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Legalities, Legislation, and Initiatives Surrounding Sexual Assault on College Campuses
Over the years, sexual assault on college campuses has been a huge problem and Washington has taken notice through various legislation and initiatives. Between the Clery Act, pending legislation of the Campus Accountability and Safety Act (CASA) and the Safe Campus Act, and Vice President Biden and President Obama’s “It’s On Us” Campaign, there has been a call to action implementing specific guidelines that colleges and universities need to adhere to when faced with allegations of sexual assault. But it is not all black and white—so, how are colleges handling allegations? Once accused, are those students receiving due process within administrative hearings? And are the alleged victims receiving the maximum protection from colleges?
On Lawyer 2 Lawyer, hosts J. Craig Williams and Bob Ambrogi join Attorney Laura Dunn, executive director of SurvJustice and Attorney Brett A. Sokolow, the president and CEO of The NCHERM Group, as they take a look at the latest on sexual assault on college campuses, how colleges across the country are handling allegations, due process of accused students, victim protections and the importance of educating students and faculty on sexual assault.
Laura Dunn is a nationally recognized campus sexual violence survivor and activist. In 2007, Laura graduated from the University of Wisconsin-Madison (UW) with a B.A. in Legal Studies and Psychology, as well as a certificate in Criminal Justice. While a student, Laura was sexually assaulted by two men from her crew team. Despite reporting to campus officials and police, she was denied justice and eventually filed a Title IX complaint against the UW. Laura successfully lobbied for the passage of the 2013 Violence Against Women Act (VAWA) reauthorization, advising to the White House Task Force to Protect Students Against Sexual Assault, and serving as the primary student negotiator on the U.S. Department of Education’s VAWA Rulemaking Committee.
Brett Sokolow and the NCHERM Group represent more than 70 colleges and universities as legal counsel and has provided consultation to more than 3,000 college and university clients since NCHERM Group was founded in 2000. Brett is also the Founder of NaBITA, the National Behavioral Intervention Team Association. He serves as the executive director of the Association of Title IX Administrators (ATIXA) a 4,000+ member organization. ATIXA has certified more than 2,500 campus Title IX Coordinators and 5,000 campus Title IX investigators since 2011. The model policies and protocols developed by Sokolow’s organizations are considered industry standards in higher education, and are used by thousands of colleges and universities across the country.
You can find out more about Laura and SurvJustice at survjustice.org.
You can find out more about Brett at ncherm.org
Special thanks to our sponsor, Clio.View transcript
Advertiser: Awareness came at a great expense. It came at the expense of many survivors who went out of their way to file complaints and petition the federal government. As a result, we’re actually seeing some people in the public having increased knowledge.
We all are parents, we all are sons and daughters. Many of us have called such points before, and the more engaged and aware the public is, I think the more we push the wheels forward, college universities will get up to speed.
Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
- Craig Williams: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Craig Williams coming to you from Southern California. I write a legal blog called May it Please the Court.
Bob Ambrogi: And this is Bob Ambrogi coming to you from Boston, Massachusetts where I write a blog called Lawsites.
- Craig Williams: Before we introduce today’s topic, let me take a moment to thank our sponsor, Clio. Clio is the online practice management platform for lawyers. You can find out more about Clio at www.GoClio.com.
Bob Ambrogi: Craig, sexual assault is of course a huge problem on college campuses, it has been for a long time. In recent years, there have been various efforts to address this issue through legislation and other initiatives both out of Washington and in other levels. In particular, there has been Vice President Biden and PResident Obama’s It’s On Us campaign, the Campus Accountability and Safety Act which is pending in Congress right now and other efforts. There has been a call to action towards implementing specific guidelines that colleges and universities need to adhere to when faced with allegations of sexual assault.
- Craig Williams: But it’s not all black and white, Bob. How are colleges handling these allegations? Once accused, are those students receiving due process with administrative hearings? Are the alleged victims receiving the maximum protection from colleges? And is disciplinary action enforced against the perpetrator if proven guilty? Today on Lawyer 2 Lawyer, we’re going to take a look at the latest on sexual assault on college campuses, how colleges across the country are handling these allegations, and the issues of due process of accused students and victim protections as well as the importance of educating students and faculty on sexual assault.
Bob Ambrogi: Helping us do that today are two guests. First of all, I’d like to welcome to the program attorney Laura Dunn, executive director of Surv Justice, a national not for profit organization that increases the prospect of justice for survivors by holding both perpetrators and enablers of sexual violence accountable. Laura Dunn is a nationally recognized campus sexual violence survivor and activist. In 2007, she graduated from the University of Wisconsin-Madison (UW) with a B.A. in Legal Studies and Psychology, as well as a certificate in Criminal Justice. She later earned her law degree at the University of Maryland while a student at the University of Wisconsin-Madison. Two men from Laura Dunn’s crew team sexually assaulted her. Despite reporting this incident to campus officials and police, she was denied justice and eventually filed a Title IX complaint against the University. She successfully lobbied for the passage of the 2013 Violence Against Women Act (VAWA) reauthorization, advising to the White House Task Force to protect students against sexual assault, and serving as the primary student negotiator on the U.S. Department of Education’s VAWA Rulemaking Committee. Welcome to Lawyer 2 Lawyer, Laura Dunn.
Laura Dunn: Thanks so much for having me on, I appreciate it.
- Craig Williams: Next up we have attorney Brett Sokolow. He is the president and CEO of the NCHERM Group, a law and consulting firm that works with schools and colleges on compliance, risk management and prevention. The NCHERM represents more than 70 colleges and universities as legal counsel and has provided consultation to more than 3,000 colleges and university clients since it was founded in 2000. Brett is also the Founder of NaBITA, the National Behavioral Intervention Team Association. He serves as the executive director of ATIXA, the Association of Title IX Administrators, a 4,000 member organization. ATIXA has certified more than 2,500 campus Title IX Coordinators and 5,000 campus Title IX investigators since 2011. The model policies and protocols developed by Sokolow’s organizations are considered industry standards in higher education, and are used by thousands of colleges and universities across the country. You can find out more about Brett at NCHERM.org. Welcome to Lawyer 2 Lawyer, Brett.
Brett Sokolow: Thank you, I just realized I made you read and spell a whole lot of acronyms there, so forgive me for that. I’m really pleased to have the chance to share this forum with Laura Dunn and I’m looking forward to the discussion today.
Bob Ambrogi: Well, we’re all lawyers here so you can’t have too many acronyms in one show, it’s always good to have those. Laura Dunn, I wonder if I could start just by asking you. I know we want to talk about a number of issues that are currently in the news but I wonder if we could turn back to your case and as I noted in the introduction, you were denied justice in your case and you eventually filed a Title IX complaint. How was your case handled? What happened in your case?
Laura Dunn: I’m glad you asked. My case was handled more than a decade ago and at that time there wasn’t an explicit guidance yet under Title IX for schools to address sexual violence. There was about sexual harassment and a form of sexual harassment and sexual violence. But back then there wasn’t a lot of guidance for schools and my university took over 9 months to investigate a complaint while a criminal investigation was also happening. The campus ultimately waited when one accused had graduated and the other one was about to graduate to let me know the decision. And at that time, there was no right to appeal, I found that they had only interviewed myself and one of the two men accused after nine months of possibilities of interviewing other witnesses. And so it really wasn’t an investigation as much as it was a delayed tactic, which was not uncommon for schools to use at that time to avoid responsibility. Since my case, the Dear Colleague letter has come out, a Title IX guidance, really directing schools to promptly resolve and equidentally resolve complaints and do so ideally in 60 days rather than the 9 months that the university took. So it was a very long case and even the criminal case had some concerns. At that time Wisconsin did not have alcohol listed as a possible intoxicant to mitigate the ability of someone to give consent. And therefore, I was told by the district attorney that what happened to me was reprehensible under the laws of Wisconsin, it was not illegal. So it was a really devastating time as an undergraduate student, but it obviously inspired me to learn the law and be able to advocate at that time for myself and eventually now for hundreds of survivors across the country.
- Craig Williams: Brett, take us ten years forward and give us what the standards are now.
Brett Sokolow: Standards have become clearer, which I think is an improvement over where we were in the dark days. I think that there is a more common understanding now amongst students that they are protected by federal law and it’s exactly Title IX and what many of them do. And the department of education which enforces Title IX has become, over the last five years, very prescriptive, writing out in much better detail – not perfect, but much better detail than we had – the expectations for schools and colleges. And I think this has largely been met by campuses with some relief in the sense that they were unsure of what to do exactly before this time and now they have greater clarity on that. I also think some of them may be very overwhelmed by the amount of regulations that have been imposed. So I’m seeing pretty decent, good faith efforts to come into alignment in itself. I heard it was very slow, but good faith efforts to come into alignment with the federal expectations. There’s also a lot of cases being litigated that constantly remind colleges when they get it wrong. I think we’re in a situation now where there are some bad areas that continue to tarnish the name of how higher education responds to sexual violence and other type of gender violence. But we are making progress, at least from where I stand, and that’s encouraging to me. Because as a change agent who works within higher education, if I wasn’t seeing right, I’d have to find another.
Bob Ambrogi: As I understand it, that Dear Colleague letter that Laura referred to earlier requires educational institutions to adopt procedures for the prompt and equitable resolution of complaints. Laura, what does that mean? How much leeway do institutions have to define what those procedures should be?
Laura Dunn: Absolutely, and just to take one step back, there is obviously guidance coming from the Office of Civil Rights Movement and Department of Education on Title IX, but there’s also actually a federal statute that you reference the 2013 Violence Against Women Act Reauthorization that I worked on. That amended the law called Clery Act, so we actually have guidelines and regulations not just about sexual assault but also dating violence, domestic violence and stalking coming out of there. So there are statutes and regulations under Clery and Title IX, and really the best schools know how to integrate both of those laws. So Title IX has providence and equity. It gives guidelines of saying 60 days as an ideal timeframe to resolve complaints amongst complicating matters which do arise and it has to be equitable. So rather than thinking of perhaps the scheme that’s created for criminal justice that give a lot of rights to defendants as more of an equal process so the accusals also have rights and they have to have equitable rights so that they’re both participating in the process, both able to get information and interact and ultimately, ideally, get to the truth of the matter and have a fair resolution. Some of the requirements exist under the Clery Act for prompt, fair, and impartial procedure, and it is very clear that that attaches immediately upon a complaint from a victim, goes through the investigation and into the proceedings, which is very nice. So it’s the Clery Act which lays out some staples. It allows both parties, for example, to have an adhesive choice. The previous schools would not have to let in any lawyers into these proceedings and now there’s a real opportunity for students whether they’re accused or the victim reporting to bring someone in and have them be there to provide support and counsel. Not necessarily to participate in the process. So there’s a lot of very specific rights that attach the moment of reporting and go through all the way to the conclusion. We can definitely break that apart in several segments. I know, Brett, there’s a lot of trainings about each aspect of the procedure.
Brett Sokolow: Well, Laura covered that pretty well, I’d just amplify a couple of things. One of which is that the Dear Colleague letter, that requires colleges and universities to use the preponderance of evidence standards. Litigation standard is campus resolution of all forms of sexual misconduct, which I think was a change for some colleges. Maybe about 80% were already using the preponderance standard, but due to the symbolic change that is far more significant than the number of campuses that actually had to alter because it represented a leveled playing field in a very prominent way. Also requirements that come under the VAWR section 304 that Laura referenced would include verification of outcomes, which not all campuses were doing to all the parties to an allegation, because if they know what has occurred to the result, whether it’s an adequate remedy and resolution, and what their appeal rights are, not to mention if those rights are equitable. If the accused individual has the opportunity to appeal a finding, so does the person who is giving the allegation. So the letter of outcome now is designed to vindicate those rights and make sure that the participants are well aware of what they are. Those protections are not just for students, they extend fully in all the covered behaviors that Laura referenced.
Bob Ambrogi: You referenced the standard in that and I know that that’s been one of the bases of criticism, at least from some corners of this policy. It’s kind of a step back from the Clery standard that has been used. And I think there are a lot of people who are saying that the accused in these cases should have a stricter standard of evidence being applied to them because this is something that these are serious charges and these are charges that should stick with them for the rest of their lives. What do you say to that?
Laura Dunn: So first, a lot of people get a little confused when we’re talking about sexual violence. They automatically think that we’re talking about something criminal. We have to remember that Title IX is a civil right and it protects against sex discrimination, and one of the forms of sex discrimination is sexual harassment and that also includes severe cases of sexual violence. So we’re really actually talking about misconduct. Every single campus has a code of conduct. Certain behaviors are imperversable, a lot of people think that’s plagiarism, but truly, a lot of crimes actually also correlate with misconduct. And so campuses, when they’re adjudicating these matters, aren’t determining a crime, it doesn’t inherently follow students everywhere they go. They are adjudicating, however, misconduct, and very significant misconduct that may also have other civil and criminal implications. And the standard of the prominence of the evidence is appropriated and used pretty much across the board for all misconduct. Nd as Brett very widely pointed out, this wasn’t actually very controversial, this was actually the norm. The norm was to use a preponderance of evidence, and the very few schools that used clear and convincing, some of which also used beyond a reasonable doubt were actually normally elite schools and a very small handful of them. Which had now been found by a large fee out of compliance of Title IX as a result. Campuses are not criminal courts. They do not have investigators going to the bottom of the earth to get to the truth of the matter. But it is a misconduct hearing and preponderances and appropriate standard that has been supported. But I know Brett has more to add on that.
Brett Sokolow: Just a little bit and that is that I would think of Title IX and by largely an extent as due process for victims. If due process rights have always protected the accused individual, we need special statutes that level the playing field and to give a a level of rights to those who bring the allegation. So when you set the preponderance standard as part of the leveled playing field, anybody would argue for higher standard – of course, that’s what most people do. I really want to ask this question: Why should it be harder for a woman to prove that she was victimized than it is for a man to reserve that he didn’t commit the victimization? And unless you can answer that question, at any standard clear and convincing evidence proves without a reasonable doubt creates a gender inequity, then you have to go with preponderance under Title IX because it is an equitable standard. We all know that not all victims are female, not all perpetrators are female. But when you look at a majority of the cases, more than the majority, they fall into that gender binary and so you have to look at it through the lens of gender equity as you balance the standard. But you can make another argument as well which I know your legal audience will appreciate, and that is that when the Department of Education evaluates whether a college has complied with Title IX, they do it based on the preponderance of the evidence standard. So you can have a situation where colleges would have a different standard on its internal policies with evaluating administrative agency with oversight responsibilities or you’re going to have a clash where students by virtue are using a heightened standard. Colleges fail to remedy that which is why it’s required of them to.
- Craig Williams: So why is it that there’s this administrative process even existing within colleges? Why isn’t this which is in standard society which would be handed over to a criminal investigator? Why are the colleges even involved with this? Why doesn’t it just turn itself over to a criminal prosecutor and let it go at that? Laura, what’s the rationale behind all of this regulation and all of these acts?
Laura Dunn: I think a lot of people cite that argument that you just repeated and unfortunately, it’s not actually grounded in fact. So, again, there are codes of misconduct on campus and those codes of misconduct include physical assault, preventing other forms of violence, hate crimes. Campuses that already have very extensive codes of conduct. So for example, if you commit a drug offense, the school doesn’t just turn you over to the police and say we aren’t going to do anything. The campus actually has very much a right to choose who they allow in and who they decide should no longer be a student. And something that may also be criminal may also have implications as misconduct. So just as a criminal offense for drugs, even if it’s not proved beyond a reasonable doubt, if the school believes there’s a preponderance of the evidence, they can actually still take action against that student. Put them on probation, give them a suspension, require that they go to counseling; there’s a variety of mechanisms and that’s actually the norm. Schools have always done this with a variety of crime. There’s nothing unusual or distinct about also doing it for sexual violence. It has been the history, though, that schools have avoided that responsibility. And again, that’s why the Dear Colleague letter and other efforts by the federal government have really mattered to say no, this is just like any other crime. There’s nothing unique or different here. Just like you have misconduct hearings for other issues and violations, you still will have it for sexual misconduct.
Brett Sokolow: If I could weigh in briefly on the same question, I hear a lot of criticism of colleges and universities that get along lines of what you said. Why don’t victims just take this to the police? Why don’t campuses report it and treat it as the crime that it is? While there’s a lot of criticism of the way colleges and universities resolve sex offenses, I actually think there’s one system that’s worse, it’s called the criminal justice system. So for me, any argument that says we shouldn’t handle this on a campus, we should just take this downtown, that’s really defining all but two percent of them to know that whatsoever. And so we’re actually playing to a milder alternative. I would say that argument would be one we should contemplate, but it’s not. And colleges and universities take on this responsibility, not because they see a deficiency in the criminal process – in fact, colleges don’t address this at all. I’m going to be very explicit about this, because it seems to be misunderstood. Colleges never address rape, don’t address rape, and never will. It’s a very important thing to understand. Colleges address sex discrimination in physical form. They don’t address rape. That’s a crime, as Laura said, it can only be addressed by criminal authorities. Colleges have no authority or criminal behavior. They address code violations, as she said, that may have equivalence, and in this case, there is a crime. The crime of rape or sexual assault is somewhat equivalent to sex discrimination in physical form. But to argue that colleges shouldn’t handle sex discrimination when it’s in physical form leads to another problematic argument of why should they handle all other forms of sex discrimination covered by state and law except for that? So it’s a continuum of behaviors and colleges are required under federal standards to address the continuum, whether it counts as a crime or not. I’ve actually argued about what colleges are policing these days when looking at this really doesn’t parallel crimes in many ways. The campus definition, the expectations for what they call affirmative consent are still so much broader than what state police have as criminal conduct. We’ll be looking at a community standard and expectation for students that are, in fact, on them are tighter than they would be if those students were operating in the community as it is.
- Craig Williams: Well, we need to take a quick break before we move on to our next segment and we’ll hear a short message from our sponsor. We’ll be right back.
Kate Kenny: Hi. My name is Kate Kenny from Legal Talk Network, and I’m joined by Jack Newton, President of Clio. Jack takes a look at the process of moving to the Cloud. Now how long does it take to move to the Cloud, and is it a difficult process?
Jack Newton: No. With most Cloud computing providers, moving your data into the Cloud is something that takes just minutes, not hours or days to do. You can get signed up and running with most services in just a few minutes. Even if you have an existing legacy set of data that you want to migrate to a web-based practice management system like Clio, there’s migration tools and migration services that we’re able to offer to each that process. Most firms can be up and running in the cloud in less than five minutes, and can have their data imported in a matter of hours or days.
Kate Kenny: We’ve been talking to Jack Newton, President of Clio. Thank you so much, Jack.
Jack Newton: Thank you, and if you’d like to get more information on Clio, feel free to visit www.goclio.com. That’s G-O-C-L-I-O.com.
Bob Ambrogi: Welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi, and joining Craig Williams and I today are attorney Laura Dunn, the executive director of Surv Justice and attorney Brett Sokolow, founder, president and CEO of the NCHERM Group LLC. We’ve been discussing a variety of issues surrounding sexual assault on campus. Brett, I wanted to follow up on something you were discussing. We’ve been talking about the difference between enforcing codes of conduct on campus and sexual assault, prosecute as a criminal matter. But there has been a lot of criticism from a number of corners of the lack of due process in these procedures. We saw last year that a number of Harvard Law School professors came out with a statement criticising their school’s handling of thse kind sof cases of sexual harassment and sexual assault cases. And in particular, there was the ruling from California, the San Diego County Superior Court just this Summer addressing a case in which a student had been accused of sexual assault at UC San Diego, finding that that student had been denied due process and basically fair treatment in the handling of that case. So where does due process come in to this? What are the institutions’ responsibilities to ensure due process to the students who are accused in these cases?
Brett Sokolow: I think you started the conversation with the question around the criticism of the colleges but they’re not providing efficient due process. I think there are two camps on that particular question. There’s a camp that wants colleges and universities to enforce the legal obligations of due process that follow upon them and universities are required to provide due process. Whatever the case be, it’s not the same due process that you would see in a criminal proceeding. Public universities are required and a majority of colleges in this country are actually required to be fundamentally fair. But the constitutional right doesn’t attach to a non state, non public entity. So this is one camp that wants campuses to fulfill the obligations they have legally. There’s another camp and this is a local one, who wants to extend and expand due process protection from what they currently are as legal requirements on college campuses. And you’ve got to distinguish those two camps, because the people sneaking loudest for due process protection are going to want to expand them. And for 50 years, there’s a jurisprudence in this country that holds a procedural protection on college campuses to a fairly minimal standard. College processes are more like reports. They want full legal representation. They want a presumption and fourth amendment exclusionary rule and all of those things that come with even public college campuses to a very great extent. Due process for most public colleges and universities require a substantial fairness and opportunity to adequately extend and respond to the allegations and from there, there’s uncertainty to some extent of how much more process you provide to be essentially fair. There was a comprehensive report that was completed by the investigators in advance of the hearing that occurred on that campus and that report was completed and was available with the accused student prior to the hearing. He had no idea to prepare in advance to defend himself throughout the hearing process. So for me, that’s not an expansion of due process when the judge says that was unfair. That’s just that he didn’t need basic due process which is getting that full and fair opportunity to extend the allegations. You’ve got a statement under Title IX that reports that between the parties. It has to be equitable and every party should have the opportunity to prepare. So I’m not really in the camp in any way of expanding the due process protecting what needs to be applied in the college environment. I understand that getting colleges to the point where they are providing the appropriate level of processes required by their own internal rules and by law. And you should know that you see the decision has been appealed by the UC system.
Bob Ambrogi: I think it was kind of the first of it’s kind, right? There haven’t been other decisions reaching civil or conclusions from courts that I’m aware of, have there?
Brett Sokolow: Sure, that was a minor decisions. There have been 50 years of due process cases that have come in on all forms of student misconduct including sexual misconduct. Before that, there was John Doe v. University of the South which was a far more significant case in federal court. The California case was a minor district decision in our state court in California. It actually followed in alignment with a well line of due process cases. What’s interesting is now in terms of the development of the law is a lot of these young men who are suing their campuses are not alleging due processes, they’re starting to alledge negligence claims. And more than that, they’re starting to alledge Title IX violations, that they have rights under Title IX that have been violated by the way the school has applied their standard in a way that was inequitable on a basis in gender or discriminatory. And there are a lot of lawyers who are eager to see whether Title IX can be extended to that level of protection. I’d say the courts so far are not resounding in support, but some of these cases are getting further than maybe you would have guessed they would a couple of years ago when they started to give off.
- Craig Williams: Laura, let’s turn and take a look at the issue of public knowledge and public information about this. The consent issues and a lot of the things we’ve been discussing are fairly well known on college campuses and among college students. But I think not so well in the general population. What’s happening in that regard so that there’s more support for these kinds of reforms in the larger population of the country?
Laura Dunn: Well, awareness has definitely increased on campus; Let’s remember that that’s largely due actually to student activism. We’ve had students rallying at their campuses demanding changes in policies. Students have filed Title IX complaints against universities, and through student activism has actually convinced the White House to list the public lists of Title IX investigations. Awareness came at a great expense. It came at the expense of many survivors who went out of their way to file complaints and petition the federal government. As a result, we’re actually seeing some people in the public having increased knowledge because survivors have been very wise in getting the media to cover these and relay the stories. And unlike ever before, survivors are actually using their faces and name. In the past, these were cases that affected Jane Doe, someone behind a show that no one could name, and now we’re seeing faces and voices. So it really has gone a long way to creating public awareness. I think parents are being thoughtful now about which campuses they’re choosing, which one is the right one. And there’s actually a great opportunity to be educating parents about what to look for and what to ask for. A lot of people make the assumption that if a school has had a Title IX complaint filed against them that they are not a school to go to. But to be honest, in my work, the schools that have already gone through the complaint process come out better for it because the US Department of Education routinely does voluntary resolution agreements, bringing schools up to speed requiring them to put certain programs in place to have certain hirings and to make certain sections to their policies and procedures. A lot of schools have taken that to heart. So I think there’s an opportunity for parents to use Title IX and where those complaints are happening to actually figure out which colleges are best. The colleges that have never had a complaint, it’s unknown. It’s unknown whether no one has filed or whether there is not an issue there. And I would say that in addition to awareness spreading into the general population, I think awareness is finally starting to increase in the legal community. I hate to say it, but there are so many attorneys like me on a regular basis that still don’t know about Title IX, who still don’t know about the Clery Act, the interplay of FERPA, a privacy right with a lot of this information. And there’s actually a great and growing opportunity in market for individuals involved in the legal communities to start advocating directly on campus, whether you’re going in and ensuring due process for the accused. Actually, now, because of the Equal Rights, going in and supporting the survivor and making sure that their rights are in fact upheld in those hearings.
Bob Ambrogi: The Campus Accountability and Safety Act was a bill pending in US Congress that would change how universities investigate allegations of sexual assault. What would that bill do and is it good policy in your opinion, Laura?
Laura Dunn: The bill does several things, one of which serve justice and initially was in large supportive as our many student activists and that it’d create defining power. So while there’s been hundreds of schools under investigation at this point, not even one school has lost federal funding as a result and that is the only enforcement mechanism under Title IX. The alternative is the Voluntary Resolution Agreement, which has been largely relied upon and many survivors feel that this is inappropriate. There are a few schools that are repeat offenders, that have multiple Title IX complaints against them and that there is a large push to actually see penalty. So CASA, the Campus Accountability and Safety Act, does set a fine that 1% of the school’s budget, which is very large and meant to be so because of this ongoing issue on campus. The Clery Act has always had fines. Penn State, for example, which is under a Clery Act investigation and is likely facing a very large penalty as a result. Virginia Tech resulted in a penalty under the Clery Act. Yale has been fined under the Clery Act for hiding sexual assault. So there are some enforcement mechanisms there but people are really asking for it under Title IX. There is a portion of CASA that my organization has not supported and if anything has spoken out against and that is the requirement for schools to provide confidential advisors to survivors. The law, unfortunately, doesn’t create confidentiality so it’s an empty promise, and I believe we can talk about this further but schools have their own liability in these cases. To say the school can also serve as an advisor of the victim who has a separate interest that may in fact come into conflict with the interest of the institution is really inappropriate and setting up survivors to be misled. And there is, unfortunately, there is a very long history of universities not doing right by survivors and in fact trying to otherwise sweep it under the rug. So CASA has some aspects that I think are worthy, but there’s also very dangerous aspects I think in the confidential advisors program.
- Craig Williams: Well, it looks like we’ve just about reached the end of your program. We’d like to invite our guests, Laura Dunn and Brett Sokolow, to share their final thoughts; so Brett, let’s start with you. Also at the same time, please include your contact information should our listeners want to reach out to you.
Brett Sokolow: Sure. You can find me through our website which is www.ATIXA.org. There’s a 4,000 strong group of administrators who are working daily and diligently to improve the safety of campuses and compliance of Title IX and the Violence Against Women Act. In closing, I would simply encourage your listeners to become engaged in this topic and this process. We all are parents, we all are sons and daughters, many of us have college checkpoints and many initiatives before, and be more engaged and aware the public is. I think the farther we push the wheel forward as college universities get up to speed on doing this well, and I’m especially appreciative to groups that serve justice like Laura’s organization for the role that they have provided and do provide to help advance the cause of gender equity on college campus. So thanks for having me on.
- Craig Williams: Thank you. And Laura?
Laura Dunn: If you want to get ahold of me or anyone at Surv Justive, SurvJustice.org is our website and there’s an inquiry page there or you can tweet us, @SurvJustive, or find us on Facebook. I think in closing, my final thought is just to really point out to the legal community especially that there are many ways to get involved in this issue. A lot of people are focused on due process. The conversations that are happening there, they are very worthy discussions. And there are, of course, what Brett has been doing, working with schools, advising about it, making sure that there is compliance, and also addressing potential liability. But the third aspect that I think is often forgotten is this is really part of the example of victim’s rights. There are rights for individuals just as if they were plaintiffs in civil suits, and it is an aspect that is unfortunately often lost. A lot of these survivors really do need legal counsel and there’s a great opportunity for pro bono services to ensure that there is accommodations on campus, which is also a part of Title IX we didn’t get to touch on, make sure they still have access to their education, accommodations with classes and safety concerns. But also of course helping them through that process because there are unfortunately a lot of retaliation against survivors, whether for reporting, or even if a process has gone all the way through, there are starting to be lawsuits for the reports. So it’s a really rich area of law and I’m excited that it’s being covered and hope that attorneys will get involved.
- Craig Williams: Okay, well thank you very much for being on the program.
Laura Dunn: Thanks for having me.
- Craig Williams: That brings us to the end of our show, this is Craig Williams with Bob Ambrogi, thank you for listening. Join us next time with another interesting topic. When you want legal, think Lawyer 2 Lawyer.
Advertiser: Thanks for listening to Lawyer to Lawyer, produced by the broadcast professionals at Legal Talk Network. Join J. Craig Williams and Robert Ambrogi for their next podcast covering the latest legal topic. Subscribe to the RSS feed on legaltalknetwork.com or in iTunes. The views expressed by the participants of this program are their own, and do not represent the views of, nor are they endorsed by, Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the contents should be considered legal advice. As always, consult a lawyer.
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