             ATTACHMENT--EXHIBIT A
         Foundation for Individual Rights in Education
                                                (FIRE),
                                        Philadelphia, PA 19106,
                                                         June 26, 2014.
    Hon. Tom Harkin, Chairman,
    Committee on Health, Education, Labor, and Pensions
    428 Dirksen Senate Office Building,
    Washington, DC 20510.

    Hon. Lamar Alexander, Ranking Member,
    Committee on Health, Education, Labor, and Pensions
    428 Dirksen Senate Office Building,
    Washington, DC 20510.

        Re: Sexual Assault on College Campuses

        Dear Chairman Harkin and Ranking Member Alexander: The Foundation
    for Individual Rights in Education (FIRE; thefire.org) is a
    nonpartisan, nonprofit organization dedicated to defending student and
    faculty rights on America's college and university campuses. These
    rights include freedom of speech, freedom of assembly, legal equality,
    due process, religious liberty, and sanctity of conscience--the
    essential qualities of individual liberty and dignity. Every day, FIRE
    receives requests for assistance from students and professors who have
    found themselves victims of administrative censorship or unjust
    punishments.
        We write you to provide our input regarding the adjudication of
    allegations of sexual assault on university campuses. We thank you for
    dedicating the time to address this critical issue.
        As we explained in our Comment to the White House Task Force to
    Protect Students From Sexual Assault (``Task Force''), due process
    rights are one of FIRE's core concerns. While there is no doubt that
    institutions of higher education are both legally and morally obligated
    to effectively respond to known instances of sexual assault, public
    institutions are also required by the Constitution to provide
    meaningful due process to the accused. Goss v. Lopez, 419 U.S. 565, 584
    (1975); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th
    Cir. 1961). FIRE has long maintained that these two responsibilities
    need not be in tension.
        As I am sure each of the members of the Senate HELP Committee would
    agree, access to higher education is critical--especially in today's
    economy, where a college degree is so often a requirement for career
    advancement. Given the high stakes for both the accusers and the
    accused in campus sexual assault disciplinary hearings, it should be
    beyond question that neither student's educational opportunities should
    be cut short unjustly. Just as it is morally wrong and unlawful for a
    college to sweep allegations of sexual assault under the carpet, it is
    also inexcusable both ethically and legally to expel an accused student
    after a hearing that provides inadequate procedural safeguards. As
    recent news reports have demonstrated all too well, both of these
    regrettable outcomes occur at campuses across the country with alarming
    frequency. To date, however, the political focus on addressing sexual
    assault on campus has been disappointingly one-sided, focusing almost
    exclusively on the rights of complainants while paying insufficient
    attention to the rights of the accused.
        This lopsided focus has already had negative consequences for the
    rights of accused students in sexual assault adjudications conducted in
    recent years. As the partners of the National Center for Higher
    Education Risk Management (NCHERM) recently stated in an open letter:

              ``We hate even more that in a lot of these cases, the campus
            is holding the male accountable in spite of the evidence--or
            the lack thereof--because they think they are supposed to, and
            that doing so is what [the Department of Education's Office for
            Civil Rights] wants.''

        NCHERM's statement was remarkable not only because of the
    organization's extensive client list--it currently provides legal
    services to over 50 colleges and universities--but also because Brett
    Sokolow, NCHERM's founder, president, and chief executive officer, has
    been an outspoken proponent of Federal involvement in campus sexual
    assault adjudication, describing himself as an ``activist'' for
    victims' rights. In other words, OCR's mandates have had such a
    negative effect on campus justice that even outspoken proponents of
    those mandates are voicing serious concern. While tackling the obvious
    failings of the current system is useful and necessary, exchanging an
    institutional disregard for accusers for an institutional disregard for
    the accused is not an acceptable outcome and does not advance justice.
    FIRE is hopeful that the Senate HELP Committee will tackle this
    important issue from a more balanced perspective that addresses the
    needs of all students.
        Thus far, a great deal of the discussion about how to best address
    sexual assaults on college campuses has accepted the premise that
    university administrators are qualified to serve as fact-finders and
    adjudicators. If there is one thing that all sides of this issue agree
    on, it is this: Few if any schools have demonstrated the competence
    necessary to capably respond to the problem of sexual assault on
    campus. Too many campus administrators inject their biases into the
    process, while the rest, despite often trying their best, simply lack
    the necessary expertise. This is the reality of the current system, and
    it is very difficult to imagine legislative remedies to the basic
    problems presented by entrusting the adjudication of allegations of
    serious criminal misconduct to a campus judicial system that often has
    a conflict of interest and, perhaps more importantly, was not intended
    to handle such serious responsibility. The current arrangement benefits
    no one, and it's readily apparent failures should lead us all to
    question the wisdom of doubling down on this broken system.
        FIRE is not alone in our assessment that campus judiciaries are
    ill-equipped to adjudicate sexual assault cases. Carol Tracy, the
    executive director of the Women's Law Project, has echoed FIRE's
    concerns, stating, ``My grave concern is the capacity, the competence,
    and the appropriateness of colleges dealing with rape outside the
    criminal justice system.''

        This concern was expressed yet more forcefully by the Rape, Abuse
    and Incest National Network (RAINN) in its comment submitted to the
    White House Task Force:

              It would never occur to anyone to leave the adjudication of a
            murder in the hands of a school's internal judicial process.
            Why, then, is it not only common, but expected, for them to do
            so when it comes to sexual assault? We need to get to a point
            where it seems just as inappropriate to treat rape so lightly.
              While we respect the seriousness with which many schools
            treat such internal processes, and the good intentions and good
            faith of many who devote their time to participating in such
            processes, the simple fact is that these internal boards were
            designed to adjudicate charges like plagiarism, not violent
            felonies. The crime of rape just does not fit the capabilities
            of such boards. They often offer the worst of both worlds: they
            lack protections for the accused while often tormenting
            victims.

        Training requirements for the campus administrators (and sometimes
    even students and faculty) handling these cases are unlikely to
    sufficiently fix the core disjunction between the competencies of
    institutions of higher education and the grave responsibilities
    inherent in the adjudication of sexual assault allegations. As the
    NCHERM partners observed:

              ``[T]he public and the media need to understand that campus
            [sexual assault] complaints are not as clear-cut as the
            survivors at [victims' advocacy group] Know Your IX would have
            everyone believe.''

        Sexual assault allegations are often nuanced and complex, which is
    one of the reasons why they present challenges to even the trained
    professionals employed by our criminal justice system. Instead of
    creating a parallel justice system staffed by inexperienced, partial,
    and unqualified campus administrators to adjudicate campus sexual
    assault, policymakers should instead take this opportunity to improve
    and expand the effectiveness and efficiency of our criminal justice
    system to ensure that it provides an appropriately thorough, prompt,
    and fair response to allegations of campus sexual assault. Professional
    law enforcement and courts have the benefit of years of expertise,
    forensics, and legal tools like subpoenas and sworn testimony that
    aren't available to campus adjudicators. These resources should be
    brought to bear on campus.
        While ill-suited to determine guilt or innocence in sexual assault
    cases, colleges still have both a moral and legal obligation to ensure
    that campuses are free from discriminatory harassment and sexual
    assault. To that end, they may still meet this responsibility by
    providing a vast range of intermediary remedies and responses to
    student complainants. Colleges should be advising students about where
    to turn to ensure that evidence is preserved. They should help
    complainants report accusations properly to law enforcement. They can
    provide training to first responders to make sure that the initial
    interviews don't chill future complainants from coming forward, and to
    ensure that information gathered during these crucial interviews are
    helpful to fact-finders down the road. Colleges can provide counseling
    services. They can separate students by changing course schedules and
    dorm assignments. As FIRE told the White House Task Force,

              ``All of these options, and many more, help ensure that the
            campus remains a safe place for all students to learn without
            leaving ultimate decisions of guilt or innocence to campus
            tribunals, which have proven to be inadequate, ill-prepared
            forums for adjudicating these cases.''

        FIRE's misgivings aside, if institutions are to continue
    adjudicating guilt or innocence in sexual assault cases, they must do
    so in a fair and impartial manner that is reasonably calculated to
    reach the truth. This should be self-evident. Indeed, in the Department
    of Education's Office for Civil Rights' (OCR) April 4, 2011, ``Dear
    Colleague'' letter, the agency acknowledged that ``a school's
    investigation and hearing processes cannot be equitable unless they are
    impartial.''
        Disappointingly, however, OCR's rhetoric and actions have been
    decidedly one-sided, emphasizing the rights of the complainant while
    paying insufficient attention to the rights of the accused. For
    example, OCR has mandated that institutions utilize our judiciary's
    lowest burden of proof, the ``preponderance of the evidence'' standard,
    despite the absence of any of the fundamental procedural safeguards
    found in the civil courts of law from which that standard comes.
    Without the basic procedural protections that courts use (like rules of
    evidence, discovery, legally trained advocates, the right to cross-
    examine witnesses, and so forth), campus tribunals are making life-
    altering findings using a low evidentiary threshold that amounts to
    little more than a hunch. This mandate is not just unfair to the
    accused--it reduces the accuracy and reliability of the findings and
    compromises the integrity of the system as a whole.
        The hurried rush to find the accused guilty described by NCHERM in
    its open letter is sadly inevitable in an environment where the Federal
    Government has mandated low evidentiary standards, called into doubt
    accused students' right to cross examine their accusers,
    interchangeably used the terms ``victims'' and ``complainants'' in pre-
    hearing contexts, and actually instructed institutions that in some
    instances they may take ``disciplinary action against the harasser''
    even ``prior to the completion of the title IX and title IV
    investigation/resolution.'' See U.S. Departments of Justice and
    Education Joint Findings Letter to the University of Montana, May 9,
    2013. The inescapable perception of a top-down Federal bias against the
    accused is solidified by the fact that OCR has yet to take a single
    action against an institution for breaching its duty of impartiality
    because it was biased against the accused or to intervene on an accused
    student's behalf in any of the civil rights lawsuits they have filed,
    despite numerous examples of colleges punishing accused students with
    little if any evidence and after using embarrassingly minimal
    procedural safeguards.
        Again, the perception of bias on the part of OCR is having a real
    effect on the reliability of campus adjudication across the country.
    After all, when deciding a case under the preponderance of the evidence
    standard, even a light thumb on the scales of justice can affect the
    outcome. One disturbing example comes from Occidental College, where
    the institution expelled a male student after finding that the female
    student was incapacitated despite a 24-minute text message conversation
    showing the complainant taking deliberate steps to sneak away from her
    friends and into the young man's dorm room for the express purpose of
    having sex. In one text she asks him, ``do you have a condom,'' and
    then she messaged a friend, ``I'm going to have sex now'' [sic]. It is
    perhaps unsurprising that this result arrived on the heels of OCR
    opening up a title IX investigation into Occidental's handling of
    sexual assault claims, demonstrating the real harm caused when
    institutions feel pressured to reach guilty findings.
        FIRE has also seen repeated instances in which colleges expel
    students despite the fact that juries have found those students not
    guilty in real criminal trials covering the same accusations. While
    OCR's interpretation of title IX allows institutions to take action
    independent from or even concurrent with any criminal justice
    proceedings, it remains problematic that students exonerated under the
    heavy scrutiny of the criminal process are being so harshly punished in
    campus proceedings. FIRE has seen cases where the evidence not only was
    insufficient to support guilty verdicts under criminal law evidentiary
    standards, but also dispositively proved the innocence of the accused.
    Caleb Warner's case from the University of North Dakota is
    illustrative. We highlight the Occidental College and Caleb Warner
    cases not to argue that false accusations are the norm, but rather to
    emphasize that justice requires that individualized determinations be
    made based upon the known facts of each case, not upon statistical
    assumptions.
        Removing a college's responsibility for determining guilt or
    innocence has another benefit: It removes a potential source of bias
    from the process and in doing so protects institutions from the
    liability exposure created by serving as a fact-finder in a situation
    where the institution has a real or perceived vested interest in the
    outcome. United Educators, an insurance company that serves colleges,
    universities, and other educational institutions across the country,
    released a Risk Research Bulletin in December 2011 regarding claims
    paid on behalf of universities as a result of their handling of sexual
    misconduct cases. The bulletin explains that the circumstances
    surrounding campus sexual assault allegations create a ``perfect
    storm'' resulting in scores of claims and millions of dollars paid out
    as a result of institutions mistreating accusers, accused students, or
    both. According to the bulletin:

              From 2006-2010, United Educators (UE) received 262 claims of
            student-perpetrated sexual assault, which generated more than
            $36 million in losses for UE and our members. The claims data
            show that students accused of perpetrating a sexual assault are
            just as likely to sue the institution as accusing students.

        The bulletin is a few years old, and was released just as
    institutions nationwide began to recalibrate their procedures in
    response to the mandates contained in OCR's April 4, 2011, ``Dear
    Colleague'' letter. The liability risk for institutions has only
    increased since then, as both accused and accusing students nationwide
    file complaints against their institutions, alleging mishandling of
    their case.
        Leaving the guilt or innocence determinations up to law enforcement
    professionals and actual courts will not only save institutions money;
    most importantly, it is the right thing to do. Adjudicators with real
    or perceived interests in the outcomes undermine the reliability of the
    process. This too should be self-evident, as it was one the central
    arguments presented by Senators Gillibrand and McCaskill in their
    efforts to remove sexual assault hearings from the jurisdiction of
    military tribunals (which boast far more elaborate procedures and
    protections than campus tribunals) and to the jurisdiction of civilian
    courts.
        The final reason why adjudicating these cases should not be left to
    colleges and universities is because it is an inadequate forum for
    addressing these serious felonies. Diverting these cases from the
    criminal justice system to campus courts is dangerous. The harshest
    sanction a university can impose on a rapist is expulsion. Currently
    available data suggests that many rapes are committed by serial
    offenders. If this is true, expulsion simply leaves the perpetrator
    free to prey on more victims--including more students.
        The bottom line is that when the alleged conduct in question is
    heinous and reprehensible, as it is in sexual assault cases, campus
    courts are unequipped to provide either the necessary process due the
    accused or the punishment justice demands for the victim and society if
    the accused is found guilty. We must stop pretending that campus
    tribunals are adequate alternatives to criminal justice and start
    referring each and every complaint to law enforcement professionals, so
    we have a chance at removing dangerous criminals from our communities.
    If complainants are reluctant to go to law enforcement, that problem
    must be addressed directly by working with law enforcement--skirting it
    by providing alternative ``justice'' systems is not a viable solution.
        If Congress determines that campus tribunals must continue
    adjudicating these cases, there are steps that can be taken to improve
    their effectiveness and fairness. First and foremost, the government
    should drop its insistence that institutions use the preponderance of
    the evidence standard. The legal argument that the preponderance
    standard is the only acceptable standard under title IX is incorrect,
    as FIRE has catalogued in our prior correspondences with the Office for
    Civil Rights. More importantly, the use of this low standard, when
    decoupled from meaningful due process protections, is unjust. Instead,
    the government should be encouraging institutions to use the ``clear
    and convincing'' standard of evidence, which requires more than just a
    ``50 percent-plus-a-feather'' level of confidence that the evidence
    supports one side over the other, but less certainty than the criminal
    courts' ``beyond a reasonable doubt'' standard. This standard was
    recently endorsed by Slate senior editor Emily Bazelon. The government
    should also insist that institutions that continue to use the
    preponderance of the evidence standard add additional due process
    protections--for example, some mechanism that allows an accused student
    or an advisor to pose questions to his or her accuser, perhaps via an
    intermediary.
        Another step that Congress can take to improve the reliability and
    fairness of campus disciplinary hearings is to require schools to allow
    student complainants and accused students to have legal representation
    actively participate in those proceedings. Typically, the university
    represents the complainant's interests by bringing and prosecuting the
    charges against the accused party. Universities are free to employ
    lawyers to conduct this function, but this right is typically not
    extended to student respondents. Notably, the recent passage of the
    Violence Against Women Reauthorization Act of 2013 included a provision
    that,

              ``The accuser and the accused are entitled to the same
            opportunities to have others present during an institutional
            disciplinary proceeding, including the opportunity to be
            accompanied to any related meeting or proceeding by an advisor
            of their choice.''

        The Department of Education has (correctly) interpreted this to
    include the right to have a lawyer present. For this measure to truly
    make a difference, Congress must make clear that the advisor may
    actively participate in the process. Allowing students to have their
    own counsel actively participate in the process will serve as an
    important check to ensure that a college proceeds in a just manner,
    rather than giving into the temptation to act in a manner that protects
    its own interests.
        Congress should also note that statements made by students during
    on-campus proceedings or in meetings with campus officials are
    admissible against them in criminal court. By participating without a
    lawyer, accused students have essentially waived their Fifth Amendment
    rights. The accused students lucky enough to recognize this problem are
    forced to choose between defending themselves on campus or defending
    themselves in criminal courts. An example of this dilemma is the case
    of Ben Casper, a former student at The College of William & Mary, who
    on the advice of his criminal defense lawyer did not participate in his
    campus disciplinary proceeding, instead defending himself in his
    criminal trial. Ben was found not guilty of all the charges against him
    at trial, but has been refused the opportunity to return to William &
    Mary. Requiring institutions to allow legal advocacy in the campus
    tribunal will go a long way toward fixing this problem. Participation
    of legal counsel will also help the process itself; the example of
    criminal and civil courts amply demonstrates that hearings proceed much
    more smoothly when both sides are represented by counsel than when pro
    se litigants are forced to navigate a process with which they are
    unfamiliar. As the authors of the Sixth Amendment recognized, hearings
    with the assistance of legal professionals are far more likely to lead
    to just results than those without.
        Another step Congress can take to make sure campus tribunals are
    more effective and fair is to require institutions to include sexual
    contact with an incapacitated person in their definitions of sexual
    assault and rape, and to provide an appropriately precise definition of
    incapacitation.
        ``Incapacitation'' is qualitatively different from mere
    'intoxication.'' This is a distinction with a real difference. If one
    is ``incapacitated,'' one has moved far beyond mere intoxication;
    indeed, one can no longer effectively function and thus cannot consent.
    Courts have recognized that simple intoxication does not necessarily
    equal incapacitation, and therefore does not necessarily foreclose
    consent. College policies must recognize this distinction as well,
    perhaps by mirroring State definitions of incapacitation.
        Unfortunately, some advocates are insisting not only that
    definitions of sexual assault be amended to include incapacitation, but
    also that they be changed to require the accused to prove that they
    obtained the ``affirmative consent'' of the complainant. The
    affirmative consent standard is not only confusing but is also a
    legally unworkable standard for consent to sexual activity. Under an
    affirmative consent standard, sexual activity is sexual assault unless
    the non-initiating party's consent is ``expressed either by words or
    clear, unambiguous actions.'' If proving ``affirmative consent''
    becomes law, there will be no practical, fair, or consistent way for
    colleges to implement these newly mandated prerequisites for sexual
    activity. It is impracticable for the government to require students to
    obtain affirmative consent at each stage of a physical encounter,
    especially if they are put in a situation in which they must later
    prove that attainment in a campus hearing. Under an affirmative consent
    standard, a student could be found guilty of sexual assault and deemed
    a rapist simply by being unable to convince a tribunal that she or he
    obtained explicit consent to every sexual activity throughout a sexual
    encounter. The affirmative consent standard is unfair, and at public
    institutions, likely a violation of students' due process rights
    because it effectively imposes a duty on the accused to prove his or
    her innocence. In reality, requiring students to obtain affirmative
    consent will render a great deal of legal sexual activity ``sexual
    assault.''
        Sexual assault is one of the most heinous crimes a person can
    commit. Those found guilty of it should be punished to the fullest
    extent allowed by law. Precisely because sexual assault is such a
    serious crime, ensuring that each case is referred to law enforcement
    and providing those accused with due process is absolutely vital. As
    FIRE president Greg Lukianoff recently observed:

              ``Due process is more than a system for protecting the rights
            of the accused; it's a set of procedures intended to ensure
            that findings of guilt or innocence are accurate, fair, and
            reliable.''

        FIRE is under no illusion that there is a simple solution to the
    problem of sexual assault on campus. By lowering the bar for finding
    guilt, eliminating precious due process protections, and entrusting
    unqualified campus employees and sometimes even fellow students to
    safeguard the interests of all involved, we are creating a system that
    is impossible for colleges to fairly administer, and one that will be
    even less fair, reliable, and accurate than before.
        Thank you very much for addressing this important issue and for
    considering FIRE's input. We are deeply appreciative of this
    opportunity to share our perspective and offer our assistance to you as
    you move forward. Please do not hesitate to contact us if we can be of
    further assistance.
                Respectfully submitted,
                                                   Joseph Cohn,
                                       Legislative and Policy Director.

                                        Legal Momentum,
                                          Washington. DC 20005,
                                                         July 29, 2015.
    Hon. Lamar Alexander, Chair,
    Hon. Patty Murray, Ranking Member,
    Senate Committee on Health, Education, Labor, and Pensions,
    428 Senate Dirksen Office Bldg.,
    Washington, DC 20510.

        Dear Chairman Alexander and Ranking Member Murray: I write to
    commend you for laying the groundwork for the coming reauthorization of
    the Higher Education Act by holding the hearing, ``Combating Sexual
    Assault.'' 0n behalf of Legal Momentum, the Nation's oldest
    organization advocating for the personal and economic safety of women
    and girls, I wish to offer some threshold recommendations based on our
    advocacy on behalf of campus survivors.

         Enhance responses for survivors--more funding is needed to
    provide a variety of supports for survivors of sexual assault and
    dating violence, including legal services, rape crisis intervention and
    counseling. It's crucial that survivors have access to services that
    are confidential- and trauma-informed, whether those are provided on
    campus or by local rape crisis centers. Additionally, title IX
    coordinators, campus health services. RA's, and campus law enforcement
    should be trained in the provision of trauma-informed care, and should
    coordinate with local rape crisis service providers .
         Full funding for the Office of Civil Rights (OCR)--we must
    ensure that campuses are fulfilling their obligations under title IX,
    and that survivors are receiving needed accommodations and timely
    resolutions of both OCR initiated investigations and of campus
    disciplinary proceedings. Over the last several years, OCR's complaints
    volume has steadily risen (to nearly 10,000 annually) while its
    staffing levels have declined to their lowest rates in decades (a time
    period when caseloads were much lower). In order for students to pursue
    their educations, and not be hampered by sexual bias, harassment or
    violence, OCR must be able to offer a timely response.
         Climate surveys are key--one of the most effective ways
    for institutions of higher education to receive timely feedback and
    respond effectively is by conducting climate surveys. Congress should
    consider requiring all institutions of higher education to collect and
    publish data to enhance transparency and to enable students and their
    parents to obtain accurate information about campus safety and
    institutional responses--both to survivor needs, and in terms of
    holding accused students responsible.

        We look forward to continuing to work with you and your staffs
    throughout the reauthorization process.
                Sincerely,
                                             Lisalyn R. Jacobs,
                               Vice President for Government Relations.

                                 Louisiana Legislature,
                                            State of Louisiana.

    Hon. Lamar Alexander, Chairman,
    U.S. Senate,
    Committee on Health, Education, Labor, and Pensions.

    Hon. Patty Murray, Ranking Member.
    U.S. Senate,
    Committee on Health, Education, Labor, and Pensions.

        Dear Chairman Alexander and Ranking Member Murray, I would like to
    express my strong support for S. 590, the Campus Accountability and
    Safety Act, which will greatly improve the processes surrounding sexual
    assault on college campuses.
        Passage of this piece of legislation is not only critical, it is
    doable--and Louisiana has just demonstrated so. As the father of two
    school-age children, the first thought that ran through my head when I
    read Senator McCaskill's study was ''I'm going to have to homeschool my
    daughter for college.'' This knee-jerk reaction led me to take a closer
    look at what was going on in my own State, and what we found was not
    pretty. Soon thereafter I convened a Working Group of Louisiana experts
    on sexual assault, including law enforcement composed of the Louisiana
    Sheriffs' Association and Chiefs of Police Association, advocates,
    prosecutors, campus legal and administrative experts, administrative
    officers of private health care facilities, Sexual Assault Nurse
    Examiners (SANE), various NGO's, and student representatives. Using
    Senator McCaskill's survey results and CASA as a map, our working group
    drafted and successfully passed our own Campus Accountability and
    Safety Act of 2015, SB 255/Act 172, copy attached, which provides for:

        (1) Anonymous sexual assault climate surveys: We understand the
    data produced from these surveys, which will include standardized plus
    optional parts to accommodate our diverse campuses, will greatly assist
    in understanding the scope of the problem first so that we can
    efficiently and effectively direct resources and attention to where
    they are needed the most;
        (2) Amnesty policy to ensure that students reporting incidents of
    sexual assault are granted immunity for certain campus policy
    violations, such as drug and alcohol use; and
        (3) Memoranda of understanding (MOU) between each higher education
    institution and each law enforcement agency located in that
    institution's respective locality. Each MOU is required to clearly
    delineate responsibilities, define protocols for investigations,
    including standards for notification, communication, and evidence
    preservation, and share information. In addition, the Sexual Assault
    Working Group drafted and passed SB 37/Act 152 to require each full-
    time campus police officer to complete a sexual assault awareness
    training program no later than January l, 2016.

        Sexual assault on college campuses affects everyone regardless of
    party affiliation, age, sex, race, or religion. I join other
    legislators, students, and advocates who have worked tirelessly on this
    pressing issue in Louisiana in thanking you for your attention to this
    important matter.
                Sincerely,
                                                   J P Morrell,
                                             State Senator, District 3.

                                                 Helena Moreno,
                                     State Representative, District 93.

                                                 Carrie Wooten,
                                                    Louisiana Progress,
                                          Sexual Assault Working Group.

                                                Nicholas Smith,
                                     Louisiana Tech University Student,
                                          Sexual Assault Working Group.

                     National Coalition for Men (NCFM),
                                           San Diego, CA 92101,
                                                         July 28, 2015.

    Hon. Lamar Alexander,
    Hon. Patty Murray,
    Committee on Health, Education, Labor, and Pensions,
    428 Senate Dirksen Office Building,
    Washington, DC 20510.

        Dear Senators Alexander and Murray: Thank you for this hearing on
    campus sexual assault.
        Speaking as a father of two college students and as a board member
    of the National Coalition For Men (NCFM), the oldest and largest men's
    human rights organization in the country, I ask this committee to
    please oppose S. 590 in its current form. This bill will do little to
    make campuses safer. Instead, it will create an army of taxpayer-funded
    administrators to bolster the illusion that S. 590 will cure campus
    sexual assault.
        Sexual assault is a serious matter, yet the treatment provided by
    this legislation is worse than the disease because it will vitiate the
    presumption of innocence, nullify equal treatment as provided by the
    14th Amendment, and deny due process to the accused.
        NCFM deplores rape and sexual assault, but we cannot close our eyes
    to the horror stories of young men caught up in a Kafkaesque
    disciplinary system in which the accused are presumed guilty and have
    no effective means to defend themselves. Have we forgotten the painful
    lessons learned at the expense of so many college men falsely accused
    of rape? Remember Duke University and the University of Virginia
    incidences of false accusations and the lives they destroyed?
        There are many other cases of college men who have been falsely
    accused, removed from campus, denied due process, and ultimately harmed
    by the lack of due process. Caleb Warner (Univ. of North Dakota), Ethan
    Peloe (Univ. of Cincinnati), Jordan Lynch (Univ. of Montana), Joshua
    Strange (Auburn Univ.), Dez Wells (Xavier), Lewis McLeod (Duke Univ.),
    and the list continues to grow. These false accusations have costs
    these universities and governmental agencies millions of dollars in
    damages and legal fees.
        Universities are not the proper institution to prosecute a rape
    case and if they were, they would need to rely on a proof beyond a
    reasonable doubt or by clear and convincing evidence standard, as
    opposed to the lenient ``preponderance of the evidence'' standard. In
    that regard, I would remind this institution of the testimony provided
    to this committee last year by Molly Corbett Broad, president of the
    American Council on Education, who stated:

              ``Conducting education and providing information is an area
            where college officials have vast experience. We must redouble
            our education efforts on sexual assault, and as I noted
            earlier, institutions are moving aggressively to do this.
            Performing investigations and adjudicating cases is a far more
            difficult challenge. We lack the authority to subpoena
            witnesses, control evidence and impose legal standards. Our
            disciplinary and grievance procedures were designed to provide
            appropriate resolution of institutional standards for student
            conduct, especially with respect to academic matters. They were
            never meant for misdemeanors, let alone felonies. While we take
            our obligations to the victims/survivors of sexual assault very
            seriously and are fully aware of our responsibilities with
            respect to sexual assaults, our on-campus disciplinary
            processes are not proxies for the criminal justice system, nor
            should they be.''

        Upon review of the CASA legislation, NCFM offers the following
    reasons to oppose this bill:

        1. The bill purports to be a safety act, yet fails to identify
    high-risk safety areas. It lacks provisions for enhancing campus
    security, such as increasing law enforcement or incorporating bystander
    prevention programs.
        2. The bill wrongly predisposes guilt of the accused by repeatedly
    referring to the complainant as ``victim'' or ``survivor.'' The word
    ``complainant'' should replace the word ``victim'' and ``survivor.''
        3. We need to get serious about holding sexual offenders
    accountable without destroying the lives of the wrongly accused, but
    one-size-does-not-fit-all. We need more discussion about how to process
    offenses like inappropriate touching versus rape. There may be
    instances in which school disciplinary procedures may be more
    appropriate than involving law enforcement, but not if the disciplinary
    procedures lack safeguards to protect the rights of the accused as well
    as the complainant.
        4. In the absence of clear and well-balanced policies to determine
    which offenses are most appropriate for school discipline versus law
    enforcement, the bill should go beyond requiring universities to sign
    memorandums of understanding with local law enforcement. It should
    require that sexual assault allegations be referred to local law
    enforcement and schools defer any investigation or adjudication until
    after law enforcement has completed its investigation.
        5. CASA is remarkably silent on due process and the rights of the
    accused. If colleges are going to adjudicate sexual assault
    allegations, then schools must allow accused students to (1) have
    counsel present during the entire process hearing, (2) effectively
    cross-examine their accuser, witnesses, and other relevant persons, (3)
    have timely and complete access to complaints, charges, and evidence,
    and (4) have complete freedom to talk with all involved parties and
    gather evidence.
        6. CASA must require hearing panels be composed of thoroughly
    trained objective finders of fact.
        7. The bill should compel universities to provide fair and equal
    resources to both accuser and accused during the disciplinary hearing
    processes. Lacking from this bill is language that ensures a
    presumption of innocence for the accused and provisions for equal
    resources to both the accuser and the accused.
        8. The bill provides confidential advisors to assist the reporting
    party (who is again referred to as the victim) yet offers no resources
    to the accused party, who may be falsely accused and in need of the
    same kind of supportive assistance and health resources. Rights need to
    be equally conferred to accuser and the accused.
        9. The bill is wasteful to taxpayers, redundant to existing State
    and Federal laws and policies instituted by the Department of
    Education, and confusing in its directives. The bill mandates that a
    small army of ``confidential advisors'', ``title IX coordinators'' and
    higher education employees be provided to advise victims of sexual
    assault even though universities already have in place numerous
    resources specifically designated to help sexual assault victims. The
    bill goes on to state that ``The confidential advisor shall not be
    obligated to report crimes to the institution or law enforcement''. If
    advisors mandated by this legislation to provide assistance to rape
    victims, are not required to report rape, who is? How does the non-
    reporting of a rape improve campus security?
        NCFM would be happy to appear before this committee. We echo the
    sentiments of the National Association of Scholars (NAS), who in a
    letter to Senator Alexander regarding the HELP committee hearings on
    sexual assault held last year wrote:

              In that letter we expressed our concern with the heavily one-
            sided approach to the issue that has completely dominated the
            many other panels and examinations that have taken up the issue
            of sexual misconduct this year.
              In one instance after another, the only testimony solicited
            seems to come from alleged victims of sexual assault, advocacy
            groups, or ideologically committed individuals . . . Although
            the recent HELP committee hearings included some probing
            exchanges between witnesses and panelists, no testimony was
            heard from competent witnesses who might have challenged
            accepted statistics about the prevalence of sexual assaults on
            campus, or especially from the increasing number of male
            students subject to egregious miscarriages of justice at the
            hands of incompetent or ideologically prejudiced campus
            tribunals charged with hearing complaints. The high-profile
            Duke Lacrosse team case of 2006 was not an isolated exception.
            Other cases have not made the front page of the New York Times,
            but they are increasingly frequent.

        We have several families willing to provide this committee with
    their testimony regarding a deeply flawed and biased university hearing
    process that has caused unfathomable pain and suffering to their sons
    and daughters. Please do not dismiss the voices of the falsely accused
    and those advocating for an equitable solution to such a complex issue.
        NCFM appreciates the work of this committee and for holding a
    hearing examining how to move forward in dealing with this important
    topic. It is crucial that all sides, including hearing from families
    who have had a son harmed by the current disciplinary process, be
    heard.
        Ultimately, universities should have policies that enable victims
    of sexual assault to feel safe and secure in their reporting while
    being fair in the treatment to both accuser and accused. We must
    restore a presumption of innocence in the handling of such deeply
    intrusive and complex matters. Advocates of due process need to be an
    essential voice heard by the HELP committee prior to any deliberations
    on S. 590.
        NCFM urges you to oppose S. 590 in its current form, and to hear
    from all sides on this matter.
                Respectfully,
                                          Gregory J. Josefchuk,
                       Board Member--National Coalition For Men (NCFM),
                                     Chapter President--NCFM Carolinas,
                                            Parent of college students.

                                                       August 10, 2014.

    Hon. Lamar Alexander, Chairman,
    Senate Committee on Health, Education, Labor, and Pensions,
    828 Hart Senate Office Building,
    Washington , DC 20510.

        Dear Chairman Alexander: I would like to request inclusion of the
    enclosed letter from the National Domestic Violence Hotline in the
    record for the July 29, 2015 hearing entitled ``Reauthorizing the
    Higher Education Act: Combating Campus Sexual Assault.'' I appreciate
    your consideration of this request.
                Sincerely,
                                                  Patty Murray,
                                                          U.S. Senator.
                                     ______

                The National Domestic Violence Hotline,
                                                        August 6, 2015.

    Hon. Lamar Alexander, Chairman,
    Senate Committee on Health, Education, Labor, and Pensions,
    828 Hart Senate Office Building,
    Washington, DC 20510.

    Hon. Patty Murray, Ranking Member,
    Senate Committee on Health, Education, Labor, and Pensions,
    428 Dirksen Senate Office Building,
    Washington, DC 20510.

        Dear Chairman Alexander and Ranking Member Murray: Thank you for
    the opportunity to comment on congressional efforts to address sexual
    assault and related forms of violence on college campuses. We
    appreciate the committee's work on these issues and the thoughtful
    approach you are taking in gathering information.
        The National Domestic Violence Hotline is the only national
    organization providing around-the-clock support for survivors of
    domestic and dating violence, their families, and friends. Last year we
    received nearly 400,000 contacts through phone, text, and chat. This
    year, we have already received 52,000 more contacts than at the same
    time in 2014. ``Loveisrespect'' is our program for teens and young
    adults, and through our web portal and digital services, we are
    reaching young people early in abusive relationships. We are also
    working on college campuses in Washington, DC to link student activist
    groups together to share best practices and strategies for combating
    dating violence. These initial recommendations to the committee are
    informed by our direct connections with students and survivors.
                            focus on dating violence
        While much of the conversation about campus violence has focused on
    sexual assault, other forms of interpersonal violence are significant
    problems on college campuses. In one survey, one in three college women
    said they had been in an abusive dating relationship.\1\ Overall, more
    than 50 percent of sexual assaults occur by current or former intimate
    partners.\2\ Dating violence also includes verbal abuse, physical
    assaults, cyber abuse, and obsessive jealousy that can lead to
    violence.
    ---------------------------------------------------------------------------
        \1\ See 2011 College Dating and Abuse Poll, 11. Knowledge Networks
    Inc., (2011).
        \2\ See 2010 National Intimate Partner and Sexual Violence Survey,
    21. Center for Disease Control, (2010).
    ---------------------------------------------------------------------------
        The effects of dating violence on young women are significant:
    those who have experienced dating abuse have higher rates of substance
    abuse, risky sexual behavior, eating disorders, and other negative
    outcomes.\3\
    ---------------------------------------------------------------------------
        \3\ See Dating Violence Against Adolescent Girls and Associated
    Substance Use, Unhealthy Weight Control, Sexual Risk Behavior,
    Pregnancy, and Suicidality. Journal of the American Medical
    Association, (2001).
    ---------------------------------------------------------------------------
                       strengthen education and training
        Officials at Institutions of Higher Education (IHEs) must build
    their capacity to understand dating violence, its risk factors,
    indicators, and effects on student well-being and educational outcomes.
    Those adjudicating student disciplinary hearings should be trained to
    understand the steps victims take to protect themselves in dating
    relationships and the challenges involved in separating from an abusive
    partner. The training should also include information about
    perpetration and the appropriate methods of intervention. Without this
    background, adjudicators and other school officials will not understand
    the steps they should take to hold perpetrators accountable and ensure
    victim safety. To improve their capacity, IHEs should partner with
    local domestic violence centers and community-based programs to assist
    with training for school officials and ensure that students have access
    to services and support.
        The Violence Against Women Act (VAWA) 2013 amendments to the Clery
    Act and the subsequent implementing regulations require robust
    educational programs for students and employees about dating violence,
    domestic violence, sexual assault, and stalking.\4\ While promising
    practices on college campuses have emerged in recent years, these
    efforts are not scaled up and many, if not most, schools will need
    additional resources and technical assistance to implement the new
    requirements. Federal agencies could be helpful, but only if
    collaboration is required between the Department of Education, the
    Department of Justice, and the Centers for Disease Control and
    Prevention. Each of these agencies has expertise and must work together
    to provide greater support to IHEs.
    ---------------------------------------------------------------------------
        \4\ See 79 F.R 62751, 34 C.F.R 668.
    ---------------------------------------------------------------------------
                     confidential advisors and peer support
        Confidential support is critical to encouraging students who are
    experiencing dating violence to come forward and get the help they
    need. Survivors may be reluctant to report abusive partners to school
    officials or law enforcement and may need additional time and support
    to consider their options. We have heard from many students in dating
    relationships indicating that they are confused about what to do and
    that they don't have access to any services on campus.
        Confidential advisors should provide students with emotional
    support, information about their options for reporting, and referrals
    for more in-depth counseling services. Any student communications with
    the confidential advisors should not be made available to university
    staff or officials without the students' consent.
        We also recommend that peer advocates be included among those who
    can serve as confidential advisors, as allowable by State laws
    governing the confidentiality of communications with volunteer
    counselors. Through our direct work with young adults, we have learned
    that they often respond best to their peers. Young people may fear
    being judged by adults and may not disclose the full extent of what has
    happened. Peers are able to build trust and relate more immediately to
    students. We also know that peer advocates must receive significant
    training and supervision by staff confidential advisors. We recommend
    that the committee consider the possibility of including peer advocates
    in any provisions creating confidential advisors. We offer our
    expertise in peer advocacy and confidentiality if this would be helpful
    in considering these provisions.
        At the National Domestic Violence Hotline, we hear every day from
    college students who are experiencing violence and abuse. We appreciate
    the committee's attention to this problem and offer our assistance as
    legislative efforts move forward.
        If you need any additional information, please contact Lynn
    Rosenthal at 202-823-7464 or Rob Valente at 240-354-4842.
                Sincerely,
                                                   Rob Valente,
                                       Vice President of Public Policy.

                                                Lynn Rosenthal,
                              Vice President of Strategic Partnerships,

                        National Parenthood Conference,
                                                 July 28, 2015.

    Hon. Lamar Alexander, Chairman,
    Senate Health, Education, Labor, and Pensions Committee,
    428 Senate Dirksen Office Building,
    Washington DC 20510.

    Hon. Patty Murray, Ranking Member,
    Senate Health, Education, Labor, and Pensions Committee,
    835 Senate Hart Office Building,
    Washington DC 20510.

        Dear Chairman Alexander and Ranking Member Murray: As a caring
    community of fraternity brothers and sorority sisters, we thank you and
    the other members of the Senate HELP Committee for convening an
    important hearing to review how Congress can combat campus sexual
    violence as part of the Higher Education Reauthorization process. We
    consider this a critical issue that impacts all students and
    institutions of higher education today. With the pending
    reauthorization of the Nation's higher education laws, now is the time
    to act. We hope Congress develops a comprehensive set of solutions that
    measurably improves campus safety, more effectively engages law
    enforcement to bring perpetrators of campus sexual violence to justice,
    clarifies the expectations of schools, protects the rights of all
    students and student organizations, and strengthens the long-term
    success of title IX.
        The North-American Interfraternity Conference (NIC) and the
    National Panhellenic Conference (NPC) collectively represent 110
    fraternities and sororities with 725,000 undergraduate members on over
    800 campuses in the United States and Canada, as well as close to 10
    million living alumni. As such, our organizations and members represent
    one of the largest voices in the higher education community. We believe
    that we have a responsibility and obligation to confront issues facing
    our members and step forward to advocate for those students who may not
    have a unified voice.
        Sororities and fraternities are very engaged on the front lines of
    the fight against campus sexual violence. Our organizations provide our
    725,000 students with ongoing training and education on bystander
    intervention, survivor support, risk management and other strategies
    that make a meaningful difference in improving campus safety. Every day
    of the school year, tens of thousands of alumni volunteers work with
    our student members and those efforts include education, prevention
    activities, and a support system for students affected by sexual
    violence. At the local and national level, fraternities and sororities
    collectively raise millions of dollars and provide innumerable
    volunteer hours serving charitable organizations that offer a range of
    programs and services to address sexual violence on campus and in
    society. In short, the collective experiences of our students and
    alumni allow the NIC and NPC to contribute to the policy debate
    surrounding campus sexual violence.
        We write today to provide our organizations' perspective on how
    Congress can reduce and better respond to campus sexual violence
    through the Higher Education Act reauthorization process.
        While we take no position on the Campus Accountability and Safety
    Act (CASA), we offer a series of ideas that in many respects complement
    CASA and will complete the policy puzzle as Congress considers this
    critically important issue. We acknowledge there are meaningful
    elements of the puzzle that won't be addressed by this week's hearing
    or our letter to you today. Overall, the entire puzzle needs to be
    solved by Congress in order to have a comprehensive fix for the current
    system. We encourage your committee to provide equal attention to all
    pieces of the puzzle before finalizing solutions during the
    reauthorization process.
        We start from the perspective that the current response system for
    handling campus sexual violence cases must be improved. All groups--
    students, organizations, host institutions and local communities--can
    be better served when new approaches are viewed as possible solutions.
    As leaders on campuses in communities, we want to advance ideas to
    improve the status quo.
        We make the following broad observations:

         We see too many alleged victims without justice. There are
    too many instances where alleged perpetrators of sexual violence are
    not being held accountable for their actions via the criminal justice
    system, compounding the harm to survivors.
         We see too many students uneducated about their role in
    preventing sexual violence. There is an ongoing need for schools to
    work with all available entities to educate and engage students.
         We see too many students--accusers and accused--subjected
    to a campus disciplinary system that is unfair and opaque even as the
    stakes in these cases carry life-altering consequences for all parties.
    We want a system with stronger due process protections for all students
    to build confidence that the result reached in the campus disciplinary
    process is the correct one.
         We see unprecedented punitive actions against student
    organizations, taken without meaningful due process protections,
    creating a chilling effect that undermines broader goals in fighting
    campus sexual violence. There is a need to provide student
    organizations with the same due process rights of individual students.
                              student due process
        The lack of due process rights for students in the adjudication of
    campus sexual assault claims is a major problem. It undermines public
    confidence in the process and exposes schools to litigation by any
    losing party who feels the process was tilted against them from the
    start. We note that, this past April, a number of prominent victims'
    rights groups wrote an open letter to university presidents talking
    about how the lack of due process protections ultimately harmed the
    interests of victims as much as it does the accused students.
        While the list of potential due process improvements we identify
    below is long, and we recognize other organizations may have a much
    broader array of due process rights they want Congress to consider, we
    start with simple rights that should be enshrined in the law. Congress
    should ensure that:

         The same suite of due process rights is given to both
    parties in these campus adjudications.
         A comprehensive overview of the involved charges, the
    process for handling those charges, and the potential penalties
    involved are available to involved students at the start of the
    disciplinary process.
         Students have access to all evidence collected in the case
    far enough in advance to use that information during the disciplinary
    process.
         Students are able to hire an attorney or advocate, at
    their own expense, that is fully empowered to represent a student
    throughout the proceeding. It is unfair to expect students to navigate
    the complex disciplinary process, particularly when a concurrent law
    enforcement investigation may be underway, without meaningful access to
    legal counsel in campus proceedings where the potential sanction
    imposes a life-changing sentence on the involved parties.
         Students involved in these cases may meaningfully and
    respectfully cross-examine witnesses.
         No university official is allowed to play multiple roles
    in the disciplinary process. Separate individuals should play the roles
    of investigator, prosecutor, judge, jury, and appellate authority.
         The school selects the burden of proof it deems most
    appropriate for sexual violence cases rather than having that standard
    mandated by a Department of Education Dear Colleague letter that did
    not go through the appropriate rulemaking process.
                           organizational due process
        Student rights on campus cannot be compromised just because a
    student is active in a campus organization. The intense public scrutiny
    of the campus sexual violence problem has led to organizations being
    disciplined without cause. Allegations of crime or misconduct against
    an individual are being used to suspend activities for organizations to
    which the accused student belongs, even if the organization is not
    suspected of contributing to the crime or misconduct. More alarmingly,
    in some cases, schools have actually imposed a blanket suspension on
    thousands of men and women in dozens of organizations who have no
    involvement in the incident under investigation.
        These actions are often arbitrary and capricious in nature. In just
    this past year, numerous fraternities and sororities were suspended
    across the country for allegations involving students and events where
    they had no direct relationship. Conversely, major sports teams in
    college football and basketball suffered not so much as a missed
    practice on the road to playoffs and March Madness even as members of
    those same teams were under active investigation for crimes of sexual
    violence.
        The baseless suspensions of our organizations are antithetical to
    the concepts of due process, and we are particularly concerned that the
    suspensions will actively discourage future reports of campus sexual
    violence. Schools have been responding to a woman's allegation that a
    crime has been committed by actually suspending the largest women's
    leadership organizations on campus, none of which are involved in the
    allegations. In these cases, schools are ultimately telling women they
    will be penalized for coming forward and the result will be a reduction
    in future reporting.
        Consequently, Congress should ensure that student organizations
    receive the same due process protections that individual students
    receive during a campus sexual violence disciplinary proceeding.
                            role of law enforcement
        A number of prominent higher education associations have written
    the HELP Committee in the past 18 months asking you to address the
    fundamental flaws inherent in the current process that requires
    concurrent investigations by the school and local law enforcement. We
    echo those requests.
        There is a vast difference in the resources, expertise and time
    needed to handle sexual misconduct, where an educational sanction is
    the best remedy, and crimes of campus sexual violence, where law
    enforcement is best equipped to deliver justice to the victim. Current
    Department of Education guidance pressures schools to investigate and
    adjudicate sexual violence allegations in as little as 60 days, even if
    a parallel law enforcement investigation is underway. Thus, current law
    creates a situation where not all crimes of sexual violence are being
    reported to local law enforcement to allow for investigation and
    prosecution.
        The best way to reduce the rate of sexual violence on campus is to
    ensure those who commit an act of sexual violence are punished in a
    manner that befits the crime. Congress should therefore encourage
    students to come forward and report more such campus crimes to law
    enforcement and allow the best trained, best equipped professionals the
    time to investigate before a campus handles the sexual misconduct case.
    For that reason, we support allowing law enforcement a 30-day period of
    temporary exclusive jurisdiction to investigate campus sexual violence
    allegations before a campus investigation and adjudication begins. We
    would also propose that Congress change the law and allow the 60-day
    campus adjudication clock required by the Department of Education to be
    tolled during the time local law enforcement has exclusive
    investigation authority.
        We do not, however, believe that institutions should sit idly by as
    the law enforcement process plays out. To the contrary, we believe that
    Congress should authorize institutions to take powerful interim
    measures to safeguard students during law enforcement's temporary
    period of exclusive jurisdiction. We believe those measures should
    include more than the traditional changes in class schedules,
    residential assignments and no-contact orders. We support giving
    schools the statutory right to temporarily suspend a student under
    criminal investigation if there is a finding that the student poses an
    ongoing risk to the safety of other students. We also believe that
    suspension decisions should be revisited regularly to protect students'
    due process rights, with the school required to demonstrate the student
    under criminal investigation poses an ongoing threat to campus safety.
    Finally, we also believe that Congress should allow schools to suspend
    any student indicted for a crime of sexual violence, for the duration
    of the criminal proceeding, as they pose an ongoing threat to the
    safety of other students.
                              preserving title ix
        Title IX is at the heart of the campus sexual violence process, as
    ultimately the landmark law requires an educational experience that
    does not tolerate gender-based discrimination. Fraternities and
    sororities played a key role in supporting the passage of title IX and
    making sure it included language that allowed single-sex organizations
    like ours to continue to operate. Since the passage of title IX, our
    organizations have flourished and we currently enjoy record levels of
    student membership. The demand for single-sex leadership, fellowship,
    scholarship, service and friendship through our organizations has only
    increased in today's tech-obsessed society.
        We are concerned that the fight over campus sexual violence has
    been used as a weapon to undermine the single-sex status our
    organizations enjoy under the law. Some schools cite sexual misconduct
    or other misconduct on campus as justification to require our groups,
    or their campus governing bodies, to adopt co-educational membership
    policies despite the clear language and intent of the single-sex
    exemption our groups have under title IX.
        In the past, Congress has used the higher education reauthorization
    process to remind the public that title IX is working and that the
    single-sex organization exemption has been very successful. We ask
    Congress to do so again in the upcoming reauthorization and to add
    language preventing schools from forcing single-sex organizations to
    adopt co-educational policies as a solution to a campus sexual violence
    problem.
                              volunteer liability
        Many student organizations are heavily reliant on alumni volunteers
    to provide training, support, guidance and institutional knowledge.
    This is especially true of fraternities and sororities where there is
    some level of expectation that alumni will help students find success
    in their chapter experience. Our alumni volunteers are trained to
    manage risk, report crimes of violence to the authorities, and help
    support students.
        In the evolution of campus security laws, we are concerned that
    schools may adopt requirements that alumni volunteers for student
    organizations become recognized campus security personnel, with
    distinct obligations to the university for training, reporting and
    other duties. We are concerned that student organizations will be
    penalized or even lose their campus recognition if they can't recruit
    alumni volunteers willing to be campus security personnel. Alumni may
    be hesitant to volunteer in instances where they have new potential
    liability.
        We encourage Congress to clarify the laws to make it clear that
    alumni volunteers who are not already employed by the host institution
    cannot be designated as campus security personnel in order to
    volunteer. We also support language to make it clear a school may not
    punish a student organization or withdraw its recognition if the alumni
    serving the group as volunteers do not serve as designated campus
    security personnel.
                            education and prevention
        We recognize that much has already been done via the Clery Act and
    the recent Violence Against Women Act amendments from 2013 to provide a
    framework for schools to educate students about all aspects of the
    campus sexual violence process. We support any legislative efforts to
    continue to refine the education, training, prevention and survivor
    support programs offered at institutions. In particular, we encourage
    Congress to consider focusing more attention on educating students in
    their first few months on campus, when they are most vulnerable in
    their new environment.
                              existing legislation
        Many of these ideas are reflected in two new pieces of legislation,
    the Safe Campus Act and the Fair Campus Act, introduced by your
    colleagues in the House of Representatives this week. The NIC and NPC
    have endorsed both of these bills for that very reason and we encourage
    the HELP Committee to rely upon those bills during the HEA
    reauthorization process. Safe Campus and Fair Campus do not generally
    address the subjects that are being addressed in CASA. Rather, we see
    each of these bills as another piece of a comprehensive solution to the
    campus sexual violence problem and commend them to your attention.
        Thank you for your consideration of our perspectives. We admire
    your leadership in tackling these difficult policy discussions at such
    a key moment. The NIC and NPC stand ready to meet with your offices at
    any time to talk about our experiences, our expertise and our
    commitment to student safety and success.
                Sincerely Yours,
                                              Pete Smithhisler,
                                                       President & CEO,
                             North-American Interfraternity Conference.

                                                   Jean Mrasek,
                                                              Chairman,
                                       National Panhellenic Conference.

         Rape, Abuse & Incest National Network (RAINN),
                                          Washington, DC 20005,
                                                         July 29, 2015.
    Hon. Lamar Alexander, Chairman,
    Hon. Patty Murray, Ranking Member,
    Senate Health, Education, Labor, and Pensions Committee,
    428 Dirksen Senate Office Building,
    Washington, DC 20510.

        Dear Chairman Alexander, Ranking Member Murray, and members of the
    committee: Thank you for dedicating attention to the issue of sexual
    violence on college campuses. On behalf of RAINN, the Nation's largest
    anti-sexual violence organization, I write to express our support for
    S. 590, the Campus Accountability and Safety Act, and for efforts to
    ensure that victims are protected and sexual predators are held
    accountable.
        RAINN operates the National Sexual Assault Hotline (800.656.HOPE
    and online.rainn.org), which has helped more than two million people
    since its creation in 1994. RAINN also operates the DoD Safe Helpline
    on behalf of the Department of Defense. Additionally, RAINN carries out
    programs to prevent sexual assault, help victims, and ensure that
    rapists are brought to justice.
        For two decades, RAINN has led efforts to support survivors, and to
    prevent and better respond to on-campus crimes of sexual assault. We
    have worked with Congress on related legislation, including the Campus
    SaVE Act, and have worked hand-in-hand with survivors, college students
    and college and university leaders to educate students, improve
    prevention and response programs, and provide help to survivors.
        The recent heightened national focus on the issue of campus sexual
    violence is welcome and necessary. The risk of sexual assault is
    heightened for women of college age. According to the Department of
    Justice, women 18-24 who are enrolled at an academic institution in the
    United States are three times more likely to be sexually assaulted than
    the rest of the female population. This high rate of sexual violence
    combines with a lower rate of reporting--80 percent of sex crimes
    committed against female students go unreported, compared to 68 percent
    for the country as a whole. The Justice Department has also reported
    that for males 18-24, the risk of sexual assault is higher among
    college students than for males of that age who are not in college.
    This is a problem that necessitates our attention, action, and
    congressional leadership.
        While we know sexual violence is both prevalent on college campuses
    and woefully underreported, we also know that crafting policy responses
    that blend and respond to the equally complex and important needs and
    interests of students, victims, academic institutions, law enforcement,
    the accused, and other stakeholders is incredibly complicated. We
    believe that CASA represents a strong step forward in the effort to
    protect America's students, affording them resources for healing and
    paths to justice, and preventing sexual violence on college campuses.
        We are grateful to Senators Gillibrand, McCaskill, Heller,
    Blumenthal, and Grassley, as well as many others, for their leadership
    on this topic. RAINN has worked closely with these Senators and many
    other stakeholders as we work together to address sexual violence at
    academic institutions. We would like to highlight several provisions of
    CASA that we believe will help combat sexual violence.
                                 campus surveys
        When it comes to preventing and responding to sexual violence,
    knowledge is power. One of the biggest barriers to fixing this problem
    is the dearth of reliable data. While we can piece together anecdotal
    information, too little is concretely understood about, when and where
    they seek and receive services, how and when survivors report, or even
    the total number of assaults from year-to-year. This is an area where
    the Federal Government can play a productive role by applying its
    research expertise to develop and require regular campus surveys, as
    required under CASA.
        Specifically, CASA requires the Departments of Education and
    Justice to create a standardized survey to be administered on a regular
    basis to the student body of each academic institution. While
    institutions and the populations they serve vary broadly, there is
    incredible value to a tool that will provide much-needed, uniform and
    constructive data about the incidence and prevalence of these crimes.
        Without understanding the true extent and nature of campus sexual
    assault, we cannot fully understand how to expedite its elimination.
    The data we have varies widely depending on the methodology of the
    survey, the jurisdiction, the year a survey was administered, and
    countless other factors, which make it impossible to compare one school
    to the next, or one graduating class to the next. As a result, we
    cannot, with certainty, say if we have made progress in reducing the
    number of sexual assaults, or where our resources and attention are
    most needed. To comply with existing law, colleges and universities are
    expending vast sums to devise and implement prevention programs--
    without a means to measure whether or not they actually help achieve
    the goal of preventing sexual assaults. Campus surveys are a fiscally
    responsible solution, as they will provide data necessary to evaluate
    prevention programs' effectiveness.
        A national survey, developed by Federal data collection experts and
    administered across the country, will enable schools to better plan,
    prevent and respond to these crimes.
        Additionally, it will, over time, produce reliable data that will
    inform parents and prospective students alike. The data will support
    policymakers and advocates, including the more than 1,000 sexual
    assault service providers with whom we partner to deliver support
    through the National Sexual Assault Hotline, working to direct and
    focus resources to areas where they are most needed, and to effectively
    measure our progress in not just responding to crimes once they've
    occurred, but to shifting the tide and preventing more on-campus sexual
    assaults.
                          memorandums of understanding
        A piece of paper itself will not solve the problem of campus sexual
    violence. By requiring schools that have not already done so to enter
    into memorandums of understanding with local law enforcement as to
    sexual assault response and prevention protocol, CASA acknowledges
    something key: without formal and meaningful partnership between
    institutions and law enforcement, we will not successfully move the
    needle toward a system where more victims feel comfortable coming
    forward to report these crimes and support prosecution of their
    assailants.
        These memorandums are essential in that they require that the two
    entities most responsible for responding to sexual violence when it
    occurs on a college campus to engage with one another, and hammer out
    the types of details--jurisdiction, roles and responsibilities, etc.--
    that, once a crime occurs, it's too late to sort out.
        The good news is that for a majority of jurisdictions across this
    country, these MOUs are already in place. According to the Justice
    Department, 70 percent of the approximately 7,000 academic institutions
    nationwide have MOUs with its local law enforcement agency. CASA would
    strengthen this landscape by specifying the information that must be
    discussed and included in these MOUs, and by requiring that they are
    living documents, not simply drawer liners: MOUs must be regularly
    reviewed and updated. CASA leaves jurisdictions the flexibility to
    coordinate with one another in a manner that best serves and makes
    sense in their communities, but the collaboration is no longer
    optional.
        The bottom line is this: far, far too few victims are reporting
    these crimes to law enforcement. This means we have to do a better job
    of supporting each step of their healing process, and help them feel
    supported if and when they decide to report to law enforcement. It is
    time to take the guesswork out of the process and clearly delineate,
    through MOUs and the conversations that necessarily surround them, the
    roles, responsibilities, and opportunities for collaboration and
    partnership to achieve shared goals.
                                   conclusion
        In addition to the provisions already discussed, we have also
    worked closely with the bill's sponsors to support their efforts to
    ensure that students have confidential support and assistance
    available. We have worked closely with committee staff to share our
    understanding of States' confidentiality standards and provided
    extensive feedback to support the goal of students having safe,
    confidential support available to them on college campuses.
        Additionally, we strongly support measures to increase
    accountability and compliance: specifically, meaningful sanctions for
    violations of laws designed to combat these crimes.
        We thank the committee and other congressional leaders for the
    opportunity to provide insight and feedback on these critically
    important efforts, and for your diligence in addressing this problem.
                Sincerely,
                                               Scott Berkowitz,
                                                 President and Founder.

               The State University of New York (SUNY),
                                              Albany, NY 12246,
                                                         July 28, 2015.

    Hon. Lamar Alexander, Chairman,
    Health, Education, Labor, and Pensions (HELP) Committee,
    U.S. Senate,
    Washington, DC 20510.

    Hon. Patty Murray, Ranking Member,
    Health, Education, Labor, and Pensions (HELP) Committee,
    U.S. Senate,
    Washington, DC 20510.

    Re:  Reauthorizing the Higher Education Act: Combating Campus Sexual
    Assault

        Dear Chairman Alexander, Ranking Member Murray, and members of the
    committee: On behalf of The State University of New York (SUNY), we
    thank the committee for convening this important hearing on campus
    sexual assault and efforts to ensure student safety as part of
    reauthorization of the Higher Education Act.
        SUNY is the Nation's largest comprehensive public university
    system, with nearly half a million students at 64 institutions
    including community colleges, technology colleges, comprehensive
    colleges, and doctoral degree granting institutions. Indeed, SUNY is a
    microcosm of the national higher education sector. As such, our
    testimony is developed from extensive experience with the opportunities
    and challenges inherent in creating policies that both fit the needs of
    diverse institutions and support important systemwide objectives. SUNY
    has a long and unwavering commitment to ensuring student safety and we
    strongly support Senator Kirsten Gillibrand and your colleagues'
    efforts to make this issue a national priority just as we have done in
    New York State. We were proud to stand up as the first university
    system in support of the Campus Accountability and Safety Act, which
    takes a bold step toward improving the prevention of and response to
    sexual and interpersonal violence at all institutions of higher
    education.
          suny's leadership in sexual violence prevention and response
        In October 2014, the SUNY Board of Trustees passed a resolution\1\
    at Governor Andrew M. Cuomo's urging to:
    ---------------------------------------------------------------------------
        \1\ http://www.suny.edu/media/suny/content-assets/documents/
    boardoftrustees/memos/Sexual-Assault-Response-Prevention-REVISED.pdf.

            ``establish a comprehensive, systemwide, uniform set of sexual
            assault prevention and response practices at SUNY campuses,
            which can be a model for colleges and universities across the
    ---------------------------------------------------------------------------
            State and the Nation.''

        We convened a working group comprised of campus presidents,
    counsels, student life leadership, title IX coordinators, University
    police and public safety representatives, students, faculty, and
    nationally recognized external experts.
        As of January 2015, we are proud to share that SUNY indeed has a
    set of comprehensive, systemwide policies to prevent and respond to
    sexual violence on our campuses. SUNY's Sexual Violence Prevention
    Workgroup built on the best practices of campuses both across the SUNY
    system and the Nation to create policies that are adaptable to each
    unique institution while ensuring consistent standards. Starting this
    fall, all students, faculty, and staff will be trained on these
    cutting-edge policies. Our hard work received the ultimate
    acknowledgement when Governor Cuomo and the New York State legislature
    passed a law\2\ making SUNY's work the backbone of statewide policies
    that will apply to all public and private colleges in the State.
    ---------------------------------------------------------------------------
        \2\ http://open.nysenate.gov/legislation/api/1.0/pdf/bill/S5965-
    2015.
    ---------------------------------------------------------------------------
        SUNY is committed to training our campus professionals on the most
    up-to-date standards and requirements of the Violence Against Women Act
    (VAWA) amendments to the Clery Act. Over the years, the work of our
    Office of General Counsel and campus professionals have gained us a
    reputation as a national leader in developing guidance on compliance.
    Some recent examples of the impact of SUNY's work in this area include:

         In July 2014, we shared guidance\3\ in reaction to
    Department of Education regulations regarding the VAWA which has been
    downloaded more than 25,000 times by institutions across the country.
    ---------------------------------------------------------------------------
        \3\ http://system.suny.edu/media/suny/content-assets/documents/
    generalcounsel/SUNY-VAWA-Guidance-2014.pdf.
    ---------------------------------------------------------------------------
         In October 2014, SUNY's international education
    professionals unanimously passed a uniform procedure on Clery Act and
    title IX compliance on study abroad,\4\ which has since been adopted by
    other institutions.
    ---------------------------------------------------------------------------
        \4\ http://system.suny.edu/media/suny/content-assets/documents/
    compliance/international/SUNY-Clery-Policy-for-Council-on-
    International-Programs-FINAL.pdf.
    ---------------------------------------------------------------------------
         VAWA regulations require colleges to provide victims with,
    among other things, ``visa and immigration assistance.'' While many who
    study or conduct research in the United States understand English well,
    during a time of trauma and stress, they will benefit from a document
    that is both available in their native language and customized to the
    resources available on campus and in the community. In response, SUNY
    Counsel worked with immigration attorneys to develop a 2-page, plain-
    language explanation of visa and immigration resources for students,
    translated into their native languages.\5\
    ---------------------------------------------------------------------------
        \5\ http://www.suny.edu/violence-response/Visa-and-Immigration-
    Resource/.

        SUNY is not only committed to compliance with State and Federal
    requirements, but we also have implemented policies that go beyond what
    is included in statute to better serve our students and ensure safe
    ---------------------------------------------------------------------------
    communities:

         SUNY campuses use a transcript notation for suspension,
    expulsion, or withdrawal with charges pending to students found
    responsible for violence after a standard disciplinary process. Thanks
    to SUNY's advocacy, a provision for transcript notations was included
    in New York's recent legislation and will be applied at all
    institutions of higher education in the State.
         We know that one of the most important factors in reducing
    instances of sexual violence is a change in culture. That is why our
    uniform policies address extensive prevention and education efforts on
    our campuses, rather than simply guidelines for responding to
    violations when they occur. Pursuant to VAWA, colleges are required to
    conduct a campaign throughout the course of the year to educate
    students about sexual violence. In addition, under SUNY policy and now
    New York law, all student-athletes and student leaders must complete
    mandatory training prior to competing in intercollegiate athletics or
    having their organization recognized. We believe that educating student
    leaders will empower them to model positive behavior for their
    organizations and the many students they reach as an important step
    toward changing campus culture.

        We encourage the committee to consider amendments that would add
    measures addressing transcript notations, year-round awareness
    campaigns, and targeted student leader and athlete training to the
    Campus Accountability and Safety Act.
      suny's response to top provisions of the campus accountability and
                               safety act (casa)
        1. Victim-centered approach: We strongly support CASA's inclusion
    of language consistent with VAWA, that gives the victim/survivor
    control to decide whether to go to law enforcement, and, if the victim/
    survivor wishes, the institution will assist in reporting. SUNY's
    uniform policies reflect a victim-centered approach to the prevention
    and response of sexual violence, part of which is a response policy
    with information and resources easy accessible on the web.
        2. Uniform enforcement of campus disciplinary proceedings: We know
    from experience that separate disciplinary processes are inherently
    unequal. SUNY campuses apply the same student code of conduct,
    including the campus disciplinary procedures, to all students. We
    strongly support the uniform application of standards across all
    institutions.
        3. Amnesty policy: SUNY's uniform policy for bystanders and
    victims/survivors reporting sexual violence to receive amnesty from
    drug and alcohol use penalties\6\ served as the model for New York's
    legislation governing all colleges and can serve as a national model
    for plain language amnesty. We support the inclusion of amnesty
    policies in CASA.
    ---------------------------------------------------------------------------
        \6\ See Section 6442, http://open.nysenate.gov/legislation/api/1.0/
    pdf/bill/S5965-2015.
    ---------------------------------------------------------------------------
        4. Campus Climate Surveys: As required by our systemwide policy and
    State law, SUNY will administer a uniform climate survey to nearly half
    a million students in the 2016-17 academic year, the largest university
    survey to date. CASA's requirement that the Department of Education
    create and administer a survey will ease a significant administrative
    and cost burden on institutions and allow for uniform application and
    comparability of results.
        5. Title IX Coordinator (TIXC) as a designated Campus Security
    Authority (CSA): SUNY has consistently advised that the TIXC is a CSA
    in that they have significant responsibility for student and campus
    activities and we believe this should be consistent at all colleges. In
    CASA, the definition of ``responsible employee'' (RE) conflicts with
    Office of Civil Rights guidance, which indicates that a RE is anyone
    whom a student reasonably believes has the authority to redress
    complaints. We are concerned that the use of the terms CSA and RE will
    lead to confusion and underreporting among victims/survivors. We
    recommend replacing these terms with the commonly understood ``mandated
    reporter,'' which clearly covers individuals employed by the
    institution with appropriate exclusions for counselors and advocates.
                   recommendations for clarification in casa
        1. Reporting student disciplinary proceedings closed without
    resolution: This section of CASA represents a departure from Clery Act
    crime reporting, as it is not aligned with Clery reporting geography.
    We support transparency and are proud of SUNY's record in this area. We
    recommend that the committee consider New York State's legislation\7\
    for a similar but clearer reporting regime.
    ---------------------------------------------------------------------------
        \7\ See Section 6449, http://open.nysenate.gov/legislation/api/1.0/
    pdf/bill/S5965-2015.
    ---------------------------------------------------------------------------
        2. Changing the statute of limitations to 180 days after graduation
    or separation: Many students take 6 or more years to graduate, enroll
    in successive degree programs at a single institution, or are in
    doctoral programs for a significant length of time. Put simply,
    students may be affiliated with an institution for more than a decade.
    We support the motivation to give victims/survivors more time to come
    forward, but an open-ended timeframe could lead to documents destroyed
    pursuant to records management schedules, witnesses who graduate,
    retire, or pass away, and less reliable memories. Our recommendation
    would be to cap the time allotted to 180 days after the date of
    graduation or disaffiliation with the institution and no more than 3
    years after the date of the last incident.
                                   conclusion
        SUNY hears--and actively embraces--the national call for providing
    the best tools, resources, and services to protect students from sexual
    violence and support them in the event that an incident occurs. We
    must, in short, get down to the business of making our campuses safer
    while ensuring more accountability and transparency.
        SUNY has been privileged to work with Senator Gillibrand, her
    colleagues in the Senate, and members of the New York Delegation as
    well as our partners in State government on this issue, and we look
    forward to continuing to be a part of this important dialog. We would
    encourage the committee to reach out to us directly if we may be of
    assistance or can provide additional details based on our experience.
                Respectfully,
                                              Nancy L. Zimpher,
                                                            Chancellor,
                                      The State University of New York.

                                                H. Carl McCall,
                                                              Chairman,
                                                SUNY Board of Trustees.

                                          Zen Men, LLC,
                                                 July 28, 2015.
    Hon. Lamar Alexander, Chairman,
    Hon. Patty Murray, Ranking Member,
    Committee on Health, Education, Labor, and Pensions,
    428 Senate Dirksen Office Building,
    Washington, DC 20510.

    Re:  Senate HELP Committee Hearing on ``Reauthorizing the Higher
    Education Act: Combating Campus Sexual Assault''

        Dear Senator Alexander and Senator Murray: In any sustainable
    system, every expansion of control must correspond with an expansion of
    accountability. The Campus Accountability and Safety Act (CASA; S.
    590), is an example of legislation that grants to universities some
    powers comparable to that of criminal courts, but without the
    responsibilities one expects from a functional judicial system. These
    powers execute on receipt of an allegation of sexual assault, sans
    proof beyond a reasonable doubt that such an assault occurred.
        Any gender- or sex-neutral language in S. 590, while appreciated,
    is currently not enforceable because of the perceptual imbalances our
    culture has between male and female students, which justifies further
    checks and balances consistent with constitutional amendments IV
    through VIII. Failure to extend proportional protections to accused
    parties in criminal allegations--partially processed by University
    faculty and staff--has resulted in the unwarranted expulsion,
    suspension, slander, or libel of young male students. At the time of
    this writing, A Voice for Male Students documents 75 cases showing due
    process violations enabled by Universities acting as flexible proxies
    to a frighteningly punitive criminal court system, and that number is
    growing.
        As a male student who is still struggling to shake off the effects
    of allegations long declared unfounded by Kennesaw State University, I
    feel deeply frightened and unsafe under CASA. In response to its
    proposition, Zen Men, LLC will educate male students on how to assert
    their rights and therefore resist the biases behind the legislation.
        It is my hope that any HELP committee representative reading this
    testimony places themselves in the shoes of one accused of sexual
    assault without a shred of evidence to support such a devastating
    charge. Picture, as a falsely accused student, your attempt to function
    while attending a University that is ready to brand you as a rapist and
    issue punitive discipline regardless of the evidence.
        Speaking as one of your sons trying to build a future, I ask that
    you oppose CASA and reflect on providing fair treatment and respect for
    both the accuser and the accused. I thank you and all involved Senators
    for hearing this side of the issue.
                Sincerely,
                                                   Sage Gerard,
                                                  Founder, Zen Men LLC.
                                     ______

        Response by Janet Napolitano to Questions of Senator Alexander,
                    Senator Murkowski and Senator Whitehouse
                               senator alexander
        Question 1. Do you have specific suggestions about how Title IX and
    the Clery Act, including their implementing regulations and guidance,
    can be improved and/or clarified to provide institutions of higher
    education the flexibility they need?
        Are there areas where these laws, regulations, or guidance
    conflict?
        Are there areas where they are duplicative?
        Answer 1. Existing rules and regulations--including those in place
    through the Higher Education Act (Clery Act and Title IX), the Violence
    Against Women Act and the Department of Education's Office of Civil
    Rights--must be better coordinated and streamlined. The definitions,
    regulations, program guidance, timelines, and other programmatic
    components are not aligned and result in duplicative efforts around
    investigations, confusing interpretations, and contradictory guidance.
        Here are a few examples where there is overlap that can create
    confusion, conflict, or duplication:

         Both title IX's OCR guidance and Clery cover the issue of
    sexual violence. Under OCR guidance, institutions have an obligation to
    respond to sexual violence involving students wherever it occurs. While
    there is not really any dispute that sexual violence occurring in the
    context of a school's education programs and activities must be
    addressed, OCR guidance also says that off-campus violence has to be
    addressed and the effects on campus or in the school's educational
    program or activity must be considered. Clery only covers sexual
    violence that occurs on ``Clery geography'' (e.g., on campus, on non-
    campus buildings or property, or immediately adjacent public property).
         Because OCR treats sexual violence as a severe form of
    sexual harassment, there is a broad range of conduct that triggers
    title IX requirements and expectations. Clery, on the other hand, has a
    more narrow definition of sexual assault using Federal definitions of
    rape and other sexual assaults.
         There are reporting obligations under both Title IX and
    Clery. Title IX says any responsible employee must report to the school
    any sexual violence incident that they become aware of, and must
    provide all identifying information and details about the incident.
    Clery says that campus security authorities (CSAs) must report Clery-
    countable crimes but, unless they are police or security officers, need
    not provide personally identifiable information. The implications of
    these different coverages of the laws/guidance, definitions and scope
    of the acts covered, and the reporting expectations and requirements
    means that every case of reported sexual assault can create significant
    challenges for the person who learns of the issue in determining what
    is their reporting obligation and to whom (and if they are a
    responsible employee and a CSA, or just a responsible employee but not
    a CSA, or not a responsible employee but just a CSA leads to different
    answers/outcomes)
         Additionally, in VAWA/Campus SaVE, institutions have to
    use State law definitions of domestic violence, dating violence and
    stalking but when reporting crime statistics for Clery they must use
    Federal definitions for counting domestic violence, dating violence and
    stalking reports.
         According to OCR guidance, institutions are expected to
    take all steps to investigate all reports of sexual violence. At the
    same time, institutions are expected to do their very best to honor
    complainants' desire not to have something investigated and to keep it
    confidential. Institutions are told where a complainant wants to
    maintain confidentiality that they should investigate to the best of
    their ability while honoring the complainant's request.
         An institution might be under OCR investigation for title
    IX with a concurrent Clery inquiry by a different branch of the
    Department of Education, meaning different people at the same
    institution are duplicating data collection and response efforts rather
    than coordinating similar information.

        While these are not issues addressed in the CASA legislation, the
    Department of Education could begin--even before Federal legislation is
    enacted--to streamline its internal procedures to better guide
    institutions toward compliance with current laws and regulations. The
    Department should engage other relevant Federal agencies to seek input
    on the development and implementation of guidance to ensure that the
    agencies are in sync and work toward common interpretations of guidance
    in order to prevent contradictions. It would be useful if agencies
    established program guidance, with key criteria and risk areas that
    institutions could use that would be accepted by all applicable
    agencies. For example, the Department of Health and Human Services
    Office of Inspector General provides Compliance Program Guidance for
    the health care industry that provides health care-related entities key
    elements for compliance.
        Clearer guidance as to what should be taken as a suggestion of
    ``best practice'' versus a ``required'' action should also be provided.
    Current ``Dear Colleague Letters, (DCL)'' for example, are unclear upon
    review and can be interpreted in multiple ways. In fact, in some
    States, State auditors are interpreting DCLs, which are sometimes
    unclear, as prevailing law rather than guidance.
        Reporting requirements within the different Federal laws should
    also be better coordinated to ensure that the common definitions and
    mandated processes are not duplicative or contradictory. This is a very
    difficult area for practical application in policies and procedures.
    Confusion exists because reporting obligations under OCR guidance is
    driven by the identity of the victim or perpetrator, while Clery
    reporting is based on where an incident occurs. Individuals may have
    obligations to report under one or both. Additionally, when title IX
    inquiries and reviews are necessary and executed by OCR, there should
    be a timeframe for the reports to be completed and disseminated back to
    the respective institutions. It is not useful to receive a report
    several years later after the review was conducted when the institution
    may already be implementing changes and improvements to their
    processes. UC is still undergoing reviews that were started several
    years ago. Similar sentiment is shared related to the Clery Act audits
    and reviews executed by the Department of Education which again, should
    be required to be reported timely with outcomes.

        Question 2. Do you have suggestions about how institutions of
    higher education can best coordinate with law enforcement without
    turning the institutions into de facto law enforcement agencies?
        Answer 2. While universities have a key role to play in governing
    student conduct, it is important to note that university student
    conduct proceedings are not the same as legal proceedings. Universities
    do not have the same scope of authority to investigate (for instance,
    there is no subpoena power) and there are limits on what discipline can
    be imposed (i.e., a university cannot impose civil or criminal
    sanctions). Given the interplay between student conduct and criminal
    proceedings, however, institutions of higher education and local law
    enforcement must improve communication and coordination on cases in
    their jurisdiction. Lack of clear communication, adequate training and
    designated areas of responsibility can result in disjointed efforts
    between campus officials and police. Enhancing communication and
    coordination between campus officials and local law enforcement is
    needed to better support those reporting sexual assaults.
        To that end, I worked with California Attorney General Kamala
    Harris to develop a new toolkit for California law enforcement agencies
    and higher education institutions to improve collaboration and
    transparency on campus sexual assault prevention and response. This was
    driven, in part, by my belief that these incidents are often criminal
    matters and that all parties involved--universities, police, district
    attorneys, and others--should be coordinated and committed to robustly
    and sensitively addressing these cases. The toolkit includes a model
    memorandum of understanding (MOU) that can be adapted and used by
    California institutions of higher education and local law enforcement
    agencies that have jurisdiction over those institutions. It also
    includes a resource guide explaining the provisions of the MOU and
    relevant laws and policies related to those provisions. This approach
    is one that likely would be useful in other jurisdictions.
        In addition, this type of MOU would help local law enforcement
    leverage the specific knowledge and training that many campus police
    departments have in responding to sexual violence. The University of
    California, like many public university police departments nationwide,
    employs fully sworn law enforcement officers with full arrest powers
    and primary jurisdiction for first-response and law enforcement on
    their campus. UC police officers are trained and certified consistent
    with the California Commission on Peace Officer Standards and Training
    requirements and they investigate incidents of sexual assault and other
    felony and misdemeanor crimes as both first responders and as trained
    and experienced criminal investigators. At UC, our campus police
    departments are also included in our sexual violence and sexual assault
    training and have played an active role in the Task Force's efforts.
    They receive investigation training; trauma-informed training, training
    from the California Commission on Peace Officer Standards and Training,
    and mandated training regarding sexual violence and sexual assault. UC
    is also developing a mandatory 2-hour training for all law enforcement
    which will include emphasis on trauma-
    informed practices related to investigations, memory impairment of
    victims, etc., that could serve as a model for other jurisdictions.

        Question 3. Do you have suggestions about what we can do, or not
    do, to make sure colleges establish procedures dealing with allegations
    of sexual assault that are fair and protect the due process rights of
    the accuser and the accused?
        Answer 3. Universities around the country, including UC, are
    grappling with improving and reforming their adjudication,
    investigation, and sanction processes to ensure equitable treatment and
    a trauma-informed approach for complainants and respondents. The UC
    Task Force on Preventing and Responding to Sexual Violence and Sexual
    Assault (Task Force) is creating a model that establishes strong,
    consistent practices for investigation, adjudication, and sanctions--
    one that is scalable and applicable to our own culture. This model
    provides flexibility to accommodate campuses' unique characteristics,
    while still providing an equitable process for both complainants and
    respondents.
        The University will provide resources for the complainant and
    respondent through the CARE Advocacy Office and Respondent Services
    Coordinators. Complainants will receive support from the CARE Advocacy
    Office and respondents, if they choose, can receive services from the
    respondent services coordinator. Each UC campus has also established a
    Case Management Team for Sexual and Gender-Based Violence and
    Misconduct (CMT) comprised of student conduct, title IX, campus police,
    advocacy and other subject matter experts as needed. The CMT reviews
    all current sexual misconduct cases to ensure that the campus'
    institutional response is trauma-informed; timely communication
    response occurs and adheres to all Federal, State, and policy
    guidelines; and is coordinated among all points of contact for both
    complainants and respondents.
                               senator murkowski
        Question 1. The Campus Accountability and Safety Act (CASA) would
    require an institution to provide a confidential advisor to an assault
    victim. This is intended to provide support and resources to the victim
    in a way that will provide the victim with a sense of safety and
    control, which is laudatory. I am concerned, however, about provisions
    in CASA that specifically state a confidential advisor is not obligated
    to report crimes to the institution and that any requests for
    accommodation the Advisor makes on behalf of a student ``shall not
    trigger an investigation by the institution.'' These provisions seem to
    conflict with institutions' moral and legal obligation under title IX
    to ensure that a campus is safe for all students. Keeping information
    about a crime secret and prohibiting an investigation could lead to an
    increased risk for other students as well as lead to liability for the
    institution should the perpetrator harm additional students. What
    changes do you recommend, to CASA, title IX, or both, to reconcile this
    conflict?
        Answer 1. UC strongly supports CASA's requirement for institutions
    of higher education to designate a confidential advocate that survivors
    can report to anonymously and directly. Confidential resources exist in
    order to provide a safe space for individuals to discuss their options,
    learn about resources, and discuss any concerns before deciding to take
    next steps. Unless there is risk of serious harm to others, a
    confidential advocate cannot share information without the express
    consent of the individual.
        The UC Task Force on Preventing and Responding to Sexual Violence
    and Sexual Assault heard directly from students that having access to a
    confidential, privileged and independent advocate on campus was a top
    priority. This student-driven effort led to the establishment of CARE:
    Advocacy Offices for Sexual and Gender-Based Violence and Misconduct on
    UC campuses. CARE advocates serve as a confidential resource and can
    explain the various reporting options, including law enforcement,
    student conduct, title IX, anonymous reporting, or no reporting. The
    students were also clear that they wanted a ``safe'' resource on campus
    that was easily accessible and would know the available campus
    resources and the potential interim measures on campus that could be
    taken to support the complainant. If the resource were only allowed off
    campus or was forced to be a third party either on or off campus, the
    knowledge of campus operations and access to the resource would
    potentially be limited. The campus culture would also not be as well-
    known, which may not serve the student's best interests.
        While it is ultimately the student's decision whether to report and
    take further action, it is our hope that the assurance of
    confidentiality will encourage more students to come forward and
    ultimately report incidents of sexual misconduct to law enforcement. In
    my view, we actually create a less safe campus environment if students
    do not have the choice to discuss their situation confidentially on
    campus and, consequently choose not to come forward. By providing a
    confidential, independent, and safe space for individuals to seek
    support, we will hopefully increase reporting, which is a key part of
    our effort to address sexual violence and sexual assault on campus and
    increase campus safety.
        I cannot stress enough the importance that these advisors must be
    confidential, privileged and independent. Any legislation must ensure
    that the ``confidentiality'' of services provided by these advisors is
    clearly defined by the institution and shared with students in plain
    language.

        Question 2. Experts consulted by the University of Alaska have
    consistently stated that the best way to get absolutely accurate
    results on a campus survey about sexual assault is to assure absolute
    confidentiality and to prohibit publishing the results. This promotes
    higher response rates and allows the institution to respond to gaps,
    concerns, and problems in campus safety issues. CASA advocates suggest
    that a homogenous survey, the results of which are published, will
    assist the consumer in making educated choices. Data suggests that few
    prospective students, their families, or enrolled students review
    campus crime statistics. Do you agree that the campus surveys should be
    used for institutional improvement of policies and practices rather
    than as a consumer tool? Why or why not? Do you recommend that if
    institutions are required to use a survey developed by the Department
    that individual institutions should be able to delete questions that
    are locally or culturally inappropriate? Should there be two surveys--
    one developed by the Department of Education and used as a consumer
    tool and one developed by an institution and used only to improve
    internal practices and policies?
        Answer 2. The University of California just conducted the largest
    university system climate survey of its kind in the Nation. From the
    fall of 2012 through the spring of 2013, UC took the unprecedented step
    of surveying its faculty and other academic appointees, students,
    staff, trainees, and post-doctoral scholars about their experiences and
    perceptions of campus or workplace climate. More than 386,000
    individuals were invited from the 10 UC campuses, the Lawrence Berkeley
    National Laboratory, the University's Division of Agriculture and
    Natural Resources, and the UC Office of the President to participate in
    this study. We now have a rich baseline of data that campuses are
    analyzing to identify key areas of focus.
        Climate surveys can serve a valuable purpose in providing useful
    data for university administrators to effect change in practice,
    culture, and policies. At UC, in our recent systemwide survey, we
    wanted the data gathered to be an honest reflection and critique of our
    campus cultures. The survey's goal was for internal improvement, not
    consumer marketing. Our staff worked to provide campus-specific
    information that reflected the perceptions of survey respondents yet
    protected their anonymity; this would be difficult if the main purpose
    of the data is for general consumer consumption. UC Berkeley, for
    example, has a committee that meets to discuss the specific results of
    our recent climate survey and how to use the data to affect cultural
    change. I would urge that any climate survey designed or required be
    guided by a goal of quality improvement in campus culture rather than a
    public ranking of campus climates.
        Again, while campus climate surveys can be an effective tool and
    good overall indicator, they cannot be the only tool. Climate surveys
    can be quite an undertaking and very expensive to administer, so I do
    not believe that having two separate surveys would be practical or a
    prudent use of resources. Additionally, if required to be done too
    frequently, surveys may distract from the work being done to directly
    address campus climate issues as well as efforts to measure and track
    outcomes. To be effective, the timing of the surveys must allow for
    thorough analysis of the results and time for institutions to develop
    and implement changes.
        I also have significant concerns about the usefulness of a single
    survey developed for all institutions given the broad diversity in
    higher education institutions across the Nation and the student
    populations they serve. Institutions should be allowed to develop and
    use their own climate surveys, as long as they meet criteria and
    standards defined by the Department of Education, are developed in
    consultation with stakeholders, required periodically and are scalable.

        Question 3. CASA requires that institutions develop Memoranda of
    Understanding with each law enforcement agency that has jurisdiction.
    Many institutions, including public and private institutions, have
    developed significant e-learning opportunities for their students who
    may never attend classes on campus. This CASA requirement is viewed by
    those institutions, therefore, as fatally vague and unworkable. Do you
    agree, if so, do you have suggestions for addressing this concern?
        Answer 3. This is not a significant concern for UC, but the
    question raises just one of the many complications for non-traditional
    educational institutions. Title IX and VAWA cover all educational
    institutions, and even on-line entities that have brick and mortar
    locations have Clery reporting responsibilities, so this type of
    requirement could be unmanageable due to jurisdictional boundaries.
    MOUs with law enforcement agencies would be difficult if there is no
    ``campus'' (and no campus police) and there numerous potential local
    law enforcement agencies.
        To the extent that new laws or regulations lead ``campuses'' to
    improve services to complainants, or that existing laws are streamlined
    to reduce confusion and eliminate duplication, there is potential
    benefit for all institutions, including on-line providers, in
    navigating the complex set of issues they face in preventing,
    responding to, and reporting incidents of sexual violence and sexual
    assault.

        Question 4. Several witnesses spoke to the complexity of compliance
    with Clery and Title IX. Adoption of the CASA provisions would add
    additional requirements and complexity. Looking at the issue of campus
    safety as a whole, would you recommend that the committee completely
    re-write institutional responsibilities across Clery, Title IX, VAWA,
    and CASA in order to reduce complexity, increase crime reporting and
    transparency, and provide for the rights of all students to a safe
    campus on which to gain an education? If so, what specific suggestions
    do you have for the committee?
        Answer 4. Much more needs to be done to clarify, streamline and
    improve the coordination of existing laws and policies. Within the
    Department of Education, the Clery Act, Title IX, VAWA, and OCR
    investigations use different definitions, coverage, and reporting
    requirements, and there is no coordination of investigations between
    the Federal Government and individual States. In addition to the fact
    there is also significant confusion about what is ``recommended'' or
    ``preferred'', there are legal and financial implications to the lack
    of regulatory coordination.

        Question 5. I have received concerns from students who have been
    accused of sexual assault on campus and their parents. They tell me
    their rights to a fair hearing were not respected. Complaints included
    that as the accused, they were not informed of their rights under the
    institution's hearing policies, that the victim was provided more
    robust counsel by the university, and that they were denied the right
    to question their accuser and witnesses. CASA requires institutions to
    provide certain information about process to both the victim and the
    accused but leaves to the institution to follow their own policies for
    conducting investigations and hearings. Can this section be improved?
    Should the committee mandate that institutions follow basic policies
    and procedures? If so, please provide specific suggestions.
        Universities around the country, including UC, are grappling with
    improving and reforming their adjudication, investigation, and sanction
    processes to ensure equitable treatment and a trauma-informed approach
    for both complainants and respondents. The UC Task Force on Preventing
    and Responding to Sexual Violence and Sexual Assault (Task Force) is
    creating a model that is scalable and applicable to our own culture.
    This model provides flexibility to accommodate a campus's unique
    characteristics, while still providing an equitable process for both
    complainants and respondents. The University will provide equitable
    resources for the complainant and respondent through the CARE Advocacy
    Office and Respondent Services Coordinators. Complainants will receive
    support from the CARE Advocacy Office and respondents, if they choose,
    can receive services from the Respondent Services Coordinator.
        While UC supports Federal proposals to help all institutions of
    higher education navigate the complex set of issues they face in
    preventing, responding to, and reporting incidents of sexual violence
    and sexual assault, a one-size-fits-all approach will not be effective
    in addressing the problems we face. Federal legislation must be
    flexible enough to allow for institutional differences, yet strong
    enough to ensure full accountability. Additionally, any new laws or
    regulations must not ``undo'' or contravene programs and policies
    institutions have implemented that are based on evidence informed
    research and represent best practices for action.
        The impact on available resources should also be considered in
    every decision with a focus on transparency, accountability, campus
    safety, and efficiency, avoiding duplication and redundancy. UC also
    supports broader coordination and accountability among other partners
    in this endeavor, such as prosecutors and the courts.
                               senator whitehouse
        Question 1. In the context of campus sexual assault, campus
    investigations and law enforcement investigations can sometimes work at
    cross purposes. How can we disentangle the campus and law enforcement
    investigations so that one does not impede the other?
        Answer 1. Lack of clear communication, adequate training and
    designated areas of responsibility can result in disjointed efforts
    between campus officials and police. It is important to clarify the
    roles for campus police and their local law enforcement counterparts to
    ensure the effective investigation and prosecution of criminal behavior
    and avoid jurisdictional confusion or miscommunication--particularly
    when there is concurrent jurisdiction. Enhancing communication and
    coordination between campus officials and local law enforcement is
    certainly needed to better support those reporting sexual assaults.
        To that end, I worked with California Attorney General Kamala
    Harris to develop a toolkit for California law enforcement agencies and
    higher education institutions to improve collaboration and transparency
    on campus sexual assault prevention and response. The toolkit includes
    a model memorandum of understanding (MOU) that can be adapted and used
    by California institutions of higher education and local law
    enforcement agencies that have jurisdiction over those institutions. It
    also includes a resource guide explaining the provisions of the MOU and
    relevant laws and policies related to those provisions. This approach
    is one that likely would be useful in other jurisdictions.
        Each UC campus is established a Case Management Team for Sexual and
    Gender-Based Violence and Misconduct (CMT) comprised of student
    conduct, title IX, campus police, advocacy and other subject matter
    experts as needed. The CMT reviews all current sexual misconduct cases
    to ensure that the campus' institutional response is trauma-informed;
    timely communication response occurs and adheres to all Federal, State,
    and policy guidelines; and is coordinated among all points of contact
    for both complainants and respondents. This could similarly serve as a
    model for other institutions.

        Question 2. In the context of domestic violence, law enforcement
    officers have become better qualified to address the needs of victims
    by drawing on the expertise of advocacy groups and experts. How can we
    best support the law enforcement community so that officers are
    similarly well-trained to assist survivors of campus sexual assault?
        Answer 2. It will be critical to improve communication between
    campus police and local law enforcement and leverage the specific
    knowledge and training that the campus police have in responding to
    sexual violence. The University of California, like many university
    police departments nationwide, employs fully sworn law enforcement
    officers with full arrest powers and primary jurisdiction for first-
    response and law enforcement on their campus. UC police officers are
    trained and certified consistent with the California Commission on
    Peace Officer Standards and Training requirements and they investigate
    incidents of sexual assault and other felony and misdemeanor crimes as
    both first responders and as trained and experienced criminal
    investigators. At UC, our campus police departments are also included
    in our sexual violence and sexual assault training and have played an
    active role in the Task Force's efforts. They receive investigation
    training, trauma-informed training, training from the California
    Commission on Peace Officer Standards and Training, and mandated
    training regarding sexual violence and sexual assault. UC is also
    developing a mandatory 2-hour training for all law enforcement which
    will include emphasis on trauma-informed practices related to
    investigations, memory impairment of victims, etc., that could serve as
    a model for other jurisdictions.

        Question 3. Many survivors fear that they may lose control over
    campus sexual assault proceedings if law enforcement gets involved
    early. What can we do to inform students about the course of a law
    enforcement investigation, so they can make an informed choice about
    how to proceed?
        Answer 3. The UC Task Force on Preventing and Responding to Sexual
    Violence and Sexual Assault heard directly from students that having
    access to a confidential, privileged and independent advocate on campus
    was as top priority. This led to the establishment of CARE: Advocacy
    Offices for Sexual and Gender-Based Violence and Misconduct on UC
    campuses, which could serve as a model for other institutions. These
    CARE advocates serve as a confidential resource and provide a safe
    space for individuals to discuss their options, learn about resources,
    and discuss any concerns before deciding to take next steps. The
    Advocate may explain the various reporting options, including law
    enforcement, student conduct, title IX, anonymous reporting, or no
    reporting. Increasing communication and setting expectations are key to
    helping individuals make an informed choice about how they wish to
    proceed.

        Question 4. Absent the concern of loss of control (perceived or
    otherwise) by the survivor, are there reasons that experienced, trauma-
    informed, sensitive, effective law enforcement should not be involved
    at early stages of an investigation?
        Answer 4. Incidents of sexual violence and sexual assault are
    criminal matters that should involve law enforcement, but OCR guidance
    emphasizes that it is ultimately the student's decision whether to
    report an incident to police, title IX, or both. UC provides access to
    a confidential, privileged and independent CARE advocate on campus that
    serves as a resource to help the student make an informed choice about
    how they wish to proceed. Our hope is that the assurance of
    confidentiality will encourage more students to come forward, seek
    support, and ultimately report incidents of sexual misconduct to law
    enforcement. One area of focus should be building more trust and
    confidence in the law enforcement system to increase reporting.
          Response by Dana Bolger to Questions of Senator Alexander,
     Senator Hatch, Senator Murkowski, Senator Whitehouse and Senator Casey
                               senator alexander
        Question 1. Do you have specific suggestions about how Title IX and
    the Clery Act, including their implementing regulations and guidance,
    can be improved and/or clarified to provide institutions of higher
    education the flexibility they need?
        Answer 1. First, Title IX, the Clery Act, and Federal guidance
    already provide sufficient flexibility for schools to adapt policies,
    programming, and procedures to the unique needs of their campus
    communities. For example, in its 2014 ``Questions and Answers on Title
    IX and Sexual Violence'' document, the Department of Education's Office
    for Civil Rights (OCR) explains, ``A school's procedures and practices
    will vary in detail, specificity, and components, reflecting
    differences in the age of its students, school size and administrative
    structure, State or local legal requirements (e.g., mandatory reporting
    requirements for schools working with minors), and what it has learned
    from past experiences.''\1\ Moreover, the Federal Government has
    compiled a library of model policies on its NotAlone.gov website for
    schools to adopt and adapt to their needs. These resources carefully
    avoid prescribing a one-size-fits-all framework for schools in the
    interest of preserving appropriate flexibility in institutional
    responses.
    ---------------------------------------------------------------------------
        \1\ Department of Education Office for Civil Rights. (2014).
    Questions and Answers on Title IX and Sexual Violence. Retrieved from
    http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
    ---------------------------------------------------------------------------
        Second, it is absolutely critical that Congress recognize that what
    students need--in the face of widespread institutional mistreatment and
    civil rights violations--is more support from the Federal Government in
    holding these institutions to a higher standard, rather than an
    approach that grants schools even more latitude than they have already
    enjoyed. Indeed, OCR, the Federal agency tasked with enforcing title
    IX, has never once levied a sanction against a college for sexual
    violence-related title IX violations, despite numerous findings of non-
    compliance. Because OCR believes it lacks the authority to levy fines
    against noncompliant schools, the agency relies upon the empty threat
    of revoking all Federal funding to motivate schools to follow the law.
    Congress should provide OCR with more meaningful tools to hold schools
    accountable. Authorizing OCR to levy fines would provide the agency
    with the increased leverage necessary to hold schools accountable--
    thereby supporting student survivors--without devastating critical
    student programming, aid, and research funding in the process. In order
    to support schools in implementing regulations and guidance, and to
    bolster OCR's enforcement tools, Congress should increase
    appropriations to the OCR and the Department of Justice's Office on
    Violence Against Women. Increased funding will expand the technical
    assistance and training that these Federal offices can provide to
    schools to implement guidelines correctly and to ensure that their
    recommendations are adhered to.
        Finally, Federal law and guidance require the bare minimum that
    schools must do in order to keep campuses safe and ensure educational
    equity--but the very best colleges and universities exceed these
    requirements, providing many more protections, programming, and
    services than those explicitly required by law. In this way, colleges
    and universities enjoy significant flexibility to develop services
    uniquely tailored to the needs of their student populations. All
    schools can and should be encouraged to exceed these bare minimum legal
    requirements, drawing on all the creativity, talent, and research
    capacity that they, as educational institutions, have uniquely at their
    disposal.

        Question 2. Do you have suggestions about how institutions of
    higher education can best coordinate with law enforcement without
    turning the institutions into de facto law enforcement agencies?
        Answer 2. It is essential to recognize, as Senator Alexander does,
    the critical differences between school disciplinary processes and
    criminal justice proceedings: namely, schools are responsible for
    protecting students' civil rights to education, while the criminal
    justice system is tasked with responding to crimes. In order to ensure
    the realization of these distinct aims, colleges should take several
    steps.
        First, in order to encourage survivors to come forward, schools
    should ensure that any information about specific misconduct cases is
    shared with law enforcement only with the full, informed consent of the
    survivor involved in the case. Schools should create procedures for
    administrators to obtain consent from survivors and should train these
    officials in trauma-informed methods.
        Second, institutions of higher education and local law enforcement
    should coordinate so that, if a victim chooses to contact the police, a
    dedicated SVU unit or trained, trauma-sensitive officer is available to
    respond, rather than a regular patrol officer.
        Third, schools should provide an option for a victim's initial
    statement to be shared at initial report or at anytime after--per the
    victim's consent--with local law enforcement, so that survivors are not
    asked to retell their traumatizing experience over and over again.
        Fourth, schools should pay for transportation to hospitals with a
    SANE nurse on staff, in order to increase survivors' access to forensic
    evidence collection authorities. Evidence preservation helps maintain
    survivors' options to press charges at a later date if they so choose.
        Finally, schools should ensure survivors do not incur academic or
    other penalties for classes missed while securing a civil protection
    order, cooperating in a criminal investigation, or obtaining necessary
    medical or legal services.
        In contrast to the above solutions, proposed congressional
    legislation like the Safe Campus Act and other similar mandatory police
    referral bills would imperil our shared goals of campus safety and
    educational equity. These bills would prevent colleges from
    investigating sexual misconduct unless the victim proceeds through a
    criminal process, creating a needless and dangerous barrier to
    reporting. They would ultimately make campuses less safe then they
    currently are.
        Survivors choose to report to campus officials but not to law
    enforcement for a number of reasons. The conviction rate in cases of
    sexual assault is extremely low,\2\ many States maintain antiquated and
    dangerous use-of-force requirements in statutory definitions of rape
    and sexual assault, and law enforcement officials are too often
    untrained, insensitive, and quick to place blame on survivors
    themselves for their assaults. Survivors are often hesitant to
    participate in a protracted, public process when they have little
    reason to believe they will see justice served. Further, male victims
    often do not report to police because their States do not recognize
    them as victims of rape at all, or do not recognize women as
    perpetrators; meanwhile, schools are required to address gender-based
    violence against students of any gender identity. Undocumented student
    survivors often do not report to police because they fear deportation;
    meanwhile, they can secure support from their schools without such a
    threat. Many students of color, who experience police violence at
    disproportionate rates, do not report to police because they fear
    criminalization or other violence from law enforcement. In sum, victims
    overwhelmingly say that, were they required to disclose their rapes to
    police in order to secure justice on campus, they would tell no one--
    including college officials--at all.\3\
    ---------------------------------------------------------------------------
        \2\ Lonsway, K. A., & Archaumbault, J. (2012). The ``Justice Gap''
    for Sexual Assault Cases. Violence Against Women, 18(2), 145-68.
        \3\ Know Your IX & National Alliance to End Sexual Violence.
    (2015). Ask Survivors Survey Results. Retrieved from http://
    knowyourix.org/ask-survivors/.
    ---------------------------------------------------------------------------
        Barring colleges from investigating sexual assaults, as the Safe
    Campus Act does, would create a disturbing double standard in which a
    school can expel a student for plagiarism or physical assault, but not
    for rape. By prescribing how a college can and cannot determine
    membership in its campus community, the Safe Campus Act would both
    infringe on universities' autonomy and create a chilling effect on
    survivors who might otherwise come forward--thereby interfering with a
    school's right (and responsibility) to create and maintain a safe
    campus.

        Question 3. Do you have suggestions about what we can do, or not
    do, to make sure colleges establish procedures dealing with allegations
    of sexual assault that are fair and protect the due process rights of
    the accuser and the accused?
        Answer 3. Know Your IX approaches this issue out of concern for all
    student victims who have been betrayed and overlooked by their
    universities, and deprived of the chance to learn and thrive by
    administrative inaction in the face of assault, harassment, and abuse.
    We recognize that--now that schools have finally turned their attention
    to violence on campus--we are collectively tasked with answering the
    hard questions about how disciplinary procedures should work, given the
    particular challenges and opportunities of the campus context. We know
    firsthand that the success of these procedures will depend on their
    fairness to all parties involved.
        As students whose educational opportunities have been imperiled and
    limited by violence, we understand too well the harm of unjust
    deprivations of the right to learn. We have called on college and
    university presidents to ensure procedural rights for both parties, the
    accused and the victim.\4\ These rights are already permitted or
    required by the Department of Education's guidance, and we affirm the
    Department's responsibility to ensure their protection in practice.
    Procedural rights should include:
    ---------------------------------------------------------------------------
        \4\ Know Your IX. (2015). Letter to University Presidents on Fair
    Process. Retrieved from http://knowyourix.org/fair-process/.

         The right to timely and clear notice in writing of the
    allegations, parties' rights and responsibilities (under both school
    policy and law), procedural updates, and the final determination;
         The right to review all materials used in the
    investigation and hearing with adequate time to consider and respond;
         The right to guidance from a trained advocate during the
    investigation and hearing process;
         The right to submit evidence and recommend witnesses and
    questions for the other party to decisionmakers, and the right to
    notification and explanation if these recommendations are declined;
         The right to be heard by neutral decisionmakers with
    professional expertise;
         The right to a safe and sensitive investigation and
    hearing;
         The right not to self-incriminate if criminal charges are
    possible or pending;
         The right to an explanation in writing for the final
    decision;
         The right to fair and proportionate sanctions; and
         The right to internal administrative appeal heard by a
    panel.

        These rights and protections ensure our mutual goals of student
    safety and educational equity for all students.
                                 senator hatch
        Question 1. We have heard from several community colleges in Utah
    regarding the ``confidential advisor'' aspect of the CASA bill. They
    are concerned about the undue burden that might arise by tying the
    number of advisors to the number of students. On average, non-
    residential campuses, like community colleges, have fewer incidents of
    sexual assault cases reported than residential campuses. Because the
    numbers of incidents vary based on the type of institution, should we
    tie the number of advisers for a campus based on the number of
    incidents reported, rather than student body?
        Answer 1. Know Your IX believes that tying the number of advisers
    to the number of incidents reported, rather than the size of the
    student body, is a harmful approach. Sexual assault is an extremely
    underreported crime: research indicates that only 12 percent of student
    survivors report their assault to law enforcement, and reporting to
    campus officials is similarly low.\5\ A central purpose of the
    confidential advisor role is to provide information and support to the
    vast majority of survivors who need time to decide whether or not to
    come forward, or who may not want to file a complaint at all. Tying the
    number of confidential advisors to the number of reported incidents
    would grossly underestimate the scope of student need.
    ---------------------------------------------------------------------------
        \5\ Kilpatrick, D. G., Resnick, H. S., Ruggiero, K. J., Conoscenti,
    L. M., & McCauley, J. (2007). Drug facilitated, incapacitated, and
    forcible rape: A national study (NCJ 219181). Charleston, SC: Medical
    University of South Carolina, National Crime Victims Research &
    Treatment Center.
    ---------------------------------------------------------------------------
        Moreover, the number of reported incidents does not reliably
    indicate the actual safety of a school or the need for survivor
    advocates. When schools implement new educational programs or improve
    their campus policies, they often see an uptick in the number of
    reports, because more students understand how to report and feel
    confident in the process. Tying the number of advisors to the number of
    incidents reported would consequently result in a dangerous cycle: the
    schools where survivors feel the least comfortable reporting would also
    have the fewest number of advisors, making it even more difficult for
    schools to properly handle cases and further deterring reporting.
        To provide sufficient resources to the many students who experience
    violence on campuses, including those who do not report, the number of
    confidential advisors should remain proportional to the student
    population; the financial impact is an essential cost of protecting
    students, much like the salaries of campus safety officers. An
    alternative suggestion for mitigating the costs associated with these
    positions would be to increase the authorization levels of the Campus
    Grant program within the Violence Against Women Act, which could be
    used to fund additional staff support positions. Additionally, schools
    should partner with a local rape crisis center to supplement services,
    especially on weekends and late nights when campus resources may be
    closed. As rape crisis centers are already underfunded, Congress should
    act to fully fund the Family Violence Prevention and Services Act
    (FVPSA) to ensure that rape crisis centers can handle an increased
    number of clients; schools should similarly provide financial support
    to rape crisis centers if their students use their services.

        Question 2. There is a clear conflict of interest inherent in the
    confidential advisor role, since that person is employed by an
    institution of higher education and has certain reporting
    responsibilities under the Clery Act, as Senator Collins has pointed
    out. I would be interested in learning if there were other, non-
    affiliated resources available to students that may more appropriately
    play a confidential and/or counseling role, and if this would be a
    suitable use for funds generated by the fines.
        Answer 2. As survivors, Know Your IX strongly supports victims'
    ability to disclose violence and access accommodations confidentially.
    Ensuring confidentiality is crucial to encourage students to come
    forward, seek support services, and explore their legal options. We
    also believe that the confidential advisor should be required to report
    non-identifying aggregate data under the Clery Act and that such a
    reporting obligation will not compromise victims' confidentiality or
    discourage victims from approaching the advisor. In order to further
    protect survivors' disclosures, Congress should ensure that
    confidential advisors cannot be subpoenaed. (Please see page 8 of this
    document for continued discussion of the confidential advisor role and
    conflict of interest concerns in our response to Senator Murkowski's
    Question #1.)
        Local rape crisis centers (RCCs) can play a vital role in providing
    support to student survivors while minimizing conflicts of interest:
    RCCs can offer 24/7 counseling services, referrals to service
    providers, urgent information about preserving evidence and making
    criminal reports, and long-term guidance on legal options. Forming a
    partnership or drafting a memorandum of understanding (MOU) with a
    local RCC is one way schools can ensure students have access to
    immediate, confidential, and free support after an assault.
        However, there are drawbacks to relying on rape crisis centers.
    RCCs are severely underfunded, and may be located far from particular
    campuses, such that students may be unable or uncomfortable leaving
    campus to obtain services. While RCCs can provide valuable counseling
    services and help survivors navigate the criminal justice system, they
    often lack the expertise to advise students on campus-specific options,
    which can vary widely between schools and require specific knowledge of
    title IX, civil standards of evidence, and internal policies and
    procedures of specific campus offices.
        Therefore, if schools choose to rely on RCCs for confidential
    advocate services, they should help sustain them financially, provide
    RCCs detailed information about their campus disciplinary procedures
    and process, and house the RCC advocate, at least part time, on campus.
        Moreover, Congress should consider using funds generated by title
    IX fines to expand the Legal Assistance for Victims program within the
    Violence Against Women Act by adding and funding a specific purpose
    area for campus sexual assault. Academic research has demonstrated that
    rape survivors struggle to access civil legal assistance; in the campus
    context, survivors are asked to serve as their own advocates at the
    same time as they are trying to access their education. For survivors
    with disabilities in particular, this state of affairs can be
    unsustainable. In this vein, the Department of Justice's Office of
    Violence Against Women has solicited proposals to provide legal
    assistance to campus survivors, but these efforts are undermined by the
    heavy demand for legal services and lack of funding. Providing legal
    support to survivors would mitigate the potential conflict of interest
    in the role of the confidential advisor, decrease the ability of
    schools to commit abuses with impunity (consequently decreasing the
    need for OCR intervention), and promote survivors' access to the
    accommodations they need to stay in school.

        Question 3. Some non-residential and online institutions in Utah
    have expressed a concern about the practicality of the 24 hours notice,
    as stated in the CASA bill. I am interested to know how feasible this
    timeline is, and if there is a more practicable timeline?
        Answer 3. Know Your IX believes the 24-hour notice timeline is
    reasonable, given the timely nature of cases of gender-based violence
    and the availability of digital notification tools.
                               senator murkowski
        Question 1. The Campus Accountability and Safety Act (CASA) would
    require an institution to provide a confidential advisor to an assault
    victim. This is intended to provide support and resources to the victim
    in a way that will provide the victim with a sense of safety and
    control, which is laudatory. I am concerned, however, about provisions
    in CASA that specifically state a confidential advisor is not obligated
    to report crimes to the institution and that any requests for
    accommodation the Advisor makes on behalf of a student ``shall not
    trigger an investigation by the institution''. These provisions seem to
    conflict with the institutions' moral and legal obligation under title
    IX to ensure that a campus is safe for all students. Keeping
    information about a crime secret and prohibiting an investigation could
    lead to an increased risk for other students as well as lead to
    liability for the institution should the perpetrator harm additional
    students. What changes do you recommend, to CASA, title IX, or both, to
    reconcile this conflict?
        Answer 1. Title IX already grants a number of university personnel
    (such as clergy) confidentiality in order to ensure that students can
    access vital services and support. In order to reconcile the potential
    conflict identified here, the confidential advisors should be
    explicitly included in the protected class of school employees.
    However, it is essential that staff and service providers in these
    protected roles still be required to report anonymized aggregate data
    for the purposes of the annual Clery report.\6\ Since most survivors
    only report to confidential resources, accurate Clery data helps
    schools and students understand the scope of the problem and whether
    survivors are accessing essential resources.
    ---------------------------------------------------------------------------
        \6\ For a model policy, see https://www.notalone.gov/assets/
    reporting-confidentiality-policy.pdf (``Other employees may talk to a
    victim in confidence, and generally only report to the college that an
    incident occurred without revealing any personally identifying
    information. Disclosures to these employees will not trigger a college
    investigation into an incident against the victim's wishes'').
    ---------------------------------------------------------------------------
        Moreover, it is extremely difficult to investigate a report if a
    survivor is unwilling to fully participate in an investigation. Campus
    safety and accountability for serial perpetrators requires survivors to
    come forward, report violence, and actively participate in an
    investigation--which is best facilitated by an environment in which
    survivors feel in control of their report, are provided with necessary
    medical and mental health resources, and can freely choose to move
    forward with a disciplinary proceeding. A system that forces survivors
    into investigations against their will will only make survivors
    hesitant to reach out to confidential resources for counseling, for
    medical care, or with questions about their rights under a disciplinary
    process. Therefore, eliminating confidential reporting will make
    campuses less safe by preventing students from confidentially
    discussing their reporting options with advisors and seeking
    potentially life-saving medical care like HIV Post-exposure Prophylaxis
    (HIV PEP). Overall, OCR's guidance in its 2014 Questions and Answers on
    Title IX and Sexual Violence document strikes the appropriate balance
    on this matter.

        Question 2. Experts consulted by the University of Alaska have
    consistently stated that the best way to get absolutely accurate
    results on a campus survey about sexual assault is to assure absolute
    confidentiality and to prohibit publishing the results. This promotes
    higher response rates and allows the institution to respond to gaps,
    concerns, and problems in campus safety issues. CASA advocates suggest
    that a homogenous survey, the results of which are published, will
    assist the consumer in making educated choices. Data suggests that few
    prospective students, their families, or enrolled students review
    campus crime statistics. Do you agree that the campus surveys should be
    used for institutional improvement of policies and practices rather
    than as a consumer tool? Why or why not? Do you recommend that if
    institutions are required to use a survey developed by the Department
    that individual institutions should be able to delete questions that
    are locally or culturally inappropriate? Should there be two surveys'
    one developed by the Department of Education and used as a consumer
    tool and one developed by an institution and used only to improve
    internal practices and policies?
        Answer 2. Know Your IX believes it is imperative that schools be
    required to publish the results of campus climate surveys, in order to
    boost campus transparency.
        For too long, colleges have been allowed to operate behind a
    curtain of impunity. We receive questions from prospective students and
    their families all the time, who want to learn how to recognize that a
    school is safe, or where they can find information about a specific
    school they are considering. Many people do not consult campus crime
    logs because it is widely known that sexual assault is a severely
    under-reported crime, and the number of reported assaults reveals
    little about actual student safety issues. Further, campus crime logs
    indicate only the number of instances reported to campus officials;
    they do not include any information about how the school handled those
    reports, whether the perpetrator was a student, whether the survivor
    was able to access resources, how it affected their campus experience,
    and other important information.
        The purpose of campus climate surveys is twofold: first, to allow
    administrators and off-campus policymakers to assess the particular
    experiences of students at each institution to inform policy change,
    and second, to give students, families, advocates, and policymakers
    access to information about the campus climate, which can inform
    decisions about where to attend school and enable stakeholders to hold
    school administrations accountable. In order for campus climate surveys
    to be effective in increasing transparency and giving community members
    the necessary information to hold schools accountable, it is essential
    that the results of climate surveys be published.
        Know Your IX recommends either a department-designed survey that
    allows schools to add additional questions, or a baseline set of
    required questions and topics areas that schools can customize for
    various populations. The survey models should be designed with
    substantial input from expert research, student activists and
    advocates, and representatives from schools and service providers. This
    will ensure both the flexibility necessary to explore specific local
    concerns and the consistency necessary to produce useful results. The
    climate surveys should help students, families, policymakers, and
    service providers compare and contrast individual schools and to
    understand the scope and dynamics of sexual assault issues on a
    national level.
        From the research perspective, we need to ensure there is
    consistency between the questions asked on each campus to make these
    kinds of comparisons and generalizations possible. The results should
    be released by each school, with careful precautions taken not to
    reveal any student's identifying information. Schools should be
    required to advertise the survey aggressively and meet a certain level
    of student participation in order to ensure sufficient information is
    collected.
        In addition to campus climate surveys, the mandated release of
    aggregate, anonymized data regarding how reports of gender-based
    violence and harassment are handled on campus would greatly improve
    transparency. Moreover, while schools are now required to implement
    prevention programs and adopt more comprehensive response policies,
    there are few, if any, legislative mandates requiring schools to
    evaluate or release information about the effectiveness of their
    prevention programs or how they actually handle reports of sexual
    violence in practice. Without clear and enforceable requirements for
    transparency and accountability, these changes are doomed to be little
    more than cosmetic. To protect all students, we need legislation that
    includes clear, comprehensive, and public requirements for more
    transparent campus processes.
        The data should include several pieces:

        1. A requirement that schools evaluate the effectiveness of their
    prevention programs and release that information to the public;
        2. A requirement that schools conduct annual campus climate surveys
    and publish the cumulative data on the effectiveness of their methods
    in both reducing incidences and increasing reporting; and
        3. A requirement that schools annually release aggregate,
    anonymized data on the adjudication process for reports of gender-based
    violence. This data should include the number of reports filed, the
    number of investigations opened, the policy violation(s) alleged, the
    determination made, the sanctions imposed, any changes made to the
    determinations or sanctions as a result of an appeal, and the length of
    each case. This will help ensure that students, parents, and
    policymakers understand what the adjudication process in a given school
    actually looks like in practice and evaluate whether the school
    officials' actions are consistent with their own written policies,
    existing laws and guidance from governmental bodies, and the ethical
    standards of individual stakeholders like parents of students or
    faculty members.

        Mandating increased transparency is a feasible project: In July
    2015, New York State passed a law that will require every college and
    university in the State to release to the State Education Department
    data about reports of domestic violence, dating violence, stalking, or
    sexual assault.\7\ This will include the total number of reports
    received, open and closed investigations, outcomes of such
    investigations, and penalties imposed on perpetrators.
    ---------------------------------------------------------------------------
        \7\ NYA08244/2015-2016/General Assembly. (2015, June 17). LegiScan.
    Retrieved August 30, 2015, from https://legiscan.com/NY/bill/A08244/
    2015.
    ---------------------------------------------------------------------------
        Without robust and carefully constructed requirements for
    transparency and accountability, schools will be free to continue
    violating the law and their own policies with impunity, harming both
    survivors of violence and accused students. It is essential that
    policymakers advance legislative solutions requiring increased
    transparency from schools immediately; the safety of all students is at
    stake.

        Question 3. CASA requires that institutions develop Memorandums of
    Understanding with each law enforcement agency that has jurisdiction.
    Many institutions, including public and private institutions, have
    developed significant e-learning opportunities for their students who
    may never attend classes on campus. This CASA requirement is viewed by
    those institutions, therefore, as fatally vague and unworkable. Do you
    agree, if so, do you have suggestions for addressing this concern?
        Answer 3. Know Your IX shares this concern. To resolve it, we
    suggest that the requirement be modified to have schools develop MOUs
    with the law enforcement agencies that are reasonably likely to have
    jurisdiction over cases based on where large numbers of students live.
    We do not believe schools should be held to a standard where they must
    negotiate hundreds of MOUs to cover e-learning opportunities.

        Question 4. Several witnesses spoke to the complexity of compliance
    with Clery and Title IX. Adoption of the CASA provisions would add
    additional requirements and complexity. Looking at the issue of campus
    safety as a whole, would you recommend that the committee completely
    re-write institutional responsibilities across Clery, Title IX, VAWA,
    and CASA in order to reduce complexity, increase crime reporting and
    transparency, and provide for the rights of all students to a safe
    campus on which to gain an education? If so, what specific suggestions
    do you have for the committee?
        Answer 4. Know Your IX strongly discourages the committee from
    completely rewriting institutional responsibilities under the Clery
    Act, Title IX, the Violence Against Women Act (VAWA), and CASA. As
    Campus SaVE was only recently passed in 2013, the Department of
    Education has just issued new regulations around the legislation.
    Completely revising existing law would lead to widespread confusion and
    further delays for survivors, as schools have already taken significant
    steps to implement procedures to comply with current regulations. On
    the whole, we believe that current laws and regulations need stronger
    Federal enforcement, not revision. Congress can provide more support to
    students by:

         Increasing funding for the Department of Education's
    Office for Civil Rights (OCR). OCR, which is the Federal agency
    primarily responsible for ensuring that schools are compliant with
    title IX and other civil rights laws, is grossly underfunded and
    understaffed. Increased funding would allow OCR to provide additional
    technical assistance to schools on how to enter into compliance with
    the Clery Act, Title IX, and VAWA; better disseminate information to
    students about their rights and how to access them; and improve campus
    safety by ensuring timely investigations, as well as continued
    monitoring, guidance, and support to schools in the months and years
    ahead.
         Empowering OCR to issue fines for civil rights violations.
    Providing OCR with the explicit authority to levy fines would give the
    agency the increased leverage necessary to hold schools accountable,
    without devastating programming and aid for students in the process.
    Crucially, this authority must be available for the Department to
    enforce all relevant civil rights laws to ensure that students are free
    from all forms of discrimination, including those based on race and
    disability as well as sex.
         Increasing campus transparency. There are strong perverse
    incentives for schools to sweep violence under the rug, as discussed
    above. To counteract the potential negative reputational consequences
    that schools that encourage survivors to report may face, Congress
    should mandate that schools conduct campus climate surveys and publish
    their results publicly. This step would provide valuable information to
    students and their families, and would increase incentives for schools
    to appropriately address violence. Schools should also be required to
    publish aggregate, non-identifying statistics on the sanctions assigned
    in disciplinary cases and further information (listed in detail on page
    18), which would provide greater insight into whether or not
    disciplinary proceedings are being handled promptly and equitably. This
    step will help ensure that students, parents, and policymakers can
    evaluate and compare how each school responds to complaints of gender-
    based violence in practice, not just on paper.

        Question 5. I have received concerns from students who have been
    accused of sexual assault on campus and their parents. They tell me
    their rights to a fair hearing were not respected. Complaints included
    that as the accused, they were not informed of their rights under the
    institution's hearing policies, that the victim was provided more
    robust counsel by the university, and that they were denied the right
    to question their accuser and witnesses. CASA requires institutions to
    provide certain information about process to both the victim and the
    accused but leaves to the institution to follow their own policies for
    conducting investigations and hearings. Can this section be improved?
    Should the committee mandate that institutions follow basic policies
    and procedures? If so, please provide specific suggestions.
        Answer 5. Survivors and accused students alike report feeling that
    they did not receive a fair hearing. Know Your IX recognizes that the
    success of campus disciplinary procedures depends on their fairness to
    all parties involved.
        Know Your IX has called on college and university presidents to
    ensure procedural rights for both parties, the accused and the
    victim.\8\ These rights are already permitted or required by existing
    law and guidance, and we affirm OCR's responsibility to ensure their
    protection in practice. Procedural rights should include:
    ---------------------------------------------------------------------------
        \8\ Know Your IX. (2015). Letter to University Presidents on Fair
    Process. Retrieved from http://knowyourix.org/fair-process/.

         The right to timely and clear notice in writing of the
    allegations, parties' rights and responsibilities (under both school
    policy and law), procedural updates, and the final determination;
         The right to review all materials used in the
    investigation and hearing with adequate time to consider and respond;
         The right to guidance from a trained advocate during the
    investigation and hearing process;
         The right to submit evidence and recommend witnesses and
    questions for the other party to decisionmakers, and the right to
    notification and explanation if these recommendations are declined;
         The right to be heard by neutral decisionmakers with
    professional expertise;
         The right to a safe and sensitive investigation and
    hearing;
         The right not to self-incriminate if criminal charges are
    possible or pending;
         The right to an explanation in writing for the final
    decision;
         The right to fair and proportionate sanctions; and
         The right to internal administrative appeal heard by a
    panel.
                               senator whitehouse
        Question 1. In the context of campus sexual assault, campus
    investigations and law enforcement investigations can sometimes work at
    cross purposes. How can we disentangle the campus and law enforcement
    investigations so that one does not impede the other?
        Answer 1. It is important to remember that the title IX process and
    the criminal process seek to address different aspects of the impact of
    violence: the criminal process aims to respond to rape as a crime,
    while the title IX process aims to address rape as a civil rights
    violation and a potential barrier to education. Accordingly,
    administrators and police have different roles and responsibilities.
    Training for campus administrators, campus police, local law
    enforcement, and advocates on the distinctions between these two
    processes will ensure a better experience for everyone, especially the
    victim.

        Question 2. In the context of domestic violence, law enforcement
    officers have become better qualified to address the needs of victims
    by drawing on the expertise of advocacy groups and experts. How can we
    best support the law enforcement community so that officers are
    similarly well-trained to assist survivors of campus sexual assault?
        Answer 2. Officers should be trained in trauma-informed
    investigatory methods, should be familiar with the campus offices that
    assist survivors in accessing the accommodations they need to stay in
    school, and should undergo implicit bias training to ensure they do not
    discriminate against survivors on the basis of gender identity, race/
    ethnicity, disability, and sexual orientation.
        That said, the United States has poured millions of dollars into
    law enforcement and prosecutor training over the past two decades, and
    the system is still failing survivors. Increased training and support
    for law enforcement officers is not sufficient to eliminate bias in
    policing. Many victims continue to fear re-victimization or misconduct
    on the part of law enforcement, as officers routinely refuse to
    investigate reported cases\9\ and neglect to pass rape kits on to crime
    laboratories for testing.\10\ There are currently few mechanisms in
    place to address these concerns. Congress should authorize increased
    appropriations to the Department of Justice for the purpose of
    investigating local law enforcement practices that may violate civil
    rights statutes like title IX. Individual departments should regularly
    provide data on their handling of rape and sexual assault cases to the
    Department of Justice (currently, compliance is optional) and establish
    clear procedures to sanction officers who discriminate against
    survivors.
    ---------------------------------------------------------------------------
        \9\ Police Executive Research Forum. (2012). Improving the Police
    Response to Sexual Assault. Retrieved from http://www.policeforum.org/
    assets/docs/Critical_Issues_Series/improving%20
    the%20police%20response%20to%20 sexual%20assault%202012.pdf.
        \10\ End the Backlog. (n.d.). Why the Backlog Exists. Retrieved
    from http://www.endthebacklog
    .org/backlog/why_backlog-exists.

        Question 3. Many survivors fear that they may lose control over
    campus sexual assault proceedings if law enforcement gets involved
    early. What can we do to inform students about the course of a law
    enforcement investigation, so they can make an informed choice about
    how to proceed?
        Answer 3. Campuses must make clear that no information about
    specific cases will be shared with law enforcement without the full,
    informed consent of the survivor who comes forward. Without such a
    policy clearly in place, many survivors simply will not report at all.
        All students who report, whether formally or to service providers
    like counselors and clergy, should be referred to a confidential
    advisor either employed by the school or connected via an MOU with a
    local rape crisis center or community organization that specializes in
    supporting survivors of sexual and domestic violence. Survivor
    advocates should be confidential resources,\11\ responsible for
    informing survivors of their rights and obligations within both the
    campus disciplinary and the criminal justice system, and obligated not
    to unduly pressure survivors to choose a particular reporting option.
    Students should be informed, in writing, that they have the opportunity
    to report to law enforcement at any time and schools should create
    clear, uniform procedures by which a survivor can indicate that they
    consent to sharing information with law enforcement.
    ---------------------------------------------------------------------------
        \11\ However, these confidential advocates should still be required
    to disclose non-identifying information as part of a college's annual
    Clery reporting.
    ---------------------------------------------------------------------------
        If a survivor wishes to move forward with a law enforcement
    investigation, campus administrators or survivor advocates should offer
    to arrange a meeting with a dedicated SVU unit or an officer who is
    otherwise specifically trained to respond to sexual and domestic
    violence, rather than a patrol officer without specialized experience
    in gender-based violence. This initial statement could be shared--only
    per the victim's consent--with local law enforcement, so that survivors
    are not asked to retell their traumatizing experience over and over
    again.

        Question 4. Absent the concern of loss of control (perceived or
    otherwise) by the survivor, are there reasons that experienced, trauma-
    informed, sensitive, effective law enforcement should not be involved
    at early stages of an investigation?
        Answer 4. Respecting victims' fear of loss of control over an
    investigative process is just one reason of many to preclude law
    enforcement involvement if a victim does not consent to it. Survivors
    tell Know Your IX again and again that, were their campus to turn
    reports over to law enforcement without their consent, they would have
    reported to no one at all.\12\ Many queer and transgender survivors,
    survivors of color, and survivors from other heavily policed
    communities say they would be particularly unlikely to report, due to
    fear of additional interaction with and violence from the criminal
    justice system. Similarly, undocumented student survivors report
    fearing initiation of deportation proceedings as a result of coming
    forward. For survivors who were assaulted by a police officer or a
    family member of a police officer, turning to law enforcement simply is
    not a safe option.
    ---------------------------------------------------------------------------
        \12\ Know Your IX, & National Alliance to End Sexual Violence.
    (2015). Ask Survivors Survey Results. Retrieved from http://
    knowyourix.org/ask-survivors/.
    ---------------------------------------------------------------------------
        If survivors do not report to campus officials due to fear of law
    enforcement involvement, they will lose many of the title IX-mandated
    services and accommodations to which they are entitled, such as free
    counseling services, academic tutoring, housing changes, no-penalty
    course withdrawals, and access to disciplinary proceedings. Without
    these supports, many survivors will see their grades plummet, lose
    scholarships, or be forced to drop out of school altogether. To put it
    simply: Survivors need title IX's protections--and to feel safe
    accessing them--in order to stay in school, and this requires that
    campus disciplinary processes remain separate and independent from the
    law enforcement system.
                                 senator casey
        Question 1. Like many of the witnesses, you have discussed your
    desire to see campus climate surveys conducted so that we can gain a
    better picture of what's happening on individual college campuses and
    nationally. What do you think are the most important questions to ask
    in a campus climate survey?
        Answer 1. Campus climate surveys are an essential tool for
    evaluating the prevalence and particular dynamics of gender-based
    violence on college campuses and assessing an individual school's
    specific needs and challenges. An effective, comprehensive climate
    survey will include questions that do the following:\13\
    ---------------------------------------------------------------------------
        \13\ Many of these points will require multiple questions.

         Assess whether the participant understands the definitions
    of behaviors considered gender-based violence and related terms (sexual
    assault, rape, consent, harassment, coercion, stalking, dating
    violence, domestic violence, etc.);
         Assess whether the participant knows the school's policies
    on gender-based violence and harassment;
         Assess whether the participant knows how and where to
    report incidents of gender-based violence on campus;
         Evaluate the participant's perception of the reporting and
    adjudication process (i.e., ``Do you have confidence that your school
    handles reports of sexual assault fairly? Swiftly'');
         Determine whether the participant received effective
    prevention education, and otherwise evaluate how and where students are
    receiving information about sexual assault;
         Assess the participant's perception of how often sexual
    assault, dating violence, stalking, and other related behaviors occur
    on campus;
         Assess whether the participant has suffered or committed
    any actions that violate sexual misconduct policies. (It is critical to
    ask about the behaviors through literal description rather than by
    labeling them ``rape'' or ``abuse'', as research indicates that
    perpetrators of violence frequently fail to label their own actions as
    ``rape'' or ``abuse'' even when their actions fall within the
    definitions. For example, a question might ask, ``Have you ever touched
    someone sexually while they were asleep or passed out?'' rather than
    ``Have you ever sexually assaulted someone?'');
         Assess whether the participant reported violence they
    experienced to the school;

             If YES, evaluate their experience with the
            disciplinary process;
             If NO, determine why not;

         Determine whether perpetrators are peers, faculty members,
    staff members, strangers, or unknown to the victim;
         Evaluate the participant's understanding of consent and
    incapacitation due to drugs and alcohol;
         Assess whether the participant knows where and how to
    access resources for survivors of gender-based violence, such as a
    campus rape crisis center, medical provider, or counselor;
         Assess whether the participant knows where and how to
    access accommodations and interim measures following an experience of
    gender-based violence;
         Assess whether the participant knows which of the
    available resources can be accessed confidentially and without filing a
    report;
         Evaluate the participant's perception of and trust in
    available crisis resources;
         Assess whether the participant has used available campus
    resources; and
         Assess the participants' involvement in various campus
    community organizations including athletics and Greek life.

        It is essential that schools be required to publish the results of
    campus climate surveys. Allowing schools to keep such information
    private deprives policymakers and service providers of vital
    information necessary to address the issue, and students and their
    families of information they need to make key decisions about student
    safety.
        In order to further increase transparency, schools should be
    required to release aggregate, anonymized data on how reports of
    gender-based violence and harassment are handled on campus. While
    schools are now required to implement prevention programs and adopt
    more comprehensive response policies, there are few, if any,
    legislative mandates requiring schools to evaluate or release
    information about the effectiveness of their prevention programs or how
    they actually handle reports of sexual violence in practice. Without
    clear and enforceable requirements for transparency and accountability,
    these changes are doomed to be little more than cosmetic.
        To protect all students, Congress should issue clear,
    comprehensive, and public requirements for more transparent campus
    processes, including:

        1. A requirement that schools evaluate the effectiveness of their
    prevention programs and release that information to the public;
        2. A requirement that schools conduct annual campus climate surveys
    and publish the cumulative data on the effectiveness of their methods
    in both reducing incidences and increasing reporting;
        3. A requirement that schools annually release aggregate,
    anonymized data on the adjudication process for reports of gender-based
    violence. This data should include the number of reports filed, the
    number of investigations opened, the policy violation(s) alleged, the
    determination made, the sanctions imposed, any changes made to the
    determinations or sanctions as a result of an appeal, and the length of
    each case. This will help ensure that students, parents, and
    policymakers understand what the adjudication process in a given school
    actually looks like in practice and evaluate whether the school
    officials' actions are consistent with their own written policies,
    existing laws and guidance from governmental bodies, and the ethical
    standards of individual stakeholders like parents of students or
    faculty members.

        Mandating increased transparency is entirely feasible: In July
    2015, New York State passed a law that requires every college and
    university in the State to release to the State Education Department
    data about reports of domestic violence, dating violence, stalking, or
    sexual assault. This will include the total number of reports received,
    open and closed investigations, outcomes of such investigations, and
    penalties imposed on perpetrators.
        Without robust and carefully constructed requirements for
    transparency and accountability, schools will be free to continue
    violating the law and their own policies with impunity, harming both
    survivors of violence and accused students. It is essential that
    policymakers advance legislative solutions requiring increased
    transparency from schools immediately; the safety of all students is at
    stake.
      Response by Dolores A. Stafford to Questions of Senator Alexander,
    Senator Hatch, Senator Murkowski, Senator Whitehouse, and Senator Casey
        Thank you for the opportunity to provide additional information and
    clarify my written and oral testimony for the committee's record. I
    greatly appreciate the opportunity to continue my engagement with the
    HELP Committee and respond to your thoughtful and timely questions.
                               senator alexander
        Question 1. Do you have specific suggestions about how Title IX and
    the Clery Act, including their implementing regulations and guidance,
    can be improved and/or clarified to provide institutions of higher
    education the flexibility they need?
        Are there areas where these laws, regulations, or guidance
    conflict?
        Are there areas where they are duplicative?
        Answer 1. As I mentioned in my testimony, title IX's indelible
    influence can be seen throughout the VAWA Amendments. Many of the new
    requirements under Clery have been adapted, often wholesale, from pre-
    existing title IX sub-regulatory guidance and elevated to VAWA's
    implementing regulations such that they carry the force of law under
    the Clery Act. This is perhaps most apparent when considering the new
    procedures institutions must implement as it relates to managing
    allegations of Domestic Violence, Dating Violence, Sexual Assault and
    Stalking. For example, personnel involved in the investigation or
    resolution of sexual assault/sexual violence complaints are expected to
    have sufficient training to perform these functions, and decisionmakers
    may not have a conflict of interest that would undermine their
    impartiality. Both laws compel institutions to adopt equitable
    resolution procedures that, among other things, establish reasonably
    prompt timeframes for the major steps of the procedures and that
    provide each party with an equal opportunity to:

         participate in the proceedings;
         have timely access to information that will be used during
    the proceedings;
         have the same opportunities to be accompanied by an
    advisor;
         receive contemporaneous written notification of the
    outcome of the proceedings;
         have the same opportunity to appeal the results of the
    proceedings, if any appeal option exists; and
         be apprised of the final results of any appeal.

        These examples are not exhaustive but rather a sampling of how
    inextricably linked Title IX and the Clery Act have become with the
    passage of the VAWA Amendments.
        That said, I would strongly urge the HELP Committee to initiate a
    task force, made up of higher education industry and association
    leaders, to examine areas of duplication and actual or perceived
    conflict between these laws. A comprehensive, top-to-bottom review of
    each law, their regulations, and associated sub-regulatory guidance
    would yield important insights about areas in which the laws could be
    improved, clarified or streamlined. Including a variety of experts from
    practitioner associations such as the National Association of Clery
    Compliance Officers and Professionals (NACCOP), the Association for
    Student Conduct Administration (ASCA) and the Association of Title IX
    Administrators (ATIXA) would be crucial to ensuring that the review of
    these laws benefits from boots-on-the ground practitioners and industry
    experts to ensure exhaustive treatment of these issues. From there,
    Congress can consider the task force's analysis and related
    recommendations for enhancing the law. NACCOP would welcome the
    opportunity to participate in and/or lead such a task force.

        Question 2. Do you have suggestions about how institutions of
    higher education can best coordinate with law enforcement without
    turning the institutions into de facto law enforcement agencies?
        Answer 2. How, when or if a campus law enforcement unit notifies a
    local municipal agency is impacted by a variety of factors, including
    the lawful source of authority from which campus police/public safety's
    personnel derive their police or public safety powers (typically, this
    is governed by State statute or regulation). However, most
    institutions, whether they have sworn police officers or non-sworn
    public safety officers, are already coordinating with local law
    enforcement agencies when serious crimes are reported to campus police/
    public safety agencies. Typically this coordination is triggered by a
    victim\1\ expressing a desire to press criminal charges and the
    institution assisting the victim in pursuing that avenue.
    ---------------------------------------------------------------------------
        \1\ The terms victim and survivor are used interchangeably
    throughout this document, though I recognize not all victims identify
    as survivors.
    ---------------------------------------------------------------------------
        Most campuses already have processes and procedures in place for
    coordinating with local law enforcement, whether memorialized or not in
    an official memorandum of understanding. I would suggest that
    institutions be given discretion to determine how best to coordinate
    with local law enforcement agencies based on applicable State-governed
    enforcement and jurisdiction, arrest and enforcement authority, and
    relationships with the local law enforcement agency. I would not
    recommend that institutions be compelled to contact local law
    enforcement as a matter of policy or law, especially in instances for
    which contact with the local law enforcement agency would be against
    the wishes of the victim. I have personally assisted hundreds of
    victims of sexual assault in my role as founder and supervisor of the
    Sexual Assault Response Team at the George Washington University and I
    can tell you first hand that forcing a victim to talk to or report an
    incident to law enforcement (campus or local) against their wishes only
    serves to re-victimize them.

        Question 3. Do you have suggestions about what we can do, or not
    do, to make sure colleges establish procedures dealing with allegations
    of sexual assault that are fair and protect the due process rights of
    the accuser and the accused?
        Answer 3. Campuses are already required to provide prompt, fair and
    impartial proceedings per the VAWA Amendments to the Clery Act.
    However, the foundation for any of the committee's future efforts
    should be to focus on equity. Namely, the procedural protections should
    be equitable for all parties, and should include:

         An accessible and easily understandable policy on sexual
    violence.
         An accessible summary of the rights/procedural protections
    for both the accuser and accused.
         The opportunity for the accuser, the accused, and their
    advisors to ask questions about the investigation & resolution
    processes during an initial meeting with any official involved in the
    investigation or resolution process prior to the accuser or accused
    sharing any information about the incident(s) in question.
         Interviews, hearings, and review of appeals should be
    conducted by persons trained to facilitate the most effective and fair
    investigation and resolution procedures, which includes asking
    questions in ways that solicit information and participation by the
    complainant and the respondent. This includes best practices in student
    conduct, cultural differences and how they affect communication, and
    the specific experiences relevant to both complainants and respondents
    that may affect how they present themselves or information in an
    investigation or hearing. For complainants, this includes learning how
    trauma impacts the physical and neurobiological responses of victims of
    acts of sexual violence. For respondents, this includes due process/
    procedural protections, the implications of participating in a student
    conduct process if criminal charges are also pending, and an
    understanding of defense mechanisms and how they may affect
    communication.
         A description of any restrictions regarding the extent to
    which an advisor may participate in the proceedings, and a statement
    that the restrictions apply equally to both parties. Restrictions
    should include a limitation prohibiting advisors from sharing
    information, or to ask or answer questions on behalf of a student.
         Use of the preponderance of the evidence standard.
         Maintain that both parties must be offered an opportunity
    to explain what occurred from their perspective, to review all
    information that the adjudicator(s) will use in making decisions about
    findings of responsibility and/or sanctions, and to respond to that
    information.
         Provide an opportunity for both parties to appeal based on
    specified criteria such as new information not available at the time of
    the hearing or procedural error which would significantly alter the
    outcome.

        The aforementioned information, if required to be disclosed by the
    institution (in the Annual Security Report, institutional policies, or
    both) would help to ensure that campuses send a strong message to all
    parties that they will preserve rights and protections for both the
    accuser and the accused in the disciplinary process.
        With respect to what the committee should not do in this area, I
    would strongly discourage the committee from attempting to legislate
    the forum of resolution used by campuses to address sexual violence
    complaints. Campuses employ a variety of resolution options, such as
    hearing boards, civil rights investigations, or single-person
    adjudicators, and these forms of resolution are informed by the
    institution's resources, student culture, and the volume and nature of
    cases. I would also discourage the committee from attempting to direct
    details related to how the disciplinary process is carried out, such as
    establishing additional timelines or methods of communicating with the
    parties. Finally, I would continue the practice of articulating topics
    to be addressed in training without directing how that training is to
    be carried out or for what duration.
        I would also encourage the committee to consider requiring
    institutions/systems to conduct an external review of their sexual
    violence resolution procedures and publicize the findings to their
    campus communities, along with any plans for improvement (perhaps the
    first review occurs by Fall 2017, then every 3 years thereafter). Such
    a review would be consistent with the existing requirement for
    institutions to conduct a biennial review of their drug and alcohol
    abuse prevention programs under the Drug-Free Schools and Communities
    Act of 1989. Institutions could also be required to provide a means to
    allow any participant in the sexual violence resolution process to
    provide feedback to the institution about their experience in the
    process to the office responsible for the process (i.e., continual
    quality improvement). This information could be considered in the
    institution's external review of its sexual violence resolution
    procedures. Both of these measures serve to ensure that the institution
    is considering both best practices beyond the institution as well as
    the student experience at the institution itself.

        Question 4. Are there requirements in the Clery Act that you
    believe could be clarified or eliminated so institutions are not
    spending unnecessary time on paperwork?
        Answer 4. The most notable Clery Act requirement that could be
    eliminated is the requirement to collect and disclose crime statistics
    for foreign short-term use locations of U.S. institutions. As described
    in my testimony, this interpretation of crime reporting requirements by
    the Campus Safety Helpdesk\2\ has left institutions with little choice
    but to develop elaborate systems to track all locations where the
    institution sends students as part of education abroad activities and
    write each local law enforcement agency at those locations to request
    crime statistics. In some instances, this results in campuses sending
    tens or hundreds of letters to foreign law enforcement officials which
    frequently are ignored and divert important human and fiscal resources
    that could otherwise be invested in promoting campus safety. The crime
    definitions used by the Clery Act often do not apply to laws of the
    foreign countries, thus if information is received in response to a
    request, it is often not clear that the incident being reported meets
    the U.S. definition of the crime. Furthermore, even when campuses do
    receive responses from law enforcement agencies, these statistics are
    combined into a single statistic category for the noncampus geography,
    which provides the consumer with virtually no useful information about
    where in the world the crime occurred. It is hard to imagine this was
    the intent of Congress when the law and its amendments were passed.
    ---------------------------------------------------------------------------
        \2\ The Campus Safety Helpdesk provides compliance guidance to
    institutions of higher education subject to the Clery Act and is
    operated on behalf of the Department of Education by a Federal
    contractor.
    ---------------------------------------------------------------------------
        For those noncampus locations in the United States, Congress could
    greatly clarify the requirement to collect and disclose crime
    statistics for these locations by developing a bright-line standard
    that would assist institutions in determining whether a particular
    location is ``frequently used by students'' for the purposes of
    adhering to the Noncampus definition. We've seen correspondence from
    the Campus Safety help desk that says ``frequently used by students,
    i.e. more than one night'' as an example. I would recommend that a
    suitable standard be adopted (such as 14 or more days)\3\ of usage
    within a calendar year would be of sufficient duration to indicate
    ``frequent'' use by students. Currently, the usage of a location more
    than once is deemed to be ``repeated use'' and countable (ex., a hotel
    used one night by the softball team for a game and then used the
    following month by the baseball team for one night would currently fall
    under the repeated use standard). There is currently no bright line
    standard regarding repeated use when the same location is used more
    than once (ex., if a location is used once a year versus if a location
    that is used every other year). It is not clear when the repetition
    begins and ends. If a suitable standard as identified above were used
    to clarify ``frequently used by students,'' the repeated use standard
    could be eliminated, thus dramatically simplifying this issue.
    ---------------------------------------------------------------------------
        \3\ I am not wedded to 14 days as the bright line standard, but I
    do believe the number of days should be significant enough that it
    would not be considered transient use by a reasonable person.
    ---------------------------------------------------------------------------
        For example, it would not matter if the location was used 14 days
    in a row or 14 days throughout the year: once a location meets this
    threshold, it would be countable. This type of solution would provide
    clarity around an issue that is incredibly challenging, causes a great
    deal of administrative work and provides information that is not
    useful, as it is placed in a general noncampus category in the
    statistics and the consumer does not know where the crime occurred.

        Question 5. Does the Department of Education ever impose new
    requirements on institutions that are not in regulations? If so, please
    provide examples.
        Answer 5. Yes, usually in the form of sub-regulatory guidance
    delivered in the form of a Dear Colleague Letter or, in the case of the
    Clery Act, via the Handbook for Campus Safety and Security Reporting.
    For example, the title IX regulations (34 C.F.R. 106.1 et seq.) do not
    identify a standard of evidence to which campuses must adhere when
    determining whether a respondent has engaged in prohibited sexual
    harassment. However, the Dear Colleague Letter on Sexual Violence
    (April 4, 2011) indicated that ``in order for a school's grievance
    procedures to be consistent with title IX standards, the school must
    use a preponderance of the evidence standard'' (p. 11).
        Another example described in my testimony relates to the
    requirement to publish all crimes occurring in a single incident in the
    Daily Crime Log. The Department indicated in the 2011 Handbook for
    Campus Safety and Security Reporting that the Daily Crime Log requires
    all crimes occurring in a single incident to be disclosed on the Daily
    Crime Log. This practice runs contrary to how crime statistics are
    compiled and reported annually for which the ``Hierarchy Rule''
    commands that only the most serious crime reported in the incident be
    disclosed when multiple crimes are reported (with some notable
    exceptions, such as Arsons and Hate Crimes).
        The original Daily Crime Log requirement was the result of the 1998
    Amendment to the Clery Act and was addressed in the Department's
    initial Handbook for Campus Crime Reporting, published in 2005.
    However, it was not until 2011 in the revised Handbook that the
    Department stated--for the first time--that all crimes occurring in a
    single incident are to be recorded in the log and therefore the
    Hierarchy Rule does not apply to the log. By that point, many campuses
    had made significant financial investments in electronic records
    management systems that were designed to implement the Hierarchy Rule
    when producing the Daily Crime Log, unknowingly in contravention to the
    Department's previously unspoken expectations. Neither the statute, the
    implementing regulations nor prior sub-regulatory guidance had ever
    alerted campuses to this distinction, but the Department took it upon
    itself to create this rule when it published the revised Handbook 13
    years after the requirement went into effect.
        This recommendation is also echoed in the report issued by the Task
    Force on Government Regulation in Higher Education, initiated by the
    Senate HELP Committee, which noted that,

              ``The definition of `noncampus property' should be clarified
            and narrowed to focus more directly on property that is a core
            part of a college or university. At a minimum, it should
            exclude all foreign locations as well as short-term stays in
            domestic hotels'' (p. 38).

        It is my observation that the Department of Education sometimes
    imposes what could be considered new requirements not enumerated in the
    regulations when regulations are vague. Specificity in the law and in
    the regulations themselves can help keep regulatory compliance in check
    with Congress's intent.

        Question 6. Do you believe there are ways the Department of
    Education can improve the negotiated rulemaking process?
        Answer 6. I have participated in the negotiated rulemaking process
    as both a primary negotiator (1999 and 2009) and, most recently, voted
    in by the committee as an advisor (2014). Overall I have found the
    process to be effective. However, one limitation of the current
    approach is that the Department of Education solicits categories of
    potential negotiators which do not account for all relevant categories
    of stakeholders. For example, while the Department's call for
    negotiators mentioned organizations or groups representing lesbian,
    gay, bisexual, and transgendered students; male students; female
    students; minority students; and students with disabilities, as well as
    victims' and human rights organizations, title IX advocacy groups, and
    anti-defamation groups, the Department inadvertently (we assume)
    omitted professional associations whose members are primarily
    responsible for complying with existing and proposed regulations. This
    oversight may have been because associations specifically representing
    Clery Act and title IX practitioners didn't exist prior to the 2009
    negotiated rulemaking process. One such group is the National
    Association of Clery Compliance Officers and Professionals (NACCOP),
    which represents Clery compliance practitioners and has considerable
    expertise in the law. In the future, I would encourage the Department
    to make specific mention in the call for nominations of organizations
    whose members are involved in day-to-day compliance efforts beyond
    those constituencies already mentioned in the call for negotiators.

        Question 7. In your experience as a former campus Chief of Police,
    is campus law enforcement going to need different support from local
    law enforcement when it comes to investigating sexual assault than an
    institution that does not have sworn police officers on campus?
        Do you think the Campus Accountability and Safety Act allows for
    these differences as drafted or are their changes to the legislation we
    should consider?
        Answer 7. As I mentioned in my answer to Question 2, campus
    agencies will need different support depending upon their enforcement
    and arrest authority and the scope of their jurisdiction. CASA does not
    take into consideration differences in these factors as they exist
    among campus police/public safety agencies. CASA, as currently written,
    would require campuses to enter into a memorandum of understanding
    (MOU) with ``each law enforcement agency that has jurisdiction to
    report as a first responder to a campus of the institution.'' This
    provision would appear to force a campus that has a sworn law
    enforcement agency with primary jurisdiction on the campus to enter
    into an MOU with another law enforcement agency that does not have
    primary jurisdiction. If CASA cannot force municipal and State agencies
    to come to the table with campuses to actually develop mutually
    beneficial MOUs, then CASA should strongly recommend (but not require)
    campuses to pursue an MOU if they have not done so already with the
    local law enforcement agency. Furthermore, the proposed process for
    obtaining a waiver is onerous and unnecessary. Campuses should not have
    to prove they can't get an MOU with the local agency, and to pursue one
    after a local agency expresses their disinterest in the name of
    complying with a Federal law applicable only to the campus is likely to
    harm, rather than enhance, relationships with the local agency.
    Furthermore, the waiver is burdensome to both the Department of
    Education and the Department of Justice, each of whom will have to
    develop policies and protocols for receiving and reviewing requests
    and/or how, if at all, the Department of Justice will followup with
    local law enforcement agencies who refuse to enter into any agreements
    (CASA is silent as to what authority DOJ has to provide a remedy for a
    municipal agency's refusal to enter into such an agreement). The
    additional funding and time that would be required by those agencies to
    manage the process of reviewing and maintaining thousands of waivers
    could no doubt, be better spent assisting campuses in coming into
    compliance.
        If the committee decides to impose a mandatory MOU, I strongly
    encourage the committee to provide an exemption for sworn campus
    agencies so they do not have to enter into an MOU with another sworn
    agency when the campus agency already has primary jurisdiction to
    respond to crimes on the campus.

        Question 8. You and your colleagues are the people on the ground
    that will have to implement parts of the Campus Accountability and
    Safety Act if it's made law. Do you have any suggested changes to the
    bill to make implementation as practical as possible?
        Answer 8. In addition to recommendations expressed in other answers
    regarding confidential advisors and the MOU with local agencies, we
    would suggest that the Department of Education's requirement (per CASA)
    to provide via a website all pending investigations, enforcement
    actions, letters of finding, final resolutions and voluntary resolution
    agreements for all complaints and compliance reviews under title IX be
    extended to include all pending and completed reviews conducted by the
    U.S. Department of Education, Federal Student Aid office (including
    media reviews, general program reviews pertaining to Federal student
    aid programs, campus security focused reviews, FBI UCR program reviews
    conducted by the FBI Criminal Justice Information Services division,
    etc.). This sort of transparency is just as important for the Clery Act
    as it is title IX, but CASA fails to extend these transparency and
    disclosure requirements to both laws.
                                 senator hatch
        Question 1. We have heard from several community colleges in Utah
    regarding the ``confidential advisor'' aspect of the CASA bill. They
    are concerned about the undue burden that might arise by tying the
    number of advisors to the number of students. On average, non-
    residential campuses, like community colleges, have fewer incidents of
    sexual assault cases reported than residential campuses. Because the
    numbers of incidents vary based on the type of institution, should we
    tie the number of advisers for a campus based on the number of
    incidents reported, rather than student body?
        Answer 1. The answer to this important question is best addressed
    by the negotiated rulemaking process that the legislation would
    require. This would give all stakeholders an opportunity to provide
    input into this requirement and discuss the implications of various
    approaches.
        As you know, the current CASA legislation requires institutions to
    designate one or more confidential advisors. The legislation further
    indicates that the appropriate number of advisors for an institution
    will be determined based on its size and through a negotiated
    rulemaking process. I recommend eliminating the ``based on its size''
    language in the current legislation (page 25, line 2) to give the
    negotiated rulemaking committee the flexibility it needs to address the
    diversity of institutions and determine what criteria should be
    considered in determining the appropriate number of confidential
    advisors (whether more than one advisor is required or optional). To
    that point, CASA could also be revised to require a minimum of one
    advisor per institution but encourage (without requiring) institutions
    to appoint additional advisors using criteria that the rulemaking
    committee determines to be most appropriate to achieve the goals of the
    law.
        On its face, tying the number of confidential advisors to the
    number of reported incidents appears counterintuitive in that reports
    may not increase without the availability of a confidential advisor to
    assist in the provision of resources and explain reporting options.
    Additionally, title IX requires only a single coordinator to oversee
    the institution's compliance with title IX. Institutions are free to
    designate additional personnel to assist these coordinators as they
    deem it appropriate (such as designating a separate ``deputy'' title IX
    coordinator for students and another ``deputy'' title IX coordinator
    for employees). This model gives institutions the flexibility they may
    need based on their enrollment and other characteristics and could work
    well for confidential advisors.
        I would further submit that the criteria for who may not be a
    confidential advisor is both unnecessary and problematic. Specifically,
    persons who may function as higher education responsible employees or a
    title IX coordinator are forbidden from serving in this role. This
    rules out a large number of personnel with both interest and expertise
    in assisting victims, which is the most important aspect of the
    confidential advisor role. Additionally, ruling out ``full-time
    graduate students'' would categorically prevent masters and doctoral-
    level counselors in training from serving in this role, in spite of the
    wealth of knowledge and skills these individuals could bring. Campuses
    should be permitted to exercise discretion to determine who can or
    should serve as a confidential advisor, as who the most appropriate
    person should be will vary significantly from campus to campus based on
    their staffing levels and organizational structure.
        CASA should be revised to preclude persons with conflicts of
    interest from serving in that capacity (for example, the questions and
    answers on title IX and sexual violence notes,

              ``Title IX does not categorically preclude particular
            employees from serving as title IX coordinators. However, title
            IX coordinators should not have other job responsibilities that
            may create a conflict of interest. Because some complaints may
            raise issues as to whether or how well the school has met its
            title IX obligations, designating the same employee to serve
            both as the title IX coordinator and the general counsel (which
            could include representing the school in legal claims alleging
            title IX violations) poses a serious risk of a conflict of
            interest. Other employees whose job responsibilities may
            conflict with a title IX coordinator's responsibilities include
            directors of athletics, deans of students, and any employee who
            serves on the judicial/hearing board or to whom an appeal might
            be made.''

        These types of reasonable restrictions, if placed on the
    confidential advisor role, would be more aligned with the Department's
    historical approach and gives campuses discretion to determine who
    should serve in this role consistent with their personnel, job
    functions, and resources which vary across institution types.

        Question 2. There is a clear conflict of interest inherent in the
    confidential advisor role, since that person is employed by an
    institution of higher education and has certain reporting
    responsibilities under the Clery Act, as Senator Collins has pointed
    out. I would be interested in learning if there were other, non-
    affiliated resources available to students that may more appropriately
    play a confidential and/or counseling role, and if this would be a
    suitable use for funds generated by the fines.
        Answer 2. The systems of campus sexual violence complaint
    resolution and resources/options available to victims can be
    multifaceted and nuanced on many campuses. I would be concerned about
    whether non-affiliated entities could fully and accurately present
    these nuances to victims that are exploring their options to receive
    assistance and/or report to campus or civil authorities.
        Instead, the conflict of interest could be greatly diminished by
    granting confidential advisors the same exemptions for Clery Act
    reporting that already exist for pastoral and professional counselors
    (who are not, as a matter of law, campus security authorities unless
    they have other job functions, such as advising a student organization,
    that would strip them of their statutory exemption from reporting
    offenses brought to their attention while serving in their counselor
    roles). Extending this type of exemption to confidential advisors would
    take advisors out of a crime reporting role (and wisely so, since no
    personally identifiable information could be shared by the confidential
    advisor with the campus entity responsible for compiling crime
    statistics on behalf of the institution. The absence of this type of
    information could prove exceedingly difficult for institutions to
    ensure statistical accuracy if basic information about the incident,
    such as names of persons involved, could not be shared. The consequence
    could be systematic over-reporting of crime).
        Additionally, the conflict can be further reduced, if not
    eliminated, by maintaining the provision in CASA that expressly
    excludes confidential advisors from being considered higher education
    responsible employees. However, this provision could be strengthened by
    indicating that even if an individual designated as a confidential
    advisor has other responsibilities that would ordinarily make the
    person a campus security authority or a higher education responsible
    employee, the statutory exemptions would take precedence such that
    confidential advisor would not be required to adhere to the
    requirements imposed upon other campus security authorities or a higher
    education responsible employees.
        In order for this exemption to be consistent with existing title IX
    requirements to investigate or otherwise determine what occurred when a
    school knows (or reasonably should know) of possible sexual violence,
    the confidential advisor's role should be limited to providing
    information to the victim about where a victim could obtain
    accommodations. This would be a change in the confidential advisor's
    role, as currently envisioned, in that the advisor would no longer be
    authorized to arrange accommodations on behalf of the victim. If a
    confidential advisor seeks accommodations on a victim's behalf, that
    action may cause the school to believe they know, or should reasonably
    know, of possible sexual violence which then triggers their
    responsibility under title IX to investigate or otherwise determine
    what occurred. CASA indicates that an advisors request for
    accommodations shall not trigger an investigation by the institution,
    but without a change in the advisor's role or a clearer statement that
    a request for accommodations by the confidential advisor is not
    sufficient notice to an institution that should trigger an
    investigation (for title IX or other purposes), institutions will be
    between a rock and a hard place in trying to reconcile responsibilities
    under Title IX and CASA.

        Question 3. Some non-residential and online institutions in Utah
    have expressed a concern about the practicality of the 24 hours notice,
    as stated in the CASA bill. I am interested to know how feasible this
    timeline is, and if there is a more practicable timeline?
        Answer 3. As the timelines proposed by CASA do not impact the
    amount of time institutions have to make such determinations, I do not
    see prompt notification to be especially unworkable. However, in its
    current form, ``within 24 hours'' makes no provision for when the
    institution is actually open. For example, if a determination is made
    on a Friday, CASA would require the determination to be relayed on
    Saturday. A far more reasonable approach, consistent with other Clery
    Act requirements, would be to amend the propose language to ``within
    one business day'' in lieu of ``within 24 hours.'' The term ``business
    day'' is defined already for Clery Act purposes (in the final
    implementing regulations) to mean ``Monday through Friday, excluding
    any day when the institution is closed.''
        I support one business day under two very important conditions.
    First, institutions must be empowered to determine when a
    ``determination'' or ``change'' has been made, as that is the point
    that starts the clock on 24 hours/1 business day. This will allow
    sufficient time to plan for consultation with appropriate
    administrators, including legal counsel, before any draft written
    outcomes are determined to have been finalized. This can also allow the
    institution time to conduct a preliminary investigation upon receipt of
    a complaint to determine if it has merit in proceeding with a
    disciplinary procedure.
        Additionally, there must be some provision that allows campuses to
    extend the deadline for good cause. There is precedent for this already
    in withholding information from being added to the Daily Crime Log
    within 2 business days. Specifically, institutions may temporarily
    withhold information from the Daily Crime Log only if there is clear
    and convincing evidence that the release of information would:

         Jeopardize an ongoing (criminal) investigation;
         Jeopardize the safety of an individual;
         Cause a suspect to flee or evade detection; or
         Result in the destruction of evidence.

        Institutions may withhold only that information that could cause an
    adverse effect, and must disclose such information once the adverse
    effect is no longer likely to occur.
        A similar provision could be added by CASA to identify the
    acceptable parameters for delaying notification beyond the standard
    imposed by CASA. For example, a campus conduct office could be
    preparing to send out notification of outcomes in a case when another
    incident occurs, requiring immediate response of interim suspension to
    multiple students and causing a delay in notification of outcomes in
    the former case. There needs to be an allowance for the day to day
    professional discretion for campus administrators to reasonably
    prioritize their caseloads. Perhaps CASA could be revised to require
    notification within 1 business day unless there is reasonable cause to
    delay such notification and let the specifics of this approach be
    determined through a negotiated rulemaking process.
                               senator murkowski
        Question 1. The Campus Accountability and Safety Act (CASA) would
    require an institution to provide a confidential advisor to an assault
    victim. This is intended to provide support and resources to the victim
    in a way that will provide the victim with a sense of safety and
    control, which is laudatory. I am concerned, however, about provisions
    in CASA that specifically state a confidential advisor is not obligated
    to report crimes to the institution and that any requests for
    accommodation the Advisor makes on behalf of a student ``shall not
    trigger an investigation by the institution''. These provisions seem to
    conflict with institutions'' moral and legal obligation under title IX
    to ensure that a campus is safe for all students. Keeping information
    about a crime secret and prohibiting an investigation could lead to an
    increased risk for other students as well as lead to liability for the
    institution should the perpetrator harm additional students. What
    changes do you recommend, to CASA, Title IX, or both, to reconcile this
    conflict?
        Answer 1. As noted in my answer to Senator Hatch's concerns about
    the conflict of interest, the confidential advisor position could be
    exempted from crime reporting by extending the exemption given to
    pastoral and professional counselors and by more directly indicating
    that even if a person that serves as a confidential advisor would
    otherwise have functions that would make them a campus security
    authority or higher education responsible employee, the exemptions
    provided by CASA for confidential advisors would take precedence such
    that confidential advisors would not be expected to perform functions
    traditionally required of campus security authorities or higher
    education responsible employees when learning of possible sexual
    violence (or other Clery Act crimes or forms of sexual harassment).
    This would address your concern as to the legal conflict with the Clery
    Act and Title IX. It is worth noting that the Department of Education's
    April 29, 2014 questions and answers on title ix and sexual violence
    indicated that,

              ``Professional counselors and pastoral counselors whose
            official responsibilities include providing mental-health
            counseling to members of the school community are not required
            by title IX to report any information regarding an incident of
            alleged sexual violence to the title IX coordinator or other
            appropriate school designee'' (p. 22).

        As Congress and the Department of Education has determined that
    some employees of colleges and universities, but not all, are mandatory
    reporters under the Clery Act and Title IX, it would appear that
    granting confidential advisors exemptions would not present an
    increased risk to other students than would circumstances in which a
    disclosure is made to employees who are not already considered to be
    campus security authorities or higher education responsible employees.
    Furthermore, with the victim centered, trauma-informed approach that
    the confidential advisor must take, it seems as though designating a
    truly confidential employee to explain reporting options and provide
    resources may provide the best chance that a victim will decide to
    access resources and report the matter to the title IX coordinator, law
    enforcement (campus or municipal), a campus security authority and/or a
    responsible employee once they are fully apprised of the options and
    resources by a person who is empowered to provide information
    confidentiality (notwithstanding any State laws that may impact certain
    employees reporting obligations).

        Question 2. Experts consulted by the University of Alaska have
    consistently stated that the best way to get absolutely accurate
    results on a campus survey about sexual assault is to assure absolute
    confidentiality and to prohibit publishing the results. This promotes
    higher response rates and allows the institution to respond to gaps,
    concerns, and problems in campus safety issues. CASA advocates suggest
    that a homogenous survey, the results of which are published, will
    assist the consumer in making educated choices. Data suggests that few
    prospective students, their families, or enrolled students review
    campus crime statistics. Do you agree that the campus surveys should be
    used for institutional improvement of policies and practices rather
    than as a consumer tool? Why or why not? Do you recommend that if
    institutions are required to use a survey developed by the Department
    that individual institutions should be able to delete questions that
    are locally or culturally inappropriate? Should there be two surveys--
    one developed by the Department of Education and used as a consumer
    tool and one developed by an institution and used only to improve
    internal practices and policies?
        Answer 2. While I am not familiar with the conclusions drawn by the
    experts you've consulted or the data on which their conclusions are
    based, I am of the opinion that surveys are only worthwhile to the
    extent the data collected are used to understand and improve existing
    conditions/experiences.
        In conducting an exhaustive review of available literature on the
    Clery Act, Dennis Gregory (Old Dominion University) and Steven Janosik
    (Virginia Tech) concluded,

              ``There is no evidence that parents and students are using
            the [Clery] Act to make decisions regarding where to attend
            college and there are no reports that the [Clery] Act has had
            an impact on reducing crime'' (2013, p. 56).

        Given these research-based conclusions, it seems unlikely that
    making additional data available to consumers is likely to change
    consumer behavior. By extension, fashioning the required survey as a
    consumer tool may fail to meet its intended goals.
        However, if the data collected can provide valuable insights as to
    policies or circumstances that impede campus efforts to effectively
    prevent and/or respond to sexual violence, then the data ought to be
    used to drive solutions that a campus believes would address these
    challenges as identified in survey results. If the survey is designed
    with this goal in mind, the results of surveys are far more likely to
    affect positive change. The data from surveys could be used in a
    regular assessment of campus sexual violence prevention and response
    efforts, similar to the required biennial review of drug and alcohol
    abuse prevention programs required by the Drug Free Schools and
    Communities Act of 1989 (which the Department of Education also
    enforces).
        Having two separate surveys is unworkable and may not yield a
    sufficient response to either survey as to draw meaningful conclusions
    or generalize the results to the entire student population. Whether
    institutions develop their own surveys or the Department develops a
    survey to which institutions may add questions, it is imperative that
    appropriate experts within and outside of higher education are
    consulted on the development of these instruments to ensure usable,
    valid and reliable results. As to dissemination, I believe schools
    should be required to share the results upon request if they are not
    mandated by CASA to publish a summary of the results. This would be
    consistent with other consumer disclosure provisions of the existing
    Clery Act.

        Question 3. CASA requires that institutions develop Memorandums of
    Understanding with each law enforcement agency that has jurisdiction.
    Many institutions, including public and private institutions, have
    developed significant e-learning opportunities for their students who
    may never attend classes on campus. This CASA requirement is viewed by
    those institutions, therefore, as fatally vague and unworkable. Do you
    agree, if so, do you have suggestions for addressing this concern?
        Answer 3. The Memoranda of Understanding required by CASA should be
    limited to those local law enforcement agencies that would have primary
    jurisdiction on the institutions on campus (as this location category
    is defined by the Clery Act). Further, as I noted in my response to
    Senator Alexander (Question 7), the committee should provide an
    exemption for sworn campus agencies so they do not have to enter into
    an MOU with another sworn agency when the campus agency already has
    primary jurisdiction to respond to crimes on the campus.

        Question 4. Several witnesses spoke to the complexity of compliance
    with Clery and Title IX. Adoption of the CASA provisions would add
    additional requirements and complexity. Looking at the issue of campus
    safety as a whole, would you recommend that the committee completely
    re-write institutional responsibilities across Clery, Title IX, VAWA,
    and CASA in order to reduce complexity, increase crime reporting and
    transparency, and provide for the rights of all students to a safe
    campus on which to gain an education? If so, what specific suggestions
    do you have for the committee?
        Answer 4. This issue should be within the scope of the task force
    recommended in my response to Senator Alexander's question regarding
    areas of conflict and duplication between Title IX and Clery (Question
    1). The results of the Task Force's examination could determine whether
    rewriting institutional responsibly is necessary and/or desirable once
    the actual areas of overlap/diversion between the various laws and
    guidance documents are known.

        Question 5. I have received concerns from students who have been
    accused of sexual assault on campus and their parents. They tell me
    their rights to a fair hearing were not respected. Complaints included
    that as the accused, they were not informed of their rights under the
    institution's hearing policies, that the victim was provided more
    robust counsel by the university, and that they were denied the right
    to question their accuser and witnesses. CASA requires institutions to
    provide certain information about process to both the victim and the
    accused but leaves to the institution to follow their own policies for
    conducting investigations and hearings. Can this section be improved?
    Should the committee mandate that institutions follow basic policies
    and procedures? If so, please provide specific suggestions.
        Answer 5. I believe the existing VAWA requirements to provide a
    prompt, fair and impartial proceeding, coupled with the aforementioned
    disclosures of procedural protections proposed in my response to
    Senator Alexander's question regarding procedural fairness (Question
    3), address much of these concerns.
        However, I would note that I do not believe campuses should be
    providing any legal counsel to individuals involved in its own
    disciplinary processes. However, campuses should provide the accuser
    and accused with adequate information about the resolution procedures
    to enable the parties to meaningfully and fully participate in the
    process.
        Toward that end, the committee should encourage and/or require
    campuses to train a pool of students and/or employees (i.e., members of
    the campus community) on the investigation and resolution processes,
    and make this pool of individuals known to persons participating in the
    process in case they would like to secure an advisor trained on the
    specific resolution procedures that will be utilized in cases of sexual
    violence. This would provide equitable support options for both parties
    and may help to offset perceptions by the accused that the institution
    only provides resources and support to the accuser (a perception that
    is sure to be bolstered by the appointment of one or more
    ``confidential advisors'' required by CASA).
        I do not think the committee should require campuses to allow
    direct cross-examination. Institutional disciplinary procedures are not
    akin to courts of law, and the Office of Civil Rights noted in its 2011
    Dear Colleague Letter on Sexual Violence that,

              ``OCR strongly discourages schools from allowing the parties
            personally to question or cross-examine each other during the
            hearing. Allowing an alleged perpetrator to question an alleged
            victim directly may be traumatic or intimidating, thereby
            possibly escalating or perpetuating a hostile environment'' (p.
            12).

        However, parties should have the right to challenge/question/
    respond to the information in the case, which does not require direct
    questioning or responding to each other, and can sometimes be done
    without even physically or verbally interacting with each other.
        Finally, as CASA discusses the need for ``victim-centered, trauma-
    informed'' training for those investigating and resolving these cases,
    CASA should also include a requirement that persons involved in the
    investigation and adjudication of these cases (including any appeals)
    be trained on how to design and implement fundamentally fair student
    conduct procedures, including an understanding of the rights/
    protections afforded to the parties (including the accused) and the
    institution's obligations under title IX for all students and
    employees. As many institutional policies and procedures governing how
    the institution responds to allegations of sexual violence are written
    or subject to approval by presidents, compliance officers, and/or
    campus attorneys, any such individuals with that policy authority
    should also receive this training. This would address the interests and
    protections of both the accuser and the accused at the investigation/
    hearing level as well as the institutional governance level.
                               senator whitehouse
        Question 1. In the context of campus sexual assault, campus
    investigations and law enforcement investigations can sometimes work at
    cross purposes. How can we disentangle the campus and law enforcement
    investigations so that one does not impede the other?
        Answer 1. I don't think you can disentangle a law enforcement
    investigation and a civil rights (title IX/campus) investigation. If
    there are two investigations happening in tandem, they will--by their
    very nature--be entangled. The investigative processes have different
    end goals and use different strategies, evidentiary standards,
    personnel, etc. Campuses believe they have approximately 10 days to
    initiate their civil rights investigations based on OCR guidance,\4\
    regardless of the pace of a law enforcement investigation, which can
    take months. The local law enforcement agency often carries the
    perception that the campus civil rights investigation will interfere
    with the law enforcement investigation, and in some cases, that may be
    true. For example, all of the statements that witnesses, the accuser
    and the accused make in the context of civil rights investigations
    could have a negative affect with the law enforcement investigation
    that will ensue, especially to the extent the statements made are
    inconsistent. Given that institutions have a legal obligation to
    conduct a title IX (civil rights) investigation, it would behoove
    institutions to meet with their local law enforcement and prosecuting
    agencies to identify potential challenges and strategies to meet those
    challenges in a way that minimizes adverse effects to each entity.
    ---------------------------------------------------------------------------
        \4\ The 2011 Dear Colleague Letter on Sexual Violence advised
    campuses that,

           ``Although a school may need to delay temporarily the fact-
    finding portion of a title IX investigation while the police are
    gathering evidence, once notified that the police department has
    completed its gathering of evidence (not the ultimate outcome of the
    investigation or the filing of any charges), the school must promptly
    resume and complete its fact-finding for the title IX investigation.''

        This passage was footnoted with a statement that police's evidence
    gathering stage typically takes 3-10 calendar days in a jurisdiction in
    which OCR conducted an investigation, and campuses have generally
    interpreted this example to establish a 10-day standard.

        Although there are going to be some challenges inherent to tandem
    investigations, this issue presents another opportunity for which a
    task force could be useful to the committee. Such a task force could
    explore various challenges and opportunities related to the
    investigation and prosecution/discipline of sexual violence cases on
    campus and within the criminal justice system. Campus police and public
    safety officials, title IX coordinators, institutional general counsel,
    victims' advocates, municipal law enforcement agencies, and
    prosecutorial authorities could collaboratively explore these issues to
    identify best practices and workable solutions. Such a collaboration
    could also be instructive to the HELP Committee at determining what
    ---------------------------------------------------------------------------
    legislative actions to take to assist in this area.

        Question 2. In the context of domestic violence, law enforcement
    officers have become better qualified to address the needs of victims
    by drawing on the expertise of advocacy groups and experts. How can we
    best support the law enforcement community so that officers are
    similarly well-trained to assist survivors of campus sexual assault?
        Answer 2. This is an important question, and one, members of the
    law enforcement community (campus and municipal agencies alike) could
    benefit from additional support. To that end, I would recommend that
    the Department of Justice's Community Oriented Policing Services (COPS)
    office commission a task force to explore this question with higher
    education industry leaders, victim advocates, and members of the law
    enforcement community (both campus and municipal).

        Question 3. Many survivors fear that they may lose control over
    campus sexual assault proceedings if law enforcement gets involved
    early. What can we do to inform students about the course of a law
    enforcement investigation, so they can make an informed choice about
    how to proceed?
        Answer 3. I believe that survivors fear that they may lose control
    if law enforcement gets involved at all, and to some degree that could
    hold true. If the victim reports the crime to law enforcement, in some
    States, the officer may be obligated to interview the alleged
    perpetrator, even if the victim requests that they don't want that to
    happen. In my experience at GW, I can tell you that the majority of
    victims who reported a sexual assault to our department said that they
    wanted to put the incident ``on the record'' but they ``didn't want us
    to do anything'' with the information. As a private law enforcement
    agency, we could honor that request. I imagine that there may be
    agencies that won't (by policy) or can't (by law) honor that kind of
    request. Institutions of higher education are obligated by title IX to
    conduct an investigation, to the extent possible, of any sexual
    violence. This also means that victims can lose control over that
    process as well. For example, if the victim shares the name of the
    perpetrator with the institution, the institution may need to interview
    the subject to conduct an investigation to the extent possible. The
    fear of the victim losing control over the process(s) is very real and
    possible.
        On the other hand, as part of the training they receive, a
    confidential advisor should possess detailed information about the full
    range of local law enforcement's potential involvement and
    investigative processes and the victim's options and influence within
    and throughout that process and any criminal prosecution that may
    follow. This kind of training could supplement the written information
    about the victim's rights and options which institutions must provide
    victims of domestic violence, dating violence, sexual assault and
    stalking (per the VAWA Amendments to the Clery Act). Providing
    confidential advisors with detailed information about criminal
    investigation and prosecution, coupled with the existing VAWA
    disclosures that must be made to victims about reporting options and
    the involvement of law enforcement, should help considerably, although
    the victim's wishes to prosecute or not prosecute should still be the
    primary driver of whether law enforcement gets involved at any stage.

        Question 4. Absent the concern of loss of control (perceived or
    otherwise) by the survivor, are there reasons that experienced, trauma-
    informed, sensitive, effective law enforcement should not be involved
    at early stages of an investigation?
        Answer 4. This concern cannot be set aside, as addressed in our
    response to the last question. Often the most important factor to a
    victim is that they maintain control over what happens to their report,
    including whether the subject will be interviewed, witnesses will be
    interviewed, law enforcement will be involved or if a case will be
    prosecuted. Even the most experienced, trauma-informed, sensitive,
    effective law enforcement officer cannot or should not try to convince
    a victim to cooperate with a criminal investigation or the subsequent
    prosecution of such an offense. The victim should maintain autonomy in
    that regard. The victim's prerogative to involve or not involve law
    enforcement should be of paramount importance and should not be
    undermined by any law, statute or regulation that would cause the
    victim to participate in ways that they are opposed. To force a victim
    to do anything beyond what is right for them would only serve to re-
    victimize the victim. No process should do that, intentionally or
    unintentionally.
                                 senator casey
        Question 1. One of the comments I have heard on multiple occasions
    from institutions is that it is important to remember that not all
    institutions are the same: the institutions covered by title IV (the
    Federal financial aid title) of the Higher Education Act are extremely
    diverse, from large, multi-institution State systems to small liberal
    arts colleges; community colleges with commuter populations; and very
    small technical schools that may only have a couple of classrooms. What
    are some of the different ways in which these diverse institutions have
    met their obligations under the Clery Act?
        Answer 1. More often than not, the complexities of compliance are
    increased for institutions with larger volumes of crime reports and
    larger real estate portfolios for which institutions must collect and
    report crimes for their core campus and noncampus properties. Very few
    of the requirements of the Clery Act do not apply to all institutions
    that receive Federal funding. Noteworthy examples include creating and
    maintaining a daily crime log (only if the institution has campus
    police/campus security) and compliance with the missing persons and
    fire safety provisions (if the institution has on-campus student
    housing facilities). All institutions, however, must comply with all
    remaining Clery Act requirements (a summary of which is provided in my
    testimony).
        The Department of Education recognizes that all institutions are
    differentially impacted by the Act's requirements, including the new
    VAWA requirements. For example, in the small entity compliance guide
    made available by the Department of Education in June 2015 (see http://
    www2.ed.gov/policy/highered/reg/hearulemaking/2012/vawa-compliance-
    guide.doc), the Department notes that the burden imposed by the new
    VAWA requirements may be greater for smaller entities, noting,

              ``The Department recognizes that small entities may need to
            hire additional employees to collect and report the required
            statistics. However, each of the elements of these provisions
            must be addressed'' (p. 6).

        They continue:

              ``Institutions will incur costs associated with the
            additional reporting and disclosure requirements of the
            regulations. The additional workload may result in costs
            associated with either the hiring of additional employees or
            opportunity costs related to the reassignment of existing staff
            from other activities, especially in smaller institutions
            without campus law enforcement or campus security personnel.
            However, as stated above, each of the elements of these
            provisions must be addressed'' (p. 6).

        Much of compliance with the Clery Act involves disclosing policy
    statements. Institutions must typically advise the campus community
    what policies, practices and resources it has for a variety of campus
    safety issues. The VAWA Amendments to the Clery Act go beyond requiring
    disclosure of what policies a campus has to proscribing very specific
    policies and programs institutions must implement and disclose. In
    other words, not only do campuses have to tell their communities about
    their processes, but now they are required to have certain procedures
    as part of their processes. This is what we mean when we say the law
    has become more prescriptive. The more prescriptive the law is in
    telling HOW campuses must do something (rather than the historical
    requirements of telling WHAT they do without prescribing HOW to do it),
    the more adverse the effect on institutions that aren't mid- to large-
    sized residential institutions.

        Question 2. As we have seen in the last several years, many schools
    are struggling to respond appropriately to instances of sexual assault,
    dating violence, domestic violence and stalking. The Campus SaVE Act
    provides additional guidance for schools, without being overly
    prescriptive. For example, the law requires institutions to have
    education and prevention programs in place that meet certain
    benchmarks, but recognizes that a large university is very different
    from a small college and provides flexibility as to how those programs
    are provided. The regulations, developed with input from a varied group
    of stakeholders (including survivors and advocates, institutions of
    different sizes/types, law enforcement, and other higher education
    constituencies) provide further guidance for institutions on how to
    operationalize the law. Finally, I understand that the Department of
    Education is in the process of updating the Clery Handbook for Campus
    Safety and Security Reporting to reflect the changes made by the VAWA
    Amendments. Thus, I do not understand how you can simultaneously claim
    that the law is too prescriptive and too vague at the same time. Which
    is it?
        Answer 2. As I mentioned in my response to question 1, the Campus
    SaVE Act is prescriptive about what procedures a campus must adopt,
    which is an historical departure from the requirement to disclose
    policy statements. The Campus SaVE Act issues mandates, not guidance,
    in that regard.
        With regard to examples of the Department's vagueness, please see
    my answer to Senator Alexander's question about occasions when the
    Department imposes new requirements that are not contained in the
    regulations (Question 5). I believe these highlight some problems
    associated with vagueness in the law.

        Question 3. You claim that the Annual Security Report must contain
    111 separate policy disclosures under the Clery Act. My staff have
    spent significant time trying to replicate that extraordinary claim,
    and have been unable to do so. Please explain how you reached this
    number.
        Answer 3. We have reviewed the statutory and regulatory
    requirements as enumerated in the Clery Act and its implementing
    regulations. We also reviewed the Handbook for Campus Safety and
    Security Reporting (2011) which provides more specific guidance about
    what policy statements should and must be included in the institution's
    Annual Security and Fire Safety Reports. Our listing of the required
    disclosures is as follows.
                       i. campus law enforcement policies
        Question 1. A statement of policies concerning campus law
    enforcement that--Addresses the enforcement authority of security
    personnel.
        2. A statement of policies concerning campus law enforcement that--
    Addresses whether those security personnel have the authority to make
    arrests.
        3. A statement of policies concerning campus law enforcement that--
    Addresses the jurisdiction of security personnel.
        4. A statement of policies concerning campus law enforcement that--
    Addresses the working relationship of campus security personnel with
    State and local police agencies.
        5. A statement about whether the institution has any agreements,
    such as written memoranda of understanding, with the local PD regarding
    the investigation of alleged criminal offenses.
                            ii. reporting procedures
        6. A statement of current campus policies regarding procedures for
    students and others to report criminal actions or other emergencies
    occurring on campus.
        7. A statement of current campus policies regarding procedures for
    students and others to report criminal actions or other emergencies
    occurring on campus. This statement must include the institution's
    policies concerning its response to these reports.
        8. A list of the titles of each person or organization to whom
    students and employees should report the criminal offenses described in
    the law for the purpose of making timely warning reports and the annual
    statistical disclosure.
        9. A statement of policies concerning campus law enforcement that--
    Encourages accurate and prompt reporting of all crimes to the campus
    police and the appropriate police agencies, when the victim of a crime
    elects to, or is unable to, make such a report.
        10. Disclose whether the institution has any policies or procedures
    that allow victims or witnesses to report crimes on a voluntary,
    confidential basis for inclusion in the annual disclosure of crime
    statistics, and if so, a description of those policies and procedures.
        11. A statement of policies concerning campus law enforcement
    that--Describe procedures, if any, that encourage pastoral counselors
    and professional counselors, if and when they deem it appropriate, to
    inform the persons they are counseling of any procedures to report
    crimes on a voluntary, confidential basis for inclusion in the annual
    disclosure of crime statistics.
                         iii. timely warning procedures
        12. Policies for making timely warning reports to members of the
    campus community regarding the occurrence of crimes listed in the Clery
    Act.
        13. A statement that such reports shall be provided to students and
    employees in a manner that is timely, that withholds the names of
    victims as confidential, and that will aid in the prevention of similar
    occurrences.
        14. The circumstances for which a warning will be issued.
        15. The individual or office responsible for issuing the warning
    (who writes it or develops content?).
        16. The individual or office responsible for issuing the warning
    (who initiates it or sends it?).
        17. The manner in which the warning will be disseminated.
                iv. emergency response and evacuation procedures
        18. A statement of current campus policies regarding immediate
    emergency response procedures.
        19. A statement of current campus policies regarding evacuation
    procedures.
        20. A statement of current campus policies regarding immediate
    emergency response and evacuation procedures, including the use of
    electronic and cellular communication (if appropriate).
        21. A statement that the campus will immediately notify the campus
    community upon the confirmation of a significant emergency or dangerous
    situation involving an immediate threat to the health or safety of
    students or employees occurring on the campus.
        22. Provide a description of the process the institution will use
    to: Confirm that there is a significant emergency or dangerous
    situation. (Include a list of the titles of the person(s) or
    organization(s) responsible for carrying out these actions)
        23. Provide a description of the process the institution will use
    to: Determine the appropriate segment or segments of the campus
    community to receive a notification. (Include a list of the titles of
    the person(s) or organization(s) responsible for carrying out these
    actions)
        24. Provide a description of the process the institution will use
    to: Determine the content of the notification. (Include a list of the
    titles of the person(s) or organization(s) responsible for carrying out
    these actions)
        25. Provide a description of the process the institution will use
    to: Initiate the notification system. (Include a list of the titles of
    the person(s) or organization(s) responsible for carrying out these
    actions)
        26. If there is an immediate threat to the health or safety of
    students or employees occurring on campus--describe how the institution
    will provide followup information to the community.
        27. A statement that the institution will, without delay, and
    taking into account the safety of the community, determine the content
    of the notification and initiate the notification system, unless
    issuing a notification will, in the professional judgment of
    responsible authorities, compromise efforts to assist a victim or to
    contain, respond to, or otherwise mitigate the emergency.
        28. Indicate procedures for disseminating emergency information to
    the larger community.
        29. Publicize the procedures to test emergency response and
    evacuation procedures on an annual basis, including--Tests may be
    announced or unannounced. (Test is defined as regularly scheduled
    drills, exercises, and appropriate follow-through activities, designed
    for assessment and evaluation of emergency plans and capabilities).
        30. Publicize the procedures to test emergency response and
    evacuation procedures on an annual basis, including--Publicizing its
    emergency response and evacuation procedures in conjunction with at
    least one test per calendar year;
        31. Publicize the procedures to test emergency response and
    evacuation procedures on an annual basis, including--Documenting, for
    each test, a description of the exercise, the date, time, and whether
    it was announced or unannounced.
                           v. local police department
        32. A statement of policy concerning the monitoring and recording
    through local police agencies of criminal activity by students at
    noncampus locations of student organizations officially recognized by
    the institution, including student organizations with noncampus housing
    facilities.
                vi. security of and access to campus facilities
        33. A statement of current policies concerning security of campus
    facilities, including campus residences.
        34. A statement of current policies concerning access to campus
    facilities, including campus residences.
                     vii. maintenance of campus facilities
        35. Security considerations used in the maintenance of campus
    facilities.
                            viii. education programs
        36. A description of the type and frequency of security awareness
    programs designed to inform students and employees about campus
    security procedures and practices.
        37. A description of the type and frequency of security awareness
    programs designed to inform students and employees about campus
    security procedures and practices and to encourage students and
    employees to be responsible for their own security and the security of
    others.
        38. A description of programs designed to inform students and
    employees about the prevention of crimes.
                         ix. alcohol and drug policies
        39. A statement of policy regarding the:

            a. possession;
            b. use;
            c. sale of alcoholic beverage; and
            d. the enforcement of State underage drinking laws.

        40. A statement of policy regarding the:

            a. possession;
            b. use;
            c. sale of illegal drugs; and
            d. enforcement of Federal and State drug laws.

        41. A description of any drug or alcohol-abuse education programs,
    as required under section 120(a) through (d) of the HEA, otherwise
    known as the Drug-Free Schools and Communities Act of 1989. For the
    purpose of meeting this requirement, an institution may cross-reference
    the materials the institution uses to comply with section 120(a)
    through (d) of the HEA.
                              x. crime statistics
        42. The crimes required by the Clery Act that occurred on or within
    an institution's Clery Geography that were reported to a campus
    security authority.
        43. Policies for preparing the annual disclosure of crime
    statistics.
                         xi. annual fire safety report
        44. Is the fire safety report printed in the Annual Security Report
    or as a separate document? If they are printed together, does the title
    of the report reflect that is the Annual Security and Fire Safety
    Report? If not, does each document reference where to find the other?
        45. The report must contain a description of each on-campus student
    housing facility fire safety system?
        46. The report must contain the number of fire drills held during
    the previous calendar year?
        47. The institution's policies or rules on:

            a. portable electrical appliances;
            b. smoking; and
            c. open flames in a student housing facility.

        48. The institution's procedures for student housing evacuation in
    case of a fire.
        49. The policies regarding fire safety education and training
    programs provided to the students, faculty, and staff.
        50. Describe the procedures that students and employees should
    follow in the case of a fire.
        51. For purposes of including a fire in the statistics in the
    annual fire safety report, a list of the titles of each person or
    organization to which students and employees should report that a fire
    occurred.
        52. Plans for future improvements in fire safety, if determined
    necessary by the institution.
        53. An institution must report statistics for each on-campus
    student housing facility, for the three most recent calendar years for
    which data are available, concerning:

              The number of fires.
              The cause of each fire.
              Number of injuries related to a fire that result in
            treatment at a medical facility.
              Number of deaths related to a fire.
              Value of property damage caused by a fire.
                             xii. missing students
        54. Indicate a list of titles of the persons or organizations to
    which students, employees, or other individuals should report that a
    student has been missing for 24 hours.
        55. Require that any official missing student report must be
    referred immediately to the institution's police or campus security
    department, or, in the absence of an institutional police or campus
    security department, to the local law enforcement agency that has
    jurisdiction in the area.
        56. Contain an option for each student living in an on-campus
    student housing facility to identify a contact person or persons whom
    the institution shall notify within 24 hours of the determination that
    the student is missing, if the student is determined missing by the
    institutional police or campus security department, or the local law
    enforcement agency.
        57. A statement that advises students that their contact
    information will be registered confidentially, and that this
    information will be accessible only to authorized campus officials and
    law enforcement and that it may not be disclosed outside of a missing
    person investigation.
        58. A statement that advises students that if they are under 18
    years of age and not emancipated, the institution must notify a
    custodial parent or guardian within 24 hours of the determination that
    the student is missing, in addition to notifying any additional contact
    person designated by the student.
        59. A statement that advises students that the institution will
    notify the local law enforcement agency within 24 hours of the
    determination that the student is missing, unless the local law
    enforcement agency was the entity that made the determination that the
    student is missing.
        60. The procedures that the institution must follow when a student
    who resides in an on-campus student housing facility is determined to
    have been missing for 24 hours include:

        (i) If the student has designated a contact person, notifying that
    contact person within 24 hours.

        61. The procedures that the institution must follow when a student
    who resides in an on-campus student housing facility is determined to
    have been missing for 24 hours include:

        (ii) If the student is under 18 years of age and is not
    emancipated, notifying the student's custodial parent or guardian and
    any other designated contact person within 24 hours.

        62. The procedures that the institution must follow when a student
    who resides in an on-campus student housing facility is determined to
    have been missing for 24 hours include:

        (iii) Regardless of whether the student has identified a contact
    person, is above the age of 18, or is an emancipated minor, informing
    the local law enforcement agency that has jurisdiction in the area that
    the student is missing within 24 hours.
                         xiii. heoa victim notification
        63. Statement that the institution will, upon written request,
    disclose to the alleged victim of a crime of violence or a non-forcible
    sex offense, the report on the results of any disciplinary proceeding
    conducted by the institution against a student who is the alleged
    perpetrator of such crime or offense. If the alleged victim is deceased
    as a result of such crime or offense, the next of kin of such victim
    shall be treated as the alleged victim for purposes of this paragraph.
                           xiv. sex offender registry
        64. A statement advising the campus community where law enforcement
    agency information, provided by a State under section 121 of the Adam
    Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16921),
    concerning registered sex offenders may be obtained, such as the law
    enforcement office of the institution, a local law enforcement agency
    with jurisdiction for the campus, or a computer network address.
       xv. policies and procedures related to dating violence, domestic
                     violence, sexual assault and stalking
        65. A statement of policy regarding the institution's programs to
    prevent dating violence, domestic violence, sexual assault, and
    stalking, as defined in paragraph (a) of this section. The statement
    must include:

        66. A statement that the institution of higher education prohibits
    the crimes of domestic violence, dating violence, sexual assault, and
    stalking.
        67. The definition (from VAWA) of dating violence.

        Dating Violence: Violence committed by a person who is or has been
    in a social relationship of a romantic or intimate nature with the
    victim.

        i. The existence of such a relationship shall be based on the
    reporting party's statement and with consideration of the length of the
    relationship, the type of relationship, and the frequency of
    interaction between the persons involved in the relationship.
        ii. For the purposes of this definition--

              (A)  Dating Violence includes, but is not limited to, sexual
            or physical abuse or the threat of such abuse.
              (B)  Dating violence does not include acts covered under the
            definition of domestic violence.

        68. The definition (from VAWA) of domestic violence.

        Domestic Violence:

        i. A Felony or misdemeanor crime of violence committed--

            (A)  By a current or former spouse or intimate partner of the
            victim;
            (B)  By a person with whom the victim shares a child in common;
            (C)  By a person who is cohabitating with, or has cohabitated
            with, the victim as a spouse or intimate partner;
            (D)  By a person similarly situated to a spouse of the victim
            under the domestic or family violence laws of the jurisdiction
            in which the crime of violence occurred; or
            (E)  By any other person against an adult or youth victim who
            is protected from that person's acts under the domestic or
            family violence laws of the jurisdiction in which the crime of
            violence occurred.

        69. The definition (from VAWA) of sexual assault.

        Sexual Assault: An offense that meets the definition of rape,
    fondling, incest, or statutory rape as used in the FBI's Uniform Crime
    Reporting (UCR) program. Per the National Incident-Based Reporting
    System User Manual from the FBI UCR Program, A sex offense is ``any
    sexual act directed against another person, without the consent of the
    victim, including instances where the victim is incapable of giving
    consent.''

         Rape: The penetration, no matter how slight, of the vagina
    or anus with any body part or object, or oral penetration by a sex
    organ of another person, without the consent of the victim.
         Fondling: The touching of the private parts of another
    person for the purpose of sexual gratification, without the consent of
    the victim, including instances where the victim is incapable of giving
    consent because of his/her age or because of his/her temporary or
    permanent mental incapacity.
         Incest: Sexual intercourse between persons who are related
    to each other within the degrees wherein marriage is prohibited by law.
         Statutory Rape: Sexual intercourse with a person who is
    under the statutory age of consent.

        70. The definition (from VAWA) of stalking.

        Stalking:

        i. Engaging in a course of conduct directed at a specific person
    that would cause a reasonable person to--

            (A)  Fear for the person's safety or the safety of others; or
            (B)  Suffer substantial emotional distress.

        ii. For the purposes of this definition--

            (A)  Course of conduct means two or more acts, including, but
            not limited to, acts which the stalker directly, indirectly, or
            through third parties, by any action, method, device, or means
            follows, monitors, observes, surveils, threatens, or
            communicates to or about, a person, or interferes with a
            person's property.
            (B)  Reasonable person means a reasonable person under similar
            circumstances and with similar identities to the victim.
            (C)  Substantial emotional distress means significant mental
            suffering or anguish that may, but does not necessarily,
            require medical or other professional treatment or counseling.

        71. The definition, in the applicable jurisdiction, of:

            a. dating violence,
            b. domestic violence,
            c. sexual assault, and
            d. stalking.

        72. The definition of consent, in reference to sexual activity, in
    the applicable jurisdiction.
        73. A description of safe and positive options for bystander
    intervention; (Bystander intervention means safe and positive options
    that may be carried out by an individual or individuals to prevent harm
    or intervene when there is a risk of dating violence, domestic
    violence, sexual assault or stalking. Bystander intervention includes
    recognizing situations of potential harm, understanding institutional
    structures and cultural conditions that facilitate violence, overcoming
    barriers to intervening, identifying safe and effective intervention
    options, and taking action to intervene).
        74. Information on risk reduction (Risk reduction means options
    designed to decrease perpetration and bystander inaction, and to
    increase empowerment for victims in order to promote safety and to help
    individuals and communities address conditions that facilitate
    violence).
        75. A statement of policy that addresses the institution's programs
    to prevent dating violence, domestic violence, stalking and sexual
    assault. The statement must include: (Programs to prevent dating
    violence, domestic violence, sexual assault, and stalking means
    comprehensive, intentional, and integrated programming, initiatives,
    strategies, and campaigns intended to end dating violence, domestic
    violence, sexual assault, and stalking that--

            (A)  Are culturally relevant, inclusive of diverse communities
            and identities, sustainable, responsive to community needs, and
            informed by research or assessed for value, effectiveness, or
            outcome; and
            (B)  Consider environmental risk and protective factors as they
            occur on the individual, relationship, institutional,
            community, and societal levels.

        Programs to prevent dating violence, domestic violence, sexual
    assault, and stalking include both primary prevention and awareness
    programs directed at incoming students and new employees and ongoing
    prevention and awareness campaigns directed at students and employees).
        76. A description of the institution's primary prevention and
    awareness programs for all incoming students and employees, which must
    include:

        77. A statement that the institution of higher education prohibits
    the crimes of domestic violence, dating violence, sexual assault, and
    stalking;
        78. The definition (from VAWA) of dating violence, domestic
    violence, sexual assault and stalking;
        79. The definition of ``dating violence,'' ``domestic violence,''
    ``sexual assault,'' and ``stalking'' in the applicable jurisdiction;
        80. The definition of consent, in reference to sexual activity, in
    the applicable jurisdiction;
        81. A description of safe and positive options for bystander
    intervention;
        82. Information on risk reduction; and
        83. The information described in paragraphs (b)(11) and (k)(2) of
    the Clery Act regulations (these references pertain to the applicable
    sections in the final regulations. (b)(11) is the statement of policy
    regarding the institution's programs to prevent dating violence,
    domestic violence, sexual assault, and stalking and of procedures that
    the institution will follow when one of these crimes is reported.
    (k)(2) pertains to the procedural requirements for institutional
    disciplinary action in cases of alleged dating violence, domestic
    violence, sexual assault, and stalking).

        84. A description of the institution's ongoing prevention and
    awareness campaigns for students and employees, including information
    described in including information described in paragraph (j)(1)(i)(A)
    through (F) of the final regulations (i.e., includes the red text
    above). (Ongoing prevention and awareness campaigns means programming,
    initiatives, and strategies that are sustained over time and focus on
    increasing understanding of topics relevant to and skills for
    addressing dating violence, domestic violence, sexual assault, and
    stalking, using a range of strategies with audiences throughout the
    institution).
        85. A statement of policy regarding the institution's programs to
    prevent dating violence, domestic violence, sexual assault, and
    stalking, as defined in paragraph (a) of this section. The statement
    must include the procedures that the institution will follow when one
    of these crimes is reported.
        86. Procedures victims should follow if a crime of domestic
    violence, dating violence, sexual assault, or stalking has occurred,
    including written information about--

        87. The importance of preserving evidence that may assist in
    proving that the alleged criminal offense occurred or may be helpful in
    obtaining a protection order;
        88. How and to whom the alleged offense should be reported;
    (indicate that it can be reported to the title IX coordinator);
        89. Options about the involvement of law enforcement and campus
    authorities, including notification of the victim's option to--Notify
    proper law enforcement authorities, including on-campus and local
    police;
        90. Options about the involvement of law enforcement and campus
    authorities, including notification of the victim's option to--Be
    assisted by campus authorities in notifying law enforcement authorities
    if the victim so chooses;
        91. Options about the involvement of law enforcement and campus
    authorities, including notification of the victim's option to--Decline
    to notify such authorities; and
        92. Where applicable, the rights of victims and the institution's
    responsibilities regarding orders of protection, ``no contact'' orders,
    restraining orders or similar lawful orders issued by a criminal,
    civil, or tribal court or by the institution.

        93. A statement that, when a student or employee reports to the
    institution that the student or employee has been a victim of dating
    violence, domestic violence, sexual assault, or stalking, whether the
    offense occurred on or off campus, the institution will provide the
    student or employee with a written explanation of the student or
    employee's rights and options, as described in paragraphs (b)(11)(ii)
    through (vi) of this section (these sections of the final regulations
    include the procedures victims should follow if a crime of dating
    violence, domestic violence, sexual assault or stalking has occurred;
    information about how the institution will protect the confidentiality
    of victims and other necessary parties; a statement that the
    institution will provide written notification to students and employees
    about victim services within the institution and in the community; a
    statement regarding the institution's provisions about options for,
    available assistance in, and how to request accommodations and
    protective measures; and an explanation of the procedures for
    institutional disciplinary action).
        94. A statement that the institution will provide written
    notification of victims about options for, available assistance in, and
    how to request changes to academic, living, transportation, and working
    situations or protective measures. The institution must make such
    accommodations or provide such protective measures if they are
    reasonably available, regardless of whether the victim chooses to
    report the crime to campus police or local law enforcement.
        95. A statement that the institution will provide written
    notification to students and employees about existing resources
    available for victims within the institution:

        a. counseling,
        b. health,
        c. mental health,
        d. victim advocacy,
        e. legal assistance,
        f. visa,
        g. immigration assistance,
        h. student financial aid, and
        i. other services available for victims.

        96. A statement that the institution will provide written
    notification to students and employees about existing resources
    available for victims within the larger community:

        a. counseling,
        b. health,
        c. mental health,
        d. victim advocacy,
        e. legal assistance,
        f. visa,
        g. immigration assistance,
        h. student financial aid, and
        i. other services available for victims.

        97. A statement of policy regarding the institution's programs to
    prevent dating violence, domestic violence, sexual assault, and
    stalking, as defined in paragraph (a) of this section, and of
    procedures that the institution will follow when one of these crimes is
    reported. The statement must include--Information about how the
    institution will protect the confidentiality of victims and other
    necessary parties, including how the institution will--

        98. Complete publicly available recordkeeping, including Clery Act
    reporting and disclosures, without the inclusion of personally
    identifying information about the victim, as defined in section
    40002(a)(20) of the Violence Against Women Act of 1994 (42 U.S.C.
    13925(a)(20)); and
        99. Maintain as confidential any accommodations or protective
    measures provided to the victim, to the extent that maintaining such
    confidentiality would not impair the ability of the institution to
    provide the accommodations or protective measures.

        100. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that (2) Provides that the proceedings will--Include a prompt,
    fair, and impartial process from the initial investigation to the final
    result; A prompt, fair, and impartial proceeding includes a proceeding
    that is--

        (A) Completed within reasonably prompt timeframes designated by an
    institution's policy, including a process that allows for the extension
    of timeframes for good cause with written notice to the accuser and the
    accused of the delay and the reason for the delay;
        (B) Conducted in a manner that:

            (1)  Is consistent with the institution's policies and
            transparent to the accuser and accused;
            (2)  Includes timely notice of meetings at which the accuser or
            accused, or both, may be present;
            (3)  Provides timely and equal access to the accuser, the
            accused, and appropriate officials to any information that will
            be used during informal and formal disciplinary meetings and
            hearings; and

        (C) Conducted by officials who do not have a conflict of interest
    or bias for or against the accuser or the accused.

        101. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that (2) Provides that the proceedings will--Be conducted by
    officials who, at a minimum, receive annual training on the issues
    related to dating violence, domestic violence, sexual assault, and
    stalking and on how to conduct an investigation and hearing process
    that protects the safety of victims and promotes accountability;
        102. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that (2) Provides that the proceedings will--Provide the accuser
    and the accused with the same opportunities to have others present
    during any institutional disciplinary proceeding, including the
    opportunity to be accompanied to any related meeting or proceeding by
    an advisor of their choice. (Advisor means any individual who provides
    the accuser or accused support, guidance, or advice.)
        103. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that (2) Provides that the proceedings will--Not limit the
    choice of advisor or presence for either the accuser or the accused in
    any meeting or institutional disciplinary proceeding; however, the
    institution may establish restrictions regarding the extent to which
    the advisor may participate in the proceedings, as long as the
    restrictions apply equally to both parties.
        104. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that (2) Provides that the proceedings will--Require
    simultaneous notification, in writing, to both the accuser and the
    accused, of--The result of any institutional disciplinary proceeding
    that arises from an allegation of dating violence, domestic violence,
    sexual assault, or stalking; (Result means any initial, interim, and
    final decision by any official or entity authorized to resolve
    disciplinary matters within the institution. The result must include
    any sanctions imposed by the institution. Notwithstanding section 444
    of the General Education Provisions Act (20 U.S.C.1232g), commonly
    referred to as the Family Educational Rights and Privacy Act (FERPA),
    the result must also include the rationale for the result and the
    sanctions.)
        105. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that (2) Provides that the proceedings will--Require
    simultaneous notification, in writing, to both the accuser and the
    accused, of--The institution's procedures for the accused and the
    victim to appeal the result of the institutional disciplinary
    proceeding, if such procedures are available.
        106. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that (2) Provides that the proceedings will--Require
    simultaneous notification, in writing, to both the accuser and the
    accused, of--Any change to the result.
        107. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that (2) Provides that the proceedings will--Require
    simultaneous notification, in writing, to both the accuser and the
    accused, of--When such results become final.
        108. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that--Describes each type of disciplinary proceeding used by the
    institution to include:

         the steps;
         anticipated timelines;
         decisionmaking process for each type of disciplinary
    proceeding;
         how to file a disciplinary complaint; and
         how the institution determines which type of proceeding to
    use based on the circumstances of an allegation of dating violence,
    domestic violence, sexual assault, or stalking. (Proceeding means all
    activities related to a non-criminal resolution of an institutional
    disciplinary complaint, including, but not limited to, fact finding
    investigations, formal or informal meetings, and hearings. Proceeding
    does not include communications and meetings between officials and
    victims concerning accommodations or protective measures to be provided
    to a victim.)

        109. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that--Describes the standard of evidence that will be used
    during any institutional disciplinary proceeding arising from an
    allegation of dating violence, domestic violence, sexual assault, or
    stalking.
        110. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that--Lists all possible sanctions that the institution may
    impose following the results of an institutional disciplinary procedure
    for an allegation of dating violence, domestic violence, sexual
    assault, or stalking.
        111. Procedures for institutional disciplinary action in cases of
    alleged dating violence, domestic violence, sexual assault, or stalking
    .  . . that--Describes the range of protective measures that such
    institution may offer to the victim following an allegation of dating
    violence, domestic violence, sexual assault, or stalking.
    Response by Mollie Benz-Flounlacker to Questions of Senator Alexander,
     Senator Hatch, Senator Murkowski, Senator Whitehouse and Senator Casey
                               senator alexander
        Question 1. Do you have specific suggestions about how Title IX and
    the Clery Act, including their implementing regulations and guidance,
    can be improved and/or clarified to provide institutions of higher
    education the flexibility they need?
        Are there areas where these laws, regulations, or guidance
    conflict?
        Are there areas where they are duplicative?
        Answer 1. We appreciate the opportunity to work with Congress to
    provide greater clarity about the intersection between the Clery Act,
    Title IX, and proposed CASA provisions. While Title IX and the Clery
    Act are not necessarily contradictory, there are some areas of overlap
    that should be taken into account when crafting CASA or other
    legislation that affects one or both laws. For example, the Violence
    Against Women Act (VAWA) amendments to the Clery Act established
    parameters around institutional policies for campus disciplinary
    processes, and these types of policies are also addressed in detailed
    guidance from the U.S. Department of Education's Office of Civil Rights
    (OCR) regarding title IX implementation. Although the Clery Act states
    that the Secretary does not have authority to mandate specific policies
    under the Act, OCR title IX guidance does require specific types of
    disciplinary policies to be in place. Requirements to report instances
    of sexual assault are also addressed in both the Clery Act and OCR
    guidance on title IX.
        CASA or any new legislation should take great care to not create
    further areas of overlap or confusion. There are cases when slightly
    different roles, responsibilities, and policies among the statutes,
    regulations, and guidance are appropriate to protect students and/or to
    distinguish between criminal and other acts. For example, the CASA
    concept of an individual to help students report sexual assaults and
    obtain accommodations might be the same person as the title IX
    coordinator, or it might be a different employee, based on the best
    judgment of an institution of higher education. However, these
    differences and areas of overlap must be carefully thought through and
    coordinated in statute, regulations, and guidance to ensure an
    efficient, cohesive system that reduces confusion for students,
    families, and institutions working to comply with the various Federal
    laws and requirements.
        AAU and the broader higher education community are in the process
    of identifying other specific areas of conflict or duplication to
    inform the legislative process, including recommendations for
    solutions.
        We do not think that the current provision in CASA requiring OCR
    and the Office of Postsecondary Education to issue guidance within 6
    months on how the laws interact will be helpful. This is, in part,
    because there is no requirement that colleges or universities or
    advocacy groups would be consulted as part of the effort, and the 6-
    month deadline does not allow enough time for this complex task. We
    believe the Department should be required to conduct a negotiated
    rulemaking process to identify issues and seek workable solutions.

        Question 2. Do you have suggestions about how institutions of
    higher education can best coordinate with law enforcement without
    turning the institutions into de facto law enforcement agencies?
        Answer 2. Colleges want State and local law enforcement agencies to
    be involved in dealing with crimes on campus including incidents of
    sexual violence, while also honoring the victims' wishes.
        Memoranda of Understanding (MOUs) can be very useful tools for
    improving coordination and establishing procedures for responding to
    and handling reports of sexual assault. Many colleges already have, or
    are in the process of developing, MOUs. Some State laws also require
    colleges to develop MOUs. The current content requirements in CASA for
    an MOU are too prescriptive; colleges need more flexibility to better
    protect their students. MOUs are probably most helpful when they
    include general protocols for responding to and handling reports of
    sexual assault, including, for example, clarifications of each agency
    or department's responsibilities under Federal, State or local laws and
    policies, and provisions to ensure that responding local law
    enforcement may notify an alleged victim of sexual assault of the
    existence of university resources required by this section, where such
    responder has reason to know or believe that a student is involved.

        Question 3. Do you have suggestions about what we can do, or not
    do, to make sure colleges establish procedures dealing with allegations
    of sexual assault that are fair and protect the due process rights of
    the accuser and the accused?
        Answer 3. We support giving higher education institutions the
    resources they need to conduct prompt, fair, and impartial campus
    processes, as is currently required by the Clery Act. Institutions have
    responsibilities to both parties involved in any given case. At a
    minimum, Congress should ensure that CASA does not include language
    that contradicts current Federal law, particularly with respect to
    additional training techniques, and to ensure these techniques are fair
    to both parties involved in a given case. Any written notice of
    institutional disciplinary processes and determination should include
    information about the rights and protections available to both parties
    under institutional policy and current law.
                                 senator hatch
        Question 1. We have heard from several community colleges in Utah
    regarding the ``confidential advisor'' aspect of the CASA bill. They
    are concerned about the undue burden that might arise by tying the
    number of advisors to the number of students. On average, non-
    residential campuses, like community colleges, have fewer incidents of
    sexual assault cases reported than residential campuses. Because the
    numbers of incidents vary based on the type of institution, should we
    tie the number of advisers for a campus based on the number of
    incidents reported, rather than student body?
        Answer 1. We strongly support giving survivors of sexual assault
    access to a confidential advisor whose sole responsibility is to
    counsel and support the victim. Colleges should have responsibility for
    identifying a reasonable number of advisors based on an assessment of
    institutional needs. There is no precedent, nor is there any need, for
    the Department of Education to specify how many employees colleges must
    have for a particular job category, as required in CASA. Those
    decisions are best made by campus leaders and administrators.

        Question 2. There is a clear conflict of interest inherent in the
    confidential advisor role, since that person is employed by an
    institution of higher education and has certain reporting
    responsibilities under the Clery Act, as Senator Collins has pointed
    out. I would be interested in learning if there were other, non-
    affiliated resources available to students that may more appropriately
    play a confidential and/or counseling role, and if this would be a
    suitable use for funds generated by the fines.
        Answer 2. We agree that requiring the confidential advisor to
    report cases of sexual assault is highly problematic and recommend that
    Congress eliminate this requirement from the advisor's set of
    responsibilities. Instead, similar to personnel at a campus counseling
    center or other mental health services provider, the main role of the
    confidential advisor should be that of a counselor, who retains the
    same commitment to confidentiality as similar professionals under
    ethics codes and local, State, and Federal laws. The confidential
    advisor should be trained to refer students to other persons or
    entities on campus for reporting or accommodation purposes. The
    confidential advisor might be an employee of the university or a
    trained professional from a non-affiliated community resource, such as
    a crisis counseling center.
        At the same time, the duty to report instances of sexual assault
    and provide accommodations to survivors is also critical. Students
    should be informed about who holds the responsibility to report or
    investigate these instances. Colleges are required under title IX to
    track and report accommodations provided in response to sexual assault,
    which directly conflicts with the CASA requirement that an
    accommodation shall not trigger an investigation by the school.
        For many schools, they typically believe that if they are making
    accommodations for a student, it is sufficient to warrant an
    investigation. Instead of creating a confusing conflict for both
    students and counselors, we recommend a bright-line rule between
    individuals serving in the confidential advisor's counseling role and
    those individuals responsible for reporting instances of assault and
    liaising to provide accommodations.

        Question 3. Some non-residential and online institutions in Utah
    have expressed a concern about the practicality of the 24 hours notice,
    as stated in the CASA bill. I am interested to know how feasible this
    timeline is, and if there is a more practicable timeline?
        Answer 3. Colleges take very seriously their responsibilities to
    survivors of sexual assault. The legislation creates new 24-hour
    requirements for institutions to notify both the accuser and accused of
    campus disciplinary decisions and outcomes in proceedings for sexual
    violence. While we believe colleges should make every effort to inform
    both parties promptly, this short timeframe may be unrealistic in
    certain circumstances and is likely to lead to unintended and negative
    consequences for students. A temporary delay also may be necessary to
    protect a student in fragile circumstances following a traumatic event.
    In most cases, these notices would require legal review, thereby
    requiring additional time. We believe colleges should be given greater
    flexibility, perhaps a 3-day period with flexibility beyond that time
    window given for extenuating circumstances.
                               senator murkowski
        Question 1. The Campus Accountability and Safety Act (CASA) would
    require an institution to provide a confidential advisor to an assault
    victim. This is intended to provide support and resources to the victim
    in a way that will provide the victim with a sense of safety and
    control, which is laudatory. I am concerned, however, about provisions
    in CASA that specifically state a confidential advisor is not obligated
    to report crimes to the institution and that any requests for
    accommodation the Advisor makes on behalf of a student ``shall not
    trigger an investigation by the institution.'' These provisions seem to
    conflict with institutions' moral and legal obligation under title IX
    to ensure that a campus is safe for all students. Keeping information
    about a crime secret and prohibiting an investigation could lead to an
    increased risk for other students as well as lead to liability for the
    institution should the perpetrator harm additional students. What
    changes do you recommend, to CASA, Title IX, or both, to reconcile this
    conflict?
        Answer 1. Similar to personnel at campus counseling centers or
    other mental health services providers, the main role of the
    confidential advisor should be that of a counselor, who retains the
    same commitment to confidentiality as similar professionals under
    ethics codes and local, State, and Federal laws. This confidential
    advisor should be trained to refer students to the appropriate persons
    or entities on campus for reporting an assault or for accommodations
    purposes. We believe that requiring the confidential advisor to report
    cases of sexual assault is highly problematic for confidentiality
    purposes under title IX obligations, and we strongly recommend that it
    be eliminated.
        At the same time, the duty to report instances of sexual assault
    and provide accommodations to survivors is critical; and students
    should be informed about who holds the responsibility to report or
    investigate these instances. Colleges are required under title IX to
    track and report accommodations provided in response to sexual assault,
    which directly conflicts with the CASA requirement that an
    accommodation shall not trigger an investigation by the school.
        For many schools, they typically believe that if they are making
    accommodations for a student it is sufficient to warrant an
    investigation. Instead of creating a confusing conflict for both
    students and counselors, we recommend a bright-line rule between
    individuals serving in the confidential advisor's counseling role and
    those individuals responsible for reporting instances of assault and
    liaising to provide accommodations.

        Question 2. Experts consulted by the University of Alaska have
    consistently stated that the best way to get absolutely accurate
    results on a campus survey about sexual assault is to assure absolute
    confidentiality and to prohibit publishing the results. This promotes
    higher response rates and allows the institution to respond to gaps,
    concerns, and problems in campus safety issues. CASA advocates suggest
    that a homogenous survey, the results of which are published, will
    assist the consumer in making educated choices. Data suggests that few
    prospective students, their families, or enrolled students review
    campus crime statistics. Do you agree that the campus surveys should be
    used for institutional improvement of policies and practices rather
    than as a consumer tool? Why or why not? Do you recommend that if
    institutions are required to use a survey developed by the Department
    that individual institutions should be able to delete questions that
    are locally or culturally inappropriate? Should there be two surveys--
    one developed by the Department of Education and used as a consumer
    tool and one developed by an institution and used only to improve
    internal practices and policies?
        Answer 2. We agree that the campus survey should be designed first
    and foremost as a research-based tool to help schools better understand
    the attitudes and experiences of their students with respect to sexual
    assault and inform campus policies and procedures going forward. We
    also think that survey data can be useful to Federal policymakers as
    they consider legislative and administrative responses, as well as
    provide researchers with new data as they continue to study this
    complex issue. Schools should share survey results with their students,
    in the spirit of transparency.
        We have serious concerns with the requirement for the Secretary of
    Education, as outlined in CASA, to develop a single survey instrument
    without the input of higher education experts for use at all colleges.
    It is unclear in CASA how the Department of Education plans to gather,
    publicly release, and provide college to college comparisons from the
    survey results. We believe that a campus-controlled (either directly or
    contractually administered) survey is most helpful for colleges in
    designing questions that fit their unique campus culture and, to the
    extent possible, in maximizing their student participation rates.

        Question 3. CASA requires that institutions develop Memorandums of
    Understanding with each law enforcement agency that has jurisdiction.
    Many institutions, including public and private institutions, have
    developed significant e-learning opportunities for their students who
    may never attend classes on campus. This CASA requirement is viewed by
    those institutions, therefore, as fatally vague and unworkable. Do you
    agree, if so, do you have suggestions for addressing this concern?
        Answer 3. We believe any requirements related to MOUs should refer
    to those agencies that, by policy or practice, may reasonably be
    expected to have primary jurisdiction to respond to a report of sexual
    assault from an enrolled student of an institution.

        Question 4. Several witnesses spoke to the complexity of compliance
    with Clery and Title IX. Adoption of the CASA provisions would add
    additional requirements and complexity. Looking at the issue of campus
    safety as a whole, would you recommend that the committee completely
    re-write institutional responsibilities across Clery, Title IX, VAWA,
    and CASA in order to reduce complexity, increase crime reporting and
    transparency, and provide for the rights of all students to a safe
    campus on which to gain an education? If so, what specific suggestions
    do you have for the committee?
        Answer 4. We appreciate the opportunity to work with Congress to
    provide greater clarity about the intersection between the Clery Act,
    Title IX, and proposed CASA provisions. While Title IX and the Clery
    Act are not necessarily contradictory, there are some areas of overlap
    that should be taken into account when crafting CASA or other language.
    For example, the VAWA amendments to the Clery Act established
    parameters around institutional policies for campus disciplinary
    processes, and these types of policies are also addressed in detailed
    guidance from OCR regarding title IX implementation. Although the Clery
    Act states that the Secretary does not have authority to mandate
    specific policies under the Act, OCR title IX guidance does require
    specific types of disciplinary policies to be in place. Requirements to
    report instances of sexual assault are also addressed in both the Clery
    Act and OCR guidance on title IX.
        CASA or any new legislation should take great care to not create
    further areas of overlap or confusion. There are cases when slightly
    different roles, responsibilities, and policies among the statutes,
    regulations, and guidance are appropriate to protect students and/or to
    distinguish between criminal and other acts. For example, the CASA
    concept of an individual to help students report sexual assaults and
    obtain accommodations might be the same person as the title IX
    coordinator, or it might be a different employee, based on the best
    judgment of an institution of higher education. However, these
    differences and areas of overlap must be carefully thought through and
    coordinated in statute, regulations, and guidance to ensure an
    efficient, cohesive system that reduces confusion for students,
    families, and institutions working to comply with the various Federal
    laws and requirements.
        AAU and the broader higher education community are in the process
    of identifying other specific areas of conflict or duplication to
    inform the legislative process, including recommendations for
    solutions.
        We do not think that the current provision in CASA requiring OCR
    and the Office of Postsecondary Education to issue guidance within 6
    months on how the laws interact will be helpful. This is, in part,
    because there is no requirement that colleges or universities or
    advocacy groups would be consulted as part of the effort, and the 6-
    month deadline does not allow enough time for this complex task. We
    believe the Department should be required to conduct a negotiated
    rulemaking process to identify issues and seek workable solutions.

        Question 5. I have received concerns from students who have been
    accused of sexual assault on campus and their parents. They tell me
    their rights to a fair hearing were not respected. Complaints included
    that as the accused, they were not informed of their rights under the
    institution's hearing policies, that the victim was provided more
    robust counsel by the university, and that they were denied the right
    to question their accuser and witnesses. CASA requires institutions to
    provide certain information about process to both the victim and the
    accused but leaves to the institution to follow their own policies for
    conducting investigations and hearings. Can this section be improved?
    Should the committee mandate that institutions follow basic policies
    and procedures? If so, please provide specific suggestions.
        Answer 5. We support giving schools the resources they need to
    provide notice of and conduct prompt, fair, and impartial campus
    processes, as is currently required by the Clery Act. Colleges have
    responsibilities to both parties involved in any given case.
    Additionally, recently updated current law--which took effect July 1,
    2015--already requires prompt notice to both parties at decision points
    throughout the disciplinary process. At a minimum, Congress should
    ensure that CASA does not include language that creates confusion by
    contradicting current law. We do not support mandating specific
    procedures for disciplinary proceedings because there is no one-size-
    fits-all model that works for all schools.
                               senator whitehouse
        Question 1. In the context of campus sexual assault, campus
    investigations and law enforcement investigations can sometimes work at
    cross purposes. How can we disentangle the campus and law enforcement
    investigations so that one does not impede the other?
        Answer 1. Colleges are open to working with local law enforcement
    and ensuring that processes don't impede one another. CASA can help
    foster a more collaborative context by focusing primarily on sexual
    assault (i.e., criminal offenses) when it comes to interactions with
    local law enforcement so that definitions, roles, and responsibilities
    are better aligned between institutions of higher education and local
    law enforcement.

        Question 2. In the context of domestic violence, law enforcement
    officers have become better qualified to address the needs of victims
    by drawing on the expertise of advocacy groups and experts. How can we
    best support the law enforcement community so that officers are
    similarly well-trained to assist survivors of campus sexual assault?
        Answer 2. Colleges are committed to ensuring that their employees
    have the information and tools they need to assist survivors of campus
    sexual assault and to provide prompt, fair, and impartial campus
    disciplinary processes. We are committed to collaboration with our
    colleagues in the law enforcement community to ensure that campuses are
    safe for students.

        Question 3. Many survivors fear that they may lose control over
    campus sexual assault proceedings if law enforcement gets involved
    early. What can we do to inform students about the course of a law
    enforcement investigation, so they can make an informed choice about
    how to proceed?
        Answer 3. It should be the role of the confidential advisor to
    inform the survivor about college reporting processes, how to file an
    official police report, and available on-and off-campus resources.
        These resources should include information specific to the local
    law enforcement in the jurisdiction. It should then be up to the
    survivor to decide how best to proceed.

        Question 4. Absent the concern of loss of control (perceived or
    otherwise) by the survivor, are there reasons that experienced, trauma-
    informed, sensitive, effective law enforcement should not be involved
    at early stages of an investigation?
        Answer 4. The survivor should decide when and how to proceed with
    local law enforcement. Colleges welcome State and local law enforcement
    agency involvement in dealing with crimes on campus, if supported by
    the survivor. However, we do not support legislation mandating that
    colleges hold off on any campus investigation pending an outside
    criminal investigation.
                                 senator casey
        Question 1. In your testimony, you talk about the sexual assault
    climate survey that AAU contracted with Westat to do. You worked with a
    number of experts and institutional stakeholders to design the survey
    instrument. Did you, at any point in this process, consult with
    students, survivors or victims? advocates about the design of the
    survey instrument and what information they would find helpful? If not,
    how might that have affected the usefulness and validity of the survey?
        Answer 1. The development process for the survey instrument was
    extensive. The survey design team received more than 700 comments about
    the survey from participating institutions during the development
    period. In addition, college students provided feedback through two
    rounds of cognitive testing conducted at Westat and pilot
    administration groups conducted at four participating colleges, which
    included survivor and victims? advocates.

        Question 2. One of the comments I have heard on multiple occasions
    from institutions is that it is important to remember that not all
    institutions are the same: the institutions covered by title IV (the
    Federal financial aid title) of the Higher Education Act are extremely
    diverse, from large, multi-institution State systems to small liberal
    arts colleges; community colleges with commuter populations; and very
    small technical schools that may only have a couple of classrooms. Do
    you believe that the policies currently contained in the statutory text
    of the Clery Act include sufficient flexibility for different types of
    institutions of higher education?
        Answer 2. N/A.

        [Whereupon, at 11:30 a.m., the hearing was adjourned.]

                                      [all]