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

[Wendy <>]

Nobody should be commanded to communicate in a style authorized by Dan Carter or anyone else.

Dan's analysis is a wordy distraction from the truth. That he was rewarded with his own non-profit in this mess after manipulating victims and advocacy groups to sign on to SaVE is relevant - if "personal." (he told them SaVE would "codify" the Dear Colleague Letter - which was a lie - it decimated it).

SaVE DOES require CRIMINAL law terms to be applied by schools in the redress of CIVIL RIGHTS violence against women.  (SaVE uses the word "shall") and Criminal Law standards are much more onerous ("force and nonconsent" for rape) than civil rights standards (unwelcomeness is enough).

SaVE explicitly allows schools not to treat women with "equity" in the redress of all forms of gender-based violence. This means when violence happens "based on" race, national origin, etc., schools MUST redress those claims using the standard of "unwelcomeness," but more onerous criminal standards CAN and MUST be applied ONLY to violence against women because equity is no longer required after SaVE and criminal standards are both mandatory under SaVE and inequitable.

SaVE is the first time in history Congress has explicitly authorized schools to treat women as less than equal in higher education - which is shocking considering that this is the 50th anniversary of the Civil Rights Act of 1964 (which added sex - including via Title IX- in 1972).

In other words - women were equal - at least under the law as written since 1972 - until the Campus SaVE Act because equity was mandatory until SaVE eliminated the mandate ONLY for violence against women.

Dan is not a lawyer and has zero experience with statutory construction legal analysis.

The detailed analysis of what's offensive, sexist and unconstitutional about SaVE is set out in the lawsuit I wrote with Dr. Bernice Sandler (the "godmother of Title IX) and filed against the DOE and the DHHS in February. It is available at my website - wendymurphylaw.com as is a chart of some schools and where they currently stand in terms of treating women as second class students.

All thoughts are welcome, but please be intellectually honest and do not opine - especially you, Dan - until you take the time to understand the constitutional problems inherent in a law that allows/mandates discrimination.

One argument we make is that Congress had no authority under the Spending Clause to enact a law that conditions the acceptance of federal funds on a school's willingness to discriminate. 

Note that during congressional hearings, Sen. Chuck Grassley thanked Congress for amending SaVE to ALLOW schools to be INequitable to women because - he said - crediting their word as "equal" to their attackers would be unfair to men.  Valuing a woman's word as inherently less weighty than her attacker (and less weighty than students reporting all other forms of civil rights violence) was a good idea, Grassley said, because it would protect men from punishment based on even a credible woman's word. Grassley - a republican - was supported in this position by Sen. Casey from PA and Sen. Patrick Lahey - both Democrats.

Violence against women is a bipartisan entitlement - enabled in part by the very advocates and women's groups who purport to be working toward prevention because they were willing to stay silent about SaVE, hence trade women's equality and safety for piddly government dollars that allow them to do meaningless busy work under the umbrella of anti-violence non-profit organizations.

This is not complicated. 

SaVE is anathematic and abhorrent.

Not all schools will abide SaVE's discriminatory provisions and SaVE will eventually be struck down.  In the meantime, I intend to work hard to shame schools that apply SaVE and subjugate women, and to reward those that don't.

Wendy Murphy

Sent from my iPhone

On Jun 13, 2014, at 8:45 AM, "S. Daniel Carter" <> wrote:

Gillian,

The Campus SaVE Act has been debated previously at length. As you may have missed it, my response on the issues is below. I hope that this will not lead down the path of previous threads which have degenerated into personal attacks. If, however, Wendy, or anybody else, wants to engage in a policy debate I welcome that.

1.) The use of the term “prompt, fair, and impartial” rather than “prompt and equitable” along with not specifically mandating that institutions “use the preponderance of the evidence standard” was intended solely to not place the evidentiary standard in statute as a part of the Clery Act leaving this standard to be set by the U.S. Department of Education’s Office for Civil Rights under Title IX. While this does not afford an additional level of protection it in no way diminishes the protections currently provided by Title IX, and only a future adjustment to Title IX guidelines could do so, something the Education Department has publicly indicated they will not do in response to the Clery amendments.

 

2.) The Clery Amendments require that institutions “provide a prompt…resolution” of any institutional “disciplinary action in cases of alleged domestic violence, dating violence, sexual assault, or stalking”. This is intended to apply a promptness requirement to the entire process, and is why the term “resolution” is used rather than “outcome” which is the term used to describe the initial results of any disciplinary action. As defined by the Merriam-Webster dictionary “resolution” means “the act of finding an answer or solution to a conflict, problem, etc. : the act of resolving something”. Until the conflict is solved, as in there is no further disciplinary process, there is not resolution. Proposed regulations, expected to be published this month, reinforce that promptness is expected at all points.

 

3.) The Clery Amendments do not authorize institutions to use or not use any particular “standard of proof” rather they merely require that institutions disclose the standard they use. For cases subject to Title IX this will remain the “preponderance of the evidence” standard. This was restated in the White House â€œNot Alone” report.

 

4.) The Clery Amendments do not authorize institutions to “delay notifying victims” about changes to disciplinary decisions. This is currently the prerogative of institutions, under existing Title IX and Clery guidelines, and while granted these amendments do not remove this ability they certainly do nothing to authorize it. What the amendments do is specifically require institutions to notify victims of changes, a requirement not previously explicitly included in the guidelines.

 

5.) The coordination of ED with DOJ and HHS relates solely to the production of a report on “best practices” and has nothing to do with responding to individual cases or complaints.

 

6.) The Clery Amendments were carefully constructed to respect, to the extent possible, the wishes of victims rather than require institutions to act against their wishes which is why the explicit obligations of the provisions are triggered when an incident is “reported” rather than when officials “knew or should know” of an incident. The obligations to respond to discrimination remain unchanged.

 

7.) The Clery Amendments absolutely do not require institutions to “apply state criminal law standards” when responding to reports of sexual violence including instituting disciplinary action. To the contrary the Act will explicitly require institutions to use the terms for dating violence, domestic violence, and stalking as defined by VAWA and sexual assault as defined in the FBI’s Uniform Crime Reporting program as provided by 20 USC § 1092(f)(6)(A)(i) and (v) respectively. The only time institutions should reference state terminology is in “primary prevention and awareness programs” as provided for by 20 USC §1092(f)(8)(B)(i)(I) which requires institutions to merely disclose “the definition of domestic violence, dating violence, sexual assault, and stalking in the applicable jurisdiction” and “the definition of consent, in reference to sexual activity, in the applicable jurisdiction”. This programming is separate and apart from the “annual training” to be provided to officials responsible for disciplinary action as provided by 20 USC §1092(f)(8)(B)(iv)(I)(bb) which involves different training elements including “how to conduct an investigation”.

S. Daniel Carter

Director of 32 National Campus Safety Initiative

VTV Family Outreach Foundation

P.O. Box 230024, Centreville, VA  20120

Office: 202-684-6471

http://www.32ncsi.org/

From: Gillian Greensite <>
Date: Friday, June 13, 2014 at 1:30 AM
To: Wendy Murphy <>
Cc: "Klein, Lauren (LB)" <>, "" <>, "" <>
Subject: Re: [WRAC-L] George Will piece on rape and "privileges" on college campuses

I don't have a problem with Wendy Murphy's blunt language. I don't know if I agree with her analysis but her tone can't be a serious problem for those who have taken up the struggle to end rape. She was sharing a letter she wrote to the Boston Globe and her words should be read in that context. Her use of the term "rape privilege" was a critique. It's not news that groups who secure government funding often remain silent about things that matter. Nobody was targeted.

As a long time member of this listserv I hope it remains a place for professional development as desired by LB Klein as well as a place for the lively exchange of ideas and opinions. I'd like to see a response to Wendy Murphy's challenges rather than a retreat from the debate. 

Gillian  

On Jun 12, 2014, at 4:57 PM, Wendy wrote:

That's what George Will said - not me - and it's what advocates said in their petition to have him fired. 

What don't you understand about SaVE?

It requires schools to define violence against women using very onerous criminal law standards instead of civil rights standards. (nonconsent and force instead of "unwelcomeness").

It allows "final determinations" to be made years after a victim's complaint is made -

It allows a burden of proof more onerous than preponderance to be imposed - which inherently devalues women by declaring their word less weighty than all other classes of people on campus.

It eliminates the requirement of "equitable" treatment of violence against women.

All these weaker standards apply ONLY to civil rights violence against women. Civil rights violence against all other protected class categories will still be redressed under more protective and less burdensome standards.

These lists - like parents and students - have a right and need to know.

Wendy

Sent from my iPhone

On Jun 12, 2014, at 7:12 PM, "Klein, Lauren (LB)" <> wrote:

Hi Wendy (and SAPC listserv colleagues),

I understand that you are not in favor of Campus SaVE. You absolutely have a right to express your opinion and make arguments based on your analysis as an attorney. I'm not sure I understand your argument in this letter, but I respect your right to express it.

However, the tone you are using and your use of language such as "rape is a privilege" seems out of place on a listserv dedicated to sexual assault prevention and response professionals on college campuses.  Calling organizations that support survivors "useless" or that our opinions are rooted in "quid pro quo for piddly government grant dollars" is offensive to me. Calling for several members of this listserv to be fired seems to also cross a line.  While I do not share some of the opinions you have expressed on this listserv, I have not attacked you in this way and do not intend to.  If this is how you would like to express your disagreement, perhaps another medium would be a better fit, or perhaps this medium is no longer one that is serving its intended purpose consistent with the values of our profession.

I come to this listserv for professional guidance and take no umbrage at differences of opinion. I do not subscribe to this listserv to read abusive language or to receive alienating communication, especially in a setting to which I turn for solidarity and professional dialogue. I know that many of us are grappling with students or colleagues who have been triggered by George Will's piece or are struggling with continued denigration of our movement.  I am troubled to find this a space that continues to make us feel marginalized while we work to end sexual violence.  It seems that we are receiving communications on this listerv that are not about dialogue but about monologue or exerting power.  That seems antithetical to the purpose of our movement and our work.  

I hesitate to send this, but I feel if we as a professional field are not only pushing a heavy rock uphill in our work lives but are disempowered in our own space, we need to express that is not okay.  I am grateful for my colleagues who are working on or closely with campuses as we work to support survivors and end sexual violence. I know I am not alone in my concerns and that folks sometimes do not want to send emails on this list because they do not want to be targeted. That is troubling, and I know I am thinking about the potential of alternative spaces.  I am hopeful that we can think critically about the purpose of this space and the value of safer spaces. 

I'm happy to discuss this with anyone fu=