CAPPA Position Statements and Letters of Support
CAPPA LETTER TO THE DEPARTMENT OF EDUCATION REGARDING THE NOVEMBER 29, 2018 NOTICE OF PROPOSED RULEMAKING AMENDING REGULATIONS IMPLEMENTING TITLE IX OF THE EDUCATION AMENDMENTS OF 1972
Issued January 28, 2019
Due to the length of this letter, please find it in full text here.
For PDF format here.
CAPPA POSITION STATEMENT ON TITLE IX IMPLEMENTATION FOR CAMPUS SEXUAL ASSAULT
September 13, 2017
The Campus Advocacy and Prevention Professionals Association (CAPPA) represents professionals working on and with a wide range of college and university campuses to prevent gender-based violence and to support and advocate for the educational and wellness needs of survivors of gender-based violence. Navigating accountability processes and accommodations resources that preserve our students’ educational access comprises a significant portion of our work and expertise.
Last week, Secretary of Education Betsy DeVos signaled her intention to replace subregulatory guidance on how federally funded educational institutions address Title IX as it relates to sexual assault. In anticipation of interim guidance, CAPPA joins with coalitions of student survivors, higher education professionals, and legal advocates and makes the following policy recommendations, grounded in both the experiences and knowledge of thousands of our students as well as research-based practice and legal and legislative precedent.
Affirming preponderance of the evidence as the appropriate evidentiary standard in disciplinary proceedings
We can link the appropriate standard of evidence in Title IX cases to two concepts: seriousness of the penalty imposed (which in these cases will never exceed anything other than expulsion from a given institution) and the standards employed in similar kinds of cases.
Title IX demands that both higher education and K-12 institutions receiving federal funding address sexual discrimination: behavior that overlaps the realms of student conduct, civil rights, and criminal law. Detractors of the 2011 Dear Colleague letter have made an effort to portray the preponderance of the evidence standard as new and lacking in precedent and merit.
However, the 2011 Dear Colleague letter is a further articulation of guidance from Department of Education guidance provided in 2001. In that guidance, the Department of Education reaffirms that the definition of actionable gender-based harassment derives from a Title VII-based definition of harassment. Given that preponderance is the standard in Title VII discrimination cases, it is only appropriate to use a consistent and established standard of evidence for both types of civil rights cases. To do otherwise means that Secretary DeVos is advocating that children in K-12 schools and students in higher education are less deserving of civil rights protections than adults in the workplace.
It is worth posing the question of whether the push to abandon preponderance as the evidentiary standard is designed to limit the likelihood of any student being found responsible for sexual misconduct via campus disciplinary and Title IX processes. We are in agreement that the charge for schools is to safeguard the educational civil rights of students who have experienced gender-based violence and sex discrimination and not to create a copy of the criminal legal apparatus. Certainly, then, schools will never have at their disposal the power of subpoena, criminal discovery processes, or crime labs, nor should they. Schools are not finding students guilty or not guilty of violating criminal statutes. If it is impossible to meet the clear and convincing standard with the investigative tools and structures available, it renders the policies, accountability, and remedies of a civil rights process functionally meaningless.
Trauma-informed processes are key to procedural equity
Title IX originally charged institutions with providing a prompt and equitable response to sexual harassment. The 2001 guidance from the Department of Education further charges institutions with taking “immediate effective action.” Equity neither requires nor implies identical treatment, and indeed the Department of Education has long required interim, non-punitive measures to remedy the effects of sexual harassment, of which gender-based violence is an established component.
The question at issue in disciplinary proceedings is whether a respondent’s behavior is a violation of the institution’s code of conduct and Title IX policies, and complainants, respondents, and institutions benefit from a full and fair investigation to make that decision, as well as (when policies are violated) a decision about the appropriate sanction.
Institutions and student affairs professionals can and should respond to the acute wellness and educational civil rights needs of survivors, needs which exist separately from and not mutually exclusive to the questions of accountability and procedural due process.
As professionals, we consistently see the stress of students involved as respondents in conduct processes equated to and conflated with the trauma of students who have experienced gender-based violence. Certainly, regardless of whether an individual student is found responsible for a conduct violation, it is appropriate to offer respondents in gender-based violence cases psychological counseling resources, and stress or crisis management tools via the institution’s existing structures or via referrals to off-campus resources. However, respondents have not experienced a trauma (that is, exposure to actual or threatened death, serious injury, or sexual violence) in the context of the specific behavior at issue in the disciplinary case. Creating a false equivalency between these two experiences prevents us from providing appropriate services to both students.
The VAWA Amendments to the Clery Act--promulgated after an extensive negotiated rulemaking process--already require institutions to notify complainants and respondents of their right to an advisor of their choice in campus disciplinary processes for gender-based violence. We support this regulation, whether that advisor of choice is an attorney or a trained campus or community-based advocate.
Trauma-informed investigation protocols and adjudication processes best serve the goals of procedural equity and due process. This approach is considered best practice by victim advocates, education professionals, and law enforcement agencies. We have and will continue to advocate for trauma-informed systems and protocols as a mechanism for procedural equity.
It is worth noting that professional associations of attorneys and the faculty of law schools have been some of the most vocal proponents of processes which are not trauma-informed and mirror the criminal system’s use of attorneys as gatekeepers of student rights and options. These formats systematically disadvantage both reporting and responding students who can’t afford an attorney and are structured primarily for the benefit of the legal profession, not the students trying to navigate them.
Title IX ultimately compels us to preserve educational opportunity for those who have experienced gender-based violence and discrimination. And yet, the actual harm to educational opportunity and the academic and economic impact on survivors are always subordinated to the hypothetical future impact on respondents.
Accountability is necessary for repair and prevention is necessary for wellness
One of the most disturbing parts of Secretary DeVos’ and her staff’s comments on Title IX to date has been perpetuating the myth that no college student really has any inappropriate or abusive sexual behaviors: they are all either victims of false accusations by scorned former partners or unwitting victims of the “campus sex police.”
Every institution, regardless of the student population served, has individuals who have harmed others with their inappropriate and abusive sexual behaviors or who are at risk to harm others. There are pressing and important questions at hand: about how to ensure that our campus-based conduct processes do not replicate the racial and economic injustices so entrenched in the criminal system; about how to apply sanctions and remedies to cases that advance the goal that our students may live safely in the campus community--without fear of further harm and without harming anyone further; and about how we ask more from our students in terms of their respect and care for others and give them the tools to be successful in that charge.
Prevention professionals have at their fingertips solid evidence-informed strategies for educating students in this realm. These are focused on what decades of scholarship tell us about what factors are associated with harming others, especially in late adolescents and young adults, who comprise the majority of our students. These include both individual-level risk factors like a preference for impersonal sex and hostile masculinity, as well as community-level risk factors like general tolerance for sexual violence and weak community sanctions for sexual violence. It is our responsibility as student affairs and allied professionals to address the full range of risk factors in order to enable our students to live safely and thrive, not just on our campuses but in their family systems and post-education lives.
Finally, we are compelled to focus on prevention work not simply because of the Title IX charge to prevent recurrence of harassment which creates a hostile environment, but for a broader vision for our students, from kindergarten through graduate and professional schools. At some point, the DeVos Education Department will issue interim and final guidance on campus disciplinary processes, which may or may not align with best practice in a range of fields. Yet those protocols will always proceed from an inflection point where someone was already harmed. Our campuses can be free of gender-based violence, but only if we combine equitable accountability processes, trauma-informed and accessible survivor support, and comprehensive prevention education. This is the commitment Advocates and Preventionists have made to this field and the survivors we serve, and this is the charge we will continue to follow.
The Campus Advocacy and Prevention Professionals Association (CAPPA) is the professional association representing over 500 professionals in 48 states, the District of Columbia, and 3 countries working as campus-based advocates and prevention specialists. CAPPA envisions campuses free from all forms of interpersonal and gender-based violence, including dating and domestic violence, sexual assault and harassment, and stalking. For more information visit: http://www.nationalcappa.org/
Meg Bossong, co-chair, Professional Standards and Legislative Advocacy Committee
Source: Campus Advocacy and Prevention Professionals Association
CAPPA LC Statement on Campus Victim Advocates Serving as Campus Security Authorities
August 15, 2016
Lynn Mahaffie, Esq.
Deputy Assistant Secretary for Policy, Planning, and Innovation
Office of Postsecondary Education
Department of Education Building
400 Maryland Ave, SW
Washington, DC 20202
Re: Campus Victim Advocates Serving as Campus Security Authorities
Dear Ms. Mahaffie:
The Campus Advocates and Prevention Professionals Association (CAPPA) is a professional association dedicated to providing a community of practice for campus-based and campus-serving advocates and prevention specialists who work to end all forms of interpersonal and gender-based violence, including dating and domestic violence, sexual assault and harassment, and stalking on campus. We are writing on behalf of our nearly 400 members due to concerns about new language in the Handbook for Campus Safety and Security Reporting (2016 Edition) related to campus victim advocates* serving as Campus Security Authorities (CSAs) and their obligation to report.
New language in the 2016 Handbook (page 4-3) instructs campuses to consider victim advocates as those who "generally meet the criteria" as Campus Security Authorities (CSAs). This change is a significant departure from the previous Clery handbook, which indicated that victim advocates were not CSAs unless the campus designated them as officials to whom victims should report crimes. For victim advocates who are designated as confidential resources, the change poses significant concern.
Further, victim advocates who are designated as confidential resources do not fall within any of the "four groups of individuals and organizations associated with an institution" as outlined in the Handbook (page 4-2). The fourth of these groups includes a wide variety of individuals, including, "An official of an institution who has significant responsibility for student and campus activities, including, but not limited to, student housing, student discipline and campus judicial proceedings." Victim advocates generally do not have responsibilities for housing, administering judicial proceedings, or student discipline. Ostensibly, a student's decision to seek care from a victim advocate after experiencing sexual assault or dating violence is not a "campus activity."
The language following this statement indicates that those who are identified as confidential should report non-identifying information in an effort to protect the confidentiality of the victim. Our members have indicated that this new language has been interpreted in widely different ways from institution to institution. Many campus victim advocates are concerned that the interpretation of this reporting requirement by colleges and universities could undermine confidentiality. There are critical context considerations that must be a part of the reporting equation. For example, while reports are designed to eliminate personally identifiable information, this does not consider the ecology of a campus. A date, time, and location might not identify a victim to the general public, but this information could easily identify that person to other students, particularly on smaller campuses or when the location is tied to a residence hall or student group location, such as a fraternity house.
CAPPA members have also voiced concerns that this language will cause their universities to take action based on information victim advocates would be required to share, including issuing timely warning notifications to the campus community and publishing information in the daily crime log. In most cases when a victim seeks a confidential advocate, the victim is seeking to explore options confidentially and has no intention of sharing such information with reporting authorities and much less the campus community. A requirement for advocates to serve as CSAs and provide any information about the victim would undermine the confidential space created by advocates. Victim advocacy programs provide a much-needed venue for members of the university community to learn about available options and rights and receive support without any actions beyond those they desire.
In addition, if these reports would be subject to open records requests or inquiries from the media, victims could see one of their last on-campus spaces for confidential, self-determined support eroded after the fact by seeing their story in media without their consent. It is not safer for victims nor the campus community to fear retaliation from their peer groups and perpetrator after an email is distributed to the entire campus community. These notifications often provide enough information to make reasonable assumptions about the identity of the victim. Given that Clery requires third-party information to be reported via CSAs, victim advocates could find themselves reporting information that not only the victim does not want shared but also information that a victim may not know is being shared about them.
We request a revision to the aforementioned Clery guideline language, so that it explicitly states that campus victim advocates who are designated as confidential not be designated as CSAs. We recommend that the guidance instead ensures that victim advocates provide victims with the option to report their information in the Annual Security Report (ASR) and for review for timely warning, after the victim advocate is able to provide them with the benefits and limitations to confidentiality of those next steps. We ask as well that providing aggregate statistics be at the discretion of the victim advocate in accordance with professional licensure, state statute, and safety considerations for victims. We share your hope that incidents of campus interpersonal violence are counted, while balancing the need for these vital confidential spaces.
As campuses become more and more responsive to interpersonal violence, we do not want to lose track of the needs of those most directly affected by this violence and the importance that they have consistent access to confidential spaces. To do this, the professionals who serve these victims need clear expectations and guidelines that allow them to protect the confidentiality with which they are entrusted. We share your hope that campuses are not able to hide incidents of interpersonal violence, but we also know that many victims and loved ones of victims need confidential spaces. Research has shown us that these spaces increase the likelihood that victims and their loved ones will seek help and consider active participation in campus and legal processes.
We would love to engage in further conversation about this critical issue. You can reach us at firstname.lastname@example.org.
The Leadership Council of the Campus Advocates & Prevention Professionals Association (CAPPA):
Katie Vance & Marianne Frapwell, Co-Facilitators
Lee Helmken & Shannon Collins, Membership Co-Chairs
Connie Adams & Drew Rizzo, Networking Co- Chairs
LB Klein & Shana Ware, Professional Standards Co-Chairs
Wanda Swan & Kelly Wilt, Communications Co-Chairs
Meg Bossong & Casey Malsam, Training Co-Chairs
Jill Dunlap & Marina Wood, Research & Practice Co-Chairs
Ellen Hartman, Legislative Advocacy Chair
* We are using the terms “victim” and “victim advocate” for consistency with terminology utilized in the Clery guidance, recognizing that many members of our field use the term “survivor,” “survivor advocate,” “victim/survivor advocate,” and other terminology.