Transcripts For CSPAN2 Sexual Assault On Campus 20170907

Problem of Sexual Assault on campuses. Panelists include a lawyer for a number of accused students. Attorneys representing colleges, and Michelle Obamas former chief of staff was on the Obama White House task force looking into campus Sexual Assaults this was part of the american bar Associations Annual meeting in new york city. I like to introduce our panelists. To my right i have Lynn Hecht Schafran who is attorney and director since 1981 at the National Judicial Education Program at a legal momentum. Legal momentum is a countries oldest advocacy organized for women. She is develop Training Programs about Sexual Assault cases for judges and other Justice System professionals in several media. And right frequently for legal judicial publication including the magazine of the aba, judicial division, the judges journal. And i have to my left jane sovern who is deputy general counsel for the City University of new york, the nations leading urban Public University with 24 campuses and more than 272,000degree seeking students. Jane has led the team effort in preventing and responding to campus Sexual Misconduct. Tina tchen is a former assistant under obama and the former chief of staff to First Lady Michelle Obama here she also served as the executive director of the White House Council on women and girls for eight years, and in the capacity worked closely on the Obama Administrations effort to combat Sexual Assault, including on the President Task force to protect students from Sexual Assault. Andrew miltenberg described by newsweek as the go to an attoy for students accused of Sexual Assault has defended more than 100 students at discipline or proceedings facing suspension or expulsion from a wide range of colleges and universities, and filed the first lawsuit against the United States department of Education Office for civil rights challenging the Dear Colleague letter. He also has filed numerous civil lawsuits against university in connection with mistreatment of accused students, including on behalf of of the male student accused in the mattress case. His article representing students on campus is featured in American Bar Associations litigation journal in 2016. And then i have Nancy Chi Cantalupo who was working for over 22 years to combat genderbased violence in education. As an attorney, a university minister, a Student Activist and now a law professor and title ix scholar, she is published over a dozen articles and beds on this topic including in the Yale Law Journal Forum in the New York Times room for debate pic and is currently working with the aba commission a special Domestic Violence to develop standards of practice for investigating complaints of campus Sexual Harassment and violence. Were going to hold questions to the end and i would like to start by asking lynn to address generally force issues of Sexual Violence. So, good afternoon, everyone. Thank you, back. Ive been asked to begin the conversation with an overview of a critical barrier to dealing fairly and effectively with Sexual Assault cases in any context. Stereotypes and myths about Sexual Assault that are deeply rooted in our society and which, every aspect of the responses Sexual Violence. The quotation that you see on the screen, stereotypes and myths about the causes and prevention of rate still prevail in the criminal Justice System comes from the Florida Supreme Court gender Bias Task Force report. It was published in 1990. It echoes the findings of the more than 40 other states Supreme Courts that agenda buys taskforces, and regrettably, it is as valid today as it was in 1990. Happily, theres also some good news on the horizon, but lets start with the bad news. As director of the National Judicial Education Program, which is known as in gdp, ive been involved in providing education for judges and Justice System professionals of all kinds for more than 30 years. And its very clear to me that there is a commonality between the criminal Justice System and the campus system, even though they are very different animals with very different purposes and very different protocols. And that is all too often people are charged with investigating these cases and making decisions about these cases dont know anything about Sexual Assault. Making it worse, they are sure they know everything because like so many people they might into the myth of what constitutes real rape. The stranger who jumps from the bushes with a knife, the victim sustained terrible physical injuries and reports immediately to the police. There are cases like this but they are the extreme minority. So given that today there is so much very serious evidencebased research about every aspect of rate, why is it that we are still dealing with this situation in which people should know better shall we say are still wedded to these old stereotypes and myths. Im going to take you down a little trip, a little trip down memory lane, and time is limited such as going to start in 1904. [laughing] okay. Now, everyone in this room knows who john Henry Whitmore is, right . Great legal scholar. Well, he was a deep dive freudian and here we have him basically rooting into american law. The notion of the crazy ladies who lie. And as you can see on the screen, in his great treatise, wigmore on evidence he wrote no judge should never let a sex offense charge go to the jury unless the female complainants social history and mental makeup have been examined and testified to by a qualified physician. Thats 1904. And lest you think that idea died in the dust, here we have our very own American Bar Association in 1937 and 1938. It was doing a major review of the law of evidence looking at wigmore and others, and lo and behold it looks the same. Not only the same look at this ringing endorsement. Today, it is unanimously held, and we say unanimously advisedly by experienced psychiatrists that the complainant woman in a sex offense case should always be examined by competent experts to ascertain whether she suffers from some mental or moral delusion, or tendency frequently found in young girls causing distortion of the imagination in sex cases. The warnings of the psychiatric profession, supported as they are by thousands of observed cases, should be heeded by our profession. So i just repeat, thats a very own American Bar Association. Now, the myth that rape allegations, false rape allegations are rampant is rampant. Theres a great deal of research into this, and the finest analyses of the methodologically sound research in Police Reports concludes that between two and 8 of reported rape allegations are false. The National Institute of justice funded the study that was published in 2010. He was called Police Investigations of rape, roadblocks and solutions. Municipal and campus Law Enforcement officers estimated the percentage of false rape reports, there estimates ranged from 10 to 95, to 100 . At the conclusion of this report was, this entire analysis suggests that a great Many Police Officers still believe in rape myths, specifically the one that women lie. So now lets move to the thread the needle issue about rape cases pics of this is a quotation from f lee bailey and henry in its day quite wellknown treatise on crimes of violence. Now, f lee bailey may bid on the o. J. Drinking but basically he has fallen on hard times. But in the 1973 when he and henry about this they were both very, very respected criminal defense attorney. You can see according to medical experts, and again we have the medical experts involved, the average woman is equipped to interpose effective obstacles to penetration by means of the hands, pelvic muscle. The assertion that rape is impossible because one cannot thread a moving needle. Well, here someone else who believes in the moving needles through. His name is robin camp. He was a judge in canada and he got in trouble because during a trial he said flat out to the victim, why couldnt you just keep your knees together . So he was removed from the bench by the canadian judicial council. In fact, he actually reside before the formally removed him. But in his defense, justice camp said he did not receive any training about Sexual Assault cases, and that his law practice had been a commercial bankruptcy law. Well, canada as result of this case and some similar, is now considering a bill thats called the judicial accountability to Sexual Assault training act, and it would require that lawyers were seeking judgeships, and sitting judges, have mandatory training about Sexual Assault cases. The legislator who introduced this bill said, many canadians would be surprised to learn that a lawyer doesnt need any experience in the sensitivities of Sexual Assault cases to become a judge overseeing these types of challenging trials. I think a lot of americans would be surprised to learn that thats exactly the case here in the United States. The law is a very odd profession in this respect. Its basically exulting ignorance. If you are a doctor you cannot be a dermatologist on monday and tuesday commen, and separate cod twins the rest of the week. But if you are a lawyer you can have a 20 year career in commercial law, become a judge, and overnight you are presiding in Sexual Assault cases without any background, training, experience in the field. And heres a u. S. Judge. His statement which you should all just take a moment and read for yourselves is really disturbing because he actually had experience in this field. He had been a specialized sex crimes prosecutor for 18 months right before becoming a judge. So this is really worrisome. Weve got a prosecutor who has some very interesting ideas about what constitutes rape and that damage you have to be to be worthy of a serious sentence against the person who has attacked you. So no reticular if that come with the California Judicial Commission admonished him, they made a particular point of the fact that in 1980, and now were talking about a case that came up in 2012, 1980 california had removed the resistance requirement from its law. So question. Are the people been quoting typical or not . This is the cover of a publication that is on your flash drive. Its called obviously judges tell, what i wish i had known before i presided in an adult victim Sexual Assault case. I wrote this publication based on a one question survey that i sent to judges around the country who had participated in njep understand Sexual Violence programs. And it was just this one question. What did you wish you had known before you started presiding in these cases . I thought i would get back like David Letterman is top ten. Got back so many different responses, many of them the same, but with all the addons. It ended up at this has 25 points. Now, these are the good guys. They knew the importance of training. They came to these programs, but when you look at what their questions were, what they wish they had known before they came to the bench before they started presiding in these cases, you can see that they lacked the most basic factual knowledge about Sexual Assault. Heres a very brief look at four of their points. The vast majority of Sexual Assaults are committed by some of the victim knows. Best research on this comes from the medical university of South Carolina. They found that in 89 of Forcible Rapes, and 81 of drug facilitated incapacitated rapes, the victim knew her attacker. The absence of serious observable physical injuries is not inconsistent with a Sexual Assault. Medical university of South Carolina again, only 6 of drug facilitated incapacitated, and 16 of Forcible Rape victims reported serious physical injuries. Victims of stranger and nonstranger rape almost always sustain profound, longlasting psychological injuries. The reality is that almost every rape victim, female or male, suffers severe psychological injury and a high rate of longterm posttraumatic stress disorder. Rape victims have far higher rates of contemplative and attempted and completed suicide than to nonvictims. Many turn to alcohol and drugs to self medicate the trauma. I think its profoundly disturbing to think that judges, or indeed anyone else, would not intuitively grasp they unwanted sexual penetration would cause great psychological harm but in fact, many people do not know this. And finally this one. Victim behaviors that are commonplace during and after a rape, not physically resisting, delayed reporting, and so on appear counterintuitive to those not knowledgeable about Sexual Assault. Obviously we dont have time to cover all of these, so i just want to focus on resistance. Remember, judge Derek Johnson was faulting the victim in this harangue this case because she didnt fight back enough, even though the law did not require it. 17 years ago i added a unit on the neurobiology of trauma to njep understand Sexual Violence programs that because i thought it was really important for the judges to be aware of the automatic psychophysical brain states that inhibit resistance, and to understand that this is the way the human brain responds, again automatically, to a terrifying attack of any kind. And it is not unique to Sexual Assault victims. This is the human brain across the board. Freezing, im sure most of you have heard the expression frozen fright. Freezing, this is a brainbased response to detecting danger, especially a predators attack. Think about deer in headlights. The brain response rapidly shifts the organization into a state of vigilance for incoming attacks and avenues of escape, but when the brain perceives, this is a subjective perception, u. S. Observer might think she could have jumped up from the bit and run out the door, when the victim herself, when her brain says youre not getting out of here, what happens is that extreme survival reflexes kick in. So this immobility which the body is literally paralyzed by fear unable to move or cry out, collapsed immobility, this is the possum playing dead. Disassociation, victims feel as if they are just observing this whole thing in entering. Its happening to somebody else. So i said the was a little good news, and here we go. A few years ago the virginia Supreme Court asked the trial judge to present a program for the new judges based on the publication judges tell. Afterwards, several of the judges told the presenter that the program had disabuse them of several false ideas. They had believed that the stranger jumps from bush a stereotype was accurate. They felt real rape victims had to sustain very serious physical injuries, and they did not understand that rape causes very serious psychological injuries. About a week later one of the judges, new judges who participated came to the presenter and said that he had just presided in his first Sexual Assault case and that he would not a convicted the defendant if he had not come to the training. Because the victim in this case did not have the serious physical injuries that he had always been told with a hallmark of real rape. So think back to the judges who wrote the one question survey that they had not known that victims had to have, that victims did not have to serious physical injuries to have been Sexual Assault victims. Think about what that might admit over the years before those judges learned that, in fact, thats the reality. I mentioned, let me go back, last year we presented a program for the colorado violence against women judicial institute. Its probably bought an article that was in the judges journal and thats on your flash drive on medical forensic Sexual Assault examinations. Afterward, the attendees reported that they now had a greater understanding of the myths surrounding Sexual Assault. It would help them in their credibility determinations, and it would help them in making decisions about admitting experts. With respect to police training, the njep study i mentioned before found that the police were reporting that if there was any training, and most of them didnt have any, even though the docket was 80 nonstranger rape cases, the, the training they were getting was all about stranger rape. So unhappy to tell you that today there is really good training out there for Law Enforcement. They are getting trained on the neurobiology of trauma to understand immobility and white victims dont do the things that expect them to do and the challenge of course is getting everybody to take that training. Finally, an adaptation of judges tell her campus disciplinary commissions. This was written at the request to the university of pennsylvania in response to the Dear Colleague letter. It is to some extent an adaptation of judges tell. This is presented as as a temp. Its meant for other institutions to adapt for their schools and this is on your flash drive for you to use for your own institution. The bottom line is that achieving an informed and fair and Effective Response to Sexual Assault, whether its on campus or in the criminal Justice System, requires identifying policies and practices that are premised on the myths and stereotypes that still prevail, changing them, and providing everybody who needs it with their relevant, accurate training that really brings them knowledge. Its all out there, all this research is out there about Sexual Assault, and helps them to understand these cases through an accurate lens. So than thank you, and we are nw going to have a conversation among everybody on the dais. [applause] [inaudible] and now im going to turn and ask tina and jane to provide background on title ix, state and federal laws relating to Sexual Violence. Thank you. Im going to start by discussing a couple of cases that i assume you may be among the ones that you may have read about that are shaping kind of some of the perception about campus Sexual Violence. The first one Jan Elio Elliott o already, and andrew was involved in the case, i think many of us heard about the Columbia University case that involved a female student who had complained and accused a male student of unwanted sexual intercourse. They campus adjudication was done, found him not responsible. She was so upset with the result and so unhappy that she did, started an art project that she worked on as part of her studies that involved her carrying a mattress around with her all the time when she was on campus, until the graduation. As a representation of the weight of what it happened to her and what she was feeling. And you probably saw that in the news, certainly at campuses around the country. There were groups that pic pickd that up, and in solidarity with her, also carried mattresses or had acknowledgments of this. There were several other students who accused the male student also of unwanted sexual activity. Those also, either the individuals did not move forward with their allegations or the male student was found not responsible in those as well. And i think there was a sense of outrage among some, certainly on the columbia campus, though by no means all, that the perception was that were a number of people who had accused this young man, and yet no one, that he had not been found guilty of anything. I think on the countervailing side, his argument was that the accusers had essentially colluded and kind of urge each other on in terms of making their allegations. The male student sued the university, claiming under title ix, and andrew obviously knows much more about this because he was the lawyer on the matter, but claiming a violation that he was being, that a hostile environment was being created for him under the circumstances. In the case was dismissed once, at least once, and then recently settled with the university. So what you ended up with a really was a situation with a number of parties, all of whom felt extremely unhappy with the way the university had handled the issue from their perspective, both the accuser, the principal accuser, other accusers, the respondent. So that is certainly one that made the news and was talked about a great deal, and i think was sort of helpful to have a little background on that. Because part of what that involved is the campus, the adjudication on campus, and that led to i think the month of the cases a lot of conversation about why in the world are campuses adjudicating these cases . Why dont we leave this to the criminal Justice System . Well, one of the other cases, and there are a number along these lines that you may have heard about involve baylor university, where the university, there apparently had been allegations of rape by a number of female students against male students, many of whom were members of the football team, for a six year period and these allegations have not been handled, they had essentially been ignored by baylor, and eventually they came to light. The president and the head football coach lost their jobs. The Law Enforcement investigated several of the students who are accused, were convicted of serious sex crimes. There are some very think are still in process, and the texas state Law Enforcement is investigating criminal charges against baylor for their handling of this. You also see a similar case with sort of a different twist with respect to the Florida State student Jameis Winston who is accused of rape and other Sexual Misconduct, and the Law Enforcement and the university of essentially appeared to many to give him special treatment in the way the case was investigated because of his status as a star Football Player in major collegiate athletics. And that was a situation where, you know, many felt that neither the campus nor Law Enforcement handled the case well at all. So that sort of gives a little bit of the background on some of the issues that arose. Partly in response to some of these wellknown cases and to the efforts of the white house in publicizing these issues and the efforts of the Administration Overall in the office of, the office for civil rights in making Sexual Violence and Sexual Misconduct on campus a priority, you saw in addition to those federal efforts, which tina will talk more about, many states began proposing their legislation to address this as well. And in 2015 you saw many, many different proposals of all kinds with all different kinds of emphases. I believe there were three states that passed laws in 2015, new york, california, and illinois, working here in new york on certainly most than they with the new york law, but the different laws and proposals sought to address different things. Many of them were concerned with making sure that students, both acute and respondents, had representation. North carolina, for example, passed a law essentially requiring that respondents had to have legal representation to credibly accused students had to have attorneys representing them, and all campus kaunda cases which is certainly not the typical way that these tend to work. So you also had, new york is a good example of a state that had very, very detailed Legal Framework for how the, all of the proceedings and investigations should work. And so you have very specific training for adjudicators, all kinds of specifics. New york and virginia are states that now under their laws require that transcripts, educational transcripts include any penalties of suspension or expulsion for individuals who been found responsible for Sexual Assault. So you can see that the states have come in as well as, in the federal arena and that there has been considerable activity in response to this. So the difference here i think, and i think one of the themes you are going to hear today, that when youre talking about incidents that happen on campus, you know, and incidents of Sexual Misconduct that can both be heard in a campus arena or a criminal justice arena, i think its important to kind of pick up on what is it thats different about those two arenas . And im going to give a nod to nancy in her materials that you will see, and nancy with her law professor had on kind of articulated the difference between those two in terms of what are the systems looking for and what are they looking to protect. So on campuses at universities, the disciplinary systems are there to keep the campuses safe, and the process of adjudicating Sexual Misconduct that the campuses have responsibility to maintain a safe environment for all their students, including students who are complainants, that they have been subject to Sexual Misconduct. Saw the criminal process and a number of the myths and i think a lot of whats been going on is moving from the education of judges in the criminal system to the education of adjudicators on campuses as well and im going to pass it on to tina to talk a little more about the federal piece under the Obama Administration and a lot of the developments that were very significant for campuses over the past few years. Thanks, jane. And i want to thank lynn for setting the stage here because context, i think, is very important because these cases are very unique and theyre not like a plagiarism case or another case. The entire history is well laid out for centuries, Sexual Violence cases and were talking Sexual Violence, had been treated very differently. I want to set the context of what is the dear polly letter and the actions that the Obama Administration took. And we took them in response, let me be clear, took them in response to a National Institute study that generated and validated by multiple surveys since then, it was roundly criticized at first as being an anomaly and Washington Post and others did research and validated the statistics anywhere between one in four and one in five young women will experience Sexual Violence during her four years at college before she graduates. If you are the parent of a collegeaged student as i am, you know someone, as i did, or she knew or he knows someone who has experienced Sexual Violence on campus. The Dear Colleague letter, and i see, from the national centers, who are longtime architects of title 9, and any school that receives funding, secondary school in the country that receives fund is to assure that no student is being denied education. You probably know that as the threathletics that brought wome athletics to what it has, but its long time prohibited Sexual Harassment on campus for decades, its been interpreted to do so. Sexual harassment has been defined to include all forms of Sexual Violence, rape, sexuality battery, both men and women are the victims on the basis of their sex, gender identity, their gender whether theyre lbgt or not, a broaden compassing statute, longstanding. So we issued our interpretation and clarification of title 9 in form of a Dear Colleague letter, it was not new rule making because obama was clear this is covered and we want today make clear to school what their responsibilities are. There are a lot of myths going on about the Dear Colleague letter. We took a very balanced approach, we believe, to what it requires. It requires that school have a balanced response to making sure that theyre creating an environment thats free from sexual discrimination, free from a hostile environment that a complainant might experience. Is there a process that a disciplinary process that the school employs, it must be treated fairly, so we do not say that all the victim gets an attorney. The victim has an attorney, the respondent must have an attorney, or if no one has an attorney. Weve been colleague in enforcing the letter, the department of education has signed up schools and colleges, and Occidental College from last year, the schools were cited for not having procedures that treated that fairly. Other is the standard of proof to be used. Its a preponderance of the evidence standard. The reason we picked the preponderance of evidence standard, its in title 7 cases in sex discrimination cases and well established as the Legal Standard in civil proceedings that are used. If there is a proceeding for civil damages in a sexual case or Domestic Violence case. Its the standard of proof that most fairly balances, quite frankly, the interest in a civil proceeding of the complainant and the respondent dent. Its not a civil case where liberty is at stake. Its a standard that most schools are using in their Disciplinary Procedures and frankly, it shouldnt be harder to discipline someone for raping someone. And what then happened, i will say after 2011 we issued a Dear Colleague letter and we thought the schools would implement it because its the law and we went on to other issues in the Obama White House, i admit that. Credit where credit is due, courageous students who came forward to then secretary arne duncan and personally sat down with me and told their stories of what they were experiencing sense 2011 when they were smart enough and learned about title 9, they brought their own title 9 complaints. And story after story and institution, after institution, some of the finest institutions in the country, and student were told they had no title 9 person to go or and there was no title 9 coordinator at the school. And a student was told, i cant live in the same dorm with them anymore, and she was told you should leave and withdraw, and, no, were not giving you a refund for the balance of your semester. Another student faculty did not believe him and went on. And schools did not pick that banner up after 2011 and led president obama in january of 2014 to establish the task force to prevent Sexual Assault against students and led to a series of efforts, for example the now publication of the list of schools under investigation. The students said we filed a title 9. No one knew what happened to it. Were a Public Institution we were, im no longer there, and as judicial officers and attorneys, so the department of education began public sizing when schools when a complaint has been filed, what the progress has been made and its controversial for the schools, but i believe that transparency is a hall mark here that needs to be done. We issued best practices for what needed to happen. We brought along prevention programs and recommended to schools that they do that and, you know, one of the things im most proud of, we start the days stay tuned led effort where students have taken the lead, male and female students on campuses to train themselves in Bystander Intervention and eliminate rape culture that alo us this to continue, to say its not okay to make jokes because jokes lead to other, you know, to even worse behavior, to really set a standard for what should be happening on campus. And we were talking before. Ive been here for four years myself. What gives me hope, the students are bringing whole new eyes and energy and whole new commitment to combatting sexual discrimination Sexual Violence and gives me the most hope in all of this. Now that we have the background on title 9, im going to have andrew and nancy discuss how does title 9 look in process and what are the challenges by campuses. Okay. So im going to apologize in advance for, i may at some point get into a bit of a weedy place on this topic. Its a little bit hard to stay at the thousand foot level on this topic because implementation is the real challenge, right . So my second law review article on this subject was entitled burying our heads in the sand, and it was addressed to college and University Administrators for the most part or the our in that title was about college and University Administrators, and they were, they were burying their heads in the sand about this problem so most of what the last, you know, four years, three or four years has accomplished is to get colleges and universities to stop burying their heads in the sand about this problem. That doesnt mean that it has given them adequate amounts of information and knowledge to actually implement the spirit and the mandate of title 9 or the cleary act, which is another federal statute that applies to these issues. Its that, you know, colleges and universities dont necessarily have what they need to actually implement those legal mandates in a in a both compliant, but also more than compliant, you know a compliant with the spirit of these statutes. And so, so, you know, for us, i think for those of us who have worked on this topic for a long time and are trying to get schools up to speed, to really be able to deal with these cases, in a fair, equal, and productive manner, right . Meaning a manner where you can get the you can deal with the case like this and protect the rights of both students involved, but also make sure that at the end of the process you have a Better Community and a community that is more supportive of all Students Learning and continuing with their education, than a less or a more hostile kind of community. Right, so those are the challenges, and for colleges and universities, you know, i think of implementation of being challenging in basically four different really big ways. One is that there is tremendous diversity in this on this topic, right . Colleges and universities themselves are incredibly diverse, they range from Major Research universities all the way down to small liberal arts colleges in rural areas, community colleges, minority serving institutions, and thats not even including the majority of federally funded higher education, which is for profit institutions, like, you know, the small Beauty Academy in your local mall. So theres enormous diversity and that diversity is reflected in terms of the staff at those institutions and their understanding of these issues of title nine and what to do about Sexual Violence and Sexual Harassment when it occurs. Theres also diversity among victims and accused students and that but thats a different level of diversity that we will talk about a little bit later. A second major implementation problem, the investigators, the Decision Makers on these campuses, almost none of them are lawyers. They do not come into this with Legal Training and theyre not going to be its not like this issue is going to cause colleges and universities across the country to start to hire a bunch of lawyers to do all of these roles that nonlawyers have been doing for years and years. Youre not going to hire a lawyer to be a professor in your socialology department. Youre not going hire a lawyer to be the person to work with your student government, necessarily, or better your organizations, clubs sports organizations, right . But these are the folks who do have to have to deal with this, you know, respond to these issues when they come up on campus. So, so thats the second challenge. The third challenge is forcing victims to go to the police is not an option for schools, right . As weve already heard, title 9 exists, it has existed for 40 years, it requires schools to address this problem when it comes when it happens on campus. But, even if title 9 didnt require that, it would be, frankly, discriminatory and bad policy for a whole bunch of reasons, to force these cases, to force victims to go to the police and only to go to the police on these for these cases. And then finally, in order to deal with implementation problems, colleges and universities need to have a significant amount of resources. And thats not an excuse for not devoting resources to this problem, right . They have to devote the resources to this problem. However, they need to be thinking very carefully about how they devote resources to this problem, right . They need to make sure that the resources, how they devote resources, have to allocate resources is done efficiently, it done cost effectively, is done sustainbly and those are thats a whole set of challenges in and of itself. And so, you know, thats to say this is a weedy place sometimes, but it is theres reasons for that because implementation is sort of where the rubber hits the road and if you cant get that right, then, sometimes you havent gotten anything right and youre in a worse place than you were to begin with. And i think that worse place is reflected by the fact that im not sitting in between tina and angie. [laughter] and all kidding aside, much like the last 50 minutes, and weve heard everything that i think resonates significantly throughout this topic and none of which i can take a particular stand against, again, because where im sitting. The on a practical level, were seeing something very, very different and i think that the Dear Colleague letter, and i have two daughters, but i also have a son, came from in 2011 and 2014 the right place and i think it is and was wellintended. I think the implementtation of it is where the problem is, thats what im seeing a palable sense in one of these hearings, that the sense that the respondent is going to be found responsible. I dont want to use a metaphor like a north korean show trial and it sound somewhat offensive and i try to stay away from in these hearings, as much as one c can, whether there was a Sexual Assault or nonconsensual sexual interaction and i try to Pay Attention to the process and the process has been frustrating. So much to the extent that i almost challenge for the most part, with few exceptions of the over 100 that ive sat in on, all across the country over the last several years, i would almost challenge anyone to sit in on the process with me including tina and nancy and everyone on this panel and say, wow, that was fair ap reasonable. And it starts with an investigative process, a hearing process and a standard of proof, which if we assume that everything that has been said before me is true, need to be refined by more experienced people, or better trained people at every level to make the process fairer and im happy to give some examples. You have some investigators, whether its going to be what we talked about, a single investigative model or where there are multiple investigators. You have investigators who arent, in my experience, objective fact finders. They shape in a very significant way the facts and for the most part, the hearing panels accept with very little question what the investigative report states. Investigators have, again, within their discretion, again, withen my experience, the right to take down certain facts, interview certain witnesses, not interview others, include contextual evidence, such as social media, whether or not they include medical evident, whether it exists or not, all of these things add up to reports that for the most part are ones that i dont think that we can all have a lot of confidence in. That report then goes to a panel and the Panel Controls very significantly the flow of the hearing. There isnt a lot of consistency or continuity between universities and in some cases, ive had matters within the same semester at the same university that are handled in a wildly different fashion, so much so that its virtually impossible to recognize whats happening between the two cases that are going on simultaneously and you have a hearing process where there remain some very significant restraints on a respondents ability to tell their narrative and to really feel that the process has been transparent and theyve been heard, and in many cases you have a process where youre essentially appealing within the same department, youre appealing to someones colleague or direct report, and in the world of academia and in smaller universities, i think its, as a practical matter, not necessarily realistic to expect that theres going to be a fresh review, so to speak, of the facts and for the most part, appeals are i hate to use this word, forgive me rubberstamped. So much so that i found that its only bringing a case in federal court on title 9, breach of contract or failure of due process do you finally get someone, outside counsel, to take a real look and say, okay, what is it that we youre looking for. What do we want to do here . And why do i say that . Were not taking someones liberty away, right . And i understand both sides of the argument that Law Enforcement isnt necessarily the right place for this. You know, would a hardboiled new york city detective may consider a Sexual Assault is very different from what may have happened on campus and that doesnt mean my daughter, for example, should have to see that same young man in her microeconomics class monday morning. So, i understand that its not practical to send this necessarily to outside Law Enforcement, however, were seeing sanctions that are very hard, again, from one university to another to reconcile and ones that are having a very significant effect on the Career Opportunities of of students. And one of the particular issues that i really have difficulty with is carrying these on someones transcript after they graduate. There are a couple of schools that dont do that, i understand that if youre found responsible and youve gone through an appealable process, theres a you should labor under that yoke, perhaps for the balance of your matriculation. Your graduate school becomes a very distinct dream if you have a Sexual Assault or a disciplinary misconduct on your record. And thats why, if we roll back to the beginning, we need a much tighter process, more transparent, more equitable. In a situation where we rarely have an eyewitness and in many cases, many cases ive seen where alcohol plays a role and everyones memory is dulled at best. And the lack of welltrained investigators starts the process in a way that you find yourself adhering and feeling as though just make your record because youre going to end up in a lawsuit over this. And i think somewhere between what tina helped put in place and what were seeing at the hearings, there has to be some better implementation for what is an important and wellintentioned Dear Colleague letter. One area, we heard the panel talk about transparency and so we have issues of privacy and in transparency, with competing concerns, and then you have the issue of retaliation. How do those all intersect if nancy and you can address that. I have a very strong opinion on that and i want to jump in first, is that again, my experience is that when a no contact order is issued, both the complainant and respondent will be advised of the confidentiality rules that apply to the process and they cannot nor should talk about it. As a practical matter my experience is the complainant talks about it, my client or a respondent will complain to the title 9 coordinator and will in most cases, with some exceptions, be told, well, people talk, theres nothing really i can do. I dont know what you expect us to do. And we see it a lot on social media, that people are being called young men who have just been accused are being called rapists. Conversely, if a young man, and again, this is only in my experience, talks to someone, his roommate, even for that matter, about what hes been charged with and by the way, he doesnt afternoon know what hes charged with until the investigators final report is issued, could be months later, putting that aside, he will receive either another charge against him for violating the confidentiality order or if hes lucky, you know, just a beatdown, so to speak, for violating the confidentiality. Again, it may not be meant to be implemented that way, but there is a significant differential between how the confidentiality is being applied. Okay, so i will talk about my experience representing. So one of the things that was not mentioned earlier is that i have served as counsel, what at my institution was referred to as faculty counsel to students who were accusing other students of Sexual Harassment and Sexual Violence and genderbased violence of all sorts, Domestic Violence, dating violence, those types of things. And my experience is, you know, that those sorts of the many of the things that andrew is talking about happening with regard to the accused student also happened with regard to the victim. Right . And, in fact, my first article on this subject came from one of those cases, you know. I did the typical lawyer thing where i was a part of a case and it didnt go exactly how i thought that it should go, so, i wrote an article about it. And so in, you know, what i found was that these hearings are very they are very unfair. But i would argue that theyre very unfair to the victim. And part of the reason why they are very unfair to the victim is because they use they often imitate the criminal Justice System and the criminal Justice System is not an equal system, its not an equalhanded system. The victim is not even a party to a criminal proceeding. Shes nearly a complaining witness. She or he is merely a complaining witness and does not have independent representation. The prosecutor, obviously, does not represent the victim in a criminal proceeding. The prosecutor represents the state and that means that the victim has many rights that are completely unprotected in the course of a criminal proceeding. And so, when colleges and universities imitate the criminal Justice System in their disciplinary proceedings, that creates inequalities, severe inequalities between the two parties. And is violative of title 9 because title 9 requires evenhanded treatment and equal educational opportunity, including what i have termed procedural equality in these cases, which includes, if youre going to give a right to one party, you are going to give the same right to the other party. But in many cases, colleges and universities have not provided, you know, they have not provided a right of an appeal, for instance, to the complaining student. Only the respondent gets the right to appeal. And many of these things were the issues that were addressed by the Dear Colleague letter and for those of you who are interested, i actually, in your flash drive that i also had extra copies and brought them and left on the back table. Theres a group of 110, as of two days ago, 111, law professors who have written a white paper on the Dear Colleague letter, particularly on the preponderance of the evidence standard of proof, that sort of talks about why procedural equality is required by title 9 and how the preponderance of the evidence standard an actually fits into that procedural equality and the title 9 civil rights structure. But you know, i think its important to understand that this is what im talking about related to the implementation problems. Colleges and universities have obligations to both of their students in one of these proceedings and up until very recently, they not only were not doing a good job protecting those rights, but they were also not really thinking that protecting those rights were important enough to consider and to put some resources towards training and other sorts of things. So, you know, hopefully we are going to get to a better place soon, but we need to we need to focus on both of the students and the experiences and getting our implementation to a better place. The thing that worries me, what you see here is the diversity of whats happening. For those of us who live with with the precedent method how the law evolves, thats what were in the middle of. We issued a set of guidance, you know, that makes clear what the longstanding obligations schools are not living up to. Its framed in the Dear Colleague letter to address the diversity of settings that nancy described, because it applies to small schools, rural schools, as large as penn state and harvard and yale, to community colleges. And the standards are set out to be flexible so that each institution can mold their proceedings and their responses to what would be reflective of and is true to, you know, the way the school operates, but within certain basic guidelines of fairness and the best prohibition against sex discrimination in a hostile environment. That means not just necessarily, adjudicating whether the Sexual Violence occurred as what happened in the criminal proceedings, but a lot of times weve seen this and the winston case is a good example, not only was the case not pursued. She became the pariah on campus and she became the focus of every one on the football field. The yale march down through the yale campus, you know, calling out the women of yale as whores and else wards that occurred. And thats a title 9 violation, addressed here, not just a specific act of violence oneonone. That title 9 is intended to go after. But theres great diversity among nugss. Theres at one point a gulf of knowledge, even in the criminal Justice System dealing with this for decades how to approach these cases. Its going to take time for schools to get smarter and one of the recommendations we made from the white house is that schools entrant to manufacture this have with Sexual Assault and rape crisis centers. Theres a wealth of knowledge for those of us who have been in this for decades. Wealth of knowledge to support victims. How the alleged perpetrators. Schools need to reach out although ive heard from general counsels who are reluctant to have the schools open theirtors and open up to them, they need to to learn it. And what i agree about right now with the rhetoric as recently as within the last two to three weeks, for those of you who follow the issue, we have a new secretary of education, new head of the office of rights within the department of education who are really taking a very negative view generally of this issue. Of the preponderance of evidence standard and appeared to be prepared to sort of walk back. And we see it already. Theres been a 20 increase in just these last five months alone in the number of outright dismissals of title 9 complaints from the office of civil rights and department of education. And any ruling or anything, theyre clearly starting to act on this and to step back from enforcement and were at the moment, well, what the department of Education Needs to be doing is helping schools get betterment as i said before, it wasnt judged, youre not doing this well on behalf of the victim. We also in the Obama Administration cite schools that are not being fair to the accused as well. So were in that process that we all know earning will case by case, Getting Better case by case and thats not what we need to be in, i fear were in one, throwing the baby out with the bath water a period of time when our students, male and female, are going to be left unprotected in a vulnerable age where theres a lot of things like alcohol going on thats not controlled and our campuses will go, quite frankly, cannot safe places for our kids. Could i give just one example of that apropos of what tina just said . Earlier this week i spent two days in a preliminary injunction hearing in court against a Major University and for the life of me, i could not get the investigator and title 9 coordinator to agree on the witness stand with each other on what policy or procedures they were using. And thats why i think there needs to be a greater understanding at the University Level of what theyre supposed to be doing. And im sorry, go ahead. No, i was going to turn to jane and ask yes, absolutely. I think a couple of points. One is that theres no question that this is hard, that managing these hearings are it is a difficult endeavor, its complex, but i think that campuses and universities are making progress. You know, andrew is saying he sees nothing, but disaster. I respectfully dont see it quite that way. I think. [laughter] but its not easy. I do agree with tina that campuses are Getting Better at it. I think there are some very important pieces. One is just to mention in terms of timing the federal court cases youre seeing now are cases with facts that were made not yesterday, they were made in 2013, 2014, 2015, maybe sometimes even 2012. Weve all gotten a lot better at this since then. Thats for sure. Weve all been drafting policies, those of us with state laws are responding to them, but i think, also, training and education takes a long time, and remember, just as judges are still being educated as lynn has showed us that you have judges in 2014 and 2015 who are saying appalling things, you know, this takes time and it absolutely does. Its also, one piece thats incredibly important that relates to what nancy said, is for individuals on campus with pieces of responsible for pieces of this to understand their roles. And i cannot overemphasize that because you have adjudicators. What andrew was essentially saying, if you have adjudicators who think theyre advocates or have a pro ordained responsible to find a certain way and thats a role issue and thats part of the education of making sure that everybody understands what his or her role is. And i think that those evidence are bearing fruit, that things are Getting Better. I think that certainly what i see are campuses when you have adjudicators who hear more cases you get more perspective of and you get the perspective that not everything is either a lie or, you know, the worst thing thats ever happened in the world, that theres gradations in these issues. You know, so i think that things are improving. It is hard, but and these are not easy, but i think that with training, with clearer policies, i think institutions are talking to each other and learning from each other and i think that i also think that with respect to the new administration, i am very convinced whatever happens, i dont think that the universities and colleges in this country want to go back to the way it was. When you talk about social media, andrew, those of us who were op clem College Campuses in the 70s and 80s, the bathroom wall is the same thing. How many of you were in the bathroom, there was the list on the wall, in the womens room, the rapists, in the mens room, sluts and whores, call for a good time. The social media is just a gigantic bathroom wall and here is where we are. So, but i dont think i dont think that most places really want to go back to most universities want to go back to those days, i dont think that most universities want to go back to burying our heads in the sand. Just to yes, just thinking about resources and education and you talked about lynn and the great work shes done in this area of Sexual Violence. Lynn it there, best practices in the area of resources that you can speak to. Well, i just want to mention that i think its tremendously important to focus for a minute on what i said about the campus system and the criminal Justice System as being two very different animals and they offer very different responses and i think that for people who are not specialized in this area, they dont understand that. When you have someone who has been victimized on campus and youre pressuring this person, male or female, just go to the criminal Justice System, thats what you need to do. The criminal Justice System cannot do things that can be afforded to a student under title 9. I think it was you who mentioned, i cant go to school if this guy and i are in the same dorm or hes in my same class, the school has the authority, the jurisdiction, the power to make these accommodations that make it possible for an individual to continue with her or his education. And while andrew is right, that there are young men, maybe there have been some cases of women that i dont know about, but theres certainly young men who have been found responsible and expelled and this does put a blight on their future. I certainly would know the deny that, but, for young women, we have research, again, evidencebased research that says young women sexually assaulted on the campus, if tina says this is epidemic, they are dropping out of school their grades are going down, theyre losing their scholarships, theyve got the same skin in the game, if you will, as the young men who are worried about being thrown out of school and what their future will be, but, the school can take action right away. The school can move someone out of a dorm. They can change school schedules, they can do all kinds of things on campus, no contact orders. If you go into the criminal Justice System, not only is the victim in the crime and i will use the victim as if its, you know, a done deal, of the crime, she is just a complaining witness. The prosecutor is, you know, represents the state and it can take literally years to see that case through the system. So, i just think thats so important that people understand the difference between what title 9 offers, what the criminal Justice System offers. These are two very, very different processes, proceedings and they offer really different remedies. Let me ask you two things, on a slightly different note, one hopeful and then actually something anyone can do. On the hopeful fronts, i mentioned earlier the campaign na we started and title 9, weve spent a lot of time at the back end of the process, the adjudication process and investigation process once something occurs. The other piece that we gave advice on, schools have to create programs proactively, teaches kids with Sexual Violence and bystander and how to Say Something when you see something going on. The schools and students themselves have taken this on themselves in come wonderful ways. If you want to see google consent and one of the best videos around. When you want to give somebody a cup of tea and they dont want it you shouldnt be pouring it into their closed mouth. The students have 500 campuses that have activated these students led by a lot of young men and its the most heopeful things ive seen. The other piece, which we all can do because were either alums of universities or were parents of existing College Students or were parents or grandparents of prospective College Students. Ive often said this is a most elastic market that exists. You guys are having to resell yourselves to a new set of parents every year and has great power in the buyers. And the buyers and higher consumers of education, any education, it can be done in your secondary schools as well. We should be demanding to our schools not just to respond to title 9, but to respond to a whole range of issues and regardless what happens in washington, thats schools need to step up to their obligations as students and ive embarrassed my child when we visited colleges because i asked about this issue on every college tour, but thats what you can do, right . You know, if everybody is hearing, every college tour comes back and a lawyer said title 9 and asked what we were doing about sexuality assault. That will have one of the most response on change. Thats what we want. What we all want is for this Sexual Violence to be sort of end the rape culture out there. And we have a few minutes for question and we have a microphone, so so, i also think that we here in new york and other urban centers around the country, live in somewhat of a bubble with respect to many, many issues, but im really troubled by the messages coming out of the department of education currently and while we can do the things that tina suggested, im concerned that the department, without the push from the government, without the support from the government, theyre going to be many, many institutions that are going to think its just perfectly okay to do the bare minimum, if really anything. And no matter how many questions we ask on College Tours or how many times we push the trustees that we know to do something, they may just not do it. So, what do you suggest people do who might not be from new york . This is a national Bar Association. What should they be doing to try to make sure that there are continued advances . And were not just relying on the good faith . Im sure it is good faith, of all of the colleges and universities to do whats right. Many of them wont view whats right in the same way that others do, i would just say that, not that im a proponent of additional regulation on colleges and universities because heaven knows theres more than, you know, more than anybody can imagine, but state laws make a big difference. I mean, in places like new york or california, or other states, illinois, you know, title 9 is important, but its not right now, whats most important is the state law thats very clear. Another thing i would say though is that, you know, the bathroom wall of social media, and the press, have a huge role. And when, you know, when you start thinking about all the cases that youve heard of, you know, the stanford woman who was, you know, unconscious and raped by the swimming the member of the swim team and, you know, i mean, there are so many stories that become National News and they are all, you know, exactly what colleges and universities dont want their reputations to be. So, i think there are incentives for colleges and universities to handle these well and not just do the bare men mum. I agree i will say that weve got to mount the title 9 defense right now. American Bar Association has to accept up on the title 9 because the erosion of title 9 in this case will lead to an erosion of it overall, right . And you know, were already seeing it in the transgender bathroom cases. Were seeing, this is a creep, not a steady creep, theyre going to push through as fast as they can. If lawyers this is a civil 45yearold civil rights statute who needs to be consent of rights, and rights now, vocally lawyers across the board because its a matter of civil rights here im afraid now. If i can add to that, its not just about title 9, right . Title 9 is follows other civil rights statutes. If there is a precedent set in the case of title 9 that you can cut back on civil rights protections in this kind of case, then that puts other i feel rights statutes at risk, in my opinion. And so i think that the defense is not just about title 9, its about civil rights and our civil rights statutes rit broadly. I was just going to agree with that and say. [laughter] and we spoke about something briefly which is that for some reason this is being set up, the construct is male versus female for this particular issue and i havent quite yet figured out why its been constructed or at least co co cooped from every other group. And its a civil rights issues not men versus women. And i also think that with respect to this issue, i think that thats a really important point, andrew, to keep it on that level, but, also, to be willing to agree that, as, you know, as important as the efforts of the Previous Administration were, there are points on which people can disagree, and i would say that there are many in the University Legal world who have concerns about the fact that rule making wasnt done, understanding that there were reasons for that, but there are some of us who felt that, you know, rule making wouldnt have been a bad thing in the circumstances. So, again, keeping in mind that disagreements like that are really disagreements about minor areas of process as opposed to overall agreements on the importance of the civil rights laws, and that we dont want to get bogged down on those issues and, frankly, my feeling would be, you know, having rule making would allow us to keep title 9, thats absolutely a fine way to go. So, im just suggesting that we not get bogged down in some of the smaller differences in process and lose sight of the larger goal. And better is to acceding to rule making, were acceding the fundamental reason we did know the do the rule making. And rule making was not needed because of what i will say to your point, because were now having to do this fight, there are a lot of issues i will concede we didnt get to. The involvement of this cases is very complicated and a parent and everybodys got a college age kid now, theres alcohol and the campuses if you being too alcohol out of the equation, i would have 90 less work in this area. And you know, were not dealing with that and the school is saying drinking age is 21 and they cant do were not addressing this issue, the issue that was touched on briefly was a hard issue, what happens when someone is expelled because with this, and unschool of thought which is personally adhere to is a little like this, the Catholic Priest problem. We that that rapists are serial actors here and do it once, theyre going to do it again and again and its hard to say they should be expelled from one school and not the following school let the know about the risk. On the flip side, youve got close cases, the school dont have a compromise process. Were not having a conversation. Thats the real conversation we need to have while were having a basic sense of the underlying. We probably have time for one more question. I find it interesting, because to me some of this is almost systemic in the academic and in the corporate world first. My observation is the academic model creates this confusion at the hearing level because if you look at a University President , and ive seen a lot, they basically are a pr machine. They really are just interested in presenting an image, right, so, the corporate world when i what is in the corporate world in new york, the Sexual Harassment, serious about it, they start terminating people and they were held accountable. You look at the academic model and your administrators are almost never held accountable for lack of leadership. Because theres an accountable, who would be an academic administrator if youre a tenured professor who it cake the summers off and do research and consulting. So you look at the type of leadership and your academic model to to me its a real systemic problem. Its almost as if this model doesnt have the talent to fairly deal with these issues. And thats just what ive seenment you all have seen a lot more. Id like to hear candid insight provided youre not an academic. We find that it is researched so we have maybe if we could have one panelist, nancy, just one thought on in response to that. Right, so, that so what id say about that is that one of the things i agree with you, im the academic on the panel, but i agree with you, that there are many problems with the academic model rit large that make it challenging to deal with this particular auissue. So what ive done in my summer consultancy with the epa. [laughter] is we are advancing an approach for investigations that would get away from the academic model, right . Would adopt a model thats been used for years and years in work places. What i call the civil rights investigation model. Which is a nonhearing sort of model. And therefore, does not empower professors and other massively untrained people, untrained in these issues, but also, not legally trained, you know. Basically hearing like a jury without a judge, and and sometimes without counsel to select the jury, theyre also not people guaranteed to be neutral in any way. You cant take a jury we cant find a jury miles away because they dont know any of the people involved. You know, theres all kinds of ways in which hearings are not good. And so, were adopting the civil rights investigation model in our standards of practice and hopefully everyone here will look out for that document when it comes out, which should be in, you know, six months or so. That concludes our panel, thank you very much, everyone. [applause] [inaudible conversation] cspan where history unfolds daily. In 1979 cspan was created as a Public Service by americas Cable Companies and is brought to you today by your cable or satellite provider. U. S. Senate about to gavel in to continue debate on hurricane response aid. Yesterday Senate Republicans added funds to the house pass bill just over 7 billion to 15 billion. 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