July 28, 2015

The Honorable Lamar Alexander, Chairman Senate Health, Education, Labor and Pensions Committee 428 Senate Dirksen Office Building Washington D.C. 20510 Senator Patty Murray, Ranking Member Senate Health, Education, Labor and Pensions Committee 835 Senate Hart Office Building Washington D.C. 20510

Dear Chairman Alexander and Ranking Member Murray:

As a caring community of fraternity brothers and sorority sisters, we thank you and the other members of the Senate HELP Committee for convening an important hearing to review how Congress can combat campus sexual violence as part of the Higher Education Reauthorization process. We consider this a critical issue that impacts all students and institutions of higher education today. With the pending reauthorization of the nations higher education laws, now is the time to act. We hope Congress develops a comprehensive set of solutions that measurably improves campus safety, more effectively engages law enforcement to bring perpetrators of campus sexual violence to justice, clarifies the expectations of schools, protects the rights of all students and student organizations, and strengthens the long-term success of Title IX.

The North-American Interfraternity Conference (NIC) and the National Panhellenic Conference (NPC) collectively represent 110 fraternities and sororities with 725,000 undergraduate members on over 800 campuses in the U.S. and Canada, as well as close to 10 million living alumni. As such, our organizations and members represent one of the largest voices in the higher education community. We believe that we have a responsibility and obligation to confront issues facing our members and step forward to advocate for those students who may not have a unified voice.

Sororities and fraternities are very engaged on the front lines of the fight against campus sexual violence. Our organizations provide our 725,000 students with ongoing training and education on bystander intervention, survivor support, risk management and other strategies that make a meaningful difference in improving campus safety. Every day of the school year, tens of thousands of alumni volunteers work with our student members and those efforts include education, prevention activities, and a support system for students affected by sexual violence. At the local and national level, fraternities and sororities collectively raise millions of dollars and provide innumerable volunteer hours serving charitable organizations that offer a range of programs and services to address sexual violence on campus and in society. In short, the collective experiences of our students and alumni allow the NIC and NPC to contribute to the policy debate surrounding campus sexual violence.

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We write today to provide our organizations perspective on how Congress can reduce and better respond to campus sexual violence through the Higher Education Act reauthorization process. While we take no position on the Campus Accountability and Safety Act (CASA), we offer a series of ideas that in many respects complement CASA and will complete the policy puzzle as Congress considers this critically important issue. We acknowledge there are meaningful elements of the puzzle that wont be addressed by this weeks hearing or our letter to you today. Overall, the entire puzzle needs to be solved by Congress in order to have a comprehensive fix for the current system. We encourage your committee to provide equal attention to all pieces of the puzzle before finalizing solutions during the reauthorization process.

We start from the perspective that the current response system for handling campus sexual violence cases must be improved. All groups students, organizations, host institutions and local communities can be better served when new approaches are viewed as possible solutions. As leaders on campuses in communities, we want to advance ideas to improve the status quo.

We make the following broad observations:

We see too many alleged victims without justice. There are too many instances where alleged perpetrators of sexual violence are not being held accountable for their actions via the criminal justice system, compounding the harm to survivors.

We see too many students uneducated about their role in preventing sexual violence. There is an ongoing need for schools to work with all available entities to educate and engage students.

We see too many students - accusers and accused - subjected to a campus disciplinary system that is unfair and opaque even as the stakes in these cases carry life-altering consequences for all parties. We want a system with stronger due process protections for all students to build confidence that the result reached in the campus disciplinary process is the correct one.

We see unprecedented punitive actions against student organizations, taken without meaningful due process protections, creating a chilling effect that undermines broader goals in fighting campus sexual violence. There is a need to provide student organizations with the same due process rights of individual students.

Student Due Process

The lack of due process rights for students in the adjudication of campus sexual assault claims is a major problem. It undermines public confidence in the process and exposes schools to litigation by any losing party who feels the process was tilted against them from the start. We note that, this past April, a number of prominent victims rights groups wrote an open letter to university presidents talking about how the lack of due process protections ultimately harmed the interests of victims as much as it does the accused students.

While the list of potential due process improvements we identify below is long, and we recognize other organizations may have a much broader array of due process rights they want Congress to

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consider, we start with simple rights that should be enshrined in the law. Congress should ensure that:

The same suite of due process rights is given to both parties in these campus adjudications.

A comprehensive overview of the involved charges, the process for handling those charges, and the potential penalties involved are available to involved students at the start of the disciplinary process.

Students have access to all evidence collected in the case far enough in advance to use that information during the disciplinary process.

Students are able to hire an attorney or advocate, at their own expense, that is fully empowered to represent a student throughout the proceeding. It is unfair to expect students to navigate the complex disciplinary process, particularly when a concurrent law enforcement investigation may be underway, without meaningful access to legal counsel in campus proceedings where the potential sanction imposes a life-changing sentence on the involved parties.

Students involved in these cases may meaningfully and respectfully cross-examine witnesses.

No university official is allowed to play multiple roles in the disciplinary process. Separate individuals should play the roles of investigator, prosecutor, judge, jury, and appellate authority.

The school selects the burden of proof it deems most appropriate for sexual violence cases rather than having that standard mandated by a Department of Education Dear Colleague letter that did not go through the appropriate rulemaking process.

Organizational Due Process

Student rights on campus cannot be compromised just because a student is active in a campus organization. The intense public scrutiny of the campus sexual violence problem has led to organizations being disciplined without cause. Allegations of crime or misconduct against an individual are being used to suspend activities for organizations to which the accused student belongs, even if the organization is not suspected of contributing to the crime or misconduct. More alarmingly, in some cases, schools have actually imposed a blanket suspension on thousands of men and women in dozens of organizations who have no involvement in the incident under investigation.

These actions are often arbitrary and capricious in nature. In just this past year, numerous fraternities and sororities were suspended across the country for allegations involving students and events where they had no direct relationship. Conversely, major sports teams in college football and basketball suffered not so much as a missed practice on the road to playoffs and March Madness even as members of those same teams were under active investigation for crimes of sexual violence.

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The baseless suspensions of our organizations are antithetical to the concepts of due process, and we are particularly concerned that the suspensions will actively discourage future reports of campus sexual violence. Schools have been responding to a womans allegation that a crime has been committed by actually suspending the largest womens leadership organizations on campus, none of which are involved in the allegations. In these cases, schools are ultimately telling women they will be penalized for coming forward and the result will be a reduction in future reporting.

Consequently, Congress should ensure that student organizations receive the same due process protections that individual students receive during a campus sexual violence disciplinary proceeding.

Role of Law Enforcement

A number of prominent higher education associations have written the HELP Committee in the past 18 months asking you to address the fundamental flaws inherent in the current process that requires concurrent investigations by the school and local law enforcement. We echo those requests.

There is a vast difference in the resources, expertise and time needed to handle sexual misconduct, where an educational sanction is the best remedy, and crimes of campus sexual violence, where law enforcement is best equipped to deliver justice to the victim. Current Department of Education guidance pressures schools to investigate and adjudicate sexual violence allegations in as little as 60 days, even if a parallel law enforcement investigation is underway. Thus, current law creates a situation where not all crimes of sexual violence are being reported to local law enforcement to allow for investigation and prosecution.

The best way to reduce the rate of sexual violence on campus is to ensure those who commit an act of sexual violence are punished in a manner that befits the crime. Congress should therefore encourage students to come forward and report more such campus crimes to law enforcement and allow the best trained, best equipped professionals the time to investigate before a campus handles the sexual misconduct case. For that reason, we support allowing law enforcement a 30-day period of temporary exclusive jurisdiction to investigate campus sexual violence allegations before a campus investigation and adjudication begins. We would also propose that Congress change the law and allow the 60-day campus adjudication clock required by the Department of Education to be tolled during the time local law enforcement has exclusive investigation authority.

We do not, however, believe that institutions should sit idly by as the law enforcement process plays out. To the contrary, we believe that Congress should authorize institutions to take powerful interim measures to safeguard students during law enforcements temporary period of exclusive jurisdiction. We believe those measures should include more than the traditional changes in class schedules, residential assignments and no-contact orders. We support giving schools the statutory right to temporarily suspend a student under criminal investigation if there is a finding that the student poses an ongoing risk to the safety of other students. We also believe that suspension decisions should be revisited regularly to protect students due process rights, with the school required to demonstrate the student under criminal investigation poses an ongoing threat to campus safety. Finally, we also believe that Congress should allow schools to suspend any student indicted for a crime of sexual violence, for the duration of the criminal proceeding, as they pose an ongoing threat to the safety of other students.

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Preserving Title IX

Title IX is at the heart of the campus sexual violence process, as ultimately the landmark law requires an educational experience that does not tolerate gender-based discrimination. Fraternities and sororities played a key role in supporting the passage of Title IX and making sure it included language that allowed single-sex organizations like ours to continue to operate. Since the passage of Title IX, our organizations have flourished and we currently enjoy record levels of student membership. The demand for single-sex leadership, fellowship, scholarship, service and friendship through our organizations has only increased in todays tech-obsessed society.

We are concerned that the fight over campus sexual violence has been used as a weapon to undermine the single-sex status our organizations enjoy under the law. Some schools cite sexual misconduct or other misconduct on campus as justification to require our groups, or their campus governing bodies, to adopt co-educational membership policies despite the clear language and intent of the single-sex exemption our groups have under Title IX.

In the past, Congress has used the higher education reauthorization process to remind the public that Title IX is working and that the single-sex organization exemption has been very successful. We ask Congress to do so again in the upcoming reauthorization and to add language preventing schools from forcing single-sex organizations to adopt co-educational policies as a solution to a campus sexual violence problem.

Volunteer Liability

Many student organizations are heavily reliant on alumni volunteers to provide training, support, guidance and institutional knowledge. This is especially true of fraternities and sororities where there is some level of expectation that alumni will help students find success in their chapter experience. Our alumni volunteers are trained to manage risk, report crimes of violence to the authorities, and help support students.

In the evolution of campus security laws, we are concerned that schools may adopt requirements that alumni volunteers for student organizations become recognized campus security personnel, with distinct obligations to the university for training, reporting and other duties. We are concerned that student organizations will be penalized or even lose their campus recognition if they cant recruit alumni volunteers willing to be campus security personnel. Alumni may be hesitant to volunteer in instances where they have new potential liability.

We encourage Congress to clarify the laws to make it clear that alumni volunteers who are not already employed by the host institution cannot be designated as campus security personnel in order to volunteer. We also support language to make it clear a school may not punish a student organization or withdraw its recognition if the alumni serving the group as volunteers do not serve as designated campus security personnel.

Education and Prevention

We recognize that much has already been done via the Clery Act and the recent Violence Against Women Act amendments from 2013 to provide a framework for schools to educate students about

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all aspects of the campus sexual violence process. We support any legislative efforts to continue to refine the education, training, prevention and survivor support programs offered at institutions. In particular, we encourage Congress to consider focusing more attention on educating students in their first few months on campus, when they are most vulnerable in their new environment.

Existing Legislation

Many of these ideas are reflected in a new piece of legislation, the Safe Campus Act, introduced by your colleagues in the House of Representatives this week. The NIC and NPC have endorsed the Safe Campus Act for that very reason and we encourage the HELP Committee to rely upon the bill during the HEA reauthorization process. Safe Campus does not generally address the subjects that are being addressed in CASA. Rather, we see each of these bills as another piece of a comprehensive solution to the campus sexual violence problem and commend them to your attention.

Thank you for your consideration of our perspectives. We admire your leadership in tackling these difficult policy discussions at such a key moment. The NIC and NPC stand ready to meet with your offices at any time to talk about our experiences, our expertise and our commitment to student safety and success.

Sincerely Yours,

Pete Smithhisler President & CEO North-American Interfraternity Conference

Jean Mrasek Chairman National Panhellenic Conference