Federal Court Stifles the Campus SaVE Act

Judge says SaVE can NOT be used to weaken Title IX, or have “any effect” on Title IX’s enforcement on campus.

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 is 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. Violence against women in education had 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 by filing the SaVE Act. SaVE 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. Preponderance is mandatory under Title IX but SaVE made preponderance discretionary. SaVE also eliminated the mandate that schools provide ‘equitable,’ redress, and literally 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 Title IX definitions of ‘unwelcome and offensive,” which 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 issues, but also because the bill offered new funding opportunities so that advocacy groups could be paid to conduct training and education programs.

After falsely claiming that SaVE would ‘codify’ the DCL, Congress made damaging modifications to SaVE such that the bill would completely destroy the requirement that violence against women be redressed under only “EQUITABLE” policies and procedures.

Substantial lobbying dollars were spent pushing SaVE through Congress and it was signed into law in March 2013. Because SaVE was slated to take effect one year later, schools across the nation immediately started revising their sexual assault polices to comport with SaVE and NOT Title IX.

On the eve of SaVE’s effective date in March 2014, a lawsuit was filed in D.C. federal court 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, SaVE posed an irrational dilemma for black women sexually assaulted on the basis of their race and their sex. Would a school conduct two different hearings under two different standards for the very same incident?

A motion to dismiss the lawsuit was filed in 2014 and languished for nearly a year, during which time schools around the country became concerned that aspects of SaVE were indeed unconstitutional. Many schools, including Harvard, changed their policies to reject certain of SaVE’s most problematic substantive provisions. By the fall of 2014, every college and university had explicitly adopted a “preponderance of the evidence” standard of proof. Before the lawsuit was filed, many schools took advantage of SaVE’s provision allowing them to apply a burden of proof more onerous than mere preponderance, such as “clear and convincing” evidence. Stricter burdens of proof allow schools to claim they believe victims, but not enough to punish their attackers.

Because of the anti-SaVE lawsuit, all schools adopted a preponderance standard, and it was expected that the federal court would then dismiss the lawsuit as “moot,” but the court did something better—it 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 denigrates 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) requiring compliance is not the same as “regulation” because, among other things, schools can opt out of compliance laws. The Supreme Court also recently ruled in the Comstock case that Congress has no authority to regulate sexual violence. These cases together make clear that the SaVE Act is unconstitutional 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 that rise to the level of ‘regulation.’ (SaVE’s provisions that provide funding for training programs, etc., do 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, SaVE 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, the substantive standards MUST comply with Title IX. A separate sexual assault policy is redundant at best, and misleading at worst because separateness suggests the policies need not be consistent.

Because the SaVE Act can NOT have any effect on Title IX, any ‘generic sexual misconduct’ policy—whether based on the SaVE Act or not—that does not explicitly guarantee “equitable” redress, violates Title IX. Period. The same goes for a policy that uses criminal law language—such as “non-consent” or even “affirmative consent” when defining “sexual assault.” Only “unwelcome and offensive” can define Title IX violations and “unwelcome and offensive” is far easier to prove than all other standards of non-consent.

Many schools are already treading on dangerous territory by having victims REPORT their victimization to the Title IX coordinator, but then the case is sent to a different department where the matter is downgraded to ‘generic sexual misconduct.” Because generic policies must comport with Title IX, there can be no substantive “downgrade” in treatment, however, certain procedures may deviate from those employed in the redress of civil rights matter and victims may be advised that such procedures are superior to the Title IX. But this is false.

Students who are instructed to meet with “advisors” are told they have a “choice” to pursue a Title IX track, or a generic sexual misconduct track, but in fact, they—like school officials—have no discretion to declare a Title IX violation anything OTHER than a civil rights matter. Nor can any person, by labeling or reframing, allow the matter to be subjected to less than fully “equitable” redress exactly on par with the redress of violence on the basis of race, national origin, etc.

The next step against SaVE will involve strategically filed lawsuits against schools that violate Title IX NOT by wrongfully applying the preponderance of evidence, for example, but by failing to EXPLICITLY promise “equitable” redress, or otherwise fail to clearly state that Title IX standards and definitions apply irrespective of the label used to characterize the harm.

This next round of litigation is critically important to women’s safety and full equality in education 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 campus matter where a victim claims her rights were violated under the SaVE Act or under a generic misconduct policy. OCR will only get involved in matters expressly labeled AS Title IX cases.

Of course, this begs the question: Where do victims go when they suffer sexual violence, but the school completely refuses to frame it, or treat it, as a Title IX matter?

The answer, of course, is OCR.

OCR has authority to act swiftly in response to any attempt to downgrade or mislabel a sexual assault such that it is redressable under less protective standards than those required under Title IX. The act of mislabeling, itself, is a very serious Title IX violation—not only because it could deny victims equitable treatment, but also because it creates a serious invisibility problem in terms of schools evading accountability by OCR (and the courts because SaVE gives schools immunity from suit.)

Failure of schools 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 rights, which means they need to learn about their rights only from independent advocates who will insist on ‘EQUITABLE’ redress and strict compliance with Title IX.

Under the SaVE Act and generic sexual misconduct policies, victims have a right to only “fair” redress, rather than “equitable” redress, and equitable is much better than fair. (“Fair” was the standard explicitly adopted in SaVE to weaken Title IX.) Nevertheless, many advocacy groups teach victims they are only entitled to “fair” redress.,

For example, the National Women’s Law Center, the ‘Know Your Nine” group, and virtually every other established advocacy group in the country uses SaVE’s weaker standards and they tell victims that only ‘fair’ redress is required—not “equitable” redress. These groups are wrong, and they should be avoided by victims and students who want to understand their rights unless and until these groups change their policies and teach victims not only that have a right to fully “equitable” redress, but yes, equity matters!

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.

Title IX has no value unless it is strictly enforced without a “lesser-included offense” option. Put another way, discretionary application of civil rights laws in the redress of the most severe expression of gender-based discrimination is tantamount to no civil rights at all; a much worse fate for women than even duping them into believing for decades that Title IX was only about sports.

Wendy Murphy

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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.

Comments Disabled

  • Jeffrey R Caffee April 6, 2015 (1:43 pm)

    Thanks for the insightful analysis. When complaints of sexual violence are reported to a Title IX coordinator, it would seem that any attempt of that Title IX coordinator to pursue anything other than a Title IX complaint would be problematic for a school’s compliance with Title IX. Particularly, if a school or district has a practice of doing so. Is there any hint as to whether OCR would investigate systemic re-directs of civil rights complaints to other venues by Title IX coordinators?

  • Cheryl Harrington February 26, 2016 (1:26 am)

    This is nuts. I am a 58 year old women and a strong feminist but the logic of using Title IX for sexual harassment/ assault here is ugly and dangerous. I would not want to be a young man on campus today. How frightening! What if I was a young man and a girl found my “checking her out” even one time, with my poor attempt at 20 year old discreetness, “unwelcome and offensive.” Without ever being proved guilty of anything, I could be shamed by inference that is is in the same category as rape – which is REAL violence. I could be asked to leave campus and my college career, my young adult life, my hopes and dreams are derailed. I think strong hitting on women should be handled by reasonable adults guiding young adults – but the punishments can be too too strong for the milder “unwelcome and offensive” behavior. And unwelcome and offensive is subjective. What if a fellow sincerely stops as soon as he is told to knock it off. These young men have to be granted a learning curve as do the women: both learning to handle themselves sexually as they also learn to drink in mixed company – a combination ripe for errors – but running people out of town for even the lightweight ones? Wrong!
    I have an adult male friend who was accused of sexual harassment by a women with ulterior motives to get him out of the organization for her own reasons. He was so upset to have to leave an organization he loved, outraged and shamed by the idea he could be viewed as a sexual assaulter, he committed suicide.This overarching protection of women at any costs, is wrong. It is encouraging hysteria and male witch hunting. Many young men will be ruined thanks to your life work, Wendy Murphy. I hope legal decisions and the pendulum swings back soon to protect our sons, our friends, our colleagues before too of them are sacrificed on the alter of ‘women’ protection.” Civil liberties are crucial to our society, but this isn’t that.