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

[Nancy Cantalupo <>]

Dear WRAC-L and SAPC Colleagues and Friends,

 

Thank you, Jill and Holly, for reaching out to everyone on these lists—a great idea, and I encourage everyone to pass along their comments to Jill, Holly, the Clery Center, or another appropriate representative (see the website in Jill and Holly’s email for the full list).  I am serving as a negotiator representing advocacy organizations, so would be happy to talk to anyone on these lists who are with an advocacy organization, and am providing my two email addresses for that purpose below.

 

I am also attaching a copy of a “blackline” edit of the Clery Act with the VAWA amendments highlighted.  This blackline was provided to the negotiators by the Dept of Ed.  I happened to have already created a blackline for my own use, and the versions are virtually identical, with one minor numbering discrepancy.  Therefore, I feel comfortable sending this along as accurate.

 

Hope this is helpful, and I wish you all a Happy New Year!

 

Best,

Nancy

 

 

Nancy Chi Cantalupo

Research Fellow, Victim Rights Law Center

Researcher, Georgetown Law

 

You can access my scholarship on the Social Science Research Network (SSRN) at: http://ssrn.com/author=884485

 

From: [mailto:] On Behalf Of
Sent: Monday, January 06, 2014 5:53 PM
To: ; ; ; ; ;
Subject: Re: [WRAC-L] Feedback requested for VAWA negotiated rulemaking committee

 

If you're talking about the "Campus SaVE Act" piece of the VAWA - you should probably say so - and distribute a copy of the relevant provisions of the act in its enacted form so that folks know what you're talking about.

 

It would help if you included edits that highlight the changes so people can compare and contrast the old law to the new one.

 

Lots of people agree that SaVE is a disaster and a Rules Committee has no power to fix it.  The committee might be able to define what "prompt" means, but it can't REQUIRE schools to do anything that would interfere with federal law. Thus, for example, because schools need not be "prompt" when rendering a "final determination" it doesn't matter one whit that "prompt" is defined by the committee as "within sixty days" because only the initial investigation and resolution must be prompt under SaVE.  Schools will retain the right to delay a final determination for years if they want, and nothing the Rules Committee does can undermine that authority because it was granted to schools by federal law.  Federal substantive law trumps rule-making bodies, and when there's a conflict, federal law wins. Rules can create process and add meaning to laws but they cannot subvert the substance.

 

SaVE expressly allows schools to subject the redress of violence against women to less protective standards compared to violence against all other "types" of students based on things like race, national origin and religion.

 

SaVE does this by, among other things, allowing schools to apply a burden of proof as onerous as "beyond a reasonable doubt."  Schools that want to can apply a "preponderance of the evidence" standard, but they are free to apply a tougher standard.  I hope the committee takes the time to read the testimony of one Republican congressman who thanked a congressional committee for amending SaVE to eliminate the word "equitable" precisely so that schools would not be required to treat victimized women with equity or apply a preponderance standard or be bound by the Title IX regulation.

 

In some parts of the Act, SaVE mandates schools to subject violence against women to less protective legal standards compare to other forms of targeted violence.  For example, schools must apply state criminal law standards to a determination of whether a federal civil rights violation occurred.  Again, this is only required for violence against women.  Violence against other types of students is measured by federal civil rights standards that are much easier to prove.  (For example - under federal civil rights laws, a sexual assault need only be "unwelcome," offensive and based on sex.  Under criminal law standards in most states, a sexual assault can only be proved if there is evidence of "non-consent," penetration and force.  And even when force is not an element, the definition of non-consent is a much tougher burden than "unwelcomeness" because non-consent allows the harmdoer's mindset to trump that of the victim. Under civil rights laws, the mindset of the harmdoer is largely irrelevant, and in any event cannot excuse a violation because the receiver of harm ALONE gets to decide whether an offensive act was "welcome.")

 

SaVE also allows schools to run out the clock on final determinations - and to take no action against an offender until the eve of graduation, if ever.  

 

Certain tactics that bad schools have historically used to avoid scandal and keep tuition dollars flowing, and were CLEARLY unlawful after the DCL, are now lawful under SaVE.  This explains, in part, why so many recently punished offenders have filed lawsuits.  They will gleefully cite SaVE in support of their claims that schools violated THEIR rights by being TOO fair to victims before SaVE was enacted.

 

A rules committee has no authority to repair what's terrible about SaVE.  Much of the work will only distract attention from the real problem. Smart people who care about this epidemic should be filing lawsuits against schools on behalf of women as a class so that federal courts don't wrongly assume from women's silence in the courts that offenders WERE being treated unfairly before SaVE was enacted.

 

Wendy Murphy

New England Law|Boston

617-422-7410

 

 

 

-----Original Message-----
From: Jill Dunlap <>
To: Jill Dunlap <>; 'Holly Rider-Milkovich' <>; '' <>; '' <>; '' <>; '' <>
Sent: Mon, Jan 6, 2014 5:01 pm
Subject: [WRAC-L] Feedback requested for VAWA negotiated rulemaking committee

Greetings colleagues,

 

We are reaching out to you as the VAWA negotiated rulemaking committee process begins with the Department of Education. We have been selected to represent four-year institutions on the negotiated rulemaking committee, and we would appreciate any feedback that you have as we begin this process. The committee will meet in January, February and again at the end of March to determine guidance for how universities and colleges should achieve compliance with the new Violence Against Women Act that was signed into law in March 2013. We know many of you are a part of the compliance processes on your campuses, and we would like to hear about any concerns or questions you and your campuses have as you prepare for the new VAWA to take effect. For more information about the negotiated rulemaking process, see: http://www2.ed.gov/policy/highered/reg/hearulemaking/2012/vawa.html.

 

Because the first committee meeting takes place on January 13, we would appreciate any initial feedback that you may have by Friday, January 10^th.  We will continue to be in communication as the committee proceeds with its work, in order to provide you with new information and to solicit additional feedback as needed.  There are several ways to reach us with your comments, including e-mailing or calling us using the contact information listed below, or using the Facebook page we have created to share your thoughts and concerns: https://www.facebook.com/groups/vawafouryearfeedback/.

 

In addition, the Clery Center for Security On Campus is hosting a Twitter chat on January 9, 2014 from 3:00 to 4:00 p.m. EST to gather your thoughts about the changes to VAWA. Information from the Clery Center is below:

 

On January 9, 2014 we will host a Twitter chat from 3:00 – 4:00 PM ET to talk about the changes and where participants think colleges and universities need guidance.  We would love for you both to join us for the chat if you’re available and lend your voices to the discussion. You can find out more information about the chat on our website and feel free to invite others to join!

 

We will use the hashtag #CleryChat. We’ll start the chat by welcoming participants and briefly explaining the changes and negotiated rulemaking. There will then be a question-based discussion. We can provide you with the questions in advance so you can start to think about what you would like to share. There will also be time at the end of the discussion to pose any final thoughts or questions.

 

We hope you will use these various formats to share your concerns and thoughts with us as we begin the negotiated rulemaking process. We appreciate your time!

 

All our best and Happy New Year,

 

Jill and Holly

 

Director, Campus Advocacy Resources & Education (CARE) Program                                        Director, Sexual Assault Prevention and Awareness Center

Women's Center Programming                                                                                                                 Co-Chair, Abuse Hurts Initiative

University of California, Santa Barbara                                                                                                    University of Michigan

(805) 893-2628                                                                                                                                                   (734) 764-7771

DIRECT ADVOCACY LINE: (805) 893-4613                                                                                                (734) 936-3333 (24. Hr. Crisis Line)

1220 Student Resource Building                                                                                                                 530 S. State St., G509

Santa Barbara, CA 93106                                                                                                                               Ann Arbor, MI 48109-1308                                                                               

                                                                                                                                                                                                                 

http://wgse.sa.ucsb.edu/care/                                                                                                                 sapac.umich.edu

                                                                                                                                                                                facebook: Holly At SAPAC

 

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Attachment: VAWA Amendments to Clery Act docxpwedits.pdf
Description: VAWA Amendments to Clery Act docxpwedits.pdf