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

I'm so glad to hear Nancy's reply --

A few questions for nancy:

1. Where is there a version of SaVE on-line that people can understand?

2. Senator Casey says it was not Congress' intent that Save affect Title IX, but how is it possible for SaVE to regulate ALL forms of violence against women on campus - including forcible rape - and NOT affect Title IX?

3. Senator Casey filed the original bill only days after the Dear Colleague Letter was issued, and the bill was distributed to advocacy groups everywhere as a "codification of the Dear Colleague Letter."  Unless this is a lie, the obvious purpose WAS to affect Title IX because the DCL only affects Title IX.

4. SaVE's original iteration contained a mandatory "preponderance of the evidence" standard (a codification of an important part of the DCL) and included the phrase "prompt and equitable" (a codification of the Title IX regulation.)  These provisions were subsequently eliminated and a Republican congressman testified (see specific testimony below) that he was grateful for the elimination of these terms because he wanted schools NOT to be required to apply the preponderance of evidence standard - or be obligated to do "equity" when redressing violence against women on campus.  Oh, and he specifically thanked Senator Casey for causing those changes to occur during negotiations.

5. I assume Nancy doesn't agree with Senator Casey that SaVE doesn't affect Title IX.  

For those wondering what to make of the language in SaVE, recall that I sent around the actual language of SaVE many weeks ago - to other listservs and to this group - with the new parts of the law that were added by SaVE identified in red so that folks could see the changes clearly. 

My student did the hard work putting the pieces together and we have been sharing it with folks who have been asking to see the actual language and wondering why it's been so darned difficult to GET a copy of SaVE in its narrative final form anywhere on-line despite that the law was enacted almost a year ago.  

In the version of SaVE that I sent around to all of you, I included my own commentary in places where the language was particularly damaging to Title IX so that especially non-lawyers would know what to make of the terminology. Statutory construction analysis is sometimes complicated, but I've written dozens of appellate briefs on the topic arguing what language means (or should be construed to mean) in state and federal statutes.  The problems with SaVE are not that difficult to understand and my commentary explains the problems simply so that anyone can understand.  If anyone on this list wants me to re-send what I sent weeks ago so that you can see exactly where in the bill the serious problems lie - please let me know.  I'll send it again.

In the meantime, it is worth remembering why it is absurd to say SaVE doesn't affect Title IX - even if some people say that wasn't Congress' intent. (It clearly WAS the intent or it wouldn't have been filed with Congress only days after the Dear Colleague Letter was announced, and marketed to anti-violence groups as a "codification" of the Dear Colleague Letter.)  SaVE explicitly regulates all forms of gender-motivated violence, including forcible rape, and requires the redress of such violence to be subjected to less protective standards than the standards that were mandatory under Title IX before SaVE.

Here's what one Congressman said during hearings on the bill:

“The majority bill said that college campuses must provide for ‘prompt and equitable investigation and resolution’ of charges of violence or stalking. This would have codified a proposed rule of the Department of Education that would have required imposition of a civil standard or preponderance of the evidence for what is essentially a criminal charge, one that, if proved, rightly should harm reputation. But if established on a barely “more probable than not” standard, reputations can be ruined unfairly and very quickly. The substitute eliminates this provision.”  (Testimony of Senator Grassley (R.), Iowa, 158 Cong Rec. S 2761, Congressional Record, Sen., 112th Congress, 2nd Session Senate, April 26, 2012; Violence Against Women Reauthorization Act of 2011, Reference: Vol. 158, No. 61).

Most interesting, SaVE HAS TO affect Title IX because Congress' only real authority to regulate violence against women AT ALL exists under Title IX of the Education Amendments and Title IV of the Civil Rights Act. To the extent SaVE regulates conduct that falls below the "severe and pervasive" standard of Title IX (e.g., a minor unwanted pat on the butt), there is a very good argument that Congress has no authority to regulate such harm because it doesn't affect interstate commerce. Ironic how US v. Morrison works to our advantage this time around.  A spending clause argument is possible BUT the SCOTUS decision on ObamaCare says Congress cannot regulate state matters under the spending clause UNLESS there is an opt out provision and many provisions in SaVE are mandatory, which means the law is unconstitutional if Congress' power to enact SaVE came from the spending clause.

I hope this is helpful.

Wendy Murphy

-----Original Message-----
From: Nancy Cantalupo <>
To: wracl <>; sapc <>
Sent: Thu, Jan 9, 2014 7:08 am
Subject: RE: [WRAC-L] Feedback requested for VAWA negotiated rulemaking committee

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: [] 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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