Monday, November 27, 2017
Symposium on the Jurisprudential Legacy of Judge Constance Baker Motley, the First Black Woman Federal Judge
Symposium in the recent issue of the Columbia Law Review.
Tomiko Brown-Nagin, Identity Matters: The Case of Judge Constance Baker Motley
Judge Denny Chin & Kathy Hirata Chin, Constance Baker Motley, James Meredith, and the University of Mississippi
Judge George B. Daniels* & Rachel Pereira, Equal Protection as a Vehicle for Equal Access and Opportunity: Constance Baker Motley and the Fourteenth Amendment in Education Cases
Judge Raymond J. Lohier, Jr., On Judge Motley and the Second Circuit
Wednesday, November 15, 2017
A lawsuit filed by an anonymous former student claiming that Colgate University unlawfully expelled him in his senior year based on accusations of sexual abuse by three female students was dismissed Wednesday by a federal judge for the U.S. District Court for the Northern District of New York.
U.S. District Judge Lawrence Kahn granted the small liberal arts university in Hamilton summary judgment with respect to each cause of action in the lawsuit brought on by John Doe in August 2015, Doe v. Colgate University, 5:15-cv-1069.The plaintiff’s attorney said he planned to appeal the ruling to the U.S. Court of Appeals for the Second Circuit.
The anonymous plaintiff in the lawsuit attended the university from 2011 until he was expelled during his senior year in April 2015, after being found responsible for three instances of sexual misconduct against the unnamed students that occurred during the 2011-12 academic year. He contended the touching was consensual and not reported to college officials until much later. The plaintiff alleges that in his expulsion, Colgate University violated Title IX—a federal law that prohibits sex-based discrimination in education—and the state’s Human Rights Law. The plaintiff also claimed that the university was in breach of contract, breach of the covenant of good faith and fair dealing, violated the New York General Business Law, as well as demonstrated liability based on equitable estoppel theory and was negligent.
Kahn granted the plaintiff anonymity in April 2016 after a magistrate judge had earlier denied the request. The plaintiff successfully argued that the potential harm he faced outweighed the public’s interest in his being identified.
In his decision released Tuesday, Kahn wrote that the plaintiff “fails to provide sufficient evidence that gender bias motivated Colgate’s decision to expel him.”
The plaintiff had argued that the school was biased in favor of women due to student activism and the reaction to what occurred in Columbia University, when a female student carried a mattress throughout the campus after an inquiry by the university found a lack of evidence that she was raped by a male student. The plaintiff also claimed that Colgate’s investigation was tainted because the primary investigator, Val Brogan, once worked in the Abused Persons Unit at the Onondaga County Sheriff’s Department, and might be biased against men.
Monday, November 13, 2017
The decision in Feminist Majority Foundation v. University of Mary Washington, 2017 Wl 4158787 (E.D. Va. Sept. 19, 2017)
This case arises from the cyberbullying of a student-run feminist organization at the University of Mary Washington (“UMW”). The cyberbullying occurred primarily through a social media smartphone application called Yik Yak. Yik Yak allowed users to anonymously share messages—called “yaks”—with other users within a certain radius (e.g., with users at or around UMW). Other users could then anonymously comment on yaks or could vote up or down on the yaks. During the 2014–2015 school year, users on Yik Yak harassed the plaintiffs by posting insulting, derogatory, and threatening yaks. The plaintiffs complained to UMW about the harassment, and eventually filed a complaint against UMW under Title IX.The plaintiffs have now sued UMW, along with its current and former presidents, for violations of Title IX and the Equal Protection Clause. The defendants have moved to dismiss. Because UMW has limited, if any, control over Yik Yak, the plaintiffs' Title IX discrimination claim fails. Their Title IX retaliation claim fails because UMW took no retaliatory action against the plaintiffs. Finally, because no constitutional violation occurred, let alone a clearly establish or continuing violation, the plaintiffs have not stated claims under the Equal Protection Clause. Accordingly, the Court will grant the defendants' motion to dismiss
Friday, November 10, 2017
Rethinking Campus Response to Sexual Violence: Betsy DeVos, Title IX, and the Continuing Search for Access to Justice
Friday, January 5, 2018 from 8:30 -10:15 am
- Hannah Brenner, California Western School of Law
- Mary M. Penrose, Texas A&M University School of Law
- Verna Williams, University of Cincinnati College of Law
- Cory Rayburn Young, University of Kansas School of Law
- Nancy Chi Cantalupo, Barry University Dwayne O. Andreas School of Law
- Ben Trachtenberg, University of Missouri School of Law
The Trump Administration recently revised the Title IX process addressing sexual violence on college campuses. These revisions, coupled with a Sixth Circuit decision finding due process protections lacking in a university’s Title IX hearing, underscore the importance of ensuring that both victims and accused receive access to justice following allegations of sexual violence. Against the backdrop of these and other current events, this panel considers strategies for rethinking the response from a legal access to justice perspective. As lawyers and legal academics, this topic is important to us, our students, institutions, and society as we strive to find balance between the rights of victims and accused. The voices on this panel offer diverse viewpoints regarding Title IX’s role in addressing sexual violence. Panelists will discuss necessary protections for those bringing claims of sexual violence to ensure fair resolution that causes limited harm to these individuals and their educational opportunities, and protections for those accused of perpetrating sexual violence, recognizing that consequences may extend far beyond the classroom. We challenge attendees to return to their campuses and respectfully engage one another to find meaningful solutions to an issue that, thus far, has failed to adequately guarantee access to justice for all.
For other programs coming up at AALS, see Law and Gender Programs at AALS 2018
Tuesday, October 31, 2017
Lauren Rivera, When Two Bodies are (Not) a Problem: Gender and Relationship Status Discrimination in Academic Hiring, Amer. Soc. Rev. (Oct. 25, 2017)
Junior faculty search committees serve as gatekeepers to the professoriate and play vital roles in shaping the demographic composition of academic departments and disciplines, but how committees select new hires has received minimal scholarly attention. In this article, I highlight one mechanism of gender inequalities in academic hiring: relationship status discrimination. Through a qualitative case study of junior faculty search committees at a large R1 university, I show that committees actively considered women’s—but not men’s—relationship status when selecting hires. Drawing from gendered scripts of career and family that present men’s careers as taking precedence over women’s, committee members assumed that heterosexual women whose partners held academic or high-status jobs were not “movable,” and excluded such women from offers when there were viable male or single female alternatives. Conversely, committees infrequently discussed male applicants’ relationship status and saw all female partners as movable. Consequently, I show that the “two-body problem” is a gendered phenomenon embedded in cultural stereotypes and organizational practices that can disadvantage women in academic hiring. I conclude by discussing the implications of such relationship status discrimination for sociological research on labor market inequalities and faculty diversity.
Friday, October 13, 2017
As hiring season in U.S. law schools is upon us, a few posts today on gender bias in the academy.
Virginia Valia, Beyond Gender Schemas: Improving the Advancement of Women in Academia, 20 Hypatia 198 (2005):
The statistics on women in academia are well documented and summarized in a number of places.
The generality and ubiquity of the problem shows the necessity for a general explanation. Since the phenomena are not confined to a single profession, we need to understand what underlies them. The explanation I focus on is social cognitive; it examines the moment-by-moment perceptions and judgments that disadvantage women. The social-cognitive account relies on two key concepts: gender schemas and the accumulation of advantage. Very briefly: the gender schemas that we all share result in our overrating men and underrating women in professional settings, only in small, barely visible ways: those small disparities accumulate over time to provide men with more advantages than women.
Constance Wagner, Change from Within: Using Task Forces and Best Practices to Achieve Gender Equity, 47 Journal of Legal Education (forthcoming).
This article focuses on the search for gender equity among women faculty in the university setting in the United States. The author advocates for the use of university task forces and the institutionalization of best practices for achieving gender equity as means to remove the persistent barriers to professional advancement experienced by many women faculty. Discriminatory treatment of faculty based on gender may be hidden and remain unacknowledged in some universities, so the process of uncovering such treatment and formulating recommendations for change is an important first step in the process of creating a work environment that is both fair and inviting to women. Many universities have achieved positive outcomes for faculty using this approach, which has the potential to benefit a wider group of women faculty in a more targeted fashion than a strategy that relies on the use of litigation and government agency proceedings. This article documents the disparities in employment status experienced by women faculty in U.S. universities compared to their male counterparts through the use of statistically based gender equity indicators, explores explanations for the existence of such inequities and proposes reasons for their elimination, develops a model framework for the structure and process to be used by a successful gender equity task force, and identifies best practices that have the greatest potential to advance the status of women university faculty. The author draws upon case studies of successful task forces at several U.S. universities, the work of professional organizations representing university faculty and administrators, and the academic literature on the employment status of women faculty in the United States.
This piece contributes to the literature on employment discrimination based on gender in the United States in a novel way by approaching the topic from the perspective of mechanisms for institutional change rather than from a litigation perspective. It fills a gap in the literature by exploring the topic of gender inequity among university faculty from a strategic perspective by drawing on the work of successful task forces and emerging best practices that show promise to improve the status of university women faculty.
Gender Bias in Academe: An Annotated Bibliography:
Studies of the hard data of gender bias—in an era of hard data—should be required reading of all administrators and all faculty who are called upon to make decisions about hiring, tenure, and promotion based on purely quantitative measures such as “productivity” or “citation counts.” An adage of data scientists is “garbage in, garbage out.” That means if the sample or the data is corrupt or biased when it is first entered, then any conclusions based on mining or crunching that data must be regarded with keen skepticism. You cannot simply count the end product (such as number of articles accepted, reviewed, awarded prizes, or cited) without understanding the implicit bias that pervades the original selection process and all the subsequent choices on the way to such rewards.
Book Review, Deborah Rhode, Women and Leadership, 8 ConLawNOW 1 (2017).
London School of Economics, LSE Impact Blog, Gender Bias in Academe: An Annotated Bibliography
Academic research plays an important role in uncovering bias and helping to shape a more equal society. But academia also struggles to adequately confront persistent and entrenched gender bias in its own corridors. Here Danica Savonick and Cathy N. Davidson have aggregated and summarised over twenty research articles on gender bias in academe.
The often unconscious and unintentional biases against women, including in academe, have been well documented in the autobiographical writings of authors such as Audre Lorde, Adrienne Rich, Patricia Williams, and bell hooks. But is the experience they document merely “subjective”? Several recent social science research studies, using strictly controlled methodologies, suggest that these first-person accounts of discrimination are representative, not simply anecdotal. While some studies suggest that some fields are making a concerted effort to reverse gender imbalance in hiring and other practices, the majority of these studies reveal a consistent and continuing range of biases at each stage of the hiring, tenuring, and promotion process as well as in peer review and teaching evaluation.
The studies aggregated and summarized below offer important policy implications for the traditional ways that we quantify the processes leading to hiring, promotion, and tenure. You cannot simply count “outputs” in making an evaluation of someone’s worth and reputation if there is a “biased filter” at the first stage of evaluation, prejudicing judgment at the outset.
Tuesday, October 10, 2017
With the stroke of a pen, Education Secretary Betsy Devos rescinded Obama-era Title IX guidance—effectively undoing nearly half a century of policy and advocacy work that helped to protect women and girls from sexual assault and advance equal access to education. The Department of Education’s updated guidance on Title IX allows schools to mediate rather than adjudicate sexual assault cases, revokes the suggested timeline for investigations and revises the suggested “preponderance of evidence” standard for sexual assault cases to make room for schools to enforce “clear and convincing evidence” standards.
Colleges and universities have been swift to respond, speaking out against the new interim guidance and pledging to uphold the old standards by following the procedures with which they were imbued under the Obama-era guidance. In a statement on Friday, UC Berkeley said it “stands firmly in support of the profoundly important policies enacted in recent years that seek to ensure a more efficient and fair system for all parties in cases of sexual harassment and sexual violence.” Penn State stated that it was their goal “to keep our reporting mechanisms and supportive services for responding to incidents of sexual and gender-based harassment and discrimination as effective and accessible as possible.” Washington University announced that “regardless of decisions at the federal level” they “have no intention of turning back on our commitment or resolve.”
These responses are undeniably uplifting and important—but laws are only as good as their enforcement. Without the proper mechanisms for effective enforcement that the previous guidance provided, it is hard to say whether schools will hold themselves accountable to the law or let their promises ring empty. Rather than hope for the best, California Senator Hannah-Beth Jackson (D-Santa Barbara) authored a bill that would enshrine into California law the Obama guidelines that guaranteed girls and women equal access to education.
SB 169 sends a message that the state does not want to sit idly by as the federal government attempts to propel women’s rights into the past. “In California, we will not go back,” Jackson said in a statement on Friday. “Both houses of the Legislature made a clear bipartisan statement by passing my bill, SB 169, to protect the Obama-era guidelines that strike an appropriate balance that were put in place during his tenure. We will not back down from the progress we have made on sexual assault and sexual violence.”
SB 169 passed with a 28-10 vote and is awaiting a signature from Governor Jerry Brown (D)
Friday, October 6, 2017
One source of controversy at some academic conferences is the tendency for discussion panels to be composed largely of white men. In recent years, there’s been a heightened awareness among scholars of the importance of both gender and racial diversity when organizing such discussions — be they at conferences or on campuses.
In July, the Elliott School of International Affairs at George Washington University took an unorthodox step to ensure gender diversity in its panel discussions: It adopted a rule banning single-gender panels. Specifically, the policy requires panels with more than two speakers to include both men and women. And if all speakers happen to be of the same gender, the moderator must be of a different gender. Violating the policy could result in a panel’s cancellation.
But there was backlash. Some faculty members complained, and news outlets like Breitbart seized upon the controversy. "It’s a total, obvious infringement on common sense to begin with, and academic freedom," said Jonathan Chaves, a professor of Chinese in the Elliott school, told the university’s student newspaper. "There’s only one standard that applies to an institution of higher education," said Mr. Chaves, "and that is who the best person is in the field. Period."
"Part of privilege is just not having to think about this, you just call your friends, you call your buddies, or you call people in your network, to be on panels like this," she said. "In a practice of exclusion, like all-male, all-white panels are, we are not allowing the merits of somebody’s scholarship to actually bubble to the top."
One of the most recognizable efforts to diversify panels hasn’t come from administrators but from professors themselves.
Last year, women in political-science departments across the nation founded a searchable database called Women Also Know Stuff in an effort to bring attention to what they call "man-els," or all-male panels.
Melissa Michelson, a professor of political science at Menlo College and one of the founders, said she’s seen more women included in news stories and in conferences since the site launched.***
But single-gender panels aren’t always all-male. Aili Mari Tripp, chair of the gender and women’s studies department at the University of Wisconsin at Madison, said her department has the opposite problem: all-female panels, because of a lack of men working in gender and women’s studies.
As for a rule enforcing gender diversity, Ms. Tripp said that other means are more effective.
"The way to go is to create incentives for gender diversity, model it, and find ways to value and recognize the expertise of women and minorities," Ms. Tripp wrote in an email. "rather than legislating it in this way, which will only create unnecessary hostility."
Note, the ABA has adopted a similar rule requiring both gender and racial diversity on ABA CLE and conference panels. More here The ABA's New Rule Mandating Diverse CLE Panels
Tuesday, September 26, 2017
Mark your calendars for panels on law and gender at the annual Association of American Law Schools (AALS) meeting, January 2018.
Thursday, Jan. 4
10:30am AALS Open Source Program – Mainstreaming Feminism
Saturday, Jan. 6
9:00am Women in Legal Education –Whispered Conversations Amplified
10:30am Sexual Orientation and Gender Identity Issues – Relationships Between Religious
Exemptions and Principles of Equality and Inclusion
12:15pm Women in Legal Education Luncheon. Ticket price $75 per person.
1:30pm Women in Legal Education – Speed Mentoring
Full AALS Draft Program is here.
Friday, September 22, 2017
Today the Dept of Education rescinded the prior Title IX "Dear Colleague Letter" on handling claims of campus assault and issued its own letter.
The purpose of this letter is to inform you that the Department of Education is withdrawing the statements of policy and guidance reflected in the following documents:
• Dear Colleague Letter on Sexual Violence, issued by the Office for Civil Rights at the U.S.Department of Education, dated April 4, 2011.
• Questions and Answers on Title IX and Sexual Violence, issued by the Office for Civil Rights at the U.S. Department of Education, dated April 29, 2014.
These guidance documents interpreted Title IX to impose new mandates related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct. The 2011 Dear Colleague Letter required schools to adopt a minimal standard of proof—the preponderance-of-the-evidence standard—in administering student discipline, even though many schools had traditionally employed a higher clear-and-convincing-evidence standard. The Letter insisted that schools with an appeals process allow complainants to appeal not-guilty findings, even though many schools had previously followed procedures reserving appeal for accused students. The Letter discouraged cross-examination by the parties, suggesting that to recognize a right to such crossexamination might violate Title IX. The Letter forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints, forcing schools to establish policing and judicial systems while at the same time directing schools to resolve complaints on an expedited basis. The Letter provided that any due-process protections afforded to accused students should not “unnecessarily delay” resolving the charges against them.
Legal commentators have criticized the 2011 Letter and the 2014 Questions and Answers for placing “improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” As a result, many schools have established procedures for resolving allegations that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.
The 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints. The guidance has not succeeded in providing clarity for educational institutions or in leading institutions to guarantee educational opportunities on
the equal basis that Title IX requires. Instead, schools face a confusing and counterproductive set of regulatory mandates, and the objective of regulatory compliance has displaced Title IX’s goal of educational equity
The Department imposed these regulatory burdens without affording notice and the opportunity for public comment. Under these circumstances, the Department has decided to withdraw the above referenced guidance documents in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits. The Department intends to implement such a policy through a rulemaking process that responds to public comment. The Department will not rely on the withdrawn documents in its enforcement of Title IX.
DoE Q&A on Campus Sexual Misconduct (Sept. 22, 2017). This allows for mediation and provides required procedures for adjudicating campus sexual misconduct.
Tuesday, September 19, 2017
Ben Trachtenberg, How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students, 18 Nevada L. Rev. 2 (forthcoming 2018)
This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement—launched with the best of intentions in response to real problems—almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, preventing evaluation of possible disparate racial impact. Further, several aspects of the university disciplinary apparatus—including broad and vague definitions of offenses, limited access to legal counsel, and irregular procedures—increase the risk that black students will suffer disproportionate suspensions and other punishment.
This Article brings needed attention to an understudied aspect of Title IX enforcement and raises concerns about the potential effects of implicit bias. While many commentators and courts have addressed whether university disciplinary procedures mistreat men—or, instead, even now provide inadequate protection for college women—few observers have discussed possible racial implications, which may explain (and be explained by) the current lack of data. Outside the context of sex-discrimination cases, university discipline procedures for quotidian matters such as plagiarism and alcohol abuse likely exhibit similar biases.
This article argues that the U.S. Department of Education should use its authority under Title VI of the Civil Rights Act to require that colleges and universities immediately begin collecting and publishing the sort of data already reported by elementary and secondary schools, thereby allowing observers to assess the scope of disparate impact in campus discipline processes.
Tuesday, September 12, 2017
Friederike Mengel, Jan Sauermann, Ulf Zolitz, Gender Bias in Teaching Evaluations
This paper provides new evidence on gender bias in teaching evaluations. We exploit
a quasi-experimental dataset of 19,952 student evaluations of university faculty [in the Netherlands] in a context where students are randomly allocated to female or male instructors. Despite the fact that neither students’ grades nor self-study hours are affected by the instructor’s gender, we find that women receive systematically lower teaching evaluations than their male colleagues. This bias is driven by male students’ evaluations, is larger for mathematical courses and particularly pronounced for junior women. The gender bias in teaching evaluations we document may have direct as well as indirect effects on the career progression of women by affecting junior women’s confidence and through the reallocation of instructor resources away from research and towards teaching.
From the paper:
Our results show that female faculty receive systematically lower teaching evaluations than their male colleagues despite the fact that neither students’ current or future grades nor their study hours are affected by the gender of the instructor. The lower teaching evaluations of female faculty stem mostly from male students, who evaluate their female instructors 21% of a standard deviation worse than their male instructors. While female students were found to rate female instructors about 8% of a standard deviation lower than male instructors.
When testing whether results differ by seniority, we find the effects to be driven by junior instructors, particularly PhD students, who receive 28% of a standard deviation lower teaching evaluations than their male colleagues. Interestingly, we do not observe this gender bias for more senior female instructors like lecturers or professors. We do find, however, that the gender bias is substantially larger for courses with math-related content. Within each of these subgroups, we confirm that the bias cannot be explained by objective differences in grades or student effort. Furthermore, we find that the gender bias is independent of whether the majority of instructors within a course is female or male. Importantly, this suggests that the bias works against female instructors in general and not only against minority faculty in gender-incongruent areas, e.g., teaching in more math intensive courses.
The gender bias against women is not only present in evaluation questions relating to the individual instructor, but also when students are asked to evaluate learning materials, such as text books, research articles and the online learning platform. Strikingly, despite the fact that learning materials are identical for all students within a course and are independent of the gender of the section instructor, male students evaluate these worse when their instructor is female. One possible mechanism to explain this spillover effect is that students anchor their response to material-related questions based on their previous responses to instructor-related questions.
Monday, September 11, 2017
“We must do better because the current approach isn’t working,” she said.
Christina Hoff Sommers, Protecting Due Process in Sexual Assault Cases on Campus, Chronicle of Higher Ed.
used to wonder what was worse: Republican politicians ignoring women’s issues or Republican politicians talking about them. The recent speech by Secretary of Education Betsy DeVos is a welcome exception: Her address on the need to reform campus sexual-assault procedures was empathetic and judicious. She offered a way forward that should appeal to fair-minded people across political and cultural divides.
"One rape is one too many," she said. But, she added, "One person denied due process is one too many."
She acknowledged the suffering of both victims of sexual assault and those falsely accused of assault: "Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined." Those are non-negotiable principles, and she promised to revamp the current system for adjudicating cases of campus sexual assault, which she called "broken."
That broken system was created by a letter from a little-known public official. No one in the House or Senate voted for it, and no judge reviewed it. The public was not notified in advance and did not discuss it before it was issued. On April 4, 2011, Assistant Secretary of Education Russlyn Ali sent out her now-famous "Dear Colleague" letter to colleges across the country.
The letter advised them to determine guilt in sexual-assault cases by the lowest standard possible — a preponderance of evidence — and to "minimize the burden on the complainant." It said nothing about the rights of the accused. Informal measures for resolving "he said, she said" confrontations were ruled out of order. "In cases involving sexual assault," Ali instructed, "mediation is not appropriate even on a voluntary basis."
Ali thought college administrators were doing too little to protect students from the reported epidemic of sexual violence and harassment on campus. I have argued elsewhere that these reports were exaggerated, and that most college officials did take the problem seriously, but I don’t question her sincerity. I do question her judgment and her right to regulate by fiat. Secretary DeVos was right to say, "Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students."
Colleges were panicked by Assistant Secretary Ali’s "Dear Colleague" letter and rushed to meet the new requirements. They revamped their disciplinary committees and hired Title IX officers to run programs with titles like the Office for Sexual and Gender-Based Dispute Resolution. According to Emily Yoffe, Harvard has 55 full- and part-time Title IX coordinators. Princeton has 41.
Fearing Title IX investigations and loss of federal funding, many colleges set up extrajudicial sex courts, where defendants could be found guilty of a crime even if there was a 49.9 percent chance that they were innocent. At last count, more than 150 lawsuits have been filed since 2011 by students (mostly young men) alleging unfair treatment in a campus sexual-assault proceeding.
See also, prior post, Harvard Law Profs Call for DOE to Revise Title IX Campus Assault Policy
Wednesday, August 30, 2017
Since President Trump took office, one of the most closely watched issues in higher education has been his Education Department’s shifting approach to enforcement of campus sexual-assault policy.
Candice E. Jackson, acting assistant secretary for the department’s Office for Civil Rights, directed her staff to sharply scale back the scope of sexual-violence investigations under the gender-equity law known as Title IX. Her instructions sought to cut down on a backlog of cases that the department said had "exploded" under President Barack Obama
Mr. Trump’s presidency is still young, but signs have emerged already that the department is delivering on that pledge. Sexual-violence investigations are still being opened at a rapid pace — this week, the department acknowledged six new ones, for a total of 350 active cases. But resolutions have grown more frequent, too, with two more announced this week.
o far, 11 sexual-violence cases have been resolved in the Trump era. Here’s what we know about them:
The resolutions are coming at a faster clip.
The civil-rights office is on pace to resolve more sexual-violence cases this year than it did in any other since the department issued its controversial 2011 "Dear Colleague" letter. Last month was especially busy — five cases were resolved in July alone. That’s the most resolutions of any month in the enforcement era marked by the 2011 guidance.
They’re also being delivered more quietly.
After President Obama’s civil-rights office first released its list of Title IX sexual-violence investigations, in May 2014, it became common for the department to announce its resolution agreements in news releases. Those public disclosures have been much less frequent since President Trump took office. Of the 11 investigations resolved in the Trump era, just two of those resolutions — involving Wittenberg University — were announced on the department’s website (in March). As BuzzFeed reported at the time, the department did not give the same treatment to a case involving the University of Alaska system, resolved in February, nor has it done so with a more recent case at the Butte-Glenn Community College District, resolved last month.
The new trend is "administrative closure."
The civil-rights office will administratively close an investigation — which means it issues a closure letter but no findings or resolution agreement — in certain situations, such as when investigations overlap with the actions of other agencies. For instance, OCR will close a complaint if the same party has filed similar allegations with another civil-rights agency or a state or federal court. It will also close a complaint if it receives "credible information" that the allegations have been resolved and that there are no broader, systemic allegations in question. The office may also close a complaint administratively if a complainant withdraws his or her allegations or refuses to cooperate.
The Journal of Legal Education's summer issue features a symposium exploring on campus issues related to sexual harassment, Title IX, and academic policies, including the following articles:
- “Safety and Freedom: Let’s Get It Together” by Hiram E. Chodosh, Matthew Bibbens, Nyree Gray, and Dianna Graves
- “Shame Agent” by Joan W. Howarth
- “Assaultive Words and Constitutional Norms” by Catherine J. Ross
- “Campus Misconduct, Sexual Harm, and Appropriate Process: The Essential Sexuality of It All” by Katharine K. Baker
- “Consensual Sexual Dysphoria: A Challenge for Campus Life” by Robin West
- “A Rising Tide: Learning About Fair Disciplinary Process from Title IX” by Alexandra Brodsky
- “Mapping the Title IX Iceberg: Sexual Harassment (Mostly) in Graduate School by College Faculty” by Nancy Chi Cantalupo and William C. Kidder
- “Trigger Warnings: From Panic to Data” by Francesca Laguardia, Venezia Michalsen and Holly Rider-Milkovic
Tuesday, August 29, 2017
Four members of the Harvard Law School faculty have called on the U.S. Department of Education to revise the Obama Administration’s policies enforcing Title IX in matters of sexual harassment and sexual assault on college and university campuses.
The four scholars — Janet Halley, Jeannie Suk Gersen ’02, Elizabeth Bartholet ’65, and Nancy Gertner — have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were among the 28 Harvard Law School professors who published a statement in the Boston Globe on Oct 15, 2014, criticizing Harvard University’s sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”
On August 21, in a memo entitled “Fairness for All Students under Title IX,” the four scholars urged the Department of Education to adopt what they describe as “an agenda of fairness for all students, accusers and accused.”
Said Jeannie Suk Gersen: “In recent years the Education Department has pressured colleges and universities to adopt overbroad definitions of wrongdoing that are unfair to both men and women, and to set up procedures for handling complaints that are deeply skewed against the accused and also unfair to accusers.”
Janet Halley said: “To fully address campus sexual assault, the college definitions of violations and processes need legitimacy. Now is the time to build in respect for fairness and due process, academic freedom, and sexual autonomy.”
The memorandum is available here:
Wednesday, August 23, 2017
Deborah Brake, Back to Basics: Excavating the Sex Discrimination Roots of Campus Sexual Assault, Tenn. J. Race, Gender & Soc. Justice (2017)
This article, written for a symposium devoted to the legacy of celebrated Lady Vols coach, Pat Summit, connects the dots between Title IX’s regulation of campus sexual assault and the law’s overarching goal of expanding women’s access to leadership. Beginning with a discussion of how sexual objectification and harassment obstruct women’s paths to leadership, the article situates campus sexual assault as an important part of Title IX’s overarching agenda to promote equal educational opportunity. Although liberal feminism and dominance feminism are often discussed as competing theoretical frames for understanding and challenging gender inequality, they are best seen as complementary and mutually reinforcing strategies for dislodging the social practices that separate women from power. Sexual assault is just such a practice, and sex discrimination law has long recognized it as a form of sex discrimination. And yet, the current controversy over Title IX’s approach to campus sexual assault has become mired in the weeds of procedural discourse and de-gendered narratives of alcohol and campus partying culture, obscuring the gendered reality – and gender inequality – at the root of the problem. This article traces the evolution of Title IX’s current framework for regulating institutional responses to campus sexual assault with the goal of shoring up the sex discrimination roots underlying that framework. It begins this work by acknowledging that neither courts nor the enforcing agency has fully explained how and why the requirements in the Office for Civil Rights 2011 Dear Colleague Letter (DCL) stem from the statutory ban on sex discrimination. It proceeds to sketch the contours of the sex discrimination grounding for the principles in the DCL, moving beyond sexual assault itself as a gendered practice to focus on how gender scripts and rape myths affect institutional responses to it. The article concludes with a call for further work connecting the statutory ban on sex discrimination to the DCL’s specific requirements for institutional responses to campus sexual assault.
Friday, July 14, 2017
We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism
As law schools are implementing the new ABA Standards, these standards call for more formative assessment throughout the semester and at least six credits of experiential learning courses. When these revised standards were initially proposed and the drafters sought feedback, the proposed standards raised a flurry of critiques relating to academic freedom, resource strains, and existing competencies in implementation. After adoption, a responsive and helpful series of conferences, listserv posts, and scholarly activities emerged to address concerns and critiques.
In a recent article titled Experiential Learning in the Era of Donald Trump published in the Duquesne Law Review, however, I highlight one concern that was missing from the initial debate and discussion surrounding successful implementation of these assessment and experiential requirements. The missing component was the political peril (and opportunity) that faculty would face in implementing these requirements in the context of political divisiveness and discord. Law schools are notably implementing these pedagogical reforms in a time of great political division. From the divisive presidential election, to police-community relations, to a worldwide refugee crisis, political discourse is contentious, polarized, and fraught with both risk and opportunity. University campuses have particularly been the sites of difficult discussions about race, politics, gender, and the very role of academic communities in these conversations.
Students and faculty alike seem less capable than ever to manage these complex dynamics, yet true experiential learning and assessment requires us to move into the “eye of the storm” for courses with politically grounded content. This includes courses on gender and the law, feminist theory, reproductive rights, legislation, race and the law, sexuality and the law, and many other topics that may be taught by readers of this blog. How do we as educators simulate for students a real-world lawyering context without stepping on landmines in our reviews, reputations, and careers? The stakes are high. In this modern reality, both faculty and students alike may not be comfortable, prepared, or equipped to navigate these challenges without savvy techniques and methods. This is further complicated when layered on the reality that well-documented gender bias already sits in student and faculty evaluation systems.
This is a pedagogical conversation that gender faculty should lead and engage. In the article, I preliminarily identify three components to a modern experiential learning course addressing topics of political relevance, such as gender and the law courses: (1) student-driven content, instead of faculty-driven content; (2) consistent and holistic student engagement, instead of sporadic or sequential engagement; and (3) vertically and horizontally structured feedback. Critically though, neither the underlying article nor this blog post pretend to have the answers to these questions, but rather, they hope to spark ongoing discussion and idea-sharing. We also have an opportunity in front of us to transform our students into thoughtful problem-solvers and savvy lawyers while advancing the pedagogy of gender courses in tough political times.
Tuesday, July 11, 2017
Merle Weiner, Legal Counsel for Survivors of Campus Sexual Assault, 29 Yale J. L & Feminism 123 (forthcoming 2017)
This Article argues that survivors of campus sexual violence often need legal counsel before, during, and after campus disciplinary proceedings. Lawyers have been overlooked as a critical resource for survivors, and this omission means that most survivors do not receive essential services for addressing their victimization and furthering their recovery. This Article sets forth the reasons why institutions of higher education should make available free legal services to their students who are victimized, and addresses the reasons why institutions might be hesitant to do so. The Article then argues that potential institutional concerns do not relieve colleges and universities of their existing legal obligation to provide some survivors with free legal services. This Article suggests that schools would best meet their legal obligation by providing all survivors with free legal services. The Article then puts its theoretical discussion into perspective by describing the University of Oregon’s unique on-campus program that provides free legal counsel to student survivors. The Article concludes by recommending that the Office for Civil Rights clarify campuses’ legal obligation to provide free attorneys for some survivors and by suggesting that campuses offer all survivors this service. The result would be a better campus response to sexual violence, a decline in the overall rate of post-assault traumatic distress, a likely reduction in the rate of campus sexual violence, and greater progress toward the goal of gender equality.