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

["S. Daniel Carter" <>]

Wendy,

Are you saying that the Clery Center For Security On Campus, Break The Cycle, 
and the AAUW who were the key proponents of SaVE intended to weaken 
protections for the victims of sexual violence? If not them who specifically 
did?

With respect to federal officials not issuing an opinion until the buerocracy 
has had time to fully review a new law this is normal. I do, however, think 
it would be useful for OCR to issue guidance prior to it having to come to a 
complaint. Is this something you would support asking for?

--
S. Daniel Carter

On Aug 26, 2013, at 8:51 PM, Wendy 
<>
 wrote:

> Not at all Brett   -
> I'm not sure I understand your question but my point is simple:
> Whether or not SaVE explicitly states that it modifies civil rights laws, 
> it was clearly designed to affect Title IX matters on campus. In fact, if 
> you asked Laura Dunn, I'm sure she would think she was helping make Title 
> IX better - and that SaVE would "codify" the DCL. That's what a lot of 
> advocates told me they were told when they were asked to support SaVE.
> 
> I have thought a bit about - and have discussed with a few folks - what 
> needs to happen to ensure that nothing in SaVE is engrafted on existing 
> procedures at any school in a way that reduces the value of requirements 
> that define "prompt, equitable and effective" in the DCL and Titles 
> IX/VI/IV.  The worst thing would be for schools to start using SaVE's 
> lesser standards in Title IX matters, and have students accept the 
> standards as mandatory because of SaVE.  If students passively accept 
> subjugation of violence against women in the enforcement of Title IX, it 
> will eventually become the tolerated rule - and legitimized.
> 
> I have an idea for how advocates who REALLY care about the fair treatment 
> of women can stop the harm from SaVE in its tracks.
> 
> If, for example, a school adopts a standard more strict than 
> "preponderance," a policy-based OCR complaint could be filed - and if the 
> school claims they are relying on SaVE, OCR would have a chance to opine in 
> writing that SaVE does not modify Title IX or the DCL in any way that 
> diminishes existing substantive civil rights standards.
> 
> The same approach could be used to challenge the idea that an incident must 
> be "reported" before a school need provide redress under Title IX. Civil 
> rights laws require SOME response even if school officials received no 
> "report" but evidence show they "know or should know." 
> 
> If forced to respond to OCR, bad schools will say that SaVE applies only to 
> violence against women that does not rise to the level of a Title IX 
> matter. But because they are allowed to have dual policies -- one for 
> "sexual assault" and one for "civil rights and title IX violations," 
> students will be supremely confused and most won't have a clue that SaVE 
> allows for overtly unfair treatment of violence against women so long as 
> the incident isn't categorized as a civil rights harm.
> 
> In short, Brett, it doesn't matter whether Congress only has jurisdiction 
> to modify the Clery Act -- the power and money behind SaVE was intended to 
> create a federal law that would inhibit the effectiveness of Title IX by 
> allowing schools to mistreat physical and dating violence that doesn't fit 
> the definition of "severe or pervasive" and unsophisticated advocates who 
> don't understand statutory construction doctrine - or even appreciate why 
> it is SO dangerous for SaVE to incorporate criminal law standards of 
> "non-consent" - have been used to facilitate the enactment of a law they 
> had no way of knowing was a snake in the grass.
> 
> At this point - we can at least limit it's destructive value.
> 
> I spoke recently with federal officials who quite forlornly declined to 
> opine when asked whether SaVE will hurt the value of Title IX. Their 
> silence was sadly telling.
> 
> 
> 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 4:58 PM, Brett Sokolow 
> <>
>  wrote:
> 
>> 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 a