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

Dear colleagues;

As many of you know, I do not support Campus SaVE and have been 
concerned from its inception that it was designed to "save" schools 
from effective federal oversight, rather than helping victims achieve 
justice.

I have two primary criticisms, though my long critique is posted at 
wendymurphylaw.com

1. The bill allows schools to "run out the clock" on victim complaints, 
which has long been a problem (indeed it is one of the reasons Harvard 
Law School is still under investigation after 2 1/2 years).  Running 
out the clock refers to delaying a "final determination" in a victim's 
complaint until the victim and/or the accused perpetrator are on the 
verge of graduation.  If an unfair decision is reached right before the 
victim leaves campus for good, she has little hope of seeking redress 
from OCR to ensure the reinstatement of her right to equal education 
under Title IX.  Even if OCR could review a matter post-graduation 
(which they typically decline to do) any victory would be hollow 
because there's no "education" left to be had - much less an equal one. 
 Campus SaVE is sneaky because it's filled with nice-sounding language 
about stopping sexual assault - but anyone with experience in statutory 
construction analysis law (In more than twenty years of practice, I've 
written dozens of appellate briefs at all levels of the judiciary, many 
of which involved statutory construction analysis) knows that the law's 
key phrases are peppered with legal permission for schools to delay the 
final decision months if not years beyond the seeming 60-day limit 
suggested in the Dear Colleague Letter.  For victims, this is bad news 
because Campus Save means they could spend their years post-sexual 
assault subjected to a hostile environment given that victims cannot 
achieve effective redress while a matter is still pending. This problem 
is exacerbated by the requirement that victims be given a "right" to 
appeal campus decisions.  While giving a victim a right of appeal may 
seem like a good idea, it is, in effect, a guaranteed delay in her 
ability to access OCR at the DOE because OCR will likely decline to 
review any case so long as the victim has not exhausted her 
administrative remedies at the school.  Again, all this does is help to 
"run out the clock."  Victims didn't need a right of appeal because, 
unlike the accused student, they had something MUCH better - a right 
under the Civil Right Act to achieve justice with the help of the 
federal government.  Even the mere possibility that a victim COULD go 
swiftly to OCR helped to hold schools accountable and incentivize 
officials to do the right thing.  Campus SaVE eliminates this important 
option by enabling further delays in the name of fair and "equal" 
treatment for victims.

2. The bill allows schools to apply a clear and convincing evidence 
standard.  This is an outrage and I am working with a group of 
interested folks in the development of a website called PUSSH-ER 
(Parents United With Students Against Sexual Harassment - Especially 
Rape) so that we can identify and shame any school that refuses to 
apply the ONLY fair standard of "preponderance of evidence."  The clear 
and convincing evidence standard enables schools to have their cake and 
eat it too by claiming to believe the victim just enough to send her to 
counseling and move her dorm room, etc., while ALSO protecting the 
offender by claiming they don't believe her ENOUGH to punish HIM.  
Thus, schools keep tuition dollars flowing form both students while 
avoiding scandal.  Some argue that because Campus SaVE doesn't mandate 
ANY standard of proof, schools will still be required by OCR to apply 
the lesser standard - but this is a naive assumption because, again, 
under basic statutory construction analysis, the fact that the 
preponderance standard was initially put IN - and was then taken OUT - 
guarantees schools a victory when they argue (to OCR and in the real 
world legal system) that they have the DISCRETION to apply either 
standard and that this discretion can be inferred from the removal of 
the preponderance mandate; an inference that might NOT have been 
possible had the standard not been put IN and then taken OUT.

In combination - giving schools permission to apply the higher standard 
and then "run out the clock" is a one-two punch that will undermine 
effective response to campus sexual assault.  That Campus SaVE requires 
consideration of state CRIMINAL law standards on consent in rape law is 
really the final straw in a profoundly bad piece of legislation.  
Criminal law is far more rigorous than Civil Rights standards of 
"unwanted" and "offensive" touching.

The only hope is that schools will now begin to compete with each other 
for female students by advertising that they offer the BEST Title IX 
standards as this, far more than false claims in artificially low Clery 
Act reports, will keep women safe and equal on campus.

Wendy Murphy
New England Law|Boston
617-422-7410