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

[Brett Sokolow <>]

Wendy, explain to me how your argument is anything more than this:  If
Congress didn't incorporate every action OCR has taken to enforce Title IX
since 1992 in the Campus SaVE Act, it has weakened the applicability of
those actions under Title IX.  Seems to be that has to be the net
implication of your argument, no?

By the way, all the OCR decision letters are catalogued and are posted for
free in our database on the website.

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
<www.nabita.org> 
Executive Director, The Association of Title IX Administrators
<www.atixa.org> 
Publisher, Student Affairs eNews <www.studentaffairsenews.com>

116 E. King St.
Malvern, PA 19355-2969
Tel. (610) 993-0229 <tel:%28610%29%20993-0229>
Fax (610) 993-0228 <tel:%28610%29%20993-0228>
The NCHERM Group, LLC serves as legal counsel/advisor to 35 campuses
<http://www.ncherm.org/services/legal-representation/>






On 8/26/13 4:41 PM, "Wendy" 
<>
 wrote:

>Think politically!
>Elite schools were subjected to OCR investigations for violating Title IX
>--Harvard Law and Princeton have been under investigation for three years
>now. The April, 2011 DCL spelled out several ways in which those schools
>were in violation of Title IX -- and then Campus SaVE is filed and it
>just HAPPENS to provide language that overturns the DCL on the very
>issues for which those two schools were under investigation.
>
>The motivation behind SaVE MATTERS!! and the fact that it benefits
>schools at ALL in terms of allowing them to do the same things wrong that
>have caused victims so much grief for decades is unacceptable.
>
>Follow the money and motives on this issue become very clear.
>
>Wendy J. Murphy, JD
>
>New England Law|Boston
>154 Stuart Street
>Boston, MA  02116
>617-422-7410
>
>Sent from my iPhone
>
>On Aug 26, 2013, at 4:29 PM, Brett Sokolow 
><>
> wrote:
>
>> I agree with Wendy about teaching the state law definition of consent.
>> Dumb.  Better would have been a pure consent requirement for campus
>> policy, and a duty to teach that.  But, I really do disagree with her
>> assessment of SaVE's dangerousness.  She is looking micro and my view is
>> more macro.  In the higher ed world, Title IX is an 8000lb Gorilla and
>> Clery is a 500lb Gorilla.  They just don't carry the same quantum of
>> weight, and SaVE does nothing to reverse that.  For example, one could
>> bemoan the fact that SaVe did not codify preponderance, or see it as a
>> requirement that adds to Title IX.  Title IX requires USE of the
>> preponderance standard, not publishing it as the standard.  SaVe adds
>>that
>> requirement, which taken together could mean that we now have a
>> requirement to use and publish the proper equitable standard.  Further,
>>I
>> don't hear from colleges that they are using SaVe to circumvent Title
>>IX.
>> They are asking sharp questions about how to comply, and we're seeing a
>> shift in Clery duties (at least those that are SaVe-based) to the Title
>>IX
>> Coordinator, which I like a lot.  I also like that SaVE is going to
>>force
>> colleges to professionalize and expand prevention positions. Thus, since
>> SaVE is law, it may backfire to point out to too many people just how
>>they
>> can argue SaVE to get around Title IX.
>> 
>> 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
>> <www.nabita.org>
>> Executive Director, The Association of Title IX Administrators
>> <www.atixa.org> 
>> Publisher, Student Affairs eNews <www.studentaffairsenews.com>
>> 
>> 116 E. King St.
>> Malvern, PA 19355-2969
>> Tel. (610) 993-0229 <tel:%28610%29%20993-0229>
>> Fax (610) 993-0228 <tel:%28610%29%20993-0228>
>> The NCHERM Group, LLC serves as legal counsel/advisor to 35 campuses
>> <http://www.ncherm.org/services/legal-representation/>
>> 
>> 
>> 
>> 
>> 
>> 
>> On 8/26/13 3:55 PM, 
>> ""
>>  
>> <>
>>  wrote:
>> 
>>> I appreciate all these comments but let's be serious -
>>> 
>>> Claiming that SaVE "amends Clery" as if that means it won't lead to the
>>> unfair handling of matters involving violence against women is a bit
>>> naive.  Everything in SaVE that speaks to the process directly affects
>>> the definitions of "prompt, effective and equitable" under Title IX.
>>> 
>>> Dan is correct that Congress had no choice but to CLAIM this only
>>> modifies Clery because it would have lacked jurisdiction to directly
>>> legislate around Title IX (regulations exist for that).  But because it
>>> PURPORTS to control ALL sexual assault and dating violence matters,
>>> schools will treat SaVE if it its provisions should be incorporated
>>> into Title IX procedures.
>>> 
>>> THIS is EXACTLY why I am launching a website to classify schools
>>> according to their willingness to abide the best standards under Title
>>> IX, Title IV and Title IV.  The worst schools will APPLY SaVE and claim
>>> they MUST when in fact, they must NOT but it will take a test case in
>>> the real world to prove this point.
>>> 
>>> I'm looking forward to filing the first test case to challenge any
>>> school that applies the lesser standards of SaVE to a Title IX or Title
>>> VI or Title IV matter - and if someone else does it, I will gladly
>>> volunteer my time to write a brief about why civil rights standards are
>>> paramount and to the extent they conflict with SaVE, civil rights law
>>> prevail.
>>> 
>>> My hunch is that schools will apply SaVE for actions they can claim
>>> with a straight face don't "rise to the level" of harassment "based on
>>> sex." And they will try to frame cases where the violence clearly IS
>>> sufficient as cases where the evidence was lacking somehow - and they
>>> will say that this gives them the flexibility to treat discrimination
>>> as a mere "peer-to-peer" dispute of some minor proportion.
>>> 
>>> Clearly, the more efficient and respectful thing to do is treat ALL
>>> harassment and violence against women as a civil rights harm and
>>> subject it to the best possible standards - on par with standards
>>> applicable to harassment and violence against students "based on ..."
>>> other protected class categories.
>>> 
>>> Why waste time trying to redefine a sexual assault as something less
>>> than a civil rights harm?  There's no prohibition on treating minor
>>> sexual assaults as civil rights harms - even if they don't rise to the
>>> level of "severe or pervasive," so why bother.  A single process best
>>> respects women's rights.  Parsing out factors to determine intensity of
>>> offense -- especially when this "special" system is applied only to
>>> violence against women - is needless and dangerous.
>>> 
>>> I'm glad that Laura Dunn has been a great spokesperson - I wish she
>>> would now speak out about the dangers of SaVE.
>>> 
>>> The title of the recent article to which I referred declared that the
>>> piece was ABOUT where the recent activism came from - and because it
>>> failed to mention key OCR cases against Harvard (from 02) and Harvard
>>> Law School and Princeton (from 2010) - which, as Dan notes - really DID
>>> change the not only public awareness but also the lay of the land in
>>> terms of OCR attention and student knowledge and energy -- I wanted to
>>> fill in the historical blanks.
>>> 
>>> The law review article I published in 06 was initially posted as a
>>> piece at the Security on Campus website - years before it became a
>>> published article - and I know from Dan that it provided Laura and
>>> others with easy-to-understand guidance about using Title IX's "prompt
>>> and equitable" rules to hold schools accountable.
>>> 
>>> The most important "first" about the Harvard case from 02 was that it
>>> was filed without an actual case or controversy - which opened the door
>>> to MANY more complaints because a victim was no longer needed to
>>> challenge her own school.
>>> 
>>> It's interesting that OCR was so clear in 1992 - and was stating openly
>>> that rape was a Title IX issue because during my 2002 case against
>>> Harvard, high ranking authorities there, including Larry Summers and
>>> even people who claim to be experts in the field - expressed no
>>> understanding back then of how rape was related to Title IX.
>>> 
>>> I'd like to see those early cases from 1992 - maybe Dan can post the
>>> significant language from those early cases so we can compare what was
>>> said about rape back then to what OCR is saying now.
>>> 
>>> Finally - I'm sorry Dan but you could not be more wrong when you say
>>> it's no big deal to educate people on campus *who will DECIDE sexual
>>> assault cases* on the state criminal law definition of "non-consent."
>>> What is the possible value of teaching people on campus criminal law
>>> standards when they ONLY need to understand civil rights standards?
>>> Clearly, the provision is meant to manipulate campus decision-makers
>>> into construing a generous civil rights standard of unwelcomeness
>>> (where the state of mind of the perpetrator has little on no weight) as
>>> an inappropriately high criminal law burden of "non-consent" (where the
>>> state of mind of the perpetrator has substantial weight and can easily
>>> override the victim's TRUE feelings - especially if she is drunk or
>>> drugged.)
>>> 
>>> SaVE is very dangerous law and the fact that it was lobbied so heavily
>>> by and on behalf of elite schools is telling. No lawyer who understands
>>> statutory construction analysis on behalf of victims helped write or
>>> modify the bill - and if they did they should be embarrassed.
>>> Well-intentioned groups of advocates who THOUGHT they were supporting a
>>> "codification of the dear colleague letter" were duped.
>>> 
>>> The bill should be repealed -- but because victims have no REAL
>>> influence in Congress, the best we can hope for is that schools that
>>> apply SaVE and refuse to comply with the BEST civil rights standards
>>> set forth in Title IX, Title IV, Title VI and the Dear Colleague Letter
>>> will be shamed publicly until they treat women fairly.
>>> 
>>> Wendy Murphy
>>> New England Law-Boston
>>> 
>>> 
>>> 
>>> 
>>> 
>>> -----Original Message-----
>>> From: S. Daniel Carter 
>>> <>
>>> To: wmurphylaw 
>>> <>;
>>>  sapc-request
>>> <>;
>>>  sapc 
>>> <>
>>> Cc: Laura L. Dunn 
>>> <>
>>> Sent: Mon, Aug 26, 2013 2:54 pm
>>> Subject: Re: responses to several things
>>> 
>>> On 8/26/13 12:49 AM, 
>>> ""
>>>  
>>> &lt;&gt;
>>> 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
>>> ³sexual assault² that I¹m 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 I¹ve 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.
>>> 
>>> 
>>> I¹ve 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
>>> didn¹t 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
>>> we¹re 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 public¹s
>>> consciousness of these issues, much as your work had to increasing
>>> consciousness among advocates and institutions. Both cases also set
>>> ³unofficial² 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 ³global guidance² from OCR, and began as the ³Campus Sexual Assault
>>> Free Environment (SAFE) Blueprint² announced in April of 2010 as
>>> documented by the Center for Public Integrity
>>> at 
>>>http://www.publicintegrity.org/2010/04/07/2702/continuing-impact-cente
>>> r-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 ³Dear
>>> Colleague Letter² (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 ³Campus Sexual Assault Victims¹ Bill of Rights²
>>> provisions were adopted there has not once, at least to the best of my
>>> knowledge, ever been a single conflict between the two. OCR¹s 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 ³the first Annual Security Report that must include the new
>>> required information is the report that must be issued by each
>>> institution by October 1, 2014.² Because SaVE works by providing that
>>> institutions must address specific elements in a ³statement of policy²
>>> in their annual Clery report rather than being an explicit requirement
>>> this means that SaVE won¹t 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 ³trumped² it won¹t 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 ³provide a prompt, fair, and
>>> impartial investigation and resolution². I interpret this to mean that
>>> the resolution must be ³prompt². While the latter terms ³fair, and
>>> impartial² do differ from Title IX, the term ³prompt² 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 ³prompt² for SaVE will
>>> likely be worked out during upcoming ³Negotiated Rulemaking² 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 ³reported.²
>>> 
>>> 
>>> Under SaVE institutions don¹t have to apply SaVE¹s requirements until
>>> an incident is ³reported². 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 ³hostile
>>> environment² 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
>>> nation¹s colleges and universities ­ and to provide assistance and
>>> services to victims of school and college crime and their families.
>>> 
>>> 
>>