[Congressional Record Volume 163, Number 176 (Tuesday, October 31, 2017)]
[Extensions of Remarks]
[Page E1460]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 JOSEPH COHN: TESTIMONY BEFORE THE BIPARTISAN TASK FORCE TO END SEXUAL 
                                VIOLENCE

                                 ______
                                 

                           HON. ANN M. KUSTER

                            of new hampshire

                    in the house of representatives

                       Tuesday, October 31, 2017

  Ms. KUSTER of New Hampshire. Mr. Speaker, I include in the Record the 
following:
       Dear Representatives Kuster, Meehan, Speier, Joyce, and 
     honorable members of the Task Force to End Sexual Violence,
       My name is Joe Cohn, and I am the Legislative and Policy 
     Director at the Foundation for Individual Rights in 
     Education, or as we are better known, FIRE. I thank you for 
     the opportunity to discuss this critical issue.
       One of the core constitutional rights that FIRE defends is 
     due process. Universities are both morally and legally 
     obligated to respond to known instances of sexual misconduct. 
     And for more than 50 years, courts have repeatedly held that 
     the Constitution requires public universities to provide 
     meaningful due process to accused students.
       The stakes are extremely high for everybody in campus 
     disciplinary proceedings. When a college sweeps an allegation 
     of sexual misconduct under the rug, it has not only behaved 
     immorally, it is in clear violation of Title IX. It is 
     similarly unethical and unlawful when an institution punishes 
     a student for alleged sexual misconduct without a truly fair 
     and impartial process. We must not concede that either 
     situation is acceptable.
       The attention focused on this issue in recent years by 
     student activists and the Department of Education has shed 
     important light and opened the door for a much needed 
     examination of whether institutions have been adequately 
     addressing sexual violence.
       Unfortunately, however, some of the particular strategies 
     implemented have had a pernicious effect. We have too often 
     seen a disregard for the rights of victims of sexual violence 
     replaced by a disregard for the rights of the accused. Two 
     wrongs do not make a right.
       Addressing campus sexual misconduct must continue to be a 
     priority. We believe that by working together, we can--and 
     indeed, must--do a better job of protecting the rights of 
     victims and accused students alike. That is why we are 
     pleased that the Department of Education has committed itself 
     to engaging in formal notice and comment to craft a new 
     policy with both of those goals in mind.
       So, today, I'd like to set forth a few principles that we 
     hope will guide you and the Department of Education in your 
     collective efforts to ensure that campuses are free from sex 
     discrimination. First, we must not, under any circumstances, 
     return to the days when allegations of sexual violence on 
     campus were brushed aside and concealed. At a minimum this 
     will require insisting that institutions have clear, 
     accessible policies, and that they make efforts to inform the 
     campus community of them and enforce them fairly but 
     unequivocally when necessary.
       Second, we must recognize that government actors and 
     institutions cannot solve this problem alone. We will all 
     need to work in partnership with each other and many 
     committed activists, practitioners, and experts not now in 
     this room. Today you are undertaking the necessary work of 
     listening to a broader range of stakeholders affected by 
     campus sexual assault. If we want our nation's colleges to 
     employ clear, equitable, and fair procedures in which 
     everyone can trust--and I believe we all do--we must hear 
     from everyone affected and everyone committed to addressing 
     these issues.
       That is why FIRE is adamant that at the regulatory level, 
     government agencies engage in formal notice and comment 
     rulemaking to hear insight from all parties.
       Through this process, the Department of Education can 
     combine institutional knowledge, professional expertise, and 
     the experiences of students to create a workable, fair, and 
     effective set of Title IX regulations. Crafting a policy on 
     campus sexual assault without hearing from complainants, the 
     accused, the institutions themselves, medical professionals, 
     victim's rights advocates, civil rights advocates, parents, 
     and the many law enforcement professionals who have dedicated 
     their careers to ending sexual violence, is bound to be 
     inadequate.
       Third, our national policy must be careful to assign only 
     those responsibilities to institutions that we are confident 
     they can perform well. Consulting with professional experts 
     only goes so far if the resulting policy delegates tasks that 
     require particular expertise to those without the sufficient 
     background, training, and tools to perform those functions 
     properly.
       Colleges and universities have a vital role to play in 
     addressing campus sexual assault. They cannot simply refer 
     complainants to law enforcement and wash their hands of the 
     problem. Likewise, we must not allow ourselves to continue 
     under the dubious assumption that with a few hours of annual 
     training colleges are equipped to handle these challenging 
     investigations and adjudications. They are not well suited to 
     adjudicating these complex cases. This gap between what we 
     demand of institutions and what they are well-suited to 
     perform has been one of the significant causes of the 
     injustices--which flow in both directions--with which we are 
     all too familiar.
       The final broad principle is that the only way our 
     solutions will be sustainable is if they are mindful of the 
     rights of all students. No one benefits from a system that 
     does not have the public's trust--not victims, not accused 
     students, not institutions, and not the public.
       FIRE wants every institution to know how to assist when a 
     student calls for help in the middle of the night. We want 
     institutions to dedicate enough resources to ensure that the 
     well-being of victims is a top priority. We want every 
     student to know that their case will be handled fairly.
       Due process--equal justice under law--is not an abstract 
     principle; it is the foundation of any system of justice 
     worthy of the name, whether on campus or off. We agree with 
     the Secretary that we must ensure that every student's case 
     is handled with the care that we would expect if one of our 
     loved ones were a party, regardless of which side of the 
     table they are sitting on.
       The status quo is unacceptable. It isn't working for 
     anyone. It isn't working for victims. It isn't working for 
     institutions of higher education. And it isn't working for 
     accused students. We must protect students. We must make sure 
     hearings are fair and accurate. We must help institutions get 
     it right. And we must continue to hold them accountable when 
     they do not.
       I thank you for the opportunity to address you today, and 
     look forward to working with you on this important mission.

                          ____________________