[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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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
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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
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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.
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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.
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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.
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\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).
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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\
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\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).
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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.
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\4\ See 79 F.R 62751, 34 C.F.R 668.
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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:
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\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
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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.
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\2\ http://open.nysenate.gov/legislation/api/1.0/pdf/bill/S5965-
2015.
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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.
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\3\ http://system.suny.edu/media/suny/content-assets/documents/
generalcounsel/SUNY-VAWA-Guidance-2014.pdf.
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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.
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\4\ http://system.suny.edu/media/suny/content-assets/documents/
compliance/international/SUNY-Clery-Policy-for-Council-on-
International-Programs-FINAL.pdf.
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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\
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\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
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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.
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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.
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\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.
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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\
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\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/.
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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:
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\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.
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\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.
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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.
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\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'').
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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.
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\7\ NYA08244/2015-2016/General Assembly. (2015, June 17). LegiScan.
Retrieved August 30, 2015, from https://legiscan.com/NY/bill/A08244/
2015.
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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:
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\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.
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\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.
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\11\ However, these confidential advocates should still be required
to disclose non-identifying information as part of a college's annual
Clery reporting.
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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.
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\12\ Know Your IX, & National Alliance to End Sexual Violence.
(2015). Ask Survivors Survey Results. Retrieved from http://
knowyourix.org/ask-survivors/.
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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\
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\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.
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\1\ The terms victim and survivor are used interchangeably
throughout this document, though I recognize not all victims identify
as survivors.
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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.
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\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.
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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.
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\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.
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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.
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\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
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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]