1 Statement for the Record by Janet Halley, Royall Professor of Law, Harvard Law School,1 for U.S. Senate Health, Education, Labor and Pensions Committee Hearing, “Reauthorizing the Higher Education Act: Combating Campus Sexual Assault,” July 29, 2015. Thank you for inviting me to address the important issue of campus safety, sexual misconduct on campus, and due process in our institutional responses. My experience leads me to stress one principle: only a robust and balanced response that guarantees due process for both the complainant and the accused can ensure a healthy academic environment for all of our students. Only then can we be confident all of our youth in college will be safe, protected from sexual misconduct and free of institutional over-reaching and simple incompetence. The days when institutions of higher education could use slipshod procedures to address complaints of campus sexual misconduct are, thankfully, over. The window of opportunity to install just and effective processes in their place remains open. Colleges and universities nationwide are now installing new disciplinary procedures. A few years’ experience with their operation provides important information on reform work still to do. I have assisted both complainants and accused students at Stanford University and Harvard University, have written scholarly articles and books on the legal regulation of sexual conduct, and have participated in the administration of student discipline and sexual harassment complaints at Stanford. My experience and study tell me that some recent reforms have brought new problems of fairness and due process for both complainants and those accused which threaten the effectiveness and legitimacy of the important progress we have made. Incorrectly believing that they are required to do so by the Department of Education Office for Civil Rights, institutions of higher education are making all employees, with extremely narrow exceptions, into mandatory reporters – people who must convey to the Title IX Office information about alleged sexual misconduct whether or not the potential complainant wishes them to do so. This deprives students who may be victims of misconduct of their autonomy and exposes them to serious harm at the hands of University administrators. It also deters students from seeking adult help and advice when they are experiencing doubts and distress, and interferes with the faculty’s and staff’s ability to mentor, counsel and care for our students in an atmosphere of trust, particularly when they may need us most. The parties are given narrow opportunities to resolve cases through mediation, and no such opportunities where the allegations involve sexual assault. It is crucial to remember that the definition of “sexual assault” goes well beyond the inexcusable cases involving violence or rape where it is hard to imagine mediation being warranted. The bar on mediation also applies to unwanted bodily contact deemed to be sexual in nature, and these cases, in my experience, are sometimes best resolved by sensitive mediation. Without that pathway, the options for those who feel they have experienced sexual misconduct are narrow: criminal punishment, student discipline or silence. Complainants often express frustration with this narrow array of choices; they object to the lack of a non-punitive option. Congress should listen to this, just as we in higher education should. Student misconduct policies should model the arts of social mediation, negotiation and peacemaking as well as providing severe sanctions in the severe cases, where the complainant seeks that outcome. Indeed, education is what educational institutions are most centrally about, and that mission is being forgotten in the rush to punish. For example, we must educate ourselves and our students about the differences between a “sexually hostile environment” and the lively exchange, debate, and exploration of

1

Affiliation provided for identification purposes only.

2 ideas that campuses exist to foster. Sexual conduct can be verbal, and too many cases charge sexual harassment for speech academic speech, open debate, and even First Amendment free speech. Title IX procedures are being cut off from normal disciplinary processes and are being run by administrators focused exclusively on sexual misconduct and compliance with laws addressed solely to that very severe problem. While this specialization has some benefits, it also runs serious risks. It attenuates awareness of and vigilance against race discrimination, including unconscious bias, which is just as much a problem in student sexual interactions as it is anywhere else in our society. In my experience, the rate of complaints and sanctions against male (including transitioning to male) students of color is unreasonably high. The process does not pause to make sure that accused students with disabilities are offered accommodations they need to defend charges against them. Students who lack family money to pay for lawyers are at a drastic disadvantage in the process, and, given the considerable resources institutions must invest in providing support for complainants, this problem cuts strongly against the accused. Providing scant due process for these particularly vulnerable groups of accused students runs the very real risk that innocent students are being held responsible, sanctioned, and given tainted records that will haunt them for years. Procedures that put accused students at a disadvantage may also harm complainants, should they find themselves in a “he said / she said” of reciprocal complaints. College and university procedures often tilt the process unfairly in the following ways:  The accused has no right to see the complaint. This is fundamental to due process no matter how narrowly conceived.  The accused has no opportunity to argue that, even if true, the complaint should be promptly dismissed for failure to allege disciplinable misconduct, and administrators are under the incorrect impression that they cannot dismiss bad cases without incurring the ire of DOE. As a result, those accused are often made to defend cases that should have been dismissed early. The resulting process can take months and exact severe costs in distress, behavioral restrictions, educational impacts, and expenditure. None of this should happen when a conclusion of no responsibility is foreordained.  The entire disciplinary process is administered by Title IX officers, who advise complainants how to file their complaints, receive the complaints, conduct the investigation, hold the hearing if any, decide on responsibility, and hear any appeals. A decision-maker designed this way lacks neutrality and independence and is inherently biased. Many rightly perceive this process to be unfair: far from vindicating our values, this squanders the legitimacy of a vital enterprise. Minimal due process requires truly independent and neutral decision-makers, separated by function to provide accountability.  Many campus processes lack a hearing. The investigator interviews the complainant, then separately speaks with the accused person and any witnesses, without providing basic information to the parties about what he or she is being told. Both parties are completely in the dark until the decision-maker drafts a report tentatively finding the facts, at which time their input is limited to objections to a fait accompli. This is a terrifying process for both parties and disables them from putting their best information forward. It is essentially a Star Chamber. Given the seriousness of the stakes for both parties and for the vindication of institutional values, it is a shocking deprivation of fair process.  Even when there is a hearing, proper concern for the well-being of complainants has led to unfair restraints on the right of the accused to probe evidence and ask questions. We call this a “right to confrontation” in criminal procedure, which makes it sound harsh and acrimonious – but it need not be. Procedural fixes allowing for a full defense without exposing complainants to harassment and unfair questioning are ready at hand and are fundamental to a fair process.

3 We have come a long way, but have some further reforms to make before we can say that this wave of reform has been a success. Thank you for your concern about campus safety and campus sexual misconduct, and about the installation of fair and effective procedures to address them.

Janet Halley [email protected] July 28, 2015