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

[Nancy Cantalupo <>]

Dear Friends and Colleagues,

 

I wanted to follow-up on Wendy’s reference to the White Paper regarding the preponderance of the evidence standard of proof.  I was intending to send news of the White Paper to this group anyway, so this gave me a helpful reminder to do it sooner rather than later.  Wendy, I am not sure why you refer to the White Paper’s authors and signatories as “advocates”—actually, it was written by law professors, who have been joined by, at this point, over 90 other law professors who have signed onto the White Paper (most of the law professor signatories are mainly scholars, not advocates, and where they are advocates, most advocate on other legal topics, not Title IX per se).  Here is the Huffington Post’s article about the paper: http://www.huffingtonpost.com/entry/preponderance-of-evidence-college-sexual-assault_us_57a4a6a4e4b056bad215390a and a link to the blog on which I posted the paper: http://www.feministlawprofessors.com/2016/08/white-paper-title-ix-preponderance-evidence/. 

 

Although the paper was not written by advocates, I hope it will be useful to advocates, especially those in this group.  I therefore encourage you all to take some time to read it, and I am happy to answer any questions you may have about it.  If you feel inclined to do so, I also encourage you to send it to your networks, including to the lawyers and law professors who you know.  For the law professors, please let them know that we will add signatories for as long as we get requests, and they should email me if they wish to sign-on.  (See the Feminist Law Professors blog post above for instructions.)

 

Since we are talking about evidence: on the other topic regarding who published which articles when, anyone who has read my 2009 article on campus sexual violence will be aware that I cite extensively to a 2005 Suffolk Law Review article by Kathryn Reardon (of the Victim Rights Law Center at the time), which precedes Wendy’s 2006 New England Law Review article.  Since I do remember reading Wendy’s article as I was researching my article, I would certainly have acknowledged doing so in any conversations I had about it, but I definitely wouldn’t have suggested that Wendy’s was the first or mine the second because I had already acknowledged in print that Kathryn Reardon preceded us both.  I honestly cannot remember any such conversation nor why I didn’t cite to Wendy’s article in my article when I know I read it, but it was all a long time ago. 

 

The moral of the story is, I think, that our limited time and energy (or at least mine) is better spent on Title IX events happening right now (to the extent that any of you are inclined to devote any of your attention to Title IX matters at all!).  For me, that is mainly the White Paper and surrounding activities, so I end where I began, by hoping that you all will read the paper, make use of it, and, to the extent that you wish to, send it on to others who may also find it useful.

 

Otherwise, I wish you all very well as the beginning of the school year looms or is already upon us, depending on the institution!

 

Best,

Nancy

http://www.barry.edu/law/future-students/faculty/staff/ncantalupo.html

 

-----Original Message-----
From: 'Wendy' via WRACL [mailto:]
Sent: Tuesday, August 9, 2016 2:06 PM
To: Wendy <>; 'Wendy' via Wracl <>
Subject: Re: [WRAC-L] Journal of College and University Law

 

Dear Colleagues;

 

Susan Marine let me know yesterday that my claim that I wrote the first law review article in the nation explaining the legal relationship between sexual assault and Title IX is incorrect and that Steinberg wrote an earlier piece on the issue in 1991. As I explained to Susan, Nancy Cantalupo told me my piece was the first, although she told me this in the context of also telling me that her piece was second.

 

I have not yet read the Steinberg piece but I am grateful to know about it, and I'm eager to learn what the author said back then because I had a Harvard Law student helping me with research back in 2002 when I first started writing formally about the issue - and he found nothing whatsoever on the issue of Title IX, sexual assault, and the meaning of "equitable" redress, which was a key focus in my piece. My article was primarily a retelling of how I strategically crafted an unprecedented OCR complaint against Harvard, and forced them to retract a recently adopted rule requiring victims to produce "sufficient, independent corroboration" as a prerequisite to redress of sexual assaults on campus. No similar rule applied to the redress of any other form of civil rights violence on campus, so I argued that Harvard was violating Title IX because the corroboration requirement was not "equitable." It was the first time anyone filed a complaint against a school on behalf of "women as a class," which was very important for victims at the elites and Ivies who feared retaliation and career damage, etc., if they used their personal cases to file a complaint. Policy complaints then became very popular and effective as a form of Title IX activism. That was back in 2002.

 

Whether or not Steinberg addresses the meaning of "equitable," I wonder how and why her piece was not findable?

 

Invisibility of feminist scholarship has been described to me more than once as a serious problem. I'm curious if anyone else sees this.

 

On a related note, I saw a white paper last week released by a group of advocates who are supporting the preponderance of evidence standard.

 

This is welcome news - especially given that that paper argues that sex-based assaults must be treated exactly the same as race-based assaults, a point I've been making without support from advocates for decades. I'm glad to see movement on this, however, these same advocates supported the Campus SaVE Act, and various state-law versions of the SaVE Act, such as the terrible New York "Enough is Enough" law, which do not require schools to treat sex-based harms the same as race-based harms. Indeed, they explicitly permit or require schools to apply much worse, disparate, segregated, and second-class legal standards ONLY when schools are redressing sex-based civil rights abuse and violence.

 

So I'm confused. The authors of the white paper cannot have it both ways.

 

If sex and race-based harms are entitled to exactly the same civil rights redress on campus, why are the advocates who signed last week's white paper also supporting the SaVE Act, and other laws that make sex-based harms UNequal to race-based harms?

 

Wendy Murphy

 

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