Jun. 02, 2016

Please take time to read the new DOJ ruling against the University of New Mexico – link below. It is VERY important and affects all women’s civil rights on all college campuses.

The DOJ makes clear for the first time that schools can NOT adopt separate policies to address sexual assault if the policies uses second-class laws and standards from the federal Campus SaVE Act (or from state law, or elsewhere).

If schools want to have “two tracks” of redress on campus, one under Title IX and one under “sexual misconduct” rules, they can, but the second track “sexual misconduct” policy can NOT deviate from Title IX’s mandatory requirements. (which raises an interesting question – why have a distracting separate track at all?)

This new DOJ ruling is significant in that it explicitly equates Title IV of the Civil Rights Act of 1964 with Title IX.

This equating of Title IV and Title IX means, among other things, that schools cannot define sexual misconduct using criminal law terms such as nonconsent or even “affirmative consent” as these definitions are less protective than “unwelcome and offensive,” which is a mandatory definition under Title IX.

“Unwelcome” is preferable because it promotes and values women’s autonomy and exclusive authority over their bodies, while consent-based rules grant offenders a kind of “trump” card by allowing offenders’ to escape responsibility by claiming  they “mistakenly” thought a victim was consenting. A claimed “mistake” overrides even a 100% credible victim’s ACTUAL nonconsent. This is not permitted under Title IX’s “unwelcomeness” standard.

Many schools adopted second-class policies and criminal law terms such as nonconsent after the Campus SaVE Act was signed into law in 2013 (a vast majority had them in place BEFORE 2013, albeit without ANY legal authority and in blatant derogation of Title IX). SaVE allowed schools to adopt second class standards for matters involving violence against women, but a federal court ruled that SaVE can have “no effect” on Title IX.

This important new DOJ ruling confirms the federal court’s view of the SaVE Act and explains why the second-class treatment of women is illegal.

Specifically, DOJ equates Title IV and Title IX, which is important because “sex” has been a recognized category under Title IV (which applies to PUBLIC schools) for decades – but Title IV has not been enforced on college campuses on behalf of women.

Nor have private schools (which are covered by Title IX, as are all schools – public or private – that receive federal funds) enforced Title IX as a “civil rights” law, much less a law on par with Title IV.

Instead, schools have generally taken the position that Title IX is a less protective law than Title IV because it was enacted under the Higher Ed Act not the Civil Rights Act.

Indeed, before this new DOJ ruling, nothing explicitly stated that Title IV and Title IX are coextensive (lots of things correlated Title VI and Title IX but not Title IV and Title IX) and nothing before this new DOJ ruling  required exactly the same treatment of victimized women under Title IX as is afforded victimized black and Hispanic and Muslim students, etc., under Title IV.

It’s time for all schools to give up the strategy of segregation and obfuscation – and embrace the simplicity of a unified civil rights redress policy, as Harvard did in 2014. 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 exact same gold standard EQUITABLE redress policies.

Among other advantages, a unified policy affords schools much better insulation from lawsuits by aggrieved offenders who can more easily sue under breach of contract and quasi due process claims ONLY if a school adopts a second-class sexual misconduct policy. Strict compliance with civil rights laws prevents such lawsuits because – unlike generic policies that promise certain procedural “rights” to accused students – civil rights laws create no contractual relationship between offender students and schools.

Furthermore, FRAMING violence against women as a civil rights injury will reduce incidence rates because all students – whether personally injured by sexual assault or not – will FEEL injured.

Injury to be collective is the essence of civil rights harms, which is why we all feel injured when racist violence happens even if we are not black.

Schools have denied women the benefits of this collective-injury approach by failing to frame violence against women as a civil rights issue – instead perpetuating the silly idea that Title IX is only a sports equity rule.

Now that we collectively, finally, appreciate the nature of sexual assault as a civil rights issue, it only makes sense to promote and take advantage of the civil rights lens as a mechanism of primary prevention.

Obfuscatory, segregationist, second-class policies that apply worse legal standards ONLY in the redress of gender-based violence are the antithesis of what civil rights MEANS on campus. All schools can better prevent violence against women AND expensive lawsuits by offenders simply by creating civil rights unity in all campus policies and in all messaging on campus.

Wendy Murphy