Wednesday, May 11, 2016
Study Documents Title IX's Significant Shift from a Law for Athletics to a Law for Sexual Harassment
Title IX has been widely recognized as a crucial step toward gender equality in America. Yet it remains unclear how the law actually functions, particularly how it has been used in response to gender disparities in higher education. This article provides the first systematic analysis of how Title IX has been mobilized at the postsecondary level. Drawing on new data acquired through seven Freedom of Information Act requests, I analyze all resolved Title IX complaints filed with the Office of Civil Rights against four-year nonprofit colleges and universities from 1994 to 2014 (N=6,654). I find that the mobilization of Title IX has changed both in frequency and in kind during this period. Filings started to rise after 2000 and exploded after 2009, while sexual harassment complaints nearly equaled academic and athletic filings for the first time in 2014. Finally, despite the egalitarian design of the complaint process, private schools and more selective schools face a disproportionate number of complaints relative to enrollment, indicating the power of institutions in mediating legal mobilization.
Title IX, the U.S. civil rights law that prohibits sex discrimination in federally funded education programs, has been called one of the most significant steps toward gender equality in the last century. Yet research on how the law has been used in response to perceived gender disparities in the academy is lacking. There are recent indications that the mobilization of Title IX—in the form of complaints filed against allegedly noncompliant colleges and universities with the Office of Civil Rights (OCR), the primary federal administrative agency responsible for implementing the law—has both increased dramatically and shifted from an emphasis on fostering gender equity in athletics to policing sexual harassment and assault on campus. But there has been no comprehensive analysis of this shift, or of the law’s mobilization more generally, and therefore we have little sense of if and how it took place. How has Title IX been mobilized to combat gender inequalities in higher education? Is it deployed broadly or only to address some forms of sex discrimination in certain types of institutions? Is its use consistent or contradictory?
This paper provides the first systematic analysis of how Title IX has been mobilized at the postsecondary level over the last two decades. I draw from a new data set I constructed using information acquired through seven Freedom of Information Act requests filed over 18 months. The data include all resolved postsecondary Title IX complaints filed with OCR against allegedly noncompliant schools from 1994 to 2014. Using these data, I seek to rigorously map the phenomenon. . . .
I find that over the last two decades the number of Title IX complaints filed against four year nonprofit institutions skyrockets in 1999 and again starting in 2013. Individuals engaged in mass filings are responsible for both spikes. Net of this effect, I find that the number of Title IX complaints has trended upward since 2000, exploding after 2009 and reaching a record high in 2014. Complaints citing discrimination in academics were the modal type of complaint filed for most of the last 20 years, until 2014 when sexual harassment, academics, and athletics complaints reached near parity. I also find that the mobilization of Title IX is institutionally uneven: relative to overall enrollment, a disproportionate number of complaints are filed against private, more selective institutions located in states with high numbers of women serving in state legislatures.
Tuesday, May 10, 2016
Joanna Grossman (Hofstra/SMU), Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press, May 2016)
At the heart of this collection is a basic question: What is sex discrimination? The answer may seem obvious, but, in truth, it is complicated. Are all classifications on the basis of gender discriminatory, or are there times or places when sex differentiation, or even sex segregation, are permissible or desirable? Should seemingly benign classifications be prohibited because they might perpetuate damaging stereotypes and gender subordination? If so, when?
Check out the terrific Table of Contents showing an engaging style and wide range of issues covered in this new book.
Monday, May 9, 2016
- The results show that a majority, 51 percent, of women have personally experienced discrimination based on their gender, and 35 percent said they have not experienced gender-based discrimination. A majority of women, 51 percent, also said society has not yet reached the point where women and men have equal opportunities for achievement
- The data also show some interesting splits when examined in detail by partisanship. The percentage of Democratic women who said they've experienced discrimination on the basis of their race was 23 points higher than the percentage of Republican women who said so - 62 percent to 39 percent. Among Independent women, 46 percent said they've personally experienced gender-based discrimination.
- Just under half, 49 percent, of Republican women said society has reached the point where women and men have equal opportunities for achievement. Among Independent women, 36 percent said women and men have equal opportunities. In contrast, a little over a quarter, 27 percent, of Democratic women agreed that society allows for equal opportunity for both genders. These findings show that Republican and Democratic women have starkly different experiences and perspectives on where society stands on the matter of gender equality.
Jessica Kennedy, Mary-Hunter McDonnell, Nicole Stephens, Does Gender Raise the Ethical Bar? Exploring the Punishment of Ethical Violations at Work,
Abstract:We investigate whether women are targets of more severe punishment than men following ethical violations at work. Using an experimental design, Study 1 finds evidence that ethical behavior is more strongly prescribed for women than for men, even when they occupy an identical professional role. Study 2 manipulates the gender of a manager in a hypothetical scenario and finds that women are punished more severely than men for ethical violations at work. It also tests the scope of our theory by asking whether women are punished more for errors in general, or only for intentional ethical violations. Using field data, Study 3 examines how severely attorneys are punished for violating the American Bar Association’s ethical rules. Female attorneys are punished more severely than male attorneys, after accounting for a variety of factors. Greater representation of women among decision-makers diminishes the gender disparity in punishment. Our research documents a new prescriptive stereotype faced by women and helps to explain the persistence of gender disparities in organizations. It highlights punishment severity as a novel mechanism by which institutions may derail women’s careers more than men’s.
Takeaway: "People expect women to be more ethical than men."
Friday, May 6, 2016
Jane Stewart, Mothers' Day, 69 Journal of Education 210 (1908)
Our annual calendar, it is generally conceded,, is so abundantly supplied with holidays and special observances and anniversaries that there scarcelv seems opportunity for an addition to the well- recognized list. But the idea of a new special day - a "Mothers' Day" - to commemorate mothers in general and in particular seems to have made quite a good beginning in the place of its birth, Philadelphia, and under the influence of church and school people who have adopted and applied it with considerable alacrity and enthusiasm.
It was a Philadelphia clubwoman, Miss Anna Jarvis, who first conceived the idea in its comprehensive scope. The National Woman's Christian Temperance Union for nearly two decades has observed a "Mothers' Day" as one of its numerous red-letter days, the date, January 3, being chosen because it is the birthday of Mary Thompson Hill Willard, the noble mother of Frances E. Willard. The second Sunday in May is the day suggested by Miss Jarvis, whose plan is in memory of her own revered mother, a Christian teacher of the South, for whom a public memorial service was held, accompanied by the distribution of white carnations, the mother's favorite flower. The wearing of a white carnation is one of the features of the day, whose impelling object is to crystallize latent loving thought into tender, considerate action, with a view to stemming the tendency to forgetfulness and thoughtless neglect of the home ties. To remind busy, selfish men and women of their loving, selfish neglect of their mother, and the protection, happiness, and gratitiude due her, and that even a simple act of kindness, or a gift, or words of appreciation and affection, or a letter may rejoice her heart - this is the admirable purpose embodied in the day....
About 200,000 individuals, it is conservatively estimated, took part in the initial celebration of Mothers' Day on Sunday, May 10, 1908, in a num-ber of the churches and Sunday schools in Philadelphia and in other parts of the country, including Pittsburg, New York city, Baltimore, and Wash-ington ; and a large number of individuals and societies observed May 17 in similar fashion by wearing a white carnation and by writing letters home ; by performing some act of thoughtfulness for their mothers or holding special services, with mothers as guests of honor.
Mother's Day. The feminist's friend or foe?
- Mother's Day's Dark History
- Why the Founder of Mother's Day Turned Against It
- Mother's Day is Steeped in Radical, Religious Feminism
- Ann Maria Reeves Jarvis
- The Mother's Day Myth: How we "Thank" Mothers for their Free Labor
- Mother's Day: The Creation, Promotion and Meaning of a New Holiday in the Progressive Era
The law provides that Mother's Day is a ... flag day?
36 USC 117 - Mother's Day(a)Designation.— The second Sunday in May is Mother’s Day.(b)Proclamation.—The President is requested to issue a proclamation calling on United States Government officials to display the flag of the United States on all Government buildings, and on the people of the United States to display the flag at their homes or other suitable places, on Mother’s Day as a public expression of love and reverence for the mothers of the United States.
Wash Post, How Feminism Sold Out by Becoming Cool
This new mutation can be called “marketplace feminism,” the author writes, “a mainstream, celebrity, consumer embrace of feminism that positions it as a cool, fun, accessible identity that anyone can adopt.” If any purported feminist campaign is touched by corporate or private interests, it is suspect. For Zeisler, feminism is feminism and capitalism is capitalism, and when they hook up it’s just gross....
This book’s critique of “marketplace feminism” offers no wiggle room: If you claim feminism without combating structural inequality, your feminism is counterproductive, prioritizing personal advancement rather than attacking the systems that perpetuate wage disparities or gender-based divisions of labor. And don’t bother suggesting that a movement might benefit from the popularization of its tenets — however superficial the interpretations may be — because Zeisler isn’t buying it. “The diversity of voices, issues, approaches, and processes required to make feminism work as an inclusive social movement,” she writes, “is precisely the kind of knotty, unruly insurrection that just can’t be smoothed into a neat brand.”
Thursday, May 5, 2016
Meg Penrose (Texas A&M), The Sistern: Ranking the Top 10 Female Supreme Court Justices, 18 Green Bag 2d 447 (2015)
Of all the “best” and “worst” Supreme Court lists published, there has never been a listing of the Top Ten female Justices. The reason for this scholarly void is simple: only four women have served on the Court. Indeed, only five women have been nominated. I am pleased to present the first, though admittedly incomplete, listing of the Top Ten female Justices.
- Ruth Bader Ginsburg
- Sandra Day O'Connor
- Elena Kagan
- Sonya Sotomayor
- Florence Allen
- Harriet Miers
Featured in Tony Mauro, The Blog of the Legal Times
Wednesday, May 4, 2016
Jamie R. Abrams (Louisville), Debunking the Myth of Universal Male Privilege, 49 U.Mich.J.L. Reform 303 (2016)
Existing legal responses to sexual assault and harassment in the military have stagnated or failed. Current approaches emphasize the prevalence of sexual assault and highlight the masculine nature of the military's statistical composition and institutional culture. Current responses do not, however, incorporate masculinities theory to disentangle the experiences of men as a group from men as individuals. Rather, embedded within contestations of the masculine military culture is the unstated assumption that the culture universally privileges or benefits the individual men that operate within it. This myth is harmful because it tethers masculinities to military efficacy, suppresses the costs of male violence to men, and positions women as perpetual outsiders.
Debunking the myth of universal male privilege in heavily masculinized institutions would advance gender equality and shift the law reform focus. It would bring sexual assault, domestic violence, and sexual harassment into the same frame as the military mental health crisis and even mass solidier-on-soldier shootings. This would reveal the gender equality implications of military mental health and disentangle masculinities and military efficacy. Debunking the myth of univeral male privilege would yield more vigilance to how law reforms can exacerbate hyper-masculine violence. It introduces new entry points to gendered violence in the military, expanding the focus from incident-based responses to recruiting and training.
Nicole Negowetti, Implicit Bias and the Legal Profession's "Diversity" Crisis: A Call for Self-Reflection, Nevada L.J. 431 (2015)
Fifty years after federal law prohibited discrimination based on gender and race and ten years after Roderick Palmore issued A Call to Action: Diversity in the Legal Profession, racial and gender disparities persist in the legal profession. A 2013 study commissioned by Microsoft revealed that the diversity gap in the U.S. legal profession has worsened over the past nine years, lagging behind other professions. While the under representation of minorities is a pervasive problem in the workplace, the legal profession may be the palest profession. In May 2014, The American Lawyer magazine announced that the legal profession is suffering a “Diversity Crisis.” According to Professor Deborah Rhode,
One irony of this nation’s continuing struggle for diversity and gender equity in employment is that the profession leading the struggle has failed to set an example in its own workplaces. In principle, the bar is deeply committed to equal opportunity and social justice. In practice, it lags behind other occupations in leveling the playing field.
Many efforts have been undertaken in response to the Call to Action, such as recruitment at law schools of Historically Black Colleges and Universities and diversity scholarship programs, and many scholars have also proposed institutional reforms to address the law firm practices that disadvantage women and minorities. However, diversity has been elusive. As Brad Smith, General Counsel and Executive Vice President of Microsoft, stated in response to data from the diversity gap findings: “What is troubling is the lack of clarity about why this is happening. And until we know why, we are just guessing at the best ways to help build a more diverse legal profession.” One reason the diversity efforts have been unsuccessful may be due to a lack of focus on a key reason for the persistent disparities — the “reforms are unlikely to stick until people understand how race actually operates in the brain.”
The goal of this article is to apply social science insights to understand and address the diversity “crisis.” Emerging studies from social science demonstrate that implicit biases play a pivotal role in those “continuing inequities.” Researchers assert that disparate outcomes for different demographic groups not explained by education, experience, qualifications, or work effort are “the most rigorous evidence that substantial bias remains in the American labor market.” Social science studies demonstrate that the continued under representation of women and minorities in the legal profession is unlikely due predominately to explicit or “first generation bias,” which involves “deliberate exclusion or subordination directed at identifiable members of disfavored groups.” Rather, this bias has been supplanted by “second generation” forms of bias, which are attributable to implicit bias.
Tuesday, May 3, 2016
Elaine Craig, The Inhospitable Court, 66 Toronto Law J. (2016)
Who speaks and with what authority, who is believed, what evidence is introduced, and how it is presented, is informed not only by the substantive law and the rules of evidence but also by the rituals of the trial. It is from this legal process as a whole that a judge or jury determines the (legal) ‘truth’ about a woman’s allegation of rape. A sexual assault complainant’s capacity to be believed in court, to share in the production of meaning about an incidence of what she alleges was unwanted sexual contact, requires her to play a part in certain rituals of the trial. Many of these rituals are hierarchical, requiring complainants to perform subordinate roles that mirror the gender, race, and socio-economic status based societal hierarchies in which the problem of sexual violence is rooted. Relying on the work of Robert Cover and interdisciplinary work on ritual for its conceptual framework, this article pursues two objectives. First, it attempts to depict, through the use of trial transcripts, the brutality of the process faced by sexual assault complainants. Second, it exposes some of the institutionalized practices, as manifested through courtroom rituals, that contribute to the inhospitable conditions faced by those that participate in the criminal justice response to sexualized violence.
Elaine Craig, The Ethical Identity of Sexual Assault Lawyers, 47 Ottawa L. Rev. 1 (2016)
Despite progressive law reforms, sexual assault complainants continue to experience the criminal justice response to the violations that they have suffered as unsatisfactory, if not traumatic. One emerging response to this dilemma involves greater consideration of the ethical boundaries imposed on lawyers that practice sexual assault law. What is the relationship between a criminal lawyer’s ethical duties and the reforms to the law of sexual assault in Canada? How do lawyers themselves understand the ethical limits imposed on their conduct of a sexual assault case? How do lawyers that practice in this area of law comprehend their role in the criminal law’s response to sexual harm? What is their sense of professionalism when acting in this capacity? If reforms to the law of sexual assault will not alone result in significant improvements to the experience of sexual assault complainants, perhaps greater focus on the ethics of sexual assault lawyering could improve the legal response to sexual harm. While the body of legal scholarship examining the issue of sexual violence has grown substantially in the past several decades, there has been very little research on the perspectives of criminal lawyers themselves. This is the first research aimed specifically at ascertaining how sexual assault lawyers understand their ethical obligations. Through analysis of semi-structured, in-depth interviews with experienced criminal defence lawyers and crown attorneys across Canada, this article presents a portrait of the ethical identity of sexual assault lawyers.
Scott Allen Anderson, Conceptualizing Rape as Coerced Sex
Philosophers, feminists, and legal theorists have long criticized the current definition of rape as it is formulated in most of the states of the U.S. because of its dual “force” and “consent” requirements. Several prominent writers have recently sought to reconceptualize rape as “non-consensual sex,” thus omitting the “force” requirement. While there are some unmistakable practical advantages to such proposals, I argue that such a conceptualization risks failing to grasp what is distinctively problematic about rape for women, and why rape has the effect it does in supporting women’s gender oppression. I suggest that one of the reasons why consent-focused reform proposals have been so popular is because the dominant accounts of coercion in recent philosophical writing have not been suited to help identify rape in terms of coercion. I offer an alternative approach to thinking about coercion which, I argue, can replace the focus on “force” in current conceptualizations of rape in order to avoid their main difficulties, especially with respect to identifying “acquaintance” rape as such. I further show how conceptualizing rape as coerced sex does help explain its distinctive badness both for the individual victims as well as for women as a group.
Scott Anderson’s article Conceptualizing Rape as CoercedSex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.”
Today's series of posts include several writings thinking through the different angles and permutations of sexual assault.
Aya Gruber, Anti-Rape Culture, Kansas L.Rev. (forthcoming)
Abstract:This essay, written for the Kansas Law Review Symposium on Campus Sexual Assault, critically analyzes “anti-rape culture” ― a set of empirical claims about rape’s prevalence, causes, and effects and a set of normative ideas about sex, gender, and institutional authority ― which has heralded a new era of discipline, in all senses of the word, on college campuses. In the past few years, publicity about the campus rape crisis has created widespread anxiety, despite the fact that incidents of sexual assault have generally declined and one-in-four-type statistics have been around for decades. The recent surge of interest is due less to an escalation of rape culture than to a new found anti-rape culture ― a distinctly feminist rape intolerance. Feminist political activism is normally ground for progressive rejoicing and, indeed, society should be rape intolerant. However, here, one might wonder whether feminism has reincarnated as a single-issue movement that centers on punishing sex ranging from violent to ambiguous and embraces illiberal positions and institutions. The essay focuses on the costs of anti-rape culture’s construction of the status quo as one in which at least a quarter of college women will be brutalized by a sexual predator and left traumatized, possibly for life. In addition to creating the risk that the sex that college women inevitably have is a minefield of mental distress, the rhetorical strategy has other costs, including punitive over-correction, bureaucratic management of students stripped of their subjectivity, and speech restrictions. In the end, the essay counsels reformers to be cautious lest their commendable concern for safety and equality creates a culture in which drunken sex is ruinous to women, administrative power distributes burdens randomly, or worse, to marginalized men, and silence is the norm in an area desperate for open discussion.
Monday, May 2, 2016
Heather Roberts (Australian Natl) & Laura Sweeney (NSW Gay & Lesbian Rights Lobby), Review Essay: Why (Re)Write Judgements?, 37 Sydney L.Rev. 457 (2015)
Australian Feminist Judgments is a collection of fictional judgments for real Australian cases that have been rewritten by Australian scholars from the perspective of a feminist judge. Each judgment is introduced by a commentary, written by a different scholar, explaining the legal and historical context of the original decision and the choices made by the feminist judge. This review essay locates the collection within more general debates surrounding judgment writing, particularly leading Australian extra-judicial commentary on how and why judgments are written. Against this larger plane, we consider a number of the key issues raised by the collection about judgment writing, including the significance of recounting the facts of a case, the uses of formalist judicial method and the capacity of judgments to effect change. Drawing on a number of examples from the collection, this review essay contends that Australian Feminist Judgments makes a valuable contribution not only to contemporary feminist debates, but also to issues going to the heart of judicial practices and judgment.
The US Feminist Judgments rewriting projects is here.
A fall conference on rewriting judgments, The US Feminist Judgments Project: Rewriting the Law, Writing the Future is planned for October 20 & 21.
“It is unfair that female products are priced higher than men’s,” declared [Ben] Hueso. “Why are retailers pulling extra money from women when data already shows that they earn about 84 cents for every dollar men earn? This needs to change. It’s about time we stand up to the retailers and fight for equal product pricing for all.”
His bill would force the companies to “eliminate price discrepancies on like products for men and women.” The companies also need “to notify customers of their right not to be charged differently for comparable merchandise.”
“All consumers, regardless of their gender, should pay the same price for the same product. Pink packaging or gender-based marketing is no justification for charging more,” stated Richard Holober, executive director of the Consumer Federation of California. “Anything less than an equal price is discrimination and blatantly unfair.”
If passed, companies must change their pricing within 30 days.
Friday, April 29, 2016
Katharine Baker (Chicago-Kent), Campus Sexual Misconduct as Sexual Harassment: A Defense of the DOE, Kansas L.Rev. (forthcoming)
Abstract:This article explains and defends the Department of Education’s campaign against sexual misconduct on college campuses. It does so because DOE has inexplicably failed to make clear that their goal is to protect women from the intimidating and hostile environment that results when men routinely use women sexually, without regard to whether women consent to the sexual activity. That basic point, that schools are policing harassing and intimidating behavior, not necessarily rape, has been lost on both courts and commentators. Boorish, entitled, sexual behavior that stops well short of rape, if pervasive enough, has been actionable as sexual harassment for decades. The failure to understand the theory of university regulation is problematic not only because it leads courts to ask the wrong questions when reviewing university tribunals, but also because it blinds both courts and commentators to the hard questions that follow from a theory of sexual harassment. First, evidence from both sides in cases of college sexual misconduct is likely to lack credibility and critical detail. Reasonable minds will differ on whether the complainant’s or the accused’s story is more accurate. What should college tribunals do in close cases, allow for findings of liability, as is permitted by the civil law of discrimination (and harassment), or require more proof, as is required by the criminal law and some college codes of conduct? Second, while many women on college campuses feel insulted and demeaned by the culture of male sexual entitlement, most women - by their own admission - are probably not being irreparably injured. If DOE’s policy is to be justified it is probably not on grounds that women are so severely hurt by men’s sense of their own sexual entitlement, but because that sense of entitlement undermines the norms of respect, civility and equality that university’s routinely enforce in other contexts. Is it worth curtailing men’s (entitled sense of) sexual freedom to enforce those norms?
WE tv launched the premier to its newest reality show at the end of March called “The Sisters in Law". The show follows 6 black female attorneys in Houston, Texas. *
The show is brand new and only a few episodes in. The show does have a dramatic flare among the cast mates, but so far the show is also doing a great job of showing the women in their career and working hard for their clients. For example, the first episode showed criminal defense attorney Jolanda meeting with her client who had been charged with murder. In the episode, Jolanda is advocating that her client was in self-defense of her life from an abusive spouse, and even goes to visit the client’s house where the homicide took place.
Thursday, April 28, 2016
Corey Rayburn Yung (Kansas), Policing Rape
Abstract:For decades, reformers have sought to increase the number and success rate of rape prosecutions by amending evidentiary rules, substantive definitions of rape, and consent standards. Such efforts are simply doomed from conception because they are primarily designed to affect the stage of the criminal justice process that few cases ever reach: trials. Looking to substantial empirical and institutional evidence, this Article concludes that police across the United States act as aggressive gatekeepers who prevent rape complaints from progressing by fervently policing the culturally disputed concept of “rape.” The Article breathes life into these data by exploring eight recent cases, which are illustrative of the overall statistical landscape, where victims were disbelieved, even prosecuted for filing false complaints, but ultimately had their complaints validated through confessions and/or forensic evidence. These data and supporting narratives indicate that to have any real effect in decreasing sexual violence, solutions must focus on removing the numerous police-imposed gatekeeping obstacles inhibiting investigation and adjudication in rape cases, beginning with substantial reform of police practices. The belief that reforming trial rules would trickle-down to police decisions has proven to be unwarranted. As long as rape victims do not have consistent access to the criminal justice system due to failures of policing, tinkering with rules and statutes is at best futile, and possibly counterproductive.
A federal judge has granted preliminary approval for a lawsuit accusing Merck & Co In. of underpaying female sales representatives to go forward as a collective action.
The lawsuit is seeking at least $250 million in damages.
U.S. District Judge Michael Shipp in Trenton, New Jersey, on Wednesday granted conditional certification to a proposed class of current and former representatives under the federal Equal Pay Act, which requires women and men to be paid equally for the same work.
The complaint alleges that Merck systematically paid female sales representatives less than their male peers, denied them promotions and subjected them to sexual harassment and an otherwise hostile work environment.
Employees who become pregnant or have children were often pressured to leave the company, the complaint says.
A collective action under the Equal Pay Act requires potential class members to opt in, unlike a traditional class action in which class members must opt out. Shipp's order allows notices to be sent to potential members so they can opt in.