A lawsuit filed last week in the federal district court in Washington, D.C., seeks to enjoin the Campus Sexual Violence Elimination Act (“Campus SaVE”) from taking effect as scheduled on Friday, March 7. Campus SaVE (see sec. 304), passed last year as part of the reauthorization of the Violence Against Women Act, amends the Clery Act to require universities to report information about a broader category of sexual violence, as well as their processes for preventing sexual violence and addressing instances when they occur. Campus SaVE requires those process be “prompt, fair and impartial” but stops short of requiring universities to evaluate cases using a preponderance of evidence standard. The lawsuit argues that this omission violates students’ rights by allowing universities to use a higher burden of proof that is less likely to find a student responsible for assault. Since a preponderance standard is used in other types of disciplinary proceedings, including those involving animus based on race or disability, the plaintiff argues SaVE violates the Constitution’s Equal Protection clause by failing to protect sex discrimination as strongly as other types of discrimination.
The lawsuit also targets Campus SaVE for requiring universities to define consent according to state law. Depending on the state, this could incorporate a definition of consent that turns on whether the assault that was forcible, rather than just unwelcome. Since other types of harassment are defined by unwelcomeness, the plaintiff makes a similar Equal Protection argument here as well.
The plaintiff is a University of Virginia student who claims that the university mishandled her report of having been drugged and raped by another student. The Department of Education along with the Department of Health and Human Services are presently investigating the university. She is seeking an injunction to ensure that the agencies do not apply Campus SaVE’s “watered down standards” to her case.