Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, April 10, 2018

Sixth Circuit Recognizes Possible Title IX Erroneous-Outcome Claim in Campus Sexual Assault

Justia Opinion Summary: Doe v. Miami U

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. 

April 10, 2018 in Courts, Education, Violence Against Women | Permalink | Comments (0)

Tuesday, April 3, 2018

Symposium: Women and Power in the Academy

Symposium: The Awakening--Women and Power in the Academy

"When it comes to silencing women," writes Mary Beard, "Western culture has had thousands of years of practice." Academe is no exception. A recent conference at Stanford University featured 30 speakers — all of them men, all of them white. The incident sparked ridicule and outrage, as well as a sense that higher education is facing a reckoning. Over the past few months, amid mounting revelations of sexual harassment, The Chronicle Review asked presidents and adjuncts, scientists and humanists, senior scholars and junior professors to take on the theme of women and power in academe. Here are their responses.

 

 

April 3, 2018 in Education | Permalink | Comments (0)

Friday, March 23, 2018

How Women's Colleges are Handling Transgender Applicants

"What it Means to Be a Woman is Not Static": How Women's Colleges are Handling Transgender Applicants

Back in the late 1800s, when "brain fever" was used as an argument for why women shouldn’t receive a formal education, Mount Holyoke College was among the first to offer an all-female undergraduate program.

But a lot has changed since the first women’s colleges were founded — today there are nearly 40 — and many of them have been grappling with one specific aspect of that identity in recent years: How should transgender applicants be considered?

Propelled by increasing social pressures and Title IX guidelines issued during the Obama administration, many of these institutions have rewritten their admissions policies to change and clarify who will be counted.

Mount Holyoke, for example, now says students who self-identify as women can be considered for admission, according to a policy statement: "We recognize that what it means to be a woman is not static. Traditional binaries around who counts as a man or woman are being challenged by those whose gender identity does not conform to their biology."

The college further emphasizes its commitment as a historic place for women, partly founded on the motto "Go where no one else will go, do what no one else will do."

March 23, 2018 in Education, Gender | Permalink | Comments (0)

Monday, March 19, 2018

Getting Rid of Student Evaluations due to Proven Gender Bias

Kristina Mitchell, Student Evaluations Can’t Be Used to Assess Professors .

Our research shows they're biased against women.  That means using them is illegal.

***

new study I published with my co-author examines gender bias in student evaluations. We looked at the content of the comments in both the formal in-class student evaluations for his courses as compared to mine as well as the informal comments we received on the popular website Rate My Professors. We found that a male professor was more likely to receive comments about his qualification and competence, and that refer to him as “professor.” We also found that a female professor was more likely to receive comments that mention her personality and her appearance, and that refer to her as a “teacher.”

 

The comments weren’t the only part of the evaluation process we examined. We also looked at the ordinal scale ratings of a man and a woman teaching identical online courses. Even though the male professor’s identical online course had a lower average final grade than the woman’s course, the man received higher evaluation scores on almost every question and in almost every category.

 

This is frustrating, perhaps more so given that we certainly are not the first study to look at the ways that student evaluations are biased against female professors. But we might be among the first to make the case explicitly that the use of student evaluations in hiring, promotion, and tenure decisions represents a discrimination issue. The Equal Employment Opportunity Commission exists to enforce the laws that make it illegal to discriminate against a job applicant or employee based on sex. If the criteria for hiring and promoting faculty members is based on a metric that is inherently biased against women, is it not a form of discrimination?

 

It’s not just women who are suffering, either. My newest work looks at the relationship between race, gender, and evaluation scores (initial findings show that the only predictor of evaluations is whether a faculty member is a minority and/or a woman), and other work has looked at the relationship between those who have accented English and interpersonal evaluation scores. Repeated studies are demonstrating that evaluation scores are biased in favor of white, cisgender, American-born men.

 

This is not to say we should never evaluate teachers. Certainly, we can explore alternate methods of evaluating teaching effectiveness. We could use peer evaluations (though they might be subject to the same bias against women), self-evaluation, portfolios, or even simply weigh the evaluation scores given to women by 0.4 points, if that is found to be the average difference between men and women across disciplines and institutions. But until we’ve found a way to measure teaching effectiveness that isn’t biased against women, we simply cannot use teaching evaluations in any employment decisions in higher education.

March 19, 2018 in Education, Equal Employment, Law schools | Permalink | Comments (0)

Does Title IX Protect Campus Visitors from Sexual Assault? The Larry Nasser Conundrum

Hannah Brenner, A Title IX Conundrum in the Lower Courts: Are Campus Visitors Protected from Sexual Assault?

Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible as of late by the media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The United States Supreme Court has interpreted the law to contain a private implied right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. Over the past several years, a handful of district courts in the United States have rendered opinions that effectively refined the class of individuals who are entitled to protection under Title IX. These cases create two separate classes of individuals with different rights: students and non-students. Two cases in particular, K.T. v. Culver-Stockton College and Doe v. Brown University, both held that non-students who were sexually assaulted on campus by students enrolled at that university were not entitled to bring a Title IX cause of action for damages against the school for its deliberate indifference to their complaints of sexual assault. The Doe case is currently on appeal to the First Circuit and the Eighth Circuit dismissed the K.T. without ruling on this question of standing. Even more recently, in the sex abuse scandal involving a Michigan State University physician who was convicted of assaulting dozens of girls, athletes, and students, lawyers defending the university argue that the subset of victims who were not enrolled students (but who were treated by the doctor on campus) lack standing to sue under Title IX. There is growing evidence to suggest that these cases represent an emerging development in the evolution of Title IX jurisprudence. This article seeks to add to the ongoing and complex Title IX conversation by exposing a novel, yet very real conundrum: to whom does Title IX apply? Should students who are officially enrolled in an institution be safer than those who are not? Are non-students who interact within the university context simply left out of the spectrum of Title IX protections? And what sort of campus safety dynamic is created if we distinguish between kinds of victims in terms of extending protections of the federal law? After extensive analysis, the article concludes that creating safer campus communities probably demands an extension of rights to individuals who engage in the programs and activities of a university, regardless of their status as students.

March 19, 2018 in Education, Violence Against Women | Permalink | Comments (0)

Monday, March 5, 2018

TBT: What Feminist Pedagogy has Wrought

Zipporah Wiseman, What Feminist Pedagogy has Wrought,  11 American J. Gender, Social Policy & Law 963 (2003)

As the day progressed, and I listened to each of your papers, I was struck more and more by the realization that you are part of a revolution in legal education. When I began teaching in 1973--no, twenty years before that--when I went to law school, what you are doing now was unimaginable. Legal education, in mid-century, in the huge majority of law schools, comprised studying and parsing appellate decisions. A law school class consisted of an authoritarian male in the front of the classroom who led us, the poor hapless students, overwhelmingly male, through a series of questions, usually focused on one student, guiding us to the one right answer. We might be lucky enough to guess the answer. But the professor was the only one who knew it. Thus he (it was always a he) demonstrated how, in his all-wise and all-knowing authority he guided us on the right path to the right answer through the exercise of pure reason.

 
In her book [Battered Women and Feminist Lawmaking (2000)], Liz Schneider describes the model of pedagogy that she, with the assistance of Sarah Buel, initiated in her course on battered women at Harvard Law School in 1991. That course, and the ones all of you teach, are the revolution. The thought that one could teach law as a process of fostering social change and even more radically, change in the lives of women, was a totally foreign notion several decades ago. Significantly, in my view, none of you has spent any time discussing your pedagogical method. That is simply not an issue for you anymore. This is what you do and how you do it. One powerful way is you tell stories. Brenda Smith gave us a wonderful example of feminist pedagogy. I would guess that we will all remember her story long after we have forgotten everything else that has been said here.* * *  You are also changing the culture of law schools as well as the larger culture.
 
And when the day comes when our male colleagues stop calling feminists' courses “soft” law and their own courses “hard” law--which they do with nary a glimmer of self consciousness or awareness of the sexual connotation--then we will have in fact revolutionized the law schools. I have, however, no sense that this, or any other similar characterization of your work, affects your consciousness of what you are doing or achieving, or what you are fighting for or about. Okay. That's their problem.
 
I wanted to tell you that I am walking on cloud nine after listening to all of you. I want to congratulate you and tell you that you have brought a message of hope.

 

March 5, 2018 in Education, Law schools, Theory | Permalink | Comments (0)

Wednesday, February 28, 2018

Minnesota State Universities Adopt Affirmative Consent Policy

Minnesota State Colleges, Universities Adopt "Yes Means Yes" Policy for Sex

Students and staff could be punished if they fail to obtain affirmative consent for sex through “words or clear, unambiguous action” under a policy change approved Wednesday by the Minnesota State Board of Trustees.

 

The policy applies to some 375,000 students at the state-run system’s 30 colleges and seven universities, as well as faculty and staff and anyone who has sex on campus.

 

“As an English teacher, I just never thought I’d see a sentence that included sexual activity and the words clear and unambiguous in the same sentence, but you know, progress,” trustee Louise Sundin joked.

 

More than a thousand U.S. colleges, including the University of Minnesota and every college in California and New York, have adopted “affirmative consent” language in recent years.

 

It puts the onus on the partner initiating sex to obtain clear consent rather than on the receiving partner to object — “Yes means yes” instead of “No means no.”

February 28, 2018 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, February 27, 2018

Trying Campus Rape in a Court of Law

NYT, At Yale, Trying Campus Rape in a Court of Law

There is no log of how many campus rape cases go to trial each year, but experts and victim advocates agree that the number is vanishingly small. The Department of Justice estimates that between 4 percent and 20 percentof female college students who are raped report the attack to law enforcement. Of reported cases, only a fraction lead to arrests, let alone a trial.

 

The one at Yale, then, might seem like a perfect case to test the fiercely debated question of whether college rape accusations are best handled by internal university panels or by law enforcement.***

 

“This isn’t about which institution is better,” said Janet Halley, a Harvard Law School professor who has written about the legal implications of Title IX enforcement. “It’s about what happens when you put two institutions into the same process and they have different rationalities, different institutional cultures — but above all different rights attached to them.

 

“This is oil and water flowing in together.” ***

 

The debate around who should handle investigations seems unlikely to fade. Even as Ms. DeVos has permitted universities to more closely align their hearing processes with those the criminal justice system, she has also retained the requirement that schools investigate claims of sexual misconduct, rather than simply hand them off to law enforcement.

February 27, 2018 in Courts, Education, Violence Against Women | Permalink | Comments (0)

Wednesday, February 14, 2018

Male Speakers Vastly Outnumber Female Speakers in College Department Talks

On College Campuses, Male Speakers Vastly Outnumber Female Speakers, Report Finds

Top college campuses were far more likely to host male professors to speak in department talks than female professors, according to new research led by a Rice University graduate student.

 

The scholars tracked speakers at 3,652 talks in the 2013-14 academic year in biology, bioengineering, history, political science, psychology and sociology departments at top-ranked schools.

 

Nearly 70 percent of those talks were delivered by male professors, the research found, even as a random sampling of professors appeared equally motivated to deliver talks, regardless of gender. The authors also controlled for higher rates of men than women in higher education.

 

"Different preferences between men and women did not seem to be responsible for the gender discrepancy in colloquium talks," said Christine Nittrouer, a psychology graduate student at Rice who led the research, in a press release.

 

Talks were more likely to include a female speaker when a female chair organized the event, the research found.

February 14, 2018 in Education | Permalink | Comments (0)

Thursday, February 1, 2018

Being Mary Beard

Guardian, The Cult of Mary Beard

I've found myself a part of the cult of Mary Beard, impressed by her model of how to be a professor.  

Everyone who has met Beard seems to have a story about encountering her for the first time – usually involving her rigorous intellect, her total lack of formality, and her sense of mischief.

 

In public, in private and in her academic writing she is skeptical, wary of consensus, the kind of person who will turn any question back on itself and examine it from an unexpected angle. She is not afraid to take apart her own work:

 

The learned but approachable figure you see on TV translating Latin inscriptions, carving up a pizza to explain the division of the Roman empire, or arguing about public services on Question Time, is precisely the Beard you encounter in private, except that in real life, she swears magnificently and often.

 

Beard is a celebrity, a national treasure, and easily the world’s most famous classicist. Her latest book, Women and Power, about the long history of the silencing of female voices, was a Christmas bestseller on both sides of the Atlantic. In the eight years since her debut TV documentary, Pompeii, she has conquered the small screen. She is one of a trio of presenters who will, in March, front Civilisations – a new, big-budget version of Kenneth Clark’s 1969 series Civilisation, the most revered cultural TV series in the BBC’s history.

 

As recently as a decade ago, it would have seemed unlikely, even outlandish, that a middle-aged classics don, her appearance a million miles away from the groomed perfection expected of women in the public sphere, would end up so famous and, by and large, so loved.

 

Since then, Beard has become a standard-bearer for middle-aged women, and beloved by the young – indeed, by anyone who wants to be seen in terms of their ideas, not their looks; anyone who think it’s cool to be smart; and by those who relentlessly ask questions and never reject a contrary opinion out of hand. Beard’s intellectual style, which suffuses all her scholarship – a commitment to rigorous scepticism that refuses to be cynical – has made her a model for those who worry that the shouting and bullying of the digital world make reasoned political debate impossible.

 

Her career stands, in a way, as a corrective to the notion that life runs a smooth, logical path. “It’s a lesson to all of those guys – some of whom are my mates,” she said, remembering the colleagues who once whispered that she had squandered her talent. “I now think: ‘Up yours. Up yours, actually.’ Because people’s careers go in very different trajectories and at very different speeds. Some people get lapped after an early sprint.” She added softly, with a wicked grin: “I know who you are, boys.”

 

Beard describes herself as academically “flighty”. Instead of burrowing into one small area – a single Latin author, for example, or Roman religion in a given period – she has darted between topics; and, perhaps because of her gregarious nature, has preferred those topics not to be especially obscure. ...This eclecticism has given her the means to range widely through the ancient world in her public work. So has the fact that her scholarship has been relatively mainstream, rather than at the bleeding edge of academic fashion. 

Her full story is well worth the read.

February 1, 2018 in Education, Work/life | Permalink | Comments (0)

Monday, January 29, 2018

Dept of Education Sued for Reversal of Policy for Campus Sexual Assault

Betsy Devos Sued for Weakening Sexual Assault Reporting Protections for Sexual Assault

Three civil rights organizations have filed a lawsuit against Education Secretary Betsy DeVos for rolling back protections for students who report sexual assault.

 

SurvJustice, which helps university women report assault, joined with Equal Rights Advocates and the Victim Rights Law Center to file the suit, which argues that the changes are discriminatory, violate federal law and are having a “chilling effect” on assault reports. In addition, schools are either not responding to the fewer complaints or not taking action as quickly, according to the suit.

 

The suit was filed Thursday in the Northern District of California against DeVos, the Department of Education and Candice Jackson, acting assistant secretary for civil rights at the department.

 

The suit argues that DeVos and Jackson hold “discriminatory stereotypes” about women and are convinced that many who report sexual abuse or assault “misunderstood a harmless romantic advance,” are lying or later regretted a “consensual sexual encounter.” 

This “discriminatory mindset not only motivated decision makers at the department, it flows from the top of the Executive Branch,” the complaint adds, referring to President Donald Trump.

 

DeVos issued a new policy in September increasing protections for those accused of sexual assault in kindergarten through college. She said that the Obama administration hadn’t ensured the rights of the accused and moved to adopt what she termed “fundamental fairness.” Shortly before the changes, DeVos called the 2011 Obama-era policies addressing campus sexual assault “shameful” and “wholly un-American.” 

 

She raised the standard of proof for accusers from a “preponderance of evidence” to “clear and convincing evidence.” The new guidelines also allowed even cases of sexual assault to be settled by mediation.

Education Secretary Betsy DeVos is Sued Over Sexual Assault Guidance

Victims’ rights and women’s rights groups sued Education Secretary Betsy DeVos on Thursday, saying that rules that she issued last year to guide campuses on how to manage sexual assault complaints violated federal law and discriminated against accusers.

 

Three organizations, represented by prominent civil rights litigators, filed a complaint in the Northern District of California outlining ways that the guidance issued by Ms. DeVos in the fall had had a “chilling effect” on campus sexual assault investigations.

 

Since the guidance was issued, the groups charged, accusers have been less inclined to pursue sexual assault cases, and colleges have demonstrated a lack of urgency and clarity in pursuing them.

 

In September, Ms. DeVos rescinded Obama-era guidance on how colleges should manage the investigations under Title IX, the federal law that prohibits sex discrimination and governs the rules on investigating sexual assault on campus.

January 29, 2018 in Education, Violence Against Women | Permalink | Comments (1)

Tuesday, January 23, 2018

Study Finds Female Professors Experience More Work Demands and Special Favor Requests

Dancing Backwards in High Heels: Study finds female professors experience more work demands and special favor requests, particularly from academically "entitled" students.

Numerous studies have found that female professors shoulder a disproportionate amount of service work compared to their male peers. Research also suggests that students hold female instructors to a different standard than they do male faculty members, especially when it comes to personality. Women are expected to be more nurturing and are perceived harshly when they’re not, for example.

 

Both sets of findings matter because they have negative implications for women’s professional success: service is generally the least valued criterion in the tenure and promotion triad of research, teaching and service, and students who view female professors as unfriendly may rate their teaching poorly as a result.

 

Both lines of inquiry also intersect in a new paper, which says that students request more special favors and friendship behaviors from their female professors than they do of men -- resulting in more actual work demands and emotional labor. The paper also suggests that "academically entitled" students more strongly expect that women will grant their favor requests than will male professors, and that they react strongly when women deny those requests.

 

“If students set higher standards for their female professors, it is more difficult for female professors to meet student expectations, perhaps resulting in poorer course evaluations, and putting more work demands and emotional strain on female professors,” lead author Amani El-Alayli, an associate professor of psychology at Eastern Washington University, said Tuesday. “Female professors may consequently be more likely to experience burnout and low job satisfaction than their male counterparts.”

 

All of this could interfere with female professors' likelihood of success within academe, El-Alayli said. If women feel more emotional strain, spend more time dealing with student requests, have more disgruntled students, get lower course evaluations and have less time for research activities or class preparation because of the extra demands placed on them, she added, “then their chance of getting promoted may be reduced.”

 

The paper, published in Sex Roles, is called “Dancing Backwards in High Heels: Female Professors Experience More Work Demands and Special Favor Requests, Particularly From Academically Entitled Students.” (“Dancing backwards” is a reference to a comment once made about Ginger Rogers doing everything her onscreen partner Fred Astaire did, just backward, in high heels.) ***

 

In any case, Misra argued, the root of the problem is that people view women as “helpers” and men as “doers,” which she “has a tremendously negative effect on the careers of academic women, who either engage in helping behaviors -- and spend less time on more valued work -- or do not, and are viewed as selfish or not team players, even when their men colleagues are similarly less likely to engage in helping behavior but face no consequences.”

January 23, 2018 in Education | Permalink | Comments (0)

Student Evaluations are Significantly Biased Against Female Instructors

Student Evaluations of Teaching are not Just Unreliable, But Significantly Biased Against Female Instructors

But to what extent do SET measure what universities expect them to measure—teaching effectiveness?

 

To answer this question, we apply nonparametric permutation tests to data from a natural experiment at a French university (the original study by Anne Boring is here), and a randomized, controlled, blind experiment in the US (the original study by Lillian MacNell, Adam Driscoll and Andrea N. Hunt is here). We confirm and extend the studies’ main conclusion: Student evaluations of teaching (SET) are strongly associated with the gender of the instructor. Female instructors receive lower scores than male instructors. SET are also significantly correlated with students’ grade expectations: students who expect to get higher grades give higher SET, on average. But SET are not strongly associated with learning outcomes.

***

 

Why don’t universities use better methods? SET are the familiar devil. Habits are hard to change. Alternatives (reviewing teaching materials, peer observation, surveying past students, and others) are more expensive and time-consuming, and this cost falls on faculty and administrators rather than on students. The mere fact that SET are numerical gives them an un-earned air of scientific precision and reliability. And reducing the complexity of teaching to a single (albeit meaningless) number makes it possible to compare teachers. This might seem useful to administrators, but it is a gross over-simplification of teaching quality.

 

The sign of any connection between SET and teaching effectiveness is murky, whereas the associations between SET and grade expectations and between SET and instructor gender are clear and significant. Because SET are evidently biased against women (and likely against other underrepresented and protected groups)—and worse, do not reliably measure teaching effectiveness—the onus should be on universities either to abandon SET for employment decisions or to prove that their reliance on SET does not have disparate impact.

January 23, 2018 in Education, Gender | Permalink | Comments (0)

Monday, January 22, 2018

The Need for Gender Quotas in Irish Higher Education Institutions

Dr. Shivaun Quinlivan, Disrupting the Status Quo? Discrimination in Academic Promotions, 14 Irish Employment J. 68 (2017)

In June 2016 the HEA Report of the Expert Group: HEA National Review of Gender Equality in Higher Education Institutions (Gender Equality Review p.11) reported and stated that there was a need for “radical action” without which they could not guarantee that Higher Education Institutes (HEIs) would “ever be free of gender inequality”. This report was commissioned in the aftermath of the now high profile case of Sheehy Skeffington v National University of Ireland Galway (DEC-E2014-078) (hereinafter NUI Galway) and the controversy surrounding this decision. This article addresses the decision in Sheehy Skeffington v NUI Galway, the fallout from that decision and the recommendations of the Gender Equality Review as regards recruitment and promotion. In particular, this article looks at that recommendation considered most radical, yet also considered necessary, namely the introduction of mandatory gender quotas. This article seeks to assess why it was deemed necessary for the Expert Review Group to recommend the introduction of mandatory quotas and to posit the question: what happens if the HEIs do not comply with that recommendation?

January 22, 2018 in Education, Equal Employment, International | Permalink | Comments (0)

Title IX at 45: Equal Treatment of Students in High School School Athletic Programs

Susan Eckes, Title IX at 45: Equal Treatment of Students in High School Athletic Programs, 25 Amer. J. Gender, Social Policy & Law 391 (2017)

It is the 45th anniversary of Title IX of the Education Amendments of 1972, and some high schools continue to struggle with their compliance in athletics by showing a preference for boys’ athletic programs. A 2015 report issued by the U.S. Department of Education’s Office for Civil Rights (“OCR”) indicated that there were 3,609 complaints related to athletics in 2013-2014. While much of the litigation in this area has traditionally addressed high school accommodation claims, more recent litigation has begun to also focus on equal treatment claims that might include scheduling or facility disparities involving athletics. For example, in April 2016, ten female softball players sued under Title IX in federal court in Portland, Oregon. In this complaint, the plaintiff’s sought injunctive relief to remedy the inequities that exist between the softball and baseball team facilities. Others have filed complaints with the U.S. Department of Education (“ED”) regarding similar inequalities. In Canton, Ohio a father filed a complaint with the ED arguing that the girls’ softball team did not have equitable facilities when compared to those of the boys’ team. Specifically, the girls went eight seasons without a home field whereas the boys only went two seasons without a home field. Likewise, in Lexington, South Carolina parents filed a complaint with the ED related to unfairness involving facilities between the boys’ baseball team and girls’ softball team.

 

In recent years, several courts have addressed these issues regarding the multitude of inequalities between male and female sports. In these lawsuits, female plaintiffs or their parents typically allege violations of Title IX of the Education Amendments of 1972 and/or the Equal Protection Clause of the Fourteenth Amendment when the athletic facilities are inadequate or the athletic team’s schedules are inopportune.10 Because K-12 athletic programs have received increased scrutiny from the courts in recent years, this article explores litigation involving high school athletic programs that focus on disparities with facilities and schools in an effort to highlight the existing legal obligations of school districts.11 It concludes with some suggestions for school officials to create more parallel athletic environments.

January 22, 2018 in Education, Sports | Permalink | Comments (0)

Wednesday, January 10, 2018

10th Circuit Rejects First Amendment Challenge by Student Expelled for Social Media Comments after Sexual Misconduct

Yeasin v. Durham, 10th Cir., Jan. 5, 2018

Dr. Tammara Durham, the Vice Provost for Student Affairs at the University of Kansas, expelled Navid Yeasin from the university after finding that by physically restraining and later tweeting indirectly but disparagingly about his ex-girlfriend, he had violated the university's student code of conduct and sexual-harassment policy. After Yeasin sued Dr. Durham in Kansas state court, the university reinstated him. Yeasin then sued Dr. Durham in federal court, asserting a claim under 42 U.S.C. § 1983 based on his First Amendment right to freedom of speech and his Fourteenth Amendment right to substantive due process. He argued that Dr. Durham had violated these rights when she expelled him for his off-campus online speech. Dr. Durham successfully moved to dismiss Yeasin's complaint based on qualified immunity. Yeasin appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

 

Yeasin and A.W. dated from the fall of 2012 through June 2013. On June 28, 2013, Yeasin physically restrained A.W. in his car, took her phone from her, threatened to commit suicide if she broke up with him, threatened to spread rumors about her, and threatened to make the University of Kansas's “campus environment so hostile, [that she] would not attend any university in the state of Kansas.” .

 

For this conduct, Kansas charged Yeasin with criminal restraint, battery, and criminal deprivation of property. On July 25, 2013, A.W. sought and obtained a protection order against Yeasin from the Johnson County District Court. The order was “entered by consent without any findings of abuse.”  In August 2013, Yeasin entered a diversion agreement with the state on these charges. Yeasin v. Univ. of Kansas, 360 P.3d 423, 424 (Kan. Ct. App. 2015).

 

That same month, A.W. filed a complaint against Yeasin with the university's Office of Institutional Opportunity and Access (IOA), alleging that Yeasin had sexually harassed her.... Then, “[a]fter considering the Johnson County District Court's final protection from abuse order,” the IOA decided to issue Yeasin a no-contact order. 

 

The no-contact order informed Yeasin that the university had “received information concerning an allegation that [he] may have violated the University's Sexual Harassment Policy in interactions with University of Kansas student [A.W.].” The letter also put Yeasin on notice that he was “prohibited from initiating, or contributing through third-parties, to any physical, verbal, electronic, or written communication with [A.W.], her family, her friends or her associates.” 

 

After Yeasin received the no-contact order, he tweeted the following messages on August 15, August 23, and September 5 . . . .  On September 6, 2013, Brooks e-mailed Yeasin the following warning: While your August 23rd tweet does not specifically state the name of your ex-girlfriend, this communication is in violation of the No Contact Order. I am writing to you to clarify that any reference made on social media regarding [A.W.], even if the communication is not sent to her or [does not] state her name specifically, it is a violation of the No Contact Order.

 

All told, Yeasin posted fourteen tweets referring to A.W. without specifically naming her; of these, three were posted after the IOA e-mailed Yeasin and told him to stop.

 

On October 7, 2013, the IOA issued an investigative report concluding that Yeasin had sexually harassed A.W. in violation of university policy by physically restraining her during the June 28, 2013 incident and by posting the fourteen tweets....

 

Dr. Durham said her decision was based on several facts supported by the preponderance of the evidence, such as the Johnson County protection order and A.W.'s hearing statement that “her grades had slipped significantly during the summer because of the emotional toll her interactions with Mr. Yeasin had taken on her.” Dr. Durham further relied on A.W.'s statement to the hearing panel that her relationship with Yeasin had “affected her day-to-day on-campus activities, since she [couldn't] enter public campus places without receiving glares and remarks from Yeasin's friends telling her she needs to leave and that her presence is unwanted.”  

 

On these bases, Dr. Durham found that Yeasin's June 28, 2013 conduct and his tweets were “so severe, pervasive and objectively offensive that it interfered with [A.W.]'s academic performance and equal opportunity to participate in or benefit from University programs or activities.” She found that his tweets violated the sexual-harassment policy because they were “unwelcome comments about [A.W.]'s body.” And she found that his conduct “threatened the physical health, safety and welfare of [A.W.], making the conduct a violation of Article 22, A. 1 of the Code.” 

 

As a result of his conduct, Dr. Durham decided to expel Yeasin from the university and ban him from campus. 

 

 Yeasin contested his expulsion in Kansas state court. The court set aside Yeasin's expulsion, reasoning that the hearing panel's findings, adopted by Dr. Durham, “were not supported by substantial evidence.”  The court also determined that “KU and [Dr.] Durham erroneously interpreted the Student Code of Conduct by applying it to off-campus conduct.” 

 

DISCUSSION

 

Yeasin's case presents interesting questions regarding the tension between some students' free-speech rights and other students' Title IX rights to receive an education absent sex discrimination in the form of sexual harassment. Department of Education Office for Civil Rights Dear Colleague Letter on Sexual Violence (OCR Sexual Violence DCL), April 4, 2011 (:Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.”). But even if Yeasin could show that Dr. Durham violated his First Amendment rights, we conclude that he has failed to show a violation of clearly established law. We don't decide whether Yeasin had a First Amendment right to post his tweets without being disciplined by the university.

January 10, 2018 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, January 9, 2018

Study Finds Women Professors Get More Grief from Students

Female Professors Get More Grief From Students, Study Finds

Research from Eastern Washington University has found that women working in education are more often requested to give extensions, boost grades and be more lenient when it comes to classroom policy.

 

"I always found it odd that students would sometimes have emotional responses to me simply enforcing my own policy, and I always wondered why that was," said Amani El-Alayli, a psychology professor at Eastern Washington University and the study's lead author.

 

She said standard policies like not sending PowerPoint slides to students, denying retests and not including extra credit or grade-boosting projects would be met with irritation or persistent nagging.

 

"Students wouldn't take no as an answer … I always suspected that gender could play a role, and it seems that maybe it does," El-Alayli told Early Edition host Stephen Quinn.

 

Students turned to their female professors expecting favours, and the effect of the requests seemed to take an emotional toll on top of adding to their workload.

 

Overall, El-Alayli found that more is expected from female professors but evidence from the students who participated in the study suggests gender bias isn't a conscious decision.

 

"We believe that it's because women in general are expected to be more empathetic, more nurturing, more likely to be helpers, to assume a nurturing role."

 

"People generally have that perception of women, and they also have that expectation of women, so we think that that translates into the classroom as well."

 

This means more hours spent in the office and more time sifting through emails, even if requests aren't granted.

January 9, 2018 in Education, Gender | Permalink | Comments (0)

Thursday, January 4, 2018

German Institute Creates Women-Only Tenure-Track Positions

Max Plank Institutes Create Research Positions Which Only Women May Apply

Germany’s Max Planck Society of research institutes has launched a women-only program of tenure-track positions to improve its gender balance and stop rivals poaching its best female scientists.

 

The Lise Meitner excellence program, named after the pioneering early-20th-century physicist, is one of several women-only hiring initiatives that some observers believe are becoming more common while the proportion of women in top research positions remains stubbornly low.

 

Backed by more than 30 million euros ($35.5 million), the society will create up to 10 five-year research group leader positions annually for the next four years. Unlike the network’s previous women-only initiative to recruit group leaders, which ended in 2015, these positions will be on the tenure track, meaning that recipients get the chance to make their positions permanent at the end of the period.

 

Grietje Molema, president of the Dutch Network of Women Professors and a professor at the University of Groningen, said that women-only programs were getting more common in Europe and called the move by Max Planck a “good step forward.”

“Affirmative action” was an “essential part” of tackling the underrepresentation of women in research, she said.

The concern is if these positions become the only positions for which women are practically considered.

January 4, 2018 in Education | Permalink | Comments (0)

Tuesday, December 19, 2017

Men Invited to Give Twice as Many Academic Talks as Women--and its not Because Women Turn them Down or That There Aren't Enough Qualified Women

Women are Invited to Give Fewer Talks than Men at Top US Universities

Colloquium talks, where academics are invited to discuss their research, give speakers a chance to publicize their work, build collaborations with new colleagues, and boost their reputations. The talks can lead to promotions or job offers. They are big opportunities. But as Hebl’s student Christine Nittrouereventually found, they are opportunities that are predominantly extended to men.

 

Nittrouer and her team scanned the websites of the top 50 U.S. universities, as ranked by U.S. News, to build a database of every colloquium speaker from six departments: biology, bioengineering, political science, history, psychology, and sociology. They chose those six to represent a breadth of disciplines, and to exclude departments with either a very low or very high proportion of women. And they found that men gave more than twice as many talks as women: 69 percent versus 31 percent.

 

That result should not be too surprising. Several studies have shown that menoutnumber women among the speakers of several scientific conferences. There’s even a site that collates examples of all-male panels.

 

Why does this happen? Hebl accounted for several of what she calls “yeah-but explanations,” which underplay these figures as the result of anything other than discriminatory biases. For example, some might argue that men outnumber women in many fields, and so any equitable selection process would naturally lead to more male speakers. But the team estimated the full pool of available speakers by counting every professor in their six chosen fields at each of the top 100 U.S. universities. And even after adjusting for the relative numbers of men and women in the various fields or ranks, they found that men are still 20 percent more likely to be invited to give colloquium talks than women.

 

Skeptics might also argue that the problem is a generational one: Science, for instance, has historically been skewed toward men, and when colloquia committees decide whom to invite, they’re prisoners of that history. But if that were true, and the arc of academia was slowly bending toward equality, then when assistant and associate professors—who are younger and more junior than full professors—are selected to give talks, the gender difference should be narrower. Hebl’s team found no such trend. “The people in whom we should see more parity aren’t showing us more parity,” she says.

 
“People sometime say: You know what? Maybe it’s the women,” says Hebl. “Maybe they don’t want to give talks, or they’re declining because they’re staying home with their kids.” That’s not what she found when she surveyed 186 professors who didn’t give colloquium talk at prestigious universities, but were in the same departments as those who did. Their answers clearly showed that women don’t decline colloquium invitations more than men, that they feel just as strongly that these talks are important for their careers, and that they’re no more likely to decline such talks because of family obligations.

 

“This dispels the widely held myth that women are less frequent speakers because they travel less,” says Jo Handelsman, from the University of Wisconsin at Madison. “Clearly, we need to test such assumptions before we absolve ourselves of culpability in creating biased slates.”

 

“Despite their presence in departments, women are not being asked to contribute to the intellectual development of their fields in the most coveted ways,” says Robin Nelson, from Santa Clara University, who has studied the prevalence of harassment in science. “This gendered discrimination minimizes women’s visible contributions to their fields, validating the idea that the greatest intellectual contributions are made by a few brilliant men.”

 

“We can account for all the yeah-buts,” Hebl says, “but we still have this bias, and we need to do something about it.”

 
 One solution is to give women more power over inviting colloquium speakers. The team found that when those committees are chaired by women, half of the invited speakers are women; that’s compared to just 30 percent when the committees are chaired by men.

December 19, 2017 in Conferences, Education, Scholarship | Permalink | Comments (0)

Monday, November 27, 2017

Symposium on the Jurisprudential Legacy of Judge Constance Baker Motley, the First Black Woman Federal Judge