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

["S. Daniel Carter" <>]

On 8/26/13 12:49 AM, "" <> wrote:

I believe it was also the first time OCR ever

tied Title IX explicitly tied to sexual assault but I haven't done the

research to prove this.

The earliest Office for Civil Rights (OCR) Title IX review addressing “sexual assault” that I’m aware of was initiated in the fall of 1992 and resolved in 1994. The case involved Sonoma State University and was Docket Number 09-93-2131. There may be earlier cases, but this is the one I’ve most frequently seen cited in various literature covering Title IX.

While not the first, to the best of my knowledge your 2002 complaint against Harvard, however, was the first instance of such a case becoming widely known. As such it was, I believe, principally responsible for the decade of similar cases that followed.

I suspect the answer is more opinion than fact, but allow me to offer

my opinion in response to the Chronicle's claim that it started with a

complaint filed by a woman named Laura Dunn in 2006.

I’ve gone back and looked at the last two Chronicle articles that quote Ms. Dunn, who first went public in her local newspaper in 2006, and didn’t interpret them to posit that she was the genesis of the current activism (although she is assisting them). That said, I think that you both have made major contributions to empowering much of the activism we’re seeing today. Her complaint was one of many that followed your lead, but it was her outspoken contributions to investigative journalism conducted by the Center for Public Integrity and NPR in 2009 and 2010 that really led to increasing the general public’s consciousness of these issues, much as your work had to increasing consciousness among advocates and institutions. Both cases also set “unofficial” precedent. Your case allowed a non-victim, or anonymous complainant to raise issues while hers explicitly applied Title IX to incidents which originally occurred off campus but involved subsequent contact on campus and or in educational settings.

Within days of the DCL being issued, it was effectively "trumped" by

the Campus SaVE Act which was heavily lobbied by elite schools.  SaVE

was packaged and "sold" to uninformed advocates as a "codification" of

the Dear Colleague Letter, but in fact, SaVE was meant to undermine

most of what was great about the DCL - and because it was eventually

tacked onto the VAWA, few advocacy groups complained because they

needed the VAWA funds to start flowing.

The Campus SaVE Act was being developed concurrently with the request for “global guidance” from OCR, and began as the “Campus Sexual Assault Free Environment (SAFE) Blueprint” announced in April of 2010 as documented by the Center for Public Integrity at http://www.publicintegrity.org/2010/04/07/2702/continuing-impact-center-series. After months of contributions by numerous advocates, including members of the SAPC list, the Campus SaVE Act was first introduced on November 30, 2010 in the U.S. House of Representatives as H.R. 6461, and on December 16, 2010 in the U.S. Senate as S. 4039. It was reintroduced in April of 2011 as S. 834, following the “Dear Colleague Letter” (DCL). It had the support of more than 20 advocacy groups. It was subsequently incorporated in to the VAWA reauthorization in large part because of the support of these groups, not the other way around.

Along with a group of advocates, I am about to launch a website that

rates schools simply based on whether they comply with the preferred

standards set forth in the Dear Colleague Letter and civil rights laws

such as Title IX, Title IV and Title VI - or whether they apply the far

worse standards permitted under Campus SaVE.

If you are asserting that an institution has a choice of whether or not to continue to apply Title IX guidelines I do not believe this to be correct. SaVE amended the Clery Act which has had sexual assault requirements since 1992 (20 years after Title IX was enacted). In the 20 years since the “Campus Sexual Assault Victims’ Bill of Rights” provisions were adopted there has not once, at least to the best of my knowledge, ever been a single conflict between the two. OCR’s guidance, in fact, explicitly refers to these provisions as parallel requirements that add to rather than take away from Title IX.

In any event, based on the statutory effective date of the SaVE Act the U.S. Department of Education has said, in guidance issued on May 29, 2013, that “the first Annual Security Report that must include the new required information is the report that must be issued by each institution by October 1, 2014.” Because SaVE works by providing that institutions must address specific elements in a “statement of policy” in their annual Clery report rather than being an explicit requirement this means that SaVE won’t take effect until the 2014-2015 academic year, not now or in March of 2014 a year after the law was enacted. Even if Title IX is being “trumped” it won’t be this year so assessing whether or not it is now is unlikely to yield much useful data except for perhaps potential Title IX violations.

1.    *Under SaVE, "final" decisions on responsibility and sanctions

against perpetrators who commit acts of violence and harassment of

women can be delayed until the eve of the victim's

graduation.

SaVE will require that institutions “provide a prompt, fair, and impartial investigation and resolution”. I interpret this to mean that the resolution must be “prompt”. While the latter terms “fair, and impartial” do differ from Title IX, the term “prompt” does not. The meaning of this term should not differ from interpretation of it under Title IX (which generally calls for resolutions within 60 calendar days). A determination of the definition of “prompt” for SaVE will likely be worked out during upcoming “Negotiated Rulemaking” with the U.S. Department of Education and I do not believe that it is appropriate to assume before the fact that the definition of this term will somehow be interpreted differently, in fact there should be advocates at the table arguing that it does mean the same thing.

2.    *Under SaVE, schools need not respond to violence against women

unless an incident is actually “reported.”

Under SaVE institutions don’t have to apply SaVE’s requirements until an incident is “reported”. This is because they are focused on empowering the individual student or employee who reports an incident. Any existing Title IX obligations relative to an ongoing “hostile environment” which they knew or should have known about will still apply.

3.   *Under SaVE, schools have discretion to treat the word of the

victim as per se LESS credible than the word of the offender by

applying

a disproportionately strict burden of proof, such as the "clear and

convincing

evidence" standard (about 75% proof) at hearings where allegations of

harassment and

sexual and dating violence are addressed.

While it is true that SaVE does not set a standard, this was the one substantive piece cut from the Act before final passage, and merely requires institutions to disclose the standard they use, Title IX should not be superseded here. I interpret this to mean that the standard set by Title IX is the one which must be disclosed. If that standard were to ever change then it would change here too, but SaVE is not intended to trump Title IX just not codify it in this respect.

4.     *Under SaVE, schools must provide training on the criminal rape

law definition of "non-consent."

This is purely on the educational side of things and should have no impact on the standards used for conduct proceedings. For conduct proceedings, as well as any and all other rights under SaVE, the longstanding Clery Act definition continues to apply. In this respect nothing has changed from the original 1992 law which has never conflicted with Title IX.

S. Daniel Carter

Director of 32 National Campus Safety Initiative

VTV Family Outreach Foundation

P.O. Box 230024 * Centreville, VA  20120

Office: 202-684-6471

http://www.32ncsi.org/

The VTV Family Outreach Foundation is a national non-profit organization, formed by the families of the victims and survivors of the April 16, 2007 mass shooting tragedy at Virginia Tech. The focus of VTV is to promote and advocate for the safety and security of the nation’s colleges and universities – and to provide assistance and services to victims of school and college crime and their families.