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

[Brett Sokolow <>]

Wendy,

Do you believe campuses will be required to disclose the state law on
consent, or actually use it in processing complaints?

Regards,
Brett A. Sokolow
Brett A. Sokolow, Esq.
Attorney-at-Law


President & CEO, The NCHERM Group LLC <www.ncherm.org>
Executive Director, The National Behavioral Intervention Team Association
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Executive Director, The Association of Title IX Administrators
<www.atixa.org> 
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On 3/14/13 10:05 AM, 
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 wrote:

>
>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
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