Friday, May 11, 2018
Vicki Schultz, Reconceptualizing Sexual Harassment, Again
Twenty years ago, I published an article in the Yale Law Journal entitled “Reconceptualizing Sexual Harassment.” Five years later, I published a follow-up article in YLJ. These two pieces anchored a body of writing that proposed a new theory of sexual harassment.
Recent events reveal the work still depressingly relevant. Still relevant, because sexual harassment remains far too widespread, despite forty years of activism and legal reform. And still relevant, because the need for an adequate theoretical framework to guide action remains as pressing as ever, twenty years later.
Now is the time to reinvigorate theory. With the election of Donald Trump and the rise of the #MeToo movement, we are witnessing an extraordinary cultural moment of resistance against sexual harassment — one that could enable real change. I am heartened by the courage, tenacity, and smarts of the women and men who have come forward to challenge harassment in an effort to change the status quo. I include here not only the survivors who have risked so much to share their stories, but also the reporters who have worked to expose long-held secrets in the entertainment, technology, media, and other important industries. Most reports have focused on workplace or career-related harassment, a focus that is unsurprising given the centrality of work and workplace inequality to women’s lives. For that reason, this essay will focus on workplace harassment (though much of the analysis would apply also to sexual harassment on campus, a sphere that is important in its own right and as a training ground for professional life).
Jamie Abrams, The #MeToo Movement: An Invitation for Feminist Critique of Rape Crisis Framing, 52 Richmond L. Rev. (forthcoming)
This article invites feminists to leverage the #MeToo Movement as a critical analytical tool to explore the longevity of the enduring rape crisis framing of victim services. For nearly half a century, victims have visited rape crisis centers, called rape crisis hotlines, and mobilized rape crisis response teams to provide services and support. This enduring political and social framing around rape as a crisis is opaque, has prompted a political backlash, and risks distorting hard-fought feminist legal, social, and political battles. It has yielded underreporting, underutilization, and recurring risks of budgetary cuts. This model and terminology have gone virtually unchanged for nearly half a century. Crisis language denotes urgency, decisiveness, judgment, action, and mobilization, all leading to closure. These descriptions can be problematic when mapped onto the lived experiences of certain communities.
The #MeToo Movement presents modern feminists with a powerful, productive, and timely opportunity to critique the existing crisis model of service provision and support. This article invites feminists to begin this dialogue. It presents three critiques of the current framing. First, the crisis framing risks resurrecting troublesome legal relics relating to statutes of limitations and evidentiary hurdles. Second, it risks being perceived as exclusionary and limited, thus cabining its impact. Particularly, campus sexual assault victims and marginalized communities generally may not universally connect to an opaque crisis framing. Third, crisis framing risks distorting the scope of sexual assault. It limits the expansive range of harms that are associated with rape and sexual assault and the systemic longevity of the problem of rape and sexual assault in society. While the language of crisis seems to invoke an urgent call to action, which is to be applauded, this language risks blurring the long history of sexual assault and erasing a legacy of inaction in countless institutional and political and social settings. It also suggests a beginning and an end to a victim’s recovery journey. It suggests that closure is attainable when in reality, ongoing monitoring, responsiveness, and engagement are critically necessary.
Developing Enhanced Due Process Protections for Title IX Sexual Assault Cases at Public Institutions
Jim Newberry & William E. Thro, After the Dear Colleague Letter: Developing the Enhanced Due Process Protections for Title IX Sexual Assault Cases at Public Institutions, Journal of College & University Law (forthcoming).
Since the formation of the American Republic, Americans have maintained a fundamental mistrust of government power. In the Title IX realm, the Obama Administration exacerbated those concerns. In its efforts to enforce Title IX and to reduce sexual misconduct on campuses, the Obama Administration issued a “Dear Colleague Letter” in April 2011 and a follow up Question and Answer document in April 2014, both of which set out OCR’s view of the obligations of institutions receiving federal financial assistance under Title IX and its implementing regulations. This 2011 Dear Colleague Letter “explains the requirements of Title IX pertaining to sexual-harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.”
As Fifth Circuit Judge Edith Jones observed, this 2011 Dear Colleague Letter, “was not adopted according to notice-and-comment rulemaking procedures; its extremely broad definition of ’sexual harassment’ has no counterpart in federal civil rights case law; and the procedures prescribed for adjudication of sexual misconduct are heavily weighted in favor of finding guilt.” Specifically, the Dear Colleague Letter and the 2014 OCR Q & A document: (1) suggest institutions handle sexual assault cases with a single person serving as detective, prosecutor, judge, and jury; (2) maintain hearings are not required; (3) imply “the school should not start the proceedings with a presumption of innocence, or even a stance of neutrality . . . [but with an assumption] any complaint is valid and the accused is guilty as charged;” (4) forbid the consideration of the complainant’s sexual history with anyone other than the accused student; (5) discourage cross-examination; (6) allow an appeal of not guilty verdicts; and (7) mandate a preponderance of the evidence—rather than clear and convincing evidence or beyond a reasonable doubt—as the standard for determining guilt. Although the 2011 Dear Colleague Letter and the 2014 Q & A result in an increased focus on the problems of sexual assault on campus, some scholars have suggested these documents undermine due process.
On September 22, 2017, the Secretary of Education released new guidance that revoked both the 2011 Dear Colleague Letter and the 2014 Q & A document. Instead, OCR established Revised Sexual Harassment Guidance as the guiding light for future assessments of institutional compliance. Further, the Secretary announced her plans to initiate a “rulemaking process that responds to public comment.” The proposed rulemaking process will undoubtedly address multiple stakeholder concerns with the approach to sexual misconduct, but one anticipates that due process concerns for public institutions will be near the top of the list of concerns addressed in rulemaking effort.
The purpose of this Essay is to set out a vision for what due process in the Title IX sexual assault context should look like. In accomplishing this purpose, the authors—drawing on existing case law, policy arguments, and their own experiences as higher education lawyers—propose a set of due process protections which will equitably balance the interests of (a) Complaining Witness seeking redress for multiple forms of sexual misconduct, (b) Respondents seeking protection against lifelong stigmas arising from unfair campus proceedings, and (c) institutions of higher education seeking to eliminate all forms of educational program discrimination based on sex.
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
Thursday, May 10, 2018
The Ruth Bader Ginsburg documentary, RBG, directed by Betsy West and Julie Cohen, is probably not what you think it is, or even what, given the partisan hoopla in which we attempt to live our lives, you’d be forgiven for thinking it might be: a fawning polemic detailing a liberal justice battling the court’s right wing. There is fawning, though a fair amount is done by conservatives, including soon-to-retire Republican Senator Orrin Hatch and Antonin Scalia, the conservative justice and, until his death in 2016, the BFF of RBG. But the film is a deftly crafted portrait of a refreshingly wildly mild-mannered legal mind who was a powerful force in American life long before she donned the black robes and her trademark collars (one for dissenting opinions, one when she is siding with the majority, a fashion touch she developed with her female justice predecessor, Sandra Day O’Connor). What’s surprising to a casual follower of the judicial branch is that you’ll be reaching not for your legal pad while watching the film, but the tissues, given that what actually underpins RBG is a love story.
Call for Proposals for the Second Annual Equality Law Scholars’ Forum
Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law last fall, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) announce the Second Annual Equality Law Scholars’ Forum to be held this fall. This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas. We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.
We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law. Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting. The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.
This year’s Forum will be held on November 9-10, 2018 at UC Davis Law School.
Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 1, 2018.
Full drafts must be available for circulation to participants by October 19, 2018.
Proposals should be submitted to:
Tristin Green, USF School of Law, email@example.com. Electronic submissions via email are preferred.
The American Civil Liberties Union stepped in this week to defend the choice of students at a Florida high school to go bra-free, saying the school’s threat to impose a mandatory bra policy for girls amount to sex discrimination.
The ACLU says Braden River High School in Bradenton violated a 17-year-old student’s rights last month after it required her to cover her nipples with adhesive bandages, saying her undergarment-free look had become a distraction to fellow students, including boys who laughed or stared at her.
Lizzy Martinez was pulled from class, given an extra shirt and, when that wasn’t deemed enough, given the bandages. She was then sent back to her classroom after what she called a humiliating experience.
“Stop sexualizing my body,” she said, taking to Twitter to ding her school.
She attempted to lead a boycott, urging fellow students to come to school without bras or speak out about her treatment, but the school warned that this too could be deemed a distraction.
. . . .
Elizabeth M. Schneider, a professor at Brooklyn Law School, said schools need to be wary of citing distractions as the basis for their rules. She said educational institutions, like law schools, used to exclude women on the basis that their presence would distract male students and thus inhibit learning.
“The high school is playing into a very old and illegal concept in using the theme of distraction as a ground for differential treatment,” Ms. Schneider said.
She also said it would be unconstitutional to make it mandatory for female students to wear bras.
“Unless you are going to do a body check of every woman student who comes through the door, which would be even far more illegal, it’s impossible to check,” Ms. Schneider said.
Tracy A. Thomas, a professor at the University of Akron School of Law, said Lizzy’s situation is representative of the #MeToo movement with women coming forward sharing experiences of sexual harassment.
“Girls are surprised and hurt when they learn that their fellow male students and the administrators view them through this sexualized lens,” she said.
She suggested school policies punish boys for inappropriate comments, rather than shame female students.
A related earlier blog post is here.
Melissa Berger, Reforming by Re-Norming: How the Legal System has the Potential to Change a Toxic Culture of Domestic Violence, 44 Notre Dame J. of Legislation 171 (2018)
Regressive societal norms and gender-based biases, both explicit and implicit, have compounded over time to form a cultural realm of tolerance toward domestic violence. This Article examines how the law has contributed to the development of this culture, and more importantly, how the law can be utilized to transform a toxic culture of intimate partner violence. The law can be a positive agent of change, and its powers should be marshaled to effectuate change in attitudes and norms towards domestic violence. By importing the social norms theory of psychology and theories of re-norming and implicit biases, we may work to detoxify society’s treatment and tolerance of intimate partner violence.
Tuesday, May 1, 2018
Alexandra Brodsky, Against Taking Rape Seriously: The Case Against Mandatory Referral Laws for Campus Gender Violence, 53 Harvard Civil Rights-Civil Liberties J. 131 (2018)
In response to growing national concern about gender violence on college campuses, legislators have proposed a rash of state and federal bills that would require schools to refer all sexual assault reports to the police, regardless of the student victims’ wishes. These so-called “mandatory referral” laws appeal to a popular intuition that the best way to address rape is to involve law enforcement. Yet surveys, victims’ criticism, and the history of other efforts to force survivors into the criminal legal system show that such bills would discourage survivors who wish to avoid criminal intervention from reporting to their schools and, as a result, directly undermine the wellbeing of victims and reduce opportunities for accountability. Despite clear shortcomings, opponents of campus rape reform have been able to champion these counter-productive bills under the guise of supporting survivors by co-opting a historically salient feminist strategy: demanding that policymakers take gender violence “seriously,” which the public imagination equates with criminal prosecution. This Article maps the political landscape that gives rise to mandatory referral bills, explains the proposals’ failures as a matter of policy, and calls for a new rhetoric of taking victims’ needs seriously.
The ACLU is intervening after [Lizzy] Martinez, a 17-year-old junior at Braden River, was disciplined for not wearing a bra under her shirt to school due to a painful sunburn. School administration removed her from class, told her she was distracting other students, and required her to put Band-Aids over her nipples for the rest of the day. The school maintained that it was doing this in Martinez’s best interest — but then proceeded to block her on Twitter when she complained that she felt sexualized, and it discouraged students from participating in a student protest against the stigmatization of female bodies.
The ACLU letter to the school district is here and it is well worth the read.
As described above, the justification proffered for the enforcement of the dress code against Ms. Martinez was rooted in sex stereotypes that male students were “distracted” by her nipples and a paternalistic desire to “protect” Ms. Martinez from the laughter and stares of her male classmates. The justification reflects overly broad and archaic generalizations about boys’ inability to control their sexual impulses and girls’ inability to make their own decisions about the clothing that makes them feel safe and comfortable. These stereotypes reinforce a culture of victim blaming in which schools convey the message to female students that they are at fault for experiencing sexual harassment if they make certain clothing choices. The Supreme Court has long struck down policies based on “‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”
The biased enforcement of the dress code against Ms. Martinez and other female students jeopardizes their equal access to education by forcing them to miss important class time. As described above, Ms. Martinez missed multiple days of school, including three tests. It also prioritizes male students’ freedom from “distraction” over female students’ physical comfort.
Wednesday, April 18, 2018
Dennis R. Lassila, Murphy Smith & Daqun (David) Zhang, Negative Social and Economic Effects of the Marriage Penalty Tax on Women and Society
For decades the marriage penalty tax (MPT) has been debated, reduced, increased, and muddled in the US tax system. The issue is important to individual taxpayers, as well as to policy-makers, academic researchers, and society overall. Research shows that the MPT has a negative impact on marital stability, resulting in particularly deleterious effects on women and children, as single females, especially single-parent females, are more likely to be in poverty. Consequently, the MPT is a gender issue in that women are more negatively affected by it than men are, but to varying degrees all members of society are negatively affected, women, men, and children. The purpose of this study is to review how the MPT was affected by the new tax law, the Tax Cuts and Jobs Act of 2017, and briefly review the history of the MPT and its impact on individuals and society. While the MPT was greatly reduced by the 2017 Act, notably regarding tax rates, the MPT, as connected to the earned income tax credit, continues to have a major detrimental impact on low to moderate income couples, discouraging marriage and having a particularly negative effect on their children.
The U.S. Supreme Court has declined to hear an appeal of a ruling that overturned a lower court decision granting a preliminary injunction to a Maine minister who asserted that he was being unlawfully targeted by police outside of a Planned Parenthood facility for his pro-life preaching.
The high court declined certiorari in the case of March v. Mills, et. al. without comment on Monday, allowing a First Circuit ruling against the preacher’s public proclamations to stand.
However, as the courts ruled solely on the merits of the law and not how it was being applied specifically to Andrew March of Cell 53 Church, his attorneys will refile and continue the fight.“The case is far from over,” Kate Oliveri of the Thomas More Law Center told the Bangor Daily News. “There are several challenges that we will go back to the District Court with.”...
In May 2016, U.S. District Judge Nancy Torresen, appointed to the bench by Barack Obama, sided with March, opining that the “intent to interfere” portion of the law would pertain to the content of the speech, and would therefore only relate to pro-life speech, which would consequently be an unconstitutional content-based restriction.
“Continued enforcement of a content-based restriction on speech would result in irreparable harm to the Plaintiff,” Torreson ruled.
She said that there are other ways to keep order on the public sidewalk, as police “can further their interests of maintaining order and protecting individual patients through the criminal code, most obviously the disorderly conduct and harassment statutes.”
However, in August, the First Circuit Court of Appeals overturned Torreson’s ruling, stating that they rather found the law to be content-neutral and that it does not ban abortion opponents from conversing with others, as opposed to lifting up one’s voice to preach—if in doing so the person’s voice can be heard inside the building.
“[T]he requirements laid out on the face of the noise provision do not indicate that the measure would apply to speech expressed at a normal, conversational tone—or even at a louder volume—absent the speaker’s intent to disrupt the provision or receipt of medical services,” it wrote.
The First Circuit Court of Appeals case is here, March v. Mills (2017)
Monday, April 16, 2018
An en banc federal appeals court ruled Monday that salary history cannot be used to justify paying less to women in comparable jobs.
The San Francisco-based 9th U.S. Circuit Court of Appeals ruled that salary history is not relevant in a suit under the Equal Pay Act, report the Recorder, the Los Angeles Times and Courthouse News Service. How Appealing links to additional coverage and to the opinion.
The Equal Pay Act bars wage differences between male and female employees for comparable work—except in cases of seniority, merit, quantity or quality of production, or “any other factor other than sex.” The defendants had argued salary history was a factor “other than sex.”
The appeals court ruled that “a factor other than sex” is limited to legitimate, job-related factors such as experience, educational background, ability or prior job performance.
Prior salary, whether considered alone or with other factors, is not job-related, and relying on it perpetuates discrimination, the appeals court said.
Federal appeals courts are split on the issue, according to the National Law Journal. The U.S. Courts of Appeals for the Denver-based 10th Circuit and for the Atlanta-based 11th Circuit have held that prior pay can’t be considered alone as an exemption to equal pay laws. The Chicago-based 7th U.S. Circuit Court of Appeals has ruled salary history can be considered.
The decision is here at Rizo v. Yovino (9th Cir. en banc April 9, 2018).
There were three concurrences (5 judges of 11), with two of the concurrences reserving the option for businesses to use salary histories as a relevant, but not determinative, factor in pay decisions. Three of the four women on the en banc panel joined a concurrence (only one of whom is a Republican appointee).
For prior coverage of the earlier panel decision on this blog, see
Henry L. Chambers, Jr., Neoliberalism and the Lost Promise of Title VII, JOTWELL, reviewing Deborah Dinner, Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, 92 Ind. L.J. 1059 (2017).
In Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, Professor Deborah Dinner explores how neoliberalism of the late twentieth century has influenced Title VII’s interpretation and destroyed Title VII’s ability to transform the American workplace into one where employees are properly treated, fairly valued, and fully compensated. She suggests that neoliberalism’s focus on a minimal role for state intervention and on the individual worker as a completely realized market actor capable of protecting her interests through negotiation with an employer is problematic. It has led to an interpretation of Title VII that functionally expands employer prerogatives regarding terms of employment, limits employee power, and legitimates the economic inequality and class subordination that Title VII should attempt to eliminate. Consequently, even “best practices” that fully enforce Title VII “are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and schedules that allow for fulfilling family and civic lives.”
The article is a Thing I Like Lots because it takes two seemingly unrelated topics – Title VII and neoliberalism – and explores how they are connected. Dinner notes neoliberalism is not a tight theory, but a general outlook that focuses on a free-market ideal that favors deregulation and individual autonomy. Accordingly, the article situates employment discrimination law inside of our American culture, recognizing that a law or its interpretation does not exist separate from the society in which it operates. Simply, Title VII – the statute considered most likely to bring substantive and procedural equality to the workplace – can be blunted by interpretations provided by courts and commentators operating in a neoliberal society. The article notes the roads not taken and laments the unmet possibilities of employment discrimination law. That is worthwhile to consider even for a reader who may tend to focus on employment discrimination doctrine rather than theory.
Film: I Am Evidence
I AM EVIDENCE exposes the alarming number of untested rape kits in the United States through a character–driven narrative, bringing much needed attention to the disturbing pattern of how the criminal justice system has historically treated sexual assault survivors.
Why is there a rape kit backlog? What can we do to fix the problem? This film explores these questions through survivors’ experiences as they trace the fates of their kits and re-engage in the criminal justice process. I AM EVIDENCE illuminates how the system has impeded justice while also highlighting those who are leading the charge to work through the backlog and pursue long-awaited justice in these cases.
In this film, we seek to send a clear message to survivors that they matter, that we as a nation will do everything possible to bring them a path to healing and justice, and that their perpetrators will be held accountable for their crimes.
Tuesday, April 10, 2018
Equal Pay Day — the day up to which the typical woman must work in a particular year to catch up with what the average man earned the previous year — always brings back a rush of memories. Not surprisingly, many of them I’d rather forget: the pit in my stomach, for example, that developed when I read the anonymous note left in my mailbox that told me I was being paid a fraction of what other, male supervisors at Goodyear were making. And when the Supreme Court denied me justice in my pay discrimination case.
(Some of them are happier memories, like when President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act to ensure other women would not receive the same treatment.)
Sexual harassment isn’t about sex, just like pay discrimination isn’t just about pay. Both are about power. They are clear evidence that too many workplaces value women less. That was true for me in the 1980s and 1990s when I worked at Goodyear, and it is still true today.
My latest article thinking about gender and remedies.
Tracy A. Thomas, Leveling Down Gender Equality
The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute. The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers. It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case.
This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of. It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants. In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools. In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men. And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.
Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality. This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors. When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off. But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.
The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination. This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision. It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end. Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy. It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional. The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.
This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality. But this is where the Court went wrong. The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection. Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board. Equality itself, as a constitutional right, dictates more than just empty formalism. And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised. For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court. Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.
This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers. Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course. It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy. Given these constitutional norms, the Article then argues that the remedial calculus should be changed. Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut. Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself. Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.
When Davi, a 17-year-old in Oakland, California, found out that their true gender identity — nonbinary, meaning neither male or female — was finally recognized by the state, they felt a sense of relief.
“I will feel like I don’t have to explain myself all of the time,” Davi said. “I will be so grateful, and less tired.”
Nonbinary gender identity is not recognized by most states. Last June, Oregon became the first to recognize a nonbinary gender option on driver’s licenses. Since the bill passed, Washington, DC, and three more states followed suit: Washington, New York, and California, which became the first state to allow nonbinary residents to change their gender on all relevant legal documents, including birth certificates, to a gender-neutral option.
For nonbinary youth like Davi, that means nothing less than a shift from nonexistence to existence in the eyes of the law. “Most people have the privilege of feeling that,” said Davi. “[They] probably do not even think about that concept.”
John attended a party, drank six beers, then proceeded to a bar and drank more beer and alcohol. He left the bar in the early morning, sufficiently intoxicated that he cannot remember what happened for the remainder of the night. Based on text messages he later found on his cellphone, John knows that he called Jane. The two had engaged in several prior physical encounters. Jane, who had also been drinking, joined John in his bed. According to Jane’s subsequent statement, the two engaged in some consensual sexual acts, but Jane stopped consenting and John continued to engage in non-consensual sexual acts. John was found responsible for violating Miami University’s sexual assault policy and was suspended for four months. John sued Jane, Miami University, and individual University employees. John and Jane reached a settlement. The court dismissed John’s remaining claims. The Sixth Circuit affirmed the dismissal of John’s Title IX hostile-environment claim, Title IX deliberate-indifference claim, and 42 U.S.C. 1983 substantive-due-process claim. The court reversed, in part, finding that John sufficiently pleaded procedural-due-process and equal protection claims against one employee based on the claims that she was not an impartial adjudicator and did not fully disclose the evidence against him. The court also reversed a finding of qualified immunity as to that employee and held that John sufficiently pled his Title IX erroneous-outcome claim.
Doe v. Miami University (6th Cir. Feb. 9, 2018) (opinion by Karen Nelson Moore)
We agree with the district court that John has pleaded sufficient facts to cast “some articulable doubt on the accuracy” on the outcome of his disciplinary hearing. He alleges that he was so intoxicated that he cannot recall the critical events in question. Thus, John’s only knowledge of what occurred is drawn from Jane’s description. In her written statement, Jane describes a series of sexual acts between herself and John, some of which were consensual and some of which were not.
She states that she initially agreed to digital penetration, but at some point told John to stop. Id. John did stop, but only after some period of time had passed. Then John asked Jane if he could engage in oral sex. According to Jane, she said no, but John proceeded anyway and Jane responded by pushing him away, rather than re-verbalizing her denial of consent. John then stopped. Jane also states, however, that “I never said no.”
[John was suspended by Miami for three terms].
Taken together, the statistical evidence that ostensibly shows a pattern of gender-based decision-making and the external pressure on Miami University supports at the motion-to dismiss stage a reasonable inference of gender discrimination. John alleges facts showing a potential pattern of gender-based decision-making that “raise a reasonable expectation that discovery will reveal” circumstantial evidence of gender discrimination. He asserts that every male student accused of sexual misconduct in the Fall 2013 and Spring 2014 semesters was found responsible for the alleged violation, and that nearly ninety percent of students found responsible for sexual misconduct between 2011 and 2014 have male first-names. Additionally, John incorporated an affidavit from an attorney who represents many students in Miami University’s disciplinary proceedings, which describes a pattern of the University pursuing investigations concerning male students, but not female students. Lastly, John points to his own situation, in which the University initiated an investigation into him but not Jane, as evidence that Miami University impermissibly makes decisions on the basis of a student’s gender. Discovery may reveal that the alleged patterns of gender-based decisionmaking do not, in fact, exist. That information, however, is currently controlled by the defendants, and John has sufficiently pleaded circumstantial evidence of gender discrimination.
John also alleges that the two other members of his Administrative Hearing Panel (Van Gundy-Yoder and Elliott) and the two individuals who decided his appeals (Ward and Brownell) were not neutral decision-makers. He argues that Van Gundy-Yoder and Ward were biased due to their research interests. But merely being a feminist or researching topics that affect women does not support a reasonable inference that a person is biased. John also alleges that all of these individual defendants faced institutional pressures to find him responsible due to external influence from the federal government and lawsuits brought by private parties.
Friday, April 6, 2018
Kayla Louis, Pornography and Gender Inequality: Using Copyright Law as a Step Forward, 24 William & Mary J. L. 267 (2018)
The pornography industry generates billions of dollars of revenue annually. The industry relies heavily on protection from copyright law in order to distribute its materials without them being freely taken by others. In other words, copyright law currently operates as an economic incentive to pornographers. Unfortunately, this lucrative industry has negative effects on gender equality. Pornography promotes harmful gender roles for both women and men. Women are portrayed as merely sexual objects who enjoy any type of penetration imaginable, even if it is rape. They are objectified and dehumanized. Men are shown as animalistic, performance-based, and without morals. As a whole, pornography can lead to behavioral, psychological, and social problems. Beyond the social harms to both men and women, the performers themselves suffer physical harms. As a form of prostitution, filmed pornography contributes to the demand for trafficking, and many women are coerced into the industry.
The government’s denial of copyright protection to speech based on content would potentially violate the First Amendment. However, the Supreme Court has made clear that not all content deserves free speech protections. Rather, “obscene” materials, as described in Miller v. California, are not protected under the First Amendment.
This Article argues that pornography is an actual problem that warrants denial of copyright protection as a method to disincentivize pornographers.