[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

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions
                                
                                
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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                  LAMAR ALEXANDER, Tennessee, Chairman

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

               David P. Cleary, Republican Staff Director

                  Evan Schatz, Minority Staff Director

              John Righter, Minority Deputy Staff Director

                                  (ii)

  
                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                        WEDNESDAY, JULY 29, 2015

                                                                   Page

                           Committee Members

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

                           Witnesses--Panel I

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

                          Witnesses--Panel II

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

                          Additional Material

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

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


 

 
REAUTHORIZING THE HIGHER EDUCATION ACT: COMBATING CAMPUS SEXUAL ASSAULT

                              ----------                              


                        WEDNESDAY, JULY 29, 2015

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

                  Opening Statement of Senator Collins

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

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

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

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

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

                      Statement of Senator Murray

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

                     Statement of Senator McCaskill

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

                      Statement of Senator Heller

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

                    Statement of Senator Gillibrand

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

                      Statement of Senator Ayotte

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Ms. Bolger. Thank you, and good morning, Chairman Collins, 
Ranking Member Murray, and members of the committee. I'm very 
grateful to be here to testify at this committee's hearing on 
campus sexual assault.
    During my time at Amherst College, from which I graduated 
in 2014, I benefited from decades of activism and legislation 
to promote gender equality on campus. I also inherited a 
history of administrative under-enforcement, in the shadow of 
which gender violence was rampant. Schools mistreated young 
survivors with impunity, and few students knew title IX was 
about anything more than women's sports.
    On my campus alone, students who experienced sexual or 
dating violence were discouraged from reporting, denied 
counseling and academic accommodations, and pressured to take 
time off. When I reported my own abuse to my school, I was 
urged to drop out, go home, and return after my rapist had 
graduated.
    Nearly every day, Know Your IX hears from students who have 
had similar experiences, and the hardest hit are often the most 
marginalized--students of color, LGBTQ students, low-income 
students, and students with disabilities. For many survivors, 
these inadequate school responses have not only frustrated 
their efforts to learn and graduate, but have also come with 
staggering financial burdens.
    The costs of violence are very real. Between the expense of 
health services that colleges have refused to provide and 
tuition lost when victims feel they cannot safely remain on 
campus with their assailant without administrative support.
    These costs impact survivors' educational opportunities 
while in school and continue long after graduation. Many 
survivors' grades plummet when they are forced to study in 
libraries with their abusers or when they suffer from 
depression and PTSD without administrative support, often 
leading to diminished wages long down the road. This 
intolerable status quo demands a strong Federal response.
    Due in large part to the important recent guidance from the 
Department of Education's Office for Civil Rights, schools are 
finally beginning to take their responsibilities more 
seriously. Accommodations like housing changes and mental 
health services may seem trivial to the outside observer. To 
student survivors across the country, they are making the 
difference between staying in school and dropping out.
    Title IX is a powerful tool to keep the one in five women 
who will suffer gender violence during college in school and 
learning. In reauthorizing the Higher Education Act, Congress 
should build on previous efforts in order to continue the fight 
to end violence and discrimination in higher education.
    I outlined a number of solutions in my written testimony, 
but here I am going to focus on two: mandating campus 
transparency and promoting effective enforcement of title IX 
through finding authority and funding for the Office for Civil 
Rights.
    First, transparency. There are strong perverse incentives 
for schools to sweep violence under the rug. A school that 
provides clear pathways for reporting may see an increase in 
the number of people disclosing assaults and, hence, a spike in 
its assault numbers under the Clery Act. This could make the 
school seem unsafe compared to a school that discourages 
reporting.
    To counteract these potential negative reputational 
consequences, Congress should mandate that all schools conduct 
yearly campus climate surveys and publish the results. It 
matters how these surveys are instituted. Infrequent climate 
surveys or surveys where the results for each campus are not 
made public or released merely as aggregate data from numerous 
schools will hinder our efforts to create safer campuses.
    Each school should also be required to publish aggregate 
statistics on how and how promptly investigations are being 
handled. Together, this information will help students and 
families assess how each school handles these cases in practice 
and will give policymakers the data they need to continue 
shaping legislative solutions.
    Second, Congress should act to strengthen Federal 
enforcement efforts. The Office for Civil Rights currently 
relies upon the empty threat of revoking all financial support 
from a college or university to motivate schools to comply with 
the law. This is a nuclear option, too disastrous to ever be 
implemented.
    Providing the Office for Civil Rights with the explicit 
authority to levy fines against schools that violate the law 
would give the agency the increased leverage necessary to hold 
schools accountable without devastating programming and aid for 
students in the process. Crucially, this authority must be made 
available for the department to enforce all relevant civil 
rights laws to ensure that students are free from all forms of 
discrimination, including those based on race and disability.
    I also want to point out that serious efforts to combat 
violence on our campuses will require increased appropriations 
for the Office for Civil Rights. As more survivors come forward 
and the number of complaints grows dramatically, OCR remains 
grossly underfunded and understaffed. Increased funding would 
allow OCR to provide additional technical assistance to schools 
on how to comply with title IX, to better inform students about 
their rights, and to improve campus safety by ensuring timely 
investigations.
    Over the last 5 years, we've seen a remarkable 
transformation. Conversations about gender violence once were 
confined to whispers in dorm rooms. Today, survivors and 
advocates like me have the opportunity to discuss these urgent 
issues before this committee.
    Thank you for your time and for your commitment to building 
a future where students can learn and thrive free from 
violence.
    [The prepared statement of Ms. Bolger follows:]
                   Prepared Statement of Dana Bolger
                                summary
    One in five women will experience sexual assault during her time in 
college, as will many men and gender nonconforming students.\1\ Queer 
and transgender students and students of color are particularly 
vulnerable to violence.\2\ Unfortunately, in the wake of this 
harassment and abuse, many colleges and universities deny students the 
support they need--and to which they are legally entitled under title 
IX.
---------------------------------------------------------------------------
    \1\ The White House Council on Women and Girls. (2014). ``Rape and 
Sexual Assault: A Renewed Call to Action.'' Accessed July 25, 2015. 
https://www.whitehouse.gov/sites/default/files/docs/
sexual_assault_report_121-14.pdf.
    \2\ Ibid.
---------------------------------------------------------------------------
    For many students, inadequate school responses have not only 
frustrated their efforts to learn and graduate but have also come with 
staggering financial burdens. The costs of violence are real and range 
from the expense of health services that colleges have refused to 
provide to the tuition and scholarships lost when victims feel they 
cannot safely remain on campus with their assailant without 
administrative support.\3\
---------------------------------------------------------------------------
    \3\ Brodsky, Alexandra. (2014). ``How Much Does Sexual Assault Cost 
College Students Every Year?'' The Washington Post. Accessed July 25, 
2015. https://www.washingtonpost.com/posteverything/wp/2014/11/18/how-
much-does-sexual-assault-cost-college-students-every-year/.
---------------------------------------------------------------------------
    This intolerable status quo--in which survivors of gender-based 
violence are still unable to access their right to education, over 40 
years after Congress passed title IX--demands a strong Federal 
response. In reauthorizing the Higher Education Act, Congress should 
build on existing Federal protections for survivors of sexual and 
dating violence and address key remaining obstacles: lengthy Federal 
investigations that conclude with little more than a slap on the wrist; 
widespread opacity; and campus policies that discourage student 
survivors from reporting violence. Toward this end, Congress and the 
Administration should take several critical steps: increase funding for 
the Department of Education's Office for Civil Rights (OCR); empower 
the OCR to issue fines against schools for civil rights violations; 
increase campus transparency by mandating colleges and universities to 
conduct climate surveys and issue aggregate data on disciplinary 
outcomes; and require campus policies, such as disciplinary amnesty 
policies, that create an environment in which students feel safe and 
empowered to report violence without fear of discrimination or 
retaliation.
                                 ______
                                 
                              introduction
    My name is Dana Bolger and I am one of the founding co-directors of 
Know Your IX, a national student campaign against campus gender 
violence. I am grateful for the opportunity to testify at this 
committee's hearing on Reauthorizing the Higher Education Act: 
Combating Campus Sexual Assault.
    I co-founded Know Your IX in 2013 to ensure that title IX's core 
commitment--that students be able to learn free from violence--was a 
right not only on paper but in reality. What began as just a few 
students at their computers working to spread the word about title IX 
to our classmates has grown into an organization supporting a national 
network of students working to build safer schools.
    During my time at Amherst College, from which I graduated in 2014, 
I was a beneficiary of decades of mobilizing for gender equality and 
safety on campus. Title IX is a powerful law, and my generation has so 
many activists and policymakers to thank for its protections. As a 
student, I was also the inheritor of a history of administrative under-
enforcement, in the shadow of which schools mistreated young survivors 
with impunity and few students knew title IX was about anything more 
than women's sports. On my campus alone, students who experienced 
sexual or dating violence were discouraged from reporting, denied 
counseling and academic accommodations, and pressured to take time off. 
When I reported abuse to my school, I was told I should drop out, go 
home and take care of myself, and return when my rapist graduated. All 
of us were denied our right to learn free from gender violence.
    We as Amherst students were not alone. Know Your IX grew out of 
conversations with survivors across the country, from California to 
Maine, who had experienced similar gender violence and institutional 
mistreatment--all in violation of title IX. Research shows that one in 
five women will experience either sexual assault or attempted sexual 
assault during her time in college, as will many men and gender 
nonconforming students.\4\ We also know that LGBT students and students 
of color are particularly vulnerable to violence.\5\ Yet so many 
students--and particularly the most marginalized--have been dismissed 
by the schools to which they have turned for support. Many colleges and 
universities have denied students the protections they need, like 
Amherst did to me. Many have placed uniquely onerous challenges, like 
higher evidentiary burdens, in the way of rape victims who pursue 
disciplinary charges against their assailants, to which victims of 
other student conduct code violations--like theft and non-sexual 
physical assault--are not subject.\6\
---------------------------------------------------------------------------
    \4\ The White House Council on Women and Girls. (2014). ``Rape and 
Sexual Assault: A Renewed Call to Action.'' Accessed July 25, 2015. 
https://www.whitehouse.gov/sites/default/files/docs/
sexual_assault_report_1-21-14.pdf.
    \5\ Ibid.
    \6\ Anderson, Michelle J. (2004). ``The Legacy of the Prompt 
Complaint Requirement, Corroboration Requirement, and Cautionary 
Instructions on Campus Sexual Assault.'' 84 B.U. L. Rev. 945.
---------------------------------------------------------------------------
    For many students, these inadequate school responses have not only 
frustrated their efforts to learn and graduate but have also come with 
staggering financial burdens. The costs of violence are very real, 
between the expense of health services that colleges have refused to 
provide and tuition lost when victims feel they cannot safely remain on 
campus with their assailant without administrative support.\7\ Those 
costs impact survivors' educational opportunities while in school, and 
continue long after graduation: many survivors' grades plummet when 
they are forced to study in libraries with their abusers or when they 
suffer from depression and PTSD without administrative support--often 
leading to diminished wages down the road.\8\
---------------------------------------------------------------------------
    \7\ Brodsky, Alexandra. (2014). ``How Much Does Sexual Assault Cost 
College Students Every Year?'' The Washington Post. Accessed July 25, 
2015. https://www.washingtonpost.com/posteverything/wp/2014/11/18/how-
much-does-sexual-assault-cost-college-students-every-year/.
    \8\ Simon, Cari. (2014). ``On Top of Everything Else, Sexual 
Assault Hurts the Survivors' Grades.'' The Washington Post. Accessed 
July 25, 2015. https://www.washingtonpost.com/posteverything/wp/2014/
08/06/after-a-sexual-assault-survivors-gpas-plummet-this-is-a-bigger-
problem-than-you-think/.
---------------------------------------------------------------------------
    This intolerable status quo--in which survivors of gender-based 
violence are still unable to access their right to education--demands a 
strong Federal response.
        the vital importance of title ix and the campus save act
    Schools are finally beginning to take seriously their 
responsibilities to survivors thanks to the efforts of students and the 
important work of the Department of Education's Office for Civil Rights 
(OCR).
    OCR's recent clarifications of colleges and universities' 
responsibilities for supporting survivors have elucidated schools' 
obligations to provide accommodations, such as housing changes and 
mental health services. These accommodations may seem trivial to an 
outside observer but, to a survivor, they can make the difference 
between staying in school and dropping out. Other accommodations like 
an extension on a paper due the week after a student's rape, or 
tutoring to help a survivor catch up on classes missed to avoid sitting 
in class with an abusive partner, can ensure a young person is able to 
learn. The title IX framework is uniquely able to deliver these 
valuable services given its focus on access to education as a matter of 
equality.
    Campus SaVE, which was passed as part of the 2013 reauthorization 
of the Violence Against Women Act, represents an invaluable Federal 
effort to provide protections for survivors. It increases transparency 
for students and their families by broadening the Clery Act reporting 
requirements to include incidents of domestic violence, dating 
violence, and stalking. It works to prevent future instances of 
violence by requiring colleges to provide primary prevention and 
awareness programs to new students and employees, as well as ongoing 
prevention and awareness campaigns.
    In addition, Campus SaVE, as well as title IX, requires schools to 
investigate reports of gender violence in a manner that is fair to both 
parties, requiring prompt and equitable procedures and an equal 
commitment to both students. Campus SaVE provides explicit protections 
to complaining and accused parties to ensure that officials conducting 
disciplinary proceedings are well-trained; that each party can have an 
advisor of their choice; and that both parties receive the results of 
the disciplinary proceeding in writing and have the right to appeal the 
decision. Know Your IX strongly supports these requirements, which 
ensure proceedings are prompt and equitable for both parties.
      next steps to promote access to education free from violence
    Even at this time of national scrutiny and campus reform, many 
survivors are still denied the right to learn free from violence and 
discrimination. In reauthorizing the Higher Education Act, Congress 
should build on existing Federal protections for survivors of gender-
based violence. Congress can help end gender violence in higher 
education by addressing several key remaining obstacles: lengthy 
Federal investigations that conclude with little more than a slap on 
the wrist; widespread opacity; and campus policies that discourage 
student survivors from reporting.
1. Increasing Funding for the Office for Civil Rights
    Unfortunately, the Office for Civil Rights, which is primarily 
responsible for ensuring that schools are compliant with title IX and 
other civil rights laws, is grossly underfunded and understaffed.\9\ 
Thanks to students' efforts, sustained media attention, and increased 
Federal enforcement, the number of complaints filed with OCR has 
increased exponentially in recent years. As of July 22, 2015, OCR is 
investigating 124 institutions, a number which has more than doubled 
since May 2014.\10\ OCR's caseload is now more than triple what it 
received in 1980, but its current staff is only half the size.\11\ As a 
result of the office's workload and the complexity of these cases, 
complainants face long delays: the average length of an investigation 
increased from 379 to 1,469 days between 2009 and 2014.\12\ At the 
postsecondary level, five investigations (the University of 
Massachusetts-Amherst, University of Virginia, Michigan State 
University, Wittenberg University, and Arizona State University) have 
stretched on for longer than 3 years--nearly the length of a student 
survivor's time in college.\13\
---------------------------------------------------------------------------
    \9\ Kingkade, Tyler. (2014). ``Senators Push for More Staff at 
Agency to Investigate Sexual Abuse at Colleges.'' The Huffington Post. 
Accessed July 25, 2015. http://www.huffing
tonpost.com/2014/04/04/agency-sexual-assault-investigations-mccaskill-
gillibrand_n_5092748
.html.
    \10\ Ibid.
    \11\ New, Jake. (2015). ``Justice Delayed.'' Inside Higher Ed. 
Accessed July 24, 2015. https://www.insidehighered.com/news/2015/05/06/
ocr-letter-says-completed-title-ix-investigations-2014
-lasted-more-4-years.
    \12\ United States Department of Education. (2015). Letter to 
Senator Barbara Boxer. Accessed July 24, 2015. http://
www.boxer.senate.gov/press/related/150428EducationDepartmentResponse
toLetter.pdf.
    \13\ Rocheleau, Matt. (2015). ``Most Federal Sexual Cases Against 
Colleges Dropped.'' The Boston Globe. Accessed July 25, 2015. https://
www.bostonglobe.com/metro/2015/04/08/most-federal-sexual-violence-
complaints-against-colleges-dismissed-without-penalties-reform/
tl31LxcXORr
2Riauxh8iTO/story.html.
---------------------------------------------------------------------------
    Increased funding would allow OCR to provide additional technical 
assistance to schools on how to enter into compliance with title IX; 
better disseminate information to students about their rights and how 
to access them; and improve campuses safety by ensuring timely 
investigations, as well as continued monitoring, guidance, and support 
to schools in the months and years following the conclusions of their 
investigations.
2. Empowering the Department of Education to Issue Fines for Civil 
        Rights Violations
    The Department of Education's Office for Civil Rights believes it 
lacks the authority to levy fines against colleges and universities 
that violate civil rights laws like title IX. As a result, OCR relies 
upon the empty threat of revoking all financial support from a college 
or university (a ``nuclear option'' too disastrous to be implemented) 
to motivate schools to comply with the law. OCR has never once applied 
this punishment in a higher education sexual assault case, despite 
finding clear and serious violations of title IX on many campuses. 
Providing OCR with the explicit authority to levy fines would give the 
agency the increased leverage necessary to hold schools accountable, 
without devastating programming and aid for students in the process. 
Crucially, this authority must be available for the Department to 
enforce all relevant civil rights laws to ensure that students are free 
from all forms of discrimination, including those based on race and 
disability as well as sex.\14\
---------------------------------------------------------------------------
    \14\ See, e.g., 42 U.S.C.  2000d et seq. (prohibiting 
discrimination in educational institutions on the basis of race); 20 
U.S.C.  1681 et seq. (prohibiting discrimination in educational 
institutions on the basis of disability); 29 U.S.C.  794 (same).
---------------------------------------------------------------------------
3. Increasing Campus Transparency
    There are strong perverse incentives for schools to sweep violence 
under the rug. For example, a school that provides clear pathways to 
reporting and protections for survivors will see an increase in the 
number of people disclosing assaults, and hence a spike in its assault 
numbers under the Clery Act. To untrained observers, such schools tend 
to look more ``unsafe'' than others that actively deter individuals 
from disclosing and have low numbers of reports as a result. This means 
that schools that are more proactively addressing violence may suffer 
negative reputational costs as a result of following the law.
    To counteract the potential negative reputational consequences of 
encouraging survivors to report, Congress should mandate that schools 
conduct campus climate surveys and publish their results publicly. This 
step would provide invaluable information to students and their 
families--including prospective students--and would increase incentives 
for schools to appropriately address violence. Schools should also be 
required to publish aggregate statistics on how investigations are 
being handled, which would provide greater insight into whether or not 
disciplinary proceedings are being handled promptly and equitably. This 
will help ensure that students, parents, and policymakers can evaluate 
and compare how each school responds to complaints of gender violence 
in practice, not just on paper.
4. Preserving Campus Options
    I have much hope for the future of title IX and our ability to 
foster safe and equitable educational communities. Nonetheless, I do 
see one troubling pattern worth discussion here: Many State and Federal 
lawmakers, surely with the best of intentions, have suggested that 
schools should hand over all sexual assault cases to the police--even 
when the survivor has asked that they not do so. While intuitively 
appealing to many, these ``mandatory referral'' laws, as they are 
known, would actually decrease reporting rates and deprive survivors of 
the on-campus support they so desperately need.
    In a survey that Know Your IX conducted with the National Alliance 
to End Sexual Violence, 88 percent of victims said they believed 
mandatory referral laws would lead to fewer survivors reporting to 
either schools or the police.\15\ Some respondents explained that they 
sought accommodations and support from their schools but did not want 
to go through an arduous trial or did not yet feel prepared to speak to 
the police. Others stressed the importance of respecting victims' 
agency at a time when many feel powerless. One survivor wrote:
---------------------------------------------------------------------------
    \15\ Know Your IX. (2015). ``Survey Results: Ask Survivors.'' 
Accessed July 24, 2015. http://knowyourix.org/ask-survivors/.

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

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

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

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

    Ms. Stafford. Good morning, Chairman Collins, Ranking 
Member Murray, and members of the committee. I appreciate the 
opportunity to join you to briefly discuss the requirements of 
the Clery Act, including the newest requirements added by VAWA 
amendments in addition to what institutions are doing to make 
campuses safer.
    I have a unique perspective on all of this as I had the 
opportunity at the George Washington University to serve as the 
chief of police, where I founded and supervised a sexual 
assault response team for almost 20 years, and it is not a 
common model for a chief of police to also supervise a sexual 
assault advocacy group. This model worked at GW because of my 
passion for wanting to ensure survivors of sexual assault were 
not re-victimized by our response, processes, or actions in 
dealing with what I consider to be one of the most personal 
violations a human being can suffer.
    We dealt with over 250 cases during my tenure at GW. That 
said, I know firsthand that campuses expend significant effort 
and resources in bolstering campus safety, ranging from 
implementing physical security systems to developing 
operational policies and procedures to plan for emergencies and 
crisis scenarios and providing a myriad of educational programs 
to enhance knowledge and awareness regarding crimes on campus.
    Campuses form committees, teams, task forces, and town-gown 
organizations to resolve pressing issues related to campus 
safety, and they consider best practices and research in 
formulating effective prevention and response strategies.
    A cornerstone of campus safety efforts involves compliance 
with the Clery Act. The Clery Act requires all eligible 
institutions to comply with a constellation of annual, ongoing, 
and immediate requirements. Some of these requirements include 
identifying all campus security authorities, or what I like to 
call mandatory reporters of crime, and developing a system to 
gather crime statistics from all of those people on campus 
identified as CSAs.
    This is a significant task. For example, a small 
residential college would typically have between 300 and 500 
CSAs who have to be trained in their responsibilities as 
mandatory reporters of the crimes that they become aware of.
    Publishing and distributing an annual security report. 
These reports must currently include 111 separate policy 
statement disclosures and 3 years worth of crime statistics for 
the 15 Clery reportable crimes.
    Campuses have to quickly alert the campus community via a 
timely warning notice of reported Clery crimes that may pose a 
serious or continuing threat to the community, and they have to 
immediately alert the campus community via an emergency 
notification of any reported or potential incidents that pose 
an immediate threat to the health and safety of the community. 
They have to create and maintain and make available a written 
daily crime log, just to name a few of the requirements.
    The Department of Education has published a 300-page 
handbook as a resource for institutions to comply with this 
incredibly complex law. The handbook contains many rules and 
many exceptions to those rules. To Clery compliance officers, 
the handbook feels as clear as the U.S. tax code.
    In 2013, VAWA amendments to the Clery Act added 47 new 
policy statement disclosures to the law--there were previously 
64 disclosures--effectively doubling its requirements. The new 
policy statements largely require institutions to develop, 
implement, and disclose very specific procedures the 
institution will follow upon receipt of a report of any VAWA 
offense.
    VAWA also includes the new requirement to report crime 
statistics for domestic violence, dating violence, and stalking 
incidents and includes two new categories of hate crime 
reporting. Information concerning a victim's rights and options 
must also be provided in writing to students and employees 
reporting VAWA crimes.
    A new addition per VAWA and, in my opinion, the most 
important one is the mandate for institutions to provide 
education efforts around prevention and awareness of sexual 
assault, domestic violence, dating violence, and stalking. 
These programs for current and new students and employees must 
address a significant amount of required content, i.e., the 
educational programs are now prescriptive, which I elaborate on 
in my written testimony.
    Title IX's indelible influence can be seen throughout VAWA 
amendments. Many of the requirements under Clery have been 
adapted, often wholesale, from the pre-existing title IX sub-
regulatory guidance and elevated to VAWA's implementing 
regulations, such that they carry the force of law under the 
Clery Act. Specific examples of overlap between the laws may 
also be found in my written testimony. Campuses earnestly want 
to comply with the Clery Act, and many see it as a basement, 
not a ceiling, of campus safety efforts.
    Many of the new requirements proposed by CASA are laudable 
and have potential to enhance existing safety on campus. Each 
of these proposals will require a thoughtful consideration of 
implications, intended or otherwise, of adoption, especially 
from a practitioner's perspective.
    As a professional association representing Clery compliance 
officers and professionals, NACCOP welcomes the opportunity to 
be involved in any efforts to help consider the practical 
implications of the proposed new legislation and any of the 
Department of Education's efforts to provide much-needed 
guidance and resources to institutions as they endeavor to 
comply with this law.
    I sincerely appreciate the opportunity to address the 
committee today, and I welcome any questions you may have of 
me.
    [The prepared statement of Ms. Stafford follows:]
               Prepared Statement of Dolores A. Stafford
                                summary
    A cornerstone of efforts to promote campus safety involves 
compliance with the Federal Clery Act, which requires all postsecondary 
institutions that participate in Federal student aid programs to comply 
with a constellation of annual, ongoing, and immediate requirements. 
The 2013 VAWA Amendments to the Clery Act added 47 new policy statement 
disclosures to the law, effectively doubling its requirements. Major 
additions of VAWA include: new reporting requirements for crimes of 
Domestic Violence, Dating Violence and Stalking, as well as unfounded 
reports; mandatory education programs for students and employees 
pertaining to Domestic Violence, Dating Violence, Sexual Assault and 
Stalking (DVDVSAS); and required disclosures and implementation of 
specific response and disciplinary procedures the institution will 
follow when a report of DVDVSAS is made to the institution. Many of the 
new requirements under Clery have been adapted, often wholesale, from 
pre-existing title IX sub-regulatory guidance and elevated to VAWA's 
implementing regulations such that they carry the force of law under 
the Clery Act.
    The new and existing requirements of the Clery Act are multifaceted 
and extremely nuanced. While there are a plethora of unresolved 
questions that stem from the Clery Act's final implementing regulations 
as it pertains to the new VAWA requirements, there are lingering 
challenges that continue to hamper efforts to stay in compliance with 
the Clery Act. For example, the Department's revelation in the 2011 
handbook that the Hierarchy Rule does not apply to the Daily Crime Log, 
or the 2012 email sent by the Help Desk regarding what ``frequently 
used by students'' means, are examples of latent attempts to 
``clarify'' long-standing expectations for which campuses have never 
before been apprised until 13 years after these requirements went into 
effect. Campuses are also grappling with contradictions between the 
Clery Compliance Division's program review results and guidance being 
provided by the Department through its Handbook for Campus Safety and 
Security Reporting and individualized responses to Help Desk inquiries.
    Given VAWA's prescriptive stance regarding the policies, procedures 
and practices campuses must employ in response to issues of DVDVSAS, 
campuses are going to need significantly more guidance and resources 
than what has been provided in the past. Guidance and resources should 
be clear, timely and afford institutions the flexibility to meet 
compliance requirements within a framework that accounts for the 
diversity of institutions, as they differ in size, mission, 
organization, governance, residential status, resources, and police/
public safety capacities.
    Campuses earnestly want to comply with the Clery Act, and many see 
it as a basement--not a ceiling--of campus safety efforts. Many of the 
new requirements proposed by the Campus Accountability and Safety Act 
are laudable and have great potential to enhance existing safety on 
campus. Each of these proposals will require thoughtful consideration 
of the implications, intended and otherwise, of adoption, especially 
from a practitioner's perspective. As a professional association 
representing Clery compliance officer and professionals, the National 
Association of Clery Compliance Officers and Professionals (NACCOP) 
welcomes the opportunity to be involved in any efforts that help 
consider the practical implications of proposed or new legislation and 
any of the Department of Education's efforts to provide much-needed 
guidance and resources to institutions as they endeavor to comply with 
the law.
                                 ______
                                 
    Good morning Chairman Alexander, Ranking Member Murray, and members 
of the committee. I appreciate the opportunity to join you to discuss 
the requirements of the Jeanne Clery Disclosure of Campus Security 
Policy and Campus Crime Statistics Act (a.k.a. the ``Clery Act''), 
including the newest requirements added by section 304 of the Violence 
Against Women Reauthorization Act of 2013 (VAWA Amendments) and the 
final implementing regulations published by the Department of Education 
on October 20, 2014. I also appreciate the chance to highlight some of 
the existing challenges faced by postsecondary institutions as they 
endeavor to get into and maintain compliance with the ever-evolving 
Clery Act.
    My remarks today are informed by my 26-year career in the law 
enforcement and security industries, of which the last 18 years were 
spent as Chief of Police at The George Washington University until my 
retirement in 2010. Immediately prior to my service at GW, I served as 
the assistant chief of police at Butler University. At both Butler and 
GW, I created, coordinated and supervised the Sexual Assault Response 
Team, which provided advocacy and support services for victims of 
sexual violence. In these capacities, I oversaw approximately 250 cases 
of sexual misconduct, from both an investigatory perspective as well as 
serving as an advocate and overseeing advocates who assisted victims. 
Providing comprehensive, intentional, effective and empowering response 
to sexual assault victims on college and university campuses has been a 
pillar of my campus law enforcement career. Since my retirement in 
2010, I have continued to develop a professional consulting firm 
(through which I have provided Clery Act consulting services since 
1997). Additionally, I serve as the founding executive director of the 
National Association of Clery Compliance Officers and Professionals 
(NACCOP). NACCOP is a professional association with 564 active 
institutional and general members that was launched in 2013 to help 
officials charged with Clery compliance efforts collaborate with each 
other, share resources and best practices, and participate in 
professional development opportunities pertaining to Clery Act 
compliance. I have taught more than 300 classes related to the Clery 
Act and I have assisted more than 250 client institutions in enhancing 
their overall Clery Act compliance programs through reviews of Annual 
Security and Fire Safety Reports and by conducting independent audits.
    Campuses expend significant effort and resources in bolstering 
campus safety. These efforts range from implementation of physical 
safety apparatuses (such as access control systems, intrusion detection 
systems, video surveillance cameras, and fire safety alarm systems) to 
other technological solutions such as social media, incident reporting 
platforms, public safety information systems, computerized automated 
dispatch systems, etc. Institutions consider principles of Crime 
Prevention Through Environmental Design (CPTED) during campus 
construction and renovation projects, and they develop operational 
policies, procedures and contingencies to plan for effective emergency 
and crisis scenarios. They train essential response personnel and 
members of the larger college or university community on applicable 
procedures and protocols for emergency situations. Institutions invest 
significant fiscal resources into hiring personnel across the 
institution to improve campus safety--from campus law enforcement/
public safety personnel, to other individuals charged with providing 
education, advocacy and support for a wide range of safety-related 
issues (such as alcohol and drug abuse prevention, sexual assault 
prevention, etc.). Many campuses have robust student conduct and 
employee discipline programs with professionals charged with overseeing 
these functions in order to provide swift, effective and fair 
institutional responses to misconduct that may undermine the safety or 
security of the campus. Institutions may conduct pre-employment or pre-
enrollment screenings as part of the application processes for 
prospective students and employees in order to determine whether there 
is a criminal history of which the institution should be aware. Threat 
assessment and management teams as well as other behavioral 
intervention groups for students, faculty and staff have become an 
industry standard for responding to concerning behavior. Campuses form 
committees, teams, task forces, and town-gown organizations to resolve 
pressing issues related to campus safety and they consider best 
practices and research in formulating effective prevention and response 
strategies. Campus police and public safety units also engage in a 
variety of strategic and tactical approaches to preventing and solving 
campus crime by incorporating community-oriented policing strategies, 
leveraging crime analytics and working collaboratively with other law 
enforcement agencies in the jurisdiction to address important public 
safety issues.
    A cornerstone of contemporary safety and security efforts involves 
compliance with the Federal Clery Act. At its core, the Clery Act is a 
consumer right-to-know law first passed by Congress in 1990. Since its 
inception, the law has been amended six times, most recently by the 
VAWA Amendments. Three months prior to publication of the VAWA 
Amendment's implementing regulations, and 11 months prior to those 
regulations going into effect, a seventh amendment was proposed in the 
Senate and was reintroduced during the 114th Congress in February.
    As you know, the purpose of the law is to provide prospective 
students and employees, as well as current members of the campus 
community, with timely, accurate and complete information about crime 
and the safety and security of the campus so that these populations can 
make informed decisions to keep themselves safe. To fulfill these 
goals, the Clery Act requires all postsecondary institutions that 
participate in title IV student financial assistance programs under the 
Higher Education Act of 1965, as amended (HEA), to comply with a 
constellation of annual, ongoing, and immediate requirements. 
Specifically, institutions must:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Ms. Flounlacker. Good morning, Chairman Collins, Ranking 
Member Murray, and members of the committee. Thank you for 
inviting me to testify today.
    I am Mollie Flounlacker, as mentioned, associate vice 
president for Federal Relations at the Association of American 
Universities. I am also the project manager for the AAU sexual 
assault climate survey. I have also been a college student and 
am now a mother. I care deeply, both professionally and 
personally, about this issue, and I'm proud to be a part of 
this effort to confront it.
    In my remarks, I am going to outline six points for you on 
this very important subject. No. 1, presidents and chancellors 
of AAU member universities have long identified sexual assault 
on their campuses as an extremely important issue that they 
need to face head on. It is the issue that is keeping them 
awake at night. I have spent more time talking with our members 
about this issue than any other issue over the last 18 months.
    University presidents make it very clear that one sexual 
assault on their college campus is too many. One of the most 
important goals of our universities is to make their campuses a 
safe place for students to learn and succeed.
    No. 2, individual sexual assault cases can be complex. 
Schools take very seriously their responsibility to educate 
students about awareness and prevention, to encourage students 
to report sexual assaults, to respond compassionately and 
seriously to the needs of survivors, and to ensure that all 
students have access to fair, prompt, and impartial campus 
disciplinary processes.
    No. 3, in keeping with its mission as an association of 
research universities, AAU decided to take a research-based 
approach to help its members understand both the attitudes and 
experiences of their students with respect to sexual assault. 
Accordingly, AAU created and implemented a sexual assault and 
misconduct climate survey in consultation with a leading 
outside social science research firm, Westat.
    The survey was developed by Westat and a multidisciplinary 
team made up of recognized experts across the country. Nearly 
half of the AAU membership has administered the survey this 
spring. AAU will publicly release the results this fall in 
hopes it proves, first and foremost, helpful to schools, but 
also to policymakers in the legislative arena. The data will 
also be made available later to the research community, which 
we expect will be a significant resource to better 
understanding this issue.
    Having spent the last 15 months on this project, I can say 
it is an extremely complicated process. Moving forward, we want 
our experts to be a resource for Congress as they work through 
this issue in the Campus Accountability and Safety Act, in 
particular. We want to get this right, because we strongly 
support the use of climate surveys on college campuses.
    No. 4, the legislative and regulatory landscape around 
campus sexual assault is incredibly messy because of the number 
of different Federal laws and now State laws, regulations, and 
guidance, as Chief Stafford articulated. Overall, we believe 
that schools need a framework of clear and consistent standards 
with flexibility when appropriate so that they have the 
necessary tools to better protect students and support 
survivors.
    No. 5, AAU strongly supports the goal of the CASA bill to 
better inform and protect students, including core elements of 
promoting the use of the campus confidential advisor and campus 
sexual assault climate survey, for example. We support and 
appreciate many of the changes that have been incorporated into 
the current version of CASA. There are still some areas where 
we have remaining concerns, primarily because of unanticipated 
effects on students, as outlined in my written testimony.
    For example, we strongly support giving survivors of sexual 
assault access to a trained confidential advisor whose sole 
responsibility is to counsel the survivor. This is in the best 
interest of the survivor. Any requirement that the advisor ask 
in an investigatory role or reporting role could compromise 
confidentiality both under State law and FERPA and increase the 
likelihood of the advisor being subpoenaed and subsequent legal 
proceedings.
    Absent clarity in the statute, it's inevitable that new 
duties will be assigned to the individual by the Department of 
Education as they implement the law. We are also concerned 
about potential conflict with the advisor's responsibilities in 
CASA and schools' current title IX reporting requirements. 
Again, the sole responsibility of the advisor should be to 
counsel the survivor.
    Last, sexual assault is a societal problem. As important as 
it is for colleges to confront it directly, it does not exist 
in isolation on college campuses. We believe there is a role 
for the entire education community to play in producing 
cultural changes that reduce the incidence of sexual assault.
    AAU and the higher education community look forward to 
continuing to work with Congress and the administration to make 
students safer.
    Thank you again for the opportunity to testify, and I'm 
happy to answer questions.
    [The prepared statement of Ms. Flounlacker follows:]
             Prepared Statement of Mollie Benz-Flounlacker
                                summary
    With other higher education associations in Washington, AAU has 
been deeply involved in efforts to combat sexual assault. This 
testimony describes the national climate survey that AAU has undertaken 
as well as AAU's views on the Campus Accountability and Safety Act 
(CASA).
    While there is recognition that sexual assault is a broad societal 
problem, the focus today is on what colleges can do to provide safer 
settings for their students. Schools take seriously their 
responsibility to educate students about awareness and prevention, to 
encourage students to report sexual assaults, to support the survivors 
of sexual assaults and to ensure that all students involved have access 
to fair and equitable processes. One sexual assault on campus is too 
many. Those represented by AAU and by the higher education associations 
with which we work closely are deeply committed to working with 
Congress to better protect students.
    As an association of research universities, AAU decided that the 
best way to help its members address this issue was to develop and 
implement a sexual assault climate survey for its members that would 
enable them to better understand the attitudes and experiences of their 
students with respect to sexual assault. We believe that the survey 
data will help inform campus policies for preventing and responding to 
sexual assault on campus. AAU will publicly release the aggregate 
results this fall. We have encouraged our campuses to release their 
institutional results, and we anticipate that many of the 27 
universities (26 AAU members plus one non-AAU institution) that 
implemented the survey will do so.
    In addition to the survey's value to participating universities and 
their students, we hope the aggregate data and analysis will provide 
useful information to policymakers as they work on possible legislative 
and administrative initiatives. Researchers will also benefit from the 
contribution this survey will make to the body of research on this 
complex issue.
    In addition to our work on the climate survey, AAU has actively 
engaged with the Senate sponsors of the Campus Accountability and 
Safety Act (CASA) legislation. AAU has joined the broader higher 
education community in submitting two sets of comments on the 
legislation, including the most recent on the version of the bill 
introduced earlier this year. AAU supports the goals of CASA, including 
most of the core requirements. Our goal is to help ensure that any new 
requirements in CASA complement existing requirements to better protect 
students and help schools understand their responsibilities. Clarity 
regarding the establishment of new roles and responsibilities for 
colleges regarding sexual assault is particularly important given the 
number of other Federal laws, regulations, and guidance implicated when 
dealing with this issue. We support and appreciate many of the changes 
incorporated into the current version of the legislation. There are 
still some areas where we have some remaining concerns and potential 
solutions, and we believe the bill will continue to improve as the 
legislative process goes forward.
                                 ______
                                 
    Chairman Alexander, Ranking Member Murray, and members of the 
committee, thank you for this opportunity to testify on the important 
issue of combating campus sexual assault.
    I am Benz-Flounlacker, associate vice president for Federal 
relations at the Association of American Universities. AAU is a 
nonprofit 501(c)(3) organization of 62 leading public and private 
research universities, 60 of which are in the United States and two of 
which are in Canada. Founded in 1900 to advance the international 
standing of U.S. research universities, AAU today focuses on issues 
that are important to research-intensive universities, such as funding 
for research, research policy issues, and graduate and undergraduate 
education. AAU member universities are on the leading edge of 
innovation, scholarship, and solutions that contribute to the Nation's 
economy, security, and well-being.
    Along with other higher education associations in Washington, AAU 
has been deeply involved in efforts to combat sexual assault. Today, as 
requested by the committee, I will describe the national climate survey 
that AAU has undertaken, and I will provide AAU's views on the Campus 
Accountability and Safety Act (CASA).
    The past year has brought intense scrutiny to the problem of campus 
sexual assault and how colleges handle sexual assault cases. While 
there is recognition that sexual assault is a broad societal problem, 
the focus today is on what colleges can do to provide safer settings 
for their students. Schools take seriously their responsibility to 
educate students about awareness and prevention, to encourage students 
to report sexual assaults, to support the survivors of sexual assaults 
and to ensure that all students involved have access to fair and 
equitable processes. One sexual assault on campus is too many. Those 
represented by AAU and by the higher education associations with which 
we work closely are deeply committed to working with Congress to better 
protect students.
    Campuses need clarity, consistency, and flexibility when 
appropriate with respect to Federal expectations, requirements, and 
enforcement. Congress can be most helpful to colleges' efforts by 
providing clear standards and guidance to help schools understand their 
responsibilities and affording them institutional flexibility to 
improve policies to better protect students.
    AAU member university presidents and chancellors have long 
identified sexual assault on their campuses as an extremely important 
issue that they need to address head-on; some describe it as the No. 1 
issue keeping them awake at night. Over the past 2 years at least, AAU 
has spent more time with its membership addressing this issue than 
almost any other issue.
    As an association of research universities, AAU decided that the 
best way to help its members address this issue was to conduct research 
that would enable them to better understand the attitudes and 
experiences of their students with respect to sexual assault. To do 
this, AAU developed and implemented a sexual assault climate survey for 
its members using a leading social science research firm, Westat. The 
survey was developed by Westat and a multi-disciplinary design team 
created by AAU and composed of recognized experts on survey design and 
methodology, as well as campus leaders directly responsible for dealing 
with sexual assault and issues of gender, health, and student affairs. 
Dr. Bonnie Fisher, a nationally recognized expert on sexual assault, 
was hired by Westat to work closely with the AAU-Westat team to develop 
the content and analysis of the survey. The AAU team was led by Dr. 
Sandra Martin, Professor and Associate Chair for Research, Department 
of Maternal and Child Health, and Associate Dean for Research, Gillings 
School of Public Health, at the University of North Carolina at Chapel 
Hill. The starting point for the survey design team was the survey 
instrument developed by the White House Task Force to Protect Students 
from Sexual Assault, which was included in the notalone.gov April 2014 
report. The survey instrument was designed to address the following 
core research questions:

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

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

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

                      Statement of Senator Cassidy

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

                      Statement of Senator Bennet

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

                      Statement of Senator Warren

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

                      Statement of Senator Baldwin

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

                       Statement of Senator Casey

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

                           Senator Alexander

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

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

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

                    Statement of Senator Whitehouse

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

                          ADDITIONAL MATERIAL

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

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

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

    They told us they had a team of ``specially trained individuals'' 
who only wanted the truth, and that they would follow every bread crumb 
to find that truth. We trusted the administration to be fair and 
unbiased. We trusted that they would actually talk to both students' 
witnesses, to write in the investigation report truthfully what was 
said, and to be open and caring to both students during the process. We 
were so wrong.
    He was given a choice of an advocate: either the men's or women's 
soccer coach (our student did not play soccer). He was told he could 
not have anyone else involved in the process and that he could not 
speak to anyone else about this proceeding or he would be immediately 
expelled. Our son met with the Dean of Students to discuss the 
investigations findings. He was found ``responsible'' of sexual 
misconduct. When he walked out of the building, he vomited and fell to 
the ground in a crumble--what he told us shocked us all.
    They had not spoken to any of his witnesses.
    We inquired to the title IX coordinator about this and were told it 
would be taken ``under advisement''. This happened many times. Any type 
of question or inquiry into the procedures, any question about the 
equitableness of what was occurring was taken ``under advisement'' 
without ever answering questions or giving information that 
professionals trained to adjudicate felony charges under title IX 
should know.
    The investigation report was full of contradictions and one-sided 
accounts. Our son was not given a written copy of the investigation 
report--he could only read it and then tell us verbally what it said. 
His advocate was outraged, but his hands were tied. How could he 
challenge the university administration? He risked his career and would 
put his own family's well-being in jeopardy if he pushed too hard. Our 
son's advocate was contacted by the school administration about the 
case many times without our son's prior knowledge or permission. It was 
clear that the administration were manipulating evidence and witnesses 
to achieve their predetermined outcome.
    It is important that you understand how devastating this process 
was on our son. He was an innocent young student--new to campus and 
college life, first time living on his own--accused of a heinous crime. 
There was an immediate hostile environment for him at school. He was 
treated by some of the investigative team with contempt. He had no one 
to talk to, no one to help him. Because the school had published the 
incident on the school website, he was branded a rapist from the 
beginning. He was alone and under great duress without any support. He 
lost 25 lbs. in 2 months, became chronically ill from the stress, could 
not sleep, could not focus, and could not eat. He was expected to go to 
class, keep up with school without any accommodations. He was not 
allowed to confide in anyone or speak about what was going on or he 
would be immediately expelled. The accuser was spreading rumors all 
over campus. At one point, our son was studying in a common area with a 
friend, when someone walked up to him and asked if he was ``The 
Rapist''. The accuser seemed to seek out our son, and actually went up 
to him (breaking the no contact order) and asked him ``for a hug''. We 
immediately went to security and the title IX office about these 
occurrences, but were told there wasn't anything they could do.
    Preparing for the hearing alone proved difficult. His advisor 
wasn't able to help him prepare for the hearing, but only to guide him 
through the process. Our son had 1 week to prepare for the hearing, and 
to make matters worse, the Dean of Students only allowed our son 
limited ``viewing times'' in the Dean's office to see the investigative 
report. These times were often during his scheduled classes, so he had 
to miss classroom time without being able to give any explanation as to 
why he was absent. He ended up dropping a class, and his grades fell 
from A's to C's and D's. His health became so poor from the stress he 
had to take a medical leave of absence.
    After we hired an attorney, the ``investigative team'' went back 
and spoke to our son's witnesses prior to his hearing. None of the 
witness statements made the final investigative report. There was one 
witness, who could without a doubt prove that our son was innocent. Our 
son listed him and others on the witness list for the ``hearing''. None 
of his witnesses were asked to appear.
    During the hearing one panel member actually put her hand up in our 
son's face to stop him from speaking or asking a question--because the 
hearing was audio taped and not videotaped, she stopped him from 
speaking any way she could. Our son attended his hearing alone, a young 
18-year-old defending himself against a rape accusation. He faced three 
adult university employees, the Dean of Students, and one fellow 
student sitting across a small table. The accuser was across campus, on 
the phone which was muted by her at any time and her advocate/advisor 
giving her advice along the way. The ``hearing'', if you can call it 
that, was a complete mockery of truth and justice. Our son sat there, 
across the small table from the panel, with no way to prove his 
innocence. Any piece of evidence or witness statements he tried to 
bring into the hearing that could prove his innocence were shut down 
immediately. At times the audio recording was stopped, so the panel 
could tell him not to question the proceedings and to ensure he would 
sit quietly while the hearing ensued. We were told that the hearing was 
to dispute any facts in the final investigative report regarding the 
incident. He tried to question the 13 instances of false information/
inconsistencies with statements and within the report--none of his 
questions were allowed. When he questioned why his witness statements 
or evidence did not make the final report, the investigative team could 
not provide an answer. The blame shifted from one investigator to 
another, saying this person was in charge--no, wait--this other person 
was in charge, etc. The panel decided that they didn't need to see or 
hear his witness statements, that it was ``more likely than not'' that 
he was ``responsible''.
    The adjudication process on campus is biased and unfair. The campus 
tribunal controls what evidence is allowed, what questions are asked, 
and what witnesses will speak--ALL BEHIND CLOSED DOORS. This not only 
hurts innocent students, but hurts true victims as well.
    When we found out what had happened during the hearing and 
investigation we were outraged. How could something as serious as a 
rape accusation be handled in such a biased, unfair way? How could 
professionals we had entrusted to care for our son treat him with such 
disdain, ignore facts, and not call witnesses? How could anyone expect 
a young 18-year-old, who had never lived away from home before, defend 
himself against a rape accusation?
    Our son committed Zero Crime--Yet Suffered 100 percent of the 
Consequences.
    I write today to ask you for some balance on this issue. As a 
survivor myself, as a women, as a mother to a daughter, I strongly 
advocate for a clear easy reporting path, for interim measures, for 
accommodations for survivors, for prevention and education, and for 
support for anyone reporting. I also urge you to consider what is 
missing for accused students. Students should not have to give up their 
constitutional right of Due Process when they cross the college gates. 
They should not be deemed guilty until proven innocent. They should not 
face double jeopardy, have their 5th amendment rights violated, be 
refused appropriate cross examination. Students should be able to have 
full representation of their choice, have their witnesses, evidence and 
testimony allowed. They should have ample time to review and prepare 
for the hearing, and be given written copies of the investigative 
report. They should have academic accommodations and be safe from a 
hostile environment.
    The procedural protections given in civil cases using a 
preponderance of the evidence standard as mandated by the Department of 
Education are missing in college campus tribunals. Campus adjudication 
process is not an ``educational process''. These are serious charges 
with serious consequences. A devastating, life changing trial that 
destroys a young person's will to live. Innocent students are being 
marked as a sexual predator for life, by inept educators acting as 
investigator, judge, jury, and executioner.
    Our son is still recovering. He suffers from PTSD, depression, 
anxiety. His hopes and dreams, all he had worked for, were taken from 
him by an unfounded accusation coupled with a biased process. Our 
entire family lived the nightmare with him and we will never be the 
same. Watching your child crumble before your eyes, bearing witness to 
the wrongs and not being able to stop them is soul crushing.
    I write today to ask you to help give these students a voice. They 
have been wronged by their school administration, an administration 
they also trusted, and have been victimized by their university. We 
need strong elected officials to speak on their behalf. Please bring 
back a sense of balance and justice, so that in the quest to right a 
wrong, we are not creating a new group of victims.
   Prepared Statement of Nancy Gertner, Harvard Law School Professor*
 sex, lies and justice--can we reconcile the belated attention to rape 
                      on campus with due process?
    Campus sexual assaults are horrifying, made all the worse because 
the settings are bucolic and presumed safe--leafy campuses, ivy-walled 
universities. Assaults are reported in dormitories, off-campus 
apartments, and fraternity houses, in elite and non-elite institutions, 
from one end of the country to the other. Title IX (of the Education 
Amendments of 1972) was supposed to promote equal opportunity in any 
educational program receiving Federal money. Until recently, title IX 
was dormant and largely ignored. The enforcer, the Federal Government, 
had been a paper tiger. Universities were not reporting, much less 
dealing with, either sexual harassment or explicit sexual violence. 
Sexual misconduct impairs a woman's ability to function as an equal in 
an academic environment--and by extension menaces all women. Unless a 
woman is safe, all the other guarantees of equal treatment are 
irrelevant.
---------------------------------------------------------------------------
    * This article appears in the Winter 2015 issue of The American 
Prospect magazine.
---------------------------------------------------------------------------
    President Barack Obama, in a January 25, 2014, speech, assured his 
listeners that ``anyone out there who has ever been assaulted: You are 
not alone. We have your back. I've got your back.''
    In 2011, the government's approach changed dramatically: A ``Dear 
Colleague'' letter on sexual violence was sent to colleges and 
universities from the Department of Education's Office for Civil Rights 
(OCR), pointedly reminding them of their obligations under title IX and 
presaging aggressive enforcement. By August 2013, the public face of 
the department's enforcement efforts was Catherine Lhamon, assistant 
secretary at the Office for Civil Rights, a zealous advocate, formerly 
head of impact litigation at Public Counsel, a public interest law 
firm; before that, she was assistant legal director of the ACLU of 
southern California. At a July 2014 meeting of college administrators, 
Lhamon made the threat of disciplinary action unmistakable: While no 
school accused of violating title IX had ever lost its Federal funding, 
``do not think it's an empty threat,'' she warned them. A department 
website announced the campaign against sexual violence on campus, Not 
Alone. President Barack Obama, in a January 25, 2014, speech, assured 
his listeners that ``anyone out there who has ever been assaulted: You 
are not alone. We have your back. I've got your back.'' Even the 
department's language changed, no longer referring antiseptically to a 
complainant and an accused but rather to victims or survivors, and 
perpetrators.
    To feminists--I among them--it was about time that pressure was 
brought to bear on educational institutions. Too often colleges and 
universities had excused or turned a blind eye to the crimes of serial 
sexual predators. The media, after often dismissing the claims of rape 
victims, was finally more sympathetic, covering accounts of sexual 
violence from the University of Virginia to Yale and Harvard. This kind 
of sustained attention was precisely what was needed to come to grips 
with the problem. Nothing less would have done the trick. Indeed, 
nothing had worked before. It was as if women, especially young women, 
had to speak especially loudly and especially often to finally be 
heard--a not unfamiliar concept.
    The problem was that the issues surrounding campus sexual assault 
were more complicated than the public debate reflected. How were 
universities and colleges to deal with the range of campus sexual 
encounters--a continuum from violent rape, to sex fueled by alcohol 
impairing all involved, to the expectations about women and men in the 
so-called ``hookup culture,'' to consensual sex followed by second 
thoughts. (At least one feminist scholar, Catharine MacKinnon, has 
expressed skepticism that a woman could ever voluntarily have sex, 
given the disparate power relations between men and women in society.) 
There are plenty of bright lines such as forcible rape--but also blurry 
ones. Genuine ambivalence and ambiguous signals seem almost inherent in 
courtship and sexuality, especially in first encounters. Where should 
the title IX violation line be? What was a reasonable adjudication 
process? What was the role of the criminal justice system in cases in 
which university conduct codes overlapped with possible prosecutions?
    Further, how were colleges and universities to balance the 
interests of the complainant with those of the accused? Just as the 
complainants must be treated with dignity and their rights to a fair 
resolution of their charges be respected, so too must those accused of 
sexual misconduct. You don't have to believe that there are large 
numbers of false accusation of sexual assault--I do not--to insist that 
the process of investigating and adjudicating these claims be fair. In 
fact, feminists should be especially concerned, not just about creating 
enforcement proceedings, but about their fairness. If there is a 
widespread perception that the balance has tilted from no rights for 
victims to no due process for the accused, we risk a backlash. 
Benighted attitudes about rape and skepticism about women victims die 
hard. It takes only a few celebrated false accusations of rape to turn 
the clock back.
    Rape, I insisted, is a crime to which women--including me--feel 
uniquely vulnerable, no matter who they are, no matter what their 
class, their race, their status.
    I come to this issue--campus sexual assault--from all sides. This 
is not because I was a Federal judge for 17 years, where ``considering 
all sides'' was part of the job definition. I left the bench in 2011 to 
teach at Harvard Law School, among other things. I am an unrepentant 
feminist, a longtime litigator on behalf of women's rights, as my 
memoir, In Defense of Women, reflects. Rape, I insisted, is a crime to 
which women--including me--feel uniquely vulnerable, no matter who they 
are, no matter what their class, their race, their status. No one 
should have been surprised that I supported stronger enforcement of 
title IX, more training for investigators, more services for 
complainants, systematic assessments of the State of enforcement on 
college campuses, and other tough remedies. What surprised many, 
however, was that I was one of 28 Harvard professors who signed a 
letter opposing Harvard University's new sexual harassment and sexual 
assault policies, policies introduced ostensibly in response to 
pressures from the Department of Education.
    When I was a lawyer, I understood how inadequate the law was in 
addressing sexual violence at all. I worked for changes to the 
retrograde definition of rape in statutes around the country and their 
disrespectful treatment of rape victims, laws that were a throwback to 
medieval conceptions about women. I lobbied for rape shield laws that 
limited the defense counsel's cross-examination of a woman about her 
prior sexual experiences. Little did the law trust a woman's account of 
rape that some States required that a woman's accusations be 
corroborated by independent evidence, a requirement to which no other 
crime victim was subject. The definition of the crime focused on the 
woman's conduct, whether she had resisted ``to the utmost;'' a simple 
``no'' did not suffice. To the extent that the man's conduct was 
considered at all, the statutes required that he use force before his 
acts amounted to rape; drugging a woman, or having sex with one wholly 
incapacitated by alcohol, was not enough. Date rape was never 
prosecuted no matter what the circumstances.
    But I was also a criminal defense lawyer. I understood more than 
many how unfair the criminal process could be, how critical the 
enforcement of a defendant's rights were to the integrity and, even 
more, to the reliability of the criminal justice system. I understood 
what it meant to have a defendant's liberty hanging in the balance, how 
long terms of imprisonment could wreak havoc on the lives of defendants 
and their families. I appreciated the stigma of the very accusation, 
which persists--especially today on the Internet--even if the accused 
is exonerated. I understood the racial implications of rape 
accusations, the complex intersection of bias, stereotyping, and sex in 
the prosecution of this crime.
    I reconciled the pressures pushing me in opposite directions by 
choosing not to represent men accused of rape, while bringing civil 
lawsuits for women against the universities or the building owners that 
failed to provide them with adequate security, or against psychiatrists 
and psychologists who sexually abused them. I steered clear of 
prosecutions for rape--except for one case.
    A young man, a freshman at a local college at the time the incident 
happened and a friend of a former roommate of mine, was referred to me. 
(In my memoir, I call him ``Paul.'') He'd had sex with a classmate, his 
very first sexual encounter; he believed his classmate had consented. 
While we can never know what went on between them, the facts--her 
actions, her words, the testimony of others--made her charges wholly 
unconvincing. A few examples: She went out of her way to invite him to 
her parents' home a short time after the sex to stay for the weekend. 
Nine months after their sexual encounter, she claimed to have been 
raped and mentioned his name following the breakup of a different 
relationship and her hospitalization for depression. She accused Paul 
during a conversation with her father, but accused another male student 
while speaking to a classmate. Witnesses reported nothing out of the 
ordinary that evening, no evidence of drinking, no impairment, not even 
anxiety about what had occurred. Her account itself was improbable, 
internally inconsistent, and contradicted by the evidence and the 
testimony of her own classmates. While from decades of work on rape and 
my women's rights advocacy, I understood that this young woman could be 
telling the truth--that her behavior in the days and weeks after the 
sex, and even her multiple accounts of what went on, could be explained 
by post-traumatic stress disorder, or simply embarrassment--her account 
seemed unlikely.
    The Phi Kappa Psi fraternity house at the University of Virginia 
has been the scene of numerous protests since the report of an alleged 
gang rape at one of its parties. This demonstration on Saturday night, 
November 22, 2014, was in response to the university's reaction to a 
controversial Rolling Stone article on the allegations.
    By the late 1980s, when the accusations against Paul were brought, 
the women's movement had succeeded in making some of the changes for 
which I and others had fought. The popular media finally reported on 
the horror of date rape and its consequences. District attorneys and 
police belatedly began to prosecute the offense. The definition of rape 
changed in States across the country, although progress was far from 
uniform. Gone was the mandatory corroboration requirement and limitless 
attacks on a woman's ``chastity,'' whatever that meant in the late 20th 
century. Still, we were a long way from adequately dealing with these 
issues. There were many jurisdictions where change came slowly or not 
at all, where prosecutors and even courts not so subtly sided with 
perpetrators and blamed victims.
    While I believed that Paul had been wrongly accused, and would be 
exonerated, true to my practice I declined to represent him. I asked 
one of my law partners to step in, and then watched with horror as the 
prosecution unfolded.
    The atmosphere surrounding date rape had changed more dramatically 
than I had appreciated, at least in Massachusetts. The district 
attorney, though he fully understood the weaknesses of the case, felt 
compelled to bring the charges lest he face political repercussions, 
for being yet another politician ignoring a woman's pain. Even the 
grand jury ignored their serious doubts about the case and indicted 
Paul. As I later learned from one of its members, they felt comfortable 
indicting Paul because I was rumored to be representing him and they 
assumed he would be acquitted. The judge--with life tenure--likewise 
felt the pressure. The judge was critical; my partner decided to waive 
the jury when a program on date rape was aired on the eve of the trial. 
While the judge expressed his skepticism throughout the trial--every 
single comment of his pointed to reasonable doubt about Paul's guilt--
his verdict was ``guilty.'' He did not say so explicitly, but the 
message seemed clear. If he acquitted Paul, he would be pilloried in 
the press. ``Judge acquits rapist,'' the headlines would scream. If he 
convicted Paul, no one would notice.
    Just because the legal system has moved away from the view that all 
rape accusations are contrived does not mean it must move to the view 
that none are.
    I took over the appeal. The brief my firm filed was what I 
described as a feminist brief: Just because the legal system has moved 
away from the view that all rape accusations are contrived does not 
mean it must move to the view that none are. This conviction was not 
just technically imperfect, I argued, it was a true injustice. I was 
successful. The Massachusetts Supreme Judicial Court reversed Paul's 
conviction on a procedural error, the trial court's evidentiary 
rulings. The prosecutor could have retried the case, but, thankfully, 
chose not to do so.
    After decades of feminist advocacy (the case establishing the right 
to choose abortion in Massachusetts, the first introduction of Battered 
Woman Syndrome in a defense to a murder charge, and on and on), I was 
picketed by a women's rights group when I spoke on a panel following 
the reversal of Paul's case; I was a ``so-called women's rights 
attorney,'' one sign announced, simply because I had represented a man 
accused of rape. When I explained why, including the fact that I 
believed he was innocent, a demonstrator yelled, ``That is 
irrelevant!'' The experience was chilling; to the picketers, a wrongful 
conviction and imprisonment simply did not matter. Paul would have been 
incarcerated, but for my firm's advocacy and the appellate court's 
independent review. Still, advocacy and appellate review could only go 
so far: Though the charges against Paul were dropped, he was expelled 
from the college he had been attending; he struggled to reapply years 
later and finally get his degree. Worse yet, he continues to suffer 
from the stigma of the accusation to this day, many, many decades 
later.
    As a Federal judge, I did not have much occasion to address the 
issues with which I had been so concerned as a lawyer. Rape is 
principally a State, not Federal, crime. I did deal with accusations of 
sexual harassment in the workplace, fully appreciating the extent to 
which sexual harassment obstructs equal opportunity and discriminates 
against women. I wrote articles decrying the state of civil rights 
enforcement in the Federal courts. On the criminal side, while I did 
everything I could to mitigate the harsh effects of onerous drug 
sentencing, I had no problem sentencing sex traffickers as harshly as 
the law allowed.
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more like this one.
    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.
---------------------------------------------------------------------------
    \1\ Affiliation provided for identification purposes only.
---------------------------------------------------------------------------
    The days when institutions of higher education could use slipshod 
procedures to address complaints of campus sexual misconduct are, 
thankfully, over. The window of opportunity to install just and 
effective processes in their place remains open. Colleges and 
universities nationwide are now installing new disciplinary procedures. 
A few years' experience with their operation provides important 
information on reform work still to do.
    I have assisted both complainants and accused students at Stanford 
University and Harvard University, have written scholarly articles and 
books on the legal regulation of sexual conduct, and have participated 
in the administration of student discipline and sexual harassment 
complaints at Stanford. My experience and study tell me that some 
recent reforms have brought new problems of fairness and due process 
for both complainants and those accused which threaten the 
effectiveness and legitimacy of the important progress we have made.
    Incorrectly believing that they are required to do so by the 
Department of Education Office for Civil Rights, institutions of higher 
education are making all employees, with extremely narrow exceptions, 
into mandatory reporters--people who must convey to the title IX office 
information about alleged sexual misconduct whether or not the 
potential complainant wishes them to do so. This deprives students who 
may be victims of misconduct of their autonomy and exposes them to 
serious harm at the hands of University administrators. It also deters 
students from seeking adult help and advice when they are experiencing 
doubts and distress, and interferes with the faculty's and staff 's 
ability to mentor, counsel and care for our students in an atmosphere 
of trust, particularly when they may need us most.
    The parties are given narrow opportunities to resolve cases through 
mediation, and no such opportunities where the allegations involve 
sexual assault. It is crucial to remember that the definition of 
``sexual assault'' goes well beyond the inexcusable cases involving 
violence or rape where it is hard to imagine mediation being warranted. 
The bar on mediation also applies to unwanted bodily contact deemed to 
be sexual in nature, and these cases, in my experience, are sometimes 
best resolved by sensitive mediation. Without that pathway, the options 
for those who feel they have experienced sexual misconduct are narrow: 
criminal punishment, student discipline or silence. Complainants often 
express frustration with this narrow array of choices; they object to 
the lack of a non-punitive option. Congress should listen to this, just 
as we in higher education should. Student misconduct policies should 
model the arts of social mediation, negotiation and peacemaking as well 
as providing severe sanctions in the severe cases, where the 
complainant seeks that outcome.
    Indeed, education is what educational institutions are most 
centrally about, and that mission is being forgotten in the rush to 
punish. For example, we must educate ourselves and our students about 
the differences between a ``sexually hostile environment'' and the 
lively exchange, debate, and exploration of ideas that campuses exist 
to foster. Sexual conduct can be verbal, and too many cases charge 
sexual harassment for speech, academic speech, open debate, and even 
first amendment free speech.
    Title IX procedures are being cutoff from normal disciplinary 
processes and are being run by administrators focused exclusively on 
sexual misconduct and compliance with laws addressed solely to that 
very severe problem. While this specialization has some benefits, it 
also runs serious risks. It attenuates awareness of and vigilance 
against race discrimination, including unconscious bias, which is just 
as much a problem in student sexual interactions as it is anywhere else 
in our society. In my experience, the rate of complaints and sanctions 
against male (including transitioning to male) students of color is 
unreasonably high. The process does not pause to make sure that accused 
students with disabilities are offered accommodations they need to 
defend charges against them. Students who lack family money to pay for 
lawyers are at a drastic disadvantage in the process, and, given the 
considerable resources institutions must invest in providing support 
for complainants, this problem cuts strongly against the accused. 
Providing scant due process for these particularly vulnerable groups of 
accused students runs the very real risk that innocent students are 
being held responsible, sanctioned, and given tainted records that will 
haunt them for years.
    Procedures that put accused students at a disadvantage may also 
harm complainants, should they find themselves in a ``he said/she 
said'' of reciprocal complaints. College and university procedures 
often tilt the process unfairly in the following ways:

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

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

    That was it. I was officially expelled. I was never allowed to 
return to university grounds unless I wished to face charges of 
criminal trespassing. I texted my mom, ``I am gone. Expelled. It is 
over.'' I knew she would be devastated, too. I was at the bottom of the 
pit.
    I had previously thought that I couldn't possibly feel any worse 
than I did the day they recommended expulsion. Oh, how I was wrong. I 
spiraled into a deep depression. I was rejected and shamed. I had spent 
so much time and money with the university and I had absolutely nothing 
to show for it except failure. I felt more alone than ever. I remember 
going home and just sitting on the couch alone and thinking ``What in 
the hell do I do now? What just happened? Why is this happening to 
me?'' I could barely breathe. It hurt so much I could not even cry. I 
guess it was shock.
    We asked for a refund of my tuition for Spring 2012, since it was 
just the beginning of the semester. They refused. I had to remain in 
Auburn from February 8 until the assault hearing 3\1/2\ months later 
because I had to report to a bail bondsman once a week--something I had 
been required to do every single Tuesday at noon for 8 long months. The 
refunded tuition money would have helped me support myself. To add 
insult to injury, when grades came out for Spring 2012, they had not 
withdrawn me and had instead let me fail. They even sent a letter 
saying that according to my professors, I had ``stopped attending 
classes'' and as such, they had returned my student loan money to the 
Federal student loan program and they were going to invoice me for the 
money that I now owed them. I still have that letter.
    Time dragged until it was time for the hearing on May 24, 2012. My 
parents yet again drove the 4 hours to Auburn and paid for a hotel room 
and paid attorney fees for the hearing. My accuser did not show up--
purportedly because, as she told the court, she had to work at her 
waitressing job. We subpoenaed copies of her work records for that 
day--she had the day off. Her failure to show up for the hearing 
resulted in a dismissal of the case against me. I was glad it was over 
but I was very disappointed that not only did I not get to prove in 
court that she had lied about the entire incident but I had also asked 
my witnesses to drive in from out-of-town for the hearing which turned 
out to be a waste of their time.
    I left Auburn and moved home to South Carolina shortly after May 
24, 2011, still in a relatively deep depression. I constantly felt 
doomed. I began drinking a lot. I spent weeks in my room with the 
drapes drawn. I still had no FaceBook page, no social media at all, no 
social life at all. My parents finally convinced me that I needed to 
try to get into another school--to get a life and find a future. The 
Dean of Students at Auburn had told me that my transcript would be 
stamped ``Expelled'' so I was terrified to try to apply anywhere else. 
I did not want to have to explain it, to have to talk about it. I just 
wanted to hide.
    My mother finally convinced me that I needed to find a way out of 
the despair. She talked me into applying to The University of South 
Carolina-UpState. I was accepted, much to our shock and surprise. My 
transcript from Auburn actually showed me as a ``Student in Good 
Standing.''. Auburn had also changed my ``Fs'' to ``W'' since we 
contacted their outside counsel and pointed out the error of their ways 
in not withdrawing me.
    Unfortunately, because I have spoken to the media, and although her 
name has never appeared in print, Auburn University dragged their feet 
in letting me see my records that I had requested under FERPA because 
they claim that I have divulged her identity to the media. She ran all 
over campus telling anyone she could find all of her claims about me, 
never attempting to hide her identity but I am not allowed to talk 
about my story, according to Auburn University. I was finally allowed 
to view my records this past February--we were required to drive 5\1/2\ 
hours to Montgomery, AL to see them--but Auburn has still refused to 
allow me to have a copy of them. In reviewing them, however, I now know 
that all of these false police reports, the lie about the battery 
charge, it is all in there. We have asked Auburn's counsel what we can 
do to get my side of the story into my file, since the hearing on the 
battery never took place and therefore my information has been left 
out. They have refused to let us submit anything in my defense. 
According to them, the case is ``closed'' and nothing can be added or 
removed. Any grad school, any security clearance that I may need to 
further my professional career can be derailed by what is in that file. 
It is a never ending story.
    My life will never be the same. My dreams have changed. My hopes 
have changed. Friendships have been lost. To this day, I am afraid to 
date. My parents have had to struggle to pay legal bills. My mom still 
cries at times. It does not have to be this way. It should not be this 
way.
                                 ______
                                 
             American Federation of Teachers (AFT),
                                      Washington, DC 20001,
                                                     July 29, 2015.
Hon.  Lamar Alexander, Chairman,
Hon.  Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

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

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

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

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

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

    Re: Sexual Assault on College Campuses

    Dear Chairman Alexander and Ranking Member Murray: As you know, the 
Foundation for Individual Rights in Education (FIRE; thefire.org) is a 
nonpartisan, nonprofit organization dedicated to defending student and 
faculty rights on America's college and university campuses. These 
rights include freedom of speech, freedom of assembly, legal equality, 
due process, religious liberty, and sanctity of conscience--the 
essential qualities of individual liberty and dignity.
    Last summer we wrote to you to provide our input regarding the 
adjudication of allegations of sexual assault on university campuses. 
See Exhibit A, attached. Today, we write to provide our analysis of S. 
590, the Campus Accountability and Safety Act (CASA).
    As a general matter, FIRE has serious misgivings about the ability 
of colleges and universities to adjudicate allegations of serious 
felonies like campus sexual assaults.
    Campus disciplinary boards lack the ability to collect, hold, and 
interpret forensic evidence. They lack the ability to subpoena 
witnesses or put those that appear voluntarily under oath. The parties 
typically lack the representation of experienced, qualified legal 
counsel, and they do not have the right to discovery. These proceedings 
are not governed by rules of evidence and often disregard the right to 
confront adverse witnesses. Ultimately, the fact-finder--often a single 
investigator--decides whether there was a sexual assault under the low 
``preponderance of the evidence'' standard, which merely asks the fact-
finder to decide if one side was even the tiniest bit more persuasive 
than the other. Expecting these tribunals to reach consistently 
reliable findings under these limitations is unrealistic.
    The current approach is unacceptable. In addition to the 
incompetence that permeates this field, college administrators often 
have real or perceived interests in the outcomes of these cases, 
further undermining the reliability of the process. It should go 
without saying that sweeping accusations under the rug is illegal and 
immoral, but so is punishing accused students when there is 
insufficient evidence--and there is overwhelming evidence that both 
situations are occurring with alarming frequency. Legislation may not 
be able to bridge the vast competency gap between the adjudicatory 
capabilities of educational institutions and actual courts coordinating 
with law enforcement, but it can help reduce bias, provide ample 
resources for education and prevention efforts, and provide all the 
affected parties with meaningful procedural rights that will help them 
protect their own interests.
    Under CASA, college communities would continue to rely on campus 
judiciaries to reach factual determinations and punish those deemed 
responsible for committing these heinous crimes. While the bill will 
not alleviate the risk of unjust findings caused by assigning amateurs 
the responsibility of adjudicating these important cases, it does offer 
some improvements over the status quo. It contains provisions FIRE 
supports; specifically, the requirement that institutions enter into 
agreements with local law enforcement agencies, and the important 
provision that prohibits institutions from adjudicating cases against 
student athletes in special proceedings. Other provisions, however, 
require amendment.
                            neutral language
    First, CASA treats the problem of addressing sexual assault on 
campus like a one-sided issue of supporting victims, instead of 
attempting to protect the rights of both complainants and the accused. 
Indeed, the bill presumes the guilt of all accused students, referring 
to accusers as ``victims'' throughout the legislation, even when 
referring to them in the pre-adjudication context. Failure to use 
neutral language that refers to accusers as ``complainants'' prior to 
adjudications signals to institutions that Congress does not truly 
value impartiality in these proceedings.
               unequal assignment of university resources
    The bill also injects inequality into sexual assault proceedings by 
providing substantial resources--for example, a ``confidential 
advisor''--to complainants without providing similar resources to the 
accused. This imbalance is potentially at odds with regulations 
implementing the reauthorization of the Violence Against Women Act 
(VAWA), which require colleges to provide ``the accuser and the accused 
with the same opportunities to have others present during any 
institutional disciplinary proceeding, including the opportunity to be 
accompanied to any related meeting or proceeding by the advisor of 
their choice.'' Additionally, the Department of Education's Office for 
Civil Rights (OCR) has interpreted title IX's implementing regulations 
to require that colleges allowing advisors to participate ``at any 
stage of the proceedings . . . must do so equally for both parties.'' 
As OCR observes, ``[a] balanced and fair process that provides the same 
opportunities to both parties will lead to sound and supportable 
decisions.'' FIRE supports CASA's determination to provide resources to 
help complainants navigate the system, but we urge Congress to provide 
similar resources to the accused.
               trauma-informed training for fact-finders
    Adding to the imbalance, the bill mandates that university 
employees responsible for ``resolving complaints of reported sex 
offenses or sexual misconduct policy violations'' must receive training 
on ``the effects of trauma, including the neurobiology of trauma.'' 
Trauma-informed training asserts that inconsistencies in a witnesses' 
testimony is likely the result of trauma as opposed to being 
inaccurate. While trauma-informed training may be appropriate for first 
responders and those conducting initial interviews, providing that 
training to campus adjudicators potentially undermines the impartiality 
of the process. Certainly inaccuracies in a witness's testimony do not 
increase the reliability of his or her account. The bill should be 
amended to make clear that such training is not to be provided to fact-
finders, who are supposed to be impartial.
                           penalty provision
    Another problematic aspect of the bill is its penalty provision, 
which allows colleges to be fined 1 percent of their operating budgets 
per violation. While we presume this provision was intended to provide 
a more realistically enforceable penalty than the current penalty 
structure under title IX--which subjects institutions to a loss of all 
Federal funding--this provision potentially increases penalties. 
Federal dollars are only one source of funding for institutions. For 
example, if the Department of Education finds more than 15 violations 
at an institution that receives 15 percent of its operating budget via 
Federal funds, the potential penalty will be greater than it is under 
the current system. Indeed, OCR claimed to have found over 40 unique 
violations at the University of Montana in 2013. The penalty provision 
must be capped, otherwise the status quo, in which institutions are too 
terrified to ever contest OCR's rulings for fear of incurring a 
devastating penalty, will be exacerbated.
                 mandatory reporting to law enforcement
    Despite growing consensus across the country that cutting law 
enforcement out of the loop is dangerous for all involved, including 
future victims, CASA states that the ``victim's wishes'' will determine 
whether an institution must cooperate with local law enforcement ``with 
respect to any alleged criminal offenses involving students or 
employees.'' Students who have committed violence or pose a serious 
threat of committing violence should immediately be reported to law 
enforcement. With limited exceptions, college administrators who 
witness or receive credible allegations of sexual assault or other 
violent criminal activity should be required to report such allegations 
to law enforcement.
    Mandatory reporting by college officials would ensure that law 
enforcement is never left in the dark about a potentially dangerous 
situation. Even with mandatory reporting, victims would still decide 
whether they wished to cooperate with a potential police investigation. 
Even if mandatory reporting deters some victims from reporting, 
Congress should not forget that universities cannot take dangerous 
perpetrators off the streets--only law enforcement can do that. A 
provision requiring administrators to promptly report known allegations 
of sexual assault ensures more timely law enforcement responses, and it 
greatly increases the chances perpetrators will be held appropriately 
accountable. A mandatory reporting provision should be added to CASA.
                       proposed additions to casa
    As remarkable as CASA is for what it includes, it is also worth 
noting what it lacks. The bill mentions due process only in passing, 
and it fails to provide meaningful procedural protections beyond those 
already codified in existing legislation. While it provides both 
students with notice of the charges and sufficient time to 
``meaningfully exercise the due process rights afforded to them under 
institutional policy,'' this language provides no relief whatsoever to 
the students on campuses where institutional policies are inadequate or 
even biased on their face.
    This deficiency can easily be cured by including provisions that 
offer students tangible procedural protections. For example, Congress 
should insert a provision into CASA that grants both complainants and 
accused students the right to hire lawyers who could actively 
participate in the hearings on their behalf. It should also be amended 
to require institutions to notify students of their rights at the onset 
of an investigation and provide students the right to remain silent, 
without allowing the fact-finder to draw an adverse inference.
    Institutions should be required to allow the parties to 
appropriately confront adverse witnesses, including the complainant. 
Congress should also require campus investigators to turn exculpatory 
evidence it discovers over to the accused. Adding these protections is 
the minimum that must be done to ensure that accused students are given 
fair hearings.
    FIRE is pleased that the Senate Committee on Health, Education, 
Labor, and Pensions is considering legislation on campus sexual 
assault. Before legislation is advanced, FIRE hopes the committee will 
insist that it takes a balanced approach that meets the needs of all 
affected parties. We hope that the committee will consider making the 
changes to CASA that FIRE recommends, so that we can support its 
passage. Thank you for the opportunity to provide our input. We look 
forward to assisting the committee as it proceeds with this important 
task. Please do not hesitate to call on us if we can be of any 
assistance.
            Respectfully submitted,
                                               Joseph Cohn,
                                   Legislative and Policy Director.
                                 ______
                                 
                         ATTACHMENT--EXHIBIT A
     Foundation for Individual Rights in Education 
                                            (FIRE),
                                    Philadelphia, PA 19106,
                                                     June 26, 2014.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions
428 Dirksen Senate Office Building,
Washington, DC 20510.

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

    Re: Sexual Assault on College Campuses

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                             Louisiana Legislature,
                                        State of Louisiana.

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

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

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

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

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

                                             Helena Moreno,
                                 State Representative, District 93.

                                             Carrie Wooten,
                                                Louisiana Progress,
                                      Sexual Assault Working Group.

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
















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

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

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

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

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

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

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

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

                                                   August 10, 2014.

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

    Dear Chairman Alexander: I would like to request inclusion of the 
enclosed letter from the National Domestic Violence Hotline in the 
record for the July 29, 2015 hearing entitled ``Reauthorizing the 
Higher Education Act: Combating Campus Sexual Assault.'' I appreciate 
your consideration of this request.
            Sincerely,
                                              Patty Murray,
                                                      U.S. Senator.
                                 ______
                                 
            The National Domestic Violence Hotline,
                                                    August 6, 2015.

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

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

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

                                            Lynn Rosenthal,
                          Vice President of Strategic Partnerships,

                    National Parenthood Conference,
                                             July 28, 2015.

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

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

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

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

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

                                               Jean Mrasek,
                                                          Chairman,
                                   National Panhellenic Conference.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Dear Senator Alexander and Senator Murray: In any sustainable 
system, every expansion of control must correspond with an expansion of 
accountability. The Campus Accountability and Safety Act (CASA; S. 
590), is an example of legislation that grants to universities some 
powers comparable to that of criminal courts, but without the 
responsibilities one expects from a functional judicial system. These 
powers execute on receipt of an allegation of sexual assault, sans 
proof beyond a reasonable doubt that such an assault occurred.
    Any gender- or sex-neutral language in S. 590, while appreciated, 
is currently not enforceable because of the perceptual imbalances our 
culture has between male and female students, which justifies further 
checks and balances consistent with constitutional amendments IV 
through VIII. Failure to extend proportional protections to accused 
parties in criminal allegations--partially processed by University 
faculty and staff--has resulted in the unwarranted expulsion, 
suspension, slander, or libel of young male students. At the time of 
this writing, A Voice for Male Students documents 75 cases showing due 
process violations enabled by Universities acting as flexible proxies 
to a frighteningly punitive criminal court system, and that number is 
growing.
    As a male student who is still struggling to shake off the effects 
of allegations long declared unfounded by Kennesaw State University, I 
feel deeply frightened and unsafe under CASA. In response to its 
proposition, Zen Men, LLC will educate male students on how to assert 
their rights and therefore resist the biases behind the legislation.
    It is my hope that any HELP committee representative reading this 
testimony places themselves in the shoes of one accused of sexual 
assault without a shred of evidence to support such a devastating 
charge. Picture, as a falsely accused student, your attempt to function 
while attending a University that is ready to brand you as a rapist and 
issue punitive discipline regardless of the evidence.
    Speaking as one of your sons trying to build a future, I ask that 
you oppose CASA and reflect on providing fair treatment and respect for 
both the accuser and the accused. I thank you and all involved Senators 
for hearing this side of the issue.
            Sincerely,
                                               Sage Gerard,
                                              Founder, Zen Men LLC.
                                 ______
                                 
    Response by Janet Napolitano to Questions of Senator Alexander, 
                Senator Murkowski and Senator Whitehouse
                           senator alexander
    Question 1. Do you have specific suggestions about how Title IX and 
the Clery Act, including their implementing regulations and guidance, 
can be improved and/or clarified to provide institutions of higher 
education the flexibility they need?
    Are there areas where these laws, regulations, or guidance 
conflict?
    Are there areas where they are duplicative?
    Answer 1. Existing rules and regulations--including those in place 
through the Higher Education Act (Clery Act and Title IX), the Violence 
Against Women Act and the Department of Education's Office of Civil 
Rights--must be better coordinated and streamlined. The definitions, 
regulations, program guidance, timelines, and other programmatic 
components are not aligned and result in duplicative efforts around 
investigations, confusing interpretations, and contradictory guidance.
    Here are a few examples where there is overlap that can create 
confusion, conflict, or duplication:

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

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

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

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

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

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

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

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

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

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

    Question 4. Absent the concern of loss of control (perceived or 
otherwise) by the survivor, are there reasons that experienced, trauma-
informed, sensitive, effective law enforcement should not be involved 
at early stages of an investigation?
    Answer 4. Incidents of sexual violence and sexual assault are 
criminal matters that should involve law enforcement, but OCR guidance 
emphasizes that it is ultimately the student's decision whether to 
report an incident to police, title IX, or both. UC provides access to 
a confidential, privileged and independent CARE advocate on campus that 
serves as a resource to help the student make an informed choice about 
how they wish to proceed. Our hope is that the assurance of 
confidentiality will encourage more students to come forward, seek 
support, and ultimately report incidents of sexual misconduct to law 
enforcement. One area of focus should be building more trust and 
confidence in the law enforcement system to increase reporting.
      Response by Dana Bolger to Questions of Senator Alexander, 
 Senator Hatch, Senator Murkowski, Senator Whitehouse and Senator Casey
                           senator alexander
    Question 1. Do you have specific suggestions about how Title IX and 
the Clery Act, including their implementing regulations and guidance, 
can be improved and/or clarified to provide institutions of higher 
education the flexibility they need?
    Answer 1. First, Title IX, the Clery Act, and Federal guidance 
already provide sufficient flexibility for schools to adapt policies, 
programming, and procedures to the unique needs of their campus 
communities. For example, in its 2014 ``Questions and Answers on Title 
IX and Sexual Violence'' document, the Department of Education's Office 
for Civil Rights (OCR) explains, ``A school's procedures and practices 
will vary in detail, specificity, and components, reflecting 
differences in the age of its students, school size and administrative 
structure, State or local legal requirements (e.g., mandatory reporting 
requirements for schools working with minors), and what it has learned 
from past experiences.''\1\ Moreover, the Federal Government has 
compiled a library of model policies on its NotAlone.gov website for 
schools to adopt and adapt to their needs. These resources carefully 
avoid prescribing a one-size-fits-all framework for schools in the 
interest of preserving appropriate flexibility in institutional 
responses.
---------------------------------------------------------------------------
    \1\ Department of Education Office for Civil Rights. (2014). 
Questions and Answers on Title IX and Sexual Violence. Retrieved from 
http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
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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:
---------------------------------------------------------------------------
    \4\ Know Your IX. (2015). Letter to University Presidents on Fair 
Process. Retrieved from http://knowyourix.org/fair-process/.

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

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

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

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

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

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

    Mandating increased transparency is a feasible project: In July 
2015, New York State passed a law that will require every college and 
university in the State to release to the State Education Department 
data about reports of domestic violence, dating violence, stalking, or 
sexual assault.\7\ This will include the total number of reports 
received, open and closed investigations, outcomes of such 
investigations, and penalties imposed on perpetrators.
---------------------------------------------------------------------------
    \7\ NYA08244/2015-2016/General Assembly. (2015, June 17). LegiScan. 
Retrieved August 30, 2015, from https://legiscan.com/NY/bill/A08244/
2015.
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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.
---------------------------------------------------------------------------
    \9\ Police Executive Research Forum. (2012). Improving the Police 
Response to Sexual Assault. Retrieved from http://www.policeforum.org/
assets/docs/Critical_Issues_Series/improving%20
the%20police%20response%20to%20 sexual%20assault%202012.pdf.
    \10\ End the Backlog. (n.d.). Why the Backlog Exists. Retrieved 
from http://www.endthebacklog
.org/backlog/why_backlog-exists.

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

    Question 4. Absent the concern of loss of control (perceived or 
otherwise) by the survivor, are there reasons that experienced, trauma-
informed, sensitive, effective law enforcement should not be involved 
at early stages of an investigation?
    Answer 4. Respecting victims' fear of loss of control over an 
investigative process is just one reason of many to preclude law 
enforcement involvement if a victim does not consent to it. Survivors 
tell Know Your IX again and again that, were their campus to turn 
reports over to law enforcement without their consent, they would have 
reported to no one at all.\12\ Many queer and transgender survivors, 
survivors of color, and survivors from other heavily policed 
communities say they would be particularly unlikely to report, due to 
fear of additional interaction with and violence from the criminal 
justice system. Similarly, undocumented student survivors report 
fearing initiation of deportation proceedings as a result of coming 
forward. For survivors who were assaulted by a police officer or a 
family member of a police officer, turning to law enforcement simply is 
not a safe option.
---------------------------------------------------------------------------
    \12\ Know Your IX, & National Alliance to End Sexual Violence. 
(2015). Ask Survivors Survey Results. Retrieved from http://
knowyourix.org/ask-survivors/.
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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\
---------------------------------------------------------------------------
    \13\ Many of these points will require multiple questions.

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

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

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

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

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

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

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

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

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

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

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

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

    Question 4. Are there requirements in the Clery Act that you 
believe could be clarified or eliminated so institutions are not 
spending unnecessary time on paperwork?
    Answer 4. The most notable Clery Act requirement that could be 
eliminated is the requirement to collect and disclose crime statistics 
for foreign short-term use locations of U.S. institutions. As described 
in my testimony, this interpretation of crime reporting requirements by 
the Campus Safety Helpdesk\2\ has left institutions with little choice 
but to develop elaborate systems to track all locations where the 
institution sends students as part of education abroad activities and 
write each local law enforcement agency at those locations to request 
crime statistics. In some instances, this results in campuses sending 
tens or hundreds of letters to foreign law enforcement officials which 
frequently are ignored and divert important human and fiscal resources 
that could otherwise be invested in promoting campus safety. The crime 
definitions used by the Clery Act often do not apply to laws of the 
foreign countries, thus if information is received in response to a 
request, it is often not clear that the incident being reported meets 
the U.S. definition of the crime. Furthermore, even when campuses do 
receive responses from law enforcement agencies, these statistics are 
combined into a single statistic category for the noncampus geography, 
which provides the consumer with virtually no useful information about 
where in the world the crime occurred. It is hard to imagine this was 
the intent of Congress when the law and its amendments were passed.
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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.
---------------------------------------------------------------------------
    For example, it would not matter if the location was used 14 days 
in a row or 14 days throughout the year: once a location meets this 
threshold, it would be countable. This type of solution would provide 
clarity around an issue that is incredibly challenging, causes a great 
deal of administrative work and provides information that is not 
useful, as it is placed in a general noncampus category in the 
statistics and the consumer does not know where the crime occurred.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    They continue:

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

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

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

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

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

    40. A statement of policy regarding the:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Domestic Violence:

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

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

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

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

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

    70. The definition (from VAWA) of stalking.

    Stalking:

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

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

    ii. For the purposes of this definition--

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                  [all]