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

[John Foubert <>]

SAPC Colleagues,

I don't know if I was the only one confused last night by a post referring to Wendy Murphy when hers was not posted to our list; for the sake of providing a more complete perspective, I am forwarding Wendy's original post to this list as she is not a member.

John

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John D. Foubert, Ph.D., LLC

405-338-8046 (c)
http://works.bepress.com/john_foubert/

From: "" <>
Date: Saturday, March 28, 2015 at 6:56 PM
To: "" <>, "" <>
Cc: Brett Sokolow <>, "" <>, "" <>, "" <>
Subject: Re: [WRAC-L] federal court stifles the SaVE Act

Dear colleagues;

In an important court ruling last week, a federal judge in D.C. ruled that the Campus SaVE Act can have "no effect" on Title IX.

This was a critically important victory and an important first step on the way to ensuring that no sexual assault victim on any campus will be subjected to second-class justice when she seeks redress in the aftermath of sex-based violence (sexual assault, dating violence and stalking.)

SaVE was filed with Congress in 2011 with the enthusiastic support of many advocacy groups around the nation because they were told SaVE would "codify" the Department of Education's April 4, 2011 Dear Colleague Letter.  (DCL)  The DCL was excellent and made clear that schools must address violence against women using the SAME standards as those that apply to the redress of violence on the basis of race, national origin, etc.  Simply put, violence against women in education finally achieved its rightful seat at the civll rights table of justice.

The higher ed industry was furious about the DCL and it immediately responded to the DCL by filing the SaVE Act.  The bill was designed to overturn the DCL on several key points including whether schools must apply an equitable "preponderance of the evidence" burden of proof when assessing a victim's report of violence.  The preponderance standard is mandatory under Title IX.  SaVE went so far as to eliminate the word 'equitable' entirely from Title IX, and it required schools to define civil rights violence using onerous criminal law definitions such as 'sexual assault,' 'force,' and non-consent - rather than the much easier to prove legal definitions of 'unwelcome and offensive' that are mandatory under Title IX.  

Despite the fact that SaVE explicitly - and for the first time in history - allowed schools to treat victimized women as second class citizens on campus, advocates supported SaVE, in part because they didn't understand the complex legal language, but also because the bill offered new funding opportunities for advocates to conduct training and education programs.

After falsely claiming that SaVE would 'codify' the DCL, Congress made even more modifications to SaVE such that the bill would completely destroy the requirement that violence against women be redressed under EQUITABLE policies and procedures.

Tremendous lobbying dollars were spent pushing SaVE through Congress and it was signed into law in March 2013.  SaVE was slated to take effect one year later, so schools across the nation spent 2013 year changing their sexual assault polices to comport with SaVE's worse standards.

On the eve of SaVE's effective date, a lawsuit was filed in D.C. federal court seeking to stop SaVE from being enforced on ANY campus on the grounds that it violates women's constitutional rights to have gender-based violence subjected to worse treatment compared to violence on the basis of other protected categories such as race and national origin.  Among other problems, this posed an irrational dilemma for black women sexually assaulted on the basis of race and sex.  Would a school conduct two different hearings under two different standards for the very same incident?

While a motion to dismiss the lawsuit to stop SaVE was under consideration by the court, schools around the country became concerned in 2014 that there were aspects of SaVE that were indeed unconstitutional.  Thus, many schools, including Harvard, changed their policies AGAIN to reject certain of SaVE's most problematic substantive provisions.  For example, after the lawsuit was filed, every school in the nation FINALLY explicitly adopted a "preponderance of the evidence" standard of proof. Prior to the lawsuit being filed in 2014, many schools in 2014 took advantage of SaVE's provision allowing them to apply a more onerous burden of proof on women, and they adopted standards such as "clear and convincing" evidence - which is much more onerous than mere preponderance.

After the lawsuit against SaVE was filed, all schools changed to preponderance, and it was expected the federal court would dismiss the lawsuit as "moot," but instead, the court did something much better and ruled that SaVE does not and CAN not have any effect on Title IX.

This excellent result now paves the way for the next steps in SaVE's demise as an irrelevant, unconstitutional federal law that insults all women.

WHY IS THE SaVE ACT UNCONSTITUTIONAL?

The United States Supreme Court ruled in the Morrison case that Congress has no authority to 'regulate' violence against women because it is not a federal issue. Although schools can be required to comply with civil rights laws under the Spending Clause (as a quid pro quo for the receipt of federal funds) spending clause power is not the same as "regulation" because schools can opt out.  The Supreme Court also recently ruled  in the Comstock case that Congress has no authority to regulate sexual violence whether against a man or a woman. These cases together make clear that the SaVE Act is nconstitutional to the extent it regulates violence against women and sexual violence in particular.

When Congress imposes itself into an area in which is has no authority to act, courts will strike down AT LEAST those provisions of the law that rise to the level of 'regulation.' (SaVE's provisions that provide funding for training programs, etc., does not rise to the level of prohibited 'regulation.')

WHY IS THE SaVE ACT IRRELEVANT?

Now that the federal court has ruled that SaVE can have 'no effect' on Title IX, reasonable people wonder when, if ever, it DOES apply?

It certainly can NOT apply to the redress of ANY sexual assault because all sexual assaults are Title IX matters. And while a school can have a separate sexual assault policy, it MUST comply with Title IX. Hence, a separate sexual assault policy can only comply with those aspects of SaVE that do not violate Title IX.

This means that if a school adopts ANY 'generic sexual misconduct' policy - whether from the SaVE Act or not - that does not explicitly guarantee "equitable" redress, that school is in violation of Title IX. Period.   Same goes for a policy that uses more onerous criminal law language - such as "sexual assault" - to define a Title IX violation because only "unwelcome and offensive" is required under Title IX, and these terms are far easier to prove that the criminal law standard of "non-consent."

Hence, the SaVE Act is irrelevant because it can't be applied to ANY sexual assault matter on campus without violating Title IX.

Many schools are already treading on dangerous territory by having victims REPORT their victimization to the Title IX coordinator, but then move on to a different department where their Title IX complaint is downgraded to 'generic misconduct."  Students are told they have a "choice," but in fact, they  - like school officials - have no discretion to declare a Title IX violation something OTHER than a civil rights matter, or by such reframing, allow the matter to be subjected to less than fully "equitable" redress.

With the D.C. federal court's ruling in place, the natural next step will involve a lawsuit against a school that violates Title IX NOT by wrongfully applying the preponderance of evidence standard, but by failing to provide full equity or otherwise refusing to comply with Title IX standards and definitions irrespective of what label is placed on the harm alleged.

This next round of debate and litigation is critically important because if a school chooses to downgrade a complaint from a 'civil rights' matter to a 'generic misconduct' matter, the victim will have no recourse if she is then mistreated on campus in connection with redress proceedings.  This is because the Office for Civil Rights in every region has already ruled that it will not get involved in any manner whatsoever where a victim claims her rights were violated under the SaVE Act or under a generic misconduct policy. 

Of course, this begs the question -- 

Where do victims go when they suffers sexual violence, but the school completely refuses to frame it - or treat it - as a Title IX matter?

OCR of course - 

OCR will act swiftly to make it clear that downgrading a sexual assault such that it is redressed under less protective standards than those that are mandatory under Title IX is a very serious Title IX violation - not only because it denies victims equitable treatment, but also because it creates a very serious invisibility problem in terms of schools evading accountability by OCR (and the courts because SaVE gives schools immunity from suit.)  Failure to comply with civil rights laws will also produce false data about how much violence against women is is occurring on college campuses because the label attached to misconduct matters a lot when incidence rates are being measured.

It won't be difficult to ensure that all schools address EVERY sexual assault under Title IX - and only Title IX - but effective oversight starts with students knowing and ASSERTING their REAL rights, which means they need help from only truly independent advocates who will insist on 'EQUITABLE' redress - not merely 'fair' redress ("fair" is the standard from SaVE). For example, the National Women's Law Center, the 'Know Your Nine" group, and virtually every other established advocacy group in the country teaches victims that they are only entitled to SaVE's weaker standards and that only 'fair' redress is required - not 'equitable' redress. These groups should be avoided until they change their policies and demand only fully "equitable" redress for women.

Indeed, any advocacy group that uses the word "fair" instead of "equitable" - or that uses criminal law definitions such as 'non-consent' and 'affirmative consent,' rather than 'unwelcome and offensive - should be avoided because Title IX has NO VALUE unless civil rights standards are applied; most importantly the fundamental right to TRULY equal treatment through the mandate of EQUITY.  

Wendy Murphy