If a school wants to have "two tracks" they can - but the second track generic misconduct policy can NOT deviate from Title IX's mandatory requirements. (which raises the question - why have a separate option at all as it only obfuscates that which should be simple)
This ruling is also key in that it explicitly equates Title IV's standards with Title IX -- as was true with the unprecedented Missoula ruling from 2014.
And this ruling makes clear - again - that an offense must be defined NOT by criminal law terms and definitions (such as nonconsent) but rather - by civil rights terms which ask only whether an act was "unwelcome".
Unwelcome is a much better standard for victims than nonconsent and even the trendy "affirmative consent" rule -
Many schools adopted lower tier second-class policies after the SaVE Act was signed into law in 2013 because SaVE allowed second class standards ONLY for violence against women. But, as you know - I filed suit in DC federal Court under Title IX and Title IV, to stop SaVE from being enforced on any campus on the grounds that it violates Women's rights under Title IX, Title IV, equal protection and due process to segregate out ONLY violence against women for worse treatment -
The federal judge ultimately ruled in my case that SaVE can have "no effect" on title IX -
The Missoula ruling was the first findings letter that agreed with my position about the fact that there can be no second-class treatment of women.
This important new ruling against U. New Mexico shows OCRs and DOJ's firm commitment to ensuring that SaVE causes no second-class effect on any campus, and that even without SaVE, schools must stop using two-track "separate and unequal" policies ONLY for violence against women. (Some folks have told me they are keeping their second class option because they aren't bound by a DC federal district court ruling that did not directly implicate them.)
In the new ruling, DOJ Explicitly equates Title IV and Title IX, which is extremely important because "sex" has been a recognized category under Title IV of the civil rights act for decades - and private schools on average - because they aren't covered by Title IV - haven't perceived themselves as MANDATED to treat women as full equals. They have claimed that Title IX (which applies to all schools - public or private - that receive federal funds) wasn't established as requiring the same policies and standards as Title IV because title IX was enacted under the Higher Ed Act not the Civil Rights Act.
Indeed, before my lawsuit and the Missoula ruling nothing explicitly stated that Title IV and Title IX were coextensive (lots of things said Title VI and Title IX were coextensive but not Title IV) and required the exact same treatment and standards etc -
So - this is a fabulous new DOJ ruling (note however that the proposed federal CASA Bill could cause a new round of problems for victims if enacted - though I suspect this DOJ ruling will cause Congress to put the brakes on CASA for fear the bill isunconstitutional in the ways that it permits schools to deviate from Title IX, hence violate title IV.)
It's time for all schools to give up the strategy of segregation and obfuscation - and simply embrace the simplicity of a unified civil rights redress policy. Students should learn the minute they step foot on campus that discrimination, harassment and violence against any protected class student will be treated under the SAME EQUITABLE redress policies. Violence against women will not be segregated out for different treatment.
