Wednesday, October 4, 2023
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Sexual Harassment Law, a Step Back for Class

WASHINGTON (CN) - A woman who claims the University of Virginia brushed aside her sexual assault claim filed a federal class action challenging the Campus SaVE Act, a federal law she claims undermines the rights victims of sexual assault and harassment.

Jane Doe sued the U.S. Department of Education and Secretary Arne Duncan in Federal Court, pleading to stop enforcement of the law, which took effect Friday. It is short for the Sexual Violence Elimination Act.

"Certain provisions of SaVE have the purpose and effect of subjecting the redress of violence against women at post-secondary schools to inherently unfair legal standards and standards more burdensome and less protective than those applied to the redress of violence on the basis of other protected class categories such as race, color and national origin," the complaint states.

"In so doing, SaVE violates equal protection and due process, and the rights protected under Title IX of the Education Amendments of 1972 and its implementing regulation."

Doe claims she's a University of Virginia student who was sexually harassed severely, but the school "failed to provide prompt and equitable redress" in its investigation.

Not only did they stall the investigation, she says, but the school "destroyed and/or withheld from consideration by its Sexual Misconduct Board ... critical photographic evidence depicting Jane Doe's vaginal injuries."

One in four to one in five women is victimized by rape or attempted rape during college, according to the lengthy complaint.

"Given that approximately 916,000 women graduated from post-secondary schools in 2009, this means about 60,000 women are victimized by rape or attempted rape during college."

The Campus SaVE Act will make things worse for victims of sexual harassment and assault by allowing institutions to drag out investigations and lowering reporting standards, Doe says.

SaVE mandates that schools conduct prompt investigation and resolution of such claims, but fails to force schools to come to a prompt final determination, Doe says.

In practice," the complaint states, "this means the 'final determination' of a student's complaint alleging violence on the basis of her sex can remain open for years."

The complaint adds that schools do not have to notify victims of any changes to an initial decision regarding the responsibility and punishment of an accused student.

Doe also claims that SaVE authorizes schools to not comply with annual statistical reporting, as schools won't have to report credible third-party and anonymous complaints. But schools still must report such complaints in instances of violence against other protected class categories such as race and national origin.

"In practice this means school officials can ignore with impunity violence on the basis of sex when not reported, even if the violence is sufficiently obvious that officials 'should know' or actually do know about it," states the complaint. "However, if violence occurs on the basis of any other protected class category, such as race, color or national origin, officials must respond and measure for statistical purposes even if the incident is not reported, so long as they knew or should have known that the incident occurred."

The complaint adds: "To the extent Congress has authority to regulate violence against women, it cannot do so in an unconstitutional manner by authorizing the redress of such violence under less protective standards compared to the redress of violence that occurs on the basis of other protected categories, such as race, color and national origin."

This isn't the first time Congress has been criticized for a bill meant to protect women from violence. In 2012, Democrats blasted the Republican-backed House of Representatives' version of the Reauthorization of the Violence Against Women Act, a bill Democrats said was weak and wouldn't protect illegal immigrants and Native Americans.

The House ultimately passed the Senate bill in 2013, extending protection to same-sex couples and Native Americans.

The class expects that SaVE will have much the same effect as the 2012 House Republican bill would have had, creating a law masquerading as broad protection for women while making it harder for victims to seek recourse.

Doe claims the law violates equal protection rights, First Amendment rights, the Administrative Procedure Act and Title IX of the 1972 Education Amendments.

She wants the judge to stop the application of the provisions of the law in question until the resolution of her complaint, and declaratory judgment that those aspects of the law are unconstitutional.

Doe is represented by James Marsh of New York City.

A second, virtually identical class action was filed the same day.

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