[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


                      PREVENTING AND RESPONDING TO
                   SEXUAL ASSAULT ON COLLEGE CAMPUSES

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

                                 HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON HIGHER EDUCATION
                         AND WORKFORCE TRAINING

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE

                     U.S. House of Representatives

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, SEPTEMBER 10, 2015

                               __________

                           Serial No. 114-27

                               __________

  Printed for the use of the Committee on Education and the Workforce
  
  
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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN KLINE, Minnesota, Chairman

Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott, 
Virginia Foxx, North Carolina            Virginia
Duncan Hunter, California              Ranking Member
David P. Roe, Tennessee              Ruben Hinojosa, Texas
Glenn Thompson, Pennsylvania         Susan A. Davis, California
Tim Walberg, Michigan                Raul M. Grijalva, Arizona
Matt Salmon, Arizona                 Joe Courtney, Connecticut
Brett Guthrie, Kentucky              Marcia L. Fudge, Ohio
Todd Rokita, Indiana                 Jared Polis, Colorado
Lou Barletta, Pennsylvania           Gregorio Kilili Camacho Sablan,
Joseph J. Heck, Nevada                 Northern Mariana Islands
Luke Messer, Indiana                 Frederica S. Wilson, Florida
Bradley Byrne, Alabama               Suzanne Bonamici, Oregon
David Brat, Virginia                 Mark Pocan, Wisconsin
Buddy Carter, Georgia                Mark Takano, California
Michael D. Bishop, Michigan          Hakeem S. Jeffries, New York
Glenn Grothman, Wisconsin            Katherine M. Clark, Massachusetts
Steve Russell, Oklahoma              Alma S. Adams, North Carolina
Carlos Curbelo, Florida              Mark DeSaulnier, California
Elise Stefanik, New York
Rick Allen, Georgia

                    Juliane Sullivan, Staff Director
                 Denise Forte, Minority Staff Director
                 
                             ---------                                

        SUBCOMMITTEE ON HIGHER EDUCATION AND WORKFORCE TRAINING

               VIRGINIA FOXX, North Carolina, Chairwoman

David P. Roe, Tennessee              Ruben Hinojosa, Texas
Matt Salmon, Arizona                   Ranking Minority Member
Brett Guthrie, Kentucky              Hakeem S. Jeffries, New York
Lou Barletta, Pennsylvania           Alma S. Adams, North Carolina
Joseph J. Heck, Nevada               Mark DeSaulnier, California
Luke Messer, Indiana                 Susan A. Davis, California
Bradley Byrne, Alabama               Raul M. Grijalva, Arizona
Carlos Curbelo, Florida              Joe Courtney, Connecticut
Elise Stefanik, New York             Jared Polis, Colorado
Rick Allen, Georgia
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on September 10, 2015...............................     1

Statement of Members:
    Foxx, Hon. Virginia, Chairwoman, Subcommittee on Higher 
      Education and Workforce Training...........................     1
        Prepared statement of....................................     3
    Hinojosa, Hon. Ruben, Ranking Member, Subcommittee on Higher 
      Education and Workforce Training...........................     4
        Prepared statement of....................................     6

Statement of Witnesses:
    Cohn, Mr. Joseph, Legislative and Policy Director, Foundation 
      for Individual Rights in Education, Philadelphia, PA.......    36
        Prepared statement of....................................    39
    Maatz, Ms. Lisa M., Vice President for Government Relations, 
      American Association of University Women, Washington, DC...    26
        Prepared statement of....................................    29
    Rue, Dr. Penny, Vice President for Campus Life, Wake Forest 
      University, Winston-Salem, NC..............................    19
        Prepared statement of....................................    21
    Scaduto, Ms. Dana, General Counsel, Dickinson College, 
      Carlisle, PA...............................................     7
        Prepared statement of....................................     9
Additional Submissions:
    Mr. Hinojosa:
        U.S. Department of Education's 2014 guidance on Title IX 
          and sexual violence....................................   132
        U.S. Department of Education's list of Higher Education 
          Institutions With Open Title IX Sexual Violation 
          Investigations.........................................   185
        Chart: Intersection of Title IX and the Clery Act........   188
        Letter dated August 12, 2015, from The National Alliance 
          to End Sexual Violence.................................   196
        Letter dated September 10, 2015, from Feminist Majority 
          Foundation.............................................   199
        Prepared statement of Speier, Hon. Jackie................   204
        Letter dated September 24, 2015, from The National 
          Domestic Violence Hotline..............................   209
    Salmon, Hon. Matt, a Representative in Congress from the 
      State of Arizona:
        Letter dated September 10, 2015 from, The National 
          Coalition For Men Carolinas (NCFMC)....................   212
    Byrne, Hon. Bradley, a Representative in Congress from the 
      State of Alabama, questions submitted for the record to:
        Dr. Rue..................................................   217
        Ms. Scaduto..............................................   219
    Response to questions submitted:
        Dr. Rue..................................................   222
        Ms. Scaduto..............................................   225

 
                  PREVENTING AND RESPONDING TO SEXUAL
                      ASSAULT ON COLLEGE CAMPUSES

                              ----------                              


                      Thursday, September 10, 2015

                     U.S. House of Representatives,

             Subcommittee on Higher Education and Workforce

                               Training,

               Committee on Education and the Workforce,

                            Washington, D.C.

                              ----------                              

    The subcommittee met, pursuant to call, at 10:01 a.m., in 
Room 2261, Rayburn House Office Building, Hon. Virginia Foxx 
[chairwoman of the subcommittee] presiding.
    Present: Representatives Foxx, Roe, Salmon, Guthrie, Heck, 
Curbelo, Stefanik, Allen, Hinojosa, Jeffries, Adams, 
DeSaulnier, Davis, Courtney, and Polis.
    Also present: Representatives Kline, Scott of Virginia, 
Bonamici, and Speier.
    Staff present: Lauren Aronson, Press Secretary; Janelle 
Belland, Coalitions and Members Services Coordinator; Tyler 
Hernandez, Press Secretary; Amy Raaf Jones, Director of 
Education and Human Resources Policy; Nancy Locke, Chief Clerk; 
Brian Newell, Communications Director; Krisann Pearce, General 
Counsel; Lauren Reddington, Deputy Press Secretary; Alex Ricci, 
Legislative Assistant; Mandy Schaumburg, Education Deputy 
Director and Senior Counsel; Emily Slack, Professional Staff 
Member; Alissa Strawcutter, Deputy Clerk; Juliane Sullivan, 
Staff Director; Tylease Alli, Minority Clerk/Intern and Fellow 
Coordinator; Jared Bass, Minority Education Policy Counsel; 
Tina Hone, Minority Education Policy Director and Associate 
General Counsel; Brian Kennedy, Minority General Counsel; 
Veronique Pluviose, Minority Civil Rights Counsel; Rayna Reid, 
Minority Education Policy Counsel; Michael Taylor, Minority 
Education Policy Fellow; and Arika Trim, Minority Press 
Secretary.
    Chairwoman Foxx. Good morning, everyone. A quorum being 
present, Subcommittee on Higher Education and Workforce will 
come to order.
    Welcome, everyone, to today's committee hearing. We are in 
a different location and we are a little tighter in here today 
than we normally would be, and ask everybody's indulgence as 
the renovation work goes on in the committee room. We will all 
be friendlier and kinder to each other today--and closer to 
each other.
    I would like to thank our witnesses for joining us to 
discuss an issue that affects far too many students: campus 
sexual assault.
    Earlier this week, as millions of students stepped foot on 
a college or university campus, members of Congress returned 
from their districts to continue their work strengthening 
America's higher education system. As we all know, that effort 
often requires difficult but necessary conversations about 
tough issues, which is why we are here today.
    Every college student should be able to learn in an 
environment that is free--safe and free from fear and 
intimidation. Yet, for some students that is not the case.
    According to one study, approximately one in five women in 
college has been sexually assaulted. Several universities, 
including Rutgers, Michigan, and MIT, report similar findings, 
and a number of recent high-profile cases further highlight the 
scope and seriousness of this important issue.
    As a former community college president, mother, 
grandmother, I know I am not alone when I say that all of us 
have a responsibility to protect students from sexual assault 
on campus. As one university president exclaimed, ``The issue 
of sexual assault keeps me awake at night. I feel personally 
responsible for the safety and well-being of all students.'' 
Another said, ``I see the issue of sexual violence and sexual 
assault on colleges and universities as a matter of national 
importance.''
    Students, parents, educators, administrators, and 
policymakers across the country share this same sentiment and 
have joined a national conversation about these heinous crimes 
and how we can better protect students.
    At the college and university level, efforts to prevent and 
respond to sexual assault are underway. For instance, some 
colleges and universities now require students to participate 
in seminars to help them understand what sexual assault is and 
how to prevent and report it. At the University of North 
Carolina Chapel Hill, for example, these seminars reinforce a 
safe campus culture and explain university policies and 
procedures for responding to reports of sexual violence.
    Institutions are also improving how they support victims of 
sexual assault, providing resources and counseling services to 
help students recover from such a terrible event, complete 
their education, and continue with their lives. Just as 
important, administrators are working to put in a place a fair 
resolution process that respects the rights of the victim and 
the accused.
    At the national level, the federal government has been 
working with colleges and universities to prevent and respond 
to sexual assault for decades. More recently, members of 
Congress have introduced legislative proposals intended to 
improve protections for college students. Additionally, the 
administration has established new policies institutions must 
follow.
    Colleges and universities have rightly raised concerns 
about the administration's one-size-fits-all regulatory 
approach. While well-intended, the administration has further 
complicated a maze of legal requirements; added to the 
confusion facing students, administrators, and faculty; and 
made it harder for institutions to guarantee student safety.
    As Dr. Rue will explain during her testimony, the patchwork 
of federal and state policies has impeded the efforts of 
administrators and educators to prevent and respond effectively 
to sexual assault on their campus.
    As Congress works to strengthen higher education it must 
ensure tough, responsible policies are in place to fight these 
crimes and support the victims.
    I am pleased to have a panel of witnesses to represent all 
sides of this difficult yet important discussion. Your 
observations and recommendations are vital to our efforts to 
help colleges and universities provide students the safe 
learning environment they deserve.
    With that, I now recognize the ranking member, Congressman 
Hinojosa, for his opening remarks.
    [The statement of Chairwoman Foxx follows:]

 Prepared Statement of Hon. Virginia Foxx, Chairwoman, Subcommittee on 
                Higher Education and Workforce Training

    Earlier this week, as millions of students stepped foot on a 
college or university campus, members of Congress returned from their 
districts to continue their work strengthening America's higher 
education system. As we all know, that effort often requires difficult 
but necessary conversations about tough issues, which is why we are 
here today. Every college student should be able to learn in an 
environment that is safe and free from fear and intimidation. Yet for 
some students, that is not the case. According to one study, 
approximately one in five women in college has been sexually assaulted. 
Several universities - including Rutgers, Michigan, and MIT - report 
similar findings, and a number of recent high-profile cases further 
highlight the scope and seriousness of this important issue.
    As a former community college president, a mother, and grandmother, 
I know I'm not alone when I say that all of us have a responsibility to 
protect students from sexual assault on campus. As one university 
president exclaimed, ``The issue of sexual assault keeps me awake at 
night ... I feel personally responsible for the safety and well-being 
of all students.'' Another said, ``I see the issue of sexual violence 
and sexual assault on colleges and universities as a matter of national 
importance.''
    Students, parents, educators, administrators, and policymakers 
across the country share this same sentiment, and have joined a 
national conversation about these heinous crimes and how we can better 
protect students.
    At the college and university level, efforts to prevent and respond 
to sexual assault are underway. For instance, some colleges and 
universities now require students to participate in seminars to help 
them understand what sexual assault is and how to prevent and report 
it. At the University of North Carolina - Chapel Hill, for example, 
these seminars reinforce a safe campus culture and explain university 
policies and procedures for responding to reports of sexual violence.
    Institutions are also improving how they support victims of sexual 
assault, providing resources and counseling services to help students 
recover from such a terrible event, complete their education, and 
continue on with their lives. Just as important, administrators are 
working to put in place a fair resolution process that respects the 
rights of the victim and the accused.
    At the national level, the federal government has been working with 
colleges and universities to prevent and respond to sexual assault for 
decades. More recently, members of Congress have introduced legislative 
proposals intended to improve protections for college students. 
Additionally, the administration has established new policies 
institutions must follow.
    Colleges and universities have rightly raised concerns about the 
administration's one-size-fits-all regulatory approach. While well-
intended, the administration has further complicated a maze of legal 
requirements, added to the confusion facing students, administrators, 
and faculty, and made it harder for institutions to guarantee student 
safety. As Dr. Rue will explain during her testimony, the patchwork of 
federal and state policies has impeded the efforts of administrators 
and educators to effectively prevent and respond to sexual assault on 
their campuses.
    As Congress works to strengthen higher education, it must ensure 
tough, responsible policies are in place to fight these crimes and 
support the victims. I am pleased we have a panel of witnesses to 
represent all sides of this difficult yet important discussion. Your 
observations and recommendations are vital to our effort to help 
colleges and universities provide students the safe learning 
environment they deserve.
                                 ______
                                 
    Mr. Hinojosa. Thank you, Chairwoman Foxx.
    I join you in welcoming our distinguished panel of 
witnesses.
    The subject of this hearing is extremely sensitive. As 
ranking member of this subcommittee, I believe that we must 
raise the level of awareness in our communities and throughout 
our nation about the seriousness of campus sexual assault and 
its impact on our victims, both women and men, and their 
families. These impacts are far-reaching and include poor 
academic performance, stress, depression, and abuse of alcohol 
and drugs.
    In addition to supporting the victim, we must also be 
sensitive to the rights of the accused. Institutions of higher 
education must have processes that ensure fairness in handling 
the allegations of campus sexual assaults and that campus 
investigations are consistent with our nation's longstanding 
principles of due process.
    Whatever system is put in place, we must ensure that 
victims are not afraid to come forward. Unfortunately, many 
victims are reluctant to report sexual assaults because of 
shame, or fear of retaliation, or worries about lack of proof, 
uncertainty that what happened constitutes assault, or possibly 
because they lack information on where or how to report the 
assault, and fear of being treated poorly by the criminal 
justice system.
    As a nation, we have made progress towards better 
understanding and addressing this serious challenge of campus 
sexual assault. For example, through the development of the 
White House Task Force to Protect Students from Sexual 
Assaults, the Department of Justice's Office of Violence 
Against Women developed a multiyear initiative to provide 
support to programs to prevent campus sexual assault and their 
recent online resource center for changing our campus culture.
    In the year 2007, the U.S. Department of Justice also 
funded a groundbreaking study on campus sexual assault. The 
findings of that study were staggering. Let me give you some 
examples.
    Among- women in college, nearly 20 percent will bevictims 
of attempted or actual sexual assault; as well, about 6 percent 
of undergraduate men. Most victims were violated in their first 
or second year at college. The majority, 75 to 80 percent, knew 
their attackers--often a friend, a classmate, acquaintance, or 
someone they dated.
    The study also confirmed that the risk of campus sexual 
assault for undergraduate women increases greatly with the 
consumption of alcohol and/or drugs. It is clear, our concerted 
efforts are needed to deal with these serious issues.
    In addition to these federal efforts, I am proud to report 
that my own home state of Texas is responding to calls of 
action. Starting this year, colleges and universities are 
required to inform students of campus sexual assault policies 
during freshmen orientation. Schools are also required to 
review and update those policies every 2 years.
    Students returning to class at the University of Texas 
campuses this fall will also be participating in the nation's 
most comprehensive study on sexual assaults ever conducted in 
higher education. The Cultivating Learning and Safe 
Environments case study will be led by researchers at U.T. 
Austin School of Social Work and will include online 
questionnaires for students; surveys and focus groups of 
faculty, staff, and campus law enforcement; and a 4-year cohort 
study of entering freshmen to identify the psychological and 
economic impact of sexual violence. The U.T. system is spending 
$1.75 million dollars on this study.
    So I applaud U.T.'s effort to address campus sexual assault 
and urge other colleges and universities throughout our country 
to join in the commitment to end sexual violence on their 
campuses.
    In closing, let us renew our efforts to support victims of 
campus sexual assault. We can't wait for yet another high-
profile incident to occur before we address this issue.
    I look forward to hearing what recommendations our panel of 
witnesses may have to reduce sexual assault on our college 
campuses, and I thank you.
    And with that, Madam Chair, I yield back.
    [The statement of Mr. Hinojosa follows:]

Prepared Statement of Hon. Ruben Hinojosa, Ranking Member, Subcommittee 
               on Higher Education and Workforce Training

    Thank you, Chairwoman Foxx. I join you in welcoming our witnesses, 
Ms. Lisa Maatz, Mrs. Dana Scaduto, Mr. Joseph Cohn, and Dr. Penny Rue.
    The subject of this hearing is extremely sensitive. as Ranking 
Member of this Subcommittee, I believe that we must raise awareness in 
our communities and throughout our nation about the seriousness of 
campus sexual assault and its impact on our victims both women and men 
and their families. These impacts are far reaching and include poor 
academic performance, stress, depression, and abuse of alcohol and 
drugs.
    In addition to supporting the victim, we must also be sensitive to 
the rights of the accused. Institutions of higher education must have 
processes that ensure fairness in handling allegations of campus sexual 
assaults, and that campus investigations are consistent with our 
nation's long standing principles of due process.
    Whatever system is put in place we must ensure that victims are not 
afraid to come forward. Unfortunately, many victims are reluctant to 
report sexual assaults because of shame; fear of retaliation; worries 
about lack of proof; uncertainty that what happened constitutes 
assault; or because they lack of information on where or how to report 
the assault; and fear of being treated poorly by the criminal justice 
system.
    As a nation, we have made progress toward better understanding and 
addressing this serious challenge of campus sexual assault. For example 
through the development of the white house task force to protect 
students from sexual assaults, the department of justice's office on 
violence against women developed a multiyear initiative to provide 
support to programs to prevent campus sexual assault and their recent 
online resource center for changing our campus culture.
    In 2007, the U.S. Department of Justice also funded a 
groundbreaking study on campus sexual assault. The findings of the 
study were staggering. For example: among women in college, nearly 20% 
will be victims of attempted or actual sexual assault, as will about 6% 
of undergraduate men. Most victims are violated in their first or 
second year at college. The majority -75% to 80%--knew their attackers 
- often a friend, classmate, acquaintance, or someone they dated. The 
study also confirmed that the risk of campus sexual assault for 
undergraduate women increases greatly with the consumption of alcohol 
and/or drugs.
    It is clear our concerted efforts are needed to deal with these 
serious issues in addition to these federal efforts, I am proud to 
calls for action. starting this year, colleges and universities are 
required to inform students of campus sexual assault policies during 
freshman orientation. Schools are also required to review and update 
those policies every two years.
    Students returning to class at the University of Texas campuses 
this fall will also be participating in the nation's most comprehensive 
study on sexual assaults ever conducted in higher education. the 
cultivating learning and safe environments (clase) study will be led by 
researchers at UT Austin's Achool of Social Work, and will include 
online questionnaires for students; surveys and focus groups of 
faculty, staff and campus law enforcement; and a 4-year cohort study of 
entering freshman to identify the psychological and economic impact of 
sexual violence. The UT system is spending $1.7 million on this study.
    I applaud UT's effort to address campus sexual assault and urge 
other colleges and universities to join in the commitment to end sexual 
violence on their campuses.
    Let us renew our efforts to support victims of campus sexual 
assault. We cannot wait for yet another high- profile incident to occur 
before we address this issue. I look forward to hearing what 
recommendations our witnesses may have to reduce sexual assault on our 
college campuses.
    Thank You, and with that, I yield back.
                                 ______
                                 
    Chairwoman Foxx. Thank you, Mr. Hinojosa.
    Pursuant to committee rule 7(c), all members will be 
permitted to submit written statements to be included in the 
permanent hearing record. And without objection, the hearing 
record will remain open for 14 days to allow such statements 
and other extraneous material referenced during the hearing to 
be submitted for the official hearing record.
    It is now my pleasure to introduce our distinguished 
witnesses.
    Ms. Dana Scaduto is the general counsel at Dickinson 
College in Carlisle, Pennsylvania. Previously, she was in 
private practice in Harrisburg, Pennsylvania, where she chaired 
her firm's education law practice and represented several 
Pennsylvania private colleges, including Dickinson. Ms. Scaduto 
is an active member of the National Association of College and 
University Attorneys and a member of the Legal Services Review 
Panel of the National Association of Independent Colleges and 
Universities.
    Dr. Penny Rue is vice president for campus life at Wake 
Forest University in Winston-Salem, North Carolina. Dr. Rue is 
responsible for the well-being and safety of Wake Forest 
University students and their education outside the classroom 
and is nationally known for her creative leadership in 
strengthening campus communities.
    Ms. Lisa Maatz is vice president for government relations 
for the American Association of University Women, AAUW, here in 
Washington, D.C. Ms. Maatz previously spent 16 months serving 
concurrently as the interim director of the AAUW Legal Defense 
Fund. She has done similar work for the NOW Legal Defense and 
Education Fund and the Older Women's League.
    Mr. Joseph Cohn is legislative and policy director at the 
Foundation for Individual Rights in Education, FIRE, in 
Philadelphia, Pennsylvania. He is a former staff attorney for 
the United States Court of Appeals for the third circuit and 
law clerk in the Philadelphia Court of Common Pleas. 
Immediately prior to joining FIRE, Mr. Cohn served as the 
interim legal director for ACLU affiliates in Nevada and Utah.
    I now ask our witnesses to stand and raise your right hand.
    [Witnesses sworn.]
    Let the record reflect the witnesses answered in the 
affirmative.
    You may take your seat.
    Before I recognize you to provide your testimony, let me 
briefly explain our lighting system. You have 5 minutes to 
present your testimony. When you begin, the light in front of 
you will turn green; when 1 minute is left, the light will turn 
yellow; when your time is expired, the light will turn red. At 
that point, I will ask that you wrap up your remarks as best as 
you are able.
    Members will each have 5 minutes to ask questions.
    Now I want to recognize Ms. Scaduto for her comments.
    Thank you.

   TESTIMONY OF MS. DANA SCADUTO, GENERAL COUNSEL, DICKINSON 
                     COLLEGE, CARLISLE, PA

    Ms. Scaduto. Thank you, Chairwoman Foxx, and good morning.
    And good morning, Ranking Member Hinojosa and Chairman 
Kline.
    I thank you for the opportunity to be here today. As a 
higher education senior administrator with a long history of 
involvement in the issue of sexual misconduct on our nation's 
campuses, I am here today because we share the committee's 
commitment to educating our nation's students in safe and 
supportive environments.
    American colleges and universities are happy to work in 
partnership with the government and others on finding solutions 
that will help bring about cultural change and put an end to 
this most serious problem. As we move forward, I want to take a 
few minutes to share with you some of the challenges higher 
education is facing in our efforts and to propose some ways in 
which our government and this subcommittee can further help us 
achieve greater success in preventing and responding to sexual 
violence.
    As I make my comments this morning, I will use the term 
``victim'' out of expediency and because it is referenced in 
the Campus SAVE Act, but without any personal preference as to 
terminology.
    First, please recognize that the reports of sexual violence 
we receive on our campuses are not straightforward or easy to 
resolve. The sexual violence claims we see most frequently do 
not involve force or attacks by strangers, but happen between 
individuals who are acquainted, where one or both are 
intoxicated, and where the primary issue is whether consent to 
a sexual act was given. We are left to resolve word-on-word 
conflicts between two people whose memories may be impaired and 
where there are no witnesses.
    Add to this the fact that reports may not be made for days, 
weeks, or months following an event, and I can hope you see the 
complexity of resolving such issues in a manner that the 
parties believe to be fair.
    And while speaking of fairness, colleges and universities 
are committed to providing fair treatment to all of our 
students, including not only victims of sexual violence but 
also to those accused of sexual violence. The changes over the 
last 4 years have resulted in complexities and challenges in 
maintaining the necessary balance.
    For example, on a small campus, removing an accused student 
from a class in order to keep the student away from an alleged 
victim before any determination of responsibility can be made 
may result in the accused student being forced out of a class 
where there are no other sections or being forced out of a 
class shortly before graduation. We are also often trying to 
navigate the complexities of VAWA, Clery, and Title IX laws, 
regulations, and guidance, as well as state laws simultaneously 
and without the confidence that we can do so to the 
satisfaction of all.
    Employees' duties to report under various standards differ. 
What and how we are supposed to advise victims of their options 
for moving forward when they report a sexual assault are just 
two examples of those complexities.
    Additionally, the current laws and guidance do not appear 
to recognize that college disciplinary proceedings are not 
equipped to replace law enforcement or judicial functions. The 
members of our campus communities who are expected to meet and 
discharge the new standards established for resolving sexual 
violence claims are faculty, staff, and, historically, 
students--not judges nor lawyers.
    To support colleges' and universities' efforts to improve 
culture around this serious issue and to help us in our efforts 
to hold violators accountable through processes that are fair, 
equitable, and impartial, I recommend the following four points 
for your consideration: First, pause in considering legislation 
that adds additional requirements to those already complex 
network of federal and state laws, regulations, and OCR 
guidance until there has been an opportunity to evaluate 
whether the efforts to date are working. As a reminder, the 
VAWA regulations only went into effect July 1st of this year.
    Second, consider creating a safe harbor for higher 
education that does not relieve us from accountability for 
failures to comply, but which provides us with certain 
presumptions of good faith when reviewing our conduct. For 
example, when we are applying fact-based tests established by 
various laws, such as in deciding whether to investigate or not 
over a victim's objection, if we miss the mark but are found to 
have acted in good faith in our efforts, provide us with 
protection from penalties or administrative action.
    Third, if new requirements are considered at some point in 
the future, OCR should follow notice and comment requirements 
of the Administrative Procedures Act. The Title IX guidance put 
into place since 1991--since 2001 was done without notice or 
comment from parties outside the agency, depriving colleges and 
universities, victims and survivors, and other interested 
parties of the opportunity to provide input that may have been 
helpful in improving clarity and alignment with existing laws 
and regulations.
    I will leave my fourth point for your reading.
    Thank you for listening and considering my perspective as a 
higher education administrator.
    [The testimony of Ms. Scaduto follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Chairwoman Foxx. Dr. Rue, you are recognized for 5 minutes.

  TESTIMONY OF DR. PENNY RUE, VICE PRESIDENT FOR CAMPUS LIFE, 
           WAKE FOREST UNIVERSITY, WINSTON-SALEM, NC

    Ms. Rue. Thank you, Chairwoman Foxx, Ranking Member 
Hinojosa, and honorable committee members, for the opportunity 
to testify about this critically important issue.
    The higher education community takes the problem of campus 
sexual assault very seriously, and we are working diligently to 
prevent sexual assault and to manage systems fair to all 
students. These are not new issues for us. It has been a 
priority for decades because of our genuine care for the 
health, safety, and well-being of our students.
    Currently, we must address sexual violence compliance 
responsibilities under a swirl of regulations. This one-size-
fits-all can create resource challenges that impede our effort 
to prevent and respond to sexual assault. Added to these 
challenges now are state legislatures that are enacting 
statutes, creating a patchwork of conflicting regulations.
    Prevention and education efforts are critical to reducing 
incidents of sexual violence. Many campuses employ online 
modules, allow new students to participate in prevention 
programming at orientation and belong--and beyond, online 
training programs to education faculty and staff to whom 
students might report about where to turn.
    According to the CDC, bystander intervention training and 
social norms training are promising practices but have not yet 
been validated through rigorous design, so more grant support 
is needed to conduct evaluation research in this growing field.
    At Wake Forest we use PREPARE peer educators to deliver 
highly interactive, situational programs to put incoming 
students' attitudes to the test and really get them to think. A 
highly engaging peer theater program reinforces those messages 
and is followed by an online curriculum that uses scenarios 
highly relevant to students. This program, Haven, will also 
give us benchmark attitudes that we can use to assess the 
effectiveness of our programs over time.
    After students have time to navigate the social scene, they 
will participate in a program in their residence halls on 
bystander intervention training using the Step-Up model.
    Campus climate surveys are another growing practice. These 
are used to assess students' perception of and experience with 
sexual violence, and these surveys are designed to provide an 
institution-specific picture that in turn enables leaders to 
coordinate with the campus community to strengthen prevention 
efforts.
    One standardized survey imposed on all institutions would 
likely not accommodate the wide array of campus environments 
that range from 4-year residential, like my own, to community 
colleges and even primarily online universities. Each 
institution should have the autonomy to develop the best 
survey, given benchmarks to hit.
    Although prevention strategies are in place, sexual 
violence will still occur on our campuses. Student affairs 
administrators are committed to being fair and balanced to all 
of our students engaged in the conduct process.
    Critical to this process is the widely established practice 
of confidentiality for the victim and the accused, one of the 
primary reasons that a student will choose an on-campus 
practice over reporting to the police.
    One of our most important points in trauma-informed work is 
to allow the survivor the right to choose the path to follow in 
the wake of an incident. Some may want to report to the campus, 
some may want to report to the police, or both. Some may only 
want support.
    The institution really needs to respect that choice. To 
take the decision out of the victim's hand by mandating that a 
report of sexual violence to campus automatically is turned 
over to the police will create a chilling effect on the 
willingness of victims to come forward, exactly the opposite of 
what we want to happen.
    The confidentiality of our conduct processes guaranteed 
under FERPA creates uncertainty about their fairness--we know 
that--most recently towards the respondent. But it is important 
to reiterate the campus processes are carefully structured to 
be fair and equitable to all parties.
    In the recent Washington Post Kaiser Family Foundation 
poll, 84 percent of current and recent college students said 
they are very or somewhat confident in the school 
administration's ability to address complaints.
    We are not a court of law. Ours is an educational process 
intended to arrive at a fair and equitable outcome for all 
parties. At the core of this distinction is our standard of 
scrutiny, preponderance of the evidence.
    I think I speak for most colleges and universities in 
saying that we do not need more regulation; we need more 
consultation. Guidance from the Department of Education coming 
without notice often does not help us navigate these waters.
    I strongly believe it is important to provide opportunities 
for public comment and discussion where the full complexity of 
the issues can be explored from those who know them firsthand.
    In closing, I must express deep concern about the narrative 
from the media that colleges and universities care more about 
their institution's reputation than the rights and experiences 
of our students. Nothing could be further from the truth.
    Instead, those of us who handle incidents of sexual 
violence are professionals who share an overwhelming commitment 
to strike the delicate balance in today's legislative 
environment to preserve the educational rights of students, to 
manage fair and equitable conduct systems, and above all, to 
prevent sexual violence.
    Thank you, Chairwoman.
    [The testimony of Ms. Rue follows:]
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    Chairwoman Foxx. Thank you very much, Dr. Rue.
    Ms. Maatz, you are recognized for 5 minutes.

   TESTIMONY OF MS. LISA M. MAATZ, M.A., VICE PRESIDENT FOR 
GOVERNMENT RELATIONS, AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, 
                        WASHINGTON, D.C.

    Ms. Maatz. Good morning. On behalf of the more than 170,000 
members--is that on? There we go.
    Good morning.
    On behalf of the more than 170,000 members, over 1,000 
branches, and almost 900 colleges and university partners of 
the American Association of University Women, I thank you for 
inviting us to testify today. My remarks are informed by my 12 
years with AAUW as well as my tenure as the executive director 
of Turning Point, a domestic violence program recognized for 
excellence by the Ohio Supreme Court; and also at Wittenberg 
University, where I was a hall director and ran a women's 
center that responded to incidents of sexual assault. I can 
personally attest to the fact that this is not a new problem.
    When campus environments are hostile because of sexual 
harassment and violence, students can't learn. It is that 
simple and that devastating.
    Schools have an important and necessary role to play in 
addressing this epidemic. Why? Because student rights to an 
education free of sex discrimination are on the line.
    AAUW has long identified the need to end sexual harassment 
and violence on campuses. Our own research revealed that nearly 
two-thirds of college students experience sexual harassment.
    Just this year, a national poll found one in five women 
said they had been sexually assaulted in college. This issue 
impacts both men and women and students from all walks of life 
at all types of schools.
    Title IX and the Clery Act provide the very tools schools 
need to improve campus climates for everyone.
    Passed in 1972, Title IX is a gender-neutral law that 
prohibits sex discrimination in federally funded education 
programs. The law requires schools to take steps to eliminate 
sexual harassment and violence, prevent their recurrence, and 
address their impacts on individual students and the entire 
campus. This includes evaluating current practices, publishing 
anti-discrimination policies, and implementing grievance 
procedures providing for a prompt and equitable resolution of 
complaints.
    Schools must also provide accommodations to students, such 
as adjusting housing arrangements and class schedules and 
providing academic support--actions that schools are uniquely 
situated to provide.
    All schools should have a Title IX coordinator to oversee 
these activities as well as monitor patterns and address 
systemic problems. It is important to note that these 
requirements are not new, but date back to the law's first 
regulations back in 1975. Since then, over the course of 
Republican and Democratic administrations, the Department of 
Education has continued to provide technical assistance and 
guidance that promotes compliance with the law.
    Schools also follow a consumer protection law known as the 
Clery Act. It requires colleges and universities that 
participate in federal financial aid programs to disclose crime 
statistics and security information.
    Originally passed in 1990, Congress updated the Clery Act 
in 2013 as part of a bipartisan reauthorization of the Violence 
Against Women Act. These updates require schools to report 
additional crime statistics on domestic violence, dating 
violence, and stalking, and provide ongoing sexual assault 
prevention and bystander intervention training campus-wide. 
This public report of a school's safety efforts is valuable to 
students and parents and provides insight to schools working to 
improve campus safety.
    Title IX and the Clery Act are longstanding complementary 
laws that work together to ensure that students and schools 
have a clear course of action when sexual violence occurs. 
Appropriately, schools are not in the business of imposing 
criminal punishments. Those decisions are best left to 
authorities in charge of criminal investigation and prosecution 
if a survivor chooses to pursue that course.
    The school's civil rights proceedings and any criminal 
investigation represent parallel yet equally necessary paths. 
Laws and legal precedence spell out clear requirements for 
schools to be prompt, fair, and impartial in all disciplinary 
proceedings, and Title IX echoes these due process 
requirements.
    Similarly, the Clery Act requires that school processes be 
prompt, fair, and impartial, and that both parties receive 
timely notice regarding the outcomes of proceedings.
    There are next steps that Congress can take to help assist 
schools and students in their efforts to end sexual harassment 
and violence. We know that the time immediately following an 
incident is especially critical for survivors.
    They need access to a safe space, medical and counseling--
medical care and counseling, and information about their rights 
and where they can seek additional support. Schools should also 
ensure an advisor is available to connect survivors to all of 
these resources.
    The AAUW-supported Survivor Outreach and Support Campus 
Act, or the SOS Campus Act, would ensure schools take these 
critical steps.
    In addition, climate surveys can help schools better to 
understand the dynamics behind reported and unreported 
incidents of sexual violence. Schools need information in order 
to effectively combat this epidemic. When done well, climate 
surveys provide transparency that is crucial for student safety 
and a useful tool to help schools fine-tune their response.
    The AAUW-supported HALT Campus Sexual Violence Act would 
also require surveys at all schools.
    Finally, we urge Congress to provide additional resources 
for the Department of Education to support Title IX 
coordinators and other stakeholders on relevant laws and best 
practices. There are schools that are working diligently to 
respond to incidents of sexual violence, and technical 
assistance can help them make real change.
    Further, with more attention to sexual violence we have 
also seen an uptick in complaints, and an unprecedented number 
of schools are under investigation for Title IX compliance. The 
Office for Civil Rights needs additional funding to provide 
ongoing technical assistance for schools, as well as to hold 
bad actors accountable.
    We all believe, I think, that a single incident of sexual 
violence is one too many. When it interferes with students' 
education it adds insult to injury.
    But we have the tools to make real change, and AAUW looks 
forward to working with you as you reauthorize the Higher 
Education Act and consider this important topic.
    Thank you.
    [The testimony of Ms. Maatz follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairwoman Foxx. Thank you.
    Mr. Cohn, you are recognized for 5 minutes.

TESTIMONY OF MR. JOSEPH COHN, LEGISLATIVE AND POLICY DIRECTOR, 
FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION, PHILADELPHIA, PA

    Mr. Cohn. Chairwoman Foxx, Ranking Member Hinojosa, 
honorable members of the subcommittee, and members of the 
committee at large, thank you for the introduction.
    I am the legislative and policy director at the Foundation 
for Individual Rights in Education, or FIRE. We are a 
nonpartisan, nonprofit organization dedicated to defending 
student and faculty civil liberties on America's college 
campuses. I thank you for the opportunity to discuss this 
critical issue.
    One of the core constitutional rights that FIRE defends is 
due process. Universities are both morally and legally 
obligated to respond to known instances of sexual assault in a 
manner reasonably calculated to prevent its recurrence. And for 
more than 50 years, courts repeatedly have held that the 
Constitution requires public institutions to provide meaningful 
due process protections to accused students.
    FIRE believes that these twin obligations need not be in 
tension. Access to higher education is critical. The stakes are 
extremely high for everybody in campus disciplinary proceedings 
and it is essential that no student's education is curtailed 
unjustly.
    While efforts to address campus sexual assault have focused 
on eliminating bias against complainants, far too little 
attention has been placed on preventing bias against the 
accused. And even more insufficient attention has been placed 
on addressing what I call the competency gap--the difference 
between what college administrators are equipped to do and what 
the Department of Education's Office for Civil Rights is 
demanding of them.
    Campuses are ill-suited to adjudicate allegations of sexual 
assault. While colleges and universities have a role to play in 
tackling the issue, we must make sure that we are assigning 
them responsibilities they are capable of performing well.
    Having defended campus due process for 15 years, FIRE is 
convinced that colleges are simply unequipped to serve as 
investigators and fact-finders in these challenging issues.
    Rape is a crime. It should be treated as such. Using 
amateur systems is insulting to victims and disastrous to 
fundamental fairness.
    Unsurprisingly, injustice for both victims and accused is 
commonplace.
    Sound public policy requires adjudicating these cases in 
courts after professional investigations. Only courts have the 
power to take violent predators off the streets. After all, a 
student has been expelled but not jailed is free to commit rape 
again.
    Complicating matters further, in the April 4, 2011 dear 
colleague letter, which OCR did not subject to public notice 
and comment as required under the Administrative Procedure Act, 
the agency mandated that institutions adjudicate sexual assault 
cases using the low preponderance of the evidence standard. 
OCR, while well-intentioned, has done more harm than good in 
this arena.
    Since issuing the 2011 DCL, OCR has conducted over 130 
Title IX investigations, several of which have resulted in 
settlement agreements. To the best of FIRE's knowledge, only 
one such investigation is looking into whether the disciplinary 
process is biased against the accused. The resulting perception 
of top-down federal bias against the accused is inescapable.
    I would like to briefly address three bills currently 
pending before Congress: the Campus Accountability and Safety 
Act, CASA; the Safe Campus Act; and the Fair Campus Act. There 
are aspects of each that FIRE supports and there are provisions 
in each that give FIRE pause.
    On the positive side, all three bills aim to increase the 
involvement of law enforcement. If our goal is to implement a 
serious response to a serious problem, involving professionals 
in the criminal justice system is necessary.
    FIRE has multiple concerns about CASA, chief among them the 
fact that the bill provides no meaningful due process 
protections for the accused. None.
    Conversely, the Safe Campus Act and Fair Campus Act both 
include important procedural safeguards that will benefit 
accused students and complainants alike. What is more, both the 
Safe Campus Act and the Fair Campus Act would repeal OCR's 
preponderance of the evidence mandate, provide the complainant 
and respondent crucial rights to active assistance of counsel, 
and require institutions to turn over inculpatory and 
exculpatory evidence to both sides.
    To encourage more complainants to report allegations to the 
proper authorities, the Safe Campus Act prohibits institutions 
from taking action on complaints unless they choose to report 
the allegation to law enforcement. FIRE agrees that punitive 
measures should be waived if a complainant does not report the 
accusation to law enforcement for investigation. However, we 
strongly urge Congress to amend the language so that non-
punitive measures and accommodations may still be made 
available regardless of the student's decision to report.
    While colleges have proven incapable of competently 
determining the truth or falsity of felony accusations, they 
are well-equipped to secure counseling for alleged victims, 
provide academic and housing accommodations, secure necessary 
medical attention, and provide general guidance for students as 
they navigate the criminal justice system. Institutions should 
perform these functions regardless of the complainant's 
decision to report the incident. The bill should be amended to 
encourage them to do so.
    I provide a more detailed analysis of the bills in my 
written testimony to the committee.
    To sum up, there is no simple solution to the problem of 
sexual assault on campus, but lowering the bar of finding guilt 
and eliminating criminal due process protections--by doing 
that, we are creating a system that is impossible for colleges 
to administer fairly. Congress can help reverse this trend by 
taking all student interests into account. To accomplish that, 
Congress should include the best aspects of each pending bill 
in a comprehensive, balanced measure.
    Thank you again for the opportunity to address you, and I 
look forward to answering your questions.
    [The testimony of Mr. Cohn follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairwoman Foxx. Thank you very much.
    I would now like to recognize the chairman of the 
committee, Chairman Kline, for 5 minutes.
    Mr. Kline. Thank you, Madam Chair, and thanks for holding 
the hearing.
    Thanks to all the witnesses for being here. Real experts 
and excellent testimony.
    I picked up a theme, if I can use that term, when I was 
listening to both Ms. Scaduto and Dr. Rue, about complexity. 
Somebody, I think it was Dr. Rue, used the words ``swirl of 
regulations'' and a ``patchwork of regulations.'' And Ms. 
Scaduto, in her four recommendations, the one that is written 
and not--wasn't oral has--says ``harmonize standards, 
obligations, expectations under Title IX, VAWA, and Clery.''
    It does seem to me that it is confusing because you have 
different statutes with different requirements, and I have 
great confidence that everybody in this room--sitting up here, 
sitting there, or sitting in the gallery, so to speak--wants to 
find a way to eliminate sexual assaults on campus, and should 
it occur, to make sure that we are holding perpetrators 
accountable and that we are providing support and protection 
for victims. But it does seem to be complex.
    So I will just go to you, Ms. Scaduto, in part because I 
lived in the beautiful town of Carlisle for a while. It is a 
beautiful part of the country and of the state, and my son 
graduated from Carlisle High School. And so I have got this 
tie. I have just got to go to Carlisle. And it is Carlisle, 
not--anyway, it is a long story.
    Are you concerned that the emphasis that is being placed, 
the focus that is being placed on complying with these 
different federal laws, regulations, and guidance is detracting 
from your ability to do what is in the best interest of your 
students?
    Ms. Scaduto. I apologize.
    Yes, we are. I think it is a concern shared not only on 
Dickinson's campus in Carlisle, but on campuses around the 
country.
    If we were able to harmonize--and we understand that the 
promulgation of legislation and regulations is done with the 
best of intentions in protecting our students, and it is a goal 
we support. But when we are spending our time trying to 
harmonize our compliance with the various statutes, it takes 
away from where I think we as educators excel, and that is in 
educating. And that is on the side of prevention and training 
that Dr. Rue spoke so eloquently about.
    When we have different reporting requirements, for example, 
under Clery and under the OCR guidance, who--we have the same 
group of employees who are interacting with the same students 
but we are getting different standards for who must report and 
what they must report when they learn of an incident of sexual 
misconduct. And when that type of analysis detracts from 
making--getting the report made and responding to a student in 
need, it is problematic.
    There are ways to improve harmonization, such as the notice 
and comment period that could be used by OCR when it enacts new 
guidance, because even there are distinct differences between 
that and the VAWA regulations or the Clery regulations, for 
example.
    So yes, the disharmony does present complications and takes 
us off the real important work we need to do around this issue.
    Mr. Kline. Thank you very much.
    I yield back.
    Chairwoman Foxx. Thank you, Mr. Chairman.
    I now recognize the ranking member, Mr. Scott.
    Mr. Scott. Thank you, Madam Chairman and Ranking Member 
Hinojosa, for calling this hearing on preventing and responding 
to sexual assault on college campuses.
    This issue of campus safety is foremost in the minds of 
American families as they send their children away to college. 
Congress in 2009 declared September the National Campus Safety 
Awareness Month to help bring awareness to incidents of campus 
rape, mass shootings, and other forms of violence at 
educational institutions.
    Twenty-five years ago, Congress passed the Clery Act to 
require institutions of higher learning to report campus crime 
statistics and to publish campus safety and security policies.
    We know the issue of campus sexual assault is complex. 
Nevertheless, Title IX and the Clery Act require that once the 
school knows or reasonably should know of possible sexual 
violence it must take immediate and appropriate action to 
investigate or otherwise determine what occurred.
    Unfortunately, campus sexual assault is usually addressed 
only after there is an alleged incident. We have to have 
meaningful procedures to hold accountable those who commit 
sexual assaults, but we also must do more to try to prevent 
them from occurring in the first place.
    One strategy is to educate young people about healthy and 
safe relationships before entering college. The Teach Safe 
Relationships Act of 2015, introduced by Senator Tim Kaine of 
my home state of Virginia, would require that health education 
in public secondary schools include learning not just biology 
but also safe relationship behavior aimed at preventing sexual 
assault, domestic violence, and dating violence. Currently, 
federal law does not require health and sex education classes 
to include information regarding these relationships, which can 
prevent sexual assault.
    There is also a study published in the June 2015 New 
England Journal of Medicine that found that college women who 
participated in an intensive program showing students how to 
recognize and resist sexual aggression reduced their chance of 
being raped by nearly 50 percent and attempted rape by 62 
percent.
    And we know that funding is also an issue, and funding is 
needed to implement educational programs and robust enforcement 
of all civil rights laws on campus. But the Department of 
Education's funding has decreased or been flat-lined over the 
years and the agency staffing level is the lowest it has been 
in 34 years despite having a record of nearly 10,000 civil 
rights complaints.
    We can also do more to train campus public safety 
personnel, and support evidence-based research to strengthen 
college safety and security, and have a clearinghouse for 
dissemination of relevant campus public safety information. As 
an example, the National Center for Campus Public Safety in 
January 2015 conducted its first pilot program, offered in a 
course in Richmond, Virginia, to develop a trauma-informed 
sexual assault investigation and adjudication training for 
campus officials, including Title IX coordinators, advocates, 
legal counsel, and others.
    Let me ask just a question to all of the witnesses. Some 
have alluded to some of the things we can do. Can the witnesses 
talk about--I know we are going to talk about what to do after 
the fact, but what kind of strategies can we do before the fact 
to actually reduce the incidence of campus sexual assault?
    Ms. Maatz. That is an excellent question, Mr. Scott. Thank 
you so much for asking it.
    You know, working on relationships and students' 
understanding of safe relationships is key, and doing that 
before they get to college is also important. AAUW's research 
shows that sexual harassment and bullying is prevalent in K-12 
schools starting really, quite frankly, with preschool. So 
having conversations about safe relationships, having good 
curriculum about how to talk about those issues, and also 
encouraging students to look at themselves as someone who can 
help, you know, to look at the bystander intervention kinds of 
models have been really successful.
    The CDC studies have shown that when you really do 
relationship education and an emphasis on safe and healthy 
relationships you do start to erode campus sexual assault.
    So you do need to start young. It needs to be consistent. 
It needs to be ongoing. And it is something that we need to get 
behind.
    Mr. Scott. Are you familiar with Senator Kaine's bill?
    Ms. Maatz. I am familiar with Senator Kaine's bill.
    Mr. Scott. Can you make a comment about it?
    Ms. Maatz. It is a bill that AAUW supports. I think it is 
smart to look at this kind of curriculum across the country.
    And right now, since we know we have this epidemic of 
campus sexual assault, starting young is great. Doing it in 
high school is fine, but I also would submit you probably need 
to start in elementary school.
    Ms. Rue. Let me just add briefly that the research is 
inconclusive because rarely do we have the opportunity to do 
random assignment of subject to group, which is where you can 
get really rigorous testing. So more support for research in 
this area would really be useful. We have what we know and what 
CDC calls ``promising practices,'' but we don't actually have 
proven effectiveness.
    Mr. Scott. Thank you, Madam Chair.
    Chairwoman Foxx. Thank you very much, Mr. Scott.
    Dr. Rue, you mentioned the importance of prevention and 
education efforts on the campus in reducing incidents of sexual 
assault. Do you have written evaluations that you can provide 
us on the results of those efforts? And could you give us just 
a thumbnail of the greatest--what have had the greatest impact 
on the campus safety climate, from what you have experienced?
    Ms. Rue. Yes, ma'am. Thank you for the question.
    The two most promising practices are bystander intervention 
training and social norms training.
    In bystander intervention training, people learn the steps 
it takes to disrupt or interrupt what looks like it is going to 
be problematic behavior. The truth is peers are often able to 
do this, but they need the courage to essentially change the 
code, if you will, of what is agreed upon as appropriate social 
behavior.
    And this has been effective. Again, we haven't had studies 
that have shown random assignment of subject to group so we 
call it a promising practice.
    The other practice is the social norms practice, and what 
social norms does is look at the gap between what people think 
and what people think other people think. And it really 
contributes to things such as rape myth.
    And so when you can ask, through research, ``Does a woman 
drinking too much suggest that she wants to have sex?'' you can 
actually measure that and you will find that people think other 
people think that but they don't think that themselves. And so 
you can go back to your campus with that gap and combat those 
norms that are actually creating a hostile environment.
    Chairwoman Foxx. Thank you very much.
    Mr. Cohn, in your testimony you make the important point 
that rape is a crime and should be treated as such. How could 
using what you call amateur systems on campus lead to injustice 
for both victims and accused students?
    Mr. Cohn. Thank you for the question, Chairwoman Foxx.
    The primary way that--the way the status quo works harms 
both the accused students and the complainants is that we get 
unreliable findings because the people adjudicating cases don't 
have the right tools to do it. The same people who would be 
fine on juries are doing--you have deans of physics 
departments, English professors, and sophomores trying to 
figure out if a rape occurred.
    And they are doing without forensic evidence, they are 
doing it without the subpoena power, without the ability to put 
witnesses under oath. They are doing it without rules of 
evidence to make sure that relevant information is included and 
irrelevant is excluded. The idea that they are going to get it 
right consistently with all of those limitations is a fantasy.
    So the primary thing that we can do is make sure that we 
ask people to play a role that they are competent to fulfill, 
one that takes advantage of the skills and what they bring to 
the table, and work together. And that is what I mean when I 
say that amateurism affects injustices.
    Chairwoman Foxx. Thank you very much.
    Ms. Scaduto, you mentioned that you were a negotiator in 
the rule-making process for implementation for VAWA. Could you 
tell us a little bit more about that experience and how you 
believe the opportunity for stakeholders to contribute to the 
development of the regulations resulted in clearer and more 
transparent expectations for schools, especially in contrast to 
sub-regulatory guidance?
    Ms. Scaduto. Happy to do so, Chairwoman Foxx.
    Through the negotiated rule-making there was a group of I 
believe 14--28 with our alternates, who were very much a part 
of the process--and we represented divergent points of views, 
every view, however, being equally committed to dealing with 
the issue of sexual violence.
    We had higher education administrators, like Dr. Rue, at 
the table; we had counsel, like me; we had security officers 
from higher ed; we had survivors and victims of rape, male and 
female both represented; we had advocacy groups at the table. 
And we did very hard work.
    We came together over a 3-month period and we looked at 
proposed language proffered by the Department of Education, and 
we had the opportunity to talk about whether we should drill 
down in a particular area and impose a single standard on a 
particular issue and talk about, as Dr. Rue mentioned earlier, 
the fact that we need language which is fluid because colleges 
and universities are so different across this country: large, 
small, public, private, online, commuter--all those different 
issues.
    And it was very difficult work, but I am confident that the 
product we ended up with at the end of that process was a 
better reflection of the wider community in rules and 
regulations that work on college campuses than without it.
    Chairwoman Foxx. Thank you very much.
    Mr. Hinojosa, I recognize you for 5 minutes.
    Mr. Hinojosa. Thank you.
    My first question is to Ms. Lisa Maatz.
    You state in your statement that you read to us that 
current law requires schools to respond to campus sexual 
assault because a student's civil rights are on the line. You 
also said that a school's civil rights investigation and any 
law enforcement criminal investigation represent parallel and 
equally necessary paths.
    Can you please explain the parallel tracks of Title IX 
enforcement interact as compared with criminal investigations? 
And why is it so important for the victim to be able to decide 
whether he or she wants to pursue a criminal investigation as 
opposed to campus disciplinary process?
    Ms. Maatz. Well, I think--thank you very much for the 
question. I think there is great confusion between what a 
criminal process looks like and what the civil rights process 
on a college campus is supposed to look like.
    College campuses are not supposed to be nor would we expect 
them to be enforcing criminal law. What they are doing is 
looking at civil rights: Has Title IX been violated? Has a 
woman in this case been--has her education been impacted and 
therefore she can't, obviously, take advantage of her civil 
right to a sex discrimination-free education?
    So it is really in that sense--they are parallel tracks, 
but they are very different. Schools can't send people to jail. 
You know, schools really look at enforcing student code of 
conduct.
    And, you know, before when we were talking about the notion 
of kind of amateur courts, I do take exception to that in many 
respects on behalf of schools, because they have been dealing 
with - and enforcing their student code of conduct for decades, 
in some issues for hundreds of years. So the reality is, they 
know how to do that.
    Where there is confusion, I think, is that when it comes to 
campus sexual assault, schools are supposed to be dealing with 
the civil rights impact not just on that individual student but 
how it impacts the campus as a whole, and that is different 
than the criminal proceedings that we have talked about.
    Mr. Hinojosa. Thank you.
    Ms. Dana Scaduto, you said that colleges and universities 
are very concerned that despite their best efforts to follow 
applicable laws and guidance, achieving full compliance is not 
possible. And you also said proposing--creating safe harbors 
where colleges are not held liable under Title IX if they can 
show good-faith efforts to meet the requirements of conflicting 
provisions.
    Can you help me understand how creating such a safe haven 
would reduce and help prevent instances of campus sexual 
assault?
    Ms. Scaduto. Certainly, Mr. Hinojosa. It is my privilege to 
do so.
    Let's take the example--there are a couple of examples I 
can give you. If you take the OCR guidance, in it we are 
supposed to advise a victim of her right to report. Clery uses 
the language that we have to advise the victim of her right not 
to report.
    Is there an intended difference between those? And when you 
put those--you take that and you put it up against a state law, 
where, if you take Clery and you have to advise an individual 
of her right not to report but there is a state law that 
mandates reporting of felonies by the institution, have we 
created a conflict between--in executing on a plan that 
everyone wants the same outcome but we have this swirl of 
differences and we are not quite sure how to comply with all of 
them?
    And in our best efforts to do so, if we err by reporting 
under the state law when we have Clery telling us we have to 
report--advise a woman of her right--or a victim of her right 
not to report, provide us with protection and support that if, 
in our best efforts to comply, we miss the mark, that we won't 
be held accountable for penalties or agency action. That is 
just one example.
    Mr. Hinojosa. Thank you.
    Mr. Cohn, time is running out and as I heard your 
presentation, brought back memories of what is approximately 20 
years of service on this committee. Congresswoman Patsy Mink, 
from Hawaii, led a group of members of Congress to focus on 
Title IX and there was a mindset throughout the country, 
especially from some certain states, that wanted--that Title IX 
removed or weakened so that it wouldn't be a problem for them, 
their mindset that women were not supposed to have the same 
opportunities in sports.
    Now that we are dealing with this, you talk about allowing 
schools to set a higher burden of proof in these proceedings 
could make it more difficult to punish offenders. How does that 
contribute to making campuses safer?
    Mr. Cohn. Thank you, Congressman Hinojosa, for the 
question.
    I think reliability in outcomes makes campuses safer. And 
when you reduce the amount of certainty that fact-finders need 
to hold without providing them the tools to reach the fact-
finding in the first place, you are not really making campuses 
safer.
    At the end of the day, don't forget, someone who has been 
expelled from a campus is not removed from society. They are 
still free to walk the streets. The campus isn't actually safer 
either, even with the expulsion.
    The truth of the matter is that schools need to not be 
indifferent to claims, need to make sure that they can provide 
the kind of services necessary to make sure that complainants 
can get an education the next day. And that isn't tied 
necessary to being a fact-finder.
    Mr. Hinojosa. Well, I want to go on record that I disagree 
with you because the list of universities throughout the 
country with violations that are under investigation right now 
has doubled, tripled, and quadrupled. So I think that we really 
in the Congress need to address this, and be very, very 
strong--
    Chairwoman Foxx. The ranking member's time has expired.
    Mr. Hinojosa. I yield back.
    Chairwoman Foxx. Dr. Roe, you are recognized.
    Mr. Roe. Thank you.
    And thank you, for the panel. This is an incredibly 
complicated, difficult situation, and I think probably I am the 
only one sitting on the dais, except perhaps Dr. Heck, who has 
examined women for sexual assault and has testified in court. 
It is my lifelong job as an obstetrician/gynecologist. It is an 
incredibly difficult, complicated issue you all are dealing 
with.
    And, Ms. Scaduto, you brought out a couple of points that 
hit me. Requirements we have from the state--if I examine a 
woman in the emergency room, I break state law if I don't 
report that if this is a student, and they are in conflict. And 
I think it puts a great pressure, I mean, on you to know if you 
are doing the right thing.
    And I know that--and I am going to ask Mr. Cohn in a minute 
about this--we certainly want to protect the rights of each 
one, but I can tell you, I have dealt with patients over 
decades who have dealt with the consequences of sexual assault, 
and how you deal with it and--I mean, it changes--it is life-
changing, and I mean forever life-changing. So how you deal 
with this is incredibly important, and I think the start you 
all made is that early on is education is absolutely the key to 
prevention.
    And I know, Dr. Rue, you mentioned a couple of things that 
really intrigued me about how you prevent that. And the results 
in--I mean, the incidence is lowered greatly.
    I don't know whether the incidence is greater now or just 
the reporting is greater. I have a feeling it is just the 
reporting is greater. I think the crime has been there all 
along, and I think it just has been grossly underreported.
    So a couple things that I would like to know is--and I will 
start, Mr. Cohn, with you, is that you are absolutely right. To 
gather this information--I have done it meticulously before--is 
very difficult to do to protect the rights of everybody 
involved.
    And I know, Ms. Maatz, you mentioned we are dealing with a 
civil rights issue and a criminal issue.
    When does a school--when do you determine to turn this over 
to the police as a criminal--because it is a criminal act?
    Mr. Cohn. Well, I think that is really one of the key 
questions in this debate is what is the appropriate role of law 
enforcement here? And I am glad you zoned in on it.
    At the end of the day, mandatory reporting doesn't require 
a complainant to cooperate with an investigation. It does, 
however, require that the law enforcement is aware of it so 
they can at least reach out and offer the services they 
provide.
    One thing that we know--and it is a fact--is that you have 
only 72 hours to get a rape kit done; you have only 48 hours to 
get blood collected that can show whether someone was drugged 
against their will or perhaps if they were so intoxicated they 
couldn't possibly have consented. Once that timeframe is 
elapsed, it is--the window is gone to have that physical 
evidence help a claim.
    FIRE primarily believes that everyone will be helped by 
getting the right professionals plugged in as quickly as 
possible. That is the way to build trust with the--with law 
enforcement is to make sure that they get the information as 
fast as possible when they can take the best and strongest 
actions on behalf of victims.
    It will also help the falsely accused to have information 
recorded quickly, too. It will help everyone.
    Mr. Roe. Of course, we have seen over time where with new 
DNA evidence and new evidentiary things we have had that--where 
people have been falsely accused, and obviously you want due 
process for everybody.
    Dr. Rue, to you, at Wake Forest University, what resources 
do you have for a student, either male or female, after this 
has occurred? Because I can tell you, as a physician it is 
absolutely critical.
    Ms. Rue. Thank you for your question, Representative Roe.
    I agree with you that it is a life-changing event. I have 
sat with many, many students in that process, both men and 
women, quite honestly, and it is devastating.
    We do have 24/7 on-call confidential advisors that are 
available to go wherever the student is, if the student is in 
the emergency room or if the student has gone to student 
health. We have 24/7 student health and we have 24/7 student 
EMTs on campus, and so we have got a nice safety net right 
there.
    The most critical link is our confidential advisor. This is 
the person that reaches out and establishes trust.
    If the first questions someone is asked by their friends 
are about their own behavior they are likely to completely shut 
down. And so if we can get that person as fast as possible to 
our confidential advisor, who is trauma-informed in her 
counseling techniques and who can create that bond, and then 
accompany her or him throughout whatever processes, whether it 
be sitting through a police investigation, whether it be going 
to the housing department to make room changes or to the 
academic advisor. And that bond is the most important bond, and 
it is the most important role on campuses today.
    Mr. Roe. My time is expired, but one other thing that I 
want to--you all to think about is how can we streamline this 
so that you are not checking boxes but taking care of students. 
That is where the resources need to be.
    And I see it all the time where you--all this confab of 
things you have to do takes away from the real--which is taking 
care of the student and the patient.
    I yield back.
    Ms. Rue. I appreciate your commitment.
    Chairwoman Foxx. Thank you, Dr. Roe.
    Dr. Adams, I would like to recognize you for 5 minutes.
    Ms. Adams. Thank you very much, Chairman Foxx, Ranking 
Member Hinojosa, for holding this important meeting.
    My thanks, also, to the witnesses for your testimony, and 
special shout-out to Dr. Rue, from Wake Forest, which is 
partially in my district.
    Campus sexual assault is a very serious issue. It affects 
entirely too many of our students. And to be clear, even one 
student is too many.
    And so while I believe prevention through education is the 
best way to combat this growing problem, and I appreciate your 
speaking to that, we must still deal with the incidents that 
occur. Unfortunately, that is nearly impossible to do with all 
the differing ways in which institutions of higher education 
and law enforcement agencies handle sexual assault, and it is 
becoming more complicated with efforts to weaken Title IX.
    Although North Carolina has--does not have a significant 
number of incidents currently open, the case open at the 
University of North Carolina Chapel Hill is particularly 
disturbing, and I am disappointed that there is a case that is 
open in my city of Greensboro, at the University of--at 
Guilford College.
    I spent 40 years as a faculty member on the campus, Bennett 
College, a small women's college, primarily African-American 
women, in Greensboro, and I had ongoing concerns then and I 
still do. And there are many things that I could talk about 
surrounding sexual assault, but I want to hone in just for a 
moment on the effects of women of color.
    According to the Centers for Disease Control, approximately 
34 percent of multi-racial women, 27 percent of Alaskan Native 
American Indian women, and 22 percent of black women, and 14.6 
percent of Hispanic women are survivors of sexual violence.
    Ms. Scaduto and Dr. Rue, both Dickinson College and Wake 
Forest University are liberal arts institutions with pretty 
good resources, I think. Can each of you speak to your campus 
initiatives that address the need for cultural-specific 
prevention education for your minority students who might be 
dealing with the weight of other issues, like racial 
discrimination and economic disparities?
    Ms. Rue. Yes. Thank you, Representative Adams. I appreciate 
your question.
    We do take our responsibilities to all students very 
seriously and we know one size doesn't fit all. With our 
African-American students, we have a peer mentoring program 
that creates a very tight-knit bond with well-resourced upper-
class students.
    And we have an increasing number of first-generation 
students--students whose parents didn't attend college. And we 
have the First in the Forest program that really helps those 
students navigate, as well.
    We do try to utilize the best research to understand 
differential impact and also to get within the peer culture, 
because that is where these things occur. So the use of peer 
educators is our most important tool.
    Ms. Scaduto. All I can say is the programs at Dickinson are 
similar. We have specialized training for African-American men 
in healthy choices and healthy habits, called MANdatory. We do 
many of the same things that Dr. Rue is doing.
    There is no question but that we can do more in cultural-
specific impact, but right now we are putting in place--the 
issue is so prevalent that right now the issue is getting all 
of our students trained. It is using things like Green Dot and 
healthy relationships and sexuality training on our campuses 
for all students.
    And I do imagine that as time passes we will become more 
proficient at looking at specific communities and how they are 
impacted.
    Ms. Adams. Thank you both.
    Ms. Maatz, within the same vein, do you have any 
recommendations for the best way to ensure historically black 
colleges and universities who have less resources, less staff, 
are able to provide comprehensive prevention and response?
    Ms. Maatz. Well, number one, I would always encourage 
colleges and universities to not reinvent the wheel. There are 
local community services often--rape crisis hotlines, domestic 
violence shelters--that can help with prevention programs and 
potentially being these confidential advisors, which is a great 
best practice.
    The other thing I would say, though, specific to women of 
color is that we need to be really sensitive especially about 
mandatory reporting. We know that there are issues in terms of 
gender bias in policing and racial bias in policing, and for 
women of color, to mandate that they report to law enforcement 
is a great way to ensure that they don't report to anybody, 
that they don't get any help, that they don't get any support.
    So we need to be culturally competent about that and 
sensitive, and I think that it is one of the reasons, quite 
frankly AAUW has sent a letter to the Department of Justice 
asking them to create new guidance in gender bias in policing 
to deal with some of the different things that women of color 
are facing.
    Ms. Adams. Thank you very much. I am out of time.
    Madam Chair, thanks very much.
    Chairwoman Foxx. Thank you, Dr. Adams.
    Mr. Guthrie, you are recognized for 5 minutes.
    Mr. Guthrie. Thank you all for being here. I appreciate it. 
It is important for us to move forward on this as we work on 
higher ed reform.
    I am in this situation. I had a daughter just graduate from 
college, but I have a son in college and before I came here was 
planning our college tour for my senior in high school, my 
little girl, and so when we leave--drop them off those days 
that crush us all; we leave them on campus and drive away.
    We want to make sure that we are doing everything we can 
here and you are doing everything you can to make sure they are 
in a safe place. And so this information is going to be good 
for us.
    And you look at, like, harmonizing requirements. I have 
learned--I was in state senate and now here--that when there is 
a requirement added or things done it is because something 
happened. And so we are reacting to something that happened and 
trying to prevent it in moving forward, and sometimes you get 
different bills that happen at different times and so you get 
different requirements.
    And it should be an opportunity for us all to sit down 
during the higher ed reform and say, ``What is this report 
trying to accomplish and what is it trying to prevent, and how 
can we harmonize them and do them together?'' So that is 
important to do.
    And, Ms. Scaduto, you talked in your written testimony, I 
believe, about some of the requirements that are established by 
the administration that don't necessarily--or it is difficult 
to work around--with nontraditional campuses, nontraditional 
students.
    Would you care to elaborate on that and talk about how that 
is difficult too? We need a system to take care of that, but we 
want to see how the particular requirements make it difficult 
to comply.
    Ms. Scaduto. Higher education would greatly appreciate 
frameworks rather than one--it goes to what Dr. Rue said 
earlier, one-size-fits-all. Let's take, for example, the 
differences in how--in training or education of different 
constituencies on various campuses.
    Let's just take, for example, if it were determined by good 
research that having students in a chair to receive training on 
sexual--on violence prevention is the best method, but you are 
a commuter campus, you are a community college, or your 
students don't live there, you don't have the opportunities to 
reach them outside the classroom, as you do on a residential 
campus. If you are an online school--and there was an online 
school represented in negotiated rule-making, and her 
perspective kept popping up, and I have to admit, I was like, 
``Oh, I hadn't thought about that.''
    We need standards for reaching them with--rather than a--
other than bright-line test. Even the question of what is a 
student. If you are an--if a student is taking one class as an 
adult learner who is taking one class, is that part of the 
cohort that raises the risk of sexual violence on your campus, 
or is it the 18-to 22-year-olds who live in residence?
    These are all complexities about the differences in who we 
are as institutions and how we most effectively reach those who 
need the information. If we are going to engage in cultural 
change and cultural shift, we have to have the flexibility on 
the various campuses across this country to reach those 
different audiences in different ways.
    Mr. Guthrie. And, Dr. Rue, I was going to ask you to 
elaborate more on your prevention, because that is where we 
are--want this--we would love to--we want to get to zero. We 
know we have to have systems because we are not at zero, but 
elaborate on your preventions that you were--you mentioned 
earlier, and then the ones that you think are most effective to 
students.
    Ms. Rue. Right. I am going to turn to some work done by the 
Centers for Disease Control on this, and they have nine 
principles of effective sexual misconduct prevention programs.
    The first is that it is comprehensive--it is multiple 
methods, not a one-shot deal, with varied teaching strategies. 
We know that people learn differently. Some learn through 
active engagement, others learn more theoretically, others more 
visually.
    Sufficient dosage; opportunity over time to deal with these 
issues; theory-driven, they have a foundation in theory; that 
they foster positive relationships--they are not focused on 
what not to do, but instead, what to do; that their time to 
developmentally appropriately--if you are just getting ready to 
graduate versus if you are just arriving, those developmental 
needs are different; that they are socially, culturally 
relevant, as Representative Adams has suggested, that we 
understand the different backgrounds that students bring to us; 
and that there is an outcome evaluation as well as well-trained 
staff.
    So those are--that is what the CDC had--has. We strive for 
all of those.
    I will say that without getting into the curriculum it is 
difficult to deliver over long periods of time. We are usually 
working within a voluntary workshop format for students in our 
prevention programs. So I would say curricular innovations in 
this area would be very welcome.
    Mr. Guthrie. Thanks.
    And I will just conclude with the day that you drop them 
off and you drive off campus, you are--like I said, you are 
crushed because you are--they are leaving home; but you leave 
them, I mean, you are also excited for them, and you want them 
to have the experience of a lifetime, and you want it to be 
safe and secure. So thank you so much for that.
    And I yield back.
    Chairwoman Foxx. Thank you, Mr. Guthrie.
    Mrs. Davis, you are recognized for 5 minutes.
    Mrs. Davis. Thank you, Madam Chair.
    And thank you all for being here today. I appreciate that.
    You know, we--before I--we dealt with a lot of campus 
issues around sexual violence--and I understand that we have 
been--campuses have been dealing with them for many years, but 
in terms of the visibility and the issue, it followed, to a 
certain extent, looking at sexual assault in the military. And 
we introduced a number of bills to try and get at this issue. 
Not so easy, and I have a few colleagues here from the Armed 
Services Committee that know and understand that.
    One of the things that we have been talking about here, 
which was really critical, was the support for victims, men and 
women, to have access to--you mentioned a trauma-informed, but 
a highly professional individual who really can help victims 
navigate the system and provide the kind of options available 
to them that they have, whether it is, you know, reporting or 
non-reporting and what that means, actually, for them.
    So I was just wondering, in terms of what you have seen in 
the Campus--the Safe Campus Act or other acts, are there some 
that you think actually would make it difficult for a student 
who chooses not to report to have those services--to receive 
those services? Are there bills that actually do tie the 
opportunity for victims to be informed by someone who really is 
highly trained in this area?
    And quite frankly, I am not sure that we are there yet, in 
terms of the ``highly trained,'' but at least we know where we 
have to go with it.
    Anybody want to--do you see that? Are we--
    Mr. Cohn. If I can respond real quickly, Congresswoman. The 
Safe Campus Act has its mandatory reporting provision that 
would limit a campus' response if a student doesn't choose to 
report, and FIRE has urged Congress to amend that provision to 
leave all of the non-punitive measures still on the tables--the 
ones that you identified that shouldn't hinge on that student's 
decision.
    But we do think it is generally a good idea to have 
campuses make sure that police are investigating. So we think 
it is a good idea to limit the punitive responses the school 
can make.
    Mrs. Davis. Yes.
    Ms. Rue. I am going to respectfully disagree--
    Mrs. Davis. But, Dr. Rue, yes--
    Ms. Rue. Yes.
    Mrs. Davis.--Rue?
    Ms. Rue. We know that, again, that ability to navigate to 
that confidential victim support person is the most critical 
thing. And if universities are mandated to report criminally, 
we know it is going to have a chilling effect on people even 
getting to the very first resource to help.
    The truth is, people do--most students do not want to go 
through a law enforcement interview. Our experience teaches us 
that cops look for violence, for signs of struggle for weapons; 
they don't understand the nuance of campus sexual assault; they 
tend to minimize--if you have read the book ``Missoula'' it 
provides a beautiful picture of what happens when individuals 
report in that setting: the kinds of questions they are asked, 
the kind of doubt that is cast upon them. And again, it has a 
chilling effect and it causes many to shut down, so I can't 
support it.
    Mrs. Davis. And, Ms. Maatz, I--and addressing, as well, the 
harmonizing issue that we--that we mentioned earlier in terms 
of how universities, how institutions deal with this.
    Ms. Maatz. Well, I think the mandatory reporting absolutely 
has a chilling effect. I think if you are looking for a way to 
not have students report not only just to the school, but also 
to law enforcement, make it mandatory.
    Part of what we are trying to do with Title IX and the 
Clery Act is create a environment on campus that supports 
reporting. If it is going to be supportive to students, it 
needs to actually be helpful to them. And that kind of 
reporting not only helps that individual student but sets the 
tone on campus, in terms of creating a safe--
    Mrs. Davis. I think what is important about that, as well, 
and the SOS Act that I have authored along with Senator Boxer 
basically has, I think, actually brought about a number of 
special advocates on campuses in 30--in the University of 
California system and others, and I think you have mentioned 
many schools have them.
    Ms. Maatz. Thank you for that.
    Mrs. Davis. I think the real key is the level of training 
that they have.
    But more than that, I think what we have seen in the 
military system, as well, is the fact that people generally 
become more knowledgeable about this process, which has been a 
very well-kept secret in the past and is--I think has 
contributed to the fact that it is a fearful system, and that 
is what we are trying to get away from.
    Ms. Rue. And thanks to your work on the military, our ROTC 
programs are among our best partners now. They are part of our 
sexual misconduct working group, helping in lockstep with their 
training resources, and it is a great partnership.
    Mrs. Davis. Thank you.
    Thank you, Madam Chair.
    Chairwoman Foxx. Thank you very much, Mrs. Davis.
    Dr. Heck, you are recognized for 5 minutes.
    Mr. Heck. Thank you, Madam Chair.
    I thank you all for being here and discussing this 
critically important topic.
    Like my colleague, the gentlelady from California, I too 
was struck by what I thought was a lot of similarities between 
what you are experiencing on campuses and what we are 
experiencing within the military, which in and of itself is 
experiencing an epidemic of military sexual assault.
    And, both Dr. Rue and Ms. Scaduto, in your comments you 
talked about things that are very similar: not straightforward 
or easy to resolve; do not involve force or attacks by 
strangers but between individuals who are acquainted; questions 
about effective consent; word-on-word conflicts may not be 
reported for days, weeks, months; and where the survivor has 
the right to choose a path within the wake of an incident, some 
reporting on campus or some to law enforcement, similar to the 
military restricted and unrestricted reports, where in a 
restricted report it is not referred to law enforcement but 
allows the victim to partake of the supportive services 
necessary to help them heal.
    Question I have is, one, amongst anybody, has there been 
any review of what perhaps might be best practices developed 
within the military, realizing that we are not fully there yet 
either, but any best practices that might have been implemented 
in the military's response to this epidemic of sexual assault 
that may have application into what is being done on campuses?
    Ms. Rue. I would have to say I need to learn more about 
what they have done, and I am eager to do so. Thank you for 
that referral.
    Ms. Maatz. I think, Dr. Heck, one of the things that I 
would say is that we have seen an increase in the reporting in 
the military, and part of the reason for that is because the 
conversation is being had, because there is now a top-down as 
well as a bottom-up kind of conversation being had; and there 
is training going on, and that makes all the difference in the 
world. The prevention is key, and I think those are all good 
lessons that we can use for campus sexual assault.
    Mr. Heck. Thank you.
    Mr. Cohn. I don't know enough about the military practice 
to weigh in on there. What I can say is that one interesting 
parallel is that last year we heard a lot of chatter about how 
the military tribunals should not be adjudicating these matters 
because of the potential for bias there and that instead it 
should be removed to civil courts--essentially the same 
argument I have been making to you today, which is that 
campuses maybe shouldn't be adjudicating the facts because of 
the potential for bias and conflicts of interest instead, and 
that we should be relying on professionals and courts.
    Mr. Heck. Thank you.
    A question for my own edification: So if a victim on a 
campus chooses not to report to law enforcement but comes to 
the campus authorities to receive the supportive services, does 
that automatically then result in that case going forward for a 
disciplinary hearing on a college campus?
    Ms. Scaduto. No, it does not. It is a very insightful 
question.
    The best guidance we get on dealing effectively with 
survivors of sexual assault tells us that they need the control 
to decide how to go--if they want to go forward, when they want 
to go forward, and how they want to go forward. Although the 
guidance is inconsistent, we get guidance both from OCR and 
under the VAWA regs about--that mandate that we give them their 
options and tell them.
    And it is funny, as I have listened to the conversation 
from Congresswoman Davis and others about the use of report, it 
is banging around in my head because we use report very 
specifically on campuses, and a report means someone coming 
forward and telling someone. That is a report, and that is it 
at its essence.
    And if they do that then we wrap our arms around them as a 
community and make sure that they get the resources they want, 
they know their options, and if they want confidential 
reporting, we can direct them in that.
    But if they come to us and they tell us, that report does 
not move forward under most circumstances--whether it is 
internally through our conduct processes, or externally through 
law enforcement, or both--without their consent and 
participation. There are exceptions, as you can expect. I mean, 
you are lawmakers; you know there are exceptions.
    If we have an ongoing threat to our community we might have 
to move forward without the consent of the person who brought 
the report forward, and that also is an example of why safe 
harbors are important. If we are being guided by the wishes of 
the victim but we have an ongoing threat on our campus and we 
make that decision to move forward, being protected from action 
by administrative agencies would be helpful.
    Mr. Heck. Great. So as a father of three, one who--a 
daughter who is a graduate of college, a daughter who is a 
junior, and a son who just started his freshman year, I thank 
you all for what you are doing to try--trying to make our 
campuses a safer place.
    Thank you, Madam Chair. I yield back.
    Chairwoman Foxx. Thank you, Dr. Heck.
    Mr. DeSaulnier, you are next.
    Mr. DeSaulnier. Thank you, Madam Chair. And I do want to 
say, consistent with some of my colleagues, first of all, thank 
you for having the hearing. I think the hearing helps to draw 
attention to what is, I feel, is of real urgency, and I think 
everyone else does. I hear a great commonality, in terms of our 
desire to take effective action, and we are struggling what 
that is.
    And also, as a parent who has dropped two kids off at 
college, the rite of passage that all of us have shared and the 
conveyance of that trust that we put in the institutions that 
we leave them at, and the expectation that these wonderful 
institutions will not just education them well but provide a 
culture where they feel safe and that they aren't put in the 
situation of either being a victim or a bystander.
    So my analogy--and I appreciate the last two comments about 
the analogy to the military--a lot of this conversation reminds 
me of the early 1990s when I was in local government and the 
Clinton administration was bringing up domestic violence. And a 
lot of the conversations we have had remind me very 
specifically of the challenges. And even though everybody 
wanted to stop it, we have got to be careful of our approaches 
because we are all subject to subjective opinions about the 
relationships between men and women.
    So, to Ms. Maatz, or maybe Dr. Rue or anyone else, CDC, 
when they look at the history of, for instance, domestic 
violence--and no analogy is perfect; I understand they are--but 
we know a lot now from the 20 years since 1994, when the 
Federal Government took a leadership role and passed the 
Violence Against Women Act that was just recently reauthorized. 
So not dissimilar, certainly.
    And I remember talking to mandated reporters then, 
particularly educators in high school, who struggled with many 
of the same issues that you do, although because they were in 
the community I think they didn't have some of the--maybe the 
cultural or professional insular--not insular; that is a poor 
choice of words. Maybe you understand what I am getting at--the 
uniqueness of academia at a college campus.
    Ms. Maatz. Right. Congressman, I share your sense of a 
flashback in many respects. When I was the executive director 
of Turning Point, which is a domestic violence shelter and 
program in Ohio, it was during the O.J. Simpson trial; it was 
during the first efforts to pass the Violence Against Women 
Act. And so it felt like there was kind of a national teach-in 
on domestic violence and people were talking about it.
    And I see that bright spotlight today on campus sexual 
assault. I think many of the same things are happening. It is 
being very much driven by survivors and advocates who feel the 
time has come. And I think that also is very similar.
    I think we can take some lessons from that. We have a lot 
more data. After 20 years of the Violence Against Women Act, we 
have a lot more data about how violence occurs; we have 
police--law enforcement that are a lot more--have a lot more 
data and a lot more experience in dealing with it, prosecutors 
as well.
    But I also would continue to stress that when we are 
talking about campus sexual assault we want to be mindful of 
the fact that we are dealing with that as a civil rights issue 
and that we need to be really concerned about the access to an 
education that does not contain sex discrimination. We know too 
often that survivors will have problems.
    Oftentimes they will drop out. That obviously is an 
interference with their education. Some of them, because of 
some of the post-traumatic stress and other issues that they 
have had, their grades go down, and then they lose their 
scholarships, and then they are the ones who aren't on campus.
    So it is something that we need to be mindful of. There is 
the criminal element that we need to talk about and need to 
harmonize, but at the same time, they are separate and distinct 
and equally necessary paths.
    Mr. DeSaulnier. And I appreciate that.
    I will let Dr. Rue respond, as well, because you were 
relating to my initial comments.
    But we know from domestic violence and we know, as your 
comments said, of the causality and the multigenerational 
aspects of this. So the sooner we get the regulations right, 
the better.
    And I would opine, based on that history and others, that 
the Federal Government does have an appropriate role in it. 
Making sure that role is effective I think is what we are all 
talking about.
    Doctor?
    Ms. Rue. I appreciate the earlier representative who 
brought up the issue of earlier education. We sadly know 
through our incoming student surveys that students have already 
been in abusive relationships. They have already had 
relationships that were controlling, that left them with self-
doubt and unable to stand up for themselves.
    So we do support--and we do understand these as 
multigenerational issues. If students don't have excellent role 
models to look to, where do we find that?
    So we would love Department of Education to engage the K-12 
system in these conversations, as well.
    Mr. DeSaulnier. Thank you.
    Thank you, Madam Chair.
    Chairwoman Foxx. Thank you.
    Mr. Salmon, you are recognized for 5 minutes.
    Mr. Salmon. Thank you.
    My first question is, is there any data out there that we 
can access that would deal with a victim that has initially 
chosen not to report to law enforcement who later regrets that 
and decides they want to report it to law enforcement and they 
want the individual prosecuted? Is there any data on that?
    Mr. Cohn. Congressman Salmon, interestingly enough, there 
is an absence of that data. We don't know, when a prosecutor 
chooses not to bring a case forward, why they made that 
decision all the time. Sometimes it could be because of 
outdated modes of thinking about women and stereotypes, but 
other times it could be because of spoliation of evidence.
    We simply don't track that, and that is a major concern. 
And that is one of the reasons why we think it is so important 
to get the right medical and--
    Mr. Salmon. Well, and I guess that is one of my big 
concerns. I was talking to Dr. Roe, who has dealt with a lot of 
victims and had to examine them and deal with them and court 
proceedings, and a lot of times later on an individual who 
decides they don't want that person prosecuted decides they do. 
And I have these concerns about going to the university or the 
college, and maybe the counselor or advisor leaning on them, 
maybe talking them out of prosecuting because of concern for 
the alleged perpetrator's career or education.
    Whatever the case may be, I worry about the fact that an 
individual who decides initially not to prosecute or not to 
report to the law enforcement, all the forensics is lost and 
then several months later or several years later they decide, 
still within the statute of limitations, ``I want that 
individual prosecuted so they are not going to do that to 
anybody else,'' and then the forensics is not there because it 
was never reported to law enforcement and the people that ended 
up dealing with it didn't have the capability to even put a 
case together in the first place.
    Mr. Cohn. One other critical aspect of mandatory reporting 
is that there is no way to build up more trust with police than 
to work with them. You know, we can't fix a problem--if there 
is a problem in the criminal justice system it needs to be 
tackled directly with the criminal justice system.
    If we are concerned about the chilling effect of having a 
police officer pick up the phone and say to them, ``I heard 
about your complaint. Is there something I can do to help?'' we 
will never get beyond the barrier of improving that system. 
They can only do that through working together with trust.
    And hopefully you will get more prosecutions and more 
convictions, you know, if law enforcement is brought in faster.
    Mr. Salmon. Well, it seems to me that the dialogue here 
today has been much more a focus on helping the victim cope and 
deal, and that is all incredibly important, and to deal with 
the aftermath and go forward. But I don't hear a lot of 
dialogue about justice.
    Mr. Cohn. But that is--
    Mr. Salmon. I don't hear a lot of dialogue about keeping 
evil perpetrators off the streets so they don't do it to 
another girl. I mean, I have two girls that have graduated from 
college too, and I would be livid if some perpetrator who has 
sexually abused numerous girls and they all decided not to 
report, and that kid is still out there, you know, seeking to 
harm other girls and my girl ends up getting harmed, I am going 
to be pretty ticked off that guy is allowed to keep 
perpetrating these crimes.
    Mr. Cohn. Right. And I think one other thing needs to be 
said here about justice.
    People keep saying that this isn't a criminal justice issue 
and that the panel isn't going to send someone to jail. That is 
only partially true.
    The dean isn't going to sentence someone to 20 years in 
jail. That is true. But what is important for you to all hear 
as well is that the transcripts of the hearings are admissible 
in criminal trials and have been admitted across the country.
    A prosecutor can independently decide if they want to click 
``print'' and use everything that was said against an accused 
student. There are tremendous Fifth Amendment considerations 
here, so justice really requires meaningful due process, which 
I am so glad is part of the conversation--
    Mr. Salmon. Can I just interject, because that was one of 
my other questions. Talk a lot about due process, and that is a 
fundamental right here in the United States for anybody that is 
accused of crimes. Can you tell me the difference between 
``preponderance of evidence'' and ``beyond a reasonable 
doubt''?
    Mr. Cohn. Sure. The criminal justice system used--
    Mr. Salmon. Because that is very fundamental.
    Mr. Cohn.--``beyond a reasonable doubt,'' which is almost 
near--you know, near certainty. ``Preponderance of the 
evidence'' is 50.01 percent certainty that something was more 
likely to have happened than not. The difference between being 
50.01 percent certain and 49.9 is so minimal it really amounts 
to just which hunch you believe more.
    That is not a problem in civil courts, where there are all 
of the procedural protections that go into play--discovery, 
lawyers, rules of evidence, subpoena power, all of those 
things. But when you ask people without those other tools to 
then just decide who you agree with more, that is where you get 
an injustice. It is when you decouple preponderance from all of 
the other protections.
    Ms. Rue. I am going to have to disagree with that. Quite 
honestly, preponderance is the standard that precludes giving 
presumption for or against either party. It is the most 
equitable. Any other standard has already tipped the scale on 
who to believe.
    Ms. Maatz. It is not only the most equitable; it is also 
the standard that most schools have been using throughout the 
years so that it is not new or different.
    The other part of the preponderance standard is that it is 
what is used when we are talking about, for instance, Title VII 
cases, civil cases that are dealing with these kinds of issues, 
which both have a civil remedy and maybe also could have some 
criminal implications. So the reality is this is something that 
schools understand, that they have been using for a long time, 
and that there is plenty of guidance from the Department of 
Education as to exactly how they should be using it.
    Everything is about being equitable, being fair, and being 
impartial.
    Chairwoman Foxx. Mr. Salmon's time has expired.
    Mr. Jeffries, you are recognized for 5 minutes.
    Mr. Jeffries. Well, thank you, Madam Chair.
    I thank the distinguished ranking member, as well, for his 
leadership, and all of the witnesses for your presence here 
today on such an important topic.
    I want to start my questioning with Mr. Cohn.
    So it is my understanding you advocate for weakening the 
Title IX process in the context of investigating campus sexual 
assault. Is that accurate?
    Mr. Cohn. No. I mean, I wouldn't characterize it as 
weakening Title IX at all. There are so many things that 
schools should be doing morally and legally under Title IX to 
make sure that campuses are safe places. Fact-finding just is 
not really one of the things they are equipped to do well.
    Mr. Jeffries. Okay. But the Title IX process provides for 
campus adjudications, but you contend that those adjudications 
are ill-equipped and therefore that should be abandoned. Is 
that a fair characterization of your position?
    Mr. Cohn. I think that would be a fair characterization. 
There is a long track record of the injustices against both 
accused and complainants when amateurs are handling these 
matters.
    Mr. Jeffries. And you have a greater degree of confidence 
in law enforcement and the criminal justice system to handle 
these--
    Mr. Cohn. Right.
    Mr. Jeffries.--issues. Is that true?
    Mr. Cohn. So there is no doubt that the criminal justice 
system is imperfect, but that is a persuasive argument for 
trying to fix and improve that. I have greater confidence in 
that system because it provides real tools and the actual 
structures that make sure that everyone's rights are taken into 
account.
    And that is so important because I want them to get it 
right. I want to make sure that if there is a rapist on campus 
there are actual consequences that take them off the streets 
and protect people.
    Mr. Jeffries. Right. But you acknowledge, of course, that 
the criminal justice system is imperfect, correct?
    Mr. Cohn. Absolutely.
    Mr. Jeffries. And, you know, there are examples in the 
criminal justice system of people who have been sentenced to 
the death penalty who have subsequently been found to have been 
innocent, true?
    Mr. Cohn. There is no system that is perfect. But the 
criminal justice system is dramatically better at doing this 
than campuses, again, because of the tools that they bring to 
bear--
    Mr. Jeffries. The reason the criminal justice system--
    Mr. Cohn.--one that is awful and one that might not be very 
good.
    Mr. Jeffries. The reason the criminal justice system is 
imperfect--would you agree--is because of just the context of 
human error? And whenever you have got humans involved in the 
absence, perhaps, of adequate training, sensitivity, 
preparation, mistakes will be made.
    Mr. Cohn. Absolutely. But that is why we have so many 
procedural tools in the criminal justice system to try to 
balance that out so individual bias can't control that entire 
process; why we have meaningful appeals afterwards in the 
criminal justice system to provide additional levels of 
protection for error that don't really exist in campuses where 
the appeal often goes to the same person that decided the case, 
which is why the Safe Campus Act includes that provision about 
no commingling of responsibilities.
    Mr. Jeffries. Ms. Maatz, could you comment on, you know, 
whether you think there are meaningful protections and/or 
safeguards in the campus process as it relates to sexual 
assault, outside of the availability of the criminal justice 
system?
    Ms. Maatz. There absolutely are meaningful protections. 
That is the whole point of Title IX; that is the whole point of 
the Clery Act, is to have colleges and universities examine 
those situations when they occur and to respond to them.
    And respectfully, I would say, with Mr. Salmon's bill, if 
you make reporting mandatory to the police you have weakened 
Title IX. End of story. You have already said that it is not 
going to be a parallel process, that it is not going to be an 
equal process in terms of the emphasis.
    So that is a bill, I think, that would weaken Title IX at a 
time, quite frankly, when we need it to be strong and we need 
as much technical assistance as we can get from the Department 
of Education so schools can be the good actors they want to be.
    The reality is within the system they are supposed to have 
prevention training ongoing; they are supposed to be doing 
bystander intervention training ongoing; they are supposed to 
be training the folks who will be hearing these kinds of 
issues. And they have a choice as to what kind of format they 
will use in terms of administration hearing or student code of 
conduct.
    There is flexibility here so that they can match it to 
their school, match it to the circumstances, match it to the--
to their community, so that they can get a just result. It is 
supposed to be impartial and fair, and I do believe that it is.
    Mr. Jeffries. Thank you.
    I would just note in closing, as my time is about to 
expire, that it does seem to me that to the extent that there 
are imperfections in the context of the campus adjudication 
process that we should mend it not end it and address issues 
perhaps endemic to the fact that human error exists in all 
contexts, just like human error exists in the criminal justice 
context.
    But we shouldn't abandon the entire process, particularly 
given there is a long history in American jurisprudence of 
having a parallel process: the criminal adjudication process, 
the opportunity for people to pursue vindication through the 
civil adjudication process, which, as all of you have pointed 
out, uses a preponderance of the evidence standard, the same 
exact standard used in the campus adjudication process.
    Thank you for your testimony.
    I yield back.
    Chairwoman Foxx. Thank you very much.
    Mr. Allen, you are recognized for 5 minutes.
    Mr. Allen. Thank you, Madam Chair.
    And thank you all for coming and sharing a--back when it--
course, my kids say I am old-fashioned--back in my day we 
didn't talk about things like this, other than--I will tell you 
this: Growing up, if I ever did anything to harm another--a 
woman, I had to answer to my father. And it was--even my little 
sister. She could hit me and I couldn't hit her back, and that 
is the way I was taught.
    I have three grown daughters, and, course, full disclosure, 
my--I have a son and he attended Wake Forest University, and we 
were on the parents' council there. And I will tell you this: 
They showed a film there to the parents' council that they show 
every freshman at Wake Forest College about the problems with 
alcohol.
    That was the scariest thing I have ever seen in my life. 
And I tell you, any freshman that saw that obviously was 
prepared to know the consequences at least of misbehavior.
    Having three grown daughters, you know, I understand--I 
mean, you--when your kids go off to college, I mean, you just 
pray they will live through the experience, you know, because 
it is just--you know, I mean, they are free to do things that--
and it--course, I went to college so I remember things I did I 
shouldn't have done.
    But anyway, let me just say this, that would it be 
appropriate--like I said, I knew the consequences of my 
actions. Could colleges and universities--and I know it is very 
difficult to get in Wake Forest, for example. I mean, it is--my 
son thought it was a great honor to attend that university.
    But, I mean, can you read the riot act to these young men 
and just say, ``You know, these are things that if you do you 
won't be here next semester''?
    Dr. Rue, would you--I mean, is that--I mean, looks like to 
me that this is a--the universities should set the pace on this 
and say, ``There are just some things we are not going to put 
up with here--put up here--put up with here at Wake Forest.'' 
Can you comment on that?
    Ms. Rue. I would be happy to. I am going to go back to what 
CDC recommends in terms of multiple methods.
    We know that the parental voice is one that students tend 
to tune out at this time of their lives, as they struggle for 
independence and define themselves. What we would say is that--
and research shows--that if you approach men as brothers and 
boyfriends of people who might be assaulted, what you get is 
their empathy. And empathy is a much more powerful motivator 
than fear of some consequences. And you know, 18-year-olds 
think they are immortal, so--
    Mr. Allen. Right.
    Ms. Rue.--we really--
    Mr. Allen. Bulletproofs is what we call them.
    Ms. Rue. Yes. There you go.
    We believe that engaging men in the prevention effort as 
coaches, as peers, is way more powerful than finger-wagging 
them, and mobilizing their maturity and their ability to care 
for their dear friends who have been assaulted. So treating 
them as potential allies rather than as potential perpetrators 
is way more powerful.
    Mr. Allen. So I was not--when my daughters would date young 
men I would have them in, I would put the fear of God into 
them. That was the wrong idea?
    [Laughter.]
    Ms. Rue. With you, sir, I think it might work.
    [Laughter.]
    Mr. Allen. Well, obviously, you know, we were very 
fortunate, but I have eight grandchildren and three on the way, 
and six of them are little girls. And I have got a 14-year-old, 
and of course, she is entering high school now, so I have had 
my little talk with her and--but, yes, it seems to me that in 
so many cases that young men just don't know exactly right from 
wrong. I mean, they have been in--raised in an environment 
where they just don't have a value system, and then they commit 
a horrible thing and it is like, ``What have I done here?'' 
They really don't know until the consequences are forced on 
them.
    So I would please just let, you know, your freshman class 
know--I know that alcohol--you know, they showed us a film in 
high school, the state patrol did, about driving, you know, 
and--of course, we didn't have texting back then or phones back 
then--but basically not paying attention, and the consequences 
of that. And, you know, that stuff, it does register.
    And at least, you know, someone will know, ``Well, gosh, I 
didn't know there was anything wrong with this. I mean, you 
know, this--these are modern times,'' or whatever.
    But anyway, anything else that, Ms. Maatz or Mr. Cohn, you 
would like to comment on how we--you gotta--we gotta stop it.
    Ms. Maatz. Yes.
    Mr. Allen. How do we stop this?
    Ms. Maatz. Well, and I think you have hit on a key point in 
terms of getting men involved. And the reality is, when you are 
doing this kind of programming, men as allies, not accusing, 
pointing fingers.
    ``We know that this happens. Here is what you can do about 
it because you have sisters, because you may have daughters, 
because you have friends that this could--this could impact.''
    That bystander intervention in particular can be 
particularly effective with men because they can distract, they 
can have another conversation.
    And that peer pressure, you know? Never underestimate the 
power of the peer pressure.
    Right now in some respects it is working against us, in 
terms of campus sexual assault, in terms of the norms, in terms 
of the stereotypes. And we need to make it work for us. And I 
think working with men in the process is a great way to do 
that.
    The other thing I would say is that you need to bring in 
other folks from the entire community--not just fraternities 
and athletics departments, but the entire male community--
    Mr. Allen. Save that comment--
    Mr. Cohn. May I have one--
    Chairwoman Foxx. Mr. Cohn, I am going to have to ask you to 
put it in writing. Thank you very much.
    Mr. Cohn. Not a problem.
    Chairwoman Foxx. Mr. Polis, you are recognized.
    Mr. Polis. Thank you.
    Mr. Cohn, is the problem that you have with the campus 
judicial processes, is it the standard or is it what you 
consider to be a flawed implementation of the standards they 
use, or both?
    Mr. Cohn. I think both.
    Mr. Polis. So, now, I mean, it certainly seems reasonable 
that a school, for its own purposes, might want to use a 
preponderance of evidence standard, or even a lower standard, 
perhaps a likelihood standard. I mean, we are talking about a 
private institution, and if I was running one I might say, 
``Well, you know, even if there is a 20 or a 30 percent chance 
that it happened I wouldn't want a--would want to remove this 
individual.''
    Why shouldn't a private institution, in the interest of 
promoting a safe environment, use an even lower standard than a 
preponderance of evidence, like a reasonable likelihood 
standard?
    Mr. Cohn. Right. Private institutions operate under 
different rules than the public ones because the Constitution 
doesn't necessarily apply. So that question has been answered 
in the public institutions so that due process is paramount and 
due process requires reasonable determinations, which you don't 
get under the even lower standards of preponderance.
    Prior to the Department of Education--
    Mr. Polis. So is the--the lowest standard use under due 
process is preponderance of evidence?
    Mr. Cohn. The lowest standard you can use in a court for 
the fact-finding portion--
    Mr. Polis. Okay.
    Mr. Cohn.--would be preponderance. But that is--
    Mr. Polis. Well, but I think we are talking about, again, 
a--now, so if you are saying--say it would be a public 
university, can they say, ``We want to use a reasonable 
likelihood standard for purposes of expulsion or whether a 
student can reenroll''?
    Mr. Cohn. I don't think that would have any chance of 
satisfying a due process challenge, but I also--
    Mr. Polis. But a preponderance of evidence would. Is that--
    Mr. Cohn. No. I mean, a preponderance of the evidence can 
in some circumstances pass it, and it could fail in others, 
depending on what other procedural protections it is coupled 
with.
    Mr. Polis. Okay.
    Mr. Cohn. When a preponderance of the evidence--
    Mr. Polis. Well, it seems like we ought to provide more of 
a legal framework, then, that allows a reasonable likelihood 
standard or a preponderance of evidence standard. I mean, if 
there are 10 people that have been accused and, you know, under 
a reasonable likelihood standard maybe one or two did it, it 
seems better to get rid of all 10 people.
    We are not talking about depriving them of life or liberty; 
we are talking about their transfer to another university, for 
crying out loud, or they go do something else.
    Mr. Cohn. Well, let's be more--let's be--
    Mr. Polis. I mean, you know, it is--
    Mr. Cohn. Let's be clear about this. That is not what we 
are talking about.
    Mr. Polis. Let me move on. I have a question for Ms. Maatz.
    I want to thank you for your willingness to be here today, 
and I want to address specific concerns of sexual assault 
within the LGBT community. Polls have shown that 46 percent of 
bisexual women have been sexually assaulted and gay men are 
more than 10 times more likely to experience sexual assault 
than heterosexual men; 25 percent of transgender people have 
been assaulted after age 13.
    What steps can schools take to ensure that sexual assault 
response teams and outreach is done in a culturally competent 
way regarding potential victims of sexual assault, including 
those who are sometimes marginalized and who identify as LGBT?
    Ms. Maatz. Right. Those statistics obviously are horrible. 
And they are more likely to be sexually harassed, as well, so 
the whole continuum of violence is something, obviously, that 
we know LGBTQ people experience at a much higher rate.
    The great thing about Title IX, the beauty of it, is that 
it is a gender-neutral law, and so right from the get-go we 
have a tool that we can use for students to file a grievance if 
they would like to seek assistance.
    We have talked about having these advisors that could be 
helpful to students in telling them what their rights are, 
telling them what the process will be, helping them understand 
and talk about whether they want to file official charges or 
not, and all of that needs to be culturally competent and 
understand that sexual assault is not just a heterosexual 
phenomenon; it is something--
    Mr. Polis. And along those lines, I think earlier where we 
were talking about engaging the men, engaging the men, I wanted 
to talk a minute about male victims, as well. What additional 
steps or outreach needs to be done with regard to reporting for 
male victims, for whom there could be a whole other set of 
issues, whether it is heterosexual or homosexual assault--or 
abuse?
    Ms. Maatz. Well, I think there is a variety of things that 
can happen, but I do think in this instance technology is our 
friend: making sure that information that is culturally 
competent on these issues is available to students, that it is 
sent out to them regularly, that is on the website, that is 
available in the student code of conduct, that is in the health 
center, that is in places where gay students socialize and 
congregate. Making sure all of that is available is huge.
    Mr. Polis. And it is important to show that potential 
victims of sexual assault can be of all genders and all sexual 
orientations, as well.
    Ms. Maatz. Absolutely. And so when you are training the 
folks who are going to be dealing with these cases, that has to 
be a huge element of it. It needs to be something that everyone 
understands.
    And, quite frankly, there is wonderful guidance from the 
Department of Education about how Title IX applies specifically 
not only in terms of campus sexual assault, but also harassment 
based on gender identity as well.
    Mr. Polis. Thank you.
    I yield back.
    Chairwoman Foxx. Thank you, Mr. Polis.
    Mr. Messer, you are recognized for 5 minutes.
    Mr. Messer. Thank you, Madam Chair. Thank you for holding 
this very important hearing.
    Thank you, to the witnesses, for being here as well.
    I am the father of a 12 and 11-year-old daughters and an 8-
year-old son, and so they are not quite to college yet, but 
certainly an issue that means a lot to me. And we have several 
different college campuses on my--in my district, as well.
    You know, to reiterate what many of my colleagues have 
said, when parents send their children off to college they 
deserve to know that they should be safe. And frankly, if even 
one student doesn't feel that way or isn't that way, that is 
one too many.
    I wanted to give Mr. Cohn just a quick chance to respond to 
the comments. Just let me ask this question this way, and what 
can--so, given your testimony, what can colleges and 
universities do to improve their disciplinary processes in an 
effort to be more fair?
    Mr. Cohn. Right. I mean, you know, our Plan A would 
obviously have them not be doing that. But in our Plan B, where 
tomorrow campuses will still be adjudicating these cases, it is 
important to include real, meaningful protections like a right 
to counsel and active assistance of counsel for both parties.
    By the time a school is trying to expel a student, they are 
not in the category of schools that is trying to sweep it under 
the rug, but they might not make the case particularly well. So 
having a lawyer who can speak up for the victim, you know, is 
also helpful to them to make sure the questions they want asked 
gets asked. So that is number one, the no comingling rule, so 
the same person who does the investigation isn't also serving 
as judge, jury, and fact-finder.
    Making sure that you actually have the right to question, 
you know, the--you know, your accuser is important because we 
know that the ability to a confrontation type of clause is what 
helps us find truth. So there are ways that we can make it 
better.
    But I do want to be clear about one last thing: We are not 
talking about just expelling someone so they can go to another 
school. That is not what is going on, because when students get 
expelled it tracks them for the remainder of their life.
    Forget about getting a job with security clearance here in 
this town. Not too many schools are lining up to admit people 
who have been expelled for sexual assault elsewhere.
    And again, the statements are admissible against them in 
criminal court. You are having 18-year-olds talk on the record 
about felonies that can put them in jail in Virginia, you know, 
or Missouri for the remainder of their lives.
    Mr. Messer. Well, reclaiming my time, I mean, I think we 
all recognize that this is a serious, important crime, needs to 
be dealt with, needs to be dealt with in a way that practically 
works. And so kind of opening up to the broader panel, I wanted 
to talk just a second and get some counsel.
    As Congress is working through these issues, of course we 
have to deal--we have to work through the intersection between 
the sort of local law enforcement issues and the campus-based 
disciplinary processes that are in place to deal with student 
discipline, as well, and I think that our legislation needs to 
recognize and accommodate those differences. So could we get 
maybe some testimony on how to work through that?
    Ms. Scaduto. I would be happy to at least pile on, if you 
will, on the issue.
    The goals and objectives of our internal discipline 
processes are different than those of the criminal justice 
system, and I think what has been lost over the last 4.5 years 
in the efforts of government and other interested parties to 
make sure that there is accountability for sexual violence on 
our campuses is the waters are muddied right now about what is 
the purpose of an on-campus disciplinary proceeding?
    I will not call it a judicial proceeding. We are not going 
to find someone guilty of a crime; we are going to be looking 
at conduct in the framework of our campus community and our 
campus culture.
    As Congress moves forward, as OCR moves forward, we need to 
tease out--and I addressed this in my written comments to this 
subcommittee--we need to tease out what is the purpose that you 
see for an on-campus discipline process. I can't speak for Dr. 
Rue, and I would ask her to answer quickly on her own behalf, 
but I believe there are very different purposes.
    And please keep in mind that not every incident of sexual--
of a violation of our sexual misconduct policies is sexual 
assault. It--
    Mr. Messer. So invite Dr. Rue to also respond?
    Ms. Rue. Yes, certainly.
    Again, we are trying to determine whether or not we have a 
safe and effective educational environment and whether our 
policies have been violated. We are perfectly comfortable with 
individuals choosing both pathways--choosing a criminal justice 
pathway and the university pathway.
    No quarrel. We really believe the student should be able to 
decide that.
    But our goal is to make sure we can remediate our own 
environment if needed through understanding what the risks are, 
and to making sure we are lowering barriers to individuals 
reporting right now, because that is our biggest concern. We 
know that the incidence, established by polls and studies, is 
nowhere near the number of reports, and we would like to close 
that gap, and we don't believe that approach would do so.
    Mr. Messer. Thank you for your testimony.
    Chairwoman Foxx. Thank you. Gentleman's time has expired.
    Ms. Bonamici, you are recognized for 5 minutes.
    Ms. Bonamici. Thank you very much, Chair Foxx and Ranking 
Member Hinojosa. Thank you for having me join your subcommittee 
today.
    This is a topic that has been of import in my state of 
Oregon as well as across the country. We have had a lot of 
conversations about it. And in fact, just last week I had a 
great discussion hosted by Portland State University with our 
Oregon institutions, primarily the Title IX coordinators.
    There are a lot of common themes that we heard today not 
only emphasizing the importance of the issue but the regulatory 
overlap and sometimes conflict--I think you will find a lot of 
support among this committee for clarifying that; but also the 
resources needed to address these issues.
    And I am glad we have had a lot of conversations this 
morning about prevention and the importance of educating 
students about healthy relationships, consent and what that 
means, healthy sexual encounters. And I am glad we are talking 
about that before college--before they get to college.
    Now, there were some conversations about the Teach Safe 
Relationships Act. There is a House version, which I am proud 
to cosponsor, along with a couple of other members of this 
committee. I do invite the other committee members and other 
colleagues to take a look at that and join on because if we are 
preventing, that is the best approach.
    So we know we can take stronger steps not only in 
prevention, we want to make sure that survivors of sexual 
assault have access to resources, services, and privacy on and 
off campus. And I want to emphasize that we really need to have 
policies that encourage not discourage survivors from reporting 
and seeking counseling and assistance.
    Dr. Rue, you discuss the important role of confidential 
advisors, and that is something that we are seeing in more 
institutions.
    Now, earlier this year I wrote a letter to the Department 
of Education about an apparent loophole in FERPA. In some 
circumstances, attorneys for an institution can access 
students' counseling records without a court order.
    The Department of Education's recent draft guidance to 
address this issue is encouraging, and I look forward to 
working with the administration and advocates and colleagues to 
close that loophole and provide survivors with the support and 
assurance of privacy. We want them to be safe and we want them 
to feel safe, and if they have a sense that their records are 
not going to be kept confidential, that may discourage them 
from seeking the support that they need.
    So my home state is working on this issue. Earlier this 
year our governor, Kate Brown, signed legislation making clear 
that conversations between alleged campus assault survivors and 
their advocates are confidential.
    Oregon also passed a bill that requires schools to give 
students who report sexual assaults written notification about 
their rights, legal options, campus services, and the state and 
community resources. And I just want to give a shout-out to 
Brenda Tracy, a brave survivor of a gang rape on a campus 
several years ago, who is now a nurse and an advocate.
    So these policies are important for students not only in 
Oregon but, you know, across the country, and I am really glad 
we are having these conversations today.
    And I want to ask you, Ms. Maatz, we know that more 
institutions are starting to educate students about their 
rights under Title IX. Oregon State University, for example, is 
going to be opening a survivor advocacy center to provide 
confidential and accessible services; they are going to have a 
full-time advocate there.
    So what can we do to expand services like that so more 
students know their rights? And what is the best way to let 
survivors know what resources are available to them on and off 
campus, and also let all students know that, not just 
survivors? They need to know what is there, and the best way to 
do that.
    Ms. Maatz. Right. Well, Title IX absolutely requires 
schools to not only put together an anti-discrimination policy, 
but to also have grievance procedures and, most importantly, to 
publish it in an ongoing way, to publicize it to students, to 
faculty, to staff. And technology can be our friend there, in 
terms of making sure that it is distributed frequently. It 
should also be used, obviously, in any on-campus prevention 
programs, and so forth.
    I would like to get back, truthfully, to the climate 
surveys, because one of the things that I think is overlooked 
with the tool of the climate surveys is that it does give an 
opportunity for students to talk about their experiences. And 
in a climate--
    Ms. Bonamici. And reclaiming my time, I wanted to get to 
that issue, so in the few remaining seconds, could you talk 
about--because there is such a diversity among colleges and 
universities in size and resources, and we want meaningful 
responses. So do you have any suggestions about how we can 
accomplish that in a nationwide climate survey so that we get 
equity in response and distribution and participation?
    Ms. Maatz. Right. Well, we need to actually make sure that 
there are certain questions that all climate surveys ask. I 
think that is very important. The HALT Act would do climate 
surveys, and we need to have that generalizability across the 
country.
    At the same time, each campus can personalize that 
particular climate survey to make sure they are asking 
questions key for their community, key for their constituents. 
And what is good about that is that it not only provides 
information to the school about what they should be doing--what 
they are doing that students don't like, what they are doing 
that could be better--but it lets the students know that the 
university is paying attention, that there are these programs, 
that there are these rights, that there are these protections. 
And that in and of itself is a huge community education program 
as well as a data-finding program that helps to make things 
better.
    Ms. Bonamici. Terrific.
    My time is expired.
    Chairwoman Foxx. Thank you.
    Ms. Bonamici. I yield back. Thank you, Madam Chair.
    Chairwoman Foxx. I understand that Congresswoman Speier 
would like to speak, and I ask unanimous--
    Mr. Hinojosa. I ask unanimous consent that she be allowed 
and permitted to join the committee members for today and 
participate in this important hearing.
    Chairwoman Foxx. Without objection, Congresswoman Speier is 
recognized for 5 minutes.
    Ms. Speier. Thank you very much for allowing me to 
participate today. I apologize for not being here for the 
entire hearing--excuse me. I had a funeral to attend.
    But I want to applaud the committee for recognizing the 
gravity of this issue and the importance of putting a spotlight 
on the issue and coming up with some solutions to dealing with 
it. I am sure you have undertaken a complete review with the 
panelists that are with us today, who are--many of whom are 
experts, about the fact that this is, indeed, a very serious 
problem. Regardless of how you crunch the numbers, the 
incidence is widespread on college campuses and we need to take 
steps to address it.
    Let me say at the outset that I have worked on this issue 
now for over 2 years. I have worked very closely with my 
colleague on the other side of the aisle, Pat Meehan, and we 
have introduced the HALT Act.
    But in doing all of this we have spent time with the Office 
of Civil Rights, and I want to commend them. The OCR within the 
Department of Education in the last couple of years has done an 
outstanding job of creating greater accountability, frankly, 
because we have seen for a very long period of time that the 
Title IX coordinators on most college campuses weren't even 
available to people. They were oftentimes buried in Web sites.
    That all is changing now due in large part to dear 
colleagues letters that have been sent out by OCR and others.
    It is personal to me because I have a daughter who is in 
college, and every college that we visited before she chose the 
college that she is now at, the first question that was asked 
by every parent--the first question when we were at 
orientations was what was the safety of that college for their 
child.
    And this is a bipartisan issue, Madam Chair. I can't tell 
you the number of Republican fathers and Republican mothers who 
have said to me, ``I am really upset that this issue hasn't 
been dealt with appropriately.'' And frankly, sometimes it is 
not until you are six degrees of separation that you appreciate 
how close it can come to you.
    So climate surveys, which we have used very effectively in 
dealing with sexual assault in the military and has been used 
in the military for a long period of time, is something that we 
want to see incorporated by universities. It is a picture that 
helps them appreciate how significant the issue is.
    The HALT Act will also provide for a number of other 
elements. You know, one of the things that Title IX does, it 
has a--it is a heavy hammer. If you aren't providing the kind 
of nondiscrimination in education you can lose all your federal 
funding, which means you lose all the grant money, you lose the 
option for student loans. And so it is a heavy hammer.
    But it is, I think, important to create a system that 
provides some fiscal penalties short of that heavy hammer, and 
the HALT Act would do that.
    It would also increase the violations--the penalties for 
violations to the Clery Act from $35,000 to $100,000 and create 
a private right of action under Clery for students whose 
institutions failed to inform them of safety risks and of their 
rights.
    It provides more money for investigators in the Office of 
Civil Rights by about 5 million and--as an effort to decrease 
the backlog that exists right now with the Title IX complaints 
that have been filed.
    Now, I spoke to a number of young women who had been 
assaulted at the University of California. I won't name the 
campus so they won't be drawn that closely under the 
microscope.
    But in talking to these young women--and there is nothing 
like hearing the stories of these youngsters to appreciate how 
insidious this can be. And in many of those cases, the victims 
were never even interviewed.
    That may be shocking to some of you, but that was 
commonplace. And how can you properly evaluate a case unless 
you interview both the perpetrator, or alleged perpetrator, and 
the victim as well?
    The question as to whether or not colleges should be 
engaged in this at all--and, Ms. Scaduto, you had referenced 
that a few moments ago--you know, is probably a legitimate 
question. You all have codes of conduct, though, and under that 
code of conduct, if you violate that code of conduct you take 
actions to remove those individuals from the campus.
    So you certainly have the wherewithal, and you certainly 
use that code of conduct in dismissing or suspending students 
who don't comply with the rules of the university. And I would 
suggest by being engaged in something that is clearly a crime, 
which rape is, that meets the standard of suspending or 
terminating a student. But I also appreciate that you, you 
know, have to weigh the various interests.
    I do think that the Office of Civil Rights needs more 
resources. I do think that we should create a proactive 
responsibility that institutions, you know, plaster the notices 
of how you can seek Title IX coordinators in the bathrooms of 
every dorm and sorority and fraternity, and those simple 
things. The HALT Act goes beyond that.
    And I see my time is expired, and I thank, again, the chair 
for the opportunity to participate.
    Chairwoman Foxx. Thank you very much.
    I want to thank our witnesses again for taking time to be 
here today.
    I would like to recognize the ranking member for any 
closing comments.
    Mr. Hinojosa. Madam Chair, before I give my closing 
statement, I ask unanimous consent that the following five 
documents be submitted into the hearing record: number one, the 
U.S. Department of Education's 2014 guidance on Title IX and 
sexual violence; number two, U.S. Department of Education's 
list of higher education institutions with open Title IX sexual 
violation investigations as of September 2, 2015; number three, 
U.S. Department of Education's table chart Title IX, Clery Act, 
FERPA; number four, the letter from the National Alliance to 
End Sexual Violence; and lastly, number five, the letter from 
Feminist Majority Foundation. I ask unanimous consent that be 
done.
    [The information follows:]
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    Chairwoman Foxx. Without objection.
    Mr. Hinojosa. Thank you.
    For my closing statement I would like to thank all of our 
witnesses for spending their time with us at this important 
hearing this morning.
    A combination of publicity and heightened scrutiny is 
leading colleges across the entire nation to place more 
emphasis than ever on preventing and responding to sexual 
assault on their campuses. Sometimes victims of these 
horrendous crimes do not know who or where to turn because they 
believe no one will understand them or they believe that 
reporting a crime could bring them much more harm.
    This is why it is imperative that institutions of higher 
education which deal directly with our students have the 
resources to provide the victims of sexual assault and the 
accused with help and comfort so that they and those affected 
by that crime will fully recover and not miss out on their 
educational opportunity.
    And with that, I yield back.
    Chairwoman Foxx. Thank you, Mr. Hinojosa.
    Again, I want to thank our witnesses.
    I want to thank everyone who came here today.
    I especially want to thank our staff for the excellent work 
done on putting this hearing together.
    And in the interest of time at the beginning I did not 
acknowledge that Dr. Rue is from Wake Forest, which is in my 
district, and I am very grateful to her and for that wonderful, 
wonderful institution that is there.
    I want to say that I deplore violence of any kind. I don't 
even watch any kind of movies with violence in them because I 
cannot abide violence.
    And this is a very important issue. It is important to all 
of us. Again, I have a grandson who went off to college this 
fall for the first time, so those of us in particular, again, 
who have children at colleges and universities, but every 
American, everybody on a college campus deserves to have a safe 
environment to learn. We want that for all of our students.
    And so I believe that today's hearing has brought forth 
some important information that will inform us as we go forward 
in the reauthorization of the Higher Education Act, and I 
appreciate, again, the witnesses, my colleagues who came and 
asked very thoughtful questions, and everyone who is here to 
learn more about this issue.
    There being no further business, the subcommittee stands 
adjourned.

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    [Whereupon, at 12:13 p.m., the subcommittee was adjourned.]

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