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

my own "dear colleague letter"   : )
Dear colleagues;

First let me respond to offers from groups that do "trainings" about the Dear Colleague Letter.

Even well-intentioned advocates may have agendas inconsistent with the goal of "training" schools to treat violence against women as a civil rights harm. I won't comment on the agenda of any particular group, but be wary if the emphasis is not on Title IX as a Civil Rights law.  Also be mindful that the Campus SaVE Act, which is speeding its way through Congress, will allow schools to violate Title IX in ways not currently allowed under federal law and the DCL.  I point this out to emphasize that even though Campus SaVE will distract schools, (it nowhere mentions the phrase "Civil Rights") Title IX will remain the overarching relevant federal law mandate, which means complying will Campus SaVE will still expose schools to OCR complaints if they comply with a statute - but violate Title IX on its fundamental requirement that all policies and procedures provide for "prompt, equitable and effective" redress.

Whatever trainings are done on campus, please know that options include groups that do not teach from a civil rights perspective, which is dangerous to women and women's equality in education.

Title IX is a Title UNDER the Civil Rights Act and is no different from any other "Title" in that regard -- Title IV, Title VI, etc.  Schools don't need training so much as a one hour class in politics - to understand why Title IX got shunted off into a sports equity rule while all the other classes of targeted violence and harassment were treated as human rights and fundamental equality doctrines.  

Imagine how we would feel if targeted harassment and violence against Jews on college campuses was met with laws that offered Jews their own basketball team?

If you wonder whether your school needs new training, consider that a very simple fix for schools that have been doing things wrong for a long time is this:

Whatever policies and procedures are now in place at your school that deal with harassment and violence based on racism/ethnicity/religion/disability/sexual orientation, etc. -- apply those same policies nad procedures to harassment and violence "based on sex".  There is no need to make things complicated and to get lost in the minutae of the DCL.  

"Promptness, effectiveness and equity" have long been the overarching standards of Title IX, and should guide schools now.  With regard to equity, please also know that my work has been aimed at forcing schools to be "equitable" not only inherently in terms of how they handle sexual assaults, but vis a vis other forms of targeted harm. In other words, I'm always ready to file a complaint against any school that subjects violence against women (sexual or dating or physical) to standards that are less rigorous than the standards that are applied to violence against students based on race, ethnicity, sexual orientation etc.  Adapting sexual assaults to existing civil rights policies is not only appropriate, it also saves schools money, time, resources, etc., because they don't have to have a whole separate system.  

As for whether a victim's past sexual activity should ever be considered relevant, all due respect to contrary views but there is NEVER an excuse to allow past sex between the victim and the perpetrator to be considered unless you believe a woman who consents in the past somehow gives up her right to say no in the future.  How else is such activity relevant?  Relevancy means tending to prove an issue in dispute.  The most common issue in dispute is whether the victim consented.  The fact that she consented in the past tells you NOTHING about whether she consented on the night in question.  Indeed, to consider past consent relevant is to announce to all women on campus that they had better NOT report rape because it will cost them a gratuitous examination of past activities.  Having lawful consensual sex is NOT a crime, or an offense, or something to be punished.  Threatening to use it against a victim, for no legitimate purpose, is tantamount to punishing her for having engaged in consensual lawful PRIVATE and constitutionally protected activity.  Most schools get this issue wrong, which is why it is on my radar for activism/OCR-based impact litigation in the near future (as were the issues of promptness, running out the clock, the burden of proof and lack of clear timeframes in cases I filed against schools in the years leading up to the DCL - which issues - inter alia - formed the bases for complaints that are STILL pending with OCR after two years - against Harvard Law, Princeton and UVA).  As a matter of policy, any school that considers a woman's past sexual activity with the accused student relevant will likely face an OCR complaint soon.  I am not opining here on the possibility of an exception for a student with a demonstrated history of making false claims about offenses - (which includes perpetrators' past false claims) - but schools should make clear in their policies that they will use a student's past lies against them in any disciplinary proceeding.  Making a special rule for only past false claims of rape victims is silly and is not supported by scientific data.  Reasonable people argue that past lies are not probative, and my position is that a school can choose to consider past lies if it wants to, but, this is a dangerous choice if applied ONLY to sexual assault victims as such a rule is overtly inequitable and would violate other provisions of federal law regarding the fairness of investigations.

By way of contrast, a perpetrator's past sexual harassment and assaultive behavior should ALWAYS be relevant because Title IX is particularly interested in the "sex-based" nature of an offense, and all past harm against females is per se relevant to any fair assessment of the "based on sex" question.  Again, putting this in writing is important so that students are aware that even one offense (assuming expulsion is not the punishment) will put them is dangerous territory because it WILL be used against them if they offend again.

These two behaviors are often considered the same type of evidentiary issue but they are not remotely the same as a matter of policy because the victim's past sexual activity is non-harmful AND constitutionally protected.  The past offensive actions of a perpetrator are neither of those.  Thus, the policies should not be applied equally.

Finally, all these ideas are built on the important notion that the victim is the one with constitutional interests at stake.  The accused may enjoy some small degree of due process rights in a state university environment but in all types of schools, the heartier legal claim belongs to the victim because her civil rights are at stake.  No civil rights are at stake for the accused student.

This is not to suggest that accused students be treated unfairly.  I point this disparity out only to explain why if there are differences in policy that favor victims, this is not only acceptable but appropriate given the profoundly more weighty interest of civil rights enforcement and equal access to education on the side of victims.  For too long, schools have had things exactly backward, mostly because they were trained to develop policies using criminal justice models.  Clearly, a school is not the government, and discipline for rape is not a loss of liberty.  Using criminal justice models is what made the mess we're in now, and lots of schools liked the idea because it allowed them to sweep problems under the rug and avoid public scandal.   But this approach has failed and we finally have a consciousness (in part thanks to the internet) about Title IX and Civil Rights - which means schools cannot go back to the criminal model.  Those that refuse to fold sexual assault policies into existing civil rights and diversity policies will suffer a thousand cuts as advocates push them to bring policies into compliance not only with dopey laws like Campus SaVE but also with the fundamental equity demanded by Title IX.

Wendy Murphy

New England Law|Boston

617-422-7410