U.S. Senate Committee Holds Hearing on Combating Campus Sexual Assault.

On Wednesday, July 29, 2015, the U.S. Senate Committee on Health, Education, Labor & Pensions held its hearing on campus sexual assault.  The primary focus of the hearing and testimony was the recently reintroduced “Campus Accountability and Safety Act.”  The hearing was chaired by Senator Susan Collins (R-ME).
There were two panels that offered testimony at the hearing.  Panel I consisted of Senators Claire McCaskill (D-MO), Dean Heller (R-NV), Kristin Gillibrand (D-NY), and Kelly Ayotte (R-NH). Panel II consisted of Janet Napolitano (President, University of California), Dana Bolger (Co-Founder, Know your IX), Dolores Stafford (Director, National Association of Clery Compliance Officers & Professionals), and Mollie Benz Flounlacker (Associate Vice President For Federal Relations, Association of American Universities).
The hearing was live streamed and the testimony of panel participants has now been made available for download.  You can find the testimony here.
Each of the witnesses spoke in a positive manner for CASA. But each had differing degrees of emphasis of support for the CASA and criticism of higher education.
Panel I was constituted to reflect the bi-partisan nature of support for CASA.  As follows are some salient points from their testimony.
  • Senator McCaskill expressed that CASA will provide victims with the support they need.  She indicated that the most important piece of the proposed legislation is the part relating to confidential advisors.  Senator McCaskill said that these advisors will provided the support needed to assault victims and will put the victims in charge of the process—that they will no longer be forced to go forward with a campus disciplinary process if they do not want to.  She also stated that the bill will create more transparency in campus disciplinary processes which will result in increased confidence in campus systems. Victims will then be more likely to report an assault for processing through a campus disciplinary system.
  • Senator Heller was of the opinion that the component of CASA that will require a campus sexual assault climate survey (to be developed by the Department of Education and administered by colleges/universities) is the most important piece of the legislation.  He said that he wished this sort of information was available when he sent his children off to college.
  • Senator Gillibrand, as could be expected, took a tone that was highly critical of higher education.  In her testimony she stated that schools do not take sexual assault seriously. In support of this assertion she said schools are more likely to expel a student for cheating on an exam than expel a student found responsible for a sexual assault (citing a figure that only 1/3 of students found responsible for a sexual assault are expelled).  Senator Gillibrand also emphasized the importance of requiring a campus climate survey because it will give a better “picture” of what is happening on campus than the disclosures required under the Clery Act.
  • Senator Ayotte stated that campus sex assault is an important public safety issue and that the recent national discussion has forced schools to focus on this issue.  She talked about the importance of the confidential advisor component of CASA.  She specifically lauded Dartmouth College for entering into a relationship with a rape survivor center to provide confidential support services to Dartmouth students. She expressed the opinion that too many sexual assaults are not reported because of the lack of a confidential advisor being available to assaulted students.  Senator Ayotte lastly emphasized that CASA would mandate consistent handling of sexual assault allegations through campus disciplinary processes and eliminate the practice (at some universities) where athletic departments conducted their own investigations.

Panel II appeared to be constituted to reflect certain communities with interests in the issue of campus sexual assault.  The main emphasis of their testimony was the following.

  • President Napolitano reviewed what the University of California has done to address campus sexual assault.  She talked about the campus wide task force that was created and its eight recommendations that were issued to combat campus sexual assault.  She stated that the most important recommendations were the creation of confidential advocates and the system wide education of student, faculty and staff about sexual assault.  She also discussed the fact that they have adopted an affirmative consent sexual conduct standard. She did mention that CASA needs to be flexible enough to account for differences between schools and not unduly restrict schools from implementing research based best sexual assault prevention practices as they develop in the future.
  • Ms. Bolger is a 2014 graduate of Amherst College.  Ms. Bolger was very critical of Amherst Collge and how it responded to sexual assaults.  She expressed support for CASA and mandating annual campus sexual assault climate surveys, increasing penalties/fines against colleges to enforce non-discrimination laws on campus, and increasing funding for the Office for Civil Rights so it can have additional staff for technical assistance and performance of its enforcement responsibilities.
  • Ms. Stafford’s presentation primarily focused on the “Violence Against Women Act” and its new Clery Crime Act requirements.  She was of the opinion that the cornerstone of campus safety is compliance with Clery and its data collection, publication, and timely warning requirements.  She emphasized the most important parts of VAWA are its new educational requirements on sexual assault, sexual violence, and stalking.
  • Ms. Flounlacker appeared to take the most cautionary approach to CASA.  She took the stance that campus sexual assault is an important issue that needs to be addressed.  But she did express at least two items that created some concerns.  The first was that campus sexual assault legislation is “messy” due to multiple and conflicting laws and guidance that need to be clarified.  The second was that CASA’s advisor requirement and their responsibilities needs more specification.

Following the panelists’ testimony members of the committee had time for questions before the committee recessed.  The most important part of the questioning was at the beginning when Senator Collins focused on the issue of confidential advisors and the complexity of the issue.  Senator Collins drew attention to how the concept of confidential advisors is in conflict with the “Dear Colleague Letter” issued by the Office of Civil Rights which specifically mentions that there are times when a victim’s request for confidentiality needs to be overridden and an institution may be obligated to go forward with a Title IX investigation (despite the victim’s desire to not proceed with a complaint and investigation).  In response Ms. Flounlacker said that this issue highlights some of the conflicting laws/guidance that are being issued and that call for clarification.

In retrospect on the viewing of the hearing (up to the point of the recess) these are the most important take-aways:

  • CASA appears to have strong bi-partisan support and in all likelihood will be passed;
  • A new campus sexual assault climate survey will the required, with the next “battleground” (if that term can be used)  being the formulation of the survey questions to be administered by colleges and universities (e.g. most notably on what does or does not constitute consent); and
  • It appears that the confidential advisor portion of CASA is the one area that generate continued work and refinement in order to clarify the extent to which an institution of higher education can override a victim’s desire for confidentiality.

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