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 argument, 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 adjudication 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 classes, 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 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. 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 primacy 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 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 commonalties and can 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 i have 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 alexandra just said 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 comes from is the 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 do think you can do restorative justice under title ix, but that, you know, 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 in 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 love restorative 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

channelling cases 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 add one thing, it answers 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. again, the whole is greater than

the sum of the 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 class, 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. i know this is well beyond the charge of this panel, but you're all in the weeds, you've done this work for so long, for a long time and for -- and done it quite well. so, i'm wondering what you think, if you think that there's anything that you've seen that

you would like to suggest as a best practice for schools and going forward on the prevention side of if you have a thought to share about what might be causing an increase, if there is an increase, in these waves of sexual assault on campuses. >> i'll take the opportunity to -- because i'm probably the person on this panel who's spent the most time thinking about this. since i started in 1995. so, you know what i would say is that the best practice that i would like to see every single institution do is to develop a coordinated community response team. and that's almost a term of art these days because it's used by the office on violence against women for many of their grantees. it's a grant requirement.

but it's -- it's not -- it's just a well-functioning committee, you know? in the parlance of academia, it's a well-functioning committee, working group, some -- a body that is expected to last essentially forever but that is charged with making sure that it has its finger on the pulse of what is going on in this area. and that gets you so many things. and some of them have to do with response, right? but some of them have to do with prevention, at least the way that we all think of it. but i actually am totally convinced by the public health approach which says that prevention -- it's all prevention, right?

there's primary prevention, secondary prevention and tertiary prevention and it's all prevention. and therefore if you're going to have a really comprehensive prevention approach you need to have all of the people at the table who are doing the primary prevention -- everyone can't do everything, right? so you have to have the people who are doing the primary prevention, the people doing the secondary prevention, the people doing the tertiary prevention. you have to have a table at which they can all gather on a regular basis to make sure they are coordinated and that there is clear community buy-in for whatever it is that they are advancing. and, you know, college campuses -- we do committee work all the time. i mean, we don't do anything without a committee it seems like, right?

so this should be a really actually easy thing for us to do but it's actually been something that i've seen a lot of resistance to on college campuses. so that's part of the reason why i press it at every opportunity that i have. because, you know, even in terms of policies or in terms of investigations if you have a policy that someone has just written and put on your web site, you have a dozen people who are going to get involved in implementing that policy if you ever have a case -- and you will have a case i mean, look at the statistics, you will have a case. and so if you don't have community buy-in to that policy and if nobody knows what that policy is, the moment they try

to implement it, the wheels fall off. and so it just leads to all kinds of bad results. so, you know, we need a committee. we all need a committee and it needs to be a good one that is invested and that does its work. >> i guess the only thing i would add is that i think it's crucial that schools think about this as an issue of public safety and public health but i also think anti-violence efforts have to be part of a larger anti-subordination project and obviously that's going to look different on each campus but i'm worried about the ways in which the framing of the issue as purely an issue of safety and health allows us to forget about the fact that it's not unsurprising there are high rates of violence against women at schools where there are almost no women on the faculty, at schools where women don't speak up in class.

and those are in some ways harder questions but you can't solve one without the other. >> and i completely agree with that but i would also add on a completely different side of it, affirmative consent needs to be part of sex ed. i have students now who are working on a project for training for high school students and i'm inspired by this because i think we can't wait until they get into college, that's great. but i think reframing what sex is supposed to be and what affirmative consent is will largely help the students by the time they get to our campuses. >> i'd like to see an understanding that this isn't a -- something that happens here but not over there. or in this place, but there's not a problem here. that this is more systemic than that and i would like to see us keep this rooted in diversity education as an educational