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S. HRG. 114–672 

REAUTHORIZING THE HIGHER EDUCATION ACT: 

COMBATING CAMPUS SEXUAL ASSAULT 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

ON

EXAMINING REAUTHORIZING THE HIGHER EDUCATION ACT, FOCUSING 

ON COMBATING CAMPUS SEXUAL ASSAULT 

JULY 29, 2015 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

LAMAR ALEXANDER, Tennessee, Chairman 

MICHAEL B. ENZI, Wyoming 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

RAND PAUL, Kentucky 

SUSAN COLLINS, Maine 

LISA MURKOWSKI, Alaska 

MARK KIRK, Illinois 

TIM SCOTT, South Carolina 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

BILL CASSIDY, M.D., Louisiana 

PATTY MURRAY, Washington 

BARBARA A. MIKULSKI, Maryland 

BERNARD SANDERS (I), Vermont 

ROBERT P. CASEY, JR., Pennsylvania 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

SHELDON WHITEHOUSE, Rhode Island 

TAMMY BALDWIN, Wisconsin 

CHRISTOPHER S. MURPHY, Connecticut 

ELIZABETH WARREN, Massachusetts 

DAVID P. CLEARY, Republican Staff Director 

EVAN SCHATZ, Minority Staff Director 

JOHN RIGHTER, Minority Deputy Staff Director 

(II) 

C O N T E N T S 

STATEMENTS 

WEDNESDAY, JULY 29, 2015 

Page 

COMMITTEE MEMBERS

Collins, Hon. Susan M., a U.S. Senator from the State of Maine, opening 

statement .............................................................................................................. 1 

Murray, Hon. Patty, a U.S. Senator from the State of Washington ................... 3 

Cassidy, Hon. Bill, a U.S. Senator from the State of Louisiana .......................... 49 

Bennet, Hon. Michael F., a U.S. Senator from the State of Colorado ................. 51 

Warren, Hon. Elizabeth, a U.S. Senator from the State of Massachusetts ........ 53 

Baldwin, Hon. Tammy, a U.S. Senator from the State of .................................... 55 

Casey, Hon. Robert P., Jr., a U.S. Senator from the State of Pennsylvania ...... 56 

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee ................ 58 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 61 

WITNESSES—PANEL I 

McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri .................... 5 

Heller, Hon. Dean, a U.S. Senator from the State of Nevada ............................. 7 

Gillibrand, Hon. Kirsten, a U.S. Senator from the State of New York ............... 9 

Ayotte, Hon. Kelly, a U.S. Senator from the State of New Hampshire .............. 10 

WITNESSES—PANEL II 

Napolitano, Hon. Janet, President, University of California, Oakland, CA ....... 13 

Prepared statement .......................................................................................... 14 

Bolger, Dana, Co-Founder, Know Your IX, Washington, DC ............................... 22 

Prepared statement .......................................................................................... 24 

Stafford, Dolores A., Executive Director, National Association of Clery Compliance Officers and Professionals; President and CEO, D. Stafford and 

Associates, Rehoboth Beach, DE ......................................................................... 28 

Prepared statement .......................................................................................... 30 

Benz-Flounlacker, Mollie, Associate Vice President for Federal Relations, Association of American Universities, Washington, DC ....................................... 39 

Prepared statement .......................................................................................... 41 

ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.: 

Senator Dean Heller, a U.S. Senator from the State of Nevada .................. 64 

Paige Danne, Mother of Accused Son ............................................................. 65 

Nancy Gertner, Harvard Law School Professor ............................................. 67 

Janet Halley, Royall Professor of Law, Harvard Law School ....................... 74 

Joshua C. Strange ............................................................................................ 75 

(III) 

(IV) 

Letters: 

American Federation of Teachers (AFT) ................................................. 80 

Foundation for Individual Rights in Education (FIRE) ......................... 81 

Legal Momentum ...................................................................................... 88 

Louisiana Legislature ............................................................................... 89 

National Coalition for Men (NCFM) ........................................................ 99 

National Domestic Violence Hotline ........................................................ 101 

National Parenthood Conerence ............................................................... 103 

Rape, Abuse & Incest National Network (RAINN) ................................ 106 

The State University of New York (SUNY) ............................................ 108 

ZEN Men, LLC .......................................................................................... 111 

Response by Janet Napolitano to questions of: 

Senator Alexander ..................................................................................... 112 

Senator Murkowski ................................................................................... 114 

Senator Whitehouse .................................................................................. 117 

Response by Dana Bolger to questions of: 

Senator Alexander ..................................................................................... 118 

Senator Hatch ............................................................................................ 120 

Senator Murkowski ................................................................................... 122 

Senator Whitehouse .................................................................................. 125 

Senator Casey ............................................................................................ 127 

Response by Dolores A. Stafford to questions of: 

Senator Alexander ..................................................................................... 128 

Senator Hatch ............................................................................................ 133 

Senator Murkowski ................................................................................... 135 

Senator Whitehouse .................................................................................. 138 

Senator Casey ............................................................................................ 139 

Response by Mollie Benz-Flounlacker to questions of: 

Senator Alexander ..................................................................................... 149 

Senator Hatch ............................................................................................ 150 

Senator Murkowski ................................................................................... 151 

Senator Whitehouse .................................................................................. 153 

Senator Casey ............................................................................................ 154 

(1) 

REAUTHORIZING THE HIGHER EDUCATION 

ACT: COMBATING CAMPUS SEXUAL ASSAULT 

WEDNESDAY, JULY 29, 2015 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 9:01 a.m., in room 

SH–216, Hart Senate Office Building, Hon. Susan Collins presiding. 

Present: Senators Collins, Alexander, Cassidy, Murray, Bennet, 

Warren, Baldwin, Casey, Whitehouse, Franken, and Murphy. 

OPENING STATEMENT OF SENATOR COLLINS

Senator COLLINS. The Senate Committee on Health, Education, 

Labor, and Pensions will come to order. 

Good morning. Today’s hearing marks the committee’s seventh of 

this Congress on the reauthorization of the Higher Education Act. 

This morning, we will be discussing sexual assault on college campuses and legislative proposals aimed at lessening this crime and 

providing justice for the survivors and alleged perpetrators. 

Before we begin, I would like to share a brief statement from 

Chairman Lamar Alexander, who asked me to read the following: 

‘‘I’ve asked Senator Collins to chair today’s hearing because 

I have had to go to Nashville for the funeral of a close friend. 

Before she was elected to the Senate, Senator Collins worked 

at Husson University in Bangor, ME, so she brings a valuable 

perspective to this discussion.’’ 

Oh, it’s weird to be reading what someone else is saying about 

you. 

[Laughter.] 

‘‘I thank her for doing this, and I thank the witnesses for attending. The goal of Federal regulations and rules should be to 

help our 6,000 colleges and universities create campus environments that make students safer from sexual assault. 

‘‘In doing that, we should be careful to (1) eliminate duplicative laws and regulations so that instead of spending unnecessary time filling out forms, colleges have more time to counsel 

students and create a safer environment; (2) help colleges better coordinate with law enforcement agencies but not turn colleges into law enforcement agencies; and (3) establish procedures that are fair and that protect the due process rights of 

both the accused and the accuser.’’ 

2 

I know that the Chairman regrets very much that he could not 

be here today. 

One of the things that I most enjoy as a U.S. Senator is the opportunity to meet with students from my home State of Maine, a 

sentiment I’m sure that many of my colleagues share. Yesterday, 

I had breakfast with my summer interns who attend six different 

colleges and universities. We discussed the incidence of sexual assault on their campuses and what can be done to halt this crime 

and meet the needs of survivors. 

These students had three insightful recommendations. First, they 

all support mandatory, ongoing training for all students. Second, 

they emphasized that students who are assaulted need a confidential advisor to whom they can turn. And, third, as Chairman Alexander mentioned, they believed it was important to make sure that 

disciplinary procedures are fair both for those who are assaulted 

and for those who are accused. 

There are two Federal laws to help combat sexual assault on 

campuses, the Clery Act and Title IX of the Education Amendments of 1972. Last Congress, provisions of the Clery Act were updated by the enactment of the Violence Against Women Act reauthorization. Senator Casey, a member of this committee, helped 

lead the effort to include important reforms in VAWA related to 

sexual assault prevention on campuses. 

On July 1, the Department of Education issued new regulations 

implementing these amendments to ensure that campuses have 

policies and procedures in place to prevent and respond to sexual 

assault, domestic violence, dating violence, and stalking. These 

laws include requirements that educational institutions file annual 

reports on the crimes occurring on campus, institute security policies and have fair disciplinary procedures for sexual assault cases, 

employ a title IX coordinator, educate students and staff about sexual assault prevention and awareness, notify survivors about their 

rights and the resources available to them, and provide for staff 

training. 

Many colleges and universities are also engaged proactively in 

raising awareness about sexual assault among the student body. 

For example, the University of Maine launched its Office of Sexual 

Assault and Violence Prevention last year and has undertaken a 

campaign to educate students through posters, brochures, presentations, and training. 

Mercedes Dobay, an intern in my office and a senior at the University of Southern Maine, who happens to hail from my hometown 

of Caribou, told me that the Office of Greek Life requires students 

in sororities and fraternities to participate in sexual assault, domestic violence, and alcohol and drug awareness training each 

year. 

The system we have in place is designed to allow administrators 

to intervene quickly on behalf of students in a way that is separate 

from the judicial system. I hope that this hearing will inform the 

committee of what in the current system is working, what needs 

to be changed, and whether additional reforms are needed to help 

keep students safe while respecting the privacy of sexual assault 

survivors who may be reluctant to report these crimes and providing due process rights for all students. 

3 

This committee has formed a bipartisan working group to explore 

campus sexual assault and campus safety in greater detail. I look 

forward to hearing from our witnesses on how we can build consensus around this important issue. 

Our first panel today is comprised of four Senators who have 

worked tirelessly together on legislation to combat campus sexual 

assault and have introduced the Campus Accountability and Safety 

Act. Senators McCaskill, Heller, Gillibrand, and Ayotte are four of 

the original co-sponsors of this bill and have devoted a great deal 

of time and energy to this effort. I also want to recognize the work 

of Senators Blumenthal, Grassley, Warner, and Rubio. 

The Campus Accountability and Safety Act includes several provisions that merit our full consideration. All of the Senators who 

will be testifying have shown great leadership in addressing campus sexual assault, and I want to thank each of them for their participation this morning. 

It’s now my great pleasure to turn to the Ranking Member, Senator Murray. 

Senator Murray, I will say, this feels like old times when we led 

the Transportation HUD Appropriations Subcommittee. 

STATEMENT OF SENATOR MURRAY

Senator MURRAY. Well, thank you very much, Madam Chairman. 

It’s great to be working with you on this committee. I note that the 

women of the Senate have come today to be on time and to be here 

for this. 

[Laughter.] 

I want to thank all of our witnesses as well who represent a wide 

array of perspectives, and I appreciate all of you for taking the 

time to join us. I join with Senator Collins in recognizing the work 

of our first four witnesses, Senators McCaskill, Heller, Gillibrand, 

and Ayotte, for all of their time and attention to this really critical 

issue. 

Fighting back against campus sexual assault and violence really 

requires coordination and input and focus at every level. I’m grateful that all of our witnesses took the time to be here today to talk 

about this. 

I’ve said before that higher education is an important pathway 

to the middle class. It’s an opportunity for students to grow personally and to develop skills that will prepare them to succeed in today’s economy. With all of that to focus on, the last thing a student 

should have to worry about is whether they are safe on campus. 

The harsh reality is that one out of five women is sexually assaulted in college, and men as well. In 2013 alone, college campuses reported 5,000 forcible sex offenses, and a recent study indicated that number could be much greater. 

There should be no question that sexual violence on campus is 

a widespread, growing, and unacceptable problem. Simply put, in 

colleges and universities across the country, basic human rights are 

being violated. All too often, current systems and campus climates 

encourage underreporting rather than action. 

As we talk about the seriousness of this problem, it’s important 

to acknowledge the work already underway to address it. Survivors 

like Ms. Dana Bolger, who is a witness on our second panel, have 

4 

bravely stepped up to make clear they expect far better from their 

schools and their communities. In doing so, they have forced a national conversation and they have shown other survivors that they 

are not alone. 

President Napolitano—great to have you here today—Ms. 

Flounlacker, and other university leaders have made fighting campus sexual assault a top priority. They have developed new partnerships between schools, communities, and law enforcement to coordinate and improve response and taken important steps to focus 

on prevention and improve compliance with the Clery Act, which 

is something Ms. Stafford has worked on closely. 

Just last month, thanks to the work of many here today, including Senator Casey, a member of this committee, regulations went 

into effect as part of the Violence Against Women Act of 2013 that 

will require schools to increase transparency about sexual violence 

and assault and strengthen prevention efforts. These are critical 

steps, but, without question, there is much, much more to be done. 

I see our conversation about reauthorizing the Higher Education 

Act as a critical opportunity for continued and urgently needed 

progress. I’m very pleased that key Senate leaders are here today 

with us to discuss their Campus Accountability and Safety Act legislation that would take steps to improve campus climate by requiring far greater transparency about the prevalence of campus sexual 

assault, put in place key protections for survivors, improve coordination with law enforcement, and impose harsher penalties on 

schools that are not meeting requirements. 

As a mother, a grandmother, and a U.S. Senator, I certainly 

want to know that when a student is attacked, her school and her 

community will be ready to respond with compassion, respect, and 

accountability. I think we can all agree that we need to do everything we can to engage students and schools so that sexual assaults don’t happen in the first place. 

Recent research by the Centers for Disease Control and Prevention, which is part of the administration’s ongoing efforts, has identified campus sexual assault as a public health issue and has 

shown that sustained, comprehensive education programs can help 

prevent sexual assault, especially by preparing students to fight 

back against the damaging myths that surround rape and assault. 

Efforts to encourage bystander intervention can help break down 

social norms that implicitly sanction sexual violence. 

I am very eager to hear from all our witnesses today about programs and policies aimed at prevention. But, of course, as much as 

more effective programs and requirements can make a huge difference, we cannot expect to fix this problem just by changing the 

rules. We have to do something much more difficult, and that is to 

change culture. 

For example, just a few years ago, Ms. Bolger brought to light 

the fact that at her alma mater, Amherst College, a fraternity had 

printed tee shirts depicting a woman being roasted on a spit like 

a pig. Those students went unpunished. Take a minute to think 

about the message that sends to students, male and female, about 

how much their community values women. Unfortunately, this is 

just one example of countless cases to choose from across our country. 

5 

That’s why the national conversation that students like Ms. Bolger have started and that other leaders, including many here 

today, have stepped up to support is so absolutely critical. A country that values women and all individuals is stronger for it. We all 

need to do our part to keep this conversation going, and we need 

to make it louder. 

We have done far too little in Congress over the years to support 

survivors and to be a voice for women across the country, daughters and granddaughters, who are counting on us. I’m glad that 

Chairman Alexander and I agree that the HELP committee needs 

to join the debate on campus sexual assault much more fully. 

Again, I want to thank all our witnesses, including our colleagues who are here today, for taking the time to be such a critical 

part of this discussion and for the work that all of you have already 

done with the many other members on both sides of the aisle who 

are very much focused on this fight. As we continue our conversation about our country’s higher education system and throughout 

our work on this committee, we have an opportunity to stand up 

for survivors, make clear the status quo is completely unacceptable, 

and help continue the conversation about changes we absolutely 

need to see. 

I am very committed to seizing this opportunity. I want to thank 

Senator Collins for being here today, and I want to recognize Senator Alexander as Chairman of this committee for stepping up to 

this. Thank you all very much. 

Senator COLLINS. Thank you, Senator Murray. 

I’m now very pleased to welcome our colleagues as the first panel 

of witnesses today. Missouri Senator Claire McCaskill has a long 

history of fighting sexual violence, going back to when she prosecuted sex crimes and established a Domestic Violence Unit in the 

Kansas City region, and leading to her current work in the Senate 

to curb sexual assaults in the military and on college campuses. 

She is the lead on the Campus Accountability and Safety Act. 

Nevada Senator Dean Heller has been an advocate for sexual assault survivors since his tenure in the House of Representatives, 

where he led a bipartisan effort to reduce the rape backlog and to 

help bring closure to victims and families of this horrendous crime. 

New York Senator Kirsten Gillibrand has been a key voice on the 

issue of sexual assault on college campuses and also in the military, particularly in her role on the Senate Armed Services Committee. 

And New Hampshire Senator Kelly Ayotte, drawing on her experience as New Hampshire’s chief prosecutor and former attorney 

general, has also worked hard in the Senate to stop sexual assault 

and domestic violence. 

Thank you all for being here today, and we’ll start with Senator 

McCaskill. 

STATEMENT OF SENATOR MCCASKILL

Senator MCCASKILL. Thank you very much, Chairman Collins 

and Ranking Member Murray, for holding this important hearing 

on this issue. These crimes are troubling to parents, students, and 

educators. 

6 

As a mother and a grandmother, but maybe most importantly informed by my former work of many years in the courtroom prosecuting sex crimes, I am working extensively with my Senate colleagues to ensure students are protected from incidents of sexual 

violence and perpetrators are held accountable. I am very proud to 

work with Senators Heller, Gillibrand, Ayotte, Grassley, 

Blumenthal, Warner, and Rubio. We introduced last year a version 

of the Campus Accountability and Safety Act, or CASA. 

We didn’t stop with the version that we introduced last year. 

Over the past 15 months, our coalition of eight offices has met with 

over 60 organizations, including groups representing students who 

have been victims of college sexual assault, colleges and universities and their associations, law enforcement, victim advocacy, researchers, and parents of those young people who have been accused of sexual assault on college campuses. 

After introducing last year’s version of CASA in July 2014, as we 

continue to meet with stakeholders and gather additional feedback, 

we have made significant improvements to the bill. We have reintroduced this bill with an even larger bipartisan coalition. 

Currently, the bill has 33 co-sponsors, 12 Republicans and 21 

Democrats. That’s a bipartisan coalition we all know we don’t see 

every day in the U.S. Senate. Our legislation is so much stronger 

for it. We are all enormously proud of the work we have done together. 

Finally, we want to bring this crime out from the shadows and 

make it a priority on our Nation’s campuses. As a former prosecutor, I take special interest in assuring that those who have been 

victimized by sexual assault are given adequate support and feel 

empowered to make informed decisions in a very complicated situation. 

There are different systems. There is the legal system, and 

there’s title IX. There are different obligations, depending on who 

learns of the crime. These young people need to have information 

they can rely on as they navigate this complicated scenario. At a 

moment, they are traumatized, emotional, and really are worried 

that they have no place to turn for reliable information or where 

they will be treated with credibility. 

Our legislation would establish new campus resources and support services for victims who have been—who are alleging they 

have been victims of sexual assault. Colleges and universities 

would be required to designate confidential advisors to these students. The confidential advisor may be the most important part of 

our legislation. This is a person that guides the student through 

the process of understanding the potential legal and campus reporting processes following a sexual assault and can provide confidentiality through that process. 

Not only would the confidential advisor coordinate support services for those who have been assaulted, they would provide critical 

information about options for reporting these crimes to campus authorities and/or local law enforcement. Confidential advisors will 

support the students every step of the way and will put them back 

in charge of what happens to them moving forward. 

We have heard from advocates and those who have been assaulted that they need someone they can talk to in order to learn 

7 

about their options without being forced to make a permanent decision right away. Because the confidential advisor works solely at 

the discretion of those who have been assaulted and provides important information on reporting sexual assault, I believe their creation is critical to tackling the underreporting that pervades this 

issue and leaves perpetrators unaccountable. 

It’s my hope that this provision empowers the student who is assaulted on a Friday night to know on that same Friday night who 

he or she can call and where he or she can go for good information 

and confidential support. 

I also want to mention that our bill now includes a provision to 

ensure more transparency about the campus judicial process. Our 

bill requires that both the victim and the accused have timely notice of an institution’s decision to proceed with an institutional disciplinary process regarding an allegation of sexual misconduct. 

This would provide both the victim and the accused student with 

the opportunity to meaningfully exercise the rights afforded to 

them under institutional policy. 

It is critically important that both of the parties participate on 

a level playing field in the campus disciplinary process. We must 

continue to work to improve confidence in the judicial and campus 

systems which will, in turn, increase reporting, support survivors, 

and punish perpetrators of sexual assault on our college campuses. 

In addition, we must make sure that these provisions provide 

transparency for those who are accused. 

I look forward to working with my Senate colleagues and members of this committee on the provisions of this bill and the larger 

Campus Accountability and Safety Act in the coming months. We 

think that there is—between all of us who have worked on this and 

all of the input we have taken, we believe there are several key 

provisions that could be included in the reauthorization of Higher 

Education that could make a real difference going forward, and we 

really appreciate this committee taking the time to deal with it 

today. 

We’ve tried to divide up the testimony in a way that we won’t 

be too repetitive, and I hope we won’t. It’s hard for us all not to 

want to be here, so we really appreciate you putting up with all 

four of us wanting to get our words in this morning. Thank you. 

Senator COLLINS. Senator Heller. 

STATEMENT OF SENATOR HELLER

Senator HELLER. Chair Collins and Ranking Member Murray, I 

want to thank you for the opportunity to testify on this particular 

issue that is critically important. But most importantly, I want to 

thank you for your opening statements, from both of you, and for 

your understanding, concern, and support of moving something forward here so that we can make sure that these campuses are safe. 

I’m proud to work along with my colleagues here. I’m glad to see, 

after Senator Murray’s comments, that there are more male Senators that have shown up. 

[Laughter.] 

It was lonely for a while, but I assure you that there are other 

male Senators that are just as interested and devoted to this issue 

as I am. 

8 

When we first started working on this legislation, it was important for me to sit down with stakeholders in the State of Nevada. 

Last June, I held a roundtable in Las Vegas. I received input from 

title IX coordinators, from police officers, from victim advocacy 

groups on ways to prevent sexual assault and assist student survivors. 

I brought their ideas back to Washington, as my colleagues did 

the same in their States. Much of that feedback helped us draft our 

first bill, and this is only one example of outreach that most Senators do. 

Since the first introduction of our bill, our bipartisan working 

group continued to meet with stakeholders across the Nation, including survivors’ groups, students, colleges and universities, law 

enforcement, and others to help strengthen and improve our new 

bill that we introduced earlier this year. From the beginning, we’ve 

also worked diligently with your committee to ensure our final bill 

incorporated comments from experts on our Nation’s educational 

system. 

Our working group strongly believes we have put together a comprehensive product that will provide our schools with the tools that 

they need to make our campuses safer. I know for me and for many 

parents, watching your children go off to college is one of your 

prouder moments. Parents want to be confident that their sons and 

daughters will be safe and have access to resources that they need 

from their schools. Unfortunately, that’s not always the case. 

Today, we have over 100 colleges and universities under investigation for violation of title IX in their handling of campus sexual 

violence. While we’ve all seen news stories after news stories about 

these tragic events, the reality is there are many more survivor stories that haven’t been heard and haven’t been told. 

Sexual assault is a crime that more often than not goes unreported, which is one of the reasons why data provided by our Nation’s institutions simply do not reflect the prevalence of this crime. 

In fact, there are many colleges and universities that have reported 

zero incidents of sexual assault to the Federal Government. 

I strongly believe that one of the most important provisions of 

our bill is the campus climate survey. This survey will improve access to accurate, campus-level data by allowing students to anonymously share their experiences related to sexual assault. 

Under our bill, schools will give their students anonymous, online surveys to gauge the scope of sexual assault on campus and 

the effectiveness of current institutional policies on this issue. The 

Department of Education will be responsible for developing this 

survey, as well as picking up its cost. Schools just need to ensure 

an adequate, random, and representative sample of students taking 

the survey. 

The survey results will be reported to Congress and published on 

the Department of Education’s website. Because this survey will be 

standardized, the American public will be able to compare the campus climate of all schools. 

As a father of four children, I wish I had access to this kind of 

information when my kids were preparing to attend college. Now, 

as a grandfather of two, my hope is that when they grow up and 

9 

go off to school, our Nation’s campuses will be safer than ever before. 

The campus climate survey will be a useful educational tool for 

both students and parents, as well as an invaluable resource for institutions to help create or enhance efforts to prevent sexual assault, assist survivors of this crime, and improve campus safety 

overall. This provision is just one example of how Congress can act 

today and make ending this crime a priority. 

While Congress cannot legislate away sexual assault, and no bill 

is perfect, I believe the Campus Accountability and Safety Act is 

a step in the right direction toward combating this heinous crime 

and guaranteeing survivors have access to the resources they need 

and deserve. 

Thank you again for the opportunity to testify today. I look forward to hearing from my colleagues that are here at the witness 

table, and it has been an absolute honor and pleasure to serve with 

them and work with them to get this work done. Thank you very 

much. 

Senator COLLINS. Thank you, Senator. 

Senator Gillibrand. 

STATEMENT OF SENATOR GILLIBRAND

Senator GILLIBRAND. Well, thank you, Chairwoman Collins and 

Ranking Member Murray. I’m so grateful for your attention to this 

issue and your commitment to this issue. I’m also grateful for 

Chairman Alexander’s interest in having this hearing. It is invaluable. 

About a year ago, we outlined a path forward to protect students 

from campus sexual violence, and we heard from survivors who 

spoke very passionately about not only the harm and physical assault they endured but the second injustice, the injustice of feeling 

betrayed by a school that they loved, an administration that they 

trusted. We listened to law enforcement, we talked to campus officials, we talked to the advocates for the rights of the accused, all 

who wanted their voices heard. 

As Senator McCaskill said, this bill, this second bill that we’ve 

introduced, is truly a superior version of the first bill. This bill’s 

fundamental objective is to flip the incentives so that the first time, 

it would actually be in the school’s best interest to solve the problem, to actually do it aggressively and get it right. We did it because, obviously, the price of a college education should never be 

the risk of a sexual assault. 

Every day, it’s becoming increasingly clear that too many schools 

are failing, because they do not take sexual assault seriously 

enough. They do not see it as the violent felony that it actually is. 

They do not treat these as life-altering assaults, and they don’t 

treat them as violent crimes. 

Schools all across the country will routinely withhold a diploma 

if you don’t pay your fees. They’ll routinely kick you out if you 

cheat on a test. The statistics for students who have violated other 

students, who have sexually assaulted or raped them and found responsible, show that only one-third are actually expelled for the 

crime. In other words, two-thirds of students who were found responsible for sexual assault are still on their college campuses. 

10 

What does it say about our schools’ priorities if some colleges 

have tougher justice for a student cheating on an exam than for 

someone who has raped another student? The Campus Accountability and Safety Act would transform the way colleges and universities deal with this crime. 

With this bill, instead of pretending these crimes don’t happen, 

schools would be held accountable for reporting their sexual assault 

statistics accurately and publicly. Every college and university in 

the country would give their students an anonymous standardized 

survey to assess students’ experiences with campus sexual violence. 

The results of this biennial survey would give students, parents, 

and campus administrators a snapshot in time of what’s happening 

on their campuses that would paint a far more comprehensive picture of the scope and depth of this national problem. 

With this bill, instead of having campus security and local police 

debate jurisdiction after a sexual assault is reported, every college 

and university in the country would be required to have a memorandum of understanding with local law enforcement to clearly delineate responsibilities. As Senator McCaskill said, when you go 

and see that confidential advisor, he or she will be able to tell that 

survivor what his or her options are. This is the campus route. 

This is the criminal justice route. There’ll be no confusion, and 

she’ll know exactly what happens under each process. 

Instead of a survivor feeling like she has to go public with the 

details of her rape just to capture her school’s attention, with this 

bill she now has a dignified path to justice without having to 

broadcast the details of the worst nightmare of her life in public 

and on the cover of the New York Times. I urge my colleagues here to support this critically important bill. 

I truly believe we have a responsibility to keep our young men and 

women safe on campus. 

Chairwoman Collins, I have for the record a number of letters 

that I’d like to introduce. I have one from the American Federation 

of Teachers. I have one from the anti-sexual violence organization, 

RAINN; one from my State University of New York, a system of 

64 colleges and universities, the largest in the country, who has endorsed every provision of this bill. 

I also have one from the representatives from the Louisiana Legislature, where a version of the Campus Accountability and Safety 

Act recently just passed into law, and I have another one from the 

student advocacy organization called SAFER, Students Active for 

Ending Rape. 

Thank you again for your attention and your dedication, and 

thank you to all the members who came to this hearing. 

[The letters referred to may be found in Additional Material.] 

Senator COLLINS. Thank you for your testimony, and those letters will be entered into the record without objection. 

Senator Ayotte. 

STATEMENT OF SENATOR AYOTTE

Senator AYOTTE. Thank you, Chairman Collins. 

Thank you, Ranking Member Murray, and I want to thank 

Chairman Alexander as well for his focus on this issue. I know that 

many members of this committee have already become co-sponsors 

11 

of our bill and have been real leaders on this issue. We’re very appreciative of your attention today. 

I’m deeply honored to be here with my colleagues. This has been 

an important process of continuing to seek feedback and making 

sure that we are looking at the best practices that occur around the 

country and also solving some of the worst problems that we’ve 

seen and inconsistencies that we’ve seen around the country. 

Thank you all for your leadership on this. 

This is an example of how members of both parties can work together, when you see the strong bipartisan support for this bill and 

also the strong bipartisan message that this hearing sends today— 

that we all appreciate that every student deserves a safe environment on campus so that students can focus on learning instead of 

being victims of crime or feeling that they have to be in fear. That’s 

really what we want to accomplish and to give the proper tools and 

focus on this incredibly important issue. 

Campus sexual assault is a serious public safety issue that has 

impacted every State in this Nation, including my home State of 

New Hampshire. Like Senator Heller, in order to hear directly 

from stakeholders, I’ve held roundtables and discussions on this 

issue at Dartmouth College, Saint Anselm College, and the University of New Hampshire, bringing together students, survivor advocacy organizations, law enforcement, and campus administration 

officials to talk about these issues in different sized colleges with 

different challenges. 

In New Hampshire, we have seen some positive developments 

when it comes to ensuring that survivors receive support on campus. This national discussion has forced many colleges to really 

focus on this issue. Having a hearing like this also causes our campuses to again reexamine this issue. 

For example, having met with local law enforcement and administrators and students at Dartmouth College in Hanover, I know 

that they are engaged in a process and committed to change at 

Dartmouth. I’ve also had very candid conversations with the administration there. 

The Dartmouth community has struggled with this issue, and 

there’s much more work to do. I’m very encouraged that Dartmouth 

recently formalized a relationship with the local rape crisis center 

to provide confidential services to survivors of campus sexual assault. 

Over in Durham at the University of New Hampshire, they’ve actually done some nationally recognized work on rape prevention. 

Candidly, much of the focus of our legislation is to ultimately bring 

campus communities throughout the Nation in line with some of 

the efforts that we’ve seen at UNH. UNH police chief Paul Dean 

proudly characterizes UNH’s multiple initiatives on prevention and 

response as a conspiracy of care for the students at UNH. 

As a former attorney general in my State, I know that crimes of 

sexual assault are very serious crimes and need to be handled by 

law enforcement if victims choose to pursue that route. However, 

the reality is that for a variety of reasons, these crimes are vastly 

underreported and often unreported. 

Our bill seeks to foster a more cooperative environment between 

schools and local law enforcement by requiring colleges and univerVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\DOCS\95801.TXT CAROL
12 

sities to enter what Senator Gillibrand talked about, a memorandum of understanding with the entity that has jurisdiction to 

report and investigate crimes on campus. The goal of the MOU is 

to foster a dialog between the school and law enforcement before 

a serious incident takes place. 

An MOU that clearly delineates responsibilities and requires 

that appropriate information sharing can ensure that when survivors come forward and choose to report a crime to law enforcement, these crimes are properly investigated. It also can ensure 

that an accused individual—that there’s a clear understanding of 

what their rights are in this process as well. 

We know that too many of these crimes go unreported on campus, and that’s why it’s so critical—this piece of the confidential advisor—so that victims know what their options are and that they 

know that there is someone who can represent them in this process 

and can let them know what their options are if they choose to report to law enforcement and what will happen during the administrative process. These two provisions are critical as you look at this 

bill. 

Unfortunately, one other issue that came up during the course 

of bringing people together around this—and I know Senator 

McCaskill has focused on this as well. We’ve been very outraged 

that we found out that on some campuses, the way that these 

crimes have been haphazardly investigated, that you had athletic 

departments that were investigating crimes of sexual assault and 

handling these matters. Consistency in ensuring that practices like 

this never occur again will ensure fairness, not only to the accused, 

but also to victims of sexual assault. 

You can imagine that if you’re a victim and the athletic department is the one investigating an athlete that is accused of these 

crimes, you will not feel that you’ll get justice in those circumstances. This bill would end practices like this and ensure that 

there’s consistency and that there’s fairness, not only for victims of 

sexual assault to ensure that a confidential advisor will be given 

to victims, but that the accused—that there’s a fair and clear process to investigate these crimes. 

I thank you so much for your leadership, both the Chair and 

Ranking Member, on this issue and for my colleagues and their incredible work today. Thank you. 

Senator COLLINS. Thank you very much. I want to thank all four 

of our colleagues for coming to testify today and for your outstanding leadership on this issue. I know you have busy schedules, 

so at this point, you’re free to go, and we’ll bring forward the second panel. 

I am pleased to welcome our next panel of four witnesses today. 

Our first witness, president Janet Napolitano, is the president of 

the University of California. I had the pleasure of working with 

president Napolitano when she was Secretary of Homeland Security and I served as ranking member of the Senate Homeland Security Committee. It’s a pleasure to welcome her back to Washington 

today. 

President Napolitano leads a university system with 10 campuses, five medical centers, three affiliated national labs, and a 

statewide agricultural and natural resources program. Previously, 

13 

she served as Governor and attorney general—not at the same 

time, I might add—of Arizona. 

Our second witness, Dana Bolger, is the co-founder of Know Your 

IX. She leads a national survivor and youth-led campaign to end 

campus sexual and dating violence. She is also a columnist and a 

2014 graduate of Amherst College. 

We thank you for being here as well. 

Next we will hear from Dolores Stafford, who is the executive director of the National Association of Clery Compliance Officers and 

Professionals and the Association for Campus Administrators who 

are responsible for managing Clery Act compliance. She also serves 

as the president and CEO of D. Stafford and Associates, a professional services firm specializing in safety and security-related 

issues on college campuses. It’s also interesting to note that she 

served as chief of police at George Washington University for several years right here in Washington. 

And, finally, we will hear from Benz-Flounlacker, who is the associate vice president for Federal Relations at the Association of 

American Universities, where she has worked for some 14 years. 

She’s responsible for higher education policy and funding issues. 

Governor Napolitano, we will begin with you. 

STATEMENT OF HON. JANET NAPOLITANO, PRESIDENT, 

UNIVERSITY OF CALIFORNIA, OAKLAND, CA 

Ms. NAPOLITANO. Well, thank you, Senator Collins, Senator Murray, and members of the committee for holding this hearing and for 

the statements of your colleagues earlier this morning as well. I’m 

really pleased to see the bipartisan support on this issue. 

Campus sexual assault and sexual violence is a criminal issue. 

It is a public health issue. It is a cultural issue. At the University 

of California, which is the Nation’s largest public research university, we have no tolerance for it. The question is what do you do 

about it. I’m here today to briefly describe what we have done and 

make just a few brief comments on the legislation. 

In June 2014, we established a system-wide task force to develop 

and implement a model for prevention, response, and reporting of 

incidents of sexual violence and sexual assault. We broadened the 

definition to include things like dating violence, domestic violence, 

and stalking, which previously had not been clearly included. We 

adopted an affirmative consent standard, meaning consent must be 

knowing, intentional, and revocable in our cases. 

The task force was very broad, but identified eight key recommendations. I’m pleased to see that the recommendations of the 

task force are really mirrored in the legislation that you are considering now. 

A consistent response team; system-wide investigation and adjudication standards, including sanctions; comprehensive training 

and education for the entire UC community; communications and 

public awareness; a confidential advocacy and advocate for each 

survivor; a systemwide website for information; standard data collection and increased accountability and reporting; and then appropriate support services for survivors based on their circumstances—these are the eight key pillars of what we are doing. 

14 

Four have already been completely enacted. The remaining four 

will be implemented no later than January 2016. 

The most important is that we have established the independent 

confidential advocate on every campus of the University of California. We have funded it. We have supported it. We have trained 

it. We’ve also set up systemwide education. Every person, every 

freshman reporting this fall will receive the same training throughout the system, and that training will then include all other students, faculty, and staff. When you add all those numbers together, 

that’s over 400,000 people who will be receiving the training. 

We have worked with the California attorney general on a model, 

a template, and a tool kit for the linkage between the campuses 

and district attorneys and law enforcement. The websites are up 

and running, and in my written testimony, I’ve given you the 

website if you have extra time, which you don’t, but if you have, 

you could go on the website. 

A couple of brief comments on the legislation. First of all, three 

principles. It has to be flexible enough to allow for institutional differences. There’s a big difference between a big public university 

like a Berkeley or a UCLA and a very small college, and we need 

to take some of that into account. 

Second, existing rules and regulations within the Department of 

Education need to be better allocated and coordinated. There’s a lot 

of redundancy, duplication, and delay there. This is something I 

know the department is working on, but it is something that 

should be taken into account. 

And, third, any new laws should not undo any research-based 

best practices already implemented at campuses across the country. In other words, campuses are moving even while the legislative 

process is underway. As I’ve mentioned, we are very close to voluntary compliance with the key elements of CASA. 

One thing—last point. On the MOUs, the legislation should recognize that many large campuses have their own sworn police departments. How that works in the MOU world needs to be taken 

into account legislatively. 

Again, the importance of this hearing and the importance of the 

support shown in the Senate for this legislation cannot be overstated. On behalf of the University of California, we’re very grateful for your efforts. 

[The prepared statement of Ms. Napolitano follows:] 

PREPARED STATEMENT OF JANET NAPOLITANO

The central vehicle for the University of California’s response to preventing, responding to, and reporting incidents of sexual violence and sexual assault on our 

campuses is UC’s Task Force on Preventing and Responding to Sexual Violence and 

Sexual Assault. 

Sexual violence and sexual assault are issues of national significance. The University of California has no tolerance for sexual violence and sexual assault and the 

University has taken steps to drive cultural change around these issues. 

In June 2014, UC convened the Task Force, and charged it with identifying steps 

to improve UC’s efforts on preventing and responding to sexual violence and sexual 

assault. Because the student perspective is vital to UC’s ability to improve its efforts, students were actively involved in the process at both the undergraduate and 

graduate level. In a very short time, the Task Force developed its recommendations, 

and set timelines and a plan of action. 

The Task Force identified eight recommendations, which constitute the UC model: 

1. Establish a consistent ‘‘response team’’ model at all 10 campuses. 

15 

2. Adopt systemwide investigation and adjudication standards, including sanctions. 

3. Develop a comprehensive training and education plan for the entire UC community. 

4. Implement comprehensive communications and public awareness campaigns. 

5. Establish a confidential advocacy office on each campus that is available 24/ 

7. 

6. Create a comprehensive systemwide website for information and resources. 

7. Develop systemwide standard data collection to increase accountability and 

transparency. 

8. Ensure that respondents receive appropriate support based on their circumstances. 

The Task Force will continue to monitor progress, gather metrics, and review implementation of the recommendations. Task Force members will work with researchers to evaluate new policies and assess their effectiveness. 

Regarding S. 590, the Campus Safety and Accountability Act, or CASA, UC supports Federal legislation to help address sexual violence and sexual assault on college campuses. UC also supports efforts to encourage better collaboration and broader accountability among other partners in this endeavor, such as prosecutors and 

the courts. 

With respect to Federal legislation, UC’s overarching principles include: 

• Federal legislation must be flexible enough to allow for institutional differences, 

yet strong enough to ensure full accountability. 

• Existing rules and regulations now in place through the Higher Education Act 

must be better coordinated. 

• Any new law must not undo any research-based ‘‘best practices’’ institutions 

have already implemented. 

UC strongly supports the requirement to designate a confidential advocate to 

whom survivors can report anonymously and directly, as well as the requirement 

that each employee who has responsibility for interviewing survivors of sexual violence must have training in victim-centered, trauma-informed techniques. 

Mr. Chairman and members of the committee: Thank you for the opportunity to 

testify before the committee on the extremely important issue of sexual violence and 

sexual assault on college and university campuses. I am Janet Napolitano, President 

of the University of California. Recognized worldwide for its academic distinction, 

the University of California includes more than 238,000 students, 198,300 faculty 

and staff and 1.6 million living alumni. UC has 10 campuses at Berkeley, Davis, 

Irvine, Los Angeles, Merced, Riverside, San Diego, San Francisco, Santa Cruz and 

Santa Barbara; five medical centers, which provide broad access to specialized care, 

support clinical teaching programs, and develop new therapies; the Division of Agriculture and Natural Resources (ANR), which administers research, education and 

outreach programs throughout California; and three national laboratories UC manages for the Department of Energy. 

I have been asked to testify today on the efforts the University has undertaken 

to implement a consistent and transparent model for preventing, responding to, and 

reporting incidents of sexual violence and sexual assault on our campuses. First let 

me state that the UC system has no tolerance for sexual violence and sexual assault, and I see the issue of sexual violence and sexual assault on colleges and universities as a matter of national importance. In fact, looking at the totality of sexual 

violence, including stalking, dating violence, domestic violence, and sexual assault, 

this constitutes a serious public health issue in this country. 

Recognizing this, in June 2014, I formed a systemwide Task Force to develop recommendations for implementing strategies to support excellence in prevention, response, and reporting of sexual violence and sexual assault, based on evidence-informed solutions and approaches, and to identify steps to improve UC’s current 

processes in order to drive cultural change in sexual violence and sexual assault 

prevention. The University of California was taking steps to improve its prevention, 

response, and reporting efforts even prior to the creation of the Task Force. 

For example, in February 2014 UC significantly broadened and clarified its policy 

against sexual violence and harassment to include domestic violence, stalking and 

date rape. With this policy revision, UC also adopted an affirmative consent standard that defines consent as unambiguous, voluntary, informed and revocable, before 

California enacted its ‘‘Yes Means Yes’’ law. This policy was revised to comply with 

the requirements outlined in the Campus SAVE Act, as part of the 2013 Reauthorization of the Violence Against Women Act (VAWA) and incorporates guidance from 

16 

the Department of Education’s Office of Civil Rights April 4, 2011, Dear Colleague 

Letter. 

The UC Task Force is led by Senior Vice President and Chief Compliance and 

Audit Officer, Sheryl Vacca, who reports directly to me and to the UC Board of Regents. To be successful in a system as diverse and large as the University of California, we knew that it required a range of expertise and participation. Task Force 

members were selected based on their subject matter function and expertise. They 

include representatives from the UC Regents, survivors, students (undergraduate 

and graduate), campus police chiefs, title IX officers, student conduct officers, advocates, faculty, legal, compliance, human resources, academic affairs, and student affairs. In addition, additional subject matter work groups, student groups, affinity 

groups, and faculty research expertise are incorporated into the overall approach of 

the Task Force. 

I wanted to ensure that students are actively involved in the process at both the 

undergraduate and graduate level from multiple UC campuses. The student perspective is vital to help the University continuously review and improve its efforts. 

I gave the Task Force a very firm—and short—timeline to make significant 

changes across the system, and I believe that over the course of the last year the 

Task Force has made outstanding progress in meeting that charge. To meet this demanding timeline, the Task Force and its work groups met regularly over the summer of 2014 to develop its initial recommendations and plan of action. The campuses 

were then directed to implement the first phase of recommendations on a set 

timeline with a report back to my office and the UC Regents in January 2015. The 

remaining recommendations will be implemented no later than January 2016. 

In September 2014, the Task Force identified seven initial recommendations that 

form the foundation for the overarching UC model, which are to: 

1. Establish a consistent ‘‘response team’’ model at all 10 UC campuses. This 

model utilizes two teams with different functions. The first is a case management 

team responsible for ensuring timely, objective, and fair institutional responses for 

survivors and respondents. The second is responsible for guiding the campus in preventing and responding to sexual violence at a campus level with respect to policies, 

community relations, prevention and intervention. 

2. Adopt systemwide investigation and adjudication standards, including sanctions. 

3. Develop a comprehensive training and education plan for the UC community 

including students, staff and faculty that focuses on prevention and intervention 

and is specifically tailored to each population and includes on-going education. 

4. Implement a comprehensive communication strategy to educate the community 

and raise awareness about UC programs. The strategy leverages national, UC system, and campus communication efforts including the White House campaign, It’s 

on Us, and Yes Means Yes. 

5. Establish an independent, confidential advocacy office for sexual violence and 

sexual assault on each campus that is available to student survivors on all UC campuses. 

6. Create a comprehensive systemwide website to provide general content, information and resources to all campus populations that can also be customized for each 

campus. 

7. Develop a systemwide standard data collection system that leverages current 

information collected, which will allow the campuses and the University system to 

better track claims of sexual assault and foster accountability and transparency. 

In January 2015, the Task Force provided further detail on implementation of the 

recommendations, which builds on current strengths of the campuses and focuses 

efforts on enhancing or overhauling, as appropriate, existing efforts throughout the 

system. At that time four of the recommendations had been implemented, including 

the CARE Advocate, consistent response team models, the communication strategy, 

and the systemwide website. Additionally, the Task Force identified an eighth recommendation: the importance of ensuring that respondents receive appropriate support based on their circumstances. 

I would like to highlight the work of the Task Force and the campuses in implementing the recommendation to establish a ‘‘CARE: Advocate Office for Sexual and 

Gender-Based Violence and Sexual Misconduct’’ at every campus. These full-time 

CARE Advocates have received the training required to be confidential and privileged on-campus advocates for survivors of sexual violence and sexual assault. They 

utilize a trauma-centered approach to work with and meet students’ needs and they 

are available to UC students on a 24/7 basis. This responds to what the Task Force 

specifically heard from students—that they wanted more on-campus resources. The 

implementation of this recommendation is also in line with legislation introduced 

17 

by Senator Barbara Boxer and Representative Susan Davis, the Survivor Outreach 

and Support Campus Act (SOS Campus Act), and could serve as a model for the 

Nation. 

Last week, the UC Board of Regents received an update on the four remaining 

Task Force recommendations. These included updates on the adoption of investigation and student adjudication standards—including a consistent approach to sanctions—across the UC system. The Task Force also reported on the development of 

a common educational framework with standardized content goals, objectives, and 

definitions for mandatory annual education for faculty, staff, and students. This 

means that more than 400,000 faculty, staff, and students will receive education 

around preventing and reporting sexual violence and sexual assault. The update 

also outlined progress in providing support services for respondents—important to 

ensure that all parties receive appropriate support and information during the investigation and student adjudication process. These recommendations will be fully 

implemented by January 2016. 

The work of the Task Force is not finite and the members will continue to monitor 

progress, gather metrics, and review implementation. They will focus on evaluating 

the new changes put into place and will work with researchers and other experts 

to assess the effectiveness of the changes made across the University of California. 

We want to make sure our efforts are making a positive difference—and indeed 

changing the culture across our campuses. 

The University did not operate in a vacuum in developing and implementing these 

changes to our processes and approach to addressing sexual violence and sexual assault. Research and review of current practices across the country were of paramount importance to the work of the Task Force. There is a myriad of interconnected psychological, social, emotional, legal, and administrative issues involved 

in trying to understand how best to prevent and respond to sexual violence and sexual assault. The Task Force reviewed relevant core concepts, current UC processes, 

practices from other universities, and academic research. The Task Force consulted 

with constituents and experts both within and outside the University and evaluated 

and discussed specific issues that cross functionalities, processes, and responsibilities throughout the system. The Task Force focused on identifying practices which 

would reflect outcomes demonstrating effectiveness. 

The Task Force and its work groups reviewed sexual violence and sexual assault 

prevention practices from 115 universities across the Nation. These universities received grants from the Centers for Disease Control and Prevention (CDC) or the 

U.S. Department of Justice (DOJ) Office of Violence Against Women (OVW) to address some portion of sexual violence and sexual assault. 

Academic research linked to sources from the White House Task Force on Sexual 

Assault and Violence Prevention, as well as accepted ‘‘evidence-informed’’ research 

of best practices on policies, training and education, case management, and survivor 

support, was reviewed throughout the Task Force’s work. The Task Force also called 

on various internal and external experts to advise on and review various parts of 

the recommendations. As new studies, reports, and campus agreements from the 

U.S. Department of Education’s Office of Civil Rights (OCR) were unveiled, these too 

were reviewed and incorporated into the Task Force’s efforts. 

STATE LEGISLATIVE ACTIVITY

The Task Force continues to develop plans and strategies for implementing the 

remaining recommendations even while the legal landscape is changing based on 

legislation that has been enacted or proposed at both the Federal and State levels. 

California State law continues to evolve in this area. In January 2015, the State’s 

‘‘Yes Means Yes’’ bill became effective. The law now requires colleges and universities to adopt certain policies concerning sexual violence, domestic violence, dating 

violence, and stalking, such as an affirmative definition of consent and a preponderance of evidence standard. The bill also requires UC and other institutions to collaborate with campus and community organizations and implement comprehensive 

prevention and outreach programs. UC, having already adopted an affirmative consent policy in addition to many of the other requirements of the bill, supported the 

legislation. 

The California legislature continues to contemplate legislation addressing campus 

sexual violence, including legislation introduced this year that seeks to require colleges and universities to carry out uniform processes for disciplinary proceedings 

and consistent standards of discipline for students found responsible for sexual assault. The California legislature is also considering a bill that would require a student’s transcript to include a notation when that student has been suspended or expelled. 

18 

FEDERAL LEGISLATIVE ACTIVITY

The University of California is committed to fostering a healthy and inclusive environment where all members of the University community can work and learn together free from harassment, exploitation, intimidation, or physical harm. UC supports Federal proposals to help all institutions of higher education navigate the complex set of issues they face in preventing, responding to, and reporting incidents of 

sexual violence and sexual assault. UC also supports broader coordination and accountability among other partners in this endeavor, such as prosecutors and the 

courts. 

Before outlining my views on S. 590, the Campus Safety and Accountability Act, 

or CASA, which is the subject of this hearing, I would like to note UC’s underlying 

principles: 

• Federal legislation must be flexible enough to allow for institutional differences, 

yet strong enough to ensure full accountability. • Existing rules and regulations now in place through the Higher Education Act, 

including for example, the Clery Act and title IX, along with the Violence Against 

Women Act (VAWA) and Department of Education oversight through the Office of 

Civil Rights (OCR) must be better coordinated. The definitions, regulations, program 

guidance, timelines, and other programmatic components are not synched, resulting 

in overlapping investigations, confusing interpretations, and at times contradictory 

legal advice. The Department of Education could begin—even before Federal legislation is enacted—to streamline its internal procedures to better guide institutions toward full compliance with current laws and regulations. • Any new laws or regulations must not ‘‘undo’’ or contravene programs and policies institutions have implemented that are based on sound research and represent 

best practices for action. With MOUs, as one example, there must be flexibility for 

compliance based on what is already in place, and assurances that if Federal guidance and standards are adhered to, they will stand up against challenges from the 

courts. 

UC VIEWS ON CASA

Implementation of the Task Force recommendations I have outlined brings the 

University of California into voluntary compliance with many of the provisions of 

the Campus Accountability and Safety Act (CASA), which are aimed at enhancing 

campus resources and support services for student survivors. 

The Task Force recommendations that will be implemented at UC over the next 

months, including developing a comprehensive education and training program on 

each campus and unified investigation and student adjudication standards, build on 

that progress. UC looks forward to working with Senator McCaskill, Senator 

Gillibrand and the other co-sponsors of CASA on the provisions of the bill. 

Here are UC’s comments on the legislation as it now stands. 

Support for Survivors of Sexual Assault 

UC strongly supports CASA’s requirement for institutions of higher education to 

designate a confidential advocate that survivors can report to anonymously and directly. I am pleased that the legislation requires each employee of an institution of 

higher education who has responsibility for conducting an interview with an alleged 

victim of sexual violence to complete minimum training requirements in victim-centered, trauma-informed interview techniques. This is consistent with what we have 

implemented on our own campuses. 

However, the University does have a few comments and concerns with other aspects of this provision: 

• The level of ‘‘confidentiality’’ these advisors can maintain may be dependent on 

Federal and State law. Any legislation in this area must ensure that the ‘‘confidentiality’’ of services provided by these advisors is clearly defined by the institution 

and shared with students in plain language. • UC does not believe that institutional size should be the determinant factor for 

the number of confidential advisors on a campus. CASA would direct the Department of Education to define, through a negotiated rulemaking process, an ‘‘adequate 

number’’ of confidential advisors that an institution must appoint based on the institution’s size. While institution size is one of many factors, instead, as the UC Task 

Force recommended, the staffing level should be sufficient to provide support at any 

time of day for all survivors given the size and needs of the individual campus. 

• The University is concerned that the legislation’s requirement that the confidential advisors collect and report statistics about crimes as required by the Clery 

Act may diminish the perceived confidentiality of the advisor. I cannot stress 

enough the importance that these advisors must be confidential and independent. 

19 

While a confidential advisor is not obligated to report crimes to the institution 

under CASA, they would still have to report crime statistics as part of the Clery 

Act, which may make students feel the advocates are not confidential and independent. 

Amnesty Policy 

UC is pleased CASA’s amnesty requirement is narrow enough in scope to preserve 

an institution’s ability to protect the health and safety of its campus community. 

UC policy and California law already have existing amnesty provisions that ensure 

that a student who is a complainant or witness in an investigation of sexual violence is not subject to disciplinary sanctions for violations of student codes of conduct at or near the time of the incident. However, both California State law and 

UC policy allow the institution some flexibility for egregious violations such as an 

action that places the health or safety of any other person at risk. Federal law 

should not contradict or undo stronger provisions in State law. 

Student Disciplinary Proceedings 

As evidenced by the steps the UC Task Force is taking to develop consistent student adjudication and investigation standards, including disciplinary proceedings, I 

support CASA’s provisions related to developing common, consistent practices and 

standards in response to sexual violence across campuses. Further, I am pleased 

that the current version of CASA has clarified that the provisions apply to student 

proceedings. As previously noted in my testimony, this is another area where State 

law and UC policy are already moving in this direction and so I caution against any 

action in Federal legislation that may undo those actions we have already taken. 

Data Collection and Reporting 

CASA would require institutions to report sexual violence and sexual assault statistics—such as the number of cases investigated by the institution, the number of 

cases referred for a disciplinary hearing, the number of cases referred to law enforcement, and a description of the final sanctions imposed on sex offenses—in their 

Annual Security Reports required by the Clery Act. The University believes that the 

collection of data is vital for ensuring accountability and transparency and for evaluating our institutional efforts to prevent and respond to incidents when they occur. 

In fact, proposed State law in California would require the collection of similar statistics and that the data be posted to the University’s website. 

UC is concerned, however, that data required for collection in the Clery Act can 

lead to false or inaccurate conclusions. For example, not all of the sex offenses reported as Clery Act crimes are subject to institutional disciplinary proceedings—for 

example, if the accused offender is not a UC student. New proposed statistics could 

result in the mistaken conclusion that an institution is not appropriately addressing 

all reported student sex offenses. Consequently, we must ensure that any additional 

requirement to collect statistics on Clery Act offenses be consistent and clear so that 

the data does not result in misleading comparisons of unrelated information. Further, should State legislation pass, we may be required to collect and report different, though somewhat similar, data points in different manners which could create confusion to those individuals reviewing such information. 

Surveys 

CASA requires that the Department of Education develop, design and administer 

a standardized, online, annual survey of students regarding their experiences with 

sexual violence and harassment every 2 years. Having just conducted the largest 

university system climate survey of its kind in the Nation, I have significant concerns about the usefulness of a single survey developed for all institutions given the 

broad diversity in higher education institutions across the Nation and the student 

populations they serve. UC surveyed not only students, but also faculty and staff 

about their experiences and perceptions of the campus or workplace climate. We 

now have a rich baseline of data that campuses are analyzing to identify key areas 

of focus. Institutions should be allowed to develop and use their own climate surveys, as long as they meet criteria and standards defined by the Department of Education and are developed in consultation with stakeholders. Further, I believe that 

it is inappropriate for the legislation to place the responsibility on the university 

for ensuring that an adequate, random, and representative sample size of students 

enrolled at the institution completes the survey. This requirement could compromise 

the perceived anonymity of the survey and would be especially challenging if the 

survey would be administered by the Department of Education and not the institutions. 

20 

Memoranda of Understanding with Law Enforcement 

CASA would require institutions to enter into and review every 2 years memoranda of understanding (MOU) with ‘‘each law enforcement agency that has jurisdiction to report as a first responder to a campus of the institution’’ to clearly delineate 

responsibilities and share information about certain serious crimes that shall include, but not be limited to, sexual violence. As noted earlier in my testimony I 

strongly believe in the importance of MOUs between institutions of higher education 

and local law enforcement. However, the University is concerned that the specific 

provisions of CASA fail to recognize that many colleges and universities employ 

fully sworn peace officers. 

The University of California, like many university police departments nationwide, 

employs fully sworn law enforcement officers with full arrest powers and primary 

jurisdiction for first-response and law enforcement on their campus. According to a 

survey by the Bureau of Justice Statistics, this is especially true for large public 

colleges and universities, and in the 2011–12 school year, 68 percent of the more 

than 900 U.S. 4-year universities and colleges with 2,500 or more students employed 

sworn law enforcement officers who had full arrest powers granted by a State or 

local government. 

UC police officers are trained and certified consistent with the California Commission on Peace Officer Standards and Training requirements and they investigate incidents of sexual assault and other felony and misdemeanor crimes as both first responders and as trained and experienced criminal investigators. As with local law 

enforcement, University police follow response and investigative protocols established in the county of jurisdiction, including collaboration with the County District 

Attorney’s office, adherence to county guidelines for sexual assault evidence collection and medical examination by specially trained medical personnel, and collaboration with other law enforcement agencies as appropriate to increase the likelihood 

of bringing offenders to justice. 

CASA’s requirements for an MOU that would allow local law enforcement agencies to dictate ‘‘training and requirements for the institution on issues related to 

sexual violence’’ is unnecessary and fails to recognize the campus police department’s primary law enforcement responsibilities for the institution. At UC, our campus police departments are included in our sexual violence and sexual assault training. They receive investigation training, trauma-informed training, training from 

the California Commission on Peace Officer Standards and Training, and mandated 

training regarding sexual violence and sexual assault, which is much more than 

may be required through CASA and the training is more focused on the areas that 

need to be emphasized. 

Campus Security Authorities and Responsible Employees 

CASA would designate all responsible employees of institutions of higher education as campus security authorities (CSAs) as defined by Clery Act regulations, 

which encompasses a very large number of employees. The University is concerned 

that this broadening of the CSA definition would require significant changes in the 

way UC campuses train CSAs and could unnecessarily complicate the processing of 

Clery reports because all CSAs must report statistics for the Clery Act. Additionally, 

CASA gives the Secretary of Education, in coordination with the Attorney General, 

responsibility for determining the minimum training requirements for an institution’s ‘‘responsible employees.’’ In order to be most effective, I believe that these 

minimum training requirements should be developed in consultation with institutions and other affected stakeholders. This ensures that the training requirements 

are based on a clear understanding of institutional practices, challenges faced by 

‘‘responsible employees,’’ and the needs of the victims. 

Grants to Improve Prevention and Response to Sexual Violence and Sexual Assault 

UC welcomes the opportunity for outside funding to augment our current programmatic efforts via a new competitive grant program authorized in CASA. The 

program would allow institutions of higher education to apply for grants for the purposes of researching best practices for preventing and responding to sexual harassment, sexual assault, domestic violence and stalking on college campuses and disseminating such research with peer institutions. 

Penalties 

CASA would authorize new civil fines of not more than 1 percent of an institution’s ‘‘operating budget,’’ as defined by the Department of Education, for: 

• violations of title IX related to sexual violence; 

• failure to comply with CASA requirements for establishing MOUs with law enforcement; and 

21 

• failure to comply with CASA requirements related to confidential advisors. 

I am pleased to see that CASA place the funds into the grant program created 

in the legislation. 

Stakeholder Engagement 

UC recommends that the bill require the Department of Education to consult with 

institutions and other affected stakeholders prior to implementing any new policies 

or regulations for CASA. This is the best way to ensure that any new institutional 

requirements are based on a clear understanding of institutional practices and challenges, as well as the needs of the victims and respondents. 

ADDITIONAL RECOMMENDATIONS

The University of California is not unique in its desire to protect its community 

and improve its practices. UC has strived to implement a robust, comprehensive, 

consistent, and transparent model to address sexual violence and sexual assault 

across the University. Much of the work that has and continues to occur at UC can 

serve as a model for the Nation, though much more needs to be done by all universities. 

For example, we need more engagement on the law enforcement and legal fronts. 

At UC, our activities to prevent and respond to sexual violence and sexual assault 

are well coordinated with our local law enforcement agencies, and this is a key component of our efforts. As I already explained, UC police officers are fully sworn and 

trained law enforcement personnel who respond to and investigate all crimes, including cases of sexual violence and sexual assault. They also work with other law 

enforcement agencies as needed. However, as effective as they are, they do not prosecute crimes. 

In this spirit of partnership, back in May, California Attorney General Kamala 

Harris and I unveiled a new toolkit for California law enforcement agencies and 

higher education institutions to help them improve their coordination and collaboration in response to cases of campus sexual assault and other violent crimes. The 

template MOU is available but not required if a campus already has agreements 

in place with local law enforcement that address this type of collaboration and information sharing. It is designed so that it can be adapted to meet local needs, ensure 

consistency with existing agreements, or revisit existing agreements to reconcile 

changes in law or policy. In addition to covering various law enforcement entities, 

if needed, MOUs can be set with district attorneys, local medical facilities, or other 

community-based organizations. Using the model MOU will reflect a shared commitment among the parties to justice for survivors and accountability for perpetrators 

of sexual violence and build trust and ensure appropriate outcomes for criminal acts 

of sexual violence and sexual assault. 

As I stated earlier, much more could be done to improve the clarity and coordination of existing laws and policies. Within the Department of Education, the Clery 

Act, title IX, VAWA, and OCR investigations use different definitions, coverage, and 

reporting requirements, and there is no coordination of investigations between the 

Federal Government and individual States. For example, this can create great confusion because reporting obligations under OCR guidance is driven by who is the 

victim or perpetrator and under Clery reporting is based on where an incident occurs. Individuals may have obligation to report under one or both. In addition to 

the fact that there is significant confusion at institutions about what is ‘‘recommended’’ or ‘‘preferred,’’ there are legal and financial implications to this lack of 

regulatory coordination. 

Congress must be aware that there is substantial interplay between Federal legislation and regulations and State laws, which adds another layer of complexity to 

higher education’s efforts to address this important issue. Institutions, in following 

Federal guidance and rules and regulations, should not unintentionally run afoul of 

State legal and administrative requirements. 

I am concerned that an entire cottage industry of consultants has grown to ‘‘help’’ 

schools manage sexual violence and sexual assault. Personally, I would rather invest 

the university’s resources in education, training, and prevention programs rather 

than in untangling the web of overlapping State and Federal audits, investigations, 

and laws. 

CONCLUSION

UC holds itself to the highest standards and will continue to work to ensure that 

all of our campuses, medical centers, and labs maintain a culture of respect and inclusion. We will continue to review and improve our efforts and practices to make 

sure UC is a place where all students, faculty, and staff are safe. 

22 

Thank you very much for your time and attention to my testimony. 

Senator COLLINS. Thank you very much for your excellent testimony. 

Ms. Bolger, welcome. 

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

WASHINGTON, DC 

Ms. BOLGER. Thank you, and good morning, Chairman Collins, 

Ranking Member Murray, and members of the committee. I’m very 

grateful to be here to testify at this committee’s hearing on campus 

sexual assault. 

During my time at Amherst College, from which I graduated in 

2014, I benefited from decades of activism and legislation to promote gender equality on campus. I also inherited a history of administrative under-enforcement, in the shadow of which gender violence was rampant. Schools mistreated young survivors with impunity, and few students knew title IX was about anything more than 

women’s sports. 

On my campus alone, students who experienced sexual or dating 

violence were discouraged from reporting, denied counseling and 

academic accommodations, and pressured to take time off. When I 

reported my own abuse to my school, I was urged to drop out, go 

home, and return after my rapist had graduated. 

Nearly every day, Know Your IX hears from students who have 

had similar experiences, and the hardest hit are often the most 

marginalized—students of color, LGBTQ students, low-income students, and students with disabilities. For many survivors, these inadequate school responses have not only frustrated their efforts to 

learn and graduate, but have also come with staggering financial 

burdens. 

The costs of violence are very real. Between the expense of 

health services that colleges have refused to provide and tuition 

lost when victims feel they cannot safely remain on campus with 

their assailant without administrative support. 

These costs impact survivors’ educational opportunities while in 

school and continue long after graduation. Many survivors’ grades 

plummet when they are forced to study in libraries with their abusers or when they suffer from depression and PTSD without administrative support, often leading to diminished wages long down the 

road. This intolerable status quo demands a strong Federal response. 

Due in large part to the important recent guidance from the Department of Education’s Office for Civil Rights, schools are finally 

beginning to take their responsibilities more seriously. Accommodations like housing changes and mental health services may seem 

trivial to the outside observer. To student survivors across the 

country, they are making the difference between staying in school 

and dropping out. 

Title IX is a powerful tool to keep the one in five women who will 

suffer gender violence during college in school and learning. In reauthorizing the Higher Education Act, Congress should build on 

previous efforts in order to continue the fight to end violence and 

discrimination in higher education. 

23 

I outlined a number of solutions in my written testimony, but 

here I am going to focus on two: mandating campus transparency 

and promoting effective enforcement of title IX through finding authority and funding for the Office for Civil Rights. 

First, transparency. There are strong perverse incentives for 

schools to sweep violence under the rug. A school that provides 

clear pathways for reporting may see an increase in the number of 

people disclosing assaults and, hence, a spike in its assault numbers under the Clery Act. This could make the school seem unsafe 

compared to a school that discourages reporting. 

To counteract these potential negative reputational consequences, Congress should mandate that all schools conduct yearly campus climate surveys and publish the results. It matters how 

these surveys are instituted. Infrequent climate surveys or surveys 

where the results for each campus are not made public or released 

merely as aggregate data from numerous schools will hinder our efforts to create safer campuses. 

Each school should also be required to publish aggregate statistics on how and how promptly investigations are being handled. Together, this information will help students and families assess how 

each school handles these cases in practice and will give policymakers the data they need to continue shaping legislative solutions. 

Second, Congress should act to strengthen Federal enforcement 

efforts. The Office for Civil Rights currently relies upon the empty 

threat of revoking all financial support from a college or university 

to motivate schools to comply with the law. This is a nuclear option, too disastrous to ever be implemented. 

Providing the Office for Civil Rights with the explicit authority 

to levy fines against schools that violate the law would give the 

agency the increased leverage necessary to hold schools accountable without devastating programming and aid for students in the 

process. Crucially, this authority must be made available for the 

department to enforce all relevant civil rights laws to ensure that 

students are free from all forms of discrimination, including those 

based on race and disability. 

I also want to point out that serious efforts to combat violence 

on our campuses will require increased appropriations for the Office for Civil Rights. As more survivors come forward and the number of complaints grows dramatically, OCR remains grossly underfunded and understaffed. Increased funding would allow OCR to 

provide additional technical assistance to schools on how to comply 

with title IX, to better inform students about their rights, and to 

improve campus safety by ensuring timely investigations. 

Over the last 5 years, we’ve seen a remarkable transformation. 

Conversations about gender violence once were confined to whispers in dorm rooms. Today, survivors and advocates like me have 

the opportunity to discuss these urgent issues before this committee. 

Thank you for your time and for your commitment to building a 

future where students can learn and thrive free from violence. 

[The prepared statement of Ms. Bolger follows:] 

24 

1The White House Council on Women and Girls. (2014). ‘‘Rape and Sexual Assault: A Renewed Call to Action.’’ Accessed July 25, 2015. https://www.whitehouse.gov/sites/default/files/ 

docs/sexuallassaultlreportl121-14.pdf. 2 Ibid. 

3 Brodsky, Alexandra. (2014). ‘‘How Much Does Sexual Assault Cost College Students Every 

Year?’’ The Washington Post. Accessed July 25, 2015. https://www.washingtonpost.com/ 

posteverything/wp/2014/11/18/how-much-does-sexual-assault-cost-college-students-every-year/. 

PREPARED STATEMENT OF DANA BOLGER

SUMMARY

One in five women will experience sexual assault during her time in college, as 

will many men and gender nonconforming students.1 Queer and transgender students and students of color are particularly vulnerable to violence.2 Unfortunately, 

in the wake of this harassment and abuse, many colleges and universities deny students the support they need—and to which they are legally entitled under title IX. 

For many students, inadequate school responses have not only frustrated their efforts to learn and graduate but have also come with staggering financial burdens. 

The costs of violence are real and range from the expense of health services that 

colleges have refused to provide to the tuition and scholarships lost when victims 

feel they cannot safely remain on campus with their assailant without administrative support.3

This intolerable status quo—in which survivors of gender-based violence are still 

unable to access their right to education, over 40 years after Congress passed title 

IX—demands a strong Federal response. In reauthorizing the Higher Education Act, 

Congress should build on existing Federal protections for survivors of sexual and 

dating violence and address key remaining obstacles: lengthy Federal investigations 

that conclude with little more than a slap on the wrist; widespread opacity; and 

campus policies that discourage student survivors from reporting violence. Toward 

this end, Congress and the Administration should take several critical steps: increase funding for the Department of Education’s Office for Civil Rights (OCR); empower the OCR to issue fines against schools for civil rights violations; increase 

campus transparency by mandating colleges and universities to conduct climate surveys and issue aggregate data on disciplinary outcomes; and require campus policies, such as disciplinary amnesty policies, that create an environment in which students feel safe and empowered to report violence without fear of discrimination or 

retaliation. 

INTRODUCTION

My name is Dana Bolger and I am one of the founding co-directors of Know Your 

IX, a national student campaign against campus gender violence. I am grateful for 

the opportunity to testify at this committee’s hearing on Reauthorizing the Higher 

Education Act: Combating Campus Sexual Assault. 

I co-founded Know Your IX in 2013 to ensure that title IX’s core commitment— 

that students be able to learn free from violence—was a right not only on paper but 

in reality. What began as just a few students at their computers working to spread 

the word about title IX to our classmates has grown into an organization supporting 

a national network of students working to build safer schools. 

During my time at Amherst College, from which I graduated in 2014, I was a beneficiary of decades of mobilizing for gender equality and safety on campus. Title IX 

is a powerful law, and my generation has so many activists and policymakers to 

thank for its protections. As a student, I was also the inheritor of a history of administrative under-enforcement, in the shadow of which schools mistreated young 

survivors with impunity and few students knew title IX was about anything more 

than women’s sports. On my campus alone, students who experienced sexual or dating violence were discouraged from reporting, denied counseling and academic accommodations, and pressured to take time off. When I reported abuse to my school, 

I was told I should drop out, go home and take care of myself, and return when 

my rapist graduated. All of us were denied our right to learn free from gender violence. 

We as Amherst students were not alone. Know Your IX grew out of conversations 

with survivors across the country, from California to Maine, who had experienced 

similar gender violence and institutional mistreatment—all in violation of title IX. 

Research shows that one in five women will experience either sexual assault or attempted sexual assault during her time in college, as will many men and gender 

25 

4The White House Council on Women and Girls. (2014). ‘‘Rape and Sexual Assault: A Renewed Call to Action.’’ Accessed July 25, 2015. https://www.whitehouse.gov/sites/default/files/ 

docs/sexuallassaultlreportl1-21-14.pdf. 5 Ibid. 

6 Anderson, Michelle J. (2004). ‘‘The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault.’’ 84 B.U. L. Rev. 945. 7 Brodsky, Alexandra. (2014). ‘‘How Much Does Sexual Assault Cost College Students Every 

Year?’’ The Washington Post. Accessed July 25, 2015. https://www.washingtonpost.com/ 

posteverything/wp/2014/11/18/how-much-does-sexual-assault-cost-college-students-every-year/. 8Simon, Cari. (2014). ‘‘On Top of Everything Else, Sexual Assault Hurts the Survivors’ 

Grades.’’ The Washington Post. Accessed July 25, 2015. https://www.washingtonpost.com/ 

posteverything/wp/2014/08/06/after-a-sexual-assault-survivors-gpas-plummet-this-is-a-biggerproblem-than-you-think/. 

nonconforming students.4 We also know that LGBT students and students of color 

are particularly vulnerable to violence.5 Yet so many students—and particularly the 

most marginalized—have been dismissed by the schools to which they have turned 

for support. Many colleges and universities have denied students the protections 

they need, like Amherst did to me. Many have placed uniquely onerous challenges, 

like higher evidentiary burdens, in the way of rape victims who pursue disciplinary 

charges against their assailants, to which victims of other student conduct code violations—like theft and non-sexual physical assault—are not subject.6

For many students, these inadequate school responses have not only frustrated 

their efforts to learn and graduate but have also come with staggering financial burdens. The costs of violence are very real, between the expense of health services that 

colleges have refused to provide and tuition lost when victims feel they cannot safely 

remain on campus with their assailant without administrative support.7 Those costs 

impact survivors’ educational opportunities while in school, and continue long after 

graduation: many survivors’ grades plummet when they are forced to study in libraries with their abusers or when they suffer from depression and PTSD without 

administrative support—often leading to diminished wages down the road.8

This intolerable status quo—in which survivors of gender-based violence are still 

unable to access their right to education—demands a strong Federal response. 

THE VITAL IMPORTANCE OF TITLE IX AND THE CAMPUS SAVE ACT

Schools are finally beginning to take seriously their responsibilities to survivors 

thanks to the efforts of students and the important work of the Department of Education’s Office for Civil Rights (OCR). 

OCR’s recent clarifications of colleges and universities’ responsibilities for supporting survivors have elucidated schools’ obligations to provide accommodations, 

such as housing changes and mental health services. These accommodations may 

seem trivial to an outside observer but, to a survivor, they can make the difference 

between staying in school and dropping out. Other accommodations like an extension on a paper due the week after a student’s rape, or tutoring to help a survivor 

catch up on classes missed to avoid sitting in class with an abusive partner, can 

ensure a young person is able to learn. The title IX framework is uniquely able to 

deliver these valuable services given its focus on access to education as a matter 

of equality. 

Campus SaVE, which was passed as part of the 2013 reauthorization of the Violence Against Women Act, represents an invaluable Federal effort to provide protections for survivors. It increases transparency for students and their families by 

broadening the Clery Act reporting requirements to include incidents of domestic violence, dating violence, and stalking. It works to prevent future instances of violence 

by requiring colleges to provide primary prevention and awareness programs to new 

students and employees, as well as ongoing prevention and awareness campaigns. 

In addition, Campus SaVE, as well as title IX, requires schools to investigate reports of gender violence in a manner that is fair to both parties, requiring prompt 

and equitable procedures and an equal commitment to both students. Campus SaVE 

provides explicit protections to complaining and accused parties to ensure that officials conducting disciplinary proceedings are well-trained; that each party can have 

an advisor of their choice; and that both parties receive the results of the disciplinary proceeding in writing and have the right to appeal the decision. Know Your 

IX strongly supports these requirements, which ensure proceedings are prompt and 

equitable for both parties. 

NEXT STEPS TO PROMOTE ACCESS TO EDUCATION FREE FROM VIOLENCE

Even at this time of national scrutiny and campus reform, many survivors are 

still denied the right to learn free from violence and discrimination. In reauthorizing 

26 

9Kingkade, Tyler. (2014). ‘‘Senators Push for More Staff at Agency to Investigate Sexual 

Abuse at Colleges.’’ The Huffington Post. Accessed July 25, 2015. http://www.huffing 

tonpost.com/2014/04/04/agency-sexual-assault-investigations-mccaskill-gillibrandlnl5092748 

.html. 10 Ibid. 11 New, Jake. (2015). ‘‘Justice Delayed.’’ Inside Higher Ed. Accessed July 24, 2015. https:// 

www.insidehighered.com/news/2015/05/06/ocr-letter-says-completed-title-ix-investigations–2014 

-lasted-more-4-years. 12 United States Department of Education. (2015). Letter to Senator Barbara Boxer. Accessed 

July 24, 2015. http://www.boxer.senate.gov/press/related/150428EducationDepartmentResponse 

toLetter.pdf. 13 Rocheleau, Matt. (2015). ‘‘Most Federal Sexual Cases Against Colleges Dropped.’’ The Boston Globe. Accessed July 25, 2015. https://www.bostonglobe.com/metro/2015/04/08/most-federal-sexual-violence-complaints-against-colleges-dismissed-without-penalties-reform/tl31LxcXORr 

2Riauxh8iTO/story.html. 14See, e.g., 42 U.S.C. § 2000d et seq. (prohibiting discrimination in educational institutions on 

the basis of race); 20 U.S.C. § 1681 et seq. (prohibiting discrimination in educational institutions 

on the basis of disability); 29 U.S.C. § 794 (same). 

the Higher Education Act, Congress should build on existing Federal protections for 

survivors of gender-based violence. Congress can help end gender violence in higher 

education by addressing several key remaining obstacles: lengthy Federal investigations that conclude with little more than a slap on the wrist; widespread opacity; 

and campus policies that discourage student survivors from reporting. 

1. Increasing Funding for the Office for Civil Rights 

Unfortunately, the Office for Civil Rights, which is primarily responsible for ensuring that schools are compliant with title IX and other civil rights laws, is grossly 

underfunded and understaffed.9 Thanks to students’ efforts, sustained media attention, and increased Federal enforcement, the number of complaints filed with OCR 

has increased exponentially in recent years. As of July 22, 2015, OCR is investigating 124 institutions, a number which has more than doubled since May 2014.10

OCR’s caseload is now more than triple what it received in 1980, but its current 

staff is only half the size.11 As a result of the office’s workload and the complexity 

of these cases, complainants face long delays: the average length of an investigation 

increased from 379 to 1,469 days between 2009 and 2014.12 At the postsecondary 

level, five investigations (the University of Massachusetts-Amherst, University of 

Virginia, Michigan State University, Wittenberg University, and Arizona State University) have stretched on for longer than 3 years—nearly the length of a student 

survivor’s time in college.13

Increased funding would allow OCR to provide additional technical assistance to 

schools on how to enter into compliance with title IX; better disseminate information 

to students about their rights and how to access them; and improve campuses safety 

by ensuring timely investigations, as well as continued monitoring, guidance, and 

support to schools in the months and years following the conclusions of their investigations. 

2. Empowering the Department of Education to Issue Fines for Civil Rights Violations 

The Department of Education’s Office for Civil Rights believes it lacks the authority to levy fines against colleges and universities that violate civil rights laws like 

title IX. As a result, OCR relies upon the empty threat of revoking all financial support from a college or university (a ‘‘nuclear option’’ too disastrous to be implemented) to motivate schools to comply with the law. OCR has never once applied 

this punishment in a higher education sexual assault case, despite finding clear and 

serious violations of title IX on many campuses. Providing OCR with the explicit 

authority to levy fines would give the agency the increased leverage necessary to 

hold schools accountable, without devastating programming and aid for students in 

the process. Crucially, this authority must be available for the Department to enforce all relevant civil rights laws to ensure that students are free from all forms 

of discrimination, including those based on race and disability as well as sex.14

3. Increasing Campus Transparency 

There are strong perverse incentives for schools to sweep violence under the rug. 

For example, a school that provides clear pathways to reporting and protections for 

survivors will see an increase in the number of people disclosing assaults, and hence 

a spike in its assault numbers under the Clery Act. To untrained observers, such 

schools tend to look more ‘‘unsafe’’ than others that actively deter individuals from 

disclosing and have low numbers of reports as a result. This means that schools that 

27 

15Know Your IX. (2015). ‘‘Survey Results: Ask Survivors.’’ Accessed July 24, 2015. http:// 

knowyourix.org/ask-survivors/. 16See also Ehrenfreund, Max. (2014). ‘‘Virginia Wants to Force Universities to Report Every 

Rape to the Police. That Won’t Address U-Va.’s Real Problem.’’ The Washington Post. Accessed 

July 25, 2015. http://www.washingtonpost.com/blogs/wonkblog/wp/2014/12/03/virginiawants-to-force-universities-to-report-every-rape-to-the-police-that-wont-address-uvas-real-problem. 

Brodsky, Alexandra and Elizabeth Deutsch. (2014). ‘‘No, We Can’t Just Leave College Sexual 

Assault to the Police.’’ Politico. Accessed July 25, 2015. http://www.politico.com/magazine/ 

story/2014/12/uva-sexual-assault-campus-113294.html. 

are more proactively addressing violence may suffer negative reputational costs as 

a result of following the law. 

To counteract the potential negative reputational consequences of encouraging 

survivors to report, Congress should mandate that schools conduct campus climate 

surveys and publish their results publicly. This step would provide invaluable information to students and their families—including prospective students—and would 

increase incentives for schools to appropriately address violence. Schools should also 

be required to publish aggregate statistics on how investigations are being handled, 

which would provide greater insight into whether or not disciplinary proceedings are 

being handled promptly and equitably. This will help ensure that students, parents, 

and policymakers can evaluate and compare how each school responds to complaints 

of gender violence in practice, not just on paper. 

4. Preserving Campus Options 

I have much hope for the future of title IX and our ability to foster safe and equitable educational communities. Nonetheless, I do see one troubling pattern worth 

discussion here: Many State and Federal lawmakers, surely with the best of intentions, have suggested that schools should hand over all sexual assault cases to the 

police—even when the survivor has asked that they not do so. While intuitively appealing to many, these ‘‘mandatory referral’’ laws, as they are known, would actually decrease reporting rates and deprive survivors of the on-campus support they 

so desperately need. 

In a survey that Know Your IX conducted with the National Alliance to End Sexual Violence, 88 percent of victims said they believed mandatory referral laws would 

lead to fewer survivors reporting to either schools or the police.15 Some respondents 

explained that they sought accommodations and support from their schools but did 

not want to go through an arduous trial or did not yet feel prepared to speak to 

the police. Others stressed the importance of respecting victims’ agency at a time 

when many feel powerless. One survivor wrote: 

‘‘When I reported to campus officials, I was not ready to press charges and 

if I had been forced to report to the police I wouldn’t have been able to do it. 

I wouldn’t have told anyone because I would have felt like I had even less control of myself. Having the decision be my own and on my own time make it a 

lot safer and healthier.’’ 

If fewer survivors report to their schools, fewer will receive access to the accommodations and protections title IX so crucially provides. Schools will have fewer opportunities to hold perpetrators of violence responsible, leading to less—not more— 

accountability for assailants. 

Ending sexual violence is a complicated task, and often the most intuitively appealing ‘‘solutions’’ are not really solutions at all. We must take the lead from survivors—9 out of 10 of whom tell us that mandatory referral laws will only promote 

silence and discourage victims from seeking the school support they need.16

5. Promoting Survivor Reporting through Smart Campus Policies 

Every campus reporting process will be slightly different, reflecting the unique 

culture and structure of the school. Congress has an important role to play in ensuring that every college and university adopts key policies essential to ensuring survivors can turn to their school when in need of help. 

A. Disciplinary Amnesty 

Victims and bystanders are often under the influence of alcohol and other drugs 

at the time of an assault. Schools receiving Federal funding should be required to 

establish a campus policy that grants amnesty for any student who in good faith 

reports sexual violence witnessed or experienced while under the influence of alcohol 

or other drugs. 

28 

17Kingkade, Tyler. (2015). ‘‘LGBT Students Face More Sexual Harassment and Assault and 

More Trouble Reporting It.’’ The Huffington Post. Accessed July 25, 2015. http:// 

www.huffingtonpost.com/entry/lgbt-students-sexual-assaultl55a332dfe4b0ecec71bc5e6a. 18 Ibid. 

B. Protections for Queer and Transgender Student Survivors 

Queer and transgender students are disproportionately vulnerable to sexual and 

gender-based violence.17 Yet many schools fail to recognize these students as victims 

or provide necessary support. Know Your IX has heard too many stories from students whose schools did not understand how a man could be raped or how a queer 

woman could abuse her girlfriend. We have heard too many stories from trans survivors whose administrations lacked the training and sensitivity to respond appropriately to their reports of violence. It is unsurprising, then, that many LGBT students decide not to report to their schools at all.18

We cannot abandon these students. Title IX’s protections, which cover all students, mean nothing if they are only available in practice for cis, straight women. 

Congress and the Administration must ensure that schools’ policies and practices 

explicitly apply to queer and transgender students and prohibit a full range of forms 

of sexual and gender-based violence, and that administrators tasked with supporting students have been adequately trained to assist all students, regardless of 

sexual orientation and gender identity. 

CONCLUSION

Over the last 5 years, we have seen a remarkable transformation. Conversations 

about campus gender violence once were confined to whispers in corners of campus; 

today survivors and advocates like me have the opportunity to discuss these urgent 

issues before this committee. We must continue to meet these serious conversations 

with serious action. Thank you for your time and your commitment to building a 

future where students can learn and thrive free from violence. 

Senator COLLINS. Thank you so much, Ms. Bolger, for your testimony. It’s so important that we put a human face on this problem, 

as I told you before the hearing, and that is what you have done 

today. I so admire that you turned your horrendous experience into 

advocacy so that others don’t go through what you did. Thank you 

for being here today. It is appreciated. 

Ms. Stafford. 

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

Ms. STAFFORD. Good morning, Chairman Collins, Ranking Member Murray, and members of the committee. I appreciate the opportunity to join you to briefly discuss the requirements of the Clery 

Act, including the newest requirements added by VAWA amendments in addition to what institutions are doing to make campuses 

safer. 

I have a unique perspective on all of this as I had the opportunity at the George Washington University to serve as the chief 

of police, where I founded and supervised a sexual assault response 

team for almost 20 years, and it is not a common model for a chief 

of police to also supervise a sexual assault advocacy group. This 

model worked at GW because of my passion for wanting to ensure 

survivors of sexual assault were not re-victimized by our response, 

processes, or actions in dealing with what I consider to be one of 

the most personal violations a human being can suffer. 

We dealt with over 250 cases during my tenure at GW. That 

said, I know firsthand that campuses expend significant effort and 

resources in bolstering campus safety, ranging from implementing 

29 

physical security systems to developing operational policies and 

procedures to plan for emergencies and crisis scenarios and providing a myriad of educational programs to enhance knowledge and 

awareness regarding crimes on campus. 

Campuses form committees, teams, task forces, and town-gown 

organizations to resolve pressing issues related to campus safety, 

and they consider best practices and research in formulating effective prevention and response strategies. 

A cornerstone of campus safety efforts involves compliance with 

the Clery Act. The Clery Act requires all eligible institutions to 

comply with a constellation of annual, ongoing, and immediate requirements. Some of these requirements include identifying all 

campus security authorities, or what I like to call mandatory reporters of crime, and developing a system to gather crime statistics 

from all of those people on campus identified as CSAs. 

This is a significant task. For example, a small residential college 

would typically have between 300 and 500 CSAs who have to be 

trained in their responsibilities as mandatory reporters of the 

crimes that they become aware of. 

Publishing and distributing an annual security report. These reports must currently include 111 separate policy statement disclosures and 3 years worth of crime statistics for the 15 Clery reportable crimes. 

Campuses have to quickly alert the campus community via a 

timely warning notice of reported Clery crimes that may pose a serious or continuing threat to the community, and they have to immediately alert the campus community via an emergency notification of any reported or potential incidents that pose an immediate 

threat to the health and safety of the community. They have to create and maintain and make available a written daily crime log, just 

to name a few of the requirements. 

The Department of Education has published a 300-page handbook as a resource for institutions to comply with this incredibly 

complex law. The handbook contains many rules and many exceptions to those rules. To Clery compliance officers, the handbook 

feels as clear as the U.S. tax code. 

In 2013, VAWA amendments to the Clery Act added 47 new policy statement disclosures to the law—there were previously 64 disclosures—effectively doubling its requirements. The new policy 

statements largely require institutions to develop, implement, and 

disclose very specific procedures the institution will follow upon receipt of a report of any VAWA offense. 

VAWA also includes the new requirement to report crime statistics for domestic violence, dating violence, and stalking incidents 

and includes two new categories of hate crime reporting. Information concerning a victim’s rights and options must also be provided 

in writing to students and employees reporting VAWA crimes. 

A new addition per VAWA and, in my opinion, the most important one is the mandate for institutions to provide education efforts 

around prevention and awareness of sexual assault, domestic violence, dating violence, and stalking. These programs for current 

and new students and employees must address a significant 

amount of required content, i.e., the educational programs are now 

prescriptive, which I elaborate on in my written testimony. 

30 

Title IX’s indelible influence can be seen throughout VAWA 

amendments. Many of the requirements under Clery have been 

adapted, often wholesale, from the pre-existing title IX sub-regulatory guidance and elevated to VAWA’s implementing regulations, 

such that they carry the force of law under the Clery Act. Specific 

examples of overlap between the laws may also be found in my 

written testimony. Campuses earnestly want to comply with the 

Clery Act, and many see it as a basement, not a ceiling, of campus 

safety efforts. 

Many of the new requirements proposed by CASA are laudable 

and have potential to enhance existing safety on campus. Each of 

these proposals will require a thoughtful consideration of implications, intended or otherwise, of adoption, especially from a practitioner’s perspective. 

As a professional association representing Clery compliance officers and professionals, NACCOP welcomes the opportunity to be 

involved in any efforts to help consider the practical implications 

of the proposed new legislation and any of the Department of Education’s efforts to provide much-needed guidance and resources to 

institutions as they endeavor to comply with this law. 

I sincerely appreciate the opportunity to address the committee 

today, and I welcome any questions you may have of me. 

[The prepared statement of Ms. Stafford follows:] 

PREPARED STATEMENT OF DOLORES A. STAFFORD

SUMMARY

A cornerstone of efforts to promote campus safety involves compliance with the 

Federal Clery Act, which requires all postsecondary institutions that participate in 

Federal student aid programs to comply with a constellation of annual, ongoing, and 

immediate requirements. The 2013 VAWA Amendments to the Clery Act added 47 

new policy statement disclosures to the law, effectively doubling its requirements. 

Major additions of VAWA include: new reporting requirements for crimes of Domestic Violence, Dating Violence and Stalking, as well as unfounded reports; mandatory 

education programs for students and employees pertaining to Domestic Violence, 

Dating Violence, Sexual Assault and Stalking (DVDVSAS); and required disclosures 

and implementation of specific response and disciplinary procedures the institution 

will follow when a report of DVDVSAS is made to the institution. Many of the new 

requirements under Clery have been adapted, often wholesale, from pre-existing 

title IX sub-regulatory guidance and elevated to VAWA’s implementing regulations 

such that they carry the force of law under the Clery Act. 

The new and existing requirements of the Clery Act are multifaceted and extremely nuanced. While there are a plethora of unresolved questions that stem from 

the Clery Act’s final implementing regulations as it pertains to the new VAWA requirements, there are lingering challenges that continue to hamper efforts to stay 

in compliance with the Clery Act. For example, the Department’s revelation in the 

2011 handbook that the Hierarchy Rule does not apply to the Daily Crime Log, or 

the 2012 email sent by the Help Desk regarding what ‘‘frequently used by students’’ 

means, are examples of latent attempts to ‘‘clarify’’ long-standing expectations for 

which campuses have never before been apprised until 13 years after these requirements went into effect. Campuses are also grappling with contradictions between 

the Clery Compliance Division’s program review results and guidance being provided by the Department through its Handbook for Campus Safety and Security Reporting and individualized responses to Help Desk inquiries. 

Given VAWA’s prescriptive stance regarding the policies, procedures and practices 

campuses must employ in response to issues of DVDVSAS, campuses are going to 

need significantly more guidance and resources than what has been provided in the 

past. Guidance and resources should be clear, timely and afford institutions the 

flexibility to meet compliance requirements within a framework that accounts for 

the diversity of institutions, as they differ in size, mission, organization, governance, 

residential status, resources, and police/public safety capacities. 

31 

Campuses earnestly want to comply with the Clery Act, and many see it as a 

basement—not a ceiling—of campus safety efforts. Many of the new requirements 

proposed by the Campus Accountability and Safety Act are laudable and have great 

potential to enhance existing safety on campus. Each of these proposals will require 

thoughtful consideration of the implications, intended and otherwise, of adoption, especially from a practitioner’s perspective. As a professional association representing 

Clery compliance officer and professionals, the National Association of Clery Compliance Officers and Professionals (NACCOP) welcomes the opportunity to be involved 

in any efforts that help consider the practical implications of proposed or new legislation and any of the Department of Education’s efforts to provide much-needed 

guidance and resources to institutions as they endeavor to comply with the law. 

Good morning Chairman Alexander, Ranking Member Murray, and members of 

the committee. I appreciate the opportunity to join you to discuss the requirements 

of the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (a.k.a. the ‘‘Clery Act’’), including the newest requirements added by section 

304 of the Violence Against Women Reauthorization Act of 2013 (VAWA Amendments) and the final implementing regulations published by the Department of Education on October 20, 2014. I also appreciate the chance to highlight some of the 

existing challenges faced by postsecondary institutions as they endeavor to get into 

and maintain compliance with the ever-evolving Clery Act. 

My remarks today are informed by my 26-year career in the law enforcement and 

security industries, of which the last 18 years were spent as Chief of Police at The 

George Washington University until my retirement in 2010. Immediately prior to 

my service at GW, I served as the assistant chief of police at Butler University. At 

both Butler and GW, I created, coordinated and supervised the Sexual Assault Response Team, which provided advocacy and support services for victims of sexual 

violence. In these capacities, I oversaw approximately 250 cases of sexual misconduct, from both an investigatory perspective as well as serving as an advocate 

and overseeing advocates who assisted victims. Providing comprehensive, intentional, effective and empowering response to sexual assault victims on college and 

university campuses has been a pillar of my campus law enforcement career. Since 

my retirement in 2010, I have continued to develop a professional consulting firm 

(through which I have provided Clery Act consulting services since 1997). Additionally, I serve as the founding executive director of the National Association of Clery 

Compliance Officers and Professionals (NACCOP). NACCOP is a professional association with 564 active institutional and general members that was launched in 

2013 to help officials charged with Clery compliance efforts collaborate with each 

other, share resources and best practices, and participate in professional development opportunities pertaining to Clery Act compliance. I have taught more than 300 

classes related to the Clery Act and I have assisted more than 250 client institutions 

in enhancing their overall Clery Act compliance programs through reviews of Annual Security and Fire Safety Reports and by conducting independent audits. 

Campuses expend significant effort and resources in bolstering campus safety. 

These efforts range from implementation of physical safety apparatuses (such as access control systems, intrusion detection systems, video surveillance cameras, and 

fire safety alarm systems) to other technological solutions such as social media, incident reporting platforms, public safety information systems, computerized automated dispatch systems, etc. Institutions consider principles of Crime Prevention 

Through Environmental Design (CPTED) during campus construction and renovation projects, and they develop operational policies, procedures and contingencies to 

plan for effective emergency and crisis scenarios. They train essential response personnel and members of the larger college or university community on applicable procedures and protocols for emergency situations. Institutions invest significant fiscal 

resources into hiring personnel across the institution to improve campus safety— 

from campus law enforcement/public safety personnel, to other individuals charged 

with providing education, advocacy and support for a wide range of safety-related 

issues (such as alcohol and drug abuse prevention, sexual assault prevention, etc.). 

Many campuses have robust student conduct and employee discipline programs with 

professionals charged with overseeing these functions in order to provide swift, effective and fair institutional responses to misconduct that may undermine the safety 

or security of the campus. Institutions may conduct pre-employment or pre-enrollment screenings as part of the application processes for prospective students and 

employees in order to determine whether there is a criminal history of which the 

institution should be aware. Threat assessment and management teams as well as 

other behavioral intervention groups for students, faculty and staff have become an 

industry standard for responding to concerning behavior. Campuses form commitVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
32 

tees, teams, task forces, and town-gown organizations to resolve pressing issues related to campus safety and they consider best practices and research in formulating 

effective prevention and response strategies. Campus police and public safety units 

also engage in a variety of strategic and tactical approaches to preventing and solving campus crime by incorporating community-oriented policing strategies, 

leveraging crime analytics and working collaboratively with other law enforcement 

agencies in the jurisdiction to address important public safety issues. 

A cornerstone of contemporary safety and security efforts involves compliance 

with the Federal Clery Act. At its core, the Clery Act is a consumer right-to-know 

law first passed by Congress in 1990. Since its inception, the law has been amended 

six times, most recently by the VAWA Amendments. Three months prior to publication of the VAWA Amendment’s implementing regulations, and 11 months prior to 

those regulations going into effect, a seventh amendment was proposed in the Senate and was reintroduced during the 114th Congress in February. 

As you know, the purpose of the law is to provide prospective students and employees, as well as current members of the campus community, with timely, accurate and complete information about crime and the safety and security of the campus so that these populations can make informed decisions to keep themselves safe. 

To fulfill these goals, the Clery Act requires all postsecondary institutions that participate in title IV student financial assistance programs under the Higher Education Act of 1965, as amended (HEA), to comply with a constellation of annual, ongoing, and immediate requirements. Specifically, institutions must: 

• Assess and categorize the buildings and properties associated with an 

institution’s campus (or campuses) as well as the public property within or 

immediately adjacent to the campus in order to determine how these locations correspond to Clery Act-specific geographic categories. The Clery Act 

requires institutions to disclose statistics for select crimes that occur: on campus, 

on public property within or immediately adjacent to the campus, and in or on noncampus buildings or property that the institution (or an officially recognized student 

organization) owns or controls. 

• Annually identify, notify, train, and collect crime reports from Campus 

Security Authorities (CSAs). CSAs are individuals or organizations associated 

with the institution that are considered by the Clery Act to be a person or entity 

likely to receive crime reports. According to ED, Campus Security Authorities include: all members of the campus police/security department of an institution; other 

individuals with responsibility for campus security (such as access monitors); officials of the institution with significant responsibility for student and campus activities (such as a Dean of Students, residential life personnel, athletic coaches/administrators, or a title IX coordinator), and; any other individual or office an institution 

identifies in its Annual Security Report as a reporting entity of the institution. 

• Record, collect, classify, count and disclose all reports of Clery Act 

crimes occurring on or within the institution’s Clery Geography which are 

made to Campus Security Authorities or local law enforcement agencies. 

Campuses are required to annually request reports of alleged criminal incidents 

from all CSAs. Crime statistics must also be requested from all local law enforcement agencies that have jurisdiction on or within any of the institution’s Clery Geography, including both domestic and foreign locations owned or controlled by the 

institution. Crimes must be disclosed for all of the following 15 Clery Act crimes: 

• Murder and Nonnegligent Manslaughter; 

• Negligent Manslaughter; 

• Sex Offenses (Rape and Fondling); 

• Non-forcible Sex Offenses (Incest & Statutory Rape); 

• Robbery; 

• Aggravated Assault; 

• Burglary; 

• Motor Vehicle Theft; 

• Arson; 

• Arrests for liquor, drug and weapons law violations; 

• Referrals for disciplinary action for liquor, drug and weapons law violations; 

• Dating Violence; 

• Domestic Violence; 

• Stalking; and 

• Hate Crimes. 

The most recent 3 calendar years’ worth of crime statistics must disclosed annually to the Department of Education (ED) via the online Campus Safety and Security Survey and to the campus community in the Annual Security Report. 

33 

• Publish and distribute an Annual Security Report. The Annual Security 

Report (ASR) must contain 111 separate policy statement disclosures (including 3 

years’ worth of crime statistics separated by crime type, year, and location). If a 

campus does not have any on-campus student housing facilities, only 92 disclosures 

are required. It is noteworthy that the VAWA Amendments to the Clery Act added 

an additional 47 policy statement disclosures to the ASR, nearly doubling the 

amount of required disclosures. All of this content must be contained within the report’s front and back covers. Institutions must make the report available to all currently enrolled students and all employees by October 1 each year in addition to the 

ongoing requirement of providing a notice of the report’s availability to all current 

and prospective students and employees. 

• Alert the campus community of recent, current or impending incidents 

that may adversely impact the well-being of students and employees. Specifically, institutions are required to assess crime reports and issue a Timely Warning Notification for any Clery Act crime occurring on or within the institution’s 

Clery Geography that is considered by the institution to represent a serious or continuing threat to students and employees. Additionally, institutions must issue an 

emergency (immediate) notification upon the confirmation of a significant emergency 

or dangerous situation involving an immediate threat to the health or safety of students or employees occurring on the campus. Institutions must describe their policies and procedures for issuing these alerts in the Annual Security Report and must 

follow these policies whenever circumstances warrant. 

• Create, maintain and make available a written Daily Crime Log (if the 

institution has a campus police or security department). The most recent 60 days 

of the log must be immediately available to anyone requesting access, and the last 

7 years of the log must be made available to the consumer within 2 business days 

of the complete log’s request. The log is intended to be a more comprehensive, specific and timely disclosure of all criminal incidents reported to the campus police 

or security department that occur on or within the institution’s Clery Geography. 

The log is not limited to the 15 Clery Act crimes for which the institution must also 

disclose crime statistics, and the log includes all crimes that are reported to the 

campus police or security department which occurred on or within the institution’s 

Clery Geography, which includes the campus agency’s expanded patrol jurisdiction, 

if one exists. An entry must be made to the log within 2 business days of receiving 

the information, and institutions are also required to update, within 2 business 

days, any dispositions of log entries recorded during the prior 60 days. 

• Develop, disclose, and annually test the institution’s emergency response and evacuation procedures. A test is defined as regularly scheduled 

drills, exercises, and appropriate follow-through activities, designed for assessment 

and evaluation of emergency plans and capabilities. In conjunction with the annual 

test, the institution must provide the campus community with a summary of the 

drill and exercise that comprised the test as well as a summary of the institution’s 

emergency response and evacuation procedures. 

• Provide security awareness programs to students and employees. These 

programs must address security procedures and practices and encourage the campus 

community to look out for the safety of themselves and each other, and must be described by type and frequency in the Annual Security Report. Campuses are also 

required to describe (in the Annual Security Report) any crime prevention programs 

offered to students and employees. 

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

• Collect and disclose statistics of reported fires occurring in on-campus 

student housing facilities. Statistics for each on-campus student housing facility 

must be published for the most recent 3 calendar years. Statistics must include the 

number of fires in each facility, the cause of each fire, the number of persons with 

fire-related injuries, the number of fire-related deaths, and the value of any property damage caused by each fire. 

• Publish and distribute an Annual Fire Safety Report. The report must include the institution’s current policies, procedures, practices and rules pertaining to 

fire safety in residential facilities, as well as the required fire statistics. 

• Create, maintain and make available a written Fire Log. The most recent 

60 days of the log must be immediately available to anyone requesting access, and 

the last 7 years of the log must be made available to the consumer within 2 business days of the complete log’s request. The Fire Log records, by the date the fire 

was reported to an official, all fires in student housing facilities. The log must be 

immediately available to the consumer and must include the nature, date and time 

the fire occurred; the date reported and general location of each fire; and must be 

34 

made available during normal business hours. An entry must be made to the log 

(or an addition to a prior entry) within 2 business days of receiving the information. 

• Develop, publicize and initiate required notification procedures pertaining to reports of missing students who reside in on-campus student 

housing facilities. To meet these requirements, institutions must issue a policy 

statement in the Annual Security Report that addresses missing student notification 

for residential students and includes procedures the institution will follow if residential students are determined to be missing for 24 hours. At its core, the missing 

student procedures mandate that if a residential student is determined (by the campus police/public safety or local law enforcement) to have been missing for 24 hours, 

the campus police/security department has only 24 hours after receiving the report 

in which to initiate specific notification procedures, including notification of the local 

law enforcement agency that has jurisdiction. In order to facilitate this process, institutions must provide each residential student the opportunity to identify one or 

more confidential missing person contact(s) on an annual basis. 

The 2013 VAWA Amendments to the Clery Act added the following requirements 

for all institutions: 

• New crime reporting requirements for Domestic Violence, Dating Violence and Stalking and expanded hate crime reporting requirements. Specifically, institutions are now required to collect and disclose the number of Domestic Violence, Dating Violence and Stalking incidents reported to CSAs or local law 

enforcement agencies in the annual crime statistics. Additionally, ‘‘gender identity’’ 

was added as a category of bias for which hate crimes must now be reported, and 

the existing category of ‘‘ethnicity/national origin’’ was split into its component parts 

of ‘‘ethnicity’’ and ‘‘national origin,’’ bring the total number of bias categories from 

6 to 8. 

• New reporting requirements regarding the number of Clery Act crime 

reports withheld from disclosure in the annual crime statistics. All reported 

crimes made in good faith must be included, but on the rare occasion that sworn 

law enforcement determines a crime report to be unfounded (that is, false or baseless), institutions must now disclose the number of unfounded reports for all 15 

Clery Act crime categories in the annual crime statistics. 

• Provide (and describe in the ASR) primary prevention and awareness 

programs made available to all incoming students and new employees 

which are designed to prevent incidents of Domestic Violence, Dating Violence, Sexual Assault and Stalking from occurring. These programs must be: 

culturally relevant; inclusive of diverse communities and identities; sustainable; responsive to community needs; informed by research or assessed for value, effectiveness, or outcome, and; consider environmental risk and protective factors as they 

occur on the individual, relationship, institutional, community, and societal levels. 

Primary prevention and awareness programs must address a myriad of required 

content areas including: Federal and jurisdictional definitions of Domestic Violence, 

Dating Violence, Sexual Assault, Stalking and consent; a statement that Domestic 

Violence, Dating Violence, Sexual Assault and Stalking is prohibited by the institution; a description of safe and positive options for bystander intervention; information on risk reduction; and the procedures the institution will follow, including procedures for disciplinary action, when a crime of Domestic Violence, Dating Violence, 

Sexual Assault or Stalking is reported to the institution. 

• Provide (and describe in the ASR) ongoing prevention and awareness 

campaigns made available to all current students and employees which are 

designed to prevent incidents of Domestic Violence, Dating Violence, Sexual Assault and Stalking from occurring. These programs must share the same 

characteristics and address the same content areas as those primary prevention and 

awareness programs provided to incoming students and new employees. However, 

these programs must be sustained over time and have a more specific focus of enabling audiences to understand topics related to these crimes and to provide skills 

for addressing them. 

• Develop, implement and describe in the ASR procedures the institution 

will follow upon receipt of a report of Domestic Violence, Dating Violence, 

Sexual Assault and Stalking. These procedures must include: the procedures victims should follow when one of these crimes occurs (including information regarding 

evidence preservation, reporting options, and rights and responsibilities pertaining 

to civil or institutional protection, restraining or ‘‘no contact’’ orders issued by the 

institution or any lawful authority); information regarding how the institution will 

protect the confidentiality of victims and other necessary parties; a statement that 

the institution will provide written notification to students and employees about existing counseling, health, mental health, victim advocacy, legal assistance, visa and 

35 

immigration assistance, student financial aid, and other services available for victims, both within the institution and in the community; a statement that the institution will provide written notification to victims about options for, available assistance in, and how to request changes to academic, living, transportation, and working situations or protective measures (if requested by the victim and reasonably 

available, regardless of whether the victim reports the crime to law enforcement), 

and; an explanation of the procedures for institutional disciplinary action that may 

be used in cases of alleged Domestic Violence, Dating Violence, Sexual Assault or 

Stalking. 

• Provide students and employees reporting victimization related to Domestic Violence, Dating Violence, Sexual Assault and Stalking with a written notification of rights and options. The information contained in this notification must include the same information required to be published in the ASR pertaining to the procedures the institution will follow upon receipt of a report of Domestic Violence, Dating Violence, Sexual Assault and Stalking. 

• Develop, implement and describe in the ASR procedures for institutional disciplinary action in cases of Domestic Violence, Dating Violence, 

Sexual Assault and Stalking. Such procedures must include any procedures that 

could be used in student or employee disciplinary action in cases of Domestic Violence, Dating Violence, Sexual Assault or Stalking and must share common characteristics and features. Namely, these procedures must: 

• provide for a prompt, fair and impartial process from the initial investigation 

to the final result; 

• be conducted by officials who, at a minimum, receive annual training on the 

issues related to Dating Violence, Domestic Violence, Sexual Assault, and 

Stalking and on how to conduct an investigation and hearing process that 

protects the safety of victims and promotes accountability; 

• be completed in a reasonably prompt timeframe as designated by the institution’s policy; 

• be conducted by officials who do not have a conflict of interest or bias for or 

against either party; 

• be conducted in a manner consistent with the institution’s policy and transparent to the accuser and the accused; 

• include timely notice of meetings at which either party (or both) may be 

present; and 

• provide timely and equal access to both parties and appropriate officials to 

any information that will be used during informal and formal disciplinary 

meetings and hearings. 

Furthermore, the Clery Act requires parity of treatment between the accuser 

and accused in disciplinary proceedings such that the institution must: 

• provide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice (without limiting the choice of advisor or presence for either the accuser or the accused in any meeting or institutional disciplinary 

proceeding); and 

• require simultaneous notification, in writing, to both the accuser and the accused, of the result of any institutional disciplinary proceeding, the institution’s procedures for either party to appeal the result of the institutional disciplinary proceeding, if such procedures are available, any change to the result; and when such results become final. 

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

• the steps, anticipated timelines, and decisionmaking process for each type of 

disciplinary proceeding; 

• how to file a disciplinary complaint; and 

• how the institution determines which type of proceeding to use based on the 

circumstances of an allegation of dating violence, domestic violence, sexual assault, or stalking. 

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

measures that the institution may offer to the victim following an allegation of dating violence, domestic violence, sexual assault, or stalking. 

36 

With the passage of the VAWA Amendments, the Clery Act and title IX are forever linked. Many of the VAWA Amendments reflect the spirit, and in some cases 

the letter, of sub-regulatory guidance provided by the Department of Education’s Office of Civil Rights (OCR) as it pertains to compliance with Title IX of the Education 

Amendments of 1972 (‘‘Title IX’’). For example, title IX prohibits sex-based discrimination, including sexual harassment. Sexual harassment includes sexual violence, 

which has been defined by OCR as, ‘‘physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use 

of drugs or alcohol.’’ The Clery Act requires institutions to adopt certain procedures 

in response to reports of sexual assault which, in this context, is effectively synonymous with sexual violence. Many of the procedures enumerated in OCR guidance 

documents are now the law of the land via the VAWA Amendments to the Clery 

Act. The VAWA Amendments also require institutions to prohibit, report statistics, 

and implement appropriate response procedures for the additional crimes of Domestic Violence, Dating Violence and Stalking which are most often perpetrated on the 

basis of a victim’s sex, therefore bringing the requirements of title IX to a vast majority of these cases. 

Both laws also require institutions to inform victims of their option to report the 

incident to law enforcement and be assured certain rights and protections independent of whether the victim chooses to report the crime to police. Furthermore, 

the Clery Act and title IX each identify categories of personnel that have mandatory 

disclosure requirements when they learn of prohibited conduct (CSAs for the Clery 

Act and Responsible Employees for title IX). When responsible employees are notified of sex-based misconduct, they have a duty to report that information to the title 

IX coordinator who, consequently, is a campus security authority for Clery Act purposes and must, in turn, report the crime to the reporting structure established by 

the institution for potential inclusion in the annual crime statistics as well as an 

assessment of the need to issue a timely warning notification on the basis of the 

crime report. The title IX coordinator must also take appropriate interim measures, 

including the provision of accommodations pertaining to the victim’s academic, residential, transportation or working situations and other appropriate protective measures, which the Clery Act also compels be provided if requested by the victim and 

such accommodations and protective measures are reasonably available. Victims 

must also be apprised of their rights, options, and available support services under 

both laws when reporting victimization to the institution regardless of whether the 

victim chooses to report the crime to law enforcement. 

Although ED is careful to note when discussing the VAWA Amendments that,

‘‘Nothing in the Clery Act, as amended by VAWA, alters or changes an institution’s 

obligations or duties under title IX as interpreted by OCR,’’ title IX’s indelible influence can be seen throughout the VAWA Amendments. Many of the new requirements under Clery have been adapted, often wholesale, from pre-existing title IX 

sub-regulatory guidance and elevated to VAWA’s implementing regulations such 

that they carry the force of law under the Clery Act. This is perhaps most apparent 

when considering the new procedures institutions must implement as it relates to 

managing allegations of Domestic Violence, Dating Violence, Sexual Assault and 

Stalking. For example, personnel involved in the investigation or resolution of sexual assault/sexual violence complaints are expected to have sufficient training to 

perform these functions, and decisionmakers may not have a conflict of interest that 

would undermine their impartiality. Both laws compel institutions to adopt equitable resolution procedures that, among other things, establish reasonably prompt 

timeframes for the major steps of the procedures and that provide each party with 

an equal opportunity to: 

• participate in the proceedings; 

• have timely access to information that will be used during the proceedings; 

• have the same opportunities to be accompanied by an advisor; 

• receive contemporaneous written notification of the outcome of the proceedings; 

• have the same opportunity to appeal the results of the proceedings, if any appeal option exists; and 

• be apprised of the final results of any appeal. 

These examples are not exhaustive but rather a sampling of how inextricably 

linked title IX and the Clery Act have become with the passage of the VAWA 

Amendments. 

CONTEMPORARY COMPLIANCE CHALLENGES

As you can see, each of the existing requirements of the Clery Act are multifaceted and extremely nuanced. The Handbook for Campus Safety and Security Reporting, most recently published in 2011, provides more than 300 pages of guidance 

37 

1Since institutions are only required to maintain Clery Act records for a period of 7 years, 

it would seem reasonable for ED to adopt a standard equal to or less than usage of the same 

location 7 years apart. 

to institutions as they attempt to comply with the state of the law prior to the enactment of the VAWA Amendments. While the guidance is necessary, and welcome, 

it is far from sufficient. The handbook cannot be read as a ‘‘how-to’’ manual and 

instead serves as a reference guide for practitioners that seek to understand basic 

requirements and nuances of the law as interpreted by ED. Campuses have few 

other opportunities to enhance knowledge related to the Clery Act, as the Department does not provide sub-regulatory guidance (such as Dear Colleague Letters or 

‘‘Questions and Answers’’) with the frequency or specificity as it provides for other 

laws under its jurisdiction, such as title IX. 

Although the Department has sub-contracted with Westat to operate its Campus 

Safety & Security Help Desk, guidance provided by this entity is non-binding and, 

at times, appears to be inconsistent with the findings of the Department of Education’s Clery Act Compliance Division when that division conducts Clery Act program reviews. For example, an institution recently wrote the Help Desk to inquire 

whether or not to disclose a Clery Act crime that was reported to a CSA but for 

which the precise location of the crime was unknown, as the handbook is silent on 

this point. The Help Desk advised the campus not to report the crime in the annual 

crime statistics, but when a similar circumstance arose at The Ohio State University in 2006, OSU was found to be in noncompliance and instructed by the auditors 

to ‘‘treat the incident as an on-campus incident’’ and disclose it accordingly in the 

annual crime statistics. These kinds of conflicts create compliance quandaries where 

campuses making earnest efforts to comply must decide whether to rely on Help 

Desk guidance, potentially to their detriment. 

There are a plethora of unresolved questions that stem from the Clery Act’s final 

implementing regulations as it pertains to the new VAWA requirements related to 

classification and counting new crimes (especially Dating Violence); presentation of 

crime statistics (including ‘‘unfounded’’ statistics) in the Annual Security Report, required content and length of the written notification of rights and options for victims of Domestic Violence, Dating Violence, Sexual Assault and Stalking; what constitutes ‘‘simultaneous, written notification’’ of results to the accuser and accused in 

disciplinary proceedings, etc. The forthcoming handbook, which will be published 

after the effective date of the regulations, will surely address some of these foreseeable issues whereas others will present themselves after the handbook’s publication 

and will require additional guidance from ED. 

Yet there are lingering challenges that continue to hamper efforts to stay in compliance with the Clery Act. For example, the Help Desk clarified in a 2012 email 

to campuses that institutions must disclose statistics for buildings or properties that 

are not reasonably contiguous to the main campus which are owned or controlled 

by the institution, frequently used by students, and used in support of the institution’s educational purposes. This definition is well-established in the statute, reiterated in the regulations, and discussed in the Department’s handbook using primarily domestic examples of noncampus locations. However, the Department’s first 

attempt at operationalizing the definition of ‘‘frequently used by students’’ did not 

occur in meaningful form until the 2012 email when it articulated that a location 

is considered ‘‘frequently used by students’’ when repeated use of the same location 

is made or when the duration of the use is sufficient to trigger the ‘‘frequently used 

by students’’ criterion. In the Help Desk email, it offered no guidance for whether 

gaps in time between usage would continue to meet the ‘‘repeated use’’ threshold. 

The Department’s example includes annual usage, but institutions are not afforded 

any guidance regarding whether used every other year, every 10 years, or at other 

sporadic intervals would also meet the ‘‘repeated use’’ standard.1 Furthermore, the 

Help Desk’s email clarified that a ‘‘trip of longer duration’’ would satisfy the ‘‘frequently used by students’’ criterion, and offered an example of a 3-week trip. However, in the email to campuses, the Help Desk conceded ‘‘there is no ‘magic number’ 

of days that must be met to be considered ‘frequently used by students’.’’ The ‘‘trip 

of a longer duration’’ language was offered in contrast to an example of a short-stay, 

overnight trip. Most practitioners would not regard a 2- or 3-night stay as being associated with ‘‘frequent use,’’ but the lack of clear standards from ED leaves institutions little choice but to do so. Therefore, in an abundance of caution, and absent 

additional specific guidance from ED, institutions must now track locations—often 

in the hundreds—being used for more than one night and treat these locations as 

noncampus buildings or properties to ensure they are above reproach in an ED 

audit. ED could greatly diminish the confusion around this issue if they were to arVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
38 

ticulate a bright-line standard with which campuses would be expected to comply 

in order to meet this requirement. 

To complicate matters further, the requirement to disclose statistics for noncampus locations of U.S. campuses had not been previously interpreted by institutions 

as applying to education abroad activities. Following the Help Desk email, campuses 

that have made an attempt to comply with this requirement were left with little 

choice but to develop elaborate systems to track all locations where the institution 

sends students as part of education abroad activities and write each local law enforcement agency at those locations to request crime statistics. In some instances, 

this results in campuses sending hundreds of letters to foreign law enforcement officials which frequently are ignored and divert important human and fiscal resources 

that could otherwise be invested in promoting campus safety. Even when campuses 

do receive responses from law enforcement agencies, these statistics are combined 

into a single statistic which provides the consumer with virtually no useful information about where in the world the crime occurred. It is hard to imagine this was 

the intent of Congress when the law and its amendments were passed. 

While the issue of noncampus locations provides an example of latent ‘‘clarification’’ provided by ED, it is not the only occasion in which the Department has articulated expectations about which campuses were previously uninformed. In 2011, 

the Department indicated in the Handbook for Campus Safety and Security Reporting that the Daily Crime Log requires all crimes occurring in a single incident to 

be disclosed on the Daily Crime Log. This practice runs contrary to how crime statistics are compiled and reported annually for which the ‘‘Hierarchy Rule’’ commands that only the most serious crime reported in the incident be disclosed when 

multiple crimes are reported (with some notable exceptions, such as Arsons and 

Hate Crimes). 

The original Daily Crime Log requirement was the result of the 1998 Amendment 

to the Clery Act and was addressed in the Department’s initial Handbook for Campus Crime Reporting, published in 2005. However, it was not until 2011 in the revised handbook that the Department stated—for the first time—that all crimes occurring in a single incident are to be recorded in the log and therefore the Hierarchy 

Rule does not apply to the log. By that point, many campuses had made significant 

financial investments in electronic records management systems that were designed 

to implement the Hierarchy Rule when producing the Daily Crime Log, unknowingly in contravention to the Department’s previously unspoken expectations. Neither the statute, the implementing regulations nor prior sub-regulatory guidance 

had ever alerted campuses to this distinction, but the Department took it upon itself 

to create this rule when it published the revised handbook 13 years after the requirement went into effect. 

Another example of contemporary challenges to compliance is how the Clery Compliance Division interprets uniform crime reporting definitions and applies these to 

specific fact patterns for purposes of classifying and counting crimes for Clery Act 

purposes. In a recent final program review determination involving the University 

of Missouri—Kansas City, the Department found the institution in noncompliance 

for failure to properly classify and disclose crime statistics. Specifically, in one case, 

the Department noted that some of a student’s belongings were missing after employees of a contract cleaning service packaged the student’s property for storage. 

The Department indicated this offense should have been reported as a Burglary. It 

further opined that the offense, 

‘‘is a Constructive Burglary based on the facts in the report. While the cleaning 

service had legal access to the room, the subsequent illegal act converts the larceny to a crime against the habitation.’’ 

There is no such language in the UCR program that speaks to ‘‘Constructive Burglary’’ nor are there any conditions enumerated in the UCR handbooks that would 

‘‘convert’’ a theft from a structure committed by someone with lawful access from 

a larceny to a burglary. Additionally, this conclusion stands in stark contrast to 

guidance in ED’s own handbook which states that for an incident to be classified 

as a burglary, ‘‘There must be evidence of unlawful entry (trespass). This means 

that the person did not have the right to be in the structure at the time the incident 

occurred.’’ The Department offers an example in its handbook whereby a maintenance worker with a work order used his keys to enter an on-campus office to fix 

an air conditioner, and while he was there he decided to steal a laptop. The Department’s guidance in this instance was to classify this incident as a Larceny because 

the maintenance worker had a right to be in the office at the time of the theft. The 

Clery Compliance Division’s re-interpretation of UCR standards in the University 

of Missouri-Kansas City case is a clear deviation from established burglary classification guidance provided by the Department and by the FBI’s UCR Program, 

39 

which the Department purports to use for burglary offenses. These audit reports are 

among the few opportunities that campuses have at their disposal glean insights 

about compliance beyond the handbook or institution-specific question posed to the 

Help Desk. As a result, ED needs to be painstakingly thorough and clear in describing the specific facts or circumstances giving rise to noncompliance findings, with 

detailed rationales as to how campuses fell short of requirements, so that all campuses can learn from these errors and correct any potentially problematic practices. 

NEED FOR ENHANCED CLERY ACT GUIDANCE

For a majority of the disclosure requirements in the Clery Act, campuses are not 

required to adopt specific policies or procedures, they are simply required to identify 

whether or not they have certain policies, procedures or practices and, if so, describe 

them adequately to the consumer. VAWA introduced a series of very specific mandates related to policies, procedures and practices campuses must not only describe 

in their compliance documents, but implement in their day-to-day operations. As a 

result, campuses are going to need significantly more guidance and resources than 

what has been provided in the past, and they yearn for such guidance and resources. Campuses want to do right by all parties affected by these issues while remaining above reproach with regard to compliance. In order to do that effectively, 

campuses will need more clear and frequent guidance with regard to how the Department expects campuses to operate in response to sexual violence and related 

issues. The guidance should not, however, be overly prescriptive. The diversity of 

institutions—in size, mission, organization, governance, residential status, resources, and police/public safety capacities—commands the need for regulations, and 

the sub-regulatory guidance that follows, to allow for appropriate latitude so that 

institutions can remain nimble and respond to mandates within the context of their 

unique attributes. 

Overly prescriptive mandates and ‘‘guidance’’ has the potential to do more harm 

than good. This is one concern NACCOP has regarding the Campus Accountability 

and Safety Act (CASA). For example, CASA would compel institutions to develop 

their programs to prevent Domestic Violence, Dating Violence, Sexual Assault and 

Stalking in consultation with specific external groups. Not only does the list of required consultees overlook important constituent groups that would bring about critical expertise (such as higher education professional associations), but it diminishes 

any local expertise that may exist within the institution’s faculty or staff and privileges the voices of external groups who may not have the ability or willingness to 

collaborate. The presumption embedded in this requirement—as with many other 

requirements of CASA—is that institutions cannot be trusted to competently perform essential functions without external support and accountability. While institutions must be held accountable for meeting statutory and regulatory requirements 

consistent with the requirements of their Program Participation Agreements, they 

should be given the flexibility to meet these requirements within a framework of 

clear parameters and guidelines where discretion is carefully guided, not 

outsourced. 

Campuses earnestly want to comply with the Clery Act, and many see it as a 

basement—not a ceiling—of campus safety efforts. Many of the new requirements 

proposed by the Campus Accountability and Safety Act are laudable and have great 

potential to enhance existing safety on campus. Each of these proposals will require 

thoughtful consideration of the implications, intended and otherwise, of adoption. As 

a professional association representing Clery compliance officer and professionals, 

NACCOP welcomes the opportunity to be involved in any efforts that help consider 

the practical implications of proposed or new legislation and any of the Department 

of Education’s efforts to provide much-needed guidance to institutions as they endeavor to comply with the law. 

I sincerely appreciate the opportunity to address the committee today and I welcome any questions you may have of me. 

Senator COLLINS. Thank you very much. 

Ms. Flounlacker. 

STATEMENT OF MOLLIE BENZ-FLOUNLACKER, ASSOCIATE 

VICE PRESIDENT FOR FEDERAL RELATIONS, ASSOCIATION 

OF AMERICAN UNIVERSITIES, WASHINGTON, DC 

Ms. FLOUNLACKER. Good morning, Chairman Collins, Ranking 

Member Murray, and members of the committee. Thank you for inviting me to testify today. 

40 

I am Mollie Flounlacker, as mentioned, associate vice president 

for Federal Relations at the Association of American Universities. 

I am also the project manager for the AAU sexual assault climate 

survey. I have also been a college student and am now a mother. 

I care deeply, both professionally and personally, about this issue, 

and I’m proud to be a part of this effort to confront it. 

In my remarks, I am going to outline six points for you on this 

very important subject. No. 1, presidents and chancellors of AAU 

member universities have long identified sexual assault on their 

campuses as an extremely important issue that they need to face 

head on. It is the issue that is keeping them awake at night. I have 

spent more time talking with our members about this issue than 

any other issue over the last 18 months. 

University presidents make it very clear that one sexual assault 

on their college campus is too many. One of the most important 

goals of our universities is to make their campuses a safe place for 

students to learn and succeed. 

No. 2, individual sexual assault cases can be complex. Schools 

take very seriously their responsibility to educate students about 

awareness and prevention, to encourage students to report sexual 

assaults, to respond compassionately and seriously to the needs of 

survivors, and to ensure that all students have access to fair, 

prompt, and impartial campus disciplinary processes. 

No. 3, in keeping with its mission as an association of research 

universities, AAU decided to take a research-based approach to 

help its members understand both the attitudes and experiences of 

their students with respect to sexual assault. Accordingly, AAU 

created and implemented a sexual assault and misconduct climate 

survey in consultation with a leading outside social science research firm, Westat. 

The survey was developed by Westat and a multidisciplinary 

team made up of recognized experts across the country. Nearly half 

of the AAU membership has administered the survey this spring. 

AAU will publicly release the results this fall in hopes it proves, 

first and foremost, helpful to schools, but also to policymakers in 

the legislative arena. The data will also be made available later to 

the research community, which we expect will be a significant resource to better understanding this issue. 

Having spent the last 15 months on this project, I can say it is 

an extremely complicated process. Moving forward, we want our experts to be a resource for Congress as they work through this issue 

in the Campus Accountability and Safety Act, in particular. We 

want to get this right, because we strongly support the use of climate surveys on college campuses. 

No. 4, the legislative and regulatory landscape around campus 

sexual assault is incredibly messy because of the number of different Federal laws and now State laws, regulations, and guidance, 

as Chief Stafford articulated. Overall, we believe that schools need 

a framework of clear and consistent standards with flexibility when 

appropriate so that they have the necessary tools to better protect 

students and support survivors. 

No. 5, AAU strongly supports the goal of the CASA bill to better 

inform and protect students, including core elements of promoting 

the use of the campus confidential advisor and campus sexual asVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6601 S:\DOCS\95801.TXT CAROL
41 

sault climate survey, for example. We support and appreciate many 

of the changes that have been incorporated into the current version 

of CASA. There are still some areas where we have remaining concerns, primarily because of unanticipated effects on students, as 

outlined in my written testimony. 

For example, we strongly support giving survivors of sexual assault access to a trained confidential advisor whose sole responsibility is to counsel the survivor. This is in the best interest of the 

survivor. Any requirement that the advisor ask in an investigatory 

role or reporting role could compromise confidentiality both under 

State law and FERPA and increase the likelihood of the advisor 

being subpoenaed and subsequent legal proceedings. 

Absent clarity in the statute, it’s inevitable that new duties will 

be assigned to the individual by the Department of Education as 

they implement the law. We are also concerned about potential 

conflict with the advisor’s responsibilities in CASA and schools’ current title IX reporting requirements. Again, the sole responsibility 

of the advisor should be to counsel the survivor. 

Last, sexual assault is a societal problem. As important as it is 

for colleges to confront it directly, it does not exist in isolation on 

college campuses. We believe there is a role for the entire education 

community to play in producing cultural changes that reduce the 

incidence of sexual assault. 

AAU and the higher education community look forward to continuing to work with Congress and the administration to make students safer. 

Thank you again for the opportunity to testify, and I’m happy to 

answer questions. 

[The prepared statement of Ms. Flounlacker follows:] 

PREPARED STATEMENT OF MOLLIE BENZ-FLOUNLACKER

SUMMARY

With other higher education associations in Washington, AAU has been deeply involved in efforts to combat sexual assault. This testimony describes the national climate survey that AAU has undertaken as well as AAU’s views on the Campus Accountability and Safety Act (CASA). 

While there is recognition that sexual assault is a broad societal problem, the 

focus today is on what colleges can do to provide safer settings for their students. 

Schools take seriously their responsibility to educate students about awareness and 

prevention, to encourage students to report sexual assaults, to support the survivors 

of sexual assaults and to ensure that all students involved have access to fair and 

equitable processes. One sexual assault on campus is too many. Those represented 

by AAU and by the higher education associations with which we work closely are 

deeply committed to working with Congress to better protect students. 

As an association of research universities, AAU decided that the best way to help 

its members address this issue was to develop and implement a sexual assault climate survey for its members that would enable them to better understand the attitudes and experiences of their students with respect to sexual assault. We believe 

that the survey data will help inform campus policies for preventing and responding 

to sexual assault on campus. AAU will publicly release the aggregate results this 

fall. We have encouraged our campuses to release their institutional results, and we 

anticipate that many of the 27 universities (26 AAU members plus one non-AAU 

institution) that implemented the survey will do so. 

In addition to the survey’s value to participating universities and their students, 

we hope the aggregate data and analysis will provide useful information to policymakers as they work on possible legislative and administrative initiatives. Researchers will also benefit from the contribution this survey will make to the body 

of research on this complex issue. 

42 

In addition to our work on the climate survey, AAU has actively engaged with 

the Senate sponsors of the Campus Accountability and Safety Act (CASA) legislation. AAU has joined the broader higher education community in submitting two 

sets of comments on the legislation, including the most recent on the version of the 

bill introduced earlier this year. AAU supports the goals of CASA, including most 

of the core requirements. Our goal is to help ensure that any new requirements in 

CASA complement existing requirements to better protect students and help schools 

understand their responsibilities. Clarity regarding the establishment of new roles 

and responsibilities for colleges regarding sexual assault is particularly important 

given the number of other Federal laws, regulations, and guidance implicated when 

dealing with this issue. We support and appreciate many of the changes incorporated into the current version of the legislation. There are still some areas where 

we have some remaining concerns and potential solutions, and we believe the bill 

will continue to improve as the legislative process goes forward. 

Chairman Alexander, Ranking Member Murray, and members of the committee, 

thank you for this opportunity to testify on the important issue of combating campus sexual assault. 

I am Benz-Flounlacker, associate vice president for Federal relations at the Association of American Universities. AAU is a nonprofit 501(c)(3) organization of 62 

leading public and private research universities, 60 of which are in the United 

States and two of which are in Canada. Founded in 1900 to advance the international standing of U.S. research universities, AAU today focuses on issues that 

are important to research-intensive universities, such as funding for research, research policy issues, and graduate and undergraduate education. AAU member universities are on the leading edge of innovation, scholarship, and solutions that contribute to the Nation’s economy, security, and well-being. 

Along with other higher education associations in Washington, AAU has been 

deeply involved in efforts to combat sexual assault. Today, as requested by the committee, I will describe the national climate survey that AAU has undertaken, and 

I will provide AAU’s views on the Campus Accountability and Safety Act (CASA). 

The past year has brought intense scrutiny to the problem of campus sexual assault and how colleges handle sexual assault cases. While there is recognition that 

sexual assault is a broad societal problem, the focus today is on what colleges can 

do to provide safer settings for their students. Schools take seriously their responsibility to educate students about awareness and prevention, to encourage students 

to report sexual assaults, to support the survivors of sexual assaults and to ensure 

that all students involved have access to fair and equitable processes. One sexual 

assault on campus is too many. Those represented by AAU and by the higher education associations with which we work closely are deeply committed to working 

with Congress to better protect students. 

Campuses need clarity, consistency, and flexibility when appropriate with respect 

to Federal expectations, requirements, and enforcement. Congress can be most helpful to colleges’ efforts by providing clear standards and guidance to help schools understand their responsibilities and affording them institutional flexibility to improve 

policies to better protect students. 

AAU member university presidents and chancellors have long identified sexual 

assault on their campuses as an extremely important issue that they need to address head-on; some describe it as the No. 1 issue keeping them awake at night. 

Over the past 2 years at least, AAU has spent more time with its membership addressing this issue than almost any other issue. 

As an association of research universities, AAU decided that the best way to help 

its members address this issue was to conduct research that would enable them to 

better understand the attitudes and experiences of their students with respect to 

sexual assault. To do this, AAU developed and implemented a sexual assault climate survey for its members using a leading social science research firm, Westat. 

The survey was developed by Westat and a multi-disciplinary design team created 

by AAU and composed of recognized experts on survey design and methodology, as 

well as campus leaders directly responsible for dealing with sexual assault and 

issues of gender, health, and student affairs. Dr. Bonnie Fisher, a nationally recognized expert on sexual assault, was hired by Westat to work closely with the AAUWestat team to develop the content and analysis of the survey. The AAU team was 

led by Dr. Sandra Martin, Professor and Associate Chair for Research, Department 

of Maternal and Child Health, and Associate Dean for Research, Gillings School of 

Public Health, at the University of North Carolina at Chapel Hill. The starting 

point for the survey design team was the survey instrument developed by the White 

House Task Force to Protect Students from Sexual Assault, which was included in 

43 

the notalone.gov April 2014 report. The survey instrument was designed to address 

the following core research questions: 

• What is the campus climate around sexual assault and sexual misconduct? • What do students know about and think of resources related to sexual assault 

and sexual misconduct? 

• What are the frequency and nature of misconduct because of coercion and 

lack of consent due to incapacitation? 

• What are the frequency and nature of sexual harassment, intimate partner 

violence, and stalking? 

We believe that the survey data will help inform campus policies on how to better 

prevent and respond to sexual assault on campus. AAU will publicly release the aggregate results this fall. We have encouraged our campuses to release their institutional results, and we anticipate that many, if not all, will do so. Twenty-seven universities (26 AAU members plus one non-AAU institution) implemented the survey. 

In addition to the survey’s value to participating universities and their students, 

we hope the aggregate data and analysis will provide useful information to policymakers as they work on possible legislative and administrative initiatives. Researchers will also benefit from the important contribution this survey will make 

to the body of research on this important and complex issue. 

In addition to our work on the climate survey, AAU has actively engaged with 

the Senate sponsors of the Campus Accountability and Safety Act (CASA) legislation 

introduced by Senator Claire McCaskill, and subsequently with Senate Health, Education, Labor, and Pensions Committee staff. AAU has joined the broader higher 

education community in submitting two sets of comments on the legislation, including the most recent on the version of the bill introduced earlier this year. AAU supports the goals of CASA, including most of the core requirements. Our goal is to 

help ensure that any new requirements in CASA complement existing requirements 

to better protect students and help schools understand their responsibilities. Clarity 

regarding the establishment of new roles and responsibilities for colleges regarding 

sexual assault is particularly important given the number of other Federal laws, 

regulations, and guidance implicated when dealing with this issue. We support and 

appreciate many of the changes incorporated into the current version of the legislation. There are still some areas where we have some remaining concerns and potential solutions, and we believe the bill will continue to improve as the legislative 

process goes forward. We offer the following examples of some of the most pressing 

issues we would like to see addressed in the legislation. Again, previous comment 

letters have been submitted with a full list of concerns. 

CONFIDENTIAL ADVISOR

We strongly support giving survivors of sexual assault access to a confidential advisor whose sole responsibility is to counsel and support the victim. In fact, many 

colleges already provide such services. Colleges need to ensure that members of the 

campus community are aware of these confidential counseling services and that they 

know how to contact a counselor in the event of an assault. It is essential that confidentiality and support be the core responsibilities of a confidential advisor. The advisor should be positioned to provide students, regardless of geography of the incident, information on college reporting processes, on how to file an official police report, and on available on- and off-campus resources. We believe that the confidential 

advisor should not have responsibilities for fact-finding. Moreover, the confidential 

advisor should not have investigatory powers (including giving the victim the option 

to have a recorded interview) or reporting requirements. Any requirements that the 

advisor ask in an investigatory role rather than a mental health or trauma counseling role would compromise confidentiality under both State laws as well as 

FERPA. We believe it is necessary that these advisors have proper training to handle their responsibilities. Colleges should be responsible for having a reasonable 

number of advisors based on an assessment of institutional needs. There is no precedent for the Department of Education to specify how many employees colleges must 

have for a particular job category. To repeat, we are fully supportive of the role of 

a confidential advisor in helping counsel and support a survivor in dealing with 

events. 

MEMORANDA OF UNDERSTANDING WITH LOCAL LAW ENFORCEMENT

Colleges want State and local law enforcement agencies to be involved in dealing 

with crimes on campus, incidents of sexual violence. Memoranda of Understanding 

(MOUs) can be very useful tools for improving coordination and establishing procedures for responding to and handling reports of sexual assault. Many colleges already have, or are in the process of developing, MOUs. Some State laws also require 

44 

colleges to develop MOUs. Under the proposed legislation, institutions must enter 

into MOUs with any law enforcement agencies with ‘‘first responder’’ responsibilities 

for the campus. 

Unfortunately, for a large university in particular, this can mean any number of 

agencies; combined with the bill’s lack of a clear definition of ‘‘campus,’’ this would 

require colleges to negotiate multiple MOUs with first-responder agencies for multiple locations. In some cases, the first responder is in fact the campus police. We 

believe that the most important MOU is with the local law enforcement that may 

be reasonably expected to respond to reports of sexual assault from students regardless of whether the incident takes place on or off campus. We believe the content 

requirements specified in CASA could be made more flexible and less prescriptive, 

while still ensuring better coordination and clarification of roles and responsibilities 

between the college and local law enforcement. Additionally, the current waiver to 

the MOU requirement gives the Secretary of Education a wide degree of discretion 

in determining whether to grant a waiver. The language needs to be clarified to 

make it clear that the MOU needs to be mutually acceptable to both parties, and 

that a waiver should be granted if the college has acted in good faith. 

CLIMATE SURVEY

AAU can offer unique feedback on the survey section of the legislation. We strongly support the use of campus climate surveys and believe that if based on sound 

research protocols, they can help campuses better understand the attitudes and experiences of their students with respect to sexual assault so campuses can make policy changes to better prevent and respond to sexual assault on campus. Many colleges are currently in the process of developing and implementing such surveys. 

We have concerns about the requirement for the Secretary of Education to develop 

a single survey instrument, without the input of higher education experts, for use 

at all institutions. We also have concerns about the survey completion standard, because colleges have no legal authority to compel student participation in any survey. 

The legislation also leaves important operational questions about the survey unanswered, including who administers the survey and how information gained from the 

survey will be made available, in what form, and at what level of specificity, and 

by whom. We believe that a campus-controlled (either directly or contractually administered) survey would help colleges, to the extent possible, maximize their student participation rates. It is important that schools have control over survey administration, including incentive options, among other issues, in order to ensure 

that the survey meets the unique and local circumstances of the college and thus 

helps administrators better understand students’ experiences. 

In order to allow for national reporting, the Department of Education, in consultation with higher education survey and content experts, could develop a set of core 

questions based on a clear set of measurable objectives around the incidence and 

prevalence of sexual assault and students’ use of institutional policies and procedures. If colleges are to report survey results to the Department of Education, then 

they should strive to report them in a contextualized manner that provides the most 

accurate information for students and protects any personally identifiable information. We recommend that the frequency of the survey be reduced to once every 4 

years, so as not to burden the student body, particularly survivors, and allow 

schools time to address and improve policies, practices, and outreach in between 

survey administration. Again, we support the core concept of a climate survey as 

an important tool for better understanding students’ experiences and available institutional resources, as well as helping institutions improve their policies and protections for students. 

CAMPUS DISCIPLINARY PROCESSES

Colleges take very seriously their responsibilities to survivors of sexual assault. 

The legislation creates new 24-hour requirements for institutions to notify both the 

accuser and accused of campus disciplinary decisions and outcomes in proceedings 

for sexual violence. While we believe that colleges should make every effort to inform both parties promptly, this short timeframe may be unrealistic in certain circumstances and is likely to lead to unintended and negative consequences for students. A temporary delay also may be necessary to protect a student in fragile circumstances following a traumatic event. In most cases, these notices would require 

legal review, thereby requiring additional time. We believe that colleges should be 

given greater flexibility, perhaps a 3-day period with flexibility given for extenuating circumstances. 

45 

CLERY ACT EXPANSION

The legislation would expand Clery Act reporting to include information about the 

handling of student disciplinary actions in situations involving sexual violence. The 

expansion conflicts with the purposes of the Clery Act, which is designed to disseminate crime information as defined by law and as reported to and by police. Decisions 

about whether to proceed with campus disciplinary action reflect an entirely different set of considerations. For example, certain conduct may be a violation of campus policies even if it would not constitute a crime under State law, while crimes 

reported under the Clery Act may involve individuals who are not subject to the 

campus disciplinary process. Combining Clery Act crime reporting with information 

on campus disciplinary proceedings, particularly without the appropriate context, 

would likely be confusing and misleading for students and families, as well as policymakers and the media. We recommend further consideration be given to appropriate ways to bring greater transparency to campus processes without confusing 

students. 

HIGHER EDUCATION RESPONSIBLE EMPLOYEE

We greatly appreciate the legislative intent to clarify who on campus is a responsible employee for purposes of title IX. While we understand the authors’ reluctance 

to amend title IX, we are concerned that the bill’s current language would create 

two separate categories of responsible employees for CASA purposes and Office for 

Civil Rights (OCR) guidance, further complicating and confusing campus efforts. 

FINES

The legislation authorizes the Secretary of Education to impose fines of up to 1 

percent of an institution’s operating budget per violation for failure to comply with 

any title IX requirements or with various CASA requirements. Unfortunately, the 

legislation does not establish clear standards to guide Federal officials in determining the appropriate level within this range and distinguish between technical 

and egregious violations. In testimony before this committee, the Department unambiguously stated that it does not need or want the authority to impose such fines— 

it believes it has the tools needed to ensure compliance with laws and guidance addressing sexual assault. 

GRANT PROGRAM TO IMPROVE PREVENTION AND RESPONSE TO SEXUAL ASSAULT

It is critical to support further research to find the most effective policies and 

strategies for preventing and addressing sexual assault on campus. Today there is 

no definitive body of research on best practices for education and prevention, in particular, and we support the inclusion of a grant program for this purpose in the bill. 

We recommend that Congress provide a dedicated funding stream for these grants 

rather than rely on fines to fund these grants. We also recommend that grants be 

awarded on the basis of the strongest proposals with the most promising ideas rather than criteria such as endowment size or tuition rate. 

OCR RESPONSIBILITIES

The Department of Education also has a role to play in supporting college efforts 

to better address college sexual assault. OCR should be required to resolve its investigations in a timely way. According to OCR internal guidelines, investigations are 

expected to be concluded in 180 days of the date filed, but this rarely happens. It 

is not uncommon for OCR to take 2 or more years to resolve cases. To ensure 

prompt resolution of civil rights violations and basic equity to institutions and their 

students, OCR should be required to resolve investigations within 24 months of 

their initiation, unless the institution being investigated has willfully obstructed or 

impeded the review. In addition, colleges and universities should be provided with 

appropriate notice to be able to respond effectively to complaints filed with OCR. 

This means sharing the specific allegations with the institution once an investigation is launched. It also means that a college or university should not be expected 

to sign a voluntary resolution agreement without first seeing the findings that OCR 

intends to issue publicly in the case. Transparency and openness would benefit all 

and provide for collaboration and partnership when resolving complaints. 

Last, in recent years, OCR has issued significant guidance documents to institutions that it enforces without having subjected that guidance to the notice and comment provisions of the Administrative Procedure Act. This means that no affected 

party has the opportunity to raise questions or ask for clarifications. 

For example, in April 2011, OCR issued what it termed ‘‘significant guidance’’ announcing campus obligations to address sexual assault under title IX, including the 

46 

imposition of the ‘‘preponderance of evidence’’ standard, without seeking public comment. Questions about this document quickly emerged, but it took OCR more than 

3 years to issue further clarification. In the interim, campuses were forced to intuit 

what OCR wanted them to do. OCR has continued this trend. While the agency contends that the ‘‘guidance does not add requirements to applicable law,’’ it is clear 

from recent resolution agreements with OCR that these guidance documents contain 

new policy positions which are being treated as compliance requirements under the 

law. 

It is essential that all stakeholders, including colleges and stakeholder groups, be 

allowed to comment on and inform policies. Ultimately, such input makes policies 

stronger. Overall, colleges and the Department need to work collaboratively to make 

progress on this issue. 

AAU and its members, along with the other associations with which we work on 

these issues, are committed to working with Congress, to better protect students. 

Thank you again for this opportunity to testify. 

Senator COLLINS. Thank you very much for your testimony. 

We have just been notified that votes have started. We’re going 

to have two votes, and we’ll have a recess while we vote. We will 

be able to continue for now and get through some questions before 

people have to leave to vote. We’ll limit Senators to 5 minutes on 

this round. 

I do also want to announce that Senator Alexander will be returning, and after the votes he will take over as chairman. It’s 

been a great experience, and I would have liked to have continued, 

but I will turn over the gavel, albeit reluctantly, to the legitimate 

chairman of the committee. 

Ms. Flounlacker, I want to pick up on a point that you commented on about the confidential advisor. I’m a strong supporter of 

the confidential advisor. I’ve been surprised when I’ve talked to the 

University of Maine and other colleges that it turns out that this 

is not as straightforward as I thought that it would be. 

On the one hand, confidentiality really focuses on the victim, and 

that’s what we should do, and it may encourage student victims to 

report violations and seek the help that they need. On the other 

hand, the requirements of Title IX and the Clery Act require various forms of reporting when crimes occur on campus. Indeed, the 

Department of Education’s 2014 guidance says that, ‘‘There are situations in which a school must override a student’s request for confidentiality in order to meet its title IX obligations.’’ 

It seems to me we’re putting schools between a rock and a hard 

place unless we give some clarity here. How can colleges and universities provide the confidential services and advising that many 

of us think are vital to students while balancing and meeting the 

requirements of both Federal and, in some cases, State law and the 

desire to respond effectively? 

Ms. FLOUNLACKER. Senator, you’ve identified a very important 

issue, and we want to get the confidential advisor right. It’s an essential service offered to students. As you articulated, as I mentioned in my opening comments, we have concerns that as it’s currently drafted, the advisor would be tasked with responsibilities 

that really go outside of what we think should be the core responsibility of counseling a student. 

As you mentioned, in addition to our issues with any fact-finding 

or investigatory powers or reporting requirements, potential conflict with title IX is a real concern and one that we’ll have to address in the legislation in order to get this right. 

47 

Part of the issue in the legislation—and if I’m getting too technical, please stop me, Senator. Part of the issue is that in the legislation, the advisor may liaise with an institution to make accommodation, so this would be changes in a dorm room or a change in 

classroom, for example. It says explicitly it shall not trigger an investigation by the school, and, clearly, schools are committed to 

providing accommodations and to maintaining confidentiality. 

The problem is many schools typically believe that if they’re 

making accommodations for a student, it’s sufficient to warrant an 

investigation by an institution. Moreover, as the Senator articulated, institutions are required under title IX to track and report 

accommodations provided in response to sexual assault. So there is 

a clear conflict here. 

There are some solutions, and we’d very much like to be a part 

of that conversation. For example, it would be better for the advisor 

to let the survivor know where to go and who to talk to about making accommodations rather than that advisor actually carrying 

through the process themselves. 

There are solutions here, and, again, we just have to keep focusing on the core responsibility of the advisor, which is to counsel, 

and make sure the guidance is very clear so schools know what 

they’re doing, and survivors understand what the advisor can do to 

help them. 

Senator COLLINS. Thank you. 

I’m going to ask the rest of you to respond for the record to that 

issue, because there is a clear conflict between the rules and the 

regulations. 

I want to get quickly to a second topic in my remaining time. 

Ms. Bolger, we have climate surveys that our military academies 

do, and they have a very high response rate because the students 

know that they are expected to fill out those climate surveys. That 

is not necessarily the case for private colleges and public universities. 

What suggestions would you have to encourage students to participate in the climate surveys so that they’re meaningful? 

Ms. BOLGER. Thank you for that question, and it’s a very good 

one. In thinking through climate surveys, we have to remember 

that this is just one piece of a larger effort to change the culture 

around sexual violence on campus. That means doing education 

work and outreach and training to students that raises the profile 

of this issue and helps them understand how incredibly important 

it is. 

We have, to be honest, seen a lot of change on campuses over 

just the last couple of years as students’ peers who are survivors 

are coming forward and telling their stories publicly. I suppose I’m 

a bit more optimistic that students will want to be part of the process to complete these surveys. 

I do think that we should certainly build on existing structures 

on campuses, existing structures of students. We have fraternities, 

we have sports teams, and we have sororities. These are groups of 

people who already come together around shared values, and if we 

can create buy-in among people in those communities, we will see 

much higher response rates to these surveys. 

Senator COLLINS. Thank you. 

48 

Senator Murray. 

Senator MURRAY. Thank you very much. 

Ms. Bolger, I want to just start by saying how much I admire you 

for your courage and how much I appreciate the work you’ve done 

to empower other students and survivors, and creating the Know 

Your IX organization is just really valuable. Thank you for that. 

I did want to ask you—given the fact that sexual assault is such 

an underreported crime to law enforcement, what do you think is 

the most important step for universities to create to get a survivorfocused approach? 

Ms. BOLGER. Thank you for that question and for your very kind 

words. First off that survivors need to know what they can expect 

to receive out of a reporting process. Schools need to ensure that 

the existence of accommodations and how to access them is clear, 

well-publicized, and well-understood on campus, and then, of 

course, they need to followup and actually issue those accommodations and protections to students who request them. 

I know a number of survivors on my campus simply didn’t report 

because they didn’t understand that the school could be useful in 

helping them change a dorm that they shared with a perpetrator 

or switch out of a class section that they shared with their abuser. 

The second point I would make is transparency. We’ve spoken a 

little bit about climate surveys. It’s also incredibly important that 

schools release aggregate data about the results of disciplinary 

hearings, how quickly they’re proceeding. Of course, this shouldn’t 

be identifying information, just in aggregate. That will help survivors build confidence in the system and trust that schools are 

there for them and they want to help them. 

Senator MURRAY. Great. Sexual violence is a significant health 

problem in our country. According to the CDC, nearly one in five 

women is sexually assaulted in college, and it’s oftentimes by someone that’s known to the victim. It’s a former partner or friend or 

acquaintance or someone they knew in a class. 

I know that you see students and faculty and their presidents 

taking the issue—addressing this head on. They’ve formed a system-wide task force to improve the community and make campuses 

safer. 

President Napolitano, I wanted to ask you: How has the UC focused its efforts on making sure the focus is not only on improving 

universities’ practices in response to sexual assault and violence, 

but also on working toward a culture of prevention? 

Ms. NAPOLITANO. Thank you. It begins with raising the issue. As 

I mentioned, from the first day a student shows up to start, they 

will be given specific training on this. They will also be made 

aware of what resources are available to them if something were 

to occur—where to go, who are the independent advocates, what 

they can do. 

We see the independent advocates as really acting as gatekeepers, not as reporters, per se, but really as gatekeepers for the 

student in terms of do you go to the campus police, should you go 

to your department chair, et cetera, and then to be there to do appropriate followup working with the student. It begins with creating that culture from the day they begin on campus, and then 

consistency and persistency throughout the college experience. 

49 

Senator MURRAY. Real quickly, because I know we have a vote— 

in the fall of 2014, I know that California became the first State 

in the country to enact a ‘‘yes means yes’’ law defining sexual consent. Can you talk with us about how this affirmative consent law 

is empowering students and faculty? 

Ms. NAPOLITANO. Yes, because we had actually changed our policy before the law changed, so we’ve had a year’s worth of experience with it. It really, in a way, shifts the burden so that the survivor isn’t the one always trying to explain what happened. It 

means the consent has to be knowing and intentional, and if it’s 

not, it’s not valid anymore. That gets incorporated into all of the 

training materials. 

Senator MURRAY. Ms. Bolger, can you share your thoughts with 

us on how a standard like ‘‘yes means yes’’ could help on campus 

sexual assault? 

Ms. BOLGER. Of course. Affirmative consent is a strong important 

policy that reflects students’ values already around how they want 

to engage in relationships with people in their community. I do 

think that affirmative consent will only be successful if there is 

education for students about what the expectations are, how to obtain consent. 

Students enter college with a wide array of understandings of 

what consent is, and that orientation programming and continuing 

ongoing training for students, as well as for the people who will be 

hearing these cases and investigating these cases, is absolutely 

necessary to make sure that this becomes common and expected on 

campus. 

Senator MURRAY. Thank you. 

Senator COLLINS. Senator Cassidy. 

STATEMENT OF SENATOR CASSIDY

Senator CASSIDY. Ms. Flounlacker, Senator Gillibrand circulated 

some statistics suggesting that 41 percent of campuses—I can’t 

verify this, but she circulated this—41 percent of colleges and universities recently surveyed have not conducted a single investigation of sexual violence on their campus in the last 5 years. Wow. 

That seems like there’s a problem with the universities communicating to their students that this is reportable. Do you follow 

what I’m saying? I can’t independently verify that. 

But I’ve got a daughter at a campus. That seems like a problem 

with the universities. Is that a fair statement? 

Ms. FLOUNLACKER. Well, thank you for the question, Senator, 

and I can’t speak to the individual statistics. I’m not an expert in 

that arena. I will say that our schools are taking this very seriously, both to explain the process, to explain how students can report, and explain what happens in a disciplinary—— 

Senator CASSIDY. No offense, but if that statistic is correct—and 

I don’t know if it is—if 41 percent have not investigated a single 

incidence, but it is as prevalent as Senator Murray suggested, that 

tells me they’re not taking it seriously, because that which is measured is addressed. It tells me they’re not measuring it, or if they 

are, they choose not to address it. Do you follow? 

Ms. FLOUNLACKER. Right. 

50 

Senator CASSIDY. You can’t speak for all 41 percent, but it still 

seems like we’ve met the enemy and he is us. 

Ms. FLOUNLACKER. Clearly, in all candor, is the system perfect? 

No. Are mistakes made? Yes. Every system can be improved. I 

don’t think there’s a president or a chancellor that would disagree 

with that statement. I’m not justifying, again, the statistics. There 

may be truth to it. There may not be. 

I know that there are a lot of reasons why cases don’t go forward. 

Sometimes the context is really important. There are cases where 

survivors don’t necessarily want to go forward. There’s not enough 

facts for the case to go forward. 

I can’t speak to the specific statistic. I do know, just speaking— 

if I can just say, speaking from the association, presidents recognize, most importantly, the need for better data, which is where 

our climate survey comes in. It’s really important that we understand how students—— 

Senator CASSIDY. Can I stop you, because I’m almost out of time, 

and as you can tell, everybody has left me. 

[Laughter.] 

Ms. Napolitano, you’ve got so many titles, I don’t know which to 

refer to you as. You mentioned there should be a difference between the UC system, a big State university, and the small liberal 

arts college. Could you elaborate on that difference in approach? 

Ms. NAPOLITANO. Right. The principles are the same, but, for example, big systems, like mine—we have our own police departments. They’re sworn officers. Small colleges may not have any 

sworn officers on their staff. Should we be required to have separate MOUs, or do we start with our own police departments? These 

are the kinds of things that are different between campuses. 

Senator CASSIDY. Let me ask you something different. There’s 

been some high-profile stuff recently about the accused—those who 

felt as if they were wrongly accused and did not receive due process 

from the university. Again, I can’t attest to that. In our democracy, 

you’re innocent until proven guilty. That’s one thing. 

Do you have thoughts, or do others How do we address those who 

might be wrongly accused? I actually know a woman who is now 

being accused, and she swears she’s accused wrongly. Yet her entire career is in jeopardy because of this, and she feels as if she 

has not been accorded her rights. Any thoughts about how we address that issue? 

Ms. NAPOLITANO. Right. We’re actually looking into that right 

now. How do we make sure the system is fair to both sides? Actually, when I look at the litigation that’s been filed against the University of California, about half of the cases have been filed by survivors and half by respondents who say they weren’t treated fairly. 

There’s a lot of controversy in this area. 

One of the issues we’re looking at is do we provide—or what kind 

of support do we provide to a respondent in addition to a complainant. Right now, we provide the support to the complainant. Do we 

provide the exact same thing to a respondent? If not, what do we 

provide for a respondent? 

Senator CASSIDY. Some of the stuff I’ve read suggests that it 

should actually leave the university system and go to a civil court, 

because that’s the only way you ensure that you get fair treatment 

51 

for both parties. Again, I’m looking at 41 percent. If that statistic 

is true, it tells me that for a sizable minority of the universities, 

there’s inadequacy of approach, whether it is for either party. Any 

thoughts about that? 

Ms. NAPOLITANO. Well, if you made it mandatory that these 

cases go into either civil or criminal court, that would be a deterrent to complainants coming forward at all. I would be very cautious about any kind of mandatory referral process. 

Senator CASSIDY. I understand. My time is out. 

I am to announce that the committee stands in recess for Senators to vote, and we’ll resume shortly after votes have ended. 

Thank you each for your testimony. I just can’t thank you 

enough. 

[Whereupon, at 10:22 a.m., the committee recessed, to reconvene 

at 10:46 a.m., the same day.] 

Senator COLLINS [resuming the chair]. The committee will come 

back to order. Contrary to my expectations, although the Chairman 

has returned, he has very graciously agreed to allow me to continue wielding the gavel—and so I’m feeling extremely powerful— 

until such time as I have to leave. Then he will resume his rightful 

place as Chairman of the committee. I thank Senator Alexander for 

his courtesy on an issue that matters a great deal to me. 

Senator Bennet, we left off with you being next. 

STATEMENT OF SENATOR BENNET

Senator BENNET. Thank you, Madam Chair. 

Thank you, Mr. Chairman, for allowing the Senator from Maine 

to continue her able chairing of his hearing. 

And thank you to the witnesses for being here. 

Ms. Bolger, in particular, thank you so much for your testimony. 

I wonder whether you mind touching on something you touched in 

your written testimony, but not in your oral testimony, and that is 

your views on mandatory referral laws and how we should think 

about that and how policymakers at the State level should think 

about it. 

Ms. BOLGER. Yes, absolutely. Thank you for the question. Are 

you speaking about mandatory referral laws to the police? 

Senator BENNET. Yes. 

Ms. BOLGER. That’s a wonderful question and one that many people have. I get asked all the time why campuses are dealing with 

this in the first place and why don’t we send reports to the police, 

and that’s a really intuitive question. The reality on the ground is 

that survivors tell us again and again that were their reports to 

schools that were forced to go to the police that they would report 

to no one at all. 

In fact, 9 in 10 survivors told us that if their reports were turned 

over to the police without their consent, they expect fewer victims 

would report. If we are serious about reducing violence on our campuses, perhaps counterintuitively the best thing to do is to empower survivors with the right to decide who receives their reports. 

Senator BENNET. Does anybody else want to touch on that? 

[No verbal response.] 

Let’s stick with you, then, Ms. Bolger. You used such a great 

phrase, the reality on the ground. Are there other things that we 

52 

should be thinking about that either might be counterintuitive or 

not, but in terms of the reality on the ground as we act in a wellintentioned way, but in a way that could be counterproductive? 

Ms. BOLGER. That’s also a wonderful question. The first thing 

that comes to mind is that we are hearing a lot on college campuses about sexual assault and how schools need to take sexual assault seriously, and that’s true. That is starting to happen. 

There is a real gap, though, between responding to sexual assault and responding to other forms of gender-based violence. I’m 

talking about dating violence, intimate partner violence, stalking. 

The new components of the Clery Act will require schools to report incidents of dating violence, domestic violence, and stalking, 

but it’s critically important that schools address these issues in 

their policies. Policies for dating violence survivors can look really 

different than for sexual assault survivors—things like providing 

free transportation to a local court to obtain a restraining order, 

not penalizing survivors for missing class in order to obtain a restraining order, things like that. 

Senator BENNET. Are you aware, or is anybody else on the panel 

aware of—is there a designation somewhere of universities that 

have set the gold standard for dealing with sexual assault and sexual violence on campuses, or some standard that students have established or community groups? I’m just trying to think about 

where we would find the best practices if we were to look—probably at the University of California, I’m sure. But where else? 

Ms. NAPOLITANO. We aspire to be the gold standard, but we 

know we have more work to do. I think every campus in the United 

States recognizes that. We certainly have taken this on as a major 

issue for our students and for our campus community. 

Senator BENNET. Ms. Flounlacker. 

Ms. FLOUNLACKER. If I could add, Senator, you raise a really important question, and it speaks to the section of the CASA legislation for a grant program, which we think is really, really important, particularly focused on more research on better awareness 

and prevention, which our schools are very engaged in on the research front. We need more of it so we can identify better and best 

practices. I think everyone can agree with that point. 

In an ideal world, with a grant program in the legislation, we 

would want a dedicated funding stream for this kind of research, 

rather than using funding from the fines to go into the grant program. We would prefer a dedicated funding stream just for this 

kind of important research. 

Ms. BOLGER. At least from where I sit as a recent graduate and 

a survivor and an advocate, I don’t think that we know that any 

school is getting it right, perfectly. There are certainly schools with 

strong policies. Until we have more information and more data, 

like what we could obtain from standardized climate surveys, I 

don’t think that we’re going to have a good sense of what policies 

are necessarily working best until students tell us. 

Senator BENNET. Governor, you get the last word. 

Ms. NAPOLITANO. I’m sorry. It goes to the point of flexibility in 

legislation, because evidence-based, data-driven best practices will 

change over time. What the law wants is for us to use data-driven 

53 

best practices and to be able to demonstrate that that’s what we’re 

doing. 

Senator BENNET. Thank you. 

Thank you, Madam Chair. 

Senator COLLINS. Senator Warren. 

STATEMENT OF SENATOR WARREN

Senator WARREN. Thank you, Madam Chair. 

Thank you, Mr. Chairman, for holding this hearing today. It’s a 

very important hearing, and I really appreciate both of you for 

doing this. 

We’ve talked about the numbers. According to the CDC, an estimated 19 percent of women will experience a sexual assault while 

in college. One in five women means something is very, very wrong. 

Students, all students, should be safe on campus. 

Ms. Bolger highlights the importance of climate surveys and, 

particularly, the importance of making the data that comes from 

those surveys public, and I strongly support this effort. Good data 

can be an important foundation for change, and, as you’ve said, if 

no one knows what’s going on, then there won’t be any change. 

We’ve also talked about how colleges respond to reported incidents of sexual assault, and that’s very important. A school’s response should be timely, should be appropriate, should be respectful. I want to ask about work to prevent sexual assaults in the first 

place and how the Federal Government can help. 

Chief Stafford, in your nearly 30 years serving in campus law enforcement, what did you or GW’s administration do that proved effective in preventing sexual assaults on campus? 

Ms. STAFFORD. The education efforts have to start with—we 

often focus the education efforts on women, because we assume 

that, generally, women are more frequently the victim of a sexual 

assault than men. We have to focus our education efforts on men, 

and we need to do that, quite frankly, when they’re in high school. 

We should be sending men to campuses who understand respecting a woman, understand what consent is. I have huge concerns 

about the level of understanding, and I have friends with teenage 

boys, and I talk to them about their level of understanding of consent, and they don’t understand consent. 

The education efforts really need to be focused not only on 

women and not becoming the victim of a sexual offense, but on men 

and not victimizing women. It needs to go both ways. 

Senator WARREN. Ms. Bolger, would you like to weigh in on this, 

focusing it just a bit more on the prevention part of this? 

Ms. BOLGER. The most important thing about prevention education is that it starts early and it just keeps going. We need consent education and healthy relationship education in middle and 

high school and college. It needs to start the week that first-years 

get to campus, and it needs to continue. 

I know that I had no recollection of any sort of orientation or 

education programming I received around this, because as a firstyear, in your first week, you’re getting bombarded with so many 

messages and so much information. It needs to be ongoing. 

I see a lot of schools trying to slide by doing online prevention 

education. Online prevention education is not education. It needs 

54 

to be in person, and it needs to be looking at the issue both from 

a skills and information-based level, telling students about their 

rights, telling students what consent is, and it also needs to be 

looking at it from a cultural norms values-based level, talking 

about sexism and violence more broadly. 

Senator WARREN. President Napolitano, can you tell us a little 

bit more about what you’ve done in the UC system, what you’ve 

found effective, or not, in terms of prevention? 

Ms. NAPOLITANO. Again, it’s an evolving area. In person education, online, supplements, complements—those things can happen together—experimenting with peer-to-peer education programs, 

bystander education so that the overall campus community is more 

aware of what it should do if they are a witness to an event. Those 

are the kinds of things that improve the overall climate. 

Senator WARREN. I’m getting low on time here. Let me just ask 

this question because of where we are today. Where is it that the 

Federal Government can be helpful in this part of making campuses safer? What is it that we should be talking about and thinking about here at the Federal level? I open this to anyone who 

would like to respond. Don’t all jump in at once. 

Ms. STAFFORD. I’d like to talk for a second about the issue of the 

MOUs that’s in CASA, because the reason sexual assault survivors 

have been unwilling to report sex offenses to local police and campus police is because they’re uncertain of what they’re going to face 

and what they’re going to deal with when they make the report. 

Are they going to be believed? Are they going to be challenged? Are 

they going to be made to feel irrelevant? 

Having or not having an MOU isn’t going to change whether a 

survivor reports the incident to police or not. Most campus public 

safety leaders I know have requested MOUs of their local police, 

and the local police—if they have one—it’s because the local police 

were willing, and if they don’t have one, it’s because the local police 

weren’t willing. There’s nothing behind—there’s no teeth behind it 

that forces them to engage in getting into an MOU with the campus police departments. 

I would like to see something that actually forces the hand of 

local and State police agencies to actually engage with the campus 

police agencies. Because I know in Washington, DC, every time 

there was a new chief of police, I went to them and asked for an 

MOU. Every time, I was refused. 

Senator WARREN. That’s a very helpful point. Did anyone else 

want to say something quickly, because I’m out of time now. 

Ms. BOLGER. I would just say very briefly that the two most important things, from my perspective as a former student and a survivor, is mandated transparency from schools—do we know what’s 

actually going on—so prospective students and their families know 

what to expect, and enforcement from the Department of Education. Students have really felt alone on their campuses in trying 

to deal with this, and if the Office for Civil Rights can continue to 

step up, I’m confident things would change. 

Senator WARREN. Thank you. Since I’m out of time, I’ll just add 

this as questions for the record. 

55 

But thank you all very much. We’ve got to do everything we can 

to keep everyone safe on campus, and I really appreciate you being 

here today. It’s our job to do what we can to help. Thank you. 

Thank you, Madam Chair. 

Senator COLLINS. Thank you. 

Senator Baldwin. 

STATEMENT OF SENATOR BALDWIN

Senator BALDWIN. Thank you very much, and I very much appreciate the scheduling of this hearing. I really want to thank our witnesses today, both for your time and your testimony, but also for 

your life’s work and energy devoted to advocating for others and 

improving the climate on our campuses across the United States. 

I wanted to start with a question about the climate survey. We 

just had a question before our break about bolstering participation 

rates. In addition to that, I guess I wanted to, first of all, recognize 

that the Association of American Universities has been active in 

developing and beginning to implement a sexual assault campus 

climate survey. I’m proud that one of the campuses in Wisconsin, 

the University of Wisconsin Madison, is a part of this effort. 

As I understand it, the results of this survey are due in the fall. 

I would hope that you could perhaps share some of the lessons that 

AAU has learned in its implementation. Especially if we are to look 

at including a climate survey as we reauthorize the Higher Education Act, we want to garner the best and latest information. 

After Ms. Flounlacker speaks, I want to ask President Napoli 

tano—I think the first point you made in your testimony was the 

flexibility, recognizing differences in campuses and how that might 

inform the content of a climate survey. I wonder if you can be more 

specific about how you would alter the climate survey from campus 

to campus or what we should be thinking about. 

Let me start with you, Ms. Flounlacker. 

Ms. FLOUNLACKER. Thank you, Senator, for a very important 

question. This is a top priority. Our presidents and chancellors 

asked for better data on this issue, and we are delivering through 

the surveys. As mentioned, we will produce the aggregate results 

in the fall. We’ve encouraged all schools, and I am confident that 

all will produce their own results as well. 

I’d like to offer some specific comments. The first has to do with 

response rates. It’s an issue that you raised and, actually, Senator 

Collins raised as well, and it’s a really important issue. Colleges 

with any survey want to ensure as high a response rate as possible, 

particularly with a survey of this nature. 

Unfortunately, schools have no legal authority to force, to compel 

students to participate. Having said that—and I have seen this 

now firsthand through our survey—there are a number of strategies that schools can employ if the survey is locally administered, 

so if the school itself administers the survey, versus the CASA legislation, the Department of Education would administer the survey. 

That’s one of our concerns. 

If the school administers it, then they have control over a whole 

host of issues: who promotes it, how it’s promoted, when, how long, 

whether incentives are used or not. There is a solid research-based 

group of evidence that talks about strategies that really can bolster 

56 

response rates. That’s an area that we know a lot more about now, 

and AAU can be a great resource moving forward. 

If I have another minute—— 

Senator BALDWIN. Wait, because I do want to—— 

Ms. FLOUNLACKER. OK. I’ll stop there, and if there’s more time, 

I can comment more. 

Ms. NAPOLITANO. Well, her answer illustrates the point I was 

making about flexibility. You know, a survey administered from a 

Federal department is a lot different than one administered on 

your own campus. How a campus administers it and the incentives 

it uses and what it does to increase the response rate can be very 

specific as to a campus. 

The same thing could be said to content as well, as long as certain subject matter areas are covered. The third thing is that you 

can get campus climate through a variety of measurement mechanisms. We were talking during the break about focus groups to 

supplement surveys, giving students a greater opportunity to discuss. 

We know this from politics. Where a poll just tells you X, and 

it’s a snapshot, a focus group gives you an opportunity for a longer 

discussion. The result is for national policymakers to know what’s 

happening, parents to know what’s happening, students to know 

what’s happening, but also campus leadership to know what’s happening on their campus so they can take immediate action. 

Senator BALDWIN. Thank you. I notice that I’m about to run out 

of time. I would ask that you do, indeed, followup to make your additional points. If either Ms. Bolger or Chief Stafford have additional comments on that question, I would appreciate it. 

Just let me note that the other question I intended to ask but 

won’t have time relates to the fact that we are looking at flat funding by the Office of Civil Rights in the Department of Education, 

which is tragic to me in terms of how important you have articulated in your testimony that adequate resources are there. I would 

love to hear from all of you on what impact it will have on institutions as well as students. 

Senator COLLINS. Thank you. 

Senator Casey, you missed me lauding you in my opening statement, so know that it occurred. 

STATEMENT OF SENATOR CASEY

Senator CASEY. Senator Collins, thank you, and I appreciate 

that, and I appreciate what you have said and what you’ve done 

on this issue—and Senator Murray as well—the commendation, 

but also the work and leading us in this hearing today. I appreciate 

all of our witnesses who have labored in the vineyard a long time, 

if I can use a line from the Scriptures about this issue. 

It’s an issue that, I guess, for far too long, we haven’t been willing to confront as a country, even though it’s one of the most profound betrayals you can imagine. It’s a betrayal when you send a 

daughter to a college—and I’ve sent two, and I have two more— 

but when you send a daughter to a college, and you tell them to 

study hard and that they’re going to have a wonderful experience, 

one of the best experiences of their life in most cases, and then the 

57 

system betrays them. The school lets them down. The government 

lets them down. 

When I say betrayal, we all—not everyone in this room, but a lot 

of us share in that. We have to be very—not just determined, but 

we have to be very insistent on following rules and demanding a 

lot more of our schools than we’ve demanded up until now. 

It’s a matter of basic justice. In the Bible, they talk about people 

hungering and thirsting for justice. Well, in this case, they have 

not been satisfied. Victims have not been satisfied, families, and 

communities. 

We have a long, long way to go, and I’m very proud of the work 

that I did and others did to get the recent changes through VAWA, 

get them through the regulatory process and have them not just as 

law, but as law that’s being implemented by way of regulation. I 

know there’s some discord about the result of that. We’ll get to that 

in a moment. 

This has to be a priority for men. Men have been on the sidelines 

too long. Too many young college students standing at parties, 

knowing something’s going to happen or having a sense that it 

might happen, having a sense of what their friends could do, and 

just walking away or not doing anything. In some ways, as much 

as the system has betrayed women on campuses, a lot of guys have 

betrayed them as well—sometimes their best friends. 

Ms. Bolger, when you testified, we’re grateful that you did that. 

I can’t even begin to imagine how difficult it is to have lived 

through what you’ve lived through and then to come before a public 

audience like this. It may not be the first time, but it’s of great 

value and benefit. We need to learn—not just learn from you, but 

be inspired and try to move this issue forward in a way that commensurate with the spirit that you’ve brought to it. 

I wanted to ask you first a question about, in your experience, 

working with survivors. One of the challenges here is reporting. If 

you could, walk us through, in your experience, why victims sometimes have the great difficulty of reporting. 

Ms. BOLGER. Thank you for that question and for all your work 

on this issue. It means so much to survivors and to students. There 

are a whole host of reasons why it is challenging for survivors to 

report. The person who assaulted them is likely someone they 

know, a friend, a partner. It’s incredibly difficult to take a person 

you love and trust, have this happen to you, and then report them. 

Many survivors fear reporting to the police for any number of 

reasons. They may be undocumented. They may come from already 

over-criminalized communities. For some survivors, reporting to 

the criminal justice system won’t do anything for them because 

their States don’t even recognize what happened to them as violence. 

It’s incredibly important at the campus level that schools are 

open and transparent about the kinds of protections students can 

expect to receive by reporting. It’s hard to report if you don’t know 

what could come of it and how that could help you continue your 

education and feel safe on campus. 

Senator CASEY. We appreciate that, because one of the things we 

tried to do in the campus SaVE changes is to take that into consideration, and I appreciate the input. 

58 

Secretary Napolitano, we’re grateful that you’re here today and 

grateful, again, for your continuing service now in the field of education as you did for the country and for your home State. I guess 

one question I have for you is what are some of the lessons learned, 

that you—as the leader of a major institution—have been confronting this and trying to deal with both the reality of the problem, but also the complexity of trying to make the changes that you 

hope to make and that you have made? 

Ms. NAPOLITANO. One lesson is how do you take a large system 

such as a university system, like the University of California, and 

a major issue that is—as I mentioned, it’s cultural, it’s health, it’s 

criminal—and organize it in such a fashion that you can take 

implementable steps on each one and work your way through a 

program and evaluate it as you go along as to whether you are 

really doing what survivors need and what justice commands. 

One point I wanted to add with respect to what students have 

told me on the reluctance to report is the issue of confidentiality— 

is the confidential advocate truly confidential—and the law needing 

to be clear about when we have somebody we brand as the confidential independent advocate—well, does that person also have 

reporting responsibilities? If they do, that undercuts the nature of 

confidentiality. There’s a lot of confusion in that area in the law 

right now. 

Senator CASEY. I’m out of time. I’ll have some more questions for 

the record. 

Senator Collins, Senator Murray, thank you very much, and Senator Alexander. 

SENATOR ALEXANDER

The CHAIRMAN [presiding]. I know Senator Collins has to leave. 

I had expected to be in Nashville at a funeral today and was told 

a vote might be close on the highway bill. That’s the way the Senate works. So I came back. 

I thank Senator Collins for, in a short period of time, preparing 

herself and using her usual diligence to chair the hearing. She has 

a background in—we’re all experts on education, but she actually 

worked at a university, Husson University. 

I thank you very much, Susan, for taking time to do this. I know 

that you have to leave, and we’ll wrap up the hearing now as you 

go. We look forward to your advice as we continue with this issue. 

As you can tell from the comments of the Senators, there’s a good 

deal of concern and a surprising amount of humility here, in the 

sense that we’re not sure we know what we can do to help you, and 

we certainly don’t want to interfere with your efforts. Senator Warren’s question was a very good one. She simply asked, ‘‘Well, what 

can we do to help?’’ 

We’ll be finishing our—Senator Murray and I will be working 

with our working groups on the reauthorization of the Higher Education Act this fall. We hope to complete that before Thanksgiving 

in the committee. 

I’ll have more to say about asking for your advice. Thank you, 

Senator Collins. 

Senator COLLINS. Thank you very much, Mr. Chairman. It was 

an honor to substitute for you today. Thank you. 

59 

The CHAIRMAN. Senator Murray, do you have additional questions and comments? 

Senator MURRAY. Mr. Chairman, I just would like to ask unanimous consent to include in the record a statement from the Women’s Legal Defense and Education Fund. I will submit any other 

questions I have. 

I want to thank all of our panelists today for their really expert 

testimony. This is an extremely important topic, and every parent 

who is sending a daughter or a son off to college wants to know 

that we are doing everything we can to make sure they are protected, and you all have given us great insight on how to do this 

correctly. 

Mr. Chairman, I look forward to working with you on this as we 

look at reauthorizing the Higher Education Act. 

The CHAIRMAN. Thank you, Senator Murray. I should add that 

this has been a priority of Senator Murray’s from the day we started working together, and she’s going to continue to focus on campus safety. We’re thinking about a hearing coming up soon on that. 

I have three questions I’d like to ask the panel, and the answers 

can come later. If you have something you’d like to say about it 

now, I’d welcome it. 

Question No. 1 goes back to what I said a little earlier. Government has a way of expressing its concern in laws, rules, and regulations that aren’t as efficient as the concern is real. In other 

words, we sometimes duplicate, and we sometimes cause campuses 

to spend more time filling out forms than working with students 

to, for example, have a session informing incoming freshmen about 

what their responsibilities are. 

Let me ask this. Would each of you be willing to give us specific 

suggestions about how you see title IX and its rules and regulations, the Clery Act and the new regulations—how they could be 

improved, where they conflict, how they could be made clearer so 

that campuses would have the flexibility that you talked about, 

President Napolitano? I didn’t know quite what title to give you, 

but I’ll call you President Napolitano. 

Would you be willing to do that and to give it to us in as specific 

form as you could? If you have any comment you’d like to make 

about that, I’d be glad to have that. 

Ms. NAPOLITANO. I welcome the opportunity to do that. 

The CHAIRMAN. The University of California—I know that 

through your system, you’re so large and such a good system that, 

you’re bound to have plenty of people who are wading through all 

the Federal rules and regulations. 

Just tell us, ‘‘We don’t know what this means, and this duplicates this.’’ You’ve been in so many different positions, as Governor 

and here—you know exactly what I’m talking about, particularly, 

on behalf of all the colleges and universities. We need that by 

around September in order to be able to include it in the reauthorization act if there’s something that we need to do. 

Ms. FLOUNLACKER. Mr. Chairman. 

The CHAIRMAN. Yes. 

Ms. FLOUNLACKER. If I could just add, we would absolutely, as 

President Napolitano said, welcome the opportunity. If I could go 

one step further, we should also pay close attention to the DepartVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6601 S:\DOCS\95801.TXT CAROL
60 

ment of Education and make sure as the reauthorization process 

goes forward that they do not issue any additional guidance without the comment, which is very standard rulemaking process, to 

allow stakeholders, survivor groups, higher education, other experts, the time to ask questions, to clarify as well as provide important expertise to ultimately shape the outcome we all want. 

The CHAIRMAN. That’s a reasonable request. Several of us on the 

committee asked a distinguished group headed by the chancellors 

of Maryland and Vanderbilt to look at, generally, simplifying our 

education rules and regulations and making them more effective. 

One of their findings was that every one of our 6,000 colleges and 

universities gets, on average, every work day, one new guidance or 

rule. I will ask the department not to do that, especially while 

we’re in the midst of the reauthorization of the Higher Education 

Act. 

The other observation to make as a part of that is that only 15 

percent of the colleges are private universities. We often think 

about those. There’s a difference between Nashville Auto Diesel 

College and UCLA in terms of what we might be thinking about 

doing. We need to keep that diversity in mind. 

A second question I would ask you—one college president, a very 

accomplished one—she’s been president of three different colleges— 

when I asked her what we should do about this, she said, 

‘‘You should focus on helping campuses better coordinate 

with law enforcement agencies, but do not turn colleges into 

law enforcement agencies.’’ 

Do you have any comment on that? 

Ms. Stafford, I would think you might. 

Ms. STAFFORD. I absolutely agree. There’s a reason for a campus 

process, and campuses certainly have a place in the process. I don’t 

want to see them become law enforcement agencies. Students have 

the right to choose whether or not they want to move forward with 

pressing charges, and if they do, law enforcement is there for that. 

The campuses provide an alternative for students, as far as the 

disciplinary process, and I think VAWA has actually continued to 

strengthen that process. I fully support not making campuses try 

to take the place of law enforcement. Law enforcement has a specific place, and they will do their job if called upon to do it. 

Ms. NAPOLITANO. I would concur and just say that the goal of the 

student disciplinary process is different than the criminal process. 

However, there can be greater linkage between campuses and law 

enforcement in appropriate cases, and there are ways to do that. 

The CHAIRMAN. The last question I would have is this. What can 

we do or not do to make sure that colleges establish procedures 

dealing with sexual assault that are fair and protect the due process rights of both the accused and the accuser? What should we 

keep in mind as we work on that issue? 

Ms. NAPOLITANO. Senator, that’s something that we’re looking 

into right now—what should be the rights of the accused. It does 

illustrate the difference between a student disciplinary proceeding 

and a criminal proceeding, the confrontation rights, for example. 

They should be different between those two things. We’re working 

our way through that right now. It’s a difficult issue, as you might 

imagine. 

61 

The CHAIRMAN. Right. 

Ms. Bolger. 

Ms. BOLGER. The only point I would add is that title IX as well 

as campus SaVE already requires schools to be fair and equitable 

in their processes. Know Your IX sent a letter to university presidents asking for fairness and that they follow the law. It’s critically 

important that that is the case, and at the end of the day, we’re 

all really on the same piece here. 

There’s a way in which we like to pit people who care about survivors against people who care about accused students. At the end 

of the day, this is about access to education, and that title IX very 

clearly demands that all parties be treated fairly and equitably. 

The CHAIRMAN. Thank you. 

Yes, ma’am? 

Ms. FLOUNLACKER. I was going to make the same point Ms. Bolger made and just might add that in the CASA legislation through 

the reauthorization process, we need to make sure that any new 

training requirements for the confidential advisor, for example, 

doesn’t contradict what’s currently in law and with respect to a fair 

and impartial process. Training requirements is an area we need 

to pay particular attention to. 

The CHAIRMAN. Thank you. 

Senator Whitehouse has slipped in under the wire. I’ll call on 

him, and then we’ll conclude the hearing. 

Senator Whitehouse. 

STATEMENT OF SENATOR WHITEHOUSE

Senator WHITEHOUSE. Thank you, Chairman. Thank you for this 

hearing and thank you very much to all of the witnesses who have 

been wonderful. 

Given the late stage in the hearing, what I might do is offer a 

few thoughts and ask each of you if you would respond to them for 

the record rather than extend this and perhaps run over my time. 

My first thought is that there is not good enough coordination between the Clery Title IX process and the ordinary and proper 

course of a law enforcement investigation, and that we need to find 

a way to disentangle those two processes so that they’re not working at cross purposes with us. Too often, we’ve heard about cases 

in which evidence is unnecessarily lost because law enforcement 

wasn’t brought in at a suitable time. 

We’ve heard about instances in which the university process creates opportunities that are prejudicial to the victim in a later 

criminal justice process by opening avenues of cross examination, 

for instance. Are there any thoughts you may have on how we can 

better accommodate the law enforcement process in this. Given 

that—to quote Senator Gillibrand, ‘‘given the violent felony that 

this actually is,’’ we need to bring law enforcement in at an earlier 

time, which brings me to my second point. 

In my view, the sooner we get law enforcement engaged in the 

process, the better. Now, the counter argument to that is that in 

the past, there have been times and circumstances when law enforcement has done a lousy job of participating in these investigations. The fact that law enforcement has done a lousy job on occaVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6601 S:\DOCS\95801.TXT CAROL
62 

sion is not a reason to keep law enforcement out. It’s a reason to 

improve law enforcement in this area. 

We have a model with domestic violence. It wasn’t too long ago 

when law enforcement was not helpful in domestic violence cases— 

drive the guy around until he sobers up, ask the woman victim 

what she did to provoke him. We’ve learned a lot, and the domestic 

violence community has something to teach us about the integration of victims, advisors, and law enforcement early in the process. 

The third point that I’d ask you to respond to is that the primary 

concern that I hear on behalf of victims is that if law enforcement 

gets involved right off the bat, there’s the risk that the victim will 

lose control over the proceedings. At a time when victims are already feeling that they’ve lost a lot of control and are feeling very 

vulnerable, that can be a very considerable threat. 

I believe that victims are often very poorly informed about the 

reality of a law enforcement intervention. Secretary Napolitano and 

I were both U.S. attorneys and attorneys general together, and you 

really don’t have much of a case if you don’t have a cooperating victim. The likelihood of a criminal case being a vehicle for kind of 

running away with an unwilling victim is very small and can probably be addressed. 

The concept—and I’ll close with this. The concept that I am mulling is that at a very early stage in the report of an alleged assault, 

law enforcement would be involved. The police department would 

be involved. At a time before, unless there was some kind of immediate public safety emergency—there are times when you need to 

react, and, obviously, you shouldn’t prevent that from happening. 

But absent that, there could be a conversation in what, for want 

of a better term, you might call a sort of law enforcement vestibule, 

where the law enforcement officer comes out from his pure law enforcement role into the vestibule, sits with the confidential advisor, 

sits with whoever is handling the Clery piece, sits with the victim, 

and, together, they can walk the victim through what his or her 

real prospects are and what the real likelihood is of being run away 

with by a law enforcement investigation gone berserk and what the 

real risks are of not reporting to law enforcement timely in terms 

of cross examination vulnerability, and what the real risks are of 

losing both electronic and biological evidence if time goes by, and 

figure out a way to make that happen. 

I worry that we’re going to be in a situation in which the fears 

that have been justly provoked by clumsy, untrained, not traumainformed, inexperienced law enforcement interventions in these 

cases are becoming an obstacle for a process where we could create 

experienced, trauma-informed, sensitive, effective law enforcement 

intervention at a very early stage. 

I’ve run out my time. I hope those are useful thoughts, and I 

hope that they’re useful enough to provoke a response from you 

under our questions for the record rule in the committee. 

President Napolitano, you’re probably too busy to do this yourself, so I’d be delighted to receive a QFR response from whoever in 

the vast University of California system you delegate to handle this 

stuff. 

Ms. NAPOLITANO. I’ll write it myself. 

Senator WHITEHOUSE. Mr. Chairman, thank you very much. 

63 

You’ve known me too long to try to get away with that. Thank 

you. Good to see you here. 

The CHAIRMAN. Thank you, Senator Whitehouse. 

I’d like to ask consent to insert statements in the record from individuals and organizations interested in due process rights. We’ve 

received a number of comments on that, including from Judge 

Nancy Gertner at Harvard Law School; Janet Halley, Harvard Law 

School professor; and others. 

[The information referred to may be found in Additional Material.] 

The CHAIRMAN. The hearing record will remain open for 10 days. 

Members may submit additional information for the record within 

that time if they would like. 

The committee plans to hold the next hearing related to the reauthorization of the Higher Education Act on Wednesday, August 

5, to discuss the status of student success at American colleges and 

universities and how to improve it. 

Thank you to the witnesses for coming. We appreciate it very 

much. Some of you have come a long way, and we know that you 

have other things to do, and this has been a big help to us. 

I thank my colleagues. The committee will stand adjourned. 

Senator WHITEHOUSE. Mr. Chairman, may I just make one final 

remark for the record? 

The CHAIRMAN. Sure. 

Senator WHITEHOUSE. My attorney general at home, Peter 

Kilmartin, has convened a group of folks from domestic violence 

victims’ organizations, and Rhode Island has a really rich and robust higher ed community that is all participating in a very, very 

good way. I just want to, on the record, commend Attorney General 

Kilmartin and the higher ed and victims’ community in Rhode Island for the really terrific local work that they are doing which is 

helping to inform what I’m doing here. 

Thank you for the courtesy. 

The CHAIRMAN. Thank you. The committee is adjourned. 

[Additional Material follows.] 

64 

ADDITIONAL MATERIAL 

PREPARED STATEMENT OF SENATOR DEAN HELLER, A U.S. SENATOR

FROM THE STATE OF NEVADA

Chairman Collins, Ranking Member Murray, thank you for the 

opportunity to testify today on the Campus Accountability and 

Safety Act. I am grateful for the committee’s attention to the important issue of combating sexual assault on our Nation’s college 

and university campuses. 

I am proud to have worked alongside Senators McCaskill, 

Gillibrand, Ayotte, Grassley, Blumenthal, Rubio, and Warner to introduce our legislation that will address the shortcomings of current law and ensure all students working toward a college degree 

are able to focus on their studies instead of worrying about the 

threat of being sexually assaulted. 

When we first started working on this legislation, it was important for me to sit down with stakeholders in Nevada to build a 

workable proposal. This is why last June, I held a roundtable in 

Las Vegas to receive input from title IX coordinators, police officers, and victim’s advocacy groups on ways to prevent sexual assault and assist student survivors. I brought their ideas back to 

Washington and much of their feedback helped us craft our first 

bill. This is only one example of our outreach. 

Since the first introduction of our bill, our bipartisan working 

group continued to meet with stakeholders across the Nation, including survivor groups, students, colleges and universities, law enforcement, and others who helped strengthen and improve our new 

bill that we introduced earlier this year. 

From the beginning, we have also worked diligently with your 

committee to ensure our final bill incorporated comments from experts on our Nation’s education system. Our working group strongly believes we have put together a comprehensive product that will 

provide our schools with the tools they need to make our campuses 

safer. 

I know for me, and for many parents, watching your children go 

off to college is one of the proudest moments in your life. Parents 

want to be confident that their sons and daughters will be safe and 

have access to the resources they need from their schools. Unfortunately, this is not always the case. 

Today, there are over 100 colleges and universities under investigation for violations of title IX in their handling of campus sexual 

violence. While we have all seen news story after news story about 

these tragic events, the reality is there are many more survivor stories that have not been heard. 

Sexual assault is a crime that more often than not goes unreported, which is one of the reasons why data provided by our Nation’s institutions simply do not reflect the prevalence of this crime. 

In fact, there are many colleges and universities that have reported 

zero incidences of sexual offenses to the Federal Government. 

I strongly believe one of the most important provisions of our bill 

is the campus climate survey. This survey will improve access to 

accurate, campus-level data by allowing students to anonymously 

share their experiences related to sexual assault. 

65 

Under our bill, schools will give their students an anonymous, 

online survey to gauge the scope of sexual assault on campus and 

the effectiveness of current institutional policies on this issue. The 

Department of Education will be responsible for developing this 

survey, as well as picking up its cost. Schools just need to ensure 

an adequate, random, and representative sample of students take 

the survey. 

The survey results will be reported to Congress and published on 

the Department of Education’s website. Because this survey will be 

standardized, the American public will be able to compare the campus climate of all schools. 

As a father of four children, I wish I had access to this kind of 

information when my kids were preparing to attend college. Now 

as a grandfather of two, my hope is that when they grow up and 

go off to school, our Nation’s campuses will be safer than ever before. 

The campus climate survey will be a useful, educational tool for 

both students and parents, as well as an invaluable resource for institutions to help create or enhance efforts to prevent sexual assault, assist survivors of this crime, and improve campus safety 

overall. 

This provision is just one example of how Congress can act today 

and make ending this crime a priority. While Congress cannot legislate away sexual assault, and no bill is perfect, I believe the Campus Accountability and Safety Act is a step in the right direction 

toward combating this heinous crime and guaranteeing survivors 

have access to the resources they need and deserve. 

Thank you again for the opportunity to testify today. I look forward to continuing our work together to address the issue of campus sexual assault as part of reauthorization of the Higher Education Act. 

PREPARED STATEMENT OF PAIGE DANNE, MOTHER OF ACCUSED SON

Thank you for this opportunity to tell you our story. Our son was falsely accused 

and expelled in 2013. We settled our civil suit with the University and the accuser 

in 2014. We lived a nightmare last year, of injustice and a surreal kangaroo court 

on campus. 

Our son had just turned 18 years old, had never been in any trouble, never even 

been to the principal’s office before, and within 2 weeks of starting his college career, 

was defending himself against a rape accusation. 

He was taken to the security office late at night, without any advocate or support. 

He was asked vague and misleading questions. He was told that there was no need 

to call his parents, that if he told the truth, he would be back in his dorm room 

later that week. He was immediately moved to an isolated room on campus. Our 

son didn’t call us right away, because he was raised to trust adults and authority 

figures, and because he was telling the truth. 

We met with the title IX coordinator on the day he was officially charged. I inquired about his rights and more about the process. We were told to Google ‘‘The 

Dear Colleague Letter 2011’’ and would find his rights information listed there. 

We were told by the Dean of Students and the title IX coordinator that they could 

not tell us what he was being accused of doing, but that it was ‘‘sexual misconduct’’ 

and that could mean, 

‘‘penetration by something, anything, into any part of another person without 

their consent—it could be a finger into a nose, a tongue into a mouth, or a penis 

into a vagina’’. 

They told us they had a team of ‘‘specially trained individuals’’ who only wanted 

the truth, and that they would follow every bread crumb to find that truth. We 

trusted the administration to be fair and unbiased. We trusted that they would actually talk to both students’ witnesses, to write in the investigation report truthfully 

66 

what was said, and to be open and caring to both students during the process. We 

were so wrong. 

He was given a choice of an advocate: either the men’s or women’s soccer coach 

(our student did not play soccer). He was told he could not have anyone else involved in the process and that he could not speak to anyone else about this proceeding or he would be immediately expelled. Our son met with the Dean of Students to discuss the investigations findings. He was found ‘‘responsible’’ of sexual 

misconduct. When he walked out of the building, he vomited and fell to the ground 

in a crumble—what he told us shocked us all. 

They had not spoken to any of his witnesses. 

We inquired to the title IX coordinator about this and were told it would be taken 

‘‘under advisement’’. This happened many times. Any type of question or inquiry 

into the procedures, any question about the equitableness of what was occurring 

was taken ‘‘under advisement’’ without ever answering questions or giving information that professionals trained to adjudicate felony charges under title IX should 

know. 

The investigation report was full of contradictions and one-sided accounts. Our 

son was not given a written copy of the investigation report—he could only read it 

and then tell us verbally what it said. His advocate was outraged, but his hands 

were tied. How could he challenge the university administration? He risked his career and would put his own family’s well-being in jeopardy if he pushed too hard. 

Our son’s advocate was contacted by the school administration about the case many 

times without our son’s prior knowledge or permission. It was clear that the administration were manipulating evidence and witnesses to achieve their predetermined 

outcome. 

It is important that you understand how devastating this process was on our son. 

He was an innocent young student—new to campus and college life, first time living 

on his own—accused of a heinous crime. There was an immediate hostile environment for him at school. He was treated by some of the investigative team with contempt. He had no one to talk to, no one to help him. Because the school had published the incident on the school website, he was branded a rapist from the beginning. He was alone and under great duress without any support. He lost 25 lbs. in 

2 months, became chronically ill from the stress, could not sleep, could not focus, 

and could not eat. He was expected to go to class, keep up with school without any 

accommodations. He was not allowed to confide in anyone or speak about what was 

going on or he would be immediately expelled. The accuser was spreading rumors 

all over campus. At one point, our son was studying in a common area with a friend, 

when someone walked up to him and asked if he was ‘‘The Rapist’’. The accuser 

seemed to seek out our son, and actually went up to him (breaking the no contact 

order) and asked him ‘‘for a hug’’. We immediately went to security and the title 

IX office about these occurrences, but were told there wasn’t anything they could 

do. 

Preparing for the hearing alone proved difficult. His advisor wasn’t able to help 

him prepare for the hearing, but only to guide him through the process. Our son 

had 1 week to prepare for the hearing, and to make matters worse, the Dean of Students only allowed our son limited ‘‘viewing times’’ in the Dean’s office to see the 

investigative report. These times were often during his scheduled classes, so he had 

to miss classroom time without being able to give any explanation as to why he was 

absent. He ended up dropping a class, and his grades fell from A’s to C’s and D’s. 

His health became so poor from the stress he had to take a medical leave of absence. 

After we hired an attorney, the ‘‘investigative team’’ went back and spoke to our 

son’s witnesses prior to his hearing. None of the witness statements made the final 

investigative report. There was one witness, who could without a doubt prove that 

our son was innocent. Our son listed him and others on the witness list for the 

‘‘hearing’’. None of his witnesses were asked to appear. 

During the hearing one panel member actually put her hand up in our son’s face 

to stop him from speaking or asking a question—because the hearing was audio 

taped and not videotaped, she stopped him from speaking any way she could. Our 

son attended his hearing alone, a young 18-year-old defending himself against a 

rape accusation. He faced three adult university employees, the Dean of Students, 

and one fellow student sitting across a small table. The accuser was across campus, 

on the phone which was muted by her at any time and her advocate/advisor giving 

her advice along the way. The ‘‘hearing’’, if you can call it that, was a complete 

mockery of truth and justice. Our son sat there, across the small table from the 

panel, with no way to prove his innocence. Any piece of evidence or witness statements he tried to bring into the hearing that could prove his innocence were shut 

down immediately. At times the audio recording was stopped, so the panel could tell 

him not to question the proceedings and to ensure he would sit quietly while the 

67 

* This article appears in the Winter 2015 issue of The American Prospect magazine. 

hearing ensued. We were told that the hearing was to dispute any facts in the final 

investigative report regarding the incident. He tried to question the 13 instances of 

false information/inconsistencies with statements and within the report—none of his 

questions were allowed. When he questioned why his witness statements or evidence did not make the final report, the investigative team could not provide an answer. The blame shifted from one investigator to another, saying this person was 

in charge—no, wait—this other person was in charge, etc. The panel decided that 

they didn’t need to see or hear his witness statements, that it was ‘‘more likely than 

not’’ that he was ‘‘responsible’’. 

The adjudication process on campus is biased and unfair. The campus tribunal 

controls what evidence is allowed, what questions are asked, and what witnesses 

will speak—ALL BEHIND CLOSED DOORS. This not only hurts innocent students, but hurts true victims as well. 

When we found out what had happened during the hearing and investigation we 

were outraged. How could something as serious as a rape accusation be handled in 

such a biased, unfair way? How could professionals we had entrusted to care for our 

son treat him with such disdain, ignore facts, and not call witnesses? How could 

anyone expect a young 18-year-old, who had never lived away from home before, defend himself against a rape accusation? 

Our son committed Zero Crime—Yet Suffered 100 percent of the Consequences. 

I write today to ask you for some balance on this issue. As a survivor myself, as 

a women, as a mother to a daughter, I strongly advocate for a clear easy reporting 

path, for interim measures, for accommodations for survivors, for prevention and 

education, and for support for anyone reporting. I also urge you to consider what 

is missing for accused students. Students should not have to give up their constitutional right of Due Process when they cross the college gates. They should not be 

deemed guilty until proven innocent. They should not face double jeopardy, have 

their 5th amendment rights violated, be refused appropriate cross examination. Students should be able to have full representation of their choice, have their witnesses, 

evidence and testimony allowed. They should have ample time to review and prepare for the hearing, and be given written copies of the investigative report. They 

should have academic accommodations and be safe from a hostile environment. 

The procedural protections given in civil cases using a preponderance of the evidence standard as mandated by the Department of Education are missing in college 

campus tribunals. Campus adjudication process is not an ‘‘educational process’’. 

These are serious charges with serious consequences. A devastating, life changing 

trial that destroys a young person’s will to live. Innocent students are being marked 

as a sexual predator for life, by inept educators acting as investigator, judge, jury, 

and executioner. 

Our son is still recovering. He suffers from PTSD, depression, anxiety. His hopes 

and dreams, all he had worked for, were taken from him by an unfounded accusation coupled with a biased process. Our entire family lived the nightmare with him 

and we will never be the same. Watching your child crumble before your eyes, bearing witness to the wrongs and not being able to stop them is soul crushing. 

I write today to ask you to help give these students a voice. They have been 

wronged by their school administration, an administration they also trusted, and 

have been victimized by their university. We need strong elected officials to speak 

on their behalf. Please bring back a sense of balance and justice, so that in the quest 

to right a wrong, we are not creating a new group of victims. 

PREPARED STATEMENT OF NANCY GERTNER, HARVARD LAW SCHOOL PROFESSOR* 

SEX, LIES AND JUSTICE—CAN WE RECONCILE THE BELATED ATTENTION TO RAPE ON

CAMPUS WITH DUE PROCESS?

Campus sexual assaults are horrifying, made all the worse because the settings 

are bucolic and presumed safe—leafy campuses, ivy-walled universities. Assaults 

are reported in dormitories, off-campus apartments, and fraternity houses, in elite 

and non-elite institutions, from one end of the country to the other. Title IX (of the 

Education Amendments of 1972) was supposed to promote equal opportunity in any 

educational program receiving Federal money. Until recently, title IX was dormant 

and largely ignored. The enforcer, the Federal Government, had been a paper tiger. 

Universities were not reporting, much less dealing with, either sexual harassment 

or explicit sexual violence. Sexual misconduct impairs a woman’s ability to function 

68 

as an equal in an academic environment—and by extension menaces all women. Unless a woman is safe, all the other guarantees of equal treatment are irrelevant. 

President Barack Obama, in a January 25, 2014, speech, assured his listeners that ‘‘anyone out there who has ever been assaulted: You are not 

alone. We have your back. I’ve got your back.’’ 

In 2011, the government’s approach changed dramatically: A ‘‘Dear Colleague’’ letter on sexual violence was sent to colleges and universities from the Department 

of Education’s Office for Civil Rights (OCR), pointedly reminding them of their obligations under title IX and presaging aggressive enforcement. By August 2013, the 

public face of the department’s enforcement efforts was Catherine Lhamon, assistant secretary at the Office for Civil Rights, a zealous advocate, formerly head of impact litigation at Public Counsel, a public interest law firm; before that, she was 

assistant legal director of the ACLU of southern California. At a July 2014 meeting 

of college administrators, Lhamon made the threat of disciplinary action unmistakable: While no school accused of violating title IX had ever lost its Federal funding, 

‘‘do not think it’s an empty threat,’’ she warned them. A department website an- nounced the campaign against sexual violence on campus, Not Alone. President 

Barack Obama, in a January 25, 2014, speech, assured his listeners that ‘‘anyone 

out there who has ever been assaulted: You are not alone. We have your back. I’ve 

got your back.’’ Even the department’s language changed, no longer referring antiseptically to a complainant and an accused but rather to victims or survivors, and 

perpetrators. 

To feminists—I among them—it was about time that pressure was brought to 

bear on educational institutions. Too often colleges and universities had excused or 

turned a blind eye to the crimes of serial sexual predators. The media, after often 

dismissing the claims of rape victims, was finally more sympathetic, covering accounts of sexual violence from the University of Virginia to Yale and Harvard. This 

kind of sustained attention was precisely what was needed to come to grips with 

the problem. Nothing less would have done the trick. Indeed, nothing had worked 

before. It was as if women, especially young women, had to speak especially loudly 

and especially often to finally be heard—a not unfamiliar concept. 

The problem was that the issues surrounding campus sexual assault were more 

complicated than the public debate reflected. How were universities and colleges to 

deal with the range of campus sexual encounters—a continuum from violent rape, 

to sex fueled by alcohol impairing all involved, to the expectations about women and 

men in the so-called ‘‘hookup culture,’’ to consensual sex followed by second 

thoughts. (At least one feminist scholar, Catharine MacKinnon, has expressed skepticism that a woman could ever voluntarily have sex, given the disparate power relations between men and women in society.) There are plenty of bright lines such 

as forcible rape—but also blurry ones. Genuine ambivalence and ambiguous signals 

seem almost inherent in courtship and sexuality, especially in first encounters. 

Where should the title IX violation line be? What was a reasonable adjudication 

process? What was the role of the criminal justice system in cases in which university conduct codes overlapped with possible prosecutions? 

Further, how were colleges and universities to balance the interests of the complainant with those of the accused? Just as the complainants must be treated with 

dignity and their rights to a fair resolution of their charges be respected, so too 

must those accused of sexual misconduct. You don’t have to believe that there are 

large numbers of false accusation of sexual assault—I do not—to insist that the 

process of investigating and adjudicating these claims be fair. In fact, feminists 

should be especially concerned, not just about creating enforcement proceedings, but 

about their fairness. If there is a widespread perception that the balance has tilted 

from no rights for victims to no due process for the accused, we risk a backlash. 

Benighted attitudes about rape and skepticism about women victims die hard. It 

takes only a few celebrated false accusations of rape to turn the clock back. 

Rape, I insisted, is a crime to which women—including me—feel uniquely 

vulnerable, no matter who they are, no matter what their class, their race, 

their status. 

I come to this issue—campus sexual assault—from all sides. This is not because 

I was a Federal judge for 17 years, where ‘‘considering all sides’’ was part of the 

job definition. I left the bench in 2011 to teach at Harvard Law School, among other 

things. I am an unrepentant feminist, a longtime litigator on behalf of women’s 

rights, as my memoir, In Defense of Women, reflects. Rape, I insisted, is a crime to 

which women—including me—feel uniquely vulnerable, no matter who they are, no 

matter what their class, their race, their status. No one should have been surprised 

that I supported stronger enforcement of title IX, more training for investigators, 

more services for complainants, systematic assessments of the State of enforcement 

on college campuses, and other tough remedies. What surprised many, however, was 

69 

that I was one of 28 Harvard professors who signed a letter opposing Harvard University’s new sexual harassment and sexual assault policies, policies introduced ostensibly in response to pressures from the Department of Education. 

When I was a lawyer, I understood how inadequate the law was in addressing 

sexual violence at all. I worked for changes to the retrograde definition of rape in 

statutes around the country and their disrespectful treatment of rape victims, laws 

that were a throwback to medieval conceptions about women. I lobbied for rape 

shield laws that limited the defense counsel’s cross-examination of a woman about 

her prior sexual experiences. Little did the law trust a woman’s account of rape that 

some States required that a woman’s accusations be corroborated by independent 

evidence, a requirement to which no other crime victim was subject. The definition 

of the crime focused on the woman’s conduct, whether she had resisted ‘‘to the utmost;’’ a simple ‘‘no’’ did not suffice. To the extent that the man’s conduct was considered at all, the statutes required that he use force before his acts amounted to 

rape; drugging a woman, or having sex with one wholly incapacitated by alcohol, 

was not enough. Date rape was never prosecuted no matter what the circumstances. 

But I was also a criminal defense lawyer. I understood more than many how unfair the criminal process could be, how critical the enforcement of a defendant’s 

rights were to the integrity and, even more, to the reliability of the criminal justice 

system. I understood what it meant to have a defendant’s liberty hanging in the balance, how long terms of imprisonment could wreak havoc on the lives of defendants 

and their families. I appreciated the stigma of the very accusation, which persists— 

especially today on the Internet—even if the accused is exonerated. I understood the 

racial implications of rape accusations, the complex intersection of bias, stereotyping, and sex in the prosecution of this crime. 

I reconciled the pressures pushing me in opposite directions by choosing not to 

represent men accused of rape, while bringing civil lawsuits for women against the 

universities or the building owners that failed to provide them with adequate security, or against psychiatrists and psychologists who sexually abused them. I steered 

clear of prosecutions for rape—except for one case. 

A young man, a freshman at a local college at the time the incident happened 

and a friend of a former roommate of mine, was referred to me. (In my memoir, 

I call him ‘‘Paul.’’) He’d had sex with a classmate, his very first sexual encounter; 

he believed his classmate had consented. While we can never know what went on 

between them, the facts—her actions, her words, the testimony of others—made her 

charges wholly unconvincing. A few examples: She went out of her way to invite him 

to her parents’ home a short time after the sex to stay for the weekend. Nine 

months after their sexual encounter, she claimed to have been raped and mentioned 

his name following the breakup of a different relationship and her hospitalization 

for depression. She accused Paul during a conversation with her father, but accused 

another male student while speaking to a classmate. Witnesses reported nothing out 

of the ordinary that evening, no evidence of drinking, no impairment, not even anxiety about what had occurred. Her account itself was improbable, internally inconsistent, and contradicted by the evidence and the testimony of her own classmates. 

While from decades of work on rape and my women’s rights advocacy, I understood 

that this young woman could be telling the truth—that her behavior in the days 

and weeks after the sex, and even her multiple accounts of what went on, could be 

explained by post-traumatic stress disorder, or simply embarrassment—her account 

seemed unlikely. 

The Phi Kappa Psi fraternity house at the University of Virginia has been the 

scene of numerous protests since the report of an alleged gang rape at one of its 

parties. This demonstration on Saturday night, November 22, 2014, was in response 

to the university’s reaction to a controversial Rolling Stone article on the allegations. 

By the late 1980s, when the accusations against Paul were brought, the women’s 

movement had succeeded in making some of the changes for which I and others had 

fought. The popular media finally reported on the horror of date rape and its consequences. District attorneys and police belatedly began to prosecute the offense. 

The definition of rape changed in States across the country, although progress was 

far from uniform. Gone was the mandatory corroboration requirement and limitless 

attacks on a woman’s ‘‘chastity,’’ whatever that meant in the late 20th century. Still, 

we were a long way from adequately dealing with these issues. There were many 

jurisdictions where change came slowly or not at all, where prosecutors and even 

courts not so subtly sided with perpetrators and blamed victims. 

While I believed that Paul had been wrongly accused, and would be exonerated, 

true to my practice I declined to represent him. I asked one of my law partners to 

step in, and then watched with horror as the prosecution unfolded. 

70 

The atmosphere surrounding date rape had changed more dramatically than I had 

appreciated, at least in Massachusetts. The district attorney, though he fully understood the weaknesses of the case, felt compelled to bring the charges lest he face 

political repercussions, for being yet another politician ignoring a woman’s pain. 

Even the grand jury ignored their serious doubts about the case and indicted Paul. 

As I later learned from one of its members, they felt comfortable indicting Paul because I was rumored to be representing him and they assumed he would be acquitted. The judge—with life tenure—likewise felt the pressure. The judge was critical; 

my partner decided to waive the jury when a program on date rape was aired on 

the eve of the trial. While the judge expressed his skepticism throughout the trial— 

every single comment of his pointed to reasonable doubt about Paul’s guilt—his verdict was ‘‘guilty.’’ He did not say so explicitly, but the message seemed clear. If he 

acquitted Paul, he would be pilloried in the press. ‘‘Judge acquits rapist,’’ the headlines would scream. If he convicted Paul, no one would notice. 

Just because the legal system has moved away from the view that all 

rape accusations are contrived does not mean it must move to the view 

that none are. 

I took over the appeal. The brief my firm filed was what I described as a feminist 

brief: Just because the legal system has moved away from the view that all rape 

accusations are contrived does not mean it must move to the view that none are. 

This conviction was not just technically imperfect, I argued, it was a true injustice. 

I was successful. The Massachusetts Supreme Judicial Court reversed Paul’s conviction on a procedural error, the trial court’s evidentiary rulings. The prosecutor could 

have retried the case, but, thankfully, chose not to do so. 

After decades of feminist advocacy (the case establishing the right to choose abortion in Massachusetts, the first introduction of Battered Woman Syndrome in a defense to a murder charge, and on and on), I was picketed by a women’s rights group 

when I spoke on a panel following the reversal of Paul’s case; I was a ‘‘so-called 

women’s rights attorney,’’ one sign announced, simply because I had represented a 

man accused of rape. When I explained why, including the fact that I believed he 

was innocent, a demonstrator yelled, ‘‘That is irrelevant!’’ The experience was 

chilling; to the picketers, a wrongful conviction and imprisonment simply did not 

matter. Paul would have been incarcerated, but for my firm’s advocacy and the appellate court’s independent review. Still, advocacy and appellate review could only 

go so far: Though the charges against Paul were dropped, he was expelled from the 

college he had been attending; he struggled to reapply years later and finally get 

his degree. Worse yet, he continues to suffer from the stigma of the accusation to 

this day, many, many decades later. 

As a Federal judge, I did not have much occasion to address the issues with which 

I had been so concerned as a lawyer. Rape is principally a State, not Federal, crime. 

I did deal with accusations of sexual harassment in the workplace, fully appreciating the extent to which sexual harassment obstructs equal opportunity and discriminates against women. I wrote articles decrying the state of civil rights enforcement in the Federal courts. On the criminal side, while I did everything I could to 

mitigate the harsh effects of onerous drug sentencing, I had no problem sentencing 

sex traffickers as harshly as the law allowed. 

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Still, I could not forget Paul’s case. It shaped the context in which I saw the university sexual assault controversy. As in the 1980s, women mobilized against institutions that had woefully failed to deal with sexual violence and sexual harassment. 

While the movement had successfully raised public awareness about violence and 

harassment in homes, on the streets, and in workplaces, many police, prosecutors, 

and courts were stuck in an earlier era of victim-blaming. Progress seemed to have 

stalled at the doors of the academy, where at least some institutions still dissuaded 

women from bringing complaints while they shielded alleged perpetrators. 

In the summer of 2014, Harvard issued its new Sexual Harassment Policy and 

Procedures. It contained both new procedures for when students are accused of title 

IX violations and new definitions of the covered conduct. While ostensibly in response to the Office for Civil Rights’ pressures, they were released without OCR’s 

approval. In some respects, they go beyond what the 2011 ‘‘Dear Colleague’’ letter 

spelled out. 

OCR has clearly mandated that universities and colleges evaluate accusations of 

rape under a preponderance of the evidence standard. A preponderance of the evidence is in fact the lowest standard of proof that the legal system has to offer. In 

effect, if the evidence leans in favor of the victim to any degree, say 50.01 percent, 

71 

that is sufficient. OCR’s rationale was that this was the standard for suits alleging 

civil rights violations, like sexual harassment. True enough, except for the fact that 

civil trials at which this standard is implemented follow months if not years of discovery—where each side finds out about the other’s case, knows the evidence and 

the accusations, and has lawyers to ask the right questions. Not so with the new 

Harvard regime, which has no lawyers, no meaningful sharing of information, no 

hearings. It is the worst of both worlds, the lowest standard of proof, coupled with 

the least protective procedures. 

The new standard of proof, coupled with the media pressure, effectively creates 

a presumption in favor of the woman complainant. If you find against her, you will 

see yourself on 60 Minutes or in an OCR investigation where your funding is at risk. 

If you find for her, no one is likely to complain. 

But Harvard’s new policy goes further than OCR’s mandated preponderance 

standard. Harvard establishes a fact-finding process that takes place entirely within 

the four corners of a single office, the title IX compliance office. The title IX officer 

has virtually unreviewable power from the beginning of the proceeding to its end. 

The officer deals directly with the complaining witness, advises her, determines if 

the case should be investigated, proceeds to an informal or to a formal resolution. 

If there is a formal investigation, the title IX officer appoints and trains the ‘‘Investigative Team,’’ which consists of one investigator, who is also an employee of the 

title IX office, and a designee of the school with which the accused is affiliated. The 

investigative team notifies the accused of the written charges, giving him 1 week 

to respond. While he has a short deadline, there is no time limit for the complainant’s accusations, no period of time within which she must complain—what the law 

calls a statute of limitations. 

Thereafter, the team interviews the parties and, if it deems appropriate, witnesses 

identified by the parties as well as any others it decides to consult. The team issues 

a final report on a preponderance standard and working jointly with the title IX officer—who was in fact involved in the investigation throughout—may provide recommendations concerning the appropriate sanctions to the individual schools. There 

is an appeal, but it is to that same title IX officer and only on narrow grounds. 

While the final sanction is determined by the individual school, the fact-findings on 

which that sanction is based—this critical administrative report—cannot be questioned. 

As the letter of the 28 faculty members noted, this procedure does not remotely 

resemble any fair decisionmaking process with which any of us were familiar: All 

of the functions of the sexual assault disciplinary proceeding—investigation, prosecution, fact-finding, and appellate review—are in one office, we wrote, and that office is a title IX compliance office, hardly an impartial entity. This is, after all, the 

office whose job it is to see to it that Harvard’s funding is not jeopardized on account 

of title IX violations, an office which has every incentive to see the complaint entirely through the eyes of the complainant. 

Nothing in the new procedure requires anything like a hearing at which both 

sides offer testimony, size up the respective witnesses, or much less cross-examine 

them. Nothing in the new procedure enables accuser and accused to confront each 

other in any setting, whether directly (which surely may be difficult for the accuser) 

or at the very least through their representatives. Nor is there any meaningful opportunity for discovery of the facts charged and the evidence on which it is based; 

the respondent gets a copy of the accusations and a preliminary copy of the team’s 

fact findings, to which he or she can object—again within 7 days, a very short 

time—but not all of the information gathered is necessarily included. Everything is 

filtered through the investigative team, which decides the scope of the investigation, 

the credibility of witnesses, and whom to interview and when. 

Nothing in the OCR’s 2011 ‘‘Dear Colleague’’ letter called for a proceeding remotely like this. Indeed, the letter underscored the need for an ‘‘adequate, reliable 

and impartial investigation of complaints, including the opportunity for both parties 

to present witnesses and other evidence,’’ and to have access to any information that 

would be used at the ‘‘hearing.’’ While the 2014 White House ‘‘Not Alone’’ report 

mentioned that some schools had a ‘‘single, trained investigator’’ doing ‘‘the lion’s 

share of fact finding,’’ as in Harvard’s policy, it did not—and I would argue, should 

not—require such an approach. 

Nor is there any meaningful role for lawyers in the Harvard policy. The parties 

may use a ‘‘personal adviser’’ who can be a lawyer, but that adviser may not speak 

for their advisees at the only relevant stage in this policy, the interview with the 

investigative team, ‘‘although they may ask to suspend the interviews briefly if they 

feel their advisees would benefit from a short break.’’ (Indeed, this description 

sounds like a grand jury proceeding, which is notoriously one-sided, controlled entirely by the prosecutor with no role for the defendant’s lawyer, within the hearing 

72 

room.) Harvard makes no provision for representation of the accused, particularly 

for students unable to afford counsel, as the letter of the 28 professors notes. Richer 

students will have lawyers; poorer students will not. Nothing should prevent a university with Harvard’s resources from providing lawyers for those who cannot afford 

them, as, for example, Columbia University does. In contrast, the complainant has 

advisers and advocates from the title IX office at the outset of the proceeding, advocates especially provided for under the policy. The respondents are left to their own 

resources. As the 28 law school faculty members’ letter noted, even the definition of the misconduct is skewed. The new Harvard standards governing sexual conduct between 

students when both are impaired or incapacitated are ‘‘starkly one sided’’ and ‘‘inadequate to address the complex issues involved in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.’’ ‘‘Impairment’’ 

and ‘‘incapacitation’’ are not the same, under the law. Sex with an individual who 

is incapacitated or unconscious, who does not understand what is happening, is 

plainly egregious, and is rape by any modern definition. ‘‘Impairment’’ because of 

alcohol is surely a different matter. Worse yet, the policy is not equally applied: The 

accused’s ‘‘impairment’’ based on drugs or alcohol is not at all relevant; it is not an 

argument for his ‘‘diminished capacity’’ as it might be under the criminal law of 

some jurisdictions. Instead, the policy treats him as if he were fully sober, fully responsible for his acts. The complainant’s ‘‘impairment’’ is another matter. If both 

parties are drunk, but not unconscious, not incapacitated, and only impaired by 

their drinking, and they have sex, only he is responsible under Harvard’s policy. 

In fact, there is no reason to believe that the students themselves define what 

Professor Janet Halley of Harvard Law School calls ‘‘drunk/drunk’’ cases as rape at 

all. While 10 percent of female MIT undergraduates in a recent study identified 

themselves as having ‘‘been sexually assaulted,’’ 44 percent reported having sex 

while being incapacitated by drugs or alcohol. Plainly, some of the students did not 

regard sex under those circumstances as sexual assault. The unfairness of this policy is nowhere clearer when the misconduct allegations are also the subject of a 

criminal investigation. The policy requires that the respondent be advised to get a 

lawyer—again on his own dime—before he provides any statement, but the investigation may well proceed at the discretion of the title IX office. Should that investigation continue—given his silence—he stands a good chance of losing the disciplinary proceeding and being subject to academic sanctions. At the same time, should 

a legal prosecution end with dismissed charges or an acquittal, there is no provision 

for a reconsideration of the academic sanctions. 

Sexual assault advocates will argue that this is as it should be. It will be traumatic for the complainant to confront her accuser, even if only through her representatives rather than directly. It will be traumatic for the complainant to be 

asked to repeat her story over again. A speedy resolution is critical to her recovery, 

they would suggest. These arguments, however, assume the outcome—that the complainant’s account is true—without giving the accused an opportunity to meaningfully test it. However flawed, the way we test narratives of misconduct—on whichever side—is by questioning the witness, by holding hearings, by sharing the evidence that has been gathered, by giving everyone access to lawyers, by assuring a 

neutral fact-finder. While we know from the Innocence Project that even these 

‘‘tests’’ can produce wrongful convictions, they are at least more likely to produce 

reliable results than the opposite—a one-sided, administrative proceeding, with a 

single investigator, judge, jury, and appeals court. 

Indeed, the Office for Civil Rights has agreed to investigate a claim of a wrongful 

accusation of sexual assault at Brandeis University. A male student was found 

guilty of assaulting his ex-lover, also a man. He claims that the school’s investigation was skewed, that he was not permitted to respond fully to the accusations, that 

his accuser had counsel while he did not, and that his counter allegations were not 

sufficiently credited in Brandeis’s investigation. In effect, the complainant is arguing 

that a flawed, unfair process undermines his title IX rights to equal participation 

in university life. While all of the details of the Brandeis complaint are not clear 

at this time, to the extent that Harvard’s new procedures mirror those of Brandeis, 

Harvard may also be vulnerable to wrongful-accusation charges. 

Some will say that all of this shows that a university has no business at all dealing with sexual misconduct accusations, which amount to a crime. The police should 

be called; the sanction should not simply be suspension or expulsion but prison. In 

a criminal trial, there is no question about due process; the accused has the benefit 

of all the rights guaranteed in the Constitution. Indeed, Yale Law Professor Jed 

Rubenfeld argues that recourse to university remedies rather than a criminal prosecution for rape trivializes the offense, and may even enable serial predators to get 

away with their crimes. 

73 

Yet women are right to be skeptical about the criminal justice system—about fullblown criminal trials and appeals and the toll they take on witnesses and accusers, 

about the higher standard of criminal proof, beyond a reasonable doubt, which, 

though justified by the risk of imprisonment, can leave many claims un-redressed. 

To be sure, there is overlap between the two—when a student accused of misconduct 

under title IX is also vulnerable to a criminal prosecution—but they cannot be mutually exclusive. In any event, title IX’s definition of sexual misconduct and sexual 

harassment is appropriately broader, more nuanced than even the recent statutory 

definitions of rape. While the colleges and universities abandoned their role as 

parens patriae (de facto parents) decades ago, in a sense, title IX has invited them 

back in, policing sexual activities and misconduct—although, according to some commentators, not paying enough attention to the conditions that make that misconduct 

possible, like alcohol and drugs. Still, just because prison is not a risk hardly means 

that title IX disciplinary proceedings are without serious consequences for those accused, and surely does not justify a process as one-sided as is Harvard’s. 

At Oberlin College, administrators worked with students to arrive at a policy for 

adjudicating campus sexual assault cases that has stronger due-process protections 

than Harvard’s. 

There are plainly other options, other ways of protecting the rights of both students who bring complaints and of those they accuse. The policy adopted by Oberlin 

College offers an instructive counter-example. This is all the more interesting, since 

Oberlin has a reputation as a left-wing and politically correct college. Indeed, the 

college was widely ridiculed last year when a professor proposed a conduct code requiring teachers to give ‘‘trigger warnings’’ when a class included material that 

might upset some students. (Oberlin quickly shelved that proposal.) Yet Oberlin’s 

procedure on sexual misconduct may be a model for other schools. 

Oberlin has devised a symmetrical due process proceeding. In language suggested 

by the students, the parties to the case are termed ‘‘reporting party’’ and ‘‘responding party’’ rather than victim and perpetrator. After a preliminary assessment, designed both to provide support to the complainant and to determine whether there 

is reasonable cause to move to a fact-finding panel, a disciplinary proceeding may 

be called. Both parties may present information, call witnesses, and, in lieu of a 

cross-examination, may forward questions that they want the panel to ask the other 

party. The three panelists are trained administrators, none of whom is part of the 

title IX office. ‘‘That would be a conflict of interest,’’ says Meredith Raimondo, 

Oberlin’s title IX director. In the event that punishment is meted out, the responding party has the right of appeal to the dean of students, who is also not affiliated 

with the title IX office. If the complainant feels the outcome is unfair, she may also 

appeal. This policy was created by a task force that included students, faculty, and 

administrators meeting over the course of 18 months. ‘‘We feel there can be great 

harm when the process is seen as biased against reporting parties,’’ says Raimondo, 

‘‘and there can be great harm when it is perceived to be biased against responding 

parties.’’ 

We put our work at risk when the media can dredge up the shibboleths 

about false accusations of rape, a collective ‘‘We told you so ’’ tapping into 

old attitudes. 

Feminists should be concerned about fair process, even in private institutions 

where the law does not require it, because we should be concerned about reliable 

findings of responsibility. We put our decades-long efforts to stop sexual violence at 

risk when men come forward and credibly claim they were wrongly accused. We put 

our work at risk when the media can dredge up the shibboleths about false accusations of rape, a collective ‘‘We told you so’’ tapping into old attitudes. The recent 

feeding frenzy around Rolling Stone’s account of a gang rape at the University of 

Virginia campus shows just how much damage can be done by the claim that a rape 

report was flawed—damage to the women making the accusations, to the men who 

are accused, and to the cause of combating sexual violence. 

There is no question that we have to confront sexual misconduct on campus and 

elsewhere as aggressively and comprehensively as we can. There is no question that 

we have to lift the protection offered the star athlete, confront the administrators 

more concerned with the man’s future than with a woman’s trauma, challenge the 

atmosphere of impunity at fraternity houses and social clubs. We can do so without 

turning every disciplinary proceeding into a full-blown trial, without imposing the 

maximum due process protections, on the one hand, or an administrative Star 

Chamber, on the other. It isn’t necessary to jettison every modicum of a fair process 

to redress decades-long inattention to these issues. It never is. As I argued in Paul’s 

case, we should not substitute a regime in which women are treated without dignity 

for one in which those they are accusing are similarly demeaned. Indeed, feminists 

74 

1 Affiliation provided for identification purposes only. 

should be concerned about fair process, not just because it makes fact-findings more 

reliable and more credible, but for its own sake. 

PREPARED STATEMENT OF JANET HALLEY, ROYALL PROFESSOR OF LAW, HARVARD LAW SCHOOL1

Thank you for inviting me to address the important issue of campus safety, sexual 

misconduct on campus, and due process in our institutional responses. My experience leads me to stress one principle: only a robust and balanced response that 

guarantees due process for both the complainant and the accused can ensure a 

healthy academic environment for all of our students. Only then can we be confident 

all of our youth in college will be safe, protected from sexual misconduct and free 

of institutional over-reaching and simple incompetence. 

The days when institutions of higher education could use slipshod procedures to 

address complaints of campus sexual misconduct are, thankfully, over. The window 

of opportunity to install just and effective processes in their place remains open. 

Colleges and universities nationwide are now installing new disciplinary procedures. 

A few years’ experience with their operation provides important information on reform work still to do. 

I have assisted both complainants and accused students at Stanford University 

and Harvard University, have written scholarly articles and books on the legal regulation of sexual conduct, and have participated in the administration of student discipline and sexual harassment complaints at Stanford. My experience and study tell 

me that some recent reforms have brought new problems of fairness and due process 

for both complainants and those accused which threaten the effectiveness and legitimacy of the important progress we have made. 

Incorrectly believing that they are required to do so by the Department of Education Office for Civil Rights, institutions of higher education are making all employees, with extremely narrow exceptions, into mandatory reporters—people who 

must convey to the title IX office information about alleged sexual misconduct 

whether or not the potential complainant wishes them to do so. This deprives students who may be victims of misconduct of their autonomy and exposes them to serious harm at the hands of University administrators. It also deters students from 

seeking adult help and advice when they are experiencing doubts and distress, and 

interferes with the faculty’s and staff ’s ability to mentor, counsel and care for our 

students in an atmosphere of trust, particularly when they may need us most. 

The parties are given narrow opportunities to resolve cases through mediation, 

and no such opportunities where the allegations involve sexual assault. It is crucial 

to remember that the definition of ‘‘sexual assault’’ goes well beyond the inexcusable 

cases involving violence or rape where it is hard to imagine mediation being warranted. The bar on mediation also applies to unwanted bodily contact deemed to be 

sexual in nature, and these cases, in my experience, are sometimes best resolved 

by sensitive mediation. Without that pathway, the options for those who feel they 

have experienced sexual misconduct are narrow: criminal punishment, student discipline or silence. Complainants often express frustration with this narrow array of 

choices; they object to the lack of a non-punitive option. Congress should listen to 

this, just as we in higher education should. Student misconduct policies should 

model the arts of social mediation, negotiation and peacemaking as well as providing severe sanctions in the severe cases, where the complainant seeks that outcome. 

Indeed, education is what educational institutions are most centrally about, and 

that mission is being forgotten in the rush to punish. For example, we must educate 

ourselves and our students about the differences between a ‘‘sexually hostile environment’’ and the lively exchange, debate, and exploration of ideas that campuses 

exist to foster. Sexual conduct can be verbal, and too many cases charge sexual harassment for speech, academic speech, open debate, and even first amendment free 

speech. 

Title IX procedures are being cutoff from normal disciplinary processes and are 

being run by administrators focused exclusively on sexual misconduct and compliance with laws addressed solely to that very severe problem. While this specialization has some benefits, it also runs serious risks. It attenuates awareness of and 

vigilance against race discrimination, including unconscious bias, which is just as 

much a problem in student sexual interactions as it is anywhere else in our society. 

In my experience, the rate of complaints and sanctions against male (including 

transitioning to male) students of color is unreasonably high. The process does not 

pause to make sure that accused students with disabilities are offered accommodaVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
75 

tions they need to defend charges against them. Students who lack family money 

to pay for lawyers are at a drastic disadvantage in the process, and, given the considerable resources institutions must invest in providing support for complainants, 

this problem cuts strongly against the accused. Providing scant due process for 

these particularly vulnerable groups of accused students runs the very real risk that 

innocent students are being held responsible, sanctioned, and given tainted records 

that will haunt them for years. 

Procedures that put accused students at a disadvantage may also harm complainants, should they find themselves in a ‘‘he said/she said’’ of reciprocal complaints. 

College and university procedures often tilt the process unfairly in the following 

ways: 

• The accused has no right to see the complaint. This is fundamental to due process no matter how narrowly conceived. • The accused has no opportunity to argue that, even if true, the complaint 

should be promptly dismissed for failure to allege disciplinable misconduct, and administrators are under the incorrect impression that they cannot dismiss bad cases 

without incurring the ire of DOE. As a result, those accused are often made to defend cases that should have been dismissed early. The resulting process can take 

months and exact severe costs in distress, behavioral restrictions, educational impacts, and expenditure. None of this should happen when a conclusion of no responsibility is foreordained. • The entire disciplinary process is administered by title IX officers, who advise 

complainants how to file their complaints, receive the complaints, conduct the investigation, hold the hearing if any, decide on responsibility, and hear any appeals. A 

decisionmaker designed this way lacks neutrality and independence and is inherently biased. Many rightly perceive this process to be unfair: far from vindicating 

our values, this squanders the legitimacy of a vital enterprise. Minimal due process 

requires truly independent and neutral decisionmakers, separated by function to 

provide accountability. • Many campus processes lack a hearing. The investigator interviews the complainant, then separately speaks with the accused person and any witnesses, without providing basic information to the parties about what he or she is being told. 

Both parties are completely in the dark until the decisionmaker drafts a report tentatively finding the facts, at which time their input is limited to objections to a fait 

accompli. This is a terrifying process for both parties and disables them from putting their best information forward. It is essentially a Star Chamber. Given the seriousness of the stakes for both parties and for the vindication of institutional values, 

it is a shocking deprivation of fair process. 

• Even when there is a hearing, proper concern for the well-being of complainants 

has led to unfair restraints on the right of the accused to probe evidence and ask 

questions. We call this a ‘‘right to confrontation’’ in criminal procedure, which makes 

it sound harsh and acrimonious—but it need not be. Procedural fixes allowing for 

a full defense without exposing complainants to harassment and unfair questioning 

are ready at hand and are fundamental to a fair process. 

We have come a long way, but have some further reforms to make before we can 

say that this wave of reform has been a success. Thank you for your concern about 

campus safety and campus sexual misconduct, and about the installation of fair and 

effective procedures to address them. 

PREPARED STATEMENT OF JOSHUA C. STRANGE

On May 30, 2011 at a party at a friend’s house, I was introduced to the person 

who would later become my accuser. We both were students at Auburn University. 

She asked me to spend the night at her condo the very first night. Our relationship 

developed quickly and she and her dog began living at my apartment by mid-June. 

I liked her so much that I asked my parents to come to Auburn for a weekend to 

meet her. 

On the evening of June 29, she and I went to a bar together to celebrate a mutual 

friend’s acceptance into law school. By the time we left the bar and went back to 

my apartment, we were both intoxicated. I had a female friend/witness that would 

later offer testimony that when my accuser and I got to my apartment, my accuser 

kept telling my witness that she just wanted to have sex with me. After my witness 

had left my apartment that evening, and my accuser and I slept for a while—I really have no idea exactly how long—we both woke up and she initiated sex. However, 

during the sex, she suddenly became upset so I immediately got up out of bed and 

asked her what was wrong. I had no idea what was wrong but I did not want her 

to be scared or upset, so I told her that I wanted her to have control of the situation. 

My bedroom door in the apartment had a single-key deadbolt on it so that it could 

76 

be locked from the inside and only opened from the outside with a key. I told her 

that I was going to leave the room, lock the door with my key and then slide the 

key (the only key) under the door so that she knew that no one could come in unless 

she allowed it (a fact that she confirmed under oath in court). 

After I had left the room and unbeknownst to me, she called an off-duty police 

officer friend who then in turn circumvented the 911 system and called the police 

for her. I was standing in the kitchen of my apartment when the police arrived and 

barged into my apartment unannounced. They approached me, instructed me to get 

on the floor (which, obviously, I complied) and handcuffed me. I had no idea what 

was going on but I cooperated. One or two of the officers went back to my bedroom 

and she unlocked and opened the door. They talked to her. They talked to me. I 

was put in the back of a squad car and taken down to the Municipal Building. I 

was asked questions and I gave a statement. I was terrified. They took my picture. 

They took my accuser to the hospital for a rape kit. After what seemed like forever 

the officers got a call from the hospital, they took me back to my apartment, they 

said that her statement and my statement of events matched each other and that 

I was free to go, and they left me. I sat down on my couch in absolute disbelief at 

what had happened. I was terrified. I did not know what to do so I just sat there 

in the dark. 

The police came back to my apartment with my accuser around 4:30 a.m. and 

asked me to step outside while she gathered her things and her dog. They then took 

her to her apartment and left her there. A short time later (around 5:15 in the 

morning) my phone began to ring and it was my accuser calling me. She wanted 

to come over to talk and I sure wanted to know what happened, so I agreed. She 

asked if the police were still there. I walked outside and saw that they were still 

in the parking lot outside my apartment so she said was going to park in another 

parking lot so that ‘‘the officer doesn’t see me going up there again.’’ She and her 

dog came back to my apartment and we talked. She and I both apologized for what 

had occurred and she told me that she saw it as nothing more than a misunderstanding between the two of us. I agreed—although I still was not sure what had 

happened—and she went back to my bedroom, got in my bed and went to sleep. She 

asked me to join her because she said I ‘‘looked exhausted’’. I said that I did not 

want to go to bed so I sat on my couch. I still needed to wrap my head around the 

events of the evening. 

In early August, we decided to take a break from dating. She was getting ready 

to go through sorority rush. This, coupled with her continued close relationship with 

an ex-boyfriend, led us to break up for the time being. We kept in regular contact 

and it seemed like we would probably get back together. The night before classes 

started (August 17, 2011) I awoke to a phone call around 1:30 a.m. It was she. She 

wanted to come over. I had an 8 a.m. class, but I agreed. She came over and we 

had sex. The next morning we parted ways but continued to speak through texting. 

It was not until August 28 that we decided to talk about the potential for us rekindling the dating relationship. She wanted to ‘‘get back together’’ but I had a stipulation. I was not comfortable with her extremely close relationship with her ex-boyfriend. When I voiced my concern, she became extremely angry. I told her, ‘‘Since 

you will not back away from the relationship you have with him, you and I are 

done.’’ This was not what she wanted to hear and she stormed away. 

After our conversation, I deleted her phone number from my phone and she and 

I were no longer friends on Facebook. It appeared to me that we were done. We had 

no contact at all from August 28 until September 4, 2011. That evening of September 4 (the Sunday of Labor Day weekend) I was walking to the bar with a couple 

of friends and my phone began to ring. I looked at the number and although it was 

no longer saved in my phone, I recognized it immediately. It was my accuser. I answered to her frantic voice asking where I was. I told her where I was and she said, 

‘‘So, you’re not at your apartment?’’ I told her no and asked if something was wrong. 

She said everything was fine and that she wanted me to meet her to talk about the 

possibility of ‘‘us’’. I could tell something was up but I told her that I was not going 

to meet her that evening. Just before I hung up I told her I would call or text the 

next day—Labor Day—if she wanted to talk. I did send her a text that Monday but 

she never responded to it. 

The day after I sent that text to her (Tuesday, September 6, 2011), I went to WalMart with a female friend/neighbor of mine because I needed groceries. While in the 

check out line, my phone began to ring. It was one of my roommates telling me that 

police officers were at my apartment and wanted to speak with me. I had no idea 

what they wanted but I checked out quickly and rushed home. When I pulled up 

to my building the police were waiting for me at my parking spot. 

At that point I was arrested, booked and photographed but no one would tell me 

the charge. My best friend, Tim (the one who had introduced me to my accuser) 

77 

called my parents to tell them I had been arrested. They arranged for my bail. They 

told me to deactivate my Facebook page and my Twitter account, to stay off my 

phone and not to talk to anyone, including my roommates, about what had happened until they got to Auburn the next morning. 

It was not until 2 days later, on September 8, that I finally learned the charge. 

She claimed it was assault and battery—CDV III. She said that I had approached 

her in a parking lot and hit her in the face on September 4, the night that I was 

walking with friends when she called on my phone. There is no way I had done this. 

I had not seen her in days and I was nowhere near where she had claimed the battery occurred. I could prove it. 

My parents and I met with a lawyer on September 8, 2011. I told my parents and 

my lawyer everything from June 29 all the way to the events of that day—not a 

conversation you EVER want to have, especially with your parents. 

My world was crumbling and I had no way to control it. Within a short period, 

I found out that she had filed a charge against me with the University for beating 

her up and using that claim, the school allowed her to go outside of the 15-day complaint period to file a rape charge against me, too. Then I was told that I was going 

to be presented to a Grand Jury on the sex assault charge and that there was a 

hearing set in criminal court for the battery charge, and the university began to 

pursue disciplinary charges against me for crimes that I had not committed. Many 

of my friends ceased to speak with me. My fraternity kicked me out. My accuser 

had gone to several different groups on campus claiming that I had raped her, beaten her up . . . she even told some people that I had raped other students and that 

I had tried to poison her dog while she was living with me over the summer. I have 

statements from some of these individuals affirming that she made these defamatory statements. I could not talk to anyone in order to defend myself. I had to try 

to make sure that I was not going to prison for something I did not do and that, 

according to my attorney, meant silence. 

On September 27, there was hearing on a Protection from Abuse complaint that 

my accuser had filed on September 9 and during the hearing, she testified that I 

had hit her so hard, I had done permanent damage. She showed up being escorted 

by Susan McAllister, the Assistant Director of Public Safety for Auburn University. 

(Funny, no one from the school offered to be there to support me.) My parents, my 

sister and my brother-in-law were there for me. Her family was nowhere to be seen 

which the judge found odd and even asked her about it. When she took the stand, 

it was clear that the bruise was on the wrong side of her face for my right-hand 

dominance. She had no medical records to show that she had sought any medical 

treatment. She had waited 2 days to even go to the police to file a complaint about 

the purported battery. She had attended the AU/Miss State football game on September 10, 2011 with another guy and had posted pictures on Facebook of her at 

the game—no bruising on her face to be seen. She said that there were witnesses 

to the battery but she did not want to give up their names. The judge issued the 

PFA—they are easy to get—but it was a mutual PFA. 

On October 17, 2011, I got an email from Kelley Taylor, the Auburn University 

then-and-current title IX coordinator, wanting to schedule a meeting with me. She 

refused, however, to ‘‘deal’’ with my attorney so my attorney advised me not to meet 

with her since anything that I said to her could be subpoenaed for criminal court. 

The university scheduled Student Disciplinary Hearings on both of the charges 

but only one of them came to fruition. The first hearing was set for November 8 

and was to be on the sex assault, even though she had filed that complaint second 

to the battery complaint. The school said that it had to hear the sex assault complaint first because it was more serious, but I question that since there was merely 

1 week between to two scheduled hearing dates. The second hearing on the battery 

was set for November 15, 2011. 

In mid-October, about 3 weeks before the first hearing, the school informed me 

they were lowering the standard of evidence in the sex assault to preponderance. 

Prior to that time, everything they had given me about the hearing had indicated 

that it would be clear and convincing. My mother is a paralegal and she immediately knew that this was not going to go well. How could a battery be ‘‘clear and 

convincing’’ and a rape be ‘‘preponderance’’? 

In the meantime, walking around campus had taken a terrible turn. It is hard 

to put the feeling into words. As stated earlier, my accuser had gone to anyone who 

would listen on campus and spread the lies about me. People were staring at me 

while I walked to and from class and I could hear them talking about me in the 

line at Chik-fil-A in the student center and on the campus bus transits. I could hear 

comments like ‘‘That is Josh Strange. He raped and then beat a girl up.’’ I heard 

people whisper and call me a ‘‘monster’’. It was the worst feeling in the world. I 

wanted to say something, but I knew I could not. There was nothing I could do and 

78 

it only exacerbated my despair. I was all alone. Yes, I had my family and my closest 

friends who stuck by my side, but I was really all alone. What was worse, my school 

did not attempt to reach out to me at all. . . . I had no one. 

I submitted all of my witness information and evidence, as I was supposed to do, 

the Friday before the Tuesday, November 8 sex assault hearing. We were supposed 

to do that so that each of us could view the other’s information before the hearing. 

She did not submit hers because she claimed she had to be out-of-town due to her 

brother’s injury in a very serious accident. (We have information that in fact her 

brother rode in a rodeo that very next weekend so he could not have been seriously 

injured in an accident the weekend before the hearing.) Regardless, I did not get 

to review her ‘‘evidence’’. 

The morning of November 8, 2011, I entered the ‘‘hearing’’ room and saw a black 

sheet hung across the middle of the room so that my accuser and I could not see 

each other. The minute I entered, a feeling of doom came over me. I somehow knew 

at that moment that my time at Auburn was over. For the hearing, I was allowed 

to have one person in the room with me but that person could not speak. She could 

have a ‘‘silent’’ advisor, too. We could present witnesses and evidence but we could 

not ask each other direct questions nor could we question the witnesses directly. My 

attorney had asked that her ‘‘other’’ boyfriend be compelled to attend the hearing 

as we felt that he had pertinent information about the night of June 29 since he 

was also at the bar and was, we believe, buying her drinks. However, Dr. Brandon 

Frye, Dean of Students at the time, said that he was not able to compel students 

to attend a hearing. 

My accuser’s advisor, much to my dismay, was the prosecutor for the city of Auburn that was going to try me in criminal court. As soon as my attorney saw him, 

I was told not to testify in my own defense since my attorney could not actively assist me during the hearing. Again, anything said in that room could be subpoenaed 

and held against me in criminal court, I would have been testifying in front of the 

criminal court prosecutor, and because my attorney could not speak or object to anything said during the hearing, he did not want me to say anything at all. 

The hearing began. She presented her case and her ‘‘witnesses’’—the title IX coordinator and the assistant director of Public Safety for the school—neither of who 

had witnessed anything and even admitted that they had not asked her any details 

about the ‘‘rape’’ incident. She testified that she had to be tutored/home schooled 

because I was such a threat—I have downloaded her FaceBook information that 

shows her at sorority rush, at fraternity parties, at football games, hanging out with 

her other boyfriend, and at various places on campus during this time, which directly contradicts her allegations that I was a threat to her and she was afraid of 

me. I then presented my witnesses: Tim, who told about our obvious ongoing relationship post-June 29; my sister and her husband who each testified about the relationship during the weekend that they spent with us in mid-July; and my female friend 

that had helped us on June 29 when my accuser had repeated several times that 

she wanted to have sex with me that night. 

After the deliberations, the university hearing panel found me ‘‘guilty’’ and recommended expulsion. Although I could not see her on the other side of the black 

curtain, I heard a slight laugh come from her direction. It felt like being punched 

in the gut. I walked out of the room to see my parents. I had to tell them but the 

words would not come out. My knees buckled. I heard my lawyer tell my mom. She 

looked as though she was going to be ill. I will never forget seeing how much this 

had hurt my parents. 

After she got the result she wanted in the sex assault matter, my accuser dropped 

the battery complaint with Auburn so we never had the student hearing set for November 15. The school did not inform us that she had withdrawn the complaint 

until the evening before the hearing so my parents had already driven all the way 

back to Auburn for the second time in a week when we found out she had withdrawn it. No matter to the school or to her since her parents—her parents had not 

attended anything except football tailgate parties so far that semester. They certainly never showed up for the school or for the court hearings. 

The wait for the decision by the VP of Student Affairs then began. It was an agonizing 3 weeks before Dr. Ainsley Carry rubber-stamped the expulsion. Again, another kick in the gut. I thought surely he would listen to the hearing recording and 

know that her testimony was false—the school should know that she wasn’t being 

home-schooled, right? Or perhaps ask me or my witnesses questions—something, 

anything. He didn’t. To this day, I don’t think he ever even knew exactly who I was. 

From the date of Dr. Carry’s decision, we had 5 calendar days to enter an appeal 

of the expulsion to the president of Auburn University, which we did within the 

time limit given by the university. We filed it at the beginning of December. She, 

79 

in turn, was to have 5 days to respond to my appeal. She finally sent her response 

in on January 18, 2012, more than a month later. I assumed that Dr. Jay Gouge 

would not accept her response. Wrong again. 

Keep in mind that while all of this was going on, I was still facing criminal 

charges from the city of Auburn (battery) and potential Grand Jury presentation in 

the State of Alabama (rape). I was in a constant feeling of despair and fear, depression. I was always looking over my shoulder and putting my head down, hoping that 

people wouldn’t notice me and say something. It was a terrible feeling. Even more 

crushing was that I knew my parents were feeling the same way. They would call 

to make sure I was all right, sometimes multiple times a day. I knew they were 

worried for me and about me. It was defeating. 

Finally, after all of this waiting—this pain and anguish that I had been experiencing—a small ray of sunshine broke through the clouds. I was ‘‘no-billed’’ by a 

Grand Jury on the sexual assault charge stemming from the June 29 incident. Surely, if the Grand Jury found not even probable cause then the president of Auburn 

should see that there was no preponderance of evidence, since that is a higher 

standard. I was happy that I had finally been cleared and that others realized I had 

not committed a crime. 

That happiness and relief was short-lived. Five days after the Grand Jury ‘‘nobilled’’ my case, I was called into the Office of Student Conduct. The president of 

the University had finally made a decision on my case: it was February 8, 2012. 

I sat down across from the Dean of Student Affairs, Dr. Brandon Frye, and he began 

to explain. His almost smug demeanor and his words will live with me forever: 

‘‘Some days my job is very good because I get to tell students that their troubles are over and they get to stay in school. Some days my job is one of the 

worst because I have to tell students that they have been expelled from school 

and cannot return. Unfortunately, this is one of those days. I am sorry to say 

you have been officially expelled from Auburn University on the grounds of violating the Code of Student Conduct.’’ 

That was it. I was officially expelled. I was never allowed to return to university 

grounds unless I wished to face charges of criminal trespassing. I texted my mom, 

‘‘I am gone. Expelled. It is over.’’ I knew she would be devastated, too. I was at the 

bottom of the pit. 

I had previously thought that I couldn’t possibly feel any worse than I did the 

day they recommended expulsion. Oh, how I was wrong. I spiraled into a deep depression. I was rejected and shamed. I had spent so much time and money with the 

university and I had absolutely nothing to show for it except failure. I felt more 

alone than ever. I remember going home and just sitting on the couch alone and 

thinking ‘‘What in the hell do I do now? What just happened? Why is this happening 

to me?’’ I could barely breathe. It hurt so much I could not even cry. I guess it was 

shock. 

We asked for a refund of my tuition for Spring 2012, since it was just the beginning of the semester. They refused. I had to remain in Auburn from February 8 

until the assault hearing 31⁄2 months later because I had to report to a bail bondsman once a week—something I had been required to do every single Tuesday at 

noon for 8 long months. The refunded tuition money would have helped me support 

myself. To add insult to injury, when grades came out for Spring 2012, they had 

not withdrawn me and had instead let me fail. They even sent a letter saying that 

according to my professors, I had ‘‘stopped attending classes’’ and as such, they had 

returned my student loan money to the Federal student loan program and they were 

going to invoice me for the money that I now owed them. I still have that letter. 

Time dragged until it was time for the hearing on May 24, 2012. My parents yet 

again drove the 4 hours to Auburn and paid for a hotel room and paid attorney fees 

for the hearing. My accuser did not show up—purportedly because, as she told the 

court, she had to work at her waitressing job. We subpoenaed copies of her work 

records for that day—she had the day off. Her failure to show up for the hearing 

resulted in a dismissal of the case against me. I was glad it was over but I was 

very disappointed that not only did I not get to prove in court that she had lied 

about the entire incident but I had also asked my witnesses to drive in from outof-town for the hearing which turned out to be a waste of their time. 

I left Auburn and moved home to South Carolina shortly after May 24, 2011, still 

in a relatively deep depression. I constantly felt doomed. I began drinking a lot. I 

spent weeks in my room with the drapes drawn. I still had no FaceBook page, no 

social media at all, no social life at all. My parents finally convinced me that I needed to try to get into another school—to get a life and find a future. The Dean of 

Students at Auburn had told me that my transcript would be stamped ‘‘Expelled’’ 

80 

so I was terrified to try to apply anywhere else. I did not want to have to explain 

it, to have to talk about it. I just wanted to hide. 

My mother finally convinced me that I needed to find a way out of the despair. 

She talked me into applying to The University of South Carolina-UpState. I was accepted, much to our shock and surprise. My transcript from Auburn actually showed 

me as a ‘‘Student in Good Standing.’’. Auburn had also changed my ‘‘Fs’’ to ‘‘W’’ 

since we contacted their outside counsel and pointed out the error of their ways in 

not withdrawing me. 

Unfortunately, because I have spoken to the media, and although her name has 

never appeared in print, Auburn University dragged their feet in letting me see my 

records that I had requested under FERPA because they claim that I have divulged 

her identity to the media. She ran all over campus telling anyone she could find 

all of her claims about me, never attempting to hide her identity but I am not allowed to talk about my story, according to Auburn University. I was finally allowed 

to view my records this past February—we were required to drive 51⁄2 hours to 

Montgomery, AL to see them—but Auburn has still refused to allow me to have a 

copy of them. In reviewing them, however, I now know that all of these false police 

reports, the lie about the battery charge, it is all in there. We have asked Auburn’s 

counsel what we can do to get my side of the story into my file, since the hearing 

on the battery never took place and therefore my information has been left out. 

They have refused to let us submit anything in my defense. According to them, the 

case is ‘‘closed’’ and nothing can be added or removed. Any grad school, any security 

clearance that I may need to further my professional career can be derailed by what 

is in that file. It is a never ending story. 

My life will never be the same. My dreams have changed. My hopes have 

changed. Friendships have been lost. To this day, I am afraid to date. My parents 

have had to struggle to pay legal bills. My mom still cries at times. It does not have 

to be this way. It should not be this way. 

AMERICAN FEDERATION OF TEACHERS (AFT), 

WASHINGTON, DC 20001, 

July 29, 2015. 

Hon. LAMAR ALEXANDER, Chairman, 

Hon. PATTY MURRAY, Ranking Member, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

Washington, DC 20510. 

DEAR CHAIRMAN ALEXANDER AND RANKING MEMBER MURRAY: On behalf of the 

more than 1.6 million members of the American Federation of Teachers, I would like 

to thank you for holding today’s hearing on combating campus sexual assault as 

part of the Higher Education Act reauthorization. It is an important step in the effort to end rape and sexual assault on our college campuses. 

The incidence of these crimes is both numbing and staggering. According to the 

U.S. Department of Education, more than 5,000 forcible sex offenses were reported 

on college campuses in 2013. Additional data tells us that 90 percent of campus 

rapes are committed by repeat offenders and that 73 percent of lesbian, gay, bisexual and transgender students reported experiencing sexual harassment. A recent 

study explains that the actual number of offenses on campus is estimated to be at 

least six times higher than the reported number. Sadly, only a tiny fraction of the 

victims will file a report, in part because our culture tells them that they are to 

blame—the same culture that kept me from speaking out about my own sexual assault for nearly 30 years. 

We all have our own stories to share, and we all must be part of the solution. 

Here’s my part: I represent hundreds of thousands of workers at colleges and universities who can help effect change on campus. I can do something; our union members can do something—and we are. So can Congress. 

Senators Claire McCaskill and Kirsten Gillibrand have introduced legislation— 

S. 590, the Campus Accountability and Safety Act—to protect students and hold institutions accountable. They are joined by a bipartisan group of 31 Senators who 

also support this bill. The bill would: 

• Provide new support services for student survivors on campus; 

• Allow students, parents and the community to have an accurate account of sexual assaults on campus by mandating new transparency requirements; 

• Require colleges and universities to provide information on how they are addressing sexual assaults on campus as well as to train their staff to reduce the incidence of these assaults; and 

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• Require that a uniform student disciplinary process be put in place with the coordination of law enforcement. 

Ending the plague of sexual assault on campus is going to take many partners— 

students, administrators, faculty, staff, unions, advocacy groups and law enforcement. It will take putting sound policies in place on campus and implementing these 

policies faithfully. Legislation like the bill proposed by Senators McCaskill and 

Gillibrand will ensure that colleges and universities are held accountable in these 

areas. Accordingly, the AFT urges you to include the Campus Accountability and 

Safety Act into the HEA reauthorization bill. 

I look forward to working with you to move our country ahead on this issue and 

on the overall HEA reauthorization. 

Thank you, 

RANDI WEINGARTEN, 

President. 

FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION (FIRE), 

PHILADELPHIA, PA 19106, 

July 28, 2015. 

Hon. LAMAR ALEXANDER, Chairman, 

Committee on Health, Education, Labor, and Pensions 

428 Dirksen Senate Office Building, 

Washington, DC 20510. 

Hon. PATTY MURRAY, Ranking Member, 

Committee on Health, Education, Labor, and Pensions 

428 Dirksen Senate Office Building, 

Washington, DC 20510. 

Re: Sexual Assault on College Campuses 

DEAR CHAIRMAN ALEXANDER AND RANKING MEMBER MURRAY: As you know, the 

Foundation for Individual Rights in Education (FIRE; thefire.org) is a nonpartisan, 

nonprofit organization dedicated to defending student and faculty rights on America’s college and university campuses. These rights include freedom of speech, freedom of assembly, legal equality, due process, religious liberty, and sanctity of conscience—the essential qualities of individual liberty and dignity. 

Last summer we wrote to you to provide our input regarding the adjudication of 

allegations of sexual assault on university campuses. See Exhibit A, attached. 

Today, we write to provide our analysis of S. 590, the Campus Accountability and 

Safety Act (CASA). 

As a general matter, FIRE has serious misgivings about the ability of colleges and 

universities to adjudicate allegations of serious felonies like campus sexual assaults. 

Campus disciplinary boards lack the ability to collect, hold, and interpret forensic 

evidence. They lack the ability to subpoena witnesses or put those that appear voluntarily under oath. The parties typically lack the representation of experienced, 

qualified legal counsel, and they do not have the right to discovery. These proceedings are not governed by rules of evidence and often disregard the right to confront adverse witnesses. Ultimately, the fact-finder—often a single investigator—decides whether there was a sexual assault under the low ‘‘preponderance of the evidence’’ standard, which merely asks the fact-finder to decide if one side was even 

the tiniest bit more persuasive than the other. Expecting these tribunals to reach 

consistently reliable findings under these limitations is unrealistic. 

The current approach is unacceptable. In addition to the incompetence that permeates this field, college administrators often have real or perceived interests in the 

outcomes of these cases, further undermining the reliability of the process. It should 

go without saying that sweeping accusations under the rug is illegal and immoral, 

but so is punishing accused students when there is insufficient evidence—and there 

is overwhelming evidence that both situations are occurring with alarming frequency. Legislation may not be able to bridge the vast competency gap between the 

adjudicatory capabilities of educational institutions and actual courts coordinating 

with law enforcement, but it can help reduce bias, provide ample resources for education and prevention efforts, and provide all the affected parties with meaningful 

procedural rights that will help them protect their own interests. 

Under CASA, college communities would continue to rely on campus judiciaries 

to reach factual determinations and punish those deemed responsible for committing 

these heinous crimes. While the bill will not alleviate the risk of unjust findings 

caused by assigning amateurs the responsibility of adjudicating these important 

cases, it does offer some improvements over the status quo. It contains provisions 

FIRE supports; specifically, the requirement that institutions enter into agreements 

with local law enforcement agencies, and the important provision that prohibits inVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00085 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
82 

stitutions from adjudicating cases against student athletes in special proceedings. 

Other provisions, however, require amendment. 

NEUTRAL LANGUAGE

First, CASA treats the problem of addressing sexual assault on campus like a onesided issue of supporting victims, instead of attempting to protect the rights of both 

complainants and the accused. Indeed, the bill presumes the guilt of all accused students, referring to accusers as ‘‘victims’’ throughout the legislation, even when referring to them in the pre-adjudication context. Failure to use neutral language 

that refers to accusers as ‘‘complainants’’ prior to adjudications signals to 

institutions that Congress does not truly value impartiality in these proceedings. 

UNEQUAL ASSIGNMENT OF UNIVERSITY RESOURCES

The bill also injects inequality into sexual assault proceedings by providing substantial resources—for example, a ‘‘confidential advisor’’—to complainants without 

providing similar resources to the accused. This imbalance is potentially at odds 

with regulations implementing the reauthorization of the Violence Against Women 

Act (VAWA), which require colleges to provide ‘‘the accuser and the accused with 

the same opportunities to have others present during any institutional disciplinary 

proceeding, including the opportunity to be accompanied to any related meeting or 

proceeding by the advisor of their choice.’’ Additionally, the Department of Education’s Office for Civil Rights (OCR) has interpreted title IX’s implementing regulations to require that colleges allowing advisors to participate ‘‘at any stage of the 

proceedings . . . must do so equally for both parties.’’ As OCR observes, ‘‘[a] balanced and fair process that provides the same opportunities to both parties will lead 

to sound and supportable decisions.’’ FIRE supports CASA’s determination to 

provide resources to help complainants navigate the system, but we urge 

Congress to provide similar resources to the accused. 

TRAUMA-INFORMED TRAINING FOR FACT-FINDERS

Adding to the imbalance, the bill mandates that university employees responsible 

for ‘‘resolving complaints of reported sex offenses or sexual misconduct policy violations’’ must receive training on ‘‘the effects of trauma, including the neurobiology 

of trauma.’’ Trauma-informed training asserts that inconsistencies in a witnesses’ 

testimony is likely the result of trauma as opposed to being inaccurate. While trauma-informed training may be appropriate for first responders and those conducting 

initial interviews, providing that training to campus adjudicators potentially undermines the impartiality of the process. Certainly inaccuracies in a witness’s testimony do not increase the reliability of his or her account. The bill should be 

amended to make clear that such training is not to be provided to fact-finders, who are supposed to be impartial. 

PENALTY PROVISION

Another problematic aspect of the bill is its penalty provision, which allows colleges to be fined 1 percent of their operating budgets per violation. While we presume this provision was intended to provide a more realistically enforceable penalty 

than the current penalty structure under title IX—which subjects institutions to a 

loss of all Federal funding—this provision potentially increases penalties. Federal 

dollars are only one source of funding for institutions. For example, if the Department of Education finds more than 15 violations at an institution that receives 15 

percent of its operating budget via Federal funds, the potential penalty will be 

greater than it is under the current system. Indeed, OCR claimed to have found 

over 40 unique violations at the University of Montana in 2013. The penalty provision must be capped, otherwise the status quo, in which institutions are 

too terrified to ever contest OCR’s rulings for fear of incurring a devastating penalty, will be exacerbated. 

MANDATORY REPORTING TO LAW ENFORCEMENT

Despite growing consensus across the country that cutting law enforcement out 

of the loop is dangerous for all involved, including future victims, CASA states that 

the ‘‘victim’s wishes’’ will determine whether an institution must cooperate with 

local law enforcement ‘‘with respect to any alleged criminal offenses involving students or employees.’’ Students who have committed violence or pose a serious threat 

of committing violence should immediately be reported to law enforcement. With 

limited exceptions, college administrators who witness or receive credible allegations 

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of sexual assault or other violent criminal activity should be required to report such 

allegations to law enforcement. 

Mandatory reporting by college officials would ensure that law enforcement is 

never left in the dark about a potentially dangerous situation. Even with mandatory 

reporting, victims would still decide whether they wished to cooperate with a potential police investigation. Even if mandatory reporting deters some victims from reporting, Congress should not forget that universities cannot take dangerous perpetrators off the streets—only law enforcement can do that. A provision requiring 

administrators to promptly report known allegations of sexual assault ensures more 

timely law enforcement responses, and it greatly increases the chances perpetrators 

will be held appropriately accountable. A mandatory reporting provision should 

be added to CASA. 

PROPOSED ADDITIONS TO CASA

As remarkable as CASA is for what it includes, it is also worth noting what it 

lacks. The bill mentions due process only in passing, and it fails to provide meaningful procedural protections beyond those already codified in existing legislation. 

While it provides both students with notice of the charges and sufficient time to 

‘‘meaningfully exercise the due process rights afforded to them under institutional 

policy,’’ this language provides no relief whatsoever to the students on campuses 

where institutional policies are inadequate or even biased on their face. 

This deficiency can easily be cured by including provisions that offer students tangible procedural protections. For example, Congress should insert a provision into 

CASA that grants both complainants and accused students the right to hire lawyers 

who could actively participate in the hearings on their behalf. It should also be 

amended to require institutions to notify students of their rights at the onset of an 

investigation and provide students the right to remain silent, without allowing the 

fact-finder to draw an adverse inference. 

Institutions should be required to allow the parties to appropriately confront adverse witnesses, including the complainant. Congress should also require campus investigators to turn exculpatory evidence it discovers over to the accused. Adding 

these protections is the minimum that must be done to ensure that accused 

students are given fair hearings. 

FIRE is pleased that the Senate Committee on Health, Education, Labor, and 

Pensions is considering legislation on campus sexual assault. Before legislation is 

advanced, FIRE hopes the committee will insist that it takes a balanced approach 

that meets the needs of all affected parties. We hope that the committee will consider making the changes to CASA that FIRE recommends, so that we can support 

its passage. Thank you for the opportunity to provide our input. We look forward 

to assisting the committee as it proceeds with this important task. Please do not 

hesitate to call on us if we can be of any assistance. 

Respectfully submitted, 

JOSEPH COHN, 

Legislative and Policy Director. 

ATTACHMENT—EXHIBIT A 

FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION (FIRE), 

PHILADELPHIA, PA 19106, 

June 26, 2014. 

Hon. TOM HARKIN, Chairman, 

Committee on Health, Education, Labor, and Pensions 

428 Dirksen Senate Office Building, 

Washington, DC 20510. 

Hon. LAMAR ALEXANDER, Ranking Member, 

Committee on Health, Education, Labor, and Pensions 

428 Dirksen Senate Office Building, 

Washington, DC 20510. 

Re: Sexual Assault on College Campuses 

DEAR CHAIRMAN HARKIN AND RANKING MEMBER ALEXANDER: The Foundation for 

Individual Rights in Education (FIRE; thefire.org) is a nonpartisan, nonprofit organization dedicated to defending student and faculty rights on America’s college and 

university campuses. These rights include freedom of speech, freedom of assembly, 

legal equality, due process, religious liberty, and sanctity of conscience—the essential qualities of individual liberty and dignity. Every day, FIRE receives requests 

84 

for assistance from students and professors who have found themselves victims of 

administrative censorship or unjust punishments. 

We write you to provide our input regarding the adjudication of allegations of sexual assault on university campuses. We thank you for dedicating the time to address this critical issue. 

As we explained in our Comment to the White House Task Force to Protect Students From Sexual Assault (‘‘Task Force’’), due process rights are one of FIRE’s core 

concerns. While there is no doubt that institutions of higher education are both legally and morally obligated to effectively respond to known instances of sexual assault, public institutions are also required by the Constitution to provide meaningful 

due process to the accused. Goss v. Lopez, 419 U.S. 565, 584 (1975); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). FIRE has long maintained that these two responsibilities need not be in tension. 

As I am sure each of the members of the Senate HELP Committee would agree, 

access to higher education is critical—especially in today’s economy, where a college 

degree is so often a requirement for career advancement. Given the high stakes for 

both the accusers and the accused in campus sexual assault disciplinary hearings, 

it should be beyond question that neither student’s educational opportunities should 

be cut short unjustly. Just as it is morally wrong and unlawful for a college to sweep 

allegations of sexual assault under the carpet, it is also inexcusable both ethically 

and legally to expel an accused student after a hearing that provides inadequate 

procedural safeguards. As recent news reports have demonstrated all too well, both 

of these regrettable outcomes occur at campuses across the country with alarming 

frequency. To date, however, the political focus on addressing sexual assault on 

campus has been disappointingly one-sided, focusing almost exclusively on the 

rights of complainants while paying insufficient attention to the rights of the accused. 

This lopsided focus has already had negative consequences for the rights of accused students in sexual assault adjudications conducted in recent years. As the 

partners of the National Center for Higher Education Risk Management (NCHERM) 

recently stated in an open letter: 

‘‘We hate even more that in a lot of these cases, the campus is holding the 

male accountable in spite of the evidence—or the lack thereof—because they 

think they are supposed to, and that doing so is what [the Department of Education’s Office for Civil Rights] wants.’’ 

NCHERM’s statement was remarkable not only because of the organization’s extensive client list—it currently provides legal services to over 50 colleges and universities—but also because Brett Sokolow, NCHERM’s founder, president, and chief 

executive officer, has been an outspoken proponent of Federal involvement in campus sexual assault adjudication, describing himself as an ‘‘activist’’ for victims’ 

rights. In other words, OCR’s mandates have had such a negative effect on campus 

justice that even outspoken proponents of those mandates are voicing serious concern. While tackling the obvious failings of the current system is useful and necessary, exchanging an institutional disregard for accusers for an institutional disregard for the accused is not an acceptable outcome and does not advance justice. 

FIRE is hopeful that the Senate HELP Committee will tackle this important issue 

from a more balanced perspective that addresses the needs of all students. 

Thus far, a great deal of the discussion about how to best address sexual assaults 

on college campuses has accepted the premise that university administrators are 

qualified to serve as fact-finders and adjudicators. If there is one thing that all sides 

of this issue agree on, it is this: Few if any schools have demonstrated the competence necessary to capably respond to the problem of sexual assault on campus. 

Too many campus administrators inject their biases into the process, while the rest, 

despite often trying their best, simply lack the necessary expertise. This is the reality of the current system, and it is very difficult to imagine legislative remedies 

to the basic problems presented by entrusting the adjudication of allegations of serious criminal misconduct to a campus judicial system that often has a conflict of interest and, perhaps more importantly, was not intended to handle such serious responsibility. The current arrangement benefits no one, and it’s readily apparent failures should lead us all to question the wisdom of doubling down on this broken system. 

FIRE is not alone in our assessment that campus judiciaries are ill-equipped to 

adjudicate sexual assault cases. Carol Tracy, the executive director of the Women’s 

Law Project, has echoed FIRE’s concerns, stating, ‘‘My grave concern is the capacity, 

the competence, and the appropriateness of colleges dealing with rape outside the 

criminal justice system.’’ 

85 

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

It would never occur to anyone to leave the adjudication of a murder in the 

hands of a school’s internal judicial process. Why, then, is it not only common, 

but expected, for them to do so when it comes to sexual assault? We need to 

get to a point where it seems just as inappropriate to treat rape so lightly. 

While we respect the seriousness with which many schools treat such internal 

processes, and the good intentions and good faith of many who devote their time 

to participating in such processes, the simple fact is that these internal boards 

were designed to adjudicate charges like plagiarism, not violent felonies. The 

crime of rape just does not fit the capabilities of such boards. They often offer 

the worst of both worlds: they lack protections for the accused while often tormenting victims. 

Training requirements for the campus administrators (and sometimes even students and faculty) handling these cases are unlikely to sufficiently fix the core 

disjunction between the competencies of institutions of higher education and the 

grave responsibilities inherent in the adjudication of sexual assault allegations. As 

the NCHERM partners observed: 

‘‘[T]he public and the media need to understand that campus [sexual assault] 

complaints are not as clear-cut as the survivors at [victims’ advocacy group] 

Know Your IX would have everyone believe.’’ 

Sexual assault allegations are often nuanced and complex, which is one of the reasons why they present challenges to even the trained professionals employed by our 

criminal justice system. Instead of creating a parallel justice system staffed by inexperienced, partial, and unqualified campus administrators to adjudicate campus sexual assault, policymakers should instead take this opportunity to improve and expand the effectiveness and efficiency of our criminal justice system to ensure that 

it provides an appropriately thorough, prompt, and fair response to allegations of 

campus sexual assault. Professional law enforcement and courts have the benefit of 

years of expertise, forensics, and legal tools like subpoenas and sworn testimony 

that aren’t available to campus adjudicators. These resources should be brought to 

bear on campus. 

While ill-suited to determine guilt or innocence in sexual assault cases, colleges 

still have both a moral and legal obligation to ensure that campuses are free from 

discriminatory harassment and sexual assault. To that end, they may still meet this 

responsibility by providing a vast range of intermediary remedies and responses to 

student complainants. Colleges should be advising students about where to turn to 

ensure that evidence is preserved. They should help complainants report accusations properly to law enforcement. They can provide training to first responders to 

make sure that the initial interviews don’t chill future complainants from coming 

forward, and to ensure that information gathered during these crucial interviews 

are helpful to fact-finders down the road. Colleges can provide counseling services. 

They can separate students by changing course schedules and dorm assignments. 

As FIRE told the White House Task Force, 

‘‘All of these options, and many more, help ensure that the campus remains 

a safe place for all students to learn without leaving ultimate decisions of guilt 

or innocence to campus tribunals, which have proven to be inadequate, ill-prepared forums for adjudicating these cases.’’ 

FIRE’s misgivings aside, if institutions are to continue adjudicating guilt or innocence in sexual assault cases, they must do so in a fair and impartial manner that 

is reasonably calculated to reach the truth. This should be self-evident. Indeed, in 

the Department of Education’s Office for Civil Rights’ (OCR) April 4, 2011, ‘‘Dear 

Colleague’’ letter, the agency acknowledged that ‘‘a school’s investigation and hearing processes cannot be equitable unless they are impartial.’’ 

Disappointingly, however, OCR’s rhetoric and actions have been decidedly onesided, emphasizing the rights of the complainant while paying insufficient attention 

to the rights of the accused. For example, OCR has mandated that institutions utilize our judiciary’s lowest burden of proof, the ‘‘preponderance of the evidence’’ 

standard, despite the absence of any of the fundamental procedural safeguards 

found in the civil courts of law from which that standard comes. Without the basic 

procedural protections that courts use (like rules of evidence, discovery, legally 

trained advocates, the right to cross-examine witnesses, and so forth), campus tribunals are making life-altering findings using a low evidentiary threshold that 

amounts to little more than a hunch. This mandate is not just unfair to the accused—it reduces the accuracy and reliability of the findings and compromises the 

integrity of the system as a whole. 

86 

The hurried rush to find the accused guilty described by NCHERM in its open 

letter is sadly inevitable in an environment where the Federal Government has 

mandated low evidentiary standards, called into doubt accused students’ right to 

cross examine their accusers, interchangeably used the terms ‘‘victims’’ and ‘‘complainants’’ in pre-hearing contexts, and actually instructed institutions that in some 

instances they may take ‘‘disciplinary action against the harasser’’ even ‘‘prior to the 

completion of the title IX and title IV investigation/resolution.’’ See U.S. Departments of Justice and Education Joint Findings Letter to the University of Montana, 

May 9, 2013. The inescapable perception of a top-down Federal bias against the accused is solidified by the fact that OCR has yet to take a single action against an 

institution for breaching its duty of impartiality because it was biased against the 

accused or to intervene on an accused student’s behalf in any of the civil rights lawsuits they have filed, despite numerous examples of colleges punishing accused students with little if any evidence and after using embarrassingly minimal procedural 

safeguards. 

Again, the perception of bias on the part of OCR is having a real effect on the 

reliability of campus adjudication across the country. After all, when deciding a case 

under the preponderance of the evidence standard, even a light thumb on the scales 

of justice can affect the outcome. One disturbing example comes from Occidental 

College, where the institution expelled a male student after finding that the female 

student was incapacitated despite a 24-minute text message conversation showing 

the complainant taking deliberate steps to sneak away from her friends and into 

the young man’s dorm room for the express purpose of having sex. In one text she 

asks him, ‘‘do you have a condom,’’ and then she messaged a friend, ‘‘I’m going to 

have sex now’’ [sic]. It is perhaps unsurprising that this result arrived on the heels 

of OCR opening up a title IX investigation into Occidental’s handling of sexual assault claims, demonstrating the real harm caused when institutions feel pressured 

to reach guilty findings. 

FIRE has also seen repeated instances in which colleges expel students despite 

the fact that juries have found those students not guilty in real criminal trials covering the same accusations. While OCR’s interpretation of title IX allows institutions to take action independent from or even concurrent with any criminal justice 

proceedings, it remains problematic that students exonerated under the heavy scrutiny of the criminal process are being so harshly punished in campus proceedings. 

FIRE has seen cases where the evidence not only was insufficient to support guilty 

verdicts under criminal law evidentiary standards, but also dispositively proved the 

innocence of the accused. Caleb Warner’s case from the University of North Dakota 

is illustrative. We highlight the Occidental College and Caleb Warner cases not to 

argue that false accusations are the norm, but rather to emphasize that justice requires that individualized determinations be made based upon the known facts of 

each case, not upon statistical assumptions. 

Removing a college’s responsibility for determining guilt or innocence has another 

benefit: It removes a potential source of bias from the process and in doing so protects institutions from the liability exposure created by serving as a fact-finder in 

a situation where the institution has a real or perceived vested interest in the outcome. United Educators, an insurance company that serves colleges, universities, 

and other educational institutions across the country, released a Risk Research Bulletin in December 2011 regarding claims paid on behalf of universities as a result 

of their handling of sexual misconduct cases. The bulletin explains that the circumstances surrounding campus sexual assault allegations create a ‘‘perfect storm’’ 

resulting in scores of claims and millions of dollars paid out as a result of institutions mistreating accusers, accused students, or both. According to the bulletin: 

From 2006–2010, United Educators (UE) received 262 claims of student-perpetrated sexual assault, which generated more than $36 million in losses for UE 

and our members. The claims data show that students accused of perpetrating 

a sexual assault are just as likely to sue the institution as accusing students. 

The bulletin is a few years old, and was released just as institutions nationwide 

began to recalibrate their procedures in response to the mandates contained in 

OCR’s April 4, 2011, ‘‘Dear Colleague’’ letter. The liability risk for institutions has 

only increased since then, as both accused and accusing students nationwide file 

complaints against their institutions, alleging mishandling of their case. 

Leaving the guilt or innocence determinations up to law enforcement professionals 

and actual courts will not only save institutions money; most importantly, it is the 

right thing to do. Adjudicators with real or perceived interests in the outcomes undermine the reliability of the process. This too should be self-evident, as it was one 

the central arguments presented by Senators Gillibrand and McCaskill in their efforts to remove sexual assault hearings from the jurisdiction of military tribunals 

87 

(which boast far more elaborate procedures and protections than campus tribunals) 

and to the jurisdiction of civilian courts. 

The final reason why adjudicating these cases should not be left to colleges and 

universities is because it is an inadequate forum for addressing these serious felonies. Diverting these cases from the criminal justice system to campus courts is dangerous. The harshest sanction a university can impose on a rapist is expulsion. Currently available data suggests that many rapes are committed by serial offenders. 

If this is true, expulsion simply leaves the perpetrator free to prey on more victims—including more students. 

The bottom line is that when the alleged conduct in question is heinous and reprehensible, as it is in sexual assault cases, campus courts are unequipped to provide 

either the necessary process due the accused or the punishment justice demands for 

the victim and society if the accused is found guilty. We must stop pretending that 

campus tribunals are adequate alternatives to criminal justice and start referring 

each and every complaint to law enforcement professionals, so we have a chance at 

removing dangerous criminals from our communities. If complainants are reluctant 

to go to law enforcement, that problem must be addressed directly by working with 

law enforcement—skirting it by providing alternative ‘‘justice’’ systems is not a viable solution. 

If Congress determines that campus tribunals must continue adjudicating these 

cases, there are steps that can be taken to improve their effectiveness and fairness. 

First and foremost, the government should drop its insistence that institutions use 

the preponderance of the evidence standard. The legal argument that the preponderance standard is the only acceptable standard under title IX is incorrect, as FIRE 

has catalogued in our prior correspondences with the Office for Civil Rights. More 

importantly, the use of this low standard, when decoupled from meaningful due 

process protections, is unjust. Instead, the government should be encouraging institutions to use the ‘‘clear and convincing’’ standard of evidence, which requires more 

than just a ‘‘50 percent-plus-a-feather’’ level of confidence that the evidence supports 

one side over the other, but less certainty than the criminal courts’ ‘‘beyond a reasonable doubt’’ standard. This standard was recently endorsed by Slate senior editor 

Emily Bazelon. The government should also insist that institutions that continue to 

use the preponderance of the evidence standard add additional due process protections—for example, some mechanism that allows an accused student or an advisor 

to pose questions to his or her accuser, perhaps via an intermediary. 

Another step that Congress can take to improve the reliability and fairness of 

campus disciplinary hearings is to require schools to allow student complainants 

and accused students to have legal representation actively participate in those proceedings. Typically, the university represents the complainant’s interests by bringing and prosecuting the charges against the accused party. Universities are free to 

employ lawyers to conduct this function, but this right is typically not extended to 

student respondents. Notably, the recent passage of the Violence Against Women 

Reauthorization Act of 2013 included a provision that, 

‘‘The accuser and the accused are entitled to the same opportunities to have 

others present during an institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by an advisor 

of their choice.’’ 

The Department of Education has (correctly) interpreted this to include the right 

to have a lawyer present. For this measure to truly make a difference, Congress 

must make clear that the advisor may actively participate in the process. Allowing 

students to have their own counsel actively participate in the process will serve as 

an important check to ensure that a college proceeds in a just manner, rather than 

giving into the temptation to act in a manner that protects its own interests. 

Congress should also note that statements made by students during on-campus 

proceedings or in meetings with campus officials are admissible against them in 

criminal court. By participating without a lawyer, accused students have essentially 

waived their Fifth Amendment rights. The accused students lucky enough to recognize this problem are forced to choose between defending themselves on campus or 

defending themselves in criminal courts. An example of this dilemma is the case of 

Ben Casper, a former student at The College of William & Mary, who on the advice 

of his criminal defense lawyer did not participate in his campus disciplinary proceeding, instead defending himself in his criminal trial. Ben was found not guilty 

of all the charges against him at trial, but has been refused the opportunity to return to William & Mary. Requiring institutions to allow legal advocacy in the campus tribunal will go a long way toward fixing this problem. Participation of legal 

counsel will also help the process itself; the example of criminal and civil courts 

amply demonstrates that hearings proceed much more smoothly when both sides 

88 

are represented by counsel than when pro se litigants are forced to navigate a process with which they are unfamiliar. As the authors of the Sixth Amendment recognized, hearings with the assistance of legal professionals are far more likely to lead 

to just results than those without. 

Another step Congress can take to make sure campus tribunals are more effective 

and fair is to require institutions to include sexual contact with an incapacitated 

person in their definitions of sexual assault and rape, and to provide an appropriately precise definition of incapacitation. 

‘‘Incapacitation’’ is qualitatively different from mere ’intoxication.’’ This is a distinction with a real difference. If one is ‘‘incapacitated,’’ one has moved far beyond 

mere intoxication; indeed, one can no longer effectively function and thus cannot 

consent. Courts have recognized that simple intoxication does not necessarily equal 

incapacitation, and therefore does not necessarily foreclose consent. College policies 

must recognize this distinction as well, perhaps by mirroring State definitions of incapacitation. 

Unfortunately, some advocates are insisting not only that definitions of sexual assault be amended to include incapacitation, but also that they be changed to require 

the accused to prove that they obtained the ‘‘affirmative consent’’ of the complainant. The affirmative consent standard is not only confusing but is also a legally unworkable standard for consent to sexual activity. Under an affirmative consent 

standard, sexual activity is sexual assault unless the non-initiating party’s consent 

is ‘‘expressed either by words or clear, unambiguous actions.’’ If proving ‘‘affirmative 

consent’’ becomes law, there will be no practical, fair, or consistent way for colleges 

to implement these newly mandated prerequisites for sexual activity. It is impracticable for the government to require students to obtain affirmative consent at each 

stage of a physical encounter, especially if they are put in a situation in which they 

must later prove that attainment in a campus hearing. Under an affirmative consent standard, a student could be found guilty of sexual assault and deemed a rapist 

simply by being unable to convince a tribunal that she or he obtained explicit consent to every sexual activity throughout a sexual encounter. The affirmative consent 

standard is unfair, and at public institutions, likely a violation of students’ due process rights because it effectively imposes a duty on the accused to prove his or her 

innocence. In reality, requiring students to obtain affirmative consent will render a 

great deal of legal sexual activity ‘‘sexual assault.’’ 

Sexual assault is one of the most heinous crimes a person can commit. Those 

found guilty of it should be punished to the fullest extent allowed by law. Precisely 

because sexual assault is such a serious crime, ensuring that each case is referred 

to law enforcement and providing those accused with due process is absolutely vital. 

As FIRE president Greg Lukianoff recently observed: 

‘‘Due process is more than a system for protecting the rights of the accused; 

it’s a set of procedures intended to ensure that findings of guilt or innocence 

are accurate, fair, and reliable.’’ 

FIRE is under no illusion that there is a simple solution to the problem of sexual 

assault on campus. By lowering the bar for finding guilt, eliminating precious due 

process protections, and entrusting unqualified campus employees and sometimes 

even fellow students to safeguard the interests of all involved, we are creating a system that is impossible for colleges to fairly administer, and one that will be even 

less fair, reliable, and accurate than before. 

Thank you very much for addressing this important issue and for considering 

FIRE’s input. We are deeply appreciative of this opportunity to share our perspective and offer our assistance to you as you move forward. Please do not hesitate to 

contact us if we can be of further assistance. 

Respectfully submitted, 

JOSEPH COHN, 

Legislative and Policy Director. 

LEGAL MOMENTUM, 

WASHINGTON. DC 20005, 

July 29, 2015. 

Hon. LAMAR ALEXANDER, Chair, 

Hon. PATTY MURRAY, Ranking Member, 

Senate Committee on Health, Education, Labor, and Pensions, 

428 Senate Dirksen Office Bldg., 

Washington, DC 20510. 

Dear Chairman Alexander and Ranking Member Murray: I write to commend you 

for laying the groundwork for the coming reauthorization of the Higher Education 

Act by holding the hearing, ‘‘Combating Sexual Assault.’’ 0n behalf of Legal MomenVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00092 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
89 

tum, the Nation’s oldest organization advocating for the personal and economic safety of women and girls, I wish to offer some threshold recommendations based on 

our advocacy on behalf of campus survivors. 

• Enhance responses for survivors—more funding is needed to provide a variety of supports for survivors of sexual assault and dating violence, including legal 

services, rape crisis intervention and counseling. It’s crucial that survivors have access to services that are confidential- and trauma-informed, whether those are provided on campus or by local rape crisis centers. Additionally, title IX coordinators, 

campus health services. RA’s, and campus law enforcement should be trained in the 

provision of trauma-informed care, and should coordinate with local rape crisis service providers . 

• Full funding for the Office of Civil Rights (OCR)—we must ensure that 

campuses are fulfilling their obligations under title IX, and that survivors are receiving needed accommodations and timely resolutions of both OCR initiated investigations and of campus disciplinary proceedings. Over the last several years, OCR’s 

complaints volume has steadily risen (to nearly 10,000 annually) while its staffing 

levels have declined to their lowest rates in decades (a time period when caseloads 

were much lower). In order for students to pursue their educations, and not be hampered by sexual bias, harassment or violence, OCR must be able to offer a timely 

response. 

• Climate surveys are key—one of the most effective ways for institutions of 

higher education to receive timely feedback and respond effectively is by conducting 

climate surveys. Congress should consider requiring all institutions of higher education to collect and publish data to enhance transparency and to enable students 

and their parents to obtain accurate information about campus safety and institutional responses—both to survivor needs, and in terms of holding accused students 

responsible. 

We look forward to continuing to work with you and your staffs throughout the 

reauthorization process. 

Sincerely, 

LISALYN R. JACOBS, 

Vice President for Government Relations. 

LOUISIANA LEGISLATURE, 

STATE OF LOUISIANA. 

Hon. LAMAR ALEXANDER, Chairman, 

U.S. Senate, 

Committee on Health, Education, Labor, and Pensions. 

Hon. PATTY MURRAY, Ranking Member. 

U.S. Senate, 

Committee on Health, Education, Labor, and Pensions. 

DEAR CHAIRMAN ALEXANDER AND RANKING MEMBER MURRAY, I would like to express my strong support for S. 590, the Campus Accountability and Safety Act, 

which will greatly improve the processes surrounding sexual assault on college campuses. 

Passage of this piece of legislation is not only critical, it is doable—and Louisiana 

has just demonstrated so. As the father of two school-age children, the first thought 

that ran through my head when I read Senator McCaskill’s study was ’’I’m going 

to have to homeschool my daughter for college.’’ This knee-jerk reaction led me to 

take a closer look at what was going on in my own State, and what we found was 

not pretty. Soon thereafter I convened a Working Group of Louisiana experts on sexual assault, including law enforcement composed of the Louisiana Sheriffs’ Association and Chiefs of Police Association, advocates, prosecutors, campus legal and administrative experts, administrative officers of private health care facilities, Sexual 

Assault Nurse Examiners (SANE), various NGO’s, and student representatives. 

Using Senator McCaskill’s survey results and CASA as a map, our working group 

drafted and successfully passed our own Campus Accountability and Safety Act of 

2015, SB 255/Act 172, copy attached, which provides for: 

(1) Anonymous sexual assault climate surveys: We understand the data produced 

from these surveys, which will include standardized plus optional parts to accommodate our diverse campuses, will greatly assist in understanding the scope of the 

problem first so that we can efficiently and effectively direct resources and attention 

to where they are needed the most; 

(2) Amnesty policy to ensure that students reporting incidents of sexual assault 

are granted immunity for certain campus policy violations, such as drug and alcohol 

use; and 

90 

(3) Memoranda of understanding (MOU) between each higher education institution and each law enforcement agency located in that institution’s respective locality. Each MOU is required to clearly delineate responsibilities, define protocols for 

investigations, including standards for notification, communication, and evidence 

preservation, and share information. In addition, the Sexual Assault Working Group 

drafted and passed SB 37/Act 152 to require each full-time campus police officer to 

complete a sexual assault awareness training program no later than January l, 

2016. 

Sexual assault on college campuses affects everyone regardless of party affiliation, 

age, sex, race, or religion. I join other legislators, students, and advocates who have 

worked tirelessly on this pressing issue in Louisiana in thanking you for your attention to this important matter. 

Sincerely, 

J P MORRELL, 

State Senator, District 3. 

HELENA MORENO, 

State Representative, District 93. 

CARRIE WOOTEN, 

Louisiana Progress, 

Sexual Assault Working Group. 

NICHOLAS SMITH, 

Louisiana Tech University Student, 

Sexual Assault Working Group. 

91 


95801-1.eps

ACT No. 112 £:-<ROLLF.n 

SF'h Tt: Bll I '-0 :ss 

BY SE~ATORS :>!ORRE;.L 1\L.\R:O. A\fEDEl:.. APPC.., RROO'AF RR0\1.-..;_ 

Bl.Fll':GTO~ CORTE7-CROW[,flO'v\HLE DOR.SFY COLOMB. 

ERDE). GAI1.0T. 6111LLORY. lO"i-N<:.. KOS'"ELKA. Lo.-=t.EL"R 

LOXG, :>ln.LS, MURJV.Y. 'iE"\'LRS. ?ETEI<SO'-: •tlSl:.:t. GAR) 

S\!lTI~. JOHl' SM1TII. TARVER. TI-lOMPSO'I "'"0 \\liiTE Ai\0 

R.EPRES:::\TA11V.:.~ ,>\llo\'viS BA()Ol\. WF\LEY Btsl-!OP. 

EDW:\RDS, GlSCLAffi, lAMES, I."EGER. MlGl.:EZ. MORENO, 

S:--tlTI I, -mERRY. PATRJCK WU.LLAMS \'10 WOODIU.:FF 

To <n><t R S 1'·3351(Hl 3J'ld Pan XD of Chapter : 6 ofT•llc l; t•fll:r l.,uisillll~ Re\"l.ltd 

St.\1\>IG.' of 1950.10 be compn<ed ofR.S. 1'.3399.1 1 lluough .!3'1'1.15, rela!!v•l.l\ 

sexual assault on campu,<,esoipubhcpo~t.<;eoondru; educatton •nstitutlon': 10 pro\1de 

ttlnted mantrs. 

Se.>t•or l. R.S. 7:33Sl(H)~~ndP.utXflofChaptcr26oiTili< 17ufthcl<Ju>~ana 

~335' . lleoeralJ"''"''"S. dnu.-. •nd funtt.o:u of c~ll·~ ""d wu\ers:ty 1>onrd.< 

H.(l)(s) When (undine, h mad< avaibt.ls, eJICh pubi!C..JlOI~J!.!.!:Y 

tdo c;,tior• Untitutiou tll&U admlnfr;~ :m t~nltu L •nonvmouf W"riJ~f .J.Wult 

tiJmar~ IDJ"\'tT ro fn: .trudtniC, 

(h) Psrtirirarlun In fhf' uotual tnau.lt ~tim ttt .. tlr'\f'\ shall ttt 'oltiD[-&1""-·. 

:\o st1.1dent sbaU bt rt-gllirC"d or cocrc:td to partidpatt '• tht )Ur'\>t\ nor shall 

an' studtnl fat"~ ~trilJutiou 01 ll t'W»ih·~ con&eQuentr Qf an\ ktnd for dtttinin2. 

P·~· I Cl ~ 

Cv•Jng. \\"onk which arc stn..~ are de.~tcns ITC\m ext\tlTtg I~"' , 

'llOrJs 10 boldfat~~n~._!!!dc·r~r~ ~ arc addiuoru. 
92 


95801-2.eps

SII1\0. 25!\ L"ROJU:D 

p_roccdures for tllit adrninis1ntion of tbe su:~t-V and shall u~ tbt survt-r 

d(•Vtloped bv lht Center on Viuhmrt Again~t \Vouu:n .aml Cbild•·eo at the 

i(U!$!ers Unh•n<oly SrhMI nf~l•l Work •< • model. 

12\ E:.n~h oublic I'\O'Stsec~•dal"" tdUC"'.iltion inttitatinn <hall: 

(al.<\dw.inistt'r the sur\'C"V to sludtnB wbo choose to particip:Ltt. 

(b) Rtoorc >ChooJ .. specific rr\vh s yfthe )UC\t t Board of Reernts. 

!31 The Board or R<'!!MU shaH: 

fl) Submit 1 ~rirtrn r eport n<:t lattr chan Srptembtr firST of each \ 'tar 

tr;,;at•ding tht $UrYtV resohs of each public postsec::onda.n e:d uution i·nstitutlon 

and the n .. tt: "" a •hole to thc _ _t!_)~rn or and tbr Senate and Huaut of 

tprKtDt~thN C'ommlftl'ft ()n t du rarion for the ptt\1ou~ andfmic ' t ar. 

(b) Publi' b rht sur"e·v rt'Sults on the bo~r '~ wth,;itt 2nd in :m'· nther 

lnurlon or ·yc-out tbt board deems ncC'~~on· or tppropt1att. 

,!llt'tl11iou!ilv and to cbe tn3).1.mum ~xlrn! oou;ble utilitin)!; an\' :ilnd all Jvallahlt 

fuudiag £ollrc.r-~. includlne. funding prn\1tiH1 h" (ht ltf!1tlaturr. 

f;\RT XII. <.A:.fPUS .4CCOtl"KTADIUTY MD S. \ n :TV 

§ HQ9. 11. Shon Title 

This Port mav bt rtftrred too,tht "Compn• <\g;guntabllln aad So ftC\ 

At~ 

§3'99. ~. Scuve 

F.ach public posu.trondan nha:111ion iostit:urioD that rccti'C".S un~Tit~ 

I\' funding from tht '-nlled Stota Dt!l!lr1mrnt nf Educa!lon shall bt subjrtt tn 

~lithe pr visio ~ of thls l'art. 

r orthe I"'Ttl<nofthls P!!1, tht (ol!owln• ,.,., ... •lu•ll bo\C tbe foUowln& 

rm·:.nincs unless: tbe context e learh1 indiutrt nrhtn\1Sti 

(I } "Institution" muns ll pubhc po«(•cnnctArv Mnrarlo'D. lnsrtrutlon as 

dtfi~td ;,. R.S. 17:3399.12. 

Page 2 ,,· ~ 

Codmg: Word.( wh1ch nre suuck d110::tgh are deietions from CAI)ting aw~ 

"ord>: m boldf':.~ct n ·nr :and underttt'l't"PI114re ddditions 
93 


95801-3.eps

SB :-10. 255 ENROLLED 

{2) "Porsideol" mun< oh• prffidtnt of the ••sttm of th< r~«rivt 

r\1 • !itxuallv...,r1tntt d criminal oiT•nse" intludc' ""' >nual asuuh 

offenu a< defintd ln R.!>. 44:51 nd ""' ,.,ual ahu<t orren<~ a< ddintd In R.S. 

(1) "Tlllt> TX coordinatm·'' rnes.ng the indhidu2l dtsignated at Sl 

tt<ponoibl• emploHC iD Stctlon 106.8(•1 of Titlt J4. Code or Ftde .... l 

Rwlatioas. as sucb nmon i~ •• cff<Ct oo tb< dart of toactl:ltDt of tbh Put. 

§3399.)4. Coordination with loullal\ onforcemcnt 

A. Eacb hutitutlon and Ia,· cnforccmcot lind criminal ustic::~ agcnc-v 

lneored l\1lhin obt D>rlsh 11[ thr <""'""' of lbc institution shall enter into a 

men1orandum ofunde.rrt•ndint: 10 clt~arh del1outt rc:Jpon,ikititit-t and sh.arr 

lofonnatioo in accotdanct "1tb 1Dpllc•blefcder.d ud >Ill I< confidtodalitv l:ms, 

onrludoog hut not llralttd to rnnds about seru•Jh'-or1tnttd crhnia:tl orrwses 

n«urring :tgalnsr student~ nf tht> fnnitution. 

R Tht Board ofRtgtnlf l1111Jorm Pnlicv on St\ual A"lull 'ball require 

thtt ~ DltmOr2ndum or undr~bndin1!. 3~ riP\C"rlht'il in ~uht(I-Ct1on A of thh 

C. r..ach mnaorudum of undenta.nding tnteYtd ••to pur~u1n1 tn lllH 

Part shall•nclode: 

(1) Dtlincation ond shoring protocols of in ve£tigidvr r'HpOnsibilitits .. 

(2) rrotorols for invuligatiOn$. inclodin& standard' fQr outifitltiOn >nd 

comnlunlc.atioo .aod mu.surts to promote C\;de.ac:e prhcnttion. 

offtn<c< for the purpose ofshsrlnglnlorm•liun and coordin•tin,l! traini112 totht 

~!A mHhnd of sbar1ax general tnformatoon about >t\uau,...,oitoted 

~rlmlnJil nffrnt~ ON'Urriag ¥~1thfn tbt lurhdif'lion U( lht U~rtiH tO lht 

mtmorand~m of undt:r"tanchng ta ordtr ro lnlpro\e campu\ 'l.tft:h . 

Pa,• 'l ,,ffl.odmg. Words who:h art soaek 1ln ousfl afC d<louons orom ••i•tinfj b'»; 

words on boldfac. tvps ond unrlt!~ are oddnior.s. 
94 


95801-4.eps

SBJ'\0. !55 E:-iROLLF.D 

D. The loe2l bw tnfor(tment tgtnn' sh~H todudC' info1"mafi()n ()n iU 

polirf' r~<pnrr rtgan1tng the §taru;; of tbe allegtO vic:lim as a student 2t an 

institution :IS <!ennc<lln this Part. 

E. The iosUtution shall noc bt. btld IU.blt if the local law enforc.mcnt 

aetncv refu;)~ 10 enter inro a mernoundum of undcrstand iog as r·e,guirtdju: 

this Section. 

§3399.15. Compus seeuriry poliev 

ThP Roarri t)fRt,,tnt(< 'hall c'tahlish unilorm on he e~ and best practices 

to 1mptemenr measures to address the rtpordng or se:x ua lv~riented £!i!.'.!i!!!! 

offenses on lnst1rution t~mpu!~-c~. th~ pn:: cution of such cl'imu. and the. medit:31 

aud rn~nb l health earc needed for the..'le alltged ,·ictim~ rhar include' the 

A.tll Confideotial advisors. The institution shall desi!male fndh1dual• 

who shall serve a.< confi<lenr:fal advisors. such a; health cue •u.Cf, cl<r,.,., §!afT 

of a women's center~ or other such ol~ourie.s. Such dt'Si2'11ation shall not 

prec:Jude tht institution from part-ntting with national. nate. or locol victim 

seT'\iccs organit.adons to se.~ e u ~on_fidt,ati~l lld"ison or to s~rv,. in nthP.r 

confidtntio.J role<. 

uro,·ided in thh Ptrt. 

(3) !'iot later than Janual"\' 1,2016, the anorncv gentrol in coll•bor•tion 

whh the Boord of Rcg .. ·ms. shall develop online traininf mHterials. m addition 

tD the trtinjne, requir~d undtr this Part. f·or the training of conOdenlial 

(o) Tbe right< of the •lltc~d 'ictim undtr ftdeul ""~dare Ia" and the 

poUcles of the lnsdtur:f<ln. 

(bl The all coed "1cdm':s r eportinv options. including the option to notify 

the institution. the option to Dotir" luc:ol 1a" eoforcemel\1. 2nd any other 

Pnge ·i ofS 

CC>ding: Wo:cs which ore sbacl. dovo~h •re dc:edons from exi<tmg l•w: 

'\'Ord~ in holdf:ae~ nl!e ::and under~cored arc 2.ddttl0!'1' 
95 


95801-5.eps

SB !110.155 E~.ROI.L D 

reponing option~. 

(c) H reason2bh knO\.\'n. the potential con~ei!IJ('nc-•·c: of thP rf'nnrting 

options provided in tbis P:art. 

(d) Thr procn> ur inH!!$li1,!a.liuu ;(Dd dhcipllnarv proc«dings of the 

institution. 

(e) Tbr process of in''tstigation and ad judication of the criminal juUicc 

en The limited jutis;dietion. scop<'. i.nd li!Vllil:lble s: aoc:tion~ or the 

instiiutional srudcnt d isciplinan- proceedin•. and that it should noL.J>! 

con~id ercd 2 ~ubstirutt for I he C'rimin:d justief prnceu. 

( g) PotentioJ r~asonable accommodations that tbe ioS'fitutioo ma,· 

provide to an alleged 'ictlm. 

(b) The narne and locotion of the nc-. .r<St medical facilitv whert an 

aUcgcd '1cttm mav ltave a rape hit admlnJsttred bv an individu•l tr•inetl in 

sexu:l.l a>s•ull forrnsic rnedicaJ n:amination and rvidenct collecrion, and 

iuforuuuion on transport3tiun optic'"" and availalJle reimbursement for a "isH 

(5) ThP cflnfidt ntial advi~or ma\. as appropriate. S('r"\'C as a liaison 

betwten ao alleged victim and the institution or local law enforcement whe-n 

dirttltd to do so in writing b" an aJitged victim who h2£ bNn full\' and 

ac:cundt:h informed about what pro~edurc-s shall ocC'ur ifinform,uion is: sh :ared ~ 

and a ssist an alleged victim in c.."Uutacling and rf."Doning to a r esponsible 

emplovee or local law enforccmenL 

16l Theconfidential advisor $hall bt authorized b''t heinstirution to liaise 

with apl1.!:QJI_r:iate staffatlhe instirution to arran•e re>sonahte accomruodalions 

through tbe instiiution to allow the alleged victim to change living arrangements 

or da~N "r.hrrl ul e.~~ otllain acce.ssibilitv sen-1ce.s. or 2rranec other 

~ceotumod:ation~. 

'ic:tim. ' "'hen rcg ~t<'d 10 do sob\ the :alhtced victim. to in len·if'¥l1S !lnd mher 

Page 5o~ S 

Coding. \\'ords which art ~ tl:ronih are deleuons from ex.s m~ Ia", 

\\.'Ords in boldf~t't> 1vp,. rut underotc2.!!2. ate "dditions. 
96 


95801-6.eps

SB NO. 25~ 

pro~ttdln~ n( a r:ampas in, esri& tion tnd in"ititutienal di.J.dpli nan· 

pro~tedines. 

181 The tonlldendol advisor •h>ll >dvl<e tbe allegrd vltllm or. ami 

pro11dr wrintn information reurding. bot~ the tlls:ed 'ittim's righu 2nd th~ 

in~fltution's r~pon,Jbillties regarding orders of protection. oo--conUic:t order<. 

restraining ord6!r). or )imilar l:lWtUI orders i~sued bv a c:ourt Of tompsttnr 

!uri,dlclion or h1 lhr in>titution. 

(9) The confidenti2J2dvicot shall not br ohliga1ed ro rtpurl c:rime-sto the· 

in•tituhon or lay, tnfortement 1n a wa' tba11dtntlfi~~ :an ancgtd ~lttim or an 

accusrd ind1' 1dual. unlrs~ r,thtrwitt rtguartd to do ~o h\·lav.. Tilt confidentitll 

::td\•isor shalt to tht extent authori7.td under hm , provide: confidrntlal s:en•ith 

to •rudtnl\. An' regucsu for orcommo1hlions . ., pr011ded •• Paragraob 161 of 

b1· tbt inninnlon. 

(JO :\o laltr thao tht btgianing of tht" 20Jb-20J7 »Citltmic \t:a.r. tt.t 

Jnnirution shall apnoint an adrquart numh('r of ronfldential ad' isors. The 

Board ofR!.'l!enrs shall Mtermior the adequate number ofronfidrntial ad•isor1 

for an institution, bas~ uooo it\ 'lu. no hutr than Jana1.n 1. '201~. 

!Ill tach in~litufion that enroll< ft>~trtMn fi>< thouund studcnlt.!!!.!.l' 

partner with anotbtr lnuirorion in thtir svsttm or region ro pro, ide tht strvi«s 

dt<trlbtd in llns Subsetrion. Ro'*t' er. this Ptrtgraph ,.h11l not ab~oh·to 1he 

lnnitutfon of iu obligations under I his Pan. 

(12) E.ach institutioa. m1,. offer tht samt tt.e:onm:aod:atioo' co tbt t.cu~td 

thai are hereb'' rtguh o:d to be ~rrrred to tbr all«:<'<! 'ictiru. 

R. Website. The institution sbaU list on lu website: 

(I) Tht contact inform•tlnn for obwninc • ronfide•Lial ad,1sor. 

(2) Rrportlnc options for aile::¢ 'i<[ims ofa suuallv-orlenled criminal 

fen~c. 

(3) Tltc proeMS of invesd:orlon aad distiplinan· prOCH<IIngs of tbt 

PI£< 6 ofS 

Codm~ Words v:h;ch are iback .luva;h are oele:•o~s from rxuttns Ia"·: 

words m hnldfacr nor and undtr<<~ ,_,.. addtlloos 
97 


95801-7.eps

SB .'10. 255 ENROLLED 

(4) Thr proress of in•·utig3tion •.nd odjudieorioo oftbr criminal jnsrkr 

(5) Potential reasonable •ccommodations that tbt 1nsdrut1on "'"v 

C6) The ttle.phor1~ numhi!r ind webtile ~ddrc.u for t locAl. ~tl'. or 

national hotlint providing in(orm&tion to sex-uoJ violence victim£. which shall 

bt updated on a Limeh basis. 

(7l The name and location of the nearest medical f•cilit> -.horr an 

itrtfivirlnal m•• h2\'t a rape kit administered b\' an individualmtintd in rr.>,al 

assault forco>i< medic:<J <X>minoeion a11d cvidenc• tolltction. and Information 

on transportation oprioo~ and available rt:imbunement for a visit to ~uch 

C. Online r·eporting. The in~titution nuv !lrovide an online reporting 

S\'S£c-rn ro collect .3 nonvmous dltC'lo~ures of crtmes and tra ch patterns of crime 

on romvu<. An individual rna,· <ubmit a confidemial reoo11 about a speclflc 

crime to the instirution using tht> onlir)e r"t..pnrtino ~\ Siem. )ftbe io~rirucion u~es 

an online rcpor'ting s'•st<'rn. the onlint sv£.tem sh2ll also inc:ludt inform:atinn 

regarding hO\\ 10 •·cpon a crimt to a responsible:! tmplovee and bwe.nforcemPn( 

and how .to con ton a coniid•ntial ad• isur. 

D. Amne.\t'\' policY. The lnstirutJon shall nrovlde un amnc:~rv policv (or 

anv studenr whn reports. ia good f:lith. sexual violenee to the ins!ltut1on. Such 

stcd~nt sh:all not be '"nctionl·rf In' th e institution for Sl non\<iOient studt:nt 

condu("t ' 'iolation. such as underage drinking. that is revealed in the cour~e of 

such :t rcvurt. 

E. Tralnlne. Not lattr tban Jauuan· I. lOlG. thr Doard of kcgtnts, 1n 

coordination with lhf 2ttorne\' gencnd and in tom:ultafion "hh st:ft~ or loclll 

victim nn·irts nrg:anizatinns. shall drvelop a progr2m for training for each 

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99 

NATIONAL COALITION FOR MEN (NCFM), 

SAN DIEGO, CA 92101, 

July 28, 2015. 

Hon. LAMAR ALEXANDER, 

Hon. PATTY MURRAY, 

Committee on Health, Education, Labor, and Pensions, 

428 Senate Dirksen Office Building, 

Washington, DC 20510. 

DEAR SENATORS ALEXANDER AND MURRAY: Thank you for this hearing on campus 

sexual assault. 

Speaking as a father of two college students and as a board member of the National Coalition For Men (NCFM), the oldest and largest men’s human rights organization in the country, I ask this committee to please oppose S. 590 in its current 

form. This bill will do little to make campuses safer. Instead, it will create an army 

of taxpayer-funded administrators to bolster the illusion that S. 590 will cure campus sexual assault. 

Sexual assault is a serious matter, yet the treatment provided by this legislation 

is worse than the disease because it will vitiate the presumption of innocence, nullify equal treatment as provided by the 14th Amendment, and deny due process to 

the accused. 

NCFM deplores rape and sexual assault, but we cannot close our eyes to the horror stories of young men caught up in a Kafkaesque disciplinary system in which 

the accused are presumed guilty and have no effective means to defend themselves. 

Have we forgotten the painful lessons learned at the expense of so many college 

men falsely accused of rape? Remember Duke University and the University of Virginia incidences of false accusations and the lives they destroyed? 

There are many other cases of college men who have been falsely accused, removed from campus, denied due process, and ultimately harmed by the lack of due 

process. Caleb Warner (Univ. of North Dakota), Ethan Peloe (Univ. of Cincinnati), 

Jordan Lynch (Univ. of Montana), Joshua Strange (Auburn Univ.), Dez Wells (Xavier), Lewis McLeod (Duke Univ.), and the list continues to grow. These false accusations have costs these universities and governmental agencies millions of dollars 

in damages and legal fees. 

Universities are not the proper institution to prosecute a rape case and if they 

were, they would need to rely on a proof beyond a reasonable doubt or by clear and 

convincing evidence standard, as opposed to the lenient ‘‘preponderance of the evidence’’ standard. In that regard, I would remind this institution of the testimony 

provided to this committee last year by Molly Corbett Broad, president of the American Council on Education, who stated: 

‘‘Conducting education and providing information is an area where college officials have vast experience. We must redouble our education efforts on sexual 

assault, and as I noted earlier, institutions are moving aggressively to do this. 

Performing investigations and adjudicating cases is a far more difficult challenge. We lack the authority to subpoena witnesses, control evidence and impose legal standards. Our disciplinary and grievance procedures were designed 

to provide appropriate resolution of institutional standards for student conduct, 

especially with respect to academic matters. They were never meant for misdemeanors, let alone felonies. While we take our obligations to the victims/ 

survivors of sexual assault very seriously and are fully aware of our responsibilities with respect to sexual assaults, our on-campus disciplinary processes are not proxies for the criminal justice system, nor should 

they be.’’ 

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

this bill: 

1. The bill purports to be a safety act, yet fails to identify high-risk safety areas. 

It lacks provisions for enhancing campus security, such as increasing law enforcement or incorporating bystander prevention programs. 

2. The bill wrongly predisposes guilt of the accused by repeatedly referring to the 

complainant as ‘‘victim’’ or ‘‘survivor.’’ The word ‘‘complainant’’ should replace the 

word ‘‘victim’’ and ‘‘survivor.’’ 

3. We need to get serious about holding sexual offenders accountable without destroying the lives of the wrongly accused, but one-size-does-not-fit-all. We need more 

discussion about how to process offenses like inappropriate touching versus rape. 

There may be instances in which school disciplinary procedures may be more appropriate than involving law enforcement, but not if the disciplinary procedures lack 

safeguards to protect the rights of the accused as well as the complainant. 

100 

4. In the absence of clear and well-balanced policies to determine which offenses 

are most appropriate for school discipline versus law enforcement, the bill should 

go beyond requiring universities to sign memorandums of understanding with local 

law enforcement. It should require that sexual assault allegations be referred to 

local law enforcement and schools defer any investigation or adjudication until after 

law enforcement has completed its investigation. 

5. CASA is remarkably silent on due process and the rights of the accused. If colleges are going to adjudicate sexual assault allegations, then schools must allow accused students to (1) have counsel present during the entire process hearing, (2) effectively cross-examine their accuser, witnesses, and other relevant persons, (3) 

have timely and complete access to complaints, charges, and evidence, and (4) have 

complete freedom to talk with all involved parties and gather evidence. 

6. CASA must require hearing panels be composed of thoroughly trained objective 

finders of fact. 

7. The bill should compel universities to provide fair and equal resources to both 

accuser and accused during the disciplinary hearing processes. Lacking from this 

bill is language that ensures a presumption of innocence for the accused and provisions for equal resources to both the accuser and the accused. 

8. The bill provides confidential advisors to assist the reporting party (who is 

again referred to as the victim) yet offers no resources to the accused party, who 

may be falsely accused and in need of the same kind of supportive assistance and 

health resources. Rights need to be equally conferred to accuser and the accused. 

9. The bill is wasteful to taxpayers, redundant to existing State and Federal laws 

and policies instituted by the Department of Education, and confusing in its directives. The bill mandates that a small army of ‘‘confidential advisors’’, ‘‘title IX coordinators’’ and higher education employees be provided to advise victims of sexual 

assault even though universities already have in place numerous resources specifically designated to help sexual assault victims. The bill goes on to state that ‘‘The 

confidential advisor shall not be obligated to report crimes to the institution or law 

enforcement’’. If advisors mandated by this legislation to provide assistance to rape 

victims, are not required to report rape, who is? How does the non-reporting of a 

rape improve campus security? 

NCFM would be happy to appear before this committee. We echo the sentiments 

of the National Association of Scholars (NAS), who in a letter to Senator Alexander 

regarding the HELP committee hearings on sexual assault held last year wrote: 

In that letter we expressed our concern with the heavily one-sided approach 

to the issue that has completely dominated the many other panels and examinations that have taken up the issue of sexual misconduct this year. 

In one instance after another, the only testimony solicited seems to come from 

alleged victims of sexual assault, advocacy groups, or ideologically committed individuals . . . Although the recent HELP committee hearings included some 

probing exchanges between witnesses and panelists, no testimony was heard 

from competent witnesses who might have challenged accepted statistics about 

the prevalence of sexual assaults on campus, or especially from the increasing 

number of male students subject to egregious miscarriages of justice at the 

hands of incompetent or ideologically prejudiced campus tribunals charged with 

hearing complaints. The high-profile Duke Lacrosse team case of 2006 was not 

an isolated exception. Other cases have not made the front page of the New 

York Times, but they are increasingly frequent. 

We have several families willing to provide this committee with their testimony 

regarding a deeply flawed and biased university hearing process that has caused 

unfathomable pain and suffering to their sons and daughters. Please do not dismiss 

the voices of the falsely accused and those advocating for an equitable solution to 

such a complex issue. 

NCFM appreciates the work of this committee and for holding a hearing examining how to move forward in dealing with this important topic. It is crucial that 

all sides, including hearing from families who have had a son harmed by the current 

disciplinary process, be heard. 

Ultimately, universities should have policies that enable victims of sexual assault 

to feel safe and secure in their reporting while being fair in the treatment to both 

accuser and accused. We must restore a presumption of innocence in the handling 

of such deeply intrusive and complex matters. Advocates of due process need to be 

an essential voice heard by the HELP committee prior to any deliberations on 

S. 590. 

101 

1See 2011 College Dating and Abuse Poll, 11. Knowledge Networks Inc., (2011). 2See 2010 National Intimate Partner and Sexual Violence Survey, 21. Center for Disease Control, (2010). 3See Dating Violence Against Adolescent Girls and Associated Substance Use, Unhealthy 

Weight Control, Sexual Risk Behavior, Pregnancy, and Suicidality. Journal of the American 

Medical Association, (2001). 

NCFM urges you to oppose S. 590 in its current form, and to hear from all sides 

on this matter. 

Respectfully, 

GREGORY J. JOSEFCHUK, 

Board Member—National Coalition For Men (NCFM), 

Chapter President—NCFM Carolinas, 

Parent of college students. 

August 10, 2014. 

Hon. LAMAR ALEXANDER, Chairman, 

Senate Committee on Health, Education, Labor, and Pensions, 

828 Hart Senate Office Building, 

Washington , DC 20510. 

DEAR CHAIRMAN ALEXANDER: I would like to request inclusion of the enclosed letter from the National Domestic Violence Hotline in the record for the July 29, 2015 

hearing entitled ‘‘Reauthorizing the Higher Education Act: Combating Campus Sexual Assault.’’ I appreciate your consideration of this request. 

Sincerely, 

PATTY MURRAY, 

U.S. Senator. 

THE NATIONAL DOMESTIC VIOLENCE HOTLINE, 

August 6, 2015. 

Hon. LAMAR ALEXANDER, Chairman, 

Senate Committee on Health, Education, Labor, and Pensions, 

828 Hart Senate Office Building, 

Washington, DC 20510. 

Hon. PATTY MURRAY, Ranking Member, 

Senate Committee on Health, Education, Labor, and Pensions, 

428 Dirksen Senate Office Building, 

Washington, DC 20510. 

DEAR CHAIRMAN ALEXANDER AND RANKING MEMBER MURRAY: Thank you for the 

opportunity to comment on congressional efforts to address sexual assault and related forms of violence on college campuses. We appreciate the committee’s work on 

these issues and the thoughtful approach you are taking in gathering information. 

The National Domestic Violence Hotline is the only national organization providing around-the-clock support for survivors of domestic and dating violence, their 

families, and friends. Last year we received nearly 400,000 contacts through phone, 

text, and chat. This year, we have already received 52,000 more contacts than at 

the same time in 2014. ‘‘Loveisrespect’’ is our program for teens and young adults, 

and through our web portal and digital services, we are reaching young people early 

in abusive relationships. We are also working on college campuses in Washington, 

DC to link student activist groups together to share best practices and strategies 

for combating dating violence. These initial recommendations to the committee are 

informed by our direct connections with students and survivors. 

FOCUS ON DATING VIOLENCE

While much of the conversation about campus violence has focused on sexual assault, other forms of interpersonal violence are significant problems on college campuses. In one survey, one in three college women said they had been in an abusive 

dating relationship.1 Overall, more than 50 percent of sexual assaults occur by current or former intimate partners.2 Dating violence also includes verbal abuse, physical assaults, cyber abuse, and obsessive jealousy that can lead to violence. 

The effects of dating violence on young women are significant: those who have experienced dating abuse have higher rates of substance abuse, risky sexual behavior, 

eating disorders, and other negative outcomes.3

102 

4See 79 F.R 62751, 34 C.F.R 668. 

STRENGTHEN EDUCATION AND TRAINING

Officials at Institutions of Higher Education (IHEs) must build their capacity to 

understand dating violence, its risk factors, indicators, and effects on student wellbeing and educational outcomes. Those adjudicating student disciplinary hearings 

should be trained to understand the steps victims take to protect themselves in dating relationships and the challenges involved in separating from an abusive partner. 

The training should also include information about perpetration and the appropriate 

methods of intervention. Without this background, adjudicators and other school officials will not understand the steps they should take to hold perpetrators accountable and ensure victim safety. To improve their capacity, IHEs should partner with 

local domestic violence centers and community-based programs to assist with training for school officials and ensure that students have access to services and support. 

The Violence Against Women Act (VAWA) 2013 amendments to the Clery Act and 

the subsequent implementing regulations require robust educational programs for 

students and employees about dating violence, domestic violence, sexual assault, 

and stalking.4 While promising practices on college campuses have emerged in recent years, these efforts are not scaled up and many, if not most, schools will need 

additional resources and technical assistance to implement the new requirements. 

Federal agencies could be helpful, but only if collaboration is required between the 

Department of Education, the Department of Justice, and the Centers for Disease 

Control and Prevention. Each of these agencies has expertise and must work together to provide greater support to IHEs. 

CONFIDENTIAL ADVISORS AND PEER SUPPORT

Confidential support is critical to encouraging students who are experiencing dating violence to come forward and get the help they need. Survivors may be reluctant 

to report abusive partners to school officials or law enforcement and may need additional time and support to consider their options. We have heard from many students in dating relationships indicating that they are confused about what to do and 

that they don’t have access to any services on campus. 

Confidential advisors should provide students with emotional support, information 

about their options for reporting, and referrals for more in-depth counseling services. Any student communications with the confidential advisors should not be made 

available to university staff or officials without the students’ consent. 

We also recommend that peer advocates be included among those who can serve 

as confidential advisors, as allowable by State laws governing the confidentiality of 

communications with volunteer counselors. Through our direct work with young 

adults, we have learned that they often respond best to their peers. Young people 

may fear being judged by adults and may not disclose the full extent of what has 

happened. Peers are able to build trust and relate more immediately to students. 

We also know that peer advocates must receive significant training and supervision 

by staff confidential advisors. We recommend that the committee consider the possibility of including peer advocates in any provisions creating confidential advisors. 

We offer our expertise in peer advocacy and confidentiality if this would be helpful 

in considering these provisions. 

At the National Domestic Violence Hotline, we hear every day from college students who are experiencing violence and abuse. We appreciate the committee’s attention to this problem and offer our assistance as legislative efforts move forward. 

If you need any additional information, please contact Lynn Rosenthal at 202-823- 

7464 or Rob Valente at 240-354-4842. 

Sincerely, 

ROB VALENTE, 

Vice President of Public Policy. 

LYNN ROSENTHAL, 

Vice President of Strategic Partnerships, 

103 

NATIONAL PARENTHOOD CONFERENCE, 

JULY 28, 2015. 

Hon. LAMAR ALEXANDER, Chairman, 

Senate Health, Education, Labor, and Pensions Committee, 

428 Senate Dirksen Office Building, 

Washington DC 20510. 

Hon. PATTY MURRAY, Ranking Member, 

Senate Health, Education, Labor, and Pensions Committee, 

835 Senate Hart Office Building, 

Washington DC 20510. 

DEAR CHAIRMAN ALEXANDER AND RANKING MEMBER MURRAY: As a caring community of fraternity brothers and sorority sisters, we thank you and the other members 

of the Senate HELP Committee for convening an important hearing to review how 

Congress can combat campus sexual violence as part of the Higher Education Reauthorization process. We consider this a critical issue that impacts all students and 

institutions of higher education today. With the pending reauthorization of the Nation’s higher education laws, now is the time to act. We hope Congress develops a 

comprehensive set of solutions that measurably improves campus safety, more effectively engages law enforcement to bring perpetrators of campus sexual violence to 

justice, clarifies the expectations of schools, protects the rights of all students and 

student organizations, and strengthens the long-term success of title IX. 

The North-American Interfraternity Conference (NIC) and the National Panhellenic Conference (NPC) collectively represent 110 fraternities and sororities with 

725,000 undergraduate members on over 800 campuses in the United States and 

Canada, as well as close to 10 million living alumni. As such, our organizations and 

members represent one of the largest voices in the higher education community. We 

believe that we have a responsibility and obligation to confront issues facing our 

members and step forward to advocate for those students who may not have a unified voice. 

Sororities and fraternities are very engaged on the front lines of the fight against 

campus sexual violence. Our organizations provide our 725,000 students with ongoing training and education on bystander intervention, survivor support, risk management and other strategies that make a meaningful difference in improving campus safety. Every day of the school year, tens of thousands of alumni volunteers 

work with our student members and those efforts include education, prevention activities, and a support system for students affected by sexual violence. At the local 

and national level, fraternities and sororities collectively raise millions of dollars 

and provide innumerable volunteer hours serving charitable organizations that offer 

a range of programs and services to address sexual violence on campus and in society. In short, the collective experiences of our students and alumni allow the NIC 

and NPC to contribute to the policy debate surrounding campus sexual violence. 

We write today to provide our organizations’ perspective on how Congress can reduce and better respond to campus sexual violence through the Higher Education 

Act reauthorization process. 

While we take no position on the Campus Accountability and Safety Act (CASA), 

we offer a series of ideas that in many respects complement CASA and will complete 

the policy puzzle as Congress considers this critically important issue. We acknowledge there are meaningful elements of the puzzle that won’t be addressed by this 

week’s hearing or our letter to you today. Overall, the entire puzzle needs to be 

solved by Congress in order to have a comprehensive fix for the current system. We 

encourage your committee to provide equal attention to all pieces of the puzzle before finalizing solutions during the reauthorization process. 

We start from the perspective that the current response system for handling campus sexual violence cases must be improved. All groups—students, organizations, 

host institutions and local communities—can be better served when new approaches 

are viewed as possible solutions. As leaders on campuses in communities, we want 

to advance ideas to improve the status quo. 

We make the following broad observations: 

• We see too many alleged victims without justice. There are too many instances where alleged perpetrators of sexual violence are not being held accountable 

for their actions via the criminal justice system, compounding the harm to survivors. 

• We see too many students uneducated about their role in preventing 

sexual violence. There is an ongoing need for schools to work with all available 

entities to educate and engage students. 

• We see too many students—accusers and accused—subjected to a campus disciplinary system that is unfair and opaque even as the stakes in 

104 

these cases carry life-altering consequences for all parties. We want a system 

with stronger due process protections for all students to build confidence that the 

result reached in the campus disciplinary process is the correct one. • We see unprecedented punitive actions against student organizations, 

taken without meaningful due process protections, creating a chilling effect that undermines broader goals in fighting campus sexual violence. 

There is a need to provide student organizations with the same due process rights 

of individual students. 

STUDENT DUE PROCESS

The lack of due process rights for students in the adjudication of campus sexual 

assault claims is a major problem. It undermines public confidence in the process 

and exposes schools to litigation by any losing party who feels the process was tilted 

against them from the start. We note that, this past April, a number of prominent 

victims’ rights groups wrote an open letter to university presidents talking about 

how the lack of due process protections ultimately harmed the interests of victims 

as much as it does the accused students. 

While the list of potential due process improvements we identify below is long, 

and we recognize other organizations may have a much broader array of due process 

rights they want Congress to consider, we start with simple rights that should be 

enshrined in the law. Congress should ensure that: 

• The same suite of due process rights is given to both parties in these campus 

adjudications. • A comprehensive overview of the involved charges, the process for handling 

those charges, and the potential penalties involved are available to involved students at the start of the disciplinary process. • Students have access to all evidence collected in the case far enough in advance 

to use that information during the disciplinary process. • Students are able to hire an attorney or advocate, at their own expense, that 

is fully empowered to represent a student throughout the proceeding. It is unfair 

to expect students to navigate the complex disciplinary process, particularly when 

a concurrent law enforcement investigation may be underway, without meaningful 

access to legal counsel in campus proceedings where the potential sanction imposes 

a life-changing sentence on the involved parties. • Students involved in these cases may meaningfully and respectfully cross-examine witnesses. • No university official is allowed to play multiple roles in the disciplinary process. Separate individuals should play the roles of investigator, prosecutor, judge, 

jury, and appellate authority. • The school selects the burden of proof it deems most appropriate for sexual violence cases rather than having that standard mandated by a Department of Education Dear Colleague letter that did not go through the appropriate rulemaking 

process. 

ORGANIZATIONAL DUE PROCESS

Student rights on campus cannot be compromised just because a student is active 

in a campus organization. The intense public scrutiny of the campus sexual violence 

problem has led to organizations being disciplined without cause. Allegations of 

crime or misconduct against an individual are being used to suspend activities for 

organizations to which the accused student belongs, even if the organization is not 

suspected of contributing to the crime or misconduct. More alarmingly, in some 

cases, schools have actually imposed a blanket suspension on thousands of men and 

women in dozens of organizations who have no involvement in the incident under 

investigation. 

These actions are often arbitrary and capricious in nature. In just this past year, 

numerous fraternities and sororities were suspended across the country for allegations involving students and events where they had no direct relationship. Conversely, major sports teams in college football and basketball suffered not so much 

as a missed practice on the road to playoffs and March Madness even as members 

of those same teams were under active investigation for crimes of sexual violence. 

The baseless suspensions of our organizations are antithetical to the concepts of 

due process, and we are particularly concerned that the suspensions will actively 

discourage future reports of campus sexual violence. Schools have been responding 

to a woman’s allegation that a crime has been committed by actually suspending 

the largest women’s leadership organizations on campus, none of which are involved 

in the allegations. In these cases, schools are ultimately telling women they will be 

penalized for coming forward and the result will be a reduction in future reporting. 

105 

Consequently, Congress should ensure that student organizations receive the 

same due process protections that individual students receive during a campus sexual violence disciplinary proceeding. 

ROLE OF LAW ENFORCEMENT

A number of prominent higher education associations have written the HELP 

Committee in the past 18 months asking you to address the fundamental flaws inherent in the current process that requires concurrent investigations by the school 

and local law enforcement. We echo those requests. 

There is a vast difference in the resources, expertise and time needed to handle 

sexual misconduct, where an educational sanction is the best remedy, and crimes 

of campus sexual violence, where law enforcement is best equipped to deliver justice 

to the victim. Current Department of Education guidance pressures schools to investigate and adjudicate sexual violence allegations in as little as 60 days, even if a 

parallel law enforcement investigation is underway. Thus, current law creates a situation where not all crimes of sexual violence are being reported to local law enforcement to allow for investigation and prosecution. 

The best way to reduce the rate of sexual violence on campus is to ensure those 

who commit an act of sexual violence are punished in a manner that befits the 

crime. Congress should therefore encourage students to come forward and report 

more such campus crimes to law enforcement and allow the best trained, best 

equipped professionals the time to investigate before a campus handles the sexual 

misconduct case. For that reason, we support allowing law enforcement a 30-day period of temporary exclusive jurisdiction to investigate campus sexual violence allegations before a campus investigation and adjudication begins. We would also propose 

that Congress change the law and allow the 60-day campus adjudication clock required by the Department of Education to be tolled during the time local law enforcement has exclusive investigation authority. 

We do not, however, believe that institutions should sit idly by as the law enforcement process plays out. To the contrary, we believe that Congress should authorize 

institutions to take powerful interim measures to safeguard students during law enforcement’s temporary period of exclusive jurisdiction. We believe those measures 

should include more than the traditional changes in class schedules, residential assignments and no-contact orders. We support giving schools the statutory right to 

temporarily suspend a student under criminal investigation if there is a finding that 

the student poses an ongoing risk to the safety of other students. We also believe 

that suspension decisions should be revisited regularly to protect students’ due process rights, with the school required to demonstrate the student under criminal investigation poses an ongoing threat to campus safety. Finally, we also believe that 

Congress should allow schools to suspend any student indicted for a crime of sexual 

violence, for the duration of the criminal proceeding, as they pose an ongoing threat 

to the safety of other students. 

PRESERVING TITLE IX

Title IX is at the heart of the campus sexual violence process, as ultimately the 

landmark law requires an educational experience that does not tolerate genderbased discrimination. Fraternities and sororities played a key role in supporting the 

passage of title IX and making sure it included language that allowed single-sex organizations like ours to continue to operate. Since the passage of title IX, our organizations have flourished and we currently enjoy record levels of student membership. The demand for single-sex leadership, fellowship, scholarship, service and 

friendship through our organizations has only increased in today’s tech-obsessed society. 

We are concerned that the fight over campus sexual violence has been used as 

a weapon to undermine the single-sex status our organizations enjoy under the law. 

Some schools cite sexual misconduct or other misconduct on campus as justification 

to require our groups, or their campus governing bodies, to adopt co-educational 

membership policies despite the clear language and intent of the single-sex exemption our groups have under title IX. 

In the past, Congress has used the higher education reauthorization process to 

remind the public that title IX is working and that the single-sex organization exemption has been very successful. We ask Congress to do so again in the upcoming 

reauthorization and to add language preventing schools from forcing single-sex organizations to adopt co-educational policies as a solution to a campus sexual violence 

problem. 

106 

VOLUNTEER LIABILITY

Many student organizations are heavily reliant on alumni volunteers to provide 

training, support, guidance and institutional knowledge. This is especially true of 

fraternities and sororities where there is some level of expectation that alumni will 

help students find success in their chapter experience. Our alumni volunteers are 

trained to manage risk, report crimes of violence to the authorities, and help support students. 

In the evolution of campus security laws, we are concerned that schools may 

adopt requirements that alumni volunteers for student organizations become recognized campus security personnel, with distinct obligations to the university for 

training, reporting and other duties. We are concerned that student organizations 

will be penalized or even lose their campus recognition if they can’t recruit alumni 

volunteers willing to be campus security personnel. Alumni may be hesitant to volunteer in instances where they have new potential liability. 

We encourage Congress to clarify the laws to make it clear that alumni volunteers 

who are not already employed by the host institution cannot be designated as campus security personnel in order to volunteer. We also support language to make it 

clear a school may not punish a student organization or withdraw its recognition 

if the alumni serving the group as volunteers do not serve as designated campus 

security personnel. 

EDUCATION AND PREVENTION

We recognize that much has already been done via the Clery Act and the recent 

Violence Against Women Act amendments from 2013 to provide a framework for 

schools to educate students about all aspects of the campus sexual violence process. 

We support any legislative efforts to continue to refine the education, training, prevention and survivor support programs offered at institutions. In particular, we encourage Congress to consider focusing more attention on educating students in their 

first few months on campus, when they are most vulnerable in their new environment. 

EXISTING LEGISLATION

Many of these ideas are reflected in two new pieces of legislation, the Safe Campus Act and the Fair Campus Act, introduced by your colleagues in the House of 

Representatives this week. The NIC and NPC have endorsed both of these bills for 

that very reason and we encourage the HELP Committee to rely upon those bills 

during the HEA reauthorization process. Safe Campus and Fair Campus do not generally address the subjects that are being addressed in CASA. Rather, we see each 

of these bills as another piece of a comprehensive solution to the campus sexual violence problem and commend them to your attention. 

Thank you for your consideration of our perspectives. We admire your leadership 

in tackling these difficult policy discussions at such a key moment. The NIC and 

NPC stand ready to meet with your offices at any time to talk about our experiences, our expertise and our commitment to student safety and success. 

Sincerely Yours, 

PETE SMITHHISLER, 

President & CEO, 

North-American Interfraternity Conference. 

JEAN MRASEK, 

Chairman, 

National Panhellenic Conference. 

RAPE, ABUSE & INCEST NATIONAL NETWORK (RAINN), 

WASHINGTON, DC 20005, 

July 29, 2015. 

Hon. LAMAR ALEXANDER, Chairman, 

Hon. PATTY MURRAY, Ranking Member, 

Senate Health, Education, Labor, and Pensions Committee, 

428 Dirksen Senate Office Building, 

Washington, DC 20510. 

DEAR CHAIRMAN ALEXANDER, RANKING MEMBER MURRAY, AND MEMBERS OF THE

COMMITTEE: Thank you for dedicating attention to the issue of sexual violence on 

college campuses. On behalf of RAINN, the Nation’s largest anti-sexual violence organization, I write to express our support for S. 590, the Campus Accountability and 

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Safety Act, and for efforts to ensure that victims are protected and sexual predators 

are held accountable. 

RAINN operates the National Sexual Assault Hotline (800.656.HOPE and online.rainn.org), which has helped more than two million people since its creation in 

1994. RAINN also operates the DoD Safe Helpline on behalf of the Department of 

Defense. Additionally, RAINN carries out programs to prevent sexual assault, help 

victims, and ensure that rapists are brought to justice. 

For two decades, RAINN has led efforts to support survivors, and to prevent and 

better respond to on-campus crimes of sexual assault. We have worked with Congress on related legislation, including the Campus SaVE Act, and have worked 

hand-in-hand with survivors, college students and college and university leaders to 

educate students, improve prevention and response programs, and provide help to 

survivors. 

The recent heightened national focus on the issue of campus sexual violence is 

welcome and necessary. The risk of sexual assault is heightened for women of college age. According to the Department of Justice, women 18–24 who are enrolled 

at an academic institution in the United States are three times more likely to be 

sexually assaulted than the rest of the female population. This high rate of sexual 

violence combines with a lower rate of reporting—80 percent of sex crimes committed against female students go unreported, compared to 68 percent for the country as a whole. The Justice Department has also reported that for males 18–24, the 

risk of sexual assault is higher among college students than for males of that age 

who are not in college. This is a problem that necessitates our attention, action, and 

congressional leadership. 

While we know sexual violence is both prevalent on college campuses and woefully 

underreported, we also know that crafting policy responses that blend and respond 

to the equally complex and important needs and interests of students, victims, academic institutions, law enforcement, the accused, and other stakeholders is incredibly complicated. We believe that CASA represents a strong step forward in the effort to protect America’s students, affording them resources for healing and paths 

to justice, and preventing sexual violence on college campuses. 

We are grateful to Senators Gillibrand, McCaskill, Heller, Blumenthal, and Grassley, as well as many others, for their leadership on this topic. RAINN has worked 

closely with these Senators and many other stakeholders as we work together to address sexual violence at academic institutions. We would like to highlight several 

provisions of CASA that we believe will help combat sexual violence. 

CAMPUS SURVEYS

When it comes to preventing and responding to sexual violence, knowledge is 

power. One of the biggest barriers to fixing this problem is the dearth of reliable 

data. While we can piece together anecdotal information, too little is concretely understood about, when and where they seek and receive services, how and when survivors report, or even the total number of assaults from year-to-year. This is an area 

where the Federal Government can play a productive role by applying its research 

expertise to develop and require regular campus surveys, as required under CASA. 

Specifically, CASA requires the Departments of Education and Justice to create 

a standardized survey to be administered on a regular basis to the student body of 

each academic institution. While institutions and the populations they serve vary 

broadly, there is incredible value to a tool that will provide much-needed, uniform 

and constructive data about the incidence and prevalence of these crimes. 

Without understanding the true extent and nature of campus sexual assault, we 

cannot fully understand how to expedite its elimination. The data we have varies 

widely depending on the methodology of the survey, the jurisdiction, the year a survey was administered, and countless other factors, which make it impossible to compare one school to the next, or one graduating class to the next. As a result, we 

cannot, with certainty, say if we have made progress in reducing the number of sexual assaults, or where our resources and attention are most needed. To comply with 

existing law, colleges and universities are expending vast sums to devise and implement prevention programs—without a means to measure whether or not they actually help achieve the goal of preventing sexual assaults. Campus surveys are a fiscally responsible solution, as they will provide data necessary to evaluate prevention 

programs’ effectiveness. 

A national survey, developed by Federal data collection experts and administered 

across the country, will enable schools to better plan, prevent and respond to these 

crimes. 

Additionally, it will, over time, produce reliable data that will inform parents and 

prospective students alike. The data will support policymakers and advocates, inVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00111 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
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cluding the more than 1,000 sexual assault service providers with whom we partner 

to deliver support through the National Sexual Assault Hotline, working to direct 

and focus resources to areas where they are most needed, and to effectively measure 

our progress in not just responding to crimes once they’ve occurred, but to shifting 

the tide and preventing more on-campus sexual assaults. 

MEMORANDUMS OF UNDERSTANDING

A piece of paper itself will not solve the problem of campus sexual violence. By 

requiring schools that have not already done so to enter into memorandums of understanding with local law enforcement as to sexual assault response and prevention protocol, CASA acknowledges something key: without formal and meaningful 

partnership between institutions and law enforcement, we will not successfully 

move the needle toward a system where more victims feel comfortable coming forward to report these crimes and support prosecution of their assailants. 

These memorandums are essential in that they require that the two entities most 

responsible for responding to sexual violence when it occurs on a college campus to 

engage with one another, and hammer out the types of details—jurisdiction, roles 

and responsibilities, etc.—that, once a crime occurs, it’s too late to sort out. 

The good news is that for a majority of jurisdictions across this country, these 

MOUs are already in place. According to the Justice Department, 70 percent of the 

approximately 7,000 academic institutions nationwide have MOUs with its local law 

enforcement agency. CASA would strengthen this landscape by specifying the information that must be discussed and included in these MOUs, and by requiring that 

they are living documents, not simply drawer liners: MOUs must be regularly reviewed and updated. CASA leaves jurisdictions the flexibility to coordinate with one 

another in a manner that best serves and makes sense in their communities, but 

the collaboration is no longer optional. 

The bottom line is this: far, far too few victims are reporting these crimes to law 

enforcement. This means we have to do a better job of supporting each step of their 

healing process, and help them feel supported if and when they decide to report to 

law enforcement. It is time to take the guesswork out of the process and clearly delineate, through MOUs and the conversations that necessarily surround them, the 

roles, responsibilities, and opportunities for collaboration and partnership to achieve 

shared goals. 

CONCLUSION

In addition to the provisions already discussed, we have also worked closely with 

the bill’s sponsors to support their efforts to ensure that students have confidential 

support and assistance available. We have worked closely with committee staff to 

share our understanding of States’ confidentiality standards and provided extensive 

feedback to support the goal of students having safe, confidential support available 

to them on college campuses. 

Additionally, we strongly support measures to increase accountability and compliance: specifically, meaningful sanctions for violations of laws designed to combat 

these crimes. 

We thank the committee and other congressional leaders for the opportunity to 

provide insight and feedback on these critically important efforts, and for your diligence in addressing this problem. 

Sincerely, 

SCOTT BERKOWITZ, 

President and Founder. 

THE STATE UNIVERSITY OF NEW YORK (SUNY), 

ALBANY, NY 12246, 

July 28, 2015. 

Hon. LAMAR ALEXANDER, Chairman, 

Health, Education, Labor, and Pensions (HELP) Committee, 

U.S. Senate, 

Washington, DC 20510. 

Hon. PATTY MURRAY, Ranking Member, 

Health, Education, Labor, and Pensions (HELP) Committee, 

U.S. Senate, 

Washington, DC 20510. 

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

DEAR CHAIRMAN ALEXANDER, RANKING MEMBER MURRAY, and members of the 

committee: On behalf of The State University of New York (SUNY), we thank the 

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1http://www.suny.edu/media/suny/content-assets/documents/boardoftrustees/memos/Sexual-Assault-Response-Prevention-REVISED.pdf. 2http://open.nysenate.gov/legislation/api/1.0/pdf/bill/S5965-2015. 3http://system.suny.edu/media/suny/content-assets/documents/generalcounsel/SUNYVAWA-Guidance-2014.pdf. 4http://system.suny.edu/media/suny/content-assets/documents/compliance/international/ 

SUNY-Clery-Policy-for-Council-on-International-Programs-FINAL.pdf. 5http://www.suny.edu/violence-response/Visa-and-Immigration-Resource/. 

committee for convening this important hearing on campus sexual assault and efforts to ensure student safety as part of reauthorization of the Higher Education 

Act. 

SUNY is the Nation’s largest comprehensive public university system, with nearly 

half a million students at 64 institutions including community colleges, technology 

colleges, comprehensive colleges, and doctoral degree granting institutions. Indeed, 

SUNY is a microcosm of the national higher education sector. As such, our testimony is developed from extensive experience with the opportunities and challenges 

inherent in creating policies that both fit the needs of diverse institutions and support important systemwide objectives. SUNY has a long and unwavering commitment to ensuring student safety and we strongly support Senator Kirsten Gillibrand 

and your colleagues’ efforts to make this issue a national priority just as we have 

done in New York State. We were proud to stand up as the first university system 

in support of the Campus Accountability and Safety Act, which takes a bold step 

toward improving the prevention of and response to sexual and interpersonal violence at all institutions of higher education. 

SUNY’S LEADERSHIP IN SEXUAL VIOLENCE PREVENTION AND RESPONSE

In October 2014, the SUNY Board of Trustees passed a resolution1 at Governor 

Andrew M. Cuomo’s urging to: 

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

We convened a working group comprised of campus presidents, counsels, student 

life leadership, title IX coordinators, University police and public safety representatives, students, faculty, and nationally recognized external experts. 

As of January 2015, we are proud to share that SUNY indeed has a set of comprehensive, systemwide policies to prevent and respond to sexual violence on our 

campuses. SUNY’s Sexual Violence Prevention Workgroup built on the best practices of campuses both across the SUNY system and the Nation to create policies 

that are adaptable to each unique institution while ensuring consistent standards. 

Starting this fall, all students, faculty, and staff will be trained on these cuttingedge policies. Our hard work received the ultimate acknowledgement when Governor Cuomo and the New York State legislature passed a law2 making SUNY’s 

work the backbone of statewide policies that will apply to all public and private colleges in the State. 

SUNY is committed to training our campus professionals on the most up-to-date 

standards and requirements of the Violence Against Women Act (VAWA) amendments to the Clery Act. Over the years, the work of our Office of General Counsel 

and campus professionals have gained us a reputation as a national leader in developing guidance on compliance. Some recent examples of the impact of SUNY’s work 

in this area include: 

• In July 2014, we shared guidance3 in reaction to Department of Education regulations regarding the VAWA which has been downloaded more than 25,000 times 

by institutions across the country. 

• In October 2014, SUNY’s international education professionals unanimously 

passed a uniform procedure on Clery Act and title IX compliance on study abroad,4

which has since been adopted by other institutions. 

• VAWA regulations require colleges to provide victims with, among other things, 

‘‘visa and immigration assistance.’’ While many who study or conduct research in 

the United States understand English well, during a time of trauma and stress, 

they will benefit from a document that is both available in their native language 

and customized to the resources available on campus and in the community. In response, SUNY Counsel worked with immigration attorneys to develop a 2-page, 

plain-language explanation of visa and immigration resources for students, translated into their native languages.5

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6See Section 6442, http://open.nysenate.gov/legislation/api/1.0/pdf/bill/S5965-2015. 

SUNY is not only committed to compliance with State and Federal requirements, 

but we also have implemented policies that go beyond what is included in statute 

to better serve our students and ensure safe communities: 

• SUNY campuses use a transcript notation for suspension, expulsion, or withdrawal with charges pending to students found responsible for violence after a 

standard disciplinary process. Thanks to SUNY’s advocacy, a provision for transcript 

notations was included in New York’s recent legislation and will be applied at all 

institutions of higher education in the State. 

• We know that one of the most important factors in reducing instances of sexual 

violence is a change in culture. That is why our uniform policies address extensive 

prevention and education efforts on our campuses, rather than simply guidelines for 

responding to violations when they occur. Pursuant to VAWA, colleges are required 

to conduct a campaign throughout the course of the year to educate students about 

sexual violence. In addition, under SUNY policy and now New York law, all studentathletes and student leaders must complete mandatory training prior to competing 

in intercollegiate athletics or having their organization recognized. We believe that 

educating student leaders will empower them to model positive behavior for their 

organizations and the many students they reach as an important step toward 

changing campus culture. 

We encourage the committee to consider amendments that would add measures 

addressing transcript notations, year-round awareness campaigns, and targeted student leader and athlete training to the Campus Accountability and Safety Act. 

SUNY’S RESPONSE TO TOP PROVISIONS OF THE CAMPUS ACCOUNTABILITY AND SAFETY

ACT (CASA)

1. Victim-centered approach: We strongly support CASA’s inclusion of language 

consistent with VAWA, that gives the victim/survivor control to decide whether to 

go to law enforcement, and, if the victim/survivor wishes, the institution will assist 

in reporting. SUNY’s uniform policies reflect a victim-centered approach to the prevention and response of sexual violence, part of which is a response policy with information and resources easy accessible on the web. 

2. Uniform enforcement of campus disciplinary proceedings: We know from experience that separate disciplinary processes are inherently unequal. SUNY campuses 

apply the same student code of conduct, including the campus disciplinary procedures, to all students. We strongly support the uniform application of standards 

across all institutions. 

3. Amnesty policy: SUNY’s uniform policy for bystanders and victims/survivors reporting sexual violence to receive amnesty from drug and alcohol use penalties6

served as the model for New York’s legislation governing all colleges and can serve 

as a national model for plain language amnesty. We support the inclusion of amnesty policies in CASA. 

4. Campus Climate Surveys: As required by our systemwide policy and State law, 

SUNY will administer a uniform climate survey to nearly half a million students 

in the 2016–17 academic year, the largest university survey to date. CASA’s requirement that the Department of Education create and administer a survey will ease 

a significant administrative and cost burden on institutions and allow for uniform 

application and comparability of results. 

5. Title IX Coordinator (TIXC) as a designated Campus Security Authority (CSA): 

SUNY has consistently advised that the TIXC is a CSA in that they have significant 

responsibility for student and campus activities and we believe this should be consistent at all colleges. In CASA, the definition of ‘‘responsible employee’’ (RE) conflicts with Office of Civil Rights guidance, which indicates that a RE is anyone 

whom a student reasonably believes has the authority to redress complaints. We are 

concerned that the use of the terms CSA and RE will lead to confusion and underreporting among victims/survivors. We recommend replacing these terms with the 

commonly understood ‘‘mandated reporter,’’ which clearly covers individuals employed by the institution with appropriate exclusions for counselors and advocates. 

RECOMMENDATIONS FOR CLARIFICATION IN CASA

1. Reporting student disciplinary proceedings closed without resolution: This section of CASA represents a departure from Clery Act crime reporting, as it is not 

aligned with Clery reporting geography. We support transparency and are proud of 

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7See Section 6449, http://open.nysenate.gov/legislation/api/1.0/pdf/bill/S5965-2015. 

SUNY’s record in this area. We recommend that the committee consider New York 

State’s legislation7 for a similar but clearer reporting regime. 

2. Changing the statute of limitations to 180 days after graduation or separation: 

Many students take 6 or more years to graduate, enroll in successive degree programs at a single institution, or are in doctoral programs for a significant length 

of time. Put simply, students may be affiliated with an institution for more than 

a decade. We support the motivation to give victims/survivors more time to come 

forward, but an open-ended timeframe could lead to documents destroyed pursuant 

to records management schedules, witnesses who graduate, retire, or pass away, 

and less reliable memories. Our recommendation would be to cap the time allotted 

to 180 days after the date of graduation or disaffiliation with the institution and 

no more than 3 years after the date of the last incident. 

CONCLUSION

SUNY hears—and actively embraces—the national call for providing the best 

tools, resources, and services to protect students from sexual violence and support 

them in the event that an incident occurs. We must, in short, get down to the business of making our campuses safer while ensuring more accountability and transparency. 

SUNY has been privileged to work with Senator Gillibrand, her colleagues in the 

Senate, and members of the New York Delegation as well as our partners in State 

government on this issue, and we look forward to continuing to be a part of this 

important dialog. We would encourage the committee to reach out to us directly if 

we may be of assistance or can provide additional details based on our experience. 

Respectfully, 

NANCY L. ZIMPHER, 

Chancellor, 

The State University of New York. 

H. CARL MCCALL, 

Chairman, 

SUNY Board of Trustees. 

ZEN MEN, LLC, 

JULY 28, 2015. 

Hon. LAMAR ALEXANDER, Chairman, 

Hon. PATTY MURRAY, Ranking Member, 

Committee on Health, Education, Labor, and Pensions, 

428 Senate Dirksen Office Building, 

Washington, DC 20510. 

Re: Senate HELP Committee Hearing on ‘‘Reauthorizing the Higher Education Act: 

Combating Campus Sexual Assault’’ 

DEAR SENATOR ALEXANDER AND SENATOR MURRAY: In any sustainable system, 

every expansion of control must correspond with an expansion of accountability. The 

Campus Accountability and Safety Act (CASA; S. 590), is an example of legislation 

that grants to universities some powers comparable to that of criminal courts, but 

without the responsibilities one expects from a functional judicial system. These 

powers execute on receipt of an allegation of sexual assault, sans proof beyond a 

reasonable doubt that such an assault occurred. 

Any gender- or sex-neutral language in S. 590, while appreciated, is currently not 

enforceable because of the perceptual imbalances our culture has between male and 

female students, which justifies further checks and balances consistent with constitutional amendments IV through VIII. Failure to extend proportional protections 

to accused parties in criminal allegations—partially processed by University faculty 

and staff—has resulted in the unwarranted expulsion, suspension, slander, or libel 

of young male students. At the time of this writing, A Voice for Male Students documents 75 cases showing due process violations enabled by Universities acting as 

flexible proxies to a frighteningly punitive criminal court system, and that number 

is growing. 

As a male student who is still struggling to shake off the effects of allegations 

long declared unfounded by Kennesaw State University, I feel deeply frightened and 

unsafe under CASA. In response to its proposition, Zen Men, LLC will educate male 

students on how to assert their rights and therefore resist the biases behind the legislation. 

112 

It is my hope that any HELP committee representative reading this testimony 

places themselves in the shoes of one accused of sexual assault without a shred of 

evidence to support such a devastating charge. Picture, as a falsely accused student, 

your attempt to function while attending a University that is ready to brand you 

as a rapist and issue punitive discipline regardless of the evidence. 

Speaking as one of your sons trying to build a future, I ask that you oppose CASA 

and reflect on providing fair treatment and respect for both the accuser and the accused. I thank you and all involved Senators for hearing this side of the issue. 

Sincerely, 

SAGE GERARD, 

Founder, Zen Men LLC. 

RESPONSE BY JANET NAPOLITANO TO QUESTIONS OF SENATOR ALEXANDER, SENATOR MURKOWSKI AND SENATOR WHITEHOUSE

SENATOR ALEXANDER

Question 1. Do you have specific suggestions about how Title IX and the Clery 

Act, including their implementing regulations and guidance, can be improved and/ 

or clarified to provide institutions of higher education the flexibility they need? 

Are there areas where these laws, regulations, or guidance conflict? 

Are there areas where they are duplicative? 

Answer 1. Existing rules and regulations—including those in place through the 

Higher Education Act (Clery Act and Title IX), the Violence Against Women Act and 

the Department of Education’s Office of Civil Rights—must be better coordinated 

and streamlined. The definitions, regulations, program guidance, timelines, and 

other programmatic components are not aligned and result in duplicative efforts 

around investigations, confusing interpretations, and contradictory guidance. 

Here are a few examples where there is overlap that can create confusion, conflict, 

or duplication: 

• Both title IX’s OCR guidance and Clery cover the issue of sexual violence. 

Under OCR guidance, institutions have an obligation to respond to sexual violence 

involving students wherever it occurs. While there is not really any dispute that 

sexual violence occurring in the context of a school’s education programs and activities must be addressed, OCR guidance also says that off-campus violence has to be 

addressed and the effects on campus or in the school’s educational program or activity must be considered. Clery only covers sexual violence that occurs on ‘‘Clery geography’’ (e.g., on campus, on non-campus buildings or property, or immediately adjacent public property). 

• Because OCR treats sexual violence as a severe form of sexual harassment, 

there is a broad range of conduct that triggers title IX requirements and expectations. Clery, on the other hand, has a more narrow definition of sexual assault using 

Federal definitions of rape and other sexual assaults. 

• There are reporting obligations under both Title IX and Clery. Title IX says any 

responsible employee must report to the school any sexual violence incident that 

they become aware of, and must provide all identifying information and details 

about the incident. Clery says that campus security authorities (CSAs) must report 

Clery-countable crimes but, unless they are police or security officers, need not provide personally identifiable information. The implications of these different coverages of the laws/guidance, definitions and scope of the acts covered, and the reporting expectations and requirements means that every case of reported sexual assault can create significant challenges for the person who learns of the issue in determining what is their reporting obligation and to whom (and if they are a responsible employee and a CSA, or just a responsible employee but not a CSA, or not a 

responsible employee but just a CSA leads to different answers/outcomes) 

• Additionally, in VAWA/Campus SaVE, institutions have to use State law definitions of domestic violence, dating violence and stalking but when reporting crime 

statistics for Clery they must use Federal definitions for counting domestic violence, 

dating violence and stalking reports. 

• According to OCR guidance, institutions are expected to take all steps to investigate all reports of sexual violence. At the same time, institutions are expected to 

do their very best to honor complainants’ desire not to have something investigated 

and to keep it confidential. Institutions are told where a complainant wants to 

maintain confidentiality that they should investigate to the best of their ability 

while honoring the complainant’s request. 

• An institution might be under OCR investigation for title IX with a concurrent 

Clery inquiry by a different branch of the Department of Education, meaning difVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00116 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
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ferent people at the same institution are duplicating data collection and response 

efforts rather than coordinating similar information. 

While these are not issues addressed in the CASA legislation, the Department of 

Education could begin—even before Federal legislation is enacted—to streamline its 

internal procedures to better guide institutions toward compliance with current laws 

and regulations. The Department should engage other relevant Federal agencies to 

seek input on the development and implementation of guidance to ensure that the 

agencies are in sync and work toward common interpretations of guidance in order 

to prevent contradictions. It would be useful if agencies established program guidance, with key criteria and risk areas that institutions could use that would be accepted by all applicable agencies. For example, the Department of Health and 

Human Services Office of Inspector General provides Compliance Program Guidance 

for the health care industry that provides health care-related entities key elements 

for compliance. 

Clearer guidance as to what should be taken as a suggestion of ‘‘best practice’’ 

versus a ‘‘required’’ action should also be provided. Current ‘‘Dear Colleague Letters, 

(DCL)’’ for example, are unclear upon review and can be interpreted in multiple 

ways. In fact, in some States, State auditors are interpreting DCLs, which are sometimes unclear, as prevailing law rather than guidance. 

Reporting requirements within the different Federal laws should also be better coordinated to ensure that the common definitions and mandated processes are not 

duplicative or contradictory. This is a very difficult area for practical application in 

policies and procedures. Confusion exists because reporting obligations under OCR 

guidance is driven by the identity of the victim or perpetrator, while Clery reporting 

is based on where an incident occurs. Individuals may have obligations to report 

under one or both. Additionally, when title IX inquiries and reviews are necessary 

and executed by OCR, there should be a timeframe for the reports to be completed 

and disseminated back to the respective institutions. It is not useful to receive a 

report several years later after the review was conducted when the institution may 

already be implementing changes and improvements to their processes. UC is still 

undergoing reviews that were started several years ago. Similar sentiment is shared 

related to the Clery Act audits and reviews executed by the Department of Education which again, should be required to be reported timely with outcomes. 

Question 2. Do you have suggestions about how institutions of higher education 

can best coordinate with law enforcement without turning the institutions into de 

facto law enforcement agencies? 

Answer 2. While universities have a key role to play in governing student conduct, 

it is important to note that university student conduct proceedings are not the same 

as legal proceedings. Universities do not have the same scope of authority to investigate (for instance, there is no subpoena power) and there are limits on what discipline can be imposed (i.e., a university cannot impose civil or criminal sanctions). 

Given the interplay between student conduct and criminal proceedings, however, institutions of higher education and local law enforcement must improve communication and coordination on cases in their jurisdiction. Lack of clear communication, 

adequate training and designated areas of responsibility can result in disjointed efforts between campus officials and police. Enhancing communication and coordination between campus officials and local law enforcement is needed to better support 

those reporting sexual assaults. 

To that end, I worked with California Attorney General Kamala Harris to develop 

a new toolkit for California law enforcement agencies and higher education institutions to improve collaboration and transparency on campus sexual assault prevention and response. This was driven, in part, by my belief that these incidents are 

often criminal matters and that all parties involved—universities, police, district attorneys, and others—should be coordinated and committed to robustly and sensitively addressing these cases. The toolkit includes a model memorandum of understanding (MOU) that can be adapted and used by California institutions of higher 

education and local law enforcement agencies that have jurisdiction over those institutions. It also includes a resource guide explaining the provisions of the MOU and 

relevant laws and policies related to those provisions. This approach is one that likely would be useful in other jurisdictions. 

In addition, this type of MOU would help local law enforcement leverage the specific knowledge and training that many campus police departments have in responding to sexual violence. The University of California, like many public university police departments nationwide, employs fully sworn law enforcement officers with full 

arrest powers and primary jurisdiction for first-response and law enforcement on 

their campus. UC police officers are trained and certified consistent with the California Commission on Peace Officer Standards and Training requirements and they 

114 

investigate incidents of sexual assault and other felony and misdemeanor crimes as 

both first responders and as trained and experienced criminal investigators. At UC, 

our campus police departments are also included in our sexual violence and sexual 

assault training and have played an active role in the Task Force’s efforts. They receive investigation training; trauma-informed training, training from the California 

Commission on Peace Officer Standards and Training, and mandated training regarding sexual violence and sexual assault. UC is also developing a mandatory 2- 

hour training for all law enforcement which will include emphasis on traumainformed practices related to investigations, memory impairment of victims, etc., 

that could serve as a model for other jurisdictions. 

Question 3. Do you have suggestions about what we can do, or not do, to make 

sure colleges establish procedures dealing with allegations of sexual assault that are 

fair and protect the due process rights of the accuser and the accused? 

Answer 3. Universities around the country, including UC, are grappling with improving and reforming their adjudication, investigation, and sanction processes to 

ensure equitable treatment and a trauma-informed approach for complainants and 

respondents. The UC Task Force on Preventing and Responding to Sexual Violence 

and Sexual Assault (Task Force) is creating a model that establishes strong, consistent practices for investigation, adjudication, and sanctions—one that is scalable 

and applicable to our own culture. This model provides flexibility to accommodate 

campuses’ unique characteristics, while still providing an equitable process for both 

complainants and respondents. 

The University will provide resources for the complainant and respondent through 

the CARE Advocacy Office and Respondent Services Coordinators. Complainants 

will receive support from the CARE Advocacy Office and respondents, if they choose, 

can receive services from the respondent services coordinator. Each UC campus has 

also established a Case Management Team for Sexual and Gender-Based Violence 

and Misconduct (CMT) comprised of student conduct, title IX, campus police, advocacy and other subject matter experts as needed. The CMT reviews all current sexual misconduct cases to ensure that the campus’ institutional response is traumainformed; timely communication response occurs and adheres to all Federal, State, 

and policy guidelines; and is coordinated among all points of contact for both complainants and respondents. 

SENATOR MURKOWSKI

Question 1. The Campus Accountability and Safety Act (CASA) would require an 

institution to provide a confidential advisor to an assault victim. This is intended 

to provide support and resources to the victim in a way that will provide the victim 

with a sense of safety and control, which is laudatory. I am concerned, however, 

about provisions in CASA that specifically state a confidential advisor is not obligated to report crimes to the institution and that any requests for accommodation 

the Advisor makes on behalf of a student ‘‘shall not trigger an investigation by the 

institution.’’ These provisions seem to conflict with institutions’ moral and legal obligation under title IX to ensure that a campus is safe for all students. Keeping information about a crime secret and prohibiting an investigation could lead to an increased risk for other students as well as lead to liability for the institution should 

the perpetrator harm additional students. What changes do you recommend, to 

CASA, title IX, or both, to reconcile this conflict? 

Answer 1. UC strongly supports CASA’s requirement for institutions of higher 

education to designate a confidential advocate that survivors can report to anonymously and directly. Confidential resources exist in order to provide a safe space 

for individuals to discuss their options, learn about resources, and discuss any concerns before deciding to take next steps. Unless there is risk of serious harm to others, a confidential advocate cannot share information without the express consent 

of the individual. 

The UC Task Force on Preventing and Responding to Sexual Violence and Sexual 

Assault heard directly from students that having access to a confidential, privileged 

and independent advocate on campus was a top priority. This student-driven effort 

led to the establishment of CARE: Advocacy Offices for Sexual and Gender-Based 

Violence and Misconduct on UC campuses. CARE advocates serve as a confidential 

resource and can explain the various reporting options, including law enforcement, 

student conduct, title IX, anonymous reporting, or no reporting. The students were 

also clear that they wanted a ‘‘safe’’ resource on campus that was easily accessible 

and would know the available campus resources and the potential interim measures 

on campus that could be taken to support the complainant. If the resource were only 

allowed off campus or was forced to be a third party either on or off campus, the 

knowledge of campus operations and access to the resource would potentially be limVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00118 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
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ited. The campus culture would also not be as well-known, which may not serve the 

student’s best interests. 

While it is ultimately the student’s decision whether to report and take further 

action, it is our hope that the assurance of confidentiality will encourage more students to come forward and ultimately report incidents of sexual misconduct to law 

enforcement. In my view, we actually create a less safe campus environment if students do not have the choice to discuss their situation confidentially on campus and, 

consequently choose not to come forward. By providing a confidential, independent, 

and safe space for individuals to seek support, we will hopefully increase reporting, 

which is a key part of our effort to address sexual violence and sexual assault on 

campus and increase campus safety. 

I cannot stress enough the importance that these advisors must be confidential, 

privileged and independent. Any legislation must ensure that the ‘‘confidentiality’’ 

of services provided by these advisors is clearly defined by the institution and 

shared with students in plain language. 

Question 2. Experts consulted by the University of Alaska have consistently stated 

that the best way to get absolutely accurate results on a campus survey about sexual assault is to assure absolute confidentiality and to prohibit publishing the results. This promotes higher response rates and allows the institution to respond to 

gaps, concerns, and problems in campus safety issues. CASA advocates suggest that 

a homogenous survey, the results of which are published, will assist the consumer 

in making educated choices. Data suggests that few prospective students, their families, or enrolled students review campus crime statistics. Do you agree that the 

campus surveys should be used for institutional improvement of policies and practices rather than as a consumer tool? Why or why not? Do you recommend that if 

institutions are required to use a survey developed by the Department that individual institutions should be able to delete questions that are locally or culturally 

inappropriate? Should there be two surveys—one developed by the Department of 

Education and used as a consumer tool and one developed by an institution and 

used only to improve internal practices and policies? 

Answer 2. The University of California just conducted the largest university system 

climate survey of its kind in the Nation. From the fall of 2012 through the spring 

of 2013, UC took the unprecedented step of surveying its faculty and other academic 

appointees, students, staff, trainees, and post-doctoral scholars about their experiences and perceptions of campus or workplace climate. More than 386,000 individuals were invited from the 10 UC campuses, the Lawrence Berkeley National Laboratory, the University’s Division of Agriculture and Natural Resources, and the UC 

Office of the President to participate in this study. We now have a rich baseline of 

data that campuses are analyzing to identify key areas of focus. 

Climate surveys can serve a valuable purpose in providing useful data for university administrators to effect change in practice, culture, and policies. At UC, in our 

recent systemwide survey, we wanted the data gathered to be an honest reflection 

and critique of our campus cultures. The survey’s goal was for internal improvement, not consumer marketing. Our staff worked to provide campus-specific information that reflected the perceptions of survey respondents yet protected their anonymity; this would be difficult if the main purpose of the data is for general consumer consumption. UC Berkeley, for example, has a committee that meets to discuss the specific results of our recent climate survey and how to use the data to 

affect cultural change. I would urge that any climate survey designed or required 

be guided by a goal of quality improvement in campus culture rather than a public 

ranking of campus climates. 

Again, while campus climate surveys can be an effective tool and good overall indicator, they cannot be the only tool. Climate surveys can be quite an undertaking 

and very expensive to administer, so I do not believe that having two separate surveys would be practical or a prudent use of resources. Additionally, if required to 

be done too frequently, surveys may distract from the work being done to directly 

address campus climate issues as well as efforts to measure and track outcomes. 

To be effective, the timing of the surveys must allow for thorough analysis of the 

results and time for institutions to develop and implement changes. 

I also have significant concerns about the usefulness of a single survey developed 

for all institutions given the broad diversity in higher education institutions across 

the Nation and the student populations they serve. Institutions should be allowed 

to develop and use their own climate surveys, as long as they meet criteria and 

standards defined by the Department of Education, are developed in consultation 

with stakeholders, required periodically and are scalable. 

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Question 3. CASA requires that institutions develop Memoranda of Understanding 

with each law enforcement agency that has jurisdiction. Many institutions, including public and private institutions, have developed significant e-learning opportunities for their students who may never attend classes on campus. This CASA requirement is viewed by those institutions, therefore, as fatally vague and unworkable. 

Do you agree, if so, do you have suggestions for addressing this concern? 

Answer 3. This is not a significant concern for UC, but the question raises just 

one of the many complications for non-traditional educational institutions. Title IX 

and VAWA cover all educational institutions, and even on-line entities that have 

brick and mortar locations have Clery reporting responsibilities, so this type of requirement could be unmanageable due to jurisdictional boundaries. MOUs with law 

enforcement agencies would be difficult if there is no ‘‘campus’’ (and no campus police) and there numerous potential local law enforcement agencies. 

To the extent that new laws or regulations lead ‘‘campuses’’ to improve services 

to complainants, or that existing laws are streamlined to reduce confusion and 

eliminate duplication, there is potential benefit for all institutions, including on-line 

providers, in navigating the complex set of issues they face in preventing, responding to, and reporting incidents of sexual violence and sexual assault. 

Question 4. Several witnesses spoke to the complexity of compliance with Clery 

and Title IX. Adoption of the CASA provisions would add additional requirements 

and complexity. Looking at the issue of campus safety as a whole, would you recommend that the committee completely re-write institutional responsibilities across 

Clery, Title IX, VAWA, and CASA in order to reduce complexity, increase crime reporting and transparency, and provide for the rights of all students to a safe campus 

on which to gain an education? If so, what specific suggestions do you have for the 

committee? 

Answer 4. Much more needs to be done to clarify, streamline and improve the coordination of existing laws and policies. Within the Department of Education, the 

Clery Act, Title IX, VAWA, and OCR investigations use different definitions, coverage, and reporting requirements, and there is no coordination of investigations between the Federal Government and individual States. In addition to the fact there 

is also significant confusion about what is ‘‘recommended’’ or ‘‘preferred’’, there are 

legal and financial implications to the lack of regulatory coordination. 

Question 5. I have received concerns from students who have been accused of sexual assault on campus and their parents. They tell me their rights to a fair hearing 

were not respected. Complaints included that as the accused, they were not informed of their rights under the institution’s hearing policies, that the victim was 

provided more robust counsel by the university, and that they were denied the right 

to question their accuser and witnesses. CASA requires institutions to provide certain information about process to both the victim and the accused but leaves to the 

institution to follow their own policies for conducting investigations and hearings. 

Can this section be improved? Should the committee mandate that institutions follow basic policies and procedures? If so, please provide specific suggestions. 

Universities around the country, including UC, are grappling with improving and 

reforming their adjudication, investigation, and sanction processes to ensure equitable treatment and a trauma-informed approach for both complainants and respondents. The UC Task Force on Preventing and Responding to Sexual Violence 

and Sexual Assault (Task Force) is creating a model that is scalable and applicable 

to our own culture. This model provides flexibility to accommodate a campus’s 

unique characteristics, while still providing an equitable process for both complainants and respondents. The University will provide equitable resources for the complainant and respondent through the CARE Advocacy Office and Respondent Services Coordinators. Complainants will receive support from the CARE Advocacy Office and respondents, if they choose, can receive services from the Respondent Services Coordinator. 

While UC supports Federal proposals to help all institutions of higher education 

navigate the complex set of issues they face in preventing, responding to, and reporting incidents of sexual violence and sexual assault, a one-size-fits-all approach 

will not be effective in addressing the problems we face. Federal legislation must 

be flexible enough to allow for institutional differences, yet strong enough to ensure 

full accountability. Additionally, any new laws or regulations must not ‘‘undo’’ or 

contravene programs and policies institutions have implemented that are based on 

evidence informed research and represent best practices for action. 

The impact on available resources should also be considered in every decision with 

a focus on transparency, accountability, campus safety, and efficiency, avoiding duVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00120 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
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plication and redundancy. UC also supports broader coordination and accountability 

among other partners in this endeavor, such as prosecutors and the courts. 

SENATOR WHITEHOUSE

Question 1. In the context of campus sexual assault, campus investigations and 

law enforcement investigations can sometimes work at cross purposes. How can we 

disentangle the campus and law enforcement investigations so that one does not impede the other? 

Answer 1. Lack of clear communication, adequate training and designated areas 

of responsibility can result in disjointed efforts between campus officials and police. 

It is important to clarify the roles for campus police and their local law enforcement 

counterparts to ensure the effective investigation and prosecution of criminal behavior and avoid jurisdictional confusion or miscommunication—particularly when 

there is concurrent jurisdiction. Enhancing communication and coordination between campus officials and local law enforcement is certainly needed to better support those reporting sexual assaults. 

To that end, I worked with California Attorney General Kamala Harris to develop 

a toolkit for California law enforcement agencies and higher education institutions 

to improve collaboration and transparency on campus sexual assault prevention and 

response. The toolkit includes a model memorandum of understanding (MOU) that 

can be adapted and used by California institutions of higher education and local law 

enforcement agencies that have jurisdiction over those institutions. It also includes 

a resource guide explaining the provisions of the MOU and relevant laws and policies related to those provisions. This approach is one that likely would be useful in 

other jurisdictions. 

Each UC campus is established a Case Management Team for Sexual and Gender-Based Violence and Misconduct (CMT) comprised of student conduct, title IX, 

campus police, advocacy and other subject matter experts as needed. The CMT reviews all current sexual misconduct cases to ensure that the campus’ institutional 

response is trauma-informed; timely communication response occurs and adheres to 

all Federal, State, and policy guidelines; and is coordinated among all points of contact for both complainants and respondents. This could similarly serve as a model 

for other institutions. 

Question 2. In the context of domestic violence, law enforcement officers have become better qualified to address the needs of victims by drawing on the expertise 

of advocacy groups and experts. How can we best support the law enforcement community so that officers are similarly well-trained to assist survivors of campus sexual assault? 

Answer 2. It will be critical to improve communication between campus police and 

local law enforcement and leverage the specific knowledge and training that the 

campus police have in responding to sexual violence. The University of California, 

like many university police departments nationwide, employs fully sworn law enforcement officers with full arrest powers and primary jurisdiction for first-response 

and law enforcement on their campus. UC police officers are trained and certified 

consistent with the California Commission on Peace Officer Standards and Training 

requirements and they investigate incidents of sexual assault and other felony and 

misdemeanor crimes as both first responders and as trained and experienced criminal investigators. At UC, our campus police departments are also included in our 

sexual violence and sexual assault training and have played an active role in the 

Task Force’s efforts. They receive investigation training, trauma-informed training, 

training from the California Commission on Peace Officer Standards and Training, 

and mandated training regarding sexual violence and sexual assault. UC is also developing a mandatory 2-hour training for all law enforcement which will include emphasis on trauma-informed practices related to investigations, memory impairment 

of victims, etc., that could serve as a model for other jurisdictions. 

Question 3. Many survivors fear that they may lose control over campus sexual 

assault proceedings if law enforcement gets involved early. What can we do to inform students about the course of a law enforcement investigation, so they can make 

an informed choice about how to proceed? 

Answer 3. The UC Task Force on Preventing and Responding to Sexual Violence 

and Sexual Assault heard directly from students that having access to a confidential, privileged and independent advocate on campus was as top priority. This led 

to the establishment of CARE: Advocacy Offices for Sexual and Gender-Based Violence and Misconduct on UC campuses, which could serve as a model for other institutions. These CARE advocates serve as a confidential resource and provide a safe 

space for individuals to discuss their options, learn about resources, and discuss any 

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1Department of Education Office for Civil Rights. (2014). Questions and Answers on Title IX 

and Sexual Violence. Retrieved from http://www2.ed.gov/about/offices/list/ocr/docs/qa201404-title-ix.pdf. 

concerns before deciding to take next steps. The Advocate may explain the various 

reporting options, including law enforcement, student conduct, title IX, anonymous 

reporting, or no reporting. Increasing communication and setting expectations are 

key to helping individuals make an informed choice about how they wish to proceed. 

Question 4. Absent the concern of loss of control (perceived or otherwise) by the 

survivor, are there reasons that experienced, trauma-informed, sensitive, effective 

law enforcement should not be involved at early stages of an investigation? 

Answer 4. Incidents of sexual violence and sexual assault are criminal matters 

that should involve law enforcement, but OCR guidance emphasizes that it is ultimately the student’s decision whether to report an incident to police, title IX, or 

both. UC provides access to a confidential, privileged and independent CARE advocate on campus that serves as a resource to help the student make an informed 

choice about how they wish to proceed. Our hope is that the assurance of confidentiality will encourage more students to come forward, seek support, and ultimately 

report incidents of sexual misconduct to law enforcement. One area of focus should 

be building more trust and confidence in the law enforcement system to increase 

reporting. 

RESPONSE BY DANA BOLGER TO QUESTIONS OF SENATOR ALEXANDER, SENATOR HATCH, SENATOR MURKOWSKI, SENATOR WHITEHOUSE AND SENATOR CASEY

SENATOR ALEXANDER

Question 1. Do you have specific suggestions about how Title IX and the Clery 

Act, including their implementing regulations and guidance, can be improved and/ 

or clarified to provide institutions of higher education the flexibility they need? 

Answer 1. First, Title IX, the Clery Act, and Federal guidance already provide sufficient flexibility for schools to adapt policies, programming, and procedures to the 

unique needs of their campus communities. For example, in its 2014 ‘‘Questions and 

Answers on Title IX and Sexual Violence’’ document, the Department of Education’s 

Office for Civil Rights (OCR) explains, ‘‘A school’s procedures and practices will vary 

in detail, specificity, and components, reflecting differences in the age of its students, school size and administrative structure, State or local legal requirements 

(e.g., mandatory reporting requirements for schools working with minors), and what 

it has learned from past experiences.’’1 Moreover, the Federal Government has compiled a library of model policies on its NotAlone.gov website for schools to adopt and 

adapt to their needs. These resources carefully avoid prescribing a one-size-fits-all 

framework for schools in the interest of preserving appropriate flexibility in institutional responses. 

Second, it is absolutely critical that Congress recognize that what students need— 

in the face of widespread institutional mistreatment and civil rights violations—is 

more support from the Federal Government in holding these institutions to a higher 

standard, rather than an approach that grants schools even more latitude than they 

have already enjoyed. Indeed, OCR, the Federal agency tasked with enforcing title 

IX, has never once levied a sanction against a college for sexual violence-related title 

IX violations, despite numerous findings of non-compliance. Because OCR believes 

it lacks the authority to levy fines against noncompliant schools, the agency relies 

upon the empty threat of revoking all Federal funding to motivate schools to follow 

the law. Congress should provide OCR with more meaningful tools to hold schools 

accountable. Authorizing OCR to levy fines would provide the agency with the increased leverage necessary to hold schools accountable—thereby supporting student 

survivors—without devastating critical student programming, aid, and research 

funding in the process. In order to support schools in implementing regulations and 

guidance, and to bolster OCR’s enforcement tools, Congress should increase appropriations to the OCR and the Department of Justice’s Office on Violence Against 

Women. Increased funding will expand the technical assistance and training that 

these Federal offices can provide to schools to implement guidelines correctly and 

to ensure that their recommendations are adhered to. 

Finally, Federal law and guidance require the bare minimum that schools must 

do in order to keep campuses safe and ensure educational equity—but the very best 

colleges and universities exceed these requirements, providing many more protections, programming, and services than those explicitly required by law. In this way, 

colleges and universities enjoy significant flexibility to develop services uniquely tailored to the needs of their student populations. All schools can and should be enVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00122 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
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2Lonsway, K. A., & Archaumbault, J. (2012). The ‘‘Justice Gap’’ for Sexual Assault Cases. Violence Against Women, 18(2), 145–68. 3Know Your IX & National Alliance to End Sexual Violence. (2015). Ask Survivors Survey 

Results. Retrieved from http://knowyourix.org/ask-survivors/. 

couraged to exceed these bare minimum legal requirements, drawing on all the creativity, talent, and research capacity that they, as educational institutions, have 

uniquely at their disposal. 

Question 2. Do you have suggestions about how institutions of higher education 

can best coordinate with law enforcement without turning the institutions into de 

facto law enforcement agencies? 

Answer 2. It is essential to recognize, as Senator Alexander does, the critical differences between school disciplinary processes and criminal justice proceedings: 

namely, schools are responsible for protecting students’ civil rights to education, 

while the criminal justice system is tasked with responding to crimes. In order to 

ensure the realization of these distinct aims, colleges should take several steps. 

First, in order to encourage survivors to come forward, schools should ensure that 

any information about specific misconduct cases is shared with law enforcement 

only with the full, informed consent of the survivor involved in the case. Schools 

should create procedures for administrators to obtain consent from survivors and 

should train these officials in trauma-informed methods. 

Second, institutions of higher education and local law enforcement should coordinate so that, if a victim chooses to contact the police, a dedicated SVU unit or 

trained, trauma-sensitive officer is available to respond, rather than a regular patrol 

officer. 

Third, schools should provide an option for a victim’s initial statement to be 

shared at initial report or at anytime after—per the victim’s consent—with local law 

enforcement, so that survivors are not asked to retell their traumatizing experience 

over and over again. 

Fourth, schools should pay for transportation to hospitals with a SANE nurse on 

staff, in order to increase survivors’ access to forensic evidence collection authorities. 

Evidence preservation helps maintain survivors’ options to press charges at a later 

date if they so choose. 

Finally, schools should ensure survivors do not incur academic or other penalties 

for classes missed while securing a civil protection order, cooperating in a criminal 

investigation, or obtaining necessary medical or legal services. 

In contrast to the above solutions, proposed congressional legislation like the Safe 

Campus Act and other similar mandatory police referral bills would imperil our 

shared goals of campus safety and educational equity. These bills would prevent colleges from investigating sexual misconduct unless the victim proceeds through a 

criminal process, creating a needless and dangerous barrier to reporting. They 

would ultimately make campuses less safe then they currently are. 

Survivors choose to report to campus officials but not to law enforcement for a 

number of reasons. The conviction rate in cases of sexual assault is extremely low,2

many States maintain antiquated and dangerous use-of-force requirements in statutory definitions of rape and sexual assault, and law enforcement officials are too 

often untrained, insensitive, and quick to place blame on survivors themselves for 

their assaults. Survivors are often hesitant to participate in a protracted, public 

process when they have little reason to believe they will see justice served. Further, 

male victims often do not report to police because their States do not recognize them 

as victims of rape at all, or do not recognize women as perpetrators; meanwhile, 

schools are required to address gender-based violence against students of any gender identity. Undocumented student survivors often do not report to police because 

they fear deportation; meanwhile, they can secure support from their schools without such a threat. Many students of color, who experience police violence at disproportionate rates, do not report to police because they fear criminalization or 

other violence from law enforcement. In sum, victims overwhelmingly say that, were 

they required to disclose their rapes to police in order to secure justice on campus, 

they would tell no one—including college officials—at all.3

Barring colleges from investigating sexual assaults, as the Safe Campus Act does, 

would create a disturbing double standard in which a school can expel a student 

for plagiarism or physical assault, but not for rape. By prescribing how a college 

can and cannot determine membership in its campus community, the Safe Campus 

Act would both infringe on universities’ autonomy and create a chilling effect on 

survivors who might otherwise come forward—thereby interfering with a school’s 

right (and responsibility) to create and maintain a safe campus. 

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4Know Your IX. (2015). Letter to University Presidents on Fair Process. Retrieved from 

http://knowyourix.org/fair-process/. 5Kilpatrick, D. G., Resnick, H. S., Ruggiero, K. J., Conoscenti, L. M., & McCauley, J. (2007). 

Drug facilitated, incapacitated, and forcible rape: A national study (NCJ 219181). Charleston, 

SC: Medical University of South Carolina, National Crime Victims Research & Treatment Center. 

Question 3. Do you have suggestions about what we can do, or not do, to make 

sure colleges establish procedures dealing with allegations of sexual assault that are 

fair and protect the due process rights of the accuser and the accused? 

Answer 3. Know Your IX approaches this issue out of concern for all student victims who have been betrayed and overlooked by their universities, and deprived of 

the chance to learn and thrive by administrative inaction in the face of assault, harassment, and abuse. We recognize that—now that schools have finally turned their 

attention to violence on campus—we are collectively tasked with answering the hard 

questions about how disciplinary procedures should work, given the particular challenges and opportunities of the campus context. We know firsthand that the success 

of these procedures will depend on their fairness to all parties involved. 

As students whose educational opportunities have been imperiled and limited by 

violence, we understand too well the harm of unjust deprivations of the right to 

learn. We have called on college and university presidents to ensure procedural 

rights for both parties, the accused and the victim.4 These rights are already permitted or required by the Department of Education’s guidance, and we affirm the 

Department’s responsibility to ensure their protection in practice. Procedural rights 

should include: 

• The right to timely and clear notice in writing of the allegations, parties’ rights 

and responsibilities (under both school policy and law), procedural updates, and the 

final determination; 

• The right to review all materials used in the investigation and hearing with 

adequate time to consider and respond; 

• The right to guidance from a trained advocate during the investigation and 

hearing process; 

• The right to submit evidence and recommend witnesses and questions for the 

other party to decisionmakers, and the right to notification and explanation if these 

recommendations are declined; 

• The right to be heard by neutral decisionmakers with professional expertise; 

• The right to a safe and sensitive investigation and hearing; 

• The right not to self-incriminate if criminal charges are possible or pending; 

• The right to an explanation in writing for the final decision; 

• The right to fair and proportionate sanctions; and 

• The right to internal administrative appeal heard by a panel. 

These rights and protections ensure our mutual goals of student safety and educational equity for all students. 

SENATOR HATCH

Question 1. We have heard from several community colleges in Utah regarding 

the ‘‘confidential advisor’’ aspect of the CASA bill. They are concerned about the 

undue burden that might arise by tying the number of advisors to the number of 

students. On average, non-residential campuses, like community colleges, have 

fewer incidents of sexual assault cases reported than residential campuses. Because 

the numbers of incidents vary based on the type of institution, should we tie the 

number of advisers for a campus based on the number of incidents reported, rather 

than student body? 

Answer 1. Know Your IX believes that tying the number of advisers to the number of incidents reported, rather than the size of the student body, is a harmful approach. Sexual assault is an extremely underreported crime: research indicates that 

only 12 percent of student survivors report their assault to law enforcement, and 

reporting to campus officials is similarly low.5 A central purpose of the confidential 

advisor role is to provide information and support to the vast majority of survivors 

who need time to decide whether or not to come forward, or who may not want to 

file a complaint at all. Tying the number of confidential advisors to the number of 

reported incidents would grossly underestimate the scope of student need. 

Moreover, the number of reported incidents does not reliably indicate the actual 

safety of a school or the need for survivor advocates. When schools implement new 

educational programs or improve their campus policies, they often see an uptick in 

the number of reports, because more students understand how to report and feel 

confident in the process. Tying the number of advisors to the number of incidents 

121 

reported would consequently result in a dangerous cycle: the schools where survivors feel the least comfortable reporting would also have the fewest number of advisors, making it even more difficult for schools to properly handle cases and further 

deterring reporting. 

To provide sufficient resources to the many students who experience violence on 

campuses, including those who do not report, the number of confidential advisors 

should remain proportional to the student population; the financial impact is an essential cost of protecting students, much like the salaries of campus safety officers. 

An alternative suggestion for mitigating the costs associated with these positions 

would be to increase the authorization levels of the Campus Grant program within 

the Violence Against Women Act, which could be used to fund additional staff support positions. Additionally, schools should partner with a local rape crisis center 

to supplement services, especially on weekends and late nights when campus resources may be closed. As rape crisis centers are already underfunded, Congress 

should act to fully fund the Family Violence Prevention and Services Act (FVPSA) 

to ensure that rape crisis centers can handle an increased number of clients; schools 

should similarly provide financial support to rape crisis centers if their students use 

their services. 

Question 2. There is a clear conflict of interest inherent in the confidential advisor 

role, since that person is employed by an institution of higher education and has 

certain reporting responsibilities under the Clery Act, as Senator Collins has pointed out. I would be interested in learning if there were other, non-affiliated resources 

available to students that may more appropriately play a confidential and/or counseling role, and if this would be a suitable use for funds generated by the fines. 

Answer 2. As survivors, Know Your IX strongly supports victims’ ability to disclose violence and access accommodations confidentially. Ensuring confidentiality is 

crucial to encourage students to come forward, seek support services, and explore 

their legal options. We also believe that the confidential advisor should be required 

to report non-identifying aggregate data under the Clery Act and that such a reporting obligation will not compromise victims’ confidentiality or discourage victims from 

approaching the advisor. In order to further protect survivors’ disclosures, Congress 

should ensure that confidential advisors cannot be subpoenaed. (Please see page 8 

of this document for continued discussion of the confidential advisor role and conflict 

of interest concerns in our response to Senator Murkowski’s Question #1.) 

Local rape crisis centers (RCCs) can play a vital role in providing support to student survivors while minimizing conflicts of interest: RCCs can offer 24/7 counseling 

services, referrals to service providers, urgent information about preserving evidence 

and making criminal reports, and long-term guidance on legal options. Forming a 

partnership or drafting a memorandum of understanding (MOU) with a local RCC 

is one way schools can ensure students have access to immediate, confidential, and 

free support after an assault. 

However, there are drawbacks to relying on rape crisis centers. RCCs are severely 

underfunded, and may be located far from particular campuses, such that students 

may be unable or uncomfortable leaving campus to obtain services. While RCCs can 

provide valuable counseling services and help survivors navigate the criminal justice 

system, they often lack the expertise to advise students on campus-specific options, 

which can vary widely between schools and require specific knowledge of title IX, 

civil standards of evidence, and internal policies and procedures of specific campus 

offices. 

Therefore, if schools choose to rely on RCCs for confidential advocate services, 

they should help sustain them financially, provide RCCs detailed information about 

their campus disciplinary procedures and process, and house the RCC advocate, at 

least part time, on campus. 

Moreover, Congress should consider using funds generated by title IX fines to expand the Legal Assistance for Victims program within the Violence Against Women 

Act by adding and funding a specific purpose area for campus sexual assault. Academic research has demonstrated that rape survivors struggle to access civil legal 

assistance; in the campus context, survivors are asked to serve as their own advocates at the same time as they are trying to access their education. For survivors 

with disabilities in particular, this state of affairs can be unsustainable. In this vein, 

the Department of Justice’s Office of Violence Against Women has solicited proposals to provide legal assistance to campus survivors, but these efforts are undermined by the heavy demand for legal services and lack of funding. Providing legal 

support to survivors would mitigate the potential conflict of interest in the role of 

the confidential advisor, decrease the ability of schools to commit abuses with impunity (consequently decreasing the need for OCR intervention), and promote survivors’ access to the accommodations they need to stay in school. 

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6For a model policy, see https://www.notalone.gov/assets/reporting-confidentiality-policy.pdf 

(‘‘Other employees may talk to a victim in confidence, and generally only report to the college 

that an incident occurred without revealing any personally identifying information. Disclosures 

to these employees will not trigger a college investigation into an incident against the victim’s 

wishes’’). 

Question 3. Some non-residential and online institutions in Utah have expressed 

a concern about the practicality of the 24 hours notice, as stated in the CASA bill. 

I am interested to know how feasible this timeline is, and if there is a more practicable timeline? 

Answer 3. Know Your IX believes the 24-hour notice timeline is reasonable, given 

the timely nature of cases of gender-based violence and the availability of digital 

notification tools. 

SENATOR MURKOWSKI

Question 1. The Campus Accountability and Safety Act (CASA) would require an 

institution to provide a confidential advisor to an assault victim. This is intended 

to provide support and resources to the victim in a way that will provide the victim 

with a sense of safety and control, which is laudatory. I am concerned, however, 

about provisions in CASA that specifically state a confidential advisor is not obligated to report crimes to the institution and that any requests for accommodation 

the Advisor makes on behalf of a student ‘‘shall not trigger an investigation by the 

institution’’. These provisions seem to conflict with the institutions’ moral and legal 

obligation under title IX to ensure that a campus is safe for all students. Keeping 

information about a crime secret and prohibiting an investigation could lead to an 

increased risk for other students as well as lead to liability for the institution should 

the perpetrator harm additional students. What changes do you recommend, to 

CASA, title IX, or both, to reconcile this conflict? 

Answer 1. Title IX already grants a number of university personnel (such as clergy) confidentiality in order to ensure that students can access vital services and support. In order to reconcile the potential conflict identified here, the confidential advisors should be explicitly included in the protected class of school employees. However, it is essential that staff and service providers in these protected roles still be 

required to report anonymized aggregate data for the purposes of the annual Clery 

report.6 Since most survivors only report to confidential resources, accurate Clery 

data helps schools and students understand the scope of the problem and whether 

survivors are accessing essential resources. 

Moreover, it is extremely difficult to investigate a report if a survivor is unwilling 

to fully participate in an investigation. Campus safety and accountability for serial 

perpetrators requires survivors to come forward, report violence, and actively participate in an investigation—which is best facilitated by an environment in which 

survivors feel in control of their report, are provided with necessary medical and 

mental health resources, and can freely choose to move forward with a disciplinary 

proceeding. A system that forces survivors into investigations against their will will 

only make survivors hesitant to reach out to confidential resources for counseling, 

for medical care, or with questions about their rights under a disciplinary process. 

Therefore, eliminating confidential reporting will make campuses less safe by preventing students from confidentially discussing their reporting options with advisors 

and seeking potentially life-saving medical care like HIV Post-exposure Prophylaxis 

(HIV PEP). Overall, OCR’s guidance in its 2014 Questions and Answers on Title IX 

and Sexual Violence document strikes the appropriate balance on this matter. 

Question 2. Experts consulted by the University of Alaska have consistently stated 

that the best way to get absolutely accurate results on a campus survey about sexual assault is to assure absolute confidentiality and to prohibit publishing the results. This promotes higher response rates and allows the institution to respond to 

gaps, concerns, and problems in campus safety issues. CASA advocates suggest that 

a homogenous survey, the results of which are published, will assist the consumer 

in making educated choices. Data suggests that few prospective students, their families, or enrolled students review campus crime statistics. Do you agree that the 

campus surveys should be used for institutional improvement of policies and practices rather than as a consumer tool? Why or why not? Do you recommend that if 

institutions are required to use a survey developed by the Department that individual institutions should be able to delete questions that are locally or culturally 

inappropriate? Should there be two surveys’ one developed by the Department of 

Education and used as a consumer tool and one developed by an institution and 

used only to improve internal practices and policies? 

123 

Answer 2. Know Your IX believes it is imperative that schools be required to publish the results of campus climate surveys, in order to boost campus transparency. 

For too long, colleges have been allowed to operate behind a curtain of impunity. 

We receive questions from prospective students and their families all the time, who 

want to learn how to recognize that a school is safe, or where they can find information about a specific school they are considering. Many people do not consult campus 

crime logs because it is widely known that sexual assault is a severely under-reported crime, and the number of reported assaults reveals little about actual student safety issues. Further, campus crime logs indicate only the number of instances 

reported to campus officials; they do not include any information about how the 

school handled those reports, whether the perpetrator was a student, whether the 

survivor was able to access resources, how it affected their campus experience, and 

other important information. 

The purpose of campus climate surveys is twofold: first, to allow administrators 

and off-campus policymakers to assess the particular experiences of students at each 

institution to inform policy change, and second, to give students, families, advocates, 

and policymakers access to information about the campus climate, which can inform 

decisions about where to attend school and enable stakeholders to hold school administrations accountable. In order for campus climate surveys to be effective in increasing transparency and giving community members the necessary information to 

hold schools accountable, it is essential that the results of climate surveys be published. 

Know Your IX recommends either a department-designed survey that allows 

schools to add additional questions, or a baseline set of required questions and topics areas that schools can customize for various populations. The survey models 

should be designed with substantial input from expert research, student activists 

and advocates, and representatives from schools and service providers. This will ensure both the flexibility necessary to explore specific local concerns and the consistency necessary to produce useful results. The climate surveys should help students, 

families, policymakers, and service providers compare and contrast individual 

schools and to understand the scope and dynamics of sexual assault issues on a national level. 

From the research perspective, we need to ensure there is consistency between the 

questions asked on each campus to make these kinds of comparisons and generalizations possible. The results should be released by each school, with careful precautions taken not to reveal any student’s identifying information. Schools should 

be required to advertise the survey aggressively and meet a certain level of student 

participation in order to ensure sufficient information is collected. 

In addition to campus climate surveys, the mandated release of aggregate, 

anonymized data regarding how reports of gender-based violence and harassment 

are handled on campus would greatly improve transparency. Moreover, while 

schools are now required to implement prevention programs and adopt more comprehensive response policies, there are few, if any, legislative mandates requiring 

schools to evaluate or release information about the effectiveness of their prevention 

programs or how they actually handle reports of sexual violence in practice. Without 

clear and enforceable requirements for transparency and accountability, these 

changes are doomed to be little more than cosmetic. To protect all students, we need 

legislation that includes clear, comprehensive, and public requirements for more 

transparent campus processes. 

The data should include several pieces: 

1. A requirement that schools evaluate the effectiveness of their prevention programs and release that information to the public; 

2. A requirement that schools conduct annual campus climate surveys and publish 

the cumulative data on the effectiveness of their methods in both reducing 

incidences and increasing reporting; and 

3. A requirement that schools annually release aggregate, anonymized data on the 

adjudication process for reports of gender-based violence. This data should include 

the number of reports filed, the number of investigations opened, the policy violation(s) alleged, the determination made, the sanctions imposed, any changes made 

to the determinations or sanctions as a result of an appeal, and the length of each 

case. This will help ensure that students, parents, and policymakers understand 

what the adjudication process in a given school actually looks like in practice and 

evaluate whether the school officials’ actions are consistent with their own written 

policies, existing laws and guidance from governmental bodies, and the ethical 

standards of individual stakeholders like parents of students or faculty members. 

Mandating increased transparency is a feasible project: In July 2015, New York 

State passed a law that will require every college and university in the State to reVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00127 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
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7 NYA08244/2015–2016/General Assembly. (2015, June 17). LegiScan. Retrieved August 30, 

2015, from https://legiscan.com/NY/bill/A08244/2015. 

lease to the State Education Department data about reports of domestic violence, 

dating violence, stalking, or sexual assault.7 This will include the total number of 

reports received, open and closed investigations, outcomes of such investigations, 

and penalties imposed on perpetrators. 

Without robust and carefully constructed requirements for transparency and accountability, schools will be free to continue violating the law and their own policies 

with impunity, harming both survivors of violence and accused students. It is essential that policymakers advance legislative solutions requiring increased transparency from schools immediately; the safety of all students is at stake. 

Question 3. CASA requires that institutions develop Memorandums of Understanding with each law enforcement agency that has jurisdiction. Many institutions, 

including public and private institutions, have developed significant e-learning opportunities for their students who may never attend classes on campus. This CASA 

requirement is viewed by those institutions, therefore, as fatally vague and unworkable. Do you agree, if so, do you have suggestions for addressing this concern? 

Answer 3. Know Your IX shares this concern. To resolve it, we suggest that the 

requirement be modified to have schools develop MOUs with the law enforcement 

agencies that are reasonably likely to have jurisdiction over cases based on where 

large numbers of students live. We do not believe schools should be held to a standard where they must negotiate hundreds of MOUs to cover e-learning opportunities. 

Question 4. Several witnesses spoke to the complexity of compliance with Clery 

and Title IX. Adoption of the CASA provisions would add additional requirements 

and complexity. Looking at the issue of campus safety as a whole, would you recommend that the committee completely re-write institutional responsibilities across 

Clery, Title IX, VAWA, and CASA in order to reduce complexity, increase crime reporting and transparency, and provide for the rights of all students to a safe campus 

on which to gain an education? If so, what specific suggestions do you have for the 

committee? 

Answer 4. Know Your IX strongly discourages the committee from completely rewriting institutional responsibilities under the Clery Act, Title IX, the Violence 

Against Women Act (VAWA), and CASA. As Campus SaVE was only recently passed 

in 2013, the Department of Education has just issued new regulations around the 

legislation. Completely revising existing law would lead to widespread confusion and 

further delays for survivors, as schools have already taken significant steps to implement procedures to comply with current regulations. On the whole, we believe 

that current laws and regulations need stronger Federal enforcement, not revision. 

Congress can provide more support to students by: 

• Increasing funding for the Department of Education’s Office for Civil Rights 

(OCR). OCR, which is the Federal agency primarily responsible for ensuring that 

schools are compliant with title IX and other civil rights laws, is grossly underfunded and understaffed. Increased funding would allow OCR to provide additional 

technical assistance to schools on how to enter into compliance with the Clery Act, 

Title IX, and VAWA; better disseminate information to students about their rights 

and how to access them; and improve campus safety by ensuring timely investigations, as well as continued monitoring, guidance, and support to schools in the 

months and years ahead. 

• Empowering OCR to issue fines for civil rights violations. Providing OCR with 

the explicit authority to levy fines would give the agency the increased leverage necessary to hold schools accountable, without devastating programming and aid for 

students in the process. Crucially, this authority must be available for the Department to enforce all relevant civil rights laws to ensure that students are free from 

all forms of discrimination, including those based on race and disability as well as 

sex. 

• Increasing campus transparency. There are strong perverse incentives for 

schools to sweep violence under the rug, as discussed above. To counteract the potential negative reputational consequences that schools that encourage survivors to 

report may face, Congress should mandate that schools conduct campus climate surveys and publish their results publicly. This step would provide valuable information to students and their families, and would increase incentives for schools to appropriately address violence. Schools should also be required to publish aggregate, 

non-identifying statistics on the sanctions assigned in disciplinary cases and further 

information (listed in detail on page 18), which would provide greater insight into 

whether or not disciplinary proceedings are being handled promptly and equitably. 

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8Know Your IX. (2015). Letter to University Presidents on Fair Process. Retrieved from 

http://knowyourix.org/fair-process/. 

This step will help ensure that students, parents, and policymakers can evaluate 

and compare how each school responds to complaints of gender-based violence in 

practice, not just on paper. 

Question 5. I have received concerns from students who have been accused of sexual assault on campus and their parents. They tell me their rights to a fair hearing 

were not respected. Complaints included that as the accused, they were not informed of their rights under the institution’s hearing policies, that the victim was 

provided more robust counsel by the university, and that they were denied the right 

to question their accuser and witnesses. CASA requires institutions to provide certain information about process to both the victim and the accused but leaves to the 

institution to follow their own policies for conducting investigations and hearings. 

Can this section be improved? Should the committee mandate that institutions follow basic policies and procedures? If so, please provide specific suggestions. 

Answer 5. Survivors and accused students alike report feeling that they did not 

receive a fair hearing. Know Your IX recognizes that the success of campus disciplinary procedures depends on their fairness to all parties involved. 

Know Your IX has called on college and university presidents to ensure procedural rights for both parties, the accused and the victim.8 These rights are already 

permitted or required by existing law and guidance, and we affirm OCR’s responsibility to ensure their protection in practice. Procedural rights should include: 

• The right to timely and clear notice in writing of the allegations, parties’ rights 

and responsibilities (under both school policy and law), procedural updates, and the 

final determination; 

• The right to review all materials used in the investigation and hearing with 

adequate time to consider and respond; 

• The right to guidance from a trained advocate during the investigation and 

hearing process; 

• The right to submit evidence and recommend witnesses and questions for the 

other party to decisionmakers, and the right to notification and explanation if these 

recommendations are declined; 

• The right to be heard by neutral decisionmakers with professional expertise; 

• The right to a safe and sensitive investigation and hearing; 

• The right not to self-incriminate if criminal charges are possible or pending; 

• The right to an explanation in writing for the final decision; 

• The right to fair and proportionate sanctions; and 

• The right to internal administrative appeal heard by a panel. 

SENATOR WHITEHOUSE

Question 1. In the context of campus sexual assault, campus investigations and 

law enforcement investigations can sometimes work at cross purposes. How can we 

disentangle the campus and law enforcement investigations so that one does not impede the other? 

Answer 1. It is important to remember that the title IX process and the criminal 

process seek to address different aspects of the impact of violence: the criminal process aims to respond to rape as a crime, while the title IX process aims to address 

rape as a civil rights violation and a potential barrier to education. Accordingly, administrators and police have different roles and responsibilities. Training for campus administrators, campus police, local law enforcement, and advocates on the distinctions between these two processes will ensure a better experience for everyone, 

especially the victim. 

Question 2. In the context of domestic violence, law enforcement officers have become better qualified to address the needs of victims by drawing on the expertise 

of advocacy groups and experts. How can we best support the law enforcement community so that officers are similarly well-trained to assist survivors of campus sexual assault? 

Answer 2. Officers should be trained in trauma-informed investigatory methods, 

should be familiar with the campus offices that assist survivors in accessing the accommodations they need to stay in school, and should undergo implicit bias training 

to ensure they do not discriminate against survivors on the basis of gender identity, 

race/ethnicity, disability, and sexual orientation. 

That said, the United States has poured millions of dollars into law enforcement 

and prosecutor training over the past two decades, and the system is still failing 

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9Police Executive Research Forum. (2012). Improving the Police Response to Sexual Assault. 

Retrieved from http://www.policeforum.org/assets/docs/CriticallIssueslSeries/improving%20 

the%20police%20response%20to%20 sexual%20assault%202012.pdf. 10 End the Backlog. (n.d.). Why the Backlog Exists. Retrieved from http://www.endthebacklog 

.org/backlog/whylbacklog-exists. 11 However, these confidential advocates should still be required to disclose non-identifying information as part of a college’s annual Clery reporting. 12Know Your IX, & National Alliance to End Sexual Violence. (2015). Ask Survivors Survey 

Results. Retrieved from http://knowyourix.org/ask-survivors/. 

survivors. Increased training and support for law enforcement officers is not sufficient to eliminate bias in policing. Many victims continue to fear re-victimization or 

misconduct on the part of law enforcement, as officers routinely refuse to investigate 

reported cases9 and neglect to pass rape kits on to crime laboratories for testing.10

There are currently few mechanisms in place to address these concerns. Congress 

should authorize increased appropriations to the Department of Justice for the purpose of investigating local law enforcement practices that may violate civil rights 

statutes like title IX. Individual departments should regularly provide data on their 

handling of rape and sexual assault cases to the Department of Justice (currently, 

compliance is optional) and establish clear procedures to sanction officers who discriminate against survivors. 

Question 3. Many survivors fear that they may lose control over campus sexual 

assault proceedings if law enforcement gets involved early. What can we do to inform students about the course of a law enforcement investigation, so they can make 

an informed choice about how to proceed? 

Answer 3. Campuses must make clear that no information about specific cases 

will be shared with law enforcement without the full, informed consent of the survivor who comes forward. Without such a policy clearly in place, many survivors 

simply will not report at all. 

All students who report, whether formally or to service providers like counselors 

and clergy, should be referred to a confidential advisor either employed by the 

school or connected via an MOU with a local rape crisis center or community organization that specializes in supporting survivors of sexual and domestic violence. Survivor advocates should be confidential resources,11 responsible for informing survivors of their rights and obligations within both the campus disciplinary and the 

criminal justice system, and obligated not to unduly pressure survivors to choose a 

particular reporting option. Students should be informed, in writing, that they have 

the opportunity to report to law enforcement at any time and schools should create 

clear, uniform procedures by which a survivor can indicate that they consent to 

sharing information with law enforcement. 

If a survivor wishes to move forward with a law enforcement investigation, campus administrators or survivor advocates should offer to arrange a meeting with a 

dedicated SVU unit or an officer who is otherwise specifically trained to respond to 

sexual and domestic violence, rather than a patrol officer without specialized experience in gender-based violence. This initial statement could be shared—only per the 

victim’s consent—with local law enforcement, so that survivors are not asked to retell their traumatizing experience over and over again. 

Question 4. Absent the concern of loss of control (perceived or otherwise) by the 

survivor, are there reasons that experienced, trauma-informed, sensitive, effective 

law enforcement should not be involved at early stages of an investigation? 

Answer 4. Respecting victims’ fear of loss of control over an investigative process 

is just one reason of many to preclude law enforcement involvement if a victim does 

not consent to it. Survivors tell Know Your IX again and again that, were their campus to turn reports over to law enforcement without their consent, they would have 

reported to no one at all.12 Many queer and transgender survivors, survivors of 

color, and survivors from other heavily policed communities say they would be particularly unlikely to report, due to fear of additional interaction with and violence 

from the criminal justice system. Similarly, undocumented student survivors report 

fearing initiation of deportation proceedings as a result of coming forward. For survivors who were assaulted by a police officer or a family member of a police officer, 

turning to law enforcement simply is not a safe option. 

If survivors do not report to campus officials due to fear of law enforcement involvement, they will lose many of the title IX-mandated services and accommodations to which they are entitled, such as free counseling services, academic tutoring, 

housing changes, no-penalty course withdrawals, and access to disciplinary proceedings. Without these supports, many survivors will see their grades plummet, 

lose scholarships, or be forced to drop out of school altogether. To put it simply: SurVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00130 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
127 

13Many of these points will require multiple questions. 

vivors need title IX’s protections—and to feel safe accessing them—in order to stay 

in school, and this requires that campus disciplinary processes remain separate and 

independent from the law enforcement system. 

SENATOR CASEY

Question 1. Like many of the witnesses, you have discussed your desire to see 

campus climate surveys conducted so that we can gain a better picture of what’s 

happening on individual college campuses and nationally. What do you think are 

the most important questions to ask in a campus climate survey? 

Answer 1. Campus climate surveys are an essential tool for evaluating the prevalence and particular dynamics of gender-based violence on college campuses and assessing an individual school’s specific needs and challenges. An effective, comprehensive climate survey will include questions that do the following:13

• Assess whether the participant understands the definitions of behaviors considered gender-based violence and related terms (sexual assault, rape, consent, harassment, coercion, stalking, dating violence, domestic violence, etc.); • Assess whether the participant knows the school’s policies on gender-based violence and harassment; • Assess whether the participant knows how and where to report incidents of gender-based violence on campus; • Evaluate the participant’s perception of the reporting and adjudication process 

(i.e., ‘‘Do you have confidence that your school handles reports of sexual assault fairly? Swiftly’’); • Determine whether the participant received effective prevention education, and 

otherwise evaluate how and where students are receiving information about sexual 

assault; • Assess the participant’s perception of how often sexual assault, dating violence, 

stalking, and other related behaviors occur on campus; 

• Assess whether the participant has suffered or committed any actions that violate sexual misconduct policies. (It is critical to ask about the behaviors through literal description rather than by labeling them ‘‘rape’’ or ‘‘abuse’’, as research indicates that perpetrators of violence frequently fail to label their own actions as ‘‘rape’’ 

or ‘‘abuse’’ even when their actions fall within the definitions. For example, a question might ask, ‘‘Have you ever touched someone sexually while they were asleep 

or passed out?’’ rather than ‘‘Have you ever sexually assaulted someone?’’); 

• Assess whether the participant reported violence they experienced to the school; 

• If YES, evaluate their experience with the disciplinary process; 

• If NO, determine why not; 

• Determine whether perpetrators are peers, faculty members, staff members, 

strangers, or unknown to the victim; 

• Evaluate the participant’s understanding of consent and incapacitation due to 

drugs and alcohol; 

• Assess whether the participant knows where and how to access resources for 

survivors of gender-based violence, such as a campus rape crisis center, medical provider, or counselor; 

• Assess whether the participant knows where and how to access accommodations 

and interim measures following an experience of gender-based violence; 

• Assess whether the participant knows which of the available resources can be 

accessed confidentially and without filing a report; 

• Evaluate the participant’s perception of and trust in available crisis resources; 

• Assess whether the participant has used available campus resources; and 

• Assess the participants’ involvement in various campus community organizations including athletics and Greek life. 

It is essential that schools be required to publish the results of campus climate 

surveys. Allowing schools to keep such information private deprives policymakers 

and service providers of vital information necessary to address the issue, and students and their families of information they need to make key decisions about student safety. 

In order to further increase transparency, schools should be required to release 

aggregate, anonymized data on how reports of gender-based violence and harassment are handled on campus. While schools are now required to implement prevention programs and adopt more comprehensive response policies, there are few, if 

any, legislative mandates requiring schools to evaluate or release information about 

the effectiveness of their prevention programs or how they actually handle reports 

128 

of sexual violence in practice. Without clear and enforceable requirements for transparency and accountability, these changes are doomed to be little more than cosmetic. 

To protect all students, Congress should issue clear, comprehensive, and public requirements for more transparent campus processes, including: 

1. A requirement that schools evaluate the effectiveness of their prevention programs and release that information to the public; 

2. A requirement that schools conduct annual campus climate surveys and publish 

the cumulative data on the effectiveness of their methods in both reducing 

incidences and increasing reporting; 

3. A requirement that schools annually release aggregate, anonymized data on the 

adjudication process for reports of gender-based violence. This data should include 

the number of reports filed, the number of investigations opened, the policy violation(s) alleged, the determination made, the sanctions imposed, any changes made 

to the determinations or sanctions as a result of an appeal, and the length of each 

case. This will help ensure that students, parents, and policymakers understand 

what the adjudication process in a given school actually looks like in practice and 

evaluate whether the school officials’ actions are consistent with their own written 

policies, existing laws and guidance from governmental bodies, and the ethical 

standards of individual stakeholders like parents of students or faculty members. 

Mandating increased transparency is entirely feasible: In July 2015, New York 

State passed a law that requires every college and university in the State to release 

to the State Education Department data about reports of domestic violence, dating 

violence, stalking, or sexual assault. This will include the total number of reports 

received, open and closed investigations, outcomes of such investigations, and penalties imposed on perpetrators. 

Without robust and carefully constructed requirements for transparency and accountability, schools will be free to continue violating the law and their own policies 

with impunity, harming both survivors of violence and accused students. It is essential that policymakers advance legislative solutions requiring increased transparency from schools immediately; the safety of all students is at stake. 

RESPONSE BY DOLORES A. STAFFORD TO QUESTIONS OF SENATOR ALEXANDER, 

SENATOR HATCH, SENATOR MURKOWSKI, SENATOR WHITEHOUSE, AND SENATOR

CASEY

Thank you for the opportunity to provide additional information and clarify my 

written and oral testimony for the committee’s record. I greatly appreciate the opportunity to continue my engagement with the HELP Committee and respond to 

your thoughtful and timely questions. 

SENATOR ALEXANDER

Question 1. Do you have specific suggestions about how Title IX and the Clery 

Act, including their implementing regulations and guidance, can be improved and/ 

or clarified to provide institutions of higher education the flexibility they need? 

Are there areas where these laws, regulations, or guidance conflict? 

Are there areas where they are duplicative? 

Answer 1. As I mentioned in my testimony, title IX’s indelible influence can be 

seen throughout the VAWA Amendments. Many of the new requirements under 

Clery have been adapted, often wholesale, from pre-existing title IX sub-regulatory 

guidance and elevated to VAWA’s implementing regulations such that they carry 

the force of law under the Clery Act. This is perhaps most apparent when considering the new procedures institutions must implement as it relates to managing allegations of Domestic Violence, Dating Violence, Sexual Assault and Stalking. For 

example, personnel involved in the investigation or resolution of sexual assault/sexual violence complaints are expected to have sufficient training to perform these 

functions, and decisionmakers may not have a conflict of interest that would undermine their impartiality. Both laws compel institutions to adopt equitable resolution 

procedures that, among other things, establish reasonably prompt timeframes for 

the major steps of the procedures and that provide each party with an equal opportunity to: 

• participate in the proceedings; 

• have timely access to information that will be used during the proceedings; 

• have the same opportunities to be accompanied by an advisor; 

• receive contemporaneous written notification of the outcome of the proceedings; 

• have the same opportunity to appeal the results of the proceedings, if any appeal option exists; and 

129 

1The terms victim and survivor are used interchangeably throughout this document, though 

I recognize not all victims identify as survivors. 

• be apprised of the final results of any appeal. 

These examples are not exhaustive but rather a sampling of how inextricably 

linked Title IX and the Clery Act have become with the passage of the VAWA 

Amendments. 

That said, I would strongly urge the HELP Committee to initiate a task force, 

made up of higher education industry and association leaders, to examine areas of 

duplication and actual or perceived conflict between these laws. A comprehensive, 

top-to-bottom review of each law, their regulations, and associated sub-regulatory 

guidance would yield important insights about areas in which the laws could be improved, clarified or streamlined. Including a variety of experts from practitioner associations such as the National Association of Clery Compliance Officers and Professionals (NACCOP), the Association for Student Conduct Administration (ASCA) and 

the Association of Title IX Administrators (ATIXA) would be crucial to ensuring that 

the review of these laws benefits from boots-on-the ground practitioners and industry experts to ensure exhaustive treatment of these issues. From there, Congress 

can consider the task force’s analysis and related recommendations for enhancing 

the law. NACCOP would welcome the opportunity to participate in and/or lead such 

a task force. 

Question 2. Do you have suggestions about how institutions of higher education 

can best coordinate with law enforcement without turning the institutions into de 

facto law enforcement agencies? 

Answer 2. How, when or if a campus law enforcement unit notifies a local municipal agency is impacted by a variety of factors, including the lawful source of authority from which campus police/public safety’s personnel derive their police or public 

safety powers (typically, this is governed by State statute or regulation). However, 

most institutions, whether they have sworn police officers or non-sworn public safety 

officers, are already coordinating with local law enforcement agencies when serious 

crimes are reported to campus police/public safety agencies. Typically this coordination is triggered by a victim1 expressing a desire to press criminal charges and the 

institution assisting the victim in pursuing that avenue. 

Most campuses already have processes and procedures in place for coordinating 

with local law enforcement, whether memorialized or not in an official memorandum 

of understanding. I would suggest that institutions be given discretion to determine 

how best to coordinate with local law enforcement agencies based on applicable 

State-governed enforcement and jurisdiction, arrest and enforcement authority, and 

relationships with the local law enforcement agency. I would not recommend that 

institutions be compelled to contact local law enforcement as a matter of policy or 

law, especially in instances for which contact with the local law enforcement agency 

would be against the wishes of the victim. I have personally assisted hundreds of 

victims of sexual assault in my role as founder and supervisor of the Sexual Assault 

Response Team at the George Washington University and I can tell you first hand 

that forcing a victim to talk to or report an incident to law enforcement (campus 

or local) against their wishes only serves to re-victimize them. 

Question 3. Do you have suggestions about what we can do, or not do, to make 

sure colleges establish procedures dealing with allegations of sexual assault that are 

fair and protect the due process rights of the accuser and the accused? 

Answer 3. Campuses are already required to provide prompt, fair and impartial 

proceedings per the VAWA Amendments to the Clery Act. However, the foundation 

for any of the committee’s future efforts should be to focus on equity. Namely, the 

procedural protections should be equitable for all parties, and should include: 

• An accessible and easily understandable policy on sexual violence. • An accessible summary of the rights/procedural protections for both the accuser 

and accused. • The opportunity for the accuser, the accused, and their advisors to ask questions about the investigation & resolution processes during an initial meeting with 

any official involved in the investigation or resolution process prior to the accuser 

or accused sharing any information about the incident(s) in question. • Interviews, hearings, and review of appeals should be conducted by persons 

trained to facilitate the most effective and fair investigation and resolution procedures, which includes asking questions in ways that solicit information and participation by the complainant and the respondent. This includes best practices in student conduct, cultural differences and how they affect communication, and the specific experiences relevant to both complainants and respondents that may affect how 

130 

2The Campus Safety Helpdesk provides compliance guidance to institutions of higher education subject to the Clery Act and is operated on behalf of the Department of Education by 

a Federal contractor. 

they present themselves or information in an investigation or hearing. For complainants, this includes learning how trauma impacts the physical and 

neurobiological responses of victims of acts of sexual violence. For respondents, this 

includes due process/procedural protections, the implications of participating in a 

student conduct process if criminal charges are also pending, and an understanding 

of defense mechanisms and how they may affect communication. • A description of any restrictions regarding the extent to which an advisor may 

participate in the proceedings, and a statement that the restrictions apply equally 

to both parties. Restrictions should include a limitation prohibiting advisors from 

sharing information, or to ask or answer questions on behalf of a student. • Use of the preponderance of the evidence standard. • Maintain that both parties must be offered an opportunity to explain what occurred from their perspective, to review all information that the adjudicator(s) will 

use in making decisions about findings of responsibility and/or sanctions, and to respond to that information. • Provide an opportunity for both parties to appeal based on specified criteria 

such as new information not available at the time of the hearing or procedural error 

which would significantly alter the outcome. 

The aforementioned information, if required to be disclosed by the institution (in 

the Annual Security Report, institutional policies, or both) would help to ensure that 

campuses send a strong message to all parties that they will preserve rights and 

protections for both the accuser and the accused in the disciplinary process. 

With respect to what the committee should not do in this area, I would strongly 

discourage the committee from attempting to legislate the forum of resolution used 

by campuses to address sexual violence complaints. Campuses employ a variety of 

resolution options, such as hearing boards, civil rights investigations, or single-person adjudicators, and these forms of resolution are informed by the institution’s resources, student culture, and the volume and nature of cases. I would also discourage the committee from attempting to direct details related to how the disciplinary 

process is carried out, such as establishing additional timelines or methods of communicating with the parties. Finally, I would continue the practice of articulating 

topics to be addressed in training without directing how that training is to be carried out or for what duration. 

I would also encourage the committee to consider requiring institutions/systems 

to conduct an external review of their sexual violence resolution procedures and 

publicize the findings to their campus communities, along with any plans for improvement (perhaps the first review occurs by Fall 2017, then every 3 years thereafter). Such a review would be consistent with the existing requirement for institutions to conduct a biennial review of their drug and alcohol abuse prevention programs under the Drug-Free Schools and Communities Act of 1989. Institutions 

could also be required to provide a means to allow any participant in the sexual violence resolution process to provide feedback to the institution about their experience 

in the process to the office responsible for the process (i.e., continual quality improvement). This information could be considered in the institution’s external review 

of its sexual violence resolution procedures. Both of these measures serve to ensure 

that the institution is considering both best practices beyond the institution as well 

as the student experience at the institution itself. 

Question 4. Are there requirements in the Clery Act that you believe could be 

clarified or eliminated so institutions are not spending unnecessary time on paperwork? 

Answer 4. The most notable Clery Act requirement that could be eliminated is the 

requirement to collect and disclose crime statistics for foreign short-term use locations of U.S. institutions. As described in my testimony, this interpretation of crime 

reporting requirements by the Campus Safety Helpdesk2 has left institutions with 

little choice but to develop elaborate systems to track all locations where the institution sends students as part of education abroad activities and write each local law 

enforcement agency at those locations to request crime statistics. In some instances, 

this results in campuses sending tens or hundreds of letters to foreign law enforcement officials which frequently are ignored and divert important human and fiscal 

resources that could otherwise be invested in promoting campus safety. The crime 

definitions used by the Clery Act often do not apply to laws of the foreign countries, 

thus if information is received in response to a request, it is often not clear that 

the incident being reported meets the U.S. definition of the crime. Furthermore, 

131 

3 I am not wedded to 14 days as the bright line standard, but I do believe the number of days 

should be significant enough that it would not be considered transient use by a reasonable person. 

even when campuses do receive responses from law enforcement agencies, these statistics are combined into a single statistic category for the noncampus geography, 

which provides the consumer with virtually no useful information about where in 

the world the crime occurred. It is hard to imagine this was the intent of Congress 

when the law and its amendments were passed. 

For those noncampus locations in the United States, Congress could greatly clarify the requirement to collect and disclose crime statistics for these locations by developing a bright-line standard that would assist institutions in determining whether a particular location is ‘‘frequently used by students’’ for the purposes of adhering 

to the Noncampus definition. We’ve seen correspondence from the Campus Safety 

help desk that says ‘‘frequently used by students, i.e. more than one night’’ as an 

example. I would recommend that a suitable standard be adopted (such as 14 or 

more days)3 of usage within a calendar year would be of sufficient duration to indicate ‘‘frequent’’ use by students. Currently, the usage of a location more than once 

is deemed to be ‘‘repeated use’’ and countable (ex., a hotel used one night by the 

softball team for a game and then used the following month by the baseball team 

for one night would currently fall under the repeated use standard). There is currently no bright line standard regarding repeated use when the same location is 

used more than once (ex., if a location is used once a year versus if a location that 

is used every other year). It is not clear when the repetition begins and ends. If a 

suitable standard as identified above were used to clarify ‘‘frequently used by students,’’ the repeated use standard could be eliminated, thus dramatically simplifying 

this issue. 

For example, it would not matter if the location was used 14 days in a row or 

14 days throughout the year: once a location meets this threshold, it would be countable. This type of solution would provide clarity around an issue that is incredibly 

challenging, causes a great deal of administrative work and provides information 

that is not useful, as it is placed in a general noncampus category in the statistics 

and the consumer does not know where the crime occurred. 

Question 5. Does the Department of Education ever impose new requirements on 

institutions that are not in regulations? If so, please provide examples. 

Answer 5. Yes, usually in the form of sub-regulatory guidance delivered in the 

form of a Dear Colleague Letter or, in the case of the Clery Act, via the Handbook 

for Campus Safety and Security Reporting. For example, the title IX regulations (34 

C.F.R. §106.1 et seq.) do not identify a standard of evidence to which campuses must 

adhere when determining whether a respondent has engaged in prohibited sexual 

harassment. However, the Dear Colleague Letter on Sexual Violence (April 4, 2011) 

indicated that ‘‘in order for a school’s grievance procedures to be consistent with 

title IX standards, the school must use a preponderance of the evidence standard’’ 

(p. 11). 

Another example described in my testimony relates to the requirement to publish 

all crimes occurring in a single incident in the Daily Crime Log. The Department 

indicated in the 2011 Handbook for Campus Safety and Security Reporting that the 

Daily Crime Log requires all crimes occurring in a single incident to be disclosed 

on the Daily Crime Log. This practice runs contrary to how crime statistics are compiled and reported annually for which the ‘‘Hierarchy Rule’’ commands that only the 

most serious crime reported in the incident be disclosed when multiple crimes are 

reported (with some notable exceptions, such as Arsons and Hate Crimes). 

The original Daily Crime Log requirement was the result of the 1998 Amendment 

to the Clery Act and was addressed in the Department’s initial Handbook for Campus Crime Reporting, published in 2005. However, it was not until 2011 in the revised Handbook that the Department stated—for the first time—that all crimes occurring in a single incident are to be recorded in the log and therefore the Hierarchy 

Rule does not apply to the log. By that point, many campuses had made significant 

financial investments in electronic records management systems that were designed 

to implement the Hierarchy Rule when producing the Daily Crime Log, unknowingly in contravention to the Department’s previously unspoken expectations. Neither the statute, the implementing regulations nor prior sub-regulatory guidance 

had ever alerted campuses to this distinction, but the Department took it upon itself 

to create this rule when it published the revised Handbook 13 years after the requirement went into effect. 

132 

This recommendation is also echoed in the report issued by the Task Force on 

Government Regulation in Higher Education, initiated by the Senate HELP Committee, which noted that, 

‘‘The definition of ‘noncampus property’ should be clarified and narrowed to 

focus more directly on property that is a core part of a college or university. 

At a minimum, it should exclude all foreign locations as well as short-term 

stays in domestic hotels’’ (p. 38). 

It is my observation that the Department of Education sometimes imposes what 

could be considered new requirements not enumerated in the regulations when regulations are vague. Specificity in the law and in the regulations themselves can help 

keep regulatory compliance in check with Congress’s intent. 

Question 6. Do you believe there are ways the Department of Education can improve the negotiated rulemaking process? 

Answer 6. I have participated in the negotiated rulemaking process as both a primary negotiator (1999 and 2009) and, most recently, voted in by the committee as 

an advisor (2014). Overall I have found the process to be effective. However, one 

limitation of the current approach is that the Department of Education solicits categories of potential negotiators which do not account for all relevant categories of 

stakeholders. For example, while the Department’s call for negotiators mentioned 

organizations or groups representing lesbian, gay, bisexual, and transgendered students; male students; female students; minority students; and students with disabilities, as well as victims’ and human rights organizations, title IX advocacy groups, 

and anti-defamation groups, the Department inadvertently (we assume) omitted 

professional associations whose members are primarily responsible for complying 

with existing and proposed regulations. This oversight may have been because associations specifically representing Clery Act and title IX practitioners didn’t exist 

prior to the 2009 negotiated rulemaking process. One such group is the National Association of Clery Compliance Officers and Professionals (NACCOP), which represents Clery compliance practitioners and has considerable expertise in the law. In 

the future, I would encourage the Department to make specific mention in the call 

for nominations of organizations whose members are involved in day-to-day compliance efforts beyond those constituencies already mentioned in the call for negotiators. 

Question 7. In your experience as a former campus Chief of Police, is campus law 

enforcement going to need different support from local law enforcement when it 

comes to investigating sexual assault than an institution that does not have sworn 

police officers on campus? 

Do you think the Campus Accountability and Safety Act allows for these differences as drafted or are their changes to the legislation we should consider? 

Answer 7. As I mentioned in my answer to Question 2, campus agencies will need 

different support depending upon their enforcement and arrest authority and the 

scope of their jurisdiction. CASA does not take into consideration differences in 

these factors as they exist among campus police/public safety agencies. CASA, as 

currently written, would require campuses to enter into a memorandum of understanding (MOU) with ‘‘each law enforcement agency that has jurisdiction to report 

as a first responder to a campus of the institution.’’ This provision would appear 

to force a campus that has a sworn law enforcement agency with primary jurisdiction on the campus to enter into an MOU with another law enforcement agency that 

does not have primary jurisdiction. If CASA cannot force municipal and State agencies to come to the table with campuses to actually develop mutually beneficial 

MOUs, then CASA should strongly recommend (but not require) campuses to pursue 

an MOU if they have not done so already with the local law enforcement agency. 

Furthermore, the proposed process for obtaining a waiver is onerous and unnecessary. Campuses should not have to prove they can’t get an MOU with the local 

agency, and to pursue one after a local agency expresses their disinterest in the 

name of complying with a Federal law applicable only to the campus is likely to 

harm, rather than enhance, relationships with the local agency. Furthermore, the 

waiver is burdensome to both the Department of Education and the Department of 

Justice, each of whom will have to develop policies and protocols for receiving and 

reviewing requests and/or how, if at all, the Department of Justice will followup 

with local law enforcement agencies who refuse to enter into any agreements (CASA 

is silent as to what authority DOJ has to provide a remedy for a municipal agency’s 

refusal to enter into such an agreement). The additional funding and time that 

would be required by those agencies to manage the process of reviewing and maintaining thousands of waivers could no doubt, be better spent assisting campuses in 

coming into compliance. 

133 

If the committee decides to impose a mandatory MOU, I strongly encourage the 

committee to provide an exemption for sworn campus agencies so they do not have 

to enter into an MOU with another sworn agency when the campus agency already 

has primary jurisdiction to respond to crimes on the campus. 

Question 8. You and your colleagues are the people on the ground that will have 

to implement parts of the Campus Accountability and Safety Act if it’s made law. 

Do you have any suggested changes to the bill to make implementation as practical 

as possible? 

Answer 8. In addition to recommendations expressed in other answers regarding 

confidential advisors and the MOU with local agencies, we would suggest that the 

Department of Education’s requirement (per CASA) to provide via a website all 

pending investigations, enforcement actions, letters of finding, final resolutions and 

voluntary resolution agreements for all complaints and compliance reviews under 

title IX be extended to include all pending and completed reviews conducted by the 

U.S. Department of Education, Federal Student Aid office (including media reviews, 

general program reviews pertaining to Federal student aid programs, campus security focused reviews, FBI UCR program reviews conducted by the FBI Criminal Justice Information Services division, etc.). This sort of transparency is just as important for the Clery Act as it is title IX, but CASA fails to extend these transparency 

and disclosure requirements to both laws. 

SENATOR HATCH

Question 1. We have heard from several community colleges in Utah regarding 

the ‘‘confidential advisor’’ aspect of the CASA bill. They are concerned about the 

undue burden that might arise by tying the number of advisors to the number of 

students. On average, non-residential campuses, like community colleges, have 

fewer incidents of sexual assault cases reported than residential campuses. Because 

the numbers of incidents vary based on the type of institution, should we tie the 

number of advisers for a campus based on the number of incidents reported, rather 

than student body? 

Answer 1. The answer to this important question is best addressed by the negotiated rulemaking process that the legislation would require. This would give all 

stakeholders an opportunity to provide input into this requirement and discuss the 

implications of various approaches. 

As you know, the current CASA legislation requires institutions to designate one 

or more confidential advisors. The legislation further indicates that the appropriate 

number of advisors for an institution will be determined based on its size and 

through a negotiated rulemaking process. I recommend eliminating the ‘‘based on 

its size’’ language in the current legislation (page 25, line 2) to give the negotiated 

rulemaking committee the flexibility it needs to address the diversity of institutions 

and determine what criteria should be considered in determining the appropriate 

number of confidential advisors (whether more than one advisor is required or optional). To that point, CASA could also be revised to require a minimum of one advisor per institution but encourage (without requiring) institutions to appoint additional advisors using criteria that the rulemaking committee determines to be most 

appropriate to achieve the goals of the law. 

On its face, tying the number of confidential advisors to the number of reported 

incidents appears counterintuitive in that reports may not increase without the 

availability of a confidential advisor to assist in the provision of resources and explain reporting options. Additionally, title IX requires only a single coordinator to 

oversee the institution’s compliance with title IX. Institutions are free to designate 

additional personnel to assist these coordinators as they deem it appropriate (such 

as designating a separate ‘‘deputy’’ title IX coordinator for students and another 

‘‘deputy’’ title IX coordinator for employees). This model gives institutions the flexibility they may need based on their enrollment and other characteristics and could 

work well for confidential advisors. 

I would further submit that the criteria for who may not be a confidential advisor 

is both unnecessary and problematic. Specifically, persons who may function as 

higher education responsible employees or a title IX coordinator are forbidden from 

serving in this role. This rules out a large number of personnel with both interest 

and expertise in assisting victims, which is the most important aspect of the confidential advisor role. Additionally, ruling out ‘‘full-time graduate students’’ would 

categorically prevent masters and doctoral-level counselors in training from serving 

in this role, in spite of the wealth of knowledge and skills these individuals could 

bring. Campuses should be permitted to exercise discretion to determine who can 

or should serve as a confidential advisor, as who the most appropriate person should 

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be will vary significantly from campus to campus based on their staffing levels and 

organizational structure. 

CASA should be revised to preclude persons with conflicts of interest from serving 

in that capacity (for example, the questions and answers on title IX and sexual violence notes, 

‘‘Title IX does not categorically preclude particular employees from serving as 

title IX coordinators. However, title IX coordinators should not have other job 

responsibilities that may create a conflict of interest. Because some complaints 

may raise issues as to whether or how well the school has met its title IX obligations, designating the same employee to serve both as the title IX coordinator 

and the general counsel (which could include representing the school in legal 

claims alleging title IX violations) poses a serious risk of a conflict of interest. 

Other employees whose job responsibilities may conflict with a title IX coordinator’s responsibilities include directors of athletics, deans of students, and any 

employee who serves on the judicial/hearing board or to whom an appeal might 

be made.’’ 

These types of reasonable restrictions, if placed on the confidential advisor role, 

would be more aligned with the Department’s historical approach and gives campuses discretion to determine who should serve in this role consistent with their 

personnel, job functions, and resources which vary across institution types. 

Question 2. There is a clear conflict of interest inherent in the confidential advisor 

role, since that person is employed by an institution of higher education and has 

certain reporting responsibilities under the Clery Act, as Senator Collins has pointed out. I would be interested in learning if there were other, non-affiliated resources 

available to students that may more appropriately play a confidential and/or counseling role, and if this would be a suitable use for funds generated by the fines. 

Answer 2. The systems of campus sexual violence complaint resolution and resources/options available to victims can be multifaceted and nuanced on many campuses. I would be concerned about whether non-affiliated entities could fully and accurately present these nuances to victims that are exploring their options to receive 

assistance and/or report to campus or civil authorities. 

Instead, the conflict of interest could be greatly diminished by granting confidential advisors the same exemptions for Clery Act reporting that already exist for pastoral and professional counselors (who are not, as a matter of law, campus security 

authorities unless they have other job functions, such as advising a student organization, that would strip them of their statutory exemption from reporting offenses 

brought to their attention while serving in their counselor roles). Extending this 

type of exemption to confidential advisors would take advisors out of a crime reporting role (and wisely so, since no personally identifiable information could be shared 

by the confidential advisor with the campus entity responsible for compiling crime 

statistics on behalf of the institution. The absence of this type of information could 

prove exceedingly difficult for institutions to ensure statistical accuracy if basic information about the incident, such as names of persons involved, could not be 

shared. The consequence could be systematic over-reporting of crime). 

Additionally, the conflict can be further reduced, if not eliminated, by maintaining 

the provision in CASA that expressly excludes confidential advisors from being considered higher education responsible employees. However, this provision could be 

strengthened by indicating that even if an individual designated as a confidential 

advisor has other responsibilities that would ordinarily make the person a campus 

security authority or a higher education responsible employee, the statutory exemptions would take precedence such that confidential advisor would not be required 

to adhere to the requirements imposed upon other campus security authorities or 

a higher education responsible employees. 

In order for this exemption to be consistent with existing title IX requirements 

to investigate or otherwise determine what occurred when a school knows (or reasonably should know) of possible sexual violence, the confidential advisor’s role 

should be limited to providing information to the victim about where a victim could 

obtain accommodations. This would be a change in the confidential advisor’s role, 

as currently envisioned, in that the advisor would no longer be authorized to arrange accommodations on behalf of the victim. If a confidential advisor seeks accommodations on a victim’s behalf, that action may cause the school to believe they 

know, or should reasonably know, of possible sexual violence which then triggers 

their responsibility under title IX to investigate or otherwise determine what occurred. CASA indicates that an advisors request for accommodations shall not trigger an investigation by the institution, but without a change in the advisor’s role 

or a clearer statement that a request for accommodations by the confidential advisor 

is not sufficient notice to an institution that should trigger an investigation (for title 

135 

IX or other purposes), institutions will be between a rock and a hard place in trying 

to reconcile responsibilities under Title IX and CASA. 

Question 3. Some non-residential and online institutions in Utah have expressed 

a concern about the practicality of the 24 hours notice, as stated in the CASA bill. 

I am interested to know how feasible this timeline is, and if there is a more practicable timeline? 

Answer 3. As the timelines proposed by CASA do not impact the amount of time 

institutions have to make such determinations, I do not see prompt notification to 

be especially unworkable. However, in its current form, ‘‘within 24 hours’’ makes no 

provision for when the institution is actually open. For example, if a determination 

is made on a Friday, CASA would require the determination to be relayed on Saturday. A far more reasonable approach, consistent with other Clery Act requirements, 

would be to amend the propose language to ‘‘within one business day’’ in lieu of 

‘‘within 24 hours.’’ The term ‘‘business day’’ is defined already for Clery Act purposes 

(in the final implementing regulations) to mean ‘‘Monday through Friday, excluding 

any day when the institution is closed.’’ 

I support one business day under two very important conditions. First, institutions must be empowered to determine when a ‘‘determination’’ or ‘‘change’’ has 

been made, as that is the point that starts the clock on 24 hours/1 business day. 

This will allow sufficient time to plan for consultation with appropriate administrators, including legal counsel, before any draft written outcomes are determined to 

have been finalized. This can also allow the institution time to conduct a preliminary investigation upon receipt of a complaint to determine if it has merit in proceeding with a disciplinary procedure. 

Additionally, there must be some provision that allows campuses to extend the 

deadline for good cause. There is precedent for this already in withholding information from being added to the Daily Crime Log within 2 business days. Specifically, 

institutions may temporarily withhold information from the Daily Crime Log only 

if there is clear and convincing evidence that the release of information would: 

• Jeopardize an ongoing (criminal) investigation; 

• Jeopardize the safety of an individual; 

• Cause a suspect to flee or evade detection; or 

• Result in the destruction of evidence. 

Institutions may withhold only that information that could cause an adverse effect, and must disclose such information once the adverse effect is no longer likely 

to occur. 

A similar provision could be added by CASA to identify the acceptable parameters 

for delaying notification beyond the standard imposed by CASA. For example, a 

campus conduct office could be preparing to send out notification of outcomes in a 

case when another incident occurs, requiring immediate response of interim suspension to multiple students and causing a delay in notification of outcomes in the 

former case. There needs to be an allowance for the day to day professional discretion for campus administrators to reasonably prioritize their caseloads. Perhaps 

CASA could be revised to require notification within 1 business day unless there is 

reasonable cause to delay such notification and let the specifics of this approach be 

determined through a negotiated rulemaking process. 

SENATOR MURKOWSKI

Question 1. The Campus Accountability and Safety Act (CASA) would require an 

institution to provide a confidential advisor to an assault victim. This is intended 

to provide support and resources to the victim in a way that will provide the victim 

with a sense of safety and control, which is laudatory. I am concerned, however, 

about provisions in CASA that specifically state a confidential advisor is not obligated to report crimes to the institution and that any requests for accommodation 

the Advisor makes on behalf of a student ‘‘shall not trigger an investigation by the 

institution’’. These provisions seem to conflict with institutions’’ moral and legal obligation under title IX to ensure that a campus is safe for all students. Keeping information about a crime secret and prohibiting an investigation could lead to an increased risk for other students as well as lead to liability for the institution should 

the perpetrator harm additional students. What changes do you recommend, to 

CASA, Title IX, or both, to reconcile this conflict? 

Answer 1. As noted in my answer to Senator Hatch’s concerns about the conflict 

of interest, the confidential advisor position could be exempted from crime reporting 

by extending the exemption given to pastoral and professional counselors and by 

more directly indicating that even if a person that serves as a confidential advisor 

would otherwise have functions that would make them a campus security authority 

136 

or higher education responsible employee, the exemptions provided by CASA for 

confidential advisors would take precedence such that confidential advisors would 

not be expected to perform functions traditionally required of campus security authorities or higher education responsible employees when learning of possible sexual 

violence (or other Clery Act crimes or forms of sexual harassment). This would address your concern as to the legal conflict with the Clery Act and Title IX. It is 

worth noting that the Department of Education’s April 29, 2014 questions and answers on title ix and sexual violence indicated that, 

‘‘Professional counselors and pastoral counselors whose official responsibilities 

include providing mental-health counseling to members of the school community 

are not required by title IX to report any information regarding an incident of 

alleged sexual violence to the title IX coordinator or other appropriate school 

designee’’ (p. 22). 

As Congress and the Department of Education has determined that some employees of colleges and universities, but not all, are mandatory reporters under the Clery 

Act and Title IX, it would appear that granting confidential advisors exemptions 

would not present an increased risk to other students than would circumstances in 

which a disclosure is made to employees who are not already considered to be campus security authorities or higher education responsible employees. Furthermore, 

with the victim centered, trauma-informed approach that the confidential advisor 

must take, it seems as though designating a truly confidential employee to explain 

reporting options and provide resources may provide the best chance that a victim 

will decide to access resources and report the matter to the title IX coordinator, law 

enforcement (campus or municipal), a campus security authority and/or a responsible employee once they are fully apprised of the options and resources by a person 

who is empowered to provide information confidentiality (notwithstanding any State 

laws that may impact certain employees reporting obligations). 

Question 2. Experts consulted by the University of Alaska have consistently stated 

that the best way to get absolutely accurate results on a campus survey about sexual assault is to assure absolute confidentiality and to prohibit publishing the results. This promotes higher response rates and allows the institution to respond to 

gaps, concerns, and problems in campus safety issues. CASA advocates suggest that 

a homogenous survey, the results of which are published, will assist the consumer 

in making educated choices. Data suggests that few prospective students, their families, or enrolled students review campus crime statistics. Do you agree that the 

campus surveys should be used for institutional improvement of policies and practices rather than as a consumer tool? Why or why not? Do you recommend that if 

institutions are required to use a survey developed by the Department that individual institutions should be able to delete questions that are locally or culturally 

inappropriate? Should there be two surveys—one developed by the Department of 

Education and used as a consumer tool and one developed by an institution and 

used only to improve internal practices and policies? 

Answer 2. While I am not familiar with the conclusions drawn by the experts 

you’ve consulted or the data on which their conclusions are based, I am of the opinion that surveys are only worthwhile to the extent the data collected are used to 

understand and improve existing conditions/experiences. 

In conducting an exhaustive review of available literature on the Clery Act, Dennis Gregory (Old Dominion University) and Steven Janosik (Virginia Tech) concluded, 

‘‘There is no evidence that parents and students are using the [Clery] Act to 

make decisions regarding where to attend college and there are no reports that 

the [Clery] Act has had an impact on reducing crime’’ (2013, p. 56). 

Given these research-based conclusions, it seems unlikely that making additional 

data available to consumers is likely to change consumer behavior. By extension, 

fashioning the required survey as a consumer tool may fail to meet its intended 

goals. 

However, if the data collected can provide valuable insights as to policies or circumstances that impede campus efforts to effectively prevent and/or respond to sexual violence, then the data ought to be used to drive solutions that a campus believes would address these challenges as identified in survey results. If the survey 

is designed with this goal in mind, the results of surveys are far more likely to affect positive change. The data from surveys could be used in a regular assessment 

of campus sexual violence prevention and response efforts, similar to the required 

biennial review of drug and alcohol abuse prevention programs required by the 

Drug Free Schools and Communities Act of 1989 (which the Department of Education also enforces). 

137 

Having two separate surveys is unworkable and may not yield a sufficient response to either survey as to draw meaningful conclusions or generalize the results 

to the entire student population. Whether institutions develop their own surveys or 

the Department develops a survey to which institutions may add questions, it is imperative that appropriate experts within and outside of higher education are consulted on the development of these instruments to ensure usable, valid and reliable 

results. As to dissemination, I believe schools should be required to share the results 

upon request if they are not mandated by CASA to publish a summary of the results. This would be consistent with other consumer disclosure provisions of the existing Clery Act. 

Question 3. CASA requires that institutions develop Memorandums of Understanding with each law enforcement agency that has jurisdiction. Many institutions, 

including public and private institutions, have developed significant e-learning opportunities for their students who may never attend classes on campus. This CASA 

requirement is viewed by those institutions, therefore, as fatally vague and unworkable. Do you agree, if so, do you have suggestions for addressing this concern? 

Answer 3. The Memoranda of Understanding required by CASA should be limited 

to those local law enforcement agencies that would have primary jurisdiction on the 

institutions on campus (as this location category is defined by the Clery Act). Further, as I noted in my response to Senator Alexander (Question 7), the committee 

should provide an exemption for sworn campus agencies so they do not have to enter 

into an MOU with another sworn agency when the campus agency already has primary jurisdiction to respond to crimes on the campus. 

Question 4. Several witnesses spoke to the complexity of compliance with Clery 

and Title IX. Adoption of the CASA provisions would add additional requirements 

and complexity. Looking at the issue of campus safety as a whole, would you recommend that the committee completely re-write institutional responsibilities across 

Clery, Title IX, VAWA, and CASA in order to reduce complexity, increase crime reporting and transparency, and provide for the rights of all students to a safe campus 

on which to gain an education? If so, what specific suggestions do you have for the 

committee? 

Answer 4. This issue should be within the scope of the task force recommended 

in my response to Senator Alexander’s question regarding areas of conflict and duplication between Title IX and Clery (Question 1). The results of the Task Force’s 

examination could determine whether rewriting institutional responsibly is necessary and/or desirable once the actual areas of overlap/diversion between the various laws and guidance documents are known. 

Question 5. I have received concerns from students who have been accused of sexual assault on campus and their parents. They tell me their rights to a fair hearing 

were not respected. Complaints included that as the accused, they were not informed of their rights under the institution’s hearing policies, that the victim was 

provided more robust counsel by the university, and that they were denied the right 

to question their accuser and witnesses. CASA requires institutions to provide certain information about process to both the victim and the accused but leaves to the 

institution to follow their own policies for conducting investigations and hearings. 

Can this section be improved? Should the committee mandate that institutions follow basic policies and procedures? If so, please provide specific suggestions. 

Answer 5. I believe the existing VAWA requirements to provide a prompt, fair and 

impartial proceeding, coupled with the aforementioned disclosures of procedural protections proposed in my response to Senator Alexander’s question regarding procedural fairness (Question 3), address much of these concerns. 

However, I would note that I do not believe campuses should be providing any 

legal counsel to individuals involved in its own disciplinary processes. However, 

campuses should provide the accuser and accused with adequate information about 

the resolution procedures to enable the parties to meaningfully and fully participate 

in the process. 

Toward that end, the committee should encourage and/or require campuses to 

train a pool of students and/or employees (i.e., members of the campus community) 

on the investigation and resolution processes, and make this pool of individuals 

known to persons participating in the process in case they would like to secure an 

advisor trained on the specific resolution procedures that will be utilized in cases 

of sexual violence. This would provide equitable support options for both parties and 

may help to offset perceptions by the accused that the institution only provides resources and support to the accuser (a perception that is sure to be bolstered by the 

appointment of one or more ‘‘confidential advisors’’ required by CASA). 

138 

4The 2011 Dear Colleague Letter on Sexual Violence advised campuses that, 

‘‘Although a school may need to delay temporarily the fact-finding portion of a title IX investigation while the police are gathering evidence, once notified that the police department 

has completed its gathering of evidence (not the ultimate outcome of the investigation or 

the filing of any charges), the school must promptly resume and complete its fact-finding 

for the title IX investigation.’’ 

This passage was footnoted with a statement that police’s evidence gathering stage typically 

takes 3–10 calendar days in a jurisdiction in which OCR conducted an investigation, and campuses have generally interpreted this example to establish a 10-day standard. 

I do not think the committee should require campuses to allow direct cross-examination. Institutional disciplinary procedures are not akin to courts of law, and the 

Office of Civil Rights noted in its 2011 Dear Colleague Letter on Sexual Violence 

that, 

‘‘OCR strongly discourages schools from allowing the parties personally to 

question or cross-examine each other during the hearing. Allowing an alleged 

perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment’’ (p. 

12). 

However, parties should have the right to challenge/question/respond to the information in the case, which does not require direct questioning or responding to each 

other, and can sometimes be done without even physically or verbally interacting 

with each other. 

Finally, as CASA discusses the need for ‘‘victim-centered, trauma-informed’’ training for those investigating and resolving these cases, CASA should also include a 

requirement that persons involved in the investigation and adjudication of these 

cases (including any appeals) be trained on how to design and implement fundamentally fair student conduct procedures, including an understanding of the rights/protections afforded to the parties (including the accused) and the institution’s obligations under title IX for all students and employees. As many institutional policies 

and procedures governing how the institution responds to allegations of sexual violence are written or subject to approval by presidents, compliance officers, and/or 

campus attorneys, any such individuals with that policy authority should also receive this training. This would address the interests and protections of both the accuser and the accused at the investigation/hearing level as well as the institutional 

governance level. 

SENATOR WHITEHOUSE

Question 1. In the context of campus sexual assault, campus investigations and 

law enforcement investigations can sometimes work at cross purposes. How can we 

disentangle the campus and law enforcement investigations so that one does not impede the other? 

Answer 1. I don’t think you can disentangle a law enforcement investigation and 

a civil rights (title IX/campus) investigation. If there are two investigations happening in tandem, they will—by their very nature—be entangled. The investigative 

processes have different end goals and use different strategies, evidentiary standards, personnel, etc. Campuses believe they have approximately 10 days to initiate 

their civil rights investigations based on OCR guidance,4 regardless of the pace of 

a law enforcement investigation, which can take months. The local law enforcement 

agency often carries the perception that the campus civil rights investigation will 

interfere with the law enforcement investigation, and in some cases, that may be 

true. For example, all of the statements that witnesses, the accuser and the accused 

make in the context of civil rights investigations could have a negative affect with 

the law enforcement investigation that will ensue, especially to the extent the statements made are inconsistent. Given that institutions have a legal obligation to conduct a title IX (civil rights) investigation, it would behoove institutions to meet with 

their local law enforcement and prosecuting agencies to identify potential challenges 

and strategies to meet those challenges in a way that minimizes adverse effects to 

each entity. 

Although there are going to be some challenges inherent to tandem investigations, 

this issue presents another opportunity for which a task force could be useful to the 

committee. Such a task force could explore various challenges and opportunities related to the investigation and prosecution/discipline of sexual violence cases on campus and within the criminal justice system. Campus police and public safety officials, title IX coordinators, institutional general counsel, victims’ advocates, municipal law enforcement agencies, and prosecutorial authorities could collaboratively 

explore these issues to identify best practices and workable solutions. Such a colVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00142 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
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laboration could also be instructive to the HELP Committee at determining what 

legislative actions to take to assist in this area. 

Question 2. In the context of domestic violence, law enforcement officers have become better qualified to address the needs of victims by drawing on the expertise 

of advocacy groups and experts. How can we best support the law enforcement community so that officers are similarly well-trained to assist survivors of campus sexual assault? 

Answer 2. This is an important question, and one, members of the law enforcement community (campus and municipal agencies alike) could benefit from additional support. To that end, I would recommend that the Department of Justice’s 

Community Oriented Policing Services (COPS) office commission a task force to explore this question with higher education industry leaders, victim advocates, and 

members of the law enforcement community (both campus and municipal). 

Question 3. Many survivors fear that they may lose control over campus sexual 

assault proceedings if law enforcement gets involved early. What can we do to inform students about the course of a law enforcement investigation, so they can make 

an informed choice about how to proceed? 

Answer 3. I believe that survivors fear that they may lose control if law enforcement gets involved at all, and to some degree that could hold true. If the victim 

reports the crime to law enforcement, in some States, the officer may be obligated 

to interview the alleged perpetrator, even if the victim requests that they don’t want 

that to happen. In my experience at GW, I can tell you that the majority of victims 

who reported a sexual assault to our department said that they wanted to put the 

incident ‘‘on the record’’ but they ‘‘didn’t want us to do anything’’ with the information. As a private law enforcement agency, we could honor that request. I imagine 

that there may be agencies that won’t (by policy) or can’t (by law) honor that kind 

of request. Institutions of higher education are obligated by title IX to conduct an 

investigation, to the extent possible, of any sexual violence. This also means that 

victims can lose control over that process as well. For example, if the victim shares 

the name of the perpetrator with the institution, the institution may need to interview the subject to conduct an investigation to the extent possible. The fear of the 

victim losing control over the process(s) is very real and possible. 

On the other hand, as part of the training they receive, a confidential advisor 

should possess detailed information about the full range of local law enforcement’s 

potential involvement and investigative processes and the victim’s options and influence within and throughout that process and any criminal prosecution that may follow. This kind of training could supplement the written information about the victim’s rights and options which institutions must provide victims of domestic violence, dating violence, sexual assault and stalking (per the VAWA Amendments to 

the Clery Act). Providing confidential advisors with detailed information about 

criminal investigation and prosecution, coupled with the existing VAWA disclosures 

that must be made to victims about reporting options and the involvement of law 

enforcement, should help considerably, although the victim’s wishes to prosecute or 

not prosecute should still be the primary driver of whether law enforcement gets 

involved at any stage. 

Question 4. Absent the concern of loss of control (perceived or otherwise) by the 

survivor, are there reasons that experienced, trauma-informed, sensitive, effective 

law enforcement should not be involved at early stages of an investigation? 

Answer 4. This concern cannot be set aside, as addressed in our response to the 

last question. Often the most important factor to a victim is that they maintain control over what happens to their report, including whether the subject will be interviewed, witnesses will be interviewed, law enforcement will be involved or if a case 

will be prosecuted. Even the most experienced, trauma-informed, sensitive, effective 

law enforcement officer cannot or should not try to convince a victim to cooperate 

with a criminal investigation or the subsequent prosecution of such an offense. The 

victim should maintain autonomy in that regard. The victim’s prerogative to involve 

or not involve law enforcement should be of paramount importance and should not 

be undermined by any law, statute or regulation that would cause the victim to participate in ways that they are opposed. To force a victim to do anything beyond what 

is right for them would only serve to re-victimize the victim. No process should do 

that, intentionally or unintentionally. 

SENATOR CASEY

Question 1. One of the comments I have heard on multiple occasions from institutions is that it is important to remember that not all institutions are the same: the 

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institutions covered by title IV (the Federal financial aid title) of the Higher Education Act are extremely diverse, from large, multi-institution State systems to 

small liberal arts colleges; community colleges with commuter populations; and very 

small technical schools that may only have a couple of classrooms. What are some 

of the different ways in which these diverse institutions have met their obligations 

under the Clery Act? 

Answer 1. More often than not, the complexities of compliance are increased for 

institutions with larger volumes of crime reports and larger real estate portfolios for 

which institutions must collect and report crimes for their core campus and noncampus properties. Very few of the requirements of the Clery Act do not apply to all 

institutions that receive Federal funding. Noteworthy examples include creating and 

maintaining a daily crime log (only if the institution has campus police/campus security) and compliance with the missing persons and fire safety provisions (if the 

institution has on-campus student housing facilities). All institutions, however, must 

comply with all remaining Clery Act requirements (a summary of which is provided 

in my testimony). 

The Department of Education recognizes that all institutions are differentially impacted by the Act’s requirements, including the new VAWA requirements. For example, in the small entity compliance guide made available by the Department of 

Education in June 2015 (see http://www2.ed.gov/policy/highered/reg/ 

hearulemaking/2012/vawa-compliance-guide.doc), the Department notes that the 

burden imposed by the new VAWA requirements may be greater for smaller entities, noting, 

‘‘The Department recognizes that small entities may need to hire additional 

employees to collect and report the required statistics. However, each of the elements of these provisions must be addressed’’ (p. 6). 

They continue: 

‘‘Institutions will incur costs associated with the additional reporting and disclosure requirements of the regulations. The additional workload may result in 

costs associated with either the hiring of additional employees or opportunity 

costs related to the reassignment of existing staff from other activities, especially in smaller institutions without campus law enforcement or campus security personnel. However, as stated above, each of the elements of these provisions must be addressed’’ (p. 6). 

Much of compliance with the Clery Act involves disclosing policy statements. Institutions must typically advise the campus community what policies, practices and 

resources it has for a variety of campus safety issues. The VAWA Amendments to 

the Clery Act go beyond requiring disclosure of what policies a campus has to proscribing very specific policies and programs institutions must implement and disclose. In other words, not only do campuses have to tell their communities about 

their processes, but now they are required to have certain procedures as part of 

their processes. This is what we mean when we say the law has become more prescriptive. The more prescriptive the law is in telling HOW campuses must do something (rather than the historical requirements of telling WHAT they do without prescribing HOW to do it), the more adverse the effect on institutions that aren’t midto large-sized residential institutions. 

Question 2. As we have seen in the last several years, many schools are struggling 

to respond appropriately to instances of sexual assault, dating violence, domestic violence and stalking. The Campus SaVE Act provides additional guidance for schools, 

without being overly prescriptive. For example, the law requires institutions to have 

education and prevention programs in place that meet certain benchmarks, but recognizes that a large university is very different from a small college and provides 

flexibility as to how those programs are provided. The regulations, developed with 

input from a varied group of stakeholders (including survivors and advocates, institutions of different sizes/types, law enforcement, and other higher education constituencies) provide further guidance for institutions on how to operationalize the 

law. Finally, I understand that the Department of Education is in the process of updating the Clery Handbook for Campus Safety and Security Reporting to reflect the 

changes made by the VAWA Amendments. Thus, I do not understand how you can 

simultaneously claim that the law is too prescriptive and too vague at the same 

time. Which is it? 

Answer 2. As I mentioned in my response to question 1, the Campus SaVE Act 

is prescriptive about what procedures a campus must adopt, which is an historical 

departure from the requirement to disclose policy statements. The Campus SaVE 

Act issues mandates, not guidance, in that regard. 

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With regard to examples of the Department’s vagueness, please see my answer 

to Senator Alexander’s question about occasions when the Department imposes new 

requirements that are not contained in the regulations (Question 5). I believe these 

highlight some problems associated with vagueness in the law. 

Question 3. You claim that the Annual Security Report must contain 111 separate 

policy disclosures under the Clery Act. My staff have spent significant time trying 

to replicate that extraordinary claim, and have been unable to do so. Please explain 

how you reached this number. 

Answer 3. We have reviewed the statutory and regulatory requirements as enumerated in the Clery Act and its implementing regulations. We also reviewed the 

Handbook for Campus Safety and Security Reporting (2011) which provides more 

specific guidance about what policy statements should and must be included in the 

institution’s Annual Security and Fire Safety Reports. Our listing of the required 

disclosures is as follows. 

I. CAMPUS LAW ENFORCEMENT POLICIES

Question 1. A statement of policies concerning campus law enforcement that—Addresses the enforcement authority of security personnel. 

2. A statement of policies concerning campus law enforcement that—Addresses 

whether those security personnel have the authority to make arrests. 

3. A statement of policies concerning campus law enforcement that—Addresses 

the jurisdiction of security personnel. 

4. A statement of policies concerning campus law enforcement that—Addresses 

the working relationship of campus security personnel with State and local police 

agencies. 

5. A statement about whether the institution has any agreements, such as written 

memoranda of understanding, with the local PD regarding the investigation of alleged criminal offenses. 

II. REPORTING PROCEDURES

6. A statement of current campus policies regarding procedures for students and 

others to report criminal actions or other emergencies occurring on campus. 

7. A statement of current campus policies regarding procedures for students and 

others to report criminal actions or other emergencies occurring on campus. This 

statement must include the institution’s policies concerning its response to these reports. 

8. A list of the titles of each person or organization to whom students and employees should report the criminal offenses described in the law for the purpose of making 

timely warning reports and the annual statistical disclosure. 

9. A statement of policies concerning campus law enforcement that—Encourages 

accurate and prompt reporting of all crimes to the campus police and the appropriate police agencies, when the victim of a crime elects to, or is unable to, make 

such a report. 

10. Disclose whether the institution has any policies or procedures that allow victims or witnesses to report crimes on a voluntary, confidential basis for inclusion 

in the annual disclosure of crime statistics, and if so, a description of those policies 

and procedures. 

11. A statement of policies concerning campus law enforcement that—Describe 

procedures, if any, that encourage pastoral counselors and professional counselors, 

if and when they deem it appropriate, to inform the persons they are counseling of 

any procedures to report crimes on a voluntary, confidential basis for inclusion in 

the annual disclosure of crime statistics. 

III. TIMELY WARNING PROCEDURES

12. Policies for making timely warning reports to members of the campus community regarding the occurrence of crimes listed in the Clery Act. 

13. A statement that such reports shall be provided to students and employees 

in a manner that is timely, that withholds the names of victims as confidential, and 

that will aid in the prevention of similar occurrences. 

14. The circumstances for which a warning will be issued. 

15. The individual or office responsible for issuing the warning (who writes it or 

develops content?). 

16. The individual or office responsible for issuing the warning (who initiates it 

or sends it?). 

17. The manner in which the warning will be disseminated. 

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IV. EMERGENCY RESPONSE AND EVACUATION PROCEDURES

18. A statement of current campus policies regarding immediate emergency response procedures. 

19. A statement of current campus policies regarding evacuation procedures. 

20. A statement of current campus policies regarding immediate emergency response and evacuation procedures, including the use of electronic and cellular communication (if appropriate). 

21. A statement that the campus will immediately notify the campus community 

upon the confirmation of a significant emergency or dangerous situation involving 

an immediate threat to the health or safety of students or employees occurring on 

the campus. 

22. Provide a description of the process the institution will use to: Confirm that 

there is a significant emergency or dangerous situation. (Include a list of the titles 

of the person(s) or organization(s) responsible for carrying out these actions) 

23. Provide a description of the process the institution will use to: Determine the 

appropriate segment or segments of the campus community to receive a notification. 

(Include a list of the titles of the person(s) or organization(s) responsible for carrying 

out these actions) 

24. Provide a description of the process the institution will use to: Determine the 

content of the notification. (Include a list of the titles of the person(s) or organization(s) responsible for carrying out these actions) 

25. Provide a description of the process the institution will use to: Initiate the notification system. (Include a list of the titles of the person(s) or organization(s) responsible for carrying out these actions) 

26. If there is an immediate threat to the health or safety of students or employees occurring on campus—describe how the institution will provide followup information to the community. 

27. A statement that the institution will, without delay, and taking into account 

the safety of the community, determine the content of the notification and initiate 

the notification system, unless issuing a notification will, in the professional judgment of responsible authorities, compromise efforts to assist a victim or to contain, 

respond to, or otherwise mitigate the emergency. 

28. Indicate procedures for disseminating emergency information to the larger 

community. 

29. Publicize the procedures to test emergency response and evacuation procedures on an annual basis, including—Tests may be announced or unannounced. 

(Test is defined as regularly scheduled drills, exercises, and appropriate followthrough activities, designed for assessment and evaluation of emergency plans and 

capabilities). 

30. Publicize the procedures to test emergency response and evacuation procedures on an annual basis, including—Publicizing its emergency response and evacuation procedures in conjunction with at least one test per calendar year; 

31. Publicize the procedures to test emergency response and evacuation procedures on an annual basis, including—Documenting, for each test, a description of 

the exercise, the date, time, and whether it was announced or unannounced. 

V. LOCAL POLICE DEPARTMENT

32. A statement of policy concerning the monitoring and recording through local 

police agencies of criminal activity by students at noncampus locations of student 

organizations officially recognized by the institution, including student organizations 

with noncampus housing facilities. 

VI. SECURITY OF AND ACCESS TO CAMPUS FACILITIES

33. A statement of current policies concerning security of campus facilities, including campus residences. 

34. A statement of current policies concerning access to campus facilities, including campus residences. 

VII. MAINTENANCE OF CAMPUS FACILITIES

35. Security considerations used in the maintenance of campus facilities. 

VIII. EDUCATION PROGRAMS

36. A description of the type and frequency of security awareness programs designed to inform students and employees about campus security procedures and 

practices. 

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37. A description of the type and frequency of security awareness programs designed to inform students and employees about campus security procedures and 

practices and to encourage students and employees to be responsible for their own 

security and the security of others. 

38. A description of programs designed to inform students and employees about 

the prevention of crimes. 

IX. ALCOHOL AND DRUG POLICIES

39. A statement of policy regarding the: 

a. possession; 

b. use; 

c. sale of alcoholic beverage; and 

d. the enforcement of State underage drinking laws. 

40. A statement of policy regarding the: 

a. possession; 

b. use; 

c. sale of illegal drugs; and 

d. enforcement of Federal and State drug laws. 

41. A description of any drug or alcohol-abuse education programs, as required 

under section 120(a) through (d) of the HEA, otherwise known as the Drug-Free 

Schools and Communities Act of 1989. For the purpose of meeting this requirement, 

an institution may cross-reference the materials the institution uses to comply with 

section 120(a) through (d) of the HEA. 

X. CRIME STATISTICS

42. The crimes required by the Clery Act that occurred on or within an institution’s Clery Geography that were reported to a campus security authority. 

43. Policies for preparing the annual disclosure of crime statistics. 

XI. ANNUAL FIRE SAFETY REPORT

44. Is the fire safety report printed in the Annual Security Report or as a separate 

document? If they are printed together, does the title of the report reflect that is 

the Annual Security and Fire Safety Report? If not, does each document reference 

where to find the other? 

45. The report must contain a description of each on-campus student housing facility fire safety system? 

46. The report must contain the number of fire drills held during the previous calendar year? 

47. The institution’s policies or rules on: 

a. portable electrical appliances; 

b. smoking; and 

c. open flames in a student housing facility. 

48. The institution’s procedures for student housing evacuation in case of a fire. 

49. The policies regarding fire safety education and training programs provided 

to the students, faculty, and staff. 

50. Describe the procedures that students and employees should follow in the case 

of a fire. 

51. For purposes of including a fire in the statistics in the annual fire safety report, a list of the titles of each person or organization to which students and employees should report that a fire occurred. 

52. Plans for future improvements in fire safety, if determined necessary by the 

institution. 

53. An institution must report statistics for each on-campus student housing facility, for the three most recent calendar years for which data are available, concerning: 

• The number of fires. 

• The cause of each fire. 

• Number of injuries related to a fire that result in treatment at a medical facility. 

• Number of deaths related to a fire. 

• Value of property damage caused by a fire. 

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XII. MISSING STUDENTS

54. Indicate a list of titles of the persons or organizations to which students, employees, or other individuals should report that a student has been missing for 24 

hours. 

55. Require that any official missing student report must be referred immediately 

to the institution’s police or campus security department, or, in the absence of an 

institutional police or campus security department, to the local law enforcement 

agency that has jurisdiction in the area. 

56. Contain an option for each student living in an on-campus student housing 

facility to identify a contact person or persons whom the institution shall notify 

within 24 hours of the determination that the student is missing, if the student is 

determined missing by the institutional police or campus security department, or 

the local law enforcement agency. 

57. A statement that advises students that their contact information will be registered confidentially, and that this information will be accessible only to authorized 

campus officials and law enforcement and that it may not be disclosed outside of 

a missing person investigation. 

58. A statement that advises students that if they are under 18 years of age and 

not emancipated, the institution must notify a custodial parent or guardian within 

24 hours of the determination that the student is missing, in addition to notifying 

any additional contact person designated by the student. 

59. A statement that advises students that the institution will notify the local law 

enforcement agency within 24 hours of the determination that the student is missing, unless the local law enforcement agency was the entity that made the determination that the student is missing. 

60. The procedures that the institution must follow when a student who resides 

in an on-campus student housing facility is determined to have been missing for 24 

hours include: 

(i) If the student has designated a contact person, notifying that contact person 

within 24 hours. 

61. The procedures that the institution must follow when a student who resides 

in an on-campus student housing facility is determined to have been missing for 24 

hours include: 

(ii) If the student is under 18 years of age and is not emancipated, notifying the 

student’s custodial parent or guardian and any other designated contact person 

within 24 hours. 

62. The procedures that the institution must follow when a student who resides 

in an on-campus student housing facility is determined to have been missing for 24 

hours include: 

(iii) Regardless of whether the student has identified a contact person, is above 

the age of 18, or is an emancipated minor, informing the local law enforcement 

agency that has jurisdiction in the area that the student is missing within 24 hours. 

XIII. HEOA VICTIM NOTIFICATION

63. Statement that the institution will, upon written request, disclose to the alleged victim of a crime of violence or a non-forcible sex offense, the report on the 

results of any disciplinary proceeding conducted by the institution against a student 

who is the alleged perpetrator of such crime or offense. If the alleged victim is deceased as a result of such crime or offense, the next of kin of such victim shall be 

treated as the alleged victim for purposes of this paragraph. 

XIV. SEX OFFENDER REGISTRY

64. A statement advising the campus community where law enforcement agency 

information, provided by a State under section 121 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16921), concerning registered sex offenders 

may be obtained, such as the law enforcement office of the institution, a local law 

enforcement agency with jurisdiction for the campus, or a computer network address. 

XV. POLICIES AND PROCEDURES RELATED TO DATING VIOLENCE, DOMESTIC VIOLENCE, 

SEXUAL ASSAULT AND STALKING

65. A statement of policy regarding the institution’s programs to prevent dating 

violence, domestic violence, sexual assault, and stalking, as defined in paragraph (a) 

of this section. The statement must include: 

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66. A statement that the institution of higher education prohibits the crimes of 

domestic violence, dating violence, sexual assault, and stalking. 

67. The definition (from VAWA) of dating violence. 

Dating Violence: Violence committed by a person who is or has been in a social 

relationship of a romantic or intimate nature with the victim. 

i. The existence of such a relationship shall be based on the reporting party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. 

ii. For the purposes of this definition— 

(A) Dating Violence includes, but is not limited to, sexual or physical abuse 

or the threat of such abuse. 

(B) Dating violence does not include acts covered under the definition of domestic violence. 

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

Domestic Violence: 

i. A Felony or misdemeanor crime of violence committed— 

(A) By a current or former spouse or intimate partner of the victim; 

(B) By a person with whom the victim shares a child in common; 

(C) By a person who is cohabitating with, or has cohabitated with, the victim 

as a spouse or intimate partner; 

(D) By a person similarly situated to a spouse of the victim under the domestic 

or family violence laws of the jurisdiction in which the crime of violence occurred; or 

(E) By any other person against an adult or youth victim who is protected from 

that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred. 

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

Sexual Assault: An offense that meets the definition of rape, fondling, incest, or 

statutory rape as used in the FBI’s Uniform Crime Reporting (UCR) program. Per 

the National Incident-Based Reporting System User Manual from the FBI UCR Program, A sex offense is ‘‘any sexual act directed against another person, without the 

consent of the victim, including instances where the victim is incapable of giving 

consent.’’ 

• Rape: The penetration, no matter how slight, of the vagina or anus with any 

body part or object, or oral penetration by a sex organ of another person, without 

the consent of the victim. 

• Fondling: The touching of the private parts of another person for the purpose 

of sexual gratification, without the consent of the victim, including instances where 

the victim is incapable of giving consent because of his/her age or because of his/ 

her temporary or permanent mental incapacity. 

• Incest: Sexual intercourse between persons who are related to each other within 

the degrees wherein marriage is prohibited by law. 

• Statutory Rape: Sexual intercourse with a person who is under the statutory 

age of consent. 

70. The definition (from VAWA) of stalking. 

Stalking: 

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

a reasonable person to— 

(A) Fear for the person’s safety or the safety of others; or 

(B) Suffer substantial emotional distress. 

ii. For the purposes of this definition— 

(A) Course of conduct means two or more acts, including, but not limited to, acts 

which the stalker directly, indirectly, or through third parties, by any action, 

method, device, or means follows, monitors, observes, surveils, threatens, or 

communicates to or about, a person, or interferes with a person’s property. 

(B) Reasonable person means a reasonable person under similar circumstances 

and with similar identities to the victim. 

(C) Substantial emotional distress means significant mental suffering or anguish 

that may, but does not necessarily, require medical or other professional 

treatment or counseling. 

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

a. dating violence, 

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b. domestic violence, 

c. sexual assault, and 

d. stalking. 

72. The definition of consent, in reference to sexual activity, in the applicable jurisdiction. 

73. A description of safe and positive options for bystander intervention; (Bystander intervention means safe and positive options that may be carried out by an 

individual or individuals to prevent harm or intervene when there is a risk of dating 

violence, domestic violence, sexual assault or stalking. Bystander intervention includes recognizing situations of potential harm, understanding institutional structures and cultural conditions that facilitate violence, overcoming barriers to intervening, identifying safe and effective intervention options, and taking action to intervene). 

74. Information on risk reduction (Risk reduction means options designed to decrease perpetration and bystander inaction, and to increase empowerment for victims 

in order to promote safety and to help individuals and communities address conditions that facilitate violence). 

75. A statement of policy that addresses the institution’s programs to prevent dating violence, domestic violence, stalking and sexual assault. The statement must include: (Programs to prevent dating violence, domestic violence, sexual assault, and 

stalking means comprehensive, intentional, and integrated programming, initiatives, 

strategies, and campaigns intended to end dating violence, domestic violence, sexual 

assault, and stalking that— 

(A) Are culturally relevant, inclusive of diverse communities and identities, sustainable, responsive to community needs, and informed by research or assessed for value, effectiveness, or outcome; and 

(B) Consider environmental risk and protective factors as they occur on the individual, relationship, institutional, community, and societal levels. 

Programs to prevent dating violence, domestic violence, sexual assault, and stalking include both primary prevention and awareness programs directed at incoming 

students and new employees and ongoing prevention and awareness campaigns directed at students and employees). 

76. A description of the institution’s primary prevention and awareness programs 

for all incoming students and employees, which must include: 

77. A statement that the institution of higher education prohibits the crimes of 

domestic violence, dating violence, sexual assault, and stalking; 

78. The definition (from VAWA) of dating violence, domestic violence, sexual assault and stalking; 

79. The definition of ‘‘dating violence,’’ ‘‘domestic violence,’’ ‘‘sexual assault,’’ and 

‘‘stalking’’ in the applicable jurisdiction; 

80. The definition of consent, in reference to sexual activity, in the applicable jurisdiction; 

81. A description of safe and positive options for bystander intervention; 

82. Information on risk reduction; and 

83. The information described in paragraphs (b)(11) and (k)(2) of the Clery Act 

regulations (these references pertain to the applicable sections in the final regulations. (b)(11) is the statement of policy regarding the institution’s programs to prevent 

dating violence, domestic violence, sexual assault, and stalking and of procedures 

that the institution will follow when one of these crimes is reported. (k)(2) pertains 

to the procedural requirements for institutional disciplinary action in cases of alleged 

dating violence, domestic violence, sexual assault, and stalking). 

84. A description of the institution’s ongoing prevention and awareness campaigns 

for students and employees, including information described in including information described in paragraph (j)(1)(i)(A) through (F) of the final regulations (i.e., includes the red text above). (Ongoing prevention and awareness campaigns means programming, initiatives, and strategies that are sustained over time and focus on increasing understanding of topics relevant to and skills for addressing dating violence, domestic violence, sexual assault, and stalking, using a range of strategies with 

audiences throughout the institution). 

85. A statement of policy regarding the institution’s programs to prevent dating 

violence, domestic violence, sexual assault, and stalking, as defined in paragraph (a) 

of this section. The statement must include the procedures that the institution will 

follow when one of these crimes is reported. 

86. Procedures victims should follow if a crime of domestic violence, dating violence, sexual assault, or stalking has occurred, including written information about— 

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87. The importance of preserving evidence that may assist in proving that the alleged criminal offense occurred or may be helpful in obtaining a protection order; 

88. How and to whom the alleged offense should be reported; (indicate that it can 

be reported to the title IX coordinator); 

89. Options about the involvement of law enforcement and campus authorities, including notification of the victim’s option to—Notify proper law enforcement authorities, including on-campus and local police; 

90. Options about the involvement of law enforcement and campus authorities, including notification of the victim’s option to—Be assisted by campus authorities in 

notifying law enforcement authorities if the victim so chooses; 

91. Options about the involvement of law enforcement and campus authorities, including notification of the victim’s option to—Decline to notify such authorities; and 

92. Where applicable, the rights of victims and the institution’s responsibilities regarding orders of protection, ‘‘no contact’’ orders, restraining orders or similar lawful 

orders issued by a criminal, civil, or tribal court or by the institution. 

93. A statement that, when a student or employee reports to the institution that 

the student or employee has been a victim of dating violence, domestic violence, sexual assault, or stalking, whether the offense occurred on or off campus, the institution will provide the student or employee with a written explanation of the student 

or employee’s rights and options, as described in paragraphs (b)(11)(ii) through (vi) 

of this section (these sections of the final regulations include the procedures victims 

should follow if a crime of dating violence, domestic violence, sexual assault or stalking has occurred; information about how the institution will protect the confidentiality of victims and other necessary parties; a statement that the institution will 

provide written notification to students and employees about victim services within 

the institution and in the community; a statement regarding the institution’s provisions about options for, available assistance in, and how to request accommodations 

and protective measures; and an explanation of the procedures for institutional disciplinary action). 

94. A statement that the institution will provide written notification of victims 

about options for, available assistance in, and how to request changes to academic, 

living, transportation, and working situations or protective measures. The institution must make such accommodations or provide such protective measures if they 

are reasonably available, regardless of whether the victim chooses to report the 

crime to campus police or local law enforcement. 

95. A statement that the institution will provide written notification to students 

and employees about existing resources available for victims within the institution: 

a. counseling, 

b. health, 

c. mental health, 

d. victim advocacy, 

e. legal assistance, 

f. visa, 

g. immigration assistance, 

h. student financial aid, and 

i. other services available for victims. 

96. A statement that the institution will provide written notification to students 

and employees about existing resources available for victims within the larger community: 

a. counseling, 

b. health, 

c. mental health, 

d. victim advocacy, 

e. legal assistance, 

f. visa, 

g. immigration assistance, 

h. student financial aid, and 

i. other services available for victims. 

97. A statement of policy regarding the institution’s programs to prevent dating 

violence, domestic violence, sexual assault, and stalking, as defined in paragraph (a) 

of this section, and of procedures that the institution will follow when one of these 

crimes is reported. The statement must include—Information about how the institution will protect the confidentiality of victims and other necessary parties, including 

how the institution will— 

98. Complete publicly available recordkeeping, including Clery Act reporting and 

disclosures, without the inclusion of personally identifying information about the 

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victim, as defined in section 40002(a)(20) of the Violence Against Women Act of 1994 

(42 U.S.C. 13925(a)(20)); and 

99. Maintain as confidential any accommodations or protective measures provided 

to the victim, to the extent that maintaining such confidentiality would not impair 

the ability of the institution to provide the accommodations or protective measures. 

100. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that (2) Provides that the 

proceedings will—Include a prompt, fair, and impartial process from the initial investigation to the final result; A prompt, fair, and impartial proceeding includes a 

proceeding that is— 

(A) Completed within reasonably prompt timeframes designated by an institution’s 

policy, including a process that allows for the extension of timeframes for good cause 

with written notice to the accuser and the accused of the delay and the reason for 

the delay; 

(B) Conducted in a manner that: 

(1) Is consistent with the institution’s policies and transparent to the accuser and 

accused; 

(2) Includes timely notice of meetings at which the accuser or accused, or both, 

may be present; 

(3) Provides timely and equal access to the accuser, the accused, and appropriate 

officials to any information that will be used during informal and formal disciplinary meetings and hearings; and 

(C) Conducted by officials who do not have a conflict of interest or bias for or 

against the accuser or the accused. 

101. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that (2) Provides that the 

proceedings will—Be conducted by officials who, at a minimum, receive annual 

training on the issues related to dating violence, domestic violence, sexual assault, 

and stalking and on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability; 

102. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that (2) Provides that the 

proceedings will—Provide the accuser and the accused with the same opportunities 

to have others present during any institutional disciplinary proceeding, including the 

opportunity to be accompanied to any related meeting or proceeding by an advisor 

of their choice. (Advisor means any individual who provides the accuser or accused 

support, guidance, or advice.) 

103. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that (2) Provides that the 

proceedings will—Not limit the choice of advisor or presence for either the accuser 

or the accused in any meeting or institutional disciplinary proceeding; however, the 

institution may establish restrictions regarding the extent to which the advisor may 

participate in the proceedings, as long as the restrictions apply equally to both parties. 

104. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that (2) Provides that the 

proceedings will—Require simultaneous notification, in writing, to both the accuser 

and the accused, of—The result of any institutional disciplinary proceeding that 

arises from an allegation of dating violence, domestic violence, sexual assault, or 

stalking; (Result means any initial, interim, and final decision by any official or entity authorized to resolve disciplinary matters within the institution. The result must 

include any sanctions imposed by the institution. Notwithstanding section 444 of the 

General Education Provisions Act (20 U.S.C.1232g), commonly referred to as the 

Family Educational Rights and Privacy Act (FERPA), the result must also include 

the rationale for the result and the sanctions.) 

105. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that (2) Provides that the 

proceedings will—Require simultaneous notification, in writing, to both the accuser 

and the accused, of—The institution’s procedures for the accused and the victim to 

appeal the result of the institutional disciplinary proceeding, if such procedures are 

available. 

106. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that (2) Provides that the 

proceedings will—Require simultaneous notification, in writing, to both the accuser 

and the accused, of—Any change to the result. 

107. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that (2) Provides that the 

149 

proceedings will—Require simultaneous notification, in writing, to both the accuser 

and the accused, of—When such results become final. 

108. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that—Describes each type 

of disciplinary proceeding used by the institution to include: 

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

stalking. (Proceeding means all activities related to a non-criminal resolution of an 

institutional disciplinary complaint, including, but not limited to, fact finding investigations, formal or informal meetings, and hearings. Proceeding does not include 

communications and meetings between officials and victims concerning accommodations or protective measures to be provided to a victim.) 

109. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that—Describes the standard of evidence that will be used during any institutional disciplinary proceeding 

arising from an allegation of dating violence, domestic violence, sexual assault, or 

stalking. 

110. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that—Lists all possible 

sanctions that the institution may impose following the results of an institutional disciplinary procedure for an allegation of dating violence, domestic violence, sexual assault, or stalking. 111. Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking . . . that—Describes the range 

of protective measures that such institution may offer to the victim following an allegation of dating violence, domestic violence, sexual assault, or stalking. 

RESPONSE BY MOLLIE BENZ-FLOUNLACKER TO QUESTIONS OF SENATOR ALEXANDER, 

SENATOR HATCH, SENATOR MURKOWSKI, SENATOR WHITEHOUSE AND SENATOR CASEY

SENATOR ALEXANDER

Question 1. Do you have specific suggestions about how Title IX and the Clery 

Act, including their implementing regulations and guidance, can be improved and/ 

or clarified to provide institutions of higher education the flexibility they need? 

Are there areas where these laws, regulations, or guidance conflict? 

Are there areas where they are duplicative? 

Answer 1. We appreciate the opportunity to work with Congress to provide greater clarity about the intersection between the Clery Act, Title IX, and proposed CASA 

provisions. While Title IX and the Clery Act are not necessarily contradictory, there 

are some areas of overlap that should be taken into account when crafting CASA 

or other legislation that affects one or both laws. For example, the Violence Against 

Women Act (VAWA) amendments to the Clery Act established parameters around 

institutional policies for campus disciplinary processes, and these types of policies 

are also addressed in detailed guidance from the U.S. Department of Education’s Office of Civil Rights (OCR) regarding title IX implementation. Although the Clery Act 

states that the Secretary does not have authority to mandate specific policies under 

the Act, OCR title IX guidance does require specific types of disciplinary policies to 

be in place. Requirements to report instances of sexual assault are also addressed 

in both the Clery Act and OCR guidance on title IX. 

CASA or any new legislation should take great care to not create further areas 

of overlap or confusion. There are cases when slightly different roles, responsibilities, and policies among the statutes, regulations, and guidance are appropriate to 

protect students and/or to distinguish between criminal and other acts. For example, 

the CASA concept of an individual to help students report sexual assaults and obtain accommodations might be the same person as the title IX coordinator, or it 

might be a different employee, based on the best judgment of an institution of higher education. However, these differences and areas of overlap must be carefully 

thought through and coordinated in statute, regulations, and guidance to ensure an 

efficient, cohesive system that reduces confusion for students, families, and institutions working to comply with the various Federal laws and requirements. 

AAU and the broader higher education community are in the process of identifying other specific areas of conflict or duplication to inform the legislative process, 

including recommendations for solutions. 

150 

We do not think that the current provision in CASA requiring OCR and the Office 

of Postsecondary Education to issue guidance within 6 months on how the laws 

interact will be helpful. This is, in part, because there is no requirement that colleges or universities or advocacy groups would be consulted as part of the effort, and 

the 6-month deadline does not allow enough time for this complex task. We believe 

the Department should be required to conduct a negotiated rulemaking process to 

identify issues and seek workable solutions. 

Question 2. Do you have suggestions about how institutions of higher education 

can best coordinate with law enforcement without turning the institutions into de 

facto law enforcement agencies? 

Answer 2. Colleges want State and local law enforcement agencies to be involved 

in dealing with crimes on campus including incidents of sexual violence, while also 

honoring the victims’ wishes. 

Memoranda of Understanding (MOUs) can be very useful tools for improving coordination and establishing procedures for responding to and handling reports of 

sexual assault. Many colleges already have, or are in the process of developing, 

MOUs. Some State laws also require colleges to develop MOUs. The current content 

requirements in CASA for an MOU are too prescriptive; colleges need more flexibility to better protect their students. MOUs are probably most helpful when they 

include general protocols for responding to and handling reports of sexual assault, 

including, for example, clarifications of each agency or department’s responsibilities 

under Federal, State or local laws and policies, and provisions to ensure that responding local law enforcement may notify an alleged victim of sexual assault of the 

existence of university resources required by this section, where such responder has 

reason to know or believe that a student is involved. 

Question 3. Do you have suggestions about what we can do, or not do, to make 

sure colleges establish procedures dealing with allegations of sexual assault that are 

fair and protect the due process rights of the accuser and the accused? 

Answer 3. We support giving higher education institutions the resources they 

need to conduct prompt, fair, and impartial campus processes, as is currently required by the Clery Act. Institutions have responsibilities to both parties involved 

in any given case. At a minimum, Congress should ensure that CASA does not include language that contradicts current Federal law, particularly with respect to additional training techniques, and to ensure these techniques are fair to both parties 

involved in a given case. Any written notice of institutional disciplinary processes 

and determination should include information about the rights and protections 

available to both parties under institutional policy and current law. 

SENATOR HATCH

Question 1. We have heard from several community colleges in Utah regarding 

the ‘‘confidential advisor’’ aspect of the CASA bill. They are concerned about the 

undue burden that might arise by tying the number of advisors to the number of 

students. On average, non-residential campuses, like community colleges, have 

fewer incidents of sexual assault cases reported than residential campuses. Because 

the numbers of incidents vary based on the type of institution, should we tie the 

number of advisers for a campus based on the number of incidents reported, rather 

than student body? 

Answer 1. We strongly support giving survivors of sexual assault access to a confidential advisor whose sole responsibility is to counsel and support the victim. Colleges should have responsibility for identifying a reasonable number of advisors 

based on an assessment of institutional needs. There is no precedent, nor is there 

any need, for the Department of Education to specify how many employees colleges 

must have for a particular job category, as required in CASA. Those decisions are 

best made by campus leaders and administrators. 

Question 2. There is a clear conflict of interest inherent in the confidential advisor 

role, since that person is employed by an institution of higher education and has 

certain reporting responsibilities under the Clery Act, as Senator Collins has pointed out. I would be interested in learning if there were other, non-affiliated resources 

available to students that may more appropriately play a confidential and/or counseling role, and if this would be a suitable use for funds generated by the fines. 

Answer 2. We agree that requiring the confidential advisor to report cases of sexual assault is highly problematic and recommend that Congress eliminate this requirement from the advisor’s set of responsibilities. Instead, similar to personnel at 

a campus counseling center or other mental health services provider, the main role 

of the confidential advisor should be that of a counselor, who retains the same comVerDate Nov 24 2008 15:20 Oct 06, 2017 Jkt 000000 PO 00000 Frm 00154 Fmt 6633 Sfmt 6621 S:\DOCS\95801.TXT CAROL
151 

mitment to confidentiality as similar professionals under ethics codes and local, 

State, and Federal laws. The confidential advisor should be trained to refer students 

to other persons or entities on campus for reporting or accommodation purposes. 

The confidential advisor might be an employee of the university or a trained professional from a non-affiliated community resource, such as a crisis counseling center. 

At the same time, the duty to report instances of sexual assault and provide accommodations to survivors is also critical. Students should be informed about who 

holds the responsibility to report or investigate these instances. Colleges are required under title IX to track and report accommodations provided in response to 

sexual assault, which directly conflicts with the CASA requirement that an accommodation shall not trigger an investigation by the school. 

For many schools, they typically believe that if they are making accommodations 

for a student, it is sufficient to warrant an investigation. Instead of creating a confusing conflict for both students and counselors, we recommend a bright-line rule 

between individuals serving in the confidential advisor’s counseling role and those 

individuals responsible for reporting instances of assault and liaising to provide accommodations. 

Question 3. Some non-residential and online institutions in Utah have expressed 

a concern about the practicality of the 24 hours notice, as stated in the CASA bill. 

I am interested to know how feasible this timeline is, and if there is a more practicable timeline? 

Answer 3. Colleges take very seriously their responsibilities to survivors of sexual 

assault. The legislation creates new 24-hour requirements for institutions to notify 

both the accuser and accused of campus disciplinary decisions and outcomes in proceedings for sexual violence. While we believe colleges should make every effort to 

inform both parties promptly, this short timeframe may be unrealistic in certain circumstances and is likely to lead to unintended and negative consequences for students. A temporary delay also may be necessary to protect a student in fragile circumstances following a traumatic event. In most cases, these notices would require 

legal review, thereby requiring additional time. We believe colleges should be given 

greater flexibility, perhaps a 3-day period with flexibility beyond that time window 

given for extenuating circumstances. 

SENATOR MURKOWSKI

Question 1. The Campus Accountability and Safety Act (CASA) would require an 

institution to provide a confidential advisor to an assault victim. This is intended 

to provide support and resources to the victim in a way that will provide the victim 

with a sense of safety and control, which is laudatory. I am concerned, however, 

about provisions in CASA that specifically state a confidential advisor is not obligated to report crimes to the institution and that any requests for accommodation 

the Advisor makes on behalf of a student ‘‘shall not trigger an investigation by the 

institution.’’ These provisions seem to conflict with institutions’ moral and legal obligation under title IX to ensure that a campus is safe for all students. Keeping information about a crime secret and prohibiting an investigation could lead to an increased risk for other students as well as lead to liability for the institution should 

the perpetrator harm additional students. What changes do you recommend, to 

CASA, Title IX, or both, to reconcile this conflict? 

Answer 1. Similar to personnel at campus counseling centers or other mental 

health services providers, the main role of the confidential advisor should be that 

of a counselor, who retains the same commitment to confidentiality as similar professionals under ethics codes and local, State, and Federal laws. This confidential 

advisor should be trained to refer students to the appropriate persons or entities on 

campus for reporting an assault or for accommodations purposes. We believe that 

requiring the confidential advisor to report cases of sexual assault is highly problematic for confidentiality purposes under title IX obligations, and we strongly recommend that it be eliminated. 

At the same time, the duty to report instances of sexual assault and provide accommodations to survivors is critical; and students should be informed about who 

holds the responsibility to report or investigate these instances. Colleges are required under title IX to track and report accommodations provided in response to 

sexual assault, which directly conflicts with the CASA requirement that an accommodation shall not trigger an investigation by the school. 

For many schools, they typically believe that if they are making accommodations 

for a student it is sufficient to warrant an investigation. Instead of creating a confusing conflict for both students and counselors, we recommend a bright-line rule 

between individuals serving in the confidential advisor’s counseling role and those 

152 

individuals responsible for reporting instances of assault and liaising to provide accommodations. 

Question 2. Experts consulted by the University of Alaska have consistently stated 

that the best way to get absolutely accurate results on a campus survey about sexual assault is to assure absolute confidentiality and to prohibit publishing the results. This promotes higher response rates and allows the institution to respond to 

gaps, concerns, and problems in campus safety issues. CASA advocates suggest that 

a homogenous survey, the results of which are published, will assist the consumer 

in making educated choices. Data suggests that few prospective students, their families, or enrolled students review campus crime statistics. Do you agree that the 

campus surveys should be used for institutional improvement of policies and practices rather than as a consumer tool? Why or why not? Do you recommend that if 

institutions are required to use a survey developed by the Department that individual institutions should be able to delete questions that are locally or culturally 

inappropriate? Should there be two surveys—one developed by the Department of 

Education and used as a consumer tool and one developed by an institution and 

used only to improve internal practices and policies? 

Answer 2. We agree that the campus survey should be designed first and foremost 

as a research-based tool to help schools better understand the attitudes and experiences of their students with respect to sexual assault and inform campus policies 

and procedures going forward. We also think that survey data can be useful to Federal policymakers as they consider legislative and administrative responses, as well 

as provide researchers with new data as they continue to study this complex issue. 

Schools should share survey results with their students, in the spirit of transparency. 

We have serious concerns with the requirement for the Secretary of Education, 

as outlined in CASA, to develop a single survey instrument without the input of 

higher education experts for use at all colleges. It is unclear in CASA how the Department of Education plans to gather, publicly release, and provide college to college comparisons from the survey results. We believe that a campus-controlled (either directly or contractually administered) survey is most helpful for colleges in designing questions that fit their unique campus culture and, to the extent possible, 

in maximizing their student participation rates. 

Question 3. CASA requires that institutions develop Memorandums of Understanding with each law enforcement agency that has jurisdiction. Many institutions, 

including public and private institutions, have developed significant e-learning opportunities for their students who may never attend classes on campus. This CASA 

requirement is viewed by those institutions, therefore, as fatally vague and unworkable. Do you agree, if so, do you have suggestions for addressing this concern? 

Answer 3. We believe any requirements related to MOUs should refer to those 

agencies that, by policy or practice, may reasonably be expected to have primary jurisdiction to respond to a report of sexual assault from an enrolled student of an 

institution. 

Question 4. Several witnesses spoke to the complexity of compliance with Clery 

and Title IX. Adoption of the CASA provisions would add additional requirements 

and complexity. Looking at the issue of campus safety as a whole, would you recommend that the committee completely re-write institutional responsibilities across 

Clery, Title IX, VAWA, and CASA in order to reduce complexity, increase crime reporting and transparency, and provide for the rights of all students to a safe campus 

on which to gain an education? If so, what specific suggestions do you have for the 

committee? 

Answer 4. We appreciate the opportunity to work with Congress to provide greater clarity about the intersection between the Clery Act, Title IX, and proposed CASA 

provisions. While Title IX and the Clery Act are not necessarily contradictory, there 

are some areas of overlap that should be taken into account when crafting CASA 

or other language. For example, the VAWA amendments to the Clery Act established parameters around institutional policies for campus disciplinary processes, 

and these types of policies are also addressed in detailed guidance from OCR regarding title IX implementation. Although the Clery Act states that the Secretary 

does not have authority to mandate specific policies under the Act, OCR title IX 

guidance does require specific types of disciplinary policies to be in place. Requirements to report instances of sexual assault are also addressed in both the Clery Act 

and OCR guidance on title IX. 

CASA or any new legislation should take great care to not create further areas 

of overlap or confusion. There are cases when slightly different roles, responsibilities, and policies among the statutes, regulations, and guidance are appropriate to 

153 

protect students and/or to distinguish between criminal and other acts. For example, 

the CASA concept of an individual to help students report sexual assaults and obtain accommodations might be the same person as the title IX coordinator, or it 

might be a different employee, based on the best judgment of an institution of higher education. However, these differences and areas of overlap must be carefully 

thought through and coordinated in statute, regulations, and guidance to ensure an 

efficient, cohesive system that reduces confusion for students, families, and institutions working to comply with the various Federal laws and requirements. 

AAU and the broader higher education community are in the process of identifying other specific areas of conflict or duplication to inform the legislative process, 

including recommendations for solutions. 

We do not think that the current provision in CASA requiring OCR and the Office 

of Postsecondary Education to issue guidance within 6 months on how the laws 

interact will be helpful. This is, in part, because there is no requirement that colleges or universities or advocacy groups would be consulted as part of the effort, and 

the 6-month deadline does not allow enough time for this complex task. We believe 

the Department should be required to conduct a negotiated rulemaking process to 

identify issues and seek workable solutions. 

Question 5. I have received concerns from students who have been accused of sexual assault on campus and their parents. They tell me their rights to a fair hearing 

were not respected. Complaints included that as the accused, they were not informed of their rights under the institution’s hearing policies, that the victim was 

provided more robust counsel by the university, and that they were denied the right 

to question their accuser and witnesses. CASA requires institutions to provide certain information about process to both the victim and the accused but leaves to the 

institution to follow their own policies for conducting investigations and hearings. 

Can this section be improved? Should the committee mandate that institutions follow basic policies and procedures? If so, please provide specific suggestions. 

Answer 5. We support giving schools the resources they need to provide notice of 

and conduct prompt, fair, and impartial campus processes, as is currently required 

by the Clery Act. Colleges have responsibilities to both parties involved in any given 

case. Additionally, recently updated current law—which took effect July 1, 2015— 

already requires prompt notice to both parties at decision points throughout the disciplinary process. At a minimum, Congress should ensure that CASA does not include language that creates confusion by contradicting current law. We do not support mandating specific procedures for disciplinary proceedings because there is no 

one-size-fits-all model that works for all schools. 

SENATOR WHITEHOUSE

Question 1. In the context of campus sexual assault, campus investigations and 

law enforcement investigations can sometimes work at cross purposes. How can we 

disentangle the campus and law enforcement investigations so that one does not impede the other? 

Answer 1. Colleges are open to working with local law enforcement and ensuring 

that processes don’t impede one another. CASA can help foster a more collaborative 

context by focusing primarily on sexual assault (i.e., criminal offenses) when it 

comes to interactions with local law enforcement so that definitions, roles, and responsibilities are better aligned between institutions of higher education and local 

law enforcement. 

Question 2. In the context of domestic violence, law enforcement officers have become better qualified to address the needs of victims by drawing on the expertise 

of advocacy groups and experts. How can we best support the law enforcement community so that officers are similarly well-trained to assist survivors of campus sexual assault? 

Answer 2. Colleges are committed to ensuring that their employees have the information and tools they need to assist survivors of campus sexual assault and to provide prompt, fair, and impartial campus disciplinary processes. We are committed 

to collaboration with our colleagues in the law enforcement community to ensure 

that campuses are safe for students. 

Question 3. Many survivors fear that they may lose control over campus sexual 

assault proceedings if law enforcement gets involved early. What can we do to inform students about the course of a law enforcement investigation, so they can make 

an informed choice about how to proceed? 

154 

Answer 3. It should be the role of the confidential advisor to inform the survivor 

about college reporting processes, how to file an official police report, and available 

on-and off-campus resources. 

These resources should include information specific to the local law enforcement 

in the jurisdiction. It should then be up to the survivor to decide how best to proceed. 

Question 4. Absent the concern of loss of control (perceived or otherwise) by the 

survivor, are there reasons that experienced, trauma-informed, sensitive, effective 

law enforcement should not be involved at early stages of an investigation? 

Answer 4. The survivor should decide when and how to proceed with local law 

enforcement. Colleges welcome State and local law enforcement agency involvement 

in dealing with crimes on campus, if supported by the survivor. However, we do not 

support legislation mandating that colleges hold off on any campus investigation 

pending an outside criminal investigation. 

SENATOR CASEY

Question 1. In your testimony, you talk about the sexual assault climate survey 

that AAU contracted with Westat to do. You worked with a number of experts and 

institutional stakeholders to design the survey instrument. Did you, at any point in 

this process, consult with students, survivors or victims? advocates about the design 

of the survey instrument and what information they would find helpful? If not, how 

might that have affected the usefulness and validity of the survey? 

Answer 1. The development process for the survey instrument was extensive. The 

survey design team received more than 700 comments about the survey from participating institutions during the development period. In addition, college students 

provided feedback through two rounds of cognitive testing conducted at Westat and 

pilot administration groups conducted at four participating colleges, which included 

survivor and victims? advocates. 

Question 2. One of the comments I have heard on multiple occasions from institutions is that it is important to remember that not all institutions are the same: the 

institutions covered by title IV (the Federal financial aid title) of the Higher Education Act are extremely diverse, from large, multi-institution State systems to 

small liberal arts colleges; community colleges with commuter populations; and very 

small technical schools that may only have a couple of classrooms. Do you believe 

that the policies currently contained in the statutory text of the Clery Act include 

sufficient flexibility for different types of institutions of higher education? 

Answer 2. N/A. 

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

Æ