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

[Wendy <>]

I would welcome OCR guidance as you suggest - though I've asked several 
people there who refuse to answer any questions. 
That said - I support full repeal of the horrible bill! What does it do that 
the DCL doesn't cover?

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 9:46 PM, "S. Daniel Carter" 
<>
 wrote:

> 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