NAICU Washington Update

House Hearing on Campus Sexual Assault Covers Complexities of Issue

September 17, 2015

During a recent House Subcommittee on Higher Education hearing about “Preventing and Responding to Sexual Assault on College Campuses,” committee members heard in-depth testimony highlighting the complexities of addressing sexual assault on college campuses. The high attendance from bipartisan subcommittee members, and broad spectrum of panelists participating in the hearing, reflects the seriousness of the issue, and the concern with which Congress is looking at what’s happening on college campuses.

The hearing did not review specific legislation, but with the concern about the topic (eight bills have been introduced in the House, and six in the Senate) something is expected to be included in any Higher Education Act legislation that moves this Congress.

In opening the hearing, subcommittee Chairman Virginia Foxx (R-VA) highlighted the concern with the Office of Civil Rights’ (OCR) one-size-fits-all approach to sub-regulatory guidance, and the “patchwork” of federal and state policies that have colleges spending more time complying than helping students.

The four witnesses on the panel represented different on the issue of campus sexual assault: Dana Scaduto, General Counsel at Dickinson College (NOTE: Scaduto was a negotiator, nominated by NAICU, for the Violence Against Women Act (VAWA) negotiated rulemaking and also serves on NAICU’s Legal Services Review Panel); Dr. Penny Rue, Vice President for Campus Life at Wake Forest University, NC; Lisa Maatz, Vice President for Government Affairs at the American Association of University Women (AAUW), DC; and Joseph Cohn, Legislative and Policy Director, Foundation for Individual Rights in Education (FIRE). Their written testimony and a link to the video of the hearing are available here.

Several broad themes emerged from the hearing, highlighted in the summaries of the witness testimonies below, including:

  • The need for cultural change on college campuses, and in society writ large, related to sexual assault and violence against women, including more and earlier awareness and prevention education on these issues.
  • The fact that institutions are working hard to comply with the intricacies of the multitude of regulations that apply to these concerns.
  • The need to ensure that policies and regulations are fair to all parties involved in campus-based crime.
  • That college disciplinary processes, which must be prompt and fair, should not replace the judicial process.

More specifically, witnesses addressed current and proposed legislation, noting:

  • That mandatory reporting to law enforcement could have chilling and unintended consequences on the reporting of incidents.
  • Existing “one-size fits all” requirements do not help colleges and universities address sexual assault.
  • Some colleges and universities are showing that campus climate surveys can be valuable in knowing what interventions, programs, and procedures are effective with students.

Questions from the committee focused on several topics, including addressing what the appropriate level of involvement from law enforcement and the judicial system should be when addressing sexual assault on campuses, and how to better educate students about healthy and safe relationships before they get to college.

Summary of Witness Testimony

Dana Scaduto highlighted the need for cultural change on college campuses and in society at large. She noted in her years of experience, reports of sexual misconduct are not straight forward, not timely, usually involve friends or acquaintances, usually involve alcohol or drugs, and there is a question as to whether there was consent or not. She said colleges are working hard to comply with the regulations from VAWA, the Clery amendments in the Higher Education Act, Title IX and state law, and they want to get it all right. She wanted to be clear that the college disciplinary process does not replace a judicial process, but at times runs parallel, and is the right thing to do to enforce a school code of conduct. She asked Congress to think about four things when crafting legislation to respond to this issue: 1) see if the current legislation is effective before adding more requirements on colleges; 2) provide a safe harbor for colleges that act in good faith to enforce their codes of conduct; 3) require OCR to use the notice and comment process before issuing regulations; and 4) harmonize the standards and expectations of Title IX, VAWA, and Clery as much as possible to make compliance easier.

Dr. Penny Rue noted that this is not a new issue to college campuses. She said that one-size-fits-all compliance requirements from the federal government, and now many states, don’t help colleges address this issue. What helps, she said, is more education. She noted the Centers for Disease Control supports changing social norms and bystander intervention as very promising methods to address campus sexual assault. At Wake Forest, the Haven program is used to provide education and prevention programming for students; and campus climate surveys are also very effective in knowing what works for your students, but only with standard benchmarks, not a standardized survey. She said colleges need to be able to have unique questions to reflect their mission and student demographic. With regard to mandatory reporting to law enforcement, she said that will have a chilling effect on the reporting of incidents. The college disciplinary process is an educational process related to conduct and should be fair and confidential to the survivor and the accused. One of her biggest concerns is the narrative from the media that colleges are more concerned about their reputation than the well-being of the students.

Lisa Maatz stressed that the requirements under Title IX to ensure an educational environment free of harassment are not new; and that the school disciplinary process should be prompt and fair to both parties and parallel to any judicial proceeding. She noted that AAUW supports the SOS Campus Act, sponsored by committee member Rep. Susan Davis (D-CA), and the HALT Act, sponsored by Rep. Jackie Speier (D-CA), which require climate surveys, and additional action from colleges; and they support more funding for OCR for increased Title IX technical assistance for colleges and accountability.

Joseph Cohn said his organization is focused on defending students’ civil liberties on campus, especially the due process procedures on public college campuses, and preventing bias against the accused. He believes colleges are ill-equipped to properly adjudicate prompt and fair disciplinary procedures that reflect the requirements from OCR; and that only courts have the ability to take violators off the streets. Mr. Cohn indicated that FIRE supports what the organization regards as the best aspects from a variety of bills currently under consideration in Congress, specifically when they require increased involvement from law enforcement. He supports colleges providing guidance and support for students involved, but wants to prohibit colleges from taking any disciplinary actions without reporting to the police.

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