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. span where history un fold s daily. american history tv in prime time continues tonight here on c-span3 with the look of alexander hamilton. the oldest house in manhattan and then how the musical follows history. then the discussion around the legacy and tonight at 8:00 eastern. this week washington journal is doing on battle ground states and tomorrow the focus is pennsylvania and thursday florida and.

iowa on friday. >> as the nation elects a new president in november, will america have the first former president as first gentlemen? learn more on the fluinfluence presidents by the first ladies. that's the look at the impact of every first lady president. it's c-span series and the first ladies. each chapter offer a brief biography and then the photos. first ladies in paper back and published by the public affairs is at the favorite book seller and also as an e book.

next sexual assault on the campuses. this is about two hours. >> 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 chi catalupo at the end, associate professor at barry law school. we're happy to have nancy back. along with william kidder 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 paper "below the surface of the water in the title ix iceberg, sexual harassment by college faculty." 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." kelly behre is director of the family protection and 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 alexandra 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 start. >> i think that i am supposed to start. bill and i my paper, 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.

what we were looking at was research on the harms that come to victims and survivors and we looked at the incident rate of faculty sexual harassment and faculty of graduate students and i will explain that in a second. 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 faculty. 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 ix 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 touching 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 on serial harassment or the 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 officer, overseeing a title ix 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 and 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 ix 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 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. or part-time professors et cetera. but if we focus on the federal and state termination cases, basically by a 3-1 ratio, the universities have been able to successfully defend their termination of the faculty member. the common themes, each of the cases that involve a university losing, it's kind of like the tolstoy line about how happy families are alike, and each unhappy family is unhappy in their own ways. in each case where a 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.

so 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, you know, maybe 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 judgment -- 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. so the data we've looked at, both the uc data and impressionistically from others bears that out. the number of cases that involve a formal privilege and tenured discipline hearing are a small fraction of the universe of cases that involve an allegation and investigation. those cases in turn are a modest fraction of the total universe of cases that we think are what's 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. dirkheim teaches us that when ethical norms are being transgressed, they're being violated, that's the most conspicuous moment at which the meaning of those 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 a number of faculty have been 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 where a professor killed another professor, but went to the gallos 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 report incidents, a chilly retention climate. again, this is especially so within stem 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'm not trying to check my e-mail. so i also want to thank the conveners for such an engaging symposium. my remarks are really going to meld very nicely with nancy and bill's presentation. and i need to start by some commentary on my power point skills. i'll let you decide whether that's true for me, or not. i'm looking at university processes. they get quite complex. so i needed some language, but nonetheless my power point skills -- anyway. it's been quite nicely established here that we have widespread sexual misconduct, widespread nonreporting, and ineffectual institutional response. and so complainants are unhappy

because their complaints are not being taken seriously. they're not being investigated properly. they're feeling revictimized. respondents and their supporters say the ocr are promulgated without notice and comment, that they have limited confrontation of witnesses, limited right to a hearing. and 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 it include an investigation for administrative purposes. concerns about lack of full representation by legal counsel. concerns about a lower standard of proof, meaning preponderance versus clear and convincing. what i'm arguing here is faculty has a greater interest in continued employment than students do in education.

especially since there's some contra contractual guarantees. and also, universities may be infringing on some governance issues when they work to apply administrative solutions, and create consistency with faculty processes. and so there's a tension there between efficiency and procedures. and we need carefully designed processes so that these 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 these 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 prevalence of sexual misconduct by the 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 and institutes of higher education, in 2011 the faculty misconduct was much more prevalent. student-to-student misconduct wasn't really on the radar. towards 2014 when my data collection concluded, i saw that

switch. i threatened to put a policy together banning faculty relationships and get it approved. you would have thought i called every faculty member on this campus a pedophile. what would i do that if there was no problem. i have students running around here who are marking a chalkboard about how many professors they've backed. for example, two. on any research university campus, there are a number of faculty who take advantage of their positions to develop amorous relationships with their graduate students. one in particular had a habit of inviting students to co-author, which looks good on their resume when they're in the job market. that 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 these faculty members and 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 any consequences for their behavior, they not only have to

be sleeping with their student, but the student has to be dead at the time. it's a horrible saying. but some institutions it's true. some need to be that obvious to go through the processes for the complainant 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. i think one of the issues that you see when you get into the nitty-gritty of this work is sometimes the outcome of the investigation is not in the interests of the university's reputation. i do think at the end of the day, in the interest of the university, and i think being able to stand up and 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 with 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 that i see out there currently, and

that's an investigation model, a hearing model and a hybrid of the two. and this goes along with what we heard this morning in our keynote about hire arcic al versus coordinates of doing this. in the model, the administrator or investigator determines the facts, outcome and sanctions. this satisfies the hearing requirement and they use the preponderance standard. that can be used 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 administrator, who determines the outcome of the sanctions. still at the preponderance standard, with an appeal to an administrator that must meet grounds for a deal. that will be an on-paper review. and a hybrid where they use a little bit of both in order to effectuate a resolution. i want to be clear, with what

i'm about to show. i'm not saying students should have less or faculty should have more, but i want an educated group looking at this, and seeing what ways can we do this in the best way possible. i'm not picking on these institutions. it's just i -- frankly, there are a lot of examples. let's look at indiana university. there's more process for students. in the hearing model, the investigation leads to a charge. they will get a hearing if they want one. they don't have to have a hearing. the adviser is to remain silent. they do get confrontation through questions the panel, it has to go through the panel to be asked. they use a preponderance standard. you can appeal to the administrat administrator. faculty, however, have an investigation model. this is the title 9 process. they can identify witnesses, adviser, preponderance determines the facts, findings, goes to a decision al officer who makes a decision, issued the

final facts and findings. you can appeal to a faculty board of review or the provosted chancellor, 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 -- revis tinge the findings of fact. there's little confrontation at that phase. the silent adviser in this process may read the party's statement. now, there also can be a faculty process here. if a dismissal is recommended, that would be an additional step. that becomes more of an issue with how do these policies work together. if an administrative policy says that this should go -- 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, which i have to

disclose i went to the university of kansas, students have more process than faculty unless you're facing dismissal. the students use a hybrid model where they can i.d. witnesses, have a representative of their choo choosing, they can appeal to a guaranteed hearing. they can directly or indirectly question any statement. but it is managed by the panel. the 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 approve a hearing, but there will not be a hearing during that appeal. the investigation side for faculty is the same as students. 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 appellant has the burden of proof. that is a showing by clear and convincing evidence that the

administration violated procedures that impacted faculty rights. that's very interesting. there's no restriction and confrontation if they get to -- 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 babble case. he's a faculty member at kansas who was found to have sexually harassed a student. the sanctions was two weeks no pay, denial of a yearly raise and to complete the training. he appeals this to the 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. well, 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 for appeal required, provost must prove by clear and convincing evidence confrontati confrontation. so how does the -- how do these processes square if you go through both. this is the tension between the hearing and investigation models. i think it's interesting that we have lawyers, at first really being the ones in charge of how this developed. versus sexual harassment in the '70s, it was more the human resources professionals who did this through their professional networks to think about norms. lauren edleman's work, you know, are the processes we're creating. if we look behind them, are they doing what the law wants them to do, or are they simply vehicles for avoiding liability. versus chuck epp's work on 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 call traditional process. this quote says previously the office had the authority to make the decision about whether or not the policy had been violated. in the wake of the dercally letter, we can only decide if it's worth a hearing. it's insulting. it goes in front of a hearing panel who ironically can't serve on the panels until they've had two hours of title 9 training. there was pushwork between those offices. but title 9, as a profession, changed dramatically in 2011. what i would like to see is greater professional norms and networking 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 if you want to do this in a certain way, how do you provide a hearing to everybody. and if you can provide a hearing to everyone, what does that say about how many complaints are coming forward, and whether you're really servicing as much as you possibly can. there's really not 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. the acr requirements are fairly clear on the due process issues. what's the greater risk here. are we getting to what will address the problem and not just playing with liability. so the key is correct execution in my mind. but that requires well coordinated processes. typically these have been administrative university decisions on these processes. often not codified because they change every year. so to go through a full faculty review, and to 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. but what happens when these processes conflict. this tenured faculty policy conflicts with title 9. that's exactly what bill was talking about with the choudry situation. he reaches an agreement on what the penalty is, and then 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. the investigator presents the report before a panel. you can meet individually with the panel. there are a lot of ways to get a confrontation without being revictimizing. they can observe the other one's reactions, pose questions to the panel, the outcome is

appealable. also guarantees some traditional hearing form of confrontation. faculty don't have that. and they don't have factual procedures. i was able to find them on a web side that say formal investigation results are in a written determination report. you may meet with the administrator separately and have your adviser present. then you have an appeal to the vice-provost on paper. i'm not critical of them for not having a codified on the website, it just wasn't easy to find. and how do they work together. so if in looking at that a little more carefully, that human resources 70 policy for dismissal of the faculty member requires clear and convincing evidence. the online policy doesn't reference that. is it an after-process? this is where it gets confusing. hr-76 suggests simultaneous process. now we're talking 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 advisers 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 fact the process does not because they're using a clear and convincing standard, that's interesting to me. does that mean that at berkeley choudry needed to negotiate that faculty process before agreeing to whatever sanction was imposed? or how did they do that simultaneously? and they're wrestling with that. at kansas, the administration wanted to make the faculty processes conform, but the faculty pushed back. and so it's an interesting, how that came about.

how do we fix these issues? i think it's possible to manage confrontation. penn state's policy for dismissal of a faculty member talks about how the testimony can be obtained and gives the panel some control to say, well, this is revictimizing. it's just not specific about how they can do that. 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 procedural irregularities then, than to have a standard that is criminalizing. i think that's the important point. confrontation and the hearing, i think in dismissal of suspension, and the cases for students, at least was pretty clear, that initial gosk case was for suspension. they even said, if you need more, there might be more required. use of technology, questions to the panel, interrogatories for people who choose not to attend. using the investigation to post

questions back and forth throughout. this isn't a one-time basis. but that also defaults us back to the idea that we may need advisers to help people through this. i think more freedom for advisers would be helpful if those are trained advisers, if they're impartial advisers. who understand these issues. it means they're advocating in their behalf. but with an understanding of what this process is and how it works. so i believe it is possible for consistent evidentiary standards. that's pretty forward thinking, that that includes that. i don't believe it's all or nothing. so we need to care about perceptions, because procedural justice matters. if the system's not legitimate, how do we get people to come forward to report. that matters. and i'm not saying that means we have to change it one way or the other. academic freedom of 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 pushed them to change what they were doing slightly. so maybe it's not happening at the house, it's happening at the coffee shop instead. i think law faculty have a very important role to play here, but to do so, they have to understand the law's deference to the university's processes. it's hard to have a conversation about it when we're talking on two different plains. i think it's possible, but i think nationally we need to think about how to have that conversation. i think the law faculty can collaborate in the examination of these things. i agree with the keynote earlier today about the different sanctions may require different possible sanctions, may require different processes. i'm not suggesting one process.

i think faculty need to redo their institution's procedures. and really, the way i see this, is that earlier one of our presenters said that it's not about the process, it's about the harm. i agree with that. i think for people to see the harm, they need to understand that some of these 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. i'm very happy to take questions. even if it's this one. thank you. >> i also want to echo

everybody's thanks for the opportunity to come and participate in the symposium today. i already have ten new projects that i want to go home and work with the time that i don't have. but i'm excited about that. i think what i'd like to do now is shift the conversation away from talking about staff and faculty, back to peer-on-peer harassment. more importantly i want to shift the conversation away from talking about student rights or limiting that conversation at least to the rights of students accused of misconduct. and start to think about what the rights are of the survivors and the complaintants in these cases. and then i'll work my around to what i see as the 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. kind of discussing the rights of the accused students and discussing the rights of the universities' self-governance,

academic freedoms. what struck me as a clinician, and as an attorney who previously represented survivors, is that i felt there was this missing piece. you know, there was no discussion about the rights of those students. there's no discussion about the need for attorneys to represent the accused. but there was no suggestion that perhaps student survivors and victims also have those same needs to counsel. or the same needs to certain processes and procedural safeguards and rights. so i'll start by talking about some specific legal needs of sexual assault and ipv survivors, talk about the work of current clinics. i think they might make a good fit. and then talk about maybe some additional roles for those folks that are already at law schools and doing this work. so i'd start by just saying for student survivors, an awful lot of whom are 18 or 19 years old,

brian did a great job talking about how complicated some of these processes are in suggesting that some faculty and staff who are going through it might benefit from some advisers. i would say i agree. and would argue it's complicated for faculty and staff going through procedures, imagine what it's like to be an 18 or 19-year-old survivor of violence or sexual assault and going through this process. i tend to think of these legal rights sort of in four different stages. at least it helps me visualize it more. the first is pre-reporting decisions. the second is investigations and interim measures. the third is during the adjudications, trials, that kind of process. the fourth being the appeals and lawsuits. i'll talk a little bit about each of those. so the first key issue that i'm seeing and 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 informed consent decision to participate in. part of this is through the mandatory reporting policies that a lot of universities have now enacted. and i'm not going to get into that discussion, except 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. it's not limited to the campus systems. depending on your state. for instance, in california, if you go to the hospital to seek medical care for sexual assault, that's in fact reported to the police. even if you never intended it to. if you have an omu with the university, that can 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, what kind of relief might be available to them, what kind of detriments might be provided through those systems before they decide to engage in them. at lunch somebody had mentioned, i can't remember, 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 these systems do so deliberately, and with sufficient information to actually make those sort of decisions. i think prior to reporting, 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 in fact the right to go through the criminal justice system. a student who has immigration issues, also may need to report to one or multiple systems. a student who wants to drop out of school, and is worried about the impact on their grades or their loans, may need to report to the university. so 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. 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 iu know, this is standard is before there will be a prosecution. if they are asking you to get an evidentiary exam, for somebody to be able to tell you, really fully explain to you what that involves.

in every graphicru detail. what the odds are that the rape kits will have any evidence that's used in any capacity, and whether or not they'll even 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 may look like in both the criminal process and to some extent in the campus process depending on the individual campus that you're on. understanding whether or not there will be cross-examination. this is true for students who might be entrusted with restraining orders, depending what state they live in and the relationship between them and their perpetrator. if you get a restraining order, it tends to be a quicker hearing. how might that impact the campus investigation, or the criminal investigation. what sort of questions will be posed to you during cross-examination. i think having all that information with a particular -- particularly looking at the privacy and safety concerns and thinking through those implications.

i think advocates are amazing. i work with some unbelievably skilled and dedicated advocates. and most of the campuses i've worked on that's been the case. a one i work with now said her role is not to give legal advice. and she feels like she's more and more put into a role where that's necessary. because these situations are becoming so complicated. and so i think we need to work with advocates, but we need to recognize the limitations they have, and have attorneys who can come in and really provide kind of a thorough legal analysis of each case. you know, to be very honest with students about what their case looks like, how to gather evidence. and to think through, really, the same as you would for any other client. what are the chances of success to meet the goals that are actually identified by that client. and so that's the first. i look at really -- that's key. just having access to qualified legal counsel before the

reporting decisions are made or accidently triggered. the second is about the investigations. this includes interim measures. ensuring investigations are appropriate. 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 talked about the police departments in missoula, montana, all the way to battle i more, maryland, and what happened in those investigations. if you as a student survivor have an attorney with you, hopefully that is someone who would be able to help mitigate some of those troubling trends while they're happening. instead of waiting for the report to come later, instead of waiting for a victim to have to file a lawsuit against the university, actually, address those issues as they come up during the investigations. really obvious examples include -- i've had students who have been asked to sign pro prosecution letters. the students believe that means

they waive their right to prosecute. we have to explain to them that, that, a, there's no actual right to prosecute, and b, there's no waiving away a crime that you experienced. again, i think they thought it was well intentioned. they thought, this is a letter proving this victim doesn't want to move forward so nobody can blame us. for a lot of our student survivors, they're not going to make that decision whether or not to engage with the criminal justice system a day or two following an attack, perhaps even weeks after. letting them know what the statute of limitations are, what their options are i think is important. polygraphs. we still have some law enforcement that are 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. so having an attorney with a student during that time is important. i think within the campus system it's important as well when you have some campus administrators that are perhaps well meaning,

and ask the students do you understand that you're potentially ruining the life of another student. have you thought about this. or have you taken your responsibility for your role in this. don't you think this is part of a hookup culture. these perhaps well-meaning, but really very harmful victim blaming statements that affect the investigations. having an attorney there i think is having somebody to kindly remind whoever the investigator is that those questions are inappropriate. the interim measures are also key. i'm sure most of you are aware that if you're on a campus and you report a sexual assault and now intimate partner balance as well, you're entitled to interim measures. while i find that the no-contact orders seem to be readily entered on behalf of students, other interim measures are not always offered or discussed. so for students to understand that they may be able to switch classes, that they may be able to take a leave of absence if they need it, said student

loans, change in dorms, change in rooms, extracurricular activities, all of those things i think should be advocated for during the investigatory process. i think it's important that if there's an attorney involved, they can help update those. it's not uncommon to have student survivors following a disclosure are doing fine in school. and then a few months later find they're not doing fine anymore. having somebody to be able to update those interim measures is necessary. retaliatory behavior. this is something i've seep quite frequently. students aren't necessarily flagging it for the administrators. but during an investigation, we have student survivors who are experiencing kind of high levels and low levels of retaliatory behavior. everything from the re spon department, himself or herself, directly threatening the students to their friends, fraternities, sports teams, dorms, whoever. you see this in social media, which to me as a lawyer

indicates -- i've written evidence of it. lets gee to the school. but i've had investigators say we're not investigating that. we're investigating her allegations. so i understand that, but you still have an obligation to separately investigate the harassment, or the retaliatory behavior. ocr specifically speaks to that in their dear colleague letter. so i think that's another role for an attorney. the last, of course, is to provide the appropriate referrals, to understand, again, who is the mandatory reporter, who is not. so you don't send students accidently into situations that are out of their control. and to be aware of different referrals on and off campus. the next stage i lk at is the hearings. and as has been mentioned just now, but also much earlier today, this process is varying so widely at universities right now it's hard to talk about it as one single thing. however, regardless of whether 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 that it's set up appropriately. so if you're at a school that does allow for students not to have to sit in the same room, or have a partition, or 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 schools i've worked at, i've had schools i worked at where attorneys fully participate. i've had schools where attorneys are allowed to be there. but they just have to pass notes. and i've heard from colleagues that their schools attorneys are specifically banned. there is a role for attorneys to help survivors get ready for their hearings. i help any client i have get ready for a hearing. i would never walk into court

without preparing a client fully. and i don't think this is any different. i work with students, if i'm going to do a draft and a cross, i prepare them for the direct and cross. i think that's even more important when i walk into a situation where i can't participate. i can't talk for them. i think helping students figure out how to advocate for themselves in that capacity, how to tell the story of their assault in a coherent manner, how to understand what the legal standards are, how to understand the ambiguities, how to perhaps explain the impact of trauma on memory, whether or not we can bring in an expert to explain that to people. that there may be time gaps in student victims' recollections of what happened. but that's actually normal. that's perfectly normal. that's not an indication that they're lying. 18 and 19-year-olds don't necessarily have the savviness, right, in order to think about, how do i bring in an expert witness to explain the neurobiology of the brain in response to trauma. that's where attorneys need to

be involved as well. the actual representation in the hearings to whatever extent allowed, you know, some part of it -- i'm surprised how many times, especially if there's a really good criminal defense attorney in the case with me, will say beyond a reasonable doubt four or five times. i'm like, it's preponderance. 50/50. i think it's smart lawyering, right? they're trying to confuse people because people think of sexual assault or domestic violence, as criminal. even if they've been trained beyond it -- it's not the standard that should be applied. it's important to have an attorney in the room or prepare a student to remind everyone that we're talking about a preponderance standard. there's also no rules of evidence. so certainly you'll hear stories from students found responsible for sexual misconduct that they think it was unfair. that there were certain questions they asked that were not in fact asked of the complaintant.

i will tell you there are equally if not as many situations where student victims say they were asked unbelievably inappropriate questions. there's no rape shield law. i've sat in the room before when faculty panels were asked students, were you a virgin, how many times did you have sex before, what did you wear that night, are you on birth control. all of these wildly inappropriate and nonrelevant questions, that you're essentially asking a teenager to explain. half of what i do for students when i prepare them is remind them that they have 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 th 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, they can do so in all of those overlapping systems. not just the campus system, but if actually goes to criminal

court, which very, very few of my cases do, but when they do, we have the ability in a lot of jurisdictions to go in and fight for privacy. fight to prevent the counseling records from being subpoenaed. fight in order to keep some of those safety and privacy issues in order. and again, restraining orders, housing, employment. there's so many overlapping legal issues that you can represent a client in. that last section is appeals and lawsuits. 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. in 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 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 they're very specific. and again, it's asking a lot of, i think, young people to be able to figure out how to file a legal appeal on their own. there's 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, it made national news, but there was a 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 injuries, he pled out. the day that they sentenced him was the day that he filed a lawsuit against her for defamation. both her and her family for calling him a rapist on facebook. so a lot of people all jumped in and they were able to find her an attorney pro bono. which these days is a bit of a miracle. and fortunately, you know, that case is now done.

she was able to pass it. but that's happening with frequency. we help the students get through the process and then they're looking at federal or state court. if they win, they still have to find an attorney to represent them. i think it's important, i actually now warn my students that that may happen. if you go through the campus process, particularly in the uc's right now, you can fully expect the university to be sued and be named separately as a defendant. if you're not named specifically as a defendant in the lawsuits, you may have your privacy rights implicated. so the other thing that i've seen increasingly, particularly in california, is universities are being sued by respondents, and they're including either identifying information about the survivor and the complaint, or they are attaching exhibits that have identifying information. while on one hand you may think, no big deal, because who trolls through federal and state, you know, complaints, right? we all hang out in west law.

but the reality, this is 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, imagine being a student that didn't mean to report to begin with, hadn't decided, you go through all of this, right? and then you're being sued. now it's on these national websites. and everybody knows who you are, because even if it didn't put your name, it said you were the first year on the soccer team that was dating the third year on the blah blah blah. everybody in the school knows who that is. it gets in the media and then everybody's talking about everybody else's rights. the last one is information for the survivors themselves. if they want to sue the perpetrator with the school, or file an ocr complaint, that's not something i do for students now, but i make sure -- it's my ethical obligation to make sure they know their rights and who to contact to go through that. how am i doing time-wise? >> close to time.

>> i'm going to be so fast with this. all right. i'm going to throw out there, there are around 100 clinics, law school clinics right now that in some capacity serve victims of intimate imbalance and sexual assault. they vary. most of them are domestic violence. some focus on families. some focus on immigration. some are more broad gender rights. but they're out there. they have attorney/client privilege. they have specific training in the dynamics of sexual violence, client counseling, incorporating privacy and safety. a lot of the training has already occurred. in some ways i would argue my students are better prepared than some of the pro bono attorneys who want to help but don't have the specific training to work with this particular client group. we're often located either on campus or near campus. i think it's important if you don't already have one is to get an agreement that you are not a responsible reporter on a campus. but there's a strong argument to be made and so far i've been

able to make it successfully to have an attorney/client privilege that trumps everything else. shockingly, some lawyers also believe in attorney/client privilege. so i use that particular privilege. i find that 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. professor winer in oregon has argued that the use of law school clinics in this capacity could be thought of as actually an interim measure that you should be offering students. do you as a school want to say that we don't want our law school clinics to represent survivors in the adjudications on campus, but perhaps you're fine with them representing them in restraining orders, or appeals, or at least in the

prereporting position. i think it's a resource we really need to consider. in considering it, realize that a lot of law schools are already doing this in some capacity, and have those people who have that experience working with those student survivors start participating in the policy and procedure development. a lot of them already already. but being part of this very public conversation, 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's already done this, but offering other letters and the legal analysis looking at the legal rights from the survivor's perspective. >> i am so thrilled to be here. it's really exciting to see so many people who i -- whose work i have read and followed for so long. i'm going to talk a little bit

about this narrative that we have, that fair process and victims' rights are zero sum game on campus. this is particularly timely. 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 worked 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 read the dear colleague letter, the finding actually shouldn't be surprising at all. so wesley did a number of things that are explicitly called out in the 2011 guidance as not

really okay. they didn't let the guy know what he was accused of. he showed up to what he thought was an initial educational meeting to find out that 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 a lot of the language that's used. we hear about the overcorrection, we hear about a pendulum swinging. that suggests that there's one axis of justice. students are happy over here, and you can only 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. with treatment of victims or accused students. i'm going to resist any broad generalization about a national swing, because 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. that being said, i worked with survivors on campus for a long time and i know that many of them are mistreated. i also am assuming that there are a lot of procedural violations for accused students. and i say that based on the pleadings that we're finding in federal and state court. some of which i assume are not meritorious, but which i assume are. i say that based on the fact that victims have been telling us for a really long time that schools often mess this up. in many of the complaints we

hear from accused students are exactly what wre hear from victims, too. things like, i didn't have access to the records. the decision makers are biased. it's not surprising that it hurts both sides. i'm also assuming there is a large risk of racial discrimination in the disciplinary proceedings. it was mentioned earlier. welcome to the criminal justice system. but i also want to flag that, this is something that worries me that's often left out, we also know that survivors of color are also regularly discriminated against in these proceedings. we want to make sure when we think about racial discrimination, we also don't want to forget about those accused. those are my assumptions. i would love to hear the pushback on that. 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 connection between red and blue without saying red and blue are exactly the same without saying we're all going to stand around and hold hands and sing together, that there are real commonalities that are important. i think the first is that there are real shared values. this is, i hope, going to become very obvious. but if you're working for accused students or working for sexual sexually accosted students, education is really, really important. i think that actually anti-discrimination law is our best articulation of that in federal law. obviously this is not the case that there's no federal constitution right to education. the most robust vision of the importance of protecting these 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 about that the victims are students as well, and that their opportunity to learn and flourish is equally important. i also hear some victims rights advocates in attempting to distinguish the sanction of suspension from incarceration trivializing the education. i'll talk about this more later, but i think being suspended is not as being incarcerated or deported or having your parental rights sanctioned -- sorry, terminated. but at the same time i think being suspended is really, really bad. we can all acknowledge that. i also think that there is -- both sides share strategic ends, both benefit strategically by fair process. i mean that both on a micro level and macro level.

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 any given client's 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 not really what we're hearing from attorneys. we all have an investment in the legitimacy of these systems. we hear this from advocates for students all the time that part of the reason they think their clients rights are being violated, because for so long

schools were not respecting the rights of victims. there's been in their mind this political overcorrection. 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 into these protection 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. 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 cleary act have raised the basement for what the rights can look like on campus. they have in some ways changed the ceilings, but overall, the tide is upward. and i think that the wesley case is going to be really important in proving this. i imagine that this is familiar to a lot of you. but constitutional protections for students are really just not robust enough. so they mostly only apply to public universities. and what we know from lopez, which is the supreme court decision a year before matthews, that adopted a similar framework, that students are entitled to some kind of notice, and some kind of hearing. and some is not that great. i think that we can all agree using the principles that are embodied in civil rights law,

that students deserve a lot better. and ocr has lived up to that. if you look at the dear colleague letter, they require better access to the record, than you could possibly find under the 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 very much 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 it. so 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 -- responsive 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, you know, how do 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 the other one really is, and i don't think you can do process without the support.

and i would 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. here is what i know. i know many survivors say they would like an option that is less antagonistic. that has more focus on educating the person who 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. >> so i've also thought quite a bit 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 -- violating title ix by 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 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, in theory 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 -- financial 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 a lot of 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, or 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 that 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 issue because if we can't get to

effectuate culture change and we're just processing cases, i don't think that's enough. >> thank you. i want to thank georgetown law for having this platform. my name is kimberly kennedy and my e-mail address, just in case after i ask this question, is kennedykimberly170@gmail.com. i really feel for young people who have to go through sexual assault or anyone. i'm a victim and i'm saying that i'm a victim and not a survivor because i'm still going through the process of it being investigated.

but there's a -- as the panelist says, the wheels fall off when you make these complaints and when you're an individual and my -- and i was on the job and it was my superintendent, i was working in the construction field so it's a man's world -- a male-dominated industry. i feel that the advocates are not around. i don't know if i'm just going to the wrong places. wait lists and when i talk to some -- certain organizations you get victimized again. you feel -- then people look at you like, you know, it was my fault, but i did not ask for any of this. i said no, it was plain. so i don't know if it's because of the large company, and i want to know how can i advocate for myself? what can i say. on the media?

i would like to let my voice be known. what can i say and what i shouldn't say because i don't want to say the wrong thing for myself or either the person who -- who's my predator. so if someone can help me because i'm doing research on my own and i'm not a lawyer. there's good information on the internet but you also have to know where to go and there's so much information you want to know what should you retain and what you should use and what you shouldn't. so if someone can send me an e-mail on information or who i can find to represent me because i'm going to lawyers and lawyers and lawyers and do you have $15,000, or just going to the right place, because when you tell your situation, your

incident, you're retelling your story, you're retelling your story and you get kind of tired of all of that. you just want to know where to go. >> i run the domestic violence clinic here at georgetown and i will give you my card before you leave and i'm happy to help you connect with local resources and i don't know if other people have additional -- >> the nonprofit i work at does sexual harassment at work cases so i'm happy to connect afterward. >> and if you're local, there's a law firm in d.c. called katz, marshall and banks that i would put at the top of your list. if this happened in a workplace, they're your go-to firm. >> i want to thank you for having the courage to say something. >> so i guess i'm going to push back a little bit on what i thought was alexandra's call for

more sort of uniform process, that what we have to do is we have to think about this issue as part of a larger piece of better process on university campuses and i was struck by listening to all of you how very different the process requirements in these contexts are. so as a matter of constitutional law, due process, a fluid -- nancy and i have talked about this, but that's very different in these kind of contexts, so, as a lot of us have been saying for a while, suspending students is different than throwing someone in jail. maybe we need a different amount of process there, right? which we need to remind everybody of so we don't always go to the criminal law book. by the same token when it comes to faculty members versus a sexual harassment in the workplace, most employees will

-- the amount of -- right, the process that needs to be implements in the vast majority of employment, sexual harassment context is different than the university campus when people have jobs for life. maybe, ironically, faculty members are entitled to more process because they have something more precious than the average employee because they are not faculty members at will. i think we are doing everybody a disservice when we project the idea that a, the process does nothing -- that process isn't costly, because process is costly because it's costly to people going through it and the schools that have to provide it that's an unfortunate truth. it's clearly the case there are different levels of process that are appropriate in the different contexts and that makes this messy. i think we are all well served by recognizing that messiness. restorative justice is a great

idea, too but as an administrator i can also say oh, my god, we need another option? what's my dropdown menu going to look like? and i think we have to own that, right? those of us who want to do something about this issue have to own that there are going to be lots of different processes that are going to be appropriate in all of these different ramifications of sexual harassment. >> can i say something to that? so i agree we can't have a single process for every disciplinary issue because that depends on whether you talk about faculty, staff that's potentially unionized, student versus student or university versus student where i'm comfortable with the clear and convincing standard. but what i would like to see is the same process for someone who is raped by a classmate and punched in the face by a classmate. and that seems like -- i would be curious to know if you're not comfortable with that uniformity. >> i think that the -- i guess i'm not sure i am because i

think the victim responses to those things will be different. i think there's an embarrassment and a sort of dignitary harm associated with sexual assault that isn't necessarily there -- i wouldn't feel at all weird -- i wouldn't feel at all like jane stanford person described if i was punched in the face by a classmate. i just kind of wouldn't. i don't know, like the feminist jock in me would feel like "i'm a man, i'm a guy, they treated me the same way they treated the guys" which would be very, very different than if i was sexually assaulted. and i'm not sure that that difference isn't one that the process should take into account. that there's a vulnerability and there's a sort of shame associated -- we don't like it but it's there with regard to sexual assault victims and i think the process may have to be sensitive to that. and it doesn't have to be sensitive to that if i'm punched in the face.

>> i would say there's going to be limits to what you can do because of title ix. but this is why you need a committee. >> i agree with that and it shows how difficult it is to have folks educated, to have the conversations about that messiness. and how we need to make sure there's support for everybody on all sides of the issues in terms of advocacy and what are the limits of that? >> and an example of that would be that a number of universities are using the preponderance of the evidence standard in faculty discipline cases and have changed their rules very recently. harvard law, university of wisconsin, et cetera. there are a number of other universities, and i think this universe is larger, where universities do