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.
[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.
