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

Dear Colleagues;

In response to a discussion on another list, I sent along a note that 
includes a list of important differences between standards under Title 
IX/Dear Colleague Letter and Campus SaVE.

I'm sharing part of that note here in the hope it will help students 
and administrators not get distracted by all the chatter about programs 
and "trainings" and "know your rights" campaigns and all the busy-work 
that well-intentioned students are being asked to do that will have no 
effect on the core goal which is holding SCHOOLS accountable (instead 
of protesting OCR at the DOE to hold schools accountable - students 
should be DIRECTLY holding schools accountable for enforcement of the 
best possible standards to prevent campus sexual assault.)

First, it's important to remember that Campus SaVE was filed with 
Congress only days after the DCL was issued, and the bill contains 
numerous provisions that explicitly undermine important aspects of the 
DCL and Title IX.  (I outline the most important ways SaVE destroys the 
DCL and Title IX below.)

SaVE was heavily pushed along by lobbyists for "elite schools" and was 
eventually tied to the VAWA as a way of silencing opponents because 
lots of women's rights groups wanted and needed the VAWA funds to start 
flowing, and SaVE included a provision for "training" programs, which 
meant new $$$ and new ways for non-profits to cash in.

SaVE was signed into law this year, but doesn't become effective until 
early 2014.  In the meantime, and not surprisingly, the Harvard and 
Princeton OCR investigations (which led to the DCL after both cases 
were sent to OCR headquarters - along with amicus support BEGGING 
OCR/DOE to issue global guidance to put an end to the arduous piecemeal 
regulatory oversight litigation that was barely making a dent) are 
still pending after three years -- and if they remain "open" until SaVE 
becomes law, both schools will be able to claim that they did NOT 
violate Title IX because the things for which they were under 
investigation are no longer illegal under SaVE.  I've specifically 
targeted elite schools over the past fifteen years because an OCR 
ruling against an elite school trickles down - but a ruling against a 
lower-tiered school does not trickle UP.  But even so, it was taking 
much too long to get uniformity of good standards in place at all 
schools - so I sent the Harvard and Princeton cases to OCR in DC and 
asked them to issue global guidance - which they did - in the Dear 
Colleague Letter of April 2011.  The DCL was followed days later by the 
filing of Campus SaVE and misplaced enthusiasm for what was falsely 
described as a "codification of the DCL" led to unwarranted support for 
the bill.

While there is much awareness, now, about the dangers of Campus SaVE, 
it's a bit late given that it was signed into law this year.  But there 
are still lots of things students and advocates can do to prevent SaVE 
from causing too much harm.

One thing I'm doing to help is developing a website to identify which 
schools are the safest and most egalitarian for women. The first 
iteration of the site will contain three lists.  One will name the 
"SAFEST" schools based on whether they comply with Title IX and the 
DCL. A second list will identify schools as "LESS SAFE" because they 
apply the dangerous standards set forth in Campus SaVE.  A third list 
will identify schools with "mixed" policies.

Please let me know backchannel if your school promotes the highest 
standards of respect for women's safety and equality by rejecting SaVE 
and complying instead with the highest standards of Title IX and the 
DCL  My students have already started making assessments based on 
written policies and procedures and publicly available information 
about actual enforcement (in other words - not only does the school SAY 
they apply the preponderance standard, but also, the results in 
practice indicate that the standard is, in fact, applied correctly.)

Here are key differences between Title IX/DCL standards and the much 
worse SaVE standards:

1. Under SaVE - Complaints (of SA and DV) must be “reported”
   vs. DCL/Title IX = It is enough if school officials ”knew or should 
have known”

2. Under SaVE - Schools have discretion to apply burden of proof more 
rigorous than “preponderance”
   vs. DCL/Title IX = “preponderance” is mandatory.

3. Under SaVE - “Final Determinations” (meaning all appeals and 
discretionary decisions that affect results from initial grievance 
hearing/proceeding) of victim complaints need not be “prompt”
   vs. DCL/Title IX = “promptness” includes the final determination 
after all appeals, etc.

4. Under SaVE - Fact-finders must be trained on state law CRIMINAL 
definition of “non-consent” in sex crimes
   vs. DCL/Title IX = “unwanted” is the only proper standard - and is 
used in ALL types of civil rights harms (race, ethnicity, etc.) and is 
a much lower burden than proving criminal "non-consent."

Most importantly--

SaVE’s lesser standards do not apply to other forms of discrimination - 
which means ALL other protected classes on campus receive better and 
more "prompt and equitable" redress when targeted harassment and 
violence happens "based on" anything EXCEPT "sex."


Wendy Murphy
New England Law|Boston