Wendy,
The coalition that developed SaVE and Sen. Casey who eventually took lead as sponsor on the measure in 2011 actively sought your input which led to improvements in the bill, if not everything you sought. We took your input very seriously, and I think given today's discussion it should be evident we still do.
I'm extremely disappointed, however, to see a survivor turned advocate attacked in this forum over a difference of opinion, especially when it is a very thoroughly informed opinion. Laura Dunn probably worked harder than any of the rest of us to move SaVE forward, and unlike many of us who worked on it as professionals she did so as an unpaid volunteer.
I think it is time to bring this dialogue to a close, something the list members will probably welcome, with a reminder that, as is appropriate for this list, that much of SaVE is focused on prevention and education. In much of today's discussion I've been wearing my victim advocate hat, but putting on my policy hat I recognize that ultimately we will only defeat sexual violence if we deprive it of its oxygen - the ignorant culture in which it thrives.
On Aug 26, 2013, at 9:39 PM, Wendy <> wrote:
Too bad you didn't seek advice before you caused do much harm. 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 9:32 PM, Laura Dunn <> wrote:
It is beyond disappointing to have sat and read this email chain all day for several reasons.
First and foremost, I am my own advocate and spokes person. No one should presume to speak for me nor presume to be familiar with me, my story or my advocacy. Wendy, you do not know me nor should you ever presume to speak for me. You are very capable of asking my position on matters as we have had contact in the past, but do not presume to know me or use me as a pawn in your arguments. How demeaning and disappointing, especially for a victim "advocate."
I thought long and hard about my advocacy for SaVE. When the preponderance standard was removed I considered pulling my support, but as a law school educated individual on the verge of getting published in a law school journal article on the Campus SaVe Act I more than know what I advocated for and supported - good and bad. Nothing is perfect, but I believe this furthers the movement.
Constructive critism is good for any movement and I have respected Ms. Murphy for that, but today I lost respect. There are many individuals who deserve credit for the current flurry of Title IX complaints and many opinions about improving the movement. If our conversation cannot be constructive and inclusive with utmost respect to victims who have exposed private experiences in hope of a better tomorrow than it is not a conversation worth having especially behind the backs of those individuals.
I was forwarded this email chain and I am disappointed at this discussion. Do not use my name for devisive purpose. I support and will fight for SaVE without apology.
Laura Dunn
On Monday, August 26, 2013, 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 posi -- Laura L. Dunn
Survivor & Advocate Founder of SurvJustice
"Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly." ~ Martin Luther King, Jr.
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