Senate Hearing on Campus Sexual Assault Puts Official on the Hot Seat

June 23, 2014

The federal government’s role in combating campus sexual assault sparked a debate at a Senate hearing on Thursday, as lawmakers weighed the Education Department’s enforcement authority.

With opposing views of what that authority should be, the two highest-ranking members of the Senate’s education committee grilled a top Education Department official on what the department was doing to enforce the gender-equity law known as Title IX.

Sen. Tom Harkin, an Iowa Democrat who is the committee’s chairman, suggested that the department needed more power to compel colleges to respond effectively to students’ reports of sexual violence and harassment. But Sen. Lamar Alexander of Tennessee, the top Republican on the committee, suggested that the department had already overstepped its authority by issuing guidance independently.

The committee’s hearing came on the heels of discussions led by another senator who plans to propose legislation aimed at improving how colleges handle sexual assault. It also came as colleges are struggling, under pressure from activists and the White House, with how to carry out their legal responsibility to investigate and respond to students’ reports and to provide a safe learning environment. The Education Department is now investigating more than 60 colleges for possible violations of Title IX involving alleged sexual misconduct.

‘Who Gave You the Authority?’

The committee heard from five witnesses invited to testify, including two federal officials and two former victims of campus sexual assault.

At the beginning, Catherine E. Lhamon, the department’s assistant secretary for civil rights, was on the hot seat. Mr. Harkin asked her if the department had ever revoked an institution’s federal funding—what he called the "nuclear option"—for not complying with Title IX rules on sexual assault.

When she replied that it hadn’t, Mr. Harkin argued that, given the magnitude of the problem, the department should have more sanctions available, such as requiring colleges to allocate funds to investigate alleged sexual assaults and to put programs in place to prevent them.

The department has enough authority, Ms. Lhamon replied.

But what to her was enough to Mr. Alexander was too much. He pointedly suggested that by issuing guidance to campuses without first seeking public input, the department had overstepped its bounds. "Is this the law?" Mr. Alexander asked. "Who gave you the authority to do that?"

Guidance documents from the department that have sent colleges scrambling to shore up their policies include a "Dear Colleague" letter issued in 2011 and a 52-point series of questions and answers released this past April. By contrast, Mr. Alexander said, proposed new regulations under a law that Congress passed last year (S. 47) to reauthorize the Violence Against Women Act are now open for public comments, according to the established rule-making process.

‘Gaps’ in the Legislation?

Those proposed new regulations would amend the campus-crime-reporting law known as the Clery Act by requiring colleges to provide prevention programs for a number of types of sexual violence and harassment, including not only sexual assault but also dating violence, domestic violence, and stalking. Colleges would also have to track and report incidents of those offenses.

Whether those changes adequately deal with the issue was another question at Thursday’s hearing.

Sen. Bob Casey, Democrat of Pennsylvania, asked what "gaps" still existed in the amended law and regulations.

James L. Moore III, compliance manager in the Education Department’s Clery Act compliance division, said that despite the work that had gone into drafting the proposed new regulations, they may not resolve every question. "You can guarantee that there’s a piece here or there that we didn’t consider," he said, "and we will have to go back and address that."

One of the federally appointed negotiators who helped produce the proposed rules, however, advised a cautious approach. In a letter to the Senate committee, S. Daniel Carter, director of the 32 National Campus Safety Initiative of the VTV Family Outreach Foundation, an advocacy group representing survivors and victims of the mass shooting at Virginia Tech in 2007, urged lawmakers to wait until the new regulations go into effect before proposing more legislation.

"We just don’t want to reinvent the wheel," Mr. Carter said in an interview. "We simply need to give the recently instituted law the opportunity to take effect."

Going to the Police

The American Council on Education and the American Council of Trustees and Alumni also submitted statements to the Senate committee. Both highlighted the importance of involving law enforcement in investigating allegations of sexual assault on campuses. ACE’s statement said: "Because colleges and universities may lack the expertise and resources needed in these areas, we believe it is essential to work closely with local law-enforcement agencies when sexual-assault cases arise."

Sen. Sheldon Whitehouse, Democrat of Rhode Island, expressed concern that some colleges do not have good working relationships with local police departments, a situation that can deter students from reporting sexual assaults to law enforcement.

Ms. Lhamon strongly agreed with Mr. Whitehouse’s concern. She also expressed fear that some police departments were not equipped to handle sexual-assault cases in general. "At some colleges, there is not local law enforcement nearby that can take a rape kit," Ms. Lhamon said.

Both of the former victims of campus sexual assault who attended the hearing—John Kelly, a student at Tufts University, and Emily Renda, special intern in the office of the vice president at the University of Virginia—also expressed concerns about going to the police.

Ms. Renda said victims may initially be too traumatized or worried about the perpetrator’s reaction.

Mr. Kelly, who was assaulted by another man, said he was wary of going to the criminal-justice system because, as Senator Whitehouse suggested, cases like his would be hard to prosecute under many state laws.

States’ definitions of sexual assault and rape vary widely, Mr. Kelly said in his prepared testimony, "and only some sufficiently recognize male survivors and victims of same-sex violence." The federal government’s definitions of rape also vary, he said, contributing to a "chronic misrepresentation of rape outside of the male perpetrator, female victim context."

Mr. Kelly advocated that a standard definition of sexual assault be adopted for colleges nationwide.

Two other Democratic senators at the hearing, Tammy Baldwin of Wisconsin and Patty Murray of Washington, also expressed concern that LGBT sexual violence could be better handled by colleges, both in investigations and in prevention programs.

Prevention Programs

What colleges can do to prevent sexual assault, and how to pay for prevention programs, were also discussed at the hearing.

Ms. Lhamon said she hoped to see all colleges completing campus-climate surveys to identify how safe students feel, dubbing such efforts "an important first step." Climate surveys can help colleges gauge how safe students feel as well as measure how successful prevention programs are, she said.

She also said a grant program to help campuses deal with sexual-assault prevention "would be enormously helpful" for the division of the Education Department she leads, the Office for Civil Rights. "I can’t tell you how much that tool would mean to us."

The American Council on Education also said in its prepared statement that "Congress should support funding for research into sexual-assault education and prevention training programs."

Ms. Lhamon added that she had a "real jealousy" that the Justice Department’s Office on Violence Against Women has a grant program specifically to reduce sexual assault, dating violence, and stalking on campuses.

The fifth witness at Thursday’s hearing was Jane Stapleton, a co-director of a research unit at the University of New Hampshire known as Prevention Innovations: Research and Practices for Ending Violence Against Women. She revealed during her testimony that she had been asked to complete a study on prevention efforts for the White House Task Force on Campus Sexual Assault. She said the results should be out in January 2015.

Mr. Harkin concluded the hearing by saying that guidance for campuses on how to handle sexual assault would be a part of the Senate’s legislation for reauthorizing the Higher Education Act. He said he would use information from the hearing to help him decide what to add to the legislation.

Mr. Moore, of the Education Department’s Clery Act compliance division, added that when institutions issue their campus-security reports this October, his office will be looking to see the ways that colleges are carrying out the Campus Save Act.

"We are going to issue additional guidance in the coming days to reiterate that institutions have to make their best, good-faith effort in this first year" to comply with the new law’s requirements, Mr. Moore said.