Transcripts For CSPAN2 Sexual Assault On Campus 20170908

And writes frequently for legal judicial publication, including the magazine of the aba, judicial division, the judges journal. Then i have to my left, jane sovern, deputy general counsel for the City University of new york. The nations leading urban public university, with 24 campuses and more than 272,000degreeseeking stuns. Jane has led the team effort in proventing and responding to campus Sexual Misconduct. Teen ya tchen is the former assistant for president obama and the former chief of staff to first Lady Michelle obama. She also served as the executive director of the White House Council on women and girls for eight years, and in that capacity worked closely on the Obama Administrations efforts to combat Sexual Assault, including on the president s task force to protect students from Sexual Assault. Andrew miltenberg, described the news week as the goto attorney for students accused of Sexual Assault has defended more than 100 students at disciplinary proceedings, facing suspension or expulsion from a wide range of colleges and universities and filed the first lawsuit against the United States department of educations office for civil rights, challenging the colleague letter. He also filed numerous civil lawsuits against universities in connection with mistreatment of accused students, including on behalf of, the male student accused in the naches case. His article on representing accused students on campus is featured in northwestern bar associations litigation journal be in fall of 2016. And then i have nancy which i cantalupo who has worked over 22 years to combat gender based violence and education, as an attorney, university administrator, Student Activist in and now a law professor and title ix scholar. She has published over a dozen articles and opeds on the topic, including in the Yale Law Journal Forum and the New York Times room for debate. And is currently work with the aba commission on sexual and Domestic Violence to develop standards of practice for investigating complaints of campus sexual have larsment and violence. We are going hold questions to the end. And i would like to start by asking lynn to address generally for us issues of Sexual Violence. So, good afternoon, everyone. Thank you, beth. Ive been asked to be in 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 color every aspect of the response to Sexual Violence. The quotation that you see on the screen, stereotypes and myths about the causes and provenges of rape still prevail in the criminal Justice System. Comes from the Florida Supreme Court gender Bias Task Force report. It was published in 1990. It echos the findings of the more than 40 other state Supreme Courts that had gender Bias Task Forces and regret whether i 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 to the National Judicial education program, which is known as njep and thats the acronym ill use ive been involved in providing education for judges and Justice System professionals of all kind 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. That is that all too often the people who are charged with investigating these cases and making decisions about these cases, dont know anything about Sexual Assault. Making it worse, theyre sure they know everything because, like so many people, they buy into the myth of what constitutes real rape. The stranger who jumped from the bushes with a knife, the victim who sustain 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 rape, why is that we are still dealing with a situation in which people who should know better, shall we say, are still wedded to these old stereotypes and myths. Im going to take you down a little trip down memory lane and time is limited so im just going to start in 1904. Now, everyone in this room knows who john henry is, great legal scholar. Wigmoore want a disease dive freudown and we have hem him rooting in intern law the crazy law who investigates rape cases and in his great treatise, wigmore on evidence, he wrote no judge should ever 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. And 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 but 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 beheaded by our profession. Be heeded by our profession. Thats our very own american bar association. The myth that false rape allegations are rampant, is rampant. Theres a great deal of research into this, and the finest analyses of the methodologically sound research into Police Reports concludes that between two and eight percent of reported rape allegations are false. The National Institute of justice funded a study that was published in 2010. It was called Police Investigations of rape road blocks and solutions. Municipal and campus Law Enforcement officers estimated the percentage of false rape reports. Their estimates range emfrom 10 to 95 to 100 , and the conclusion of this report was, this entire analysis suggests that a great Many Police Officers still believe in rape myths and specifically the one that women lie. So now lets move to the thread the needle issue about rape cases. This is a quotation from f. Lee bailey and henry blatts in the treatise on crimes of violence. Now, f. Lee bailey may have been on the oj dream deem put he has fall on hard times but in 1973 when they wrote this, they were both very, very respect criminal defense attorneys, and you can see according to medical experts and, again, we have the medical experts involved they average woman is quick to interpose effective obstacles to penetration by the means the hands, limbs and pelvic muscle and the assertion that rape is impossible because one cannot thread a moving needle. Well, heres someone else who believes the moving needle theory. His name is robin camp, 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 canadaian judicial counsel. In fact he actually resigned before the formally removed him. But in his defense, justice camp said that he did not receive any training about Sexual Assault cases and that his law practice had been a commercial and bankruptcy law. Well, canada, as a result of this case and some similar, is now considering a bill that is called the judicial accountability through Sexual Assault training act and, it would require that lawyers who are 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 indicates to become a judge overseeing these types of challenging trials. I think a lot of americans would be surprised to learn thats exactly the case here in the United States. The law is a very odd profession in this respect. Its basically exalting ignore yaps. If youre a doctor you cannot be agynologist on monday and tuesday and separate conjoined twins later in week. If youre a lawyer you. Have a 20 year career in cheryl law, become a judge, and overnight youre 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. We have a prosecutor who has some very interesting ideas about what constitutes rape and how damaged you have to be to be worthy of a serious sentence against the person who has attacked you. When the California Judicial Commission admonished him, they made a particular point of the fact that in 1980, d now were talking bat case that came up in 2012 in 1980, california had removed the resistance requirement from the law. So question. Are the people i have been quoting typical or not . This is the cover of a publication that is on your flash drive. Its called, obviously, judges tale. What wish i had known before i presided in an adult victim Sexual Assault case. I wrote this publication based on a onequestion survey i sent to judges around the country who had participated in njeps understanding 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 id get back, like, David Lettermans top ten. I got back so many different responses, many of them the same, but with all the add ons, this has 25 points. 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 hayward 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 someone the victim knows. Best research on this 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 the Sexual Assault. Medical university of south carolina, again, only 16 i beg your part 6 of drug facilitatedded 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 contemplated and attempted and completed suicide than do nonvictims. Many turn to alcohol and drugs to selfmet indicate the trauma. I think its profoundly disturbing to think that judges or indeed anyone else, would not intuitively grasp that 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 common place during and after a rape, not physically resisting, delayed reporting, post assault contact and so on, appear counterintuitive to those not knowledge inable Sexual Assault. We dont have time to cover all of these so i want to focus on resistance, judge Derrick Johnson was faulting the victim in this horrendous case because she didnt fight back enough, even though he law did not require it. 17 years ago, i added a unit on the neurobiology of trauma to njeps understanding Sexual Violence programs. Because i thought it was really important for the judges to be ware of the automatic psycho physical brain states that inhibit resistance, and to understand that 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. This is a brainbased response to detecting danger, especially a predators attack. Think about deer in the headlights. The brain response rapidly shifts the organization into a state of vigilance for incoming attacks and avenues avenues of , but when the brains fear perceive this is a subjective perception. You as the observer might think, she could have jumped up from thed 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 tonic impossible in which the body is literally pairized by fear, unable to move or cry out, collapsed immobile, the possum playing dead. Dissociation, victims feel they are just observing this whole thing in a dream, its happening to somebody else. So i said there was a little good news and here we go. A few years ago the virginia Supreme Court asked a trial judge to present a program for the new judges based on the publication judges tell i afterwards several subjects told the presenter the program had disabused them of several false ideas. They believed the stranger who jumps from the bushes stereotype was accurate. They thought real rape victims had sustained very serious physical injuries and did not understand that rape causes very serious psychological injuries. About a week later, one of the judges, new judges, came to the presenter and said that he had just presided in his first Sexual Assault case, and that he would not have convicted the defendant if he hadnt come to the training because the victim in this case did not have the serious physical injuries he had always been told were the hallmark of real rape. Think back to judge who wrote on their survey they had not known that victims did not have to have serious physical injuries to have been Sexual Assault vices and think what that it might have meant over the years before the judges learn 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. It is prompted by an article that was in the judges journal, and its on your flash drive on medical forensic Sexual Assault examinations, afterward the attendees reported that they now had a greater understanding of the myth surrounding Sexual Assault, would help them in correct determineses and making decisions about admitting experts. With respect to police training, the nij 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 their docket was 80 nonstranger rape cases, the training they were getting was all about stranger rain. Im happy to tell you today there is really good training out there for Law Enforcement. They are getting training on the neurobiology of trauma to understand tonic immobility and why victims dont do the thing they expect them to do, and the challenge is getting everybody to take that training. Finally, an adaptation of judges tell for campus disciplinary commissions, written at the request of the university of pez in response to the Dear Colleague alert and is to some extent an adaptation of judges tell. This is presented as a template. Men for other institutions to department 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 fair, relevant, accurate, training that really brings them knowledge that is all out there all this research is out there about Sexual Assault and helps them to understand these cases through an accurate lens. So, thank you. And we are now going to have a conversation among everybody on the dais. [applause] issues of Sexual Violence and now ill turn and ask tina and jane to provide us with some background on title ix and analogous state and federal laws rerating to sexual violent. Im going. 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, are shaping the perception about campus Sexual Violence, and the first one jen alluded to 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. The campus adjudication was done, found him not responsible. She was so upset with the result and so unhappy that she did a 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 that she was on campus until her graduation. As a representation of the weigh of what had 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 picked that up and in solidarity with her, also carried mattresses or had acknowledgments of this. There were several other students who accused this the male student also of unwanted sexual activity. Those also either the individuals did not move forward with their allegations or the man, the male student, was found not responsible in those as well. 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 there 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 urged each other on in terms of making their allegations. The male student sued the university and claiming under title ix, claiming that a hostile environment was being create for him under the circumstances, and the case was dismissed once and then at at least once and then recently settled with the university. So, what you ended up with here 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 rerespondent. So, that certainly is one that made the news and was talked about a great deal and i think was helpful to have also background on that because part of what that involves is the campus the adjudication on campus and that led to, i think, among other 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 there are a number along this 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 sixyear period and these allegations had not been handled essentially been ignored by baylor and eventually they came to light. The president and the football the head football coach lost their jobs. The Law Enforcement investigated several of the students who were accused, were convicted of serious sex crimes. There were there are some i think are still in process and the texas state Law Enforcement is investigating is investigating criminal charges against baylor for their handling of this. So, you also see a similar case with sort of a different twist with respect to jameis winston, the Florida State student who was accused of rape and other Sexual Misconduct, and the Law Enforcement and the university 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. That was a situation where many felt that neither the campus nor Law Enforcement handled the case well at all. So, that sort of gives a little bit of a 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 in the efforts of the Administration Overall in 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. In 2015, you saw many, many different proposals of all kinds with all different kinds kinds f emphasises. The believe there were three states that passed laws in 2015, new york, california, and illinois, working here in new york im sortly most familiar 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 there were that students, both accused and respondents, had representation. North carolina, for example, passed a law essentially requiring that respondents had to have legal representation, and i believe accused students had to have attorneys representing them in all campus conduct cases, which is certainly not the typical way that these tend to work. So, you also had new york as a good example of a state that has had very, very detailed Legal Framework for how the all of the proceed examination investigations should work proceedings and investigations should work, and you have very specific training for adjudicators, owl 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 have been found responsible for Sexual Assault. So, you seek the states have come in, as well as in the federal arena, and there has been considerable activity in response to this. So, the difference here i think one of the themes youll hear today that when youre talking about incidents that happen on campus, 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 that is different about those two arenas, and im going to give a nod to nancy in her materials that youll see and nancy, with her law professor hat on, kind of ash tick rated the articulated the difference between those two in terms of what are the systems looking for and what i 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 a responsibility to maintain a safe environment for all their students, including students who are complainants that they have been subject to Sexual Misconduct, whereas the criminal Justice System is about making findings and the rights that the criminal Justice System is looking to protect are the Due Process Rights of the accused. Soso theres a very different lens for seeing those two processes, and i think that lynn was pointing out some of the issues relating to how judges saw thank you criminal process and a number of thing mys myths and i think a lot of what is going on is moving from the education of judges in the criminal system, to the education of the adjudicators on campuses as well. Im going to pass it ton tina to talk more about the federal piece under the Obama Administration and a lot hoff the developments that were very significant for campuses over the past few years. Thank you, jane. I want to thank lynn for set the stage here because context is very important because these cases are unique and not like a plagiarism case. The entire history you all laid out for histories. We talk about Sexual Violence here has been treat very differently, and i want to set the context for what is known as the Dear Colleague pea letter and the actions of the Obama Administration. We took them in response to a National Institute of justice study that demonstrated and that has since been validated by multiple surveys since then because it was roundly criticize it as first of being an anomaly and the Washington Post and others validated the statistic that anywhere between one and four and one in five young women will experience Sexual Violence during her four years at college before she graduates. This is an epidemic, and if you are the parent of a colleger age student, you know one, because i do or he or she knows one who experienced Sexual Violence on campus. This is happening. The context of the, a we took in april of 2011 with the issuance of the Dear Colleague alert is title ix, and i see the longtime architects of title ix. A statute that requires that schools that receive federal funding, almost every school, elementary, secondary and post secondary school in the country that receives federal funds is require to ensure that no student is denied an equal education on the basis of sex and sex discrimination. You know it best as the athletics rule that brought womens athletics to the agree but has for a long time, long time, prohibited sexual has wasment harassment on campuses that includes Sexual Violence rape, sexual battery, with both men and women are the victims on the basis of their sex, their gender identity. Their gender whether theyre lgbt or not so a broad encompassing statute, longstanding. So we issued or interpretation and clarification of title ix in the form of a Dear Colleague alert because it was a new rule making bass the laws wasre this was covered and we planted to make clear do schools what theyre obligations were under title ix in response to that. Whats what the Dear Colleague letter does. We took a very balanced approach. We believe, to what it requires. It requires that schools have a balanced response to making sure that they are creating an environment that is free from sexual discrimination, freeom hostile environment that is a complainant for example, might experience. If there is a process that the disciplinary process that a school employs to have it must be treated fairly so we do not say that only the victim gets an attorney. Is is the the victim has an attorney, the respondent must have an attorney, or if nobody has an attorney, then nobody has an attorney. We have been very clear on that. In fact in enforcing the dear kole leg alert the department of education has the schools were cited for not having procedures that treated the respondents fairly. Another piece in the Dear Colleague alert the standard of proof to be used because these are civil proceedings is a preponderance of evidence standard. Thats also been criticizedded a lot. We picked the preponderance of evidence standard is it is the standard that has been used in title vii cases in sex discrimination cases andes wish established as the Legal Standard insive providings used. If there is a civil proceedings for damages that follows on a Sexual Violence case or Domestic Violence case, its the standard of prove most bale balances the interest of the pain nantz and the respondent in a civil proceeding. That this reason that was chosen. Its not a criminal proceeding, as jane pointed out, where liberty is at stake. And it is a standard that most schools were using in their Disciplinary Procedures and, quite frankly, shouldnt be harder to discipline someone for raping someone than it is for them committing plagiarism we issued the letter and thought the schools would implement it because its required on the law and we went on to other issues. Im admit that. Have to give credity credit is due. It is an incredibly courageous students who came forward to then assert arne duncan and us in the white house personally came in to sit down and meet with us and told us their stories of what they were experiencing since 2011 when they were smart enough and learned about title ix, they brought their open title ix complaints and story after story in institution after institution, at some of the finest institutions in the country, i have to say, where student complainants were told ford of all had no title ix foreign person to good to, we had one student who was told when she was a complainant and said i cant live in the same dorm with him anymore. She was told, all right, then you should leave and withdraw, which she and were not giving you a refund for the billion of your semester. Another male student who was victimized who the faculty said did not believe him, went on, and so clearly schools did not take that banner up after 2011, which led president obama in january of 2014 to establish the task force to prevent Sexual Assault against students which led to a whole series of efforts. The now publication of the list of schools under investigation. The students said to us we file a complainre title ix, they never knew what happened. We were a public governmental entity, transparency is a hallmark as judicial officers and attorneys. And so the department of education began publishisessing when the complaint had been filed and the progress and i believe transparency needs to be done. We issued best practices for what needed to happen. We brought along prevention programs and recommended to schools that do that, and before i one thing im most proud of we started a studentled effort where students have taken the lead, male and fee meal states, to female states to treason themselves to bystander and eliminate rape culture that allows this to continue to sort of say no, its not okay to make jokes because jokes in the locker room then lead to even worse behavior to asset standard for what should be happening on campus, and ive been n this work 40 years myself and what gives me the most happies the students are now bringing a whole new eye, whole new energy, whole new commitment to combating sexual discrimination and Sexual Violence. That gives me the most hope in all of thus. Now that we have this background on title ix ill have andrew and nancy scows how does title ix flacco process and the challenges faced by campuses. Okay. So, i am 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 legal on this topic because implementation is the real challenge, right . When so my second law review article on this subject was biteled burying our heads in the sand and it was addressed to college and University Administrators for the most part, or the our in the title was about college and University Administrators, and they were. They were burgee are their burying their heads in the sand about the problem elm most of what the last 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 done mean that it has given them adequate amounts of information and knowledge to actually implement the spirit and the mandate of title ix or the cleary act, which is another federal statute that applies to these issues. Colleges and universities dont necessarily have what they need to actually implement those legal mandates in a both compliant but also more than compliant, a compliant with the spirit of these statutes, and so 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 case 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. So, those are the challenges. And for colleges and universities, 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 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 ix 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 implement addition problem is that most faculty and staff who are the first responders, the investigators, the decisionmakers, 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 to 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 hire a lawyer to be a professor in your sociology department. Youre not going to hire a lawyer to be the person who works with your Student Government necessarily, or even better, your student organizations, your club sports organizations. Right . But these are the folks who do have to deal with this, respond to this issues when they couple up on campus. When they come up on campus. The third challenge is forcing victims to good to the police is not an option for schools. As we have already heard, tight title ix has existed for 40 years and requires schools to address this problem when it comes when it happens on campus. Even if title ix didnt require that, it would be frankly, discriminatoriy and bad policy for a whole bunch of reasons, to force these cases to force victims to good to the police and only to go to the police on these for these cases. Then finally, in order to deal with the implementation problem, colleges and universities need have a significant amount of resources, and that is 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. They need to make sure that the resources how they devote resources, is done efficiently, cost effectively, is done sustain blue and those are those are whole set of other challenges. Thats just to say this this is a very weedy place sometimes but it is theres reasons for that because implementation is where the rubber meet the road and if you cant get that right sometimes you havent gotten anything right and youre in a worse place than you were to begin with. I think that worse place is reflected by the fact that im sitting in between tina and nancy, and all kidding aside, much like the last 50 minutes, and we have heard everything that i think resonates significantly through this topic and none of which i can take a particular stand against. Again, because where im sitting. On a practical level, were seeing something very, very different. The factual underpinnings of whether not there was a Sexual Assault organon consensual sexual interaction. And i tried to Pay Attention and to the process which has ben frustrating almost to the extent i challenge with a few exceptions, all across the country isles challenge anyone to anyone on the panel that was fair and reasonable. It starts the investigative process and a standard of proof which if we assume everything is true that needs to be refined by more experienced people or better trained people at every level to make the of process more fair with investigators with a single investigative model or multiple investigators in my experience they want the objective fact finders in for the most part those panels question but that investigative report states that they have within their discretion from my experience the right to take down certain facts introduced certain witnesses include contextual evidence with a social read the evidence whether or not they include medical evidence all of these sayings add up to reports for the most part they dont think we can all have a lot of confidence and the Panel Controls very significant lead the flow of the hearing, there isnt a lot of consistency your continuity between universities even those at the same university are handled in a wildly different fashion it is virtually impossible for those to case is going on simultaneously. Linlithgows restraints through his narrative that the process has been transparent to read essentially appeal in the department or to someones colleague and with the smaller universities it is unrealistic to expect there is a fresh so i dont to use the word rubber stamp but italy breen said case said federal court with the failure of due process that you finally get outside counsel to take a real look what is it you are looking for . Were not taking somebodys liberty away but lawenforcement is a necessarily the right place for this. What a detective could consider a Sexual Assault is very different from what may have happened on campus and then to see that save young man in the microeconomics so it is impractical however we see sanctions from one university to another to reconcile those that have a significant defect with those Career Opportunities for students in one of those particular issues so there are a couple of schools that dont give a transcript in if you are found responsible , you should labor under that for the balance of your matriculation but this is a significant change when graduate school is a very distinct injury with a misconduct on your record that is why a free roll that back to the beginning with the much higher process that is transparent or more equitable to get to the truth of what may have happened with this situation where we rarely have had the most where alcohol plays a role and the lack of well trained investigators start the process in the way they find themselves in a hearing feeling as though just make your record because she will end up in a lawsuit. Somewhere between what tina help to put in place there has to be better implementations for what is a better well intentioned and Dear Colleague letter. Now talking about transparency and confidentiality that is a concern they have the issue of retaliation. I have the very strong opinion on that. But again my experience is that with no contact order is issued, the respondent would be biased of the confidentiality rules that apply to the process they could not or should talk about it as a practical matter if the completed talks about it that they will complain to the court later it in most cases will be told people talk i know what you expect us to you do and we see that on social media of men that are called rapist who have been accused or if the man the be even talks to his roommate when he has been charged with oftentimes is not even until the investigators have finalized a few months later but putting that aside he will receive another charge against him for violating confidentiality or maybe just a beat down soda speak maybe it is not meant to be that way there is a significant differential how that process is deployed. I will. Will talk about my experience one of the things that was not mentioned earlier is that i observed council that were advising other students of Sexual Harassment and violence and also gender based violence and dating violence and my experience many of those things that andrew talks about happening also happen in regard to the victim in fact, my first article on this subject came from one of those cases with the typical lawyer saying where i was part of a case that did not go exactly how i thought it shifted go so i wrote an article about it. So what ive found with these hearings that they are very unfair but i would argue they are not fair to the victim and part of the reason is because they often imitate the criminalJustice System that is not equal. Of the victim is not even a party to the criminal proceeding just a completing witness it does not have been dependent for presentation and the prosecutor does not represent the victim in a criminal proceeding they represent the state which means the victim has many rights that are completely unprotected in the course of a criminal proceeding. So when colleges and universities imitate the disciplinary system of the court that suggested equality between the two parties that violates title line because that requires evenhanded treatment and equal Educational Opportunity including what i have termed procedural equality in these cases which includes if you give a right to one party will give that same right to the other party but in many cases colleges it universities have not provided the right of appeal to the complaining student only the responding gives the right to appeal and many of these the issues that were addressed by the Dear Colleague letter. If you are interested in your flash drive also i had extra print copies so i brought them there is a group as of todays ago, 111 law professors who have written a white paper specifically on preponderance of the evidence standard of proof to talk about why procedurally quality is required by title line and have a preponderance of the evidence standard actually fits into the title line civilrights structure. But i think the important to understand colleges and universities have obligations to both students up and until very recently not only were they not doing a good job protecting those rights will also not really thinking that was important to enough to consider am for resources toward treating so hopefully we will get to a better place soon where we can focus on both students and getting implementation to of better place. What you see here is the diversity of what is happening bozell live without this law has evolved we issued a new set of guidance that makes clear what were not living up to to address that diversity because it does apply to small school sorrell escape schools like harvard and yale, a community colleges, the standards are set out so each institution can mold their proceedings to what is reflected of the way the school operates within basic guidelines of fairness with a hot style environment that doesnt necessarily mean adjudicating of Sexual Violence occurred blood times bc this not only the case was not pursued but was a pariah on campus and the flora negative state subject to let the environment perpetuate our campus that male marched through the campus calling about the women of yale as cores that allow this to happen on campus is a tie line violation but there is great diversity among institutions there is say gulf of knowledge even though on how to approach these cases it will take time for schools to get smarter one of those recommendations that we made with the local Police Jurisdiction and to the Rape Crisis Centers because there is a wealth of knowledge of support over the alleged perpetrator. schools reach out they are reluctant to open their doors to open themselves but they need to learn this and what i worry about right now the new secretary of education, and the civilrights attorney who takes this a negative view generally of the issue with the preponderance of evidence standard and we can see this already a 20 increase in these last five months alone of title ix complaints they are very clearly starting to act on this at the moment the department of Education Needs to be helping schools get better also were siting schools cover not fare as well sorry your id that process of case by case Getting Better this is what we need to be doing we do not need to throw out the baby with the bathwater mail and female will be left unprotected but there are things like alcohol going on that is not controlled. But just one example of that earlier this week i spent two days in a preliminary injunction hearing in federal court in for the life of me i could not get the investigator in title nine coordinator to agree on the witness stand with each other what policies or procedures they were using in that is what i fake there needs to be a greater understanding at the university level. A couple of points there is no question in this is hard is say difficult endeavor and complex but these cubans is aided universities are making progress to say it is nothing but disaster i respectfully dont see it that way. [laughter] but did is not easy i do agree the campuses are Getting Better and there are important pieces just to mention in terms of timing that the federal court cases that you see now are cases with facts not made yesterday but in 2013 or 2014 or 2015 we have all got a lot better at this since then for sure we have been drafting policies but training and education and take so long time. As the judges are educated to say appalling and things but this takes time absolutely. Also 1p said it is incredibly important is for individuals on campus to understand their roles and i cannot over emphasize that. If they are advocates with dave preordain this responsibility preordained that is part of the education to make sure everybody understands his or her role. That is the campus with educators adjudicate who has more perspective not everything is so light or the worst thing that has happened so things are improving but with training and policies talking to each other in retrospect to the new administration i am very convinced whatever happens, ill think universities and colleges want to go back to the way it was. In the bathroom wall is the same thing. And there is the list of wall the rapist in the mens room called for a good time. Social media is a gigantic bathroom wall and heres where we are. I know fake most places want to go back to those days. They dont want to bury their head in the sand. What data resources and education with best practices in the area of resources. Digest want to mention tremendously important to focus on what i said the campus system in the criminalJustice System being two very different animals with two very different responses if youre not specialized in this area when you have someone that has been victimized on campus tertiary and this person male or female that can i do things that can be afforded under title ix i cannot go to school live there in the same dorm or the same class school has that authority to make the accommodations to make it possible for that individual to continue with his or her education. Maybe there are young men who have been from responsible to put a blight on their future i would not deny the but research that says young women sexually assaulted on campus is an epidemic dropping out of schools. The same skin is in the game right away they can do all kinds of things on campus not only is the victim is a done deal it as the complaining witness. And that is so important that people under siege and the difference between title line in the criminalJustice System is to offer really different remedies. On the whole full front title line is that the of back end of the process the other piece and then to create the environment proactively. Teaching kids about Sexual Violence when you see something going on. And that is a really wonderful way you will see one of the best videos around. Just like when somebody does not want a cup of tea. To those at ad have estimated it is the most hopeful thing. In the other piece orrery are parents of existing College Students this is the most elastic market. Into provided great power. With any education in to be debating of our schools. Regardless of what happens in the course embarrassed my child to be on every college to work everybody hears that and then they come back the changes we really all want. With special violence to be dealt with. Now we can open for questions. After they ink here it europe and other urban centers with respect to many issues with those messages coming down the of the department of education currently well we can and do those things that he never suggested i am concerned without support from the government there are many institutions to do the bare minimum. In a matter how many questions we ask so what do you suggest . So what should they be doing . So many of them and not the same way as others do. Not that i am not a proponent of additional regulation because more than anybody can imagine. Between new york or california title ix is important that what is most important is the state law. In the press has a huge role of the cases that you heard of like the stanford woman that was raised by the member of the swim team there are so many stories in when colleges and universities to want their reputations to be. With state law in particular but we have to look there right now titled nine. The year rose enough title line with greasy that in the transgendered bathroom cases and to push their way through as fast as they can with the 45 yearold civil rights statute with vocally across the board. If i could just add to that but that follows other civilrights statutes in then to come back and civilrights protection so that puts all civil rights statutes at risk in my opinion. The defense isnt just about titled nine but civilrights and was just going to agree with that that this is set up to construct male vs. Female i havent quite figured out why it has not been coopted by every group. In to keep the of the level of the civil rights issue. I also think with respect to this issue is an important point to keep on that level but also to be willing to agree as importance of those efforts were there are many in the University World with an understanding there were a reason for that. And these are really disagreements as opposed to overall agreements not to get bogged down on those issues this would allow was to keep title line is a fine way to go. And also to lose sight of the larger goal. By proceeding to rulemaking that this was not necessary. But i will say to the point but this gets very complicated. So whether or not with alcohol. If you check alcohol out of the equation with the age of 21 in this is what happens personally it is a little bit like this there were serial actors here wondering if they were going to do it again and again but of the flip side but not to have that conversation. We have time for one more question. Itd is interesting because this is almost systematic for the corporate world with fad academic model to create this confusion looking at the University President basically they are a p. R. Machine to present an image so with sexualharassment to be held accountable silica that academic models to never be held accountable for their lack of leadership bin because of that when you add to that the academic administrator so lets get that type of leadership with your academic model is a systematic model to prepare for these issues. I really like your candid in sight. The time is 330. So what i would is said about that is one of the things i agree with you i am the academic on the panel but i agree there are many problems that make it challenging to make it challenging to this particular issue. So we are in the unseeing and approach for the investigation to get away from the academic model. That has been used for years san years in the workplace what i call the civilrights investigation model which is a non hearing sort of model that does not empower professors and other massively and trained not trained in these issues or basically hearing like a jury without a judge. Is sometimes to select the jury and those are not going to be neutral in any way. There are all kinds of ways the theyre just not good. In hopefully. That concludes the panel. [applause] [inaudible conversations]. Secretary you oversee the second largest Government Agency with 350,000 employs what is your approach to the job . That we have a mandate from the of president to get back on track to working hard but not accomplishing what we need to accomplish so to make sure that this organization is successful to take care of the countrys veterans. How did they get off track . This is decades and decades of problems that havent been dealt with for a long time with administration into administration in then to develop. Clearly you cannot go back and change things but. Did is a matter of not putting off hard decisions. With those organizations in to modernize government cannot afford to fall behind. So these that have been important to address. What did is the agenda . If you have the middleclass and people in poverty it does for party so if you work 40 hours a week in iowa or vermonter in america sieving then at 9 00 in the unsettled world