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

[Nancy Cantalupo <>]

Dear All,

I am writing with a couple of matters I forgot or am adding to m last message in response to your replies to my last message.  First, thank you, Wendy, for your reply.  I have corrected the typos you caught. 

Second, in response to Emily's question regarding gender neutrality (and any other matter related to Judith Herman's comment), please contact Margaret Hazuka <>.  I am not in touch with Dr. Herman, so cannot pass any comments on to her.

Third, regarding the joint law professor comment, the questions and substance of the text are final and some faculty have already signed, so other than correcting typos, we cannot take additions or make changes.  However, as Wendy suggested in her email, anything that you would have added to our comment you should feel free to put in your own comment and file it with ED.

Finally, we now have a copy of the full comment available for download online at http://bit.ly/LawFacComment.  It will be updated periodically as signatures come in, and the final document, with all signatories included, will be available there by 10am on Wednesday, January 30.

Thanks, all, and enjoy the remainder of your Sunday!

Best,

Nancy

Nancy Chi Cantalupo 甘念齊

J.D., Georgetown Law

See my latest article, And Even More of Us Are Brave: Intersectionality & Sexual Harassment of Women Students of Color, at my SSRN author site: http://ssrn.com/author=884485

On Sun, Jan 27, 2019 at 10:54 AM Springston, Emily Auld <> wrote:

Dear Nancy-

 

Thank you very much for the work you are putting into this process and for lending your voice.  I wanted to offer one small comment for Ms. Herman’s letter.  On page 4, it uses the term “her trauma” – everywhere else it is gender neutral with focus on terms like survivior.  I wonder if that term was intended.  If not, I wanted to pass along my suggestion that it be changed for the final letter.  We have a number of male and non-binary students seeking our help having experienced varying forms of sexual misconduct, and so that jumped out at me as something to be reviewed.

 

Sincerely,

Emily

 

 

Emily Springston

University Director of Institutional Equity & Title IX

Office of Institutional Equity

Indiana University

400 E. 7^th Street

Poplars 833

Bloomington, IN 47405

(812) 855-4453

(812) 855-4889 (main office)

 

 

---------- Forwarded message ---------
From: Wendy Murphy <>
Date: Sun, Jan 27, 2019 at 9:02 AM
Subject: Re: [WRAC-L] Fwd: [Title IX Rapid Response] Sign-on Comment for Mental Health/Trauma Experts
To: Nancy Cantalupo <>
Cc: Sexual Assault Program Coordinators' Listserv <>, WRACL <>

Dear Nancy and list;

The questions raised in Nancy’s draft and the issues addressed by Judy Herman are important, though I’m surprised Judy didn’t mention that subjecting an entire class of people to second-class campus citizenship causes enormous emotional and psychological harm. 

I’ll a few more thoughts, though my planned response to the government will be longer.

First - I saw typos in paragraphs 30 and 35.

Second - I would ask whether the word “decision” includes instances where, as we all know is not uncommon, a university president unilaterally changes the decision or the punishment in a manner that is completely external to a school’s published  policy. Shouldn’t this be forbidden? Shouldn’t a victim be notified when this happens? 

Third - I would ask whether the delay to accommodate “law enforcement” includes a school’s own law enforcement or refers only to external civilian authorities. Relatedly, I would point out that when a school uses its own campus police to investigate the criminal nature of a sex-based civil rights offense, it becomes a state actor, subject to a completely different set of responsibilities and is not subject to these new limitations on liability at all. Thus, what do these proposed regulations anticipate or require with regard to the responsibilities of campus-based law enforcement when a state actor is involved in compliance because that would implicate Title IV.

Fourth - I would ask about the conflict between these proposed regulations and requirements under Title IV, which also applies to sex-based discrimination for publicly funded schools. Can schools lawfully treat sex-based harm different under Title IX than under Title IV? How should schools express their different obligations in published policies? 

Fifth - the proposed regulations completely insulate schools from all responsibilities when the discriminatory harm is *correctly* reported to the *correct* official on the eve of graduation. Spending Clause-based laws mandate that recipients prevent discrimination “under” programs and activities, but these proposed regs permit discrimination “under” based on the timing of the *filing* of a particular type of report, rather than whether discrimination happened. 

I have lots of other comments, including that the proposed regulations completely fail to address intentional discrimination, which is established as a matter of law when a school adopts a facially discriminatory policy, and these proposed regulations require schools to adopt facially discriminatory policies - which means schools will more easily be sued if they obey these regs. Note that it is NOT a defense to say “we did it because the regulations said we could.” If a regulation stated that schools must permit students to commit murder, schools could not argue in court that they properly did nothing in response to murder because the regulations said they could do nothing. 

Speaking of murder, the proposed regulations permit schools to do nothing if a woman is beaten into a coma because she is female - on the grounds that the woman did not file a signed, formal complaint with the appropriate official. In fact, the proposed regulations permit hoards of men to gang rape large groups of women - in public - on campus - in front of the student body, the president, and the board of trustees. They can all watch, cheer, and do absolutely nothing in response, even if the same thing happens day after day. What purpose do anti-discrimination laws serve if the most extreme forms of discrimination are permissible?  

Anti-discrimination laws are supposed to *prevent* discrimination, not prevent liability. 

Sex-based harm is entitled to receive the exact same treatment as harm based on race and national origin. If schools rely on these regulations to treat women differently, they will be sued successfully at least under state civil rights and state constitutional laws, which forbid ANY different of sex-based harm, compared to race and national origin. 

These proposed regulations will lead to massive lawsuits - against schools and the Trump administration - not only because they are confusing but also and most importantly because they are overtly discriminatory. 

Wendy Murphy 

Sent from my iPhone

 

From: <> On Behalf Of Nancy Cantalupo
Sent: Sunday, January 27, 2019 1:57 AM
To: Sexual Assault Program Coordinators' Listserv <>
Subject: Fwd: [Title IX Rapid Response] Sign-on Comment for Mental Health/Trauma Experts

 

Dear All,

 

I am writing about the Title IX NPRM.  First, just in case you have not already heard, the deadline to comment has been pushed back the January 30th, due to the website being down during the government shutdown.

 

Second, I want to make sure you all know about two new resources posted to the FacultySayHandsOffIX since the last time I emailed (I think): 

(1) a page entitled "Want to Contribute to These Efforts as a Researcher and Scholar but Don't Have a Lot of Time? Submit Your Research as a Comment" (https://sites.google.com/view/faculty-say-hands-off-ix/how-to-submit-your-research-as-a-comment?authuser=0) which I hope every one of you with publications you have already written on gender inequality, civil/human rights, the lives of women and gender minorities, etc.-- very broadly defined-- will check out and use the instructions there to submit your already-published writings.

(2) several template letters, written from the perspectives of particular groups of students, all crafted by law students at Rutgers, under the supervision of Professor Penny Venetis), available at this page: https://sites.google.com/view/faculty-say-hands-off-ix/how-to-submit-a-comment?authuser=0. 

 

Third, I am attaching a comment that will be submitted by a group of law professors on Wednesday morning.  We already have 25 law profs signing on, but will be collecting more signatures for inclusion before we file the comment with the Dept of Ed.  I am sending it to you all because I hope you or your schools can use it in some way if/when either or both of you file comments.  I encourage you to read at least the introduction (under 3 pages) to get a sense of what the comment is all about and potentially to pass it along to the appropriate decisionmakers at your schools, especially if they have decided they don't have the resources to write their own comment.  As you will see, the comment does not take a substantive position on the proposed rules themselves, but attempts to show how unclear the proposals are and how difficult (to impossible) they will make complying with Title IX.  Therefore, a school could write a short comment cover note stating its agreement with the dangers of lack of clarity, then attach the comment.  Anyone who wishes to get a copy of the comment with the full list of law professor signatures as of January 30 morning should email (feel free to also copy me at this address ().

 

Finally, I am forwarding an invitation to sign on to a comment for "mental health professionals and trauma specialists."  Please see the message below my signature and contact Margaret Hazuka <> if you have any questions.

 

Best,

Nancy

 

---------- Forwarded message ---------

From: Hazuka, Margaret <>

Date: Fri, Jan 25, 2019 at 3:47 PM

 

Hello all,

 

I’m writing to share a sign-on comment letter that Judith Herman, author of Trauma and Recovery: The Aftermath of Violence-From Domestic Abuse to Political Terror, wrote opposing the Title IX NPRM. She focuses on the reasons why the rules are problematic from the perspective of mental health experts and trauma specialists, particularly condemning the limitations on supportive measures, the cross-examination requirements, and the proposed mediation rules. Because Dr. Herman’s work focuses on adults, her letter is geared toward the NPRM’s effects on college students.

 

We are helping her circulate the letter for sign-ons from mental health professionals and trauma specialists who also want to oppose the rules. If you have contacts in the mental health/trauma space who may be interested in signing on, please send this along!

 

Those interested in signing on can fill out the google form here by 6PM EST, Tuesday, January 29^th. The text of the letter is in the form and attached as a PDF.

 

We want to limit this sign-on comment to mental health professionals and trauma specialists/experts, so please be judicious with your sharing!

 

Let me or Shiwali know if you have any questions.

 

Best,

 

Margaret

 

Margaret Hazuka

Pronouns: she, her, hers

Workplace Justice & Education Fellow

National Women’s Law Center

Main: 202.588.5180 | Direct: 202.956.3074

| www.nwlc.org