Public Hearing - 9/26/2017 

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DEPARTMENT OF EDUCATION 

PUBLIC HEARING

SEPTEMBER 26, 2017

On the 26th day of September, 2017, the 

following public hearing was held at Salt Lake Community 

College - Miller Campus, Karen Gail Miller Conference 

Room, 9750 S. 300 West, Sandy, Utah, 84070, from 9:00 

a.m. to 4:00 p.m., before Teri Hansen Cronenwett, 

Certified Realtime Reporter, Registered Merit Reporter, 

and Certified Shorthand Reporter in the state of Utah.
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1 P R O C E E D I N G S

2 MR. BRICKMAN: Good morning everyone. Thank

3 you for being here. My name is Michael Brickman. I'm a

4 special assistant in the U.S. Department of Education's

5 Office of Postsecondary Education. I am pleased to

6 welcome you to this public hearing, and I am joined at

7 the table by Lynn Mahaffie, who is the Deputy A ssistant

8 Secretary for Policy, Planning and Innovation in the

9 Office of Postsecondary Education.

10 This is the first of two hearings that we are

11 convening to seek public input on postsecondary

12 regulations and guidance that may be appropriate for

13 repeal, replacement or modification, including

14 regulations and guidance relating to federal student aid

15 program and discretionary grant programs. The other

16 opportunity to provide public comment is October 4th,

17 2017, at the Department's headquarters in Washington.

18 These hearings supplement other efforts to

19 implement Executive Order 13777 entitled, "Enforcing the

20 Regulatory Reform Agenda," and signed by President Trump

21 on February 24th, 2017. This order established a

22 federal policy to alleviate unnecessary regulatory

23 burdens on the American public and directs all federal

24 agencies to establish a Regulatory Reform Task force to

25 evaluate existing regulations and make recommendations
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1 to the agency head regarding the repeal, replacement or

2 modification.

3 The Task Force is also tasked with attempting

4 to identify regulations that eliminate jobs or inhibit

5 job creation; are outdated and unnecessary or

6 ineffective; impose costs that exceed benefits; create a

7 serious inconsistency or otherwise interfere with

8 regulatory reform initiatives and policies; rely in

9 whole or part on information that is not publicly

10 available; or derive from or implement executive orders

11 or other presidential directives that have been

12 subsequently rescinded or substantially modified.

13 Furthermore, the Task Force is directed to seek

14 input and assistant from affected entities. To that end

15 the Department has previously solicited written comments

16 from the public to help inform the Task Force's

17 evaluation of all of the Department's existing

18 regulations and guidance. Today we appreciate the

19 opportunity to hear in person your suggestions for

20 achieving these objectives.

21 The Department began work on reducing

22 postsecondary regulatory burden by establishing two

23 negotiated rulemaking committees to develop proposed

24 regulations to revise the gainful employment regulations

25 and to revise the regulations on borrower defenses to
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1 repayment of federal student loans and other matters.

2 The borrower defense negotiating committee will

3 begin negotiations in November of 2017, and the gainful

4 employment negotiating committee will begin negotiations

5 in December of 2017. As a reminder, the deadline for

6 nominations for negotiators to serve on these committees

7 is this Friday, September 29th, 2017, and we look

8 forward to working with your respective communities on

9 these efforts.

10 Thank you for being here today and for

11 dedicating your time and expertise to this very

12 important process. Your perspectives are important to

13 the success of this work. As to the logistics of this

14 hearing, many of you have already signed up for times to

15 speak, and we will be calling your names at the

16 appropriate time. We have many time slots left today.

17 If you have not signed up and would like to speak,

18 please come to the table and see our ED staff. We would

19 be happy to give you a time slot.

20 Please note that this hearing is being

21 transcribed, and transcription will be posted to our

22 website in the next few weeks. Also this is a public

23 hearing, so please be aware there may also be people in

24 the audience who are videotaping or audio taping. We

25 welcome your written comments as well. If you have
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1 comments here today that you would like to submit, you

2 can hand them to me or to our ED staff at the front

3 desk.

4 We have three scheduled breaks: One this

5 morning from 10:30 to 10:40, a lunch break 12:00 to

6 1:00, and a break in the afternoon from 12:30 -- I'm

7 sorry, from 2:30 to 2:40. If we don't have speakers

8 scheduled, those breaks may be extended at our

9 discretion.

10 We ask that you silence your cell phones while

11 in the room. You are welcome to use cell phones in the

12 lobby however. If you need any assistance, please speak

13 with ED staff at the front desk, and when you are called

14 to speak, please begin by sharing your name, and if you

15 are representing an organization, the name of that

16 organization. Thank you again for your participation in

17 this important effort. We look forward to hearing your

18 comments.

19 And with that we can start with the first

20 speaker, and just an apology ahead of time if I

21 mispronounce anyone's name. The first speaker scheduled

22 is Whitney Barkley-Denney for the Center for Responsible

23 Lending. Is Whitney here?

24

25

(No

MR.

response.)

BRICKMAN: All right. Well, if Whitney
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1 joins us, she is welcome to speak. Next is Stephen

2 Graham with the Law Office of Stephen Graham.

3 MR. GRAHAM: Good morning. Thank you. My name

4 is Stephen Graham. I'm an attorney from Spokane,

5 Washington. We're a smaller law firm that does a lot of

6 representation for students on university campuses on

7 sexual assault allegations but also general disciplinary

8 matters, academic integrity.

9 So to tell you a little bit about my

10 background, I have been an attorney for about 22 years.

11 I first worked as a prosecutor for a number of years.

12 When I went into private practice, the idea of, you

13 know, working on these sexual assault cases at first

14 kind of seemed like something I wasn't necessarily

15 interested in.

16 And I kind of came upon this work by accident.

17 We would represent somebody, go to one of these hearings

18 with them, see if we could help, and I was really

19 shocked at the level of due process or the lack of due

20 process that existed on college campuses. We're taught

21 in law school that the level of due process that you

22 would receive would kind of scale depending on the

23 significance of the liberty interest.

24 And on college campuses, we had these young men

25 and women who were facing expulsion, and they would get
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1 little more due process than they would get for a

2 parking ticket or speeding ticket. And when somebody is

3 kicked out of school, it's a real hardship for them.

4 They or their parents have spent, you know, a hundred

5 thousand dollars or more for this education. And if

6 they are wrongfully kicked out, they never finish that

7 degree. It's hard to get into any other school if their

8 transcript has been marked.

9 And the level of due process, the hearing that

10 we have, just really doesn't meet or match that sort of

11 importance.

12 A lot of college professors, even if they are

13 well intended, really struggle to play the part of a

14 judge. It's not easy for them to do. And even after

15 they have been doing it a number of years and receive

16 training, they make a lot of mistakes. You know, they

17 don't allow people to speak on certain subjects. You

18 know, it's a minimal part of due process, the right to

19 be heard. You know, they don't maintain the proper

20 records.

21 We have been involved in the court system

22 against Washington State University in Washington state,

23 and they have really struggled in the last few years, so

24 much that in Washington state, the courts have said,

25 "Okay. No more." And we now have administrative law
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1 judges doing the expulsion cases in Washington state,

2 which really works well.

3 You know, the problem, you know, we really have

4 is when the schools want to go forward when the police

5 aren't done with their investigation. The police are

6 the ones that are, you know, testing for DNA. They have

7 all of the witness statements. A lot of times in

8 Washington they have video recorded interviews of the

9 witnesses. It's hard to obtain any of those records

10 while the investigation is going.

11 And we have the -- the schools just want to go

12 forward. They don't want to do any sort of

13 continuances. Under the Dear Colleague letter, they

14 felt mandated to kind of just railroad these cases

15 through without giving proper, you know, accord to the

16 rights of the defendant.

17 The -- you know, I can tell you a lot of

18 anecdotes of the different hearings we have. The -- a

19 lot of times there just seems to be an incentive built

20 into the system whereas these school officials would

21 just want to -- more interested in covering their back

22 side than in really giving fair due process to either

23 side.

24 We would -- obviously, in higher education a

25 lot of these administrators are extremely well paid. I
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1 know the last president of WSU, when he left, he was

2 paid somewhere 800,000 a year. And a lot of these

3 administrators seem, you know, kind of more focused on

4 their own ambition and doing what's politically

5 expedient rather than what's right for these students,

6 so that's been a real frustrating part.

7 So we, you know, applaud the Department of

8 Education's, you know, reconsideration of that Dear

9 Colleague letter, the new Q and A that they have come up

10 with. Hopefully we'll have some permanent regulations

11 that will mandate more due process, such as the right to

12 have an attorney speak on your behalf, and I think

13 better training, if not trained lawyers making the

14 decisions, law-trained individuals making the decisions.

15 The right to cross-examine in some form the accuser.

16 A lot of times in Washington State University,

17 their idea of a hearing is, well, you can't subpoena the

18 accuser. And then the student disciplinary board

19 doesn't have any subpoena authority. So you can have

20 witnesses if you can, you know, ask them to come. But

21 there's really no way to require that.

22 So their idea of a hearing is, well, we'll just

23 have our investigator parrot back to the decision maker

24 what the accuser told us. And that's it. And we just

25 don't think that that's proper. And so we would
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1 encourage more regulatory, you know, protections on the

2 behalf of the students.

3 I'll leave it at that. I want to thank you for

4 coming out to Salt Lake City and hearing us out in the

5 west.

6 MS. MAHAFFIE: Thank you.

7 MR. BRICKMAN: Next we have Justin --

8 mispronounce this -- Utherdad. Justin?

9 (No response.)

10 MR. BRICKMAN: Next we have Richard Saunders

11 representing himself.

12 MR. SAUNDERS: Yep. If I speak too quickly...

13 That's my second copy.

14 MR. BRICKMAN: Thank you.

15 MR. SAUNDERS: Will you hold me to five

16 minutes? Okay. My name is Dr. Richard Saunders. I

17 have been a higher education faculty member in three

18 U.S. states and am currently an academic dean at one of

19 Utah's public universities, but because my voice at this

20 public hearing represents my own view and neither my

21 employer nor the state, please understand I will not

22 name my affiliation. I speak rather as professional

23 historian who studies American social history, people of

24 the United States and the circumstances that affect

25 them.
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1 I must clearly disagree with the ideological

2 assumptions behind Executive Order 13777 and oppose the

3 proposed reform the administration intends to implement

4 because it steadfastly ignores four historical

5 realities.

6 First, because it ignores the entire history of

7 U.S. education. Several years ago I studied the history

8 of public education as background for a book. States

9 created public education and public colleges after the

10 civil war and then enforced public ed in the school --

11 reinforced public ed in the school consolidation

12 movement of the 20th century.

13 Across the U.S. and largely independently, both

14 steps were replicated in every state. Why? Because

15 unregulated private education had completely failed to

16 prepare an adequately educated work force for its then

17 modern world. A comparatively few individuals did

18 succeed, but functional literacy rates in the U.S. only

19 reached 50 percent of adults in the 19 teens. Education

20 was neither widespread nor uniformly reliable in the

21 U.S. until state and federal governments established and

22 enforced educational standards and credentialing.

23 Second, the rule proposal ignores both the

24 purpose and broad outcome of regulation. The two things

25 the founders feared most deeply were a standing army and
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1 corporations. For a century corporations grew without a

2 check. The entire 19th century unfolded on the premise

3 of nonregulation. As a result, the entire sordid

4 history of the American labor movement is grounded in

5 the fact that U.S. corporations have protected profits

6 and cut costs at the expense of their employees and

7 customers.

8 Corporate colleges have done exactly the same

9 thing in our day. The unrealistic promises and

10 exploitative practices of institutions like Corinthian

11 College and the self-styled Trump University defrauded

12 quite profitably at students' expense without

13 enforceable accountability.

14 From lawful public health ordinances to federal

15 court decisions, government regulations have always,

16 always, been the only force large and strong enough to

17 protect private citizens and hold corporations and

18 powerful private interests to account. Under the

19 constitution interstate commerce clause, only the

20 federal government has the stoke to adequately demand

21 accountability from for-profit institutions operating

22 nationally. Digital platforms make fraudsters slippery,

23 and governments cannot respond adequately at the state

24 or local level.

25 Third, because the country has recently tested
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1 the privatization of education. Privatized local

2 education was tested in Michigan by Betsy DeVos. In her

3 native state Mrs. DeVos demonstrated an admirable

4 commitment to education reform, putting millions of her

5 own dollars into corporate-backed K-12 education. It

6 was a fair experiment that is proven an unmitigated

7 disaster for communities.

8 Investigative reports into Michigan schools

9 demonstrate not only the systematic failure of

10 privatization, but throw into glaring relief the genuine

11 harm done to employees and students under that

12 educational model. Neither the concept she has backed

13 nor the millions of personal dollars she poured into her

14 state have shown even a moderate social return on

15 investment.

16 In fact, if broad-based social improvement is

17 used as a metric, then as a social historian I have to

18 say I cannot find a single successful model of

19 large-scale educational privatization anywhere in the

20 United States. I can find thousands of failed ones,

21 both large and small.

22 Finally I oppose the federal executive's move

23 to legitimate corporatized education at the expense of

24 protecting consumers from predatory institutions because

25 it unambiguously dismisses the constitution itself to
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1 advance an anti-constitution ideology.

2 The administration ignores both the country's

3 mission statement made in the Preamble and the clearly

4 stated charge in Article 1, Section 8. In both places

5 the framers said that the federal government was to

6 specifically promote the general welfare. Corporations

7 were never accepted by the framers as a means to promote

8 the general welfare.

9 In proposing the changes, the nation's

10 executive turns its back on we, the people and the

11 constitution its appointees publicly swore to uphold.

12 To conclude, if the country established public

13 education because broad-based private education failed,

14 if regulation has been the only effective safeguard for

15 the common citizen against the powerful and the corporate,

16 if educational privatization has been fairly tried and

17 has failed, and if the movement is a clear contravention

18 of the constitution itself, then clearly the proposal to

19 delay, weaken or abandon borrower defense and gainful

20 employment rules is not in the public interest.

21 Randy Weingarten spoke for teachers to the

22 Department this past July. She noted that from

23 preschool to graduate school, the students should be our

24 common ground. Their needs and aspirations must trump

25 profit and ideology. As an educator, as a community
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1 member and as a parent, I wholeheartedly agree.

2 The educational future of -- the education of

3 future citizens and Americans consumer base should not

4 be judged or sacrificed on a profit margin. This

5 proposed rule change does not serve the country well.

6 Please do not allow the federal regulations currently in

7 place to be weakened. Thank you for allowing one

8 citizen a direct voice in government.

9 MS. MAHAFFIE: Thank you.

10 MR. BRICKMAN: Thank you. Is there anyone who

11 signed up for a time slot later in the day who would

12 rather speak now? And is there anyone here right now

13 who has not signed up who would like to speak?

14 (No response.)

15 MR. BRICKMAN: All right. Well, we will wait

16 for additional speakers to arrive, and if anybody else

17 would like to speak, please come up here.

18 MS. BARKLEY-DENNEY: Good morning. My name is

19 Whitney Barkley-Denney, and I am senior policy counsel

20 with the Center for Responsible Lending. We are a

21 national nonprofit that works to ensure fair, inclusive

22 financial marketplace that creates opportunities for all

23 responsible borrowers, regardless of their income.

24 Prior to joining the Center for Responsible

25 Lending where I led research and advocacy on student
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1 loan issues, I worked as a staff attorney for a

2 Mississippi's school rights law firm, the Mississippi

3 Center for Justice. In my capacity at MCJ, I was the

4 alternate legal services negotiator for the 2013 Gainful

5 Employment Negotiated Rulemaking and the primary

6 negotiator for legal clearances for 2014 Programmatic

7 Integrity.

8 I am here today to strongly urge the Department

9 to continue to support a commonsense, robust regulatory

10 regime that protects the interest of borrowers and

11 taxpayers. This would include leaving in place rules

12 like the existing gainful employment and borrower

13 defense regulations.

14 The U.S. Department of Education's approval of

15 federal loans dollars is easily interpreted as a Good

16 Housekeeping seal of approval. In the eyes of students

17 and taxpayers, if the U.S. Department of Education is

18 allowing federal dollars, taxpayer money to be sent to a

19 school, that is an indication that the Department is at

20 the very least subjecting them to evaluations that

21 ensure that they're meeting their objectives and

22 adequately training students in their field of study.

23 This is especially important in training and

24 technical programs where students are seeking specific

25 and discrete employment.
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1 We have seen what happens when the Department

2 fails to adequately regulate them. We can recite the

3 names and the stories by heart. Corinthian Colleges,

4 ITT, FastTrain, Marinello School of Beauty. These

5 schools were finally closed but only after years of

6 allegation of predatory behavior, terrible student

7 outcomes, and disproportionate borrower defaults. The

8 enforcement actions that led to their closure were, for

9 too many American families, too little too late. And

10 now this Department of Education is proposing rolling

11 back even those protections.

12 In August the Charlotte School of Law was added

13 to this inglorious roster, a school that had been dogged

14 for years by sky high tuition, dismal bar passage rates,

15 and low student placement percentages. And they were

16 closed only because the State of North Carolina stepped

17 in to protect their own students from this failed

18 institution.

19 In fact, just two weeks before their closure,

20 Charlotte School of Law announced to the press and

21 former students that a deal with the Department of

22 Education to restore student loan aid was imminent.

23 Because the school closure was so slow, students who

24 left the law school when their accreditation was first

25 revoked are now possibly outside the window for a closed
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1 school discharge for their student loans. And given

2 that the announcement that borrower defense to repayment

3 will be renegotiated, one has to wonder, will these

4 students be stuck paying back loans from a failed

5 for-profit school that was given too many chances?

6 The issues with institutions like Charlotte

7 School of Law, ITT, and Corinthian are not new or

8 surprising. Students and taxpayers can expect more of

9 the same if we simply allow for-profit colleges to

10 continue operating in the same way they always have.

11 Over the past several years, research from the

12 center has consistently and clearly found that student

13 loan borrowers who attend for-profit colleges have more

14 debt and higher default rates when compared to their

15 public school peers.

16 In terms of the disproportionate impact on low

17 income individuals, our research found that an average

18 of 61 percent of students -- time? Oh, sorry. Who

19 attended all for-profit colleges in Colorado,

20 Connecticut and Maine rely on Pell grants, as a proxy

21 for low incomes, compared to 44 percent of students at

22 public peer institutions. In those same states, the

23 average for-profit borrower who graduates leaves school

24 with $10,000 more in student loan debt than their public

25 school peers.
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1 Unfortunately for many for-profit college

2 students leaving school with heavy loan debt haven't

3 graduated. Our research in two states, Connecticut and

4 Colorado, found that only 30 percent of for-profit four

5 year college students actually complete their educations

6 as opposed to 50 percent of those who attend four year

7 public colleges. It's little wonder then that those

8 for-profit four year students had nearly two and a half

9 times the loan default rates of their four year public

10 peers.

11 The sorry picture the for-profit industry in

12 this research reveals is hardly limited to a few states.

13 What we are finding as we compare non-profit and

14 for-profit schools state by state is that the problems

15 with for-profit schools are ubiquitous. They are not

16 contained to one school or one region, and they are not

17 improving. Instead, they are consistent across states

18 and across the country. High cost, poor outcomes, and

19 leaving students deeply in debt without the skills

20 necessary to show gainful employment.

21 Beyond showing that poor for-profit outcomes

22 fall disproportionately on the poor, research from CRL

23 and others has found that minority students and women,

24 in particular, are seriously overrepresented at

25 for-profit schools. The overrepresentation of women and
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1 people of color in these institutions that leave

2 borrowers with unmanageable debt is even more concerning

3 when one considers that women, and particularly women of

4 color, are disproportionately affected by the student

5 loan debt itself.

6 In fact, a recent study by the American

7 Association of University Women has found that women

8 hold two thirds of the nation's outstanding student loan

9 debt. First generation students, students of families

10 and students of color are better served by much lower

11 cost community colleges and HBCUs that offer real

12 student services and remedial classes resulting in

13 better job completion and job prospects.

14 Of course, there are real people behind our

15 research. In May and June of 2017 CRL conducted focus

16 group inquiries with former for-profit students in

17 Florida. Here is what one student had to say.

18 "Strayer is like the University of Phoenix.

19 The people do everything for you. They do the loans for

20 you. They do all that for you. They don't care how you

21 are going to pay it back. You get this notion that you

22 go to school and you get this big degree and you get

23 this beautiful job. It doesn't work like that. When

24 you go to schools for profit, they aren't telling you

25 about the loans. They just want your money. They are
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1 not going to sit here and say, 'Well, you just get this

2 right here, you are going to have this much interest and

3 you are going to have this much debt when you get

4 finished.'"

5 The gainful employment rules finalized in 2014

6 have already begun to improve outcomes in our nation's

7 for-profit colleges. Colleges have begun to eliminate

8 their worst-performing programs, to freeze tuition and

9 implement other reforms to improve outcomes for their

10 graduates.

11 However, here in Utah, we have a great example

12 of the urgent need for continued reform. At Broadview

13 University, a for-profit university with five campuses

14 in this state, a two year paralegal degree program costs

15 more than $34,000 in tuition and fees, but graduates

16 from that program can't expect to make more than $24,000

17 a year. It's little wonder that this school has a 20

18 percent three year cohort default rate.

19 The Department of Education has a

20 responsibility to students and taxpayers to assure that

21 they are not defrauded when they are attending a

22 Department approved school. And if they are defrauded,

23 the Department can and must make it right. Thank you so

24 much for your time and attention.

25 MR. BRICKMAN: Is there anyone else who has a
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1 scheduled time slot who would like to speak? Or anyone

2 else who has not signed up and would like to speak?

3 (No response, and no one spoke from 9:36 a.m.

4 to 9:44 a.m.)

5 MR. LITCHFIELD: Larry Litchfield is my name.

6 I'm the vice president of academic affairs at Ameritech

7 College. It's a private for-profit college here in

8 Utah. I would speak on behalf of the proprietary

9 sector. I recognize that there are some actors. They

10 have been identified already as bad actors in the

11 education arena. In fact, at one point I did work for a

12 college that was purchased by one of those institutions.

13 You notice I said that in past tense. I no longer work

14 for that college.

15 So I just wanted to give a little bit of

16 information about our institution in particular just so

17 that you can understand that there are some proprietary

18 for-profit schools who really try to do a very good job.

19 We have been in business since 1979. We have gone

20 through a few changes in our structure and programs and

21 whatnot, but basically we have been trying to serve the

22 community as far as programs in health care. That's

23 exclusively what we operate in. Nursing is our largest

24 program.

25 We have a total population of about 600
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1 students, again, most of which are associate degree

2 nursing students. We also have an RN to BSN degree

3 completion program that is exclusively online. We have

4 a dental -- or sorry, medical assisting program, a

5 dental laboratory technician program, and a recent

6 occupational therapy assistant program that we have

7 established.

8 Any time we put in a new program, we are

9 mandated not only by our accrediting body but by our

10 executives that we research very carefully to make sure

11 that this program is something that there is a need for,

12 that, A, we could have students that are interested in

13 the program. But even more important than that, by the

14 end of their program, they can go into the field and

15 have a -- and have a good paying job and fill a market

16 niche.

17 So having said that, obviously, one of the

18 processes we go through with our financial aid is to

19 make sure that students understand what the difference

20 is between grants and loans, make sure they understand

21 that the loans they will be paying back, how much they

22 will be paying back. In fact, with our nursing program,

23 they only get about 50 percent of the program as far as

24 federal government money is concerned. They have to

25 come up with the rest of the money either out of their
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1 pocket or some other means.

2 So our -- I am trying to remember the latest

3 figures now. Again apologize in the fact that I wasn't

4 prepared to present today. So this is all just going

5 off the top of my head right now. As far as our 90/10 is

6 concerned, we are not even remotely close. We're about

7 58 percent is basically our level right now.

8 So we go through quite a process. We screen

9 our students very carefully. It's not a case of, if you

10 are alive, you are good for five. If you use a pen, you

11 are good for ten. We do not go by that model at all.

12 In fact, we have our students go home and really think

13 about it, if they really want to attend our programs or

14 not. And we don't accept all of the students. In fact,

15 most of -- or not most. Several of our applicants are

16 turned away. We just don't accept everybody.

17 We really do a very good job of educating our

18 students. We have very rigorous programs. They are

19 accelerated. We are here to fill a shortage in the

20 nursing program, especially in our state. The public

21 schools were not able to provide all of the nurses that

22 are necessary, and so we have stepped in to fill that

23 niche.

24 We make sure that our students are counseled

25 all the way through the process so they know exactly
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1 what they are getting into, they know exactly what they

2 are signing up for, go through loan counseling before

3 they start. At the end of the program we go through the

4 exit counseling as well with our students so they

5 understand the amount of debt that they will have and

6 the repayment liability that they, of course, will have.

7 In terms of -- in terms of our outcomes, we

8 have, almost at any given time during the course of the

9 year, we have a retention rate that is over 95 percent

10 of our students. Our placement rates at the end of

11 graduation run anywhere from 90 to 95 percent. We have

12 employers in the community that are begging us for more

13 grads, and in fact, our graduates a lot of times are

14 preferred over some of the other schools.

15 We have, as far as our NCLEX pass rates are

16 concerned for first-time pass rates, right now we're

17 running at 92 percent. A year ago we ran for the whole

18 year at 95 percent first-time pass rate.

19 Again, I am not disputing the need for controls

20 because there were and there probably still are some

21 actors out there that are just run-away trains just

22 for -- heading for a crash. I get the fact that some

23 are just all about the money. They are businessmen.

24 They are not educators. They really want to just take

25 the students' money and just run them through as fast as
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1 they possibly can. I get that.

2 I am not arguing that. All I am saying is, not

3 all of us operate that way. Some of us have some very

4 solid programs. We are very caring individuals. We

5 work very hard to make sure that our students are well

6 trained, well-educated and that they can go out and be

7 very successful.

8 And our nurses are up against all of the other

9 nurses in the community, and they all start at the same

10 rate. They don't have lower pay rates, and they can

11 make very good money for their families and support

12 their families and be able to pay back their loans. So

13 I appreciate your time. Thank you so much.

14 MS. MAHAFFIE: Thank you.

15 MR. BRICKMAN: Is there anyone else here that

16 still wishes to speak?

17 (No response, and no one spoke from 9:51 a.m.

18 to 10:25 a.m.)

19 MS. BITTER: Clearly I am new to this. So my

20 name is Caroline Bitter, and I'm from Salt Lake

21 Community College. I'm the assistant director of

22 compliance and training, and my director asked me to

23 come and sit in and listen. And she asked one thing

24 about gainful employment.

25 She was just kind of wondering if you guys --
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1 if the Department of Education was going to be looking

2 at reducing the regulatory requirements for gainful

3 employment, if that is in the works, if that's in

4 consideration, because we are a community college. We

5 do credit and clock hour, so we have a fair amount of

6 programs that we do have to report on.

7 COURT REPORTER: I'm sorry. Could you spell

8 your last name?

9 MS. BITTER: Oh, Bitter like the taste,

10 B-I-T-T-E-R.

11 MS. MAHAFFIE: Thank you very much. And to

12 answer your question, yes. We have announced that we

13 are going to do a negotiated rulemaking to take another

14 look at the gainful employment regulations. All of the

15 Title IV regulations are done through a negotiated

16 rulemaking process where we bring in representatives of

17 various constituents to negotiate the rules with us.

18 And we have announced that, and as a matter of

19 fact, we have requested nominations for negotiators by

20 September 29th. So that's coming up very soon. So if

21 anybody is interested in being a negotiator, please

22 nominate yourself or your colleagues. And we will be

23 looking at that, and certainly through that process, the

24 regulatory burden will be a factor that we are looking

25 at. Thank you.
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1 We'll do a 10 minute formal break now, and if

2 we don't have anybody by 11 o'clock, we'll extend the

3 lunch break to have it be from 11:00 to 1:00. We do

4 have people signed up to come at 1:00 in the afternoon.

5 Thank you.

6 (Recess from 10:30 a.m. to 10:58 a.m.)

7 MS. MAHAFFIE: Okay. We're going to go ahead

8 and break for lunch until one o'clock. We do have a few

9 people scheduled to speak at one. Enjoy your lunch.

10 (Lunch Recess from 10:59 a.m. to 1:00 p.m.)

11 MR. BRICKMAN: All right, ladies and gentlemen

12 we're going to get started again. We have a handful of

13 speakers ready to go. First, just a couple of

14 housekeeping items. The first item is to again,

15 remember this meeting is being transcribed, so we ask

16 that you please present clearly and speak into the

17 microphone so that your words can be accurately

18 reflected in the final transcription.

19 Next, we will have a brief break between 2:30

20 and 2:40, and we expect to quit around four. But if we

21 have gotten through most of our speakers, we may extend

22 that break. But we still will be concluding at four.

23 Once we start with the first speakers, if you

24 have not signed up yet and would like to speak, please

25 come find me or my colleague Lynn. And we'd be happy to
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1 get you on the list. So with that, we have the next

2 speaker, who is Nicholas Wolfinger from University of

3 Utah. And I understand he would like to speak at the

4 lectern, and that's fine.

5 MR. WOLFINGER: Just so I have a place to put

6 my computer. Thank you and thank you for having me

7 today. My name is Nicholas H. Wolfinger, and I'm here

8 to talk about Title IX.

9 I'm a tenured professor at the U where I have

10 taught for about 20 years. My remarks today are an

11 excerpt from an article I are published last month in

12 the magazine Quillette. Please ask me afterwards if you

13 like more information.

14 I support the broader aims of Title IX with

15 respect to gender equity in higher education. Indeed,

16 my 2013 book, "Do Babies Matter? Gender and Family in

17 the Ivory Tower," address the barriers that female

18 academics often face.

19 That having been said, I think the Department

20 of Education's 2011 letter to American universities, now

21 infamous as the Dear Colleague letter, has perverted the

22 original intent of Title IX by turning higher education

23 into a gigantic star chamber that tramples the rights of

24 faculty and students alike in a misguided crusade

25 against sexual violence.
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1 The Dear Colleague letter authorized campus

2 tribunals against those suspected of sexual assault or

3 harassment using the lowest possible burden of proof,

4 the preponderance of evidence standard. This has

5 sometimes been called 50-50 and a feather.

6 The Dear Colleague letter also set up a federal

7 registry to shame universities and threaten them with

8 the loss of federal funds if they didn't show adequate

9 vigor in ferreting out perceived sexual harassment

10 through violence on their campus. The stage was thus

11 set for a witch hunt. Colleges had every incentive to

12 prove -- pursue any charges filed on campus no matter

13 how flimsy, and they needed to do this or face the wrath

14 of the federal government.

15 This is how I found myself facing charges last

16 year for telling a colleague that I had proposed to my

17 wife at a strip club. It didn't matter that I had told

18 her and several other colleagues this in the late 1990s

19 off campus and over drinks. It still showed up in my

20 complaint. I find it very probable that she was

21 actually offended. Instead, she was simply settling a

22 score.

23 The dossier my university presented against me

24 also included allegations of an unnamed reporter who had

25 called my academic department to complain about
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1 something I had said to her. What reporter? I have

2 talked to hundreds of them in the course of my career.

3 What had I said? I don't have a clue. Potty mouth is a

4 good bet since it often is with me.

5 But I knew nothing. All I knew was that a

6 reporter called to complain. I didn't know the answers

7 to my other questions, and I never will. In fact, I

8 don't even know if I had ever even talked to this

9 journalist, or for that matter if she is actually a

10 journalist. All I know is that someone contacted my

11 department to complain about me, and the university saw

12 fit to include this evidence into official proceedings.

13 It is hard to imagine anything that could have

14 a more chilling effect on scholarly research and

15 teaching than the prospect that anyone can contact your

16 university to complain about anything you said at any

17 time.

18 I also stood accused of gender bias. What was

19 the evidence? At one point in a faculty meeting two

20 years ago, I had criticized my department at the

21 University of Utah. More specifically, I had shown

22 support for an outside committee that had criticized my

23 department. This indirect criticism of my department

24 was construed as gender bias because my department head

25 is a woman. It doesn't matter that she might have been
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1 my best friend in the department for years.

2 Ultimately, I was exonerated after a review

3 process that lasted several months. And I was very

4 lucky. Many faculty careers have been ruined, and many

5 students have been expelled from college. My costs were

6 limited to all the time I wasted writing memos and

7 responses and the $14,000 I paid in attorneys' fees.

8 Contrary to what Washington senator Patty

9 Murray and others have insinuated, reforming Title IX

10 isn't about giving rapists a free pass. Justice for

11 victims of sexual assault should come from the legal

12 system, not kangaroo courts that are ill equipped to

13 adjudicate felony charges.

14 Indeed, the relished pursuit of offenders for

15 non-offenses, just kissing one's sleeping boyfriend,

16 which was actually the basis of charges at Brandeis

17 University, charges like that are an insult to people

18 who have actually survived sexual assault.

19 Education Secretary Betty DeVos has proposed

20 sensible reforms to stop this miscarriage of justice

21 that has ensued from the Dear Colleague letter. It's

22 high time her suggestions were implemented. Thank you

23 for your time.

24 MR. BRICKMAN: Next we have Cheryl Kesson from

25 Champion College Services.
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1 MS. KESSON: Hi. Thank you. My name is Cheryl

2 Kesson, and I am from Champion College Services. We are

3 a default prevention company located in Phoenix,

4 Arizona. And I am here to review some suggested changes

5 regarding five different regulations submitted in detail

6 by our CEO, Marilyn Hammer, in our written comments.

7 Our first suggested regulatory change is

8 regarding mandates for student loan payment application.

9 We suggest that we remove language that is harmful to

10 federal student loan borrowers who are making payments

11 in excess of the required monthly payment amount and

12 replace it with regulatory language that ensures

13 prepayments are applied to reduce costs and financial

14 burdens for students.

15 The current regulations give lenders and

16 servicers the discretion to apply payments in excess of

17 the required monthly payments towards future payments.

18 Not only is this against the law in some states but

19 encourages predatory practices that harms students.

20 Lenders and servicers should be mandated to apply

21 excessive payments to principal reduction unless

22 specifically instructed otherwise by the borrower.

23 Next is a suggested regulatory change for

24 mandates for default prevention plans. The current

25 regulations have no defined end date for institutions
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1 that successfully reduce their cohort default rate after

2 being mandated to develop and implement a default

3 prevention plan.

4 Some schools that were mandated to have a plan

5 in place not only have their three most recent official

6 cohort default rates under the threshold, but they also

7 have several additional years under the thresholds.

8 These schools are not receiving notices to release them

9 from any mandated obligations.

10 Default prevention plans have to be malleable

11 in order to adapt to both the programs being taught and

12 changes caused by severe economic conditions. Mandates

13 should be lifted in a specific period of time for when a

14 school has been successful in lowering their default

15 rates under the thresholds. This reduces labor and

16 financial burdens for the schools, the Department,

17 auditors and taxpayers.

18 Our third suggested regulatory change regards

19 corrections for default statuses processed in error.

20 Beginning in 2014 the U.S. Department of Education

21 adjusted cohort default rates for those schools in

22 jeopardy of losing Title IV funding by excluding from

23 the calculation those defaulted loans where one or more

24 of a borrower's loans were in default status while at

25 least one of the borrower's loans remained in current
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1 status for a period of at least 60 consecutive days.

2 A reasoning for the adjustments was that these

3 defaults were a result of poor servicing that led to

4 inappropriate default claims. The primary concern is

5 that corrections have never been made for both students

6 and parent student loan borrowers, even though they have

7 suffered severe consequences from these defaults.

8 The secondary concern is that all institutions,

9 not just those in jeopardy of losing funding, were

10 affected by these defaults that should have not been in

11 default status in the first place.

12 The request for regulatory changes is twofold.

13 One, a process for reversing default statuses needs to

14 be defined and two, a CDR correction process for all

15 affected institutions.

16 Our fourth is for mandates for third party

17 servicer audits. Third party servicers and the criteria

18 for their compliance audits have been defined in law and

19 regulation since 1994. Interpretations of these

20 definitions were applied consistently in statute

21 regulation and many versions of the student aid handbook

22 until July 9th, 2015, when the Department of Education

23 changed their compliance audit interpretation through a

24 Dear Colleague letter.

25 These changes from ED expanded historic
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1 definitions and applications of very specific third

2 party functions directly related to student aid funding,

3 required additional functions, and included many

4 nonrequired functions and companies that had never been

5 subject to third party compliance audits before.

6 ED does not have the authority to substantially

7 change laws and regulation without a statutory change or

8 a negotiated rulemaking process. The thousands of

9 companies affected by these changes did not have an

10 opportunity to negotiate or give public comments.

11 Furthermore, the OIG audit guide lacks criteria and

12 guidance for these newly defined audits to be completed.

13 To date many functions that are defined as regulatory

14 requirements have been included in ED's training

15 materials, and yet in the most recent OIG audit guide

16 published in September of 2016, there is still no

17 clearly defined criteria for audits.

18 Our last topic is for the expansion of loan

19 servicing appeals. The -- we suggest that we expand the

20 criteria of loan servicing appeals to identify issues in

21 loan servicing. Since the beginning of the student loan

22 program, harmful situations have occurred to student and

23 parent loan borrowers with significant consequences to

24 the institutions serving the students and taxpayers. In

25 most cases these situations are discovered after a
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1 significant amount of damage has occurred.

2 By expanding the criteria of loan servicing

3 appeals to identify issues in loan servicing, the

4 Department of Education will have pertinent knowledge of

5 issues earlier in the process and will be able to take

6 corrective actions to limit the damage and costs

7 involved. This will help ensure higher quality

8 servicing for students and reduce administrative costs.

9 Early intervention to ensure proper quality

10 loan servicing would have many benefits, including

11 preventing student loan borrowers from the severe

12 consequences of default, allowing schools to properly

13 respond to cohort default rates based on their

14 performance and not inflated default rates. And it

15 would save the taxpayers money because servicing current

16 loans is less expensive than servicing defaulted loans.

17 The goal of expanding loan servicing appeals is

18 to ensure proper quality loan servicing that protects

19 the fiscal interest in the borrowers' rate to a full due

20 diligence servicing period. Detailed suggestions for

21 all the amended regulatory language have been submitted

22 in our comments, and I have copies for you here today as

23 well. Thank you.

24 MR. BRICKMAN: Okay. Next we have Bob Collins

25 with Western Governors University.
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1 MR. COLLINS: Good afternoon. Welcome to Salt

2 Lake City. My name is Bob Collins. I'm the vice

3 president of financial aid for Western Governors

4 University headquartered here in Salt Lake City. Thanks

5 for being in our back yard.

6 I have been an active financial ED

7 administrator for more than 35 years. I am active in

8 the state and national and regional association of

9 financial aid professionals, and I have also been a

10 member of several negotiated rulemaking sessions as

11 well.

12 I would like to go on the record of endorsing

13 the recommendations made by the National Association of

14 Student Financial Aid administrators. I'll submit those

15 with my comments, but I would like to speak to the

16 experimental sites initiatives.

17 Excessive student loan debt is a serious

18 problem for students and the economy. In an effort to

19 provide students with information that will help them

20 understand the impact of their borrowing, WGU launched

21 its Responsible Borrowing Initiative in July of 2013, by

22 providing more information to students about their loans

23 and recommending students only borrow what they need,

24 not the maximum allowable amount.

25 The ultimate goal of the RBI program,
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1 Responsible Borrower Initiative, is to promote

2 responsible borrowing and reduce student loan debt

3 without waivers of law or regulation. With the simple

4 business process change, the results after four years

5 demonstrate a significant reduction in student borrowing

6 at WGU, lowering the average borrower indebtedness from

7 five years ago at $21,000, a little over $21,000, to

8 just slightly over $16,000 for the most recent

9 graduating class of undergraduate students. Significant

10 reduction.

11 So in June of the 2012, the U.S. Department of

12 Education accepted Western Governors University as a

13 participant in the experimental sites initiative. This

14 one was to limit the amount students borrow in federal

15 loans. Schools accepted to participate in the

16 experimental sites have waivers of certain regulations

17 to experiment with the federal student aid delivery

18 system comparing the outcomes of the target group with a

19 control group.

20 This particular experiment would allow an

21 institution to establish a written policy where for

22 students enrolled in a particular educational program or

23 on some other categorical basis, it would reduce by at

24 least $2,000 the amount of an unsubsidized direct loan

25 that the otherwise eligible student would receive.
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1 So WGU wants to ensure incoming transfer

2 students have sufficient federal funds to complete the

3 program of study without exhausting eligibility based on

4 federal aggregate student loan limits before graduating.

5 WGU conducted research of empirical data to

6 analyze the persistence and graduation rate of WGU

7 incoming transfer students with significant amounts of

8 outstanding principal balance in federal student loans

9 from attendance at prior colleges.

10 So based on this empirical data on this

11 analysis, for new students starting on or after January

12 2013, the selection criteria for students in our target

13 group would be undergraduate students with an

14 outstanding principal balance of $30,000 or more from

15 prior colleges. They would be limited to essentially

16 direct costs only, $6500 per academic year.

17 For graduate students if they had a outstanding

18 principal balance of $40,000 or more, they would be

19 limited to roughly direct costs of $7500 per academic

20 year.

21 WGU continues in this limiting unsubsidized

22 loan experiment, and we have more than 12,000 borrowers

23 in that target group currently. And the idea is to help

24 inform the Department of Education with evidence-based,

25 data-driven decision making for revisions to future law
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1 and/or regulations.

2 So as stated earlier, we participated in the --

3 we launched a Responsible Borrowing Initiative in July

4 of 2013 to recommend students borrow only unmet direct

5 costs. A majority, significant majority of our

6 students, accept the recommended loan amounts. Roughly

7 two thirds of our students accept what we recommend.

8 So in July of 2014, WGU implemented the unequal

9 disbursements experiment in situations when direct costs

10 will vary in the academic year. For example, certain

11 nursing programs have a one-time science fee in the

12 first term, and certain teachers college programs have a

13 demonstration teaching or practicum fees at the end of

14 the program. The unequal disbursement experiment allows

15 these students to pay direct costs when the costs are

16 due without borrowing in excess because of equal loan

17 disbursement rules.

18 Another situation occurs which require multiple

19 disbursements for one-term awards in the six month

20 payment period. Students in these situations need more

21 funding upfront for technology costs or other

22 education-related expenses, and the unequal disbursement

23 experiment accommodates those students, notwithstanding

24 the 75/25 percent split, the required split.

25 Additionally, students reaching their Pell
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1 lifetime eligibility could use -- also benefit from

2 unequal disbursements without excessive borrowing.

3 The cumulative data is overwhelmingly

4 consistent with our initial intent. 74 percent of the

5 target group are in a nursing or teaching college. 79

6 percent of the target group accepted recommended loan

7 amounts. In other words, thousands of WGU students are

8 borrowing only what they need, and they get the money

9 when they need it.

10 Generally, the remaining 26 percent of the

11 target population have one-term loans. They are at the

12 end of the program or have met their lifetime

13 eligibility for Pell or need additional allowance for

14 educational costs.

15 It is important to note the multiple

16 disbursement requirement for one-term loans is a common

17 occurrence for WGU students. ED regulations on the

18 other hand allow a single disbursement for one-term loan

19 periods of four and a half months or less. If the loan

20 period is greater than four and a half months, the

21 multiple equal disbursement rule applies. Because WGU

22 has a six month payment period and six month term, we

23 must make multiple disbursements of equal amounts, even

24 though we charge tuition and expect payment in full at

25 the beginning of the term.
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1 Unfortunately, the Department sunset this

2 experiment in June of 2016 because of the low

3 participation rates. Only 10 schools were

4 participating. WGU respectfully requests

5 reconsideration of this regulation for several reasons.

6 First and foremost, the experiment is doing exactly what

7 we expected, meeting the needs of students to pay direct

8 costs when those costs are incurred without over

9 borrowing.

10 Second, while we are one of 10 institutions, we

11 had nearly 12,000 WGU students that took advantage of

12 this and benefitted from this waiver. The initial

13 results and outcomes are compelling evidence of success.

14 Without this waiver, students are inclined to borrow

15 more than necessary.

16 Third, the one-term greater than four and a

17 half month loan period multiple disbursement rule simply

18 does not make sense in a nontraditional educational

19 model. WGU looks forward to working with the Department

20 to implement regulatory reform and to provide relief to

21 students as well as institutions and other stakeholders

22 while continuing to safeguard program integrity. Thank

23 you.

24 MS. MAHAFFIE: Thank you.

25 MR. BRICKMAN: And our final registered speaker
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1 is Marion Noble, Families Advocating for Campus

2 Equality. After Marion speaks, if there's anyone else

3 who would like to speak, come and register.

4 MS. NOBLE: Hi. Would you be okay if I use the

5 podium?

6 (Discussion off the record about speaking at

7 the podium.)

8 MS. NOBLE: Hello. My name is Marion Noble.

9 Thank you for allowing me to share my experience of the

10 impact of Title IX on our family.

11 I am a survivor. I am a 30 year survivor. I

12 know what it means to be violated. I know what it's

13 like to be afraid to tell anyone what happened for fear

14 that I would not be believed. And even worse, that I

15 might be blamed for what happened. At the time I told

16 only one girlfriend that I had been raped by a man on

17 our second date. Back then women didn't feel safe going

18 to people in authority for help.

19 More urgently, however, I am also a victim from

20 which I will never heal completely. I have experienced

21 something far worse than my being raped. I have been

22 victimized by a corrupted Title IX process that

23 devastated our family and destroyed my son. Sorry.

24 That's why I needed the podium. My faith in humanity

25 and justice has been shaken to its core.
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1 Six weeks into his freshman year, Charlie drank

2 hard alcohol to excess and had a sexual encounter with

3 Sally, a woman who attended the all-female sister school

4 next to his college. Charlie and Sally attempted to

5 have intercourse multiple times for close to two hours,

6 but Charlie was too drunk and was not able to maintain

7 an erection so the condemns kept falling off. Sally

8 admittedly gave him repeated oral sex to try to make it

9 work.

10 Sally, on the other hand, had not had any

11 alcohol to drink, although she later claimed she was

12 drunk, but her text message to her girlfriends would

13 prove otherwise. After sobering up, Charlie pretended

14 he was not able to recall having gotten together with

15 her the previous evening. He just wanted to put this,

16 his first sexual experience, behind him. So in the

17 morning a couple hours later Charlie texted Sally asking

18 about the previous night. Sally texted back, quote, we

19 did it 10 times, dot, dot, dot, and it was more than 10.

20 I just lost count.

21 Sally was cheery and made arrangements to get

22 together with Charlie in person that same day. When

23 they got together, she gave him a gift, a prized comic

24 book, something that they loved. They both loved

25 comics. Wrapped in cellophane, which she thought he
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1 would really like. She later texted him about getting

2 together so that Charlie could teach her about DC Comics

3 and she could teach him about Marvel Comics.

4 That same day she revealed her feelings for

5 Charlie through texts she sent to two girlfriends. And

6 I won't quote them because it may be too -- she just

7 wanted Charlie. "I just want Charlie. Hee, hee, haw,

8 haw. But I have to hope for the best but prepare for

9 the worst," to one girlfriend. Next one, "I think he's

10 so hot," all in capital letters. She is going crazy.

11 Going -- he is so hot. Winkie emoji. "I just hope he

12 will go for me."

13 This is the same day that they had completed

14 their sexual encounter. She and Charlie got together a

15 few times privately but never again had another sexual

16 encounter. They remained on friendly terms and would

17 see each other at various dorm and campus parties.

18 She even added him to Snapchat a month after

19 the sexual encounter. She attended Charlie's 19th

20 birthday party, and that was four months after the

21 sexual encounter. She happily participated in throwing

22 him in the fountain at the school, which was a

23 tradition, birthday tradition for anybody who had a

24 birthday. She followed that with a warm wet embrace.

25 One can imagine that it came as a complete
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1 shock to Charlie that five months after their sexual

2 encounter Sally filed a Title IX sexual assault claim

3 against him. Charlie was perplexed and horrified all at

4 the same time. The official letter from the Title IX

5 office informed Charlie that he had been accused of

6 sexual assault, but the letter was otherwise silent

7 about the factual basis or the particulars of this

8 accusation.

9 When he asked the attorney, slash, investigator

10 the college had hired to conduct the investigation, he

11 asked to see the complaint. She told him there was

12 nothing to see. So therefore, Charlie was never given

13 notice of what exactly he was accused of, and he had no

14 possible way of knowing.

15 The attorney, slash, investigator conducted a

16 total of three interviews of Charlie. All of these

17 interviews were conducted before he was ever told what

18 he was actually accused of, apart from the vague

19 categorization of, quote, sexual assault.

20 Meanwhile, the investigator passed along the

21 key elements of Charlie's testimony to Sally. Summaries

22 of Sally's testimony prepared by the investigator

23 clearly revealed how Sally kept changing her story to

24 directly counteract anything that Charlie said. All the

25 while Charlie was kept completely in the dark.
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1 Once the preliminary report was issued two

2 months after the complaint was filed, Charlie was

3 finally given the specifics of the accusation. The

4 Title IX office refused nearly 100 percent of Charlie's

5 requests for additional questioning, including follow-up

6 questions of Sally and a re-interview of himself.

7 Not until Charlie read the preliminary report

8 did he become aware that there was one key witness

9 noticeably missing from Sally's witness list. A

10 girlfriend of Sally's had accompanied her the day after

11 their sexual encounter to both the on-campus health

12 center and off-campus urgent care. The absence of this

13 witness strongly suggested that this girlfriend's

14 testimony could have or would have further undermined

15 Sally's false allegation of, quote, rough sex and

16 bruising from Charlie supposedly holding her down to

17 assault her.

18 This girlfriend could have also shed light on

19 Sally's feelings for Charlie, given the amount of time

20 the two girlfriends spent together that day. But the

21 college refused Charlie's request to interview the

22 single most knowledgeable witness apart from Charlie and

23 Sally themselves.

24 In a he-said, she-said case where the lowest

25 possible standard of preponderance of the evidence is
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1 used, the college's refusal to interview this key

2 witness deprived Charlie of even a semblance of due

3 process. The college review panel chose to disregard

4 the medical report that showed that Sally was lying

5 about her purported injuries. The medical report from

6 urgent care stated, quote, exam is unremarkable, end

7 quote.

8 Sally texted Charlie right after leaving urgent

9 care, and she said she was diagnosed with a ruptured

10 vain. The report stated, assessment, semicolon,

11 menstrual disorder, end of quote. This was certainly to

12 be expected since Sally had taken Plan B immediately

13 after the sexual encounter to avoid pregnancy, since she

14 didn't want to get pregnant with the condoms falling

15 off, and bleeding is a known and expected side effect

16 after taking Plan B.

17 Also, per California penal code 11160, medical

18 personnel are required to report any suspected sexual

19 assault to the authorities. And if they don't, they can

20 have their licenses revoked. No such report was made

21 because there was no suspicion of sexual assault.

22 Amazingly, while denying Charlie due process,

23 the college allowed Sally to admit into the record nine

24 additional pages she wrote of clarifications, in quotes,

25 and corrections, in quotes, to the testimony provided by
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1 other witnesses.

2 Finally the attorney hired by the college to

3 serve as the investigator, one, conducted all the

4 interviews and prepared the preliminary investigation

5 report; two, prepared the final investigation report

6 from which the panel drew its conclusion; three, this

7 person served as the head of the three person review

8 panel along with two faculty members; four, had one of

9 the three votes in making the finding of responsibility;

10 and, five, drafted the written findings of the review

11 panel.

12 In other words, the college assigned to a

13 single outside attorney investigator, assigned the

14 multiple roles of police investigator, jury foreman and

15 judge. Charlie's fate was thus placed in the hands of a

16 single person, a person hired to manufacture a finding

17 of responsibility regardless of the facts.

18 Charlie never had the benefit of a formal

19 hearing held before the review panel. There was no

20 hearing at all. Incredibly, the Title IX office at his

21 college drafted a response to Charlie's appeal during

22 the summer, submitted it to the record as if Sally had

23 written it. Sally was unavailable. She was -- it was

24 during the summer. She may not even be aware the

25 college did this. In other words, the college Title IX
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1 office acted as an advocate and counsel for Sally.

2 Charlie was ultimately found responsible and

3 suspended for one year. The finding came as a complete

4 shock. He believed that because the hard evidence

5 clearly showed the sex with her had been entirely

6 consensual, she wanted him as a boyfriend, there would

7 be no finding of responsibility. Charlie had all along

8 clung to the belief that the truth would ultimately

9 prevail and he would be exonerated.

10 When he was not exonerated, he could not wrap

11 his mind around how a kangaroo court could exist in the

12 U.S. and be permitted to completely ruin his life.

13 Charlie found that life was no longer worth living, and

14 he attempted suicide twice. We had hoped -- we had

15 hoped that since he was not expelled and instead faced a

16 one year suspension, he would ultimately recover from

17 the ordeal. But it proved too much for him to handle.

18 Living with the unjust finding on his

19 disciplinary record, the embarrassment he felt knowing

20 others might believe the findings were true, the

21 separation from his close-knit group of friends at

22 college, disappointing his late father who had devoted

23 his life to this college where he had served as a

24 college trustee, and the necessity of Charlie moving

25 back home, Charlie received months of intensive
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1 psychotherapy.

2 Following his mental breakdown, he was

3 diagnosed with severe depression that included

4 debilitating panic attacks as well as PTSD tied to the

5 trauma of the corrupted Title IX proceedings and unjust

6 findings.

7 At the end of his suspension year, Charlie

8 insisted on returning to the same college that had

9 suspended him so he could hold his head high and show

10 the Title IX personnel who worked to ruin his life that

11 he could rise above this horrible miscarriage of

12 justice.

13 While back in school, Charlie learned from more

14 than one of Sally's girlfriends that they now regretted

15 their roles in the Title IX process and realized that

16 Sally had been lying all along. Sadly, this news came

17 too late to make a difference to the findings as they

18 had already been issued.

19 Charlie was able to complete the first semester

20 of his sophomore year despite mounting health issues,

21 but ended up in a full psychosis halfway through spring

22 term. Charlie was diagnosed with schizophrenia, the

23 most dreaded of all mental illnesses. According to a

24 psychiatrist and various psychotherapists, his diagnosis

25 was a direct result of the trauma he suffered in the
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1 corrupted Title IX process and the resulting finding of

2 responsibility.

3 Sadly, Charlie had to be involuntarily

4 committed to a lockdown mental health facility.

5 Eventually he moved into an in-patient residential

6 treatment where our out-of-pocket expenses have been

7 $26,000 a month. Schizophrenia has robbed Charlie of

8 his once brilliant mind, his sharp wit, his self-esteem,

9 his energy and motivation. He now has ADD and OCD and

10 therefore cannot concentrate. Once a prolific reader of

11 philosophy books, he is no longer able to read for

12 content.

13 His adrenal glands are failing, which means he

14 is producing almost no cortisol. Without cortisol he

15 cannot get out of bed or respond to the instinctive

16 fight or flight response necessary for survival. Given

17 all of these complaints, he cannot live independently as

18 he would fall into a deep slumber and never wake up to

19 eat, drink or take his many medications. He has already

20 been hospitalized for dehydrations and infections.

21 As you know, Mr. Biden has come out strongly

22 against Betsy DeVos's position to revoke the Dear

23 Colleague letter. Mr. Biden seems to believe that all

24 women will tell the truth when it comes to sexual

25 assault and that due process is not required in a
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1 college administrative proceeding.

2 I for one tell you that Mr. Biden is greatly

3 mistaken. There is so much at stake for those accused

4 of sexual assault; their entire futures, education,

5 friendships, job prospects, their minds, that the Title

6 IX process at colleges across the countries must afford

7 them due process.

8 To say the Title IX process had a ruinous

9 effect upon our son and our family is an understatement.

10 Tragically, we are now mourning the death of the son we

11 once knew. It is hard to believe that our experience

12 with Title IX could be worse than his father's year-long

13 battle for life that included two craniotomies,

14 radiation, chemotherapy and nearly dying seven times

15 from brain hemorrhaging before he ultimately succumbed

16 to brain cancer in his forties when Charlie was only

17 five years old. But it is in fact far worse.

18 So I can tell Mr. Biden that I understand that

19 it is horrible to lose a beloved family member to brain

20 cancer at their prime as he did his beloved son. But I

21 can also say that Mr. Biden was blessed to lose his son

22 to brain cancer, rather than losing him 20 years before

23 his prime to a corrupted Title IX process that caused

24 our son to lose his mind. Once a naked accusation has

25 been made, that's pretty much the end of the road for
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1 the accused.

2 I came up with a slogan. I accuse, you lose

3 would be an apt slogan on college campuses in today's

4 Title IX environment. My son's college viewed

5 subsequent regret for having engaged in sex the same as

6 having withheld the consent from the very beginning. It

7 made no difference to the college that the subsequent

8 regret was not expressed at the time of the sexual

9 encounter but five months later. Subsequent regret is

10 not rape.

11 Thank you for allowing me to address you. Much

12 needed reform in the handling of the Title IX complaints

13 has come too late to save Charlie. It is imperative to

14 fix a completely broken and unjust system that is

15 destroying so many young lives and families. Sorry for

16 my emotion. Thank you.

17 MR. BRICKMAN: Are there others wishing to

18 speak?

19 (No response.)

20 MR. BRICKMAN: All right. At this time we're

21 going to keep the session open. We will be here until

22 four o'clock in case anybody else comes who wishes to

23 speak. You all are welcome to stay here or we will let

24 everybody know if there are additional speakers.

25 (Recess from 1:38 p.m. to 4:00 p.m.)
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1 MR. BRICKMAN: It is now four o'clock. This

2 hearing has concluded. Thank you for your

3 participation.

4 (Proceedings concluded at 4:00 p.m.)

5 C E R T I F I C A T E

6 STATE OF UTAH )

7 COUNTY OF SALT LAKE )

8 I, Teri Hansen Cronenwett, Certified Realtime

9 Reporter, Registered Merit Reporter and Notary Public in

10 and for the State of Utah, do hereby certify:

11 That the above and foregoing contains a true and

12 correct transcription of the public hearing that was

13 held by the Department of Education at Salt Lake

14 Community College, Miller Campus, Sandy, Utah, on

15 September 26, 2017.

16

17 Certified to by me this 3rd day of October,

18 2017.

19

20 /s/ Teri Hansen Cronenwett

Teri Hansen Cronenwett, CRR, RMR

21 Utah License No. 91-109812-7801

Collins Realtime Reporting

22 Firm Registration No. 59

325 N. St. Paul Street, Suite 2575

23 Dallas, TX 75201

(214) 220-2449

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