Transcripts For CSPAN3 Politics Public Policy Today 20140604

Different kinds of problems that they might encounter. One of the things montana has done is to create a unified set of policies that make clear what the process is. And another thing that a lot of our consent decrees and agreements with schools provide for is engaging an expert consultant. There are people who know what works on campuses and who have had lots of experience in helping schools to structure policies in providing training materials and in conduct ng the training. And ensuring that they have an adviser who for whom this isnt the first time and who can provide that expertise is very important. Montana is also a grantee of the office of violence against women. And that grant comes along with Technical Assistance that can enable them to mount kind of holistic response on campus. Another thing that i think is quite important is Data Collection and reporting because a university can only get a sense of whether it has a problem by keeping track of the problems and the complaints and reports that it receives. Reporting to us in cases in which we have agreements also enables us to do any kind of followup work with them to ensure the provisions of our agreement are being respected. Arent they required to do that under present law . The clearry act requires them to report campus crimes and one of the things theres been a fair amount of discussion about is whats the overlap between cleary and title 9 . The two dont fit together exactly precisely. Let me jump in here. I would love it if you would help us with language that would unify the requirements on reporting of title 9 in the cleary act. That would be a great thing we can do to clarify that Data Collection in a way that because when we have this overlap that doesnt fit well, then when it doesnt work, we were following the cleary act or we were following title 9 and you have an ability to avoid accountability for failure to accurate data. I would love some any advice from both you and the department of education about how we could put those two together in a way that would make sense in the statute. Go ahead, sorry. Great idea, or anyone else who has ideas about that. One of the suggestions that weve been tossing around is changing the penalty structure to make it more effective and realistic and practical. Any thoughts . Anyone else have any thoughts about that, the penalty structure under title 9 so its not all or nothing and draconian and can be adapted to the circumstances of the particular situation. Here i go with the technology. One of concerns i have about the penalty structure, which ill be honest, as a victims attorney, it feels good to us. I like the idea. The problem is i worked with so many different schools and i think a penalty structure would affect some schools, just an enormous difference from many larger affluent schools. My concern is that it would be the goal, where are we going with the penalty structure and how can we get the desired effect of what the penalty is supposed to do. There are some schools that have so much money and so many resources that the penalties would be like swatting nats. On other schools it can be incredibly damaging and would get someones attention. But i dont want to throw the baby out with the bath water but im not sure it gets us to exactly where we need it to be. Id love to add, there is probably value in having a bigger stick here and one of the bigger sticks might be to be able to ramp up the enforcement efforts that are happening. Weve noticed when the public attention that comes along with being under a compliance review or investigation, schools often do want to work with the department of education. That process may also need some changes. But at the end of the day, if we can do more of that, more proactive compliance reviews and activities, we might also find the systemic change were looking for without necessarily changing the penalties or also changing the penalties. I do want to bring us back to the fact that we have a law in the books and schools arent many schools are not even complying with it as it is. Im interested in how we could find out where the schools are and what we can do about it. The amendments to cleary will require school to disclose the standard of evidence they are using on campus. Well know if schools are not using the preponderance of the evidence standard and do something about that. Shouldnt we legislate that . Its important to remember that it is the law of the land. It is in guidance right now thats not law, its guidance. I wont ask miss samuels to comment. I will tell you this, theres hard headed folks i wont look at jon tester when i say that, but hard headed folks that say guidance from the federal government is not necessarily very persuasionive, if they want to follow a different path. We need to codify it if we want it enforcement. I agree with you and especially if we want it to last forever and not change with the administrations. I dont want schools to get the message, they are accountable that they are not using standard that there is. I dont want to lose sight of that fact. At the end of the day, anything to make sure it remains the standard sounds like a great idea. And heres the problem with and weve gone round and round about this and because we are struggling with this. I know that the department of justice, department of education carry a big stick and i know when there is they are responding to a complaint there is always Media Attention that goes with that. So the University Campuses are under a great deal of pressure to rise to the occasion and show the community that they are going to do the right thing, they are going to try to fix the problems that have been pointed out and that that cooperative nature of that is good. At the end of the day though, if someone decides not to cooperate, it is unlikely that were going to pull all of the federal funding that this school gets because it punishes way too many innocent young people. That is just not something that ultimately is realistic. And you know, i said in the last round table, it was like me saying to my kids, if you do that again, ill never speak to you again. Well, they knew i really didnt mean that, that i would want to speak to them again probably within the next half hour to yell at them about Something Else they were doing. I struggle with how we can and how can we get at all of these universities and College Campuses that are not being investigated by the department of justice because there hasnt been a complaint come forward or there hasnt been anything that has brought them to the attention of department of education or the department of justice, how do we begin to impact change on the thousands of campuses out there that the title 9 coordinator name doesnt know hes been named or even worse, they dont even have a title 9 coordinator. Shouldnt we be focused on something simple, slightly punitive for something less than refusal to reach a cooperative agreement with d. O. J. On something thats large and comprehensive that reaches to so many nooks and krannys like the agreement with the university of montana and the other Police Agencies involved . Thats kind of where i think we need to be going. If we can figure out a way to do it that is not going to be draconian on small universities and meaningful to larger universities. I think that something thats been coming up more and more as more students have been filing title 9 complaints is the goal is not the full removal of federal funds. Thats a huge thing thats going to negativively impact students and the students its going to negatively impacts include survivors so thats not something people are looking to have accomplished. However, something that i think fsa has been dying really well is levying fines that send a message and letting everyone know, using the bully pulpit to acknowledge that a school is out of compliance and they are doing something wrong without doing it in a way that damages the students experiences at that university who are there right then. And thats something that we can talk about. This idea of intermediate sanctions as a way to indicate they are out of compliance and these are schools that keep messing up and these are schools that are messing up historically. I come from Tufts University which had four title 9 complaints in the last five years and three indicated the exact same administrator who are still employed today and victimized me personally in my process and i know students they victimized since my time. These are people who are implementing being referenced in multiple complaints who are still there enforcing title 9. So we need to be talking about what do we do when schools dont follow the disagreements and multiple complaints filed against them. A lot of schools have none and problem institutions out there. We need to talk about we cant remove all federal funding. There needs to be a way for the federal government to acknowledge this school is not doing a good job. Thats when schools change. Since tufts was in the news, they started, you know, really reaffirming the need to change the policy. Students were calling for it a lot longer but unfortunately sometimes it needs the federal government sort of stamp of approval that the students were right in some ways and survivors were right. I think that can be a really powerful tool but not so much the removal of all federal funds by any means. This is an important challenge because i havent had as much experience making laws as the folks at this table, but i have tried to enforce them over the years. And making a statute enforceable is a real art. You know, and part of it depends on crafting a penalty thats realistic and enforceable and my sense is that we still have work to do on the penalties under title 9 first because the penalty hits the students more than anyone else. It is right now very draconian and wont be enforced. It will be nice to have a statute that is selfenforcing and really this ought to be an area where it should be because the universities ought to be eager to be comply gs with the standards and the expectations that title 9 creates. So i would appreciate your continuing to think and senator mccaskill is right. Ive been wrestling with this issue. Maybe we cut the University President s compensation by half. Just joking out there. But not really who do we how do we impose penalty so it says to people, who are in charge, you know, you really need to take this issue seriously. And most university heads, i hope, i believe, do now but how do we get their attention in a world where there are a lot of competing issues for their attention. I think and you guys tell me this, i think there are worse things than monetary penalties. And i think if you start messing with the institutions reputation, they come around pretty fast. And i will tell you that was a huge driver, i think. I wasnt even close to it. You guys were doing your job. I think it was a huge driver and we want to fix this so it doesnt ruin our reputation. And i i think they did a great job working with you to come up with solutions and so if there was some way to advertise it name and shame, you know, carries a lot of weight. There was a reason why the colonials put people in stocks for a day or two. But maybe there are other i agree with you that that can have an impact and naming of 55 institutions under investigation certainly got a lot of attention. If you can think more about this issue and make some suggestions to us, that would be very welcome. One thing to note is that we obviously have the authority to sue institutions that are out of compliance, either by filing a title 4 lawsuit on a complaint that we have gotten or based on a referral from the department of education or by intervening in a private sector lawsuit. And we have a range of remedies that we seek. In addition, of course, individuals can File Lawsuits and seek damages. The liability standard that the Supreme Court has set for obtaining damages is a very stringent one. I wanted to ask you about that. The actual knowledge deliberate indifference and the one that really kills me is the student has to show harassment was severe, pervasive and objectively offensive. It seems to me thats ripe for some legislation. I mean, does it have to be severe and pervasive . Isnt severe enough . Isnt pervasive enough . But the notion that it has to be all three, i mean, it really it seems to me that the private right of action has been so severely limited by that Supreme Court decision that it should be something maybe this is something you can speak to about the ability of students to bring a private right of action with severe limitations that the Supreme Court language imposed upon them. I agree. One of the biggest issues weve had and weve not had one client in the 11 years pursue a private right of action how many clients have you represented . We represent 400 a year, thats thousands over the course of 11 years. The education work is 25 of our work. So essentially there is no private right of action . That is very telling. Because of the fact that many of our clients we also have to take an idea of who were talking about, typically talking about an 18 or 19yearold, brandnew to a community in crisis or having some kind of trauma, and now we are expecting them to get to a certain person of a certain level who has actual knowledge. And in many cases, especially if its a tenured faculty member or if this is an athletics player, the ability to get to the right person, being a victim in crisis and let them know, there have been a number of cases in which numerous people have come forward and have gone to supervisors and Public Safety and various people and then the courts have found its not enough. I think its its not going to happen youre going to get an 18yearold to get to a vice chancellor who is going to get to a dean of college to report their rape. I think its not likely and i think that standard is a little devoid from reality. So it seems this could be an area that we could work on legislatively to codify what is required for a private cause of action. You know, obviously wed have to be evidentiary requirements but it seems that this this the actual knowledge thing is thats really tough. And the pervasive and serious. Act of knowledge and deliberate indifference of a pervasive problem thats the next piece. Theres actual knowledge which most of the clients cant get to. We cant make the actual knowledge unless theyve gotten to us first knowing what the standard is. The second piece is that the school acted deliberatery indifferent and often times any action the courts have seen any action couldnt we input actual knowledge . If the title 9 coordinator has it . I dont know. Its not hard for a University President to review what reports have come to the title 9 coordinator, right . I think thats something we ought to look at. Definitely. I would make two points. The first is that when we are seeking injunction relief, which is to say changes to policies and procedures but not damages. We apply it, we, at the departments of justice and department of education, apply a different standard than the damages one. We will hold universities accountable if they either knew or should have known so thats the imputed knowledge. If they failed to take reasonable steps to effectively address the problem. So that addresses the deliberate indifference end. Why shouldnt that be the standard or Something Like it for private right of action as well . So the other thing i noticed, in 2008, there was legislation introduced. Senator kennedy, i believe, was the lead sponsor, and there were a number of cosponsors of this bill, which included modifications to the liability standards for Sexual Harassment in colleges. And i dont believe that that bill ever was the subject of a hearing and maybe you remember, ann. But there is legislative language that was introduced at that time that would address what the cosponsors thought was too demanding a standard for damages purposes. Lets take a look at that. Yeah. What about the statute of limitations for filing complaints . Is 180 days im looking at almost a student now, not a student, but almost a student and still a student, is 180 days realistic for a student under these under these circumstances to file a complaint . We think often students dont know they have the right to file a complaint. They dont know what title 9 is and dont know that it provides them remedies at their school. And so when their schools mistreat them, they often go home, take time off, dont realize whats happened. And by the time they speak to an attorney, the 180 days is passed. What do you think . Yes, we often have to make a claim that the last mean date of discriminatory practice was past the typical 180 days from the date of the assault. Were making an argument that a year later when they tried to engage with the system that there was a discriminatory practice that was engaged at that point and thats when were having to make that argument. Theres something to say that the department of education would say as long as you can make that argument, weve not been turned down in terms of ability to make that argument that were even though were beyond the date of 180 past the assault. It seems we shouldnt have to do legal gymnastics. It would be helpful. And there we go. I also think its important to couch that in a student schedule. 180 days is a semester. Right. And that means you have one semester base beingally to decide whether or not you want to file a complaint like that. In a students life not that long at all. And you know, then if were looking at something that happens in a students first semester, which is common, it often happens in the earliest days of ones college education, they then have until the end of their freshman year, perhaps to file a title 9 complaints. If they dont, they have the next three years living with their assailant on the same campus. We can be looking at really horrible circumstances coming out of just missing a deadline. You know, and often times again, i think dana makes a good point, people dont notice until things have passed and it makes it difficult to show often times the pattern of behavior of a university. There are ways around that if there are complaints that come later, that feature the same players, but even still, its something that students shouldnt have been to be thinking about. That shouldnt have to be the worry, the worry shouldnt be, i have a semester to decide whether or not i file. That should be another hoop that a survivor has to jump through in order to receive their educational rights. One thing id add to this and its just information to share with your students, your colleagues, under title 4, which is the law that the department of justice enforces that applies to public universities, there is no statute of limitations. So that wouldnt be helpful for students at tufts but would be helpful for students at missouri or texas because thats those are campuses over which we would have jurisdiction. I think its this is a great example of how complex this area is. In how much time you have to file a complaint shouldnt have anything to do with where youre attending school. You know, there shouldnt be i dont believe, theres no rational Public Policy as to why a student at tufts would have 100 at one semester and student at the university of missouri could take a year and year and a half and not come forward until contacted by somebody that works in the job like katies josh, i know you didnt want to come forwards when you talked to us a year and a half ago but we had another one come forward who had the exact same thing happen to her and you shouldnt be precluded from having to file that complaint because you happen to be at the private university. Does anybody disagree with that . Lets work on that. Thats a good idea too. I was going to say one of the challenges as we listen to this conversation. A student does not know title 9 or title 4. A student knows something devastating happened to them. It is incumbent upon the universities to shall sure our students are informed i dont know that students know that civil rights were violated or they have that level of knowledge coming in, particularly freshman. So we have a responsibility for education and responsibility to make sure that were accountable. As i hear what youre really struggling with, which is where to properly legislate to help us, one of the things we have to do and be equipped to do is hold ourselves accountable. Theres been enough evidence that across the nation there are some that are not doing such a good job. But i think the most people, both at the higher Level Administration where i sit as well as those who are closer to students and Student Affairs and in our Crisis Centers want to do the right thing. So as you think about moving forward with whatever you may propose for legislative gaps, there needs to be some opportunity for accountability to be built within. Otherwise you get a Compliance Culture and im not sure thats what we want. No, thats not what we want. We dont want somebody at the university making sure every box is checked. Coming back to the Legal Services issue, to what extent do you think there are opportunities and need to expand Legal Services available . I think theres a huge expansion thats needed. Often times when we talk about these cases in the disciplinary context, title 9 prompts standards. We talk about how the accused student should have the right to counsel and never have the conversation about the complainants right to have counsel. Not that schools are not allowing that. Most schools have come to the realization that both should have able to have counsel. Unfortunately, theres only one Victim Rights Law Center and at the same time were looking for other attorneys to take on this quest with us. One of the things i want to talk about from earlier, that leads directly back to this. Were very familiar with our boston regional ocr office and know many of the players there and have submitted many oca complaints over the years. When i get calls, ive a Technical Assistant provider, i get calls from legal assistants to victims attorneys all over the country and they tell me im going to file with this office. What can i expect from this ocr office . I dont have many answers. I dont know theres a kind of watchdog public oversight of these offices. Id like to see more transparency from the office of civil rights to know more about how they are deciding violations. I would like to see more transparency not only in the just the 55 named but know when other complaints are filed and i would love to eventually i would love to see a narnl center able to watch over where these are going and some kind of consequence or understanding where the 12 Regional Offices are going. That makes a difference, especially to these attorneys. I can tell them what my experience is but cant help them with that particular office and not sure they are consistent with each other in terms of how they are determining. Maybe an ig or gao to look yeah. To look at maybe we need a study by gao to look at ocr offices around the country. This would be department of education folks . Do not have Regional Offices, we have 25 attorneys who do the work, they are all here. Right. To actually analyze what are the different policies that are going on. I know weve done that in other agencies where we looked and found the way they were handling things. I know in gsa, a good example, we have the Western Region was a little off the tracks in terms of their annual conferences and it wasnt something that was a huge problem in the other regions. Nobody had ever really looked to see how the different that might be a really good way to get at that as an initial step. Im incredibly hopeful that everything is consistent. At this point its very difficult for me to kind of work with these other attorneys and help them without that knowledge. Right. Is there any reason we cant list these schools all the time . I know we did it this one time. Its hard to figure out why its good to do it once and not on an ongoing basis. Does anybody have a problem for that to be transparent all the time . Well, so, one thing that can be worry some, depending orn the size of the school, simply the fact that a school is under investigation may be identifying information and that may have enough to have members of the Community Know who the survivor is, everything were doing has to be couched on survivor centered. So were making sure were returning as much as possible to the survivors of violence. But if an investigation is ongoing, theres a right to know, right, and the fact of the matter is, it it is oftentimes been falling on the shoulders of survivors to come forward and name their schools. The reason why the department of ed finally did this list, we were talking about. Weve been talking about the schools we were filing complaints against and talking about schools being investigated, not because ed was saying anything but because students were publicly filing complaints. Thats not a burden falling on students. The way to fix is it to have an updated list. I would like to add, all for having this information be public. One of the things thats interesting in this dynamic, the only list that came forward are investigations under the Sexual Violence ones and department of educations office of civil rights handles several civil rights statutes and investigating for other reasons too. I think this is a good conversation but it does get more complex and time consuming if were talking about releasing all of the schools under are we talking about all statutes or only the Sexual Violence ones we think are important . Thats what we need to talk about and figure out how to support that happening. It takes time and energy to do it. And i know that there is some desire and commitment to make it happen. A lot of us would like to see it happen but now navigating it beyond Sexual Violence is something to talk about too. The other piece is that from a person who is trying to help the president wrestle with this and how do we do this and do this well, we struggle to try to find whos doing what well across the country. Thats not easy to find. So while i have i understand theres Large Capital in going public if theres a mishappen or if theres an environment that is problematic, i would love to see those institutions that have demonstrated sustainable evidence based results from doing things well. Thats a great point. Yeah, thats what i was trying to get at. I was sort of trying to get at you stated it better than i did when i was asking miss samuels about what models you would pick to to tell us what works well. But i think you put it much better. But in the idea of an investigation, typically, if youre doing criminal investigation, you dont confirm or deny. So i understand that part of it. But on the other hand, your point is that confirming an investigation would also confirm the name of a survivor. Is that the objection you raise . Again, this is sort of contingent on where its happening. And weve seen a lot of people who have been going public are from larger schools and investigations if you go down the list, there are schools like Arizona State that are much larger. There are also schools having title 9 investigations that are local schools that are Community Colleges and cosmetology schools and have much smaller enrollments. So i just one thing that worries me is make a blanket statement that every sing investigation as soon as its launched will be made public. Just if a school is so small its going to be an identifying characteristic to name the school, is something that i think we should be cognizant moving forward but its its so important to keep naming the schools being investigated. While were on the subject of transparency, i think its important we also talk about openness and transparency for individual complainants. Weve heard from lots of complainants who have no idea about the status of their investigations and have open investigations with the cr for four or five years and arent aware of the status of that investigation. So i think to the extent that we can facilitate that communication between the ocr Regional Offices and complainants, that would be helpful. And sort of another area thats recently been expanded on, ocrs investigations have now taken a more broad approach to investigating campus clients. Youre not only looking at one instance of Sexual Violence and way it was mishandled by the school but ocr is interviewing other people who have gone through the process and coming up with other issues coming out. This happened in tufts. I didnt file a title 9 complaint but i was interviewed by ocr when it came time for their investigation. And that factored into their final decisions. However, the students that are being interviewed sort in that intermediate who are not filing the complaints are often not being entitled to those same rights and results. If i get interviewed and i show my grades dropped heavily, im not giving the part of the voluntary resolution agreement that the student has with someone else. Or a student taking summer classes and didnt file a complaint is interviewed by ocr, ocr knows that student had to take summer classes that costs money, theyre not going to necessarily be receiving the financial reimbursement that one who files an ocr complaint would. But the problem is, is somebody who wants us to get to the point that were providing Victim Services at the point of access that are so robust that they have access to not Just Mental Health help but advocacy help, that they realize that coming forward is important. I mean, i understand all of us have Great Respect around the peace of confidentiality and that this has to be victim centric in terms of that decision. But if we are going to provide the exact same remedies to someone who has not come forward to someone who has, then were really going to work against people being willing to come forward, and if we dont get people to come forward, were never going to hold these folks accountable that did this. Ultimately, at the end of all of this, there is someone who has committed a felony. I do want to add and theyre likely to commit it again. And theyre likely to commit it again. Accommodations under title 9, though, are available regardless of whether you decide to go through the adjudication judiciary proceeding. And youre saying theyre not applied fairly even though they should be getting the same. Yeah. What im saying is basically if one student files a title 9 complaint because of grievances in their investigation, their individual investigation, ocr is then going in and interviewing other students who were sexually assaulted on that campus and went through those same proceedings and faced the same barriers and faced the same harassment from administrators. I see what youre saying. Now i understand. So those students who have reported in this case are not receiving it. I misunderstood. I think the guidance is fairly clear that thats not what you just described is out of compliance. And so i mean, im not to judge another institution sitting here, but certainly i feel like were very clear that if a student informs an appropriate person responsible at their institution of Sexual Violence or Sexual Harassment, theyre entitled to some remedy both in the interim and then once all decisions have been had, whether there is a formal process or not. Tufts was found out of compliance. I just want to be clear that thats a noncompliant issue more than anything. The new faq is very clear that what youre illustrating definitely would have been i guess it depends on who you told, but i think its fairly clear they should have given you some interim relief. Oh, yeah. I mean when ocr comes in and ocr sort of through a voluntary revolutionary agreement, that students who didnt file a complaint but went through the judicial process will be entitle to do a hearing. I want to talk about resources with you, ms. Samuels, but the other is the whole confidentiality. And this is not for our guest from the department of justice, because she cannot comment on hypotheticals. But i want to give debra and katie a hypothetical and i would like kat to weigh in and wendy to weigh in and damon and jared, if you like. The ar in a dorm gets an email from someone that she doesnt recognize the email address. It doesnt disclose who the person is. But attached to the email is a video, and the video shows someone in her dorm, passed out, being sexually assaulted by two or three young men. She recognizes the person in the video. She goes to the person in the video, and the person in the video, the victim, the survivor, says i dont want you to do anything. Its none of your business, i dont want to talk about it, you should delete the video and forget you ever saw it. Now, ive read the q and a on confidentiality and safety on campus. What should that ra do with that video, if anything . So for most staff members, particularly housing students staff, its written in their contract or their job expectations that they are not a confidential person to report to Different Things. That that individual, that staff member, does have to report up, but they should also be transparent to that person that is directly involved, that im a reporting party, thus heres whats going to be happening with this information and you have these rights as a victim survivor. So its recognized that various staff members, faculty on campus may hold that responsibility need to be up front about it. And the ra did receive that kind of information from someone because someone felt it was important to share and to do something about that. On the flip side, though, then the staff member is also referring that victim survivor to an agency or a resource that can be completely confidential that the individual can disclose more or no more in depth what their rights are. So everybody agree that the ra has to report the video . The school has to decide up front whether r. A. S are reporting the video or not. Should the schools require r. A. S to report the video under those circumstances . Should we require schools to make that video a report to the University Administration . They dont have to now. Should we require it . I think in terms of safety for the community, if were not putting that information forward more broadly, we cant address the safety for perhaps the next victims. So, yes, i would think so. So that ra would be required to report that, dana and john . Well, so, on the one hand, r. A. S are oftentimes, not in all cases, paid employees of the school, so theyre taking on a responsibility, and alongside that comes ideas of mandated reporting. And so on that side, sort of University Employees do have to adhere to mandated reporting, and in that way the r. A. Would have to report. At the same time, i think there needs to be just because an r. A. Has to report something happened does not mean an investigation has to happen. Thats my next question. Do we agree a report has to be made . Yeah, why would they not . Theyre not there by accident, theyre not students, theyre agents of the university. Theyre in positions of trust, they have a responsibility to advise and protect students. Why would they not be ill jump in here, because if we make that a statute, r. A. S are notorious for holding multiple hats in leadership roles. So if an r. A. Also chooses to be a sexual crisis counselor or advocate, there is a contending statute where theyre not required to report that kind of information and must not report that kind of information. So thats one of the complexities that if we were to require studentstaff housing, that might conflict. I think the university of missouri might be the odd one out. That is a mandatory reporter for us. And one of the things that were looking at right now, because we have all employees as mandatory reporters except for those that are exempted because of other protections. Hippa, for example, and the like. We are looking for who should be a set of confidential reporters and are considering that as a task force, as a recommendation to our leadership. But at this point, because of instances just like you described, not only do we want to be aware of it, but we want to make sure that we have the opportunities to inform the victim, not only of all the Resources Available to help him or her in their crisis and trauma, but also in making sure that rights are protected and the opportunity to proceed with any kind of other investigatory processes are there. So its absolutely, at our institution, a requirement that they report. And once its reported, i assume its reported to the University Administration. Does the University Administration then have any duty to report this to University Police for investigation or to criminal justice authorities for investigation, local Municipal Police department for investigation . Is there any duty to do that . Id like to speak really quickly about the fact that there are tools available to schools even if they werent reporting, even if an r. A. In that situation did not report personal identity information, which is an option. You can classify r. A. S that way. I know a student that came out from the department of education. The faq makes it very clear that there are things you can do on campus about that incident, about the culture, about systemic change that dont have to do with this mandatory reporting that might violate a confidentiality, violate the policy, cause problems that were raising here by mandating or legislating the issue. There are things on Climate Surveys about changing the operating accounts, arranging events. Thinking about what you allow in dorms. There are so many things you can do on campus that i dont know if schools are taking advantage of all the systemic changes, to throw up our hands and say, the solution is this mandatory up the chain to Law Enforcement. Im not sure that checks and balances on schools that already have the ability to do those things are the things to do. And i just wanted to provide a voice to that particular issue. So what youre saying is that the university, title 9 gets this video, looks at it, and its very clear who the young woman is, and its very clear who the two or three young men are. And they can go take action against the two or three young men and kick them off campus . The title 9 coordinator can, that is pretty clear. The r. A. , you have the Opportunity Schools are supposed to be up front about whether the r. A. S are supposed to go to the title 9 coordinator or not in that situation. Now, if this is somebody who has come to school before theyre 18 and this is a statutory crime thats been committed against a minor, do these people just let these perpetrators go, even though they got the evidence they need. They dont need the victim, theyve got the evidence they need to convict someone. I want to take one step back. In essence, when you have a video of that nature, and i think the confidentiality in the faq addresses this. What it says is they have to turn over that video. If the r. A. Goes to speak to the victim and they said, i dont want to have anything to do this, thats where those series of factors come into play on the faq. Thats yeah, but, lindy, i read that, i read that. Im a prosecutor. Im reading this going, are you kidding . Theyre weighing whether or not theyve got and then its exacerbated, say the three guys are on the football team, right . So heres these university authorities. Theyve got three young men, they have Video Evidence of a felony crime being committed, and theyre weighing whether or not they are going to do something about those perpetrators . Where they dont need the cooperation of the survivor, necessarily, where they have enough evidence to take action and protect the public. Dont they have an obligation for that . Theres a couple of things. Go ahead. That id like to say. First of, you know, no case is an open and shut case for Sexual Violence. The unfortunate reality oh, ive had a few. Yes, of course, and there are. But theres a 2 to 2 success rate. 2 to 3 of rapists ever spend a day in jail. Those are numbers that are lower, and those are depressed by groups that have historically really poor interactions with the criminal Justice System, specifically people of color and queer people. And i think that when an individual is required to report something that happens to their title 9 coordinator, thats one thing. You know, schools have mandated reporting, you know, rules, and thats completely acceptable, but when were then talking about mandating a report to the criminal Justice System, were now taking it a step further out of the hands of the survivor. And when someone is sexually victimized, they lose complete agency in that situation. So all steps that must be taken after it must be done to return agency. Thats something thats done in rape crisis counseling, thats something thats seen in a technique of all these frameworks. So when you are having a survivor and not only have a conversation with their r. A. About the fact the r. A. Is a reporter, and reported it to their title 9 coordinator, then probably a conversation with the title 9 coordinator, and on top of that, have a conversation with the criminal Justice System, which historically has not treated victims well. Thats really difficult. Now were seeing three huge issues and theyre now endangering the welfare of the survivor by going through really, really traumatizing processes without returning any sense of agency to them. And, to me, thats something that is it cant happen. Have after having done years of my own casework i think its really hard for people to understand that victims often in that initial stage right after an assault, i like to call it pushing the walls out. Its like the hierarchy of need. Theres food, theres shelter. If they cant satisfy those immediate needs, victims have no way of making much like more complex and complicated decisions like whether im going to pursue a civil rights violation. Whether or not im going to pursue a criminal complaint and oftentimes they are not in a place where they can make and understand the consequences and impact of decisions at that early stage. Why i feel so strongly about confidentiality is that that allows victims an opportunity. Time and space. Time and space. One of the things i found out recently is that the military system has something very similar to what the faq talks about in terms of a restricted and unrestricted. Correct. I would be curious to see if there are any kinds of statistics within that that shows if the victims went into the restricted lane first, if after a certain amount of time, they chose to go unrestricted and then be more open and file more complaints. I dont know that myself. Well were seeing a spike in unrestricted. But that has been because we took the incredible step that i would love to take throughout the country, and that is now a victim at the point of report gets their own lawyer. So that thats why i would the advice that the victim is getting at the moment of report has made a real difference. So i think we dont hold me to this but i think the increase in unrestricted reports since the special victims advocate was plut into place has jumped by 30 in just the last year. You know i get i understand, and believe me ive had victims that i have all of us whove handled these cases know how incredibly traumatic it is. And how hard it is. And how many victims that ive struggled with keeping in the process when we could get a conviction, and they just couldnt do it because of the Mental Health needs they had. And you have to be very, very respectful of that. I dont want to give the impression, but i also know that for every case when perpetrators get away with it, were creating more cases. And if we take the position that the criminal Justice System is historically bad to victims, then we are giving up on making the criminal Justice System historically better for victims. Because they are intertwined. Thats why one of the next roundtable were going to spend most of our time on that. I think what you were saying about the way we interact with survivors at the moment of a report to either of these buckets that were talking about is far more crucial in a mandatory requirement. Thats my opinion. I agree. And i think thats where a good conversation lies, because i dont know were getting these are wonderfully trained University Representatives here. I dont know that thats the case at every school. This is really a path that could be a game changer, i think, for survivors on campus that doesnt necessarily remove their agency. One of the things i just want to. You said we could ask each other a question if thats okay . Sure. In that hypothetical that came up, you know, as i was just writing a note, for us at the university, were considering an r. A. Who gets that video, to then go directly to the title ix coordinator who reports directly then to the chancellor so that weve removed some of the things that kat described earlier in terms of getting to the leadership. And if that title ix coordinator is the person that goes to that student and not the r. A. , welltrained, able to be able to provide a wealth of information about resources and potentially bring Crisis Management people to that person to help them through that trauma, does that make a difference, then, in the response that you gave . As opposed to the r. A. Going to her . The r. A. Immediately goes to the title ix coordinator and the title ix coordinator approaches the young lady . Again, i was just taking advantage of the opportunity no, i think its a great question. Ive seen it happen a couple different ways where the student ends up coming to me the victim as a result of being outed, so to speak, or those that come to me directly, however they get to me, they get to me, and im glad that we can move forward on investigating if thats the appropriate route. What i think is more challenging is leaderships understanding of the role of the title ix coordinator. Where the position is housed, the realm of authority is different everywhere. At one institution i could report to five people down. At another institution i could report to the number one person. So i think there is a challenge with respect to leaderships understanding of the role of the title ix coordinator and the level of authority. Thats a challenge. Senator mccaskill, i just wanted to make a quick point. The criminal Justice System does need to be improved, and i think that that improvement, you know, is very welcome, and i think that in a lot of ways perhaps legislation may be the place for that. But at the same time we dont want survivors acting as guinea pigs for that system, right . And the campus system has the ability to be more easily manipulated, it has the ability to be more easily changed and is a place where survivors have been feeling more comfortable. And i think that, you know, to say that the criminal Justice System needs to be improved and, therefore, we cant be sort of, i guess, shuttling people away from it or giving students multiple options might be dangerous just because its a system that hasnt been good. You dont then want to say the only way to change it is to keep working with it and send everyone there. If that makes sense. I mean, for example, i attempted to go to the police, and it was a pretty open and shut case, i was told, and they ceased investigating because it was a samesex Sexual Assault. Listen, theres no excuse for that. And thats where, you know, there should be obviously, there is i mean, believe me, i understand. Im so old that i had cases that all the men in my office said, we cant take this case to trial because the woman was on birth control. We cant make a rape case against somebody who was on birth control. Thats how old i am. But i watched. I watched rape shield statutes get enacted. I watched victim advocates being hired. I watched the violence against women act being passed. I watched grants going out where in most major prosecutors offices now there is an entire cadre of highly trained people that work hand in hand with sex assault victims day in and day out. And there are thousands of prosecutors across this country that handle these cases with skill, professionalism, and a great deal of sensitivity. To how difficult it is for the victim. So im not discounting that there are still many problems we have to address. But i cant sit here and just with a broad sweep say criminal prosecution across this country is hamhanded and ineffective and unprofessional in terms of dealing with victims needs because i personally know thats not the case. And i really know that while theres Horror Stories across the country how criminal justice has mishandled cases, there are also many heroes across the country, within the criminal Justice System that have done yeomans work in this area and i just think its important to get that balance out there, frankly, for victims to hear about that balance. I mean, because i think so often victims hear the Horror Stories, and they dont realize that there are men and women across this country that have dedicated their lives to effectively prosecuting these kinds of crimes. And to protecting victims rights in the process. And i just think its important that victims hear both of that, rather than, oh, you dont want to go there. You know, dont go there. Its going to be terrible if you go there. And im worried that too much of that is going on right now, john. I think part of the progression, and you know youve stated very eloquently, is that there are now victims advocates in many of our courts. And increasingly in the military, which has, as youve said, accounted for some of the increase in reporting. So just as a general proposition, do folks here disagree with the idea that we ought to have more victims advocates . And maybe even require it . One idea that has come up that ive had which i think might be really helpful is these witness these victim witness advocates are really fantastic resources that a lot of prosecutors offices are using and d. A. s are using and perhaps having every campus assigned a victim witness advocate liaison to that campus so that way if a student does decide that they want to pursue the criminal Justice System theres an individualized person who understands the students rights and needs, understands title ix and understands that campuss policies. As well as the criminal Justice System. So that way the student is then introduced to those people who are so well trained. The people who are doing the amazing work right off the bat, in the criminal Justice System. So if thats a route that they choose to take they have the best Resources Available 367 thats a great idea. Lets talk about resources. Im confused. You know, i know this isnt asking about specific cases. Or why or why not, certainly cases are taken up by doj. But the pipeline of these cases, and when you i mean, i think you said 25 lawyers . On the panel. 25 years for i think we have 8,000 institutions. I mean it doesnt take anybody long to figure out that you all are drinking from a fire hose in terms of the work that is being presented to you. So im trying to figure out where these cases are going that you arent handling. And how are we prioritizing them and what kind of urgency can we bring to this debate about Public Resources that are desperately needed for department of education, for department of justice, and frankly, the grant funds. How many applications are we getting . When you talked about the funding from doj to montana, for example, is that from the same pot of money that the grants that go to for domestic violence, is that the same pot of money . Or is it specified separately . So, thank you for these questions, and im happy to answer them. I wonder if i could just very briefly talk about the topic that we just left, because i do think that there are a couple of things to note. The first is that one of the benefits of the panoply of tools that the Justice Department has is that we have the jurisdiction and the authority to investigate and address sex discrimination in Law Enforcement. So that, of course, is part of what we ended up with doing with the missoula Police Department and the office of Public Safety on campus, which we addressed under our Law Enforcement responsibilities. So while, you know, that is done by a group of lawyers, it is also limited in size. There are tools to address patterns of sex discrimination and the way in which Law Enforcement responds to Sexual Assault. But i think more globally, i think everyone at this table undoubtedly shares the ultimate goal of increasing reporting both to universities and where criminal conduct is involved to Law Enforcement, increasing accountability for perpetrators, increasing the protection of survivors, increasing the opportunities for students to feel safe on campus. So my instinct is that the pushback that youre hearing here is about how we best achieve that goal. And i think thinking structurally about it, we dont want to do things that will inadvertently decrease the amount of reporting and the opportunity for both universities and Law Enforcement to weigh in. So i think, john, this is what you were saying, that ovws experience, the experience of others in the Justice Department is that supporting victims, and making sure that in the first instance they feel comfortable and supported and that they can get the services that they need on a confidential basis may be the key, ultimately, to increasing that kind of reporting. Anyway on the resources front, and ill ask my colleague Allison Randall to respond on the grant funding, but with regard to civil rights enforcement, you know, we do the best we can. We have, i think, extraordinarily dedicated and competent attorneys. Actually, i think there are fewer than 25. At last count there were somewhere in the neighborhood of 22 or 23. We try to choose our cases wisely. We try to choose those where we can have an impact on practices around the country. So in working with the university of montana, our hope is that the progress that the university there has made will not be restricted to that campus, that other universities will look at the agreement that is posted on our website, will look at the guidance put out by the department of education, will look at the amicus briefs we filed on legal standards and use those materials to better understand their own responsibilities and the ways in which they can implement effective measures on their own campuses. We have tried to do Technical Assistance. Weve coordinated with the department of education on releasing guidance. So as i mentioned, we discussed the most recent set of faqs extensively as we did with the 2011 Dear Colleague letter. There are a number of guidance documents not in this context but in other contexts of education that weve released jointly with them. So, again, could we do more with more resources . Absolutely. Would we look to have more resources to do this work . Yes. Do we do absolutely the best we can, and is this a priority for the department . Absolutely clearly so. And the final thing i would note is that the Civil Rights Division is the enforcement arm of the department, but we do have offices across the department that do this work. The office of violence against women, the office for victims of crime, the National Institute of justice, the Bureau Justice statistics, the office of Justice Programs which also gives grants to Law Enforcement and others. And all of those resources work together, and were in communication with people in all of those offices so that we can bolster the work were doing. So we entered into an agreement with the university of montana, ovw ensured they got a grant so they could fund some of the improvements our agreement called for. But allison, do you want to add something . Would that be all right . Sure. I can say that we receive many, many more applications than we can fund. Thats an issue, of course, across our office, that generally we fund about maybe 50 at the most of the applications we receive. I havent gotten an email to the exact number for our campus program, but well provide it to you. Its very competitive and we wish we could fund all of the campuses coming forward and seeking our assistance. We would love the stats on that. The money that you have and the breakdown of where its going, you know, how many campuses are applying, how many campuses are receiving. That would be really helpful to us because one of the things we talked about is more and maybe even more specific Grant Programs. For example, should a title ix be required to have training . Should title ix coordinators be required to have training . Should the people who are adjudicating these cases administratively, should they be required to have training . And if were going to require training now, some universities i would make the statement that they could find ways to do this training without money from the federal government, but many universities couldnt because and all universities are struggling. Theyve got costs. Maybe if penalties are imposed, they ought to go into a dedicated fund. That might be something we could look at, but wed love to get those statistics. It looks like in fy13 we had 127 applications and we could make 28 awards. So a huge disparity in the demand and what were able to do. We would be happy to provide you many more statistics to follow. Frankly, im disappointed theres only 12 applications. Theres a lot of colleges and universities, and if theres only 128 of them that are asking that probably tells us that weve got a lot of work to do. Yes. Since the inception of our campus program, weve funded 388 institutions which certainly is a drop in the bucket compared to the total number. Something that i would be curious to see is, which of the 55 schools and the five more that were recently added are in the 128 that applied just to see if these schools that are being investigated are the schools that perhaps arent doing the best job at enforcing title ix. We would be able to provide that information. I do also know that there are few public stories of schools deciding not to apply for that grant or stopping an application. Those might be something we could talk about another time. Because . They werent interested in adhering to all the suggestions or requirements in the grant. They werent interested in the requirements . Yeah. There are its a great grant. It has a lot of things that schools need to proactively do and change on their campus and that might not be something a school has decided to undertake. Well, thats important to know. Well, one of the things so if theres an ocr if theres a complaint about how a university has handled one of these investigations, and a regional a Regional Office of department of education, office of civil rights, determines that it has merit, can they then do penalties without referring it to you . I want to make sure i understand how this practically works. I cant speak for the department of education, but my understanding of how it works is they do an investigation. If they find a violation, they attempt to negotiate a resolution agreement with the university that will bring the university into compliance. If they cant negotiate such an agreement, at that point in time, they can refer it to us for litigation. So we can get involved then. If we have an independent complaint, either because we fund the school, which means that people can come to us under title ix or under title iv we often do these investigations jointly. Right. Okay. But i guess what im getting at, i need to figure out how many complaints are out there where youre not getting involved and nothing is happening. In other words, when education gets to the end of the line, they wont cooperate, they cant get anything done, they cant get some kind of voluntary resolution, and for a number of reasons, maybe because you dont have any evidence of more than one incident or you dont have the severe enough situation because you cant take them all, you all dont take it. And then i need to know how many of those there are. Again, i cant speak for the department of education. I know that their office for civil rights shares the department of justices commitment to addressing this problem. I know they do. Both of you. I mean i dont theres no question about commitment. Im trying to figure i think a lot of this is a resources issue. Im not being critical of the kind of work youre doing or how much of it youre doing, i need to be able to show we need to be able to show our colleagues, this is the body of work that needs to be done. And this is whats getting done. Because if we cant demonstrate in this budget environment a real need, then were going to have difficulty getting more resources, and there is no doubt in my mind if were only giving 28 grants to College Campuses to address this out of 8,000 College Campuses, we obviously are nibbling at the edges here. Can i speak . My guess is that the data will show that were nibbling at the edges or less. Id like to speak to the parallel with the need for more funding, for investigators, and whatnot. Is exactly the same thing in higher education. So were advocating for funds for title ix coordinators, for resources, for marketing, our campaigns,ate rhettva, were trying to do the same thing, trying to provide training, there are not enough title ix coordinators to go around. If you were to be in a job search as a title ix coordinator, you have lots of options. Schools are looking for them. Theyre not theres just not enough trained. There is a tremendous difference between a good title ix coordinator, and not so good title ix coordinator. Someone in the office that was given a clipboard. Right. But ill go back and say theres definite parallel here to your work in attempting to come up with the resources to do this well, and our institutions are doing the same thing. Right. Were trying to come up with the resources to do it well. I think in a lot of smaller schools the bigger issue is that the title ix coordinator is wearing i know one time i had training and she had four or five different jobs and the more i added to the list of things that really she needed to be working on the more concerned i became for her. I think in some ways its just making sure there is a commitment from the top down, that theyre adequately given the ability to do the job. Lets turn it to you all. Is there something we have not talked about . Weve hit resources in anonymous reporting weve hit private cause of action, weve hit mandatory reporting. Is there anything that we have not talked about today that is on your list that we should know about . I have two pieces go ahead, dana. I was just going to piggyback on that last conversation about the need for more resources for ocr. I think that often vfollowing te signing of these voluntary resolution agreements there arent enough ocr folks to go around and monitor these r. A. S. So ive heard from students where, you know, the same administrators are still on campus, theyre still mistreating survivors, as john has spoken about. Where, you know, ocr in a voluntary resolution agreement has asked a school to do more consent programming. But actually what that looks like on the ground is piebaking contests. You know, steps that arent literally piebaking contests . Literally. I have spoken to a student at her university following a signing of a voluntary resolution agreement. There were pie baking contests as part of consent education and bringing people together. But thats not really getting at the real issue and so i think that if we had more folks from ocr able to go around and continue looking at schools after the signing of the r. A. S, we would see more results. Good point. There were two pieces, a question that you asked were there things to make sure we dont leave anything left unsaid. There hasnt been a lot of conversation about prevention. And one of the things that we know is Substance Abuse or alcohol usage is so closely correlated to some of these instances that lead to incapacitation. And we are really trying to figure out because again were trying to change culture. So, the prevention effort, i mean, theres a lot out there on i know that the White House Task force mentions an effort to try to provide data. I go back to if im making a recommendation to our president , i want some evidence, some demonstrated success of sustainability of those efforts. And likewise, around sustainability, for training, ive heard a number of Different Things today around different federal offices that provide resources on training. I dont know this theres one police to go to find all of those resources, and if there is a place, please let me know. I dont know where that is. I know that you can find Different Things looking in different places but you might miss something. If there isnt resources put forward at a federal level for training, i would encourage a train the trainer model, because i dont know how we would be able to sustain it. Similar to what were thinking about in our institution is unless we can do it in house at some point in time and stand on our own two feet, we wont have a sustainable change. So i would hope that that same conversation is happening on a National Level. You know, the point that you raised about prevention, and that comes back to title ix coordinator or the Sexual Assault prevention coordinator, and it isnt necessarily only at big schools because in the roundtables i held, i found that some of the schools that devoted the most attention and the most resources were smaller schools as well, and they devoted them not just to responding, to hearing from survivors, but to reaching out and proactively engaging in Bystander Intervention to stop this stuff from happening. It may well be that the hypothetical that senator mccaskill gave you of the deserted dormitory and the video being taken occurs, but often there are people there who can intervene. And the programs that have been started in some of the connected schools for bystander prevention prevent and change the culture, i think, are very important as well, and there ought to be resources for those programs, not just for the prosecutorial end of it. I also think that its important to note that a good response is prevention. There was a recent study done where it was shown that if a school was setting a norm of expulsion for acts of Sexual Violence, its actually a preventative measure and people are less likely to commit Sexual Assault if they have that looming over their heads. Obviously, you know, we need to talk about larger cultural shifts. That only gets us two to four years out, but even still, being able to sort of set that as the norm at the National Level has repercussions in all sorts of prevention ways. And that, by the way, is true, i am sure, but that comes back to the point that senator mccaskill was making about somebody who has committed a crime while respecting the need for confidentiality, and i think some of the comments here have been very, very important on the need for confidentiality. But the reason to prosecute one of the reasons is to deter. And expulsion may be one of the remedies, but when a crime occurs, one of the reasons why prosecutors are so vehement about going after it and vigorous is because deterrence is an important value of prosecution. Respectfully, though, i think that as long as we have a 2 conviction rate in this country, were not deterring this crime. Theres a different standard of evidence between, you know, higher educations Disciplinary Proceedings believe me, beyond a reasonable doubt is hard. Especially in consent cases. But i dont know where the 2 figure comes from. I will tell you this. I handled hundreds of these cases myself personally. I guarantee you my conviction rate was much better than 2 . And i handled a lot of consent cases. So i dont know what that is being judged from, where that 2 figure is coming from, but i guarantee you its not accurate for professional prosecutors offices with trained sex crimes prosecutors, their conviction rate is much higher than 2 . So i dont know where that number is coming from. Its coming from a study called the justice gap. By dr. Kim lonsway and joann ar sham bow. It says if you have 100 rapes committed, 17 go to Law Enforcement, 7 of those go to prosecution or trial, 3 are actually convicted, and then 2 are incarcerated. So its 2 out of the 100 thats a very different number. Sometimes its used in different ways, but thats where that number comes from. The study from the justice gap. Youre talking about 17 out of 100 reported reported, correct. And then 7 go to trial. Yeah, thats 7 of the 17 that what about the guilty pleas . Come forward actually make it to trial. That actually is i dont know that thats necessarily taken into it. The vast majority are pled out. Yeah. I mean we got guilty pleas im not sure. That is the answer to where that statistic is coming from. So i think its important prosecutors cant be criticized for not prosecuting cases that have never been reported. They can be criticized for not aggressively prosecuting cases and treating vick tims with respect when they do come forward. But what weve got to do is weve got to provide the kind of structure around this issue where victims have every opportunity to make a decision to decide for themselves what they want to do and feel comfortable that they are going to have support, good information and adequate resources throughout the process. And if we can do that, then were going to have a lot more than 17 that are going to be reported out of every 100 and were going to have a lot more convictions. But the cases that are being reported, i guarantee the conviction rate is higher than 2 . I think i can speak to that prosecutors across america. I think that point is very important. Or victims being able to pursue justice on their own. That private right of action, i think, is something we need to explore. Right. Both of those things, yeah. Just one thing i would add to the point about prevention. It is clearly the right thing to do. It also can be the legally required thing to do. Because if a school has had an incident of Sexual Assault, one of the things that title ix requires is that it takes the necessary steps to ensure that that does not recur. So that means that they have to do structural things to identify the source of the problem. And if it is alcohol, then they may need to have a greater Law Enforcement or Campus Security presence at places where alcohol is going to be present. They may need to mount Bystander Intervention programs. They may need to work with their students or with the heads of greek life or others to discuss how to spot problems before they emerge and what to do about them. I think it is a critical thing to do at the outset, but if a University Falls short, that can add to its liability for subsequent incidents and thats something that i think can get a university frankly, probably very much universities even know that that is part of the potential repertoire that can be used against them in some of these cases. We talked when we had the meeting earlier, i think part of the problem here is that i would doubt i mean i know many University President s may know something about the university of montana settlement. But probably more dont know about it than do. So, it is one of those problems of how do we, if we just do prevention as in response to your cases, unless we really figure out a way to get you about four times as many lawyers, like immediately, were probably not going to put the kind of dent in this that we really want to put in it. I think thats where you implement that Campus Climate survey can be really helpful on prevention but also on an ongoing end, as well. I agree. We talked about that Climate Survey in the last roundtable. Im looking forward to that coming out. Id like to propose another idea and it was suggested in a phone when you were doing the phone calls. Financial aid has a web page for all the Financial Aid officers in the country. They have a list serve. They shoot out a weekly email every saturday morning. There are resolutions, there are electronic announcements, training calendar, et cetera, is all online for Financial Aid officers. Could there not be something for title ix coordinators as well that could have training components . And another way to look at it is with the federal National Emergency system, for someone to be a first responder, they have to have the necessary certification every year. Title ix coordinators are often first responders, so if there were educational components, modules, that could be done. There is module 100, 200, 300, whatever for the Central National system that participants do to be certified. Is there something available that couldnt be done for title ix coordinators who want desperately to do this well, and there isnt a single association for title ix coordinators. There are lots of associations addressing it. Could there not be something patterned after the Financial Aid offering . Id add that there is even in statute a program for Technical Assistance under title ix that hasnt been funded in several years. So womens Educational Equity act. Theres a vehicle to do this sort of thing or to get resources flowing to these types of programs. We could use them. I think your suggestions are spot on. And we may want to write new ways to do it, but we also arent always even taking advantage of the ways that we already have. The technology piece of this ought to make this communication piece i mean, having the title ix web page that bannered university of montana settlement, and every piece of it and all that. Going immediately to every title ix officer in the country. Thats a terrific idea. That we ought to be able to do without i have to be careful we dont hire a contractor and spend a lot of money on it, though. I think we can do it without that. One thing i think all of you are aware is that the White House Task force did create a website called notalone. Gov which does contain some of these materials, and i think will grow over time. So suggestions about useful things and tools that could be put on that website would be very welcome. And thats a good website. I dont know that it will specifically fit the needs to the extent that we would like them to for the title ix coordinator. Ill piggyback on you, cat, and add that one of the things we are looking into is the forensic investigator training. It is available, and what were learning is that its inconsistent from what were hearing across the country of what would be considered to be best in practice. The other thing that i need to delve into more i learned on friday is ive been looking at some of those training modules that happened for those investigators if we were to have a cadre of them is that there seems to be some disconnect in implementation going to do something that we could eventually train our own. And so in your next conversation, which i think this is probably more appropriate when you get to that Law Enforcement id be interested in you maybing delving into more about the forensic investigators and the competents that are needed and when they are well trained, do they ever fall short. I will tell you that they do fall short sometimes, even when theyre well trained, but the training is the first key, and a vast majority of professional Law Enforcement that gets the training does a great job with it. And i will tell you, that youre right. The next roundtable were going to deal with a lot of this in terms of what kind of training that is Law Enforcement based. Especially the forensic interview. Because thats the key. The first interview that that title ix coordinator has with the victim, or whoever the university designates to have with that victim, how that interview is conducted is so important as to what happens. It predicts the outcome so frequently. We know this from looking at a lot of statistics and in missouri, one of the places that they are doing a masterful job of doing this kind of training for the military is at fort wood. Im sure that you could access their training down there. Im sure they would be happy to accommodate you. It just so happens i know about that because im busy trying to get all of the military to access this training, and i think that they would make every effort to accommodate training people that are not in the military. In fact, they told me that when i visited them not even a month ago. Something else that has been on my mind. Senator blumenthal earlier and senator mccaskill as well were talking about sort of sanctions and intermediate sanctions against schools and how were not really looking to remove all federal funding but how we could come up with a method or finding or Something Like that that is effect i6 and one idea thats been tossed around is this idea of having a sliding scale. So then its dependent on the endowment of the university, how large of a fine it is. And where that money goes could be toward these programs. You know cat i think you have a really good point that oftentimes universities dont have the funds themselves to or, you know, dont have that allocation down right now to have all the Resources Available. And so perhaps having a sliding scale so that when a school is fined not only are they being fined, you know, perhaps some of the fine is going to the federal government, going to doj, going to ed, and their funds, but also internally, the allocation of money. The allocation of resources to hiring a new physician, to things like that. To prevention efforts and things and you know i think thats a way to to make punishments not only that a school is out of compliance that are efficient and effective but also end up sort of feed having a feedback into really positive things. Right. Anything else . Yes, if i may. To give you an example of why title ix coordinators need as much help as possible ive been having coordinators call me from across the country. Cat, how do we make sense of this all . So in my limited, and with assistance, tried to come up with a chart, visual, with the insper section of clearly, Dear Colleague letter, Violence Task force, violence against women act, section 304 and try to come up with all does this all work and what are we supposed to do with what . This is just an example of how, in our field, were attempting to get a good understanding of this, and if youd like to have one of these i would like to have one of those for the record, and cat, if you could redraw that diagram in a way that would make more sense, were the ones you need to tell us how to do it because we can change all of this to make it more seamless and integrated so there is not the conflicting and overlapping, and thats one of the things were trying to do here, is to make it less complicated for the people on the front lines. Okay. And just for record, this is primarily tony lakes work from miami. Great. Anybody else . Well, this has been terrific. This is why i think roundtables just a couple of minutes left in this discussion. Well leave it at this point. You can see it in its entirety on our website go to cspan. Org. Live now to capitol hill where the Senate Homeland security and Governmental Affairs committee is holding a hearing looking at u. S. Port security. Among the witnesses Homeland Security Deputy Assistant secretary for transporter policy ellen mclane and coast guard assistant commandant rear admiral paul thomas. The government accountable office, tsa and fema will also provide remarks. This is live coverage. Happy to welcome you to today and thank you for joining us. Dr. Coburn ive called this hearing, this is a hearing he has a whole lot of interest in, i have two, but its a shared a shared interest. We want to take a look at the current state of Port Security, and these United States of america we want to find out if we are headed in the right direction. I hope we can also focus on the work that needs to be done over the next few years to try to ensure that our Port Security efforts maintain the proper balance between security, safety, and trade facilitation. Its important because our focus as congress cannot solely be on security. But also on maintaining and enhancing our economic competitiveness. As we all know Port Security is no easy job. It involves Maritime Security provided by the United States coast guard, men and women patrol our coasts and our waterways. Involves the physical security of port facilities like Ferry Terminal in lewis, delaware, or in Energy Refinery along the gulf of mexico, or delaware city, delaware, that is safeguarded by state and local authorities. It involves the causeway security provided by the u. S. Customs and Border Protection which screens cargo to prevent Dangerous Goods from entering the United States while also facilitating the flow of trade and transportation. The last part is a particularly important piece. And even as we build and maintain strong layers of Port Security we need to take care not to impede transportation or commerce. Our ports and waterways are the life blood of our economy. Im told that more than 95 of all u. S. Trade is handled via sea ports, 95 . And these ports account for over 30 of u. S. Gross domestic product, thats more than 5 trillion in trade each and every year. As the former governor of delaware and someone who is ultimately responsible for running a major port at the city of wilmington owned and ran that port for many years ran out of money and the state had some money and we took it over and when i was governor this is something i know a little bit about but care a whole lot about. The port of wilmington located along the Delaware River in the northern part of my state is just south of philadelphia, number one sea port in north america for the importation of fresh fruit bananas, and juice, concentrate. If you had a banana this morning for breakfast it probably came through the port of wilmington. Our nickname is top banana. The top banana port. Port of wilmington isnt just important for the state of delaware, it serves as a key economic engine in new castle county, its also a key port for the entire United States. So protecting our ports, safeguarding our Economic Opportunity is responsibility that we take very seriously. As the Government Accountability office and other experts have noted, u. S. Port security has come a long way. Shortly after 9 11, the Maritime Transportation security act of 2002 became law and empowered the coast guard with new authorities to ensure commercial vessels and port facility meet minimum Security Standards. A few years later the safe port act of 2006 authorized key cargo and supply chains security programs enforced by u. S. Customs and Border Protection. Since that time cargo security programs have taken root. Not only that many of our International Trading partners and International Trade and security organizations have created similar security programs and emulating the department of Homeland Securitys good work. But we shouldnt and we cant stop here. I want to use this hearing we want to use this hearing as an opportunity to explore how the threat to ports has evolved, and what the next steps for dhs should be. I also dont want to imply that theres no room for improvement, as i frequently say. Inferring i do i know i can do better. I think thats true for all of us. And i think thats true for the way we handle Port Security. In a recent letter to the congress, new secretary jay johnson i indicated we believe the 100 scanning mandate for inbound cargo shipping containers was impractical. Not the best use of taxpayer resources. If thats the case, we must look for a better way to address security risks while preserving the necessary speed of moving containers through our ports. So i welcome the secretarys pledge to make good faith effort to improve the departments capabilities. Without getting in the way of legitimate flow of trade. I look forward to discussing this issue with some of our witnesses today. I also look forward to hearing how the department of Homeland Security plans to address emerging threats, how it can make programs more effective and efficient and how the agencies represented here today can work with International Organizations and our foreign partners to raise the global standard for Port Security. As you can see from our lineup of witnesses, theres quite a lineup. Port security is a key support. Its a perfect example of why bringing all these agencies together into the department of Homeland Security was the right thing to do. Components present here today work seamlessly with one another to develop and implement the departments layered risk based strategy for Port Security. From the coast guard to customs and Border Protection, Transportation Security Administration, federal Emergency Management administration, and dhss office of policy, each of you play a Critical Role and youve got to work to the. So do we. Were always happy to have you with us. Youve done a whole lot of work in this area, were grateful for that and be looking to you for further help. Again thanks to everyone for coming. As dr. Coburn knows were going to start voting in a little bit. And were going to do one of those deals that we perfected where voting starts, maybe hell go vote the first time, and when hes voted hell come back and ill go vote and then well just swap back and forth. Hopefully well be able to keep going and make it all work and be done in a punctual way. But its important, were happy that you here. Let me just now turn to dr. Coburn just to thank him for insisting that we have this hearing and make this a priority. Thank you, mr. Chairman. First of all, welcome to all of you. This is an interesting area for us to be talking about. Sitting on the intelligence committee, our threats are greater, not less, in terms of risk. And getting it right is important. One of the commitments i made to congresswoman janice hahn from l. A. , she has the l. A. Port, which is our busiest and biggest and probably greatest vulnerability in terms of port that we would have this hearing and do the oversight thats necessary to try to improve what were doing. So, mr. Chairman, id like unanimous consent to put her testimony in the record she the house is out this week, and we wouldnt have scheduled that this hearing at this time had we known that. But we did. And im happy that were having the hearing so id ask unanimous consent to have her testimony included in the record. Id also note that the house has passed the legislation that the senate hadnt even taken up or considered the gaps act, and what we need to do is address today to find out where our weaknesses are. What we need to improve and as senator carper mentioned the 100 scanning obviously isnt viable, or may not be viable, but we need to have a better approach than 2 to 4 scanning that were seeing today. We know that a successful attack on one of our ports would be devastating. Rand corporation gave an example it could have a trillion dollar effect on our economy. That is a high possibility. We cannot stop every attack thats going to come to this country. But we can certainly make it much more difficult, and markedly decrease the likelihood. Everybody knows the history. Of how we came together after 9 11. We created Port Security Grant Program. We mandated 100 cargo screening. And 9 11 Commission Recommended that, as well. We also created the card which has had some significant difficulties, and is still not implemented. So my goal for this hearing is to review all the initiatives that were initially set out, assess how well theyre working. And whether or not theyre working. And determine if our ports are as secure from the potential terrorist attack as we can make them feesbly and economically. I would say we spent 4. 9 million on the Port Security program with no measures whether or not we improved our security. Theres no records so we dont know. Weve spent 2. 1 billion on cpp Cargo Programs on a scanning mandate that we are told will never be met. Theres 5 billion we spent we have no assessment of what weve gotten for that money. The program was intended to create an i. D. Card for transportation workers to enter secure areas including ports well talk about and some of my questions will relate to some of the problems associated with that. In general i think its unclear and hopefully this hearing will help us, to know how much improvement weve actually made in securing our ports. So i number one want to thank each of you for being here, preparing the testimony which ive read, and being available and i apologize that were going to have votes but we will be well keep this moving as fast as we can. We have four votes starting at 11 00 and with that mr. Chairman, thank you, as well. Mr. Top banana. Ive been called worse things. Well make this work. We appreciate. Let me briefly introduce our witnesses. Colleen mclean deputy transportation secretary. Also served as dhs assistant General Council for enforcement she began here career with u. S. Customs service where she served i believe as deputy associate chief council is that right . Rear admiral paul thomas joins us from the coast guard where hes assistant commandant for policies specialist in marine Safety Security and environmental protection. Graduate of the coast guard academy, and of the Massachusetts Institute of technology. Where im proud to say that one of our boys attended. When i went to ohio state i could barely spell m. I. T. The idea of ever having a kid that goes there i could not imagine. Congratulations on that. Thanks for your service. I want to ask kevin to pronounce your last name for me, kevin. Mcaleenan. With the emphasis on the leen . You put an a in front of the c it works better. There you go. And acting Deputy Commissioner at the u. S. Customs and Border Protection. Served as acting assistant commissioner of the cdp office of fuel operations leading the agencys Port Security and trade facilitation operations. Brian kamoi appointed as the assistant administrator for Grant Programs at fema in april of 2013. Before that he served as senior director for preparedness policy on the White House National security staff, from 2009 to 2013. Stephen sadler has been the assistant administrator for intelligence and analysis at the Transportation Security Administration since october 2011. Hes joined tsa in 2003 and held several leadership positions. Breyer to that he spent 25 years in the commercial maritime industry. And finally last but not least, steven caldwell, nice to see you. Joins us from gao where he is the direct director of issues issues on the homeland and security justice team. Mr. Caldwell has over 30 years of experience at gao and has worked on numerous reports on security and supply chain security. Thank you all your entire statements will be made a part of the record and feel free to summarize as you go. Try to stay within about what did we say five minutes . Five minutes if you could, go way over that well have to rein you in. Thank you for joining us. Ellen why dont you go ahead. Good morning, chairman carper, Ranking Member coburn. I am a career Civil Servant and testifying before congress for the first time. As this has long been on my career bucket list, i appreciate this opportunity along with my colleagues to testify on a matter of singular importance to the department. Port security. Since 2007 and the passage of the safe port act we now have several key strategic documents that shape and guide our efforts on Port Security. The National Strategy on Global Supply chain security. The Global Nuclear detection architecture. And the soon to be released 2014 dhs quadrennial Homeland Security review. Dhs is focused on enhancing Port Security through prevention, protection, and resilience. Pursuant to a risk based approach. While strengthening the Global Supply chain system, including the Maritime Transportation network, we are ever mindful that it is critical to do so by promoting the efficient and secure movement of legitimate goods. Guided by the principles in these overarching documents, dhss approach embraces five elements for a layered system of maritime port and cargo security. One, understanding the risk to better defend and protect against radiological and nuclear risks. Two, obtaining advanced information and using advanced targeting techniques. Three, increased collaboration with other federal agencies, foreign governments, and private stakeholders. Four, implementing strong, domestic security regimes. And five, promoting proposedness by sustaining Grant Programs. Within this strategic context, dhs can point to several Key Developments in the past seven years. Risk assessments to aid us in understanding the threat environment and prioritization of resources. Significant progress with international and private partners to incorporate Risk Management principles, and leverage trusted trader programs. The assessment of more than 1500 foreign ports, 200 alone in 2013, under the international Port Security program. Establishment of 360 comprehensive Port Security plans by port operators. And grant awards to achieve Interoperable Communications, installation of surveillance cameras, at port facilities, and funding for other similar fiscal security equipment and projects. Looking forward we face challenges of increased trade from the expansion of the panama canal, and increased activity in the arctic. With increasing trade, and shifting trade patterns, we must also confront aging infrastructure for a broad range of dhs assets. From coast guard cutters to xray and radiation and Nuclear Detection inspection systems. In forging the path for progress, dhs will concentrate on improving Information Collection targeting and des semination, expanding global capacity to secure the supply chain, and addressing risk across all modes of transportation. With a continued focus on enhancing the capabilities of our components, and our partners to address current and future challenges to securing our ports, dhs will continue to dedicate substantial attention and resources to implementing a layered Risk Management approach to security across all transportation pathways in an efficient and Cost Effective way. And building essential partnerships at home and abroad. Thank you again for the opportunity to testify about dhss progress on enhancements to Port Security. I will be happy to entertain any questions. Good. Thanks and were going to have some. So thank you. Thanks for your testimony. Admiral thomas, please proceed. Thank you, chairman carper, dr. Coburn, and thank you both for your continued support of our coast guard and the opportunity to discuss this really important topic with you this morning. The coast guard in coordination with the other department of Homeland Security components, interagency and the industry implements a layered Maritime Security system. Our goal is simple, we want to deteblgt, interdict and mitigate threats as far from our shores as possible. We accomplish this through the layered system thats depicted on the slide before you and displayed to the left to my left. As you can see on the slide, Maritime Security of u. S. Ports does not start and finish in the u. S. Rather, the opposite is true. The security of our ports begins in foreign ports at foreign facilities and terminals. This is the first layer of our integrated system. The coast guards international Port Security program conducts assessments of foreign ports, to ensure ensure they meet International Security standards and to build the capacity of our trading partners. So just as you cannot enter u. S. Airspace unless the flight originated from an airport that meets minimum Security Standards, you cannot enter u. S. Sea ports unless that voyage originated from a foreign port that meets the Security Standards as certified by the coast guard. Additionally, coast guard led foreign port threat assessments bring together information from Law Enforcement and intelligence communities to assess the level of governance, crime, terrorist activities and other factors which may help us determine which threats emanate from those ports. Finally, overseas activities by our colleagues from the customs, Border Protection and other dhs components help ensure the safety and security of cargo an people before they depart foreign ports. If you look at the next several laser on the slide, the international waters, the u. S. Exclusive Economic Zone and u. S. Territorial seas, our regulations require that each ship en route to a u. S. Port provide the coast guard at least 96 hours advance notice of arrival. This notice includes information about the vessel, the cargo, the crew and passengers. Customs and Border Protection also requires advance notice with information about the cargo, the shipper, the consolidator, the receiving agent among other information. Other federal agencies like centers for Disease Control may also require advance notice of arrival under certain circumstances. All of this information is collected and shared at both a national and port level. Its screened and assessed so that prior to arrival of any vessel, the coast guard captain at port has a consolidated, comprehensive assessment of all risks associated with that ship. When i say all risks, i mean all risks, everything related to safety, security and the environment. As diverse as Invasive Species and water or cargo, crew members on a watch list, passengers exhibiting signs of illness or damage to the ship that might compromise safety or the environment. The captain of port is able to coordinate a single interagency local, state and federal Risk Mitigation plan for each ship that arrives. For the vast majority of these ships, local coordination is required to plan necessary control, inspection or enforcement actions. In some cases, the threat rises to the level that interagency coordination at the National Level is required and we activate the maritime threat protocols. In some cases the risk will be mitigated by interdicting the ship in the offshore zone n other cases the ship enters the port but is subjected to oversight prior to passenger operations. These boardings are most often led by the coast guard but may include personnel from other Homeland Security components or the agency who can bring special capabilities to bear on a given threat. In all cases, the vessel arrives at a port facility that complies with the requirements of Maritime Transportation safety act and the safe port act. These facilities by law have security staff trained to specific standards. They have an Access Control system that includes credentials for each employee. They have approved plans in place to prevent and respond to security incidents and they execute a declaration of security with the foreign ships when appropriate to ensure the security and Communications Protocol at that ship port interface are clear. Beyond the individual port facilities, the Port Community as a whole is prepared and resilient. Capable of port wide prevention, preparedness, response activities. Due in large part to the combined impact through investment in our Grant Program, establishment of the area Maritime Security plans. In summary, mr. Chairman, we have used the authorities in the Maritime Transportation security act and the safe port act to implement a Security System that begins in foreign ports, continues in the offshore area as a vessel trits to our waters and remains ever vigilant in our ports that have robust, interagency, local, state and federal coordination to mitigate threats, facilitate commerce and respond to all incidents. Thank you. I look forward to your questions. You took one second too long. Youre off your game today, huh . Yes, sir. Actually thats pretty good. Thats very good. Thanks for that testimony. Kevin, youre up. Please proceed. Good morning, chairman carper, Ranking Member coburn. Its a privilege to appear before you again today. Thanks to your continued support along with effective collaboration with federal, international and private sector partners, dhs and u. S. Customs and Border Protection have made significant advancements in maritime cargo security. Cup has secured security partnerships, enhanced targeting and Risk Assessment programs and invested in advance technology, all essential elements of the multilaird approach to protecting the nation from the entry of dangerous or vie lafb shipments while expediting legitimate and economically viable commerce. Id like to highlight the progress of a few of these efforts for you today. In the first few years after 9 11, cup created several key programs to enhance our ability to assess maritime cargo for risk, examine shipments at the earliest possible point and increase the security of the supply chain. The Customs Trade Partnership against terrorism or ctpat was established in 2001 in the wake of the 9 11 attacks. It provides facilitation benefits to members who adopt tighter security measures throughout their entire supply chain. It has grown from seven initial members to over 10,000 members today. The National Targeting Center also started in 2001 has developed worldleading capabilities to assess cargo shipments, crew and travelers for risk before they are laden or board vessels destined for the United States. At the ntc, they utilize the targeting system, intelligence, commercial information and traveler data to identify and mitigate potential threats. Dhs and cvp have strengthened Detection Capabilities at domestic sea ports. Since 2001, cup has acquired 1387 radiation portal monitors and increased its inspection systems from 64 to 314. These valuable systems help officers detect radiological materials, weapons and a list of substances. The support of congress, specifically through the safe port act, has been a key catalyst in advancing trade security and facilitation capabilities beyond these signature efforts. The act codified and made filings mandatory, building on the 24hour rule. This Program Provides additional advanced insight into the supply chain allowing us to identify potential risks earlier and more accurately. The act also cod nied the security nifb afternoon. Cup works with foreign authorities to identify and examine highrisk u. S. Bound maritime containers before they are laden on vessels. They prescreen 80 of all cargo imported into the United States. Cvp will continue to build on our progress by exploring and expanding new rules, such as trusted trade or mutual agreements. We will confine our targeting to better identify highrisk cargo and work to increase the percentage of containers scanned abroad. Well continue to help lead the effort in developing increasingly effective and sophisticated Global Standards for cargo security. By utilizing riskbased strategies and applying a multilayered approach, we can focus our resources on the very small percentage of goods or seshsz that are high risk. Our use of advance information, technology and partnerships improves goal supply chain integrity and reduces transaction costs for u. S. Businesses. Thank you for the opportunity to testify today. Im happy to answer your questions. Thank you for that testimony. Brian. Welcome. Thank you, chairman carper, Ranking Member coburn. I appreciate the opportunity to be with you and to join my colleagues from the department to talk about the Port Security Grant Program which we believe is a critical part of the departments efforts to enhance the security and resilience of our nations ports. Senator coburn, as you mentioned, we invested 2. 9 billion since 2002. While i agree with you that we certainly can continue to improve our measurement of both the effectiveness of those investments and our administrative management of the programs, we have clear evidence of the value of these investments across the programs priorities, which include maritime domain awareness. Weve invested in over 600 portwide projects that include portwide coordination and collaboration, Interoperable Communications, Surveillance Systems that assist in domain awareness. Weve invested 161 million just in Interoperable Communications. Weve also invested in improvised explosive device capabilities and chemical, biological, radiological and nuclear capabilities. Cyber security capabilities, as that threat continues to evolve. Planning at the port level, training and exercises and of course the implementation of the transportation worker identification card program. And so in addition to these programatic achievements and, for example, just in vessels that patrol our waterways, weve invested in over 500 vessels. In new york city, for example, the port of new york used over 30 vessels the day Hurricane Sandy made landfall and rescued over 1,000 people. So we know these dollars are making a difference. And these investments also facilitate increased partnerships, not just at the federal level with my colleagues here, but at the state and local level and with port owners and operators. Weve seen in a variety of instances, you can assure congresswoman hahn that we continue to make investments in the port of los angeles for information sharing and collaboration and, chairman carper, in the port of wilmington, the investments there not just in Interoperable Communications but in information sharing between the port and the Fusion Center in delaware that has allowed the building of relationships with state and local Law Enforcement and the port. I thought id also tell