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 p