Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Dan;

Lots of people have thoughts about the bill.  Mine are my own.  You've done a lot of great work over the years.  We're not required to agree with each other.

The bill produces no value except to schools.  All the things you say about what Campus SaVE intends to accomplish are already required under Title IX and needn't be codified. And because the shady language can be construed harmfully, in the manner I describe, why risk making things worse.  The DCL holds a lot of promise, but NOT if this bill passes.

The fact that elite schools are pushing this bill - HARD - is enough for advocates who've been complaining for years about systematic lack of response to be very suspicious.

Let's just say, the worst performing schools gain the most by supporting a bill that arguably gives them the freedom to keep doing the harmful things they've been doing.  If this bill becomes law - it will be even harder for victims to get to OCR -- which is the only source of oversight, such as it is.  Frankly, what we really need is a change in federal law to eliminate the liability disparity that incentivizes schools to side with offenders.  I don't like suing schools, and most of my clients want to retain a good relationship with their alma mater, so I'm not saying we need MORE lawsuits.  I'm arguing for liability detente - everyone should have the same POTENTIAL to sue. Then there will be fewer actual suits because schools will, in fact, be more fair.

In the meantime, there's no value in this bill that doesn't exist in the DCL and regulatory authority.

When a bill adds nothing, and opens dangerous doors, we should put the brakes on.

That's not a lot to ask.

And when the worst offending schools are aggressively supporting the bill - we should not only put the brakes on, we should drive the train right off the tracks.

I realize people disagree and that's fine.  Lots of groups are very attracted to the training possibilities included in the bill - but training doesn't help if the training occurs in a venue where the paradigm has shifted violence against women away from a civil rights model, toward something "other" and there's a serious danger that the isolation of violence against women in this bill will legitimize the idea that all other targeted violence is a "civil rights harm", but not violence against women.  Why else would Congress pass a law about the judicial proceedings that must be used to redress violence against women, but not make them equally applicable to all forms of targeted violence on campus?

I'd love to see whether advocates who care about racism, ethnic prejudice, religious prejudice, etc., would embrace these provisions and welcome them as modifications to the various federal civil rights laws that speak to prevention of other forms of discrimination on campus.  I'm thinking they won't for a minute tolerate the bill's passive support for a "clear and convincing evidence" standard of proof.  Why would they when they already have the benefit of a preponderance standard? 

I'd also like to see supporters of this bill demand that these provisions be made applicable to redress of all forms of targeted violence and discrimination against all "types" of students - and see what kind of reaction they get.  If it's such a great bill, all "groups" will gladly sign on to make these provisions applicable to violence on campus "based on" race, ethnicity, religion, etc. 

Wendy Murphy

New England Law|Boston

-----Original Message-----
From: S. Daniel Carter <>
To: wmurphylaw <>; sapc-request <>; sapc <>
Sent: Mon, May 21, 2012 1:49 pm
Subject: Re: Campus SaVE

Wendy,

I know we’ve had significant off-line discussions about the Campus SaVE Act, and want to point out some key issues to the list that you do not address in your post.

First, the Campus SaVE Act was developed by members of both the U.S. House and Senate with input from dozens of experts on a range of sexual violence issues. It has been endorsed by more than 20 organizations including Security On Campus, Inc., Break the Cycle, the AAUW, and RAINN. It is supported by a bi-partisan coalition in both the House and Senate. Nearly a quarter of the House has sponsored the stand-alone measure, and last month virtually every member of the Senate voted for one version of it or another in competing versions of the VAWA reauthorization bill before a final bi-partisan vote of 68-31 in favor of passage.

The most recent version of SaVE which is actually moving through Congress, Section 304 of S. 1925 the VAWA reauthorization, requires that conduct proceedings “provide a prompt, fair, and impartial investigation and resolution”. Final determination and resolution mean the same thing. We have sought significant input from you, but this is the first time you’ve raised any concern that these terms may be interpreted differently. “Final determination”, incidentally, has been used in Clery since 1992 without it once being interpreted to run afoul of Title IX in any way. In fact OCR’s Dear Colleague Letter, in footnote 37 on page 14, incorporates the term “final determination” without any indication of conflict with Title IX’s requirements giving us no reason to believe this would change. We can certainly explore making the terms more consistent, “final determination” is merely a hold over from 20 year old language that nobody is especially attached to.

Contrary to your assertions that there must be a “final determination” before an institution must act, the bill also requires institutions to afford victims with significant intermediate protections – including any reasonably available changes to academic, living, and working arrangements as well as assistance with no-contact orders. In fact institutions will be required to afford victims with these protections even if they elect to pursue no action against their perpetrators.

It is true that the bill requires that an incident be reported before a victim’s or survivor’s rights are triggered, but this is intended to put the focus where it ought to be – on empowering them to make decisions about how their cases will be handled. Additionally, Clery defines “reported” very, very broadly. “Under Clery, a crime is ‘reported’ when it is brought to the attention of a campus security authority”. No formal paperwork need be filed, and the term campus security authority includes RA’s, Deans, Team Coaches, and a wide array of campus officials. If a victim tells their RA, for example, that they are being stalked the institution is obligated to provide them with a written list of their options, assist them in reporting to the police, and afford them any reasonably available accommodations. With this type of support, and the bill’s educational piece we are hopeful that reporting rates will begin to far surpass 5%.

It is also the educational component where SaVE really shines. For the first time institutions will be called on to provide “primary prevention and awareness programs for all incoming students and new employees”. DOJ, ED, and HHS are called on to collaborate to provide institutions with the “best practices” to help them deliver this programming. We’re not going to “litigate” our way out of these social challenges – we must change the tolerance in our nation’s campus communities for these behaviors. Education is the key to doing that.

Your prior input has actually made SaVE a much more solid bill than it was originally, and I’m sorry we find ourselves on different sides of this issue. Your thoughts, however, will likely continue to help hone SaVE, and I hope you will keep an open mind as the measure continues to evolve.

S. Daniel Carter

Director of the 32 National Campus Safety Index

VTV Family Outreach Foundation

P.O. Box 230024 * Centreville, Virginia  20120

Office: 202-684-6471 * Fax: 865-691-6979

www.vtvfamilyfoundation

From: Wendy Murphy <>
Date: Mon, 21 May 2012 11:28:57 -0400 (EDT)
To: <>, "" <>
Subject: Re: Campus SaVE

Dear colleagues;

I know this is controversial, but it needs airing.

In the past year I've visited many schools to lecture about Title IX, the Dear Colleague Letter, and the Campus SaVE Act.  

As some of you have heard, I recently published a piece at Women's eNews criticizing Campus SaVE and raising questions about the motivations of elite schools to push the bill, quickly, through Congress.

As an appellate attorney, I've written probably 75 briefs, many on "statutory construction" analysis - which is its own field of appellate focus and requires an attorney to assess the meaning of words in statutes and persuade appellate courts to interpret them a certain way.

Through that lens, and making myself think like a school's general counsel, I read the latest iteration of Campus SaVE and was very distraught to see the language.  I understand that well-intentioned people thought it was a good idea to codify certain provisions of the DCL, though frankly, I don't see anti-racism advocates (or advocates against any other type of targeted harm) supporting application of Campus SaVE's terminology to violence "based on race", etc., and I can't imagine why women's rights advocates wouldn't insist that the bill apply with equal force to all forms of targeted harm on campus.  Are they accepting subjugation, or expressing priority status in the pecking order of isms?  As you'll see in my analysis below, it's pretty clear that no other interest groups would likely tolerate the diminution of civil rights protections by supporting a bill that will water down the value of Title IX.

In addition to the points outlined below, the bill originally included a mandate that schools apply the preponderance of evidence standard (a standard they regularly apply to violence and harassment against students "based on race, ethnicity, etc.)  This language was removed when the bill moved further up the pipeline and schools' lobbyists had a say about what Campus SaVE should require. This means that the small minority of mostly elite schools that continue to insist they have authority to apply a stricter "clear and convincing evidence" standard will be able to point to Campus SaVE and argue that by removing the preponderance language, Congress intended schools to have the freedom to apply whatever standard they want.  

Even if the preponderance language had remained in the bill, other provisions are equally dangerous.

I'm hoping the bill will die, though I'm not naive.   If wealthy schools want it to pass, it will pass.

OCR investigations now pending against Harvard Law and Princeton (after more than 18 months) could be resolved in the schools' favor if the bill is passed because certain provisions in the bill essentially render lawful Title IX violations committed by both schools; actions that were clearly NOT in compliance with prior OCR rulings, regulatory authority, case law or the DCL -- but actions that will become LAWFUL if Campus SaVE is enacted.  Because an act of Congress "trumps" the DCL, case law, regulatory guidelines and OCR rulings, both schools can point to Campus SaVE as retroactively giving them authority to do what they did. 

Title IX is ENTITLED to equality - in meaning and enforcement - compared to federal laws that forbid targeted harms against all other "types" of students.

Conveying this reality should be a top priority - but Campus SaVE doesn't even mention women's civil rights.

Thus, the bill will serve to convey, falsely, the idea that violence against women raises no fundamental rights issues, or constitutional rights questions, and can be redressed alongside stealing notebooks and littering on campus.

Wendy Murphy

New England Law|Boston

THE REAL WAR ON WOMEN:

WHY THE "CAMPUS SaVE" BILL  WILL PROMOTE EVEN MORE VIOLENCE AND UNDERMINE WOMEN'S EQUAL ACCESS TO EDUCATION

By Wendy Murphy

The bill includes mention of "dating violence, domestic violence and stalking", which might seem like a good move - to include these other forms of harm because some schools do not have clear policies about whether dating violence is covered by Title IX - but Title IX by its express terms applies to ALL forms of harassment and violence "based on sex", including dating violence, domestic violence and stalking.  Putting it in writing doesn't add anything, and while this language in the bill might have been harmless as redundant, the bill ADDS NEW HARM by ALSO providing that a schoolneed only respond with "promptness and equity" to reports of "dating violence", etc., IF the matter is "reported" to campusauthorities or local cops.  This is a significant bump down in protection for victims because the DCL makes it clear - AND all the relevant case law and regulatory authority makes clear - that a "report" is not necessary and that a school has a duty to act upon actual OR constructive notice.  Mandating that a school need only take action upon receipt of a formal "report" is dangerous because schools have far too much control over making sure victims do NOT file formal reports.  In fact, this happens all the time.  I'm involved in two cases right now where campus-based advocates strongly dissuaded the victim from filing a "report", during which lag time, the schools did absolutely nothing.  This is a common and frustrating problem that runs out the clock, prevents promptness, and often enables campus-based forces to avoid having to take any action because the passage of time allows them to get the victim back into campus life, thinking about other things, off into counseling - where the school-bsed care-provider typically urges her not to file a formal report, etc., etc.  Given that only 5% of victims report as it is (using sexual assault data here but frankly - dating violence numbers are even lower).  These numbers are low because schools like it that way and Campus SAVE has no business indulging this problem.

In a subsequent section of the bill, the language requires statistical data gathering re DV/ stalking, etc., but clearly, as the previous section only covers "reported" incidents, and very few incidents are, in fact, reported, this bill will facilitate the dissemination of false and misleading data that will significantly undercount this type of violence.   

On page 281, this bill THEN - in very sneaky style - requires schools to respond to sexual assaults ONLY IF "reported".  This is an outrage and significantly benefits schools by enabling them to do NOTHING unless a matter is formally reported to campus or law enforcement officials.  The DCL importantly mandates a response to sexual assaults upon actual or constructive notice.  This bill will enable schools to provide redress only upon ACTUAL notice.  Again, with only 5% of incidents arleady making it to that level, this is a very dangerous provision that dramatically changes the current obligation of schools to act as it is mandatory under Title IX -- even apart from the DCL - that schools act upon actual OR constructive (knew or should have known) notice that an offense may have occurred.  Shockingly, the actual "report" requirement appears again on page 286 as a prerequisite to a victim even receiving information about her rights.  This is outrageous.  A victim should be provided with notice of her rights WHETHER OR NOT SHE FILES A FORMAL REPORT.

On page 283, the bill talks about the "final determination" as the event that must occur BEFORE a school is obligated to impose sanctions or protective measures in response to a Title IX violation.  But on the next page, the bill allows schools not to provide a "prompt" final determination.  Indeed, the language expressly states that schools are ONLY required to provide a "prompt investigation and resolution" rather than a "prompt investigation and final determination".  This clever use of the phrase "final determination" as a separate term of art, and a moment in time in the process clearly distinct from the "investigation and resolution", will absolutely allow schools to drag out the redress process with perpetrator appeals and post-hearing motions and other delay-tactic nonsense until everyone graduates, thus preventing a victim from receiving mandatory "promptness" under Title IX and more importantly preventing her from achieving an equal educational opportunity AND completely thwarting the oversight value of OCR.

It is profoundly unjust to allow schools to do NOTHING until "final determination" as this means victims will receive ONLY a prompt"investigation and PRELIMINARY resolution".  The language in this bill means the "final determination" can be exceedingly dilatory. 

On a related note - the bill allows schools to make "changes" to the result of a victim's case (page 285) without providing the victim with advance "notice" that changes are being sought by the perpetrator.  This means that if a school rules in favor of a victim, and the offender files an appeal, the victim has NO right to know about the claims in the appeal, and has no right to participate or to defend the integrity of the initial ruling (even though schools make the entire initial hearing ALL HERBURDEN).  The language of this bill allows the matter on appeal to be debated solely by the school and the offender. The victim is designated a voiceless peripheral player with no standing to participate, who, nonetheless, MUST WAIT UNTIL ALL APPEALS ARE "FINALLY DETERMINED" before she can even be informed of the final result or take any steps with OCR to redress her concerns or achieve an equal education.  This is unacceptable and inconsistent with even the most basic notions of fairness and due process for victims.

The section on mandatory training nowhere provides that the procedures for dealing with sexual and domestic violence must be the same procedural and substantive standards that apply to targeted violence and harassment against other "types" of students - as when such harassment or violence is "based on RACE, RELIGION, ETHNICITY, ETC. ETC…….  This is essential to maintain the civil rights dimension of the harms endured by women, and is critical to protect the meaning of the word "equitable" under Title IX.  Equitable means not only inherently fair but also fair vis a vis the way other forms of targeted violence are redressed on campus.  Remember, Title IV - which provides the same protection as Title IX and includes both race and gender, requires that targeted harm "based on race" is covered by the SAME rules that address targeted harm "based on gender".  This bill suggests that "based on gender" can and should be treated differently, and can and should be subjected to lesser standards. 

*****On page 282 - there is a requirement that schools TEACH responsible officials the state's definition of "consent" in the context of rape law in the appropriate jurisdiction.  This is VERY inappropriate because state law varies widely - and the bill enables schools to treat victims differently - across state lines -  with some victims getting better protection in schools where the jurisdiction has a more protective definition of consent compared to other jurisdictions.  When federal civil rights laws are implicated, you cannot submit a school's standards to disparate state laws without a baseline of federal protection that applies equally to all women in all states.  Schools are free to define consent more generously than state law, but they cannot incorporate a definition LESS generous than a federal minimum - yet this bill explicitly allows exactly that result.  This language should be amended to require training on the definition of sexual assault (and consent) under federal law, AND should explicitly require training on the way all forms of violence against women are implicated by Title IX and Title IV, which employ quite different standards than criminal law.  This part of the bill implies, wrongly, that Title IX violations are always akin to criminal code violations. How can it be GOOD to train school officials on criminal law standards when the WHOLE POINT of Title IX is to frame targeted harm against students "based on sex" as a civil rights violation.  Where are the Title IX training standards?????  Why train about state law definitions of "consent" but not federal law definitions of civil rights?