The Trouble with Promoting CASA

Last night, I had the honor of attending George Washington University's advanced screening of HBO Vice's upcoming episode on campus sexual assault. SurvJustice is largely featured in the episode for providing legal counsel to survivors accessing the campus judicial proceedings on campus. In attending at this event were also Senator Gillibrand and Senator McCaskill, who re-introduced the Campus Accountability and Safety Act (CASA) (S.590) this Congress. CASA continues to enjoys bipartisan support and had many organization, including SurvJustice, working hard for months on getting the details right. Despite these efforts, CASA was moved forward without the support of SurvJustice, Know Your IX, AAUW, NWLC, Legal Momentum, as well as several other respected national nonprofits that routinely work on campus sexual assault legislation.

Despite the heavy promotion of CASA by HBO Vice, the Hunting Ground, and several other high profile organizations there are deep concerns with the bill. To ensure only legislation that helps survivors is passed, SurvJustice provides the following summary of concerns. To take action, please reach out to members of the Senate HELP Committee currently reviewing the bill and ask for these concerns to be addressed in Committee.

1. Title IX Fines (Section 9. Administrative Action)

As written, Section 9 of CASA would directly amend the Title IX statute, 20 U.S.C. 1681, which may risk the private cause of action under Title IX. The private cause of action is important because it allows survivors to bring private lawsuits against schools that violate their rights. While it is laudable that CASA seeks an amendment to the 180-day filing window for Title IX complaints and to provide interim sanction for the U.S. Department of Education to enforce Title IX, SurvJustice believes it can do this without opening up the Title IX statute directly.
Opening up the Title IX statute is risky because as written there is no explicit private right of action in the statute. Rather the U.S. Supreme Court interpreted the statute to imply such an action in Cannon v. University of Chicago (1979). Since that time, the Court has moved away from finding implied causes of action within civil rights statutes to instead require statutory language to be explicit about creating a cause of action. While CASA suggests it will preserve “rights and remedies” currently under Title IX, it does not make the private cause of action explicit and thus fails to protect against a judicial challenge that may result in the loss of Title IX as a lawsuit available for survivors. Given the Court’s current conservative disposition, and willingness to strike down historic civil rights protections, now is not the time to risk the private cause of action.
SurvJustice does support a legislative alternative to opening up the Title IX statute, which would ensure that the U.S. Department of Education had sufficient interim sanction to penalize school violating the rights of survivors. This alternative mechanism is through an amendment to Section 202 of the Department of Education Organization Act. This amendment would allow the Secretary to have fining power for any violation pertaining to sexual violence. Additionally, the language of CASA could be amended to include an administrative directive for the U.S. Department of Education to reconsider its 180-day filing window rather than mandating it be changed through opening the statue. Given that the filing window is an administrative creation, rather than statutory mandate, this seems to be an appropriate and reasonable alternative approach.
While SurvJustice strongly supports amending the 180-day filing window and including interim sanction power that would allow the U.S. Department of Education to fine schools found in violation, the risk to the private cause of action under Title IX counsels against our support of Section 9 in CASA as currently written. SurvJustice commits to working with the Senate HELP Committee to make necessary amendments to protect Title IX while increasing its enforceability through the Department of Education.

2. Confidential Advisors (Section 4. University Support for Survivors of Sexual Violence)

SurvJustice is deeply concerned about Section 4 of CASA, which would require colleges and universities to designate someone, either an employee or an independent contractor, as a “confidential advisor” for survivors. Despite this portion of CASA appearing benign or even benefit on its surface, such legislation is rife with opportunities for institutional abuse and risks currently existing victim rights under federal law.

            Lack of Confidentiality for Survivors

Under Section 4, or even elsewhere in CASA, there is no provision that directly ensures confidentiality for communication with the advisors it mandates schools to provide to survivors. Instead CASA leaves this task to each state, many of which do not offer any form of confidentiality or privileged communication between survivors and advocates. In short, this federal protection is meaningless without additional state legislation. Without the ability to ensure confidentiality, or bestow the more meaningful protection of privilege, survivors will have a false expectation of privacy and fail to be protected when the accused, or the school, seeks these “confidential” communications to bring or defend against private lawsuits or other legal proceedings, such as a Title IX investigation by the U.S. Department of Education. This has already been seen at the University of Oregon, which accessed a survivor’s confidential communications with a campus employed counsel in preparation to defend against lawsuit.[1] SurvJustice believes that there is a need for confidentiality on campus, however, federal legislation can only offer such confidentiality in a limited fashion, such as carving out exceptions for the mandatory reporting for responsible employees under Title IX. SurvJustice is committed to working with the Senate HELP Committee to ensure such confidentiality for survivors to receive information on their rights and reporting options, however it cannot support the facade of privacy as advance by CASA.

            Conflicts of Interests for Advisors

As envisioned, the “confidential advisors” in Section 4 of CASA have an inherent conflict of interest that prevents them from serving the best interest of survivors. CASA requires that an advisor be a school employee or a community advocate contracted with the school. However, this employment and/or contractual relationship creates an inherent conflict of interest given the duty each advisor would then owe to the school over each individual survivor. Through its national legal work, SurvJustice has seen that when a conflict of interest arises in campus settings, advocates and advisors alike often choose the interest of the school over those of the survivor:
· At the California Institute of the Arts, SurvJustice helped a survivor file a Title IX complaint against the school after its “victim advocate” only communicated in person with the survivor to avoid a paper trail that would have catalogued the series of Title IX violations in her case; [2]
· At the University of Nevada – Las Vegas, SurvJustice helped a survivor file a Title IX complaint against the school whose Women’s Center has been supportive of her until she wanted to file a Title IX complaint, at which time it cut communications with her and prohibited her from working with other victims on campus;[3]
· At Hamilton University, SurvJustice helped a survivor file a Title IX complaint after the school limited her choice of advisors to then recommend a faculty member who shredded all the survivor’s documents and notes about the campus hearing without the survivor’s knowledge and at the direction of the school’s Title IX Coordinator;[4] and
· At the California University of Pennsylvania, SurvJustice assisted a survivor in obtaining private civil counsel after her advisor refused to provide her access to her campus hearing records only upon learning of her intention to file a Title IX complaint, despite previously allowing her continual access to such records.[5]
These are put a few examples of “advocates,” “advisor,” and other allegedly supportive campus resources choosing institutional loyalty over the best interest of survivors and at a great cost to their legal rights.[6]
            To remedy these concerns, SurvJustice has redlined Section 4 of CASA to change “confidential advisors” into “confidential personnel” who have a more limited role of providing information about rights and reporting options to survivors while requiring such personnel to note their inherent conflict of interest and advising survivors of their right to select an advisor of choice who could in fact offer confidentiality and privilege to survivors, as discussed infra.

Diminishing Current Rights to an Advisor

The 2013 Violence Against Women Act (VAWA) Reauthorization amended the Clery Act to ensure all survivors of sexual violence, dating violence, domestic violence, and stalking now have the right to an “advisor of choice” during campus meetings and hearings. During the 2014 VAWA Rulemaking Committee, SurvJustice rigorously debated with other primary negotiators to ensure that the implement regulations for VAWA prevented institutions of higher education from limiting a survivor’s choice of an advisor. Therefore current federal law ensure survivors can chose anyone as an advisor, including those outside the campus community to include legal counsel,[7] which can truly offer survivors confidentiality and privilege as well as zealous advocacy for their legal rights. The use of the word “advisor” in the upcoming CASA draft provides colleges and universities with an opportunity to potentially limit this hard-fought-right to an advisor of choice by confusing and misleading survivors to think they must select the school provided confidential advisor who has an inherent conflict of interest and cannot guarantee confidentiality.
SurvJustice firmly believes colleges and universities should have confidential personnel who can provide survivors information on their rights and options, however, it opposes CASA’s suggesting such personal should serve as “advisors” given that there is no guarantee of confidentiality and there is an inherent conflict of interest that prevents them from truly serving the best interest of survivors. Without an amendment to this provision, SurvJustice cannot in good conscience support CASA given its facilitation of further institutional betrayal of survivors.

3. Clery Act Transparency (Section 5. Transparency and Training Materials)

            Section 5 of CASA on transparency around Title IX does not go far enough to include transparency around other campus crimes, such as dating violence, domestic violence, and stalking. The spectrum of gender-based crimes, as well as other serious campus crimes, are protected under the federal law known as the Clery Act. Therefore, SurvJustice believes Section 5 needs to be amended to include public information about the rights and enforcement of the Clery Act in addition to Title IX.

4. Gender-Neutral Rape Definition

            Section 2 of CASA risks alienating male victims of sexual violence. The 2013 VAWA Reauthorization requires college and universities to use the updated definition of rape from the FBI’s Uniform Crime Report (UCR), which is a gender neutral offense. As written, Section 2 of CASA allows schools to select between two different definition of campus crime, one of which is limits rape as a crime against women. SurvJustice believes the 2013 VAWA Reauthorization appropriately mandated the gender-neutral definition of rape under the UCR and thus opposes the provision in Section 2 of CASA that allows schools to discriminate against male victims of rape.

SurvJustice Inc. is a national not-for-profit organization that decreases the prevalence of sexual violence by assisting survivors, empowering activists, and supporting institutions. Learn more at www.survjustice.org. For media comment, please contact SurvJustice Executive Director Laura Dunn at Laura.Dunn@survjustice.org. 

[1] See http://deadspin.com/oregon-we-have-the-right-to-access-a-rape-victims-medi-1689196041.
[2] OCR Case No. 09-14-2387.
[3] OCR Complaint No. 10-15-2141.
[4] OCR Case No. 02-14-2438.
[5] See http://america.aljazeera.com/watch/shows/america-tonight/articles/2014/6/9/alleged-college-sexoffenderpunishedwitheducationalvideo.html.
[6] For the few brave campus employees who do choose the interest of survivor over that of the institution, there is often little protection against retaliation. See http://deadspin.com/oregon-fires-woman-who-protested-accessing-rape-victims-1693917432.
[7] 34 C.F.R. 668.46(k)(2)(iii).