[Senate Hearing 116-432]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 116-432                                                                                                              
                                                                                                                                                        

                           REAUTHORIZING HEA:
                    ADDRESSING CAMPUS SEXUAL ASSAULT
                      AND ENSURING STUDENT SAFETY
                               AND RIGHTS

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

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                                   ON

   EXAMINING REAUTHORIZING HEA, FOCUSING ON ADDRESSING CAMPUS SEXUAL 
             ASSAULT AND ENSURING STUDENT SAFETY AND RIGHTS

                               __________

                             APRIL 2, 2019

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions
                                
                                
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                                


        Available via the World Wide Web: http://www.govinfo.gov
        
 				__________
                               

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
41-394 PDF                  WASHINGTON : 2021                     
          
--------------------------------------------------------------------------------------        
          
          
          
          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                  LAMAR ALEXANDER, Tennessee, Chairman
MICHAEL B. ENZI, Wyoming		PATTY MURRAY, Washington
RICHARD BURR, North Carolina		BERNARD SANDERS (I), Vermont
JOHNNY ISAKSON, Georgia			ROBERT P. CASEY, JR., Pennsylvania
RAND PAUL, Kentucky			TAMMY BALDWIN, Wisconsin
SUSAN M. COLLINS, Maine			CHRISTOPHER S. MURPHY, Connecticut
BILL CASSIDY, M.D., Louisiana		ELIZABETH WARREN, Massachusetts
PAT ROBERTS, Kansas			TIM KAINE, Virginia
LISA MURKOWSKI, Alaska			MARGARET WOOD HASSAN, New Hampshire
TIM SCOTT, South Carolina		TINA SMITH, Minnesota
MITT ROMNEY, Utah			DOUG JONES, Alabama
MIKE BRAUN, Indiana			JACKY ROSEN, Nevada

                                     
               David P. Cleary, Republican Staff Director
         Lindsey Ward Seidman, Republican Deputy Staff Director
                  Evan Schatz, Minority Staff Director
              John Righter, Minority Deputy Staff Director
                            
                            
                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                         TUESDAY, APRIL 2, 2019

                                                                   Page

                           Committee Members

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, 
  Labor, and Pensions, Opening statement.........................     1
Murray, Hon. Patty, Ranking Member, a U.S. Senator from the State 
  of Washington, Opening statement...............................     5

                               Witnesses

Hamill, Patricia, Partner, Conrad O'Brien, Philadelphia, PA......     8
    Prepared statement...........................................    10
Goss Graves, Fatima, President and CEO, National Women's Law 
  Center, Washington, DC.........................................    23
    Prepared statement...........................................    25
    Summary statement............................................    48
Suk Gersen, Jeannie, John H. Watson, Jr. Professor of Law, 
  Harvard Law School, Cambridge, MA..............................    49
    Prepared statement...........................................    50
    Summary statement............................................    55
Meehan, Anne, Director, Government and Public Affairs, American 
  Council on Education, Washington, DC...........................    55
    Prepared statement...........................................    57
    Summary statement............................................    64
Howard, Jeff, Associate Vice President for Student Life and 
  Enrollment, East Tennessee State University, Johnson City, TN..    65
    Prepared statement...........................................    67
    Summary statement............................................    69

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.
Murray, Hon. Patty:
    Letter from 93 Law Professors Regarding Proposed Rulemaking 
      Nondiscrimination on the Basis of Sex in Education Programs 
      or Activities Receiving Federal Financial Assistance, 
      Office of Civil Rights, Department of Education............    93
    American Civil Liberties Union (ACLU), Prepared statement 
      submitted for the Record...................................   108
    Washington School of Law, University of Washington, Prepared 
      statement..................................................   141
Braun, Hon. Mike:
    Statement for the Record.....................................   143
Kaine, Hon. Tim:
    Letter to Hon. Betsy DeVos, Nondiscrimination on the Basis of 
      Sex in Education Programs or Activities Receiving Federal 
      Financial Assistance, National Women's Law Center, January 
      29, 2019...................................................   144
    Letter from the Commonwealth of Virginia to Hon. Betsy DeVos, 
      January 28, 2019...........................................   144
Casey, Hon. Robert:
    Letter from the National Council on Disability, and 
      accompanying report, ``Not on The Radar''..................   152
    Letter from S. Daniel Carter and Taylor Parker, SAFE 
      Campuses, LLC..............................................   226
Rosen, Hon. Jacky:
    Title IX coordinator from the University of Nevada Reno......   229

                         QUESTIONS AND ANSWERS

Response by Patricia Hamill to questions of:
    Senator Alexander............................................   299
    Senator Warren...............................................   311
    Senator Rosen................................................   313
    Senator Sanders..............................................   315
Response by Fatima Goss Graves to questions of:
    Senator Warren...............................................   319
    Senator Rosen................................................   327
    Senator Sanders..............................................   328
Response by Jeannie Suk Gersen to questions of:
    Senator Alexander............................................   333
    Senator Warren...............................................   334
    Senator Rosen................................................   337
    Senator Sanders..............................................   338
Response by Jeff Howard to questions of:
    Senator Alexander............................................   340
    Senator Warren...............................................   342
    Senator Rosen................................................   343
    Senator Sanders..............................................   344

 
                           REAUTHORIZING HEA:
                    ADDRESSING CAMPUS SEXUAL ASSAULT
                      AND ENSURING STUDENT SAFETY
                               AND RIGHTS

                              ----------                              


                         Tuesday, April 2, 2019

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 a.m., in room 
SD-430, Dirksen Senate Office Building, Hon. Lamar Alexander, 
Chairman of the Committee, presiding.
    Present: Senators Alexander [presiding], Isakson, Cassidy, 
Scott, Romney, Murray, Baldwin, Kaine, Jones, Murphy, Hassan, 
Rosen, Casey, Warren, and Smith.

                 OPENING STATEMENT OF SENATOR ALEXANDER

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order. Senator Murray 
and I will each have an opening statement. We will then 
introduce the witnesses, one of whom is slightly delayed but 
who is within sight, so she will be here shortly. After the 
witnesses' testimony, Senators will each have 5 minutes for a 
round of questions. I just mentioned to Senator Murray, I have 
done, with her encouragement, I have done a good deal of 
homework on this, and as a result, my opening statement is a 
little longer than it otherwise would be, so hope you will 
tolerate that.
    Today's hearing will focus on how colleges and universities 
should respond to accusations of sexual assault. This is an 
important and difficult topic, and for that reason, I am glad 
that Senator Murray and I have been able to agree, as we 
usually do, on a bipartisan hearing, and to agree on the 
witnesses. On these issues I have a number of perspectives, 
that of a father of daughters and sons, of a grandfather, a 
lawyer, a Governor, also a former Chairman of the Board and 
President of a large public university.
    As University Administrator, my first priority always was 
the safety of students. My goal was to quickly and 
compassionately respond to victims of alleged assaults, 
offering counseling and other support, including assisting the 
victim if he or she wished to report the assault to law 
enforcement. And my goal was also to protect the rights of both 
the accused and the victim to ensure that campus disciplinary 
processes were fair. If you are an administrator of one of the 
six thousand or so American colleges and universities, and you 
were to ask your legal counsel, what laws must the institution 
follow when it comes to allegations of sexual assault? Your 
counsel would reply, there are several places to look. First 
you would look at the Federal statutes. Two Federal laws govern 
allegations of sexual assault. All colleges and universities 
that receive Federal funds, including Federal financial aid, 
must follow those two laws.
    First, Title IX of the Education Amendments Act of 1972, 
which says, ``no person in the United States shall on the basis 
of sex be excluded from participation in, denied the benefits 
of, or subjected to discrimination under the education program 
or activity.'' Then, in 1999 the Supreme Court ruled that 
student on student sexual harassment is covered by Title IX. 
And second, there is the Clery Act, as amendment in 2013 by the 
Violence Against Women Act, which requires colleges to, ``have 
procedures for institutional disciplinary action in cases of 
alleged domestic violence, dating violence, sexual assault, or 
stalking.'' The Clery Law mandates such proceedings shall 
prompt ``a fair, prompt, and impartial investigation, and 
resolution'' and ``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.'' That advisor may be 
a lawyer. The law also requires institutions to state in their 
procedures, ``the standard of evidence that will be used during 
any institutional conduct proceeding,'' but it does not say 
what that standard should be.
    Next, your counsel would refer you to regulations based 
upon the two Federal laws. They also have the force of law. 
First, the relevant regulation under Title IX requires schools 
to have a disciplinary process, which is defined in the 
regulation as, ``a grievance procedure, providing for a prompt 
and equitable resolution.'' Regulations under the Clery Act 
define a, ``prompt, fair, and impartial proceeding.'' Under 
these regulations, the institution, ``may establish 
restrictions regarding the extent to which the adviser of 
choice may participate in the proceedings.'' Your counsel will 
also tell you that sometimes the U.S. Department of Education 
will send out a letter or guidance to institutions giving its 
interpretation of what a law or regulation might mean. Such 
letters or guidance do not have the force of law, they are only 
advisory, but campuses sometimes consider them binding as a 
law, and unfortunately, Department officials have in the past, 
made the same mistake. For example, in 2011 and `14, during the 
Obama administration, officials at the U.S. Department of 
Education wrote two guidance letters interpreting Title IX, 
saying and deciding whether an accused student is guilty of 
sexual assault, the decider, ``must use a preponderance of the 
evidence standard.'' It was no surprise that many campuses 
thought this interpretation was the law, because the Department 
acted as if it were the law when it was only advisory.
    On June 26, 2014, at a hearing before this Committee, I 
asked this former Assistant Secretary for Civil Rights, ``do 
you expect institutions to comply with your Title IX guidance 
documents?'' and she responded, we do. In September 2017, 
Secretary DeVos withdrew both of those letters of guidance, and 
a year later, in November of last year, proposed to replace 
them with a new rule under Title IX, a process which allows 
extensive comment and discussion and would have the force of 
law when it is filed. Now that is not all your legal counsel 
would tell you.
    If you are the President of a public institution, as I was, 
where 80 percent of undergraduates attend college, your counsel 
would remind you that your disciplinary process must meet the 
standards of the 14th Amendment to the U.S. Constitution, which 
says, ``nor shall any state deprive any person of life, 
liberty, or property without due process of law.'' And then 
finally, you would have to look at any applicable state laws. 
For example, if you are an administrator at one of Tennessee's 
public colleges, as one of our witnesses is, the state's 
Uniform Administrative Procedure Act mandates that, ``at public 
colleges and universities, a student facing suspension or 
expulsion must be given the option to have a full 
administrative hearing with the right to counsel and the 
opportunity to conduct cross-examination.'' This array of laws 
and regulations creates a challenge for college administrators, 
for students who allege an assault, and for those who are an 
accused to know what the law requires.
    The purpose of today's hearing is to hear how we can create 
more certainty and how colleges and universities should 
appropriately and fairly respond to allegations of sexual 
assault. During this hearing, I would like to focus on three 
issues raised by the Department's proposed rule. One, the 
requirements of due process, including cross-examination. Two, 
the effect of the location of the alleged assault. And three, 
the definition of sexual harassment. According to an article 
published by the Cornell Law Review, more than 100 lawsuits 
have been filed by students accused of sexual assault who claim 
schools denied them due process.
    In one lawsuit, an accused student sued Brandeis 
University. The opinion of the Judge of the U.S. District Court 
for the District of Massachusetts criticized the Department of 
Education's earlier 2011 guidance for causing students to adopt 
unfair practices saying, and I want to quote this, ``in recent 
years, universities across the U.S. have adopted procedural and 
substantive policies intended to make it easier for victims of 
sexual assault to make and prove their claims, and for the 
schools to adopt punitive measures in response. That process 
has been substantially spurred by the Office for Civil Rights 
of the Department of Education, which issued a dear colleague 
letter in 2011, demanding that universities do so or face a 
loss of Federal funding. The goal of reducing sexual assault 
and providing appropriate discipline for offenders is certainly 
laudable. Whether the elimination of basic procedural 
protections and the substantially increased risk that innocent 
students will be punished is a fair price to achieve that goal 
is another question altogether.''
    In February of this year, Supreme Court Justice Ruth Bader 
Ginsburg told the Atlantic, ``there has been criticism of some 
colleges codes of conduct for not giving the accused person a 
fair opportunity to be heard and that is one of the basic 
tenets of our system, as you know. Everyone deserves a fair 
hearing,'' said Justice Ginsburg.
    In an attempt to meet that requirement, the Department's 
proposed rule would require a live hearing, which is defined as 
a hearing in which ``the decisionmaker must permit each party 
to ask the other party and any witnesses all relevant questions 
and follow-up questions, including those challenging 
credibility. Such cross-examination at the hearing must be 
conducted by the party's advisor of choice.'' That is the 
proposed rule. It would also allow parties who do not feel 
comfortable being in the same room with each other to request 
to be in separate rooms, visible by a video feed, for example.
    This definition of a live hearing aligns with recent 
decisions by the U.S. Circuit Court of Appeals and the 
California State Court of Appeals. In the Sixth Circuit, a 
student accused of sexual assault sued the University of 
Michigan. It alleged the school violated the due process clause 
of the 4th amendment when it did not hold a hearing with the 
opportunity for the accused to cross-examine his accuser and 
other witnesses. The Sixth Circuit ruled in favor of the 
accused student saying, ``if a public university has to choose 
between competing narratives to resolve a case, the university 
must give the accused student or his agent an opportunity to 
cross-examine the accuser and diverse witnesses in the presence 
of a neutral fact-finder.'' And in California, the State Court 
of Appeals for the Second District made a similar finding 
stating, when a student, ``a student accused of sexual 
misconduct faces severe disciplinary sanctions and the 
credibility of witnesses is central to the adjudication of the 
allegation, fundamental fairness requires at a minimum that the 
university provide a mechanism by which the accused may cross-
examine those witnesses directly or indirectly at a hearing in 
which the witnesses appear in person or by other means.''
    Some college administrators with whom I have talked, have 
said to me, I do not want to turn our campus into a courtroom. 
Others point out that the requirements of fairness and due 
process often require inconvenient administrative burdens. So, 
it seems to me that the question before us, which I hope our 
witnesses will help us understand, is how can the law satisfy 
the Constitutional requirements of due process without imposing 
unnecessary administrative burdens and expense on higher 
education institutions.
    Now, a second issue is the location of the alleged assault. 
The proposed rule requires a school to respond to an allegation 
of sexual assault even if it is off-campus if, ``the conduct 
occurs within an institution's education program or activity.'' 
There is some question about the definition of university 
program or activity. And a second question is if a university 
can choose to go beyond university programs or activities to 
protect its students. The third issue is how Federal law or 
regulation should define sexual harassment.
    The proposed rule uses a definition established by the U.S. 
Supreme Court in 1999, which requires the conduct to be, ``so 
severe, pervasive, and objectively offensive that it 
effectively denies a person equal access to the institution's 
education program or activity.'' Some have suggested we look at 
other definitions in the Federal law or Supreme Court 
precedent. In the future, regulations for the force of law and 
guidance letters that are merely advisory will continue to 
interpret Federal laws and constitutional requirements, 
governing allegations of sexual assault on campus.
    But as Congress seeks to reauthorize The Higher Education 
Act this year, we should do our best to agree on ways to 
clarify these three issues. The more we do that, the more 
certainty and stability we will give to the law governing how 
institutions of higher education should respond to accusations 
of sexual assault.
    Senator Murray.

                  OPENING STATEMENT OF SENATOR MURRAY

    Senator Murray. Well, thank you very much, Chairman 
Alexander. I am really pleased that this Committee is working 
toward a comprehensive reauthorization of The Higher Education 
Act that addresses all of the issues students are facing in 
higher education. And in order for reauthorization to be truly 
comprehensive, it has to address for student-centered 
priorities, making college more affordable and addressing the 
exploding debt crisis, holding colleges accountable for 
students' success, increasing access and opportunities for 
historically underrepresented students, and ensuring our 
students are able to learn in an environment free from 
discrimination, harassment, and assault. We have had a number 
of productive discussions in this Committee about the first 
three priorities. I am pleased today that we are turning to the 
critical issue of campus safety.
    Our conversation today is focused on addressing the scourge 
of campus sexual assault, and that is very important, but as we 
work together on reauthorizing HEA, I hope we also can address 
the levels of bullying, and hazing, and harassment happening on 
our campuses. We owe that to students like Tyler Clementi who 
tragically took his own life after he was bullied by his fellow 
classmates, and the students who have died on college campuses 
around the country as a result of dangerous hazing practices. 
Jeopardizing their safety is not a price students should have 
to pay just to get an education.
    With that in mind, I want to turn to the topic of our 
hearing today, addressing campus sexual assault and ensuring 
students' safety. The intention of Title IX was to ensure that 
no student can be discriminated against in school on the basis 
of sex, and that means schools must respond appropriately to 
sexual harassment, rape, or sexual assault. For too long, this 
was the unspoken norm on our college campuses. Survivors did 
not report their attacks. They were ashamed or afraid they 
would be blamed, and when they did come forward, schools would 
ignore or hide those stories and refuse to take the necessary 
steps to prevent sexual violence going forward. But over the 
past few years, brave women and men have come forward, and used 
their personal experiences with sexual assault to shine a light 
on what has been happening on college campuses around the 
country for decades. And for the first time, this epidemic is 
finally being taken seriously by schools and universities, by 
the public, and by Congress.
    I am so in awe of the women and man who have shared one of 
the worst moments of their lives in order to let other 
survivors know it is okay to come forward, and to try and stop 
it from happening to others. But in listening to the stories, 
it is clear there is much more that both Congress and colleges 
and universities need to do to prevent sexual assault, and to 
make sure students feel safe after it does happen. Students 
like Sarah, from my home State of Washington. Sarah's school 
found she had been raped and yet still forced her to go to 
school with her assaulter. Sarah felt that Title IX, ``failed 
her entirely.'' Jennifer from Michigan who after reporting 
being sexually harassed by a classmate, she felt her case was 
written off as, ``insignificant and unbelievable.'' Jennifer 
grew into a deep depression because she was not being believed 
by school administrators and said Title IX should be, 
``strengthened, not defanged.'' And yet defanging campus sexual 
assault protection is exactly what Secretary DeVos is proposing 
to do. Her proposed rule would weaken protections for students 
and allow schools to short their responsibility to keep 
students safe.
    By only requiring schools to investigate claims that happen 
on their campus, it would mean that Britney school would not be 
responsible for her rape. Britney was raped in her off-campus 
apartment a few years ago, and she said without protections 
under Title IX afforded to her, she would have never returned 
to finish her degree. By limiting the definition of harassment 
and only requiring schools to act if an attack is reported to 
specific school officials, Secretary DeVos's proposal would 
discourage students from coming forward because they feel they 
will not be believed or have their claims taken seriously.
    As Alice, a survivor of sexual assault said, there needs to 
be a wider definition of sexual assault so survivors can, 
``receive the recognition, care, and action they need.'' And by 
requiring survivors to be directly cross-examined in live 
hearings by the accused or their representatives, this proposal 
would mean survivors would have to relive their trauma while 
being questioned by people who may be wholly unqualified to 
question survivors. Thousands of students, parents, teachers, 
and experts across the country have pointed out that parts of 
her proposed rule are callus, ignore the experience of 
survivors and the advice of experts, and are likely to 
discourage students from coming forward.
    Chairman Alexander, as we work now to reauthorize the 
Higher Education Act, we have to reverse the harmful steps 
Secretary DeVos has taken and make meaningful progress to 
address campus sexual assault. And as we do that, it is 
imperative that we do not turn colleges into fake courtrooms. 
Students who have been assaulted have every right to use the 
judicial system to seek justice, but schools also have a 
responsibility to students. Every student should be treated 
equally and fairly. The process should be unbiased and 
transparent, and students should know what the process is 
before they enter, and it should be consistent for all cases. 
And we must have a process that ensures students have access to 
an education without being forced to be re-traumatized. We 
cannot have the trappings of the judicial system without the 
protections of it.
    I am pleased we are having this hearing, and I hope as we 
continue this conversation, we can continue to lift up the 
voices of survivors, listen to their stories, and use them to 
influence our decisions. We cannot address this issue without 
listening to them and I am so thankful for all of the survivors 
who are here in this room today. I stand with you. I am going 
to keep fighting to stop what happened to you from happening to 
other students. We need a legislative solution to make sure 
students are able to get an education without being sexually 
harassed or assaulted.
    Chairman Alexander, thank you for holding this hearing, and 
I look forward to working with you.
    Thank you.
    The Chairman. Thank you, Senator Murray, and thank you for 
your leadership in making sure that we have had this hearing 
and that we can deal with it in a bipartisan way. We have five 
excellent witnesses today. We look forward to that. And I will 
ask Senator Warren to introduce one of those witnesses. 
Welcome, Senator Warren.
    Senator Warren. Thank you very much, Mr. Chairman. And I 
apologize in advance that I am trying to cover multiple 
hearings this morning. Thank you for holding this very 
important hearing. It is my pleasure today to be able to 
introduce my former colleague, Professor Jeannie Suk Gersen. 
Jeannie is the John H. Watson, Jr. Professor of Law at Harvard 
Law School where she has taught criminal law and procedural 
constitutional law and regulating sex on campus. Professor Suk 
joined Harvard's faculty in 2006, and in 2010 became the first 
Asian American woman to be awarded tenure in the law school's 
history. Jeannie, thank you so much for taking time to be here 
today to help us discuss this important issue.
    As I said, I have other hearings this morning, so if I 
cannot make it back, I am going to submit questions for the 
hearing's record for you and for the other witnesses to answer. 
And I just want to note, based on reading you testimony, I want 
to understand more about your objections to Secretary DeVos's 
extremely concerning proposals to weaken schools' 
responsibilities under Title IX. I find it very alarming, for 
example, that Secretary DeVos thinks schools should only be 
responsible for assaults that occur on campus or at the school-
sponsored program or activity, ignoring students who may be 
victims of assaults that happen, for example, at an off-campus 
fraternity party.
    Based on your testimony and legal scholarship, I know you 
agree that while the discipline process should be fair and 
transparent, requiring schools to subject survivors to live 
cross-examination undermines Title IX and discourages victims 
and witnesses from coming forward. There is an epidemic of 
sexual assault and harassment on college campuses across our 
country, but instead of addressing the problem and listening to 
survivors, Secretary DeVos issues a Title IX proposal that 
would narrow the law's protection and sweep campus sexual 
assault back under the rug.
    Jeannie, I plan to ask you and your fellow witnesses about 
these issues. We look forward to your testimony. And thank you 
again, Mr. Chairman, for this opportunity to introduce such an 
illustrious scholar.
    The Chairman. Thank you, Senator Warren. Thank you for the 
introduction. I will now introduce the other witnesses. 
Patricia Hamill, a Partner with Conrad O'Brien in Philadelphia. 
She has extensive experience, primarily representing students 
accused of sexual assault both in campus disciplinary 
proceedings and in lawsuits they have filed against 
universities. Her bachelor's degree is from Bryn Mawr, and her 
law degree from the University of Maryland.
    Fatima Goss Graves is President and CEO of the National 
Women's Law Center. She has spent more than a decade at the 
National Women's Law Center where she has worked to combat 
harassment and sexual assault, and to advance opportunities for 
women and girls. She received her bachelor's degree from the 
University of California, Los Angeles. Her law degree from 
Yale. Senator Warren has introduced Professor Gersen.
    The fourth witness is Ann Meehan, Director of Government 
and Public Affairs for the American Council on Education. She 
has held that position since 2007. She previously worked in the 
Senate as a staff member for Senator Collins. She earned a 
bachelor's degree from Kenyon, and a law degree from Duke 
University.
    Finally, from Tennessee, Dr. Jeff Howard, Associate Vice 
President for Student Life and Enrollment at East Tennessee 
State University in Johnson City. He overseas student conduct 
and Title IX proceedings through the Union Students' Office in 
a staffed-advised student conduct board and service resources, 
and advocates for all students. Dr. Howard received his 
bachelor's degree in History and Political Science, and 
doctoral degree in Education and Leadership, all from ETSU.
    Thanks to all five of you. If you could summarize your 
remarks in 5 minutes. That will leave more time to questions. 
As I indicated, several of us were interested in the issues of 
the location of the alleged sexual assault, the definition of 
sexual harassment, and the definition of the requirements of 
due process, especially cross-examination. So, Ms. Hamill, let 
us begin with you.

    STATEMENT OF PATRICIA HAMILL, PARTNER, CONRAD O'BRIEN, 
                        PHILADELPHIA, PA

    Ms. Hamill. Thank you, Chairman, and Ranking Member Murray, 
and Members of the Committee. And thank you for inviting me to 
testify here today on this important matter. My name is 
Patricia Hamill, and as Chairman Alexander stated, I am a 
Partner at the Philadelphia Law Firm of Conrad O'Brien, where I 
head up the firm's nationwide Title IX due process and campus 
discipline practice. I hope my experience, which I will share 
here today, will assist this Committee in addressing safety and 
student rights in the context of campus sexual assault.
    I believe I bring a unique perspective to these issues. I 
am a feminist, married to a woman, graduate of a women's 
college, and the mother of two teenage sons and a daughter 
currently in college. So, it may surprise you that in the past 
6 years I have devoted a large portion of my legal practice to 
representing more than 100 students, mostly though not 
exclusively men, accused of various levels of sexual 
misconduct. This is not a partisan issue. It is a fundamental 
principle of our democracy that all persons are entitled to a 
fair hearing.
    I first want to point out that many campus procedures are 
an effort to correct for decades of failure to take claims of 
sexual assault seriously. Let me be very clear, sexual assault 
on college campuses is a serious problem, but the corrective to 
past inadequate responses to sexual assault is not to presume 
that accused people are guilty, deprive them of the ability to 
defend themselves, and punish them without a full consideration 
of the facts. I am concerned by the national polarization on 
this issue and by the apparent assumption by many that measures 
to give accused people, usually men, a fair hearing are a 
strike against justice for women.
    What is often missing from the public discourse is an 
understanding that misconduct occurs on a spectrum, and often 
there are plausible competing narratives and no independent 
witnesses or corroborating evidence. In my written testimony, I 
outline how complex these cases can be, and how difficult it 
can be to determine exactly what happened. Let me give you a 
sense of a typical scenario.
    A young man, 18 or 19 years old, calls us. He went to a 
college party, drank alcohol, and had a sexual encounter with a 
young woman. Both were tipsy, maybe even drunk, but not 
incapacitated. He felt that the encounter was mutual and fully 
consensual. After the encounter, the two had a few friendly 
interactions, but nothing more. Days, months, or even years 
later, he is notified by the Title IX Office that he has been 
accused of sexual assault. If a lot of time has passed, he may 
not remember the encounter very well, but he is someone who 
takes consent seriously and is certain it was consensual. He is 
ostracized and afraid no one will listen to him. He is certain 
that the system already assumes he is guilty and that he will 
suffer lasting consequences, kicked out of school, and 
permanently branded. I can assure you that this is not a rare 
situation as some would have you believe.
    This Committee is in a position to ensure fair processes 
for all parties, which include adequate support services, 
thorough and fair investigations, procedures for informal 
resolution, and if a formal hearing is required, that both 
parties get to fully present their positions and both are 
fairly questioned, respectfully and thoroughly. I want to 
address a critical component of this process. Much opposition 
has been expressed about live hearings and direct questioning, 
but they are critical to a fair process. They allow 
decisionmakers to get as clear an understanding as possible of 
what occurred from everyone's perspective. They allow advocates 
for each party to thoroughly and respectfully explore people's 
memory and credibility.
    Some have suggested that cross-examination by written 
question should be used, but this does not allow for a true 
exploration of these situations. There is no dialog, no flow, 
no opportunity to follow-up. Mr. Chairman, I do understand the 
emotional distress and chilling effect direct questioning can 
have, but that is the case for both parties. And if we are to 
ensure a fair process, every reasonable effort to get at the 
truth must be pursued. There is too much at stake to do 
anything less. In closing, I want to stress that though my 
focus here today has been drawn from my representation of male 
students, I have represented women too, both complainants and 
respondents.
    While the erosion of due process protections in campus 
disciplinary proceedings has so far primarily impacted man, it 
is leading to injustice and insecurity for everyone. In my 
written testimony, I reflect on some recent cases in which 
women have been accused. I believe both complainants and 
respondents have a right to be heard. Neither has a right to be 
automatically believed. If we want fair processes for ourselves 
and our loved ones, we must support fair processes across the 
board.
    Thank you.
    [The prepared statement of Ms. Hamill follows:]
                 prepared statement of patricia hamill
                            I. INTRODUCTION
    As Congress considers reauthorizing the Higher Education Act (HEA), 
I have been asked to testify before this Committee on what a fair 
process in a campus disciplinary proceeding involving alleged sexual 
assault should include. I thank you for this opportunity.
    I bring a unique perspective to these issues, and a deep 
understanding of the challenges faced by all the interested parties. I 
am a partner at the Philadelphia law firm Conrad O'Brien, P.C., and 
Chair of the firm's nationwide Title IX, Due Process and Campus 
Discipline practice. I am also a feminist, married to a woman, graduate 
of a women's college, and the mother of two teenage sons and a daughter 
who is in college. Given my personal background it may seem incongruous 
that I have, over the past six years, represented more than a hundred 
students and academic professionals, mostly men, who have been accused 
of various levels of sexual misconduct. But it is a fundamental 
principle of American jurisprudence that all persons are entitled to a 
fair hearing. My task as an attorney is to advocate for fair, 
objective, and reliable Title IX proceedings, and I see that as a 
nonpartisan issue. \1\
---------------------------------------------------------------------------
    \1\  Patricia Hamill is a partner at the Philadelphia law firm 
Conrad O'Brien, P.C., and Chair of the firm's nationwide Title IX, Due 
Process and Campus Discipline practice. She represents college students 
and academic professionals in disciplinary proceedings and related 
litigation. Patricia is a frequent speaker on Title IX litigation and 
related issues to audiences including Title IX coordinators, advocacy 
groups, and attorneys. Patricia is also a commercial litigator who 
represents clients in white-collar and internal investigations, and is 
a member of the firm's three-person Executive Committee.
---------------------------------------------------------------------------
    Before addressing the question of fair process, I want to draw 
attention to the fact that many of the campus procedures now in place 
are an effort to correct for decades of sexual assault claims not being 
taken seriously or, worse, being completely ignored. I want to be 
perfectly clear. Sexual assault on and related to college campuses is a 
serious problem. I am heartened whenever women (and, though less 
commonly, men) come forward and speak up, when their concerns are taken 
seriously and properly investigated, and when they are given the 
support they need both during and after a disciplinary process, 
regardless of the outcome.

    However, we must be careful not to allow current disciplinary 
processes to be marred by the sins of the past, however oppressive and 
heinous they may have been. The corrective to inadequate responses to 
sexual assault, whether past or present, is not to presume that accused 
people are guilty, deprive them of the ability to defend themselves, 
and punish them without a full consideration of the facts from both 
parties' perspectives. I am concerned by the national polarization on 
these topics, and by the apparent assumption by many that measures to 
give accused people--usually men--a fair hearing are a strike against 
justice for women. Title IX prohibits gender discrimination, and the 
effort to correct discrimination against one gender does not justify 
discrimination against others. What is often missing from the public 
discourse is an understanding that misconduct occurs on a spectrum, and 
often there are plausible competing narratives and no independent 
witnesses or corroborating evidence. Many cases involve encounters 
between young people who are sexually inexperienced, are engaged in the 
casual hook-up culture prevalent on campuses, or both. They may have 
misread or misinterpreted each other's feelings or intent. Often both 
parties have consumed alcohol or drugs, further diminishing their 
ability to make clear decisions, communicate effectively, or remember 
what happened. In addressing contested cases--whether they involve 
sexual or any other form of serious misconduct -our nation's 
fundamental values require fairness to both parties, a thorough and 
impartial investigation, and a fair hearing before impartial 
decisionmakers. \2\
---------------------------------------------------------------------------
    \2\  As the American Civil Liberties Union has observed: 
``Conventional wisdom all too often pits the interests in due process 
and equal rights against each other, as though all steps to remedy 
campus sexual violence will lead to deprivations of fair process for 
the respondent, and robust fair process protections will necessarily 
disadvantage or deter complainants. There are, however, important ways 
in which the goals of due process and equality are shared. Both 
principles seek to ensure that no student--complainant or respondent--
is unjustifiably deprived of access to an education. Moreover, both 
parties (as well as the schools themselves) benefit from disciplinary 
procedures that are fair, prompt, equitable, and reliable.'' ACLU 
Comment, https://www.aclu.org/letter/aclu-comments-title-ix-proposed-
rule.

    In the words of one judge, commenting on college disciplinary 
procedures that ``appear[] to have substantially impaired, if not 
eliminated, an accused student's right to a fair and impartial process, 
it is not enough simply to say that such changes are appropriate 
because victims of sexual assault have not always achieved justice in 
the past. Whether someone is a `victim' is a conclusion to be reached 
at the end of a fair process, not an assumption to be made at the 
beginning. Each case must be decided on its own merits, according to 
its own facts. If a college student is to be marked for life as a 
sexual predator, it is reasonable to require that he be provided a fair 
opportunity to defend himself and an impartial arbiter to make that 
decision. Put simply, a fair determination of the facts requires a fair 
process, not tilted to favor a particular outcome, and a fair and 
neutral fact-finder, not predisposed to reach a particular 
conclusion.'' Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 573 (D. Mass. 
---------------------------------------------------------------------------
2016).

    Providing a fair process and impartial decisionmakers will make 
each individual disciplinary proceeding and outcome more reliable, and 
will benefit complainants, respondents, schools, and their officials. 
At the same time, our focus should not simply be on addressing 
situations after-the-fact: as a nation, we should consider other steps 
to address the conditions and attitudes that lead to contested sexual 
assault complaints, including excessive use of alcohol and drugs, and 
to provide more effective education on consensual sexual conduct. \3\
---------------------------------------------------------------------------
    \3\  I share the concern that many women have been subjected to 
inappropriate conduct. However, the claim that one in five women is 
sexually assaulted in college, a claim that has been the basis for 
advocacy efforts, disciplinary processes, and government policy 
decisions, is based on anonymous surveys, not scientific studies, and 
has been seriously challenged. E.g., https://www.washingtonpost.com/
news/fact-checker/wp/2014/12/17/one-in-five-women-in-college-sexually-
assaulted-an-update/?utm--term=.7f211e30541e; https://
www.washingtonexaminer.com/no-1-in-5-women-have-not-been-raped-on-
college-campuses; http://www.slate.com/articles/double--x/doublex/2015/
09/aau--campus--sexual--assault--survey--why--such--surveys--don--t--
paint--an--accurate.html. The Bureau of Justice Statistics' National 
Crime Victimization Survey reports a much lower rate of sexual assault: 
6.1 per 1000 female students from 1995 to 2013, with the rate trending 
downwards. https://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf. 
Advocates for reported victims also often suggest false accusations of 
sexual assault are rare. This too has been disputed, has been 
undermined by some high profile cases, and does not appear to take into 
account the wide spectrum of situations in which complaints can arise. 
But let's not let the mission of this Committee be sidetracked by 
surveys and statistics, whether reliable or not. Even one assault is 
too many. My point here is about ensuring a fair process. Regardless of 
the accuracy of surveys, the decision in any particular case should be 
based on the facts of that case, objectively and fairly assessed.

    I present my comments as follows. First, I give some historical 
background--how did we get where we are today, and how and why is the 
federal government involved? (Pages 4-7). As discussed below, starting 
in 2011, U.S. Department of Education guidance and other federal 
government initiatives have changed the way sexual assault is 
adjudicated on school campuses. Concerns have been growing, however, 
that procedures developed to address sexual assault allegations are not 
effective for people who report sexual assault, are eroding fundamental 
protections for people who are accused, and are undermining the 
legitimacy of campus disciplinary proceedings and outcomes. These 
concerns have been voiced in public and scholarly commentary, by 
universities and colleges, in an increasing number of opinions from 
federal and state courts, in several state legislatures, and in new 
guidance and proposed Title IX regulations from the Department of 
---------------------------------------------------------------------------
Education.

    Second, I give a brief overview of the Department of Education's 
current approach, including its proposed Title IX regulations, and how 
the proposed regulations match up with my experience and 
recommendations. (Pages 7-10). Overall, I support the Department's 
efforts to align Title IX regulatory requirements with basic principles 
of justice, with court precedent requiring fair procedures for people 
accused of serious misconduct, and with Title IX's proscription of all 
gender discrimination. I also support the Department's proposal to give 
schools and parties more flexibility to pursue informal, non-punitive 
resolutions. At the same time, commenters have expressed legitimate 
concerns about some of the proposed provisions, particularly the 
definitions and conditions that give rise to schools' duty to respond, 
and there is room for discussion and compromise.

    I conclude by identifying key procedural protections which, under 
our nation's system of law, are required for fair and reliable 
determinations, including notice, impartial decisionmakers, thorough 
and fair investigations where both exculpatory and inculpatory evidence 
is gathered and considered, a meaningful opportunity to be heard 
(including the opportunity for the parties to present their positions 
and confront the testimony against them in a live hearing before 
decisionmakers), a presumption that the respondent is not responsible 
unless the applicable standard of proof is met, decisions based on the 
facts of the particular case, and, if there is a finding of 
responsibility, sanctions proportionate to the conduct. (Pages 10-15).
                       II. HISTORICAL BACKGROUND
    Title IX of the Education Amendments of 1972 provides that ``[n]o 
person in the United States shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination under any education program or activity receiving 
Federal financial assistance . . . .'' \4\ As interpreted by federal 
courts, gender discrimination under Title IX includes sexual assault 
and sexual harassment. The United States Department of Education's 
Office of Civil Rights (OCR) is the federal agency in charge of 
enforcing Title IX compliance.
---------------------------------------------------------------------------
    \4\  20 U.S.C.--1681(a).

    Starting in 2011, the federal government began to take aggressive 
steps to combat what it viewed as an epidemic of sexual assault on 
college campuses, focusing on countering discrimination against women. 
On April 4, 2011, OCR issued a ``significant guidance document'' known 
as the 2011 ``Dear Colleague letter,'' stating that ``about 1 in 5 
women are victims of completed or attempted sexual assault while in 
college'' and setting forth steps schools should take to end sexual 
harassment and violence. \5\ Among other things, the letter defined 
sexual harassment broadly as ``unwelcome conduct of a sexual nature,'' 
conflating cases based on conduct with cases based on speech; \6\ 
stated that ``mediation is not appropriate even on a voluntary basis'' 
in cases involving alleged sexual assault; \7\ directed schools to 
ensure ``steps taken to accord due process rights to the alleged 
perpetrator do not restrict or unnecessarily delay the Title IX 
protections for the complainant''; \8\ directed schools to take interim 
steps to protect complainants and ``minimize the burden on the 
complainant''; \9\ ``strongly discourage[d]'' schools from allowing 
cross-examination of parties; 1A\10\ and urged schools to focus on 
victim advocacy. \11\ The letter also stated that schools ``must use a 
preponderance of the evidence standard (i.e., it is more likely than 
not that sexual harassment or violence occurred),'' and must not use 
the ``clear and convincing standard (i.e., it is highly probable or 
reasonably certain that the sexual harassment or violence occurred.).'' 
\12\
---------------------------------------------------------------------------
    \5\  Letter from Russlynn Ali, Ass't Sec'y for Civil Rights, U.S. 
Dep't of Educ., OCR, at 2 (Apr. 4, 2011), http://www2.ed.gov/about/
offices/list/ocr/letters/colleague-201104.pdf.
    \6\  Id. at 3.
    \7\  Id. at 8.
    \8\  Id. at 12.
    \9\  Id. at 15-16.
    \10\  Id. at 12.
    \11\  Id. at 19 n.46.
    \12\  Id. at 11.

    Although the letter was framed as ``guidance'' and did not go 
through the procedures required for formal, binding regulations, much 
of its language--including the standard of proof provision--is 
mandatory. And the letter specifically warned that ``[w]hen a recipient 
does not come into compliance voluntarily, OCR may initiate proceedings 
to withdraw Federal funding by the Department or refer the case to the 
U.S. Department of Justice for litigation.'' \13\
---------------------------------------------------------------------------
    \13\  Id. at 16.

    In 2014, OCR released additional guidance in which it reiterated 
many of the directives set forth in the 2011 Dear Colleague Letter, 
including the injunction to ``ensure that steps to accord any due 
process rights do not restrict or unnecessarily delay the protections 
provided by Title IX to the complainant.'' \14\ The same year, a White 
House Task Force was created, co-chaired by the Office of the Vice 
President and the White House Council on Women and Girls, with a 
mission ``to tell sexual assault survivors that they are not alone'' 
and ``help schools live up to their obligation to protect students from 
sexual violence.'' \15\ The Task Force's first report opened with the 
claim that ``[o]ne in five women is sexually assaulted in college,'' 
stated that the federal government was ramping up Title IX enforcement 
efforts, and stressed again that schools found in violation of Title IX 
risked losing federal funding. \16\ Among other things, the Task Force 
supported the use of a single investigator model, which generally 
involves one school official serving as investigator, prosecutor, and 
decisionmaker and severely limits the respondent's ability to challenge 
the complainant's account. \17\ The Task Force also encouraged colleges 
and universities to provide ``trauma-informed'' training for their 
officials, stating that ``when survivors are treated with care and 
wisdom, they start trusting the system, and the strength of their 
accounts can better hold offenders accountable.'' \18\ The report 
stated that the Justice Department, through its Center for Campus 
Public Safety and its Office on Violence Against Women, was developing 
trauma-informed training programs. \19\ Ultimately, the Department of 
Justice funded a ``Start by Believing' campaign that seeks to train 
investigators to investigate cases from an initial presumption of guilt 
and write reports ``that successfully support the prosecution of sexual 
assault cases'', including by presenting events ``from the victim's 
perspective''; focusing on evidence that ``corroborate[s] the victim's 
account''; focusing on ``what the victim was thinking and feeling;'' 
and ``always us[ing] the language of non-consensual sex.'' \20\
---------------------------------------------------------------------------
    \14\  Questions and Answers on Title IX and Sexual Violence, 
https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
    \15\  Not Alone: The First Report of the White House Task Force to 
Protect Students From Sexual Assault, p.2, https://www.justice.gov/ovw/
page/file/905942/download.
    \16\  Id. at 2, 17.
    \17\  Id. at 3, 14.
    \18\  Id. at 3.
    \19\  Id.
    \20\  See End Violence Against Women International (EVAWI), 
Effective Report Writing: Using the Language of NonConsensual Sex, at 
5, 10, 14 https://www.evawintl.org/library/
DocumentLibraryHandler.ashx?id=43 (emphasis original); Campus Action 
Kit, Start by Believing, https://www.startbybelieving.org/wp-content/
uploads/2018/08/Campus-Action-Kit.pdf.

    On May 1, 2014, as part of its aggressive enforcement, OCR 
published a list of 55 higher education institutions nationwide that 
were under investigation for possible Title IX violations. \21\ 
According to the Chronicle of Higher Education, that number eventually 
grew to over 500. \22\
---------------------------------------------------------------------------
    \21\  U.S. Department of Education Releases List of Higher 
Education Institutions with Open Title IX Sexual Violence 
Investigations (May 1, 2014), https://www.ed.gov/news/press-releases/
us-department-education-releases-list-higher-education-institutions-
open-title-ix-sexual-violence-investigations.
    \22\  Title IX, Tracking Sexual Assault Allegations, Chronicle of 
Higher Education, https://projects.chronicle.com/titleix/.

    In response to the federal government's directives and enforcement 
activities, schools have adopted special policies for disciplinary 
proceedings involving alleged sexual misconduct. The policies are 
administered by designated officials and include investigatory and 
decision-making processes, evidentiary standards, and appeal processes 
based on OCR's actual and perceived requirements. In many instances, 
the policies and processes are very different from those used to 
resolve other campus disciplinary matters, including matters involving 
allegations of serious non-sexual misconduct. Many schools have gone 
even further than OCR's specific directives, essentially eliminating 
due process protections for respondents--the great majority of whom are 
male--in proceedings involving alleged sexual misconduct. Trauma-
informed and ``#BelieveWomen'' approaches have been applied in ways 
that lead school officials (and the community at large) to presume that 
an alleged assault occurred or that a complainant's account of an 
incident must be true. Students and academic professionals are 
suspended, expelled, or pushed out of their positions without 
meaningful notice or opportunity to be heard, and are left with records 
that permanently brand them as sexual offenders, devastate them 
personally, and severely impact their educational and career 
opportunities. In this age of social media and the Internet, the mere 
mention of a sexual misconduct accusation can have the same negative 
and ongoing effects as a finding of responsibility, even if the accused 
---------------------------------------------------------------------------
is exonerated.

    Since 2011, some 400 students have filed lawsuits asserting that 
their schools disciplined them for alleged sexual misconduct without 
providing a fair process or following the schools' own procedures. In 
over 100 of those cases, federal and state courts have written opinions 
raising concerns about the lack of meaningful procedural protections in 
campus Title IX proceedings. \23\
---------------------------------------------------------------------------
    \23\  For a sampling of articles and court opinions expressing 
concerns about the erosion of procedural protections, see Foundation 
for Individual Rights in Education (FIRE), Mountain of evidence shows 
the Department of Education's prior approach to campus sexual assault 
was ``widely criticized'' and ``failing'' (Nov. 15, 2018), https://
www.thefire.org/mountain-of-evidence-shows-the-department-of-
educations-prior-approach-to-campus-sexual-assault-was-widely-
criticized-and-failing/; see also Comments of Eric Rosenberg, Cynthia 
Garrett, Kimberly Lau, and KC Johnson on proposed Title IX regulations 
(Jan. 8, 2019), https://www.regulations.gov/document-D=ED-2018-OCR-
0064-6244 (discussing case law foundations for many provisions in the 
proposed Title IX regulations). I have included FIRE's summary of cases 
in an appendix, along with more detailed summaries of key cases cited 
in the FIRE article and cases decided since the article was published.
---------------------------------------------------------------------------
          III. THE DEPARTMENT OF EDUCATION'S CURRENT APPROACH
    In response to the developing case law and escalating concerns that 
individual Title IX complaints are not being justly resolved, the 
Department of Education has modified its position on Title IX 
enforcement. In September 2017, it withdrew the 2011 Dear Colleague 
Letter and the 2014 Questions and Answers on Title IX Sexual Violence, 
and released a new interim Q&A on Campus Sexual Misconduct to guide 
schools on how to investigate and adjudicate allegations under federal 
law. In November 2018, it issued a Notice of Proposed Rulemaking 
including proposed amended Title IX regulations. \24\ Over 100,000 
comments have been filed by legislators, colleges, students, attorneys, 
and other organizations and citizens, and the Department is in the 
process of digesting and considering them.
---------------------------------------------------------------------------
    \24\  Nondiscrimination on the Basis of Sex in Education Programs 
or Activities Receiving Federal Financial Assistance, https://
www.federalregister.gov/documents/2018/11/29/2018-25314/
nondiscrimination-on-the-basis-of-sex-in-education-programs-or-
activities-receiving-federal.

    Broadly speaking, the proposed regulations have three aspects: 
first, definitions and conditions that activate a school's obligations 
under Title IX; second, provisions giving schools more flexibility to 
take constructive, non-punitive steps to resolve specific concerns and 
prevent recurrence of inappropriate behavior while still ensuring that 
both parties can pursue their education; and third, procedural 
---------------------------------------------------------------------------
protections required for formal Title IX proceedings.

    Along with a number of colleagues, I have submitted detailed 
comments on the proposed regulations. \25\ Overall, I support the 
Department's efforts to align Title IX regulatory requirements with 
basic principles of justice and court rulings calling for fair 
procedures for individuals accused of serious misconduct, including the 
specific procedures I discuss below. As the Department has 
acknowledged, Title IX is concerned with all forms of gender 
discrimination, and a school's treatment of either a complainant or a 
respondent in connection with a sexual harassment complaint may 
constitute discrimination on the basis of sex. Discrimination in favor 
of complainants, who are almost always female, and against respondents, 
almost always male, is pervasive in campus Title IX proceedings, and 
the proposed regulations take crucial steps toward addressing it. Even 
apart from the regulations, courts are requiring schools to protect due 
process and avoid gender discrimination. To the extent Congress 
considers legislation to address these issues, any provisions must be 
constrained by constitutional principles and other statutory 
protections. A society dedicated to equal justice under law cannot 
function if we abandon basic fairness and due process principles in 
reaction to particular types of cases. \26\
---------------------------------------------------------------------------
    \25\  See Comments of Concerned Lawyers and Educators in Support of 
Fundamental Fairness for All Parties in Title IX Grievance Proceedings, 
signed by 40 practicing lawyers and professors (Jan. 28, 2019), https:/
/conradobrien.com/uploads/attachments/cjrjac2cb0cmt01iw4vzo4aev-
comments-of-concerned-lawyers-and-educators-in-support-of-fundamental-
fairness-for-all-parties-in-title-ix-grievance-proceedings-1-28-
2019.pdf; Comments of Patricia M. Hamill (Jan. 28, 2019), https://
conradobrien.com/uploads/attachments/cjrjaco9u0cmszciwf8gq9jfj-comment-
of-p-hamill-on-proposed-title-ix-regulations-1-28-2019.pdf. In my 
individual comments, I set forth scenarios drawn from cases involving 
accused students to illustrate why procedural reforms are so badly 
needed. Other comments to the regulations include personal stories 
reinforcing this point. Some involve students who were found 
responsible after a blatantly unfair proceeding. In others, the accused 
student was ultimately exonerated, but still suffered significant and 
lasting damage due to the mere fact of the accusation or how the 
proceedings were handled.
    \26\  The Department's confirmation, in proposed Section 106.45(a), 
that a school's treatment of either a complainant or a respondent may 
constitute discrimination on the basis of sex, is an essential step 
toward correcting the view that Title IX allows (or should even be 
interpreted to require) procedures that are biased in favor of 
``victims'' (again, almost always women). Title IX proceedings should 
be fundamentally fair to all genders. Schools routinely argue in court 
proceedings that Title IX does not preclude ``pro-victim'' bias and 
some courts have accepted that argument, though others have not. 
Compare, e.g., Doe v. University of Oregon, No. 6:17-CV-01103-AA, 2018 
WL 1474531, 15 (D. Or. Mar. 26, 2018) (suggesting that bias against an 
accused male would not violate Title IX if it ``stemmed from a purely 
`pro-victim' orientation,'' and that it would be lawful if a 
university, ``in an attempt to change historical patterns of giving 
little credence to sexual assault allegations, has adopted a 
presumption that purported victims of sexual misconduct are telling the 
truth''), with Noakes v. Syracuse Univ., No. 5:18-CV-43, 2019 WL 936875 
(N.D.N.Y. Feb. 26, 2019) (holding that allegations of flawed and pro-
complainant proceedings, in combination with allegations of general and 
university-specific pressure to believe complainants and crack down on 
accused offenders, suffice at the motion to dismiss stage to plead 
gender bias).

    I also support the Department's proposal to give complainants who 
report conduct covered by Title IX a meaningful choice between a formal 
Title IX process or an alternative dispute resolution, and the 
corresponding requirement that schools provide supportive, non-punitive 
individualized services designed to restore or preserve both parties' 
access to the school's education programs and activities, whether or 
not formal proceedings are pursued. The Department's expressed goal is 
not to limit protections for complainants, but to provide more options, 
acknowledging that college students are adults and different resolution 
processes may be appropriate for different individuals and different 
situations. \27\ As I said before, the facts in many contested sexual 
misconduct cases are nuanced and complicated. I agree with the 
Department's observation, based on ``feedback from many stakeholders,'' 
that ``often the most effective measures a recipient can take to 
support its students in the aftermath of an alleged incident of sexual 
harassment are outside the grievance process and involve working with 
the affected individuals to provide reasonable supportive measures that 
increase the likelihood that they will be able to continue their 
education in a safe, supportive environment.'' \28\ Informal resolution 
processes are equally, if not more, appropriate when a complainant 
reports conduct that is not covered by Title IX, for example, conduct 
that is unwelcome but not necessarily severe or pervasive and does not 
constitute assault. \29\
---------------------------------------------------------------------------
    \27\  83 FR at 61462, 61470.
    \28\  83 FR at 61470.
    \29\  Even commenters who oppose other aspects of the regulations 
have welcomed the provisions giving schools more power to pursue 
informal resolutions, including restorative justice or mediation. To 
quote just one of a number of similar comments: ``Students and 
institutions alike desire the power to settle these disputes in a 
productive manner rather than being arbitrarily forced into a one-size-
fits-all solution.'' Association of Governing Boards of Universities 
and Colleges, https://www.regulations.gov/document?D=ED-2018-OCR-0064-
7550.

    At the same time, however, certain aspects of the proposed 
regulations have given rise to legitimate concerns, and there is room 
for clarification and compromise. In particular, in setting forth the 
definitions and conditions that give rise to a school's duty to respond 
under Title IX, the Department's apparent intent was to restrict formal 
Title IX proceedings to cases of alleged misconduct that interfere with 
a complainant's participation in an educational program or activity, 
consistent with the language of Title IX and with court decisions. But 
even commenters who welcome the Department's efforts to balance 
protection of alleged victims with due process protections have 
expressed concerns that the Department has gone too far in loosening 
schools' duty to respond. Counterproposals include, on the one hand, 
expanded definitions of sexual harassment and the conditions that give 
rise to a duty to respond, and, on the other, measures to ensure 
schools do not circumvent key procedural protections by handling cases 
of serious alleged misconduct outside of the Title IX process. While 
this is beyond the scope of the issues I was asked to address, I 
encourage lawmakers and the Department to consider the comments and 
requests for clarification regarding the Department's proposed 
definitions of sexual harassment and sexual assault (Section 106.30 of 
the proposed regulations), the ``deliberate indifference'' standard 
(Section 106.44(a)); and the standards for what constitutes conduct 
within a school's ``education program or activity'' (Section 
106.44(a)). \30\
---------------------------------------------------------------------------
    \30\  While I am not presenting any particular solution to these 
concerns in this submission, I note suggestions made by Harvard 
professors Gersen, Gertner, and Halley, https://perma.cc/3F9K-PZSB; the 
ACLU, https://www.aclu.org/letter/aclu-comments-title-ix-proposed-rule; 
and Concerned Lawyers and Educators, https://conradobrien.com/uploads/
attachments/cjrjac2cb0cmt01iw4vzo4aev-comments-of-concerned-lawyers-
and-educators-in-support-of-fundamental-fairness-for-all-parties-in-
title-ix-grievance-proceedings-1-28-2019.pdf.
---------------------------------------------------------------------------
  IV. PROCEDURAL PROTECTIONS REQUIRED FOR A FAIR AND RELIABLE PROCESS
    The procedural protections I outline below are generally included 
in the Department's proposed regulations, though in some instances I 
propose modifications or clarifications. As I have emphasized, these 
protections are consistent with basic principles of justice and with 
rulings by many courts. \31\ Most of them would be freely accepted in 
any other context, and many have not been the subject of specific 
objections (with notable exceptions such as the live hearing, cross-
examination, standard of proof, and presumption of non-responsibility 
provisions, which I address below). While commenters have raised 
general concerns about the potential cost and complexity of these 
provisions, they are necessary for fair proceedings and can be avoided 
if schools and parties voluntarily pursue less formal resolutions. In 
addition, the disproportionate negative impact of sexual misconduct 
policies and proceedings on men of color has been well documented, and 
makes due process and other legal rights all the more important. \32\
---------------------------------------------------------------------------
    \31\  Representative examples of court decisions affirming these 
rights in the context of Title IX disciplinary proceedings are included 
in the appendix.
    \32\  See, for example, Janet Halley, Trading the Megaphone for the 
Gavel in Title IX Enforcement, Harvard Law Review, https://
harvardlawreview.org/2015/02/trading-the-megaphone-for-the-gavel-in-
title-ix-enforcement-2/.

          1. Schools should offer supportive measures -``non-
        disciplinary, non-punitive individualized services . . . 
        designed to restore or preserve access to the [school's] 
        education program or activity''--to both parties, whether or 
        not a formal complaint is filed. \33\
---------------------------------------------------------------------------
    \33\  Proposed Section 106.30.

          2. An interim suspension should be imposed only if a school 
        determines, after an individualized analysis, that it is 
        justified by an immediate threat of harm to students or 
        employees, and the respondent should be given notice and an 
        opportunity to challenge the decision immediately after the 
        suspension is imposed. In addition to these protections 
        (included in the proposed regulations), \34\ an interim 
        suspension should be allowed only if it is the least 
        restrictive alternative, and the same standards and limitations 
        should apply to the currently-routine practice of placing holds 
        on accused students' transcripts or withholding their degrees 
        while a disciplinary proceeding is pending. This practice can 
        result in severe and unwarranted punishment even if the accused 
        student is ultimately found not responsible.
---------------------------------------------------------------------------
    \34\  Proposed Section 106.44(c).

          3. Schools should give both parties timely and adequate 
        notice of the applicable school policy or code provisions and 
        their rights. \35\
---------------------------------------------------------------------------
    \35\  The rest of these points are generally covered by proposed 
Section 106.45(b). Some points, including 17-20, include suggested 
modifications of the Department's proposals.

          4. Schools should give respondents notice of complaints 
        against them, including the factual allegations on which a 
        complaint is based and the relevant provisions of the school's 
        policy or code, before any initial interview and with 
        sufficient time to prepare a response. Parties should also be 
        notified if the school decides to investigate additional or 
        different allegations or charges from those included in the 
---------------------------------------------------------------------------
        initial notice.

          5. Title IX coordinators, investigators, and decisionmakers 
        should not have conflicts of interest, bias for or against 
        complainants or respondents generally, or bias for or against a 
        particular party.

          6. Decisionmaker(s) should not be the same person(s) as the 
        Title IX coordinator or the investigator(s).

          7. Investigators, decisionmakers, and all other officials 
        involved in Title IX disciplinary proceedings should be trained 
        on the requirements of Title IX and the school's procedures. 
        They should be trained to conduct impartial proceedings, not to 
        rely on sex stereotypes, and to protect due process for all 
        parties. In particular, while investigators may be 
        appropriately trained to be sensitive in how they question 
        parties, they should not be trained to presume alleged conduct 
        occurred or to make credibility determinations based on 
        presumptions about complainants or respondents.

          8. Schools--not parties--should be responsible for gathering 
        all relevant evidence, both inculpatory and exculpatory, and 
        for evaluating it objectively. Credibility determinations 
        should not be based on a person's status as a complainant, 
        respondent, or witness.

          9. Respondents should be given a presumption of non-
        responsibility. Such a presumption is a corollary to the 
        standard of proof: whatever standard is ultimately adopted, if 
        it is not satisfied the respondent should be found not 
        responsible. An express statement of the presumption is 
        necessary because college officials are commonly trained to 
        presume a complainant's credibility.

          10. The parties should have an equal opportunity to present 
        witnesses and evidence and to be accompanied during the 
        proceedings by an advisor of their choice.

          11. The parties should be given written notice of all 
        interviews, meetings, and hearings, with sufficient time to 
        prepare.

          12. The parties should be given an equal and meaningful 
        opportunity to review, respond to, and present all evidence 
        gathered during the investigation, both inculpatory and 
        exculpatory.

          13. The investigative report should fairly summarize relevant 
        evidence, both inculpatory and exculpatory, and the parties 
        should be given a meaningful opportunity to review and respond 
        to the report.

          14. Decision-makers should issue a comprehensive written 
        determination based on an objective evaluation of the evidence. 
        The determination should identify the relevant policy or code 
        provision(s), describe the investigation, review the evidence, 
        include findings of fact and conclusions as to how the code 
        provisions apply to the facts, state the decision as to each 
        allegation and the rationale for the decision, describe any 
        sanction and the rationale for the sanction, and describe any 
        support measures or remedies provided to the complainant.

          15. The parties should receive timely written notice of their 
        appeal rights, and an independent decisionmaker for the appeal.

          16. Institutions of higher education should provide a live 
        hearing and allow the parties' advisors to question the other 
        party and witnesses. These provisions in the proposed 
        regulations have provoked particular opposition. However, they 
        are consistent with longstanding legal precedent and critical 
        to a fair determination, ensuring that the parties can test, 
        and decisionmakers can assess, the credibility and reliability 
        of the parties and witnesses. The practice currently used at 
        many schools, where parties can submit written questions, 
        school officials decide what questions to ask, and 
        decisionmakers may never even see the parties in person, is not 
        an adequate substitute. Questioning should take place in real 
        time, in the presence of both the parties and the 
        decisionmakers. The written question process is artificially 
        constrained and does not allow the questioner to flow with the 
        testimony or effectively address new points as they come up. 
        While some have expressed concerns that the prospect of live 
        questioning will deter reporting of sexual misconduct, I have 
        not seen evidence that this is true, and I note that 
        respondents too will be subject to questioning and may decide 
        to accept sanctions rather than undergo that process. 
        Regardless, as I have said, I firmly believe complainants 
        should be supported and taken seriously, but the goal of a 
        particular disciplinary proceeding should be to determine 
        whether the allegations in that case are true. Any assumption 
        that a particular complainant is a victim of sexual misconduct 
        and should not be questioned or effectively tested is not 
        consistent with basic fairness. Schools can, should, and do 
        adopt measures to ensure respectful treatment of parties and 
        witnesses and prevent irrelevant, unfair, or badgering 
        questions, and can also take steps to keep the parties 
        separated.

          17. If a Title IX proceeding continues while a criminal 
        investigation is pending, a respondent's right to avoid self-
        incrimination must be protected and no adverse inference should 
        be drawn if the respondent limits his participation or 
        testimony.

          18. Consistent with Federal Rule of Evidence 412, evidence of 
        prior sexual history should be allowed if it is offered to 
        prove that someone else committed the alleged conduct; if it 
        concerns specific incidents of the parties' sexual conduct and 
        is offered to prove consent, non-consent, welcomeness, or 
        unwelcomeness; and if the ``probative value [of the evidence] 
        substantially outweighs the danger of harm to any victim and of 
        unfair prejudice to any party.'' \36\
---------------------------------------------------------------------------
    \36\  Rule 412(b)(2). The proposed regulations include the first 
two conditions; I propose the third based on established rules of 
evidence and further propose that limits to inquiry into prior sexual 
history should apply to both parties.

          19. A uniform ``clear and convincing evidence'' standard of 
        evidence should apply. Sexual misconduct charges carry the 
        potential for life-long consequences, including permanent 
        transcript notations that will forever impair a respondent's 
        educational and career prospects. As courts have acknowledged, 
        the preponderance of the evidence standard is not sufficient to 
        protect against unreliable determinations. \37\ The clear and 
        convincing standard is essential to ensure that schools reach 
        just results, not simply adopt fairer procedures on paper. 
        Otherwise the risk is high that school officials, long steeped 
        in a pro-``victim,'' anti-``perpetrator'' approach, will 
        continue to bow to widespread pressure to resolve grievances 
        against respondents, and thus perpetuate the gender bias that 
        pervades Title IX disciplinary processes now.
---------------------------------------------------------------------------
    \37\  See, e.g., Lee v. Univ. of New Mexico, No. 1:17-cv-01230-JB-
LF (D.N.M. Sept. 20, 2018); Doe v. Univ. of Mississippi, No. 3:16-CV-
63-DPJ-FKB, 2018 WL 3570229, *11 (S.D. Miss. July 24, 2018) (allowing 
student to pursue claims against university based in part on use of 
preponderance standard to resolve sexual assault complaint). The 
proposed regulations would generally allow schools to choose whether to 
apply a preponderance or clear and convincing standard.

          20. Regarding the Department's proposal that schools be 
        required to dismiss a complaint that does not satisfy the 
        standards in the regulations, some commenters have taken the 
        position that the Department's provisions for formal Title IX 
        grievance proceedings should establish a floor, not a ceiling, 
        and that schools should remain free to respond to complaints of 
        conduct that does not fall within the Department's definition 
        of sexual harassment, that violates a school's own policies, 
        etc. I believe this concept is built into the proposed 
        regulations. If a school decides to provide recourse or support 
        for other conduct, however, it should make supportive measures 
        available to both parties, and any proceeding that could result 
        in a respondent's being deprived of access to a school's 
        educational programs or activities should provide the 
        procedural protections set forth above. \38\
---------------------------------------------------------------------------
    \38\  I am also concerned about students who have been found 
responsible under current processes that did not provide the basic 
protections necessary to ensure a fair result, and believe 
consideration should be given to offering them recourse. At the very 
least, a process should be available for persons found responsible to 
have their records expunged after a designated period, and there should 
be a time frame after which respondents are no longer required to 
report an adverse disciplinary ruling on an application for admission 
to another school.
---------------------------------------------------------------------------
                             V. CONCLUSION
    While the erosion of due process protections in campus disciplinary 
proceedings has so far primarily impacted men, it is leading to 
injustice and insecurity for everyone. This is starkly illustrated by 
several recent cases in which women have been the accused or have 
argued that others should receive a fair process. In one reported case, 
two students had a sexual encounter while under the influence of 
alcohol. The woman was found responsible for sexual assault and was 
given a suspension to last as long as the man attended the school. She 
filed suit and asked the Court to enjoin the sanction, arguing that she 
was not given due process and that the school should have considered 
whether she was a victim herself, since both parties had been drinking. 
She lost her motion and then withdrew her lawsuit. \39\ When a well-
known feminist scholar was accused of sexually harassing a graduate 
student, other academics rallied around her, asked that she receive ``a 
fair hearing,'' and stated their ``objection to any judgment against 
her.'' \40\ And the female CEO of an organization that grew out of the 
#MeToo movement stepped down after her son was accused of sexual 
misconduct, stating her intention to stand by him; the organization 
issued a statement reiterating its unequivocal support for survivors. 
\41\
---------------------------------------------------------------------------
    \39\  Jane Roe v. U. of Cincinnati, No. 1:18-cv-312 (S.D. Ohio Aug. 
21, 2018), https://kcjohnson.files.wordpress.com/2018/08/roe-v-
cincinnati-pi-denial.pdf.
    \40\  As reported by Nell Gluckman, How a Letter Defending Avital 
Ronell Sparked Confusion and Condemnation, Chronicle of Higher 
Education (June 12, 2018), https://www.chronicle.com/article/How-a-
Letter-Defending-Avital/243650.
    \41\  David French, The Great Due-Process Revival (Feb. 25, 2019), 
https://www.nationalreview.com/corner/due-process-protections-metoo-
movement/.

    I believe both complainants and respondents have a right to be 
heard. Neither has a right to be automatically believed. If we want 
fair processes for ourselves and our loved ones, we must support fair 
processes across the board, and not abandon our basic principles of 
justice because of the nature of the accused conduct or the 
unpopularity of the accused.
                                APPENDIX
    The following is an excerpt from an article by the Foundation for 
Individual Rights in Education, Mountain of evidence shows the 
Department of Education's prior approach to campus sexual assault was 
``widely criticized'' and ``failing'' (Nov. 15, 2018),https://
www.thefire.org/mountain-of-evidence-shows-the-department-of-
educations-prior-approach-to-campus-sexual-assault-was-widely-
criticized-and-failing/ (pages 17-19); additional information about the 
facts and holdings in some of those cases (pages 20-22); and a 
representative sampling of cases decided since the article was 
published (pages 22-23).
                       Excerpt from FIRE article:
          [S]ince 2011, approximately 117 federal courts, as well as a 
        number of state courts, have raised concerns about the lack of 
        meaningful procedural protections in campus adjudications. A 
        number of those judges have put their concerns in particularly 
        clear terms:

          Doe v. Regents of the University of California, No. B283229 
        (Cal. Ct. App. Oct. 9, 2018) (``It is ironic that an 
        institution of higher learning, where American history and 
        government are taught, should stray so far from the principles 
        that underlie our democracy.'').

          Lee v. University of New Mexico, No. 17-cv-01230 (D.N.M. 
        Sept. 20, 2018) (``[P]reponderance of the evidence is not the 
        proper standard for disciplinary investigations such as the one 
        that led to Lee's expulsion, given the significant consequences 
        of having a permanent notation such as the one UNM placed on 
        Lee's transcript.'').

          Doe v. Baum, 903 F.3d 575 (6th Cir. 2018) (``[I]f a public 
        university has to choose between competing narratives to 
        resolve a case, the university must give the accused student or 
        his agent an opportunity to cross-examine the accuser and 
        adverse witnesses in the presence of a neutral fact-finder.'').

          Doe v. University of Michigan, 325 F. Supp. 3d 821 (E.D. 
        Mich. 2018) (``Without a live proceeding, the risk of an 
        erroneous deprivation of Plaintiff's interest in his 
        reputation, education, and employment is significant.'').

          Doe v. Trustees of Boston College, 892 F.3d 67 (1st Cir. 
        2018) (holding that it is ``reasonable for a student to expect 
        that a basic fairness guarantee excludes having an associate 
        Dean of Students request Board members to give special 
        treatment to the prime alternative culprit in a case in which 
        the key defense is that someone other than the accused student 
        committed the alleged sexual assault'').

          Doe v. Marymount University, 297 F. Supp. 3d 573 (E.D. Va. 
        2018) (``[C]olleges and universities should treat sexual 
        assault investigations and adjudications with a degree of 
        caution commensurate with the serious consequences that 
        accompany an adjudication of guilt in a sexual assault case. If 
        colleges and university do not treat sexual assault 
        investigations and adjudications with the seriousness they 
        deserve, the institutions may well run afoul of Title IX.'').

          Doe v. University of Notre Dame, 2017 U.S. Dist. 
        LEXIS 69645 (N.D. Ind. May 8, 2017) (in response to 
        university's argument that lawyers were not required because 
        its disciplinary process was educational, not punitive, judge 
        wrote: ``This testimony is not credible. Being thrown out of 
        school, not being permitted to graduate and forfeiting a 
        semester's worth of tuition is `punishment' in any reasonable 
        sense of that term.'').

          Doe v. Brandeis University, 177 F. Supp. 3d 561 (D. 
        Mass. 2016) (``Brandeis appears to have substantially impaired, 
        if not eliminated, an accused student's right to a fair and 
        impartial process. . . . If a college student is to be marked 
        for life as a sexual predator, it is reasonable to require that 
        he be provided a fair opportunity to defend himself and an 
        impartial arbiter to make that decision.'').

          Doe v. Columbia University, 831 F.3d 46 (2d Cir. 
        2016) (``A covered university that adopts, even temporarily, a 
        policy of bias favoring one sex over the other in a 
        disciplinary dispute, doing so in order to avoid liability or 
        bad publicity, has practiced sex discrimination . . . .'').

          See also Doe v. Miami Univ., 882 F.3d 579 (6th Cir. 
        2018); Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 
        2017); Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016); 
        Rossley v. Drake Univ., No. 4:16-cv-00623 (S.D. Iowa Oct. 12, 
        2018); Doe v. Univ. of So. Miss., No. 2:18-cv-00153 (S.D. Miss. 
        Sept. 26, 2018); Doe v. Syracuse Univ., 2018 U.S. Dist. LEXIS 
        157586 (N.D.N.Y. Sept. 16, 2018); Doe v. Brown Univ., 2018 U.S. 
        Dist. LEXIS 144967 (D.R.I. Aug. 27, 2018); Doe v. Pa. St. 
        Univ., 2018 U.S. Dist. LEXIS 141423 (M.D. Pa. Aug. 21, 2018); 
        Doe v. Geo. Wash. Univ., 2018 U.S. Dist. LEXIS 136882 (D.D.C. 
        Aug. 14, 2018); Rowles v. Curators of the Univ. of Miss., No. 
        2:17-cv-04250 (W.D. Mo. July 16, 2018); Doe v. Univ. of Miss., 
        2018 U.S. Dist. LEXIS 123181 (S.D. Miss. July 14, 2018); Doe v. 
        Johnson & Wales Univ., No. 1:18-cv-00106 (D.R.I. May 14, 2018); 
        Doe v. DiStefano, 2018 U.S. Dist. LEXIS 76268 (D. Colo. May 7, 
        2018); Werner v. Albright Coll., No. 5:17-cv-05402 (E.D. Pa. 
        May 2, 2018); Doe v. Ohio St. Univ., 2018 U.S. Dist. LEXIS 
        68364 (S.D. Ohio Apr. 24, 2018); Roe v. Adams-Gaston, No. 2:17-
        cv-00945 (S.D. Ohio Apr. 17, 2018); Elmore v. Bellarmine Univ., 
        2018 U.S. Dist. LEXIS 52564 (W.D. Ky. Mar. 29, 2018); Doe v. 
        Univ. of Or., 2018 U.S. Dist. LEXIS 49431 (D. Or. Mar. 26, 
        2018); Doe v. Marymount Univ., 297 F. Supp. 3d 573 (E.D. Va. 
        2018); Schaumleffel v. Muskingum Univ., 2018 U.S. Dist. LEXIS 
        36350 (S.D. Ohio Mar. 6, 2018); Gischel v. Univ. of Cincinnati, 
        302 F. Supp. 3d 961 (S.D. Ohio 2018); Powell v. St. Joseph's 
        Univ., 2018 U.S. Dist. LEXIS 27145 (E.D. Pa. February 16, 
        2018); Doe v. Rider Univ., 2018 U.S. Dist. LEXIS 7592 (D.N.J. 
        Jan. 17, 2018); Doe v. Pa. St. Univ., 2018 U.S. Dist. LEXIS 
        3184 (M.D. Pa. Jan. 8, 2018); Saravanan v. Drexel Univ., 2017 
        U.S. Dist. LEXIS 193925 (E.D. Pa. Nov. 24, 2017); Painter v. 
        Adams, 2017 U.S. Dist. LEXIS 171565 (W.D.N.C. Oct. 17, 2017); 
        Doe v. Univ. of Chicago, 2017 U.S. Dist. LEXIS 153355 (N.D. 
        Ill. Sept. 20, 2017); Rolph v. Hobart & William Smith Colls., 
        271 F. Supp. 3d 386 (W.D.N.Y. Sept. 20, 2017); Doe v. Case 
        Western Reserve Univ., 2017 U.S. Dist. LEXIS 142002 (N.D. Ohio 
        Sept. 1, 2017); Doe v. Trs. of the Univ. of Pa., 270 F. Supp. 
        3d 799, 817 (E.D. Pa. 2017); Gulyas v. Appalachian St. Univ., 
        2017 U.S. Dist. LEXIS 137868 (W.D.N.C. Aug. 28, 2017); Nokes v. 
        Miami Univ., 2017 U.S. Dist. LEXIS 136880 (S.D. Ohio Aug. 25, 
        2017); Mancini v. Rollins Coll., 2017 U.S. Dist. LEXIS 113160 
        (M.D. Fl. July 20, 2017); Tsuruta v. Augustana Univ., No. 4:15-
        cv-04150 (D.S.D. June 16, 2017); Doe v. Univ. of Notre Dame, 
        2017 U.S. Dist. LEXIS 69645 (N.D. Ind. May 8, 2017); Doe v. 
        Williams Coll., No. 3:16-cv-30184 (D. Mass. Apr. 28, 2017); Doe 
        v. Amherst Coll., 238 F. Supp. 3d 195 (D. Mass. 2017); Doe v. 
        Ohio St. Univ., 239 F. Supp. 3d 1048 (S.D. Ohio 2017); Neal v. 
        Colo. St. Univ.--Pueblo, 2017 U.S. Dist. LEXIS 22196 (D. Colo. 
        Feb. 16, 2017); Doe v. Lynn Univ., 2017 U.S. Dist. LEXIS 7528 
        (S.D. Fl. Jan. 19, 2017); Doe v. W. New England Univ., 228 F. 
        Supp. 3d 154 (D. Mass. 2017); Doe v. Alger, 228 F. Supp. 3d 713 
        (W.D. Va. 2016); Collick v. William Paterson Univ., 2016 U.S. 
        Dist. LEXIS 160359 (D.N.J. Nov. 17, 2016); Doe v. Brown Univ., 
        210 F. Supp. 3d 310 (D.R.I. Sept. 28, 2016); Ritter v. Okla. 
        City Univ., 2016 U.S. Dist. LEXIS 95813 (W.D. Okla. July 22, 
        2016); Doe v. Weill Cornell Med. Coll. of Cornell Univ., No. 
        1:16-cv-03531 (S.D.N.Y. May 20, 2016); Doe v. Bd. of Regents of 
        the Univ. Sys. Of Ga., No. 15-cv-04079 (N.D. Ga. April 19, 
        2016); Doe v. George Mason Univ., No. 1:15-cv-00209 (E.D. Va. 
        Feb. 25, 2016); Prasad v. Cornell Univ., 2016 U.S. Dist. LEXIS 
        161297 (N.D.N.Y. Feb. 24, 2016); Doe v. Brandeis Univ., 177 F. 
        Supp. 3d 561 (D. Mass. 2016); Doe v. Brown Univ., 166 F. Supp. 
        3d 177 (D.R.I. 2016); Marshall v. Indiana Univ., 170 F. Supp. 
        3d 1201 (S.D. Ind. 2016); Doe v. Pa. St. Univ., No. 4:15-cv-
        02072 (M.D. Pa. Oct. 28, 2015); Sterrett v. Cowan, 2015 U.S. 
        Dist. LEXIS 181951 (E.D. Mich. Sept. 30, 2015); Doe v. 
        Middlebury Coll., 2015 U.S. Dist. LEXIS 124540 (D. Vt. Sept. 
        16, 2015); Doe v. Salisbury Univ., 123 F. Supp. 3d 748 (D. Md. 
        August 21, 2015); Doe v. Washington and Lee Univ., 2015 U.S. 
        Dist. LEXIS 102426 (W.D. Va. Aug. 5, 2015); Tanyi v. 
        Appalachian St. Univ., 2015 U.S. Dist. LEXIS 95577 (W.D.N.C. 
        July 22, 2015); Doe v. Salisbury Univ., 107 F. Supp. 3d 481 (D. 
        Md. 2015); King v. DePauw Univ., 2014 U.S. Dist. LEXIS 117075 
        (S.D. Ind. August 22, 2014); Benning v. Corp. of Marlboro 
        Coll., 2014 U.S. Dist. LEXIS 107013 (D. Vt. Aug. 5, 2014); 
        Harris v. St. Joseph's Univ., 2014 U.S. Dist. LEXIS 65452 (E.D. 
        Pa. May 13, 2014); Wells v. Xavier Univ., 7 F. Supp. 3d 746 
        (S.D. Ohio 2014); Doe v. Geo. Wash. Univ., No. 1:11-cv-00696 
        (April 8, 2011).

    Additional details from a sampling of these cases, affirming the 
principles that schools are obligated to follow their own procedures; 
clearly notify respondents of the charges against them and the factual 
basis for those charges; conduct a thorough and fair investigation; 
give respondents a meaningful opportunity to defend themselves (with 
access to relevant materials and the ability to confront their 
accusers); ensure decisionmakers and investigators are impartial; 
meaningfully consider both exculpatory and inculpatory evidence; and 
give fair and consistent treatment both to complainants (usually 
female) and respondents (usually male):

          Doe v. Baum, 903 F.3d 575 (6th Cir. Sept. 7, 2018): 
        allowed a male student to proceed with due process and Title IX 
        claims because credibility was at issue and plaintiff was not 
        given a hearing or ``an opportunity to cross-examine the 
        accuser and adverse witnesses in the presence of a neutral 
        fact-finder;'' also held plaintiff had plausibly alleged that 
        university officials ``discredited all males, including Doe, 
        and credited all females, including Roe, because of gender 
        bias.''

          Doe v. Miami University, 882 F.3d 579 (6th Cir. 
        2018): allowed a male student to proceed with claims that the 
        university did not adequately consider inconsistencies in a 
        complainant's statement, did not apply its own definition of 
        consent, and treated the parties differently, failing to take 
        seriously the male student's allegations that the female 
        student engaged in non-consensual conduct.

          Collick v. William Paterson University, 699 Fed. 
        Appx. 129 (3d Cir. Oct. 26, 2017): allowed a male student to 
        proceed with claims against an individual college official who 
        conducted a cursory investigation.

          Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 
        Sept. 25, 2017): enjoined university from suspending a male 
        student, because complainant did not appear at hearing, issues 
        turned on credibility, and plaintiff had no opportunity to 
        confront her.

          Lee v. University of New Mexico, No. 17-1230, Order 
        (D.N.M. Sept. 20, 2018): allowed a male student to proceed with 
        due process claims based on allegations that the disciplinary 
        proceeding turned on a problem of credibility ``such that a 
        formal or evidentiary hearing, to include the cross-examination 
        of witnesses and presentation of evidence in his defense, is 
        essential to basic fairness;'' ``preponderance of the evidence 
        is not the proper standard for disciplinary investigations such 
        as the one that led to Lee's expulsion, given the significant 
        consequences of having a permanent notation such as the one UNM 
        placed on Lee's transcript;'' and plaintiff did not receive 
        notice of certain charges until his sanctions hearing, when it 
        was too late to prepare an adequate defense.

          Doe v. Syracuse University, 341 F. Supp. 3d 125 
        (N.D.N.Y. Sept. 16, 2018): allowed a male student to proceed 
        with Title IX claims based on allegations that the university 
        had concluded both students were highly intoxicated but applied 
        a presumption of inability to knowingly consent to sexual 
        intercourse only to the female and had not adequately 
        investigated or questioned the female's credibility.

          Doe v. Brown Univ., 327 F. Supp. 3d 397 (D.R.I. Aug. 
        27, 2018): allowed African American male student to proceed 
        with certain Title IX, race discrimination, and contract 
        claims, based on allegations that the university pursued 
        charges against the male but not the female, notwithstanding 
        evidence that she was the aggressor and had committed other 
        violations of university policy.

          Doe v. Distefano, No. 16-CV-1789-WJM-KLM, 2018 WL 
        2096347 (D. Colo. May 7, 2018): allowed a male student to 
        proceed with due process claims based on alleged procedural 
        flaws that included delays in giving plaintiff notice and 
        access to information and failure to provide impartial 
        investigators and decisionmakers, and using allegations of 
        procedural violations to support an inference of bias, saying 
        that for due process purposes any actual bias is unacceptable.

          Doe v. University of Oregon, No. 6:17-CV-01103-AA, 
        2018 WL 1474531 (D. Or. Mar. 26, 2018): allowed a male student 
        to proceed with claims including allegations that a university 
        decisionmaker explained away inconsistencies in complainant's 
        account and problems with her evidence, ignored evidence 
        favoring him, did not give him advance copies of evidence, and 
        allowed the complainant to introduce new evidence at the 
        hearing without allowing him to respond.

          Doe v. Marymount University, 297 F. Supp. 3d 573 
        (E.D. Va. Mar. 14, 2018): allowed a male student to proceed 
        with claims including allegations that the university did not 
        allow him to interview potential witnesses or gather 
        exculpatory evidence, and did not investigate or consider 
        evidence that contradicted complainant's account, including her 
        inconsistent statements.

          Schaumleffel v. Muskingum University, 2018 WL 1173043 
        (S.D. Ohio Mar. 6, 2018): allowed a male student to proceed 
        with claims including allegations that the university did not 
        consider exculpatory evidence and helped persuade female 
        students to file complaints against him.

          Gischel v. University of Cincinnati, 302 F. Supp. 3d 
        961 (S.D. Ohio Feb. 5, 2018): allowed a male student to proceed 
        with claims that the university's investigator was biased 
        against him, that the university did not consider evidence that 
        contradicted the complainant's account, and that the university 
        denied cross-examination by refusing to ask the complainant 
        questions posed by the respondent.

          Doe v. Rider University, No. 3:16-CV-4882-BRM-DEA, 
        2018 WL 466225 (D.N.J. Jan. 17, 2018): allowed a male student 
        to proceed with claims including allegations that the 
        investigator ignored complainant's inconsistent statements and 
        the hearings panel answered to an official who had prejudged 
        the male student as guilty.

          Doe v. Pennsylvania State University, No. 4:17-CV-
        01315, 2018 WL 317934 (M.D. Pa. Jan. 8, 2018): allowed a male 
        student to proceed with claims including allegations that the 
        university did not give him adequate notice of the charges 
        against him and failed to cite adequate evidence to support the 
        decision of responsibility.

          Saravanan v. Drexel University, No. 17-3409, 2017 WL 
        5659821 (E.D. Pa. Nov. 24, 2017): confirmed universities in 
        disciplinary proceedings ``must strive to ensure fairness 
        including avoiding inherent bias or procedures which may favor 
        a woman's claim of sexual harassment and stalking over a man's 
        claim of sexual assault by the woman.''

          Painter v. Adams, No. 315CV00369MOCDCK, 2017 WL 
        4678231 (W.D.N.C. Oct. 17, 2017): allowed male student to 
        proceed with claims including allegations that the university 
        refused to consider exculpatory evidence.

          Rolph v. Hobart and William Smith Colleges, 271 F. 
        Supp. 3d 386 (W.D.N.Y. Sept. 20, 2017): allowed a male student 
        to proceed with claims including allegations that the 
        university conducted an inadequate investigation, failed to 
        review or preserve evidence, failed to address inconsistencies, 
        helped the complainant prepare her case, and did not treat the 
        parties equally during the hearing.

          Doe v. The Trustees of the University of 
        Pennsylvania, 270 F. Supp. 3d 799 (E.D. Pa. Sept. 13, 2017): 
        allowed a male student to proceed with claims including 
        allegations that the university failed to conduct a thorough 
        investigation and trained investigators and members of the 
        Hearing Panel to presume that complainants were telling the 
        truth and accused students were responsible.
           Sampling of new cases decided since November 2018:
          Noakes v. Syracuse University, No. 5:18-CV-43, 2019 
        WL 936875 (N.D.N.Y. Feb. 26, 2019): denied university's motion 
        to dismiss Title IX claims by male African American student who 
        was expelled for alleged sexual assault of a female student and 
        claimed mistaken identity; the complainant did not testify at 
        the hearing, plaintiff was not allowed to cross-examine her or 
        key witnesses, and plaintiff alleged flaws in the 
        investigation, pro-complainant assumptions, and unwillingness 
        to consider evidence of plaintiff's innocence or question 
        complainant's credibility, coupled with facts to show public 
        and university-specific pressure to believe accusers and 
        presume accused students responsible.

          Norris v. Univ. of Colorado, No. 1:18-CV-02243-LTB, 
        2019 WL 764568 (D. Colo. Feb. 21, 2019): denied university's 
        motion to dismiss Title IX and due process claims brought by a 
        male student who was suspended for 18 months for alleged sexual 
        misconduct with a female student; plaintiff, among other 
        things, alleged the university applied the wrong version of its 
        code, withheld notice of its investigation until after 
        plaintiff was interviewed by police, denied him a hearing and 
        the right to cross-examine his accuser and other witnesses, 
        unreasonably denied him access to the investigation file, made 
        inconsistent findings, used a ``trauma-informed'' approach that 
        presumed the truth of complainant's allegations, and assigned 
        officials with conflicts of interest to investigate and decide 
        the case. Court cited other cases finding that ``a lack of 
        meaningful cross-examination may contribute to a violation of 
        due process rights of an accused student in a disciplinary 
        hearing regarding sexual assault.''

          Oliver v. University of Texas Southwestern Medical 
        School, No. 3:18-CV-1549-B, 2019 WL 536376 (N.D. Tex. Feb. 11, 
        2019): denied motion to dismiss Title IX and due process claims 
        filed by a male medical student who was expelled based on an 
        alleged physical assault of his former fiance; plaintiff 
        alleged the university had first found the complaint against 
        plaintiff to be unfounded but then reopened it based on ``new 
        evidence'' which it did not share with plaintiff; held a 
        hearing without requiring complainant to testify and without 
        allowing cross-examination; and disregarded proof that 
        complainant had doctored the audio recording which comprised 
        the ``new evidence.''

          Doe v. White, BS171704 (Cal. Super. Ct. Feb. 7, 
        2019), https://kcjohnson.files.wordpress.com/2019/02/doe-v-
        white-csu-northridge.pdf: latest of several recent cases in 
        which California state courts have directed both public and 
        private universities to set aside decisions finding male 
        students responsible for sexual misconduct, and have held that 
        when a disciplinary decision turns on credibility, parties and 
        witnesses must be subjected to questioning and cross-
        examination at a live hearing before a neutral adjudicator who 
        cannot be the same person as the investigator.

          Doe v. Univ. of Mississippi, No. 3:18-CV-138-DPJ-FKB, 
        2019 WL 238098 (S.D. Miss. Jan. 16, 2019): denied motion to 
        dismiss Title IX, due process, and equal protection claims 
        filed by male student suspended for three years for alleged 
        sexual assault of female student; plaintiff alleged that the 
        investigator excluded exculpatory evidence, failed to interview 
        key witnesses, and failed to address medical records that made 
        clear complainant did not think she was raped, that a panel 
        member mocked defenses raised by men accused of sexual assault, 
        that defendants treated plaintiff less favorably than 
        complainant for the same conduct (sexual activity with someone 
        under the influence of alcohol), that the investigative report 
        was flawed and incomplete, that decision makers were trained to 
        assume an assault occurred, that plaintiff was not allowed to 
        cross-examine complainant or witnesses because they did not 
        appear at the hearing, and that the preponderance standard was 
        not sufficient to protect plaintiff's rights.

          Doe v. Coastal Carolina University, 2019 WL 142299 
        (D.S.C. Jan. 9, 2019): denied motion to dismiss Title IX claims 
        filed by male student expelled for alleged sexual assault of 
        female student; plaintiff was criminally investigated but no 
        charges were filed against him, a panel conducted a hearing and 
        found in plaintiff's favor, the female student appealed without 
        following the school's procedures, the appellate officer 
        requested a new hearing, and an ``appeal panel'' convened for a 
        second ``hearing,'' without any testimony, and found plaintiff 
        responsible.

          Doe v. George Washington Univ., No. CV 18-553 (RMC), 
        2018 WL 6700596 (D.D.C. Dec. 20, 2018): denied motion to 
        dismiss breach of contract and Title IX claims by male student 
        suspended for one year (after finishing all his course work) 
        for alleged sexual assault of female student; Court noted among 
        other things that ``[t]he Appeals Panel was presented with 
        direct contradictions in the evidence and appears to have 
        strained to overlook such contradictions, leaving no trail of 
        reasoning.''
                                 ______
                                 
    The Chairman. Thank you, Ms. Hamill.
    Ms. Goss Graves, welcome.

 STATEMENT OF FATIMA GOSS GRAVES, PRESIDENT AND CEO, NATIONAL 
               WOMEN'S LAW CENTER, WASHINGTON, DC

    Ms. Goss Graves. Thank you. Chairman Alexander, Ranking 
Member Murray, and Members of the Committee, I am Fatima Goss 
Graves, President and CEO of the National Women's Law Center 
and I appreciate the opportunity to testify today.
    The National Women's Law Center was founded the same year 
that Title IX was passed, and we have worked to address sex 
discrimination in schools, including harassment since that 
time. And I have personally been engaged in this topic, 
representing clients, serving on the Clery rulemaking round 
tables, and on the ALI project on this topic. Study after study 
has shown that students in college continue to experience 
extremely high rates of sexual assault. More than 1 in 5 women, 
more than 1 in 18 men, and nearly 1 in 4 transgender and gender 
non-conforming students.
    The students we hear from at the National Women's Law 
Center report that they were discouraged from reporting in the 
first place, that they have been met with delays, that the 
process that they have experienced was extremely unfair. Trauma 
they experience both from their assault and from going through 
their school process stays with them far after they leave their 
universities. For some, what is at stake is whether they 
continue to stay in school at all.
    Any reauthorization of The Higher Education Act should 
really take all of this into account, including also the 
principles of the Clery Act and Title IX that the Senator 
outlined earlier, and the existing requirements to adopt and 
enforce procedures to address sexual assault that include 
promptness, being equitable, and being impartial. 
Unfortunately, recently the Department of Education's proposed 
changes to its Title IX rules have created a lot of confusion. 
Schools have been forced--if the rules were to go into effect, 
schools would be forced to ignore a lot of sexual assaults. 
They would be required to have unfair and sometimes harmful 
processes that we believe would deter survivors from coming 
forward in the first place. And the response to these proposed 
rules has been swift with thousands of people around this 
country urging the Department to abandon this misguided plan.
    Many reminded the Department of Education of the guiding 
principle rules that are already embedded in Title IX and 
Clery. I do not have time to go through all of them, but I want 
to highlight a few. First, we really believe that fair 
processes require all parties to have timely and clear notice 
in advance of meetings and hearings. We have heard of schools 
failing to do this to the detriment of all students.
    In addition, it requires effective interim measures that 
preserve complainants' equal access to education. This may be 
as simple as changing a dorm or classroom. It also requires 
resolving sexual assault complaints with the same evidentiary 
standard used in other civil rights proceedings, which is the 
preponderance of evidence standards, and school should not 
subject sexual violence to hire and unique standards. That is a 
thing that you will hear from me. In addition, campus processes 
should treat all students involved equitably. This means that 
both respondents and complainants should have the same rights 
to have witnesses, and the same rights to have evidence, and 
the same rights to appeal. It would be unfair to allow only one 
side to appeal a process that is decidedly unfair.
    Finally, want to take a minute to address the issue of 
cross-examination that the Senator raised. Some have argued, 
including the Department of Education in its unfortunate 
proposed rule, that cross-examination is required to ensure 
that a process is fair. Here is where I strongly disagree. 
These are not courtrooms. In these proceedings students 
typically do not have counsel. They do not have rules of 
evidence that apply. There isn't trial procedures. There aren't 
meaningful protections from inappropriate or unfair or victim-
blaming questions, and most fundamentally, any rule that 
requires colleges and universities to conduct live quasi-
criminal type trials with live cross-examination only in the 
area of sexual violence and not in any other misconduct at 
schools, communicates the message that survivors are uniquely 
unreliable. And implicit in such a requirement is a deep rooted 
skepticism of sexual assault itself. It is already an issue 
that is dramatically underreported. This will only be 
exacerbated if students who report must undergo traumatic and 
unnecessary procedures.
    It should not surprise anyone that student survivors care 
deeply about the fairness in their school systems. They have as 
much interest in the outcome of a complaint as students who are 
responding to allegations. Each are harmed when schools 
implement processes that are unfair. This is especially true 
for survivors who are experiencing multiple forms of 
discrimination. We hear from black and brown women in 
particular that they are less likely to be believed in these 
processes and they are especially vulnerable to unfair 
processes.
    In my view it is just really time to match the seriousness 
of survivors who are out there demanding accountability from 
their schools.
    Thank you for the opportunity to be here today, and I look 
forward to any questions.
    [The prepared statement of Ms. Goss Graves follows:]
                prepared statement of fatima goss graves
    Thank you for the opportunity to submit testimony to the Committee 
on addressing campus sexual assault and fair campus disciplinary 
processes in the reauthorization of the Higher Education Act.
                            I. INTRODUCTION
    The National Women's Law Center (``the Center'') is a nonprofit 
organization that has worked since 1972 to combat sex discrimination 
and expand opportunities for women and girls in every facet of their 
lives, including education. Founded the same year Title IX of the 
Education Amendments of 1972 was enacted, the Center has participated 
in all major Title IX cases before the Supreme Court as counsel \1\ or 
amici. The Center is committed to eradicating all forms of sex 
discrimination in school, specifically including discrimination against 
pregnant and parenting students, LGBTQ students, and students who are 
vulnerable to multiple forms of discrimination, such as girls of color 
and girls with disabilities. This work includes a deep commitment to 
eradicating sexual harassment, including sexual assault, as a barrier 
to educational success. We equip students with the tools to advocate 
for their own rights at school, assist policymakers in strengthening 
protections against sexual harassment and other forms of sex 
discrimination, and litigate on behalf of students whose schools fail 
to adequately address their reports of sexual harassment.

    \1\  E.g., Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005); 
Davis v. Monroe Cnty Bd. of Educ., 526 U.S. 629 (1999).
---------------------------------------------------------------------------
    As attorneys representing those who have been harmed by sexual 
violence and other forms of sexual harassment, we know that too often 
when students seek help from their schools to address the harassment or 
assault, they experience retaliation, including being pushed out of 
school altogether. We also know how important it is for schools to 
intervene when students are sexually harassed, before it escalates in 
severity or to the point where students no longer feel safe in school.
                II. THE REALITY OF CAMPUS SEXUAL ASSAULT
    While we have made major strides to address campus sexual assault, 
too many colleges and universities still fail to make even efforts to 
support survivors' opportunities to learn in the wake of sexual 
violence. Students are still urged to leave school until their 
assailants graduated, \2\ discouraged from filing formal disciplinary 
reports or telling friends, \3\ and denied essential accommodations 
like dorm changes to allow them to live separately from their 
assailants. \4\ Survivors sometimes still face severe retaliation, 
including disciplinary complaints, for speaking out about the abuse 
they faced. \5\ Some schools imposed unique procedural burdens on 
student victims \6\ of sexual harassment seeking disciplinary remedies, 
such as corroboration requirements and short windows to report--
approaches that are steeped in long rejected myths that women 
frequently lie about rape. \7\

    \2\  Dana Bolger, Where Rape Gets a Pass, N.Y. DAILY NEWS (July 6, 
2014), http://www.nydailynews.com/opinion/rape-pass-article-1.1854420 
(``In 2011, my sophomore year of college, I was raped and then stalked 
by a fellow student. When I went to report my assault to my college 
dean, he encouraged me to take time off, go home, be ``safe,'' focus on 
my own healing, and put my education on hold - so that the man who 
raped me could comfortably conclude his.'').
    \3\  Anonymous, On Assault Narratives, Yale Daily News (Feb. 1, 
2010), http://yaledailynews.com/blog/2012/02/01/anonymous-on-assault-
narratives/.
    \4\  Angie Epifano, An Account of Sexual Assault at Amherst 
College, Amherst Student (Oct. 17, 2012), http://
amherststudent.amherst.edu/?q=article/2012/10/17/account-sexual-
assault-amherst-college.
    \5\  Annie-Rose Strasser, University of North Carolina rape victim 
may be expelled for speaking about her case, ThinkProgress (Feb. 23, 
2013), https://thinkprogress.org/university-of-north-carolina-rape-
victim-may-be-expelled-for-speaking-about-her-case-2d6e6b0eb24e.
    \6\  We use the terms ``victim'' and ``survivor'' interchangeably 
to acknowledge students' range of responses to violence. For critiques 
of the limiting function of either term, see Dana Bolger, ``Hurry Up 
and Heal'': Pain, Productivity, and the Inadequacy of ``Victim vs. 
Survivor'', Feministing.com (Dec. 10, 2014), http://feministing.com/
2014/12/10/hurry-up-and-heal-pain-productivity-and-the-inadequacyof-
victim-vs-survivor/; Parul Sehgal, The Forced Heroism of the 
`Survivor', N.Y. Times Mag., May 3, 2016, http://www.nytimes.com/2016/
05/08/magazine/the-forced-heroism-of-thesurvivor.html?--r=0.
    \7\  See generally Michelle J. Anderson, The Legacy of the Prompt 
Complaint Requirement, Corroboration Requirement, and Cautionary 
Instructions on Campus Sexual Assault, 84 B.U. L. Rev. 945 (2004) 
(describing onerous university requirements for rape victims not 
imposed on students reporting other forms of harm).
---------------------------------------------------------------------------
    As a result of injustices like these, we routinely hear from 
students, most of them women, \8\ who drop out of school, change 
majors, miss class, or otherwise lose crucial educational opportunities 
as a result of experiencing sexual violence. \9\ As one lawyer who 
represents victims explained:

    \8\  Nick Anderson and Susan Svrluga, What a massive sexual assault 
survey found at 27 top universities, The Washington Post (Sept. 21, 
2015), https://www.washingtonpost.com/news/grade-point/wp/2015/09/21/
what-a-massive-sexual-assault-survey-showed-about-27-top-u-s-
universities/?utm--term=.07c97b1f0c90.
    \9\  Rebecca Marie Loya, Economic Consequences of Sexual Violence 
for Survivors: Implications for Social Policy and Social Change 96-100 
(June 2012) (unpublished Ph.D. dissertation, Brandeis University), 
https://static1.squarespace.com/static/551e0348e4b0c1bae0983f61/t/
55b19581e4b01705b03e0b1c/1437701505305/
Loya2012EconomicConsequencesRape.pdf.
---------------------------------------------------------------------------
    Probably--95 percent of the time, students will skip class for one 
reason or another. And . . . the reasons are because the perp's in the 
class, because the perp's friends are in the class, because, sometimes 
schoolwork just gets to be too much, again in the aftermath of the 
assault. Sometimes, they've come out to the professor as a survivor, 
and the professor hasn't . . . been particularly supportive, so they 
won't go back to the class. . . . I think victims will oftentimes 
think, ``So I would rather miss class for the next 3 weeks and then 
just take my final, than go to class where I know he's going to be 
there.'' \10\

    \10\  Id. at 96. See also id. at 94 (``For a lot of the students 
that I've seen, the biggest problem is that the perpetrator . . . goes 
to their school as well, and in a lot of cases, even has classes with 
them. So in that sense, being able to concentrate in class when the 
person who assaulted you is sitting two rows behind you, obviously is 
going to make it almost impossible for you to do anything. So I think 
to the biggest degree it's just being able to concentrate, even 
passing, going through the regular reaction, for them to also have to 
deal with the fact that the person might be sitting next to you in 
class, might be passing you in the hall while you're walking to class, 
or even going to class becomes something difficult and can be 
triggering every- almost every moment.'').
---------------------------------------------------------------------------
    Those survivors who do stay in school may experience a drop in 
their academic performance. As another lawyer noted, and as we have 
also seen in our own cases at the Center, ``I have not had a client yet 
whose grades did not, not just slightly diminish, but markedly 
diminish. Going from A's and B's to D's and F's. No doubt. It happens 
every time.'' \11\

    \11\  Id. at 94.
---------------------------------------------------------------------------
    The threat that inadequate university support poses to a survivor's 
continued education can have particularly grave costs for survivors 
without significant financial means: they often experience heavy 
financial costs, including lost scholarships, additional loans to 
finance additional semesters, reduced future wages due to diminished 
academic performance, and hefty expenses for housing changes and 
medical care that should be provided, free of cost, by colleges and 
universities. \12\

    \12\  See generally Dana Bolger, Gender Violence Costs: Schools' 
Financial Obligations Under Title IX, 125 Yale L.J. 2106 (2016) 
(describing the financial impact of gender violence on student 
survivors).
---------------------------------------------------------------------------
    Only over the last few years, under pressure from student advocates 
\13\ and the federal government, \14\ have schools begun to rise to 
their legal and ethical duty to preserve survivors' educational 
opportunities. \15\ Without a doubt, there is still much work to be 
done. Now that many schools have acknowledged their responsibility to 
address sexual violence, we are tasked with hard questions about how to 
get those responses right. We cannot forget the high stakes of our 
mission, colleges' very recent history of apathy, and the brave student 
advocates who pushed schools to change.

    \13\  Libby Sander, ``Quiet no longer, rape survivors put pressure 
on colleges,'' the Chronicle of Higher Education (Aug. 12, 2013), 
http://www.chronicle.com/article/Quiet-No-Longer-Rape/141049.
    \14\  Alyssa Peterson & Olivia Ortiz, A Better Balance: Providing 
Survivors of Sexual Violence with ``Effective Protection'' Against Sex 
Discrimination Through Title IX Complaints, 125 Yale L.J. 2132, 2138-39 
(2016); Robin Wilson, 2014 Influence List: Enforcer, Chronicle of 
Higher Education (Dec. 15, 2014), available at http://
www.chronicle.com/article/enforcer-catherine-e-lhamon/150837 
(describing Assistant Secretary for Civil Rights' Catherine Lhamon's 
efforts to strengthen OCR's Title IX enforcement).
    \15\  Letter from the National Women's Law Center, et al. to 
Education Secretary John King (July 13, 2016), available at https://
nwlc.org/resources/sign-on-letter-supporting-title-ix-guidance-
enforcement/ (``These guidance documents and increased enforcement of 
Title IX by the Office for Civil Rights have spurred schools to address 
cultures that for too long have contributed to hostile environments 
which deprive many students of equal educational opportunities.'');
---------------------------------------------------------------------------
  a. CAMPUS SEXUAL ASSAULT IS PERVASIVE IN SCHOOLS ACROSS THE COUNTRY
    Students in college experience high rates of sexual harassment and 
sexual assault. During college, 62 percent of women and 61 percent of 
men experience sexual harassment, \16\ and more than one in five women 
and nearly one in 18 men are sexually assaulted. \17\ Nearly one in 
four transgender and gender-nonconforming students are sexually 
assaulted during college. \18\ When schools fail to provide effective 
responses, the impact of sexual harassment and assault can be 
devastating. \19\ For example, 34 percent of college student survivors 
of sexual assault drop out of college. \20\

    \16\  AAUW, Drawing the Line: Sexual Harassment on Campus17, 19 
(2005) [hereinafter Drawing the Line], https://history.aauw.org/files/
2013/01/DTLFinal.pdf (noting differences in the types of sexual 
harassment and reactions to it).
    \17\  E.g., Association of American Universities [AAU], Report on 
the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct, 
13-14 (Sept. 2015) [hereinafter AAU Campus Climate Survey], https://
www.aau.edu/sites/default/files/--40--20Files/Climate--%20Survey/AAU--
Campus--Climate--Survey--12--14--15.pdf.
    \18\  Id. at 13-14.
    \19\  E.g., Audrey Chu, I Dropped Out of College Because I Couldn't 
Bear to See My Rapist on Campus, VICE (Sept. 26, 2017), https://
broadly.vice.com/en--us/article/qvjzpd/i-dropped-out-of-college-
because-i-couldnt-bear-to-see-my-rapist-on-campus.
    \20\  Cecilia Mengo & Beverly M. Black, Violence Victimization on a 
College Campus: Impact on GPA and School Dropout, 18(2) J.C. STUDENT 
RETENTION: RES., THEORY & PRAC. 234, 244 (2015), available at https://
doi.org/10.1177/1521025115584750.
---------------------------------------------------------------------------
   b. CAMPUS SEXUAL ASSAULT IS CONSISTENTLY AND VASTLY UNDERREPORTED
    Reporting sexual assault can be hard for most victims. Only 12 
percent of college survivors who experience sexual assault, \21\ and 
only 7.7 percent of college students who experience sexual harassment, 
report to their schools or the police. \22\ Students often choose not 
to report for fear of reprisal, because they believe their abuse was 
not important enough, \23\ because they are ``embarrassed, ashamed or 
that it would be too emotionally difficult,'' \24\ because they think 
the no one would do anything to help, \25\ and because they fear that 
reporting would make the situation even worse. \26\ Common rape myths 
that victims could have prevented their assault if they had only acted 
differently, wore something else, or did not consume alcohol, only 
exacerbate underreporting.

    \21\  Poll: One in 5 women say they have been sexually assaulted in 
college, WASH. POST (June 12, 2015) [hereinafter Washington Post Poll], 
https://www.washingtonpost.com/graphics/local/sexual-assault-poll.
    \22\  AAU Campus Climate Survey, supra note 17 at 35.
    \23\  Id. at 36.
    \24\  Id.
    \25\  RAINN, Campus Sexual Violence: Statistics, https://
www.rainn.org/statistics/campus-sexual-violence.
    \26\  GLSEN, The 2017 National School Climate Survey: The 
Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth in 
Our Nation's Schools 27 (2018) [hereinafter 2017 National School 
Climate Survey], available at https://www.glsen.org/article/2017-
national-school-climate-survey-1.
---------------------------------------------------------------------------
    Survivors of sexual assault may also be unlikely to make a report 
to law enforcement because, in some instances, criminal reporting often 
does not serve survivors' best interests or address their most pressing 
needs. Police officers are concerned with investigating crimes and 
catching perpetrators; they are not in the business of providing 
supportive measures to survivors and making sure that they feel safe at 
school. And some students--especially students of color, undocumented 
students, \27\ LGBTQ students, \28\ and students with disabilities--can 
be expected to be even less likely than their peers to report sexual 
assault to the police due to increased risk of being subjected to 
police violence and/or deportation. Survivors of color also may not 
want to report to the police if their assailant is non-white, in order 
to avoid exacerbating the overcriminalization of men and boys of color. 
Whatever the reason, it is critical that survivors maintain the ability 
to determine whether, when and how to report sexual violence.

    \27\  See Jennifer Medina, Too Scared to Report Sexual Abuse. The 
Fear: Deportation, N.Y. TIMES (April 30, 2017), https://
www.nytimes.com/2017/04/30/us/immigrants-deportation-sexual-
abuse.html?mcubz=3.
    \28\  National Center for Transgender Equality, The Report of the 
2015 U.S. Transgender Survey: Executive Summary 12 (Dec. 2016) 
[hereinafter 2015 U.S. Transgender Survey], https://transequality.org/
sites/default/files/docs/usts/USTS--Executive-Summary-Dec17.pdf.
---------------------------------------------------------------------------
 c. STUDENTS WHO DO REPORT CAMPUS SEXUAL ASSAULT ARE OFTEN IGNORED AND 
                SOMETIMES EVEN PUNISHED BY THEIR SCHOOLS
    Unfortunately, students who do report to their schools too often 
face hostility. Reliance on common rape myths that blame individuals 
for the assault and other harassment they experience \29\ can lead 
schools to minimize and discount sexual harassment reports. An 
inaccurate perception that false accusations of sexual assault are 
common \30\--despite the fact that men and boys are far more likely to 
be victims of sexual assault than to be falsely accused of it \31\--can 
also lead schools to dismiss reports of assault and assume that 
complainants are being less than truthful. Indeed, students report that 
after complaining to their schools about sexual assault, they faced 
discipline, including for engaging in so-called ``consensual'' sexual 
activity \32\ or premarital sex, \33\ for defending themselves against 
their harassers, \34\ or for merely talking about their assault with 
other students in violation of a school ``gag order'' or nondisclosure 
agreement imposed by their school. \34\ The Center regularly receives 
requests for legal assistance from student survivors across the country 
who have been disciplined by their schools after reporting sexual 
assault. \36\

    \29\  See e.g., Bethonie Butler, Survivors of sexual assault 
confront victim blaming on Twitter, WASH. POST (Mar. 13, 2014), https:/
/www.washingtonpost.com/blogs/she-the-people/wp/2014/03/13/survivors-
of-sexual-assault-confront-victim-blaming-on-twitter.
    \30\  David Lisak et al., False Allegations of Sexual Assault: An 
Analysis of Ten Years of Reported Cases, 16(12) VIOLENCE AGAINST WOMEN 
1318-1334 (2010), available at https://doi.org/10.1177/
1077801210387747.
    \31\  E.g., Tyler Kingkade, Males Are More Likely To Suffer Sexual 
Assault Than To Be Falsely Accused Of It, HUFFINGTON POST (Dec. 8, 
2014) [hereinafter Males Are More Likely to Suffer Sexual Assault] 
[last updated Oct. 16, 2015], https://www.huffingtonpost.com/2014/12/
08/false-rape-accusations--n--6290380.html.
    \32\  See, e.g., Brian Entin, Miami Gardens 9th-grader says she was 
raped by 3 boys in school bathroom, WSVN-TV (Feb. 8, 2018), https://
wsvn.com/news/local/miami-gardens-9th-grader-says-she-was-raped-by-3-
boys-in-school-bathroom; Nora Caplan-Bricker, ``My School Punished 
Me'', SLATE (Sept. 19, 2016), https://slate.com/human-interest/2016/09/
title-ix-sexual-assault-allegations-in-k-12-schools.html; Aviva Stahl, 
'This Is an Epidemic': How NYC Public Schools Punish Girls for Being 
Raped, VICE (June 8, 2016), https://broadly.vice.com/en--us/article/
59mz3x/this-is-an-epidemic-how-nyc-public-schools-punish-girls-for-
being-raped.
    \33\  Sarah Brown, BYU Is Under Fire, Again, for Punishing Sex-
Assault Victims, CHRONICLE OF HIGHER EDUC. (Aug. 6, 2018), https://
www.chronicle.com/article/BYU-Is-Under-Fire-Again-for/244164.
    \34\  NAACP Legal Defense and Educ. Fund, Inc. & Nat'l Women's Law 
Ctr., Unlocking Opportunity for African American Girls: A Call to 
Action for Educational Equity 25 (2014) [hereinafter Unlocking 
Opportunity], https://nwlc.org/wp-content/uploads/2015/08/unlocking--
opportunity--for--african--american--girls--report.pdf.
    \35\  See, e.g., Tyler Kingkade, When Colleges Threaten To Punish 
Students Who Report Sexual Violence, HUFFINGTON POST (Sept. 9, 2015), 
https://www.huffingtonpost.com/entry/sexual-assault-victims-
punishment--us--55ada33de4b0caf721b3b61c.
    \36\  As of this writing, NWLC is litigating on behalf of three 
student survivors who were punished or otherwise unfairly pushed out of 
their high schools when they reported sexual harassment, including 
sexual assault. Nat'l Women's Law Ctr., Miami School Board Pushed 
Survivor of Multiple Sexual Assaults Out of School, Says NWLC (Jan. 15, 
2019), https://nwlc.org/press-releases/miami-school-board-pushed-
survivor-of-multiple-sexual-assaults-out-of-school-says-nwlc; Nat'l 
Women's Law Ctr., Pennridge School District Consistently Pushes 
Survivors of Sex-Based Harassment Out of School, Says NWLC (Aug. 9, 
2017), https://nwlc.org/press-releases/pennridge-school-district-
consistently-pushes-survivors-of-sex-based-harassment-out-of-school-
says-nwlc; Nat'l Women's Law Ctr., NWLC Files Lawsuit against PA School 
District for Failing to Address Sexual Assault of High School Student 
(May 31, 2017), https://nwlc.org/press-releases/nwlc-files-lawsuit-
against-pa-school-district-for-failing-to-address-sexual-assault-of-
high-school-student.
---------------------------------------------------------------------------
    Women and girls of color, particularly Black women and girls, 
already face discriminatory discipline due to race and sex stereotypes. 
\37\ Schools are also more likely to ignore, blame, and punish women 
and girls of color who report sexual harassment due to harmful race and 
sex stereotypes that label them as ``promiscuous.'' \38\

    \37\  Nat'l Women's Law Ctr., Let Her Learn: A Toolkit To Stop 
School Pushout for Girls of Color 1 (2016) [hereinafter Let Her Learn: 
Girls of Color], available at https://nwlc.org/resources/let-her-learn-
a-toolkit-to-stop-school-push-out-for-girls-of-color.
    \38\  E.g., Nancy Chi Cantalupo, And Even More of Us Are Brave: 
Intersectionality & Sexual Harassment of Women Students of Color, 42 
HARVARD J.L. & GENDER 16, 24-29 (forthcoming) [hereinafter And Even 
More of Us Are Brave], available at https://ssrn.com/abstract=3168909.
---------------------------------------------------------------------------
    Similarly, LGBTQ students are less likely to be believed and more 
likely to be blamed due to stereotypes that they are more 
``promiscuous,'' ``hypersexual,'' ``deviant,'' or bring the 
``attention'' upon themselves. \39\ Students with disabilities, too, 
are less likely to be believed because of stereotypes about people with 
disabilities being less credible \40\ and because they may have greater 
difficulty describing or communicating about the harassment they 
experienced, particularly if they have a cognitive or developmental 
disability. \41\

    \39\  See, e.g., Gillian R. Chadwick, Reorienting the Rules of 
Evidence, 39 CARDOZO L. REV. 2115, 2118 (2018), http://
cardozolawreview.com/heterosexism-rules-evidence; Laura Dorwart, The 
Hidden #MeToo Epidemic: Sexual Assault Against Bisexual Women, MEDIUM 
(Dec. 3, 2017), https://medium.com/@lauramdorwart/the-hidden-metoo-
epidemic-sexual-assault-against-bisexual-women-95fe76c3330a.
    \40\  The Arc, People with Intellectual Disabilities and Sexual 
Violence 2 (Mar. 2011), available at https://www.thearc.org/
document.doc?id=3657.
    \41\  E.g., Nat'l Inst. of Justice, Examining Criminal Justice 
Responses to and Help-Seeking Patterns of Sexual Violence Survivors 
with Disabilities 11, 14-15 (2016), available at https://www.nij.gov/
topics/crime/rape-sexual-violence/Pages/challenges-facing-sexual-
assault-survivors-with-disabilities.aspx.
---------------------------------------------------------------------------
                  III. PREVENTION PROGRAMS ON CAMPUSES
    Since the reauthorization of the Violence Against Women Act (VAWA) 
in 2013 amended the Clery Act, campuses have been required to implement 
prevention and awareness programs for incoming students and employees 
on dating violence, domestic violence, sexual assault and stalking. 
\42\ These prevention and awareness programs must include the 
definition of consent, a description of safe and positive options for 
bystander intervention, definitions of sexual assault, dating violence, 
domestic violence, and stalking, and information on risk reduction. 
\43\ The prevention programs include positive and healthy behaviors to 
foster healthy relationships, programs that seek to change behavior and 
social norms in healthy and safe manners, and programs to increase 
understanding of domestic violence, dating violence, sexual assault, 
and stalking. \44\ Clery specifies that these programs would be 
``informed by research or assessed for value, effectiveness, or outcome 
that are intended to stop dating violence, domestic violence, sexual 
assault, and stalking before they occur.'' \45\ Since Clery was amended 
and these changes went into effect in 2014, campuses have been 
experimenting with promising prevention programs and should continue to 
build to on this in addressing campus sexual assault.

    \42\  34 C.F.R. 668.46(j).
    \43\  34 C.F.R. 668.46(j)(1)(i).
    \44\  34 C.F.R. 668.46(j)(2)(iii) & (iv).
    \45\  34 C.F.R. 668.46(k)(2)(ii).
---------------------------------------------------------------------------
    Clery also requires that officials who conduct investigations 
receive annual training on dating violence, domestic violence, 
stalking, and sexual assault, and ``on how to conduct an investigation 
and hearing process that protects the safety of victims and promotes 
accountability.'' \46\ In addition to the Clery requirements, in 
ensuring that trainings focus on ``protect[ing] the safety of victims 
and promot[ing] accountability,'' these trainings, and trainings for 
employees who respond to sexual assault generally on campuses, should 
also should include practical ways to prevent and identify sexual 
assault, including the behaviors that may lead to assault, the 
attitudes of bystanders that may allow conduct to continue, the 
potential for revictimization of survivors by employees responding to 
and investigating sexual assault, trauma-informed methods for 
responding to students who are sexually assaulted, including the use of 
nonjudgmental language and an understanding of the neurobiology of 
trauma.

    \46\  34 C.F.R. 668.46(j)(2)(iv).
---------------------------------------------------------------------------
          IV. CAMPUS PROCESSES NEED TO BE FAIR TO ALL STUDENTS
    Since the Clery Act and Title IX already requires that schools 
adopt and enforce procedures to address sexual assault that is prompt, 
equitable, and impartial reauthorization of the Higher Education Act 
should support and reaffirm the principles and requirements of both 
Clery and Title IX, including ensuring that schools address sexual 
harassment before it causes greater harm to a student's education and 
create equitable processes that preserve and restore access to 
education for survivors of sexual violence. \47\

    \47\  34 C.F.R. 106.8(b).
---------------------------------------------------------------------------
    However, recently, the Department of Education proposed changes to 
its Title IX regulations i, which would impose upon the nearly 7,000 
colleges and universities across the country, prescriptive and 
confusing requirements. Under these rules, schools would be forced to 
ignore sexual assault in many cases and create confusing, unfair, and 
harmful grievance processes that would only deter survivors and 
witnesses from participating in their schools' investigations. Title IX 
protects all students from sex discrimination, including sexual 
violence, and so any changes to the Department's Title IX rules will 
necessarily have an impact on how colleges and universities respond to 
sexual assault.
a. SCHOOLS MUST TAKE EFFECTIVE AND IMMEDIATE ACTION WHEN RESPONDING TO 
SEXUAL ASSAULT AND OTHER FORMS OF HARASSMENT THAT SCHOOL EMPLOYEES KNOW 
                 ABOUT OR REASONABLY SHOULD KNOW ABOUT
    For the better part of two decades, the Department has used one 
consistent standard to determine if a school violated Title IX by 
failing to adequately address sexual assault or other forms of sexual 
harassment. The Department's 2001 Guidance, which went through public 
notice-and-comment and has been enforced in both Democratic and 
Republican administrations, \48\ defines sexual harassment as 
``unwelcome conduct of a sexual nature.'' \49\ This definition and the 
obligation rightly charges schools with responding to harassment before 
it escalates to a point that students suffer severe harm. The 2001 
Guidance requires schools to address student-on-student harassment if 
any employee ``knew, or in the exercise of reasonable care should have 
known'' about the harassment. In the context of employee-on-student 
harassment, the 2001 Guidance requires schools to address harassment 
``whether or not the [school] has `notice' of the harassment.'' \50\ 
Under the 2001 Guidance, the Department would consider schools that 
failed to ``take immediate and effective corrective action'' to be in 
violation of Title IX. \51\ For years, these standards have 
appropriately guided colleges in understanding their obligations around 
responding to campus sexual assault.

    \48\  These standards have been reaffirmed time and time again, in 
2006 by the Bush Administration, in 2010, 2011, and 2014 in guidance 
documents issued by the Obama administration, and even in the 2017 
guidance document issued by the current Administration. U.S. Dep't of 
Educ. Office for Civil Rights, Dear Colleague Letter: Sexual Harassment 
(Jan. 25, 2006) [hereinafter 2006 Guidance], https://www2.ed.gov/about/
offices/list/ocr/letters/sexhar-2006.html; U.S. Dep't of Educ. Office 
for Civil Rights, Dear Colleague Letter: Harassment and Bullying (Oct. 
26, 2010) [hereinafter 2010 Guidance], https://ww2ed.gov/about/offices/ 
list/ocr/letters/colleague-201104.pdf; U.S. Dep't of Educ. Office of 
Civil Rights, Dear Colleague Letter: Sexual Violence at 4, 6, 9, &16 
(Apr. 4, 2011) [hereinafter 2011 Guidance], https://ww2ed.gov/about/
offices/list/ocr/letters/colleague-201104.pdf; U.S. Dep't of Educ. 
Office for Civil Rights, Questions and Answers on Title IX and Sexual 
Violence 1-2 (Apr. 29, 2014) [hereinafter 2014 Guidance], https://
www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf; U.S. 
Dep't of Educ. Office for Civil Rights, Questions and Answers on Campus 
Sexual Misconduct (Sept. 2017) [hereinafter 2017 Guidance], https://
www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf.
    \49\  U.S. Dep't of Educ., Office for Civil Rights, Revised Sexual 
Harassment Guidance: Harassment of Students by School Employees, Other 
Students, or Third Parties (2001) [hereinafter 2001 Guidance], https://
www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.
    \50\  Id.
    \51\  Id.
---------------------------------------------------------------------------
    This standard considers the reality that many students disclose 
sexual abuse to employees who do not have the authority to institute 
corrective measures, both because students seeking help turn to 
whatever adult they trust the most, regardless of that adult's official 
role, and because students are likely not informed about which 
employees have authority to address the harassment. The 2001 Guidance 
also requires schools to address all employee-on-student sexual 
harassment, ``whether or not the [school] has `notice' of the 
harassment.'' \52\ The 2001 Guidance recognized the particular harms of 
students being preyed on by adults in positions of authority, and 
students' vulnerability to pressure from adults to remain silent, and 
accordingly acknowledged schools' heightened responsibilities to 
address harassment by their employees.

    \52\  Id. at 10.
---------------------------------------------------------------------------
    There are, however, some employees who would not be required to 
report sexual assault of which it receives notice in confidential 
settings--such as campus mental-health counselors, social workers, 
psychologist, or other employees with a professional license requiring 
confidentiality. It is important to ensure that these relationships 
continued to exist in these settings so that students get the help that 
they need and that these professionals are trained to understand when 
they may keep a report confidential.
   b. Complainants Must Be Afforded Non-Punitive Interim Measures to 
          Preserve and Restore Access to Educational Programs
    Campuses should afford complainants non-punitive interim measures 
that preserve and restore their access to educational programs. As the 
Department appropriately noted in its 2001 guidance, schools ``should 
take reasonable, timely, age-appropriate and effective corrective 
action, including steps tailored to the specific situation.'' \53\ 
Schools should also take into account the severity or pervasiveness of 
the alleged incident(s) and any continuing effects of the incident(s) 
on the complainant.

    \53\  Id. at 16.
---------------------------------------------------------------------------
    This means that in some instances, a school may need to transfer 
the respondent to another class or dorm even if it may burden him. 
Because the school should aim to restore and preserve access to the 
school's programs for the victim, it would be inappropriate to force 
the complainant to change all of her own classes and housing 
assignments in order to avoid her harasser.

    Schools should also use restorative supportive measures that are 
often necessary to ensure a complainant's equal access to educational 
opportunities. These include the ability to retake a class, to remove a 
``Withdrawal'' or failing grade from the harassment victim's 
transcript, or to obtain reimbursement of lost tuition after being 
forced to withdraw and retake a course as a result of sexual assault. 
Also, schools may need to review any disciplinary actions taken against 
the complainant to ascertain if there is a causal connection between 
the harassment and the misconduct that may result in disciplinary 
action against the complainant (for example, a complainant may be 
disciplined for skipping class, even though she skipped that class to 
avoid seeing her perpetrator).

    Schools also should make all necessary interim measures available 
to all parties and at no cost to them. \54\ Examples of effective 
interim measures include:

    \54\  Know Your IX, Letter to Sec'y Arne Duncan & Asst. Sec'y 
Catherine Lhamon 3-4 (Nov. 6, 2014), available at https://
www.knowyourix.org/wp-content/uploads/2017/01/2014-11-6-Know-Your-IX-
USSA-Letter-to-OCR-Redacted.pdf. See also TIXPA Sec.  4 (amending DEOA 
by adding (d)(30)).
---------------------------------------------------------------------------
    (1) health accommodations (e.g., counseling, other mental health 
and substance abuse services, medical services not covered by health 
insurance, disability services);

    (2) safety accommodations (e.g., changes to academic, 
extracurricular, housing, transportation, dining, and employment 
assignments; no-contact orders; protection from retaliation; campus 
escort services; housing assistance; increased security and 
monitoring); and

    (3) academic accommodations (e.g., academic support services; 
homework extensions; exam retakes; excused absences; preserved 
eligibility for grants, scholarships, and other activities or honors).
    In addition, schools should never require a survivor to agree to a 
mutual no-contact order. Such a requirement would be contrary to 
decades of expert consensus that mutual no-contact orders are harmful 
to victims, because it gives abusers an opportunity to manipulate their

    victims into violating the mutual order, \55\ and allowing 
perpetrators to potentially turn what was intended to be a protective 
measure into a punitive measure against the survivor. Groups such as 
the Association for Student Conduct Administration (ASCA) agree that 
``[e]ffective interim measures, including . . . actions restricting the 
accused, should be offered and used while cases are being resolved, as 
well as without a formal complaint.'' \56\

    \55\  E.g., Joan Zorza, What Is Wrong with Mutual Orders of 
Protection? 4(5) DOMESTIC VIOLENCE REP. 67 (1999), available at https:/
/www.civicresearchinstitute.com/online/article.php?pid=18&iid=1005.
    \56\  Ass'n for Student Conduct Admin., ASCA 2014 White Paper: 
Student Conduct Administration & Title IX: Gold Standard Practices for 
Resolution of Allegations of Sexual Misconduct on College Campuses 2 
(2014) [hereinafter ASCA 2014 White Paper], https://www.theasca.org/
Files/Publications/ASCA%202014%20White%20Paper.pdf.
---------------------------------------------------------------------------
  c. INVESTIGATIONS MUST BE EQUITABLE AND MUST NOT CREATE BARRIERS TO 
                             PARTICIPATION
    Institutions of higher education have worked to respond to sexual 
assault in ways that are tailored to their campus community and 
culture, size, location, resources, and state or local legal 
requirements. There is no one-size-fits all model. As ASCA has noted, 
``[w]ith different missions, resources, staffing models, funding 
sources, system policies, and especially campus cultures and student 
populations at postsecondary institutions across the United States, 
each college or university must develop its own policies and 
procedures.'' \57\ But there are effectively four types of hearing and 
investigatory models for adjudicating campus sexual assault in place 
now: the ``investigative model,'' the ``hearing model,'' the 
``investigation and hearing hybrid,'' and the ``investigation and 
deliberative panel hybrid.'' \58\ The investigative model relies on 
skilled investigators gather evidence and interview the parties [] and 
any other witness in separate, individual meetings, then write an 
investigative report where they review the evidence and fact factual 
findings.'' \59\ Sometimes, after the investigator completes the 
investigation report, the report is forwarded to an adjudicator to 
issue findings and sanctions. \60\ This model is common in the 
employment context to address workplace discrimination, including 
sexual harassment. \61\ The ``hearing model'' relies more on the 
parties, rather than the investigator and the school, to gather and 
present evidence to support their claims, to a hearing panel that does 
not do their own investigation, but rather ``passively hear[s] 
testimony and consider[s] evidence presented by all parties and 
witnesses, then make factual findings based on that testimony and 
evidence.'' \62\ The ``investigation and hearing hybrid'' combines both 
and factual findings are made by a hearing panel based on the 
investigative report and witness testimony. \63\ The investigation with 
the deliberative panel requires the ``investigator to appear before the 
panel to answer questions before the panel makes a final decision.'' 
\64\ Any of these models can be an appropriate response to sexual 
assault and other forms of sexual harassment.

    \57\  Id. at 1.
    \58\  Nancy Chi Cantalupo, Comment Regarding Proposed Rule Sec.  
106.45(b)(3) at 4, Filed in Response to the Notice of Proposed 
Rulemaking regarding Nondiscrimination on the Basis of Sex in Education 
Programs or Activities Receiving Federal Financial Assistance, Office 
[for] Civil Rights, Department of Education, ED-2018-OCR-0064, RIN 
1870-AA14 [hereinafter Cantalupo Comment].
    \59\  Id.
    \60\  ASCA 2014 White Paper, supra note 56 at 16.
    \61\  Cantalupo Comment, supra note 58 at 4.
    \62\  Id.
    \63\  Id.
    \64\  Id.
---------------------------------------------------------------------------
    In one comment submitted by 24 private liberal arts colleges and 
universities, the comment noted that the schools have different 
policies, and that ``[t]he model chosen by each Institution is based on 
careful consideration of many factors, including what has worked for 
them in years of experience, what best fits their individual school's 
mission, culture, and values, what is most sensible given the size and 
unique organization of their administrations and programs, and what 
kinds of sexual harassment cases they each most commonly face, which 
can differ significantly in nature, scope, and quantity in ways that 
may warrant significantly differing approaches.'' \65\ Representing 60 
of the leading public and private research universities in the country, 
the American Association of Universities noted in its comment that 
``approaches [should] allow institutions to maintain, utilize, and 
respect the different schools' values, student populations, community 
resources, and educational philosophies. Student populations vary 
widely in terms of the proportion of students residing on-campus or 
off-campus, the mix of undergraduate and graduate/ professional 
students, the presence of nontraditional students, and so on. Mandating 
that all schools address these issues in the same way will limit their 
ability to tailor their policies and procedures to their campus 
community and implement their individual educational missions.'' \66\ 
Finally, the Association of Independent Colleges and Universities in 
Massachusetts, which represents 55 colleges and universities, wrote in 
its comment that ``[r]ather than prescribing highly specific, `one size 
fits all' rules that would be rigidly applied to large research 
universities, small colleges, commuter colleges, institutions that 
feature experiential education, and others, the Department should limit 
its concern to whether a school has adopted procedures that are 
intended to provide fundamental fairness to the rights of all 
parties.'' \67\

    \65\  Letter from Pepper Hamilton to Sec'y Elisabeth DeVos at 2 
(Jan. 30, 2019) [hereinafter Pepper Hamilton Comment], https://
www.pepperlaw.com/resource/35026/22G2, (submitted comment on behalf of 
24 private, liberal arts colleges and universities throughout the 
United States).
    \66\  See Letter from Ass'n of Am. Univs. (AAU) to Brittany Bull at 
2-3 (Jan. 24, 2019) [hereinafter AAU Letter], https://www.aau.edu/
sites/default/files/AAU-Files/Key-Issues/Higher-Education-Regulation/
AAU-Title-IX-Comments-1-24-19.pdf (discussing ``higher costs associated 
with the regulation's prescribed quasi-court models'').
    \67\  Letter from Ass'n of Indep. Colls. and Univs. (AICUM) to 
Sec'y Elisabeth DeVos at 3 (Jan.23, 2019) [hereinafter AICUM Letter], 
http://aicum.org/wp-content/uploads/2019/01/AICUM-public-comments-on-
Notice-of-Proposed-Rulemaking-E2-80-9CNPRM-E2-80-9D-amending-
regulations-implementing-Title-IX-of-the-Education-Amendments-of-1972-
Title-IX-E2-80-9D-Docket-ID-ED-2018-OCR-0064.pdf
---------------------------------------------------------------------------
    While no one investigatory model fits all, whatever investigation 
or hearing the school uses must be equitable--that is, fair to all 
students. Under Title IX and Clery, schools are already required to 
have proceedings for investigating sexual assault that are prompt and 
equitable. In addition, no investigatory model should place the burden 
on a student--whether complainant or respondent--to ``prove'' the case; 
rather, institutions have their own independent interest in finding out 
what happened in order to respond appropriate to ensure its campus 
community is safe, which should not depend on the advocacy skills or 
resources of student parties.

    Fair processes also require that institutions train employees on 
the policies addressing campus sexual assault, investigation 
requirements and techniques, trauma-informed responses to sexual 
assault, and resources and options for support; balance a survivor's 
request for confidentiality with its obligation to its student body; 
provide effective interim measures that preserve, and if necessary, 
restore, equal access to education; designate reasonable timeframes for 
each part of the investigation; provide timely and clear notice to the 
parties in advance of any meeting or hearing concerning the 
investigation, and of their rights and responsibilities under school 
policy and law; use of the preponderance of the evidence standard for 
investigations; allow parties an equal opportunity to produce witnesses 
and other evidence, and an equal opportunity to respond to each other's 
claims, evidence, or testimony (if applicable); eliminate direct 
questioning or cross-examination of the parties and witnesses given 
there are not corresponding safeguards; provide notice to the parties 
of the outcome of the investigation; provide appropriate remedies that 
would prevent recurrence of the sexual assault or harassment and 
restore equal access to the complainant's education; and allow equal 
appeal rights. These principles have also recognized by the Department 
in earlier Title IX guidance \68\ and by ASCA. \69\

    \68\  2001 Guidance, supra note 49 at 20.
    \69\  ASCA 2014 White Paper, supra note 56 at 2.
---------------------------------------------------------------------------
    During an investigation, to the extent possible, a school should 
only disclose information regarding allegations of sexual assault to 
those who are responsible for handling the schools' response or 
investigation. If a student requests that their name not be revealed to 
the alleged perpetrator or asks the school to not take action or 
investigate, the school should explain that its response will therefore 
be limited, including pursuing any disciplinary action against the 
alleged perpetrator. The school will also need to determine whether or 
not they can still provide a safe educational environment by honoring 
that request, considering for example, whether or not there would be an 
increased risk of the alleged perpetrator committing additional acts of 
sexual violence.

    Ensuring an equitable process also means that the school must use 
the preponderance-of-the-evidence standard. Resolving sexual harassment 
reports using the preponderance of the evidence is necessary to assure 
fairness and equality. Only that standard, the same one used in nearly 
all civil actions, including civil rights claims, places both parties 
on a level playing field, acknowledging that both students' educations 
are equally important. \70\ For this reason, student conduct 
professionals have long endorsed using the preponderance standard for 
making determinations in all student misconduct investigations, 
including sexual assault, and continue to do so. \71\ The standard that 
places both parties on an equal footing is particularly necessary in 
the case of disciplinary proceedings that implicate students' civil 
rights--rights that demand universities protect and value those 
students that have historically been systemically unprotected and 
undervalued, excluded from education and public life.

    \70\  See Deborah L. Brake, Fighting the Rape Culture Wars Through 
the Preponderance of the Evidence Standard, 78 Mont. L. Rev. 109, 133-
37 (2017) [hereinafter Fighting the Rape Culture Wars] (arguing that 
only the preponderance of the evidence standard holds in equipoise the 
credibility of the parties and the relative interests at stake).
    \71\  Id. at 128 (discussing an influential Model Student Conduct 
Code published in 2004); Chris Loschiavo & Jennifer L. Waller, 
Association for Student Conduct Administration, The Preponderance of 
the Evidence Standard: Use in Higher Education Campus Conduct 
Processes, http://www.theasca.org/files/The-20Preponderance-20of-
20Evidence-20Standard.pdf.
---------------------------------------------------------------------------
    Requiring a heightened ``clear and convincing evidence'' of a 
sexual assault before taking disciplinary or restorative action 
prioritizes the educational interests and well-being of named 
assailants over complainants and creates too much risk that sexual 
assault complaints will be dismissed based on the very biases that have 
long led to women and girls being disbelieved, belittled, and blamed 
when they speak out about their experiences of sexual assault and other 
forms of sexual harassment. \72\ A clear and convincing standard would 
do the most harm to the students whose credibility is most likely to be 
doubted, including and especially LGBTQ people and women of color. \73\ 
Most likely, administrators judging student complaints under such a 
heightened standard would functionally reinstate the old, and long 
discarded, common law corroborating witness requirement for sexual 
assault, resulting in virtually automatic finding that no assault could 
be substantiated in the large number of cases that lack a third-party 
witness. (Of course, the lack of such a witness would not be 
dispositive in a civil, or even a criminal, proceeding.) As a result, 
complainants will be less likely to come forward under such a system, 
knowing that the applicable standard will require administrators to 
view their side of the story with a de facto presumption against their 
veracity.

    \72\  Fighting the Rape Culture Wars, supra note 70 at 131.
    \73\  Id. at 137-39.
---------------------------------------------------------------------------
   d. LIVE-CROSS EXAMINATION WOULD DETER REPORTING OF CAMPUS SEXUAL 
                       ASSAULT AND IS UNNECESSARY
    The systems we build on campus to investigate and address student 
reports of sexual harassment must both enable truth-seeking and avoid 
perpetuating a hostile environment. Direct cross-examination of a 
victim by his or her assailant or the assailant's representative in 
campus misconduct proceeding is likely to result in the latter without 
uniquely promoting the former. Being asked detailed, personal, and 
humiliating questions often rooted in gender stereotypes and rape myths 
that tend to blame victims for the assault they experienced \74\ would 
understandably discourage many students--parties and witnesses--from 
participating in the grievance process, chilling those who have 
experienced or witnessed harassment from coming forward. \75\ This is 
especially the case in student misconduct proceedings, where schools 
are less likely to be equipped to apply general rules of evidence or 
trial procedure or apply the procedural protections that witnesses have 
during cross-examination in criminal or civil court proceedings \76\ 
and ensure that they are not subject to improper questions. Nor is 
there a judge available to rule on objections. Any live cross-
examination requirement would also lead to sharp inequities, due 
especially to the ``huge asymmetry'' that would arise when respondents 
are able to afford attorneys and complainants cannot. \77\ According to 
the president of Association of Title IX Administrators (ATIXA), the 
live cross-examination provision alone--``even with accommodations like 
questioning from a separate room--would lead to a 50 percent drop in 
the reporting of misconduct.'' \78\

    \74\  Zydervelt, S., Zajac, R., Kaladelfos, A. and Westera, N., 
Lawyers' Strategies for Cross-Examining Rape Complainants: Have we 
Moved Beyond the 1950s?, BRITISH JOURNAL OF CRIMINOLOGY, 57(3), 551-569 
(2016).
    \75\  See, e.g., Eliza A. Lehner, Rape Process Templates: A Hidden 
Cause of the Underreporting of Rape, 29 YALE J. OF LAW & FEMINISM 207 
(2018) (``rape victims avoid or halt the investigatory process'' due to 
fear of ``brutal cross-examination''); Michelle J. Anderson, Women Do 
Not Report the Violence They Suffer: Violence Against Women and the 
State Action Doctrine, 46 VILL. L. REV. 907, 932 936-37 (2001) 
(decision not to report (or to drop complaints) is influenced by 
repeated questioning and fear of cross-examination); As one defense 
attorney recently acknowledged, ``Especially when the defense is 
fabrication or consent as it often is in adult rape cases you have to 
go at the witness. There is no way around this fact. Effective cross-
examination means exploiting every uncertainty, inconsistency, and 
implausibility. More, it means attacking the witness's very 
character.'' Abbe Smith, Representing Rapists: The Cruelty of Cross-
Examination and Other Challenges for a Feminist Criminal Defense 
Lawyer, 53 AM. CRIM. L. REV. 255, 290 (2016).
    \76\  The proposed rules impose only mild restrictions on what it 
considers ``relevant'' evidence. See proposed Sec.  106.45(b)(3)(vi) 
(excluding evidence ``of the complainant's sexual behavior or 
predisposition, unless such evidence about the complainant's sexual 
behavior is offered to prove that someone other than the respondent 
committed the conduct alleged'' or to prove consent). The problems 
inherent in the evidence restrictions the Department chooses to adopt 
(and those it chooses not to) are discussed in Part IV.E.
    \77\  Andrew Kreighbaum, New Uncertainty on Title IX, INSIDE HIGHER 
EDUCATION (Nov. 20, 2018), https://www.insidehighered.com/news/2018/11/
20/title-ix-rules-cross-examination-would-make-colleges-act-courts-
lawyers-say.
    \78\  Id.
---------------------------------------------------------------------------
    Many advocates of live cross-examination in school grievance 
procedures, assume that cross-examination will improve the reliability 
of a decision-maker's determinations of responsibility and allow them 
to discern ``truth.'' \79\ But the reality is much more complicated, 
particularly in schools, where procedural protections against abusive, 
misleading, confusing, irrelevant, or inappropriate tactics are largely 
unavailable. Empirical studies show that adults give significantly more 
inaccurate responses to questions that involve the features typical of 
cross-examination, like relying on leading questions, compound or 
complex questions, rapid-fire questions, closed (i.e., yes or no) 
questions, questions that jump around from topic to topic, questions 
with double negatives, and questions containing complex syntax or 
complex vocabulary. \80\ While these common types of questions are 
likely to confuse adults and result in inaccurate or misleading 
answers, these problems are compounded and magnified when such 
questions are targeted at young people and minors. \81\

    \79\  See, e.g., 83 Fed. Reg. at 61476. The Department of Education 
offers no evidence to support its assumption that live cross 
examination will improve the reliability of schools' determinations 
regarding sexual assault; it merely cites a case which relies on John 
Wigmore's evidence treatise. See id. (citing California v. Green, 399 
U.S. 149, 158 (1970) (quoting John H. Wigmore, 5 Evidence sec. 1367, at 
29 (3d ed., Little, Brown & Co. 1940))).
    \80\  Emily Henderson, Bigger Fish to Fry: Should the Reform of 
Cross-Examination Be Expanded Beyond Vulnerable Witnesses, 19(2) 
INTERNATIONAL J. OF EVIDENCE AND PROOF 83, 84-85 (2015) (collecting 
studies of adults).
    \81\  Saskia Righarts, Sarah O'Neill & Rachel Zajac, Addressing the 
Negative Effect of Cross-Examination Questioning on Children's 
Accuracy: Can We Intervene?, 37 (5) LAW AND HUMAN BEHAVIOR 354, 354 
(2013) (``Cross-examination directly contravenes almost every principle 
that has been established for eliciting accurate evidence from 
children.'').
---------------------------------------------------------------------------
    Neither the Constitution nor any other federal law requires live 
cross-examination in public school conduct proceedings. The Supreme 
Court has not required any form of cross-examination (live or indirect) 
in disciplinary proceedings in public schools under the Due Process 
clause. Instead, the Court has explicitly said that a 10-day suspension 
does not require ``the opportunity . . . to confront and cross-examine 
witnesses.'' \82\ The vast majority of courts that have reached the 
issue have agreed that live cross-examination is not required in public 
school disciplinary proceedings, as long as there is a meaningful 
opportunity to have questions posed by a hearing examiner. \83\ 
Moreover, requiring cross-examination of both parties could put 
respondents in the position of self-incrimination; if the school allows 
a respondent to not be cross-examined in order to avoid self-
incrimination, but requires the complainant to be cross-examined, it 
would create an inequity that at the very least would violate Title IX.

    \82\  Goss v. Lopez, 419 U.S. 565, 583 (1975). Coplin v. Conejo 
Valley Unified Sch. Dist., 903 F. Supp. 1377, 1383 (C.D. Cal. 1995); 
Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 247 (D. Vt. 1994).
    \83\  The Department cites to one case, Doe v. Baum, 903 F.3d 575, 
581 (6th Cir. 2018) to support its proposed cross-examination 
requirement. However, Baum is anomalous. See e.g., Dixon, 294 F.2d at 
158, cert. denied 368 U.S. 930 (1961) (expulsion does not require a 
full-dress judicial hearing, with the right to cross-examine 
witnesses.''); Osteen v. Henley, 13 F.3d 221, 225 (7th Cir. 1993) 
(holding no due process violation in expulsion of college student 
without providing him right to cross-examination); Winnick v. Manning, 
460 F.2d 545, 549 (2d Cir. 1972) (``The right to cross-examine 
witnesses generally has not been considered an essential requirement of 
due process in school disciplinary proceedings.); Gorman v. Univ. of 
Rhode Island, 837 F.2d 7, 16 (1st Cir. 1988) (a public institution need 
not conduct a hearing which involves the right to confront or cross-
examine witnesses). See also Joanna L. Grossman & Deborah L. Brake, A 
Sharp Backward Turn: Department of Education Proposes to Protect 
Schools, Not Students, in Cases of Sexual Violence, VERDICT (Nov. 29, 
2018) [hereinafter A Sharp Backward Turn], available at https://
verdict.justia.com/2018/11/29/a-sharp-backward-turn-department-of-
education-proposes-to-protect-schools-not-students-in-cases-of-sexual-
violence.
---------------------------------------------------------------------------
    While requiring cross-examination ``is problematic for all 
institutions, regardless of size and resources available,'' \84\ it 
would fall particularly heavily on community colleges, vocational 
schools, online schools, and other educational institutions that lack 
the resources of a traditional four-year college or university. The 
difficulty and burden imposed by live cross-examination will also 
likely ensure that proceedings to address sexual assault allegations 
are consistently delayed, harming all who seek prompt resolution of 
such matters and especially harming those who are depending on final 
determinations to address and remedy sexual assault.

    \84\  E.g., Letter from Liberty University to Sec'y Elisabeth DeVos 
at 4 (Jan. 24, 2019) [hereinafter Liberty University Letter], http://
www.liberty.edu/media/1617/2019/jan/Title-IX-Public-Comments.pdf.
---------------------------------------------------------------------------
    Most fundamentally, any rule requiring institutions of higher 
education to conduct live, quasi-criminal trials with live cross-
examination to address allegations of sexual harassment, when no such 
requirement exists for addressing any other form of student or employee 
misconduct at schools, communicates the message that those alleging 
sexual assault or other forms of sexual harassment are uniquely 
unreliable and untrustworthy. Implicit in requiring cross-examination 
for complaints of sexual harassment, but not for complaints of other 
types of student misconduct, is an extremely harmful, persistent, deep-
rooted, and misogynistic skepticism of sexual assault and other 
harassment complaints. Sexual assault is already dramatically 
underreported. This underreporting, which significantly harms schools' 
ability to create safe and inclusive learning environments, will only 
be exacerbated if any such reporting forces complainants into 
traumatic, burdensome, and unnecessary procedures built around the 
presumption that their allegations are false. This selective 
requirement of cross-examination harms complainants and educational 
institutions.

    Unsurprisingly, Title IX experts, student conduct experts, 
institutions of higher education, \85\ and mental health experts 
overwhelmingly oppose live cross-examination. ATIXA, for example, 
opposes live, adversarial cross-examination, instead recommending that 
investigators ``solicit questions from the parties, and pose those 
questions the investigators deem appropriate in the investigation 
interviews.'' \86\ ASCA agrees that schools should ``limit[] advisors' 
participation in student conduct proceedings.'' \87\ The American Bar 
Association recommends that schools provide ``the opportunity for both 
parties to ask questions through the hearing chair.'' \88\ The 
Association of Independent Colleges and Universities in Massachusetts 
(AICUM), representing 55 accredited, nonprofit institutions of higher 
education, oppose the cross-examination requirement because it would 
``deter complainants from coming forward, making it more difficult for 
institutions to meet Title IX's very purpose, preventing discrimination 
and harassment, stopping it when it does occur, and remedying its 
effects.'' \89\ The Association of American Universities (AAU), 
representing 60 leading public and private universities, oppose the 
requirement because it can be ``traumatizing and humiliating'' and 
``undermines other educational goals like teaching acceptance of 
responsibility.'' \90\ And over 900 mental health experts who 
specialize in trauma state that subjecting a survivor of sexual assault 
to cross-examination in the school's investigation would ``almost 
guarantee[] to aggravate their symptoms of post-traumatic stress,'' and 
``is likely to cause serious to harm victims who complain and to deter 
even more victims from coming forward.'' \91\

    \85\  Pepper Hamilton Comment at 15 (``[A]dversarial cross-
examination will unnecessarily increase the anxiety of both parties 
going through the process. For complainants in particular, this may 
lead them to simply not come forward or utilize the school's process, 
no matter how meritorious their claims may be. As a result, our 
campuses will be less safe.''); Letter from Georgetown University to 
Sec'y Elizabeth DeVos as 7 (Jan. 30. 2019), https://
georgetown.app.box.com/s/fwk978e3oai8i5hpq0wqa70cq9iml2re (``Mandatory 
cross-examination by advisors will have a chilling effect on reporting 
and therefore diminish accountability of perpetrators. We already know 
that the majority of students who experience sexual misconduct never 
proceed with a formal complaint. There is little doubt that the specter 
of being cross-examined by a trained criminal defense attorney during a 
school's grievance procedure would drive down the number of students 
seeking redress through formal process even further.'').
    \86\  ATIXA, ATIXA Position Statement on Cross-Examining: The Urge 
to Transform College Conduct Proceedings into Courtrooms 1 (Oct. 5, 
2018), available at https://atixa.org/wordpress/wp-content/uploads/
2018/10/ATIXA-Position-Statement--Cross-Examination-final.pdf.
    \87\  ASCA 2014 White Paper, supra note 56 at 2.
    \88\  Am. Bar Ass'n, ABA Criminal Justice Section Task Force On 
College Due Process Rights and Victim Protections: Recommendations for 
Colleges and Universities in Resolving Allegations of Campus Sexual 
Misconduct 8-10 (June 2017) [hereinafter Am. Bar Ass'n Task Force].
    \89\  AICUM Letter, supra note 67.
    \90\  AAU Letter, supra note 66.
    \91\  Letter from 903 Mental Health Professionals and Trauma 
Specialists to Ass't Sec'y Kenneth L. Marcus at 3 (Jan. 30, 2019) 
[hereinafter Mental Health Professionals Letter], https://nwlc.org/wp-
content/uploads/2019/01/Title-IX-Comment-from-Mental-Health-
Professionals.pdf.
---------------------------------------------------------------------------
    Instead of allowing for cross examination, colleges and 
universities have developed creative systems that allow parties to 
challenge each other's and witnesses' accounts. For example, some 
schools allow parties to submit questions through a neutral and trained 
school official, such as a hearing panel member, to ask questions on 
their behalf and screen for abusive, irrelevant, and inappropriate 
questions. \92\ Alternatively, under a ``single investigator model,'' 
students can be re-interviewed to dispute the other party's testimony. 
\93\ Crucially, these models demonstrate that fair and effective 
hearings need not, and affirmatively should not, replicate criminal 
trials.

    \92\  At Harvard Law School, for example, students can now submit 
questions through a panel. HLS Sexual Harassment Resources and 
Procedure for Students, Harvard Law School 3.4.1 (Dec. 2014), https://
hls.harvard.edu/content/uploads/2015/07/HLSTitleIXProcedures150629.pdf.
    \93\  Djuna Perkins, Behind the headlines: An insider's guide to 
Title IX and the student discipline process for campus sexual assaults, 
Boston Bar Journal (July 8, 2015), https://bostonbarjournal.com/2015/
07/08/behind-the-headlines-an-insiders-guide-to-title-ix-and-the-
student-discipline-process-for-campus-sexual-assaults/.
---------------------------------------------------------------------------
        e. CAMPUSES MUST NOT ALLOW MEDIATION FOR SEXUAL ASSAULT
    Mediation is a strategy often used in schools to resolve peer 
conflict, where both sides must take responsibility for their actions 
and come to a compromise. However, mediation is never appropriate for 
resolving sexual assault, even on a voluntary basis, because of the 
power differential between assailants and victims, the potential for 
re-traumatization, and the implication that survivors somehow share 
``partial'' responsibility for their own assault. It also is difficult 
to ensure such programs are truly voluntary.

    The dangers of mediation are also exacerbated at schools where 
mediators are untrained in trauma and sexual assault and at some 
religious schools, where mediators may be especially like to rely on 
harmful rape myths, such as ``good girls forgive,'' that retraumatize 
survivors. \94\ Furthermore, students with developmental disabilities--
both complainants and respondents--are vulnerable to being pressured or 
manipulated into participating in mediation and agreeing to harmful 
mediation outcomes, including outcomes that unfairly remove a 
complainant or respondent with a disability from their current school 
and instead push them into an alternative school.

    \94\  E.g., Grace Watkins, Sexual Assault Survivor to Betsy DeVos: 
Mediation Is Not a Viable Resolution, TIME (Oct. 2, 2017), http://
time.com/4957837/campus-sexual-assault-mediation.
---------------------------------------------------------------------------
    Experts also agree that mediation is inappropriate for resolving 
sexual violence. For example, the National Association of Student 
Personnel Administrators (NASPA), representing student affairs 
administrators in higher education, stated in 2018 that it was 
concerned about students being ``pressured into informal resolution 
against their will.'' \95\ Mental health experts also oppose mediation 
for sexual assault because it would ``perpetuate sexist prejudices that 
blame the victim'' and ``can only result in further humiliation of the 
victim.'' \96\

    \95\  Nat'l Ass'n of Student Personnel Administrators (NASPA), 
NASPA Priorities for Title IX: Sexual Violence Prevention & Response 1-
2 [hereinafter NASPA Title IX Priorities], available at https://
www.naspa.org/images/uploads/main/NASPA--Priorities--re--Title--IX--
Sexual--Assault--FINAL.pdf.
    \96\  Mental Health Professionals Letter, supra note 91 at 3.
---------------------------------------------------------------------------
    In light of the many risks from informal processes, we recommend 
the following safeguards be met for any informal resolution process: 
such processes should not presume any shared responsibility for the 
assault or pressure the complainant to ``forgive'' the respondent; 
should be conducted by trained facilitators who understand the dynamics 
of sexual assault, particularly on college campuses; should be trauma-
informed; should ensure that students fully understand what the process 
entails before agreeing to participate in it; and should allow parties 
to stop the informal process and start with the formal process at any 
time.
    f. CAMPUSES MUST NOT CONSIDER IRRELEVANT OR PREJUDICIAL EVIDENCE
    In campus investigations of sexual assault, evidence should be 
excluded if it is irrelevant, \97\ or if it is relevant but its 
probative value is substantially outweighed by a danger of unfair 
prejudice, confusing the issues, misleading the factfinder, undue 
delay, wasting time, and/or needlessly presenting cumulative evidence. 
\98\

    \97\  See Fed. R. Evid. 401, 402.
    \98\  See Fed. R. Evid. 403.
---------------------------------------------------------------------------
    Schools should not be allowed to improperly consider any evidence 
related to the sexual history between the parties, even if it is 
``offered to prove consent''-- if such evidence relies on victim-
blaming and ``slut-shaming'' myths that cause unfair prejudice to the 
complainant, mislead the investigator(s) or decisionmaker(s), or render 
the evidence entirely irrelevant to the investigation. Also, schools 
should recognize that the fact that students have a current or previous 
consensual dating relationship, it does not imply any consent.
  g. CAMPUSES MUST PROVIDE REMEDIES TO PRESERVE OR RESTORE ACCESS TO 
                               EDUCATION
    Upon completing an investigation, schools should inform both sides 
in writing at the same time of (1) whether the alleged sex-based 
harassment occurred; (2) school-wide remedies to eliminate any hostile 
environment that exists and to prevent its recurrence; \99\ and (3) the 
parties' right to appeal, if any. Schools should also inform the 
complainant of (4) any individual remedies available to the 
complainant; and (5) (i) if non-physical sexual harassment occurred, 
any sanctions on the respondent that directly affect complainant; \100\ 
or (ii) if sexual violence occurred, all sanctions on the respondent. 
\101\ Finally, schools should also inform the respondent of (6) all 
sanctions on the respondent; and (7) none of the individual remedies 
offered to the complainant.

    \99\  34 C.F.R. 106.8(b) (requiring ``equitable'' procedures).
    \100\  20 U.S.C. Sec.  1221(d) (specifying that ``[n]othing in this 
chapter,'' including the Family Educational Rights and Privacy Act 
(FERPA), ``shall be construed to affect the applicability of . . . 
[T]itle IX''). See also 2001 Guidance, supra note 49 at vii n.3.
    \101\  FERPA, 20 U.S.C. Sec.  1232g(b)(6); 34 C.F.R. Sec.  
668.46(k)(3)(iv).
---------------------------------------------------------------------------
    Examples of school-wide remedies include training students and 
staff on identifying and responding to sex-based harassment or taking 
additional steps to address the way a school handles its athletics 
program. \102\ Individual remedies for the complainant include 
extending any necessary interim measures and, where necessary to remedy 
a hostile environment, the ability to withdraw from and retake classes 
without financial penalties, extension of the complainant's eligibility 
for grants and scholarships for any additional time needed to complete 
their degree, and reimbursement of any lost tuition or student loan 
interest. Sanctions on the respondent that directly affect the 
complainant include no-contact orders, suspensions, expulsions, and 
transfers. \103\

    \102\  2001 Guidance, supra note 49 at 16, 19.
    \103\  See id. at vii n.3.
---------------------------------------------------------------------------
             h. CAMPUSES MUST HAVE EQUITABLE APPEAL RIGHTS
    Experts and school leaders alike support equal appeal rights. While 
the Department's proposed Title IX rules may require schools to provide 
respondents appeal rights that they deny complainants, \104\ the 
American Bar Association recommends that the grounds for appeal include 
``a sanction disproportionate to the findings in the case (that is, too 
lenient or too severe).'' \105\ Even the white paper by four Harvard 
professors that is cited by the Department \106\ in support of it NPRM 
recognizes that schools should allow ``[e]ach party (respondent and 
complainant) [to] request an impartial appeal.'' \107\

    \104\  Proposed Sec. Sec.  106.45(b)(1)(i), 106.45(b)(1)(vi), 
106.45(b)(4)(ii)(E), 106.45(b)(5), and 106.45(b)(7)(i)(A) (Although 
Secretary DeVos has claimed that the proposed rules make ``[a]ppeal 
rights equally available to both parties,'' they may not in fact 
provide equal grounds for appeal to both parties. In the proposed 
rules, the Department's repeatedly draws a distinction between 
``remedies'' and ``sanctions,'' implying that sanctions are not a 
category of remedies. (Elisabeth DeVos, Betsy DeVos: It's time we 
balance the scales of justice in our schools, WASH. POST (Nov. 20, 
2018), https://www.washingtonpost.com/opinions/betsey-devos-its-time-
we-balance-the-scales-of-justice-in-our-schools/2018/11/20/8dc59348-
ecd6-11e8-9236-bb94154151d2--story.html)).
    \105\  Am. Bar Ass'n Task Force, supra note 88 at 5.
    \106\  83 Fed. Reg. at 61464 n.2.
    \107\  Elizabeth Bartholet, Nancy Gertner, Janet Halley & Jeannie 
Suk Gersen, Fairness For All Students Under Title IX 5 (Aug. 21, 2017) 
[hereinafter Fairness For All Students Under Title IX], https://
dash.harvard.edu/bitstream/handle/1/33789434/Fairness--20for--20All--
20Students.pdf.
---------------------------------------------------------------------------
  i. CAMPUSES MUST PROHIBIT RETALIATION AGAINST PARTIES AND WITNESSES
    Schools should have explicit prohibitions against retaliation, not 
only from the moment that a complaint is initiated, but prohibitions 
against threats of retaliation made to discourage survivors from filing 
complaints and to intimidate witnesses and complainants from 
participating in the grievance process.
      V. THE DEPARTMENT OF EDUCATION'S PROPOSED TITLE IX RULES, IF 
   FINALIZED, WOULD FORCE SCHOOLS TO IGNORE SEXUAL HARASSMENT AND TO 
                   CREATE UNFAIR GRIEVANCE PROCEDURES
    The Department of Education's proposed Title IX rules remove 
significant protections for students and employees who experience 
sexual assaults and other forms of sexual harassment, apparently 
motivated by invidious sex stereotypes that women and girls are likely 
to lie about sexual assault and other forms of sexual harassment and by 
the perception that sexual assault and other forms of sexual harassment 
have a relatively trivial impact on those who experience it.

    As also described in NWLC's comment on the proposed rules, which is 
appended to this testimony, proposed rules ignore the devastating 
impact of sexual violence and other forms of sexual harassment in 
schools. Instead of effectuating Title IX's purpose of protecting 
students and school employees from sexual abuse and other forms of 
sexual harassment, that is, from unlawful sex discrimination, they make 
it harder for individuals to report abuse, allow (and sometimes 
require) schools to ignore reports when they are made, and unfairly 
tilt the investigation process in favor of respondents, to the direct 
detriment of survivors.
   a. THE DEPARTMENT'S PROPOSED RULES WOULD DISCOURAGE REPORTING AND 
           MANDATE DISMISSAL OF COMPLAINTS OF SEXUAL ASSAULT
    Under the proposed rules, schools would not be required to address 
any sexual harassment and assault unless one of a small subset of 
school employees had ``actual knowledge'' of it. \108\ The proposed 
rules also unjustifiably limits the set of school employees for whom 
actual notice of sexual assault or other forms of harassment triggers 
the school's Title IX duties. For example, under the proposed rules, if 
a college or graduate student told their professor, residential 
advisor, or teaching assistant that they had been raped by another 
student or by a professor or other university employee, the university 
would have no obligation to help them.

    \108\  Proposed Sec. Sec.  106.30, 106.44.
---------------------------------------------------------------------------
    Under the Department's proposed rules, even when students find the 
courage to talk to the adult school employees they trust, schools would 
frequently have no obligation to respond. For example, if the proposed 
rules had been in place, colleges like Michigan State and Penn State 
would have had no responsibility to stop Larry Nassar and Jerry 
Sandusky--even though their victims reported their experiences to at 
least 14 school employees over a 20-year period--including athletic 
trainers, coaches, counselors, and therapists \109\--because those 
employees are not considered to be school officials who have the 
``authority to institute corrective measures.'' \110\ These proposed 
provisions would absolve some of the worst Title IX offenders of legal 
liability.

    \109\  Julie Mack & Emily Lawler, MSU doctor's alleged victims 
talked for 20 years. Was anyone listening?, MLIVE (Feb. 8, 2017), 
https://www.mlive.com/news/index.ssf/page/msu--doctor--alleged--
sexual--assault.html.
    \110\  Proposed Sec.  106.30.
---------------------------------------------------------------------------
    The Department's proposed rules would also require schools to 
dismiss all complaints of off-campus or online sexual harassment that 
happen outside of a school-sponsored program--even if the student is 
forced to see their harasser at school every day and the harassment 
directly impacts their education as a result. The proposed rules 
conflict with Title IX's statutory language, which does not depend on 
where the underlying conduct occurred but instead prohibits 
discrimination that ``exclude[s a person] from participation in, . . . 
denie[s a person] the benefits of, or . . . subject[s a person] to 
discrimination under any education program or activity . . . .'' \111\ 
For almost two decades, the Department's guidance documents have agreed 
that schools are responsible for addressing sexual harassment if it is 
``sufficiently serious to deny or limit a student's ability to 
participate in or benefit from the education program,'' \112\ 
regardless of where it occurs. \113\ No student who experiences out-of-
school harassment should be forced to wait until they are sexually 
harassed again on school grounds or during a school activity in order 
to receive help from their school. Nor should they be required to sit 
in class next to their assailant with no recourse.

    \111\  20 U.S.C. Sec.  1681(a).
    \112\  2001 Guidance, supra note 49.
    \113\  2017 Guidance, supra note 48 at 1 n.3 (``Schools are 
responsible for redressing a hostile environment that occurs on campus 
even if it relates to off-campus activities''); 2014 Guidance (``a 
school must process all complaints of sexual violence, regardless of 
where the conduct occurred''); 2011 Guidance (``Schools may have an 
obligation to respond to student-on-student sexual harassment that 
initially occurred off school grounds, outside a school's education 
program or activity''); 2010 Guidance at 2 (finding Title IX violation 
where ``conduct is sufficiently severe, pervasive, or persistent so as 
to interfere with or limit a student's ability to participate in or 
benefit from the services, activities, or opportunities offered by a 
school,'' regardless of location of harassment).
---------------------------------------------------------------------------
    Sexual harassment and assault occur both on-campus and in off-
campus spaces closely associated with school. Nearly nine in ten 
college students live off campus. \114\ According to a 2014 U.S. 
Department of Justice report, 95 percent of sexual assaults of female 
students ages 18-24 occur outside of school. \115\ Forty-one percent of 
college sexual assaults involve off-campus parties \116\ and many 
fraternity and sorority houses are located off campus. Students are 
also far more likely to experience sexual assault if they are in a 
sorority (nearly one and a half times more likely) or fraternity 
(nearly three times more likely). \117\ But under the proposed rules, 
if a college or graduate student is sexually assaulted by a classmate 
in off-campus housing, their university would be required to dismiss 
their complaint--even though almost nine in ten college students live 
off campus. \118\ The proposed rules would also pose particular risks 
to students at community colleges and vocational schools. Approximately 
5.8 million students attend community college (out of 17.0 million 
total undergraduate students), \119\ and 16 million students attend 
vocational school. \120\ But because none of these students live on 
campus, the harassment they experience by faculty or other students is 
especially likely to occur outside of school, and therefore outside of 
the protection of the proposed Title IX rules. Finally, proposed Sec.  
106.8(d) would create a unique harm to the 10 percent of U.S. 
undergraduate students who participate in study abroad programs. If any 
of these students report experiencing sexual harassment during their 
time abroad, including within their study abroad program, their schools 
would be required to dismiss their complaints--even if they are forced 
to see their harasser in the study abroad program every day, and even 
if they continue to be put into close contact with their harasser when 
they return to their home campus.

    \114\  Rochelle Sharpe, How Much Does Living Off-Campus Cost? Who 
Knows?, N.Y. TIMES (Aug. 5, 2016) [hereinafter How Much Does Living 
Off-Campus Cost?], https://www.nytimes.com/2016/08/07/education/edlife/
how-much-does-living-off-campus-cost-who-knows.html (87 percent).
    \115\  U.S. Dep't of Justice, Bureau of Justice Statistics, Rape 
and Sexual Assault Victimization Among College-Age Females, 1995-2013 
at 6 (Dec. 2014), https://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf.
    \116\  United Educators, Facts From United Educators' Report - 
Confronting Campus Sexual Assault: An Examination of Higher Education 
Claims (2015), https://www.ue.org/sexual--assault--claims--study.
    \117\  Jennifer J. Freyd, The UO Sexual Violence and Institutional 
Betrayal Surveys: 2014, 2015, and 2015-2016 (Oct. 16, 2014), available 
at https://www.uwire.com/2014/10/16/sexual-assault-more-prevalent-in-
fraternities-and-sororities-study-finds (finding that 48.1 percent of 
females and 23.6 percent of males in Fraternity and Sorority Life (FSL) 
have experienced non-consensual sexual contact, compared with 33.1 
percent of females and 7.9 percent of males not in FSL).
    \118\  How Much Does Living Off-Campus Cost?, supra note 114.
    \119\  Statista, Community colleges in the United States - 
Statistics & Facts, https://www.statista.com/topics/3468/community-
colleges-in-the-united-states; National Center for Education 
Statistics, Fast Facts, https://nces.ed.gov/fastfacts/
display.asp?id=372 (about 17.0 million students enrolled in 
undergraduate programs in fall 2018).
    \120\  David A. Tomar, Trade Schools on the Rise, THE BEST SCHOOLS 
(last visited Jan. 20, 2019), https://thebestschools.org/magazine/
trade-schools-rise-ashes-college-degree (an estimated 16 million 
students were enrolled in vocational schools in 2014).
---------------------------------------------------------------------------
    By forcing schools to dismiss complaints of out-of-school sexual 
harassment, the proposed rules would ``unduly tie the hands of school 
leaders who believe every child deserves a safe and healthy learning 
environment.'' \121\ It would also require schools to single out 
complaints of sexual assault and other forms of harassment by treating 
them differently from other types of student misconduct that occur off-
campus, perpetuating the pernicious notion that sexual assault is 
somehow less significant than other types of misconduct and making 
schools vulnerable to litigation by students claiming unfairness or 
discrimination in their school's policies treating harassment based on 
sex differently from other forms of misconduct.

    \121\  Letter from The School Superintendents Ass'n (AASA) to Sec'y 
Elisabeth DeVos at 5 Jan. 22, 2019) [hereinafter AASA Letter], http://
aasa.org/uploadedFiles/AASA--Blog(1)/AASA Title IX Comments Final.pdf
---------------------------------------------------------------------------
  b. THE PROPOSED DEFINITION OF SEXUAL HARASSMENT IMPROPERLY PREVENTS 
           SCHOOLS FROM PROVIDING A SAFE LEARNING ENVIRONMENT
    The Department's proposed rules would also require schools to 
dismiss all complaints of sexual harassment that do not meet its 
proposed narrow definition. The proposed rules \122\ define sexual 
harassment as (1) ``[a]n employee of the recipient conditioning the 
provision of an aid, benefit, or service of the recipient on an 
individual's participation in unwelcome sexual conduct''; (2) 
``[u]nwelcome conduct on the basis of sex that is so severe, pervasive, 
and objectively offensive that it effectively denies a person equal 
access to the [school's] education program or activity''; or (3) 
``[s]exual assault, as defined in 34 CFR 668.46(a).'' The proposed 
rules mandate dismissal of all complaints of harassment that do not 
meet this standard. Thus, if a complaint did not allege quid pro quo 
harassment or sexual assault, a school would be required to dismiss a 
student's Title IX complaint if the harassment has not yet advanced to 
a point that it is actively harming a student's education. A school 
would be required to dismiss such a complaint even if it involved 
harassment by a teacher or other school employee. A school would be 
required to dismiss such a complaint even if the school would typically 
take action to address behavior that was not based on sex but was 
similarly harassing, disruptive, or intimidating. The Department's 
proposed definition is out of line with Title IX purposes and 
precedent, discourages reporting, unjustifiably creates a higher 
standard for sexual harassment than other types of harassment and 
misconduct, and excludes many forms of sexual harassment that interfere 
with equal access to educational opportunities.

    \122\  Sec. Sec.  106.30 and 106.45(b)(3).
---------------------------------------------------------------------------
    The Department does not provide a persuasive justification to 
change the definition of sexual harassment from that in the 2001 
Guidance, which defines sexual harassment as ``unwelcome conduct of a 
sexual nature.'' \123\ The current definition rightly charges schools 
with responding to harassment before it escalates to a point that 
students suffer severe harm. But under the Department's proposed, 
narrower definition of harassment, students would be forced to endure 
repeated and escalating levels of abuse, from a student or professor, 
before their schools would be permitted to take steps to investigate 
and stop the harassment.

    \123\  Id.
---------------------------------------------------------------------------
    In addition, the proposed rules are inconsistent with the Supreme 
Court's liability standard for money damages, which holds schools 
liable for sexual harassment that, inter alia, ``effectively denie[s] 
[a person] equal access to an institution's resources and 
opportunities'' or its ``opportunities or benefits.'' \124\ Setting 
aside for a moment the fact that agency enforcement standards need 
not--and should not--be as demanding as litigation standards for money 
damages, the proposed rule is nonetheless still more burdensome than 
the Supreme Court's standard because denial of equal access to a 
school's ``program'' or ``activity'' is a more burdensome threshold 
than denial of equal access to a school's ``resources,'' 
``opportunities,'' and ``benefits.''

    \124\  Davis, 526 U.S. at 631 (emphasis added).
---------------------------------------------------------------------------
    The Department's proposed definition is also vague and complicated. 
Administrators, employees, and students would struggle to understand 
which complaints meet the standard. These difficulties would be 
significantly compounded for students with developmental disabilities. 
Students confronted with this lengthy, complicated definition of sexual 
harassment would have a hard time understanding whether the harassment 
they endured meets the Department's narrow standard. How would these 
students know what allegations and information to put in their formal 
complaint in order to avoid mandatory dismissal? A student may believe 
that she suffered harassment that was both severe and pervasive, but 
does she know whether it was also ``objectively offensive'' and whether 
it ``effectively denied'' her of ``equal access'' to a ``program or 
activity?''

    The Department's proposed definition would discourage students from 
reporting sexual harassment. Already, the most commonly cited reason 
for students not reporting sexual harassment is the fear that it is 
``insufficiently severe'' to yield a response. \125\ Moreover, if a 
student is turned away by her school after reporting sexual harassment 
because it does not meet the proposed narrow definition of sexual 
harassment, the student is even more unlikely to report a second time 
when the harassment escalates. Similarly, if a student knows of a 
friend or classmate who was turned away after reporting sexual 
harassment, the student is unlikely to make even a first report. By the 
time a student reports sexual harassment that the school can or must 
respond to, it may already be too late: because of the impact of the 
harassment, the student might already be ineligible for an important AP 
course, disqualified from applying to a dream college, or derailed from 
graduating altogether.

    \125\  Kathryn J. Holland & Lilia M. Cortina, ``It Happens to Girls 
All the Time'': Examining Sexual Assault Survivors' Reasons for Not 
Using Campus Supports'', 59 AM. J. COMMUNITY PSYCHOL. 50, 61 (2017), 
available at https://doi.org/10.1002/ajcp.12126.
---------------------------------------------------------------------------
    In addition, the proposed definition excludes many forms of sexual 
harassment, including some that schools are required to report under 
the Clery Act's requirements. Under the proposed rules, schools would 
be required to dismiss some complaints of stalking, dating violence, 
and domestic violence, while also being required to report those 
complaints to the Department under Clery. \126\ These inconsistent 
requirements would cause confusion among school administrators 
struggling to make sense of their obligations under federal law and 
demonstrate the perverse nature of sharply limiting schools' ability to 
respond to harassment complaints.

    \126\  See 20 U.S.C. Sec.  1092(f)(6)(iii); 20 U.S.C Sec.  
1092(f)(6)(iv)); 34 C.F.R. Sec.  668.46(a)).
---------------------------------------------------------------------------
    Finally, the Department's harassment definition and mandatory 
dismissal requirement would create inconsistent rules for sexual 
harassment as compared to other misconduct. Harassment based on race or 
disability, for example, would continue to be governed by the more 
inclusive ``severe or pervasive'' standard for creating a hostile 
educational environment. \127\ And schools could address harassment 
that was not sexual in nature even if that harassment was not ``severe 
and pervasive'' while, at the same time, being required to dismiss 
complaints of similar conduct if it is deemed sexual. This would create 
inconsistent and confusing rules for schools in addressing different 
forms of harassment. It would send a message that sexual harassment is 
less deserving of response than other types of harassment and that 
victims of sexual harassment are inherently less deserving of 
assistance than victims of other forms of harassment. It would also 
force students who experience multiple and intersecting forms of 
harassment to slice and dice their requests for help from their schools 
in order to maximize the possibility that the school might respond, 
carefully excluding reference to sexual taunts and only reporting 
racial slurs by a harasser, for example. \128\ Further, it would also 
make schools vulnerable to litigation by students who rightfully claim 
that being subjected to more burdensome requirements in order to get 
help for sexual harassment than their peers who experience other forms 
of student misconduct, is discrimination based on their sex, in direct 
violation of Title IX. In other words, schools would be hard-pressed to 
figure out how to comply with Title IX when they are instructed to 
follow a new set of rules that demands responses that violate Title IX.

    \127\  See e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 
101, 116 (2002) (applying ``severe or pervasive'' standard to racial 
discrimination hostile work environment claim).
    \128\  See A Sharp Backward Turn, supra note 83.
---------------------------------------------------------------------------
c. THE PROPOSED DELIBERATE INDIFFERENCE STANDARD WOULD ALLOW SCHOOLS TO 
  DO VIRTUALLY NOTING IN RESPONSE TO COMPLAINTS OF SEXUAL ASSAULT AND 
                    OTHER FORMS OF SEXUAL HARASSMENT
    Under the proposed rules, schools would simply have to not be 
deliberately indifferent \129\ to sexual harassment and assault; in 
other words, their response to harassment would be deemed to comply 
with Title IX as long as it was not clearly unreasonable. The 
deliberate indifference standard is a much more lax standard than that 
set out by the current Department guidance, which requires schools to 
act ``reasonably'' and ``take immediate and effective corrective 
action'' to resolve harassment complaints. \130\

    \129\  Proposed 34 C.F.R. Sec.  106.44(a).
    \130\  2001 Guidance, supra note 49.
---------------------------------------------------------------------------
    The Department's proposed ``safe harbors'' within this deliberate 
indifference standard weaken it still further, allowing schools to 
avoid liability even if they unreasonably handled a Title IX complaint. 
As long as a school follows the requirements set out in the proposed 
rules, \131\ the school's response to harassment complaints could not 
be challenged, effectively insulating them from any review. \132\ And 
by codifying the rule that the Department would not find a school 
deliberately indifferent based on a school's erroneous determination 
regarding responsibility, the Department further provides a safe harbor 
for schools that erroneously determine that sexual harassment did not 
occur, but does not provide a corresponding rule protecting schools 
from liability if they erroneously decide that sexual harassment did 
occur. \133\ This means it would always be safer for a school to make a 
finding of non-responsibility for sexual harassment. Indeed, such a 
rubber stamp finding would be completely permissible under the proposed 
rules as long as the school went through the motions of even a weak 
required process.

    \131\  Proposed Sec.  106.45.
    \132\  See proposed Sec.  106.44(b)(2) (``If the Title IX 
Coordinator files a formal complaint in response to the reports, and 
the recipient follows procedures (including implementing any 
appropriate remedy as required) consistent with proposed Sec.  106.45 
in response to the formal complaint, the recipient's response to the 
reports is not deliberately indifferent.'').
    \133\  See proposed Sec.  106.44(b)(5), 83 Fed. Reg. at 61471 
(explaining that proposed Sec.  106.44(b)(5) is meant to clarify that 
OCR will not ``conduct a de novo review of the recipient's 
investigation and determination of responsibility for a particular 
respondent'').
---------------------------------------------------------------------------
    The practical effects of this proposed rule would shield schools 
from any accountability under Title IX, even if a school mishandles a 
complaint, fails to provide effective supports for survivors and other 
harassment victims, and wrongly determines against the weight of the 
evidence that no sexual assault or harassment occurred.
   d. THE DEPARTMENT'S PROPOSED RULES CREATE INCONSISTENT AND UNFAIR 
                               STANDARDS
    The Department's longstanding interpretation of Title IX requires 
that schools use a ``preponderance of the evidence'' standard, which 
means ``more likely than not''.to decide whether sexual assault or 
other forms of harassment occurred. \134\ The proposed rules \135\ 
depart from that practice, and establishes a system where schools could 
elect to use the more demanding ``clear and convincing evidence'' 
standard in sexual harassment matters, while allowing all other student 
or employee misconduct investigations to be governed by the 
preponderance of the evidence standard, even if they carry the same 
maximum penalties. \136\ Indeed in some instances, the proposed rules 
would require that schools utilize the ``clear and convincing 
evidence'' standard. \137\

    \134\  The Department has required schools to use the preponderance 
standard in Title IX investigations since as early as 1995 and 
throughout both Republican and Democratic administrations. For example, 
its April 1995 letter to Evergreen State College concluded that its use 
of the clear and convincing standard ``adhere[d] to a heavier burden of 
proof than that which is required under Title IX'' and that the College 
was ``not in compliance with Title IX.'' U.S. Dep't of Educ., Office 
for Civil Rights, Letter from Gary Jackson, Regional Civil Rights 
Director, Region X, to Jane Jervis, President, The Evergreen State 
College (Apr. 4, 1995), at 8, http://www2.ed.gov/policy/gen/leg/foia/
misc-docs/ed--ehd--1995.pdf. Similarly, the Department's October 2003 
letter to Georgetown University reiterated that ``in order for a 
recipient's sexual harassment grievance procedures to be consistent 
with Title IX standards, the recipient must . . . us[e] a preponderance 
of the evidence standard.'' U.S. Dep't of Educ., Office for Civil 
Rights, Letter from Howard Kallem, Chief Attorney, D.C. Enforcement 
Office, to Jane E. Genster, Vice President and General Counsel, 
Georgetown University (Oct. 16, 2003), at 1, http://www.ncherm.org/
documents/202-GeorgetownUniversity--110302017Genster.pdf.
    \135\  Proposed Sec.  106.45(b)(4)(i).
    \136\  Proposed Sec.  106.45(b)(4)(i) would permit schools to use 
the preponderance standard only if it uses that standard for all other 
student misconduct cases that carry the same maximum sanction and for 
all cases against employees. This is a one-way ratchet: a school would 
be permitted to use the higher clear and convincing evidence standard 
in sexual assault cases, while using a lower standard in all other 
cases.
    \137\  Proposed Sec.  106.45(b)(4)(i) (explaining that the clear 
and convincing evidence standard must be used if schools use that 
standard for complaints against employees, and whenever a school uses 
clear and convincing evidence for any other case of student 
misconduct).
---------------------------------------------------------------------------
    The Department's decision to allow schools to impose a more 
burdensome standard in sexual harassment matters than in any other 
investigations of student or employee misconduct appears to rely on the 
stereotype and false assumption that those who report sexual assault 
and other forms of sexual harassment (mostly women) are more likely to 
lie than those who report physical assault, plagiarism, or the wide 
range of other school disciplinary violations and employee misconduct. 
When this unwarranted skepticism of sexual assault and other harassment 
allegations, grounded in gender stereotypes, infect sexual misconduct 
proceedings, even the preponderance standard ``could end up operating 
as a clear-and-convincing or even a beyond-a-reasonable-doubt standard 
in practice.'' \138\ Previous Department guidance recognized that, 
given these pervasive stereotypes, the preponderance standard was 
required to ensure that the playing field, at least on paper, was as 
even as possible. The Department now ignores the reality of these 
harmful stereotypes by imposing a standard of evidence that encourages, 
rather than dispels, the stereotype that women and girls lie about 
sexual assault and other harassment, a result that is contrary to Title 
IX.

    \138\  Michael C. Dorf, Further Questions About the Scope of the 
Dep't of Education's Authority Under Title IX, DORF ON LAW (Dec. 3, 
2018), https://dorfonlaw.org/2018/12/further-questions-about-scope-of-
dept.html#more.
---------------------------------------------------------------------------
    The preponderance standard is used for nearly all civil cases, 
including where the conduct at issue could also be the basis for a 
criminal prosecution. \139\ The preponderance standard is also used for 
people facing more severe deprivations than suspension, expulsion or 
other school discipline, or termination of employment or other 
workplace discipline, including in proceedings to determine paternity, 
\140\ competency to stand trial, \141\ enhancement of prison sentences, 
\142\ and civil commitment of defendants acquitted by the insanity 
defense. \143\ The Supreme Court has only required something higher 
than the preponderance standard in a narrow handful of civil cases ``to 
protect particularly important individual interests,'' \144\ where 
consequences far more severe than suspension, expulsion, or firing are 
threatened, such as termination of parental rights, \145\ civil 
commitment for mental illness, \146\ deportation, \147\ 
denaturalization, \148\ and juvenile delinquency with the ``possibility 
of institutional confinement.'' \149\ In all of these cases, 
incarceration or a permanent loss of a profound liberty interest was a 
possible outcome--unlike in school sexual harassment proceedings. 
Moreover, in all of these cases, the government and its vast power and 
resources was in conflict with an individual--in contrast to school 
harassment investigations involving two students with roughly equal 
resources and equal stakes in their education, two employees who are 
also similarly situated, or a student and employee, where any power 
imbalance would tend to favor the employee respondent rather than the 
student complainant. \150\ Preponderance is the only standard of proof 
that treats both sides equally and is consistent with Title IX's 
requirement that grievance procedures be ``equitable.'' \151\

    \139\  To take one famous example, O.J. Simpson was found 
responsible for wrongful death in civil court under the preponderance 
standard after he was found not guilty for murder in criminal court 
under the beyond-a-reasonable-doubt standard. See B. Drummond Ayres, 
Jr., Jury Decides Simpson Must Pay $25 Million in Punitive Award, N.Y. 
TIMES (Feb. 11, 1997), https://www.nytimes.com/1997/02/11/us/jury-
decides-simpson-must-pay-25-million-in-punitive-award.html.
    \140\  Rivera v. Minnich, 483 U.S. 574, 581 (1987).
    \141\  Cooper v. Oklahoma, 517 U.S. 348, 368 (1996).
    \142\  McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986).
    \143\  Jones v. United States, 463 U.S. 354, 368 (1983).
    \144\  Addington v. Texas, 441 U.S. 418, 424 (1979) (civil 
commitment).
    \145\  Santosky v. Kramer, 455 U.S. 745, 758 (1982).
    \146\  Addington, 441 U.S. at 432.
    \147\  Woodby v. INS, 385 U.S. 276, 286 (1966).
    \148\  Chaunt v. United States, 364 U.S. 350, 353 (1960); 
Schneiderman v. United States, 320 U.S. 118, 125 (1943).
    \149\  In re Winship, 397 U.S. 358, 367-68 (1970).
    \150\  Despite overwhelming Supreme Court and other case law in 
support of the preponderance standard, the Department cites just two 
state court cases and one federal court district court case to argue 
for the clear and convincing standard. 83 Fed. Reg. at 61477. The 
Department claims that expulsion is similar to loss of a professional 
license and that held that the clear and convincing standard is 
required in cases where a person may lose their professional license 
Id. However, even assuming expulsion is analogous to loss of a 
professional license, which is certainly debatable as it is usually far 
easier to enroll in a new school than to enter a new profession, this 
is a weak argument, as there are numerous state and federal cases that 
have held that the preponderance standard is the correct standard to 
apply when a person is at risk of losing their professional license. 
See, e.g., In re Barach, 540 F.3d 82, 85 (1st Cir. 2008); Granek v. 
Texas State Bd. of Med. Examiners, 172 S.W. 3d 761, 777 (Tex. Ct. App. 
2005). As an example, the Department cites to Nguyen v. Washington 
State Dep't of Health, 144 Wash.2d 516 (Wash. 2001), cert. denied 535 
U.S. 904 (2002) for the contention that courts ``often'' employ a clear 
and convincing evidence standard to civil administrative proceedings. 
In that case, the court required clear and convincing evidence in a 
case where a physician's license was revoked after allegations of 
sexual misconduct. But that case is an anomaly; a study commissioned by 
the U.S. Department of Health and Human Services found that two-thirds 
of the states use the preponderance of the evidence standard in 
physician misconduct cases. See Randall R. Bovbjerg et al., State 
Discipline of Physicians 14-15 (2006),https://aspe.hhs.gov/sites/
default/files/pdf/74616/stdiscp.pdf. See also Kidder, William, 
(En)forcing a Foolish Consistency?: A Critique and Comparative Analysis 
of the Trump administration's Proposed Standard of Evidence Regulation 
for Campus Title IX Proceedings (January 27, 2019), available at http:/
/ssrn.com/abstract=3323982 (providing an in depth comparative analysis 
of the many instances in which the preponderance standard is used 
instead of the clear and convincing evidence standard).

    \151\  The Department's bizarre claim that the preponderance 
standard is the ``lowest possible standard of evidence'' (83 Fed. Reg. 
at 61464) is simply wrong as a matter of law. Courts routinely apply 
lower standard of proof in traffic stops (``reasonable suspicion'') and 
conducting searches (``probable cause''). Terry v. Ohio, 392 U.S. 1 
(1968) (traffic stops); U.S. Const. amend. IV (searches).
---------------------------------------------------------------------------
    For this reason, Title IX experts and school leaders alike support 
the preponderance standard, which is used to address harassment 
complaints at over 80 percent of colleges. \152\ The National Center 
for Higher Education Risk Management (NCHERM) Group, whose white paper 
Due Process and the Sex Police was cited by the Department, \153\ has 
promulgated materials that require schools to use the preponderance 
standard, because ``[w]e believe higher education can acquit fairness 
without higher standards of proof.'' \154\ And even the Department 
admits it is ``reasonable'' for a school to use the preponderance 
standard. \155\

    \152\  Heather M. Karjane, et al., Campus Sexual Assault: How 
America's Institutions of Higher Education Respond 120 (Oct. 2002), 
https://www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf.
    \153\  83 Fed. Reg. at 61464 n.2.
    \154\  The NCHERM Group, Due Process and the Sex Police 2, 17-18 
(Apr. 2017), available at https://www.ncherm.org/wp-content/uploads/
2017/04/TNG-Whitepaper-Final-Electronic-Version.pdf.
    \155\  83 Fed. Reg. at 61477.
---------------------------------------------------------------------------
    By permitting and sometimes mandating the clear and convincing 
evidence standard in sexual harassment proceedings, the Department 
treats sexual harassment differently from other types of school 
disciplinary violations and employee misconduct, uniquely targeting and 
disfavoring sexual harassment complainants. First, the Department 
argues that Title IX harassment investigations are different from civil 
cases, and therefore may appropriately require a more burdensome 
standard of proof, because many Title IX harassment investigations do 
not use full courtroom procedures, such as active participation by 
lawyers, rules of evidence, and full discovery. \156\ However, the 
Department does not exhibit this concern for the lack of full-blown 
judicial proceedings to address other types of student or employee 
misconduct, including other examples of student or employee misconduct 
implicating the civil rights laws enforced by the Department. Schools 
have not, as a general rule, imposed higher evidentiary standards in 
other misconduct matters, nor have employers more generally in employee 
misconduct matters, to compensate for the proceedings' failure to be 
full-blown judicial trials, and the Department does not explain why 
such a standard is appropriate in this context alone.

    \156\  Id.
---------------------------------------------------------------------------
    Second, although the proposed rules would require schools to use 
the ``clear and convincing'' standard for sexual harassment 
investigations if they use it for any other student or employee 
misconduct investigations with the same maximum sanction, \157\ and 
would require that it be used in student harassment investigations if 
it is used in any employee harassment investigations, the proposed 
rules would not prohibit schools from using the clear and convincing 
standard in sexual harassment proceedings even if they use a lower 
proof standard for all other student conduct violations. \158\ School 
leaders agree that requiring different standards for sexual misconduct 
as opposed to other misconduct is inequitable.

    \157\  Proposed Sec.  106.45(b)(4)(i).
    \158\  See A Sharp Backward Turn, supra note 83 (``It is a one-way 
ratchet.'').
---------------------------------------------------------------------------
    Further, many school employees have bargained for contracts that 
require using a more demanding standard of evidence than the 
preponderance standard for employee misconduct investigations. \159\ 
The proposed rules would force those schools to either (1) impose the 
same evidentiary for all cases of misconduct that carry the same 
maximum sanction as Title IX proceedings \160\ or (2) maintain the 
clear and convincing evidence standard for only employee misconduct and 
student sexual misconduct proceedings. The latter choice would leave 
schools vulnerable to liability for sex discrimination, as schools 
cannot defend specifically disfavoring sexual harassment 
investigations, which is a form of sex discrimination, by pointing to 
collective bargaining agreements or other contractual agreements for 
employees that require a higher standard. \161\

    \159\  See id. (clear and convincing evidence is ``the standard the 
[American Association of University Professors] has urged on colleges 
and universities for faculty discipline and which some unionized 
institutions have incorporated in collective bargaining agreements with 
institutions'').
    \160\  Although the Department claims that it wants to give schools 
``flexibility'' in choosing their standard of proof,160 Proposed Sec.  
106.45(b)(4)(i) would effectively force schools to use ``clear and 
convincing evidence'' for student sexual harassment investigations if 
``clear and convincing evidence'' is used by that school in employee 
sexual harassment investigations. Given that most schools already use 
the preponderance standard in student Title IX proceedings, many of 
them would be forced to change their procedures--hardly the 
``flexibility'' that the Department claims it wishes to provide.
    \161\  See 34 C.F.R. Sec.  106.51 (``A recipient shall not enter 
into a contractual or other relationship which directly or indirectly 
has the effect of subjecting employees or students to discrimination . 
. . .).
---------------------------------------------------------------------------
   e. THE DEPARTMENT'S PROPOSED RULES WOULD CREATE UNFAIR GRIEVANCE 
                               PROCESSES
    Current Title IX regulations require schools to ``adopt and publish 
grievance procedures that provide for a prompt and equitable resolution 
of student and employee complaints'' of sexual misconduct. \162\ The 
proposed rules \163\ purports to require ``equitable'' processes as 
well. However, the proposed rules are also riddled with language that 
would require schools to conduct their grievance procedures in a 
fundamentally inequitable way that favors respondents. In so doing, it 
distorts the very fundamental notions of due process it claims to 
protect.

    \162\  34 C.F.R. Sec.  106.8(b).
    \163\  Proposed Sec.  106.8(c).
---------------------------------------------------------------------------
    A 2018 report studying more than 1,000 reports of sexual misconduct 
in institutions of higher education found that ``[f]ew incidents 
reported to Title IX Coordinators resulted in a formal Title IX 
complaint, and fewer still resulted in a finding of responsibility or 
suspension/expulsion of the responsible student.'' \164\ Despite the 
Department's unsubstantiated concern for respondents, the study found 
that ``[t]he primary outcome of reports were victim services, not 
perpetrator punishments.'' \165\ The Department's due process arguments 
totally ignore the complainants who are still treated unfairly in 
violation of Title IX and are often pushed out of schools from 
inadequate and unfair responses to their reports.

    \164\  Tara N. Richards, No Evidence of ``Weaponized Title IX'' 
Here: An Empirical Assessment of Sexual Misconduct Reporting, Case 
Processing, and Outcomes, L. & HUMAN BEHAVIOR (2018), available at 
http://dx.doi.org/10.1037/lhb0000316.
    \165\  Id.
---------------------------------------------------------------------------
    While the Department repeatedly cites the purported need to 
increase protections of respondents' ``due process rights'' to justify 
weakening Title IX protections for complainants, current Title IX 
regulations already provide more rigorous due process protections than 
are required under the Constitution. The Supreme Court has held that 
students facing short-term suspensions from public schools \166\ 
require only ``some kind of'' ``oral or written notice'' and ``some 
kind of hearing.'' \167\ The Court has explicitly said that a 10-day 
suspension does not require ``the opportunity to secure counsel, to 
confront and cross-examine witnesses supporting the charge, or to call 
his own witnesses to verify his version of the incident.'' \168\ 
However, the proposed rule's flat prohibition on reliance on testimony 
that is not subject to cross-examination \169\ would force survivors to 
a ``Hobson's choice'' between being revictimized by their assailant's 
advisor or having their testimony completely disregarded, and would 
prohibit schools from simply ``factoring in the victim's level of 
participation in [its] assessment of witness credibility.'' \170\ It 
would also make no allowance for the unavailability of a witness and 
would not allow any reliance at all on previous statements, regardless 
of whether those statements have other indicia of reliability, such as 
being made under oath or against a party's own interest. This would 
require schools to disregard relevant evidence in a variety of 
situations in a manner that could pose harms to both parties and would 
hinder the school's ability to ensure that their findings concerning 
responsibility are not erroneous.

    \166\  Constitutional due process requirements do not apply to 
private institutions.
    \167\  Goss v. Lopez, 419 U.S. 565, 566, 579 (1975).
    \168\  Id. at 583. See also Gomes v. Univ. of Maine Sys., 365 F. 
Supp. 2d 6, 23 (D. Me. 2005); B.S. v. Bd. of Sch. Trs., 255 F. Supp. 2d 
891, 899 (N.D. Ind. 2003); Coplin v. Conejo Valley Unified Sch. Dist., 
903 F. Supp. 1377, 1383 (C.D. Cal. 1995); Fellheimer v. Middlebury 
Coll., 869 F. Supp. 238, 247 (D. Vt. 1994).
    \169\  See proposed Sec.  106.45(b)(3)(vii) (``If a party or 
witness does not submit to cross-examination at the hearing, the 
decision-maker must not rely on any statement of that party or witness 
in reaching a determination regarding responsibility.'').
    \170\  Liberty University Letter, supra note 84 at 5.
---------------------------------------------------------------------------
    Under the proposed rules, \171\ schools would be required to 
presume that the reported harassment did not occur, which would ensure 
partiality to the respondent. This presumption would also exacerbate 
the rape myth upon which many of the proposed rules are based--namely, 
the myth that women and girls often lie about sexual assault. \172\ The 
presumption of innocence is a criminal law principle, inappropriately 
imported into this context. \173\ Criminal defendants are presumed 
innocent until proven guilty because their very liberty is at stake: 
criminal defendants go to prison if they are found guilty. There is no 
such principle in civil proceedings generally or civil rights 
proceedings specifically.

    \171\  Proposed Sec.  106.45(b)(1)(iv).
    \172\  Indeed, the data shows that men and boys are far more likely 
to be victims of sexual assault than to be falsely accused of it. See, 
e.g., Males Are More Likely to Suffer Sexual Assault, supra note 31.
    \173\  See also the Department's reference to ``inculpatory and 
exculpatory evidence'' (proposed Sec.  106.45(b)(1)(ii)), the 
Department's assertion that ``guilt [should] not [be] predetermined'' 
(83 Fed. Reg. at 61464), and Secretary DeVos's discussion of the 
``presumption of innocence'' (Elisabeth DeVos, Betsy DeVos: It's time 
we balance the scales of justice in our schools, WASH. POST (Nov. 20, 
2018), https://www.washingtonpost.com/opinions/betsey-devos-its-time-
we-balance-the-scales-of-justice-in-our-schools/2018/11/20/8dc59348-
ecd6-11e8-9236-bb94154151d2--story.html.
---------------------------------------------------------------------------
    The proposed non-responsibility presumption is inconsistent with 
the Department's own explanation of why it is proposed. The Department 
explains that the requirement ``is added to ensure impartiality by the 
recipient until a determination is made,'' but requiring a presumption 
against the complainant's account that harassment occurred is anything 
but impartial. In fact, the presumption ensures partiality to the named 
harasser, particularly because officials in this Administration have 
spread false narratives about survivors and other harassment victims 
being untruthful and about the ``pendulum swinging too far'' in school 
grievance proceedings against named harassers. This undoubtedly will 
influence schools to conclude this proposed rule means that a higher 
burden should be placed on complainants. The presumption of non-
responsibility may also discourage schools from providing crucial 
supportive measures to complainants, in order to avoid being perceived 
as punishing respondents. \174\ This proposed rule \175\ would also 
only encourage schools to ignore or punish historically marginalized 
groups that report sexual harassment for ``lying'' about it. \176\

    \174\  See Michael C. Dorf, What Does a Presumption of Non-
Responsibility Mean in a Civil Context, DORF ON LAW (Nov. 28, 2018), 
https://dorfonlaw.org/2018/11/what-does-presumption-of-non.html.
    \175\  Proposed Sec.  106.45(b)(1)(iv).
    \176\  See, e.g., Males Are More Likely to Suffer Sexual Assault, 
supra note 31.
---------------------------------------------------------------------------
    Finally, the changes to Title IX enforcement that ED proposes must 
be considered against the backdrop of underreporting and a pervasive 
culture in which those who do report sexual harassment, including 
sexual assault, are likely to be blamed and disbelieved. Unfortunately, 
and as explained in great detail throughout this comment, rather than 
seeking to remedy that culture, ED's proposed rule reinforces false and 
harmful stereotypes about those who experience sexual harassment and 
proposes rules that would further discourage reporting and make it 
harder for schools to adequately respond to complaints.
 VI. CAMPUS RESPONSES TO SEXUAL ASSAULT SHOULD BE CONSISTENT WITH THE 
                               CLERY ACT
    A number of the Department's proposed rules are inconsistent with 
the Clery Act, which the Department also enforces, and which also 
addresses the obligation of institutions of higher education to respond 
to sexual assault and other behaviors that may constitute sexual 
harassment, including dating violence, domestic violence, and stalking. 
First, the proposed rules prohibiting schools from investigating off-
campus and online sexual harassment conflict with Clery's notice and 
reporting requirements. The Clery Act requires institutions of higher 
education to notify all students who report sexual assault, stalking, 
dating violence, and domestic violence of their rights, regardless of 
``whether the offense occurred on or off campus.'' \177\ The Clery Act 
also requires institutions of higher education to report all sexual 
assault, stalking, dating violence, and domestic violence that occur on 
``Clery geography,'' which includes all property controlled by a 
school-recognized student organization (such as an off-campus 
fraternity); nearby ``public property''; and ``areas within the patrol 
jurisdiction of the campus police or the campus security department.'' 
\178\ The proposed rules would undermine Clery's mandate and create a 
perverse system in which schools would be required to report instances 
of sexual assault that occur off-campus to the Department, yet would 
also be required by the Department to dismiss these complaints instead 
of investigating them.

    \177\  20 U.S.C. Sec.  1092(f)(8)(C).
    \178\  20 U.S.C. Sec.  1092(f)(6)(iii); 20 U.S.C Sec.  
1092(f)(6)(iv)); 34 C.F.R. Sec.  668.46(a)).
---------------------------------------------------------------------------
    Second, the Department's definition of ``supportive measures'' is 
inconsistent with Clery, which requires institutions of higher 
education to provide ``accommodations'' and ``protective measures'' if 
``reasonably available'' to students who report sexual assault, dating 
violence, domestic violence, and stalking. \179\ The Clery Act does not 
prohibit accommodations or protective measures that are ``punitive,'' 
``disciplinary,'' or ``unreasonably burden[] the other party.'' Third, 
the proposed rules' unequal appeal rights conflict with the preamble to 
the Department's Clery rules stating that institutions of higher 
education are required to provide ``an equal right to appeal if appeals 
are available,'' which would necessarily include the right to appeal a 
sanction. \180\

    \179\  20 U.S.C. Sec.  1092(f)(8)(B)(vii); 34 C.F.R. Sec.  
668.46(b)(11)(v).
    \180\  U.S. Dep't of Educ.; Violence Against Women Act; Final Rule, 
79 Fed. Reg. at 62752, 62778 (Oct. 20, 2014) (codified at 36 C.F.R. Pt. 
668), https://www.gpo.gov/fdsys/pkg/FR-2014-10-20/pdf/2014-24284.pdf.
---------------------------------------------------------------------------
    Finally, the proposed rules' indefinite timeframe for 
investigations conflicts with Clery's mandate that investigations be 
prompt. \181\ And the many proposed rules discussed above that tilt 
investigation procedures in favor of the respondent are anything but 
fair and impartial.

    \181\  20 U.S.C. Sec.  1092(f)(8)(b)(iv)(I)(aa).
---------------------------------------------------------------------------
    Although the Department acknowledges that Title IX and the Clery 
Act's ``jurisdictional schemes--may overlap in certain situations,'' 
\182\ it fails to explain how institutions of higher education should 
resolve the conflicts between two different sets of rules when 
addressing sexual harassment. These different sets of rules would 
likely create widespread confusion for schools.

    \182\  83 Fed. Reg. at 61468.
---------------------------------------------------------------------------
    With careful consideration of the needs of students to be able to 
learn, thrive, and feel safe on campus, the procedures required to make 
campus processes fair and equitable to all parties, and the various 
ways that schools can appropriately respond to campus sexual assault 
that takes into account their student body, size, resources, culture, 
location, and state and local requirements, reauthorization of the 
Higher Education Act should reaffirm the principles of Title IX and 
Clery to ensure that campuses everywhere are safe places for students.
                                 ______
                                 
               [summary statement of fatima goss graves]
    While we have made major strides to address campus sexual assault 
over the past few years, too many colleges and universities still fail 
to make appropriate efforts to support survivors' opportunities to 
learn in the wake of sexual violence. Any reauthorization of the Higher 
Education Act should take this into account, as well as the principles 
and requirements of the Clery Act and Title IX, which already require 
schools to adopt and enforce procedures to address sexual assault that 
is prompt, equitable, and impartial. Through prevention and awareness 
programs for incoming students and employees and addressing sexual 
harassment, under these laws, schools have been charged with addressing 
behaviors leading up to and including sexual assault, before they cause 
greater harm to students' education.

    Campus sexual assault is pervasive, underreported, and survivors 
are still being punished by their schools when they report: Students in 
college experience high rates of sexual harassment and sexual assault. 
During college, 62 percent of women and 61 percent of men experience 
sexual harassment, and more than one in five women and nearly one in 18 
men are sexually assaulted. Nearly one in four transgender and gender-
nonconforming students are sexually assaulted during college. 
Unfortunately, campus sexual assault is still consistently and vastly 
underreported and when students do report campus sexual assault, they 
are often ignored and sometimes even punished by their schools.

    Campus processes need to be fair to all students: Schools must take 
effective and immediate action when responding to sexual assault and 
other forms of harassment that school employees know about or 
reasonably should know about. When schools respond, complainants must 
be afforded non-punitive interim measures to preserve and restore 
access to educational programs, and investigations must be equitable 
and not create barriers to reporting. This means that live-cross 
examination should not be allowed as it is an unnecessary measure that 
would deter reporting of campus sexual assault. Campuses should also 
not allow mediation to resolve sexual assault complaints, must not 
consider irrelevant or prejudicial evidence, and must provide parties 
with remedies to preserve or restore access to education. Campuses must 
also have equitable appeal rights and must prohibit retaliation against 
parties and witnesses.

    Unfortunately, the Department of Education (ED) recently proposed 
changes to Title IX that, if finalized, would force schools to ignore 
sexual harassment and create unfair grievance processes. ED's proposed 
rules would only discourage reporting of sexual assault and improperly 
prevent schools from providing a safe learning environment by mandating 
dismissal of many complaints of sexual assault and harassment. By 
imposing the deliberate indifference, schools would be allowed to do 
virtually nothing in response to complaints of sexual assault and other 
forms of sexual harassment. The proposed rules would also force schools 
into using inappropriate and inequitable standards and create other 
unfairness in the grievance process, including mandating live cross-
examination and allowing mediation for sexual assault.
                                 ______
                                 
    The Chairman. Thank you, Ms. Goss Graves. Thank you for 
coming today.
    Ms. Gersen, glad you got here. Thank you for coming.

STATEMENT OF JEANNIE SUK GERSEN, JOHN H. WATSON, JR., PROFESSOR 
           OF LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MA

    Ms. Gersen. Chairman Alexander, Ranking Member Murray, and 
Members of the Committee, thank you for the opportunity to 
testify. I am Jeannie Suk Gersen. I am a professor of law at 
Harvard Law School. I will address two questions of fairness 
and campus sexual assault, discipline, how schools should 
define the prohibited contact, and what elements are essential 
to a fair process of investigation and adjudication.
    First, discipline can only be fair if the definitions of 
prohibited conduct are clear. We often use terms like sexual 
harassment and sexual assault, but they mean so many different 
things. They have their criminal definition, civil definitions, 
colloquial uses, and often it is very confusing. Sometimes 
schools adopt over broad definitions because what they want to 
do is to communicate to the student body the aspirations and 
desired norms of the community. But for the purpose of campus 
discipline, some of these very broad definitions are improper. 
Sometimes they cover too much and make accusations that arise 
under these rules seem arbitrary, and that is unfair to all 
parties, both complainants and respondents, and it harms 
legitimacy of efforts to address the harm of sexual assault.
    The Federal Government should provide a basic definition 
that anchors schools to the definition of hostile environments 
sexual harassment that the Supreme Court has provided in 
Meritor Savings Bank v. Vinson. That is, unwelcome conduct of a 
sexual nature that is sufficiently severe or pervasive that it 
impairs a person's access to a protected activity. Here we are 
talking about education. This is broader than the definition 
that is proposed in the current Education Department's Title IX 
rules, and it is narrower than many schools' current 
definitions of sexual harassment. Sexual harassment, of course, 
includes sexual assault but the term sexual assault refers to 
many different kinds of standards, and its use causes great 
ambiguity, and it should defined.
    The Federal Government should provide a definition of 
sexual assault to guide schools, and they in turn will give 
schools clear and fair notice about the line between prohibited 
conduct and permitted conduct. It should set expectations that 
are administrable, realistic, and tethered to a person's access 
to equal educational opportunity, as Title IX requires. I now 
turn to disciplinary procedures, the procedures used by schools 
to respond to allegations that sex discrimination has occurred. 
Campus discipline is not criminal justice, but the basic 
elements of fair process must be present to ensure integrity, 
accuracy, and lack of bias. Both the complainant and the 
accused must be treated equally and fairly. The elements of 
fair process in this context should include the following basic 
requirements.
    First, notice. Parties have to be provided the written 
complaint and informed of all of the factual basis of the 
complaint. Evidence. Parties should be given full and fair 
access to all of the evidence gathered that is directly related 
to the allegation, and also to the identities of the witnesses 
and all of their statements. There should be neutral and 
independent decisionmakers. Schools must separate the functions 
of the investigator, the adjudicator, and the appellant body, 
rather than combining all of those roles into one, or any two 
of them into one person.
    There should be a live hearing and an opportunity for the 
parties to be heard before the decisionmaker. The live hearing 
need not involve direct cross-examination, but there should be 
a meaningful opportunity for each side to pose questions to the 
other side or to witnesses, and that can be done in a variety 
of ways. One of them is to pass questions to a neutral 
decisionmaker who will then post the questions to the people 
who are testifying, and then have opportunities for some 
reasonable amount of follow-up questions.
    There should be a presumption of innocence and any accused 
individual should have a presumption of innocence on any kind 
of accusation whether it is a sexual harassment accusation, 
racial harassment, or any other kind of accusation. The 
standard of evidence should be equalized among sexual and non-
sexual accusations. So, if you use one standard for racial 
harassment, it should be the same standard for sexual 
harassment. And finally, there should be some opportunity for 
informal resolution of complaints. Whether it is through 
restorative justice or mediation, there should be an option 
that schools can offer for people who want to have an informal 
resolution rather than a formal one.
    In closing, I would like to emphasize that the two 
portions, the clearly defining prohibited conduct and a fair 
process to investigate complaints, are very closely related. No 
matter how unambiguously conduct is defined, no one can have 
faith in a process that does not use fair procedures to 
investigate complaints. And even the fairest adjudicatory 
procedures cannot remedy the basic injustice of ill-defined, 
vague, and over broad, or under inclusive categories of 
conduct.
    I want to close by thanking you, and I look forward to your 
questions.
    [The prepared statement of Ms. Gersen follows:]
                prepared statement of jeannie suk gersen
    Chairman Alexander, Ranking Member Murray, and Members of the 
Committee, I am Jeannie Suk Gersen, the John H. Watson, Jr. Professor 
of Law at Harvard Law School. I have taught courses on Criminal Law, 
Criminal Adjudication, Constitutional Law, and Regulating Sex on 
Campus. My research and writing have considered the problems of 
equality and fairness in legal and institutional responses to sexual 
assault and harassment, including in the context of Title IX and campus 
discipline. \1\ As an attorney, I have represented multiple students 
and faculty who have been parties in campus cases about sexual assault, 
sexual harassment, and sex discrimination. I was a signatory to the 
statement of twenty-eight Harvard Law School professors who, in October 
2014, criticized Harvard University's then newly adopted sexual 
misconduct policy as ``unfairly staked against the accused,'' and ``in 
no way required by Title IX law or regulation.'' \2\ I serve on the 
American Law Institute's Project on the Model Penal Code: Sexual 
Assault and Related Offenses, as an Advisor, and on the organization's 
Project on Sexual and Gender-Based Misconduct on Campus: Procedural 
Frameworks and Analysis, as part of the Members' Consultative Group.

    \1\  See, e.g., Jacob E. Gersen & Jeannie Suk, The Sex Bureaucracy, 
104 Cal. L. Rev. 881 (2016), adapted in Jacob Gersen & Jeannie Suk 
Gersen, The College Sex Bureaucracy, Chron. Higher Educ., Jan. 17, 
2017; Jeannie Suk Gersen, The Socratic Method in the Age of Trauma, 130 
Harv. L. Rev. 2320 (2017); Jacob E. Gersen & Jeannie Suk, Timing of 
Consent, in The Timing of Lawmaking 149 (Frank Fagan & Saul Levmore 
eds., 2017). I have also written the following analyses on campus 
sexual misconduct discipline, in The New Yorker: Assessing Betsy 
DeVos's Proposed Rules on Title IX and Sexual Assault, Feb. 1, 2019, 
https://www.newyorker.com/news/our-columnists/assessing-betsy-devos-
proposed-rules-on-title-ix-and-sexual-assault; Deborah Ramirez's 
Allegation Against Brett Kavanaugh Raises Classic Questions of Campus 
Assault Cases, Sept. 25, 2018, https://www.newyorker.com/news/our-
columnists/deborah-ramirezs-allegation-against-brett-kavanaugh-raises-
classic-questions-of-campus-assault-cases; The Transformation of Sexual 
Harassment Law Will Be Double-Faced, Dec. 20, 2017, https://
www.newyorker.com/news/news-desk/the-transformation-of-sexual-
harassment-law-will-be-double-faced; Betsy DeVos, Title IX, and the 
``Both Sides'' Approach to Sexual Assault, Sept. 8, 2017, https://
www.newyorker.com/news/news-desk/betsy-devos-title-ix-and-the-both-
sides-approach-to-sexual-assault; The Trump administration's Fraught 
Attempt to Address Campus Sexual Assault, July 15, 2017, https://
www.newyorker.com/news/news-desk/the-trump-administrations-fraught-
attempt-to-address-campus-sexual-assault; College Students Go To Court 
Over Sexual Assault, Aug. 5, 2016, https://www.newyorker.com/news/news-
desk/colleges-go-to-court-over-sexual-assault.
    \2\  Elizabeth Bartholet et al., Rethink Harvard's Sexual 
Harassment Policy, Bos. Globe, Oct. 15, 2014, https://
www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-
harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html.
---------------------------------------------------------------------------
    Thank you for the opportunity to testify about the response to 
sexual assault on college campuses. In addition to my own research, my 
testimony today draws on past public comments, submitted to the 
Department of Education, that I co-authored with my Harvard colleagues, 
Elizabeth Bartholet, Nancy Gertner, and Janet Halley, as feminist law 
professors who have been concerned about fairness in campus discipline 
processes. \3\

    \3\  Elizabeth Bartholet, Nancy Gertner, Janet Halley & Jeannie Suk 
Gersen, Fairness for All Students Under Title IX, Aug. 21, 2017, 
https://dash.harvard.edu/bitstream/handle/1/33789434/Fairness--20for--
20All--20Students.pdf?sequence=1; Jeannie Suk Gersen, Nancy Gertner & 
Janet Halley, Comment on Proposed Title IX Rulemaking, Jan. 30, 2019, 
https://perma.cc/3F9K-PZSB.
---------------------------------------------------------------------------
    In the past decade, we have seen many colleges and universities 
recognize their past approaches to sexual misconduct to be inadequate, 
and undertake to adopt new policies and procedures, inspired by 
pressure from the federal government. In the same period, we have also 
seen the rise of an unfortunately common notion that effectively 
addressing sexual assault and advocating for due process are 
politically opposed sides of a debate. I appreciate that a premise of 
this hearing is to reject that false choice in the endeavor to 
understand what fairness for all parties would look like in rigorous 
and legitimate measures to address sexual assault.

    The two broad questions in campus sexual assault discipline are how 
prohibited conduct should be defined, and what elements are essential 
to a fair process of investigation and adjudication. I will address 
them in turn.
                Definitions of Prohibited Sexual Conduct
    Title IX prohibits schools that receive federal funding from 
discriminating on the basis of sex, and in the past decades, it has 
become clear in court decisions and agency rules that sex 
discrimination includes sexual harassment, which in turn includes 
sexual assault. Schools therefore understand that they are legally 
obligated to take measures to address, remedy, and prevent sex 
discrimination, sexual harassment, and sexual assault in their 
communities. But they often face uncertainty and contention about the 
exact contours of the conduct that they ought to prohibit, both as a 
matter of their responsibilities under federal law, and as a matter of 
values and norms they would wish to promote in their communities. The 
problem of definitions is especially challenging at a time when sexual 
norms and ideas of acceptable behavior are rapidly changing, especially 
among young people who are the beating heart of college campuses.

    Discipline that affects any party's access to education can be fair 
only if definitions of prohibited conduct are clear, understandable, 
and not excessively under-inclusive or over-inclusive. Standard legal 
definitions of sexual harassment include both quid-pro-quo sexual 
harassment and hostile-environment sexual harassment. The standard 
definition of hostile-environment sexual harassment comes from the 
Supreme Court in Meritor Savings Bank v. Vinson: unwelcome conduct of a 
sexual nature that is sufficiently severe or pervasive that it impairs 
a person's access to a protected activity to a protected activity to a 
protected activity. \4\ According to the Court, the elements of a 
hostile environment must not only subjectively experienced but also 
objectively reasonable. The definition allows consideration of the 
complainant's subjective experience, while also providing a 
reasonableness check against arbitrary accusations. The definition is 
clear, and when used in the context o schools, has a nexus to equal 
access to educational opportunity.

    \4\  477 U.S. 57, 67 (1986) (``For sexual harassment to be 
actionable, it must be sufficiently severe or pervasive `to alter the 
conditions of [the victim's] employment and create an abusive working 
environment.''').
---------------------------------------------------------------------------
    But some schools currently use overbroad definitions of prohibited 
conduct that go far beyond legal definitions of sexual harassment. They 
may simply prohibit unwelcome conduct, even if it does not create a 
hostile environment, and even if a reasonable person would not have 
reason to know that the conduct was unwelcome. At many schools, sexual 
conduct is considered unwelcome or non-consensual if either party did 
not provide verbal consent to each act within a sexual encounter. Even 
those who are proponents of verbal affirmative consent standards must 
admit that, realistically, the definition effectively renders most 
subjectively and mutually desired sex that occurs a technical violation 
of the campus rules. While perhaps appealing as an aspirational norm or 
a way to avoid misunderstanding during sex, verbal affirmative consent 
definitions are overbroad for distinct purpose of campus discipline. 
They classify almost all sexual conduct as a violation of the rules. 
Therefore they are unhelpful for clearly distinguishing wrongful 
conduct from conduct that is mutually wanted and voluntary on both 
sides. If almost everyone is technically violating an overly broad rule 
that covers most sex that is voluntarily engaged in, the accusations 
that arise under the rule may be arbitrary. That is unfair to all 
parties and erodes the legitimacy of efforts to combat sexual assault.

    Federal efforts to guide schools in defining prohibited conduct 
should be anchored to the Supreme Court's definition of hostile-
environment sexual harassment in Meritor. The definition should 
prohibit unwelcome conduct of a sexual nature that is so severe or 
pervasive as to impair equal access to education, and it should require 
that hostile environment claims be objectively reasonable.

    The Department of Education's current Proposed Title IX Rule, 
however, defines hostile-environment sexual harassment more narrowly, 
as unwelcome conduct that is ``so severe, pervasive, or objectively 
offensive that it effectively denies a person equal access to [a 
school's] educational program or activity.'' \5\ That definition is too 
narrow and under-inclusive, because it would not cover conduct that is 
severe but not pervasive (such as a single act of rape), or pervasive 
but not severe (such as multiple, repeated, unwelcome comments on 
someone's appearance). Both of these types of conduct are important for 
schools to address in order to preserve equal access to education.

    \5\  This language is from the Title IX case, Davis v. Monroe 
County Board of Education, 526 U.S. 629, 650-2 (1999), in which the 
Supreme Court created a narrowing definition of sexual harassment for 
the specific purpose of limiting private parties' access to civil 
lawsuits against school boards for money damages. Citing Meritor, the 
Court in Davis recognized that the standard legal definition of sexual 
harassment is broader than the one it was adopting for that specific 
purpose. Id. at 651.
---------------------------------------------------------------------------
    While hostile-environment sexual harassment is supposed to 
encompass sexual assault, the term ``sexual assault'' refers to so many 
different and conflicting kinds of criminal, civil, and colloquial 
standards that its use currently causes tremendous ambiguity and 
uncertainty about what is prohibited and permitted. Someone may use 
``sexual assault'' to refer to an unwelcome touching of an arm or a 
shoulder, while another may mean a digital penetration without 
affirmative verbal permission, and yet another may believe it means 
nothing short of a forcible act of rape. Similarly, the term 
``consent'' can mean anything from explicit verbal permission for each 
act within a sexual encounter, to willing acquiescence, to absence of 
physical resistance.

    It would be beneficial for the federal government to provide a 
definition of sexual assault that guides schools for the purposes of 
campus discipline, so they may give clear and fair notice to all 
parties about the line between prohibited and permitted sexual 
activity. I propose the following definition, as it includes the most 
important elements:

        Sexual assault is the penetration or touching of another's 
        genitalia, buttocks, anus, breasts, or mouth without consent.

        A person acts without consent when, in the context of all the 
        circumstances, he or she should reasonably be aware of a 
        substantial risk that the other person is not voluntarily and 
        willingly engaging in the conduct at the time of the conduct.

    This definition clearly specifies the relevant body parts as 
sexual, and what constitutes consent in a way that accords with most 
legal and conventional understandings of sexually wrongful conduct. It 
gives clear notice to parties about what conduct is prohibited, it sets 
realistic expectations, and it is administrable.

    The federal government should define prohibited sexual conduct for 
the purpose of campus discipline in a manner that is grounded in law 
and tethered to access to educational opportunity. In sum, the 
prohibited conduct consists of sexual harassment of three kinds: quid-
pro-quo sexual harassment; hostile-environment sexual harassment 
(defined in keeping with the Supreme Court's definition in Meritor); 
and sexual assault (defined as proposed above) that effectively denies 
a person equal access to education.

    A school's responsibilities to address the prohibited conduct 
should be tied to the impact of the conduct on equal access to the 
school's educational programs and activities. That means that its 
responsibilities to address a violation should extend to off-campus 
conduct that is not connected to any official program or activity of 
the school, if the effects of the violation produce a discriminatory 
impact on a victim's access to education, such as when both the victim 
and the perpetrator are both enrolled at the school. The focus should 
be on access to education, and that turns on concrete impairment to 
educational access due to the discriminatory conduct of the school's 
students, staff, or faculty.

    Finally, schools should be considered in violation of Title IX if 
they behave unreasonably--that is, when they should have known of a 
substantial risk of sexual misconduct and failed to act to address it. 
The Department of Education's current Proposed Title IX Rule instead 
would hold schools responsible only if they knew of sexual-misconduct 
allegations and were deliberately indifferent to them. That standard 
sets an inappropriately low expectation for schools. It should be 
enough to show that a school reacted unreasonably.
              Discipline Procedures for Sexual Misconduct
    While sexual misconduct on campus may sometimes overlap with 
criminal conduct, campus disciplinary processes are not criminal 
processes. While serious, the stakes, deprivation of access to 
education rather than criminal penalties, are different and less 
severe. Criminal investigation and adjudication process with all of its 
protections of defendants' rights are not the precise benchmark for 
campus discipline processes. But basic elements of fair process must be 
present, to ensure integrity, accuracy, and lack of bias. When a 
complaint of sexual misconduct is made, both the complainant and the 
accused must be treated fairly and equally in the process of 
investigation and adjudication of the complaint. The elements of fair 
process in this context should include the following requirements:

    Notice. Parties should be provided the written complaint and 
informed of the factual basis of the complaint.

    Evidence. Parties should be given equal and full access to all of 
the evidence gathered that is directly related to the allegations, and 
to the identities and statements of all the witnesses.

    Division of Roles Among Neutral and Independent Decisionmakers. 
Schools should separate the functions of investigator, adjudicator, and 
appellate body, rather than combining any of those roles. 
Decisionmakers at different stages of the process should be independent 
of each other and not be invested in reinforcing the outcomes of 
previous stages. The separation provides accountability and checks, and 
discourages bias and error. The role of advocate or counseling, for 
complainant or respondent, should be divided completely from the roles 
of investigation and adjudication of the complaint. The role of Title 
IX Coordinator should be limited to coordinating the process and 
separated from the neutral and independent investigation and 
adjudication. The Title IX Coordinator should not be placed in the 
roles of conducting investigations, making factual findings, deciding 
on responsibility, assigns sanctions, or hearing appeals.

    Live Hearing. Schools should provide a live hearing before the 
decisionmaker, during which the parties can have the opportunity to be 
heard, hear testimony of witnesses in real time, and offer amendments, 
interpretations, and challenges to the evidence and to the witnesses' 
accounts.

    Counsel. Parties should be permitted to bring counsel to any 
interviews and hearings, and counsel should be allowed to speak to 
assert the parties' rights.

    Asking Questions. Parties should be allowed to ask questions of 
other parties and witnesses in a meaningful way. This does not require 
cross-examination. It is sufficient, perhaps even optimal, to have 
parties instead submit questions to the presiding decision-maker, who 
should then ask all questions submitted unless they are irrelevant, 
excluded by a rule of evidence clearly adopted in advance, harassing, 
or duplicative. This submitted-questions procedure, if administered 
fairly to serve the truth-seeking function, provides ample opportunity 
for parties to probe each other's and witnesses' credibility and 
consistency such that direct cross-examination is not needed.

    Presumption of Innocence. Any accused individual in a campus 
disciplinary matter concerning any kind of allegation should have a 
presumption of innocence. The rise of ``trauma-informed training'' for 
investigators and adjudicators can lead to biased process insofar as it 
induces a working presumption that problems in the evidence such as 
inconsistencies in the complainant's account supports the conclusion 
that the complainant has been traumatized by the accused party. This 
circular approach to evaluating evidence is inconsistent with the 
presumption of innocence and, more fundamentally, is incompatible with 
basic fair process.

    Burdens of Proof and of Production. The school should bear the 
burdens of proof and of production, and should not place them on either 
complainant or respondent.

    Standard of Evidence. The ``preponderance of evidence'' standard is 
now the commonly used standard of evidence in campus sexual misconduct 
discipline, because it was described as mandatory under the Obama 
administration's Title IX guidance. When combined with other fair 
procedures that treat the parties equally and fairly, the preponderance 
standard is a fair standard. Any higher evidentiary standard is tilted 
in favor of the accused. But the higher ``clear and convincing 
evidence'' standard is also plausibly appropriate and not unfair, 
because it may reflect the possible seriousness of the sanction of the 
accused. Schools should have discretion to use the preponderance or the 
clear and convincing evidence standard, assuming that the other 
surrounding processes are fair and equal. But if a school chooses 
preponderance for sexual misconduct, it should adopt the same standard 
for non-sexual misconduct as well, because there is no good 
justification for using a lower or higher evidentiary standard for 
sexual harassment than, for example, racial harassment.

    Written Reports. Parties should be provided copies of written 
reports that detail the evidence gathered by investigators and explain 
the reasoning and conclusions reached by decisionmakers.

    Informal Resolution Methods. Schools should be permitted to offer 
mediation or restorative justice approaches to accusations of sexual 
misconduct, in addition to the formal process of investigation and 
adjudication. An exclusively disciplinary or punitive approach 
needlessly deprives victims of options that they may believe will 
benefit them in the pursuit of equal educational opportunity. Some 
complainants desire a process focused on having the other party 
understand the harm caused, but may not pursue a complaint if they know 
that the only option is a full formal process leading to possibly 
severe punishment for the respondent. Some respondents may be prepared 
to confess, apologize, and take responsibility, but may be deterred 
from recognizing their harmful actions, because the formal and 
punitive-seeming framework pushes them to adopt an adversarial posture 
of denial. If both parties wish to explore alternatives to formal 
adjudication, schools should not be prohibited from providing the 
option of a structured and guided means for parties to settle the 
conflict, through an informal process that is less adversarial than the 
formal investigation and adjudication process.

    Racial Impact. The Department of Education's Office for Civil 
Rights has acknowledged a serious risk of race discrimination in 
general student discipline in elementary and secondary schools, noting 
that African-American students ``are more than three times as likely as 
their white peers'' to be expelled or suspended, and those substantial 
racial disparities ``are not explained by more frequent or more serious 
misbehavior by students of color.'' The race of the parties in sexual-
misconduct cases is not included in existing federal reporting 
requirements, so the issue is difficult to study and understand. 
Schools may interpret their obligations under student privacy rules as 
preventing the release of such data, if they even compile such data. 
But among administrators, lawyers, and faculty members involved in 
sexual misconduct cases, stories and experiences of disproportionate 
racial impact are common. It is important for colleges and universities 
to study and address the potential for race discrimination in sexual-
assault allegations, affecting either respondents or complainants. That 
risk must be transparently analyzed as part of the project of enforcing 
sex discrimination law. And concerns about fair procedures that afford 
equal treatment complainants and respondents as outlined in this 
section are all the more important where there is a risk of racially 
disproportionate impact. Schools should include questions about racial 
and other demographic information in the sexual climate surveys they 
administer to the student body. The federal government should promote 
the rigorous gathering of knowledge about the racial impact, on both 
complainants and respondents in the campus disciplinary process.

    Thank you for the opportunity to discuss these issues with the 
Committee.
                                 ______
                                 
               [summary statement of jeannie suk gersen]
    In my testimony I address two broad questions in campus sexual 
assault discipline: how prohibited conduct should be defined, and what 
elements are essential to a fair process of investigation and 
adjudication.
                Definitions of Prohibited Sexual Conduct
    Discipline that affects any party's access to education can be fair 
only if definitions of prohibited conduct are clear, understandable, 
and not excessively under-inclusive or over-inclusive. Some schools 
currently use overbroad definitions of prohibited conduct that are 
unfair to all parties. Overly expansive definitions tend to undermine 
efforts to combat sexual assault. Overly narrow definitions may be 
under-inclusive of conduct that impairs access to education. The 
federal government should define prohibited sexual conduct for the 
purpose of campus discipline in a manner that is grounded in law, 
particularly the Supreme Court's definition of hostile-environment 
sexual harassment as unwelcome conduct of a sexual nature that is so 
severe or pervasive that it impairs a person's access to the protected 
activity, here, education. Schools' definitions of prohibited conduct 
should always be tethered to the concrete impact of the conduct on 
access to equal educational opportunity.
              Discipline Procedures for Sexual Misconduct
    For campus discipline to be legitimate, basic elements of fair 
process must be present, to ensure integrity, accuracy, and lack of 
bias. Both the complainant and the accused must be treated fairly and 
equally in the process of investigation and adjudication of the 
complaint. The most important elements of fair process include: giving 
the parties notice of and information about the factual basis of the 
complaint, and full access to evidence gathered; separation of the 
functions of investigator, adjudicator, and appellate body, to insure 
independence; separation between the Title IX coordinator and those 
conducting the investigation, adjudication, or appeal, to insure 
neutrality; a live hearings before the decisionmaker, during which the 
parties can have the opportunity to be heard and hear testimony in real 
time; permission to have counsel for parties attend interviews and 
hearings; opportunity for parties to put questions to parties and 
witnesses; a presumption of innocence; and the use of either a 
preponderance of the evidence or a clear and convincing standard of 
evidence.
                                 ______
                                 
    The Chairman. Thank you, Ms. Gersen for being here today.
    Ms. Meehan, welcome.

   STATEMENT OF ANNE MEEHAN, DIRECTOR, GOVERNMENT AND PUBLIC 
     AFFAIRS, AMERICAN COUNCIL ON EDUCATION, WASHINGTON, DC

    Ms. Meehan. Mr. Chairman, Ranking Member Murray, and 
Members of the Committee, thank you for inviting me to speak 
with you today. My name is Anne Meehan and I am Director of 
Government Relations at the American Council on Education. I am 
testifying here today on behalf of ACE and the higher education 
associations listed at the end of my written testimony.
    Campus sexual assault is one of the most important and 
serious issues facing colleges and universities today. Federal 
law requires colleges and universities to address sexual 
assault on their campuses, and institutions take complying with 
these and all applicable laws very seriously. Institutions are 
committed to maintaining safe and supportive campus 
environments that allow students to benefit from the widest 
possible array of educational opportunities.
    Unfortunately, campus sexual assault cases can be extremely 
difficult to resolve. They may involve different accounts of 
what happened, few if any witnesses, little or no physical 
evidence, conduct and recollections impaired by alcohol or drug 
use, and sometimes understandably, a time lapse between the 
event and the filing of a report. The central issue often is 
whether consent has been given, and this can be very difficult 
to determine. For these and other reasons, law enforcement 
authorities often decline to pursue these cases, but campuses 
must address them through their disciplinary processes, 
independent of whether criminal charges are filed.
    In our efforts to address campus sexual assault, colleges 
and universities have three overarching goals. First, we want 
to support the survivor. Second, we want processes that are 
fair to both parties. And third, while clarity of Federal 
expectations is helpful, we also need flexibility to address 
these difficult cases compassionately, and effectively, and in 
a way that makes sense for a particular campus community. 
Campus disciplinary processes vary significantly from 
institution to institution. Based on, among other things, the 
institution's mission, size, student population, resources, and 
community values.
    I provided examples of this in my written testimony, but 
regardless of the specific campus disciplinary process used, it 
must be fair. Both the Clery Act and Title IX require it. Clery 
statute and regulation set out the basic requirements of a fair 
process. For example, under Clery, campus disciplinary 
processes must, one, be conducted by officials who received 
training on sexual assault. Two, allow the parties to have an 
advisor of their choosing present. Three, be conducted by 
individuals who are free from conflicts of interest or biased. 
And four, provide timely and equal access to any information 
that will be used.
    Fundamentally, we think the Clery fairness framework is a 
good one, and one that works well across a variety of 
institutions and campus disciplinary processes. As Congress 
considers whether to build on this framework, please keep in 
mind the five following observations. First, colleges and 
universities are not courts nor should they be. Efforts to 
impose court-like procedures and terminology are misguided and 
likely to create unintended consequences. The recent Title IX 
NPRM's requirement that all institutions provide a live hearing 
with direct cross-examination by a party's advisor is one such 
example. Second, campuses and their disciplinary processes are 
diverse.
    Highly prescriptive one-size-fits-all requirements may 
undermine the goals of supporting survivors and being fair to 
both parties. Congress should set guardrails for what a fair 
process requires, and then provide flexibility for institutions 
to meet these requirements in a way that makes sense for their 
campus. Third, institutions are subject to a variety of Federal 
and state laws on this topic, as well judicial decisions and 
institutional policies. When adding new requirements to the 
law, be mindful not to create overlapping, confusing, and 
possibly conflicting obligations.
    Fourth, preserve institutions' ability to address sexual 
assault affecting their community, even if it is beyond what 
they are required to address under law. For example, campuses 
want and need to be able to address sexual assault even if it 
occurs off-campus. And finally, as important as it is to ensure 
fair disciplinary processes, we should not forget that our 
ultimate goal is to prevent sexual assault from occurring in 
the first place.
    My written testimony contains examples of some of the 
prevention work our campuses are doing. Additional Federal 
support for these efforts would be welcomed.
    Thank you for inviting me to testify. I would be happy to 
answer any questions.
    [The prepared statement of Ms. Meehan follows:]
                   prepared statement of anne meehan
    Mr. Chairman, Senator Murray, and Members of the Committee, thank 
you for inviting me to speak with you today. My name is Anne Meehan and 
I am the Director of Government Relations at the American Council on 
Education (ACE). ACE represents more than 1,700 public and private, 
two- and four-year colleges and universities and related higher 
education associations. I submit this testimony on behalf of ACE and 
the higher education associations listed at the end of my testimony.

    As Congress works to reauthorize the Higher Education Act, we 
appreciate the Committee holding this hearing on addressing campus 
sexual assault and ensuring student safety and rights. I have been 
asked here today to talk about the variety of campus disciplinary 
processes used by colleges and universities to respond to allegations 
of sexual misconduct involving students, and ways to help ensure these 
processes are fair to both the survivor and the accused. My comments 
will focus on sexual assault between students because this has been an 
important emphasis of institutions and policymakers in recent years.

    Two federal laws--the Clery Act and Title IX--require colleges and 
universities to address sexual assault on their campuses (Clery via 
statute and regulations and Title IX via regulations and guidance). 
Although different in scope, these laws also contain important 
requirements for campus disciplinary processes used to address sexual 
assault, including that these processes must be fair. Campuses take 
complying with these, and all applicable laws, very seriously. In 
addition to wanting to fulfill their legal obligations in this area, 
colleges and universities want to do the right thing. College and 
universities are committed to maintaining campus environments that are 
safe, supportive, and responsive so all students can benefit from the 
widest possible array of educational opportunities.

    Unfortunately, campus sexual assault cases can be extremely 
difficult to resolve. They may involve differing accounts about what 
happened; few if any witnesses; little or no physical evidence; conduct 
and recollections impaired by alcohol or drug use; and, perhaps, 
understandably, a significant, but understandable, time lapse between 
the event and the filing of a report. The central issue in most of 
these cases is whether consent has been given, and this can be very 
difficult to determine based on the evidence available. For these and 
other reasons, law enforcement authorities often decline to pursue 
these cases through the criminal justice system, although campuses need 
to consider these situations in the context of their student conduct 
codes and disciplinary processes, independent of whether criminal 
charges are filed.

    It is important to remember that while sexual assault is a serious 
crime, colleges and universities are not courts. Campus disciplinary 
processes are designed to determine whether an individual has violated 
an institution's specific code of conduct--not whether someone is 
guilty of a crime.

    In addressing campus sexual assault, colleges and universities have 
three overarching goals. First, we want to support the survivor. 
Second, we want processes that are fair to both parties. And third, 
while we appreciate clarity about what is expected of us, we also need 
flexibility to address these difficult cases in a compassionate and 
effective way for the individuals involved and for the campus 
communities in which they arise. Today, our discussion will focus on 
this second goal--ensuring a fair process for both parties.

    Finally, when considering potential legislation on this topic, the 
long view is important. Sadly, the scourge of sexual assault is 
unlikely to be eradicated in this country or on our campuses anytime 
soon, although colleges and universities continue to strive toward that 
goal. Campuses will continue to adapt, evolve and improve their 
prevention and awareness programs, as well as their support services 
and disciplinary processes to address sexual assault when it does 
occur. We encourage policymakers to be cautious about locking 
requirements into statute that could limit institutions' ability to 
incorporate the latest understandings, research, and state of the art 
techniques designed to address this serious problem.
                   Campus Disciplinary Processes Vary
    It is critical to understand that campus disciplinary processes 
vary significantly from institution to institution, based on, among 
other things, the institution's mission, student populations, its 
culture, resources, and staffing of the campus. Although it can be 
difficult to generalize across more than 4,000 degree-granting 
institutions, processes generally fall into either a ``hearing'' or 
``non-hearing'' model, with significant variation within these models, 
between different institutions, and even across units within the same 
institution.

    Under a common version of a non-hearing model, a complainant 
reports sexual misconduct and indicates he or she would like to begin a 
formal disciplinary process. A trained sexual assault investigator is 
assigned to conduct a preliminary investigation to determine whether 
the allegations, if true, would be sufficient to constitute a violation 
of campus conduct standards. Assuming there is a sufficient basis, the 
investigator then notifies the complainant and respondent of the intent 
to proceed with a formal investigation and sets up time to interview 
the parties. The parties are interviewed, often multiple times, and are 
given the opportunity to identify evidence to pursue, witnesses to 
interview, and questions to ask the other party, in addition to 
information independently identified by the investigator. In deciding 
what questions to ask, the investigator relies not only upon clarifying 
questions suggested by the parties, but also on their own experience 
and prerogative to inquire thoroughly and seek clarification of 
inconsistencies, to promote fairness to both parties. This approach can 
effectively replicate the cross-examination approach used in some 
hearing-based models.

    The investigator then prepares a draft report that contains the 
parties' statement, witness statements and a summary of any other 
evidence gathered during the investigation. Both parties would be 
presented with the draft, given an opportunity to respond, challenge 
any evidence, suggest additional areas for investigation, or provide 
new evidence now available. After incorporating this feedback, the 
investigator finalizes the investigative report. If additional evidence 
has been gathered, the parties are again given an opportunity to 
provide a response, which is added to the final report, and the final 
report is then submitted to the decisionmaker.

    The decisionmaker may be a single individual or a panel. In a non-
hearing model, the decision maker reviews the report and determines 
whether the evidence supports a finding of responsibility. The decision 
maker may also direct the investigator to go back and collect 
additional information regarding an issue before making a final 
decision. The decision maker may agree or disagree with the 
investigator's conclusions or weighing of the evidence--however, the 
decisionmaker's finding must be based on the information in the report 
and parties' responses.

    Among non-hearing models, one model that has been the subject of 
recent discussion is the so-called ``single-investigator'' model. Most 
typically, this term is used to refer to a model where one individual, 
usually highly trained in investigating sexual assault cases, both 
investigates the matter and decides whether a violation of campus 
conduct rules has occurred.

    Like non-hearing models, hearing models also come in many 
variations. The investigative phase is similar to a non-hearing model. 
However, at the conclusion of the investigation, the summary report, 
investigative file, and responding statements of the parties will be 
presented for review to a hearing officer or a hearing panel. (If the 
facts are not in dispute, some institutions will allow the students to 
mutually agree to opt for a summary disposition, instead of a full 
hearing.) The information presented to the hearing panel will also be 
presented to the parties with sufficient time for them to prepare, and 
a hearing date will be set. At the hearing, the investigator often 
presents an oral summary of the investigation and is available to 
answer questions posed by the panel. The hearing panel will ask 
questions of the parties and witnesses based on the information 
collected during the investigation. While the parties may be in the 
same room for the hearing, an option is often available to enable them 
to be in separate rooms with one party permitted to watch the other 
party on a live video feed. While some institutions do allow for direct 
cross--examination by one party (or the party's representative) of the 
other party and any other witnesses, many do not. Where direct cross is 
not permitted, institutions often allow the parties to test the 
credibility of the other party and any witnesses by submitting written 
questions to a hearing panel, which reviews the questions to determine 
their appropriateness, and then poses them directly to the party or 
witness.

    Regardless of the model used, after a finding of responsibility or 
non-responsibility is made, institutional processes determine whether 
an appeal is permitted, and the grounds on which a party may appeal. 
When there is a finding of responsibility, institutions differ on 
whether the same decision maker determines the sanction or whether 
another campus official or panel determines the sanction.
            ``Fairness'' Requirements in Title IX and Clery
    Title IX is a civil rights law. It says, ``No person . . . shall, 
on the basis of sex, be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under any education 
program or activity receiving Federal financial assistance.'' While the 
statute does not specifically mention either ``sexual assault'' or 
``campus disciplinary processes,'' Title IX regulations, guidance, and 
case law determine institutions' obligations. In November 2018, the 
Department of Education proposed new regulations for Title IX, which 
have proven controversial, generating more than 100,000 comments in 
response. While there is much debate about what the final regulations 
should entail, there are important Title IX obligations that are well-
settled and not in dispute. Among them is that sexual harassment, which 
includes sexual assault, is a prohibited form of sex discrimination 
under Title IX. When allegations of sexual assault arise, institutions 
must take prompt action to eliminate the harassment, remedy its effect, 
and prevent its recurrence. It is also well-accepted law that when 
resolving allegations of sexual assault, campus disciplinary processes 
must be ``prompt and equitable.''

    The Clery Act is the part of the Higher Education Act designed 
specifically to address campus safety issues--it requires institutions 
to report crimes that occur on campus and certain related property and 
it requires institutions to have a number of policies and practices 
related to safety. Clery, through statute and regulation, also provides 
a framework of requirements designed to ensure fairness in campus 
disciplinary processes involving sexual assault. Clery requires, among 
other things, that campus disciplinary processes must:

        1. Provide for a ``prompt, fair and impartial investigation and 
        resolution.''

        2. Be conducted by officials who receive annual training on 
        issues related to sexual assault and how to conduct an 
        investigation and hearing process that ``protects the safety of 
        victims and promotes accountability.''

        3. Permit the complainant and the respondent to be accompanied 
        by an ``advisor of their choice'' during the institutional 
        disciplinary process, or any related meeting or proceeding.

        4. Be completed within reasonably prompt timeframes designated 
        by an institution's policy, including a process that allows for 
        extension for good cause with written notice to the complainant 
        and respondent.

        5. Be conducted in a manner consistent with institutional 
        polices and transparent to the parties.

        6. Include timely notice of meetings at which the complainant 
        or respondent, or both, may be present.

        7. Provide ``timely and equal access'' to ``any information 
        that will be used during informal and formal disciplinary 
        meetings and hearings.''

        8. Be ``conducted by officials who do not have a conflict of 
        interest or bias'' against either party.

    These requirements and others--the result of Violence Against Women 
Act (VAWA) amendments enacted in 2013--provide fundamental building 
blocks of what fair campus disciplinary processes should include. To 
the extent campus disciplinary processes did not include these features 
at the time of VAWA's passage (although most did), they have been 
readily incorporated. These elements are consistent with institutions' 
overarching goal of ensuring a fair process for both parties. They are 
also sufficiently high level as to give campuses the flexibility to 
meet these requirements in a way that makes sense for their 
institution.

    Given this existing framework, we do not believe that additional 
changes in this area are necessary. However, if Congress feels the need 
to do more, it could consider the following:

           Some of the Clery requirements I mentioned are 
        embodied in regulation and not in statute. If they are of 
        fundamental importance to Congress, and Congress would like to 
        insulate them from change through a regulatory process, 
        Congress could consider incorporating them into the statutory 
        language. For example, the regulatory requirement for ``timely 
        and equal access'' to information that will be used during the 
        campus disciplinary process could be explicitly stated in 
        statute.

           Congress could consider whether campuses should be 
        required to provide the parties notice of an intent to proceed 
        with a formal campus disciplinary process, and the allegation. 
        We believe most institutions already do this, but it could be 
        explicitly referenced in statute. If Congress wants to do this, 
        it should take care to ensure that the language is flexible to 
        accommodate cases where it is appropriate to do so. For 
        example, local police might ask the university to hold off 
        initiating a disciplinary process to avoid alerting the subject 
        of a criminal investigation. Similarly, the time when a victim 
        of dating/domestic violence comes forward to report is often 
        viewed as the most dangerous time for that individual--so there 
        would need to be a safety plan in place before notifying the 
        respondent of a formal disciplinary process.

           Another element of a fair disciplinary process is 
        the ability to respond to evidence gathered in order to 
        challenge adverse information, and to test the credibility of a 
        party or witnesses. In speaking with member institutions, 
        campuses do provide this opportunity, both in hearing and non-
        hearing disciplinary models. Congress could consider whether 
        there are ways to ensure campus disciplinary processes reflect 
        this principle, while again avoiding the pitfalls of overly-
        prescriptive, one-size-fits-all requirements. While ACE would 
        be very concerned about a requirement that all institutions 
        provide for direct cross-examination in a live hearing setting, 
        flexible language that allows one party to propose questions to 
        be asked of the other party--through an investigator, or some 
        other process--could be considered and would be consistent with 
        many existing institutional practices.
                 General Observations for Policymakers
    In determining whether these or other changes are necessary or 
appropriate, we urge Congress to proceed cautiously, keeping the 
following observations in mind:

        1. Colleges and universities are not courts, nor should they 
        be. We do not have the resources, personnel, or expertise of 
        the criminal and civil justice system. We do not have subpoena 
        powers, rules of evidence, or the ability to hold an attorney 
        in contempt. Efforts that attempt to turn us into quasi-courts, 
        or to impose court-like procedures and terminology, are 
        misguided and likely to result in unintended consequences.

        For example, the recent Title IX NPRM would require all 
        institutions to provide a live hearing with direct cross-
        examination by an advisor of a party's choice. Colleges and 
        universities have grave concerns with this proposal, which 
        could undermine efforts to encourage survivors to come forward, 
        as well as efforts to be fair to both parties, turn our 
        disciplinary processes into courtrooms, and create a cottage 
        industry of legal advisors. The use of direct cross-
        examination, and the exclusion of statements from any party who 
        is unwilling to be subject to direct cross, is likely to result 
        in a highly adversarial process where attorney advisors attempt 
        to break down the survivor, the accused, or witnesses to the 
        events--in an effort to have their statements excluded from 
        consideration. This proposal also raises equity concerns, when 
        one student has the financial resources to hire an expensive 
        and aggressive litigator, and the other student does not. If a 
        respondent is facing a possible parallel criminal proceeding, a 
        respondent's lawyer may advise the student not to participate 
        in a live hearing with direct cross-examination, even though 
        the respondent's lawyer would allow the student to participate 
        in non-live hearing process. If a live hearing is required, the 
        respondent's lack of participation is more likely to result in 
        a finding of responsibility.

        There are many ways campuses allow parties to respond to 
        allegations, challenge evidence, seek clarification, and test 
        credibility of witnesses that do not involve a live hearing and 
        do not require direct cross-examination. There are many reasons 
        why a particular survivor or accused student might not 
        ``present'' well in a live setting: cultural differences, 
        implicit bias, the effects of trauma or extreme stress, a low-
        income student may not have the same level of support as a 
        wealthier student to prepare for a live hearing format, 
        differences in age and verbal skills of the participants, etc. 
        There may be a benefit to giving students additional time to 
        process a question and form their response outside of a live-
        hearing format. An assumption that the search for the truth of 
        the matter in a disciplinary process can be achieved only 
        through live, face-to face observation of the parties under 
        direct cross-examination is a flawed one.

        As another example, the NPRM, and some legislative proposals, 
        have inappropriately imported the phrase ``due process'' when 
        attempting to describe the need for fair processes for both 
        parties.

        ``Due process'' is a term most commonly associated with 
        protections provided by law enforcement and the judicial system 
        for criminal defendants where an accused individual's life or 
        liberty is at risk. Indeed, Black's Law Dictionary defines 
        ``due process'' in the context of criminal law: ``Embodied in 
        the due process concept are the basic rights of a defendant in 
        criminal proceedings and the requisites for a fair trial.'' 
        While public institutions are required to provide certain due 
        process protections under the Fourteenth Amendment to the U.S. 
        Constitution, private institutions are not, and the type and 
        amount of process required of public institutions in these 
        situations is far less than the process due in a criminal 
        trial. Campus disciplinary hearings are neither ``criminal 
        proceedings'' nor ``trials.''

        Words matter. The use of the phrase ``due process'' in federal 
        law contributes to a faulty perception that federal criminal 
        trial-like constitutional due process protections must be 
        provided on all campuses, public and private, for sexual 
        assault proceedings, and is likely to result in substantially 
        more civil litigation. We strongly support a process that is 
        fair to both respondents and complainants, that is carefully 
        designed to be even-handed, and that does not disadvantage 
        either party. However, when incorporating this concept in 
        federal statute or regulation, we recommend using ``fair 
        process'' or ``procedural fairness'' instead.

        2. Colleges and universities are highly diverse--in 
        institutional-type, in the populations they serve, and in their 
        educational missions. Not all institutions are residential. Not 
        all have athletic programs. Some are small, faith-based 
        institutions. Some are graduate-level only. Some serve adult 
        students who commute. The standards institutions set for their 
        campus communities, as reflected through their policies and 
        codes of conduct also vary significantly, as do their campus 
        disciplinary processes. While it is perfectly appropriate for 
        Congress to set the guardrails about what a fair process 
        entails, it should give institutions flexibility in how they 
        meet this goal. Highly prescriptive, one-size-fits--all federal 
        requirements are unlikely to work well and may actually 
        undermine efforts to be fair to both parties. The problems I 
        described regarding a live hearing with a direct cross-
        examination requirement for all institutions is just one 
        illustration of why this rigid approach is both unnecessary and 
        unwise. Campuses have many different processes that can be used 
        to fairly determine whether a student is responsible for a 
        conduct code violation. New hearing models and state of the art 
        techniques may arise that will provide even better processes, 
        which is another reason policy makers should avoid dictating a 
        particular process.

        3. Be aware of the many different sources of obligations on 
        institutions in this area--in addition to the federal laws 
        already discussed, there are other federal laws, state and 
        local laws, judicial decisions regarding process requirements, 
        and institutional policies. In one state, at least four pieces 
        of campus sexual assault-related legislation are currently 
        pending--state legislation on this topic has been passed or is 
        pending in many others. Adding more federal requirements on top 
        of the multitude of existing requirements is likely to result 
        in confusing, overlapping, and potentially conflicting 
        obligations. There has been significant churn in this area of 
        the law, which makes it difficult for even the most-committed 
        and well-resourced campuses to keep up with various 
        requirements. Remember that changes will require revision of 
        policies and practices and new trainings for staff. As one 
        Title IX official for a major university campus described it, 
        ``No matter how knowledgeable about this area you are, no 
        matter how hard you work, no matter how much you are committed 
        and how much you care, it is hard to know if you are meeting 
        all the different legal requirements.'' If this is challenging 
        for a major university, imagine what it is like for small, 
        less-resourced institutions to sort out all the various 
        requirements, particularly when the majority of institutions in 
        this country do not have a dedicated general counsel on staff.

        4. When considering policy in this area, institutions must have 
        the ability to address conduct that violates their community 
        standards, even if it occurs ``off-campus'' or otherwise falls 
        outside what the law requires campuses to do. This was another 
        concern raised by the recent NPRM, which is unclear on this 
        point and appears to force institutions to ``dismiss'' a 
        complaint that falls outside the Title IX definition, or 
        outside an ``education program or activity,'' even if that 
        conduct is antithetical to campus values and prohibited under 
        our conduct codes. While the preamble of the NPRM suggests that 
        institutions would have the discretion to pursue these cases, 
        preamble language does not have the force of law. Given the 
        fundamental importance of this issue to colleges, campuses must 
        have clear and unambiguous authority to pursue cases beyond 
        what the law requires.

        For example, an institution receives a report of a sexual 
        assault involving two students that occurs in an off-campus 
        house owned by a fraternity, where that fraternity is not 
        recognized or sponsored by the institution. It is unclear 
        whether under this scenario, the location of the assault would 
        place it outside the NPRM's definition of an ``education 
        program or activity.'' But regardless, the alleged conduct 
        would be a serious violation of the institution's code of 
        conduct and one that the school would feel compelled to address 
        in order to maintain a safe campus. Similarly, a university 
        learns that a student has been accused of sexually assaulting 
        another student while both are home on summer break.

        While far removed from the university's programs, the campus 
        general counsels I speak with tell me they would absolutely 
        address this conduct through a disciplinary process, especially 
        given that the students are likely to encounter one another 
        when they return to campus. Many campus codes explicitly state 
        that their expectations for student conduct apply regardless of 
        whether the conduct occurs on or off campus. This is also 
        important from a risk management perspective--if an institution 
        has reason to believe a student poses a safety risk to other 
        students, it needs to be able to investigate, assess, and, if 
        necessary, discipline and remove that student from its 
        community.

        We believe that when sexual misconduct violates campus 
        community standards, institutions must continue to have the 
        right to pursue these matters through their disciplinary 
        processes, regardless of whether the incident falls within the 
        scope of Title IX. The campus general counsels I have spoken 
        with tell me they absolutely want the ability to pursue these 
        cases, and federal law should make clear that they may do so.

        5. Finally, while we appreciate the focus of today's hearing is 
        on how to improve campus disciplinary processes, we also 
        encourage the Committee to consider ways the federal government 
        can help support campuses in their prevention efforts. No 
        matter how effective and fair our campus disciplinary processes 
        are, our ultimate goal is to prevent sexual assault from 
        occurring in the first place.

        The Clery Act requires institutions to provide primary and 
        ongoing sexual assault education and prevention programs for 
        students and employees. Institutions have invested significant 
        resources in expanded and innovative programming, with 
        bystander prevention and consent education at the core of these 
        efforts. I would like to highlight just a few of the efforts 
        currently underway:

        `  NASPA--Student Affairs Administrators in Higher Education's 
        ``Culture of Respect'' initiative builds the capacity of 
        institutions to end sexual violence through ongoing, expansive 
        organizational change. NASPA has created a ``prevention 
        programming matrix'' which provides a curated list of more than 
        30 different theory-driven and evidence-based sexual violence 
        prevention programs to help institutions identify the program 
        that best meets their needs.

        `  The University of Washington incorporates a program called 
        ``Green Dot,'' which is popular on many campuses. The Green Dot 
        strategy aims to shift campus culture by tapping the power of 
        peer influencers (campus leaders, student-athletes) to increase 
        proactive, preventative behavior. Every choice to be proactive 
        as a bystander is categorized as a ``new behavior'' and thus a 
        ``Green Dot.'' Individual decisions (green dots) group together 
        to create larger change.

        `  Vanderbilt University employs a variety of prevention 
        strategies, targeted specifically to the needs of its 
        community. For example, after survey data indicated that a 
        significant number of students had experienced dating violence 
        prior to coming to college, Vanderbilt enhanced its dating 
        violence prevention programming by adding additional modules on 
        this topic. Vanderbilt's programming also includes a theater-
        based program called True Life, which takes place during 
        students' freshman orientation week. Through a series of skits, 
        performed by Vanderbilt students and based on actual situations 
        experienced by the students, the program addresses topics such 
        as sexual assault, dating violence, and substance abuse, among 
        others.

    While many promising practices have emerged, additional federal 
support, possibly through grants, could help institutions evaluate the 
effectiveness of various approaches, share and scale best practices, 
and tailor programming to the particular needs of an institution. 
Efforts to educate students about healthy relationships and respect for 
others while still in high school and before they come to college is 
another piece of the prevention puzzle. While colleges and universities 
continue to ramp up efforts in this area, there is still work to be 
done and additional federal resources to support these efforts would be 
welcome.
                               Conclusion
    Thank you for inviting me to testify on this important topic. I 
would be happy to answer any questions you have.

    On behalf of:

    ACPA--College Student Educators International

    American Association of Collegiate Registrars and Admissions 
Officers

    American Association of Community Colleges

    American Association of State Colleges and Universities

    American College Health Association

    American Dental Education Association

    American Indian Higher Education Consortium

    APPA, Leadership in Educational Facilities

    Association of American Colleges & Universities

    Association of American Medical Colleges

    Association of American Universities

    Association of Catholic Colleges and Universities

    Association of Community College Trustees

    Association of Governing Boards of Universities and Colleges

    Association of Jesuit Colleges and Universities

    Association of Public and Land-grant Universities

    Association of Research Libraries

    College and University Professional Association for Human Resources

    Consortium of Universities of the Washington Metropolitan Area

    Council for Advancement and Support of Education

    Council for Christian Colleges & Universities

    Council for Higher Education Accreditation

    Council of Graduate Schools

    Council of Independent Colleges

    EDUCAUSE

    Hispanic Association of Colleges and Universities

    NAFSA: Association of International Educators

    NASPA - Students Affairs Administrators in Higher Education

    National Association of College and University Business Officers

    National Association of Independent Colleges and Universities
                                 ______
                                 
                   [summary statement of anne meehan]
    Campus sexual assault is one of the most important and serious 
issues facing colleges and universities today. Federal law requires 
colleges and universities to address sexual assault on their campuses, 
and institutions take complying with these, and all applicable laws, 
very seriously. Institutions are committed to maintaining safe and 
supportive campus environments that allow students to benefit from the 
widest possible array of educational opportunities.

    Unfortunately, campus sexual assault cases can be extremely 
difficult to resolve. They may involve differing accounts about what 
happened; few if any witnesses; little or no physical evidence; conduct 
and recollections impaired by alcohol or drug use; and, perhaps, 
understandably, a time lapse between the event and the filing of a 
report. The central issue often is whether consent has been given, and 
this can be very difficult to determine. For these and other reasons, 
law enforcement authorities often decline to pursue these cases. But 
campuses must address them through their disciplinary processes, 
independent of whether criminal charges are filed.

    In our efforts to address campus sexual assault, colleges and 
universities have three overarching goals. First, we want to support 
the survivor. Second, we want processes that are fair to both parties. 
And third, while clarity of federal expectations is helpful, we also 
need flexibility to address these difficult cases compassionately and 
effectively, and in a way that makes sense for a particular campus.

    Campus disciplinary processes vary significantly from institution 
to institution and even within units of the same institutions, based 
on, among other things, the institution's mission, size, student 
population, resources, and community values. In general, these 
processes can be grouped into ``hearing'' and ``non-hearing'' models. 
But regardless of the specific campus disciplinary process used, it 
must be fair -both Title IX and the Clery Act require it.

    Clery statute and regulations set out the basic requirements of a 
fair process. Among them are that campus disciplinary processes must: 
(1) be conducted by officials who receive training on sexual assault; 
(2) allow the parties to have an advisor of their choosing present; (3) 
be conducted by individuals who are free from conflicts of interest or 
bias against the parties; and (4) provide timely access to available 
evidence. Fundamentally, we think the Clery ``fairness'' framework is a 
good one. As Congress considers whether to build on this framework, I 
recommend keeping the following five observations in mind:

        1. Colleges and universities are not courts, nor should they 
        be. We do not have the resources, personnel, or expertise of 
        the criminal and civil justice system. Efforts that attempt to 
        impose court-like procedures are misguided and likely to create 
        unintended consequences. The recent Title IX NPRM's requirement 
        that all institutions provide a live hearing with direct cross-
        examination is one such example.

        2. Campuses and their disciplinary processes are diverse--
        highly prescriptive, one-size fits all requirements are 
        unlikely to work across all campuses and may undermine the 
        goals of supporting survivors and being fair to both parties.

        3. Institutions are subject to a variety of federal and state 
        laws on this topic, as well judicial decisions and 
        institutional policies. When adding new requirements to the 
        law, be mindful not to create overlapping, confusing, and 
        possibly conflicting obligations.

        4. Preserve institutions' ability to address sexual assault 
        affecting their community, even if it is beyond what they are 
        required to address under the law. For example, campuses want 
        and need to be able to address sexual assault even if it occurs 
        ``off-campus.''

        5. As important as it is to ensure fair disciplinary processes, 
        we should not forget that our ultimate goal is to prevent 
        sexual assault from occurring in the first place. Campuses have 
        many prevention efforts underway and additional federal support 
        for these efforts would be welcome.

                                 ______
                                 
    The Chairman. Thank you, Ms. Meehan.
    Dr. Howard, welcome.

STATEMENT OF JEFF HOWARD, ASSOCIATE VICE PRESIDENT FOR STUDENT 
 LIFE AND ENROLLMENT, EAST TENNESSEE STATE UNIVERSITY, JOHNSON 
                            CITY, TN

    Dr. Howard. Thank you, Chairman Alexander and Ranking 
Member Murray. I appreciate the opportunity to be here today to 
give a little bit of information about one institution's 
perspective on responding to sexual misconduct and things we do 
to support and provide resource during that process. Over the 
past two decades, I have served at three different institutions 
as the Dean of Students of the University of Virginia's College 
at Wise, as the Dean of Students at East Tennessee State 
University, which is also my alma mater where I currently 
serve.
    At ETSU, we strive to maintain a community of care that is 
embedded with a commitment to a fair and equitable process for 
all parties involved in any student conduct matter. We have 
three separate and distinct steps for any sexual misconduct 
review. Those include an intake, an investigation, and a 
hearing. The three steps and their staff members involved in 
each step are kept distinctly separate. At the intake, a 
trained staff member meets with the complainant and the 
respondent individually. At this meeting, we share options and 
resources and information the student needs to make informed 
decisions. The staff member completing the intake will serve as 
a resource to the student throughout the investigation and 
during any contact hearing that might follow.
    An important part of the intake is that ETSU student is 
made aware of interim support measures that can be taken to 
assist in supporting their health and well-being and their 
continued enrollment. Those can include counseling, health 
services, changes in housing, class, or on-campus work 
assignments. In all but the most severe sexual assault cases, 
the complainant and respondent will be offered the opportunity 
to meet with the trained mediator to reach a mutually agreed 
conclusion to the matter in lieu of an investigation. That 
mediation process is predicated on a restorative justice model 
and is only implemented when both parties agree to do so. 
Should an investigation proceed, then two trained investigators 
are assigned to review the complaint the complainant. The 
complainant and respondent are given the opportunity to supply 
investigators with a written statement and any additional 
information they wish to provide. ETSU investigators receive 
annual training that is comprehensive and includes information 
on trauma-informed care. The investigators offer an in-person 
meeting to the complaint, to the respondent, and to any 
witnesses, along with an advisor of each person's choosing. 
Following that interview, the investigators provide the 
individual with a written account of the meeting notes for 
review.
    In addition to interviews, the investigators may review 
other information that is provided or which they request, which 
could include their ID card usage, phone or text messages, 
social media postings, video camera footage, etc. Following 
completion of the investigation, a report is submitted for 
review through our Title IX coordinator or university counsel, 
and finally for review and adoption by our university 
President. It is then shared in its entirety with the 
complainant and respondent, and both parties have the 
opportunity to review and to appeal the investigators' 
findings. Based on the final recommendations of the report and 
following any appeals, the next step will mean one of two 
outcomes.
    Based on a preponderance of evidence standard, a standard 
that we use in all student conduct matters, the investigators 
find that a policy was or was not violated. If no policy 
violation was found, the matter is concluded. If a policy 
violation was found, then the respondent will face a hearing 
and charges of the institutional disciplinary rules, commonly 
called the code of conduct. At a hearing where the code of 
conduct charges are reviewed--and I will mention our code of 
conduct is in effect on and off-campus for members of our 
community and that it spells out expectations of members of the 
community for their own behaviors and governs their 
interactions with each other. The code also outlines due 
process rights, the membership of our board, possible 
violations, as well as sanctions.
    As an institution of higher education, it is important to 
note, the goal of the code of conduct and student conduct 
process is to be educational in nature. Those involved in such 
processes are stills students and members of our community. Out 
initial aim is to change the behavior and hold students 
accountable for their actions. However, that outcome might need 
to include suspension or expulsion from the university 
community, such sanctions that are never taken lightly. Charges 
for violating the code of conduct are placed by our Dean of 
Students Office and a hearing is scheduled. The parties are 
reminded of their due process rights. Details such a screening 
the complainant responded from viewing one another in the 
hearing room is arranged in advance.
    Both parties can see and hear the board and witnesses and 
are able to directly question each other or to offer questions 
through the board. Many of the questions is submitted verbally 
or in writing to the board chair, and the response is given in 
a light manner. Each case is different as is each party's 
comfort level with questioning or answering one another 
directly. The board and the board chair has much leeway to make 
sure that all parties are able to actively participate in the 
manner in which they are most comfortable.
    If the charges are of such a nature that suspension or 
expulsion are possible sanctions, then the respondent is also 
offered an option to choose the Tennessee UAPA, or Uniform 
Administrative Procedures Act, which Senator Alexander 
mentioned earlier. We do not find that the UAPA is selected 
often, and the overwhelming majority of cases proceed with the 
university judicial board. The board receives ongoing training 
on student conduct, due process, as well as sexual misconduct 
matters.
    We annually review and continually review policy and 
process to ensure the individual rights, a fair process, and 
institutional compliance with state, Federal law, and such 
things as the recent decisions by the Sixth Circuit of the U.S. 
Court of Appeals. I will mention briefly because I realize I am 
running out of time, we offer a tremendous amount of 
educational prevention and support resources on our campus.
    In addition to maintaining a strong commitment to student 
rights and institutional compliance in an equitable and fair 
process, ETSU works daily to provide strong education 
prevention and support efforts. We have structures in place to 
offer online training to nearly 3,000 new students each year--
--
    The Chairman. You need to wrap up your time.
    Dr. Howard. I sure will. We also offer sexual assault nurse 
examiner programming, a counseling center that offers access to 
counselors 24 hours a day, and various other Title IX programs 
that happen throughout the year. I thank the Committee for your 
staff to share a brief overview of one institution's processes 
and efforts related to education and support.
    Thank you.
    [The prepared statement of Dr. Howard follows:]
                   prepared statement of jeff howard
    Over the past two decades, I served students at three 
institutions--Carson Newman University in Tennessee, The University of 
Virginia's College at Wise, and at my own alma mater, East Tennessee 
State University (ETSU) in Johnson City, Tennessee.

    I serve ETSU as the Associate Vice President for Student Life and 
Enrollment under Vice President, Dr. Joe Sherlin, who leads the 
Division and its 25 departments with a daily mission of promoting 
student success. As our President, Dr. Brian Noland, reminds us often, 
the institution was founded over 108 years ago with a singular purpose, 
to improve the lives of the people of the region.

    Through our processes and campus partnerships, we strive to 
maintain a community of care on our campus. Embedded in that community 
is a commitment to a fair and equitable process to all parties involved 
in any student conduct matter.

    We have three separate and distinct steps for any sexual harassment 
or misconduct review. Those include an intake, investigation, and 
hearing. The three steps and those staff members involved in each step 
are kept distinctively separate.
                                 Intake
    At the initial intake, a trained staff member meets with the 
complainant and the respondent individually. At this meeting, options, 
resources, and information each student needs to make informed 
decisions is shared. The staff member completing the intake will serve 
as a resource to the student throughout the process of an investigation 
and possible conduct hearing.

    An important part of the intake is that each student is made aware 
of interim support measures that can be taken to assist in supporting 
their health, well-being, and continued enrollment. Those can include 
counseling, changing housing, class, and on campus work assignments.

    In all but the most severe sexual assault cases, the complainant 
and respondent will be offered the opportunity to meet with a trained 
mediator to reach a mutually agreed conclusion to the matter in lieu of 
an investigation. That mediation process is predicated on a restorative 
justice model and is only implemented with both parties agree to do so.

    (See Appendix A--Title IX Intake Form)
                             Investigation
    If mediation is not an option, then two trained investigators are 
assigned to review the complaint. The complainant and respondent are 
given the opportunity to supply investigators with a written statement 
and any additional information they wish to provide.

    ETSU has two full time trained investigators in our Compliance 
Office and an additional pool of fifteen trained professional staff 
members who assist with student complaints. Training is comprehensive, 
conducted annually, and includes information on trauma informed care.

    The investigators offer in person meetings to the complainant, 
respondent, and any witnesses along with an advisor of their choosing.

    Following the interview, the investigators will provide the 
individual with a written account of the meeting notes for review. In 
addition to interviews, the investigators may review other information 
provided or requested as part of the review that can be as varied as 
police reports, phone and text messages, student ID card usage, social 
media postings, video or security camera footage, and other evidence 
that may be relevant to their review.

    Following completion of the investigation, a report is submitted 
for review through the Title IX Coordinator, University Counsel, and 
finally for review and adoption by the University President before 
being shared with the complainant and respondent. Both parties have the 
opportunity to appeal the investigators' findings with the President.

    Based on the final recommendation of the report and following any 
appeals, the next step will mean one of two outcomes. Based on a 
preponderance of the evidence standard, the investigators find that 
University policy was or was not violated. If no policy violation was 
found, the matter is concluded. If a policy violation was found then 
the respondent will face a hearing and charges of the Institutional 
Disciplinary Rules, commonly called the Code of Conduct.

    (See Appendix B--Investigation Flow Chart)
                                Hearing
    The Code of Conduct is in effect on and off campus. The Code spells 
out expectations of members of the ETSU community for their own 
behaviors and governs their interactions with one another.
    The Code outlines due process rights, board membership, possible 
violations or offenses, as well as possible sanctions. As an 
institution of higher education, it is important to note the goal of 
the Code of Conduct and Student Conduct process is to be educational in 
nature. Those involved in such process are still students and members 
of our community. Our initial aim is to change the behavior and hold 
students accountable for their actions. However, that outcome might 
need to include suspension or expulsion from the University community. 
Such sanctions are never considered lightly.

    Charges for violating the Code of Conduct are placed by the Dean of 
Students Office and a hearing is scheduled with the University Judicial 
Board. The parties are reminded of their due process rights including 
ample and advanced notice of when and where the hearing will be held, 
copies of all materials that will be provided and reviewed by the 
Board, the ability to question one another and to call and question 
witnesses in a live hearing, and the ability to have an advisor of 
their own choosing. Details such as screening the complainant and 
respondent from viewing one another in the hearing room are arranged in 
advance.

    Both parties can see and hear the board and witnesses and are able 
to directly question each person or offer questions through the board. 
Meaning the question is submitted verbally or in writing to the board 
chair and the response is given in a like manner. Each case is 
different as is each parties' comfort level with questioning/answering 
one another directly. The Board and the Board chair has leeway to make 
sure that all parties are able to actively participate in the manner in 
which they are most comfortable.

    If the charges are of such a nature that suspension or expulsion 
are possible sanctions, then the respondent is also offered the option 
of selecting a Tennessee UAPA.

    The Uniform Administrative Procedures Act (UAPA) from Tennessee 
Code Annotated Title 4 Chapter 5 is a more legalistic and lengthy 
process involving legal representation and an administrative law judge. 
We do not find that the UAPA is selected often and the overwhelming 
majority of cases proceed with the University Judicial Board. That 
Board is comprised of faculty, staff, and students who each receive 
ongoing training on student conduct, due process, as well as sexual 
misconduct matters.

    ETSU continually reviews policy and processes to ensure individual 
rights, a fair process, and institutional compliance per state and 
federal law and decisions by the 6th Circuit of the US Court of 
Appeals.
             Educational, Prevention, and Support Resources
    In addition to maintaining a strong commitment to student rights 
and institutional compliance in an equitable and fair process, ETSU 
works daily to provide strong education, prevention, and support 
efforts and resources to the campus community.

    The key to success within these efforts and been campus 
collaboration and partnerships.

    ETSU has created certain structure's to support our efforts 
including the Sexual Misconduct Leadership Team (SMLT) and a Title IX 
Committee. Each group meets quarterly.

    The Division of Student Life and Enrollment manages the Violence 
Free ETSU website to serve as an online, one stop shop resource for 
students. Online training for new students is coordinated by the 
Division. In 2017-2018 there were 2780 undergraduate, graduate, and 
professional students who completed the Sexual Assault Prevention 
program.

    Educational efforts and resources is embedded in the online 
orientation (LAUNCH) and on ground new student orientation for students 
and for their parents, family, and guests. During our extended 
orientation Preview experience peer education and dialogue follows a 
performance of the Risque Business skit.

    We continually offer passive informational posters about resources 
(BucsCARE) and bystander intervention tips (Buccaneer Bystander 
Intervention and Let's Be Clear campaigns) throughout both our physical 
campus spaces and in the virtual world.

    Major programming efforts are coordinated by the Counseling Center 
and their Outreach and Advocacy, Sexuality Information for Students 
(OASIS) component. This includes Take Back the Night events, Walk a 
Mile in Her Shoes, and Sober Sex education efforts.

    BucsPress2 is a service coordinated by the Counseling Center and is 
available 24 hours a day, seven days a week. A student may call to talk 
to a counselor at any time.

    Housing and Residence Life offers a residential curriculum that 
includes a focus on personal and community safety, healthy 
relationships, bystander affects, and sexual assault prevention.

    Public Safety coordinates SafeVoyage campus escort service and Rape 
Aggression Defense (RAD) training which provides a 12-hour program 
teaching women realistic defenses and building confidence.

    The College of Nursing operates an on campus Sexual Assault Nurse 
Examiner (SANE) program in the University Health Center. One of a 
handful of on campus SANE programs in the country.

    The ETSU Office of Professional Development hosts an annual, 
regional conference entitled ``Escape from Rape: A Cultural Change'' 
which brings together campus and community partners to share 
information and bring awareness to issues involving sexual assault and 
community resources.

    In person Title IX trainings are hosted on campus each year 
including by the Basler Center for Physical Activity, Intercollegiate 
Athletics, Fraternity and Sorority Life as part of Greek 101 training 
for all new members, and the School of Graduate Studies as part of the 
graduate student orientation.

    These are some but not all of the programming and resources 
available to ETSU's faculty, staff, and students.
                                 ______
                                 
                   [summary statement of jeff howard]
    Over the past two decades, I served students at three 
institutions--Carson Newman University in Tennessee, The University of 
Virginia's College at Wise, and at my own alma mater, East Tennessee 
State University (ETSU) in Johnson City, Tennessee.

    I serve ETSU as the Associate Vice President for Student Life and 
Enrollment under Vice President, Dr. Joe Sherlin, who leads the 
Division and its 25 departments with a daily mission of promoting 
student success. As our President, Dr. Brian Noland, reminds us often, 
the institution was founded over 108 years ago with a singular purpose, 
to improve the lives of the people of the region.

    Through our processes and campus partnerships, we strive to 
maintain a community of care on our campus. Embedded in that community 
is a commitment to a fair and equitable process to all parties involved 
in any student conduct matter.

    We have three separate and distinct steps for any sexual harassment 
or misconduct review. Those include an intake, investigation, and 
hearing. The three steps and those staff members involved in each step 
are kept distinctively separate.
                                 Intake
    At the initial intake, a trained staff member meets with the 
complainant and the respondent individually. At this meeting, options, 
resources, and information each student needs to make informed 
decisions is shared. The staff member completing the intake will serve 
as a resource to the student throughout the process of an investigation 
and possible conduct hearing.

    An important part of the intake is that each student is made aware 
of interim support measures that can be taken to assist in supporting 
their health, well-being, and continued enrollment. Those can include 
counseling, changing housing, class, and on campus work assignments.

    In all but the most severe sexual assault cases, the complainant 
and respondent will be offered the opportunity to meet with a trained 
mediator to reach a mutually agreed conclusion to the matter in lieu of 
an investigation. That mediation process is predicated on a restorative 
justice model and is only implemented with both parties agree to do so.

    (See Appendix A--Title IX Intake Form)
                             Investigation
    If mediation is not an option, then two trained investigators are 
assigned to review the complaint. The complainant and respondent are 
given the opportunity to supply investigators with a written statement 
and any additional information they wish to provide.

    ETSU has two full time trained investigators in our Compliance 
Office and an additional pool of fifteen trained professional staff 
members who assist with student complaints. Training is comprehensive, 
conducted annually, and includes information on trauma informed care.

    The investigators offer in person meetings to the complainant, 
respondent, and any witnesses along with an advisor of their choosing.

    Following the interview, the investigators will provide the 
individual with a written account of the meeting notes for review. In 
addition to interviews, the investigators may review other information 
provided or requested as part of the review that can be as varied as 
police reports, phone and text messages, student ID card usage, social 
media postings, video or security camera footage, and other evidence 
that may be relevant to their review.

    Following completion of the investigation, a report is submitted 
for review through the Title IX Coordinator, University Counsel, and 
finally for review and adoption by the University President before 
being shared with the complainant and respondent. Both parties have the 
opportunity to appeal the investigators' findings with the President.

    Based on the final recommendation of the report and following any 
appeals, the next step will mean one of two outcomes. Based on a 
preponderance of the evidence standard, the investigators find that 
University policy was or was not violated. If no policy violation was 
found, the matter is concluded. If a policy violation was found then 
the respondent will face a hearing and charges of the Institutional 
Disciplinary Rules, commonly called the Code of Conduct.

    (See Appendix B--Investigation Flow Chart)
                                Hearing
    The Code of Conduct is in effect on and off campus. The Code spells 
out expectations of members of the ETSU community for their own 
behaviors and governs their interactions with one another.

    The Code outlines due process rights, board membership, possible 
violations or offenses, as well as possible sanctions. As an 
institution of higher education, it is important to note the goal of 
the Code of Conduct and Student Conduct process is to be educational in 
nature. Those involved in such process are still students and members 
of our community. Our initial aim is to change the behavior and hold 
students accountable for their actions. However, that outcome might 
need to include suspension or expulsion from the University community. 
Such sanctions are never considered lightly.

    Charges for violating the Code of Conduct are placed by the Dean of 
Students Office and a hearing is scheduled with the University Judicial 
Board. The parties are reminded of their due process rights including 
ample and advanced notice of when and where the hearing will be held, 
copies of all materials that will be provided and reviewed by the 
Board, the ability to question one another and to call and question 
witnesses in a live hearing, and the ability to have an advisor of 
their own choosing. Details such as screening the complainant and 
respondent from viewing one another in the hearing room are arranged in 
advance.

    Both parties can see and hear the board and witnesses and are able 
to directly question each person or offer questions through the board. 
Meaning the question is submitted verbally or in writing to the board 
chair and the response is given in a like manner. Each case is 
different as is each parties' comfort level with questioning/answering 
one another directly. The Board and the Board chair has leeway to make 
sure that all parties are able to actively participate in the manner in 
which they are most comfortable.

    If the charges are of such a nature that suspension or expulsion 
are possible sanctions, then the respondent is also offered the option 
of selecting a Tennessee UAPA.

    The Uniform Administrative Procedures Act (UAPA) from Tennessee 
Code Annotated Title 4 Chapter 5 is a more legalistic and lengthy 
process involving legal representation and an administrative law judge. 
We do not find that the UAPA is selected often and the overwhelming 
majority of cases proceed with the University Judicial Board. That 
Board is comprised of faculty, staff, and students who each receive 
ongoing training on student conduct, due process, as well as sexual 
misconduct matters.

    ETSU continually reviews policy and processes to ensure individual 
rights, a fair process, and institutional compliance per state and 
federal law and decisions by the 6th Circuit of the US Court of 
Appeals.
             Educational, Prevention, and Support Resources
    In addition to maintaining a strong commitment to student rights 
and institutional compliance in an equitable and fair process, ETSU 
works daily to provide strong education, prevention, and support 
efforts and resources to the campus community.

    The key to success within these efforts and been campus 
collaboration and partnerships.

    ETSU has created certain structure's to support our efforts 
including the Sexual Misconduct Leadership Team (SMLT) and a Title IX 
Committee. Each group meets quarterly.

    The Division of Student Life and Enrollment manages the Violence 
Free ETSU website to serve as an online, one stop shop resource for 
students. Online training for new students is coordinated by the 
Division. In 2017-2018 there were 2780 undergraduate, graduate, and 
professional students who completed the Sexual Assault Prevention 
program.

    Educational efforts and resources is embedded in the online 
orientation (LAUNCH) and on ground new student orientation for students 
and for their parents, family, and guests. During our extended 
orientation Preview experience peer education and dialogue follows a 
performance of the Risque Business skit.

    We continually offer passive informational posters about resources 
(BucsCARE) and bystander intervention tips (Buccaneer Bystander 
Intervention and Let's Be Clear campaigns) throughout both our physical 
campus spaces and in the virtual world.

    Major programming efforts are coordinated by the Counseling Center 
and their Outreach and Advocacy, Sexuality Information for Students 
(OASIS) component. This includes Take Back the Night events, Walk a 
Mile in Her Shoes, and Sober Sex education efforts.

    BucsPress2 is a service coordinated by the Counseling Center and is 
available 24 hours a day, seven days a week. A student may call to talk 
to a counselor at any time.

    Housing and Residence Life offers a residential curriculum that 
includes a focus on personal and community safety, healthy 
relationships, bystander affects, and sexual assault prevention.

    Public Safety coordinates SafeVoyage campus escort service and Rape 
Aggression Defense (RAD) training which provides a 12-hour program 
teaching women realistic defenses and building confidence.

    The College of Nursing operates an on campus Sexual Assault Nurse 
Examiner (SANE) program in the University Health Center. One of a 
handful of on campus SANE programs in the country.

    The ETSU Office of Professional Development hosts an annual, 
regional conference entitled ``Escape from Rape: A Cultural Change'' 
which brings together campus and community partners to share 
information and bring awareness to issues involving sexual assault and 
community resources.

    In person Title IX trainings are hosted on campus each year 
including by the Basler Center for Physical Activity, Intercollegiate 
Athletics, Fraternity and Sorority Life as part of Greek 101 training 
for all new members, and the School of Graduate Studies as part of the 
graduate student orientation.

    These are some but not all of the programming and resources 
available to ETSU's faculty, staff, and students.
                                 ______
                                 
    The Chairman. Thank you very much to the witnesses for 
excellent testimony, and again, for being here. We have a lot 
of interest on the Committee. We will now begin a 5-minute 
round of questions, and what I will say to the Senators is I am 
going to try to keep everybody within 5 minutes on questions 
and answers, and if necessary, we will come back to a second 
round, and there can be written questions afterwards.
    Ms. Gersen, so I understood you, did you say that in terms 
of definition of sexual harassment that you would recommend the 
Supreme Court decision that interpreted the Title VII case, and 
use that definition for Title IX case instead of the definition 
in the proposed rule?
    Ms. Gersen. Yes, that is what I said, Senator Alexander. 
And the reason is that definition in Meritor, which is the 
Title VII case, that the hostile environment sexual harassment 
definition has been understood for the past several decades as 
the sexual harassment definition that the Federal Government 
has adopted for Title IX as well. It is, in fact, quite new to 
think that the standard should be drawn from the Supreme Court 
case of Davis, which is what the proposed rule now proposes.
    The Chairman. Thank you. Let me keep moving within my 5 
minutes because I have several questions. I have another one 
for you.
    Ms. Gersen. I understand.
    The Chairman. I want to make sure I understood what you 
said about the standard of evidence. You said that the standard 
of evidence that should be used in a sexual assault case, 
harassment case, should be the same standard of evidence that 
is used in other cases on campus. Which other cases?
    Ms. Gersen. There are many cases on campus that do not have 
to do with sexual matters. There could be racial harassment 
cases. There could be just cases that allege wrongdoing of any 
other kind. There could be theft. There could be plagiarism. 
And I think that the preponderance of the evidence is now the 
common standard, and it is, I think, important for all of the 
standards to be equalized among the different kinds of offenses 
that schools deal with. I do not--I agree with Ms. Goss Graves 
that there should not be a uniquely higher standard for sexual 
matters, nor should there be a lower one.
    The Chairman. Okay. Ms. Hamill, I think it is clear that 
the law says there has to be a proceeding. It has to be fair, 
prompt. We have had discussions about vagueness, about notice. 
It is clear that the Clery Act requires that a student may have 
an advisor, and of the student's choice, both of them, and that 
could be a lawyer. The question then becomes, what is a fair 
proceeding? The Sixth Circuit Court of Appeals said, the 
university must give the accused student or his agent an 
opportunity to cross-examine the accuser and adverse witnesses 
in the presence of a neutral fact finder. Others, including Ms. 
Goss Grave, say that is not necessary.
    Let me ask you first, could evidence adduced in a hearing 
about sexual assault on campus be then used in a state court 
criminal case against the student who is accused?
    Ms. Hamill. Yes, Chairman. Absolutely. Any statements that 
are given in the course of a Title IX proceeding could be 
subpoenaed for law enforcement purposes and used in criminal 
proceedings.
    The Chairman. If you were representing an accused person in 
a campus case, your advice to that student would consider the 
fact that he or she might put themselves at risk in a state 
criminal court by what they say or do not say?
    Ms. Hamill. That is correct, Chairman. But also, I think 
that is a small percentage of the matters that come through a 
Title IX process have definite criminal implications. There is 
always a specter but there is not always a parallel 
proceeding----
    The Chairman. Well, what--then in a minute or so, what 
would be the minimum requirements for a cross-examination that 
the Sixth Circuit requires? By minimum I mean that would 
guarantee your client, if it is an accused person, fairness but 
at the same time not putting unnecessary administrative burden 
on the 6,000 universities we have, some of which are very 
small, some of which are large.
    Ms. Hamill. I believe that direct questioning, and by the 
way it should be very respectful. We are not here to harass 
witnesses who come into these Title IX proceedings, but it 
should be direct questioning. Handing out questions in written 
form to a neutral person to ask the questions is not true 
cross-examination and it is very difficult. Cross-examination 
by its nature flows. You may change the order in which you have 
asked things. You may need to clarify, and it is much better, 
and it is a better driver at truth, and for the decisionmakers 
to be able to evaluate the demeanor of witnesses if it is a 
much more of a given and take.
    The Chairman. Thank you. Senator Murray.
    Senator Murray. Thank you to all of our witnesses. As I 
have said, and I think many of us agree, it is critical that 
schools do have a fair, impartial process to address sexual 
violence and harassment. It is also important to remember that 
in most cases we are dealing with students at school, not 
victims and defendants in a court of law. Which is why I have 
been frankly shocked at some of the proposals including the 
proposal from Secretary DeVos that Title IX, which at its core 
protects students from sex discrimination at school, would 
require survivors, witnesses, and respondents students to 
undergo live direct cross-examination in order for a school to 
investigate issues of sexual violence, or harassment, and 
discrimination on campus.
    To be clear, the proposed DeVos rule would require 
survivors and even witnesses to submit to direct cross-
examination by the accused assaulter or their advocate, and I 
am really deeply concerned about the negative consequences of 
requiring schools to use direct cross-examination, including 
the potential to re-traumatize survivors and discourage 
survivors and witnesses from coming forward.
    I would like to hear from several of you about whether you 
think direct cross-examination is required for a fair process. 
Ms. Graves if I--or Professor Gersen, let us start with you and 
then Ms. Graves, and then a few others. In your opinion, does a 
fair process require survivors and respondent students to 
undergo direct cross-examination?
    Ms. Gersen. Thank you. In my opinion, what is required is 
the opportunity to ask questions, and I do not think that the 
essential part of that is the opportunity to do it in a direct 
fashion so that either your lawyer or the party themselves 
would be able to do it personally. I think that as long as 
there is an opportunity to put questions to witnesses and to 
the other side through a neutral party, that is enough. That 
actually gets some of the search for truth and I think that we 
have to make compromises here. We cannot have--it may be that 
cross-examination is the ideal vehicle for getting at the truth 
in some context, but in this context there are other 
considerations. And so, I think that strikes an appropriate 
balance.
    Senator Murray. Ms. Graves.
    Ms. Goss Graves. Just to build on what Professor Gersen 
said, I completely agree that it is not an ideal method of 
getting at the truth, which is what I think schools are trying 
to do here. And I also think the model that makes a lot of 
sense is what workplaces typically use. They routinely 
investigate complaints of discrimination and harassment without 
having live trials and direct cross-examination. Sort of an 
unusual model to have institutions put in live trials when the 
question that they are answering is whether or not you violated 
the school or the institution's rules.
    If I could just add one point about the Baum case that was 
just discussed out of the Sixth Circuit. It is a bit of an 
outlier case and so looking at it closely I think it is 
important. The University of Michigan had decided that they 
were going to have mini trials, including cross-examination for 
most things except for sexual assault. And there I think the 
court struggled with that. If you are a university that is 
determined that you were equipped to do that, why can't you do 
that here. Now, I can think of lots of reasons why they may 
have determined that they cannot do that here, and that the 
issue was serious enough so that they did not want to test 
their model in this case, but I do not think that it is similar 
to the systems that most universities are employing. They are 
not having live trials to address all student misconduct.
    Senator Murray. Okay. Ms. Meehan, let me ask you, do the 
majority of ACE schools require all students to undergo a live 
cross-examination, or do they use other methods?
    Ms. Meehan. I do not have a good way to determine exactly 
what processes all of the different schools use, but I will say 
that our members had substantial concern about the procedure 
laid out in the NPRM. And speaking with----
    The Chairman. What do you mean----
    Senator Murray. From Secretary DeVos's proposed rule.
    The Chairman. Yes, don't do these initials.
    [Laughter.]
    Ms. Meehan. I am sorry.
    The Chairman. We are--with initials.
    Ms. Meehan. Apologies, yes. And we had concerns about the 
chilling effect----
    The Chairman. About the proposed rule?
    Ms. Meehan. About the proposed rule. We had concerns about 
the chilling effect that could have in the willingness of 
survivors to come forward and participate. The rule also 
excludes the testimony of any witness or party who refuses to 
participate in that live hearing with direct cross-examination, 
and that also raised a lot of concerns for us.
    Senator Murray. Yes. I just have a few seconds, but can you 
tell me any examples where schools have found ways to access 
credibility without a live cross-examination?
    Ms. Meehan. Absolutely. There are many ways to do it. 
Written questions is one way. Posting questions indirectly to 
the hearing officer, and that the hearing officer then asks 
them. So, I think there is a lot of options to get at the truth 
of the matter that do not require that method.
    Senator Murray. Okay. Thank you. Thank you very much.
    The Chairman. Thank you, Senator Murray. Senator Isakson.
    Senator Isakson. Mr. Chairman, I am very happy to be here 
because I have dealt with this subject a lot in my lifetime. I 
am sorry I have but it is probably the most important thing we 
will talk about this year, thanks to our country, thanks to our 
children, thanks for our marriages, etc. I am happily married 
for 51 years to a lovely lady who has taught me a lot. Most 
things, I will tell you now, that I have done this right 
because she has taught it to me. She was a teacher and a good 
teacher. But I have also had a lot of experiences.
    I was chairman of the State Board of Education for the 
eighth largest state in the country, and I dealt with teachers' 
certification and employment. And sexual harassment was a 
common problem, either a student versus teacher, or teacher 
versus student, more often than not, which is a shame. I went 
to a large Southern university myself. I was member of a 
fraternity, which I will not name them. I am not going to name 
any names. But my freshman year in 1962 which was not that hate 
Ashby years, this was back when we did not even know what 
marijuana was and did not drink beer too much. And really 
behaved pretty normally, unlike today. And a young man or a 
senior in my fraternity had sex with a girl in his room, a 
woman, in his room on the second floor of the fraternity house 
in 1962. And we kicked him out of the fraternity for good. That 
is a pretty harsh punishment. You would not think that would 
happen today, and it probably would not happen today, but back 
then our standards were stronger.
    Our standards as a culture have gone down since 1962. That 
is one of the--you as teachers or responsible person are put in 
a position of making judgments you really should not have to 
make. Kids ought to be raised better than they are, but we have 
not done that as well, so you have to confront some very 
difficult situations. I ran a company with a thousand women. 
They worked for the company. It was a sales organization.
    Sexual harassment was a tool that buyers and sellers and 
people involved in a sales transaction and others would take 
advantage of it if they thought it could help them make a sell, 
not make a sell, do etc., etc. So, I have dealt with it in 
classrooms as a parent, fraternity houses as a member of the 
fraternity, my own household as a father of three and married 
to wonderful woman, and every place in between, and I just want 
to offer you a few--one, I think everybody on this panel has 
been terrific. And I am not going to name anybody over others, 
but I will tell you this, Ms. Graves had a great point, Ms. 
Hamill did so. I appreciate the openness of everybody's 
testimony. I appreciate yours, Ms. Meehan, Dr. Howard, and Ms. 
Gersen, all of you. But I want to tell you a couple things.
    You should not turn the university into a courtroom, but 
you should absolutely quickly, and I use that definition 
respectfully, quickly when you are given a complaint against a 
student for sexual harassment, apply your procedures to that 
sexual harassment immediately. Too many cases get put away. Our 
businesses love to put off equal opportunity in cases because 
EEOC will not let you drag them out until you finally write 
them a $500 check and they go away. I know how that works. I 
was in business for a long time. You cannot allow that. Timing 
is everything, and on sexual harassment, people do not report 
them as quickly as they should sometimes. That makes it 
difficult to prove, again. You should have a culture in a 
university that encourages immediate accusal or presentation of 
evidence if somebody thinks they were a victim of sexual 
harassment. But not so good that it is used as a vindictive 
tool for something to get a point across.
    I have seen that happen in my job in education from time to 
time where one student wants to get another student, so she 
says or he says or somebody says, somebody did x. And the fact 
that they charged him with it and it got out--it was a tool, a 
social tool, not really a responsible tool, which is why you 
have got to be very careful with what we are playing with right 
here. And third, you have to have the person who is accused 
come before the responsible persons at the institution and talk 
about the issue.
    I do not think you have to have a trial and I do not think 
you have to have a public display, but you absolutely have to 
have a culture in your company that requires the manager or the 
person responsible for that individual and that individual to 
meet on the policies of that company that you think have been 
violated or they have been accused of violating. And you will 9 
times out of 10 figure out what is going on. But it has go to 
quick, it has got to be decisive, and you have got to make that 
person who is most in contact with the accused, like their 
supervisor or their teacher in a room or whatever, to be the 
person that does it. Do not--everybody wants to split this up. 
College professors hate this. They do not anymore want to talk 
about sexual harassment. They fly to the moon. They run away 
from that responsibility. Well, everything does. I do not like 
it either and I have had to do it.
    I had to let the best employee in my company, in sales, go 
many years ago because of something she did that was just 
inexcusable, and it came out. It came out because I confronted 
her with it in a respectful way hoping it was wrong, and it was 
right. And she thought I would never fire her because of how 
much she did in business, and I did. So, the pressures are all 
over the place. They are not just between the accused and the 
person doing the accusing, but they are with everybody. So, 
speed is absolutely essential but not so fast that you overlook 
facts. Filing quickly ought to be--you out to have a statute of 
limitations. I personally think, Mr. Chair. If something is 
going to file, I know a lot of you do not like those because 
the Lilly Ledbetter case and things like that, but this is not 
Lilly Ledbetter. This is accusing somebody of a terrible, awful 
thing and if somebody did it, they ought to be called, 
complained when they did it, and company will call it out 
quickly. And institutions need to deal with them in an 
expeditious manner.
    I have used all my time talking myself and I did not want 
to do that, but I wanted you to know, there is no easy answer 
to this subject. But there are a few things that I can tell you 
in my 35 years in public life and business, that have helped 
me. And that is what I have tried to suggest to you. Do not--we 
cannot as a Committee run away from this issue. You cannot run 
away from us while we are deciding it. The Chairman is doing a 
great job and the vice chairman is doing a great job of getting 
the facts out on the table and I am going to stay in this to 
the bitter end. But I hope when I leave I can say this is one 
of our achievements. For everybody who went to a college or 
university and everybody that was employed by somebody knew 
what was right and was wrong and knew there was going to be 
consequences if they did not behave. It is really that simple. 
It is not as complicating as everybody makes it.
    The last thing I would say is, I read Ms. Ginsburg's 
opinions on a lot of things and on sexual harassment, I learned 
more from what she wrote than anybody. And I had to depend on 
that in certain cases. So, I commend her to you. I was layman 
not a lawyer, reading something I needed to learn. Her writings 
were very good, are very good job, and she does a good job.
    Thank you, Mr. Chairman. I have talked too much. I yield 
back the floor.
    The Chairman. Thank you, Senator Isakson.
    Senator Hassan.
    Senator Hassan. Well, thank you, Mr. Chair and Ranking 
Member Murray, and thank you to the witnesses for being here. I 
am really pleased to be here to talk about campus safety 
because obviously students? success and students? safety go 
hand in hand, and as we work to reauthorize the Higher Ed Act, 
we have to find ways to protect students from harm. And today 
this hearing is about campus sexual assault, obviously a very 
important issue, but I just, before I start asking questions, 
want to take a moment to recognize a couple of other issues we 
have to consider during the reauthorization process.
    One is substance misuse on campus, and the other is mental 
health issues on campus. On substance misuse, Senator Tester 
and I introduced a bill last Congress to ensure that campuses 
with high rates of substance misuse are able to provide 
impacted students with the treatment and support that they 
need. And on mental health, I recently heard from the 
University of New Hampshire's Chief of Police that there is no 
greater challenge that he sees on campus than issues related to 
the mental health of students. They have transported 63 
students, since the beginning of the school year in our 
flagship campus, to a psychiatric facility. It is stunning.
    That is why last Congress I helped introduce the Higher 
Education Mental Health Commission Act that take steps to 
better meet the needs of students facing mental health issues. 
So, I look forward to focusing on those issues among others 
during our ongoing discussion about the Higher Ed Act. Ms. Goss 
Graves, I wanted to follow-up a little bit on what Senator 
Murray was asking about because one of my overarching concerns 
with the Title IX proposed rule is the potential harmful impact 
of requiring live cross-examination of survivors who come 
forward with allegations.
    If you can try to be quick in your answers just because I 
am, like everybody else, trying to move through 5 minutes. Does 
a live hearing that includes cross-examination have the 
potential to re-traumatize survivors?
    Ms. Goss Graves. It absolutely does. The first thing that 
we should think about is that because these are not courtrooms 
and because the Clery rule says an advisor of your choice, it 
could be your fraternity brother, a parent, a teammate who is 
asking these questions. There aren't rules that ensure that it 
is not a traumatizing----
    Senator Hassan. So just, I am assuming from some things I 
have read and kind of from my own experience that just being 
asked to relive a traumatic experience in itself is traumatic, 
and you are saying then without rules and guardrails, it can be 
even worse?
    Ms. Goss Graves. It is precisely why in other settings 
there is a lot of work to put guardrails in place, in actual 
courtrooms, in police interviews. There is a lot of work to 
make sure that they are less traumatizing.
    Senator Hassan. So that is important for us to understand. 
I also want to take a moment here to discuss traumatic memories 
because that is another issue. There is extensive research that 
demonstrates that traumatic memories, like those resulting from 
an assault, are often distorted and result in fragmented and 
disorganized memories that are missing details. So, can you 
explain how cross-examination in these cases could result in 
inaccurate information?
    Ms. Goss Graves. That is right. Recalling experiences of 
sexual violence is not necessarily linear, right, and one of 
the things that we have learned is that some things come back 
in fragments, sometimes the ability to tell the story in a way 
that sounds--that allows the person who is asking the question 
to have the precise answer is not what you are going to get, 
but that also does not mean that it did not happen and it does 
not mean that you are absolutely getting to the truth. That is 
why you have experts who are trained in engaging people who 
have experienced this type of trauma. It is the best course.
    Senator Hassan. Okay. Well, thank you for that. I will 
submit additional questions to the record about other 
techniques for getting at the truth in situations like these, 
but I did want to turn just briefly to the economic impact of 
campus sexual violence on our campuses. Researchers at the 
University of New Hampshire's Prevention Innovations Research 
Center have looked at these long-term implications of campus 
sexual assault. Research shows that roughly one-third of 
survivors leave their studies having long-term earning and 
career implications for them and our entire economy. Today 
happens to be equal pay day, the day that marks how far into a 
new year women have to work to earn what men have already 
earned in the previous year. In your opinion, do you think 
that, Ms. Graves, do you think that campus sexual assault has 
long-term implications to many survivors' future economic 
potential?
    Ms. Goss Graves. There is no question. We have had clients 
who have not finished college. We have had clients who have 
dropped out and become homeless. The specific short-term impact 
is there, but it is also a long-term impact. It means people 
are not taking the majors that they want to have just avoid the 
person who attacked them.
    Senator Hassan. Well, thank you for that. And Mr. Chair, I 
will also submit to the record questions about the particular 
circumstance of students on campus who experience disabilities 
because they are disproportionately subjected to sexual 
violence. Senator Casey and I, this morning, are putting in the 
SECURE Act, again, to focus on how to make sure campus 
processes are particularly suited and adjusted for students who 
experience disabilities. And I will submit further questions 
about that for the record. Thank you.
    The Chairman. Thank you, Senator Hassan.
    Senator Smith.
    Senator Smith. Thank you, Chair Alexander and also Ranking 
Member Murray, and I am so grateful for this hearing and for 
all of you being here today to testify. I am interested in 
honing in on this question of geography, which is part of the 
way that this proposed rule is written. Secretary DeVos's 
proposed rule would significantly alter the scope of Title X 
enforcement when it comes to geography, and it would 
essentially say, it exactly says, that a college would be 
required to dismiss a complaint about allegations if that 
allegation occurs off-campus and is not part of an 
institution's program or activity. I want to just understand 
this a little bit.
    Let me start with you Professors Gersen. Under this 
guidance, if the student was sexually assaulted at an off-
campus house party, at a private residence say by classmate, 
would the school be required to dismiss that complaint under 
the proposed rule?
    Ms. Gersen. Under the proposed rule, unless that off-campus 
place had some connection to the school's program or activity, 
that would not fall within the jurisdiction of the school.
    Senator Smith. What if for example that off-campus party or 
residence, a student in undergrad was assaulted by a graduate 
student, like a TA, for example. Would the proposed rule in 
that case require that allegation be dismissed?
    Ms. Gersen. The proposed rule would require a dismissal of 
that allegation regardless of who it was that was--who it was, 
the perpetrator. So even if it was two fellow students at an 
off-campus location.
    Senator Smith. Okay. So, I am trying to understand what due 
process rights are protected by this narrowing of the scope of 
Title X enforcement as it relates to geography. I mean what is 
the--why would you do that? I would love to hear from Professor 
Gersen, anybody.
    Ms. Gersen. I think there have risen some concerns about 
having jurisdiction be absolutely everywhere, and so there are 
actually legitimate concerns about let us say 25 year old 
allegations of incidents that may have happened off-campus, 
maybe even hundreds of miles away. And we are seeing some 
schools actually taking jurisdictions over those kinds of 
cases. So, this is about statute of limitations and it is about 
how do you limit the scope. I think that the proposed rule has 
gone too far and does not include enough, but there clearly is 
some kind of balance that should be struck.
    Ms. Goss Graves. If I could just add. The Department of 
Justice's recent study said that 95 percent of sexual assaults 
occur off-campus. So really the way that I see this proposed 
rule is limiting the liability of schools in limiting the types 
of things that they would have to respond to, but it is not 
good for schools, of course, because they want to know if they 
have a problem on their campus. The other thing is the 
relationship between what happens on campus and then what 
happens the next day on campus is so interrelated.
    If there is an assault off-campus, and you are sitting next 
to the person in class the next day, that harm is continuing, 
or if you are harassed online constantly that may--I mean with 
our phones, that may happen while you are on campus or while 
you are off-campus. So, the way that they have defined this has 
done nothing but really narrow it to very few incidents that 
actually a school would be responsible for.
    Senator Smith. Title IX protects a person's right to 
educational opportunity, and if that right is infringed on 
because of what happens to you off-campus, for example over the 
phone or at an off-campus party, there still is a 
responsibility to protect that student from sexual 
discrimination for example, even though it does not happen 
physically on campus or related to the programming of the 
campus.
    Ms. Goss Graves. That is right. The reason that courts have 
found that is because they acknowledge the connection between 
what is happening on campus, the program and activities that 
are happening on campus, and the relationship between the 
harassment what is happening off, and that sometimes they are 
so intertwined you cannot separate them.
    Senator Smith. Right. Thank you. Chair Alexander, you had 
raised the question of geography as one of the three things 
that you were hoping to look at and I agree with you. I think 
it is very important and this is, I think, helpful to 
understand that a strictly arbitrary definition of only on 
campus probably has the goal of limiting liability but not to 
limiting discrimination. Thank you.
    The Chairman. Thank you, Senator Smith. And thanks for 
pursuing that line of questioning.
    Senator Kaine.
    Senator Kaine. Thank you, Mr. Chair, and thanks to the 
witnesses. First, Mr. Chair, I would like to introduce into the 
record a letter that I sent to Secretary DeVos on January 29th 
about the proposal, and also a lengthy letter that was sent to 
the Secretary by our State Council of Higher Education for 
Virginia on the 28th of January. If I could enter those on the 
record.
    The Chairman. So, ordered.
    [The following information can be found on page 144 in 
Additional Material:]
    Senator Kaine. Thank you all for your testimony. This has 
been helpful. There are two areas that I want to dig into. And 
the first is the deliberate indifference standard. I am trying 
to understand how this proposal would sort of change the equity 
of the existing rules. So, I want to make sure I understand 
this, and Ms. Goss Grave maybe I will start with you because 
your testimony sort of digs into this.
    As I read it, the standard under which a college might be 
liable for their own actions or inactions prior to this 
proposal was if a college knew or should have known about 
activity that would meet the harassment definition, then they 
are required to take immediate and effective corrective action. 
They are required to take reasonable steps to immediately and 
effectively correct what they know happened. So that is sort of 
the current standard. But the proposed standard is, a school 
will only be held responsible for a response to sexual 
harassment if its response is clearly unreasonable in light of 
the known circumstances.
    Talking about burdens of proof can be a little bit wonky, 
but instead of an affirmative obligation on the college, if you 
know or should have known, you have to immediately take 
reasonable corrective steps to--you are not going to be held 
liable unless your actions are clearly unreasonable. That seems 
to me to be a pretty significant shift in the landscape in 
terms of what a university's obligation and potential liability 
would be. Am I reading that correctly?
    Ms. Goss Graves. That is correct. I mean, in 2001, the 
Department of Education put their guidance to notice and 
comment and had that standard that is more similar to the 
standard in workplaces of when----
    Senator Kaine. If it could--2001, so this was during the 
Bush administration----
    Ms. Goss Graves. It was actually the tail end of the 
Clinton administration but maintained during the Bush 
administration and maintained during the Obama administration.
    Senator Kaine. There has been a consistent rule that this 
would alter.
    Please continue.
    Ms. Goss Graves. Right. Several ones. That is right. And 
the standard for damages, which was spelled out by the Supreme 
Court in the Gebser case and in the Davis case was that higher 
standard. And the reason they did it was they said, if you are 
going to pay damages, we are going to say that there is a 
higher standard. We are going to leave it however for the 
Department of Education to outline what it thinks is the better 
standard that it should use in its own enforcement, and what is 
the better standard that should guide schools. So, the court 
distinguished between damages and what the Department of 
Education should do for its enforcement.
    The Department of Education, after very careful review, 
including rounds of notice and comment, came up with a standard 
that was more similar to what happens in workplaces. So, this 
would be really a way to upend things for almost 20 years, and 
sends, I believe, a really confusing signal to schools about at 
what point they intervene in harassment. All the schools that 
we talked to say they want to make sure that they intervene 
promptly and that they do so effectively. They do not want a 
low, low standard of was I deliberately indifferent. Did 
everything I do, was everything I did almost wrong except for 
and the purpose----
    Senator Kaine. Can I ask your opinion, do others think we 
should switch the standard to this deliberately indifferent or 
a school is okay unless their actions are clearly unreasonable?
    Dr. Howard. I think institutions have an obligation to 
respond. These are members of our community. These are students 
whose behavior is potentially impacting each other, whether it 
happens on or off-campus, and I think the current standard is 
very fair.
    Senator Kaine. Let me switch to a second topic, if there is 
no others on this. Ms. Meehan, I was really interested in your 
testimony and you alluded to it in your oral testimony without 
getting into, hey, we ought to be focusing on prevention. I am 
really interested in these processes, but we do have an 
opportunity in the Higher Ed Act to do things that is about 
prevention, and you have some examples on page nine of your 
testimony. You just happened to pick one from Washington State 
and Tennessee. I wonder how that happened?
    [Laughter.]
    Senator Kaine. But assure us that there are some good 
models out there, there are some things that we could draw in, 
and that university administrators can draw on to actually stop 
this before it happens. I would love to not have to worry about 
issues like cross-examination because, men, I would love to 
have such great prevention programs that we really do a good 
job there. So, give us some assurance.
    Ms. Meehan. Yes. Well, we all would like that. And I 
mentioned in my testimony the work of NASPA, which is the 
student affairs professionals. They have an initiative called 
Culture of Respect that has a lot of great resources. They have 
put together a matrix that outlines some of the major 
prevention efforts already underway that focus on bystander 
intervention and things like. Green Dot, I also mentioned as 
one of the programs that the University of Washington uses, but 
also the University of Virginia uses. And that is a program 
that helps, tries to use peer influencers to really change the 
culture on a campus to get everyone doing something proactive 
about this problem.
    Senator Kaine. Excellent. Thank you so much.
    Thanks, Mr. Chair.
    The Chairman. Why did you mention the University of 
Virginia?
    [Laughter.]
    The Chairman. Who we had hoped to play in next weekend but 
are not. But that is another issue.
    Senator Casey.
    Senator Casey. Mr. Chairman, thank you very much. I want to 
thank the witnesses for being here. I am a little back-and-
forth today. We have two hearings that are conflicting. So, I 
want to first start with something for the record that I have 
to make sure that we get made part of the record. I would ask 
that the following documents be included in the hearing record. 
No. 1, a letter from the National Council on Disability and 
accompanying report, ``Not on the Radar.'' No. 2, a letter from 
S. Daniel Carter and Taylor Parker of SAFE Campuses, LLC. And 
third, a letter from Eva Amar, parents against campus crime. I 
want to make sure they are part of the record.
    The Chairman. So, ordered.
    [The following information can be found on pages 152-225 
and 226 in Additional Material:]
    Senator Casey. Thank you, Mr. Chairman. Today we are 
introducing legislation, the Safe Equitable Campus Resources 
and Education Act, or so called SECURE Act. Senator Hassan and 
I, I am sure this may have already been mentioned but I want to 
make sure that is on the record. Grateful to be working with 
Senator Hassan on this. This bill improves on the Campus SAVE 
Act, my legislation from a number of years ago, and of course 
the foundational Clery Act, specifically looking at how to 
strengthen the protections for students with disabilities on 
campus.
    In early `18, the National Council on Disability released 
an expansive report entitled, I do want to just refer to it, 
``Not on the Radar, sexual of college students with 
disabilities.'' This report found that one in three college 
students with disabilities were victims of sexual assault, and 
that of these victims--that these victims often faced 
additional hurdles in seeking justice and help as a result of 
their disability. The SECURE Act will make target improvements 
to the Clery Act to ensure that individuals with disabilities 
are provided with the same comprehensive support and 
protections as their peers, and that systems in place to 
respond to the needs of victims include the accommodations that 
may be needed by individuals with disabilities.
    We are grateful to be introducing that today, but I know I 
am limited on time, but Ms. Graves, I wanted to ask you a 
question about the preponderance of the evidence standard. I 
have long advocated for that standard as the most appropriate 
standard for institutions of higher education for using campus 
conduct proceedings related to sexual violence. It is of course 
part of the Campus SaVE Act. But until the recent proposed 
rule, the Department of Education at one point seemed to agree 
with me. I know you have reviewed this already in both your 
testimony and otherwise, but what do you think is the most 
appropriate standard for such proceedings, and why?
    Ms. Graves. I agree that it is the preponderance of 
evidence standard is the general standard that is used in civil 
claims, including civil rights violations of which this is. It 
is the standard that would be applied if we were in actual 
courtrooms, right, and you were bringing a Title IX claim, they 
would apply the preponderance standard. It is the standard that 
is used in employment situations of discrimination and 
harassment.
    One of our concerns is putting this issue in a different 
space where you would apply a heightened and more burdensome, 
and a unique standard for sexual violence, a standard that you 
probably would not apply for other types of misconduct, for 
other forms of discrimination, including things like racial 
harassment or disability harassment.
    Senator Casey. Well, I appreciate that, and I am grateful 
that so many people are willing to push hard on these issues 
because for a lot of years too many institutions of higher 
education were not getting the job done, and I think that the 
change that we have tried to bring about has been essential. I 
have a couple more questions for the record, but I will submit 
those. Mr. Chairman, thank you very much.
    The Chairman. Thank you, Senator Casey.
    Senator Baldwin.
    Senator Baldwin. Thank you, Mr. Chairman, and thank you to 
all of our panelists for being here today. We owe every student 
the ability to learn in a safe environment free of sexual 
harassment, harassment in general, assault, bullying, etc. And 
we also know that this problem is very pervasive and has been, 
well not getting the attention that it deserves for many, many 
years.
    We also have to ensure that there is a fair, transparent, 
and unbiased process for addressing these cases. And so, we 
have been discussing the proposed rule that the Department of 
Education issued last year. There is elements that we have been 
discussing throughout this hearing that I find very concerning. 
And so, as we approach the Higher Education Act 
reauthorization, I think we have to be very careful in 
understanding the proposed rule's approach, and avoiding 
mistakes, codifying mistakes that we see at this point.
    I am going to start by following on the Chairman's line of 
questioning regarding the proposed rule's definition of 
harassment, and I want to note as a tangent that a couple years 
back, the Congress decided that the entire Congress and its 
staff should get training in understanding sexual harassment 
and harassment generally on the basis of other protected 
categories. And I am mindful of that because we just had an all 
staffs retreat and everyone in my staff and managers got a 
little bit of additional training. And there was a lot of focus 
on the fact that harassment, when it is severe or pervasive, 
yet the rule that has been proposed for campus is severe and 
pervasive.
    Our discussion in our staff because when you are going 
through a training you can ask questions, etc. That is really 
different--and, in this case. So, I would start with you, Ms. 
Goss Graves, what do you believe would be the consequences for 
students on college campuses across the country of adopting 
this particular definition of sexual harassment, and 
particularly what would be the consequence because it is 
inconsistent with what applies, say, in the workplace?
    Ms. Goss Graves. I think a big consequence is that fewer 
students will report. One of the reasons that students already 
do not report, is that they believe their own experiences are 
not severe. There was a study that showed that recently. And I 
also think it sends a particular message about the value of 
their experiences that they are having in schools and the 
ability for them to be prepared for what they need to know in 
the workplace. Schools should want to be teaching and applying 
the standard that their eventual students, who will be eventual 
workers, will have to use in the workplace, not suggesting that 
there is something very different.
    The last thing I will say is that applying that standard 
will be very, very difficult if it is an, and, versus an, or. 
One of the reasons you have an, or, is because it is all sort 
of a spectrum, right. You could have a few incidents that by 
themselves actually do not meet the standard but if done again 
and again and again, all of a sudden, you have a situation that 
you need to address. You should not wait until someone is 
basically dropped out of school before deciding that the 
standard, okay it is both pervasive and severe, and we will 
finally address it. That is not where schools want to be.
    Senator Baldwin. A question for you, Ms. Meehan. You hear 
feedback about this proposed rule from many institutions. I am 
curious what you have heard both about the evidentiary 
standard, clear and convincing versus preponderance, and about 
the question that I just asked with regard to the definition 
being severe and persistent versus severe or persistent. I am 
sure there is a wide spectrum, but I--if you can summarize.
    Ms. Meehan. Yes. We did not comment on the specific and, 
or, or distinction in our comment letter, and I think one of 
the reasons why that did not surface as one of the issues that 
the community wanted to talk about is in part because in an 
employment context and under Title VII, the or standard is 
already present. So, this is a case where potentially the 
proposed rule is setting up a different standard than the 
standard that we will have to apply in other context. So, I 
think that could be confusing. And there are also a number of 
institutions that have, for their own purposes, defined sexual 
harassment on their campus using or.
    Your second question regarding the standard of evidence, we 
did comment on that and we had concerns about particular 
language around the--there were some restrictions put on the 
freedom of institutions to choose between those two standards. 
And we heard from a number of institutions that felt that the 
way that it was structured, the fact that the standard had to 
be the same across all disciplinary processes with the same 
serious conduct violation, and also across employee and student 
conduct proceedings, that in some cases this was going to 
create a de facto situation where you were going to be forced 
to go with a clear and convincing standard on your campus. And 
many campuses have adopted preponderance of evidence. There are 
state laws requiring preponderance of evidence. So, you are 
again setting up a potential conflict between what institutions 
are required to do and what the new rule might have them do.
    The Chairman. Okay.
    Senator Baldwin. Thank you.
    The Chairman. Thank you, Senator Baldwin.
    Senator Rosen.
    Senator Rosen. Thank you. Thank you Chairman. I appreciate 
all of you being here today. I would like to submit for the 
record two letters. One from the Title IX coordinator from the 
University of Nevada Reno that discusses her concerns with this 
new proposal, and one from the chancellor of higher--from Dr. 
Thom Reilly. He is a Nevada System of Higher Education 
Chancellor, where he outlines the following in concerns about 
the live hearings and the higher education context that we have 
discussed. About, as we have discussed again, the new 
regulations. It would more narrowly define sexual harassment. 
The requirement to provide an advisor, and the examination of 
evidence. So, I respectfully would like to submit these for the 
record.
    The Chairman. So, ordered.
    [The following information can be found on page 229 in 
Additional Material:]
    Senator Rosen. Thank you. And so, as we have heard today, 
the proposed rule significantly narrows the definition of 
sexual harassment. You have just been talking about it, the 
word, and it really makes a big different. And like I said, the 
chancellor submitted his concerns. The provision would 
effectively allow schools to turn away students who fall short 
of this new definition--turn away the reporting their behavior. 
So, could this make the victims question themselves, wonder, is 
this bad enough to report, decreasing the chances, you think, 
of reporting harassment, and increasing the chances that the 
behavior could escalate?
    Ms. Gersen. Absolutely. That is the case. I would note 
however that no matter where you draw the definition, there 
will be people who fall inside it, people who fall outside of 
it. And the people who fall outside of it will always question, 
is this an experience that is worth reporting. And so, it is a 
problem that will occur. I think the main question is really 
objectively, where do we want to draw the line so that it is an 
appropriate standard that catches the kind of conduct that 
affects education in a way that we are concerned about.
    Senator Rosen. Well, let us talk about people who 
potentially fall outside of it. UNLV is tied for the Nation's 
most ethnically diverse campus. Many students of color, first 
generation students, older students, part-time students, all of 
them face barriers just in their daily life, their challenges, 
perhaps inherent bias or other kinds of harassment. So, do you 
think this definition is going to have an effect on students 
who already may be facing discrimination or other institutional 
barriers?
    Ms. Gersen. I do. I think it is going to have a very 
negative effect to have a definition that says severe and 
pervasive. It just simply does not cover enough conduct that 
really actually impairs someone's access to education. That is 
the main concern.
    Senator Rosen. Thank you. I would like to move on to 
talking about, as we have discussed earlier, a little bit about 
the hearings that we have, and about having to require 
advisers. So, one of our Title IX coordinators from Nevada 
University recently stated her school is not equipped to be and 
does not wish to be a judicial body. So, if the university is 
required to provide advisors to each person to manage a quasi-
judicial process, what is the financial obligation to the 
institution, who should bear the cost, and how do we monitor 
these program's effectiveness and fairness?
    Ms. Goss Graves. So the Clery Act requires right now that 
students be allowed to bring in an advisor of their choice, but 
if schools are actually going to turn themselves into bodies 
that are having trials, I think it is critical that both sides 
have access to counsel. So not just an advisor, to attorneys, 
so that the process is more informed, so that they understand 
what is happening with the process. It you are having cross-
examination, the idea that you would have cross-examination 
without someone to be able to object in real-time to questions 
that are unfair. All of these things have to spin out about 
what it looks like in practice versus whatever idea people have 
about what is happening for schools.
    Senator Rosen. Thank you. I yield back.
    The Chairman. Thank you, Senator Rosen. This has been very 
helpful to me, and I thank you for your careful analysis. I 
think Senator Murray and her staff are working with our staff 
to create an environment where we can have this kind of 
discussion on an issue that is not so easy to have a discussion 
on in some form. So, I thank you for that. Let me ask a couple 
of more questions. Dr. Howard, you operate in a state where if 
a student wants it, they are entitled to cross-examination, 
right? Your public university and the state law says so.
    Dr. Howard. That is correct.
    The Chairman. Did you say that in most cases they do not 
opt to do that?
    Dr. Howard. They usually do not opt for what we call the 
UAPA process.
    The Chairman. Do you offer them the opportunity? Do they 
know they have that opportunity?
    Dr. Howard. Yes.
    The Chairman. The Clery Act says they may have an adviser, 
so do most of them have an adviser? Do you provide the advisor?
    Dr. Howard. We do not provide an advisor. We allow students 
to select an advisor of their choosing.
    The Chairman. Is that often a lawyer?
    Dr. Howard. In recent years, more likely than not it is.
    The Chairman. Then, how do you comply with the--it sounds 
to me like you really allow for cross-examination, but you do 
it in a less burdensome way. Would you go back over that again?
    Dr. Howard. Sure. And to begin with, I think the way our 
committee, the judicial board frames it, we allow questioning. 
We do not call it cross-examination. We allow both parties to 
be screened so they do not see each other to function----
    The Chairman. You mean a screen between the parties?
    Dr. Howard. Yes. So, they can be----
    The Chairman. Are they comfortable with that?
    Dr. Howard. We allow that, or we allow them to operate from 
another room via Skype or some other----
    The Chairman. They can be in another room. They can see 
each other or not see each other?
    Dr. Howard. Correct.
    The Chairman. What do most opt to do?
    Dr. Howard. Most often the screening. To be in the same 
room, safely screened from each other. We allow them to ask 
questions of each other, any witnesses. That is generally done 
through the chair. So, my question might be directed to you, 
the response would be directed to you----
    The Chairman. That is what Senators are supposed to do, but 
sometimes we do not. But, so if I wanted to pose a question to 
Senator Murray, I would do that through you rather than 
directly?
    Dr. Howard. Correctly, yes.
    The Chairman. Okay. How does that work? Do you feel--how 
would you change the law or the proposed rule in order to make 
your system fair to the accused and fair to the accuser?
    Dr. Howard. I think we feel our system works quite well. We 
have concerns about involving additional advisors, especially 
lawyers, to be able to more directly cross-examine one 
another----
    The Chairman. That is allowed now, right, by the law?
    Dr. Howard. By the recent Sixth Circuit decision, they 
can----
    The Chairman. We are interpreting the cross-examination.
    Dr. Howard. Yes. They can have the adviser do that. We have 
not had a hearing since that decision where we have used that, 
but it is present.
    The Chairman. But would not your state law require you to 
do that too?
    Dr. Howard. In the UAPA option, absolutely.
    The Chairman. What does UAPA mean?
    Dr. Howard. University Administrative Procedures Act. It is 
a more legalistic process. It is handled through the Attorney 
General's Office in the State of Tennessee, and so students can 
choose that option versus a university hearing board, which is 
mainly what I have been discussing today.
    The Chairman. What standard of evidence do you use?
    Dr. Howard. In our university judicial process, it is 
preponderance. The UAPA offers a higher standard.
    The Chairman. Which is clear and convincing?
    Dr. Howard. Correct.
    The Chairman. You would have to use the clear and 
convincing, under the state law, if the students insisted on 
it? Is that right?
    Dr. Howard. If the student selects that hearing option, 
correct.
    The Chairman. Ms. Hamill, you have heard some of the 
witnesses disagree with you on ``cross-examination or live 
examination'' and whether it is necessary or not, or whether it 
is provided. What would your argument be about why an accused 
person needs the kind of cross-examination you talk about? It 
has been said and I am sure it must be maybe true, must be true 
that there is no worse experience than a sexual assault. The 
second worse might be to be accused unfairly of, or 
inaccurately, of sexual assault.
    What do you recommend we do about the live hearing 
requirement to cross-examine, the Sixth Circuit opinion, the 
reluctance some of the other witnesses have to allow lawyers to 
examine the accuser or the accused and adverse witnesses? What 
would you say about that, and what would be the minimum 
protection for your client, let's say it is an accused, without 
unnecessary burdens on the university or unfairness to the 
accuser?
    Ms. Hamill. First of all, I think I am heartened that there 
is more of an emphasis on informal resolution, so hopefully 
many of these matters would be resolved before a hearing, but a 
hearing would probably be where the most significant, most--the 
situation were an accused student is facing the most 
significant consequences of either expulsion or suspension. 
They also likely involve issues of credibility, so I think it 
is very important that there be a way to get at the full truth.
    The other piece is that we are in a system, these are not 
court systems. There is no subpoena power. You do not have 
discovery. You do not have rules of evidence, so that often 
times you actually have a somewhat incomplete record as you go 
into a hearing. And so, one of the ways to certainly probe the 
narrative is to be able to have some form of cross-examination. 
I think it is important to recognize that lawyers have been in 
these rooms for the last five or 6 years, and schools have 
known how to limit.
    In other words, you do not harass you. You do not do the 
things. The school has very clearly layout what a lawyer is and 
is not allowed to do and there is----
    The Chairman. Well under the current Clery regulation, a 
school may restrict what a lawyer may be allowed to do. Is that 
correct?
    Ms. Hamill. Absolutely. And basically, I wouldn't ever 
speak in a hearing. It is all the student that I am advising 
who is going to be doing the speaking, an opening, a closing, 
handing up questions to be asked indirectly. And so, I think 
that anybody who also thinks that it would be effective to 
bully witnesses, in these proceedings you are not going to be 
getting--you are not going to be advocating for your client 
very well if you are using bullying tactics. They would not go 
over well in these proceedings. I can tell you that from tons 
of experience in having dealt with the decisionmakers in these 
hearings. So, I think you can set up guardrails that would be 
appropriate and that would keep a decorum and a dignity and a 
respectfulness to the process.
    The Chairman. I will give--let Senator Murray have all the 
time she wants, but let me, Ms. Goss Graves, do you agree that 
under the Clery Act a student may have an advisor in such a 
proceeding? Right?
    Ms. Goss Graves. That is correct.
    The Chairman. That advisor maybe a lawyer?
    Ms. Goss Graves. That is correct.
    The Chairman. Do you think it is okay for the lawyer to 
submit written questions to a neutral party who then asks the 
questions of the other party?
    Ms. Goss Graves. Do I think it is okay for the lawyer----
    The Chairman. I mean, I am trying to narrow down here what 
the concern is. If there are questions to be asked, there is a 
neutral party, an accused, and accuser. So, if the accused has 
questions, I assume it would be appropriate in your thinking to 
give those questions to the neutral party----
    Ms. Goss Graves. Yes.
    The Chairman. You can ask the accuser those questions?
    Ms. Goss Graves. Yes, I understand your question. So, if 
you are using a hearing format and submitting questions is one 
way, having people write comments on statements is another. 
There are lots of ways that people test the veracity of a 
statement.
    The Chairman. But what you object to is allowing the----
    Ms. Goss Graves. The cross-examination.
    The Chairman. Allowing the accused to ask the accuser the 
questions, right?
    Ms. Goss Graves. That is right. The trauma from having the 
person who you said just raped you, ask you a series of 
questions directly. That in and of itself--you would not see 
that in most courtrooms, nor would you want their best friend, 
their fraternity brother, their father, any of those people 
being directly asking you questions about the assault you said 
happened.
    The Chairman. In a courtroom you would not see that?
    Ms. Goss Graves. You would not see that. I mean----
    The Chairman. If you were accused of raping in a state 
court, you would not see?
    Ms. Goss Graves. You would have an attorney. I mean like I 
have to say it would be extraordinary, so to picture this, for 
a judge to allow the person who you said raped you to 
interrogate you on the stand.
    Then Chairman. I see. Well would it be appropriate 
narrowing it down for the lawyer for the accused to ask the 
accuser directly the questions?
    Ms. Goss Graves. So that does happen in court settings with 
tremendous safeguards that are definitely not in these school 
proceedings.
    The Chairman. Could you----
    Ms. Goss Graves. Specially around--this is one of the 
reasons why we have the range of rape shield laws. The range of 
meaningful training for everyone from judges to attorneys to 
police around how to ask questions in these settings. How to do 
it in a way that is frankly trauma-informed, and that does not 
rely on rape myths about, what were you doing, what were you 
wearing, why were you drinking, that are blaming victims for 
what they have experienced.
    The Chairman. Ms. Hamill, going back to you and then I will 
go to Senator--well, I have one other question, but it will 
still be your view that be properly defended, an accused person 
in a sexual assault hearing on campus would need to be allowed 
to have his or her lawyer directly ask questions of the 
accuser. Is that right?
    Ms. Hamill. I do think so, and I think that advisers could. 
It does not always have to be a lawyer, you could have advisers 
who are trained on campus to advocate for the students in these 
proceedings, but to have an advocate be asking those questions, 
and then you have the protections of a partition or closed 
circuit, TV, or anything like that can make the process easier 
frankly for both parties.
    The Chairman. Okay. And my last. Ms. Meehan, Senator Kaine 
used the word should have known, what a campus should have 
known in thinking about what responsibilities a campus, an 
institution has to follow-up on something. Does your community 
have any comment about should have known? That could be a broad 
responsibility for somebody, but what are the limits on that, 
knowing about--having a designated person be informed of a 
sexual assault promptly, specifically, that is one thing. That 
is knowing about it. For anybody on the campus to be saddled 
with the idea of should have known of something, that is 
another thing. What comment would you have on that?
    Ms. Meehan. Yes. I mean, it can be hard for campuses to be 
aware. Some campuses have thousands of employees, and to be 
aware of what all of them know can be a difficult thing, but 
obviously I think the focus, the proposed rule, does make clear 
that one of the people you can report to is the Title IX 
coordinator. And there have been a lot of efforts to try to 
make sure that all survivors know that is the person that they 
can go to on their campus to start a process to get supportive 
services and so on.
    The Chairman. Okay. Senator Murray, and then we will 
conclude.
    Senator Murray.
    Senator Murray. Yes. I just, I want to go back to the 
question you were asking before this about this semi-court kind 
of thing that the rule requires, and I want to make it clear. 
Ms. Graves let me ask you. The ruling or the rules that 
Secretary DeVos has put out would allow or require actually for 
somebody to submit to live examination, and it could be by a 
live examination by a friend or a coach or their dad. Correct?
    Ms. Goss Graves. That is correct.
    Senator Murray. That is what we find objectionable with her 
rules.
    Ms. Goss Graves. That is right.
    Senator Murray. Dr. Howard talked about allowing someone to 
choose that. Would her rules allow you to choose it or not, to 
choose a live?
    Ms. Goss Graves. Well, so there is nothing that prevents 
people from opting into that type of process. Her rules would 
mandate it. It would require it.
    Senator Murray. Okay. I just want to make that clear. I 
also want to ask, reporting in sexual harassment is really 
difficult and students often do not believe their school is 
going to handle the issue correctly, with seriousness and 
sensitivity. They worry about backlash from teachers, peers, 
friends, whoever else was at the party. And that I think is, we 
have to really understand that. I think we have to make it 
easier to report sexual harassment, not make it harder. And 
that is what I fear Secretary DeVos's proposed 10 line rule 
would do when it only require schools to respond to reports of 
campus sexual assault that were made specifically to a very 
small group of campus officials. I am doubting most kids know 
who their Title IX coordinator is.
    I would think that survivors would reasonably expect 
schools to respond if they report to their college professor, 
for example, or their adviser, or their coach, or some other 
trusted adult, but DeVos's proposed rule actually would not 
require schools to take those actions seriously if you said it 
to your professor or someone that you felt was the person the 
you should report to. So, Ms. Graves, let me ask you, what do 
you think is the appropriate expectation for schools' 
responses? In what situations should schools be responsible for 
responding to reports of sexual harassment?
    Ms. Goss Graves. The reason the standard is knew or should 
have known is to discourage schools from burying their heads in 
the sand from the sorts of harassment and violence that they 
kind of know about and could be preventing and getting ahead of 
it. So, if you are telling someone, if you have told your 
professor, or your RA, or the person who you see in a position 
of authority to you, many students are going to expect that 
person will do something important with that information.
    Senator Murray. Right. Ms. Gersen, do you want to comment 
on that at all?
    Ms. Gersen. Yes. I do think that this is a tricky thing for 
schools because they have to be clear about which people within 
their structure, which employees, are designated as people who 
will be expected to report. And so, some schools, such as the 
university I teach at, has a kind of mandatory reporter role 
for professors such as myself. So, if I hear about an incident, 
I have the obligation to report it according to the school 
rules. And so, I think that is one of the things that helps 
schools understand what the lines of authority are, and as long 
as those things are clear, then you can have a rule that says 
knows or should have known that does not impose too much of an 
undue burden on schools.
    Senator Murray. Okay. Thank you. Thank you to all of you 
for your testimony. And obviously this is an issue we are going 
to continue to grapple with, and we will have more questions, 
but appreciate all of them. Mr. Chairman, I would like to 
request unanimous consent to enter into the record letters from 
psychologist, survivors and families, advocates, and more than 
90 law professors presenting their views about what makes a 
fair process for responding to campus sexual assault and 
violence.
    [The following information can be found on page 93 in 
Additional Material:]
    The Chairman. Thank you, Senator Murray. And Ms. Meehan, I 
wish you would, on Senator Murray's last question, if you could 
follow-up with that on the points of view of the universities. 
I think, as Ms. Gersen says, that is tricky. These are serious 
accusations and if you are going to be responsible for a campus 
of 35,000 people, of any sort of should have known 
responsibility, that too is tricky. So, I would be interested 
in what the campuses themselves think about that.
    Thanks to each of you. I hope you will let us know any 
thoughts you have about after you go home and say, I wish I 
would have said x, or somebody said y, and I should have said 
z. It would be helpful to us to have that. We sometimes have 
follow-up letters, they do not have to be long, that says 
please do this. You can see we are dealing with a fairly small 
number of issues, actually, and some of them may be something 
we can address, a couple of them are hard to agree on, but this 
has been very, very helpful.
    I hope you would allow us or our staffs to call on you over 
the next couple of months if we get into further discussions on 
the Committee and need your advice or your comment about 
language that we may be writing. The hearing record will remain 
open for 10 days. Members may submit additional information 
within that time if they would like.
    The Chairman. Our Committee will meet again on Wednesday, 
April 10 for another hearing on higher education. Thank you for 
being here. We will stand adjourned.

                          ADDITIONAL MATERIAL

     Comment from 93 Law Professors Regarding Proposed Rulemaking 
    Nondiscrimination on the Basis of Sex in Education Programs or 
   Activities Receiving Federal Financial Assistance Office of Civil 
                    Rights, Department of Education
    This proposed rulemaking with regard to the treatment of sexual 
harassment under Title IX raises a wide range of substantive problems; 
many of its provisions obstruct, rather than effectuate Title IX, and 
rest on inaccurate descriptions of relevant Supreme Court decisions or 
exceed the regulatory authority of the Department. This comment raises 
a distinct type of objection to the proposed regulation: that in a 
large number of important respects the proposal is so unclear as to 
provide insufficient guidance to recipients about their new 
obligations, to victims and alleged harassers regarding their rights 
and responsibilities, and to the public as a whole as to what is being 
proposed.

    Because Title IX, which is the basis of the Department's rulemaking 
authority, is spending clause legislation, it is essential that any 
regulation make clear to recipients what obligations they are assuming 
if they accept federal financial assistance. Rather than regulating 
schools or other educational institutions broadly, Title IX instead 
requires institutions which accept federal educational assistance to 
agree to comply with specific conditions that are attached to that 
funding. The requirement of clarity is not controversial; indeed, the 
NPRM itself notes that recipients are entitled to clear notice of their 
obligations under Title IX. The NPRM relies on this principle for its 
requirement that a recipient need not do anything at all about specific 
instances of sexual harassment until and unless the appropriate 
official gets certain specific information about that harassment. But 
in many respects the proposed regulation itself creates confusion 
instead of clarity. Its newly devised, inter-related provisions pose a 
large number of novel questions regarding what a recipient would have 
to do if the regulation were finalized. As proposed, these provisions 
make it impossible for even experienced attorneys to advise a recipient 
on its compliance with Title IX with any confidence regarding what the 
answers to those questions may be or what the recipient would be 
obligated to do if it accepts federal financial assistance. That 
uncertainty is particularly serious because the Department is proposing 
to issue regulations, rather than issue a less formal and less binding 
guidance.

    Clarity is especially important because of the contentious nature 
of sexual harassment claims. Complainants and respondents usually have 
a substantial personal stake in any report of sexual harassment that a 
recipient addresses. Whatever a recipient does, either the complainant 
or the respondent is likely to object or challenge, and complainants 
and respondents alike have with significant frequency sued recipients 
because of the manner in which a sexual harassment complaint was 
handled. In this context, uncertainty about the meaning of a Title IX 
regulation is certain to provoke increased and more intractable 
litigation. When an ambiguous provision bears on a recipient's action 
in a particular case, the party unhappy with the outcome has every 
reason to focus on that provision and to argue that the recipient's 
action was inconsistent with the correct interpretation. Uncertainty 
about the meaning of applicable regulations will significantly increase 
the grounds on which potential plaintiffs and their attorneys will see 
a basis for litigation, and will multiply the issues in those cases.

    Clarity is also essential because the Department proposes to issue 
binding and highly specific regulations, rather than more generally 
phrased Guidelines. Past experience with earlier guidances demonstrates 
the great difficulty in framing standards whose meaning would be clear, 
and sensible, in the wide variety of circumstances in which sexual 
harassment, and sexual harassment complaints, can arise. Because of the 
binding and specific nature of the proposed regulation, uncertainty 
about the meaning of each word and phrase, and about the inter-
relationship of provisions, can be highly problematic. This ill-
considered approach denies recipients flexibility in applying broadly 
framed guidelines to unforeseen situations and replaces that freedom 
with vexing issues of construction. Because much of this regulatory 
scheme has been made up out of whole cloth, the Department has no body 
of experience illustrating the practical questions that have arisen out 
of similarly schemes.

    Clarity is vital to sexual harassment victims and students accused 
of sexual harassment as well. In the past, although some institutions 
have made earnest efforts to prevent and correct sexual harassment, 
other schools turned a blind eye to sexual harassment, looking for ways 
to avoid taking serious action, or even any action, on a complaint, and 
in some instances ignoring pervasive ongoing sexual misconduct. Others 
have found it difficult to find the resources to learn about what Title 
IX requires and to adjust their policies, procedures, services, and 
prevention programs in a manner that both complies with their Title IX 
obligations and responds to their institution's and community's needs 
related to this harassment. This history, both recent and longstanding, 
has led some schools to fail to comply with Title IX in ways that harm 
both victims and accused students. Because the proposed regulations 
could be interpreted to forbid some steps to prevent and correct sexual 
harassment, those officials who would prefer to do as little as 
possible about sexual harassment will be able to find language 
throughout these proposals that could be construed as providing a 
federally-endorsed excuse for inaction. More importantly, the larger 
group of institutions that have relatively recently devoted significant 
resources to understanding and meeting their obligations under Title 
IX--in some cases making and correcting errors along the way that 
harmed both victims and accused students--will have to redo almost all 
of that work to adjust to a new legal landscape that not only is 
drastically changed but also lacks clarity. The lack of clarity, in 
particular, will virtually guarantee that such institutions will make 
even more costly errors, potentially harming accused students, student 
victims, or both, as they struggle to understand and adjust to these 
shifting regulatory sands.

    Uncertainty about the meaning of the proposed regulations has also 
seriously undermined the notice and comment process. At recipient 
institutions, lawyers and non-lawyers alike are struggling to 
understand what their schools would be required, forbidden, and 
permitted to do under the proposal. They are finding it difficult to 
comment on the proposed regulations except in general terms because 
many specific details are unclear. Neither recipients nor any other 
interested parties should be asked to imagine all the possible meanings 
of dozens of inter-related provisions, and then offer comments on each 
hypothetical and combination of hypotheticals.

    We set out below 80 material questions that we have been able to 
identify about specific provisions in the proposed regulation. It may 
well be that the Department never thought about some of these issues 
when it issued the proposal; that would, in a sense, be understandable 
because it appears that this entire regulatory scheme was created out 
of whole cloth, with little evidence of experience regarding how a 
particular provision might work in practice, how provisions would 
inter-relate, or what particular terms would mean in the real world. 
Provisions with wording that seems straightforward in the abstract are 
often vexingly unclear when read in light of the wide variety of 
problems of sexual harassment that actually occur at educational 
institutions, and of the manner in which those institutions address 
other types of misconduct. The time for the Department to figure all 
this out is before the regulation is promulgated, indeed, it is before 
the public is asked to comment on the proposal.
       Questions Regarding The Meaning of The Proposed Regulation
    Program and Activity

        (1) If a victim is sexually assaulted by a fellow student 
        outside of a recipient's education program or activity, but the 
        accused rapist's subsequent presence in that program or 
        activity (e.g., on campus) creates a hostile environment in the 
        program or activity that effectively denies the victim equal 
        access to the education program or activity, does that 
        combination of circumstances constitute ``sexual harassment in 
        an education program or activity'' under sections 106.44(a), 
        106.44(b)(4) and 106.45(b)(3)?

        (2) If a victim is sexually assaulted by a fellow student 
        outside of a recipient's education program or activity, and the 
        victim is thereafter, in the program or activity, taunted or 
        otherwise harassed with regard to that assault, must the 
        recipient take into account the earlier sexual assault in 
        determining whether the harassment effectively denied the 
        victim equal access to the program or activity and thus 
        constituted sexual harassment, as defined in section 106.30, in 
        that program or activity under sections 106.44(a) and 
        106.44(b)(4) and 106.45(b)(3)?

        (3) If a recipient ordinarily exercises disciplinary power over 
        student misconduct outside a program or activity, may the 
        recipient decline to do so if the misconduct is sexual 
        harassment, or would making such a gender-based exception 
        constitute discrimination on the basis of sex in violation of 
        section 106.31 and/or Title IX itself? For example, if under 
        its student code a recipient would punish a student for 
        assaulting another student outside a program or activity, may 
        the recipient ignore student-on-student sexual assault outside 
        its education program or activity?

        (4) If a recipient chooses to address a complaint involving 
        sexual harassment that did not occur in a program or activity, 
        do the proposed regulations impose any standards or procedures 
        to be followed in doing so? If so, what are those standards 
        and/or procedures?

        (5) Title IX forbids discrimination ``under'' an education 
        program or activity. Sections 106.44(a) and 106.44(b)(2) refer 
        to sexual harassment ``in'' an education program or activity, 
        and section 106.45(b)(3) refers to sexual harassment ``within'' 
        a program or activity. Do ``in'' and ``within'' in those 
        proposed sections mean something different than ``under'' in 
        Title IX, and if so what is the difference in meaning?

        (6) Title IX forbids ``discrimination'' under an education 
        program or activity. Sections 106.44(a) and 106.44(b)(2) refer 
        to ``sexual harassment'' in an education program or activity. 
        If sexual harassment occurred outside an education program or 
        activity, but resulted in discrimination under the education 
        program or activity, would a recipient be required to respond 
        to that situation?

        (7) Under Title IX an individual may not be ``excluded'' from a 
        federally assisted program or activity on the basis of gender. 
        If a recipient knows that sexual harassment which did not occur 
        ``in'' its education program or activity nonetheless 
        effectively excludes the victim from equal access to that 
        program or activity, is the recipient required to respond?

    Sexual Harassment and Equal Access

        (8) If a recipient chooses to address a complaint involving 
        unwelcome conduct on the basis of sex that did not effectively 
        deny the complainant equal access to the recipient's education 
        program or activity, and that is not otherwise ``sexual 
        harassment' as defined in section 106.30, do the proposed 
        regulations impose any standards or procedures to be followed 
        in doing so? If so, what are those standards and/or procedures?

        (9) If a recipient exercises disciplinary power over student 
        misconduct that does not affect the complainant's access to its 
        program or activity, may the recipient decline to do so for 
        sexual harassment, or would making such a gender-based 
        exception constitute discrimination on the basis of sex in 
        violation of section 106.31 or Title IX itself? For example, if 
        under its student code a recipient would punish a student for 
        harassing another student even if the harassment did not affect 
        access, may the recipient refuse to respond to sexual 
        harassment unless it affects equal access?

    Quid Pro Quo Harassment

        (10) Under section 106.30 an employee ``conditioning the 
        provision of an aid, benefit, or service of the recipient on an 
        individuals' participation in unwelcome sexual conduct'' is 
        sexual harassment per se, regardless of whether or not it 
        effectively denied that individual equal access to the 
        recipient's education program or activity. Does 
        ``conditioning'' in section 106.30 mean

        (a) only an express quid pro quo demand,

        (b) a subjective intent on the part of the employee to deny the 
        aid, etc., if the individual refuses to participate, even if 
        not communicated at the time,

        (c) action by the employee which the individual reasonably 
        perceived to contain a threat of denial of an aid, etc., and/or

        (d) withholding an aid, benefit or service because an 
        individual declined to participate in unwelcome sexual conduct?

    Retaliation

        (11) Does the act of retaliating against an individual because 
        he or she declined to participate in or objected to unwelcome 
        conduct on the basis of sex constitute misconduct to which a 
        recipient must respond because that retaliation itself would 
        constitute unwelcome conduct on the basis of sex under section 
        106.30, e.g. in light of Jackson v. Birmingham Bd. of Ed., 544 
        U.S. 167 (2005)?

        (12) If a recipient has a policy forbidding false statements in 
        connection with an investigation, section 106.45(b)(2)(i)(B) 
        requires that the policy to be disclosed to the complainant and 
        respondent. If a recipient has a policy forbidding retaliation 
        against an individual for reporting or filing a formal 
        complaint about sexual harassment, or for providing information 
        in connection with an investigation of sexual harassment, what, 
        if any, is the recipient's duty to disclose this policy? Would 
        it be inconsistent with the requirement of ``equitable'' 
        treatment in section 106.8(c) and 106.45(b)(1)(i) for the 
        recipient to fail to disclose that policy?

        (13) How does the limitations under section 106.45(b)(3)(iii), 
        that prohibits a recipient from restricting ``the ability of 
        either party to discuss the allegations under investigation or 
        to gather and present relevant evidence'' interrelate to the 
        obligation to prevent and address retaliation? For example, may 
        a respondent have a private investigator speak to large numbers 
        of campus community members to obtain information about his or 
        her sexual history?

    Knowledge by A Person With Authority To Institute Corrective 
Measures

        (14) If a recipient has actual knowledge that a student or 
        employee has been subjected to unwelcome conduct on the basis 
        of sex, or of an allegation of such misconduct, but does not 
        know whether or not the misconduct effectively denied the 
        victim equal access to the recipient's education program or 
        activity, must the recipient respond under sections 106.44(a) 
        and 106.44(b)(4), at least to seek the missing information? If 
        the recipient need not and chooses not to respond to that 
        unwelcome conduct or an allegation thereof, does the respondent 
        have an obligation to inform the complainant of the nature of 
        the missing and needed additional information regarding denial 
        of equal access?

        (15) If a recipient has actual knowledge that a student or 
        employee has been subjected to sexual harassment as defined in 
        section 106.30, but does not know whether or not the sexual 
        harassment occurred in the recipient's education program or 
        activity, must the recipient respond under sections 106.44(a) 
        and 106.44(b)(2), at least to seek the missing information? If 
        the recipient need not and chooses not to respond to that 
        sexual harassment or an allegation thereof, does the recipient 
        have an obligation to inform the complainant of the nature of 
        the missing and needed additional information regarding whether 
        the sexual harassment occurred in its educational program or 
        activity?

        (16) Is a recipient required to notify employees and students, 
        in light of the definition of recipient in section 106.30, that 
        it is not obligated to address sexual harassment in its 
        education program or activity if the harassment is only 
        reported to a person who lacks authority to institute 
        corrective measures?

        (17) Must a recipient notify employees and students as to the 
        identity of the persons who have authority to institute 
        corrective measures within the meaning of section 106.30?

        (18) Is a recipient required to notify employees and students 
        when a person to whom they could ordinarily take complaints, 
        such as a dormitory resident adviser, a coach or a counselor, 
        is not a person with authority to institute corrective measures 
        under section 106.30?

        (19) Must a recipient direct any of its employees who have 
        knowledge of what could be sexual harassment (or an allegation 
        thereof), but who are not themselves persons with the authority 
        to institute corrective measures, to notify (in the absence of 
        a request for confidentiality) a person who does have authority 
        to institute corrective measures? If so, which employees must 
        be so directed?

        (20) Under section 106.8(c), which requires that a recipient 
        notify students and employees regarding how to report sex 
        discrimination and how to file a complaint of sex 
        discrimination, must the person to whom reports or complaints 
        are to be made be a person with authority to institute 
        corrective measures within the meaning of section 106.30?

    Informal Resolution

        (21) If a recipient is required only to provide the ``parties'' 
        with written notice regarding the informal process, would 
        parties mean the complainant and respondent as defined by 
        section 106.44(e)(2) & (3) only? If so, what if one or both of 
        the complainant and respondent is a minor or person who is 
        legally incompetent? Would parents and/or guardians get such 
        notice as required under Sec.  106.45(6)?

    Formal Complaint

        (22) If an individual makes a complaint that is not a formal 
        complaint as defined in section 106.30, because it is an oral 
        complaint or an unsigned written complaint, and the recipient 
        declines to treat it as a formal complaint, would it be clearly 
        unreasonable under section 106.44(a) and 106.44(b)(4) for a 
        recipient to fail to notify the complainant that it is 
        declining to do so, or to fail to notify the complainant as to 
        what additional action the complainant must take to file a 
        formal complaint?

        (23) Does the duty in section 106.44(a) and 106.44(b)(4) to not 
        respond with deliberate indifference require a recipient to 
        advise a complainant that the handling of a complaint will be 
        subject to different requirements, procedures or standards 
        depending on whether or not the complaint is written and 
        signed, and thus a formal complaint governed by section 106.45, 
        or a non-formal complaint subject only to the general 
        requirement in section 106.44(a) and 106.44(b)(4) that the 
        recipient not act with deliberate indifference? If so, to what 
        extent must the recipient explain the differences in 
        procedures? If such notification is not required, is it 
        permissible?

        (24) If a written and signed complaint alleges sexual 
        harassment in the recipient's education program or activity, 
        but does not specifically request initiation of the recipient's 
        grievance procedures as required by the definition of formal 
        complaint in section 106.30, and the recipient declines to 
        treat it as a formal complaint, do sections 106.44(a) and 
        106.44(b)(4) require the recipient to notify the complainant 
        that it is doing so, and to notify the complainant as to what 
        additional language is needed to turn the complaint into a 
        formal complaint?

        (25) If a recipient understands that individuals complaining 
        about sexual harassment are deterred from or uncomfortable 
        making signed written statements, must the recipient treat oral 
        complaints, or non-signed written complaints, as formal 
        complaints so long as they are made to the official to whom 
        formal complaints would be made?

        (26) If an institution of higher education notifies a person 
        asserting sexual harassment that he or she can file a formal 
        complaint, and offers supportive measures as defined in section 
        106.30, must the institution notify that person that if he or 
        she accepts any supportive measure, the institution will under 
        section 106.44(b)(3) be absolved of any further responsibility 
        to address the asserted sexual harassment?

        (27) Do sections 106.44(a) and 106.44(b)(4) forbid an employee 
        of a recipient from discouraging or delaying an individual from 
        filing a formal complaint or from otherwise reporting what 
        could be sexual harassment?

        (28) If a person authorized to institute corrective measures 
        knows of sexual harassment (as defined in section 106.30), or 
        allegations or a report of such sexual harassment, in a 
        recipient's education program or activity, but no formal 
        complaint as defined in section 106.30 is filed, do the 
        regulations establish any standard regarding how the recipient 
        must respond other than the general requirement in sections 
        106.44(a) and 106.44(b)(4) that the response must not be 
        ``deliberately indifferent''?

        (29) If a student gives to a person authorized to institute 
        corrective measures a document alleging that he or she was 
        subjected to sexual harassment (as defined in section 106.30) 
        by a respondent about conduct within the recipient's education 
        program or activity and requesting initiation of the 
        recipient's grievance procedure consistent with section 106.45, 
        is the recipient required by section 106.44(a) or 106.44(b)(4) 
        to conduct an investigation?

        (30) If a student makes a verbal report to a person authorized 
        to institute corrective measures alleging that he or she was 
        subjected to sexual harassment (as defined in section 106.30) 
        by a respondent about conduct within the recipient's education 
        program or activity and requesting initiation of the 
        recipient's grievance procedure consistent with section 106.45, 
        is the recipient required by section 106.44(a) or 106.44(b)(4) 
        to conduct an investigation?

    Training

        (31) Section 106.45(b)(1)(iii) requires that coordinators, 
        investigators, and decision-makers receive training on ``the 
        definition of sexual harassment.'' As used in this section, 
        does ``sexual harassment'' refer to

          (a) sexual harassment as defined in section 106.30,

          (b) sexual harassment as defined in ``the recipient's sexual 
        misconduct policy,'' which under section 106.45(b)(2)(i)(B) is 
        the standard about which the parties are notified, and which 
        under sections 106.45(b)(4)(ii)(A) and 106.45(b)(4)(ii)(D) is 
        the standard that the decision-maker applies, or

          (c) both.

        (32) If the scope of the sexual harassment forbidden by the 
        recipient's sexual misconduct policy is broader than the 
        definition of sexual harassment in section 106.30, must 
        coordinators, investigators and decision-makers be trained on 
        the narrower section 106.30 definition? If the scope of the 
        sexual harassment forbidden by the recipient's sexual 
        misconduct policy is broader than the definition of sexual 
        harassment in section 106.30, under what circumstances would a 
        coordinator, investigator or decision-maker apply the narrower 
        section 106.30 standard?

    Mandatory Dismissal

        (33) If, following the filing of a formal complaint, a 
        recipient concludes that a complainant is the victim of ongoing 
        unwelcome conduct on the basis of sex (for example, his or her 
        teacher on made several lewd remarks to the complainant) but 
        the conduct has not yet continued long enough to effectively 
        deny the victim equal access to the recipient's education 
        program or activity and thus constitute sexual harassment as 
        defined in section 106.30, is the recipient required, or 
        permitted, to dismiss the complaint under section 106.45(b)(3), 
        and to compel the victim to endure the continuing unwelcome 
        conduct on the basis of sex until it has reached the point at 
        which that misconduct effectively denies the victim equal 
        access to the recipient's program or activity, at which time a 
        new formal complaint could be filed and would be acted on?

        (34) Prior to dismissing a formal complaint under section 
        106.45(b)(3), does the requirement in sections 106.b(c) and 
        106.45(b)(1)(i) that a recipient handle a complaint in an 
        ``equitable'' manner, the requirement in sections 106.44(a) or 
        106.44(b)(4) that a recipient not act with deliberate 
        indifference, or the requirement in section 106.45(b)(1)(iii) 
        that officials be trained to ``ensure due process for all 
        parties,'' require that the recipient first

          (a) notify the complainant that it is considering such a 
        dismissal,

          (b) notify the complainant of the relevant standard regarding 
        the meaning of ``sexual harassment'' or ``in an education 
        program or activity,'' and/ or

          (c) provide the complainant an opportunity to adduce argument 
        or evidence to show that dismissal would not be warranted under 
        those standards?

        (35) If a recipient dismisses a complaint under section 
        106.45(b)(3), must the recipient provide the complainant with a 
        written explanation of that decision, including a statement of 
        any findings of fact supporting the decision?

        (36) If a recipient permits a respondent to appeal a 
        determination of responsibility, must the respondent permit a 
        complainant to appeal a dismissal under section 106.45(b)(3), 
        and if so must the recipient notify the complainant of that 
        right?

        (37) If whether a formal complaint is subject to dismissal 
        under section 106.45(b)(3) turns on a dispute of material fact, 
        must that dispute be resolved under the general standards and 
        procedures in section 106.45, or should or may the recipient 
        use some other standard and procedure?

        (38) If a recipient, as required by section 106.45(b)(3), 
        dismisses a formal complaint because the conduct did not 
        constitute sexual harassment as defined in section 106.30, may 
        the recipient then entertain under its own code a new complaint 
        regarding the misconduct alleged, so long as that new complaint 
        is not a formal complaint as defined in section 106.30?

        (39) If a recipient, as required by section 106.45(b)(3), 
        dismisses a formal complaint because the conduct did not occur 
        in an education program or activity, may the recipient then 
        entertain under its own code a new complaint regarding the 
        misconduct alleged?

        (40) Sections 106.44(a) and (b)(1) refer to ``sexual 
        harassment'' in an education program or activity. Section 
        106.45(b)(3) refers to ``conduct'' in an education program or 
        activity. Title IX refers to ``discrimination'' in an education 
        program or activity. Do ``sexual harassment'' and ``conduct'' 
        mean the same thing? Do they mean the same thing as 
        ``discrimination''? For example, if a sexual assault outside 
        the education program or activity combined with the subsequent 
        presence of the perpetrator in the program or activity to 
        discriminate against the victim, would that be within the scope 
        of section 106.45(b)(3)?

    Interim Protective Measures

        (41) Do the proposed regulations in any way restrict what 
        interim measures a recipient may take with regard to sexual 
        harassment in an education program or activity prior to a 
        determination of responsibility at the conclusion of the 
        grievance process?

        (42) Is a recipient barred (e.g. by section 106.44(d)) from 
        putting a student employee on administrative leave prior to a 
        determination of responsibility? If so,

          (a) Does ``student'' include a regular employee who is taking 
        any class?

          (b) Does ``student'' include a graduate student employee who 
        has completed all coursework and oral examinations, but still 
        has to complete his or her thesis or dissertation?

          (c) Does this rule preclude consideration of a pending 
        complaint of sexual harassment, or a prior report of sexual 
        harassment that was not resolved on the merits, in determining 
        whether to hire a student as an employee or to renew his or her 
        appointment?

          (d) Does this bar apply even though the school under its own 
        procedures might put a student employee on administrative leave 
        for misconduct other than sexual harassment?

          (e) Does the bar apply to misconduct that is otherwise 
        outside the scope of the proposed regulations because the 
        unwelcome conduct on the basis of sex did not effectively deny 
        a person equal access to the recipient's education program or 
        activity and/or was not otherwise within the section 106.30 
        definition of sexual harassment?

          (f) Does the bar apply to misconduct that is otherwise 
        outside the scope of the proposed regulations because the 
        sexual harassment did not occur in a program or activity?

        (43) Is a recipient barred (e.g., by the definition of 
        supportive measures in section 106.30) from taking any 
        disciplinary action against a respondent for sexual harassment 
        in its education program or activity prior to a determination 
        of responsibility? If so:

          (a) Does the bar apply to misconduct that is otherwise 
        outside the scope of the proposed regulations because the 
        unwelcome conduct on the basis of sex did not effectively deny 
        a person equal access to the recipient's education program or 
        activity and/or was not otherwise within the section 106.30 
        definition of sexual harassment?

          (b) Does the bar apply to misconduct that is otherwise 
        outside the scope of the proposed regulations because the 
        sexual harassment did not occur in a program or activity?

          (c) Does the bar apply to interim disciplinary action for 
        sexual harassment even though the recipient takes interim 
        disciplinary action for other conduct code violations?

          (d) May a respondent challenge an interim facially non-
        disciplinary action on the ground that the recipient's covert 
        motive for taking that action was to discipline the respondent?

        (44) Do the proposed regulations in any way restrict what 
        interim measures a recipient may take with regard to sexual 
        harassment in an education program or activity prior to a 
        determination of responsibility at the conclusion of the 
        grievance process?

        (45) Is a recipient barred (e.g., by section 106.44(c)) from 
        removing a respondent from its education program or activity on 
        an emergency basis for sexual harassment in that program or 
        activity unless that recipient determines that the respondent 
        poses an ``immediate threat'' to the health or safety of 
        students or employees? If so:

          (a) What does ``safety'' mean, e.g., is it any crime? Could 
        it encompass non-criminal activity?

          (b) What does ``health'' mean, e.g., would it include the 
        mental health of the complainant?

          (c) What does ``immediate'' mean, e.g. must a recipient 
        afford a hearing to a removed respondent in a shorter period of 
        time (``immediate'') than the period of time within which the 
        recipient must afford a complainant a hearing (``reasonably 
        prompt'' under section 106.45(b)(1)(v))?

          (d) Does the bar apply to misconduct that is otherwise 
        outside the scope of the proposed regulations because the 
        unwelcome conduct on the basis of sex did not effectively deny 
        a person equal access to the recipient's education program or 
        activity and/or was not otherwise within the section 106.30 
        definition of sexual harassment?

          (e) Does the bar apply to misconduct that is otherwise 
        outside the scope of the proposed regulations because the 
        sexual harassment did not occur in a program or activity?

          (f) Does the additional requirement that a post-removal 
        opportunity to challenge the removal be provided 
        ``immediately'' mean that a removed alleged sexual harasser is 
        entitled to an opportunity to be heard in a shorter period of 
        time than the ``prompt'' time frame for acting on a complaint 
        by an alleged sexual harassment victim?

        (46) Are recipients barred (e.g., by the definition of 
        supportive measure in section 106.30) from imposing interim 
        non-mutual no-contact orders (e.g., permitting a student to 
        contact a faculty member respondent, but not vice versa). If 
        so, does the bar apply to misconduct that is otherwise outside 
        the scope of the proposed regulations, because the unwelcome 
        conduct on the basis of sex did not effectively deny a person 
        equal access to the recipient's education program or activity 
        and/or was not otherwise within the section 106.30 definition 
        of sexual harassment, or because the sexual harassment was not 
        in the recipient's education program or activity?

        (47) Is the presumption of non-responsibility in section 
        106.45(b)(1)(iv) and section 106.45(b)(2)(i)(B) conclusive 
        until there has been a determination regarding responsibility 
        at the conclusion of the grievance process, i.e. does it 
        preclude a recipient in deciding whether to provide some 
        interim protective measure from making a preliminary 
        determination of responsibility? If so, does that bar apply to 
        unwelcome conduct on the basis of sex that is not otherwise 
        within the scope of the proposed regulations because the 
        respondent's unwelcome conduct on the basis of sex that did not 
        effectively deny a person equal access to the recipient's 
        education program or activity and was not otherwise within the 
        section 106.30 definition of sexual harassment, or to sexual 
        harassment did not occur in a program or activity?

    Clear and Convincing Evidence Standard

        (48) In resolving a complaint of sexual harassment, does 
        section 106.45(b)(4)(i) permit a recipient to apply a clear and 
        convincing evidence standard even though the recipient instead 
        uses a less-demanding preponderance of the evidence standard 
        for

          (a) all other student conduct code violations,

          (b) all or some other complaints of harassment by students,

          (c) all or some other complaints of discrimination by 
        students,

          (d) all or some other conduct code violations by students 
        that carry the same maximum disciplinary sanction,

          (e) a complaint that the individual who alleged sexual 
        harassment had made an inaccurate statement?

        (49) Under section 106.45(b)(4)(i), a recipient may not use a 
        preponderance of the evidence standard unless it uses that 
        standard for ``conduct code violations that do not involve 
        sexual harassment but carry the same maximum disciplinary 
        sanction.'' Does this bar to the use of the preponderance 
        standard apply when a clear and convincing standard is used for

          (a) all conduct code violations that carry the same maximum 
        disciplinary sanction,

          (b) a majority of conduct code violations that carry the same 
        maximum disciplinary sanction,

          (c) more than one but less than a majority of conduct code 
        violations that carry the same maximum disciplinary sanction, 
        or

          (d) even a single other conduct code violation that does not 
        involve sexual harassment but carries the same maximum 
        disciplinary sanction?

          (e) a penalty phase only (such as to impose expulsion), but 
        not for lesser penalties or to make findings of whether 
        misconduct occurred,

          (f) student infractions that are governed under a separate 
        policy from the student conduct code (such as an honor code), 
        but not for misconduct governed by the student conduct code,

          (g) student conduct code violations, but not for other forms 
        of discrimination and harassment by students?

        (50) Does this bar apply to complaints about unwelcome sexual 
        conduct that are not otherwise within the scope of the proposed 
        regulation because the conduct was not sexual harassment as 
        defined in section 105.30, or because the sexual harassment did 
        not occur in the recipient's education program or activity?

        (51) Under section 106.45(b)(4)(i), a recipient must ``apply 
        the same standard of evidence for complaints against students 
        as it does for complaints against employees.'' Is a recipient 
        required to use a clear and convincing standard for complaints 
        of sexual harassment by students if a clear and convincing 
        standard is applied to

          (a) all complaints against employees,

          (b) complaints against a majority of employees,

          (c) complaints against even a single employee

          (d) complaints about some but not all types of misconduct by 
        employees,

          (e) a complaint about even a single type of misconduct,

          (f) complaints about some forms of employee misconduct, but 
        not complaints alleging discrimination and/or harassment by 
        employees towards students,

          (g) complaints about some forms of employee misconduct, but 
        not complaints alleging discrimination and/or harassment by 
        employees towards other employees,

          (h) some, but not all, aspects of complaints against 
        employees (e.g., where the preponderance standard is used to 
        determine whether misconduct occurred, but a clear and 
        convincing standard is required for some forms of discipline 
        against a class of employees, such as revoking tenure for 
        tenured faculty)?

        (52) Does the bar to applying a preponderance standard to 
        student sexual harassment unless the recipient uses that 
        standard for ``conduct code violations that do not involve 
        sexual harassment but carry the same maximum disciplinary 
        sanction'' apply to complaints about unwelcome sexual conduct 
        that is not otherwise within the scope of the proposed 
        regulation because the conduct was not sexual harassment as 
        defined in section 105.30, or because the sexual harassment did 
        not occur in the recipient's education program or activity?

    Cross Examination and Questions Under Section 106.45(b)(3)(vi)

        (53) Under section 106.45(b)(3)(vii), must a recipient permit 
        all cross-examination questions that are relevant and outside 
        the rape shield exclusion?

        (54) Under section 106.45(b)(3)(vi), must a recipient ask all 
        questions proposed by a party that are relevant and outside the 
        rape shield exclusion?

        (55) May a recipient bar a cross-examination question, or 
        refuse to ask a question posed by a party, on the ground that 
        it is misleading, e.g. that it assumes a fact not in evidence?

        (56) May a recipient bar a cross-examination question, or 
        refuse to ask a question posed by a party, on the ground that 
        it is repetitive, e.g. the question has already been asked and 
        answered?

        (57) May a recipient bar a cross-examination question, or 
        refuse to ask a question posed by a party, on the ground that 
        it seeks privileged information, e.g. that it asks a witness 
        what he or she told his or her attorney or his or her section 
        106.45(b)(3)(iv) advisor?

        (58) May a recipient bar a cross-examination question, or 
        refuse to ask a question posed by a party, on the ground that 
        it is abusive?

        (59) Under section 106.45(b)(3)(vii), a decision-maker may not 
        rely on any statement of a party or witness if the party or 
        witness ``does not submit to cross-examination'' at the 
        hearing. Does ``does not submit to cross-examination'' refer to

          (a) a refusal to answer even a single question on cross 
        examination, a refusal to answer a significant number of cross-
        examination questions, or only a refusal to answer all cross-
        examination questions,

          (b) all refusals to answer, or only to refusals based on 
        certain objections (e.g. self-incrimination) but not others 
        (e.g., privacy, attorney-client privilege)?

        (60) If a recipient poses questions to a party or witness under 
        section 106.45(b)(3)(vi), and the party refuses to answer 
        (e.g., on grounds of self-incrimination), may the decision-
        maker nonetheless rely on the statements of that party or 
        witness?

    Duty of Recipient

        (61) Under sections 106.44(a) and 106.44(b)(4), may a recipient 
        instruct its officials that, in responding to allegations of 
        sexual harassment in an education program or activity, they are 
        not required to make a diligent, good faith effort to identify 
        and correct any sexual harassment, but need only to act in a 
        manner that is not clearly unreasonable?

        (62) Under sections 106.44(a) and 106.44(b)(4), may a recipient 
        instruct its officials that, in responding to a formal 
        complaint of sexual harassment, they may act in a manner that 
        is clearly unreasonable (e.g., in assessing the evidence), so 
        long as they comply with the procedural requirements of section 
        106.45 and thus fall into the safe harbor in section 
        106.44(b)(1) or section 106.44(b)(2)?

        (63) Is sexual harassment (as defined in section 106.30) in an 
        education program or activity of the recipient by a student or 
        employee of the recipient against a person in the United States 
        a violation of either

          (a) Title IX,

          (b) any existing regulation, or

          (c) the proposed regulation?

    For example, if a college president told an applicant that she 
would not be admitted unless she participated in unwelcome sexual 
conduct, would that quid pro quo demand violate Title IX itself or an 
existing or proposed regulation? Would the answer depend on whether the 
victim acquiesced and was admitted, or refused and was rejected?

        (64) Does intentional discrimination on the basis of sex by a 
        recipient in the manner in which it responds to a report or 
        complaint of sexual harassment violate the proposed regulation 
        (e.g. section 106.45(a)), an existing regulation, or Title IX 
        itself? If so, would the ``safe harbor'' in section 
        106.44(b)(1), section 106.44(b)(2), or section 106.44(b)(3) bar 
        such a claim?

        (65) Does the duty of a recipient under sections 106.44(a) and 
        106.44(b)(4) to respond to sexual harassment in a manner that 
        is not clearly unreasonable apply to the decision-maker's 
        factual determination as to whether the respondent was 
        responsible for the alleged sexual harassment? If so, is that 
        duty inapplicable

          (a) if the recipient follows the procedures in section 106.45 
        and thus falls within the safe harbor in section 106.44(b)(1) 
        or section 106.44(b)(2), or

          (b) because of section 106.44(b)(5)?

        (66) Does the duty of a recipient under sections 106.44(a) and 
        106.44(b)(4) to respond in a manner that is not clearly 
        unreasonable apply to the decision maker's determination 
        regarding whether, and in what manner, to discipline a 
        respondent whom the decision maker concludes is responsible for 
        sexual harassment. If so, is that duty inapplicable if the 
        recipient follows the procedures in section 106.45 and thus 
        falls within the safe harbor in section 106.44(b)(1) or section 
        106.44(b)(2)?

        (67) Does the duty of a recipient under section 106.44(a) and 
        106.44(b)(4) to respond to sexual harassment in a manner that 
        is not clearly unreasonable include consideration of whether 
        the recipient's response may fail to protect individuals other 
        than the complainant from future sexual harassment? If so, 
        would the safe harbor in sections 106.44(b)(1), 106.44(b)(2) or 
        106.44(b)(3) apply even if the recipient, by failing to do more 
        than required by those sections, created a clearly unreasonable 
        risk of sexual harassment of others? For example, if a student 
        reported that she had been forcibly raped by a faculty member, 
        and then accepted a supportive measure and did not file a 
        formal complaint, could the institution be liable if it took no 
        further action and the faculty member then forcibly raped 
        another student?

    Delays Regarding Formal Complaints

        (68) Section 106.45(b)(1)(v) provides that the existence of 
        concurrent law enforcement activity may constitute good cause 
        to extend the timeframe for responding to a formal complaint, 
        e.g. suggesting that if law enforcement officials indicate that 
        they are about to make public material information regarding an 
        alleged sexual assault. May a recipient

          (a) defer action on a formal complaint until the police close 
        a pending investigation,

          (b) defer action on a formal complaint until the final 
        resolution of a pending criminal proceeding, or

          (c) defer action because of concurrent law enforcement 
        activity even when there is no substantial reason to believe 
        that law enforcement will soon make public significant 
        information relevant to the formal complaint?

        (69) Section 106.45(b)(1)(v) requires ``reasonably prompt time 
        frames for the conclusion of the grievance process.'' (Emphasis 
        added). Does this provision, or any other provision in the 
        proposed regulations, establish any standard regarding how long 
        a recipient may delay before initiating its grievance process 
        after it has received a formal complaint that ``request[s] 
        initiation of the recipient's grievance procedures'' (see the 
        definition of ``formal complaint'' in section 106.30)?

    Harassment on Multiple Grounds

        (70) If a formal complaint alleges that the complainant was 
        harassed both because of gender and because of some other 
        characteristic (e.g., repeatedly subject to an epithet that was 
        both misogynistic and racist, or abusive action with multiple 
        motives), does the mandatory dismissal provision in section 
        106.45(b)(3) require the recipient to dismiss that aspect of 
        the complaint asserting the non-gender aspect of the 
        harassment, and deal with the two aspects of the harassment in 
        separate proceedings?

        (71) If not, in the investigation and resolution of that formal 
        complaint,

          (a) would any requirement of clear and convincing evidence, 
        under section 106.45(b)(4), apply to the non-gender aspect of 
        the complaint,

          (b) would any limitations on interim remedies apply to the 
        non-gender aspect of the complaint, or

          (c) would the right of cross-examination, under section 
        106.45(b)(3)(vii), apply to the non-gender aspect of the 
        complaint?

    Remedial Action by Recipient

        (72) Section 106.45(b)(1)(i) requires that remedies ``must be 
        designed to restore or preserve access to the recipient's 
        program or activity.'' Is a recipient required to take any 
        remedial or other action if, when the determination of 
        responsibility is finally made, no action to restore or 
        preserve access is relevant because

          (a) the student complainant has graduated,

          (b) the student complainant has withdrawn from the school and 
        does not wish to return,

          (c) the student complainant is no longer in a class with the 
        respondent teacher, or

          (d) the employee-complainant has resigned and does not wish 
        to return?

        (73) Does the word ``designed'' in section 106.45(b)(1)(i) and 
        section 106.45(b)(5), which provide that a remedy must be 
        ``designed'' to restore or preserve the complainant's access to 
        the recipient's education program or activity, mean:

          (a) that the remedy must objectively be reasonably likely to 
        restore or preserve such access, or

          (b) that the decision-maker must have had a subjective intent 
        to restore or preserve such access, or

          (c) both?

        (74) Under section 106.45(b)(1)(i), so long as a remedy is 
        designed to restore or preserve access, or if no such 
        restorative or preservative action is warranted, are there any 
        circumstances in which a recipient is required to discipline 
        the respondent found responsible for the sexual harassment at 
        issue? If so, in what circumstances would that obligation 
        exist?

    Appeals

        (75) Section 106.45(b)(5) provides, regarding appeals:

    In cases where there has been a finding of responsibility, although 
a complainant may appeal on the ground that the remedies are not 
designed to restore or preserve the complainant's access to the 
recipient's education program or activity, a complainant is not 
entitled to a particular sanction against the respondent.

    May a complainant appeal the sanction imposed on the respondent, 
other than on the ground that the sanction was not designed to restore 
or preserve the complainant's access to the recipient's education 
program or activity?

    Remedial Action by OCR

        (76) In response to a complaint from an individual asserting 
        that he or she was subject to sexual harassment in an 
        educational program or activity receiving federal financial 
        assistance, will the Assistant Secretary under section 106.3(a) 
        determine whether such sexual harassment occurred, or instead 
        determine only:

          (a) whether the sexual harassment was known to a person with 
        the authority to institute corrective measures on behalf of the 
        recipient, or there was a formal complaint, and if so

          (b) whether the recipient was within the safe harbor in 
        sections 106.44(b)(1), 106.44(b)(2), or 106.44(b)(3), and if 
        not

          (c) whether

            (i) the recipient's response to that knowledge was 
        deliberately indifferent, and

            (ii) the recipient violated a procedural requirement in 
        section 106.45?

    Required Reports

        (77) Section 106.45(b)(7)(i)(A) requires that a recipient 
        maintain records of every ``sexual harassment investigation.''

          (a) Does this include an investigation of unwelcome conduct 
        on the basis of sex that did not effectively deny the victim 
        equal access to the recipient's program or activity, and was 
        not otherwise sexual harassment within the meaning of section 
        106.30?

          (b) Does this include an investigation of sexual harassment 
        that did not occur in the recipient's education program or 
        activity?

        (78) Section 106.45(b)(7)(i)(A) requires that a recipient 
        maintain records of any actions taken ``in response'' to any 
        report or formal complaint of sexual harassment.

          (a) Is a recipient required to maintain a record of a report 
        or formal complaint of sexual harassment if the recipient 
        failed to take any such action at all in response to that 
        report or formal complaint?

          (b) Does this requirement apply only to reports or formal 
        complaints that were known at the time to an individual with 
        authority to institute corrective measures?

          (c) Does this requirement include reports of responses to 
        allegations of unwelcome conduct on the basis of sex that were 
        not within the section 106.30 definition of sexual harassment, 
        or to reports of sexual harassment that was not within a 
        recipient's education program or activity?

    Relationship to Title VII

        (79) Is a recipient required to comply with a provision of the 
        regulation where doing so would, with regard to a pending or 
        potential Title VII claim by an employee of the recipient, (a) 
        impair its affirmative defense under Faragher v. City of Boca 
        Raton, 524 U.S. 775 (1998), and Ellerth v. Burlington 
        Industries, Inc, 524 U.S. 742 (1998), or (b) constitute or be 
        evidence of negligence in responding to sexual harassment?

    Notification of Policy by Educational Institutions Controlled by 
Religious Organizations

        (80) Section 106.8(b)(1) requires all recipients to notify 
        applicants, students, employees and others ``that it does not 
        discriminate on the basis of sex in the education program or 
        activity that it operates, and that it is required by Title IX 
        and this part not to discriminate in such a manner.'' Section 
        106.12(a) states that ``[t]his part'' (presumably including 
        section 106.8(b)(1)) ``does not apply to an educational 
        institution which is controlled by a religious organization to 
        the extent application of this part would be consistent with 
        the religious tenets of such organization.'' Is an educational 
        institution within the scope of section 106.12(a) required to

          (a) notify applicants, students, employees and others that it 
        does not discriminate on the basis of sex, even though that is 
        not true, or

          (b) notify applicants, students, employees and others that it 
        does not discriminate on the basis of sex, except in 
        circumstances identified in that notification that are 
        permissible because of section 106.12(a)?
                           Concluding Remarks
    We are convinced that this list, despite including 80 questions, is 
incomplete. If these regulations are finalized in even close to their 
proposed form, many more questions will arise the moment any 
institution attempts to comply with them. The recent history of OCR 
enforcement of Title IX regarding sexual harassment has been 
characterized by educational institutions, especially at the post-
secondary level, asking so many compliance questions of OCR that in 
only three years after issuing the 2011 Dear Colleague Letter on Sexual 
Violence, OCR issued a 46-page ``Questions & Answers'' guidance 
document addressing 52 of the most frequently asked questions. This 
number of frequently asked questions was in response to a guidance 
document that OCR itself made clear would not and could not be enforced 
in the way that it could enforce regulations subject to notice and 
comment. These proposed regulations would have the force of law in a 
manner that neither the 2011 or 2014 guidance documents did, therefore 
they need to be more clear, not less.

    Signed on February 15, 2019, by:
    (institutional affiliations provided for identification purposes 
only)

    Maryam Ahranjani, Assistant Professor of Law, University of New 
Mexico

    Susan Frelich Appleton, Lemma Barkeloo & Phoebe Couzins Professor 
of Law, Washington University School of Law

    Kelly Behre, Director, Family Protection Clinic, UC Davis School of 
Law

    Linda L. Berger, Family Foundation Professor of Law, UNLV

    Stephanie Bornstein, Associate Professor of Law, University of 
Florida Levin College of Law

    Robin Boyle, Professor, Legal Writing, St. John's University School 
of Law

    Deborah L. Brake, Professor of Law, University of Pittsburgh School 
of Law

    Hannah Brenner, Associate Professor of Law, California Western 
School of Law

    Erin Buzuvis, Professor of Law, Western New England University

    Nancy Chi Cantalupo, Associate Professor of Law, Barry University 
Dwayne O. Andreas School of Law

    June R Carbone, Professor of Law, University of Minnesota

    Gilbert Paul Carrasco, Professor of Law, Willamette University

    Kim D. Chanbonpin, Professor of Law, The John Marshall Law School

    Marguerite Chapman, Professor Emerita of Law, University of Tulsa

    J. Stephen Clark, Professor of Law, Albany Law School

    Jessica A. Clarke, Professor of Law, Vanderbilt University Law 
School

    Thomas D. Cobb, Senior Lecturer, University of Washington School of 
Law

    David S. Cohen, Professor of Law, Drexel University Kline School of 
Law

    Kim Diana Connolly, Professor of Law and Vice Dean for Advocacy and 
Experiential Learning, University at Buffalo School of Law

    Bridget J. Crawford, James D. Hopkins Professor of Law, Elisabeth 
Haub School of Law at Pace University

    Mary Crossley, Professor of Law, University of Pittsburgh School of 
Law

    Michele Landis Dauber, Frederick I. Richman Professor of Law, 
Stanford Law School

    Susan L. DeJarnatt, Professor of Law, Temple University Beasley 
School of Law

    Michelle Madden Dempsey, Harold G. Reuschlein Scholar Chair and 
Professor of Law, Villanova University School of Law

    Greer Donley, Assistant Professor of Law, University of Pittsburgh 
Law School

    Margaret Drew, Associate Professor of Law, University of 
Massachusetts School of Law

    Laura L. Dunn, Adjunct, University of Maryland Carey School of Law

    Kathleen Engel, Research Professor, Suffolk University Law School

    Jeffrey M. Feldman, Affiliate Professor of Law, University of 
Washington

    Iva Johnson Ferrell, Associate Professor of Legal Methods, Widener 
University Delaware Law School

    Taylor Flynn, Professor of Law, Western New England University 
School of Law

    Sally Frank, Professor of Law, Drake University

    Ann E. Freedman, Associate Professor of Law, Rutgers Law School

    Charlotte Garden, Associate Professor, Seattle University School of 
Law

    Tianna Gibbs, Assistant Professor of Law, University of the 
District of Columbia David A. Clarke School of Law

    Brian Gilmore, Clinical Associate Professor of Law, Michigan State 
University

    Julie Goldscheid, Professor of Law, CUNY Law School

    Josie M. Gough, Assistant Dean, Inclusion, Diversity and Equity, 
Loyola University Chicago School of Law

    Joanna L. Grossman, Endowed Chair in Women and Law & Professor of 
Law, SMU Dedman School of Law

    L. Camille Hebert, Carter C. Kissell Professor of Law, The Ohio 
State University Moritz College of Law

    Wes Henricksen, Assistant Professor of Law, Barry University School 
of Law

    Tanya Hernandez, Professor of Law, Fordham University School of Law

    Kathy Hessler, Clinical Professor of Law, Lewis & Clark

    Anne Sikes Hornsby, Professor of Clinical Legal Education, retired, 
University of Alabama

    Mary A. Hotchkiss, Principal Lecturer in Law, University of 
Washington School of Law

    Miranda Johnson, Clinical Professor of Law, Loyola University 
Chicago School of Law

    Marcy L. Karin, Jack & Lovell Olender Professor of Law, University 
of the District of Columbia David A. Clarke School of Law

    Susan King, Associate Professor, Legal Methods, Delaware Law 
School, Widener University

    Judith E. Koons, Professor of Law (retired), Barry University 
School of Law

    Minna Kotkin, Professor of Law, Brooklyn Law School

    Daniela Kraiem, Practitioner in Residence, American University 
Washington College of Law

    Donna H. Lee, Professor of Law, CUNY School of Law

    Mary A. Lynch, Kate Stoneman Chair in Law and Democracy, Albany Law 
School

    Catharine A MacKinnon, Professor of Law, University of Michigan, 
Harvard Law long term visitor

    Anna C. Mastroianni, Professor of Law, University of Washington 
School of Law

    Lisa A. Mazzie, Professor of Legal Writing, Marquette University 
Law School

    Marcia L. McCormick, Professor of Law and of Women's and Gender 
Studies, Saint Louis University

    Ann C. McGinley, William S. Boyd Professor of Law, University of 
Nevada, Las Vegas, Boyd School of Law

    Jessica Mindlin, Adjunct Professor of Law, Lewis and Clark Law 
School

    Laurie Morin, Professor of Law, UDC Law

    Mary-Beth Moylan, Associate Dean for Experiential Learning, 
University of the Pacific, McGeorge School of Law

    Judith Olin, Assistant Clinical Professor, University at Buffalo 
School of Law

    Kathleen O'Neill, Professor Emerita of Law. University of 
Washington School of Law

    David B. Oppenheimer, Clinical Professor of Law, University of 
California, Berkeley

    Laura Padilla, Professor of Law, California Western School of Law

    Cathren Page, Associate Professor of Law, Barry University School 
of Law

    Camille Pannu, Director, Aoki Water Justice Clinic, UC Davis School 
of Law

    Danielle Pelfrey Duryea, Clinical Visiting Assistant Professor of 
Law, University at Buffalo--SUNY

    Tamara Piety, Professor of Law, University of Tulsa College of Law

    Beth S. Posner, Clinical Associate Professor of Law, University of 
North Carolina

    Deborah W. Post, Professor Emerita, Touro Law Center

    Dana Raigrodski, Lecturer of Law, University of Washington School 
of Law

    Allie Robbins, Associate Professor of Law, CUNY School of Law

    Florence Wagman Roisman, William F. Harvey Professor of Law and 
Chancellor's Professor, Indiana University Robert H. McKinney School of 
Law

    Anibal Rosario Lebron, Assistant Professor of Lawyering Skills, 
Howard University School of Law

    Jennifer N. Rosen Valverde, Clinical Professor of Law, Rutgers 
University School of Law

    Merrick Rossein, Professor of Law, City University of New York 
School of Law

    Robin Runge, Professorial Lecturer in Law, The George Washington 
University Law School

    Eric Schnapper, Professor of Law, University of Washington

    Antoinette Sedillo Lopez, Emerita Professor of Law, University of 
New Mexico

    Jodi L. Short, Hon. Roger J. Traynor Professor of Law, Hastings Law

    Jana Singer, Jacob A. France Professor of Law, Emeritus, University 
of Maryland Francis King Carey School of Law

    Kathryn M Stanchi, Jack E. Feinberg Professor of Litigation, Temple 
University Beasley School of Law

    JoAnne Sweeny, Professor of Law, University of Louisville

    Bonny L. Tavares, Assistant Professor, Temple University Beasley 
School of Law

    Kristen Tiscione, Professor of Law, Legal Practice, Georgetown 
University Law Center

    Enid Trucios-Haynes, Professor of Law, Louis D. Brandeis School of 
Law, University of Louisville

    Lea B. Vaughn, Professor of Law, University of Washington

    Salma Waheedi, Lecturer on Law and Clinical Instructor, Harvard Law 
School

    Lu-in Wang, Professor of Law, University of Pittsburgh School of 
Law

    Merle H. Weiner, Philip H. Knight Professor of Law, University of 
Oregon

    Mark E. Wojcik, Professor of Law, The John Marshall Law School

    Dwayne Kwaysee Wright, Visiting Assistant Professor, Savannah Law 
School
                                 ______
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                           Washington School of Law
                           University of Washington
                                                     March 27, 2019
Hon. Lamar Alexander, Chairman
Hon. Patty Murray, Ranking Member
U.S. Senate Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.
    Dear Chairman Alexander, and Ranking Member Murray:

    At the hearing to be held on April 2, 2019, the witnesses will 
offer a variety of views about the wisdom and legality of the 
regulations proposed by the Department of Education regarding the 
manner in which educational institutions that receive federal financial 
assistance should carry out their obligations under Title IX regarding 
sexual harassment. The controversy regarding how educational 
institutions should deal with sexual harassment is exceedingly complex, 
and the efforts of any one administration to establish a detailed set 
of standards is likely to be reassessed and altered by a subsequent 
administration. The policy of Secretary DeVos is based, to a 
significant degree, on her disapproval of the Title IX sexual 
harassment guidance of the Obama administration, and there will 
undoubtedly come a time when another Secretary of Education in turn 
will disagree with the DeVos regulations, and will rescind or rewrite 
them . Continuing alterations in federal standards will impose an 
unreasonable burden on the affected educational institutions, and will 
ill-serve the interests of complainants and respondents.

    The Committee should explore ways in which a degree of stability 
could be brought to this area of the law. Rather than leaving the 
entire problem to regulation by the Department of Education, resulting 
in regulations subject to redrafting with each change in 
administration, the Committee should reassess the respective roles of 
Congress, the Department of Education, and the courts in fashioning the 
standards governing how an educational institution receiving federal 
funds should address harassment of students, including but not limited 
to harassment on the basis of sex, that violates federal law.

    There are several fundamental issues which the Committee could 
productively consider, and which the Committee might invite the 
scheduled witnesses to address.

    Should the constitutional due process standards be extended to 
students at non-public schools receiving federal financial assistance 
who are alleged to have engaged in harassment forbidden by federal law?

    The Department of Education, and some of those who support the 
proposed regulations, have argued that students facing disciplinary 
action for alleged sexual harassment should be accorded due process. 
Students at public colleges and universities, as well as at public 
primary and secondary schools, already have a constitutional right to 
due process before significant disciplinary action can be taken that 
would interfere with their education. The Supreme Court has held that 
students in state and local schools have a liberty interest in their 
education, and that they can only be deprived of that interest in a 
manner consistent with the Due Process Clause of section 1 of the 
Fourteenth Amendment. Goss v. Lopez, 419 U.S. 565 (1975).

    But the constitutional guarantee of due process does not ordinarily 
apply to private institutions, even though they may receive substantial 
federal or state financial assistance. See Rendell-Baker v. Kohn, 457 
U.S. 830 (1982). The Fourteenth Amendment's guarantee of due process 
forbids only the states (and their agencies and subdivisions), not 
private institutions, to deprive any person of life, liberty or 
property without due process of law. The Notice of Proposed Rulemaking 
recounts that there are a number of cases in which courts found that 
due process violations had occurred in proceedings against individuals 
alleged to have engaged in sexual harassment, In fact, however, many of 
these lawsuits did not constitutional due process at all; they were 
suits against private colleges and universities, and were based, not on 
the Fourteenth Amendment, but on contract claims or state law. 
Respondents at such private schools must rely on contract and state law 
claims precisely because they were not protected by the constitutional 
due process standards. State laws on which respondents rely vary 
widely, and the existence of a colorable contract claim would depend on 
the rules and practices of particular institutions.

    The proposed regulations seek to address this situation by 
establishing a complex body of rules that would extend to respondents 
at private (as well as public) institutions. It is far from clear that 
the Department's authority to issue regulations ``to effectuate'' Title 
IX encompasses the authority to create such rules. 20 U.S.C. Sec.  
1682. And, unlike the constitutional guarantee that applies to students 
in public institutions, the regulatory protections proposed by the 
current administration could be modified or entirely rescinded by a 
future administration, either because it disagreed with those 
regulations or because it thought them outside the authority of the 
Department.

    The Committee should consider whether Congress should by statute 
provide that students at private institutions facing disciplinary 
action for conduct that violates federal law should be accorded the 
procedural rights that under the Due Process Clause would apply to 
students at public institutions. In that context, it would be 
appropriate to consider whether such a statute should apply not only to 
harassment forbidden by Title IX, but also to harassment forbidden by 
Title VI and by section 504 of the Rehabilitation Act of 1973.

    Should the Department of Education be forbidden to require that 
students alleged to have engaged in harassment forbidden by federal law 
be accorded special procedural rights greater than those provided to 
other students under the constitutional due process standard?

    Although the Department's justification for the proposed 
regulations repeatedly refers to due process, the regulations go far 
beyond what is required by the Due Process Clause itself. Under long-
established Supreme Court precedents, the Due Process Clause requires a 
case-specific balancing of several factors, including the seriousness 
of the misconduct, the magnitude of the proposed disciplinary action, 
and the reliability of the procedures a school proposes to use. Mathews 
v. Eldridge, 424 U.S. 319 (1976). ``The very nature of due process 
negates any concept of inflexible procedures universally applicable to 
every imaginable situation.'' Cafeteria Workers v. McElroy, 367 U.S. 
886, 895 (1961). This flexible constitutional standard bears little 
resemblance to the proposed rigid, one-size-fits-all regulatory scheme. 
Some procedures in the proposed regulations would be required by the 
Due Process Clause in some instances, but many would often not be 
required, and some would never be. In the Notice of Proposed 
Rulemaking, and in the Department's public statements, ``due process'' 
refers to the particular procedures personally favored by the current 
Secretary, not to the constitutional standards.

    The Committee should consider whether the Department should barred 
from requiring more than what the Due Process Clause mandates, and from 
requiring that educational institutions to accord to students alleged 
to have engaged in sexual harassment special procedural rights that 
would not be available (even if the Due Process Clause applied) to a 
student charged with other types of misconduct. Under the proposed 
regulations, for example, a student at a state school charged with 
sexual assault would have a more protective set of procedural rights 
than a student charged with other types of assault, with racial 
harassment, or with cheating on a test. A state institution which made 
such a gender-based distinction on its own initiative would be subject 
to challenge under Title IX itself, and a federal requirement that it 
do so would raise serious problems under the Equal Protection 
requirement of the Fifth Amendment. Moreover, unlike a statutory 
guarantee of constitutional due process, special procedural protections 
under one administration for respondents in sexual harassment cases 
could be replaced by a regulation with few if any protections for 
respondents under another administration.

    If federal protections for respondents were replaced by a statutory 
guarantee of constitutional due process standards, the law would remain 
stable despite changes in the administration. Article III courts, not 
officials of the Executive Branch, are responsible for interpreting the 
Constitution. The current dispute about whether respondents should be 
accorded a right to cross examination, and if so under what conditions, 
would be resolved by the courts, not through rulemaking, and the 
resolution of that dispute would not change with the election results.

    Should individuals who complain about harassment forbidden by 
federal law be guaranteed procedural rights comparable to those 
accorded to individuals alleged to have engaged in such harassment?

    Although the Due Process Clause affords procedural rights to 
respondents facing disciplinary action for sexual harassment (or any 
other misconduct), the Clause does not (at least usually) provide 
protections for the victims of sexual harassment. A respondent has a 
constitutional right to due process when a school takes disciplinary 
action (such as suspension or expulsion) that adversely affects his or 
her liberty interest in an education; the courts, however, have not 
generally recognized a comparably protected liberty interest on the 
part of a complainant. Although a complainant might assert the he or 
she had such a liberty interest if a school's failure to deal with 
sexual harassment drove her out of the school, whether the courts would 
so hold is far from clear.

    Students who complain to their schools about sexual harassment are 
too often denied the types of procedural protections that are accorded 
to respondents. The scope and effectiveness of a purely regulatory 
solution would necessarily vary with the policies of each 
administration. Under section 106.45(b)(3) of the proposed regulations, 
for example, a school could decide that a sexual harassment complaint 
was not sufficiently serious, or not sufficiently connected with a 
federally assisted program or activity, and summarily dismiss the 
complaint, without first telling a complainant that dismissal was under 
consideration or permitting him or her to address the proposed reason 
for dismissal.

    The Committee should consider whether this problem should be 
addressed by expressly tying the level of procedural protections for 
complainants to the level of procedural protections accorded to 
respondents.

    Should institutions receiving federal financial assistance be 
required to exercise the same degree of care to protect students from 
harassment forbidden by federal law as Title VII requires those 
institutions to exercise to protect employees from unlawful harassment?

    The controversy surrounding the proposed regulations has 
highlighted an incongruous difference in the degree of protection from 
sexual harassment accorded by federal law to employees of educational 
institutions (including student-employees, such as teaching assistants 
or research assistants) and to students at those same institutions.

    Under the Supreme Court decisions in Faragher v. City of Boca 
Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 
524 U.S. 742 (1998), a school is required by Title VII to use 
reasonable care to protect employees from sexual harassment. That 
obligation includes both reasonable care to prevent sexual harassment, 
and reasonable care to correct sexual harassment when it does occur. 
Title VII applies to harassment by peers, as well as to harassment by a 
supervisor. Under the Court's Title IX decisions in Gebser v. Lago 
Vista Ind School Dist., 524 U.S. 724 (1998), and Davis v. Monroe Cty. 
Bd. of Ed, 526 U.S. 629 (1999), on the other hand, a school may need to 
do no more than avoid deliberate indifference with regard to reports of 
sexual harassment. Although the exact scope of the duty to protect 
students under Gebser and Davis is to some extent in dispute, it is 
clearly less demanding than the duty to protect employees under 
Faragher and Ellerth.

    This distinction has practical consequences which are impossible to 
justify as a matter of federal policy. If a college or university 
receives a complaint that a professor sexually harassed a 30-year old 
teaching assistant and an 18-year old freshman, the school has a far 
greater incentive to protect the teaching assistant than the student. 
If an elementary school receives a complaint that a teacher is sexually 
harassing a 22 year-old student teacher, and a 12 year-old girl, the 
school has a greater incentive to protect the student teacher, even 
though the younger victim is clearly more vulnerable. If in such 
situations both victims were to sue the school for failing to take 
effective action to address the harassment, the outcome might be 
different depending on whether the plaintiff was an employee or only a 
student. A student who works in the school bookstore enjoys one level 
of protection while in the store, and a lesser degree of protection 
while in his or her dorm. A school faces potential liability if it 
fails to take affirmative steps to prevent harassment student-on-
student harassment of a teaching assistant, but may not face liability 
if it does nothing (until there is a complaint or some other report) to 
prevent student-on-student harassment of a non-employee student.

    Because this problem involves two separate federal statutes, it is 
one which Congress is best able to address.
            Yours sincerely,
                                             Eric Schnapper
                                                   Professor of Law
                                 ______
                                 
            Statement of Sen. Braun Submitted for the Record
    Today's hearing shines a light on a very serious problem on college 
campuses regarding sexual assault. Universities and colleges need to 
provide a safe and supportive campus environment, while also ensuring 
there is a secure system in place to provide victims of sexual assault 
with the proper care following any incidents. As a society, we must 
condemn and speak out about sexual violence, educate against such 
behavior, and punish those who perpetrate it, all while ensuring due 
process occurs, which is not mutually exclusive.
                                 ______
                                 
Hon, Betsy DeVos, Secretary of Education
U.S. Department of Education,
400 Maryland Avenue,
Washington, DC.
January 29, 2019

    Dear Secretary DeVos:

    I write to express my deep concern with the Department of 
Education's new proposed rule for Title IX of the Education Amendments 
Act of 1972 (Title IX). Title IX was established to ensure that 
discrimination based on sex, including sexual harassment, would not 
impede a student's right to education. It is intended to provide 
crucial protections to all students and direct the response of schools 
that receive federal funding to reports of sexual harassment and 
assault. The proposed regulation serves to roll back important 
processes and protections for survivors of sexual assault and violence, 
posing a threat to student safety on campuses across the country and 
possibly undermining the intent of Title IX. Thus, I urge you to 
immediately reconsider the proposed regulation.

    In September 2017, over 16,000 formal comments were submitted 
during the comment period on deregulation. These demonstrated 
overwhelming support for the Obama administration's 2011 and 2014 Title 
IX guidance documents. Yet, ignoring the voices of survivors and 
advocates, you chose to rescind these vital civil rights documents, 
replacing them with interim guidance that left survivors and schools in 
the lurch for over a year. As proposed, the Title IX rule weakens the 
responsibility of schools to adequately respond to instances of sexual 
harassment and assault.

    Of particular concern, is the proposed regulation's narrowed 
definition of sexual harassment to only include ``unwelcome conduct on 
the basis of sex that is so severe, pervasive, and objectively 
offensive that it effectively denies a person equal access to the 
school's education program or activity; or sexual assault.'' In 
accordance with this definition, students must wait and endure sexual 
harassment up to the point of it severely impeding their education 
before they may even file a complaint. This is counter to the intent of 
Title IX to prevent cases of sexual harassment and assault from 
escalating to the level of disrupting a student's education.

    Additionally, under the proposed regulation, schools would only be 
required to investigate complaints if a survivor reports to an 
individual with the ``authority to institute corrective measures.'' 
However, the regulation does not require schools to make these 
officials known to students, placing an undue burden on survivors to 
seek out the appropriate person with whom to file a report. This 
requirement will likely result in a decrease in the number of cases 
investigated on campuses, further discouraging survivors from coming 
forward with complaints. Similarly, by limiting the school's 
responsibility to cases in which the alleged harassment must have 
occurred within the school's own ``education program or activity'', the 
proposed rule fails to protect students in most off-campus housing and 
all incidences of online harassment. Narrowing the scope of 
institutional responsibility to prevent and address instances of sexual 
harassment and assault under Title IX will not reduce their occurrence. 
Instead, survivors will have weakened protections and fewer recourses 
to justice, resulting in diminished access to their right to education.

    Overall, the entire proposed regulation undermines the original 
intent of Title IX to ensure that discrimination based on sex, 
including sexual harassment, does not impede a student's right to 
education. I urge you to immediately reconsider the proposed Title IX 
regulation.

            Sincerely,
                                             Hon. Tim Kaine
                                 ______
                                 
                        COMMONWEALTH OF VIRGINIA
             STATE COUNCIL OF HIGHER EDUCATION FOR VIRGINIA
    January 28, 2019

    This memo is intended to provide formal comments pursuant to the 
request for public comment on the U.S. Department of Education's draft 
rules entitled, ``Nondiscrimination on the Basis of Sex in Education 
Programs or Activities Receiving Federal Financial Assistance,'' as 
published in the Federal Register on November 29, 2018.

    The comments below on the proposed regulations are provided to the 
U.S. Department of Education by the Sexual Violence Advisory Committee 
(SVAC) of the State Council of Higher Education for Virginia (SCHEY). 
SCHEY is the Commonwealth of Virginia's coordinating body for higher 
education. In partnership with state and federal agencies, 
organizations, and public and private institutions, SCHEY advocates for 
best practices and accountability in advancing higher education in the 
Commonwealth. The SVAC provides guidance on sexual violence policy, 
response, and education in higher education to the state's policy 
makers, legislators, other elected officials, and college and 
university leaders. Membership is multi-disciplinary including 
administrators from Title IX offices, student affairs, academic 
affairs, human resources, and law enforcement, with counsel to 
institutions serving as legal advisors.

    The SVAC is grateful to the U.S. Department of Education for the 
opportunity to provide comment and for the consideration of these and 
the many other comments submitted.
                              Introduction
    In 2015, at the conclusion of a statewide gubernatorial task force 
and state legislation specific to campus sexual violence, SCHEY 
established the SVAC with representation from two and four-year public 
and private colleges and universities in Virginia. The Commonwealth 
benefits from community colleges, single-sex institutions, institutions 
ranging in size and type from small liberal arts colleges to large 
research universities, schools located on rural and urban campuses, 
highly resourced and under-resourced institutions, and Historically 
Black Colleges and Universities. Meeting regularly, the SVAC identifies 
programs, policies, training, and education opportunities to prevent 
and respond to sexual violence within the Commonwealth's institutions 
of higher education. The SVAC comments on the proposed regulations are 
the result of discussions that included colleges and universities in 
the Commonwealth who participated in meetings and discussions convened 
by the SVAC. Not all institutional representatives to the SVAC chose to 
participate.

    The SVAC comments are categorized as follows: l. General Comments, 
II. Response to Specific Proposed Regulations, III. Response to 
Directed Questions, and IV. Cost and Implementation. In addition, the 
SVAC prioritized specific concerns. These concerns are incorporated 
throughout this document and included in comments on specific proposed 
regulations and in response to the directed questions. These concerns 
are:

          Chilling effect of legalistic procedural 
        requirements;

          Jurisdiction;

          Regulation of perceived bias;

          Mandatory live hearings;

          Cross-examination in such live hearings;

          Role of advisors throughout the investigation and 
        adjudication; and

          Standard of proof.

    Furthermore, of significant concern to the SVAC are the increased 
costs likely to be associated with implementing the proposed 
regulations. In particular, colleges and universities with limited 
resources find daunting the possibility of having to implement these 
requirements. These costs include: hiring specialized personnel (such 
as advisors, hearing officers, and counsel), technology (including 
software purchase and launch and technology for cross-examination in 
hearings), the construction or renovation of space to allow for 
simultaneous, screened-off hearings, dedicated advisors (for both 
parties), training on implementation (for all involved, mediation/
informal processes, and faculty/staff/students), and costs associated 
with increased documentation (including software purchase, launch, and 
maintenance).

    The Commonwealth's institutions of higher education are deeply 
committed to responding effectively to reports of sexual harassment and 
violence. In addition, all institutions are dedicated to fair and 
equitable processes that protect the rights of all parties.
                          I. General Comments
    The SVAC reviewed and discussed the proposed regulations in the 
context of its goal to promote effective policies and procedures for 
responding to reports of sexual violence keeping in mind the original 
intentions of Title IX. Comments below highlight the possible impact on 
institutions in Virginia and their ability to effectively prevent and 
address sex discrimination so that no person is excluded from 
participation in, denied the benefits of, or subject to sex 
discrimination in the educational programs and activities of the 
Commonwealth's colleges and universities. Of particular concern is the 
degree to which the proposed regulations will have a ``chilling 
effect'' on individuals seeking assistance. The inclusion of legalistic 
procedures into conduct processes imports the adversarial nature of 
court proceedings into institutional processes intended to be 
educational. Rather than encouraging reports of sexual misconduct these 
processes run the risk of serving as a barrier resulting in 
institutional risk and an inability to preserve a safe and equitable 
educational environment. General comments include over-arching concerns 
with the understanding that each college and university within the 
Commonwealth is unique in culture, history, mission, size, geographic 
location and with access to varying levels of resources.
            I. Autonomy of Institutions of Higher Education
    The tradition of institutional autonomy in American higher 
education mandates that each institution support student and employee 
conduct and productivity within the context of the college or 
university's mission and history. To this end, the comments below point 
to ways in which the proposed regulations jeopardize institutional 
culture.

          Institutional policies and processes designed to 
        guide student and employee conduct are developed within the 
        mission, history, and legal contexts of the college or 
        university and in concert with state and federal law and each 
        institution's governance processes. Institutional policies and 
        practices are not ''one size fits all.'' An alternative would 
        be for the U.S. Department of Education (Department) to provide 
        expectations and guidelines, through technical assistance, for 
        adjudicating a case and allow institutions to create the 
        procedure that works within their culture.

          Within each institution, students and employees have 
        distinct and separate processes for upholding and correcting 
        conduct. Institutional legal relationships and contracts are 
        distinct for students and for employees. The proposed 
        regulations appear to apply the same processes, including the 
        same standard of evidence, to both groups. Institutions must be 
        allowed to promulgate policy and processes that comply with 
        federal and state laws and regulations and simultaneously take 
        into account the unique legal and contractual relationships for 
        both students and employees. Directed question number three 
        seeks comment regarding anything in the proposed regulations 
        that will prove unworkable in the context of sexual harassment 
        by employees. Requiring the same standard of evidence for both 
        students and employees will prove unworkable for many 
        institutions in the country.

          The proposed regulations jeopardize institutional 
        autonomy by dictating the manner in which processes are 
        administered. The inclusion of legalistic processes is not 
        appropriate for colleges and universities whose primary focus 
        for addressing misconduct is educational in nature. 
        Institutions should not be directed to conduct ``trial-like'' 
        hearings as proposed in the regulations.

          The prescriptive procedural requirements contained in 
        these regulations will cause institutions to be inconsistent 
        within different types of conduct/disciplinary related 
        procedures.

          The proposed requirement that the institution will 
        only investigate and consider formal written and signed 
        complaints conflicts with an institution's commitment to a safe 
        learning and working environment. Institutions are committed to 
        preventing harm to the broader community and limiting the 
        circumstances under which an investigation can occur limits an 
        institution's ability to be responsive and proactive. An 
        institution will want to act when it learns of the possibility 
        of sexual violence in the absence of a signed formal complaint 
        made to the Title IX Coordinator.

          Community colleges and other institutions enroll 
        students who are under the age of 18. In addition, many 
        institutions provide programs, host camps or other activities 
        aimed at youth. The regulations will require careful 
        consideration in terms of compliance with necessary laws, 
        regulations, and expectations for attending to the needs of 
        minors -whether they are students, or guests, of the 
        institution.
II. Virginia and Federal Law, Regulations, Processes and Proposed Title 
                             IX Regulations
    The proposed regulations challenge the ability of the 
Commonwealth's institutions to administer policies and procedures 
compliant with other federal and state laws and regulations. In 
Virginia, institutions integrate compassionate, timely, and fair 
processes with compliance with the Clery Act, the Violence Against 
Women Act, the variety of Title IX compliance guidance offered since 
2011, and legislation enacted in the Commonwealth of Virginia.
          Potential Inconsistencies with the Code of Virginia
          State law (Va. Code Sec.  23 .1-900) requires that 
        institutions make a notation on a student's academic transcript 
        if found responsible for sexual violence under that 
        institution's student conduct code OR if the student withdraws 
        while under investigation for a possible sexual misconduct 
        violation. The proposed regulations require a stated 
        presumption of innocence by the institution throughout 
        investigations, hearings, appeals, and sanctioning processes. 
        The requirement that institutions state a presumption of 
        innocence invites conflict with the state requirement that 
        institutions note on a transcript that a student has withdrawn 
        while under investigation for sexual misconduct and before the 
        completion of a hearing.

          State law (Va. Code Sec.  23.1-806) requires that a 
        report of sexual violence that potentially rises to the level 
        of a felony be reported within 72 hours to the Commonwealth's 
        Attorney. The proposed regulations have the potential to 
        prevent timely notifications.

          The proposed regulations create a conflict with the 
        state's definition of a responsible employee. The state, 
        following earlier Title IX guidance, has a definition that is 
        broader than the proposed ``one who has the authority to 
        institute corrective measures'' on behalf of the institution.

          State law (Va. Code Sec.  l 9.2-11.2) provides 
        victims of crime the right to nondisclosure of certain 
        information by law enforcement and other state entities. In 
        some circumstances, the proposed regulation requiring the 
        sharing of evidence might conflict with this requirement.

          Virginia's Law Enforcement Officers Procedural 
        Guarantee Act (Sec. 9.1-500) outlines processes for the 
        investigation of law enforcement officers charged with 
        misconduct, including sexual harassment that might fall under 
        Title IX. The proposed regulations might conflict with the 
        provisions for investigating a campus law enforcement officer.
      Potential Inconsistencies with Federal Laws and Regulations
          Proposed regulations require access to records by the 
        parties. The Family Educational Rights and Privacy Act (FERPA) 
        and the Virginia Health Record Privacy Act (Va. Code Sec.  
        32.1-127 .1 :03) protect the confidentiality of student 
        records. The proposed regulations appear to offer access to 
        records by all parties at various, and undetermined, moments 
        during an investigation.

          The proposed regulations conflict with mandates in 
        the amendments to the Clery Act from the Violence Against Women 
        Act. The on and off-campus discrepancies require clarification. 
        Other discrepancies between the proposed regulations, the Clery 
        Act and the Violence Against Women Act include the definition 
        of sexual assault, the role of stalking or relationship 
        violence as a violation of Title IX, and varying definitions of 
        individuals who have responsibilities for reporting within and 
        external to the institution.

          The proposed regulations do not address the 
        complexities of facts that are frequently associated with 
        reports of harassment and/or sexual violence. For example, 
        additional behaviors might play a contributing role in setting 
        the context for sexual misconduct including alcohol violations, 
        stalking, relationship violence, assault, hazing, and hate 
        crimes.

          The proposed regulations treat sexual harassment 
        policies differently than the processes used for allegations of 
        other types of discriminatory harassment such as race, 
        ethnicity, religion, disability, etc.
     II. Comments on Specific Language in the Proposed Regulations
    I. Recipient's response to sexual harassment (ProposedSec.  106.44)

    A. Adoption of Supreme Court standards for sexual harassment

           Proposed Section 106.44(a) General; Section 106.30

    Comment: The proposed regulations should be modified to address two 
areas. First, the ability of an institution to continue to apply its 
existing policies and procedures to behaviors that are not subject to 
the requirements of the proposed regulations. Second, the regulations 
should address the ability of an institution to consider conduct about 
which it is aware, but in which the complainant is not willing to sign 
a formal complaint with the Title lX Coordinator.
 B. Responding to formal complaints of sexual harassment; safe harbors
   Proposed Section 106.44(b) Specific circumstances; Section 106.30
    Comment: The requirement ``when a recipient has actual knowledge of 
reports by multiple complainants of conduct by the same respondent that 
could constitute sexual harassment, the Title IX Coordinator must file 
a formal complaint'' raises several questions. First, what is meant by 
the word ``multiple''? Are two complainants considered ``multiple''? 
Second, the regulations do not provide guidance for the receipt of 
multiple complaints (formal and informal) by the same complainant 
against the same individual or an organized group of individuals. 
Third, the regulations do not provide clarity on what the recipient's 
action ought to be when in receipt of information regarding multiple 
incidents (by single or multiple complainants). It is recommended that 
the word ``must'' be changed to the word ``may'' to allow discretion by 
the Title IX Coordinator where a formal complaint may not be warranted. 
While creating a safe harbor for universities from the Department's 
administrative enforcement, this particular safe harbor provision may 
not assist institutions when individuals sue.
  II. Grievance procedures for formal complaints of sexual harassment 
                        (Proposed Sec.  106.45)
    A. General requirements for grievance procedures

                     Proposed Section 106.45(b)(l)

    Comment: The requirement ``that any individual designated by a 
recipient as a coordinator, investigator, or decision-maker not have a 
conflict of interest or bias for or against complainants or respondents 
generally or an individual complainant or respondent'' is extremely 
broad and impossible to implement. Based on this expansive rule, many 
experienced professionals with expertise in the work associated with 
responding to reports of sexual violence will be excluded from handling 
cases even if they are objective. At many institutions, particularly 
community colleges and others with limited resources, the same 
professional may be required to administer several of the phases 
associated with responding to a complaint. At these institutions, the 
anti-bias requirement, as stated in the regulations, would preclude 
some professionals from performing their job. Universities and colleges 
currently partner with federal and state compliance agencies to 
implement policies designed to support civil and productive conduct and 
to maximize compliance. For example, institutions employ individuals, 
accountable within and external to the institution, to serve as 
internal auditors, research compliance officers, and health and safety 
personnel.
                      B. Notice and investigation
   Proposed Section 106.45(b)(3) Investigations of a formal complaint
    Comment: Institutional jurisdictional problems are created by the 
proposed regulations that limit investigations to complaints ``that 
occur within the recipient's program or activity.'' Colleges and 
universities are obligated to provide learning environments on and off-
campus, domestically, and abroad that protect the rights of students to 
``equal access to the school's education program or activity.'' The 
directive that a complaint must be dismissed if determined not to have 
occurred within the institution's program or activity (and then moved 
over to another area of student discipline) will result in multiple 
concurrent processes with associated costs and potential delays and 
will have an adverse impact on the complainant and the respondent. The 
prescriptive documentation, notification, and hearing processes 
outlined in the proposed regulations will result in extending the time 
in which a case is resolved.

    The proposed regulations require a live hearing, which is already 
the practice of many Virginia institutions. However, some colleges and 
universities successfully employ a single-investigator model or hybrid 
model that combines a single investigator with a separate decision 
maker or hearing panel, and appeals processes. Each institution is 
committed to protecting the rights of their students with robust fact-
finding, hearing, and adjudication processes that are suited to their 
institutional mission, resources, and educational objectives.

    Under Sec. 106.45(b)(3)(vii), the proposed Title IX regulations 
state, ``the Department has determined that at institutions of higher 
education, where most parties and witnesses are adults, grievance 
procedures must include live cross-examination at a hearing. Proposed 
Sec. I 06.45 (b)(3)(vii) requires institutions to provide a live 
hearing and to allow the parties' advisors to cross-examine the other 
party and witnesses'' (Page #61476, Column #2, Paragraph #1). 
Currently, some institutions utilize the single investigator or hybrid 
model due to personnel constraints and to keep the emphasis on the 
educational goals of disciplinary processes.

    Mandatory live hearings for every formal Title IX investigation 
place a significant burden on the administration and faculty of many 
institutions. A single investigator model that would satisfy a number 
of the proposed requirements could allow for questioning during the 
initial investigation process. At the initiation of an investigation, 
each party would be provided the oppo1tunity to question the other 
party or any witnesses through questions submitted to the 
investigators. This practice would satisfy the requirement for a cross 
examination process expressed in Sec.  I 06.45. In addition, once the 
decision-maker has made a ruling on the initial finding and 
recommendations of the investigation this single investigator model 
could offer an appeal process that includes a live hearing open to all 
the parties. Each party can choose to appeal the initial decision based 
on numerous grounds to include: the investigators exhibited unfair bias 
which influenced the results of the investigation; new evidence, 
unavailable at the time of the investigation, that could substantially 
impact the investigators' finding; error in the conduct of the 
investigation that is of such magnitude as to deny fundamental 
fairness; insufficient evidence to support the findings of the 
investigator; or the sanctions recommended by the investigators are 
substantially outside the parameters or guidelines set by the 
institution for this type of offense. This live hearing would include 
questioning of all parties and witnesses, as well as, providing other 
relevant evidence to the hearing panel. At the conclusion of the live 
appeal hearing, the hearing panel would make an independent 
recommendation to the decisionmaker concerning the findings in the 
case. This live appeal hearing process would also satisfy the 
requirement expressed in Sec. 106.45 above while allowing institutions 
the flexibility of utilizing the single investigator model. 
Institutions of higher education must retain the autonomy to choose to 
use the single investigator model as long as that model allows for a 
cross examination process during the initial investigative phase and 
also allows for a live appeal hearing which could be utilized by all 
parties if they so choose.

    The proposed regulations identify advisors to the complainant and 
respondent as active participants in the process when engaging in cross 
examination in hearings. The proposed regulations set up an untenable 
conflict by requiring that institutions bear the responsibility for 
providing advisors to parties in Title IX processes who have chosen not 
to have an advisor for other purposes. First, to preserve equity and 
fairness throughout its conduct system, the institution would be 
required to provide advisors for parties in all types of misconduct 
processes: those that involve sexual misconduct and those that do not. 
Second, by engaging in identifying, training, and supporting advisors, 
the institution is subjected to questions of neutrality and 
impartiality. Third, by requiring that advisors engage in cross 
examination, the proposed regulations conflate the role of an advisor 
with the role of an advocate. Fourth, when an employee serves a student 
as an advisor, the college or university is exposed to liability.

    The protections afforded by cross examination are appropriate for 
adversarial processes but not for educational/administrative processes. 
The injection of some legal elements like cross-examination without 
checks in place, such as the Rules of Evidence, leaves those subject to 
cross-examination (both respondents and complainants) open to 
potentially harassing lines of questioning. The stated justification 
for requiring cross-examination by advisors and not the parties is to 
avoid re-traumatize the complainant, but the proposed regulations 
require advisors to conduct cross-examination not just of the 
complainant but also of the respondent and all witnesses. This is 
unnecessarily broad and will result in a needlessly adversarial process 
and takes the focus away from the educational nature of what 
institutions are trying to accomplish.

    Respondents, complainants, and witnesses will be subject to cross-
examination also, and will be required to speak or their testimony 
cannot be considered. There is no flexibility under these proposed 
regulations. This would effectively deny the respondent the right to 
remain silent afforded by the U.S. Constitution. A respondent may be 
forced to self-incriminate in the administrative hearing, which could 
be used in a criminal proceeding. Additionally, institutions do not 
have the authority to subpoena witnesses. We can encourage students/
employees to attend but have no ability to compel participation.

    The requirement that ``If a party does not have an advisor present 
at the hearing, the recipient must provide that party an advisor 
aligned with that party to conduct cross-examination,'' poses several 
additional questions and concerns. If one party has an attorney, it is 
unclear whether an institution is required to provide an attorney of 
the same caliber to the party needing an advisor. This proposed 
regulation raises the concern that individuals will expect institutions 
to pay for the advisor. In addition, the regulations do not address the 
possibility if the parties deny the use of an advisee. Would the 
institution be responsible for providing advisees in the absence of 
both parties selecting an advisee to accompany them or act on their 
behalf? The phrase ``aligned with the interests of the party'' for whom 
the advisor is assigned is vague and not defined.

    The work of the advisor will extend beyond the hearing. The advisor 
must be willing and able to spend time with the party to prepare for a 
hearing, understand the policies and procedures of a given institution, 
and be willing and able to cross-examine the other party. This will 
require extensive training and will prove very difficult for many 
institutions. In addition, institutions will be required to secure 
counsel for the hearing officer or decision maker adding cost to the 
implementation of the proposed regulations.

    The proposed regulations require that a decision maker must explain 
why information is not relevant and therefore not admissible. This 
requirement goes far beyond the rules of court for civil or criminal 
proceedings. Legal counsel for every institution will need to attend 
every hearing to assist non-attorney panel members due to the 
adversarial nature of the hearings.

    Under Sec. 106.45(b)(3)(viii) the proposed regulations ``would 
require recipients to provide both parties an equal opportunity to 
inspect and review any evidence obtained as part of the investigation 
that is directly related to the allegations raised in a formal 
complaint... The evidence must also be provided electronically and the 
parties must be given at least ten days to submit a written 
statement.'' (Page #6 I 4 76, Column #3, Paragraph #2) This requirement 
of evidence disclosure is comparable to the discovery process used for 
evidence in criminal and civil court cases. However, administrative 
Title IX investigations conducted by institutions of higher education 
differ from criminal and civil court matters in the degree of 
confidentiality required for all parties involved. Criminal and civil 
court matters are conducted in open court and are part of the public 
record. In almost all Title IX investigations, all parties, including 
the complainant and the respondent, want the matter to be held to the 
highest level of confidentiality. Due to the sensitive nature of the 
matter regardless of the outcome of the case, all the parties want to 
keep the matter confidential and want to limit the distribution of 
evidence to a minimum.

    Providing the evidence to all parties in an ``electronic format'' 
even if it cannot be downloaded or copied threatens that 
confidentiality. Nothing would prevent the parties from having anyone 
without a ``need-to-know'' read the file that would contain evidence 
and witness statements about the incidents investigated. Those 
individuals in turn could relay this confidential information to anyone 
else. Institutions have no ability to enforce the confidentiality 
demanded by the parties in the case. In addition, it is unclear if 
there are file sharing platforms available that would prevent parties 
from taking ``screen shots'' of specific documents for later 
distribution. Currently, many institutions of higher education do 
provide full disclosure of all evidence in Title IX cases to all 
parties and their advisors through physical review of the documents in 
the presence of the investigators. The parties and their advisors are 
allowed to review all the evidence as witnessed by the investigators as 
many times as needed. This physical review fulfills the important 
mission of full disclosure to all the parties and also aligns with the 
inspection requirements under FERPA. Furthermore, a physical review 
does not place confidentiality at risk by releasing important evidence 
to the parties that could later be provided to others beyond the 
control of the institution of higher education. Any new Title IX 
regulations should require that Title IX procedures assure evidence is 
fairly and completely disclosed to all parties and their advisors; 
however, the regulations should also provide the institutions of higher 
education the autonomy to choose to disclose this evidence through 
physical review as witnessed by the investigators in order to protect 
the confidentiality of the process.
                        C. Standard of evidence
                    Proposed Section 106.45(b)(4)(i)
    Comment: The SVAC agrees and believes strongly that institutions 
need to preserve the ability to determine the standard of evidence for 
student and employee misconduct processes. The federal government 
should not mandate a standard of evidence for higher education. 
Processes designed to address possible violations of Title IX must be 
consistent with processes that address possible violations of other 
civil rights. Institutions must be allowed to implement processes 
consistent across the policies and processes employed to address all 
forms of discrimination and discriminatory harassment. Establishing 
processes unique to sexual harassment might create problems with 
consistency and equity. Within the Commonwealth, institutions use the 
standard of evidence that best suits the educational mission of the 
college or university is consistent with institutional mission, 
culture, history, precedent, and practice. Please see additional 
comments on Directed Question #6 below.
           Proposed Section 106.45(b)(6) Informal resolution
    Comment: Consistent with its commitment to supporting institutional 
autonomy, choice, and educational flexibility, the SVAC agrees that the 
proposed regulations must not dictate the use of informal resolution in 
Title IX processes. Colleges and universities must be allowed to 
determine whether to offer informal resolution as an option and, if so, 
what type of informal resolution is most appropriate.
                        III. Directed Questions
    2. Applicability of provisions based on type of recipient or age of 
parties.

    Comment: Within the Commonwealth, colleges and universities serve 
multiple students and guests many of whom are under the age of 18. 
Clarifying applicability of these regulations to persons under the age 
of 18 is necessary. Individuals under the age of 18 are served as 
students and as guests in a variety of settings and in varying degrees 
of engagement. Institutions must be allowed to promulgate policies and 
processes consistent with state laws and regulations and include 
settings such as dual-enrollment settings (high school students 
enrolled in college-level courses), athletic and other types of camps 
and programs such as 4-H.

    3. Applicability of the Rule to Employees.

    Comment: The SVAC believes that institutions must preserve the 
ability to investigate and act on reports of sexual violence that might 
not include a formal complaint. In the interest of preserving a safe 
and equitable learning and working environment, the institution must be 
able to act on information received about an employee that might be 
beyond what is accounted for in the regulations and yet raises serious 
concerns. In these instances, the requirement of a formal signed 
complaint might be perceived as limiting the ability of the institution 
to act in violation of the requirements contained in Title VII of the 
Civil Rights Act.

    The requirement that Title IX processes be uniform for students and 
employees does not address the fact that many employees have special 
access to students and their information. As an employer, colleges and 
universities must be able to take into consideration that some 
employees might use their access to students and status within the 
university in ways that would preclude the receipt of a formal 
complaint.

    As mentioned above in the General Comments, the Commonwealth has 
the Law Enforcement Officers Procedural Guarantee Act (Sec. 9.1-500) 
that outlines processes for the investigation of law enforcement 
officers charged with misconduct, including sexual harassment that 
might fall under Title IX. The requirement that Title IX processes be 
uniform for students and employees does not allow colleges and 
universities to adapt processes, as necessary, for employees covered by 
state law and regulations.
                              4. Training.
    Comment: As a statewide advisory committee, the SVAC agrees with 
the requirements for training outlined in the regulations. The SVAC has 
spent the past few years discussing the Commonwealth's needs for 
training on sexual violence for all professionals involved in 
responding, investigation, and adjudicating allegations. Of particular 
concern are the variety of trainings available and their uneven quality 
and accuracy. Should the regulations include specific training 
requirements, colleges and universities would be well served to receive 
training accepted by the Department. Funding should be made available 
through the Department for comprehensive training. In addition, 
institutions would benefit from technical assistance and guidance on 
policies and processes deemed consistent with Department regulations 
and expectations.
                        6. Standard of Evidence.
    Comment: In the Commonwealth of Virginia several institutions of 
higher education utilize honor systems based on the ``beyond a 
reasonable doubt'' standard, and in some cases, to the sanction of 
permanent dismissal from the institution. These time-honored systems 
have been used throughout the history of the institutions, some dating 
back hundreds of years, to uphold the highest standards of academic 
achievement and honor. Currently, within these institutions ``other'' 
conduct disciplinary systems are separated from the honor system and 
utilize a different standard of evidence such as the preponderance of 
evidence or the clear and convincing standards. Institutions must 
continue to have the autonomy to keep historically important honor 
systems that use the beyond a reasonable doubt evidence standard while 
bringing uniformity to other conduct disciplinary systems under either 
the preponderance of evidence standard or the clear and convincing 
standard. Please see comments above on Proposed Section I 
06.45(b)(4)(i).
 9. Technology needed to grant requests for parties to be in separate 
                        rooms at live hearings.
    Comment: Many institutions would require additional resources for 
purchasing technology and making adaptations to accommodate this 
requirement. Schools would benefit from grant resources made available 
through the Department.
                      IV. Cost and Implementation
    The proposed regulations have significant costs associated with 
their implementation. Costs include increased and specialized personnel 
(advisors, hearing officers, and counsel), technology (software 
purchase and launch, and technology for cross-examination in hearings), 
the creation or renovation of space to allow for simultaneous, 
screened-off hearings, advisors (for both parties), training 
implementation (all involved with process, mediation/informal 
processes, for faculty/staff/students), and costs associated with 
increased documentation (including software purchase, launch, and 
maintenance). An estimated calculation of costs for implementing these 
regulations is a range of $500,000 for institutions with few cases (0-
4) to $1.8 million for institutions with many cases (up to 45). The 
range of costs was estimated per institution for implementation of 
investigation, hearing, and adjudication processes.

    The Department might want to consider state and institutional 
budget cycles, especially in consideration of possible tuition and fee 
increases needed to help cover costs for implementing additional 
personnel and resources for addressing student complaints. It is 
recommended that the regulations allow for an implementation period of 
no less than 18 months. This would allow institutions time to 
accommodate budget cycles and to request additional resources for the 
subsequent fiscal year.
                                 ______
                                 
                     National Council on Disability
                                                      April 1, 2019
Hon. Lamar Alexander, Chairman
Hon. Patty Murray, Ranking Member
Hon. Robert P. Casey, Jr.
Hon. Maggie Hassan
U.S. Senate Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.
    Dear Chairman Alexander, Ranking Member Murray, Senator Hassan and 
Senator Casey:

    I write on behalf of the National Council on Disability (NCD) to 
express our appreciation for the Committee's continued focus on the 
issue of sexual assault on college campuses. Last year the National 
Council on Disability published a report bringing attention to the 
disproportionate incidence of sexual assault against students with 
disabilities as well as the discrimination that these students too 
often face when they report an assault. The report, Not on the Radar: 
Sexual Assault of College Students with Disabilities found that 
students with disabilities are not ``on the radar'' of colleges in 
their sexual assault prevention efforts, policies, or procedures for 
response and support after an assault. This includes the absence of 
procedures to communicate with victims who are Deaf or hard of hearing 
and inaccessible support services for students with mobility 
disabilities. As this Committee considers sexual assault on college 
campuses as both a personal tragedy for individual students but also as 
a public health crisis, we urge you to keep students with disabilities 
on your radar.

    Following the release of Not on the Radar last year, Senators 
Hassan and Casey co-sponsored groundbreaking legislation, the Safe 
Equitable Campus Resources and Education (SECuRE) Act, in line with 
NCD's policy recommendations from Not on the Radar, that requires 
institutions to report sex offenses, domestic and dating violence and 
stalking involving a victim who has a disability, ensure that responses 
to these incidents take the needs of victims with disabilities into 
account, ensure that prevention and awareness programs are accessible 
and include people with disabilities, hold disciplinary hearings that 
are accessible and conducted by officials with training in working with 
people with disabilities. They have re-introduced the legislation in 
anticipation of this hearing; NCD commends the Senators as well as 
Congresswoman Dingell for their continued leadership on this critical 
issue and looks forward to continuing to educate policymakers regarding 
the need to include students with disabilities in efforts to prevent 
sexual assault on college campuses as well as to address the impact of 
sexual assault on students with disabilities. As part of that effort, 
NCD would like to submit the report, Not on the Radar: Sexual Assault 
of College Students with Disabilities, attached to this letter as 
Appendix A, for inclusion into the record of this hearing.

            Respectfully,
                                                Neil Romano
                                                           Chairman
                                 ______
                                 
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
                                 
                                Safety Advisors for
                          Educational Campuses, LLC
                                                      April 2, 2019
Hon. Lamar Alexander, Chairman
Hon. Patty Murray, Ranking Member
U.S. Senate Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.
    Dear Chairman Alexander, Ranking Member Murray, and Honorable 
Members of the Committee:

    Safety Advisors for Educational Campuses, LLC is a social 
entrepreneurship organization devoted to safer learning environments 
with over 100 years of combined experience addressing gender based 
violence in higher education. We greatly appreciate the Committee's 
interest in and commitment to addressing this issue by holding today's 
hearing.

    This has long been and remains one of the foremost safety 
challenges for the field. While we have made significant progress in 
better addressing this challenge over the last decade, this has brought 
new challenges as institutional responses expand, and much work remains 
to be done. We are grateful for this opportunity to offer our input on 
the federal government's role.

    Currently the federal government addresses campus sexual assault as 
a civil-rights issue under Title IX of the Education Amendments of 1972 
(Title IX) and as a consumer-information and protection issue under the 
Jeanne Clery Disclosure of Campus Security Policy and Campus Crime 
Statistics Act (Clery Act), a subsection of the Higher Education Act of 
1965 (HEA). Combined these laws provide a critical framework for higher 
education to combat sex based harms.

    As the Committee hears various concerns we hope that your focus 
will be on building upon this existing framework in a manner that 
enhances prevention initiatives, protects victims, ensures robust equal 
procedural safeguards for both complainants and respondents in 
disciplinary proceedings, and does not create overly burdensome 
procedures that turn ``classrooms into courtrooms''. Our shared goal 
should be to empower higher education to create safer learning 
environments not put hurdles in their way.

                   The Scope of Campus Sexual Assault
    For decades numerous studies, including those produced by the U.S. 
Department of Justice (DOJ) have indicated that between 1/5 and 1/4 
female undergraduates will experience a completed or attempted sexual 
assault during their time in college. In 2016, the DOJ's Campus Climate 
Survey Validation Study Final Technical Report found, for example, that 
across nine institutions, an average of 25.1 percent of female 
undergraduates had experienced a sexual assault during their academic 
career. A finding, however, that has not been the subject of 
significant discussion was that the prevalence rate varied widely 
across these institutions. The highest prevalence rate among the 
institutions was 50.8 percent, and the lowest was 13.2 percent This 
indicates that the adoption of campus level climate surveys is 
essential to a better understanding of the unique challenges faced by 
individual institutions, and the type of prevention initiatives that 
would best serve each.

    Since it was first enacted in 1990, the Clery Act has been the 
primary source of campus crime data. Relying on this data, however, 
significantly understates the scope of the challenge of sexual assault 
because it is limited both to incidents occurring on property directly 
associated with the institution and when there is an official report. 
The 2016 study, consistent with prior data, found that ``about one-
third of rape incidents . . . took place on campus'' and that only 
``12.5 percent of rape incidents were reported by the victim'' to 
officials.

    The DOJ found this meant that 2,380 completed rapes against 
students in their sample of nine institutions during the 2014-2015 
academic year corresponded to only 40 reports under Clery. Whether or 
not actually occurring directly on campus or officially reported, these 
incidents impact a campus, and having the complete picture is essential 
to those entrusted with preventing and responding to sexual violence.
                        Disciplinary Proceedings
    While comprehensive data isn't available, our experience over the 
last decade is that institutions of higher education have stepped-up 
disciplinary enforcement involving sex based harms. This comes about as 
a result of the U.S. Department of Education's 2011 Title IX Dear 
Colleague Letter which was withdrawn in 2017, the Violence Against 
Women Reauthorization Act of 2013's expansion of the Clery Act's sexual 
violence requirements (which dated back to 1992), and subsequent public 
attention focused on these issues including by student activists. Many 
institutions have embraced a culture of accountability focused on 
combating sexual violence reflecting a significant cultural change.

    Challenges to some types of proceedings adopted as part of this 
process have been raised both in private litigation and a Title IX 
Notice of Proposed Rulemaking (NPRM) issued by the U.S. Department of 
Education (ED) on November 29, 2018. We, along with numerous other 
organizations and individuals, have raised serious concerns about the 
legality of the NPRM, including that it may raise critical separation 
of powers issues. We have detailed these concerns in our comments to ED 
which we have also provided a copy of to the Committee for reference.

    We also have serious policy concerns that the proposals of the NPRM 
would reverse the progress that has been made over the last decade in 
combating sexual violence. The proposals go beyond what is needed to 
accomplish the stated goal of finding the truth rather they appear to 
be geared towards narrowing the scope of incidents dealt with by 
institutions and deterring reporting.

    They also ignore the provisions which already exist within the 
Clery Act that offer equal procedural safeguards for both the accused 
and accuser in disciplinary proceedings involving sexual assault, 
dating violence, domestic violence, and stalking as well as significant 
flexibility for institutions in implementing these protections. Not 
only can policies that protect the interests of the accused be 
implemented without negatively impacting the interests of the accuser, 
Congress has already done so. These provisions were also designed to 
complement rather than subvert the civil rights protections afforded to 
sex discrimination victims under Title IX.

    Clery already mandates much of what is being asked for by civil 
liberties advocates including explicit procedural safeguards. 
Proceedings must afford a ``prompt, fair, and impartial process from 
the initial investigation to the final result''. They must 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''. 
Officials must ``not have a conflict of interest or bias for or against 
the accuser or the accused''.

    Clery in seeking a balanced approach also enumerates specific 
rights for both ``the accuser and the accused'' including:

          The same opportunities to have others present.

          The opportunity to be accompanied to any related 
        meeting or proceeding by an advisor of their choice who may be 
        an attorney.

          Simultaneous notification, in writing of the result 
        of the proceeding; options, if any, to appeal; any changes to 
        the result; and when such results become final.

          Timely and equal access to any information that will 
        be used during informal and formal disciplinary meetings and 
        hearings.

    ED has determined that these protections apply in disciplinary 
proceedings whether the underlying conduct occurred on or off campus. 
In The Handbook for Campus Safety and Security Reporting, 2016 Edition 
on pages 8-2 and 8-3, they state to institutions ``your statement must 
address . . . the procedures your institution will follow when one of 
these crimes is reported to your institution, whether the offense 
occurred on or off campus.'' (Emphasis Added) They further state, on 
page 8-16, that this applies to incidents occurring ``on or off your 
institution's Clery Act geography''. This is in contrast to the NPRM 
which would limit an institution's response to ``conduct within its 
education program or activity''. Also, a signed complaint is not 
necessary to initiate action under Clery as would be required by the 
NPRM.
                         Live Cross Examination
    We are especially concerned about the proposal for live cross 
examination by either the parties or aligned advisors. The efficacy of 
cross examination as a tool for determining truth is unique to its 
context. In criminal and civil court, cross examination is conducted by 
legally trained

    individuals, operating within the framework of the rules of 
evidence, overseen by a judge, with the knowledge that any violations 
of the rules of evidence or harassment of witnesses could result in 
either discipline or loss of their job by the American Bar Association.

    In contrast, within school proceedings there are no training 
requirements, process requirements, evidentiary framework, oversight 
body, or even a guarantee that an individual with the smallest bit of 
formal legal training will be in the room. The reasons that cross 
examination is helpful in the court system are absent in the 
institutional process, and the only way to rectify this is to continue 
to turn classrooms into courtrooms, something that is unnecessary to 
achieve the goal of challenging the testimony of any witnesses involved 
in a campus proceeding.

    Cross examination conducted in actual court rooms is conducted by 
trained individuals and overseen by a judge, and therefore questions 
are essentially vetted through a process of qualification and oversight 
from a disciplinary perspective that lawyers are subject to which 
prohibits harassment of witnesses. In the school context, requiring 
that each party provide a panel with their list of questions to be 
asked of witnesses to assure there is no harassing or purposefully 
intimidating questions is appropriate, as there are no other safeguards 
in place to protect witnesses and both parties from intentional misuse 
of the cross examination process.
                               Conclusion
    Again we appreciate the Committee's commitment to addressing campus 
sexual assault, and the opportunity to offer our insights. If we can be 
of any assistance or help answer any questions you may have please 
don't hesitate to ask.
            Sincerely,
                                           S. Daniel Carter
                                                          President
                                              Taylor Parker
                                                 Title IX Associate
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                         QUESTIONS AND ANSWERS

Response by Patricia Hamill to Questions of Senator Alexander, Senator 
               Warren, Senator Rosen, and Senator Sanders
                           senator alexander
    Question 1. In your representation of accused students, how have 
you seen campus disciplinary proceedings impact their access to 
education? What negative effects do these proceedings, regardless of 
outcomes have on the future employment opportunities for these 
students?

    I would like to start by stating that I am heartened by the fact 
that most, if not all, of the Senators and witnesses at the hearing 
affirmed the need for fair and transparent procedures for resolving 
Title IX complaints. \1\ As I set forth in my written testimony, basic 
principles such as the need for adequate notice and fair, thorough and 
impartial investigations and decisions are well established in our 
nation's jurisprudence. The procedural concerns discussed at the 
hearing focused on whether fair procedures should include live hearings 
and direct cross-examination, which I address further in some of my 
answers below. \2\
---------------------------------------------------------------------------
    \1\  Patricia Hamill is a partner at the Philadelphia law firm 
Conrad O'Brien, P.C., and Chair of the firm's nationwide Title IX, Due 
Process and Campus Discipline practice. She represents college students 
and academic professionals in disciplinary proceedings and related 
litigation. Patricia is a frequent speaker on Title IX litigation and 
related issues to audiences including Title IX coordinators, advocacy 
groups, and attorneys. Patricia is also a commercial litigator who 
represents clients in white-collar and internal investigations, and is 
a member of the firm's three-person Executive Committee.
    \2\  My focus here is on colleges and universities and their 
students.
---------------------------------------------------------------------------
    Answer 1. As this Committee knows, Title IX provides that ``[n]o 
person in the United States shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination under any education program or activity receiving 
Federal financial assistance.'' 20 U.S.C. Sec.  1681(a). At the 
hearing, Senators and witnesses emphasized that Title IX protects 
students' equal access to education, and that sexual harassment or 
assault can affect a complainant's access to educational programs and 
activities. I completely agree. And I emphasize that the right to equal 
access to education means equal access for both complainants and 
respondents, regardless of gender. Students who are accused of sexual 
harassment or assault may be completely excluded from and denied the 
benefits of their school's educational programs and activities, whether 
or not they are found responsible.

    First, if accused students are found responsible, they may be 
suspended or expelled from their school and lose the degree they worked 
and paid for, sometimes very late in their college careers. They may 
lose scholarships or the ability to participate in military or other 
programs that have made their educations possible. They likely will be 
unable to transfer to a comparable school to complete an undergraduate 
degree. And if they are able to transfer, they may lose credits or have 
to repeat a term or year. \3\ Their reputations, educational prospects, 
and career or professional prospects may be permanently damaged due to 
gaps in their education, the stigma of being found responsible for 
sexual harassment or assault, and, in many cases, permanent notations 
in their academic records or on their transcripts. \4\ It is critical 
to provide a process fair to both parties before such a consequential 
decision is made, to minimize the possibility that a student wrongfully 
accused is found responsible. And it is also critical to provide a path 
to rehabilitation in cases where an institution's finding of 
responsibility might have merit. I believe schools should be able to 
expunge a student's records after a designated period of time, and that 
there should be a time frame after which respondents are no longer 
required to report an adverse disciplinary ruling on an application for 
admission to another school. I note the broad support for ``ban the 
box'' laws in the criminal context, which require employers to consider 
a job candidate's qualifications first, without the stigma of a 
criminal conviction or arrest record. And the Common Application has 
removed its question on criminal history - though it continues to 
include a question on disciplinary history.
---------------------------------------------------------------------------
    \3\  For instance, a student expelled after completing junior year 
ordinarily cannot simply complete his senior year elsewhere and be 
awarded a degree from the second institution. Most schools require 
students to earn a certain number of credits at their institution 
before awarding a degree. That usually means a student must complete 
two full years, so a student expelled after his junior year will 
usually have to repeat that year - assuming he is admitted somewhere 
else. Also, when a school suspends a student, it typically will not 
honor courses the student has taken elsewhere during the period of 
suspension.
    \4\  Some states and some school policies require notations on 
transcripts indicating a finding of responsibility for sexual 
harassment or assault. Some such notations are permanent, particularly 
in the case of expulsion, and some may be removed after a suspension is 
served. See, e.g., Va. Code Sec.  23-9.2:15; N.Y. Education Law Art. 
129-B.

    Second, an accused student who is ultimately exonerated may also be 
excluded from and denied the benefits of the school's educational 
programs and activities. In my experience, this happens frequently due 
to interim actions schools take while a disciplinary proceeding is 
pending. The exclusion/denial is obvious if a school suspends or 
removes a respondent from campus before a final decision is made. The 
Department's proposed Title IX regulations address this problem, 
stating that emergency removal is appropriate only if the school 
``undertakes an individualized safety and risk analysis, determines 
that an immediate threat to the health or safety of students or 
employees justifies removal, and provides the respondent with notice 
and an opportunity to challenge the decision immediately following the 
removal.'' Proposed 34 C.F.R. Sec.  106.44(c). I support those 
protections, and have proposed in addition that emergency removal be 
allowed only if it is the least restrictive alternative. Moreover, 
comparable protections should be in place for other interim actions 
schools routinely take. ``No contact orders,'' though often appropriate 
and necessary, should be tailored in such a way that they do not 
prevent either student from participating in educational programs or 
activities while the proceeding is pending. The routine practice of 
putting a ``disciplinary hold'' on accused students' transcripts or, 
for students with cases pending at graduation, withholding their 
degrees, denies accused students the benefits of their education in 
some of the same ways as a finding of responsibility. For example, a 
student who cannot get a clean official transcript or whose degree is 
withheld may, while waiting for the final outcome, lose a job, a 
scholarship, the ability to participate in a military program, etc., 
and may be unable to apply for jobs or graduate programs. The damage 
that occurs while those interim sanctions are in place cannot be 
undone. Unless a particular student poses an ``immediate threat,'' 
there is simply no justification for denying him the benefits of his 
---------------------------------------------------------------------------
education while his responsibility has yet to be adjudicated.

    Third, even apart from the school's official actions, the mere fact 
of an accusation and a disciplinary proceeding involving alleged sexual 
harassment or assault can interfere with an accused student's ability 
to pursue his education. A student who is accused is distressed and is 
often ostracized. In this age of the Internet and social media, the 
damage to an accused student's educational and career prospects can 
persist regardless of the outcome of the disciplinary proceeding. While 
I understand that is not entirely in a school's control, schools can 
and should mitigate the impact by adopting fair procedures; 
administering them fairly; avoiding any suggestion that an accusation 
is credible simply because it was made; educating both employees and 
students on what a fair process entails; and taking prompt and 
effective action when harassment or retaliation occurs. The current 
stigma associated with even a wrongful allegation of sexual assault is 
so intense that the vast majority of judges who have handled lawsuits 
in this area have allowed the accused student to file pleadings as 
``John Doe.''

    A number of people who responded to the Department's request for 
comments on its proposed Title IX regulations shared personal stories 
illustrating the devastating impact of accusations of sexual harassment 
or assault, interim sanctions, findings of responsibility, and final 
sanctions. \5\ These stories are consistent with what I have observed 
firsthand. I urge the Committee to consider these stories, and to 
remember that complainants and respondents are people - young people - 
who deserve a fair and impartial resolution based on the facts of their 
individual cases.
---------------------------------------------------------------------------
    \5\  See, for example, Comments of Anonymous parent, https://
www.regulations.gov/document?D=ED-2018-OCR-0064-9000 (describing 
student's experience and sharing specific recommendations based on that 
experience: the student was found responsible without a hearing and 
expelled, his parents learned about the situation when they received a 
call that he was suicidal and in the hospital, and they sued and won. 
``Many of us have daughters, some women have experienced sexual assault 
themselves and we strongly agree that victims need protection. However, 
it should never come at the expense of an innocent accused student. The 
goal should be to find the truth and provide a fair process given the 
high stakes for both students. Both victims and falsely accused 
students experience profound trauma''); Comments of Anonymous parent, 
https://www.regulations.gov/document?D=ED-2018-OCR-0064-7160 (sharing 
perspective from having had a daughter who was sexually assaulted and a 
son accused of sexual assault while in college. ``We all, as a family, 
appreciate the hesitancy of victims to come forward, and we certainly 
want those guilty of sexual crimes to be prosecuted. However, to deny 
basic and established constitutional rights to the accused becomes a 
slippery slope and begs the question of which other situations should 
be considered for the repeal of one's constitutional rights?''); 
Comments of Craig Stanfill, https://www.regulations.gov/document?D=ED-
2018-OCR-0064-10624 (student who was accused a few months before 
graduation and exonerated over a year later lost two years of his 
professional life because of the withholding of his degree and 
inability to apply for graduate school or find a permanent job); 
Comments of Mark Shaw, https://www.regulations.gov/document?D=ED-2018-
OCR-0064-10413 (student was exonerated eight months after complaint was 
made, but was damaged by the campus restrictions imposed during that 
period); Comments of Anonymous student, https://www.regulations.gov/
document?D=ED-2018-OCR-0064-9043.

    Question 2. Are campus disciplinary proceedings distinguishable 
---------------------------------------------------------------------------
from workplace disciplinary actions? If so, why?

    Answer 2. I believe this question stems from the fact that some 
have suggested that workplace disciplinary proceedings use single 
investigator models without hearings and cross-examination, and that 
the same model is therefore appropriate for student proceedings. As I 
explain below, such generalizations ignore the substantial variation in 
workplace protections and do not justify efforts to deny important 
procedural protections in the campus setting. Indeed, many schools 
offer their employees greater rights and protections than the 
Department of Education's proposed regulations would provide. In 
addition, courts are increasingly recognizing the need for fundamental 
protections in student disciplinary proceedings. Both historical and 
practical considerations support those protections.

    First, employers handle disciplinary proceedings in a wide variety 
of ways and workers are subject to a wide variety of procedures and 
protections. Some employees are at will. Some are protected by 
statutes, regulations, handbooks (which may or may not be contractually 
binding), contracts or collective bargaining agreements, with 
provisions that differ for different employers, and sometimes also for 
different employees at the same company. The broad generalizations 
about ``workplace models'' are not based on evidence and do not support 
efforts to deny accused students fair processes in campus proceedings.

    Second, the rights and protections many colleges and universities 
give their employees are greater than the rights and protections that 
would be guaranteed by the Department of Education's proposed 
regulations. Indeed, in comments to the proposed regulations, many 
schools protested the proposal that universities apply the same 
standard of evidence in student Title IX proceedings as they use in 
employee proceedings. The Association of Independent Colleges and 
Universities of Massachusetts (AICUM), for example, argued that student 
disciplinary cases are ``fundamentally different'' from employee 
proceedings. ``Campus conduct proceedings involving faculty and other 
employees are governed by existing state laws, collective bargaining 
agreements, faculty by-laws, and/or other constraints, which 
institutions often have no power unilaterally to change.'' \6\
---------------------------------------------------------------------------
    \6\  Comments of AICUM, at 13, http://aicum.org/wp-content/uploads/
2019/01/AICUM-public-comments-on-Notice-of-Proposed-Rulemaking-
%E2%80%9CNPRM%E2%80%9D-amending-regulations-implementing-Title-IX-of-
the-Education-Amendments-of-1972-Title-IX%E2%80%9D-Docket-ID-ED-2018-
OCR-0064.pdf; see also Comments of Association of Governing Boards of 
Universities and Colleges, https://www.regulations.gov/document?D=ED-
2018-OCR-0064-7550 (stating that requiring consistency across all 
proceedings would impact ``myriad campus matters, constituencies and 
processes,'' including ``collective bargaining agreements, 
institutional governance decisions, as well as state-law-regulated and 
non-Title IX disciplinary policies and procedures'').

    I am not arguing here that students should necessarily have every 
right enjoyed by faculty or by employees governed by a collective 
bargaining agreement. I am simply pointing to the protections colleges 
and universities give their employees - particularly academic employees 
- to illustrate that it is inappropriate to advocate for limiting 
accused students' rights in disciplinary proceedings by suggesting that 
there is some uniform ``workplace model'' involving decisions made by a 
single investigator, with no live hearings and no opportunity to 
---------------------------------------------------------------------------
confront the other party or witnesses.

    The University of Washington provides just one example of a 
workplace model involving substantial procedural protections - 
including separation of investigative and adjudicative functions, steps 
to ensure impartial decisionmakers, steps to ensure all relevant 
evidence is gathered and shared with the parties, right to a hearing, 
and right to cross-examination. Administrative Policy Statement 46.3, 
``Resolution of Complaints Against University Employees,'' describes 
how the university handles complaints against university employees, 
including complaints involving alleged sexual harassment or sexual 
violence. As an initial matter, complaints may be addressed through 
local investigation and resolution or through the University Complaint 
Investigation and Resolution Office (UCIRO) process. In the UCIRO 
process, an investigator ``acts as a neutral, objective fact-finder'' 
and produces ``a summary of the allegations investigated and the facts 
determined.'' ``As warranted, UCIRO will refer the result to the 
appropriate administrative head to determine whether corrective actions 
should be taken involving the individual whose behavior is the subject 
of the complaint in accordance with the individual's employment 
program.'' Id., http://www.washington.edu/admin/rules/policies/APS/
46.03.html (emphasis added).

    Complaints against faculty are governed by the Faculty Code, which 
sets forth ``the adjudicative procedures to be used in resolving 
disputes involving faculty members that cannot be resolved by informal 
means.'' Ch. 28, http://www.washington.edu/admin/rules/policies/FCG/
FCCH28.html. The chapter starts by strongly encouraging the use of 
informal dispute resolution. Id. If the UCIRO files ``a written report 
that claims reasonable causes exist to adjudicate charges'' against a 
faculty member, the first step is a determination of reasonable cause, 
to be made by the provost with the assistance of a special committee of 
three faculty members ``who are not involved in the matter being 
considered'' and who will not ``subsequently serve on any panel hearing 
or review any adjudication arising out of or related to the matters set 
forth in the report.'' Section 28-32(A).
    For ``[c]omprehensive adjudication,'' defined as ``the formal 
hearing process used for all cases except the minor cases that are 
resolved with brief adjudications,'' the Code sets forth extensive 
rights and protections, including the following provisions:

          ``In selecting members of a particular hearing panel, 
        the Chair of the Adjudication Panel shall attempt to achieve 
        the highest degree of diversity and impartiality and make every 
        possible effort to select panel members with differing 
        backgrounds that the Chair deems relevant to the issues at hand 
        and the persons involved. This requirement is especially 
        important to observe in cases where unlawful discrimination is 
        alleged. The purposes of this provision are to broaden the 
        perspective of the panel, and increase the panel's ability to 
        understand the motivations of the persons involved.'' Section 
        28-32(G).

          ``The role of any member of a hearing panel . . . 
        shall be that of an impartial fact finder and judge and shall 
        not be that of an advocate for any of the parties to the 
        adjudication.'' Section 28-32(H).

          A pre-hearing conference will be held at which ``the 
        hearing officer, the panel and the parties shall discuss and 
        agree upon the evidence to be presented and the issues to be 
        addressed at the hearing.'' Section 28-52(D).

          The hearing officer ``shall issue a Prehearing Order 
        . . . which shall set forth the issues to be addressed at the 
        hearing, the factual issues which are uncontroverted, the 
        witnesses to be called and the other evidence to be presented, 
        the extent to which any discretionary rights to participate 
        will be given to nonparty participants, the extent to which 
        depositions, requests for admission and any other form of 
        discovery will be allowed and any other matters the hearing 
        panel shall deem appropriate in setting the procedure to be 
        followed at the hearing.'' Section 28-52(E).

          ``Any faculty member who is a party to a proceeding 
        under this chapter shall have the right to be represented by 
        counsel at all stages in the proceedings.'' Section 28-52(G).

          ``The hearing officer may instruct any person who is 
        a party to the adjudication or an administrative officer or 
        administrative employee of the University to appear and to give 
        testimony under oath or affirmation.'' A person who refuses to 
        comply is subject to sanctions, including dismissal or the 
        drawing of adverse inferences. Section 28-52(H).

          ``The hearing officer may at any time issue any 
        discovery or protective orders that he or she deems 
        appropriate, and such orders shall be enforceable under the 
        provisions of Chapter 34.05 RCW regarding civil enforcement of 
        agency actions.'' Section 28-52(K).

          ``The parties and nonparty participants of right and 
        their advisors and representatives'' are entitled to be present 
        at the hearing. Section 28-53(A).

          ``The hearing shall either be recorded, audio only or 
        video, or transcribed by a court reporter, as determined by the 
        hearing panel. . . . Copies of the recording or transcript 
        shall be made available to any party or nonparty participant of 
        right at University expense upon request.'' Section 28-53(B).

          ``If the facts in the case or relief requested are in 
        dispute, testimony of witnesses and other evidence relevant to 
        the issues and to the relief requested shall be received if 
        offered. The hearing officer may admit and consider evidence on 
        which reasonably prudent people are accustomed to rely in the 
        conduct of their affairs,'' and shall ``refer to the Washington 
        Rules of Evidence as non-binding guidelines for evidentiary 
        rulings. All testimony of parties and witnesses shall be given 
        under oath or on affirmation.'' Section 28-53(C).

          ``To the extent necessary for full disclosure of all 
        relevant facts and issues, the hearing officer shall afford to 
        all parties and nonparty participants the opportunity to 
        respond, present evidence and argument, conduct cross-
        examination and submit rebuttal evidence . . . .'' Section 28-
        53(D).

          ``The parties shall have the opportunity to confront 
        all witnesses.'' Section 28-53(F).

    Third, as I explained in my written testimony, campus disciplinary 
proceedings have been in a spotlight in recent years. Courts are 
increasingly holding that students accused of sexual harassment or 
assault are entitled to certain procedural protections, and that how 
respondents are treated in disciplinary proceedings can constitute 
gender discrimination. The case law continues to develop regarding the 
obligations of both public and private institutions. When similar 
issues about unfair processes and arbitrary results arise in the 
workplace context, courts, regulators, and others should be just as 
concerned to ensure fair procedures in the workplace. Indeed, a federal 
court recently ruled that a tenured professor who alleged he was fired 
without a hearing and without consideration of exculpatory evidence 
stated a valid gender discrimination claim. Fogel v. Univ. of the Arts, 
No. CV 18-5137, 2019 WL 1384577 (E.D. Pa. Mar. 27, 2019).

    Fourth, with the above points in mind, there are historical and 
practical considerations that support requiring robust procedural 
protections before students are deprived of their educations.

          a. Historical considerations. Title IX applies to 
        federally funded educational institutions, and thus to almost 
        every college and university in the United States. Starting 
        with the Office for Civil Rights' 2011 Dear Colleague Letter, 
        the federal government has used the threat of withdrawal of 
        funding to dictate campus procedures for sexual harassment and 
        assault allegations. The government's pressure has led to 
        massive Title IX bureaucracies at colleges and universities. 
        \7\ While individual schools have different policies and 
        procedures, there are common elements (some prescribed by the 
        government and others that are an outgrowth of its mandates) 
        and common themes, including presumptions of guilt, use of a 
        ``single investigator'' model that involves inherent conflicts 
        of interest and severely limits the respondent's ability to 
        challenge the complainant's account, denial of meaningful 
        cross-examination, erosion of other procedural protections for 
        respondents, and systemic gender discrimination. As noted above 
        and in my written testimony, courts are already responding by 
        holding that schools must avoid discrimination and provide 
        procedural protections, including live hearings and cross-
        examination. For public institutions, courts have confirmed 
        these protections are mandated by the Constitution's Due 
        Process and Equal Protection clauses. In this context, it is 
        critical that lawmakers, regulators, and schools also take 
        action to undo the harm that has been done. If employers are 
        using unfair procedures to discipline their employees, that is 
        of course an important concern and should be addressed, but it 
        does not change the fact that campus disciplinary procedures 
        need reform now.
---------------------------------------------------------------------------
    \7\  For one example, a 2016 Harvard Crimson article discussed 
``Harvard's web of 50 Title IX coordinators at each of the 12 schools 
and units.'' See Andrew Duehren and Emma Talkoff, Seeking Trust: 
Navigating Harvard's Sexual Assault Policies, Harvard Crimson (March 
10, 2016), https://www.thecrimson.com/article/2016/3/10/harvard-sexual-
assault-policies/.

          b. General practical considerations. (I say 
        ``general'' because individual cases and circumstances differ, 
        and overall these considerations are on a spectrum). First, 
        students generally pay tuition for an education at a particular 
        school, including enrollment for a time period and a degree 
        from that school. Given the way the education system works, a 
        student who is sanctioned midway through an academic year or 
        midway through his college career (even if just shortly before 
        graduation) can lose credit for courses he took and paid for, 
        may be unable to graduate from the school that accepted his 
        tuition, and may be unable to transfer to a comparable 
        institution or have his previous coursework accepted. If his 
        transcript contains a notation of the disciplinary finding (as 
        many schools and some states require), or if he has to complete 
        the Common Application, his job and transfer applications may 
        never even be considered. There are good reasons to require a 
        formal process before a student is deprived of the education he 
        paid for and is substantially impeded in seeking other 
        educational opportunities. Second, at many schools, students 
        study, work, live, and socialize in the context of the school 
        community. Many contested student complaints involve sexual 
        encounters between young people who are sexually inexperienced, 
        are engaged in the casual hook-up culture prevalent on 
        campuses, or both. They may have misread or misinterpreted each 
        other's feelings or intent. Often both parties have consumed 
        alcohol or drugs, further diminishing their ability to make 
        clear decisions, communicate effectively, or remember what 
        happened. Disputes often center not on whether particular 
        conduct occurred but whether it was consensual. In such 
        ambiguous and nuanced situations, live hearings and cross-
        examination are critical both for the parties to explore and 
        test each other's accounts and for the decisionmakers to 
        observe the parties as they testify. Of course these 
        observations may not apply to all schools and all students, and 
        employees may have analogous arguments. But again, whether or 
        not fair procedures are available in the workplace does not 
        change the need to act now to ensure fair procedures on school 
        campuses. And I note that workers have an important legal 
        protection that students do not: Title VII of the Civil Rights 
        Act of 1964 allows legal challenges to employment practices 
        that have a disparate impact on a protected class of 
        individuals (including a particular gender), whether or not the 
        employer intends to discriminate. In contrast, courts have held 
        that a plaintiff bringing a claim under Title IX must plead and 
        ultimately prove ``particularized'' facts to show that a school 
        was motivated by gender bias. \8\ This has allowed schools to 
        argue, and some courts to hold, that they are free to 
        discriminate against respondents and for complainants even 
        though this discrimination overwhelmingly harms men. \9\
---------------------------------------------------------------------------
    \8\  See, e.g., Doe v. Baum, 903 F.3d 575, 585 (6th Cir. 2018).
    \9\  See my written testimony, p.9 n.26.

    Some have argued that the federal government should not be overly 
prescriptive in this area and that additional protections for students 
will be too costly. This ignores the realities: the government is 
already prescriptive, schools already invest huge sums in their Title 
IX bureaucracies, fair treatment for both complainants and respondents 
is required both by existing law and by our basic principles of 
justice, and the system that currently exists does not provide fair 
processes or fair and reliable outcomes. \10\
---------------------------------------------------------------------------
    \10\  Live hearings and cross-examination may not be required or 
necessary in every case involving alleged sexual misconduct. The 
Department of Education's proposed regulations represent an effort to 
reserve formal Title IX proceedings for alleged conduct that could 
deprive a complainant of educational opportunities, and give schools 
and parties more flexibility to pursue informal, non-punitive 
resolutions. And in general, the case law on these issues requires 
hearings when the potential sanctions are as serious as expulsion or 
suspension, and cross-examination when the decision turns on 
credibility. See, e.g., Baum, 903 F.3d at 581.

    Question 3. Some have argued that the 6th Circuit Court of Appeals 
decision, Doe v. Baum, was decided based on the fact that University of 
Michigan offered live cross-examination in other disciplinary 
proceedings, but not in proceedings involving sexual assault. However, 
the holding is not specific to those facts. Do you view Doe v. Baum as 
---------------------------------------------------------------------------
unique to its facts, or is the holding broader?

    Answer 1. Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), is not unique 
to its facts. The Court's decision is based on long-standing precedent 
regarding fair disciplinary processes and stands for three broad 
propositions. First, due process requires that ``if a student is 
accused of misconduct, the university must hold some sort of hearing 
before imposing a sanction as serious as expulsion or suspension.'' Id. 
at 581. Second, due process requires that ``when the university's 
determination turns on the credibility of the accuser, the accused, or 
witnesses, that hearing must include an opportunity for cross-
examination;'' i.e., ``if a university is faced with competing 
narratives about potential misconduct, the administration must 
facilitate some form of cross-examination in order to satisfy due 
process.'' Id. And third, for purposes of a Title IX ``erroneous 
outcome'' claim (which can be asserted against either a private or a 
public school), a plaintiff who alleges ``the university did not 
provide an opportunity for cross-examination even though credibility 
was at stake in his case . . . has pled facts sufficient to cast some 
articulable doubt on the accuracy of the disciplinary proceeding's 
outcome.'' Id. at 585-86. \11\
---------------------------------------------------------------------------
    \11\  ``A university violates Title IX when it reaches an erroneous 
outcome in a student's disciplinary proceeding because of the student's 
sex.'' Id. Courts have held that ``[t]o survive a motion to dismiss 
under the erroneous-outcome theory, a plaintiff must plead facts 
sufficient to (1) `cast some articulable doubt' on the accuracy of the 
disciplinary proceeding's outcome, and (2) demonstrate a 
`particularized ... causal connection between the flawed outcome and 
gender bias.''' Id. at 585.

    The Court's reasoning confirms that it intended its ruling to apply 
broadly. Among other things, it repeated the classic statement that 
cross-examination is ```the greatest legal engine ever invented for 
uncovering the truth.''' It also noted that cross-examination is 
critical both because it allows parties ``to identify inconsistencies 
in the other side's story'' and because it ``gives the fact-finder an 
opportunity to assess a witness's demeanor and determine who can be 
---------------------------------------------------------------------------
trusted.'' Id. at 581 (internal citation omitted).

    Only after finding ``a significant risk that the university 
erroneously deprived Doe of his protected interests'' by denying him 
cross-examination did the Court note that ``[t]his risk is all the more 
troubling considering the significance of Doe's interests and the 
minimal burden that the university would bear by allowing cross-
examination in Doe's case.'' Id. at 582. ``As it turns out,'' the Court 
stated, ``the university already provides for a hearing with cross-
examination in all misconduct cases other than those involving sexual 
assault.'' Id. The Court used this observation to bolster the ruling it 
had already made, not to limit the applicability of the ruling.

    The Court then went on to further emphasize the importance of 
cross-examination, roundly rejecting the university's argument that Doe 
was adequately protected by being allowed to review the complainant's 
statement and identify inconsistencies for the investigator. ``Cross-
examination is essential in cases like Doe's because it does more than 
uncover inconsistencies--it `takes aim at credibility like no other 
procedural device.' . . . Without the back-and-forth of adversarial 
questioning, the accused cannot probe the witness's story to test her 
memory, intelligence, or potential ulterior motives. Nor can the fact-
finder observe the witness's demeanor under that questioning. For that 
reason, written statements cannot substitute for cross-examination. `It 
is of great importance in the distribution of justice that witnesses 
should be examined face to face, that the parties should have the 
fairest opportunity of cross-examining them in order to bring out the 
whole truth; there is something in the manner in which a witness 
delivers his testimony which cannot be committed to paper, and which 
yet very frequently gives a complexion to his evidence, very different 
from what it would bear if committed to writing . . . .''' Id. at 582-
83 (internal citations omitted).

    Developments after Baum Court's ruling confirm its breadth. The 
University of Michigan filed a petition for rehearing en banc. Other 
Michigan universities, which did not have the same procedures, filed an 
amicus brief. The Sixth Circuit denied the petition, saying the 
original panel had already fully considered the issues it raised and 
that on consideration by the full court ``[n]o judge has requested a 
vote on the suggestion for rehearing en banc.'' \12\ Universities in 
the Sixth Circuit are now revising their procedures to comply with the 
Court's ruling. \13\
---------------------------------------------------------------------------
    \12\  Doe v. Baum, No. 17-2213 (6th Cir.), Docs. 49, 55, 56.
    \13\  See Universities confront Title IX policy changes after 
proposed regulations, federal court rulings (Mar. 31, 2019), http://
www.kentwired.com/latest--updates/article--0d03846c-53de-11e9-82d5-
17570f289133.html.

    Question 4. Aside from the 6th Circuit's decision in Doe v. Baum, 
what are other courts around the country saying on the issues of live 
hearings, cross-examination, and the single-investigator model in 
---------------------------------------------------------------------------
university disciplinary proceedings?

    Answer 4. As I stated, the rulings in Doe v. Baum and other cases 
are solidly based on long-standing precedent requiring that people 
accused of serious misconduct are entitled to a reasonable opportunity 
to defend themselves before impartial decisionmakers. This is 
constitutionally required for public institutions, and courts have 
applied similar requirements to private institutions based on Title IX, 
federal regulations, state law, or contractual documents.

    One of the earliest, and most powerful, description of those rights 
in the context of a student disciplined under Title IX was in Doe v. 
Brandeis Univ., 177 F. Supp. 3d 561, 603 (D. Mass. 2016), where the 
Court held that a private university did not provide the accused 
student the ``basic fairness'' required by state law and the parties' 
contract. ``Here, Brandeis failed to provide a variety of procedural 
protections to John, many of which, in the criminal context, are the 
most basic and fundamental components of due process of law.'' Id. at 
603. These ``basic and fundamental components'' included the right to 
confront the accuser; to present evidence at a hearing; and to 
separation of investigation, prosecution, and adjudication functions.

    Regarding cross-examination, the Court said:

          Brandeis did not permit John to confront or cross-
        examine J.C. [the complainant], either directly or through 
        counsel. Presumably, the purpose of that limitation was to 
        spare J.C. the experience of being subject to cross-
        examination. While protection of victims of sexual assault from 
        unnecessary harassment is a laudable goal, the elimination of 
        such a basic protection for the rights of the accused raises 
        profound concerns.

          In the famous words of John Henry Wigmore, cross-
        examination is ``beyond any doubt the greatest legal engine 
        ever invented for the discovery of truth.'' 3 Wigmore, Evidence 
        Sec.  1367, p. 27 (2d ed. 1923). The ability to cross-examine 
        is most critical when the issue is the credibility of the 
        accuser. . . .

          Here, there were essentially no third-party witnesses 
        to any of the events in question, and there does not appear to 
        have been any contemporary corroborating evidence. The entire 
        investigation thus turned on the credibility of the accuser and 
        the accused. Under the circumstances, the lack of an 
        opportunity for cross-examination may have had a very 
        substantial effect on the fairness of the proceeding.

    Id. at 604-05.

    Regarding the university's use of a single investigator model, the 
Court said:

          Under the Special Examiner Process, a single 
        individual was essentially vested with the powers of an 
        investigator, prosecutor, judge, and jury. Furthermore, those 
        decisions were not reviewable except as to certain narrowly 
        defined categories.

          The dangers of combining in a single individual the 
        power to investigate, prosecute, and convict, with little 
        effective power of review, are obvious. No matter how well-
        intentioned, such a person may have preconceptions and biases, 
        may make mistakes, and may reach premature conclusions. The 
        dangers of such a process can be considerably mitigated if 
        there is effective review by a neutral party, but here that 
        right of review was substantially circumscribed.

    Id. at 606.

    The Sixth Circuit's decision in Doe v. Univ. of Cincinnati, 872 
F.3d 393 (6th Cir. 2017), from which the Baum decision logically 
flowed, made clear again that the cross-examination requirement is 
rooted in due process and legal precedent and essential to reliable 
results, and that ``[r]eaching the truth through fair procedures is an 
interest Doe and UC have in common.'' Id. at 402 (emphasis added).

          ``The Due Process Clause will not shield [a student] 
        from suspensions properly imposed, but it disserves both his 
        interest and the interest of the state if his suspension is in 
        fact unwarranted.'' Goss [v. Lopez], 419 U.S. [565,] at 579, 95 
        S. Ct. 729. UC, of course, also has a ``well recognized'' 
        interest in maintaining a learning environment free of sex-
        based harassment and discrimination. Bonnell v. Lorenzo, 241 
        F.3d 800, 822 (6th Cir. 2001). To that end, ``ensuring 
        allegations of sexual assault on college campuses are taken 
        seriously is of critical importance, and there is no doubt that 
        universities have an exceedingly difficult task in handling 
        these issues.'' Brandeis, 177 F.Supp.3d at 602 (citation 
        omitted).

          But if a university's procedures are insufficient to 
        make ``issues of credibility and truthfulness ? . . clear to 
        the decision makers,'' that institution risks removing the 
        wrong students, while overlooking those it should be removing. 
        See Furey v. Temple Univ., 884 F. Supp. 2d 223, 252 (E.D. Pa. 
        2012). ``The concern would be mostly academic if the 
        disciplinary process were a totally accurate, unerring process, 
        never mistaken and never unfair. Unfortunately, that is not the 
        case, and no one suggests that it is.'' Goss, 419 U.S. at 579-
        80, 95 S. Ct. 729. Cross-examination, ``the principal means by 
        which the believability of a witness and the truth of his 
        testimony are tested,'' can reduce the likelihood of a mistaken 
        exclusion and help defendants better identify those who pose a 
        risk of harm to their fellow students.

    Id.

    Other cases addressing the need for hearings and cross-examination 
in the specific context of campus Title IX proceedings are described 
below.

    In series of recent cases in California state court, the courts 
have directed both public and private universities to set aside 
decisions finding male students responsible for sexual misconduct, and 
have held that when a disciplinary decision turns on credibility, 
parties and witnesses must be subjected to questioning and cross-
examination at a live hearing before a neutral adjudicator who cannot 
be the same person as the investigator. See, e.g., Doe v. Allee, 30 
Cal. App. 5th 1036 (Cal. Ct. App. 2019). In the Allee case, the Court 
stated that ``[f]or practical purposes, common law requirements for a 
fair disciplinary hearing at a private university mirror the due 
process protections at public universities,'' including ```a full 
opportunity to present [respondent's] defenses.''' Id. at 1061-62. 
Citing multiple cases, the Court held that when credibility is at 
stake, the accused must be allowed to cross-examine the accuser and 
adverse witnesses. It noted that a cross-examiner may ``delve into the 
witness' story to test the witness' perceptions and memory;'' may 
``expose testimonial infirmities such as forgetfulness, confusion, or 
evasion;'' and may ``reveal[] possible biases, prejudices, or ulterior 
motives' that color the witness's testimony.'' And, the Court noted, 
the ``strategy may also backfire, provoking the kind of confident 
response that makes the witness appear more believable to the fact 
finder than [the cross-examiner] intended. . . . Whatever the outcome, 
`the greatest legal engine ever invented for the discovery of truth' 
will do what it is meant to: `permit[] the [fact finder] that is to 
decide the [litigant]'s fate to observe the demeanor of the witness in 
making his statement, thus aiding the [fact finder] in assessing his 
credibility.''' Id. at 1065-66 (internal citations omitted). The Allee 
Court also disapproved the university's use of a single investigator to 
resolve Title IX complaints without a hearing. In the Court's words:

          As we have explained, in USC's system, no in-person 
        hearing is ever held, nor is one required. Instead, the Title 
        IX investigator interviews witnesses, gathers other evidence, 
        and prepares a written report in which the investigator acts as 
        prosecutor and tribunal, making factual findings, deciding 
        credibility, and imposing discipline. The notion that a single 
        individual, acting in these overlapping and conflicting 
        capacities, is capable of effectively implementing an accused 
        student's right of cross-examination by posing prepared 
        questions to witnesses in the course of the investigation 
        ignores the fundamental nature of cross-examination: 
        adversarial questioning at an in-person hearing at which a 
        neutral fact finder can observe and assess the witness' 
        credibility . . . In light of these concerns, we hold that when 
        a student accused of sexual misconduct faces severe 
        disciplinary sanctions, and the credibility of witnesses 
        (whether the accusing student, other witnesses, or both) is 
        central to the adjudication of the allegation, fundamental 
        fairness requires, at a minimum, that the university provide a 
        mechanism by which the accused may cross-examine those 
        witnesses, directly or indirectly, at a hearing in which the 
        witnesses appear in person or by other means (e.g., 
        videoconferencing) before a neutral adjudicator with the power 
        independently to find facts and make credibility assessments. 
        That factfinder cannot be a single individual with the divided 
        and inconsistent roles occupied by the Title IX investigator in 
        the USC system.

    Id. at 1068-69.

    In Doe v. Regents of Univ. of California, 28 Cal. App. 5th 44 (Cal. 
Ct. App. 2018), the Court's ruling illustrates that the right to cross-
examination is the right to effective cross-examination, and must 
include access to relevant information and the ability to ask questions 
relating to the respondent's defense. In that case, the university 
allowed a detective to testify about a single phrase from a sexual 
assault response team (SART) report without requiring production of the 
entire report to the hearing committee or the respondent. ``Without 
access to the complete SART report, [respondent] did not have a fair 
opportunity to cross-examine the detective and challenge the medical 
finding in the report. The accused must be permitted to see the 
evidence against him. Need we say more?'' Id. at 57. The university 
also violated respondent's rights by allowing the complainant to refuse 
to answer questions relating to his defense. ``This deprived John of 
his right to cross-examine Jane and impeded his ability to present 
relevant evidence in support of his defense.'' Id. at 60.

    In Norris v. Univ. of Colorado, Boulder, No. 1:18-CV-02243-LTB, 
2019 WL 764568 (D. Colo. Feb. 21, 2019), the Court discussed cases 
holding that ``a lack of meaningful cross-examination may contribute to 
a violation of due process rights of an accused student in a 
disciplinary hearing regarding sexual assault. . . . So with the 
credibility of the parties in the investigation at issue . . ., the 
lack of a full hearing with cross-examination provides evidence 
supporting a claim for a violation of his due process rights.'' Id. at 
*15 (emphasis added).

    One of the cases Norris cited for the proposition that cross-
examination must be ``meaningful'' was Gischel v. Univ. of Cincinnati, 
302 F. Supp. 3d 961 (S.D. Ohio 2018). In that case, the Court found a 
viable procedural due process claim based on allegations that a hearing 
panel refused to ask entire categories of questions plaintiff deemed 
critical to his defense. This included questions to the complainant 
regarding her ``inconsistent or inaccurate statements about how much 
she drank, the last events she remembered, and whether she was 
drugged.'' Id. at 978-79.

    In Oliver v. University of Texas Southwestern Medical School, No. 
3:18-CV-1549-B, 2019 WL 536376 (N.D. Tex. Feb. 11, 2019), the Court 
denied the university's motion to dismiss a student's procedural due 
process and Title IX claims. ``[B]ased on Oliver's allegations, it 
appears that UTSW did not present any witnesses to the alleged assault 
for Oliver to effectively cross-examine such as Rowan [the 
complainant], nor did UTSW present key evidence [including audio files 
which plaintiff eventually proved the complainant had doctored, and 
pictures which established that complainant's bruises were from an 
injury at work, before the parties' alleged encounter]. . . . The Court 
recognizes that neither the Supreme Court nor the Fifth Circuit has 
explicitly required any one of these procedures. But taken together, 
the allegations show Oliver was not afforded sufficient procedural 
mechanisms in light of the facts and circumstances of this case and 
what he stood to lose. . . . [T]here was a substantial risk of 
erroneously depriving Oliver's interests through the procedures used, 
and the probable value of disclosing that evidence or having Rowan 
testify is clearly shown.'' Id. at *11, 13. The Court reached this 
conclusion without citing the Sixth Circuit cases, basing its decision 
on ``the minimum procedural due-process required in previous cases'' 
decided by the Fifth Circuit and the Supreme Court. Id. at *13. 
Regarding plaintiff's Title IX claim, the Court held that the 
``inference of gender bias in the erroneous outcome is further 
exacerbated by the fact that Oliver was never given access to the 
incriminating evidence against him nor was Rowan required to testify 
against him at trial, which significantly limited his ability to mount 
a viable defense.'' Id. at *18.

    In Doe v. Univ. of Mississippi, No. 3:18-CV-138-DPJ-FKB, 2019 WL 
238098 (S.D. Miss. Jan. 16, 2019), the Court denied a university's 
motion to dismiss a student's due process claim, in part because the 
student plausibly alleged that allowing him to cross-examine his 
accuser would have added ``some value to the hearing.'' Id. at *10. The 
Court cited a 1970 U.S. Supreme Court opinion for the principle that 
```[i]n almost every setting where important decisions turn on 
questions of fact, due process requires an opportunity to confront and 
cross-examine adverse witnesses.''' Id. at *9 (internal citation 
omitted). The Court also said that, even though the Fifth Circuit has 
not ruled on the specific issue, it was proper to address the need for 
cross-examination under the factors set forth in Mathews v. Eldridge, 
424 U.S. 319, 332 (1976). Id. at *9. Mathews held that procedural due 
process ``imposes constraints on governmental decisions which deprive 
individuals of `liberty' or `property' interests within the meaning of 
the Due Process Clause of the Fifth or Fourteenth Amendment.'' Id. at* 
6 (citing Mathews). In the context of school disciplinary proceedings, 
courts applying Mathews consider three factors: ```(a) the student's 
interests that will be affected; (b) the risk of an erroneous 
deprivation of such interests through the procedures used and the 
probable value, if any, of additional or substitute procedural 
safeguards; and (c) the university's interests, including the burden 
that additional procedures would entail.''' Id. (citing Plummer v. 
Univ. of Houston, 860 F.3d 767, 773 (5th Cir. 2017). The university 
argued that requiring cross-examination would significantly burden it, 
but the Court stated that the Sixth Circuit does not require cross-
examination in every case [as I noted above] and cited a Supreme Court 
case noting the ``need for cross-examination `where governmental action 
seriously injures an individual, and the reasonableness of the action 
depends on fact findings.''' Id. at *10 (internal citation omitted).

    In Doe v. Marymount Univ., 297 F. Supp. 3d 573, 584 (E.D. Va. 
2018), the Court denied a motion to dismiss a student's Title IX claim, 
holding among other thing that allegations that the student ``was 
deprived the opportunity to identify and interview potential witnesses, 
to gather exculpatory evidence, to meet with the adjudicator in person, 
and to cross-examine [complainant], . . . taken together, [] warrant 
concern that [respondent] was denied a full and fair hearing.'' Id. at 
584.

    In Powell v. Montana State Univ., No. CV 17-15-BU-SEH, 2018 WL 
6728061 (D. Mont. Dec. 21, 2018), the Court denied a university's 
motion for summary judgment on a student's due process claims, in part 
because he was denied the right to cross-examine a witness against him. 
The Court cited the Sixth Circuit's decisions and said they were 
consistent with Ninth Circuit precedent expressing the view that ``a 
charge resulting in a disciplinary suspension of a student `may require 
more formal procedures' to satisfy components of our system of 
constitutional due process.'' Id. at *7 (internal citations omitted).

    In Lee v. University of New Mexico, No. 17-1230, Order, at 2-3 
(D.N.M. Sept. 20, 2018), available at https://www.thefire.org/lee-v-
university-of-new-mexico/, the Court - citing only the Fourteenth 
Amendment itself - denied a motion to dismiss a student's due process 
claims, holding that ``Lee's allegations plausibly support a finding 
that his sexual misconduct investigation resolved into a problem of 
credibility such that a formal or evidentiary hearing, to include the 
cross-examination of witnesses and presentation of evidence in his 
defense, is essential to basic fairness.''

    In Doe v. Pennsylvania State Univ., 336 F. Supp. 3d 441 (M.D. Pa. 
2018), the Court denied a motion to dismiss a student's due process 
claims. The university used an ``Investigative Model'' in which a 
hearing panel resolved cases based on a paper record compiled by an 
investigator, with no in-person testimony and no opportunity for cross-
examination. In concluding this model raised constitutional concerns, 
the Court emphasized ``PSU's interest in securing accurate resolutions 
of student complaints like the one at issue here. PSU's educational 
mission is, of course, frustrated if it allows dangerous students to 
remain on its campuses. Its mission is equally stymied, however, if PSU 
ejects innocent students who would otherwise benefit from, and 
contribute to, its academic environment.'' Id. at 449 (Court's 
emphasis).

          When the panel determined Mr. Doe's responsibility 
        and sanction, it was relying solely on the Investigative Packet 
        and its written responses. Mr. Doe's main objection to this 
        paper-only Investigative Model is that it prohibited him from 
        telling his story directly to the panel, and from challenging 
        Ms. Roe's version of events before that panel. . . . In a case 
        like this, however, where everyone agrees on virtually all 
        salient facts except one--i.e., whether or not Ms. Roe 
        consented to sexual activity with Mr. Doe--there is really only 
        one consideration for the decisionmaker: credibility. After 
        all, there were only two witnesses to the incident, with no 
        other documentary evidence of the sexual encounter itself. As a 
        result, in this Court's view, the Investigative Model's virtual 
        embargo on the panel's ability to assess that credibility 
        raises constitutional concerns. Consequently, while this Court 
        is consistently ``mindful of [the Supreme Court's] admonition 
        [that j]udicial interposition in the operation of the public 
        school system of the Nation raises problems requiring care and 
        restraint,'' Defendants' motion to dismiss Mr. Doe's due 
        process claim for a failure to state a claim upon which relief 
        can be granted will be denied.

    Id. at 450-51 (internal citations omitted).

    In Doe v. Alger, 175 F. Supp. 3d 646, 661-662 (W.D. Va. 2016), the 
Court held a male student adequately alleged a procedural due process 
violation where a university appeal panel reversed a decision that 
cleared the student of alleged rape, without hearing live testimony 
despite the credibility issues. In a later opinion, the Court granted 
summary judgment to the student. 228 F. Supp. 3d 713 (W.D. Va. 2016).

    Question 5. Are there rules or guidelines institutions should adopt 
to govern the live questioning of witnesses or parties in campus 
disciplinary proceedings? If so, do you have specific suggestions on 
what rules or guidelines institutions should adopt?

    Answer 1. Yes. As the Sixth Circuit observed in Baum and Senator 
Alexander suggested at the hearing, the concern that direct interaction 
between an accuser and accused will cause trauma does not justify 
denying cross-examination altogether, but the concern can be mitigated 
by allowing ``the accused student's agent to conduct cross-examination 
on his behalf. After all, an individual aligned with the accused 
student can accomplish the benefits of cross-examination--its 
adversarial nature and the opportunity for follow-up--without 
subjecting the accuser to the emotional trauma of directly confronting 
her alleged attacker.'' Baum, 903 F.3d at 583. Schools can, should, and 
do adopt measures to ensure respectful treatment of parties and 
witnesses and prevent irrelevant, unfair, or badgering questions. 
Schools can also allow a witness or party to be questioned outside the 
other party's physical presence, e.g., by using a witness screen or 
allowing questioning via Skype. See id. & n.3. For cross-examination to 
be meaningful, however, the parties and decisionmakers must be able to 
observe people as they testify, whether live or through electronic 
means. Id.

    Question 6.  6. Do you have any specific suggestions on what 
guidelines or parameters, if any, should be used when informal 
resolution methods, such as mediation or restorative justice, are 
selected as a way to resolve sexual misconduct allegations, including 
sexual assaults?

    Answer 6. Yes. Schools should establish in advance the kinds of 
informal resolutions they will offer, and should publicize the 
availability of informal resolution processes. When a complaint is 
filed, schools should notify both parties clearly and prominently that 
informal resolution is available, what it would involve, and the 
consequences of participating in it (including whether a student who 
opts to participate could later change his or her mind, and whether 
statements made during an informal resolution could later be used in a 
formal proceeding if one occurs). It would be appropriate for schools 
to encourage informal resolution - as the University of Washington does 
in its procedures for faculty - but they should not pressure parties to 
participate in an informal process. An informal resolution should 
proceed only if both parties give voluntary, written consent. Informal 
resolutions should be facilitated by a person or persons who are 
trained and skilled in the process, and should be conducted in a way 
that is fair and respectful to both parties.

    Question 7. Should institutions be able to implement a statute of 
limitations to report an allegation of sexual misconduct, including 
sexual assault?

    Answer 7. Yes. I have frequently seen cases in which a complaint is 
made to a school many months or years after an alleged incident 
occurred. At that point memories have faded, witnesses may be 
unavailable, and evidence may have been lost, making a fair and 
reliable resolution virtually impossible. At the same time, as long as 
both complainant and respondent attend the school, the school has an 
interest in addressing alleged sexual harassment or assault, and in 
some circumstances may have a legal obligation. There are different 
ways to approach this issue, and I would recommend it be addressed with 
input from many stakeholders. A few points to consider:

          A school could adopt a time limit with a provision it 
        will consider significant extenuating circumstances that 
        prevented the complaint from being brought within the period.

          Adopting and publicizing a limitations period could 
        encourage complainants to bring their complaints at a time when 
        they can be fairly and reliably resolved - to the benefit of 
        both complainants and respondents. If the time period is 
        reasonable and the school makes clear complaints are taken 
        seriously, that should not pose an undue deterrent to 
        reporting.

          If an alleged act continues to have effects after the 
        limitations period expires, the school could address those 
        effects without opening a disciplinary process. The 
        Department's proposed regulations suggest various forms of non-
        punitive supportive measures that may be appropriate apart from 
        a formal disciplinary process, finding, or sanction, including 
        ``counseling, extensions of deadlines or other course-related 
        adjustments, modifications of work or class schedules, campus 
        escort services, mutual restrictions on contact between the 
        parties, changes in work or housing locations, leaves of 
        absence, increased security and monitoring of certain areas of 
        the campus, and other similar measures.'' Proposed 34 CFR Sec.  
        106.30.

          A school may provide that it will not conduct a 
        disciplinary proceeding if either the complainant or the 
        respondent no longer attends the school; indeed, the school may 
        not have jurisdiction in those circumstances. Regardless, a 
        complainant who is still enrolled could be given supportive 
        measures.

    While this was not addressed in Senator Alexander's written 
questions, the Senator asked me during the hearing whether a 
respondent's testimony in a Title IX proceeding could be used against 
him in a criminal proceeding. I answered that it could, and I would 
like to supplement that answer here. The risk is very real, 
particularly when students are questioned without legal representation 
or without proper notice of the accusations against them. A 2015 
article describes the case of a University of Wisconsin student whose 
statement during a Title IX investigation was used to arrest him. ``The 
accused student denied the charges when interviewed by police, [Susan] 
Riseling [a university administrator and then-campus police chief] 
said. In his disciplinary hearing, however, he changed his story in an 
apparent attempt to receive a lesser punishment by admitting he 
regretted what had occurred. That version of events was `in direct 
conflict with what he told police,' Riseling said. Police subpoenaed 
the Title IX records of the hearing and were able to use that as 
evidence against the student. `It's Title IX, not Miranda,' Riseling 
said. `Use what you can.''' Jake New, Making Title IX Work, Inside 
Higher Ed (July 6, 2015), https://www.insidehighered.com/news/2015/07/
06/college-law-enforcement-administrators-hear-approach-make-title-ix-
more-effective.

    If a Title IX proceeding continues while a criminal investigation 
is pending, a respondent's right to avoid self-incrimination must be 
protected and no adverse inference should be drawn if the respondent 
limits his participation or testimony.
                             senator warren
    Question 1. According to data from the U.S. Department of Justice, 
only one in five women who are sexually assaulted on campus will 
actually report the attack to the police. \1\ What should Congress do 
to encourage students to report incidences of harassment and assault?
---------------------------------------------------------------------------
    \1\  U.S. Department of Justice, Office of Justice Programs, Bureau 
of Justice Statistics. (2014). Rape and Sexual Victimization Among 
College-Aged Females, 1995-2013. https://www.bjs.gov/content/pub/pdf/
rsavcaf9513.pdf.

    Answer 1. With respect to the Department of Justice publication 
referenced in the question, I would like to offer some points of 
clarification. First, the publication stated that it was based on 
responses to the National Crime Victimization Survey (for the period 
1995-2013), and used the term ``victims'' to refer to people who 
reported in the survey that they had been raped or assaulted. Second, 
it stated that 20 percent of ``female victims ages 18 to 24 enrolled 
part time or full time in a post-secondary institution'' reported to 
police. For this figure, the publication did not address where alleged 
assaults occurred or whether the alleged assaulter was a fellow 
student, and specifically did not include reports to ``other officials 
or administrators.'' Third, based on the survey, the publication set 
forth a rate of rape or sexual assault of 6.1 per 1000 female college 
students from 1995 to 2013, with the rate trending significantly 
downwards, from 9 per 1000 in 1997 to 4.3 per 1000 in 2013. As set 
forth in my written testimony, policymakers and advocates often claim 
that one in five women is sexually assaulted in college, and the 
Department of Justice's figures, generated by an office with 
substantial experience in producing statistics for questions related to 
crime and criminal activity, show a much lower rate - though, of 
course, even one sexual assault is too many. Finally, I note that the 
publication reported a rate of rape or sexual assault 1.2 times higher 
for college-aged females not enrolled in a post-secondary school: 7.6 
per 1000 from 1995 to 2013. Of course, survey responses and figures do 
not prove sexual assault occurred. As I stated in my testimony and 
discuss again below, a finding of sexual harassment or assault in a 
---------------------------------------------------------------------------
specific case must depend on the individual facts of that case.

    Turning to Senator Warren's question, given the focus of the HELP 
Committee and the April 2 hearing, I assume the question pertains to 
whether Congress should act to encourage students to report harassment 
and assault to their schools.

    First, in addressing that question, Congress should have a thorough 
understanding of the measures that are already in place to encourage 
reporting. Six years have passed since the last year referenced in the 
Department of Justice's publication, and substantial progress has been 
made. In my experience, schools are already doing a great deal to 
encourage students to come forward if they encounter or witness 
harassment or assault. Based on long-standing federal law, all colleges 
and universities have a dedicated Title IX office, at least one and 
often a number of Title IX coordinators, and specific Title IX policies 
and procedures. These policies and procedures, published to students 
and employees and generally available on line, explain the options for 
reporting sexual harassment to the school or to law enforcement and the 
procedures for making and resolving complaints to the school. Schools 
offer continual training. They support advocacy groups. They host 
awareness campaigns such as ``Take Back the Night'' and ``It's On Us.'' 
They provide extensive health and support services for students who 
believe they have experienced sexual harassment or assault, including 
services students can obtain without reporting to their Title IX 
offices. In my experience, students in 2019 know they have recourse at 
their schools, as well as through the criminal (and civil) justice 
system. Under the current legal framework, students may make their own 
decisions about whether or not to report an assault to the school and/
or police. The Department of Education, in its 2018 Notice of Proposed 
Rulemaking, reported hearing ``from a wide range of stakeholders about 
the importance of a school taking into account the wishes of the 
complainant in deciding whether or not a formal investigation and 
adjudication is warranted.'' \2\ Students' right to decide whether or 
not to go to the police should also be respected.
---------------------------------------------------------------------------
    \2\  Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance, https://
www.federalregister.gov/documents/2018/11/29/2018-25314/
nondiscrimination-on-the-basis-of-sex-in-education-programs-or-
activities-receiving-federal.

    Second, while the goal of ensuring that any student who is sexually 
harassed or assaulted feels comfortable in reporting the offense is a 
commendable one, the central purpose of a grievance procedure should be 
to ensure reliable results in particular cases. The overall goal must 
be to ensure that campus disciplinary proceedings are fundamentally 
fair to both parties; that each individual case is decided based on the 
facts of that case, objectively and fairly assessed; and that no 
student (whether complainant or respondent, and regardless of gender) 
is unjustifiably deprived of access to an education. \3\
---------------------------------------------------------------------------
    \3\  I emphasize that Title IX's right to equal access to education 
means equal access for both complainants and respondents, regardless of 
gender. Students who are accused of sexual harassment or assault are 
routinely excluded from and denied the benefits of their school's 
educational programs and activities, whether or not they are found 
responsible. I explained this at length in response to Questions for 
the Record from Senator Alexander, which I understand will be included 
in the record for consideration by all Committee Members.

    To that end, schools should: a) resolve, and publicize their 
resolve, to take every complaint of sexual harassment or assault 
seriously; b) resolve, and publicize their resolve, to ensure 
complaints are handled through a process that is prompt and 
fundamentally fair to both parties; c) make sure all members of the 
school community know the school's policies and the protections 
available to all parties; d) offer appropriate, non-punitive support 
services to both parties, to increase the likelihood that they can 
continue their education, whether or not conduct of concern rises to 
the level of a particular definition of harassment and whether or not a 
formal complaint is filed; e) offer the parties the option of 
addressing a complaint through informal resolution processes; f) if a 
formal proceeding does occur, provide a fundamentally fair process and 
impartial decisionmakers; and g) educate the school community about the 
importance of fair procedures in a nation committed to the rule of law 
and the fact that both parties (as well as the schools themselves) 
benefit from disciplinary procedures that are fair, prompt, and 
reliable. Clear options for supportive measures and informal 
resolutions, with steps to ensure fair procedures and reliable outcomes 
if a formal grievance procedure takes place and with appropriate 
education, should encourage students who encounter sexual harassment or 
---------------------------------------------------------------------------
assault to report to and seek support from their schools.

    Question 2.  From your perspective, how would each of the following 
aspects of the Department of Education's proposed rule, 
``Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance,'' affect a 
complainant's likelihood of reporting harassment or assault?

        a. The live cross examination requirement;

        b. The proposed definition of harassment, which would narrow 
        the scope of what incidences of sexual misconduct schools are 
        required to respond to;

        c. The geographic location limitations, which would limit 
        instances where schools may respond to sexual harassment and 
        assault to school grounds, activities, and programs;

        d. The clear and convincing standard requirement; and

        e. The actual knowledge standard and requirements for filing 
        formal complaints.

    I am not aware of empirical data connecting the specifics of campus 
procedures to reporting patterns, and do not have a basis to answer the 
question specifically.

    That said, I will share my thoughts, based on my experience and 
observations, on points a and d first, and then points b, c and e.

    First, regarding points a and d, as discussed above and in my oral 
and written testimony, measures to ensure fair procedures and reliable 
outcomes in Title IX grievance procedures benefit both complainants and 
respondents, and are increasingly being required by the courts. In my 
written and oral testimony, I explained why live cross-examination is 
essential to a fair proceeding, and cited cases allowing accused 
students to sue their schools when they were not given the opportunity 
to cross-examine their accusers. In my responses to questions for the 
record from Senator Alexander, I cited additional cases reaching that 
result, including at least a dozen since early 2018 alone. In my 
written testimony, I also addressed the importance of the clear and 
convincing standard, given the severe and life-long consequences of 
sexual harassment or assault charges, the anti-respondent, anti-male 
bias that pervades Title IX disciplinary proceedings now, and the need 
to ensure schools reach just results, not simply adopt fairer 
procedures on paper.

    The Department of Education's proposed requirements regarding live 
hearings and cross-examination and provisions regarding the standard of 
evidence should also be considered in the context of the regulations as 
a whole. As set forth in my written testimony, the Department proposes 
to give schools and parties more flexibility to pursue informal, non-
punitive resolutions. Only if a case advances to the formal grievance 
procedure will a live hearing and cross-examination be required, and 
the standard of evidence applied. And those cases are particularly 
likely to involve credibility issues and competing narratives, where 
cross-examination is essential for determining the truth. When live 
hearings and cross-examination do take place, the impact on students 
can be mitigated with measures to ensure respectful treatment of 
parties and witnesses; prevent irrelevant, unfair, or badgering 
questions; and keep the parties separated by use of screens or 
technology.

    As California's Second Appellate District Court of Appeal held last 
year, both parties suffer from unfair procedures that deny a full 
testing of the allegations:

    Due process-two preeminent words that are the lifeblood of our 
Constitution. Not a precise term, but most everyone knows when it is 
present and when it is not. It is often most conspicuous by its 
absence. Its primary characteristic is fairness. It is self-evident 
that a trial, an adjudication, or a hearing that may adversely affect a 
person's life must be conducted with fairness to all parties. Here, a 
university held a hearing to determine whether a student violated its 
student code of conduct. Noticeably absent was even a semblance of due 
process. When the accused does not receive a fair hearing, neither does 
the accuser.

    It is ironic that an institution of higher learning, where American 
history and government are taught, should stray so far from the 
principles that underlie our democracy. This case turned on the 
Committee's determination of the credibility of the witnesses. 
Credibility cannot be properly decided until the accused is given the 
opportunity to adequately respond to the accusation. The lack of due 
process in the hearing here precluded a fair evaluation of the 
witnesses' credibility. In this respect, neither Jane nor John received 
a fair hearing.

    Doe v. Regents of Univ. of California, 28 Cal. App. 5th 44, 46, 61 
(Cal. Ct. App. 2018) (emphasis added).

    If institutions of higher education properly educate their 
communities about the importance of fundamentally fair proceedings to 
ensure fair and reliable outcomes, the options for supportive measures 
and informal resolutions, and the protections available if live 
hearings do occur, students who experience sexual harassment or assault 
should be more rather than less willing to report to and seek support 
from their schools. And if schools' procedures are fairer and more 
reliable, they will also be less vulnerable to lawsuits. Litigation can 
extend the life of an allegation for years, and will often require 
complainants to sit for a deposition and/or provide documents, whether 
or not they are parties.

    Second, regarding points b, c, and e, I have no data that would 
allow me to express an opinion on how these provisions could impact 
reporting. As I stated in my written testimony, I believe commenters 
have raised legitimate concerns about the proposed definitions and 
conditions that give rise to schools' duty to respond, and there is 
room for discussion and compromise. Counterproposals include, on the 
one hand, expanded definitions of sexual harassment and the conditions 
that give rise to a duty to respond, and, on the other, measures to 
ensure schools do not circumvent key procedural protections by handling 
cases of serious alleged misconduct outside of the Title IX process. 
While this is beyond the scope of the issues I was asked to address at 
the hearing, I encourage lawmakers and the Department to consider the 
comments and requests for clarification regarding the Department's 
proposed definitions of sexual harassment and sexual assault (Section 
106.30 of the proposed regulations), the ``deliberate indifference'' 
standard (Section 106.44(a)); and the standards for what constitutes 
conduct within a school's ``education program or activity'' (Section 
106.44(a)).
                             senator rosen
    Question 1.  As others have expressed today, I am incredibly 
concerned with the proposed rollbacks of Title IX protections for 
sexual assault survivors and how they would jeopardize student safety, 
particularly students in my home state of Nevada. Among other harmful 
provisions, the Department of Education's proposed rule only allows 
schools to investigate a report of sexual harassment if it occurred 
``within a school's own program or activity.'' At University of Nevada 
Las Vegas (UNLV) - a public university with the highest student 
enrollment rate in my state - only 6 percent of full-time students 
reside on campus. UNLV is a commuter campus, so the majority of 
students experience sexual violence, harassment, or misconduct 
involving fellow students outside the campus or university-sponsored 
program or activity. Likewise, in a 2016 survey of sexual conduct and 
campus safety, 79 percent of University of Nevada Reno students 
reported that ``unwanted sexual conduct affecting students occurs off 
campus''. And this doesn't even account for the many Nevadans who 
attend other commuter campuses like Truckee Meadows Community College, 
Nevada State College, and College of Southern Nevada. Changing the 
rules so schools only have to respond if the incident occurred on 
campus would have a direct negative impact on survivors of sexual 
assault and harassment in Nevada. Just because assault or harassment 
took place off campus, students may be forced to see their harasser on 
campus every day, and their education can be impacted - potentially 
resulting in them dropping out of school altogether.

        a. Given that Title IX itself does not state that 
        discriminatory conduct must occur during a school activity for 
        there to be a discriminatory environment, how is this proposed 
        change appropriate?

        b. Nevada institutions like UNLV have pledged to continue to 
        offer support and resources to survivors of off-campus 
        assaults, even if this rule goes into effect. Unfortunately, 
        not all schools will do the same. How will these changes affect 
        the rate of student reporting of sexual misconduct?

    Answer 1. As background for my response, I note that Senator 
Alexander, in his opening statement at the April 2 hearing, outlined 
the statutes and binding regulations that govern campus Title IX 
proceedings. As Senator Alexander also stated, the guidance documents 
issued during the previous administration, including OCR's 2011 Dear 
Colleague Letter and the 2014 Questions and Answers on Title IX Sexual 
Violence, did not undergo formal rulemaking procedures and were not 
legally binding, though OCR behaved as if they were - and schools 
responded accordingly. In my written testimony, I described those 
guidance documents and related actions by the federal government 
between 2011 and 2016. Doubtless the government's actions were 
motivated by the legitimate and necessary goal of making sure schools 
take sexual harassment and assault seriously. However, as set forth in 
my written testimony, the end result has been that schools have 
essentially eliminated fundamental fairness and due process protections 
for respondents - the great majority of whom are male - and have 
undermined the legitimacy of campus disciplinary proceedings and 
outcomes. Concerns about these developments have been voiced in public 
and scholarly commentary, by universities and colleges, in several 
state legislatures, and in an increasing number of opinions from 
federal and state courts

    In this context - including developing case law and escalating 
concerns that individual Title IX complaints are not being justly 
resolved - the Department of Education has modified its position on 
Title IX enforcement. In September 2017, it withdrew the 2011 Dear 
Colleague Letter and the 2014 Questions and Answers on Title IX Sexual 
Violence, and released a new interim Q&A to guide schools on how to 
investigate and adjudicate sexual misconduct allegations under federal 
law. In November 2018, it issued a Notice of Proposed Rulemaking 
including proposed amended Title IX regulations. The basic statutory 
and regulatory framework that Senator Alexander summarized is still in 
place, and still requires schools to provide a prompt, fair, and 
impartial investigation and resolution. Court opinions also provide 
roadmaps for what that entails.

    Answer (a). In response to Senator Rosen's question a, as I stated 
in my written testimony, I believe commenters have raised legitimate 
concerns about the proposed definitions and conditions that give rise 
to schools' duty to respond, including the standards for what 
constitutes conduct within a school's ``education program or activity'' 
(Section 106.44(a) of the proposed regulations). Counterproposals 
include, on the one hand, expansion of the conditions that give rise to 
a duty to respond, and, on the other, measures to ensure schools do not 
circumvent key procedural protections by handling cases of serious 
alleged misconduct outside of the Title IX process. While this is 
beyond the scope of the issues I was asked to address at the hearing, I 
encourage lawmakers and the Department to consider the comments and 
requests for clarification on that subject. I do note that the 
Department stated in its Notice of Proposed Rulemaking that ``[w]hether 
conduct occurs within a recipient's education program or activity does 
not necessarily depend on the geographic location of an incident (e.g., 
on a recipient's campus versus off of a recipient's campus),'' and 
cited case law developing standards for making this determination. \4\
---------------------------------------------------------------------------
    \4\  Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance, 83 FR at 61468, 
https://www.federalregister.gov/documents/2018/11/29/2018-25314/
nondiscrimination-on-the-basis-of-sex-in-education-programs-or-
activities-receiving-federal.

    Answer (b). With respect to question b, I am not aware of empirical 
data connecting the specifics of campus procedures to reporting 
patterns, and do not have a basis to answer the question specifically. 
In general, however, in my experience, the support services and 
resources schools offer for students who believe they have experienced 
sexual harassment or assault are available whether or not a student 
wishes to file a complaint with the school's Title IX office. I am not 
aware of any school that has announced it would cease offering support 
and resources to students who report off-campus assault if the proposed 
regulations go into effect. Any college or university president who did 
so would likely face substantial, and deserved, campus criticism. 
Moreover, while the goal of ensuring that any student who is sexually 
harassed or assaulted feels comfortable in reporting the offense is a 
commendable one, the central purpose of a grievance procedure should be 
to ensure reliable results in particular cases. The overall goal for 
Title IX grievance procedures must be to ensure that campus 
disciplinary proceedings are fundamentally fair to both parties; that 
each individual case is decided based on the facts of that case, 
objectively and fairly assessed; and that no student - whether 
complainant or respondent, and regardless of gender - is unjustifiably 
deprived of access to an education. \5\
---------------------------------------------------------------------------
    \5\  I emphasize that Title IX's right to equal access to education 
means equal access for both complainants and respondents, regardless of 
gender. Students who are accused of sexual harassment or assault are 
routinely excluded from and denied the benefits of their school's 
educational programs and activities, whether or not they are found 
responsible. I explained this at length in response to Questions for 
the Record from Senator Alexander, which I understand will be included 
in the record for consideration by all Committee Members.
---------------------------------------------------------------------------
                            Senator Sanders
    Question 1.  As you know, Secretary DeVos rescinded guidance issued 
by the Obama administration that helped schools understand their 
responsibility to address campus sexual assault and ensure student 
safety and rights. Colleges and universities are focused on policies 
and procedures, the Department of Education ensures schools comply with 
federal law and it seems students, faculty and visitors to campus are 
an afterthought. Based on your experience working in the field of 
criminal law, how should the views, perspectives and experiences of 
students and various stakeholders taken into account to ensure that 
everyone feels safer on campus?

    Answer 1. I would like to open with some background regarding the 
previous administration's guidance and where it fit within the 
statutory and regulatory framework governing campus Title IX 
proceedings.

    As Senator Alexander outlined in his opening statement at the April 
2 hearing, federal statutes and legally binding regulations forbid 
gender discrimination and retaliation at federally funded educational 
institutions (i.e., most colleges and universities in the United 
States) and require prompt and equitable disciplinary proceedings. 
These include Title IX itself, which provides that ``[n]o person in the 
United States shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any education program or activity receiving 
Federal financial assistance,'' 20 U.S.C. Sec.  1681(a); the Jeanne 
Clery Disclosure of Campus Security Policy and Campus Crime Statistics 
Act, as amended in 2013, which states that school disciplinary 
procedures for alleged sexual misconduct must ``provide a prompt, fair, 
and impartial investigation and resolution,'' 20 U.S.C. Sec.  
1092(f)(8)(B)(iv)(I)(aa); binding regulations implementing Title IX, 
issued by the Department of Education and Department of Justice, which 
require schools to ``adopt and publish grievance procedures providing 
for prompt and equitable resolution of student . . . complaints 
alleging any action which would be prohibited'' by Title IX and 
implementing regulations, 34 C.F.R. 106.8(b) and 45 C.F.R. Sec.  
86.8(b); and binding regulations implementing the Clery Act, which 
specify the requirements for ``prompt, fair, and impartial'' 
proceedings, including notice, fair investigations, compliance with 
schools' policies, transparency to both accuser and accused, equal 
access to evidence, impartial officials, and explanations of ``the 
rationale for the result and the sanctions,'' 34 C.F.R. Sec.  
668.46(k). A guidance document issued by the Office for Civil Rights 
(OCR) in 2001, after public notice and comment, also outlined the 
elements of a fair and equitable process; stated that ``[a]ccording due 
process to both parties involved, will lead to sound and supportable 
decisions''; and made clear that Title IX's ``due process'' requirement 
applies to both public and private colleges and universities. Revised 
Sexual Harassment Guidance: Harassment of Students by School Employees, 
Other Students, or Third Parties, at 2, 20, 22, https://www2.ed.gov/
about/offices/list/ocr/docs/shguide.pdf).

    As Senator Alexander also stated in his opening, the guidance 
documents issued during the previous administration, including OCR's 
2011 Dear Colleague Letter and the 2014 Questions and Answers on Title 
IX Sexual Violence, did not undergo formal rulemaking procedures and 
were not legally binding, though OCR behaved as if they were - and 
schools responded accordingly. In my written testimony, I described 
those guidance documents and related actions by the federal government 
between 2011 and 2016. Doubtless the government's actions were 
motivated by the legitimate and necessary goal of making sure schools 
take sexual harassment and assault seriously. However, as set forth in 
my written testimony, the end result has been that schools have 
essentially eliminated fundamental fairness and due process protections 
for respondents - the great majority of whom are male - and have 
undermined the legitimacy of campus disciplinary proceedings and 
outcomes. Concerns about these developments have been voiced in public 
and scholarly commentary, by universities and colleges, in several 
state legislatures, and in an increasing number of opinions from 
federal and state courts.

    In this context - including developing case law and escalating 
concerns that individual Title IX complaints are not being justly 
resolved - the Department of Education has modified its position on 
Title IX enforcement. In September 2017, it withdrew the 2011 Dear 
Colleague Letter and the 2014 Questions and Answers on Title IX Sexual 
Violence, and released a new interim Q&A to guide schools on how to 
investigate and adjudicate sexual misconduct allegations under federal 
law. In November 2018, it issued a Notice of Proposed Rulemaking 
including proposed amended Title IX regulations. The basic statutory 
and regulatory framework, summarized above, is still in place, and 
still requires schools to provide a prompt, fair, and impartial 
investigation and resolution. Court opinions also provide roadmaps for 
what that entails.

    While the goal of ensuring that everyone feels safer on campus is a 
commendable one, the central purpose of a grievance procedure should be 
to ensure reliable results in particular cases. The overall goal must 
be to ensure that campus disciplinary proceedings are fundamentally 
fair to both parties; that each individual case is decided based on the 
facts of that case, objectively and fairly assessed; and that no 
student - whether complainant or respondent, and regardless of gender - 
is unjustifiably deprived of access to an education. \6\ The 
stakeholders here are not just students and schools, but everyone 
concerned with the long-term negative effects of government deprivation 
of civil liberties.
---------------------------------------------------------------------------
    \6\  I emphasize that Title IX's right to equal access to education 
means equal access for both complainants and respondents, regardless of 
gender. Students who are accused of sexual harassment or assault are 
routinely excluded from and denied the benefits of their school's 
educational programs and activities, whether or not they are found 
responsible. I explained this at length in response to Questions for 
the Record from Senator Alexander, which I understand will be included 
in the record for consideration by all Committee Members.

    Question 2. The Clery Act, amended by the Violence Against Women 
Act (VAWA), requires colleges and universities across the United States 
to disclose information about crime on and around their campuses. The 
law applies to most institutions of higher education because it compels 
compliance in order to participate in federal student financial aid 
programs. Again, based on your experience working in the field of 
criminal law, are schools fully complying with the Clery Act? Is the 
---------------------------------------------------------------------------
Department of Education properly enforcing the Clery Act and VAWA?

    Answer 2. Respectfully, this question is not within the scope of my 
experience in representing individual students.

    Question 3. Colleges and universities seem to be struggling with 
the repeal of the Obama Title IX rules since they provided much needed 
guidance for institutions experiencing rising cases of sexual assault 
and harassment. While Secretary DeVos has proposed new guidelines, they 
are not in effect and have drawn criticism for favoring the rights of 
the accused over those of the survivor and for not actually preventing 
or addressing campus sexual assault. In the meantime, how can colleges 
and universities strengthen their campus disciplinary process to ensure 
that all students are safer on and near campus, especially if students 
feel discouraged from coming forward about sexual assaults and other 
acts of violence?

    Answer 3. For background relevant to this question, please see my 
response to Question 1 and my written testimony. As I have noted, the 
basic statutory and regulatory framework governing Title IX proceedings 
is still in place, and the courts have provided roadmaps for what is 
required. While the Department has opened a notice and comment 
proceeding for its proposed regulations, to ensure all stakeholders are 
heard before legally binding regulations are issued, it has issued 
interim guidance for schools on how to investigate and adjudicate 
allegations under federal law.

    Regarding the concern that students ``feel discouraged from coming 
forward,'' I note that, in my experience, schools are already doing a 
great deal to encourage students to come forward if they encounter or 
witness sexual harassment or assault. Based on long-standing federal 
law, all colleges and universities have a dedicated Title IX office, at 
least one and often a number of Title IX coordinators, and specific 
Title IX policies and procedures. These policies and procedures, 
published to students and employees and generally available on line, 
explain the options for reporting sexual harassment to the school or to 
law enforcement and the procedures for making and resolving complaints. 
Schools offer continual training. They support advocacy groups. They 
host sexual awareness campaigns such as ``Take Back the Night'' and 
``It's On Us.'' They provide extensive health and support services for 
students who believe they have experienced sexual harassment or 
assault, including services students can obtain without reporting to 
their Title IX offices. In my experience, students in 2019 know that 
they have recourse at their schools, as well as through the criminal 
(and civil) justice system. Under the current legal framework, students 
may make their own decisions about whether or not to report an assault 
to the school and/or police.

    In addition, as I said with respect to the goal of ensuring people 
feel safe, the goal of encouraging students to come forward about 
sexual assault is a commendable one, but the central purpose of a 
grievance procedure should be to ensure reliable results in particular 
cases. To that end, schools should: a) resolve, and publicize their 
resolve, to take every complaint of sexual harassment or assault 
seriously; b) resolve, and publicize their resolve, to ensure 
complaints are handled through a process that is prompt and 
fundamentally fair to both parties; c) make sure all members of the 
school community know the school's policies and the protections 
available to all parties; d) offer appropriate, non-punitive support 
services to both parties, to increase the likelihood that they can 
continue their education, whether or not conduct of concern rises to 
the level of a particular definition of harassment and whether or not a 
formal complaint is filed; e) offer the parties the option of 
addressing a complaint through informal resolution processes; f) if a 
formal proceeding does occur, provide a fundamentally fair process and 
impartial decisionmakers; and g) educate the school community about the 
importance of fair procedures in a nation committed to the rule of law 
and the fact that both parties (as well as the schools themselves) 
benefit from disciplinary procedures that are fair, prompt, and 
reliable. Clear options for supportive measures and informal 
resolutions, with steps to ensure fair procedures and reliable outcomes 
if a formal grievance procedure takes place and with appropriate 
education, should encourage students who encounter sexual harassment or 
assault to report to and seek support from their schools.

    Measures to ensure fair procedures and reliable outcomes in Title 
IX grievance procedures benefit both complainants and respondents, as 
well as the schools themselves, and are increasingly being required by 
the courts. In my written and oral testimony, I explained why live 
hearings and cross-examination in particular are essential to a fair 
proceeding, and cited cases allowing accused students to sue their 
schools when they were not given the opportunity to cross-examine their 
accusers. In my responses to questions for the record from Senator 
Alexander, I cited additional cases reaching that result, including at 
least a dozen since early 2018 alone. In my written testimony, I also 
addressed the importance of the clear and convincing standard, given 
the severe and life-long consequences of sexual harassment or assault 
charges, the anti-respondent, anti-male bias that pervades Title IX 
disciplinary proceedings now, and the need to ensure schools reach just 
results, not simply adopt fairer procedures on paper.

    The Department of Education's proposed requirements regarding live 
hearings and cross-examination and provisions regarding the standard of 
evidence should also be considered in the context of the regulations as 
a whole. As set forth in my written testimony, the Department proposes 
to give schools and parties more flexibility to pursue informal, non-
punitive resolutions. Only if a case advances to the formal grievance 
procedure will a live hearing and cross-examination be required, and 
the standard of evidence applied. And those cases are particularly 
likely to involve credibility issues and competing narratives, where 
cross-examination is essential for determining the truth. When live 
hearings and cross-examination do take place, the impact on students 
can be mitigated with measures to ensure respectful treatment of 
parties and witnesses; prevent irrelevant, unfair, or badgering 
questions; and keep the parties separated by use of screens or 
technology.

    As California's Second Appellate District Court of Appeal held last 
year, both parties suffer from unfair procedures that deny a full 
testing of the allegations:

        Due process-two preeminent words that are the lifeblood of our 
        Constitution. Not a precise term, but most everyone knows when 
        it is present and when it is not. It is often most conspicuous 
        by its absence. Its primary characteristic is fairness. It is 
        self-evident that a trial, an adjudication, or a hearing that 
        may adversely affect a person's life must be conducted with 
        fairness to all parties. Here, a university held a hearing to 
        determine whether a student violated its student code of 
        conduct. Noticeably absent was even a semblance of due process. 
        When the accused does not receive a fair hearing, neither does 
        the accuser.

        It is ironic that an institution of higher learning, where 
        American history and government are taught, should stray so far 
        from the principles that underlie our democracy. This case 
        turned on the Committee's determination of the credibility of 
        the witnesses. Credibility cannot be properly decided until the 
        accused is given the opportunity to adequately respond to the 
        accusation. The lack of due process in the hearing here 
        precluded a fair evaluation of the witnesses' credibility. In 
        this respect, neither Jane nor John received a fair hearing.

    Doe v. Regents of Univ. of California, 28 Cal. App. 5th 44, 46, 61 
(Cal. Ct. App. 2018) (emphasis added).

    If institutions of higher education properly educate their 
communities about the importance of fundamentally fair proceedings to 
ensure fair and reliable outcomes, the options for supportive measures 
and informal resolutions, and the protections available if live 
hearings do occur, students who experience sexual harassment or assault 
should be more rather than less willing to report to and seek support 
from their schools. And if schools' procedures are fairer and more 
reliable, they will also be less vulnerable to lawsuits. Litigation can 
extend the life of an allegation for years, and will often require 
complainants to sit for a deposition and/or provide documents, whether 
or not they are parties.

    Finally, I would like to express my concern about the use of the 
term ``survivor'' in this context. A campus Title IX disciplinary 
tribunal hears allegations between a complainant and a respondent, or 
between an accuser and an accused--not between ``the accused [and] the 
survivor.'' Deeming the complainant a survivor prejudges the outcome of 
the case. As the U.S. District Court of Massachusetts held in Doe v. 
Brandeis University, ``Whether someone is a `victim' is a conclusion to 
be reached at the end of a fair process, not an assumption to be made 
at the beginning. Each case must be decided on its own merits, 
according to its own facts.'' \7\ A fair system - designed not to 
prejudge the case but to treat both parties with respect and to ensure 
that the school's goal is to determine the truth of the allegations - 
remains the best way to ensure safety for all students without 
denigrating the rights of any.
---------------------------------------------------------------------------
    \7\  Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 573 (D. Mass. 
2016).

    Question 4. What changes to Secretary DeVos' proposed Title IX 
guidance would you recommend to ensure that the administration does not 
create a campus sexual assault disciplinary process that favors 
wealthier students and their families who can afford attorneys and 
consultants to guide them through the labyrinth of filing a formal 
complaint with the ``appropriate person,'' notification requirements, 
---------------------------------------------------------------------------
live cross examinations, and extensive knowledge of criminal procedure?

    Answer 4. As I have stated, fundamentally fair campus proceedings 
are essential and required by law. \8\ In my experience, under the 
system as it exists now, schools generally make very substantial 
efforts to ensure that reporting is easy and provide complainants ample 
support and resources throughout the process, including access to 
advisors trained in advocating for reported victims of sexual assault. 
Respondents have commonly not received the same support or resources, 
and they have been the ones who need money and connections to protect 
themselves. I have frequently seen cases in which school policies are 
unclear and internally inconsistent. Sometimes school officials 
themselves do not understand their own policies and have not given 
accused students even the most basic protections, such as notice, 
access to evidence, and impartial decisionmakers. The existing system 
has been particularly detrimental to poor students, and 
disproportionately students of color. \9\
---------------------------------------------------------------------------
    \8\  It is important to note that Title IX proceedings are not 
criminal proceedings, though the consequences for respondents can be 
severe and permanent.
    \9\  See Emily Yoffe, The Question of Race in Campus Sexual-Assault 
Cases; Is the system biased against men of color?, The Atlantic (Sept. 
11, 2017), https://www.theatlantic.com/education/archive/2017/09/the-
question-of-race-in-campus-sexual-assault-cases/539361/; Ben 
Trachtenberg, How University Title IX Enforcement and Other Discipline 
Processes (Probably) Discriminate Against Minority Students,18 Nevada 
Law Journal 107 (Fall 2017), https://papers.ssrn.com/sol3/
papers.cfm?abstract--id=3035999 (``increasingly muscular Title IX 
enforcement--launched with the best of intentions in response to real 
problems-- almost certainly exacerbates yet another systemic barrier to 
racial justice and equal access to educational opportunities''). Please 
also see my answers to Senator Alexander's QFRs, where I cite comments 
filed by students and their families who have suffered harm from unfair 
campus procedures, including through substantial legal bills.

    Procedures that are fundamentally fair and transparent will make it 
more rather than less likely that students without economic means will 
be treated fairly. And the Department's proposals encourage schools to 
provide support and resources for both parties, regardless of whether a 
formal complaint is filed and regardless of whether the alleged conduct 
fits certain regulatory definitions, and give schools and parties more 
flexibility to pursue informal resolution. These provisions offer a 
path to resolve matters at lower economic and emotional cost to both 
parties. I do believe policymakers and schools should give more 
consideration to how to ensure that both parties have suitable, trained 
advisors if a formal grievance proceeding takes place and a live 
hearing with cross-examination is necessary.
Response by Fatima Goss Graves to Questions of Senator Warren, Senator 
                       Rosen, and Senator Sanders
                             senator warren
    Question 1.  According to data from the U.S. Department of Justice, 
only one in five women who are sexually assaulted on campus will 
actually report the attack to the police. \1\ What should Congress do 
to encourage students to report incidences of harassment and assault?
---------------------------------------------------------------------------
    \1\  U.S. Department of Justice, Office of Justice Programs, Bureau 
of Justice Statistics. (2014). Rape and Sexual Victimization Among 
College-Aged Females, 1995-2013. https://www.bjs.gov/content/pub/pdf/
rsavcaf9513.pdf.

    Answer 1. Congress should ensure that federal policies and 
enforcement mechanisms are designed to ensure students feel safe to 
report sexual harassment and sexual assault, and that campuses will 
take each report of sexual harassment, including sexual assault, 
seriously. This includes requiring that schools respond to sexual 
harassment that they know or reasonably should know about and 
investigate online and off-campus conduct, and that schools have 
equitable grievance procedures that will not re-traumatize complainants 
---------------------------------------------------------------------------
or deter them from participating in the grievance process.

    Question 2.  From your perspective, how would each of the following 
aspects of the Department of Education's proposed rule, 
``Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance,'' affect a 
complainant's likelihood of reporting harassment or assault? a. The 
live cross examination requirement:

    Answer 2. The proposed rules ignore the devastating impact of 
sexual violence and other forms of sexual harassment in schools. 
Instead of effectuating Title IX's purpose of protecting students and 
school employees from sexual abuse and other forms of sexual harassment 
that is, from unlawful sex discrimination they will make it harder for 
individuals to report abuse, allow (and sometimes require) schools to 
ignore reports when they are made, and unfairly tilt the investigation 
process in favor of respondents, to the direct detriment of survivors.

    Question (a) The live cross examination requirement:

    Answer a. Schools are ill-equipped to effectively meet the goals of 
live cross-examination. In student misconduct proceedings, schools are 
less likely to be equipped to apply general rules of evidence or trial 
procedure or apply the procedural protections that witnesses have 
during cross-examination in criminal or civil court proceedings \2\ and 
ensure that they are not subject to improper questions. Nor is there a 
judge available to rule on objections. Live cross-examination will also 
only deter reporting of sexual assault and re-traumatize many 
complainants participating in the process. The systems we build on 
campus to investigate and address student reports of sexual harassment 
must both enable truth-seeking and avoid perpetuating a hostile 
environment. Direct cross-examination of a victim by his or her 
assailant or the assailant's representative in campus misconduct 
proceeding is likely to result in the latter without uniquely promoting 
the former. Being asked detailed, personal, and humiliating questions 
often rooted in gender stereotypes and rape myths that tend to blame 
victims for the assault they experienced \3\ would understandably 
discourage many students--parties and witnesses--from participating in 
the grievance process, chilling those who have experienced or witnessed 
harassment from coming forward. \4\ Any live cross-examination 
requirement would also lead to sharp inequities, due especially to the 
``huge asymmetry'' that would arise when respondents are able to afford 
attorneys and complainants cannot. \5\ According to the president of 
Association of Title IX Administrators (ATIXA), the live cross-
examination provision alone--``even with accommodations like 
questioning from a separate room--would lead to a 50 percent drop in 
the reporting of misconduct.'' \6\
---------------------------------------------------------------------------
    \2\  The proposed rules impose only mild restrictions on what it 
considers ``relevant'' evidence. See proposed Sec.  106.45(b)(3)(vi) 
(excluding evidence ``of the complainant's sexual behavior or 
predisposition, unless such evidence about the complainant's sexual 
behavior is offered to prove that someone other than the respondent 
committed the conduct alleged'' or to prove consent).
    \3\  Zydervelt, S., Zajac, R., Kaladelfos, A. and Westera, N., 
Lawyers' Strategies for Cross-Examining Rape Complainants: Have we 
Moved Beyond the 1950s?, BRITISH JOURNAL OF CRIMINOLOGY, 57(3), 551-569 
(2016).
    \4\  See, e.g., Eliza A. Lehner, Rape Process Templates: A Hidden 
Cause of the Underreporting of Rape, 29 YALE J. OF LAW & FEMINISM 207 
(2018) (``rape victims avoid or halt the investigatory process'' due to 
fear of ``brutal cross-examination''); Michelle J. Anderson, Women Do 
Not Report the Violence They Suffer: Violence Against Women and the 
State Action Doctrine, 46 VILL. L. REV. 907, 932 936-37 (2001) 
(decision not to report (or to drop complaints) is influenced by 
repeated questioning and fear of cross-examination); As one defense 
attorney recently acknowledged, ``Especially when the defense is 
fabrication or consent as it often is in adult rape cases you have to 
go at the witness. There is no way around this fact. Effective cross-
examination means exploiting every uncertainty, inconsistency, and 
implausibility. More, it means attacking the witness's very 
character.'' Abbe Smith, Representing Rapists: The Cruelty of Cross-
Examination and Other Challenges for a Feminist Criminal Defense 
Lawyer, 53 AM. CRIM. L. REV. 255, 290 (2016).
    \5\  Andrew Kreighbaum, New Uncertainty on Title IX, INSIDE HIGHER 
EDUCATION (Nov. 20, 2018), https://www.insidehighered.com/news/2018/11/
20/title-ix-rules-cross-examination-would-make-colleges-act-courts-
lawyers-say.
    \6\  Id.

    Many advocates of live cross-examination in school grievance 
procedures, assume that cross-examination will improve the reliability 
of a decision-maker's determinations of responsibility and allow them 
to discern ``truth.'' \7\ But the reality is much more complicated, 
particularly in schools, where procedural protections against abusive, 
misleading, confusing, irrelevant, or inappropriate tactics are largely 
unavailable. Empirical studies show that adults give significantly more 
inaccurate responses to questions that involve the features typical of 
cross-examination, like relying on leading questions, compound or 
complex questions, rapid-fire questions, closed (i.e., yes or no) 
questions, questions that jump around from topic to topic, questions 
with double negatives, and questions containing complex syntax or 
complex vocabulary. \8\ While these common types of questions are 
likely to confuse adults and result in inaccurate or misleading 
answers, these problems are compounded and magnified when such 
questions are targeted at young people and minors. \9\ Moreover, there 
are frequently civil rights investigations, including sexual harassment 
investigations, held in the workplace settings without live cross-
examination, which clearly indicates that cross-examination is not the 
only means to test the truth.
---------------------------------------------------------------------------
    \7\  See, e.g., 83 Fed. Reg. at 61476. The Department of Education 
offers no evidence to support its assumption that live -cross 
examination will improve the reliability of schools' determinations 
regarding sexual assault; it merely cites a case which relies on John 
Wigmore's evidence treatise. See id. (citing California v. Green, 399 
U.S. 149, 158 (1970) (quoting John H. Wigmore, 5 Evidence sec. 1367, at 
29 (3d ed., Little, Brown & Co. 1940))).
    \8\  Emily Henderson, Bigger Fish to Fry: Should the Reform of 
Cross-Examination Be Expanded Beyond Vulnerable Witnesses, 19(2) 
INTERNATIONAL J. OF EVIDENCE AND PROOF 83, 84-85 (2015) (collecting 
studies of adults).
    \9\  Saskia Righarts, Sarah O'Neill & Rachel Zajac, Addressing the 
Negative Effect of Cross-Examination Questioning on Children's 
Accuracy: Can We Intervene?, 37 (5) LAW AND HUMAN BEHAVIOR 354, 354 
(2013) (``Cross-examination directly contravenes almost every principle 
that has been established for eliciting accurate evidence from 
children.'').

    Most fundamentally, any rule requiring institutions of higher 
education to conduct live, quasi-criminal trials with live cross-
examination to address allegations of sexual harassment, when no such 
requirement exists for addressing any other form of student or employee 
misconduct at schools, communicates the message that those alleging 
sexual assault or other forms of sexual harassment are uniquely 
unreliable and untrustworthy. Implicit in requiring cross-examination 
for complaints of sexual harassment, but not for complaints of other 
types of student misconduct, is an extremely harmful, persistent, deep-
rooted, and misogynistic skepticism of sexual assault and other 
harassment complaints. Sexual assault is already dramatically 
underreported. This underreporting, which significantly harms schools' 
ability to create safe and inclusive learning environments, will only 
be exacerbated if any such reporting forces complainants into 
traumatic, burdensome, and unnecessary procedures built around the 
presumption that their allegations are false. This selective 
requirement of cross-examination harms complainants and educational 
---------------------------------------------------------------------------
institutions.

    Unsurprisingly, Title IX experts, student conduct experts, 
institutions of higher education, \10\ and mental health experts 
overwhelmingly oppose live cross-examination. ATIXA, for example, 
opposes live, adversarial cross-examination, instead recommending that 
investigators ``solicit questions from the parties, and pose those 
questions the investigators deem appropriate in the investigation 
interviews.'' \11\ ASCA agrees that schools should ``limit[] advisors' 
participation in student conduct proceedings.'' \12\ The American Bar 
Association recommends that schools provide ``the opportunity for both 
parties to ask questions through the hearing chair.'' \13\ The 
Association of Independent Colleges and Universities in Massachusetts 
(AICUM), representing 55 accredited, nonprofit institutions of higher 
education, oppose the cross-examination requirement because it would 
``deter complainants from coming forward, making it more difficult for 
institutions to meet Title IX's very purpose preventing discrimination 
and harassment, stopping it when it does occur, and remedying its 
effects.'' \14\ The Association of American Universities (AAU), 
representing 60 leading public and private universities, oppose the 
requirement because it can be ``traumatizing and humiliating'' and 
``undermines other educational goals like teaching acceptance of 
responsibility.'' \15\ And over 900 mental health experts who 
specialize in trauma state that subjecting a survivor of sexual assault 
to cross-examination in the school's investigation would ``almost 
guarantee[] to aggravate their symptoms of post-traumatic stress,'' and 
``is likely to cause serious to harm victims who complain and to deter 
even more victims from coming forward.'' \16\
---------------------------------------------------------------------------
    \10\  Letter from Pepper Hamilton to Sec'y Elisabeth DeVos at 15 
(Jan. 30, 2019) [hereinafter Pepper Hamilton Comment], https://
www.pepperlaw.com/resource/35026/22G2, (``[A]dversarial cross-
examination will unnecessarily increase the anxiety of both parties 
going through the process. For complainants in particular, this may 
lead them to simply not come forward or utilize the school's process, 
no matter how meritorious their claims may be. As a result, our 
campuses will be less safe.''); Letter from Georgetown University to 
Sec'y Elizabeth DeVos as 7 (Jan. 30. 2019), https://
georgetown.app.box.com/s/fwk978e3oai8i5hpq0wqa70cq9iml2re (``Mandatory 
cross-examination by advisors will have a chilling effect on reporting 
and therefore diminish accountability of perpetrators. We already know 
that the majority of students who experience sexual misconduct never 
proceed with a formal complaint. There is little doubt that the specter 
of being cross-examined by a trained criminal defense attorney during a 
school's grievance procedure would drive down the number of students 
seeking redress through formal process even further.'').
    \11\  ATIXA, ATIXA Position Statement on Cross-Examining: The Urge 
to Transform College Conduct Proceedings into Courtrooms 1 (Oct. 5, 
2018), available at https://atixa.org/wordpress/wp-content/uploads/
2018/10/ATIXA-Position-Statement--Cross-Examination-final.pdf.
    \12\  Ass'n for Student Conduct Admin., ASCA 2014 White Paper: 
Student Conduct Administration & Title IX: Gold Standard Practices for 
Resolution of Allegations of Sexual Misconduct on College Campuses 2 
(2014) [hereinafter ASCA 2014 White Paper], https://www.theasca.org/
Files/Publications/ASCA%202014%20White%20Paper.pdf.
    \13\  Am. Bar Ass'n, ABA Criminal Justice Section Task Force On 
College Due Process Rights and Victim Protections: Recommendations for 
Colleges and Universities in Resolving Allegations of Campus Sexual 
Misconduct 8-10 (June 2017) [hereinafter Am. Bar Ass'n Task Force].
    \14\  Letter from Ass'n of Indep. Colls. and Univs. (AICUM) to 
Sec'y Elisabeth DeVos (Jan.23, 2019) [hereinafter AICUM Letter], http:/
/aicum.org/wp-content/uploads/2019/01/AICUM-public-comments-on-Notice-
of-Proposed-Rulemaking-%E2%80%9CNPRM%E2%80%9D-amending-regulations-
implementing-Title-IX-of-the-Education-Amendments-of-1972-Title-
IX%E2%80%9D-Docket-ID-ED-2018-OCR-0064.pdf.
    \15\  See Letter from Ass'n of Am. Univs. (AAU) to Brittany Bull 
(Jan. 24, 2019) [hereinafter AAU Letter], https://www.aau.edu/sites/
default/files/AAU-Files/Key-Issues/Higher-Education-Regulation/AAU-
Title-IX-Comments-1-24-19.pdf.
    \16\  Letter from 903 Mental Health Professionals and Trauma 
Specialists to Ass't Sec'y Kenneth L. Marcus at 3 (Jan. 30, 2019) 
[hereinafter Mental Health Professionals Letter], https://nwlc.org/wp-
content/uploads/2019/01/Title-IX-Comment-from-Mental-Health-
Professionals.pdf.

    Question b. The proposed definition of harassment, which would 
narrow the scope of what incidences of sexual misconduct schools are 
---------------------------------------------------------------------------
required to respond to;

    Answer b. The Department's proposed rules would also require 
schools to dismiss all complaints of sexual harassment that do not meet 
its proposed narrow definition. The proposed rules \17\ define sexual 
harassment as (1) ``[a]n employee of the recipient conditioning the 
provision of an aid, benefit, or service of the recipient on an 
individual's participation in unwelcome sexual conduct''; (2) 
``[u]nwelcome conduct on the basis of sex that is so severe, pervasive, 
and objectively offensive that it effectively denies a person equal 
access to the [school's] education program or activity''; or (3) 
``[s]exual assault, as defined in 34 CFR 668.46(a).'' The proposed 
rules mandate dismissal of all complaints of harassment that do not 
meet this standard. Thus, if a complaint did not allege quid pro quo 
harassment by an employee or sexual assault, a school would be required 
to dismiss a student's Title IX complaint if the harassment has not yet 
advanced to a point that it is actively harming a student's education. 
A school would be required to dismiss such a complaint even if it 
involved harassment by a teacher or other school employee. A school 
would be required to dismiss such a complaint even if the school would 
typically take action to address behavior that was not based on sex but 
was similarly harassing, disruptive, or intimidating. The Department's 
proposed definition is out of line with Title IX purposes and 
precedent, discourages reporting, unjustifiably creates a higher 
standard for sexual harassment than other types of harassment and 
misconduct, and excludes many forms of sexual harassment that interfere 
with equal access to educational opportunities.
---------------------------------------------------------------------------
    \17\  Sec. Sec.  106.30 and 106.45(b)(3).

    Acting arbitrarily, the Department does not provide a compelling or 
persuasive justification to change the definition of sexual harassment 
from that in the 2001 Guidance, which defines sexual harassment as 
``unwelcome conduct of a sexual nature'' \18\ The current definition 
rightly charges schools with responding to harassment before it 
escalates to a point that students suffer severe harm. But under the 
Department's proposed, narrower definition of harassment, students 
would be forced to endure repeated and escalating levels of abuse, from 
a student or professor, before their schools would be permitted to take 
steps to investigate and stop the harassment.
---------------------------------------------------------------------------
    \18\  Id.

    The Department's proposed definition is also vague and complicated. 
Administrators, employees, and students would struggle to understand 
which complaints meet the standard. These difficulties would be 
significantly compounded for students with developmental disabilities. 
Students confronted with this lengthy, complicated definition of sexual 
harassment would have a hard time understanding whether the harassment 
they endured meets the Department's narrow standard. How would these 
students know what allegations and information to put in their formal 
complaint in order to avoid mandatory dismissal? A student may believe 
that she suffered harassment that was both severe and pervasive, but 
does she know whether it was also ``objectively offensive'' and whether 
it ``effectively denied'' her of ``equal access'' to a ``program or 
---------------------------------------------------------------------------
activity?''

    The Department's proposed definition would discourage students from 
reporting sexual harassment. Already, the most commonly cited reason 
for students not reporting sexual harassment is the fear that it is 
``insufficiently severe'' to yield a response. \19\ Moreover, if a 
student is turned away by her school after reporting sexual harassment 
because it does not meet the proposed narrow definition of sexual 
harassment, the student is even more unlikely to report a second time 
when the harassment escalates. Similarly, if a student knows of a 
friend or classmate who was turned away after reporting sexual 
harassment, the student is unlikely to make even a first report. By the 
time a student reports sexual harassment that the school can or must 
respond to, it may already be too late: because of the impact of the 
harassment, the student might already be ineligible for an important 
course for her major, disqualified from applying to a dream graduate 
program, or derailed from graduating altogether.
---------------------------------------------------------------------------
    \19\  Kathryn J. Holland & Lilia M. Cortina, ``It Happens to Girls 
All the Time'': Examining Sexual Assault Survivors' Reasons for Not 
Using Campus Supports'', 59 AM. J. COMMUNITY PSYCHOL. 50, 61 (2017), 
available at https://doi.org/10.1002/ajcp.12126.

    Finally, the Department's harassment definition and mandatory 
dismissal requirement would create inconsistent rules for sexual 
harassment as compared to other misconduct. Harassment based on race or 
disability, for example, would continue to be governed by the more 
inclusive ``severe or pervasive'' standard for creating a hostile 
educational environment. \20\ And schools could address harassment that 
was not sexual in nature even if that harassment was not ``severe and 
pervasive'' while, at the same time, being required to dismiss 
complaints of similar conduct if it is deemed sexual. This would create 
inconsistent and confusing rules for schools in addressing different 
forms of harassment. It would send a message that sexual harassment is 
less deserving of response than other types of harassment and that 
victims of sexual harassment are inherently less deserving of 
assistance than victims of other forms of harassment. It would also 
force students who experience multiple and intersecting forms of 
harassment to slice and dice their requests for help from their schools 
in order to maximize the possibility that the school might respond, 
carefully excluding reference to sexual taunts and only reporting 
racial slurs by a harasser, for example. \21\
---------------------------------------------------------------------------
    \20\  See e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 
101, 116 (2002) (applying ``severe or pervasive'' standard to racial 
discrimination hostile work environment claim).
    \21\  See Joanna L. Grossman & Deborah L. Brake, A Sharp Backward 
Turn: Department of Education Proposes to Protect Schools, Not 
Students, in Cases of Sexual Violence, VERDICT (Nov. 29, 2018), 
available at https://verdict.justia.com/2018/11/29/a-sharp-backward-
turn-department-of-education-proposes-to-protect-schools-not-students-
in-cases-of-sexual-violence.

    Question c.  The geographic location limitations, which would limit 
instances where schools may respond to sexual harassment and assault to 
---------------------------------------------------------------------------
school grounds, activities, and programs;

    Answer c. The Department's proposed rules would also require 
schools to dismiss all complaints of off-campus or online sexual 
harassment that happen outside of a school-sponsored program--even if 
the student is forced to see their harasser at school every day and the 
harassment directly impacts their education as a result. The proposed 
rules conflict with Title IX's statutory language, which does not 
depend on where the underlying conduct occurred but instead prohibits 
discrimination that ``exclude[s a person] from participation in, . . . 
denie[s a person] the benefits of, or . . . subject[s a person] to 
discrimination under any education program or activity . . . .'' \22\ 
For almost two decades, the Department's guidance documents have agreed 
that schools are responsible for addressing sexual harassment if it is 
``sufficiently serious to deny or limit a student's ability to 
participate in or benefit from the education program,'' \23\ regardless 
of where it occurs. \24\ No student who experiences out-of-school 
harassment should be forced to wait until they are sexually harassed 
again on school grounds or during a school activity in order to receive 
help from their school. Nor should they be required to sit in class 
next to their assailant with no recourse.
---------------------------------------------------------------------------
    \22\  20 U.S.C. Sec.  1681(a).
    \23\  U.S. Dep't of Educ., Office for Civil Rights, Revised Sexual 
Harassment Guidance: Harassment of Students by School Employees, Other 
Students, or Third Parties (2001) [hereinafter 2001 Guidance], https://
www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.
    \24\  U.S. Dep't of Educ. Office for Civil Rights, Questions and 
Answers on Campus Sexual Misconduct (Sept. 2017) [hereinafter 2017 
Guidance] at 1 n.3, https://www2.ed.gov/about/offices/list/ocr/docs/qa-
title-ix-201709.pdf (``Schools are responsible for redressing a hostile 
environment that occurs on campus even if it relates to off-campus 
activities''); 2014 Guidance (``a school must process all complaints of 
sexual violence, regardless of where the conduct occurred''); 2011 
Guidance (``Schools may have an obligation to respond to student-on-
student sexual harassment that initially occurred off school grounds, 
outside a school's education program or activity''); U.S. Dep't of 
Educ. Office for Civil Rights, Dear Colleague Letter: Harassment and 
Bullying (Oct. 26, 2010) at 2 [hereinafter 2010 Guidance], https://
ww2ed.gov/about/offices/ list/ocr/letters/colleague-201104.pdf (finding 
Title IX violation where ``conduct is sufficiently severe, pervasive, 
or persistent so as to interfere with or limit a student's ability to 
participate in or benefit from the services, activities, or 
opportunities offered by a school,'' regardless of location of 
harassment).

    Sexual harassment and assault also occur both on-campus and in off-
campus spaces closely associated with school. Nearly nine in ten 
college students live off campus. \25\ According to a 2014 U.S. 
Department of Justice report, 95 percent of sexual assaults of female 
students ages 18-24 occur outside of school. \26\ Forty-one percent of 
college sexual assaults involve off-campus parties \27\ and many 
fraternity and sorority houses are very much a part of the school 
community but physically located off campus. Students are also far more 
likely to experience sexual assault if they are in a sorority (nearly 
one and a half times more likely) or fraternity (nearly three times 
more likely). \28\ But under the proposed rules, if a college or 
graduate student is sexually assaulted by a classmate in off-campus 
housing, their university would be required to dismiss their 
complaint--even though almost nine in ten college students live off 
campus. \29\ The proposed rules would also pose particular risks to 
students at community colleges and vocational schools. Approximately 
5.8 million students attend community college (out of 17.0 million 
total undergraduate students), \30\ and 16 million students attend 
vocational school. \31\ But because very few of these students live on 
campus, the harassment they experience by faculty or other students is 
especially likely to occur outside of school, and therefore outside of 
the protection of the proposed Title IX rules. Finally, proposed Sec.  
106.8(d) would create a unique harm to the 10 percent of U.S. 
undergraduate students who participate in study abroad programs. If any 
of these students report experiencing sexual harassment during their 
time abroad, including within their study abroad program, their schools 
would be required to dismiss their complaints--even if they are forced 
to see their harasser in the study abroad program every day, and even 
if they continue to be put into close contact with their harasser when 
they return to their home campus.
---------------------------------------------------------------------------
    \25\  Rochelle Sharpe, How Much Does Living Off-Campus Cost? Who 
Knows?, N.Y. TIMES (Aug. 5, 2016) [hereinafter How Much Does Living 
Off-Campus Cost?], https://www.nytimes.com/2016/08/07/education/edlife/
how-much-does-living-off-campus-cost-who-knows.html (87 percent).
    \26\  U.S. Dep't of Justice, Bureau of Justice Statistics, Rape and 
Sexual Assault Victimization Among College-Age Females, 1995-2013 at 6 
(Dec. 2014), https://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf.
    \27\  United Educators, Facts From United Educators' Report - 
Confronting Campus Sexual Assault: An Examination of Higher Education 
Claims (2015), https://www.ue.org/sexual--assault--claims--study.
    \28\  Jennifer J. Freyd, The UO Sexual Violence and Institutional 
Betrayal Surveys: 2014, 2015, and 2015-2016 (Oct. 16, 2014), available 
at https://www.uwire.com/2014/10/16/sexual-assault-more-prevalent-in-
fraternities-and-sororities-study-finds (finding that 48.1 percent of 
females and 23.6 percent of males in Fraternity and Sorority Life (FSL) 
have experienced non-consensual sexual contact, compared with 33.1 
percent of females and 7.9 percent of males not in FSL).
    \29\  How Much Does Living Off-Campus Cost?, supra note 26.
    \30\  Statista, Community colleges in the United States - 
Statistics & Facts, https://www.statista.com/topics/3468/community-
colleges-in-the-united-states; National Center for Education 
Statistics, Fast Facts, https://nces.ed.gov/fastfacts/
display.asp?id=372 (about 17.0 million students enrolled in 
undergraduate programs in fall 2018).
    \31\  David A. Tomar, Trade Schools on the Rise, THE BEST SCHOOLS 
(last visited Jan. 20, 2019), https://thebestschools.org/magazine/
trade-schools-rise-ashes-college-degree (an estimated 16 million 
students were enrolled in vocational schools in 2014).

    By forcing schools to dismiss complaints of out-of-school sexual 
harassment, the proposed rules would ``unduly tie the hands of school 
leaders who believe every child deserves a safe and healthy learning 
environment.'' \32\ It would also require schools to single out 
complaints of sexual assault and other forms of harassment by treating 
them differently from other types of student misconduct that occur off-
campus, perpetuating the pernicious notion that sexual assault is 
somehow less significant than other types of misconduct and making 
schools vulnerable to litigation by students claiming unfairness or 
discrimination in their school's policies treating harassment based on 
sex differently from other forms of misconduct.
---------------------------------------------------------------------------
    \32\  Letter from The School Superintendents Ass'n (AASA) to Sec'y 
Elisabeth DeVos at 5 Jan. 22, 2019) [hereinafter AASA Letter], http://
aasa.org/uploadedFiles/AASA--Blog(1)/AASA Title IX Comments Final.pdf

---------------------------------------------------------------------------
    Question d.  The clear and convincing standard requirement; and

    Answer d. The Department's decision to allow schools to impose a 
more burdensome standard in sexual harassment matters than in any other 
investigations of student or employee misconduct appears to rely on the 
stereotype and false assumption that those who report sexual assault 
and other forms of sexual harassment (mostly women) are more likely to 
lie than those who report physical assault, plagiarism, or the wide 
range of other school disciplinary violations and employee misconduct. 
When this unwarranted skepticism of sexual assault and other harassment 
allegations, grounded in gender stereotypes, infects sexual misconduct 
proceedings, even the preponderance standard ``could end up operating 
as a clear-and-convincing or even a beyond-a-reasonable-doubt standard 
in practice.'' \33\ Previous Department guidance recognized that, given 
these pervasive stereotypes, the preponderance standard was required to 
ensure that the playing field, at least on paper, was as even as 
possible. The Department now ignores the reality of these harmful 
stereotypes by imposing a standard of evidence that encourages, rather 
than dispels, the stereotype that women and girls lie about sexual 
assault and other harassment, a result that is contrary to Title IX.
---------------------------------------------------------------------------
    \33\  Michael C. Dorf, Further Questions About the Scope of the 
Dep't of Education's Authority Under Title IX, DORF ON LAW (Dec. 3, 
2018), https://dorfonlaw.org/2018/12/further-questions-about-scope-of-
dept.html#more.

    The preponderance standard is used for nearly all civil rights 
cases. Indeed it's a standard applied in nearly all civil cases, 
including where the conduct at issue could also be the basis for a 
criminal prosecution. \34\ The preponderance standard is also used for 
people facing more severe deprivations than suspension, expulsion or 
other school discipline, or termination of employment or other 
workplace discipline, including in proceedings to determine paternity, 
\35\ competency to stand trial, \36\ enhancement of prison sentences, 
\37\ and civil commitment of defendants acquitted by the insanity 
defense. \38\ The Supreme Court has only required something higher than 
the preponderance standard in a narrow handful of civil cases ``to 
protect particularly important individual interests,'' \39\ where 
consequences far more severe than suspension, expulsion, or firing are 
threatened, such as termination of parental rights, \40\ civil 
commitment for mental illness, \41\ deportation, \42\ denaturalization, 
\43\ and juvenile delinquency with the ``possibility of institutional 
confinement.'' \44\ In all of these cases, incarceration or a permanent 
loss of a profound liberty interest was a possible outcome--unlike in 
school sexual harassment proceedings. Moreover, in all of these cases, 
the government and its vast power and resources was in conflict with an 
individual--in contrast to school harassment investigations involving 
two students with roughly equal resources and equal stakes in their 
education, two employees who are also similarly situated, or a student 
and employee, where any power imbalance would tend to favor the 
employee respondent rather than the student complainant. \45\ 
Preponderance is the only standard of proof that treats both sides 
equally and is consistent with Title IX's requirement that grievance 
procedures be ``equitable.'' \46\
---------------------------------------------------------------------------
    \34\  To take one famous example, O.J. Simpson was found 
responsible for wrongful death in civil court under the preponderance 
standard after he was found not guilty for murder in criminal court 
under the beyond-a-reasonable-doubt standard. See B. Drummond Ayres, 
Jr., Jury Decides Simpson Must Pay $25 Million in Punitive Award, N.Y. 
TIMES (Feb. 11, 1997), https://www.nytimes.com/1997/02/11/us/jury-
decides-simpson-must-pay-25-million-in-punitive-award.html.
    \35\  Rivera v. Minnich, 483 U.S. 574, 581 (1987).
    \36\  Cooper v. Oklahoma, 517 U.S. 348, 368 (1996).
    \37\  McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986).
    \38\  Jones v. United States, 463 U.S. 354, 368 (1983).
    \39\  Addington v. Texas, 441 U.S. 418, 424 (1979) (civil 
commitment).
    \40\  Santosky v. Kramer, 455 U.S. 745, 758 (1982).
    \41\  Addington, 441 U.S. at 432.
    \42\  Woodby v. INS, 385 U.S. 276, 286 (1966).
    \43\  Chaunt v. United States, 364 U.S. 350, 353 (1960); 
Schneiderman v. United States, 320 U.S. 118, 125 (1943).
    \44\  In re Winship, 397 U.S. 358, 367-68 (1970).
    \45\  Despite overwhelming Supreme Court and other case law in 
support of the preponderance standard, the Department cites just two 
state court cases and one federal court district court case to argue 
for the clear and convincing standard. 83 Fed. Reg. at 61477. The 
Department claims that expulsion is similar to loss of a professional 
license and that held that the clear and convincing standard is 
required in cases where a person may lose their professional license 
Id. However, even assuming expulsion is analogous to loss of a 
professional license, which is certainly debatable as it is usually far 
easier to enroll in a new school than to enter a new profession, this 
is a weak argument, as there are numerous state and federal cases that 
have held that the preponderance standard is the correct standard to 
apply when a person is at risk of losing their professional license. 
See, e.g., In re Barach, 540 F.3d 82, 85 (1st Cir. 2008); Granek v. 
Texas State Bd. of Med. Examiners, 172 S.W. 3d 761, 777 (Tex. Ct. App. 
2005). As an example, the Department cites to Nguyen v. Washington 
State Dep't of Health, 144 Wash.2d 516 (Wash. 2001), cert. denied 535 
U.S. 904 (2002) for the contention that courts ``often'' employ a clear 
and convincing evidence standard to civil administrative proceedings. 
In that case, the court required clear and convincing evidence in a 
case where a physician's license was revoked after allegations of 
sexual misconduct. But that case is an anomaly; a study commissioned by 
the U.S. Department of Health and Human Services found that two-thirds 
of the states use the preponderance of the evidence standard in 
physician misconduct cases. See Randall R. Bovbjerg et al., State 
Discipline of Physicians 14-15 (2006), https://aspe.hhs.gov/sites/
default/files/pdf/74616/stdiscp.pdf. See also Kidder, William, 
(En)forcing a Foolish Consistency?: A Critique and Comparative Analysis 
of the Trump administration's Proposed Standard of Evidence Regulation 
for Campus Title IX Proceedings (January 27, 2019), available at http:/
/ssrn.com/abstract=3323982 (providing an in depth comparative analysis 
of the many instances in which the preponderance standard is used 
instead of the clear and convincing evidence standard).
    \46\  The Department's bizarre claim that the preponderance 
standard is the ``lowest possible standard of evidence'' (83 Fed. Reg. 
at 61464) is simply wrong as a matter of law. Courts routinely apply 
lower standard of proof in traffic stops (``reasonable suspicion'') and 
conducting searches (``probable cause''). Terry v. Ohio, 392 U.S. 1 
(1968) (traffic stops); U.S. Const. amend. IV (searches).

    For this reason, Title IX experts and school leaders alike support 
the preponderance standard, which is used to address harassment 
complaints at over 80 percent of colleges. \47\ The National Center for 
Higher Education Risk Management (NCHERM) Group, whose white paper Due 
Process and the Sex Police was cited by the Department, \48\ has 
promulgated materials that require schools to use the preponderance 
standard, because ``[w]e believe higher education can acquit fairness 
without higher standards of proof.'' \49\ And even the Department 
admits it is ``reasonable'' for a school to use the preponderance 
standard. \50\
---------------------------------------------------------------------------
    \47\  Heather M. Karjane, et al., Campus Sexual Assault: How 
America's Institutions of Higher Education Respond 120 (Oct. 2002), 
https://www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf.
    \48\  83 Fed. Reg. at 61464 n.2.
    \49\  The NCHERM Group, Due Process and the Sex Police 2, 17-18 
(Apr. 2017), available at https://www.ncherm.org/wp-content/uploads/
2017/04/TNG-Whitepaper-Final-Electronic-Version.pdf.
    \50\  83 Fed. Reg. at 61477.

    By permitting and sometimes mandating the clear and convincing 
evidence standard in sexual harassment proceedings, the Department 
treats sexual harassment differently from other types of school 
disciplinary violations and employee misconduct, uniquely targeting and 
disfavoring sexual harassment complainants. First, the Department 
argues that school sexual harassment investigations are different from 
civil cases, and therefore may appropriately require a more burdensome 
standard of proof, because many school sexual harassment investigations 
do not use full courtroom procedures, such as active participation by 
lawyers, rules of evidence, and full discovery. \51\ However, the 
Department does not exhibit this concern for the lack of full-blown 
judicial proceedings to address other types of student or employee 
misconduct, including other examples of student or employee misconduct 
implicating the civil rights laws enforced by the Department. Schools 
have not, as a general rule, imposed higher evidentiary standards in 
other misconduct matters, nor have employers more generally in employee 
misconduct matters, to compensate for the proceedings' failure to be 
full-blown judicial trials, and the Department does not explain why 
such a standard is appropriate in this context alone.
---------------------------------------------------------------------------
    \51\  Id.

    Moreover, although the proposed rules would require schools to use 
the ``clear and convincing'' standard for sexual harassment 
investigations if they use it for any other student or employee 
misconduct investigations with the same maximum sanction, \52\ and 
would require that it be used in student harassment investigations if 
it is used in any employee harassment investigations, the proposed 
rules would not prohibit schools from using the clear and convincing 
standard in sexual harassment proceedings even if they use a lower 
proof standard for all other student conduct violations. \53\ School 
leaders agree that requiring different standards for sexual misconduct 
as opposed to other misconduct is inequitable.
---------------------------------------------------------------------------
    \52\  Proposed Sec.  106.45(b)(4)(i).
    \53\  See A Sharp Backward Turn, supra note 83 (``It is a one-way 
ratchet.'').

    Question e. The actual knowledge standard and requirements for 
---------------------------------------------------------------------------
filing formal complaints.

    Answer e. Under the proposed rules, schools would not be required 
to address any sexual harassment and assault unless one of a small 
subset of school employees had ``actual knowledge'' of it. \54\ The 
proposed rules also unjustifiably limit the set of school employees for 
whom actual notice of sexual assault or other forms of harassment 
triggers the school's Title IX duties. For example, under the proposed 
rules, if a college or graduate student told their professor, 
residential advisor, or teaching assistant that they had been raped by 
another student or by a professor or other university employee, the 
university would have no obligation to help the student.
---------------------------------------------------------------------------
    \54\  Proposed Sec. Sec.  106.30, 106.44.

    Under the Department's proposed rules, even when students find the 
courage to talk to the adult school employees they trust, schools would 
frequently have no obligation to respond. For example, if the proposed 
rules had been in place, colleges like Michigan State and Penn State 
would have had no Title IX responsibility to stop Larry Nassar and 
Jerry Sandusky--even though their victims reported their experiences to 
at least 14 school employees over a 20-year period--including athletic 
trainers, coaches, counselors, and therapists \55\--because those 
employees are not considered to be school officials who have the 
``authority to institute corrective measures.'' \56\ These proposed 
provisions would absolve some of the worst Title IX offenders of legal 
liability.
---------------------------------------------------------------------------
    \55\  Julie Mack & Emily Lawler, MSU doctor's alleged victims 
talked for 20 years. Was anyone listening?, MLIVE (Feb. 8, 2017), 
https://www.mlive.com/news/index.ssf/page/msu--doctor--alleged--
sexual--assault.html.
    \56\  Proposed Sec.  106.30.

    The ``formal complaint'' requirement would also compel complainants 
to engage in arcane procedural maneuvers in order to enforce a 
recipient's anti-harassment standards. As a practical matter, moreover, 
many victims, having already suffered through significant trauma during 
a first proceeding, might well be reluctant to go through everything a 
second time.
                             senator rosen
    Question 1. As others have expressed today, I am incredibly 
concerned with the proposed rollbacks of Title IX protections for 
sexual assault survivors and how they would jeopardize student safety, 
particularly students in my home state of Nevada. Among other harmful 
provisions, the Department of Education's proposed rule only allows 
schools to investigate a report of sexual harassment if it occurred 
``within a school's own program or activity.'' At University of Nevada 
Las Vegas (UNLV) - a public university with the highest student 
enrollment rate in my state - only 6 percent of full-time students 
reside on campus. UNLV is a commuter campus, so the majority of 
students experience sexual violence, harassment, or misconduct 
involving fellow students outside the campus or university-sponsored 
program or activity. Likewise, in a 2016 survey of sexual conduct and 
campus safety, 79 percent of University of Nevada Reno students 
reported that ``unwanted sexual conduct affecting students occurs off 
campus''. And this doesn't even account for the many Nevadans who 
attend other commuter campuses like Truckee Meadows Community College, 
Nevada State College, and College of Southern Nevada. Changing the 
rules so schools only have to respond if the incident occurred on 
campus would have a direct negative impact on survivors of sexual 
assault and harassment in Nevada. Just because assault or harassment 
took place off campus, students may be forced to see their harasser on 
campus every day, and their education can be impacted - potentially 
resulting in them dropping out of school altogether.

    Question (a). Given that Title IX itself does not state that 
discriminatory conduct must occur during a school activity for there to 
be a discriminatory environment, how is this proposed change 
appropriate?

    Answer (a). The proposed rules conflict with Title IX's statutory 
language, which does not prohibit discrimination depending on where the 
underlying conduct occurred but instead prohibits discrimination that 
``exclude[s a person] from participation in, . . . denie[s a person] 
the benefits of, or . . . subject[s a person] to discrimination under 
any education program or activity . . . .'' \57\ For almost two 
decades, the Department's guidance documents have agreed that schools 
are responsible for addressing sexual harassment if it is 
``sufficiently serious to deny or limit a student's ability to 
participate in or benefit from the education program,'' \58\ regardless 
of where it occurs. \59\ No student who experiences out-of-school 
harassment from a school employee or another student that impacts their 
education should be forced to wait until they are sexually harassed 
again on school grounds or during a school activity in order to receive 
help from their school. Nor should they be required to sit in class 
next to their assailant with no recourse. Thus, the proposed change 
requiring that the harassment occur within an education program or 
activity in order for a school to conduct an investigation, without 
regard to how the complainant's education is impacted by the 
harassment, is in conflict with Title IX's statutory language.
---------------------------------------------------------------------------
    \57\  20 U.S.C. Sec.  1681(a).
    \58\  2001 Guidance, supra note 23.
    \59\  See supra note 24.

    Question (b). Nevada institutions like UNLV have pledged to 
continue to offer support and resources to survivors of off-campus 
assaults, even if this rule goes into effect. Unfortunately, not all 
schools will do the same. How will these changes affect the rate of 
---------------------------------------------------------------------------
student reporting of sexual misconduct?

    Answer (b). The Department's proposed rules would also require 
schools to dismiss all complaints of off-campus or online sexual 
harassment that happen outside of a school-sponsored program--even if 
the student is forced to see their harasser at school every day and the 
harassment directly impacts their education as a result. The proposed 
rules conflict with Title IX's statutory language, which does not 
depend on where the underlying conduct occurred but instead prohibits 
discrimination that ``exclude[s a person] from participation in, . . . 
denie[s a person] the benefits of, or . . . subject[s a person] to 
discrimination under any education program or activity . . . .'' \60\ 
For almost two decades, the Department's guidance documents have agreed 
that schools are responsible for addressing sexual harassment if it is 
``sufficiently serious to deny or limit a student's ability to 
participate in or benefit from the education program,'' \61\ regardless 
of where it occurs. \62\ No student who experiences out-of-school 
harassment should be forced to wait until they are sexually harassed 
again on school grounds or during a school activity in order to receive 
help from their school. Nor should they be required to sit in class 
next to their assailant with no recourse.
---------------------------------------------------------------------------
    \60\  20 U.S.C. Sec.  1681(a).
    \61\  2001 Guidance, supra note 24.
    \62\  Supra note 25.

    Sexual harassment and assault also occur both on-campus and in off-
campus spaces closely associated with school. Nearly nine in ten 
college students live off campus. \63\ According to a 2014 U.S. 
Department of Justice report, 95 percent of sexual assaults of female 
students ages 18-24 occur outside of school. \64\ Forty-one percent of 
college sexual assaults involve off-campus parties \65\ and many 
fraternity and sorority houses are very much a part of the school 
community but physically located off campus. Students are also far more 
likely to experience sexual assault if they are in a sorority (nearly 
one and a half times more likely) or fraternity (nearly three times 
more likely). \66\ But under the proposed rules, if a college or 
graduate student is sexually assaulted by a classmate in off-campus 
housing, their university would be required to dismiss their 
complaint--even though almost nine in ten college students live off 
campus. \67\ The proposed rules would also pose particular risks to 
students at community colleges and vocational schools. Approximately 
5.8 million students attend community college (out of 17.0 million 
total undergraduate students), \68\ and 16 million students attend 
vocational school. \69\ But because very few of these students live on 
campus, the harassment they experience by faculty or other students is 
especially likely to occur outside of school, and therefore outside of 
the protection of the proposed Title IX rules. Finally, proposed Sec.  
106.8(d) would create a unique harm to the 10 percent of U.S. 
undergraduate students who participate in study abroad programs. If any 
of these students report experiencing sexual harassment during their 
time abroad, including within their study abroad program, their schools 
would be required to dismiss their complaints--even if they are forced 
to see their harasser in the study abroad program every day, and even 
if they continue to be put into close contact with their harasser when 
they return to their home campus.
---------------------------------------------------------------------------
    \63\  How Much Does Living Off-Campus Cost?, supra note 26.
    \64\  Supra note 27.
    \65\  Supra note 28
    \66\  Supra note 29
    \67\  How Much Does Living Off-Campus Cost?, supra note 26.
    \68\  Supra note 31.
    \69\  Supra note 32.

    By forcing schools to dismiss complaints of out-of-school sexual 
harassment, the proposed rules would ``unduly tie the hands of school 
leaders who believe every child deserves a safe and healthy learning 
environment.'' \70\ It would also require schools to single out 
complaints of sexual assault and other forms of harassment by treating 
them differently from other types of student misconduct that occur off-
campus, perpetuating the pernicious notion that sexual assault is 
somehow less significant than other types of misconduct and making 
schools vulnerable to litigation by students claiming unfairness or 
discrimination in their school's policies treating harassment based on 
sex differently from other forms of misconduct.
---------------------------------------------------------------------------
    \70\  AASA Letter, supra note 33.
---------------------------------------------------------------------------
                            senator sanders
    Question 1. As you know, Secretary DeVos rescinded guidance issued 
by the Obama administration that helped schools understand their 
responsibility to address campus sexual assault and ensure student 
safety and rights. Colleges and universities are focused on policies 
and procedures, the Department of Education ensures schools comply with 
federal law and it seems students, faculty and visitors to campus are 
an afterthought. Based on your experience working in the field of 
criminal law, how should the views, perspectives and experiences of 
students and various stakeholders taken into account to ensure that 
everyone feels safer on campus?

    Answer 1. It is critical that the views of students and other 
stakeholders are taken into account in any law, regulation, or policy 
that addresses campus sexual assault. As a longtime civil rights and 
gender justice lawyer, it's a lesson that I have learned again and 
again. And, unfortunately, when making changes to Title IX guidance and 
most recently, proposing changes to its Title IX rules, the Department 
of Education did not do this. In fact, the Department's proposed rules 
are so far out of step with the general public's views on sexual 
harassment, they are decidedly undemocratic. The American public 
overwhelmingly agrees that strong Title IX protections are necessary to 
ensure student survivors' equal access to educational opportunities.

    Recently, we commissioned public opinion research to understand 
voters' policy preferences and attitudes towards issues 
disproportionately affecting women, and the vast majority of those 
polled (88 percent) considered ``preventing sexual harassment and 
assault'' an important issue for Congress to work on, and preventing 
sexual harassment and assault was a top priority among votes of nearly 
every background, including across gender, party, and racial lines. 
\71\ Moreover, public comments submitted to the Department of Education 
during its deregulation comment period in September 2017, indicates 
that the majority of the American people support strong Title IX 
protections, including those in the 2011 Guidance and 2014 Guidance 
that the Department rescinded in September 2017. Last fall, when the 
Department asked the public for input on deregulation (i.e., which 
rules the Department should repeal, replace, or modify), \72\ over 
12,000 people submitted comments about Title IX, with 99 percent of 
them supporting Title IX and 96 percent explicitly urged the Department 
to preserve its 2011 Guidance. \73\ They were joined by more than 
150,000 other people who signed petitions and statements in support of 
the Department's 2011 Guidance and 2014 Guidance. \74\ However, just 
one day after the public comment period closed, the Department 
rescinded both the 2011 Guidance and the 2014 Guidance and issued the 
2017 Guidance, when it could not possibly have finished reading and 
considering all of the comments it had received. \75\ The rescission 
was an anti-democratic move contrary to the APA, which was enacted to 
hold non-elected agency officials like Secretary DeVos accountable to 
constituents by requiring agencies to consider public comments during 
the rulemaking process.
---------------------------------------------------------------------------
    \71\  Perry Undem and GBA Strategies, Voters' Priorities for the 
New Congress (Mar. 14, 2019).
    \72\  U.S. Dep't of Educ., Evaluation of Existing Regulations, 82 
Fed. Reg. at 28431 (June 22, 2017) https://www.regulations.gov/
contentStreamer?documentId=ED-2017-OS-0074-0001&contentType=pdf.
    \73\  Tiffany Buffkin et al., Widely Welcomed and Supported by the 
Public: A Report on the Title IX-Related Comments in the U.S. 
Department of Education's Executive Order 13777 Comment Call, CAL. L. 
REV. ONLINE 2 (Sept. 25, 2018) [last revised Dec. 31, 2018), available 
at https://ssrn.com/abstract=3255205.
    \74\  Id. at 27-28 (48,903 people signed petitions and statements 
supporting Title IX and the 2011 Guidance); Caitlin Emma, Exclusive: 
Education reform groups team up to make bigger mark, POLITICO (Sept. 6, 
2017), https://www.politico.com/tipsheets/morning-education/2017/09/06/
exclusive-education-reform-groups-team-up-to-make-bigger-mark-222139 
(more than 105,000 petitions delivered to Department of Education 
supporting 2011 and 2014 Title IX Guidances).
    \75\  Dep't of Educ., Office for Civil Rights, Dear Colleague 
Letter rescinding 2011 Guidance and 2014 Guidance (Sept.22, 2017), 
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-
201709.pdf.

    The Department's proposed rules ignore the cultural milestones that 
have demonstrated the public's interest in eliminating sexual 
harassment, including sexual assault, from our schools and workplaces. 
In the past sixteen months, the #MeToo hashtag has used more than 19 
million times on Twitter, \76\ the Time's Up Legal Defense Fund raised 
more than $24 million to combat sexual harassment, \77\ and state 
legislators passed more than 100 bills strengthening protections 
against sexual harassment. \78\ In fall 2018, millions of people 
gathered across the country, online, and on the steps of the Supreme 
Court in solidarity with Dr. Christine Blasey Ford, Professor Anita 
Hill, and other survivors who have courageously come forward yet have 
been denied justice. In the face of this overwhelming support for 
survivors of sexual violence and those confronting other forms of 
sexual harassment, the Department's proposed Title IX rules contravene 
the basic notion that the right to be free from sexual harassment and 
violence is a human right and the right to not have one's education 
harmed by sexual harassment is a civil right.
---------------------------------------------------------------------------
    \76\  Monica Anderson & Skye Toor, How social media users have 
discussed sexual harassment since #MeToo went viral, PEW RESEARCH CTR. 
(Oct. 11, 2018)http://www.pewresearch.org/fact-tank/2018/10/11/how-
social-media-users-have-discussed-sexual-harassment-since-metoo-went-
viral.
    \77\  Natalie Robehmed, With $20 Million Raised, Time's Up Seeks 
'Equity And Safety' In The Workplace, FORBES (Feb. 6, 2018), https://
www.forbes.com/sites/natalierobehmed/2018/02/06/with-20-million-raised-
times-up-seeks-equity-and-safety-in-the-workplace/#f1425ca103c5.
    \78\  Andrea Johnson, Maya Raghu & Ramya Sekhran, #MeToo One Year 
Later: Progress In Catalyzing Change to End Workplace Harassment, NAT'L 
WOMEN'S LAW CTR. 1 (Oct. 19, 2018), https://nwlc.org/resources/metoo-
one-year-later-progress-in-catalyzing-change-to-end-workplace-
harassment.

    More than 800 law professors, scholars, and experts in relevant 
fields have signed letters opposing the proposed regulations. \79\ 
Similarly, survivors at Michigan State University, University of 
Southern California, and Ohio State University who were sexually abused 
by Larry Nassar, George Tyndall, and Richard Strauss expressed 
opposition to the Department's proposed rules. \80\ In a letter to 
Secretary DeVos and Assistant Secretary Marcus, more than 80 of these 
survivors shared their concern that ``[t]he proposed changes will make 
schools even less safe for survivors and enable more perpetrators to 
commit sexual assault in schools without consequence.'' \81\ They 
agreed that if these rules are finalized, ``fewer survivors will report 
their assaults and harassment, schools will be more dangerous, and more 
survivors will be denied their legal right to equal access to 
educational opportunities after experiencing sexual assault.'' \82\ 
More than 900 mental health professionals submitted a comment 
condemning the proposed rules, claiming that the rule would ``cause 
increased harm to students who report sexual harassment, including 
sexual assault, . . . [and] discourage students who have been 
victimized from coming forward,'' and that they would also ``reinforce 
the shaming and silencing of victims, which has long prevailed in our 
society, and [] worsen the problem of sex discrimination in 
education.'' \83\
---------------------------------------------------------------------------
    \79\  Letter from 201 Law Professors to the Sec'y Elisabeth DeVos 
and Ass't Sec'y Kenneth L. Marcus (Nov. 8, 2018), http://goo.gl/72Aj1b; 
Letter from 1,185 members of Nat'l Women's Studies Ass'n to Sec'y 
Elisabeth DeVos and Ass't Sec'y Kenneth L. Marcus, (Nov. 11, 2018), 
https://sites.google.com/view/nwsa2018openletter/home.
    \80\  Letter from 89 Survivors of Larry Nassar, George Tyndall, and 
Richard Strauss at Michigan State University, Ohio State University, 
and University of Southern California to Sec'y Elisabeth DeVos and 
Ass't Sec'y Kenneth Marcus (Nov. 1, 2018), at 2, https://
www.documentcloud.org/documents/5026380-November-1-Survivor-Letter-to-
ED.html; Letter from Liberty University to Sec'y Elisabeth DeVos (Jan. 
24, 2019), http://www.liberty.edu/media/1617/2019/jan/Title-IX-Public-
Comments.pdf; Letter from Georgetown University to Sec'y Elizabeth 
DeVos as 7 (Jan. 30. 2019), https://georgetown.app.box.com/s/
fwk978e3oai8i5hpq0wqa70cq9iml2re
    \81\  Id. at 1
    \82\  Id. at 2.
    \83\  Mental Health Professionals Letter, supra note 16.

    Finally, educational institutions have come out strongly in 
opposition to most the changes proposed to the Title IX rules, 
particularly around the changed definition of sexual harassment, 
requirement for live hearings with cross-examination, mandated 
dismissals of most off-campus and online sexual harassment, and 
heightened notice requirements. \84\
---------------------------------------------------------------------------
    \84\  See AAU Letter, supra note 15; AICUM Letter, supra note 14 
(``[s]uch financial costs and administrative burdens may be 
overwhelming''); Pepper Hamilton Comment, supra note 10.

    Question 2. The Clery Act, amended by the Violence Against Women 
Act (VAWA), requires colleges and universities across the United States 
to disclose information about crime on and around their campuses. The 
law applies to most institutions of higher education because it compels 
compliance in order to participate in federal student financial aid 
programs. Again, based on your experience working in the field of 
criminal law, are schools fully complying with the Clery Act? Is the 
---------------------------------------------------------------------------
Department of Education properly enforcing the Clery Act and VAWA?

    Answer 2. While the Clery Act and Title IX both apply to 
institutions of higher education, a number of the Department's proposed 
Title IX rules are inconsistent with the Clery Act, which also 
addresses the obligation of institutions of higher education to respond 
to sexual assault and other behaviors that may constitute sexual 
harassment, including dating violence, domestic violence, and stalking. 
Although I am not a criminal law attorney, I have practiced deeply in 
the area of Title IX and also served on the Department of Education's 
negotiated rulemaking committee for the Clery Act regulations. First, 
the proposed rules prohibiting schools from investigating off-campus 
and online sexual harassment conflict with Clery's notice and reporting 
requirements. The Clery Act requires institutions of higher education 
to notify all students who report sexual assault, stalking, dating 
violence, and domestic violence of their rights, regardless of 
``whether the offense occurred on or off campus.'' \85\ The Clery Act 
also requires institutions of higher education to report all sexual 
assault, stalking, dating violence, and domestic violence that occur on 
``Clery geography,'' which includes all property controlled by a 
school-recognized student organization (such as an off-campus 
fraternity); nearby ``public property''; and ``areas within the patrol 
jurisdiction of the campus police or the campus security department.'' 
\86\ The proposed rules would undermine Clery's mandate and create a 
perverse system in which schools would be required to report instances 
of sexual assault that occur off-campus to the Department under Clery, 
yet would also be required by the Department to dismiss these 
complaints under Title IX instead of investigating them.
---------------------------------------------------------------------------
    \85\  20 U.S.C. Sec.  1092(f)(8)(C).
    \86\  20 U.S.C. Sec.  1092(f)(6)(iii); 20 U.S.C Sec.  
1092(f)(6)(iv)); 34 C.F.R. Sec.  668.46(a)).

    Second, the Department's definition of ``supportive measures'' is 
inconsistent with Clery, which requires institutions of higher 
education to provide ``accommodations'' and ``protective measures'' if 
``reasonably available'' to students who report sexual assault, dating 
violence, domestic violence, and stalking. \87\ The Clery Act does not 
prohibit accommodations or protective measures that are ``punitive,'' 
``disciplinary,'' or ``unreasonably burden[] the other party.'' Third, 
the proposed rules' unequal appeal rights conflict with the preamble to 
the Department's Clery rules stating that institutions of higher 
education are required to provide ``an equal right to appeal if appeals 
are available,'' which would necessarily include the right to appeal a 
sanction. \88\
---------------------------------------------------------------------------
    \87\  20 U.S.C. Sec.  1092(f)(8)(B)(vii); 34 C.F.R. Sec.  
668.46(b)(11)(v).
    \88\  U.S. Dep't of Educ.; Violence Against Women Act; Final Rule, 
79 Fed. Reg. at 62752, 62778 (Oct. 20, 2014) (codified at 36 C.F.R. Pt. 
668), https://www.gpo.gov/fdsys/pkg/FR-2014-10-20/pdf/2014-24284.pdf.
---------------------------------------------------------------------------
    Finally, Clery requires that investigations of sexual assault and 
other sexual harassment be ``prompt, fair, and impartial.'' \89\ But 
the proposed rules' indefinite timeframe for investigations conflicts 
with Clery's mandate that investigations be prompt. And the many 
proposed rules discussed above that tilt investigation procedures in 
favor of the respondent are anything but fair and impartial. Although 
the Department acknowledges that Title IX and the Clery Act's 
``jurisdictional schemes . . . may overlap in certain situations,'' 
\90\ it fails to explain how institutions of higher education should 
resolve the conflicts between two different sets of rules when 
addressing sexual harassment. These different sets of rules would 
likely create widespread confusion for schools.
---------------------------------------------------------------------------
    \89\  20 U.S.C. Sec.  1092(f)(8)(b)(iv)(I)(aa).
    \90\  83 Fed. Reg. at 61468.

    Regarding compliance with the Clery Act, schools routinely fail to 
live up to the Clery requirements that they properly compile and 
publish statistics for specific Clery crimes that occur within Clery 
geography, publish and disseminate annual security reports, meet crime 
awareness requirements, have adequate policy statements, and maintain 
an accurate and complete daily crime log. \91\ And even with these 
compliance challenges, it has still had an overall positive impact on 
schools. \92\ For example, campuses have been giving more timely 
warnings of crimes committed on campus, including through mass 
notification systems, to ensure the safety of the campus community, and 
more resources have been going towards campus public safety, including 
addressing sexual violence on campuses. \93\ And the February 2019 \94\ 
report by the Department of Education detailing how Michigan State 
University violated the Clery Act for years, including the many 
failures to investigate abuses by athletic doctor, Larry Nassar and a 
million dollar fine against the University of Montana in October 2018 
for Clery Act violations are two important examples of the potential of 
Clery enforcement. \95\ Unfortunately there are reports that the Trump 
administration also has taken steps to undermine Clery enforcement, 
providing form letter responses to Clery complaints with few details on 
what the school did or how the Department would bring them into 
compliance. \96\ I encourage the Committee to continue to examine the 
Department's Clery enforcement.
---------------------------------------------------------------------------
    \91\  Clery Center, National Campus Safety Awareness Month 2017, 
Department of Education Clery Act Program Reviews: Common Themes, 
available at http://ncsam.clerycenter.org/wp-content/uploads/2016/08/
DE-Program-Reviews-Common-Themes.pdf.
    \92\  S. Daniel Carter, Clery Act Has Prompted Positive Change in 
Campus Public Safety, CAMPUS SAFETY MAGAZINE (Sept. 6, 2017), available 
at https://www.campussafetymagazine.com/university/clery-act-has-
prompted-positive-changes-in-campus-public-safety/.
    \93\  Id.
    \94\  James Paterson, Report: Michigan State violated Clery Act 
over Nassar, other crime reporting, EDUCATION DIVE (Feb. 4, 2019), 
available at https://www.educationdive.com/news/report-michigan-state-
violated-clery-act-over-nassar-other-crime-reportin/547486/.
    \95\  James Paterson, University of Montana assessed $1M Clery Act 
fine, EDUCATION DIVE (Oct. 4, 2018), available at https://
www.educationdive.com/news/university-of-montana-assessed-1m-clery-act-
fine/538861/.
    \96\  Benjamin Wermund, A new tack on Clery complaints for the 
Trump administration? POLITICO MORNING EDITION (Sept. 15, 2017), 
available at https://www.politico.com/tipsheets/morning-education/2017/
09/15/a-new-tack-on-clery-complaints-for-the-trump-administration-
222304.

    Question 3. Colleges and universities seem to be struggling with 
the repeal of the Obama Title IX rules since they provided much needed 
guidance for institutions experiencing rising cases of sexual assault 
and harassment. While Secretary DeVos has proposed new guidelines, they 
are not in effect and have drawn criticism for favoring the rights of 
the accused over those of the survivor and for not actually preventing 
or addressing campus sexual assault. In the meantime, how can colleges 
and universities strengthen their campus disciplinary process to ensure 
that all students are safer on and near campus, especially if students 
feel discouraged from coming forward about sexual assaults and other 
---------------------------------------------------------------------------
acts of violence?

    Answer 3. Since the Clery Act and Title IX already require that 
schools adopt and enforce procedures to address sexual assault that are 
prompt, equitable, and impartial, reauthorization of the Higher 
Education Act should support and reaffirm the principles and 
requirements of both Clery and Title IX, including ensuring that 
schools address sexual harassment before it causes greater harm to a 
student's education and create equitable processes that preserve and 
restore access to education for those who experience sexual harassment, 
including survivors of sexual violence.

    As described in further detail in my written testimony and to 
responses to questions above, here are steps that schools should take 
to preserve and restore access to education for students who are sexual 
assaulted:

        1. Schools must take effective and immediate action when 
        responding to sexual assault and other form of harassment that 
        school employees know about or reasonably should know about.

        2. Complainants must be afforded non-punitive interim measures 
        to preserve and restore access to educational programs.

        3. Investigations must be equitable and not create barriers to 
        participation.

        4. Schools should not use live cross-examination as it would 
        deter reporting of campus sexual assault and is unnecessary for 
        reliable school discipline determinations.

        5. Campuses must now allow for mediation for resolving 
        complaints of sexual assault.

        6. Campuses must not consider irrelevant or prejudicial 
        evidence in investigations.

        7. Campuses must provide remedies to preserve or restore access 
        to education.

        8. Campuses must have equitable appeal rights.

        9. Campuses must prohibit retaliation against parties and 
        witnesses.

    Question 4. What changes to Secretary DeVos' proposed Title IX 
guidance would you recommend to ensure that the administration does not 
create a campus sexual assault disciplinary process that favors 
wealthier students and their families who can afford attorneys and 
consultants to guide them through the labyrinth of filing a formal 
complaint with the ``appropriate person,'' notification requirements, 
live cross examinations, and extensive knowledge of criminal procedure?

    Answer 4. We would recommend that the Department of Education not 
proceed with the proposed rules. Currently, the Department's 2001 
Guidance, which went through public notice-and-comment and has been 
enforced in both Democratic and Republican administrations, \97\ has 
been relied on by educational institutions to understand and fulfill 
their Title IX obligations for many years. This guidance rightly 
charges schools with responding to harassment before it escalates to a 
point that students suffer severe harm and it does not pose the same 
issues as in the current proposed Title IX rules that would create 
severe inequities between students based on wealth and access to 
resources, like counsel, to guide them through the grievance process. 
The 2001 Guidance requires schools to address student-on-student 
harassment if any employee ``knew, or in the exercise of reasonable 
care should have known'' about the harassment. In the context of 
employee-on-student harassment, the 2001 Guidance requires schools to 
address harassment ``whether or not the [school] has `notice' of the 
harassment.'' \98\ Under the 2001 Guidance, the Department would 
consider schools that failed to ``take immediate and effective 
corrective action'' to be in violation of Title IX. \99\ For years, 
these standards have appropriately guided colleges in understanding 
their obligations around responding to campus sexual assault. However, 
under the proposed rules, students would be required to file a formal 
complaint to initiate an investigation by their school, and students 
who are unable to afford an attorney to assist them with filing a 
formal complaint that meets the requirements in the proposed rules 
would be at a disadvantage.
---------------------------------------------------------------------------
    \97\  These standards have been reaffirmed time and time again, in 
2006 by the Bush Administration, in 2010, 2011, and 2014 in guidance 
documents issued by the Obama administration, and even in the 2017 
guidance document issued by the current Administration. U.S. Dep't of 
Educ. Office for Civil Rights, Dear Colleague Letter: Sexual Harassment 
(Jan. 25, 2006) [hereinafter 2006 Guidance], https://www2.ed.gov/about/
offices/list/ocr/letters/sexhar-2006.html; 2010 Guidance, supra note 
24; U.S. Dep't of Educ. Office of Civil Rights, Dear Colleague Letter: 
Sexual Violence at 4, 6, 9, &16 (Apr. 4, 2011) [hereinafter 2011 
Guidance], https://ww2ed.gov/about/offices/list/ocr/letters/colleague-
201104.pdf; U.S. Dep't of Educ. Office for Civil Rights, Questions and 
Answers on Title IX and Sexual Violence 1-2 (Apr. 29, 2014) 
[hereinafter 2014 Guidance], https://www2.ed.gov/about/offices/list/
ocr/docs/qa-201404-title-ix.pdf; 2017 Guidance, supra note 24.
    \98\  Id.
    \99\  Id.

    Moreover, as also indicated by your question, the live cross-
examination requirement would lead to sharp inequities, due especially 
to the ``huge asymmetry'' that would arise when respondents are able to 
afford attorneys and complainants cannot. \100\ According to the 
president of Association of Title IX Administrators (ATIXA), the live 
cross-examination provision alone--``even with accommodations like 
questioning from a separate room--would lead to a 50 percent drop in 
the reporting of misconduct.'' \101\ These attorneys are often defense 
counsel ready to grill a survivor about the traumatic details of an 
assault.
---------------------------------------------------------------------------
    \100\  Andrew Kreighbaum, New Uncertainty on Title IX, INSIDE 
HIGHER EDUCATION (Nov. 20, 2018), https://www.insidehighered.com/news/
2018/11/20/title-ix-rules-cross-examination-would-make-colleges-act-
courts-lawyers-say.
    \101\  Id.
---------------------------------------------------------------------------
   Response by Jeannie Suk Gersen to Questions of Senator Alexander, 
           Senator Warren, Senator Rosen, and Senator Sanders
                           senator alexander
    Question 1.  Are there rules or guidelines institutions should 
adopt to govern the live questioning of witnesses or parties in campus 
disciplinary proceedings? If so, do you have specific suggestions on 
what rules or guidelines institutions should adopt?

    Answer 1. Live questioning of witnesses and parties at a hearing is 
essential to a fair process of adjudication for campus discipline. But 
schools must guard against enabling hurtful personal confrontation in 
that context, especially where students are being questioned and may 
suffer harm to their access to education. Schools are usually not 
equipped with expertise and resources to properly implement a 
beneficial courtroom-style cross-examination wherein trained judges and 
rules of evidence can keep proceedings under control. Schools should 
therefore not be required to implement cross-examination in their 
hearings, but they should be required to allow live questioning.

    Schools should seek a balance in which live questioning can occur 
without the harms that may result from unchecked grilling of students 
by opposing parties. Schools should adopt rules that provide for a 
party to submit questions for witnesses and for the other party to the 
presiding adjudicator. This avoids direct personal confrontation, and 
avoids allowing lawyers for either party to engage in unfiltered 
questioning of the opposing party. The rules should provide that the 
adjudicator must proceed to ask all the questions submitted by each 
party, unless the questions are irrelevant, excluded by a rule of 
evidence clearly adopted in advance, harassing, or duplicative. The 
adjudicator should be required state on the record a specific, clear, 
rule-based reason for refusing to ask any of the questions submitted. 
It is crucial that a general trauma-based concept, such as a need to 
``avoid retraumatizing'' a party, not be an allowable ground for the 
adjudicator's refusal to ask a submitted question, because that concept 
makes a blanket assumption that the party is traumatized, which is 
circular in a proceeding that sets out to determine whether someone has 
been harmed. It is effectively assuming the respondent's responsibility 
for harm and therefore inconsistent with a presumption of innocence.

    The rules should also instruct the adjudicator that a party's 
refusal to answer questions should not automatically result in having 
the party's statements disregarded. Parties may have good reasons for 
not answering certain questions, and respondents in particular may be 
instructed by counsel not to answer questions in order to preserve 
criminal trial rights. Adjudicators should, however, be allowed to draw 
a negative inference from refusals to answer questions when that 
inference appears equitable under the circumstances.

    It is also extremely important that in a live questioning 
procedure, the parties be allowed to bring an advisor who is ``on their 
side.'' If a party does not have an advisor, the school should provide 
one.

    Schools should provide the option of videoconferencing as an 
available alternative to having the parties in the same room for the 
live questioning.

    If a school permits traditional cross-examination, it should not 
allow parties to question each other personally. The questioning should 
be done by attorneys with knowledge of rules of evidence that limit 
cross-examination to questions of relevance, under the supervision of a 
presiding adjudicator who has expertise to act as would a judge 
enforcing those rules in court.

    Question 2. Do you have any specific suggestions on what guidelines 
or parameters, if any, should be used when informal resolution methods, 
such as mediation or restorative justice, are selected as a way to 
resolve sexual misconduct allegations, including sexual assaults?

    Answer 2. Schools should provide mediation or restorative justice 
as possible alternatives to adjudication of a complaint, in cases where 
both parties consent and indicate that it is their preferred route. 
Parties should not be pressured to opt out of formal adjudication. 
Parties should be accompanied by their advisors to any meetings with 
the other party, and videoconferencing should be made available as an 
alternative to face to face meetings.

    For mediation, the school should provide a trained neutral mediator 
to facilitate the process toward a mutually agreed-upon resolution of 
the matter.

    For restorative justice, the school should make clear that the 
respondent's acceptance of responsibility is a precondition of entering 
a restorative justice process, and that the goal of the process is to 
arrive at a consensus on how the respondent can repair the harm. Each 
of the parties should be permitted to select several members of the 
community to attend the restorative justice session, which should be 
guided by a trained facilitator.

    The school should provide guidelines indicating a range of 
acceptable resolutions that can arise out of mediation or restorative 
justice, such as acknowledgment, apology, changing dormitories and 
classes, and voluntary leave-taking. If the parties are unable to reach 
a resolution that is mutually satisfactory, then the complainant should 
still be permitted to pursue the complaint under the school's formal 
adjudication process. But the parties should not be allowed to use 
statements made as part of the mediation or restorative justice process 
as evidence in a later formal adjudication of the complaint.

    Regardless of the availability of mediation or restorative justice, 
only the school should be empowered to impose discipline, such as 
probation, suspension, expulsion, or transcript marks. The school 
should also retain discretion to reject resolution via informal methods 
in a rare case where it determines that it is necessary to pursue a 
formal complaint to vindicate the school's interest in protecting the 
community from danger.

    Question 3. Should institutions be able to implement a statute of 
limitations to report an allegation of sexual misconduct, including 
sexual assault?

    Answer 3. Yes. Schools should adopt a reasonable statute of 
limitations for reporting sexual misconduct including sexual assault. 
The fairness concerns that inform civil and criminal statutes of 
limitations strongly apply to school-based adjudication processes. It 
is important to the legitimacy and fairness of school-based 
adjudications of complaints that they be based on memories and evidence 
that have not deteriorated with time. It is also deeply unfair and 
harmful to the parties undertake any adjudication in which evidence in 
support of complaints or defenses that may have once been available is 
no longer available because of a long passage of time.
                             senator warren
    Question 1. According to data from the U.S. Department of Justice, 
only one in five women who are sexually assaulted on campus will 
actually report the attack to the police. \1\ What should Congress do 
to encourage students to report incidences of harassment and assault?
---------------------------------------------------------------------------
    \1\  U.S. Department of Justice, Office of Justice Programs, Bureau 
of Justice Statistics. (2014). Rape and Sexual Victimization Among 
College-Aged Females, 1995-2013. https://www.bjs.gov/content/pub/pdf/
rsavcaf9513.pdf.

    Answer 1. One of the many important reasons for the low rate of 
reporting to police of sexual assault on campus may be that definitions 
of ``sexual assault'' on campus include much conduct that may not be 
criminal. A divergence between criminal standards and campus standards 
of conduct is of course to be expected, because unlike criminal law, 
the purpose of campus sexual misconduct discipline is to address the 
discriminatory impact of the behavior on access to education. But 
campus definitions may also deter reporting because they are unclear or 
too expansive for students to take seriously. To help bring rates of 
campus reporting of sexual assault closer to the actual incidence of 
conduct that has a concrete discriminatory impact on education and is 
worthy of discipline, Congress should help give better focus to 
definitions of sexual assault for campus discipline purposes. Providing 
a clear, non-ambiguous, and appropriate definition of sexual assault 
that is not overinclusive or underinclusive would do a tremendous 
amount to encourage reporting in which we can feel more confident. To 
---------------------------------------------------------------------------
that end, I would propose the following definition of sexual assault:

    Sexual assault is the penetration or touching of another's 
genitalia, buttocks, anus, breasts, or mouth without consent.

    A person acts without consent when, in the context of all the 
circumstances, the person should reasonably be aware of a substantial 
risk that the other person is not voluntary and willingly engaging in 
the conduct at the time of the conduct.

    Question 2. From your perspective, how would each of the following 
aspects of the Department of Education's proposed rule, 
``Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance,'' affect a 
complainant's likelihood of reporting harassment or assault?

    Question (a). The live cross examination requirement;

    Answer 2. I believe the concern about the potential effect of live 
cross-examination on reporting is overblown and misguided. After all, 
cross-examination would be available to both parties, and each party 
has much to gain in being able to subjecting the other party to cross-
examination. In the criminal and civil justice systems, complainants 
and plaintiffs know that if they report, they may be subject to cross-
examination if the case goes to trial. The fact that this knowledge and 
the desire to avoid being cross-examined may deter reporting in the 
legal system does not and should not lead us to deny the value of 
cross-examination in court proceedings.

    Answer (a). However, as I indicated in my answer to Senator 
Alexander's Question # 1, above, I do not believe traditional cross 
examination of parties is essential to fairness in a school-based 
proceeding, which is not a court. That is not because of the effect on 
reporting, but rather because the potential for parties and their 
advisors to engage in hurtful confrontation is great where, unlike in a 
court, there are no experienced judges and lawyers to enforce and 
comport with rules of evidence and to control such behavior. A live 
hearing with the opportunity for parties to ask questions of witnesses 
and parties is essential to fairness and can be accomplished without 
traditional cross-examination. Perhaps that, too, would depress 
reporting, but so too may other requirements of due process or even the 
very prospect of an investigation or adjudication at all. The effect on 
reporting cannot be a proper determinant of the rules we adopt for the 
sake of adjudication that is fair to both parties.

    Question (b). The proposed definition of harassment, which would 
narrow the scope of what incidences of sexual misconduct schools are 
required to respond to;

    Answer (b). The Proposed Rule's definition of hostile-environment 
sexual harassment is unwelcome sexual conduct that is ``so severe, 
pervasive, and objectively offensive that it effectively denies a 
person equal access to the recipient's education program or activity.'' 
The ``and'' in this definition narrows the definition of misconduct to 
which schools are required to respond to such a degree they could not 
meaningfully protect equal access to educational opportunity. The 
proposed definition is inappropriately underinclusive. The ``and'' 
should be replaced with an ``or.''

    However, it is also important to avoid expanding the definition of 
sexual harassment so that it becomes inappropriately overinclusive. A 
definition based in the one that the Supreme Court provided in Meritor 
Savings Bank v. Vinson strikes a balance that is neither too 
underinclusive nor overinclusive. Schools should define sexual 
harassment as unwelcome sexual conduct that is sufficiently severe or 
pervasive as to deny or unreasonably limit a person's equal access to 
educational opportunity.

    The definitions of sexual misconduct that a school adopts will 
directly affect which incidents lead to complainants' reports. But the 
goal should not be merely increasing the number of reports full stop; 
the goal should be getting the misconduct definitions right so that the 
reports that are made are ones that comport with fairness and that 
allow enforcement is legitimate.

    Question (c). The geographic location limitations, which would 
limit instances where schools may respond to sexual harassment and 
assault to school grounds, activities, and programs;

    Answer (c). Limiting a school's response to incidents that occur 
only on school grounds or in its activities and programs would fail to 
include incidents that occur off-campus. Given that many students live 
and interact off-campus, and attend social events off-campus, sexual 
misconduct that occurs in those locations would not be subject the 
school's disciplinary authority. The negative impact on reporting of 
those incidents is clear. Students who experience sexual misconduct by 
another member of the school community in an off-campus location could 
of course still report criminal incidents to the police. But they would 
unjustifiably be deprived of a key means of addressing a discriminatory 
situation that may have a severe impact on equal access to education.

    Question (d). The clear and convincing standard requirement; and

    Answer (d). The Department of Education proposes to allow schools 
to use either the preponderance of the evidence standard or the clear 
and convincing evidence standard. It does not propose to require the 
use of clear and convincing evidence. I agree that either standard is 
consistent with Title IX and that it is permissible for the Department 
to leave the choice of standard to schools.

    But importantly, if a school chooses one standard for sexual 
misconduct, it should adopt the same standard for non-sexual misconduct 
such as racial harassment. The Proposed Rule would unfortunately allow 
schools to use the higher standard for sexual cases while using the 
lower one for non-sexual ones. That would be discriminatory, and the 
Rule should instead require symmetry and equalization of the standards 
for sexual and non-sexual misconduct.

    Question (e). The actual knowledge standard and requirements for 
filing formal complaints.

    Answer (e). The Department of Education proposes that schools be 
held responsible for violating Title IX only if they knew of sexual 
misconduct allegations and were deliberately indifferent to them. This 
is far too permissive a standard, and it would hold schools responsible 
only for egregious institutional conduct. Such a low expectation 
undermines the Title IX's goal of holding schools responsible for 
adhering to the prohibition of sex discrimination. The proper solution 
is instead to hold schools to have violated Title IX when they have 
responded unreasonably - that is when they knew or should have known of 
sexual misconduct and failed to respond.

    Question 3. You, along with Professors Nancy Gertner and Janet E. 
Halley, submitted a 22-page comment letter to the Department of 
Education regarding its proposed Title IX rule. As part of your legal 
analysis, you denounced some parts of the rule that limited a school's 
responsibility to address and respond to incidences of sexual 
harassment and assault. For example, the Department of Education's 
proposed rule limits a school's Title IX responsibilities only to 
conduct committed on a school's campus or at a school-sponsored program 
or activity. Based on your legal scholarship and research, how does 
this narrowing of the scope of a school's responsibility undermine 
Title IX's goal of ensuring equal access to education regardless of 
sex? How would you suggest this part of the rule be changed?

    Answer 3. Limiting a school's Title IX responsibilities to conduct 
committed on a school's campus or at a school-sponsored program or 
activity unjustifiably narrows the scope of a school's responsibilities 
and undermines Title IX's goal of ensuring equal access to education. 
Many students live and socialize off-campus, and some incidents of 
sexual misconduct occur off-campus. The geographic location of an 
incident is not important to determining whether an incident has a 
discriminatory impact on educational access. What is important is 
whether the parties share the common environment of a school's program 
and activities. Because the goal of Title IX is ensuring equal access 
to education, the impact on the educational experience of an individual 
due to another's discriminatory conduct, regardless of where that 
conduct occurred, should be focus of the inquiry. It should not matter 
whether the discriminatory conduct occurred on campus, off campus, or 
hundreds of miles away. The Education Department should change its 
proposal to provide that a school must provide Title IX remedies when a 
complainant's educational opportunity is concretely impaired by conduct 
in the school's educational programs and activities, or by the conduct 
of the school's students, staff, or faculty.

    Question 4. Under the Department of Education's proposal, schools 
would only be required to respond to instances of sexual harassment or 
assault of which they have ``actual knowledge.'' This means that 
schools would only be responsible for students who report to a Title IX 
Coordinator or other official with certain authority. To put a finer 
point on it, if a student reported harassment to anyone else, like a 
professor, advisor, or even a coach--as was true in the cases of 
gymnasts at MSU who reported Dr. Larry Nassar--the school would not 
have responsibility for addressing this sexual assault. In your 
opinion, does the ``actual knowledge'' standard adequately hold schools 
responsible for upholding Title IX?

    Answer 4. The proposal of an ``actual knowledge'' standard attempts 
to limit schools' responsibility for responding to incidents of which 
school authorities are ignorant and could not address even if they 
wanted to. The ``actual knowledge'' standard overshoots the mark, 
however, and does not adequately hold schools responsible for ensuring 
equal access to education as required by Title IX. It would be most 
consistent with school's Title IX obligations to make them responsible 
for responding reasonably to incidents when they'' know or should have 
known'' of the sexual misconduct. In order to lesson ambiguity about 
the circumstances in which a school ``should have known'' of sexual 
misconduct, schools should make clear designations in advance of which 
school employees are required to report instances of sexual misconduct 
of which they become aware to the school's Title IX Office. But it is 
also important that not every instance in which a student confides in 
any school employee be one that automatically leads to the imposition 
of responsibility on the school itself. Many students value the ability 
to speak confidentially with a trusted teacher or mentor with the 
knowledge that those trusted adults will not be obligated take the 
decision to report an incident out of the students' hands. Students may 
seek out such confidential discussions with teachers or mentors 
precisely to seek help in deciding whether they wish to report an 
incident. While the proper standard for school's responsibility is 
``knew or should have known,'' it is important that the mere fact that 
a student confided in a professor about an incident not automatically 
mean that the school knew or should have known of the incident.

    Please see also my answer to Senator Warren's Question number 2e.

    Question 5. In a piece for The New Yorker, you wrote, ``[w]hile 
it's essential for each party to be allowed to put questions to the 
other party, adversarial cross-examination is perhaps not the best way 
to do so in the context of a school's disciplinary process, which is 
not a court.'' \2\ Please explain the drawbacks to requiring live 
cross-examinations. What are other potential methods schools can use to 
obtain relevant information regarding an instance of sexual harassment 
or assault?
---------------------------------------------------------------------------
    \2\  Jeannie Suk Gersen, ``Assessing Betsy DeVos's Proposed Rules 
On Title IX and Sexual Assault,'' The New Yorker (February 1, 2019), 
https://www.newyorker.com/news/our-columnists/assessing-betsy-devos-
proposed-rules-on-title-ix-and-sexual-assault.

    Answer 5. Please see my answer to Senator Alexander's Question 
number 1, above.
                             senator rosen
    Question 1. As others have expressed today, I am incredibly 
concerned with the proposed rollbacks of Title IX protections for 
sexual assault survivors and how they would jeopardize student safety, 
particularly students in my home state of Nevada. Among other harmful 
provisions, the Department of Education's proposed rule only allows 
schools to investigate a report of sexual harassment if it occurred 
``within a school's own program or activity.'' At University of Nevada 
Las Vegas (UNLV) - a public university with the highest student 
enrollment rate in my state - only 6 percent of full-time students 
reside on campus. UNLV is a commuter campus, so the majority of 
students experience sexual violence, harassment, or misconduct 
involving fellow students outside the campus or university-sponsored 
program or activity. Likewise, in a 2016 survey of sexual conduct and 
campus safety, 79 percent of University of Nevada Reno students 
reported that ``unwanted sexual conduct affecting students occurs off 
campus''. And this doesn't even account for the many Nevadans who 
attend other commuter campuses like Truckee Meadows Community College, 
Nevada State College, and College of Southern Nevada. Changing the 
rules so schools only have to respond if the incident occurred on 
campus would have a direct negative impact on survivors of sexual 
assault and harassment in Nevada. Just because assault or harassment 
took place off campus, students may be forced to see their harasser on 
campus every day, and their education can be impacted - potentially 
resulting in them dropping out of school altogether.

    Question (a). Given that Title IX itself does not state that 
discriminatory conduct must occur during a school activity for there to 
be a discriminatory environment, how is this proposed change 
appropriate?

    Answer 1. Title IX prohibits the denial of ``the benefits of . . . 
any education program or activity receiving Federal financial 
assistance,'' on the basis of sex. It does not state whether 
discriminatory conduct must occur during a school activity, or can 
occur outside of a school activity. However, given Title IX's goal to 
ensure equal access to educational opportunity, it is most reasonable 
to interpret the statute to require schools to address discriminatory 
conduct by its students, faculty, and staff that occur both on and off 
campus, of the conduct has a discriminatory impact on campus. Denial of 
the benefits of a school's program or activity may occur because of 
discriminatory conduct outside of the school's program or activity.

    Answer (a). Please also see my answer to Senator Warren's Question 
number 3.

    Question (b). Nevada institutions like UNLV have pledged to 
continue to offer support and resources to survivors of off-campus 
assaults, even if this rule goes into effect. Unfortunately, not all 
schools will do the same. How will these changes affect the rate of 
student reporting of sexual misconduct?

    Answer (b). Please see my answer to Senator Warren's Question 
number 2c.
                            senator sanders
    Question 1. As you know, Secretary DeVos rescinded guidance issued 
by the Obama administration that helped schools understand their 
responsibility to address campus sexual assault and ensure student 
safety and rights. Colleges and universities are focused on policies 
and procedures, the Department of Education ensures schools comply with 
federal law and it seems students, faculty and visitors to campus are 
an afterthought. Based on your experience working in the field of 
criminal law, how should the views, perspectives and experiences of 
students and various stakeholders taken into account to ensure that 
everyone feels safer on campus?

    Answer 1. Regular campus climate surveys give students, faculty, 
and employees of colleges and universities the opportunity make their 
experiences with sexual misconduct known to the institution. Accurate 
statistics are important to increasing knowledge about campus sexual 
assault. In addition to the function of gathering knowledge, the fact 
that a school conducts a climate survey and is interested in wide 
participation in the survey communicates to stakeholders that the 
school is serious about learning of the scope of the problem and 
working to address it.

    In this context, despite the temptation to use climate surveys as 
vehicles to communicate a certain message, it is also extremely 
important that climate surveys, to the extent possible, take care not 
to construct or distort the perception and understanding of the risk 
being measured. Climate surveys that are intended to truly measure the 
incidence of sexual misconduct should use clear and descriptive terms 
that make clear exactly what behavior is being asked about. Lack of 
clarity, lumping of many different kinds and degrees of behavior into 
large categories, and conflation, without definition, of various terms 
such as ``sexual assault,'' ``sexual violence,'' ``violation,'' 
``nonconsensual,'' ``unwanted,'' ``unwelcome,'' and many others, make 
it difficult for surveys to produce knowledge on which we can 
confidently rely. Inflation or deflation of the scope and prevalence of 
campus sexual assault is not helpful to ensuring campus safety.

    Question 2. The Clery Act, amended by the Violence Against Women 
Act (VAWA), requires colleges and universities across the United States 
to disclose information about crime on and around their campuses. The 
law applies to most institutions of higher education because it compels 
compliance in order to participate in federal student financial aid 
programs. Again, based on your experience working in the field of 
criminal law, are schools fully complying with the Clery Act? Is the 
Department of Education properly enforcing the Clery Act and VAWA?

    Answer 2. In my experience, schools are complying with the Clery 
Act. In some instances, schools are overcomplying, by sending out 
immediate campus-wide notices disclosing alleged sexual misconduct 
incidents on campus as they occur, which is unhelpful to the goal, 
mentioned in Question # 1, of ``making everyone feel safer on campus.''

    I am not currently in a position to know whether the Department of 
Education is ``properly enforcing the Clery Act and VAWA.''

    Question 3. Colleges and universities seem to be struggling with 
the repeal of the Obama Title IX rules since they provided much needed 
guidance for institutions experiencing rising cases of sexual assault 
and harassment. While Secretary DeVos has proposed new guidelines, they 
are not in effect and have drawn criticism for favoring the rights of 
the accused over those of the survivor and for not actually preventing 
or addressing campus sexual assault. In the meantime, how can colleges 
and universities strengthen their campus disciplinary process to ensure 
that all students are safer on and near campus, especially if students 
feel discouraged from coming forward about sexual assaults and other 
acts of violence?

    Answer 3. I am troubled by the notion that ensuring due process for 
the accused means discouraging students from coming forward about 
sexual assault. I reject that false choice. It is important to 
understand that fairness for all parties is compatible with rigorous 
and legitimate measures to address sexual assault. The Obama Title IX 
guidance unfortunately did not lead schools to that understanding, as 
many of them responded to the guidance by treating the accused unfairly 
in their efforts to take sexual violence seriously.

    I disagree with many aspects of Secretary DeVos's Proposed Rule, 
but I also agree with many other aspects of it. It is important that 
the Proposed Rule not simply be rejected out of hand but rather that we 
do the hard work of evaluating its merits and demerits. \3\ See also my 
answer to Question number 4, below.
---------------------------------------------------------------------------
    \3\  See, e.g., Jeannie Suk Gersen, ``Assessing Betsy DeVos's 
Proposed Rules On Title IX and Sexual Assault,'' The New Yorker 
(February 1, 2019), https://www.newyorker.com/news/our-columnists/
assessing-betsy-devos-proposed-rules-on-title-ix-and-sexual-assault; 
Jeannie Suk Gersen, Nancy Gertner & Janet Halley, Comment on Proposed 
Title IX Rulemaking, Submitted Jan. 30, 2019, https://perma.cc/3F9K--
PZSB.

    Question 4. What changes to Secretary DeVos' proposed Title IX 
guidance would you recommend to ensure that the administration does not 
create a campus sexual assault disciplinary process that favors 
wealthier students and their families who can afford attorneys and 
consultants to guide them through the labyrinth of filing a formal 
complaint with the ``appropriate person,'' notification requirements, 
---------------------------------------------------------------------------
live cross examinations, and extensive knowledge of criminal procedure?

    Answer 4. A commitment to basic fairness in a context as serious as 
ensuring equal access to education may mean that some procedural 
measures, of this question seems to express disapproval, are in fact 
essential. I disagree with the assumption embedded in this question 
that measures intended to ensure fairness of process have the effect of 
favoring wealthier students. Indeed, procedural due process is 
particularly important for protecting the educational opportunity of 
poor students of color who may be disproportionately represented in 
campus sexual misconduct cases.

    I embrace the requirements in Secretary DeVos's Proposed Rule that 
schools provide advisors for parties who cannot afford one, avoid 
favoring or disfavoring either party, employ a presumption of 
innocence, explain the allegations to both parties, give both parties 
access to the evidence, afford a live hearing before the decisionmaker, 
bear the burdens of proof and of production rather than putting them on 
either party, and provide written reports explaining decisions and 
reasoning. I also agree with the Proposed Rule's provision allowing 
schools to use informal dispute resolution methods when both parties 
consent.

    Changes that I would recommend to the Proposed Rule are as follows:

        Live Questions. The Proposed Rule requires that schools allow 
        cross-examination at a live hearing. A live hearing is 
        essential to fair process in school-based adjudications, but I 
        believe that cross-examination is not. Parties should be 
        allowed to ask questions of other parties and witnesses in a 
        meaningful way at a live hearing. Instead of cross-examination, 
        is sufficient, perhaps even optimal, to have parties instead 
        submit questions to the presiding decision-maker, who should 
        then ask all questions submitted unless they are irrelevant, 
        excluded by a rule of evidence clearly adopted in advance, 
        harassing, or duplicative. This submitted-questions procedure, 
        if administered fairly, provides ample opportunity for parties 
        to probe each other's and witnesses' credibility and 
        consistency, such that direct cross-examination is not needed.

        Standard of Evidence. The Proposed Rule allows schools to use 
        either the preponderance of the evidence standard or the clear 
        and convincing evidence standard. While I agree that either 
        standard is consistent with Title IX, the Proposed Rule would 
        allow schools to use the higher standard for sexual cases while 
        using the lower one for non-sexual ones. That is 
        discriminatory. The Proposed Rule should be changed to equalize 
        the standard of evidence for sexual and non-sexual misconduct.

        Off-Campus Misconduct. The Proposed Rule provides that schools 
        are not obligated to respond to allegations of sexual 
        misconduct that occur outside of their educational programs or 
        activities. This is untenable because many students live and 
        interact off campus, and off-campus misconduct may have a 
        concrete discriminatory impact on educational access.

        Deliberate Indifference Standard. The Proposed Rule provides 
        that schools are in violation of Title IX only if they know of 
        sexual-misconduct allegations and are deliberately indifferent 
        to them. This is too permissive a standard for schools and is 
        inconsistent with Title IX's mandate. The Rule should be 
        changed to provide that a school is in violation of Title IX if 
        it reacted unreasonably--that it knew or should have known of 
        sexual misconduct and failed to address it.
Response by Dr. Jeff Howard to Questions of Senator Alexander, Senator 
               Warren, Senator Rosen, and Senator Sanders
                           senator alexander
    Question 1. In your testimony, you outlined that if a student fails 
to maintain proper decorum throughout the hearing and questioning 
process they will receive a contempt of court citation. Could you 
explain in detail what this citation consists of and what sanctions, if 
any, result?

    Answer 1. The court reads the following statement at the beginning 
of a hearing: ``Statement of contempt. Order will prevail at all times 
during the hearing. Persons must be recognized by the chair before 
speaking. This statement should be considered a warning. Any misconduct 
during the hearing will now result in the assignment of appropriate 
sanctions to any or all parties involved.''

    The board handbook offers the following guidance: Contempt - An 
individual found guilty of contempt may be subject to disciplinary 
action.

    Charges of contempt will be filed against acts which are in 
violation of the following guidelines. Although this list shall not be 
taken as exhaustive and the judiciary boards may enlarge upon or modify 
this list to meet the particular circumstances in any case, the 
following are possible acts which might result in contempt of the 
judicial board.

        1. Failure to fully comply with the instructions or orders of 
        the courts

        2. Failure to fully perform disciplinary measures imposed

        3. Conduct which disrupts court proceedings

        4. Any act which tends to embarrass, obstruct, or hinder the 
        duty and function of the boards

        5. Any act intended to lessen the authority or dignity of the 
        boards

        6. Failure to cooperate with institutional officials on behalf 
        of the court

        7. Failure to appear before a scheduled meeting of a judicial 
        board

    In extraordinary cases where a student's conduct is excessively 
disruptive of the proceedings, the board by majority vote can declare 
the student to be in contempt of the judiciary and may then and there 
impose disciplinary measures. Such action by the board shall be in 
writing.''

    Finally, the board could impose sanctions for the contempt charge 
from those sanctions within their purview for the case in question. 
Sanctions such as a warning, reprimand, service, education, apology, 
fines, restrictions, and probation. The board would take into account 
the situation and circumstances.

    Because the board is so up front about contempt and expectations, I 
am unaware of anything beyond a warning being used over the past 
decade.

    Members of the board may at any time during the hearing question 
the respondent, complainant, or witnesses.

    Four valuable aspects exist in questioning.

    First, the specifics of a case should be sought before turning to 
the philosophical aspects.

    Secondly, when several individuals are involved in the case, a 
specified set of questions should be asked each individual involved as 
a test of verification of stories.

    Thirdly, feedback questions prove useful for the purpose of 
explicating apparent contradictions. This takes place most generally 
when someone tries to give answers the way he feels they will appeal 
most to the sympathies of the board.

    Lastly, a board strives to ask as many questions as possible which 
will elicit a definite ``yes'' or ``no'' answer. This provides a solid 
foundation of concrete evidence for later discussion.

    An inherent part of judicial procedure is the board's effort to 
understand both the student and the situations in which they become 
involved. If given time to answer well the questions of the board, much 
can be learned about attitude and personality from the nature of the 
responses. Under no circumstances should board members communicate back 
and forth, pass notes, watch the clock, or the like, for the student 
deserves the same courtesy and attentiveness from the board which it 
demands of him.

    It is a good idea to collect one's thoughts for a few moments 
between each person questioned. This provides an opportunity to check 
for possible conflicts or discrepancies of stories and to decide upon 
areas which may need further investigation.

    Conflicts must be resolved. It is impossible to conclude anything 
on insufficient information. If a situation cannot be clarified through 
individual questioning, it is permissible to bring those with 
conflicting stories before the board together. Here, however, the 
situation generally involves far more than mere misrepresentation; it 
is an even more serious matter of honor.

    In some cases there occurs two personal relationships which are 
important to investigate: What is the student's relationship with his 
roommate and with the other students on his floor.

    The time element and related specifics are often very pertinent 
information for the board to consider. What time did things happen? How 
much time was between events? It is always important to inquire about 
what went on preceding the specific incident in question, since many 
times this is revealing to other factors in the case.

    It is essential that no accusation or statement or any kind is made 
which cannot be supported by proof. The board members and the staff 
advisor must be conscious of this important area of law and qualify 
their statement in light of the facts.

    Question 2. Your institution provides for direct questioning 
between students, or through the Chairperson of the hearing board. Are 
there specific guidelines given to the Chairperson as to what questions 
to allow or not allow?

    Answer 2. The following is provided in the board handbook:

    Technical exclusionary rules of evidence followed in a court of law 
will not apply, nor will technical legal motions be entertained. 
Technical legal rules pertaining to the wording of questions, hearsay, 
and opinion will not be legalistically applied. Reasonable rules of 
relevancy will guide the board in ruling on the admissibility of 
evidence.

    The respondent, complainant, and witnesses are entitled to refuse 
to answer questions. In the case of the respondent, of his/her 
witnesses, refusal to answer will not be taken as indicative of guilt 
and must be noted without prejudice. In the case of the complainant or 
his/her witnesses, refusal to answer should not necessarily negate any 
other part of the testimony.

    The Chairperson shall insure that:

        Proper decorum prevails. (Failure to exhibit proper behavior 
        will result in a contempt of court citation.)

        Questioning shall be for the purpose of gathering information 
        only.

        All questions be germane; either party may object to unfair or 
        impertinent questions.

    Question 2. a. Is there a specific training provided for the 
Chairperson and other board members?

    Annual trainings are held for the entire board. One broad training 
on the board, duties, etc. and another specific to sexual misconduct, 
and then ongoing trainings/professional development type in-services 
throughout the year.

    Question 2. b. If so, could you provide what is included in this 
training?

    Answer 2. Judicial Board Trainings

    Annual Training

    Each year every board member is trained on the policies and 
procedures concerning the ETSU Institutional Disciplinary Policy and 
the judicial board processes used to address violations.

    Each year every board member is trained on the ETSU Student Sexual 
Misconduct Policy, Title IX as it relates to board responsibilities, 
investigation processes, and board processes used to address 
violations. If board members are not available for training, then they 
are not eligible to hear sexual misconduct cases.

    Additional Trainings

    Additional specialized training regarding the Preponderance of 
Evidence standard is offered each semester.

    Additional specialized training regarding Title IX updates and 
legislation is offered each semester.

    Additional specialized training regarding police processes is 
offered once per year, with a goal of offering once per semester. This 
training is led by an officer with ETSU Public Safety.

    Philosophically, we have established the following goals for when 
board members are ready to hear cases:

        1. Each member not only understands, but also can articulate 
        the university philosophy on discipline.

        2. Each member is thoroughly familiar with the procedures for 
        handling a case; so there will be no hesitation, no 
        uncertainty, no bickering in the mechanical flow of the 
        meeting.

        3. The board members know each other and their advisor well 
        enough to permit a free expression of opinion.

        4. The board knows the kind of information it needs to make a 
        wise decision: the facts involved in the misconduct, the 
        motivation of the student involved, his general conduct, his 
        level of maturity, the environment in which he lives, and his 
        purpose in attending the university.

        5. The board has some practice in questioning a student so that 
        it can obtain the necessary information without appearing to 
        pry into personal matters, without showing prejudices and 
        without showing hostility.

        6. The board understands the importance of its position as a 
        foundation of responsible self-government.

        7. The board recognizes it may serve two purposes: 
        determination of guilt and assessment of a corrective 
        disciplinary sanction in an educational manner.

        8. The board members themselves feel confident that they are 
        prepared to handle a disciplinary case.

        9. The board recognized the confidentiality of its meetings.

        10. The board members recognize that no list of procedures and 
        no amount of legalism will prove to be a substitute for common 
        sense, honesty, and good judgment.

        11. The board members are generally familiar with due process 
        requirements.

        12. The advisor is sure that the board members are ready for a 
        case.
                             senator warren
    Question 1. According to data from the U.S. Department of Justice, 
only one in five women who are sexually assaulted on campus will 
actually report the attack to the police. \1\ What should Congress do 
to encourage students to report incidences of harassment and assault?
---------------------------------------------------------------------------
    \1\  U.S. Department of Justice, Office of Justice Programs, Bureau 
of Justice Statistics. (2014). Rape and Sexual Victimization Among 
College-Aged Females, 1995-2013. https://www.bjs.gov/content/pub/pdf/
rsavcaf9513.pdf.

    Answer 1. Congress should ensure that reporting options are not 
limited. A student may report to an employee or friend. They will 
likely report to someone they know or have built a comfort level and/or 
relationship with. Do not limit institutions from acting on reports 
---------------------------------------------------------------------------
made in this manner.

    Question 2. From your perspective, how would each of the following 
aspects of the Department of Education's proposed rule, 
``Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance,'' affect a 
complainant's likelihood of reporting harassment or assault?

    a. The live cross examination requirement;

    Answer 2. Our institution currently permits the parties to question 
one another. This may occur in one of two hearing types at ETSU, in a 
judicial board hearing or in an UAPA hearing (defined in state code).

    In the judicial board hearing the questions are asked by the 
complainant and respondent. They may be in the same room or may be 
screened or in separate rooms participating using technology. The 
important thing to note is that the question is done in a way that the 
parties are comfortable. The questions may be directed to the chair of 
the board but both parties hear the question and the response.

    Advisors/lawyers are permitted but may not speak in the hearing.

    In the UAPA, lawyers may directly question. It is a much more 
legalistic process and is offered to the respondent if suspension or 
expulsion are possible outcome sanctions.

    In both cases, the University has made sure the process happens in 
a fair and equitable manner with all due process rights being observed. 
One is not necessarily better than the other.

    b. The proposed definition of harassment, which would narrow the 
scope of what incidences of sexual misconduct schools are required to 
respond to;

    I do not think that changing the definition helps institutions 
address complaints.

    c. The geographic location limitations, which would limit instances 
where schools may respond to sexual harassment and assault to school 
grounds, activities, and programs;

    Limiting geography reduces the institutions' ability to respond and 
take action on situations that could occur on school trips, spring 
break, or study abroad. Geography should not be changed.

    d. The clear and convincing standard requirement; and

    The preponderance of evidence standard is used by my institution 
for all Code of Conduct processes including sexual harassment. We are 
in favor of this standard remaining.

    e. The actual knowledge standard and requirements for filing formal 
complaints.

    If a student living in a residence hall reports to their Resident 
Advisor (RA) they assume they are reporting to the school. They may 
report to the RA because that is who they feel comfortable speaking 
with. Institutions should be able to address and respond to complaints 
made to others within the institution and not just the Title IX 
Coordinator. Clery talks about responsible employees and Campus 
Security Authorities who has certain reporting obligations. Title IX 
and Clery should align in this way.
                             senator rosen
    Question 1. As others have expressed today, I am incredibly 
concerned with the proposed rollbacks of Title IX protections for 
sexual assault survivors and how they would jeopardize student safety, 
particularly students in my home state of Nevada. Among other harmful 
provisions, the Department of Education's proposed rule only allows 
schools to investigate a report of sexual harassment if it occurred 
``within a school's own program or activity.'' At University of Nevada 
Las Vegas (UNLV) - a public university with the highest student 
enrollment rate in my state - only 6 percent of full-time students 
reside on campus. UNLV is a commuter campus, so the majority of 
students experience sexual violence, harassment, or misconduct 
involving fellow students outside the campus or university-sponsored 
program or activity. Likewise, in a 2016 survey of sexual conduct and 
campus safety, 79 percent of University of Nevada Reno students 
reported that ``unwanted sexual conduct affecting students occurs off 
campus''. And this doesn't even account for the many Nevadans who 
attend other commuter campuses like Truckee Meadows Community College, 
Nevada State College, and College of Southern Nevada. Changing the 
rules so schools only have to respond if the incident occurred on 
campus would have a direct negative impact on survivors of sexual 
assault and harassment in Nevada. Just because assault or harassment 
took place off campus, students may be forced to see their harasser on 
campus every day, and their education can be impacted - potentially 
resulting in them dropping out of school altogether.

    Question (a). Given that Title IX itself does not state that 
discriminatory conduct must occur during a school activity for there to 
be a discriminatory environment, how is this proposed change 
appropriate?

    Answer (a). This change could limit institutions and their ability 
to respond appropriately to complaints. Commuter students, or student 
on study abroad, school trips, or break trips should not have their 
complaints treated any differently just because it occurred off campus 
grounds.

    Question (b). Nevada institutions like UNLV have pledged to 
continue to offer support and resources to survivors of off-campus 
assaults, even if this rule goes into effect. Unfortunately, not all 
schools will do the same. How will these changes affect the rate of 
student reporting of sexual misconduct?

    Answer (b). Our institution would continue to support and offer 
resources to complainants but the change in geography could put 
limitations on that response. The complaint is made between students 
and that nexus should allow for complaint response no matter the 
geography.
                            senator sanders
    Question 1. As you know, Secretary DeVos rescinded guidance issued 
by the Obama administration that helped schools understand their 
responsibility to address campus sexual assault and ensure student 
safety and rights. Colleges and universities are focused on policies 
and procedures, the Department of Education ensures schools comply with 
federal law and it seems students, faculty and visitors to campus are 
an afterthought. Based on your experience working in the field of 
criminal law, how should the views, perspectives and experiences of 
students and various stakeholders taken into account to ensure that 
everyone feels safer on campus?

    Answer 1. Campus processes must be accessible and campus procedures 
must be fair and equitable to both parties. Institutions have well 
established Codes of Conduct and hearing processes. These are not 
courts of law but must afford all parties due process. Transparency is 
key in assuring that campus constituents understand their rights, their 
responsibilities, and resources. Those things should be more open and 
not more restricted.

    Question 2. The Clery Act, amended by the Violence Against Women 
Act (VAWA), requires colleges and universities across the United States 
to disclose information about crime on and around their campuses. The 
law applies to most institutions of higher education because it compels 
compliance in order to participate in federal student financial aid 
programs. Again, based on your experience working in the field of 
criminal law, are schools fully complying with the Clery Act? Is the 
Department of Education properly enforcing the Clery Act and VAWA?

    Answer 2. Yes, I think school are complying with Clery and VAWA. 
Having worked in this area I have found the DOE and their Clery 
Handbook helpful. Institutions must put considerable time and attention 
to compliance and training.

    Question 3. Colleges and universities seem to be struggling with 
the repeal of the Obama Title IX rules since they provided much needed 
guidance for institutions experiencing rising cases of sexual assault 
and harassment. While Secretary DeVos has proposed new guidelines, they 
are not in effect and have drawn criticism for favoring the rights of 
the accused over those of the survivor and for not actually preventing 
or addressing campus sexual assault. In the meantime, how can colleges 
and universities strengthen their campus disciplinary process to ensure 
that all students are safer on and near campus, especially if students 
feel discouraged from coming forward about sexual assaults and other 
acts of violence?

    Answer 3. Institutions are faced with an untenable situation, of 
trying to hit a moving target with the changing rules.

    For students to feel they are being hear, then campus processes 
must be fair and equitable and allow for:

        a. filing a complaint with those on campus the student might 
        feel comfortable speaking with

        b. School response and support through resources/interim 
        measures, to both parties

        c. a fair and unbiased investigation with two trained 
        investigators

        d. a fair and unbiased hearing process with the ability to 
        review all related materials, witnesses, and questioning one 
        another

        e. the ability to appeal

    Question 4. What changes to Secretary DeVos' proposed Title IX 
guidance would you recommend to ensure that the administration does not 
create a campus sexual assault disciplinary process that favors 
wealthier students and their families who can afford attorneys and 
consultants to guide them through the labyrinth of filing a formal 
complaint with the ``appropriate person,'' notification requirements, 
live cross examinations, and extensive knowledge of criminal procedure?

    Campus student conduct processes are not courts of law. Student, 
complainants and respondents should be afforded due process rights in 
any campus process. Advisors/attorneys should serve as an advisor and 
should not be involved in the campus conduct hearing directly but 
should advise their advisee/client in the process.

    I am supportive of removing the single investigator model and for 
holding a hearing before imposing a sanction. I am in favor of both the 
complainant and respondent being allowed to review all materials 
collected and to be able to question one another and any witnesses/
evidence submitted. This can be done in such a way that is respectful 
and equitable to all parties without it having to be done by an 
advisor/representative/attorney.

    Many institutions, including mine, already allow for such 
questioning.

    The more conditions and parameters placed on Title IX complaints 
the less institutions will be able to respond. Students should be able 
to file a complaint with others besides the Title IX Coordinator and 
students should be able to file complaints that happen off campus.

                                 ______
                                 
    [Whereupon, at 12:04 p.m., the meeting was adjourned.]

                                  [all]