as soon as possible. that is also interesting. i had the opportunity a couple of weeks ago to meet with a high level litigation firm from a country that had elections recently and they used e voting to a large extent. and he stated that the wrults well accepted but he also added they were immediate. just a few minutes after the closing of the polling stations. and then his comment was also they were all well accepted but because we hadn't a closed election. so if you have a closed election, that is the political risk. in the highly polarized political context when you have a close election, irrespective of the technology, eventually, there will be room for disputes and possibly also in some cases even violence for not accepting the results. and that is irrespective of when you get them. >> so i voted on yom kippur.

don't tell my rabbi. and what if something exciting happens in tonight's debate and i say oh, i really wish i hadn't done that. this is the downside of having an extended polling time is it's hard for candidates to decide when to do their advertising, the logistics and the strategy of advertising and when to drop those bombshells and so on changes. so it's not just the mechanics of voting that changes. it changes everything about our elections. >> how many more questions do we have? >> we can go for a couple hours. >> there's people behind you, too. >> i completely missed that side over there. let's go with this question first. >> that's the left wing. >> thank you. i live in oregon which has had totally vote by mail for years. and basically, you get your ballot in advance. you can fill it out anytime you

want. you can mail it in as long as it's going to arrive by election day or drop it in drop botches and it has a secret sit envelope so your vote is still secret. dr. hall seemed to indicate there are problems with that. i'm wondering. >> i use vote by mail. i can't do my job without -- i can't go to the polling place, just the nature of what i do. so i'm a big fan in terms of convenience. it is one of the deep dark secrets in terms of voting security that to put it another way, before about 1900, election day was a payday for most americans. 85% turnout. they could actually observe you putting a ballot in a ballot box and there were very distinctive colors. it was easy to figure out how it went. that's why we adopted the australian ballot which is a secret ballot where all the candidates look the same and no one has big letters. when we adopted that uniformly in the u.s., turnout went down

to 20% because there was no longer this incentive push or pull, they had to have civic reasons to want to vote, not compensatory or monetary reasons for going to vote. so that's the thing that concerns me is you can have coercion, buy-in, you can say hey, i know a person who does the opposite which is really strange where they will sign their ballot and give their ballot to their lawyer with about 500 bucks and say vote who you think i should vote which is very vang and is totally illegal at least where this person lives, west virginia it wouldn't be illegal because the constitution in west virginia allows you to show anyone your ballot after you cast it before you marked which is the only state that allows you to do that. the reason i'm down on vote by mail is it reduces the secret sit element or privacy element. secrecy is i'd really like you not to tell anyone else how you

voted. unfortunately, vote by mail is not going anywhere. it does have the level of enfranchisement in highly rural areas is unparalleled. it's better than internet voting because you have a permanent paper record that can be audited. >> two quick things. one is for beam disabilities, vote by mail makes it harder for them. they have to have someone else fill it out for them. unless they have a marking device on their computer it, just reduces someone who has motor impairments or visual disabilities. the other thing is, it increases the level of undervotes because there's no machine to check, did you correctly color in the circles or did you put a check mark or people do amazing things, they circle the name of the candidate they like -- >> a circle instead of filling out the circle? >> you can't read those. >> i had an election official tell me the other day had he

someone who came in who said i don't need your instructions. i'm a p.h.d. and proceeded to circle the circles and it got kicked out by the voting machine and he was like -- i'm a p.h.d. but i can't follow instructions. >> they rarely can. >> modern day literacy. >> there was a question back here. then i come to you guys, sorry. >> you've all mentioned a couple different scenarios that have happened. >> hold it closer. >> is this better? you mentioned in ohio where there was a third party that had access to the networking. > that's very typical. >> third party company that was sort of managing the aggregation of the votes from the different counties and reporting them to the county website. >> got it. there was also some discussion of hacks of voter registration rolls. could you illustrate what the outcomes could result from the access or compromised networks

or databases that would result from these activities? >> sure. so for example, in ohio, in 2004, we had a machine that, and this is when we were using mo dum, telephone modem based transmission of results from the polling place to the central facility. we had a machine that phoned into the central facility and basically reported twice as many votes as it is had actually recorded at a time where with they weren't using inkrepgs on a connection, they were using something called a crc which is not appropriate for this kind of thing. we don't know what happened. it could have been a cosmic ray. but you could imagine with access to the network itself, you can fiddle with the bits in realtime because this isn't hard to change stuff that flies by. unfortunately, there are a lot of -- instead of saying unfortunately, there is something like anywhere from 8,000 to 10,000 election

jurisdictions in the country. most of those don't have a full fte, full time staffer for their elections operations because that person has to do titling, clerking, all sorts of other stuff, too. so you better believe they're going write a contract ta says hey, you take care of as much of this as you can. that's why i think there's a great opportunity for some sort of like cloud provision for these kinds of folks, something that could at least, i don't know who should do that. i don't have all the answers. that's the kind of thing you can imagine trying to abstract a way that either way you don't need to trust the third party which is what i prefer, using it end to end crypting tography that will ensure i think we're a little far away from that, but having maybe someone else run infrastructure for folks so that they don't have to sort of, you know, pay someone out of their pocket to do it who may not do it very well. anyway, so that's a not very

satisfying answer. >> was that sufficient? >> voter registrationing. > i mean it, it's very easy to imagine that. so voter registration data is the most useful data for reidentification attacks. you heard of it in health and other kinds of things where they remove certain kinds of identify fears to share that data widely. voter registration data because many people are in it, it has specific types of key data like the last four of your social, your date of birth, your home, your phone number. some southern states your exisity and things like that, there's already sort of a motive to get access to kind of data and have that kind of stuff. so illinois voter registration hack where 90,000 individual records were ex-filtrated from their staging system, that's a good example of something they will do. that's just pulling stuff off. in terms of influencing the vote, you can imagine an attack

that would remove 5% of the voters from the registration rolls from bun particular party and given how close our elections are, check out wikipedia, duvneger's law, the only law in political science basically says if you have a system that's first pasted the post where the majority wins, you regress to a two-party system with very, very close margins. because we have such close margins, removing 5% of the voters from one party or the other could be a perfect attack for influencing the vote. >> we're actually out of time. but i promised you guys that you would get your questions in. if you can ask them quickly and keep your answer brief. >> okay. so il try and be brief. i'm concerned mostly about the perception thing because we have this copy of the report that i know joe is here at the atlantic council two years ago on the stage with my boss. i work for a congressman. he was skyping in to make -- to

talk about that. so i think that it's really great to see all those focus on election cyber security, but a lot of it is tied to the dnc hacking. i mean, there were voter registration databases that were getting dumped online and people found them for years before arizona and illinois. so how do -- i think the focus is good but i think that the biggest concern is the perception that people will have that the election is illegitimate. how do we build resiliency in the electorate to deal with that fact? one of the great threats to our voting system from where i sit is rain. that drives downturnout like nothing else. i mean, you can disenfranchise 5% of the population that would show up or of the voters that would have shown up but this was raining. we try to build resiliency to

counter that. how can we build resiliency in the american pop lew las because we know that the a.p. has been hacked, the dnc has been hacked. even if we don't have the specific examples and it's hard to figure out, the idea dissemination methods or something like that is going to be hacked, we have past evidence that these things have been hacked so how can we build resiliency in the american populace to deal with that fact. >> evidence-based elections. so being able to demonstrate to folks that this is how it's supposed to operate. this is how it operated. don't worry. any mischief, it's extremely complicated how you do that. the extent we can base trust on evidence that the systems are resilient, that's as good as we can do. people can still worry and that's their problem. >> i would agree and also say for today, part of the answer is

diversity or complexity depending what you want to look at it can be our friend and i think is our friend. it's just too damn hard because every state does things differently. every county does things differently. it's awfully hard to have a large scale impact as joe says. it's easy to fix the wastewater treatment bond, but it's really hard to change big things because there's just so many different things that get cross-checked against each other. our election officials do a fabulous job with not nearly enough resources. so we need to not blame them when things don't go the way we always hoped because they're doing a fabulous job given their limitations they have. >> i also agree. the technology is just a fragment of a mosaic that has to be consistent.

and that is the system. the people should build confidence in. >> quickly? >> i'll forego. >> no, i promised puppy promised you, sean. >> thanks so much. i appreciate it. dr. hall, you referred to elections as kind of a meadow with very few predators. i was curious. other than nation states, what some of the other malicious actors look like and if there's any intelligence that leads you to believe that tony soprano is trying to hack an election in suburban philadelphia. >> i don't have any evidence that there's any organized criminal that is actually trying to do this. i do think that we see nation state influences and the guccifer kind of stuff. i'm wary of an attributing that. there are folks who realize some of the data is and that there

are people who are like as i forgot your name, i'm sorry, as he was stating, there have been security researchers have found you know, databases that campaigns have not decommissions of like all voters that include not only the list of their names but appended commercial data. even if you've had the addresses removed for all the federal judges in a voter registration list, if the campaign goes and adds the addresses back on, all of a sudden that federal judge's address is now publicly available and is a very sensitive piece of information. there is also sort of the, i don't know what to call them, the lulls folks, the folks who think, oh, man, there's fun to be had here and i think some of that you've seen, for example, people like yesterday poking out all the cross sites scripting vulnerabilities on donald trump's infrastructure which is apparently legion. those folks are sitting around hey, there's a website, i can play around with it. >> i think the second we put a

candidate that's attractive to anonymous on a ballot that's going to be feasible with internet voting, they will be elected. >> i think it's worth mentioning it's hard to predict. the one election that i know of that was fixed was the u.s. rowing association. why would someone fix an election for the u.s. rowing association? i don't know but somebody did. i don't remember if it was an insider or outsider attack. i don't remember. it sometimes boggles the mind what people think is worth their effort. i'm not going to presume who is or isn't, whether it's lulsic or a nation state or a campaign that has gone off the rails and is willing to try whatever they, whatever they can in a neighborhood election. there was a case in one of the colleges in southern california where a student put key loggers on the machines in the student union building because they

really wanted to be elected to the student council. it's like, come on. it's not that important to have that on your resume. >> how many federal crimes did you just commit. >> and the fbi caught him and walked him up for trying to hack the student council election. >> we need to wrap up. before we go, i do want to sort of throw this out there as a public service announcement about calling in on election day if you discover problems. there is a group run by a legal coalition. and i'll let joe talk about it. but it's very helpful. it's been in existence for i don't know how many elections at this point. >> since 2002. >> so people can report problems, long lines, voting machines, touch machines not recording what they're intending record, e poll books not up and running, any problems you can report to this legal group and they can provide assistance. >>s in a nonpartisan effort run by the lawyers committee for civil rights under law.

866-our vote.org or call 1-88-our vote and you can ask questions. you can get help. they'll even send a lawyer out if you have serious problems that require legal intervention. >> is that multiple jurisdictions? >> nationwide. >> every place you can vote in the united states of america, they will be on the ground and available. >> okay. so thank you. join me, please, in thanking all of the panelists here for a great discussion. every four years, the presidential candidates turn from politics to humor at the al smith memorial foundation dinner to raise money for catholic charities. at new york's historic waldorf-astoria hotel. >> i must say i have traveled the banquet circuit for many years. >> i've never quite understood the logistics of dinners like this and how the absence of one individual could cause three of

us to not have the seats. >> mr. vice president, i'm glad to see you here tonight. you've said many, many times in this campaign that you want to give america back to the little guy. mr. vice president, i am that man. >> an honor to share the dais with a descendent of the great al smith. al, your great grandfather was my favorite kind of governor. the kind who ran for president and lost. >> al, you are right. a campaign can require a lot of wardrobe changes. we blue jeans in the morning perhaps, suit for a lunch fund-raiser, sport coat for dinner but it's nice to finally relax and to wear what anne and i wear around the house. >> watch the al smith memorial foundation dinner with hillary clinton and donald trump. tonight at 9:00 eastern on

c-span and c-span.org. and listen at 9:00 p.m. eastern with the c-span radio app. now a review of college and university policies for dealing with sexual harassment and assault on campus. sexual assault response researchers, legal experts and college guarait administrators bring their experiences and opinions to the discussion. they also discuss challenges many sexual assault victims face in reporting the incidents and getting response from university administrator administrators. >> okay, everybody, we're going to get started. >> i'm just going to very briefly introduce the folks on the panel and then turn it over

to them. this panel as you see in your materials is on harassment abuse and fair process. and we have nancy at the end, associate professor at barry law school. we're happy to have nancy back. along with william kiter who is associate vice president and chief of staff in the office of the president at sonoma state university and they're going to be presenting their pape is below the surface of the water in the title 9 iceberg, sexual harassment by college fastball the. and then we have brian pappas who is the -- bear with me. he's got a complicated title, associate professor of clinical law, associate director of the adr program and director of the conflict resolution clinic at michigan state university. his paper is "abuse of freedom, balancing quality and efficiency in the fact title ix procedures," kel little bear is

director of the legal assistance clinic and she's talking about the brainstorming about the role of law school clinics in providing legal assistance to campus victims of intimate partner violence and sexual assault. then alexander brodsky who is a jv from yale 2016 and senior editor at femnisting.com talking about a rising tide, learning about fair disciplinary process from title nine. so wherever you guys want to sta start. >> i think that i am supposed to start. bill and i my paper, an the idea of it was really initiated by bill because he was following several of the sort of prominent fact harassment cases that were occurring on primarily at institutions on the west coast and was involved in some things at his institution whether he he

was in a former position. and so when we first started talking about the paper, i suggested that we -- that we try to collect the case law and the ocr investigations that had involved fact harassment. similarly to research that had i done some years ago with regard to peer harassment. and it quickly became obvious to us that there were several reasons why looking at the case law and the ocr investigations was not going to work as well as in this context as it had in the peer harassment context. and so in the interest of time, i'm not going to go into all of the reasons but suffice it to say that we decided that we needed to cast the net a bit wider. and we ultimately decided to look at three sources in an effort to map it the problem of

fact sexual harassment. the first set of data that beat looked at was social science literature on sexual harassment and sexual violence in the workplace. and well, in the workplace in educational institutions, and occasionally in the criminal context. and specifically what we were looking at there was we were looking at research on the harms that cox to victims and survivors of sexual harassment and violence. we looked at the sentence rate of faculty sexual harassment, particularly harassment of graduate students which is i'll explain that focus in a second. and then finally, we looked at the amount of serial harassment by which i mean the, a single harasser who harasses multiple victims. so that was the social science

category and then our second category was looking at private lawsuits and ocr investigation resolutions in cases that were brought by victims who had been harassed by fact. and this was, you know, there were close to 140 of these cases total and then the third category was news stories regarding accusations of harassment by fact. so i'm going to talk about the social science research and the course cases and ocr investigations and then bill is going to discusses the media reports as well as what we believe are the necessary steps that schools should be taking to address faculty sexual harassment. so there's relatively little social science data directly on the topic of fact hara. . but the recent activity that's been spurred by the white house task force to get colleges and

universities to survey their students about sexual assault and sexual harassment on campus has started to gather some of this data. so we do now have some data on faculty harassment of graduate students and some of the -- so the largest survey that's been done as far as we know to date is the aau study and so that's with the 27 colleges and universities, major research institutions across the country. and you can see from the chart that the rates of sexual harassment reported by graduate students is quite high an. >> and it's especially high for transgender and gender nonconforming folks and that is

then followed by women graduate students. and you can also see that a fair amount of that hara. is happening at the hands of faculty or other university employees. . again with the highest percentage for transgender and nonconforming students. gender nonconforming students and then within women students next and men students last. so i said earlier i would focus on why we are focusing on graduate students. basically we decided to focus on graduate students because our feeling in at least some of the social scientists involved in these surveys have articulated similar reasons. our feeling was that glute studentses are uniquely vulnerableable to faculty harassment and that's because of how closely they work with

faculty. it's the length of time they are often in their graduate programs and the importance of their relationships with faculty members in terms of the graduate student's future careers. and we're also aware that graduate students are you know, quite literally the pipeline to the profession for almost all of the disciplines in academia. so to the extent that certain groups of graduate students face more harassment and hostility, that is likely to affect the demographics of future faculties and university leadership. so you know, for both of these reasons, this group seemed like an important group top spend some time on. okay. so the survey data is the corroborated by some other smaller surveys or smaller or older surveys but it doesn't tell us that much about what has been the theme of the media

reports on faculty harassment which is the extent to wit a few faculty members are harassing multiple students since we couldn't find any studies on that question, we looked at studies on serial harassment and serial sexual aggression which is a social science concept that measures similar kinds of conduct to sexual harassment. and there are only a few of those studies that deal with serial harassment in the workplace or with repeat sexual aggression between university students. but even though that body of research is relatively small, the studies that are available pretty much agree that sex -- that serial harassers and assailants account for a lot of the sexual harassment and violence that is occurring out there.

so mainly what the social science research doesn't capture for us though as legal scholars and as attorneys is how much of what social scientists measure as sexually harassing or sexually aggressive conduct is sufficiently severe or pervasive enough to constitute sexual harassment as a legal matter. so on the severe end of the sexual harassment spectrum, you know, when we're talking about sexual violence, this is not as much of a problem. because on the severe end, uninstance of sexual assault for instance is generally agreed to constitute sexual harassment sufficient to create a hostile environment as a legal matter. but you know, one sexist remark

in class or even several such remarks will often not constitute hostile environment sexual harassment but it could conceivably show up as a data point in the social science surveys. so to address the gap between the social science literature and the legal standard, we looked at the court cases brought by plaintiffs alleging sexual harassment by faculty. and investigations conducted by the office for civil rights in the department of education involving a complaint or complaints of faculty sexual harassment. and we looked at 68 court cases and 65 ocr investigation resolution letters, all of which took place after 1998. and we selected that date simply because that's the year that the

supreme court decided the jebser case which is sort of the modern error of title 9 and sexual harassment. soy of those 133 cases, we found 46 cases where a faculty member was accused of engaging in conduct where there is enough detail about the conduct that we or the court or the investigators determined that there was a coggizable claim of severe or pervasive hostile environment harassment that was directed at a student. so in looking at these 46 cases, we looked at the conduct alleged to see what the faculty harassment of the students looks like, you know, who exactly is doing the harassment, who are they harassing, how are they harassing them and how are others reacting to the harassment.

and we found a couple of general themes. so the first is on this slide. 57% of these cases involved unwelcomed sexual touching ranging from hugs and kisses to sexual groping, coercive sexual intercourse, forcible rape and the kinds of physical assaults and psychologically abusive and controlling behavior that is often associated with domestic violence. so, you know, you're probably thinking, or you may be thinking, well, that's probably you know, probably more of that unwelcomed touch og is sort of incidental contact. like someone putting their arm around someone or giving a student a hug who didn't welcome it. but -- oh, sorry, but in fact if

you look at the other bars on this chart, you can see that the greatest, that the most sort of violent or most severe forms of sexual harassment actually get the most -- the most cases are in those categories. and we only had a very few cases that we found where it was just, you know, something like a hug or a kiss or something like that. and then the other thing that we saw because i'm already out of time, is with regard to serial harassment. so this is -- the statistics are on serial harassment or the basic percentage on serial on s

basic percentage on serial harassment was 62% of the cases involved serial harassers. and this -- again, this was conduct that was alleged by the students or the plaintiffs in the cases. and this was very much weighted on the side of the court cases as opposed to the ocr cases. but it was a high percentage in both areas. so with that, i will pass it along to bill. >> thank you, everyone. i want to thank margaret and robin for hosting this important conference today. so this is sort of an odd partnership in some ways for a paper. normally i publish a little on the side in areas related to affirmative action. and for me sort of stretching outside my comfort zone would be

writing about campus racial climate or affirmative action and financial aid. so this is several orders of magnitude different than my previous efforts in that regard. but in my administrative life i've had this separate professional experience life working for many years in a provost office, working as the chief compliance sferks overseeing a title 9 office where i had been involved in quite a number of serious faculty misconduct cases including the last two cases in the university of california system that went all the way to the board of regents for termination proceedings of a tenured faculty member. so i don't discuss those two cases in this paper, but it animates my reservoir of experience in how i analyze the cases and work with nancy on this paper. so nancy talked about a couple spheres of evidence, one being

the social science. we don't have time to get into that in great detail. there is some interesting social science in this area. another being the cases in ocr complaints that you reviewed. a third area because these are all confidential, and because unlike in almost all litigation the fact that there was litigation is public even if it's a jane doe case. unlike those circumstances, most faculty misconduct cases, whether for sexual harassment or other kinds of misconduct are entirely outside of the sphere of public knowledge except when there are media reports. so we looked at that as a separate sphere of data collection. so these are just cases, big cases in the news in 2015 and '16. you know, we could have easily

filled up 15 bullet points instead of five if we had the time and the inclination. but just to kind of give you a flavor of what's been going on at many leading universities around the country. so to start with uc berkeley, they have basically had a total catastrophic meltdown over this issue over the last two years. so for example, last summer i was testifying in defending a faculty termination case in federal court at the same time this whole controversy over jeff marcy was playing out in summer 2015 on the berkeley campus. marcy was on the short list for a nobel prize. he had a 20-year track record it looks like at least of some degrees of complaints about his groping and unwelcomed sexual advances and so on.

that was just one case where the anemic disciplinary response by the campus was regarded within the uc berkeley community and within the broader community as morally repugnant, basically. 36 -- i'm sorry, over 20 of marcy's departmental colleagues in the astronomy and physics department signed a letter stating that he was not fit to return to duty as a professor. and really that more than the administrative response is what caused him to resign. second case at uc berkeley unfolded in the spring of 2016. and that involved the dean of the uc berkeley law school, choudhry, the second dean bey at berkeley to resign amidst a sexual harassment scandal. so dean choudhry had an

executive assistant and there was a title 9 investigation of her complaint against him that substantiated violations. again very anemic sanctions at least thus far toward choudhry. he received a 10% pay decrease or a salary cut for one year. and that was his initial sancti sanction, until this case again kind of blew up in the media and there was a significant blow-back within the academic community as well as within the larger public. so he had allegedly put his assistant's hands on his waist and engaged in sort of this repeated kissing her on the neck and bear hugs and a long pattern of unwelcomed conduct that spanned many weeks and months. there's a third major case at berkeley and that involved the vice chancellor for research, gordon fleming. and he was also found to have

groped the breast of his middle manager and assistant vice chancellor in the research office and engaged in other similar kinds of misconduct as was described about the law dean. and then as if to punctuate or symbolized the systemic cultural problems on the berkeley campus with respect to enforcement of ethical norms, the assistant vice chancellor that fleming was found have sexually harassed, she herself had been fired for sexual harassment related conduct toward her subordinate employees. and she did that behavior after the conduct of vice chancellor fleming. again, there's an interconnectedness among all of these cases in ways that is surprising.

so that's the berkeley case. i'll kind of move more quickly through the others. northwestern, we have some northwestern folks here at the conference who probably have a lot more facts on the ground about that. but professor ludlow in the philosophy department was alleged by two separate students one graduate student, one undergraduate student to, have had nonconsensual sex with those students. the first time around in the disciplinary process, he again received a very modest sanction of, you know, i think he was withheld a merit increase of $3,000. the second time around, as the case progressed and as he lost his lawsuit against the students and university, he resigned basically as he was essentially circling the drain of a termination proceeding. university of west virginia school of medicine, it's important in discussing this whole topic to make a mental

note that in the s.t.e.m. sciences and in laboratories, scientific laboratories, there are particular constellations of vulnerabilities with respect to sexual harassment of graduate students, undergraduates and post docs. and this is also true in a medical school context. so the chair of the neuro surgery department, he was found to have sexually harassed two staff nurses and an assistant at the medical school and that resulted in a $1.3 million settlement. so they paid the $1.3 million settlement and yet the university still maintained this individual, dr. cohen, as the department chair and did not sanction him. yale university we have several folks with yale ties here. i won't get into all of the cases but one of the cases that

came up in recent months is around professor, is it pogge in the philosophy department. and his conduct toward a recent graduate has -- there's a lot of blogging about that in philosophy and ethics spheres. another case is the university of colorado at boulder. in that case, there is an outside committee by the american philosophical association that found systemic abuse issues there. so again, that's just kind of a slice of what's going on at some leading campuses. so another thing we looked at, in addition to the cases that nancy talked about, is when colleges and universities do fire faculty for sexual harassment and those cases are

litigated, what are the outcomes. so it's a little hard to read. we have some print copies there if you want to read the cases. but really it's the weight of the cases and the pattern that matters more. so by a three-to-one ratio we looked at -- these are all cases involving ten toured faculty. there are a lot of other cases we excluded that would have padded the stacks with part-time instructors or coaches et cetera. but if we focus on these 20-plus federal and state termination cases, basically by a three-to-one ratio the universities have been able to successfully defend their termination of that faculty member. the common themes, each of the cases that involved a university losing, it's kind of like the

tolstoy line about how happy families are alike and unhappy families are each unhappy in their own way. in each of the cases where the university lost, there's some salient due process issue or they didn't follow their own procedures, and we can get into that more if we have time for q&a. those are the kinds of evidence that we looked at. and this is all driving to our conclusion in the paper. again, we don't have a comprehensive ability to analyze the body of administrative cases in this area because everything is confidential and we only can get pieces of that. but we have every reason to believe it's much like civil litigation where based on the abf data about a fifth of cases are dismissed right out of the gate. a lot of cases, maybe half, are

settled early on in the resolution process. another fifth are dismissed on summary -- or there's a summary judgment motion. and then only a small portion of the cases where there is an allegation are like in civil litigation would actually go to trial. the data we've looked at, the uc data and impressionistically from other sources bears that out. the number of cases that involve a formal privileged and tenured discipline hearing are a small fraction of the university cases that involved allegation and investigation. and those cases in turn are a modest fraction of the total universe of cases of what we think is going on but many of those cases are never reported. so to the issue of sanctions.

so we looked at the social science, we looked at the policy research, and kind of came up with this constellation of factors as to why serious disciplinary sanctions are important. some of this is rooted in classical sociological theory. did your kim teaches us that it is when ethical norms are being violated, that's the most conspicuous moment of which the meaning of the norms becomes most salient for the population. for the student population, for other members of the academic community. and so it's those moments of a case like jeff marcy or gordon -- or graham fleming or some of the others that i mentioned, that it's most important for the academic community to communicate through

disciplinary sanctions. so a number of universities have an institutional culture that is very risk averse in the area of disciplinary sanctions. for example, at ucla, i'm not speaking to their overall culture, but it is the case that in the last 50 years, they've never had a faculty termination proceeding for any reason. obviously number of faculty have gone through the process and maybe resigned but they've never had a termination proceeding. the same is true of harvard university, not dating back to last week but dating back to 1638. they have never had a faculty termination in that 400-year period. and there's even a 19th century example of where a professor killed another professor but went to the gallows with his tenure intact. so in addition to the issue of

leadership, the research shows that leadership is a salient factor in terms of creating a sense of confidence in enforcement of title 9 when there is a conspicuous absence of disciplinary sanction, it also has the syndrome of other negative consequences. underreporting of incidents, retaliation to those who do report incidents. a chilly retention climate. again this is especially so within, within s.t.e.m. fields. a greater embattled climate on the campus with respect to ocr and with respect to litigation. and some of these very campuses that i talked about are the ones that you could characterize as being embattled on issues around sexual harassment and title 9. so i'll leave it with that.

>> i am not trying to check my e-mail. i want to thank the conveners for such an engaging symposium. and my remarks are going to meld very nicely with nancy and bill's presentation. and i need to start by some commentary on my powerpoint skills. i'll let you decide whether that's true for me or not.

i'm looking at university processes and they get quite processes and they get quite complex. and so i needed some language, but nonetheless, my power point skills -- anyway. it's been quite nicely established here that we have wide spread sexual misconduct, widespread nonreporting, insufficient institutional response. complainants are unhappy because the complaints aren't become taken seriously. on the other side of that, respondents and their supporters feel that either the ocr requirements are unlawful and the new rules promulgated without notice and comment that they have limited confrontation of witnesses, limited right to a hearing. when i say hearing i mean the traditional setting in which they would have the other party present. and so you can see in the ocr's

q&a document from 2014, the hearing -- what is defined as a hearing can include an investigation for administrative purposes in terms of that confrontation. concerns about a lack of full representation by legal counsel. concerns about a lower standard of proof, meaning preponderance versus clear and convincing. faculty have a greater interest in continued employment than students do in education, especially since there's contractual guarantees but they receive fewer safeguards than those students. and also universities may be infringing on some shared governance issues when they work to apply administrative solutions and create consistency with faculty processes. so there's a tension there between efficiency and procedures.

and we need carefully designed processes so that we things can exist. one of the questions is how do these processes interrelate. and my analysis of these examples are as. best as i can determine, it is not easy looking at these processes and figuring out what happens when, how does this work. so my audience for this material is frankly law faculty. because it's hard to understand these issues with a lot of in-depth study. when we take our typical understanding of criminal law, when we default to our basics, we can end up with less than nuanced understanding of how the processes work together. my goal is to have greater engagement of the entire academy on these issues. and hopefully improve processes. i'm going to skip my first slide here because they did an excellent job of explaining the privilege of sexual misconduct by faculty in the au survey. i'm going to skip this one as well and i'm going to talk about some research that i did when i

completed my dissertation and some examples that i learned from a variety of different title 9 coordinators at different institutes of higher education. in 2011 faculty staff misconduct was much more prevalent, much more. student to student, peer to peer sexual misconduct wasn't really on the radar. towards 2014 when my data collection concluded i saw the switch. so here's a quote i threatened to put a policy together banning faculty student relationships and get it approved. you would have thought i called every faculty on the campus a pedophile. the uproar of me having the nerve to do such a thing. on the flip side i have students rubbing around her marking a chalk board about how many professors they've bagged. on any university campus there are a number of faculty that take advantage of their influence over graduate students. one had a habit of inviting students to coauthor which is

going to look really good on their resume. the offer came with an invitation to engage in sexual acts. they created the perception on the part of the graduate student if i say no, i will lose this professional opportunity. i've had any number of faculty students come to me. i've never seen anybody win their case. there's a saying that in order for a tenured faculty member to have consequences for their behavior, they have to be not just sleeping with the student but the student has to be dead at the time. it's a horrible saying but in some places, some institutions it's true. something has to be that bad and that documented and that obvious for something to go through the processes for the claimant to see a positive outcome in their favor. i had many people share that quote with me. the first time i heard it i was surprised. one of the issues you see is the outcome of our investigation is not in the university's interest. at the end of the day it's in the university's interest and being able to stand up open help

them see that is important. so when we think about due process rights, students do have a property and liberty interest. it's less subtle than that of faculty. they need some kind of notice, some kind of hearing. it's not that much different for faculty, only circuits disagree on the extent of that. there are three models i see out there currently, an investigation model, a hearing model and the hybrid of the two. this goes along with what we heard this morning in our keynote. so under the investigation model an administrator or investigator determines the facts, outcome and sanctions. this is the satisfies the hearing requirement under ocr and they use a preponderance standard. that can be appealed to a panel with the potential for a hearing but you have to meet certain standards for review. contrast that with a hearing

model where what you get from the investigation is a charge on the preponderance standard with a hearing before either a panel or an administrator who determines outcome and sanction, with an appeal to an administrator. often that's an on-paper review. the hybrid, they'll use a little bit of bit in order to effectuate a resolution. i want to be clear with what i'm about to show. i'm not saying that students should have less or faculty should have more. i'm saying we need to be aware of these things and i want an educated group looking at this and seeing what ways can we do this in the best way possible. and i'm not picking on these institutions. frankly will there a lot of examples. i could have gone many places. let's look at indiana university. the hearing model, the investigation leads to a charge. they will get a hearing if they want one. they don't have to have one. the adviser is to remain silent. they get confrontation of

questions through the panel. has to go through the panel to be asked. then you can appeal to an administrator and see the grounds. significant procedural area, sanction disproportionate. faculty however have an investigation model. this is the title 9 process. they can identify witnesses, silent adviser, preponderance determines the facts, findings, goes to an officer who makes the decisions, issues the finals, final facts and findings. you can appeal the faculty board of review but you have to meet the grounds. you see the grounds on the left. they also include the grounds on the right. but witnesses aren't called during this proceeding. there's no visiting -- revisiting the findings of fact. there's in fact very little confrontation at that phase. but the silent adviser in the process may read the party's statement. now there also can be a faculty process here. dismissal of a tenured faculty

member is recommended, that would be an additional step. as you're going to see, that becomes more of an issue of how do the policies work together. if an administrative policy says this person should be dismissed and then you go to a faculty process in which there's a clear and convincing standard, how does that work? and that leads us into some of the shared governance questions. at kansas, i have to disclose i went to the university of kansas, students have more process than faculty unless you're facing dismissal. they can have a representative of their choosing, administrator finalizes this. they can appeal to a guaranteed hearing. they can directly or indirectly question any statement but it is managed by the panel. panel has the authority to tweak that to make sure that it's not revictimizing. the result is a recommendation confirmed by the vice provost they can appeal the hearing, but there's not going to be a hearing during that appeal.

the investigation side for faculty is the same as students. and if it's less than dismissal it can go to a faculty rights board. they have to request a hearing. interestingly enough the board can proceed without a hearing. they can say we don't need to have a hearing on this. the appellate has the burden of proof and that's showing by clear and convincing evidence that the administration violated procedures. there's no restriction on confrontation if that hearing is accepted. so you have to meet certain thresholds to get there. and the result is a recommendation that's going to be confirmed or changed by the provost or chancellor. this is the zamir bbel case. in 2011 he's a faculty member at kansas found to sexually harassed a student. the sanction was two weeks no pay, denial of a yearly raise and pay for to complete the training. he appeals this to faculty rights board. they say no, we don't need to hear this.

so he sues. at that time the handbook said he would be able to go to a hearing. the hearing, as the university of kansas argued this was the opportunity to do that. and they won. and then they won again at the appeals level. you can see if dismissal is the result, then there's full due process, what we would normally conceive of that. no grounds of appeal required. provost must prove by clear and full and convincing evidence no restriction on counsel's participation. how does this -- how do these processes square if you have someone go through both. and this is really the tension between the hearing versus the investigation models. and i think it's interesting that we have lawyers at first really being the ones in charge of how that developed. versus back with workplace sexual harassment in the '70s it was the administrators that did this through their professional

networks to think about norms. lauren edelman's work on legal endogenaity, are the processes we're creating, if we look behind them, are they doing what the law wants them to do sore are they simply vehicles for avoiding liability, versus chuck epstein's work on legalized accountability, are they actually creating adherence to what the law wants. my evidence suggests a swing first towards formality. as lawyers got involved they said we need more, we want to avoid lawsuits. we need more of what we would consider traditional process. so this quote says previously this office had the authority to make the decision about whether or not the policy had been violated. in the wake of the dear colleague letter our attorneys decided we can't make that recommendation. we can only decide if it's worth a hearing. it's insulting. it goes in front of a hearing panel of students and faculty who ironly can't get on the panel until years of training.

there was pushback between those offices. but title 9 didn't, as a profession really changed dramatically in 2011. i would like to see greater professional norms in that profession. i'm wondering and i'm seeing a little bit of this, a swing back towards investigation. i want to talk about why it's very hard to train panels to understand the nuances of this. and i think there are efficiency concerns. if you think about the maryland surcharge and you want to do this in a certain way, how do you provide a hearing to everybody and what does that say about how many complaints are coming forward. also there's not really a requirement to do this. the law does not require more than an administrative process. and the law is clear that universities aren't under the same obligation as the courts or administrative agencies and the ocr requirements are clear on the due process issues. you default what's the greater risk here and both are

unacceptable but are we getting to what will address the problem and not just playing with liability. the key is correct execution but that requires well coordinated processes. typically these have been administrative university decisions and often not codified because they change every year. to go through a full faculty review and do this is very difficult. as you're creating best practices and i think it's a good thing, through more and more cases. the system is learning as it goes through. what happens when the processes conflict? this tenured faculty policy process conflicts with title 9, the extent of confrontation. is this one process or two. that's what bill was talking about with the choudhry situation. he reaches an agreement on what the penalty is. and once a lawsuit appears he's resigned and they're going through a faculty process. very clear the university didn't handle this well.

it's very interesting to see what's going to take place. penn state is my third example where there's no hearing for faculty. they have a hybrid choice model there. there are a lot of ways to get confrontation without being revictimizing. they can observe the other's interactions, post questions to one other through the panel, the outcome is appealable. they have an alternative hearing model, guarantees some traditional form of hearing of confrontation. faculty don't have that. i was able to find them on a website that says that formal investigation results are found in a written determination report. you may meet with the administrator separately to comment on the conclusions. and then yaw have an appeal to the vice provost. now i'm not critical of them for not having it codified and it being on the website, it just wasn't easy to find. how do they work together.

so in looking at that a little more carefully, that human resources policy for dismissal of a faculty members requires clear and convincing evidence. the online policy does not reference that. did they not reference 70 or after process? it's confusing. we're talk about an off-ramp to a simultaneous process if there's a procedural issue because sexual misconduct is governed under their sexual misconduct policy. this is so complicated that it's not clear to me the amount of collaboration or faculty shared governance went on in these situations. but it's hard not to think that we need adviser to help people through, not necessarily legal advisers but people who can understand and help people understand what these steps are. so what happens when they do conflict? well if the title 9 process results in dismissal and the faculty process does not because

they're using a clear and convincing standard, that's interesting to me. does that mean at berkeley choudhry needed to negotiate the faculty process before agreeing to the sanction imposed or how do they do that simultaneously. they're wrestling with that. in kansas the administration wanted to make the faculty processes conform but the faculty pushed back. it's interesting how that came about. how do we fix these issues? i do think it's possible to manage confrontation. penn state's hr 70 policy for dismissal of a faculty member talks about how the testimony can be obtained and gives the panel control over saying this is revictimizing or we need to do something. it's just not specific. i think requiring clear and convincing evidence to protect against procedural irregularities which is often the argue, well, we need this, if we don't have this, we're going to have procedural irregularities. why don't we fix the irregularities then. instead of having a standard that is criminalizing, i think

that's the important point, confrontation and the hearing i think in dismissal or suspension -- and the cases for students was pretty clear that that initial case was for suspension and they said if you need more, there might be more required. use of technology, questions of the panel, interrogatories for people who choose not to attend, using the investigation to pose questions back and forth so this isn't a one-time basis. but that defaults us back to the idea that we may need adviser to help people through this. more freedom advisers would be helpful if they're impartial advisers who understand these issues. it means they're advocating in their behalf but with an understand of what the process is and how it works. i believe it is possible for consistent evidentiary standards. michigan state says it will be satisfied by clear and convincing evidence unless a different standard is required by law.

that's pretty forward thinking that that includes that. i don't believe it's all or nothing. we need to care about perceptions because procedural justice matters. if the system is not legitimate, how do we get people to come forward to report that matters. i'm not saying we need to change it one way or the other. academic freedom and tenure are rights, but we have a responsibility to report faculty predators. in every situation i talked to they knew of people who were doing these things and in some instances they weren't able to do anything about it and so they sort of, sort of pushed them to change what they were doing slightly. maybe it's not happening at the house, it's happening at the doff fee shop instead. i think law faculty have an important part to play but they have to understand that the law's deference to the university processes. they have to understand the impact. it's hard to have a conversation about it when we're talking on two different planes. i think it's possible but i

think nationally we need to think about how to have that conversation. i think law faculty can advocate for shared governance and collaboration of these things. i'm not suggesting they need to be the same. i agree with the keynote earlier today about different sanctions may require different possible sanctions may require different processes, i'm not suggesting one process. i think faculty need to review their home institution procedures. and really the way i see this is that, you know, earlier one of our presenters said that it's not about the process, it's about the harm. and i agree with that. for people to see the harm they need to understand that some of the processes are being used in different ways. for me the entry point might be let's look at the processes and let's understand how this is impacting everybody and let's figure out how we can make decisions for ourselves. and to create some learning and

to ensure academic freedom and the limitations that take place. and i'm very happy to take questions, even if it's this one. thank you. >> so i also want to echo everybody's thanks for the opportunity to come and participate in this symposium today. i feel like i've already learned a lot and have ten new projects i want to go home and work on with the time i don't have. but i'm excited about that. what i would like to do is shift the conversation away from talking about staff and faculty harassment back to peer on peer harassment. but more importantly i want to shift the conversation away from talking about students rights or limiting that conversation at least to the rights of students accused of misconduct and start

to think about what the rights of of the survivors and the complainants in these cases. and then i'll work my way around to also talking about what i see is a potential role for at least some law faculty in some of these cases. i started thinking about this project after reading the harvard law and penn law open letters discussing the light rights of the accused students and discussing the rights of the university's self governance, academic freedoms. and what struck me as a clinician and as an attorney that previously represented domestic assault survivors is i felt there was a missing piece. there was no discussion about the rights of those students. you know, there's discussion about the need for attorneys to represent the accused but there was no suggestion that perhaps students, survivors and victims also have the same needs to counsel or the same needs to certain processes and procedural safeguards and rights.

that's around that. i'll start by talking about specific legal needs of sexual assault and ipv survivors, talk about the work of current clinics, discussion of what i think they might make a good fit and then some additional roles of those at the law schools doing this work. for student survivors, an awful lot of them who are 18, 19 years old, brian did a good job of talking about how complicated some of these processes are and suggested that some faculty and staff going through it who might benefit from some advisers. i would i agree and i would argue that it's as complicated it is for faculty or staff going through the procedures, imagine what it might be for an 18 or 19-year-old survivor of sexual assault going through this process. i tend to think of these rights in four different stages. the first of which is prereporting decisions. the second of which is investigation and interim measures.

the third is during the ajudd occasion hearings, trials, that kind of process and the fourth being appeals and lawsuits. i'll talk a little bit about each of those. so the first key issue that i'm seeing in the students that i've been working with is information before they decide to report. and the complete lack of confidential information and whole information that's available to them. i have a lot of students who i see at different schools who have ended up in a system that they made no kind of informed consent decision to participate in. part of this is through the mandatory reporting policies that a lot of universities are enacted. i'm not going to get into that discussion expect to say that as long as they exist we have students who are caught up in these accidental disclosures without having made the decision to actually engage in the system. and it's not limited to the campus systems. you know, depending on your

state. for instance in california if you go to the hospital to seek medical care for sexual assault, that's reported to the police even if you never intended it to. if your police has an mou with the university, that could be reported to the university. some universities are automatically reporting to the police. so without any information you may find yourself engaged in completely different systems and not fully understand your rights. so by having the opportunity to talk to attorneys before you make those sort of decisions before you decide who to talk to, a victim can actually learn about each system, the pros and cons, you know what kind of relief might be available to them what kind of detriments might be provided through those systems before they choose to engage in them. at lunch somebody had mentioned, i can't remember who, one of you two, about the great harm. a lot of our student victims and survivors are reporting that they experienced more harm during the process than the actual assault.

and as long as that is the case i think it's very important that students who engage in the systems do so deliberately and with sufficient information to make those sort of decisions. i think prior to reporting a comprehensive legal screening is really key. and that's because a lot of these different legal options and systems are confusing and overlapping. and they may implicate one another. so for instance, the student who may need financial support through victims compensation will need to go through the criminal justice system. a student with immigration issues implicated by the assault in some capacity also may need to report to one or multiple systems. a student who wants to drop out of school and worried about the impact on their grades or loans may need to report to the university. i think comprehensive legal screening will allow students to understand or think through all of the ways in which their legal

rights may be implicated by the assault that happens, you know, before they decide what to do next. i think the other thing that can happen is during that screening they can receive really detailed information about their options. so understanding that if you go to the police this is what a police investigation looks like. you know, this is what the standard is before there will be a prosecution. if they are asking you to get an evidentiary exam, for somebody to really fully explain to you what that involves in every graphic gruesome detail. what the odds are that the rape kits will have any evidence that's used any capacity and whether or not they'll be tested. i think until we tell students that a lot of students feel very betrayed when they're told to go do a, b and c and nobody tells them what to expect. understanding what discovery would look like in the criminal process and the campus. understanding whether or not they'll be subject to cross-examination. this is good for students interested in retraining orders, depending on what state they live in and that relationship between them and their

perpetrator. if you get a restraining order, it makes it quicker. what sort of questions will be posed to you during a cross-examination. i think having all that information with a particular -- particularly looking at the privacy and safety concerns and really thinking through those implications. i think advocates are amazing. i work with some unbelievably skilled and dedicated advocates. most of the campuses i've worked on that's the case. i have a great advocate i worked with who is getting frustrated. she feels like she's more and more been put into a role where it's necessary to give legal advice because the situations are becoming more complicated. we need to work with advocates and recognize the limitations they have and have attorneys who come in and provide a thorough

legal analysis of each case to be very honest with students about what their case looks like, how to gather evidence and to think through really the same issue for me other client. what are the chances of success to meet the goals identified by the client. so that's kind of the first. i look at -- i think that's key, access to qualified legal counsel before the reporting decisions are made or accidentally triggered. the second step is during investigations within and this includes interim measures. ensuring investigations are appropriate. i mean i know everybody in this room has probably read reports about mistakes that campuses have made and how they've done their investigation. certainly the department of justice has come out and talked about police departments in montana all the way to baltimore, maryland, and what happened in some of those investigations. if you have a survivor, particularly a student survivor have an attorney with you, hopefully that is someone who

may be able to help mitigate some of those troubling trends while they're happening. you know instead of waiting for the report to come later, instead of waiting for a victim to have to file a lawsuit against a university, address the issues as they come up during the investigations. some obvious examples include -- i've had students who have been asked to sign no prosecution letters. and the students believe that means they've waived their right to prosecute. we have to explain to them there's no actual right to prosecute and b, there's no waiving away a crime you've experienced. this is something law enforcement was doing. i think they felt it was well-intentioned. they thought this was we have a letter approving this the victim doesn't want to move forward so nobody can blame us. but for a lot of the student survivors they're not going to make the decision whether or not to engage in the criminal justice system the day or two following the attack, perhaps not even weeks after. so letting them know what the statute of limitations are, what their options are i think is important.

polygraphs. we still have some law enforcement, you know, that have asking victims and survivors to do polygraphs. it's not appropriate. in fact it's not allowed in most states but it's still happening. having an attorney with an student at that time it's important. in the campus it's important as well when you have campus administrators who perhaps well meaning will ask students do you understand that you're potentially ruining the life of another student, have you thought about this, have you taken your responsibility in this, don't you think this is a hookup culture, these perhaps well meaning but really harmful victim blaming statements. having an attorney there is someone who will be able to remind, kindly remind whoever the investigator is that those questions are inappropriate. the interim measures are also key. if you're on campus and you report a sexual assault you're

entitled to certain interim measures. while i find that the no contact orders seemed to be readily entered by behalf of students, other measures are not always offered or discussed. for students to understand that may be able to switch class,s, may be able to take a leave of absence if they need it, student loans, change in dorms, change in rooms, extracurricular activities, all of those things should have offered and advocated during that investigatory process. if there's an attorney involved they can help update those. it's not uncommon to have student advisers who initially student survivors who initially following a disclosure are doing fine in school and then a few months later finds that they are not doing fine anymore. to be somebody update the interim measures as necessary. retaliatory behavior, this is something i've seen quite

frequently and students aren't necessarily flagging it for the administrators. but during an investigation, we have student victims, student survives who have experiencing high levels and low levels of retaliatory behavior. everything from the respondent himself or herself like directly threatening to students to their friends, right, fraternity, sports team, dorm, whoever. you see a lot of this on social media which to me as a lawyer indicates -- i've written evidence of this. this is great. let's go to the school. but i have investigators saying we're not investigating that. we're investigating her allegations. and i understand that but you have to investigate the behavior. ocr specifically speaks to that in their "dear colleague" letter. i think that's another role for an attorney. and last of course is to provide the appropriate referrals to understand again who is mandatory reporter, who is not so that you don't send students accidentally into situations that are out of their control and to be aware of different referrals on and off campus.

the next stage i look at is the hearings. and as has been mentioned just now but also much earlier today, this process varies so widely at universities right now that it's hard to even talk about it as one single thing. however, regardless of whether a school is using the investigator model, kind of a civil model or a model that more closely resembles criminal prosecution model, there's still a role for attorneys in almost any of these. i think the first role is just making sure it's set up appropriately. if you're at a school that allows for students not to have to sit in the same room or have a partition or to be able to use video, that's something that you can advocate for your client to have set up. preparing students. so i've had different --

different schools i've worked at. i've had schools where attorneys fully participate. i've had schools with attorneys are allowed to be there but they have to kind of pass notes. and i've heard from colleagues that there are schools where attorneys are specifically banded. regardless there's still a role for lawyers representing survivors in that they can help survivors get ready for their hearings. i would never walk into court without preparing a client fully. and i don't think this is any different. i work with students, you know if i'm going to do a direct and a cross obviously i prepare them for the direct and the cross. i think that's more important if i'm walking into a situation where i can't participate, i can't talk for them. help. helping students figure out how to advocate for themselves, how

to tell the story of their assault in a coherent manner, how to understand what the legal standards are, how to explain the ambiguities, how to explain the impact of trauma on memory, whether or not we can bring in an expert to explain that to people, there may be time gaps in student victim east recollection of what happened but that's normal. perfectly normal. not an indication that they're lying. 18 and 19-year-olds don't have the savviness to think about how do i bring in an expert witness to explain the neurobiology of the brain. and its response to trauma. i think that's where attorneys really need to be involved as well. and the actual representation in the hearings to whatever extent allowed. i'm always surprised how many times, especially if there's a really good criminal defense attorney in the case with me, they will say beyond a reasonable doubt four or five time. i'm like it's preponderance. 50/50. we got it. it's habitual. it's smart lawyering. they're trying to confuse them. they tend to think even if they've been trained about a beyond reasonable doubt standard

but it's not the standard that should be applied. it's important to have an attorney in the room or to prepare a student to remind everyone we're talking about a preponderance standard. there's also rules of evidence. you'll hear stories from students found responsible for sexual misconduct that they think it's unfair, there were certain questions that were not asked of the complainant. i will tell you there are equally if not as many situations where student victims will shay they were asked unbelievably inappropriate questions. there's no rape shield law. i've sat in the room before when faculty has asked students were you a virgin, how many times have you had sex before, what did you wear that night, are you on birth control. all of these wildly inappropriate and nonrelevant questions that you're asking a teenager to explain. half of what i do for students when i prepare them is remind them they are the right to say i respectfully choose not to answer that question.

a lot of them don't realize that going in. so i think preparing them for that. you know really preparing them to have to educate the panel if necessary, if the panel is not already educated. obviously representing survivors in hearings. if you have an attorney that's representing you we that can do so in all of the overlapping systems, not just the campus system but if it actually goes to criminal court, which very few of my cases do but when they do we have the ability to go in and fight for privacy, fight to prevent the counseling records from being subpoenaed to keep the safety and privacy issues in order. restraining orders family civil, housing, employment, so many different overlapping legal issues that you can represent a client in. and that last section is appeals and lawsuits and this is probably where i'm the most fascinated and appalled right now. i now work in california and it seems to be ground zero for

these lawsuits that are popping up all over the place. at least that's what i've seen. the first appeal obviously you've got internal appeals through most schools. and so not stopping once you get through the hearing but helping a student respond to an appeal if necessary or responding for them if you're able to but also helping student survivors file the appeals in the cases where they did not, you know, get the sanctions that they were hoping for and helping them frame it within the requirements that are set forth by the college, which sometimes are very big but sometimes have very specific. and again it's asking a lot of, i think, young people to have to figure out how to file a legal appeal on their own. there is this new wave of lawsuits by respondents. we just had a case where i work, it's not my case and it's public so i can share that with you, uc davis student who had been sexually assaulted. her rapist was found responsible by the university. it did actually go to a criminal case.

after two hung juries he pled out. the day that they sentenced him is the day that he filed a lawsuit against her for defamation for calling him a rapist on facebook. so we were -- a lot of people kind of all jumped in and they were able to find her an attorney pro-bono, which these days is a bit of a miracle. and fortunate lit, you know, that case is now done. she was able to pass it. but that's happening with increased frequency. we help these students get through the process and suddenly they're looking at federal court or state court. even if they win they still have to find an attorney to represent them. i think it's important -- i warn my students that that may happen. if you go through the campus process, particularly in the ucs right now, you can fully expect to have the university sued and possibly to be named separately as a defendant. and if you're not named specifically as a defendant in those lawsuits, you may have your privacy rights implicated. so the other thing i've seen

increasingly particularly in california is universities are being sued by respondents and they're including identifying information about the survivor in the complaint or they are attaching exhibits that have identifying information. and while on one hand you may think no big deal because who trolls through federal and state complaints, right. but the reality is, it's a great example. there are organizations right now that are reposting them on their websites which makes them a lot easier to find when you're looking. if you're that student that thought you know being the student that didn't mean to report to begin, haven't decided. you go through all of this, then you're being sued and now it's on these national websites and everybody knows who you are because even if it didn't include your name it said you were first year on the soccer team dating the third year and you're at a school where everybody knows who that is, then it gets in the media and

everybody is talking about everybody else's rights. that is information for the survivors themselves, if they want to sue the perpetrator, the school, file an ocr complaint, that's not something i do for students but i make sure they know their rights. and that they know who they can contact in order to go through with that. so i'll shift really fast -- how am i doing time wise? >> close to time. >> i'm going to be so fast with this. all right. so i just want to throw out there, there are around 100 clinics, law school clinics right now that in some capacity serve victims of partner violence and sexual assault. they're already there. they vary. some are family, some immigration, some more broad gender, there's now ooh sexual assault clinic. they're out there. they have attorney-client privilege, specific training in the dynamics of domestic violence, tra trauma informed interviewing, incorporating privacy and safety. a lot of the training has occurred and i would argue that

some of my students are more prepared than some of the pro-bono attorneys. we're often located on campus or near campus. i think it's important if you don't already have one to get an agreement with in-house campus that you were not a responsible reporter on your campus. but there's a strong argument to be made and i've been able to make it successfully have attorney-client privilege and that trumps everything else. and so far shockingly in-house counsel, lawyers also believe in attorney-client privilege so i use that particular privilege. i find there is added value of students. my students understand student culture a lot better than i do. because they were students more recently. and they understand technology a lot better than i do and that becomes crucial to so many of our cases. and professor winer in oregon argued that the use of law school clinics in this capacity could be thought of as actually

an intern measure you should be offering students. thinks specifically about what the limitations look like. do you as a school want to say we don't want our law school students to represent survivors in the adjudications on campus but perhaps you're fine on restraining orders or appeals or the prereporting stage. so i think determining the scope and limitations is important but it's a resource we really need to word and in considering it realize that a lot of law schools are doing this in some capacity and have those people who have that experience working with those student survivors start participating in the policy procedure and development. being part of this public conversation, right, talking about the implementation and coordinating meetings, engaging in academic research, perhaps engaging in more media presence so that when harvard law and penn law offer these letters, nancy has already done this but

offering other letters and legal analysis looking at the legal rights from the survivors' perspective. >> great. thanks. i am so thrilled to be here. it's really exciting to see so many people whose work i have read and followed for so long. i am going to talk a little bit about this narrative that we have that fair process and victims' rights are a zero sum game on campus. and this feels particularly timely because less than 48 hours ago the office for civil rights released a voluntary resolution agreement with wesley college finding that the school had violated title 9 in its treatment of a student accused of sexual misconduct. so this was a case where the allegation is that three male students work together to tape a female student having sex.

the sex was consensual, the taping was not. and one of the accused students who was suspended brought a complaint to ocr. and if you've read the dear colleague letter, the finding actually shouldn't be surprising at all. wesley did a number of things that are explicitly called out that is really not okay. they didn't let the guy know what he was accused of. they didn't give him access to the record being used in the decision. he showed up in what he thought was an initial education meeting to find out it was actually his hearing. i think, though, that this really pushes against the narrative that we see publicly, though, which is that the recent move to protect victims on campus and particularly the federal government's intervention has been purely at the expense of students who are

accused of these violations. we see this in the language used. we hear about an overcorrection, a pendulum swinging. that suggests that there's one axis of justice. victims are super happy over here and ccused students are super happy over here and you can only kind of move like this. i think that's really not the case. and i'm going to talk about why i think that is and also why i think that really matters and why all students are hurt by this narrative. i first want to be up front about some of my assumptions here because we don't have a really good picture nationally of what's going on on campuses either with treatment of victims or with treatment of accused students. i'm going to resist any broad generalization about a national swing because, you know, i just got off of a campus and i'm sure what was going on at yale was very different than what was happening at every other school. i don't want to generalize from this that. that being said i worked with survivors on campus for a long time and i know many of them are mistreated. i'm also assumed there are

procedural violations for accused students. i say that based on the pleadings that we're finding in federal and state courts, some of which i assume are not meritorious and some of which are. i say that based on the fact that victims have been tell us for a really long time that schools often mess this up, often many of the complaints that we hear from accused students are exactly what we hear from victims too. things like i didn't having says to the record. things like the decision makers were biased. so it's not surprising that it hurts both sides. i am also assuming that there is a large risk of a racial discrimination in these disciplinary proceedings for many of the same reasons that the speaker mentioned earlier because we have really solid data on the k through 12 through ocr. welcome to the criminal justice system.

i want to flag that this is something that worries me and is often left out. we also know that survivors of color are regularly discriminated against in these proceedings. those are my assumptions and i'd love to hear pushback on that because it's really hard to get a robust picture of what's going on right now. so, here's why i think that there is a way to draw a connection between red and blue without saying that red and blue are exactly the same, without saying that we're all going to stand around and hold hands and sing together, that there are real commonalities and those are important. so, i think the first is that there are real shared values. this is i hope going to sound very obvious, but if you are working for accused students or working for sexually victimized students, it's because you think that education is really, really important. and i think that actually the

antidiscrimination law is our best articulation of that in federal law. you know, obviously, this is not the case in some states, but there is no federal constitutional right to education. the most robust vision of the importance of education and the importance of protecting those opportunities is found in civil rights laws like title 9. and i think that that is something that i hear ignored by some advocates for the accused who i think forget that the victims are students as well and that their opportunity to learn and to flourish is equally important. i also hear some victims rights advocates, in attempting to distinguish the sanction of suspension from the sanction of incarceration trivialize the importance of education. i'll talk about this a little more later, but i think that being suspended is not as bad as being incarcerated or deported or having your parental rights sanctioned -- sorry, terminated

-- but i at the same time think that being suspended is really, really bad. so, i think that we can all acknowledge that. i also think that there is -- both sides share strategic ends and are both benefited strategically by fair process, and i mean that both on a micro level and on a macro level. so, on a micro level, one, clients obviously benefit from fair process when it is their rights that they're concerned about, but i also hear all the time from victims rights attorneys how frustrating it is when the school violates the rights of the assailant, and then their client is pulled through another disciplinary hearing, is pulled into a lawsuit, is pulled into an ocr complaint that drags out the process for a really long time. so, you know, obviously, we can sort of be dismissive and say that any given clients' interest is -- when the other side's rights are violated, that they might win in the short term, but

i think in the long term that's really not what we're hearing from attorneys. on a macro scale, we all have an investment in the legitimacy of these systems. and you know, we hear this from advocates for accused students all the time, that part of the reason why they think that their clients' rights are being violated now is because for so long, schools weren't respecting the rights of victims, that there has now been in their minds this political overcorrection. and i don't buy the overcorrection language, but i do think it makes sense that schools who have been criticized, because they've been doing such a bad job for survivors for so long would have reason to be anxious about finding someone not responsible. and on the victims' rights side, the lack of community buy-in to these procedures is leading to this rash of mandatory referral bills across the country to require schools to refer all reports to the police. because the idea is that if schools can't do this well, i

guess we just have to get the cops involved. and there are so many reasons why that is a bad idea. i think the most important is probably that survivors tell us that they simply would not report to anyone then. and lastly, i think that there is real shared benefit under the new legal regime for both victims and accused students. and this is complicated. sort of the way that i would frame it is that ocr and the clery act have raised the basement for what procedural rights can look like on campus. they have in some ways kind of changed the ceiling, specifically around the preponderance and confrontation, but overall, the move is upward, the tide is upward. and i think that the leslie case is going to be really important in proving this. so, we -- i imagine that this is familiar to a lot of you, but constitutional protections for accused students are really just not robust enough. so, they mostly only apply to

public universities. and what we know from gospi-lopez, which was the supreme court decision a year before matthews and adopts sort of a similar framework, is that students are entitled to some kind of notice and some kind of hearing. and some is not that great. and i think that we can all agree, using the principles embodied in civil rights law that students deserve a lot better. and ocr has lived up to that. so, if you look at the "dear colleague" letter, they require better access to the record than you could possibly find under the constitution alone. they require more robust notice. and most importantly, they put both parties on an equal playing field, which means that every time that victims gain some rights, that means that accused students gain rights as well. and i think that it is remarkable that right now a student who's accused of gender violence on campus has probably

the most robust rights under federal law of any classmate facing disciplinary hearings. and that's not to say that it is good enough. i think that that is an open question, but that is a remarkable position to be in, and i think that means that rather than using the clery act and the "dear colleague" letter as these sort of stand-ins for this terrible federal assault on accused students, we should be seeing it as a start to a really important conversation and a pretty good base line. let's quibble over the details, but this is a movement in the right direction. so, you know, i want to ask why, then, we don't see ocr's efforts as protective of accused students. and i think that a huge, huge part of this is rape exceptionalism. and i want to talk about sort of that generally and then specifically about the influence of criminal law here. so, everyone in this room knows

that there is a long and ugly history of american law providing additional obstacles to survivors of gender violence that are not required for people alleging other kinds of harms. and michelle anderson has a really wonderful article about this in "the campus contacts," talking about harvard's long policy of requiring corroboration, having a shorter, you know, window in which a rape victim could report than a roommate who is punched in the face, and that long reflects the longstanding patterns in criminal law. but i think that something that i'm interested in that's going on here and which some of the other panelists have alluded to is the role of criminal law in justifying that kind of exceptionalism, because in so many conversations we have about gender violence, we talk about rape as though it were inherently criminal, that that is its defining characteristic. and i think there are a lot of

reasons for that. i think that that's about the narratives we have access to. i think that's about the dearth of civil options post-morrison for survivors, and i also think that something is going on there with the primesy of male anger about violence against our women which is best vindicated by the criminal law rather than the actual means of actual survivors. but, so a whole constellation of causes there. but what this means is that we have this instinct, that when we hear about gender violence, that we need a response that looks criminal. and often that's presented in a way that seems supportive of survivors. so, we hear legislators who propose mandatory referral bills, saying it would just be -- we wouldn't be taking it seriously enough if we didn't involve the police. i don't use the word seriously about gender violence, taking it seriously, because it is so easily co-opted.

but you know, as lovely as that impulse might seem, it also means that we expect for disciplinary proceedings for gender violence to look like criminal trials, even though that is obviously not what is required under law, it doesn't make sense ethically or practically. schools simply don't have the resources to do that. and i think that that is obviously a tremendous shame for a lot of reasons. that ends up putting a real burden on victims who are subject to these, you know, increased procedural burdens. i also think it means that we're leaving a ton of students who are facing exclusions out of the equation. i mean, there are most students who face suspensions right now would do better if they had the rights that are promised under the dear colleague letter. and when we silo the conversation to just be about gender violence, we're both hurting victims and really

stunting a national conversation about the importance of procedural protections for accused students. you know, we can do a lot better than that for everybody. and you know, i think that there are a couple of ways forward. i think that one is that i'd really like to see more discussion, as we heard about in this morning's keynote, about transsubstantive procedures. and i don't think that that means that you can't have specially trained advisers who have expertise in, you know, working with survivors of gender violence or students who have faced other kinds of particularly traumatic harms, including, you know, racial harassment and harassment on the basis of disability. but i do think that if we can start talking about procedures for all student-on-student misconduct as a package, we can resist that criminalish impulse

and we can help accused -- we can sort of build from that energy from that national concern about fairness to students accused of gender violence to support students accused of other kinds of harms. it's also important we sharpen our legal thinking pencils and push back on the misinformation that is circulating about the legal rights or the legal implications of gender violence claims so i want to talk really quickly about some of the quasi-criminal claims that have -- i've seen used by groups including fire which is essentially that any accusation of gender violence has a quasi-criminal import to that language comes from a civil confinement case in texas and it was part of a string of due process cases in the 20th century that said that here are

sanctions that are worse than the usual civil outcome but that require clear and convincing evidence. again, deportation, civil commitment. and the -- i've seen a number of arguments out there, including last week in the "washington post" that there's something about rape that is also quasi-criminal even though our procedural due process jurisprudence is responsible not to the harm but the possible outcomes. and i'm not seeing a lot of pushback on these bad legal argument arguments. so i would love to see a more careful and a more deliberate and honest conversation about the actual shape of the law happening publicly. so that is to say that i'm

deeply optimistic that we can find comen ncommonalties and ca benefit all students together with fair process but we have to jump in. [ applause ] >> thank you for those incredible and impassioned presentations. i'll turn it over for questions. >> i teach -- >> i'm going ask people to use the mic. maybe it's possible to -- yes. >> i teach civil procedures and civil focus on procedures -- it's not on? >> excellent. i think it's on now. >> i was just saying that i teach civil procedures so the focus on procedure clearly is an

approach that -- >> can't hear you, the microphone must not be on. hold it to your mouth. [ laughter ] >> okay. should i start again? all i'm saying is that the focus on procedure certainly makes a lot of sense but it seems to me that procedure is something that's inherently tangible. so for many of us it's easier to go to. and what i worry about is that we forget the substance part of it, too and it relates back to our conversation at lunch and this morning, an idea that this could very much be a public health issue and an issue that focuses on harm. so the question every is how do you each one of you feel about restorative justice? because that would be the other direction, right? where the focus will be to

restore folks to the position where they were before and so that's one question. and i don't think you can do process without the support and i like to hear your comment on that, too. >> i have so many feelings about restorative justice and no conclusions, be forewarned. i spent a year working on an article on this but holly was generous to guide me and i have less idea of what i think is the right answer than i did when i started. i know many survivors say they would like an option that is less antagonistic. that has more focus on educating the person you hurt them, on community accountability. i'm deeply worried that there are very gendered expectations

of survivors to be good women who are forgiving, who give second chances, who value coming together over their own protection. and i think maybe the answer there is it would be a nice option if you felt like it wouldn't -- if you trusted schools to do it well and if you thought that the other options would truly remain on the table for survivors. >> can i add to that i thought about restorative justice in this context and what i would add to what al saexandra just s is that, you know, first as a doctrinal matter, restorative justice is absolutely possible under title ix. and, you know, there is a fair

amount of, to my mind, misinformation out there about the idea that ocr or that title ix that schools would risk title ix but putting restorative justice processes in place. and i don't think that's supported at all by the actual law. but, you know the -- where that comes from is fact that there is a prohibition in the 2001 revised guidance under title ix against mediation. and so one thing that i think is important to keep in mind about restorative justice is that restorative justice, it's not

mediation, right? there are two different things. and the key difference between them is that mediation is trying to determine what happened. is trying to -- is a process for finding the facts of what occurred. and restorative justice is what you do to deal with -- deal with the situation once the facts have been found. so i think it's very important. i thick you can do restorative justice under title ix but that what's most necessary is making sure that you are not using restorative justice as a fact-finding method and that you make it clear from your process and set up all kinds of procedural safeguards to make that separation very, very

clear. >> i agree with that. as a mediator and adr faculty member, i lovre storive the justice. the question is who does it? what are the guidelines for it? and are we sure we're not using it to avoid responsibility? that it's not a mechanism for channeling casing away from the official process. i agree that rj is not mediation but that definition of mediation isn't how i practice so my goal is communicating effectively. i don't have any interest in whether they settle or not but i'm a little different so i think again it gets back to who's doing it? how do we know we have the right people trained effectively to help people through what can be a difficult process but very restorative." >> i would answer your question and doesn't at the same time but it's important to remember that the university's obligation to

remedy the effects of discrimination, the whole is greater than the sum of the parts. so that can be having a robust care advocate or victim advocate program. it can be making sure a student doesn't lose his or her final aid. it can be counseling, academic tutoring. the whole is greater than the sum of its parts and the obligation of the university is to remedy the effects across all of those domains. >> i would, sorry, add quickly as well that i agree with alexandra and nancy both and i'm very wary. i remember working with clients back when mediation was the norm and we were putting young survivors into mandatory mediation or mandatory counselling with their perpetrators so i'm a little scared about that but i'm a big proponent of informed consent for any process and if that's an option, that may be an option clients want to see.

uniformly, all the students that i work with just want their lives to go back to normal. that's their goal. their goal is not necessarily to even see punishment, they just want to go to clasds, go to school, go to the cafeteria, not see their perpetrator. they want someone to acknowledge that what happened to them was wrong and they want life to go back to the way it was. so if restorative justice helps in that, particularly in identifying there was a wrong and supporting them in that then i think that could be an option but it's something we should be careful about. >> [ inaudible question ] addressing the cause of the wave of sexual assaults we're seeing and i know this is well beyon