Please Save us from SaVE!

There are lots of reasons that Title IX activists should be working to stop the Campus Sex Violence Elimination Act (SaVE) from taking effect. This law was snuck in as part of the Violence Against Women Act (VAWA) re-authorization and now it’s time to take a much closer look.

While many articles have been written about some of the problems with the Campus Sex Violence Elimination Act (SaVE), now that SaVE became effective on March 7, 2014, students and parents have a right to know all the ugly details.

Last week I—along with the “Godmother of Title IX,” Bernice Sandler, and James R. Marsh of the Marsh Law Firm—filed this lawsuit in federal court in the hope of obtaining a court order to limit certain of SaVE’s provisions from violating the civil rights of victimized women on college and university campuses.

Together we hope to persuade a judge that aspects of SaVE are unconstitutional because they violate women’s equal protection and due process rights by subjecting the redress of violence against women (not only rape and sexual assault, but dating and domestic violence as well as stalking) to less protective legal standards compared to the standards that apply to the redress of all other forms of targeted violence on campus.

SaVE’s History

SaVE was introduced in Congress in April 2011 and at first it looked good. Soon after the bill was filed, however, several good provisions were removed and harmful provisions were added.

When harmful changes were made to SaVE, advocates started to object, after which SaVE was slipped into the VAWA Reauthorization Act. Since that’s a big funding law, the move silenced many groups that desperately needed to see it passed so they could receive overdue VAWA money.

To the extent proponents argue that SaVE doesn’t undermine Title IX because it only regulates violence not rising to the level of a civil rights violation, they should remember that SaVE was offered up as a codification of a “Dear Colleague” letter (DCL) announced by Vice President Joe Biden in April 2011 in response to then pending Title IX investigations against Harvard Law School and Princeton University (investigations that are still pending today).

The DCL addressed Title IX and the proper redress of violence against women on campus under civil rights laws. SaVE was proposed only days after the DCL was announced and was heavily lobbied and fast-tracked through Congress after changes were made that substantially weakened women’s rights under Title IX.

SaVE Removes Title IX’s “Prompt and Equitable” Standards

SaVE effectively overturns Title IX’s longstanding regulatory mandate requiring schools to adopt “prompt and equitable” policies and procedures to ensure the effective redress of violence against women.

Some argue that SaVE doesn’t hurt Title IX because it amended the Clery Act, not Title IX itself. But this view is naïve because Congress has wide authority to indirectly amend any federal law by changing a different but related statute. It’s a sneaky way to reform laws without provoking those who will be affected by the harmful changes.

By expressly including in its initial iteration and then eliminating the word “equitable”—in conjunction with other changes—SaVE enables, and in some places REQUIRES, violence against women to be subjected to weaker redress standards compared to violence that occurs on the basis of other protected class categories such as race, color, and national origin.

Well-settled statutory construction law doctrines holds that when Congress inserts and then removes a word, the removal will be construed as intentional. In this case, that means courts will interpret the removal of the word “equitable” as an act of Congress intended to give schools permission to be less than “equitable” in the redress of violence against women.

SaVE Eliminates “Preponderance of the Evidence” Standard of Proof

Congress similarly included and then removed a requirement that schools apply a “preponderance of the evidence” (about 51 percent) standard of proof when assessing evidence in matters of violence against women. By inserting and then removing that language, Congress has granted schools the discretion to apply a much more rigorous standard of proof, such as the criminal law burden of “beyond a reasonable doubt” (about 95 percent) or heightened standard of “clear and convincing” (which is used, for example, to terminate parental rights).

Preponderance is the only option that treats a victim’s word as equal in weight to that of her assailant. Its removal, along with removal of the word “equitable,” leaves schools free to value the word of a woman inequitably compared to that of her attacker. This will make it much more difficult for victims to establish their claims.

For students who endure violence on the basis of other protected classes, redress still requires “equity” and application of a “preponderance of the evidence” standard; SaVE puts violence against women in a segregated legal space, subject to much weaker legal protections.

SaVE Abolishes “Prompt and Equitable” Timelines for Final Determinations

Another problem with SaVE: It imposes no time limit on when a “final determination” must be made in response to a victim’s complaint. Though SaVE expressly requires “promptness” in the investigation and initial resolution phases, it then allows schools to overturn that decision and render a “final determination” as late as the day of the victim’s graduation, if at all, because under SaVE, “final determinations” need not be “prompt.”

Historically, the most important legal principle that ensured the effective redress of violence against women was the Title IX regulation requiring schools to adopt and enforce “prompt and equitable” policies and procedures. After SaVE, neither promptness nor equity is required.

Without promptness and equity, victims will be forced to obtain their education in the midst of hostility and inequality, which inhibits effective learning and explains why so many student victims quit school after reporting sexual assault. Before SaVE, students at least had the right to file complaints with the Office for Civil Rights at the Department of Education on the grounds that a school’s response was not equitable or not prompt. After SaVE, students will have far less access to OCR at the DOE—and under much more restrictive standards—because promptness and equity are no longer required.

SaVE Authorizes Schools to Delay Notifying Victims

Another reason to fight SaVE: It authorizes schools to delay notifying victims of a change to the initial decision about the responsibility and/or punishment of an accused student until after the change has already been made. Schools can literally refuse to notify a victim of a “change” to the initial decision until as late as the day of her graduation, if at all, because (as noted above) SaVE nowhere requires that a “final determination” be made promptly.

This also means a victim whose rights were violated in connection with the “final determination” process, but who does not receive notice of such violation until after the legal injury occurs (as late as the day of graduation) has no opportunity to protect her rights or to seek outside review and enforcement from the courts or federal and state oversight agencies. Simply put, one can hardly achieve equal access to education AFTER graduation.

SaVE Creates Barriers to Preventing and Responding to Discrimination

SaVE also provides that the Secretary of Education “shall seek the advice and counsel of the Attorney General of the United States and the Secretary of Health and Human Services…” when “preventing and responding to” violence against women. This adds a needless burden and additional delay to the redress of violence against women compared to violence on the basis of other protected class categories. Such “advice and counsel” from the DOJ and HHS is not required when schools respond to matters involving violence on the basis of other protected class categories such as race, color, and national origin.

SaVE Permits Actual Notice Before Schools Must Respond

In another disturbing section, SaVE authorizes schools to take no action to address violence against women unless such violence is actually reported to school officials or law enforcement officials. (While a victim must show “actual knowledge” in a civil damages action, a “knew or should have known” standard had been sufficient prior to SaVE for administrative redress through campus grievance procedures and federal oversight agencies.) By contrast, in matters involving violence against other protected class categories, schools are mandated to respond, even in the absence of an actual report, when officials know or SHOULD know of such violence.

SaVE Allows “Bodily Injury” Before Reporting Statistics

SaVE authorizes schools not to publicly report statistics under The Clery Act regarding rape and sexual violence unless such violence causes “bodily injury.” This provision subjects such violence to inherently unfair standards because a substantial percentage of rape and sexual assault does not cause “bodily injury.”

SaVE Directs Schools to Apply State Criminal Law Standards

Finally, in a truly shocking expression of disrespect for women’s safety and equality, SaVE requires schools to apply STATE criminal law standards when determining whether a woman’s federal civil rights were violated, thus subjecting the redress of violence against women to inherently unfair and less protective legal standards compared to violence that occurs on the basis of other protected class categories because all other categories, such as race, religion and national origin, will still be subjected to federal civil rights standards and legal definitions.

For example, before SaVE, if a woman was raped on campus, she could prove the offense under Title IX by showing simply that the conduct was “offensive,” “based on sex” and “unwelcome.” After SaVE, that same victim will have to prove rape under much more onerous state criminal law standards that, in almost all jurisdictions, require proof of “penetration,” “without consent” plus “force.” The difference between “unwelcome” and “non-consent” is particularly important because so many campus-based sexual assaults involve a dispute over whether the victim consented, and the civil rights standard of “unwelcome” is much easier burden to prove compared to the state criminal law definition of “non-consent.”

This unconscionable provision subjects the redress of violence against women to less protective legal standards compared to the redress of all other forms of targeted violence which will continue to be assessed under federal civil rights standards.

Requiring state criminal law standards also violates core principles of federalism by subjecting the redress of violence against women to as many as 50 different state standards such that victims in some states will be better protected from violence than students in other states depending on how the behavior is defined in the respective state’s criminal code.

Conclusion

Bottom line: SaVE is aptly named because it will “save” schools from meaningful oversight and accountability when they ignore gender-based violence and disrespect women who dare to report it. Now women have to band together and rise up in the courts, to prevent SaVE’s harmful provisions from taking effect, and to bring shame to bear on Congress and all the misguided advocates who lobbied for SaVE and/or stayed silent after realizing they’d been duped into supporting a Trojan Horse.

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Wendy Murphy
Wendy is an adjunct professor at New England Law|Boston where she has taught a seminar on sexual violence for more than ten years. She developed and directs two projects in conjunction with the school’s Center for Law and Social Responsibility. The “Sexual Violence Legal News” project is an alert service that distributes appellate cases of interest, with editorial comment, related to interpersonal violence. The “Judicial Language Project” uses socio-linguistic research to critique the language used in law and society to describe violence against women and children. She was a Visiting Scholar at Harvard Law School from 2002-2003 where her work focused on the status of women in their capacity as victims in the criminal justice system. Wendy previously taught “Reproductive Rights and Technologies” at the Massachusetts Institute of Technology and in 2002 served as the Mary Joe Frug Visiting Assistant Professor of Law at New England Law|Boston where she has also taught courses in reproductive technologies and constitutional criminal procedure. She is a trial and appellate attorney specializing in the representation of crime victims, women, children and victim service providers and is the founder and director of the Victim Advocacy & Research Group, a volunteer legal advocacy organization that has provided free legal services to victims and other third-parties in the criminal justice system since 1992. Wendy wrote the first-ever law review article connecting sexual assault to Title IX in 2006 and filed the first-ever OCR policy complaint against a university in 2002.

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