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

[John Foubert <>]

SAPC Colleagues,

An additional relevant post from Wendy.

John

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John D. Foubert, Ph.D., LLC

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---------- Forwarded message ----------
From: Wendy <>
Date: Sat, Mar 28, 2015 at 11:48 PM
Subject: Fwd: [WRAC-L] federal court stifles the SaVE Act
To: John Foubert <>

Subject: Re: [WRAC-L] federal court stifles the SaVE Act
Reply-To: Wendy <>

The first iteration of SaVE used mandatory language such as "shall" -

The recent regulations fixed ALL of the ***substantive*** unconstitutional provisions that were prioritized in the lawsuit; provisions that were mandatory under SaVE - AND violated Title IX - but are no longer mandatory. This is a great result of the lawsuit! 

The lawsuit was planned and designed to be used as a Damocles sword to force the folks working on the regulations to make all the necessary ***substantive*** changes and I was pleased to see the lawsuit  produce that change - not to mention that the lawsuit forced all schools to adopt the preponderance standard despite SaVE's language allowing schools to choose.

Please read the lawsuit (available at Campusaccountability.org) to see where the problems were when SaVE was enacted - so you can appreciate how the lawsuit forced some very important changes through voluntary school choice and regulation. (The "right" of appeal for victims - for example - was removed, which was an issue in the lawsuit because victims don't need a "right" to appeal within the school - they have a superior right to "appeal"

By going to OCR and the courts.)

Opt outs don't work well when statutory language is mandatory - and in any event, even with an opt out AND a spending clause analysis, the ***substantive*** provisions of SaVE were unconstitutional because they rose to the level of "regulation" of violence against women, and "regulation of sexual violence," both of which can NOT be regulated by Congress. 

Spending Clause powers are limited. This is why the lawsuit was held open for a full year while schools like Harvard and Princeton CHANGED their polices to REMOVE unconstitutional ***Substantive*** provisions that were permitted under SaVE, but violated Title IX.

Anyway - Brett is incorrect that I'm the "only one" planning to sue schools that dare apply ANY policies from SaVE or ANY generic misconduct policies that are not fully compliant with Title IX.

Key areas of focus for the planned lawsuits are:

1. Using ANY criminal law definitions - including "nonconsent," "force," and "affirmative consent" - rather than "unwelcome and offensive." 

2. Using ANY burden of proof greater than preponderance.

3. Applying ANY less onerous/more protective standards when redressing violence on the basis of race, national origin, etc., compared to violence on the basis of sex.

The procedural boondoggle nonsense with employees masquerading as "advisors" who will persuade victims not to file formal complaints - etc., and all the nonsense about training programs will NOT succeed. Until schools treat sexist violence as the SAME type of problem as racist violence, incidence rates will continue to soar and schools will suffer well-deserved shame, bad press and financial harm.

While the procedural obfuscatory stuff from SaVE bothers me, is not a priority at the moment.

Unlike Brett, I do not fight on both sides - I am an advocate only for women's full equality and safety on campus. Moreover, unlike Brett, I am a social justice activist and am not motivated by money.

My goal since the late 1990s has been to force all schools to treat violence against women exactly the same as violence on the basis of race, national origin, etc.

This lawsuit was one successful step in that direction - and after writing the lawsuit with Bunny Sandler, I gave it away for free to the public so all lawyers will have what they need to file similar suits  -

I litigate in federal court a lot.

More advocates need to do the same.

It's the only place where equality for women can effectively be ***recognized,*** (Patricia Arquette hit an important nerve) and enforced

Universities should be loathe to tolerate - much less promote - segregation and subjugation of women - even when it's wrapped up in training, education, and support services dollars.

Wendy Murphy

Sent from my iPhone

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