Monday, February 13, 2017
Susie Salmon, Reconstructing the Voice of Authority
Abstract:Notwithstanding the presence of three women on the United States Supreme Court, in terms of gender equality, surprisingly little has changed in the legal profession over the past twenty years. This stagnation is particularly apparent in the highest paying and most prestigious sectors, such as the Supreme Court bar, the top echelons of the top law firms, the judiciary, and the general-counsel’s office. Even where objective facts suggest that female lawyers should be hired, billed out, or compensated at the same or higher rate than their male peers, subjective decisions informed, in part, by bias and stereotype drive a different result.
This Article proposes that, until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior — that is, a male — these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students — and later lawyers — develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric — values inherited from a culture that silenced women’s voices in the public sphere — exacerbates the problem. This Article explores the dynamics and consequences of reinforcing the male paradigm in the way we coach and judge moot court and other oral-advocacy exercises, highlights some barriers to change, and proposes concrete steps legal educators, practitioners, and judges can take to help change what the voice of authority sounds like in the legal profession.
Wednesday, October 26, 2016
Ronald Rotunda, The ABA's New Rules Mandating "Diverse" CLE Panels. He speaks out against the new rule, arguing that it is poorly drafted and impractical to implement, among other things.
Here's what the new rules provide:
The ABA expects all CLE programs sponsored or co-sponsored by the ABA to meet the aspirations of Goal III by having the faculty include members of diverse groups as defined by Goal III (race, ethnicity, gender, sexual orientation, gender identity, and disability). This policy applies to individual CLE programs whose faculty consists of three or more panel participants, including the moderator. Individual programs with faculty of three or four panel participants, including the moderator, will require at least 1 diverse member; individual programs with faculty of five to eight panel participants, including the moderator, will require at least 2 diverse members; and individual programs with faculty of nine or more panel participants, including the moderator, will require at least 3 diverse members. The ABA will not sponsor, co-sponsor, or seek CLE accreditation for any program failing to comply with this policy unless an exception or appeal is granted. The ABA implementation date for the new Diversity & Inclusion CLE Policy shall be March 1, 2017.
Wednesday, October 5, 2016
Deborah Brake, The Trouble with "Bureaucracy", 7 Cal. Law Review online 66 (2016)
Abstract:Despite heightened public concern about the prevalence of sexual assault in higher education and the stepped-up efforts of the federal government to address it, new stories from survivors of sexual coercion and rape, followed by institutional betrayal, continue to emerge with alarming frequency. More recently, stories of men found responsible and harshly punished for such conduct in sketchy campus procedures have trickled into the public dialogue, forming a counter-narrative in the increasingly polarized debate over what to do about sexual assault on college campuses. Into this frayed dialogue, Jeannie Suk and Jacob Gersen have contributed a provocative new article criticizing the federal government’s efforts to regulate sexuality on campus as a bureaucratic overreach. This essay offers several counterpoints for thinking about Gersen and Suk’s critique. First, how much personal liberty would be enhanced by the dismantling of the bureaucracy depends on the conditions of sexual equality in which that liberty will be exercised. Second, Gersen and Suk’s lens of bureaucracy obscures the pre-existing role that government and institutional actors have played in regulating and influencing the conditions of sexuality. Finally, Gersen and Suk’s account of the democratic illegitimacy of the federal sex bureaucracy neglects the grassroots activism that pressed for a tougher regulatory regime and the legitimate role executive agencies can play, consistent with robust democratic engagement, in strengthening sex equality law. In the final analysis, any decision to disengage or recalibrate the federal sex bureaucracy must take into account and bring into dialogue the stories of both survivors and accused students.
Wednesday, September 14, 2016
Ellen Mayock, Gender Shrapnel in the Academic Workplace
Female students and faculty members have often felt at odds with their institutions and other members of their workplaces when sexual harassment and assault enter the work environment. What is one to do when experiencing gender-based discrimination in the academic workplace? Ellen Mayock in her recent book Gender Shrapnel in the Academic Workplace (Palgrave Macmillan, 2016) seeks to put a name to the phenomenon that many women in academia face as well as provide solutions to institutional failures that allow for these experiences of harassment and assault to occur. Drawing upon feminist theory, linguistics, and the power of personal narratives, Mayock discusses how gender shrapnel occurs in the academic workplace. The later chapters of the book provide very tangible solutions to gender shrapnel that individuals and institutions can embark upon in order to curb the instances of gender shrapnel in academia.
Wednesday, August 24, 2016
Inside Higher Ed, Study Finds Gains in Faculty Diversity, But Not on Tenure Track
Diversifying the professoriate has long been a priority on many campuses, and such goals have only grown more urgent in light of recent national and local discussions about race. Yet college and university faculties have become just slightly more diverse in the last 20 years, according to a new study from the TIAA Institute. Most importantly, as faculty jobs have become more stratified with the growth of non-tenure-track positions over the same period, most gains for underrepresented minority groups have been in the most precarious positions. That is, not on the tenure track.***
Underrepresented minority groups held approximately 13 percent of faculty jobs in 2013, up from 9 percent in 1993. Yet they still only hold 10 percent of tenured jobs, according to the study. Women now hold 49 percent of total faculty positions but just 38 percent of tenured jobs.
Women’s faculty head count growth nearly doubled that of men between 1993 and 2013, at approximately 375,300 additional women and 196,900 men. Women’s growth in full-time appointments quintupled that of men, and a major change was observed in women’s appointment to tenured positions in particular: an increase of about 46,700 women compared to a decrease among men of about 14,900.
The magnitude of women’s growth in full-time and tenured or tenure-track appointments pales in comparison to their growth in part-time appointments, however, at about 144 percent, and full-time, non-tenure-track appointments, at about 122 percent.
Less optimistically, and to Finkelstein’s point about multiple metrics, the proportion of all women faculty who are tenured or on the tenure track has actually declined from 20 percent to 16 percent and 13 percent to 8 percent, respectively.
At the same time, the percentage of women who are in part-time appointments increased from 48 percent to 56 percent.
The proportion of all women in full-time, non-tenure-track positions held steady at about 18 percent.
Women continue to be less likely than men to hold full-time appointments, at 44 percent of women faculty members compared to 52 percent of men.
Regarding the “ultimate prize,” or a full professorship, fewer than one in 10 faculty women -- about 9 percent -- have achieved it. That's up only slightly from 6 percent of women in 1993. And the years since 1993 have seen women earn much larger shares of doctorates than they had in the past, and have seen disciplines and colleges pledge to do more so that these women Ph.D.s can thrive in academic careers.
Conley said slow growth reflects the hiring and promotion process, in which deans and provosts drawn most often from the full professor ranks themselves make decisions about who become full professors next. That process isn’t about to change any time soon, she said, since a “core value” of higher education remains that only those who have achieved top faculty ranks should hold such authority.
But it can be counteracted by focusing more on developing diverse potential faculty talent at the graduate and even undergraduate levels, she said.
Wednesday, August 17, 2016
Oklahoma Wesleyan University is joining a former University of Virginia student’s lawsuit challenging the Title IX guidance of the U.S. Education Department’s Office for Civil Rights, according to court documents filed Monday.
The university joins the plaintiff, identified in the lawsuit as John Doe, who was found responsible for sexual misconduct. The lawsuit asserts that the student was found responsible only because the department’s standard of proof is so low.
The suit raises objections to the department’s “Dear Colleague” letter, which states that colleges should use a “preponderance of evidence” standard when reviewing sexual-violence complaints.
“A growing number of innocent students have been trampled in the wake of these new requirements, found responsible for serious charges based often on the flimsiest of evidence,” the suit reads.
Tuesday, July 19, 2016
Jamie R. Abrams joins us as a guest blogger for July. She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.
As law schools nationwide prepare to implement the new ABA requirements governing experiential learning and assessment, it is also appropriate to revisit the gendered critiques of the Socratic dialogue. Scholars such as Professor Lani Gunier and Professor Elizabeth Mertz have studied its disproportionately marginalizing effect on women and minority law students. While innovations in law teaching are everywhere, these innovations are being constructed upon and limited by the ancient architecture of the case-based Socratic method, which still endures and persists throughout first-year and core upper-level courses. Law schools continue to design their budgets, curricula, and student experience around some degree of case-based, Socratic law teaching in large-lecture style classrooms.
But the Socratic method admittedly has some advantages that none of the other curricular innovations have. It is repeated hundreds of times in different courses, whereas a typical student in a law clinic will represent just a handful of clients on discreet legal issues. It is delivered to a large and diverse group of students allowing for competing perspectives and critical inquiry. It has robust volumes of existing teaching materials built around it making it the most economical method of law teaching. It is comfortable for many professors and law faculties because they were taught this way and they have taught this way for decades, thus allowing greater buy-in and ease of adaptation.
The Socratic method can be reframed to better catalyze other teaching innovations, create more practice-ready lawyers, and cultivate more inclusive and inviting law classrooms. Within the existing framework of law teaching – the same casebooks, class sizes, and teaching style – the case-based Socratic method can be reframed in three straight-forward ways to better align with curricular innovations in legal education and to create a more positive student experience. These adaptations are consistently (1) positioning client(s) at the center of the Socratic dialogue; (2) positioning law students as attorneys considering legal research and weight of authority as a springboard to client counseling and outcomes; and (3) sensitizing students to varied lawyering skills such as client counseling, settlement, drafting, and discovery within the Socratic case-based approach.
These re-framings of the Socratic method would create a more inclusive law school experience for all. These approaches reduce the hierarchy of the professor over the students and invite inclusive participation. The participation that is sought is more collaborative and inviting of diverse perspectives because it is offered as a means to advance client interests and goals, rather than to challenge the professor or a classmate. This would role model collaborative, collegial, and productive lawyering for our students, not just adversarial competencies.
This entry is excerpted from my article on Reframing the Socratic Method previously published in the Journal of Legal Education.
Thursday, June 2, 2016
A student at Washington State University was expelled for sexually assaulting a man on the campus in 2014, BuzzFeed News reports.
The student, whom BuzzFeed identified only as Rose, her middle name, said she had had sex with a classmate after playing drinking games one night in January 2014. The man later filed a complaint with Washington State’s Title IX office, saying Rose had sexually assaulted him.
Rose maintains that she was falsely accused and that the man complained to Washington State’s Title IX office because his friends had teased him for sleeping with her. After the incident, floor mates wrote messages on whiteboards outside their doors saying Rose had taken advantage of the man.
A residential adviser later reported those notes to administrators. Rose was told to move out of the dormitory immediately to protect the complainant.
During her first meeting with university investigators, Rose filed a countercomplaint against the man.
In May 2014, the man asked the Title IX office to stop the investigation, requesting that it cease contacting him and ensure he would not be contacted by Rose.
In August 2014 Rose was found responsible for sexual misconduct and expelled. She appealed her expulsion unsuccessfully, twice. In April 2015 she filed a complaint, which is still being investigated, with the Education Department’s Office for Civil Rights.
Wednesday, May 11, 2016
Study Documents Title IX's Significant Shift from a Law for Athletics to a Law for Sexual Harassment
Title IX has been widely recognized as a crucial step toward gender equality in America. Yet it remains unclear how the law actually functions, particularly how it has been used in response to gender disparities in higher education. This article provides the first systematic analysis of how Title IX has been mobilized at the postsecondary level. Drawing on new data acquired through seven Freedom of Information Act requests, I analyze all resolved Title IX complaints filed with the Office of Civil Rights against four-year nonprofit colleges and universities from 1994 to 2014 (N=6,654). I find that the mobilization of Title IX has changed both in frequency and in kind during this period. Filings started to rise after 2000 and exploded after 2009, while sexual harassment complaints nearly equaled academic and athletic filings for the first time in 2014. Finally, despite the egalitarian design of the complaint process, private schools and more selective schools face a disproportionate number of complaints relative to enrollment, indicating the power of institutions in mediating legal mobilization.
Title IX, the U.S. civil rights law that prohibits sex discrimination in federally funded education programs, has been called one of the most significant steps toward gender equality in the last century. Yet research on how the law has been used in response to perceived gender disparities in the academy is lacking. There are recent indications that the mobilization of Title IX—in the form of complaints filed against allegedly noncompliant colleges and universities with the Office of Civil Rights (OCR), the primary federal administrative agency responsible for implementing the law—has both increased dramatically and shifted from an emphasis on fostering gender equity in athletics to policing sexual harassment and assault on campus. But there has been no comprehensive analysis of this shift, or of the law’s mobilization more generally, and therefore we have little sense of if and how it took place. How has Title IX been mobilized to combat gender inequalities in higher education? Is it deployed broadly or only to address some forms of sex discrimination in certain types of institutions? Is its use consistent or contradictory?
This paper provides the first systematic analysis of how Title IX has been mobilized at the postsecondary level over the last two decades. I draw from a new data set I constructed using information acquired through seven Freedom of Information Act requests filed over 18 months. The data include all resolved postsecondary Title IX complaints filed with OCR against allegedly noncompliant schools from 1994 to 2014. Using these data, I seek to rigorously map the phenomenon. . . .
I find that over the last two decades the number of Title IX complaints filed against four year nonprofit institutions skyrockets in 1999 and again starting in 2013. Individuals engaged in mass filings are responsible for both spikes. Net of this effect, I find that the number of Title IX complaints has trended upward since 2000, exploding after 2009 and reaching a record high in 2014. Complaints citing discrimination in academics were the modal type of complaint filed for most of the last 20 years, until 2014 when sexual harassment, academics, and athletics complaints reached near parity. I also find that the mobilization of Title IX is institutionally uneven: relative to overall enrollment, a disproportionate number of complaints are filed against private, more selective institutions located in states with high numbers of women serving in state legislatures.
Tuesday, May 3, 2016
Today's series of posts include several writings thinking through the different angles and permutations of sexual assault.
Aya Gruber, Anti-Rape Culture, Kansas L.Rev. (forthcoming)
Abstract:This essay, written for the Kansas Law Review Symposium on Campus Sexual Assault, critically analyzes “anti-rape culture” ― a set of empirical claims about rape’s prevalence, causes, and effects and a set of normative ideas about sex, gender, and institutional authority ― which has heralded a new era of discipline, in all senses of the word, on college campuses. In the past few years, publicity about the campus rape crisis has created widespread anxiety, despite the fact that incidents of sexual assault have generally declined and one-in-four-type statistics have been around for decades. The recent surge of interest is due less to an escalation of rape culture than to a new found anti-rape culture ― a distinctly feminist rape intolerance. Feminist political activism is normally ground for progressive rejoicing and, indeed, society should be rape intolerant. However, here, one might wonder whether feminism has reincarnated as a single-issue movement that centers on punishing sex ranging from violent to ambiguous and embraces illiberal positions and institutions. The essay focuses on the costs of anti-rape culture’s construction of the status quo as one in which at least a quarter of college women will be brutalized by a sexual predator and left traumatized, possibly for life. In addition to creating the risk that the sex that college women inevitably have is a minefield of mental distress, the rhetorical strategy has other costs, including punitive over-correction, bureaucratic management of students stripped of their subjectivity, and speech restrictions. In the end, the essay counsels reformers to be cautious lest their commendable concern for safety and equality creates a culture in which drunken sex is ruinous to women, administrative power distributes burdens randomly, or worse, to marginalized men, and silence is the norm in an area desperate for open discussion.
Friday, April 29, 2016
Katharine Baker (Chicago-Kent), Campus Sexual Misconduct as Sexual Harassment: A Defense of the DOE, Kansas L.Rev. (forthcoming)
Abstract:This article explains and defends the Department of Education’s campaign against sexual misconduct on college campuses. It does so because DOE has inexplicably failed to make clear that their goal is to protect women from the intimidating and hostile environment that results when men routinely use women sexually, without regard to whether women consent to the sexual activity. That basic point, that schools are policing harassing and intimidating behavior, not necessarily rape, has been lost on both courts and commentators. Boorish, entitled, sexual behavior that stops well short of rape, if pervasive enough, has been actionable as sexual harassment for decades. The failure to understand the theory of university regulation is problematic not only because it leads courts to ask the wrong questions when reviewing university tribunals, but also because it blinds both courts and commentators to the hard questions that follow from a theory of sexual harassment. First, evidence from both sides in cases of college sexual misconduct is likely to lack credibility and critical detail. Reasonable minds will differ on whether the complainant’s or the accused’s story is more accurate. What should college tribunals do in close cases, allow for findings of liability, as is permitted by the civil law of discrimination (and harassment), or require more proof, as is required by the criminal law and some college codes of conduct? Second, while many women on college campuses feel insulted and demeaned by the culture of male sexual entitlement, most women - by their own admission - are probably not being irreparably injured. If DOE’s policy is to be justified it is probably not on grounds that women are so severely hurt by men’s sense of their own sexual entitlement, but because that sense of entitlement undermines the norms of respect, civility and equality that university’s routinely enforce in other contexts. Is it worth curtailing men’s (entitled sense of) sexual freedom to enforce those norms?
Wednesday, April 27, 2016
Having been on both sides of this administrative coin, I found these suggestions particularly instructive.
Chronicle of Higher Ed, The Top 5 Faculty Morale Killers. The 5 things not to do as a manager of faculty:
- Micromanagement. People don’t generally like to have someone looking over their shoulder and telling them what to do all the time, especially intelligent, highly trained professional
- Trust issues. Faculty members interpret micromanagement as lack of trust. We assume that it means our leaders simply don’t have enough faith in our ability or enough of a commitment to allow us to do our work as we see fit. Few things are more insulting than that to academics.
- Hogging the spotlight. The success of an organization is rarely attributable to any one person. And yet it’s natural for leaders to want to take much of the credit....There are several behaviors leaders must learn that don’t necessarily come naturally, and one of those is deflecting praise.
- The blame game. Besides deflecting praise when things go right, leaders must also learn to accept the lion’s share of the blame when things go wrong
- Blatant careerism. Finally, we come to one of my own personal pet peeves: Academic leaders whose sole ambition in life is to climb as high as possible on the administrative ladder and who are willing to do literally anything to achieve that ambition
Sunday, April 24, 2016
Slowing down into deliberate and thoughtful academic work as the antidote to the corporatization of the university.
In a new book, two tenured professors propose applying the “slow movement” -- which has thus far been applied to everything from food to parenting to science to sex -- to academic work. And while it’s already raised some eyebrows as an example of “tenured privilege,” it’s at once an important addition and possible antidote to the growing literature on the corporatization of the university.
***“While slowness has been celebrated in architecture, urban life and personal relations, it has not yet found its way into education,” reads Slow Professor: Challenging the Culture of Speed in the Academy (University of Toronto Press). “Yet, if there is one sector of society which should be cultivating deep thought, it is academic teachers. Corporatization has compromised academic life and sped up the clock. The administrative university is concerned above all with efficiency, resulting in a time crunch and making those of us subjected to it feel powerless.”
In a corporate university, argues Slow Professor, “power is transferred from faculty to managers, economic justifications dominate, and the familiar ‘bottom line’ eclipses pedagogical and intellectual concerns.” But slow professors nevertheless “advocate deliberation over acceleration” because they “need time to think, and so do our students. Time for reflection and open-ended inquiry is not a luxury but is crucial to what we do.”
Instead, Slow Professor proposes with some optimism that professors -- especially those with tenure -- have the power to change the direction of the university by becoming the eye of the storm, working deliberately and thoughtfully in ways that somehow now seem taboo.
“Distractedness and fragmentation characterize contemporary academic life; we believe that slow ideals restore a sense of community and conviviality … which sustain political resistance,” Berg and Seeber say. “Slow professors act with purpose, cultivating emotional and intellectual resilience to the effects of the corporatization of higher education.”
Slow Professor proposes getting off-line as much as possible and doing less by thinking of scheduling as eliminating commitment’s from one’s day, not taking them on. Perhaps most importantly, it proposes leaving room in one’s schedule for regular “timeless time,” starting with some kind of relaxing, transitional ritual. Incorporate playfulness and shun those negative self-thoughts.
And don’t forget leaving time to do nothing at all, the book says.
In a separate discussion on “pedagogy and pleasure,” Slow Professor advocates for the in-person classroom model over online. It argues that teaching is an undeniably emotional activity for which one should be physically present, and that students also benefit from working face-to-face with their peers.
“It is neither frivolous nor incidental that to ensure that we enjoy ourselves in the classroom: it may be crucial to creating an environment in which students learn,” the book reads.
Slow Professor also addresses research pressures, saying that slow scholarship must stand against perverse incentives for publication or a rush to “findings” at the expense of scholarly value. Noting how one of the authors’ colleagues was once admiringly referred to as a “machine,” the book questions the very way in which academics talk about one another’s productivity, saying, “Slowing down is a matter of ethical import. To drive oneself as if one were a machine should be recognized as a form of self-harm. … Furthermore, being machine-like will hardly generate compassion for others.”
Overwork can make colleagues jealous, impatient and rushed,Slow Professor reads, while slowing down “is about allowing room for others and otherness. And in that sense, slowing down is an ethical choice.”
Saturday, April 23, 2016
She is a feminist to her bones, and gives no quarter to the kind of historical relativism that ringfences the brutality of the past as something natural and unremarkable, like eating songbirds. “It’s very hard to get positive female role models in the history of the Roman empire. You think you’ve got one, and then, oh no. She’s been raped. And killed herself. If you’re going to remove the sexual violence, you cannot tell the story of Rome.”She is resolute on her purpose in public life, and has no qualms about the distinction of scholarship: “What is the role of an academic, no matter what they’re teaching, within political debate? It has to be that they make issues more complicated. The role of the academic is to make everything less simple.”
Monday, April 18, 2016
If trends continue, women will outnumber men in law schools in 2017, according to a legal blog’s analysis of ABA statistics.
According to Associate’s Mind, the percentage decline in students attending law school is greater for men than women. From 2011 to 2015, the number of men attending law school dropped by 25.59 percent, while the number of women attending law school dropped by 17.31 percent.
From 2014 to 2015, the number of men going to law school dropped by 5 percent, while the number of women dropped by 3 percent. If those one-year percentage drops continue into 2016, there will be 132 more men than women attending law school. “Extrapolate that out one more year,” the blog says, “and women will outnumber men in law schools for the first time ever.”
The blog also found the number of law schools with more women than men is increasing. In 2011, 38 law schools had more women students enrolled than men. In 2015, 85 law schools had more women students enrolled than men. This chart has the breakdown.
Monday, April 11, 2016
Jacob E. Gersen (Harvard) & Jeannie Suk (Harvard), The Sex Bureaucracy, California L. Rev. (forthcoming)
Abstract:We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated area comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy essentially required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself. We call this “bureaucratic sex creep” — the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others. At a moment when it is politically difficult to criticize any undertaking against sexual assault, we are writing about the bureaucratic leveraging of sexual violence and harassment policy to regulate ordinary sex. An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment. Our purpose is to guide the reader through the landscape of the sex bureaucracy so that its development and workings can be known and debated.
However, a 10-year study looked at rapes and sexual assaults between 2001 and 2011 occurring on Massachusetts’ college and university campuses – including dorms, apartments and fraternity houses. The study found that 81 percent of all reported rapes and assaults occurred in the dorms, 9 percent occurred in houses or apartments and only 4 percent occurred in fraternity houses.
When colleges fail to examine where assaults happen, they expose themselves to litigation. More importantly, they miss critical opportunities to explore solutions to the widespread campus sexual assault problem.
Schools should look closely at their own sexual assault reports and consider targeted solutions if there are particular dorms with a high incidence of assaults.
Studies should be conducted at the national level to examine overall patterns. Those studies should examine questions such as whether sexual assaults are more likely to occur in certain types of dorms, such as athlete dorms or even coed dorms. Studies should also look at whether it makes a difference if dorms are coed by floor, by hall or by room.
[This post is an excerpt from a longer article originally posted on The Conversation. The full article can be accessed here: https://theconversation.com/what-schools-dont-tell-you-about-campus-sexual-assault-57163]
Tuesday, March 8, 2016
Challenging conventional wisdom is one thing; saying things that are historically inaccurate, inflammatory and racist is another. How much does academic freedom actually cover? If a history professor says something fundamentally wrong about a historical fact — such as misidentifying who staged the Sept. 11, 2001 terrorist attacks — is that person’s views covered by academic freedom or is that a question of professional competence? What if a poetry professor says the same thing?
While the real protections offered under the principle vary from campus to campus, faculty work is at least founded on the idea that there’s room to express even unpopular ideas or beliefs. But are arguably unacademic opinions — inflammatory falsehoods that have no apparent basis in fact — also covered? A recent case at Oberlin College raises questions about whether all ideas are created equal when it comes to academic freedom.
For the American Association of University Professors, the distinction is one of disciplinary expertise and professional competence, said Hans-Joerg Tiede, associate secretary in the department of academic freedom, tenure and governance. If, for example, a physics professor declared on Twitter that the Sept. 11 attacks were a hoax, AAUP would advocate for the professor’s right to free speech in extramural utterances (it doesn’t distinguish between free speech in person or online). But if the physics professor declared that the world is flat, denying all scientific evidence to the contrary, that could call into question his or her professional fitness.
“There’s a somewhat strange consequence that the less something relates to your discipline, the more protected you are on a general level,” Tiede said. “The closer something is to your area of expertise, you must in some sense be more careful that what you say doesn’t create concerns.”
Friday, March 4, 2016
Kif Augustine-Adams (BYU), Religious Exemptions to Title IX
Abstract:Forty years into the Title IX game, the score is 253 to 0, religious exemptions recognized versus those denied. Almost no one knows the overall score of the game, who has made points, or who is playing. Prior to the Human Rights Campaign’s release of a report in December 2015, relatively few beyond the participants themselves even knew the game was played. Documented religious exemptions to Title IX largely take place in the dark, in private administrative processes rarely made public, under obscure agency standards and policies. The parameters of religious exemptions to Title IX have never been litigated in court or subjected to judicial review. Virtually no scholarship exists on the subject. Religious exemptions to Title IX pose a particularly urgent question given the flood of new exemptions claims focusing on transgender and homosexuality. This analysis is a first, foundational step in evaluating religious exemptions to Title IX.
On its face, a score of 253 and counting, suggests complete and overwhelming victory for one side, the educational institutions claiming religious exemption to Title IX. In reality, however, the lopsided score hides another story, one much more complex and nuanced than the score reflects. Over time, the government agency charged with Title IX enforcement subtly arrogated to itself power and authority to regulate religious exemption to Title IX. As much as victory, the score reveals a subtle erosion of autonomy as religious educational institutions acquiesce to the administrative state by requesting exemption under regulatory procedures rather than claiming inherent exemption under the Title IX statute itself and the Constitution. I conclude that the administrative regulatory procedures for religious exemption to Title IX have largely failed to accomplish the non-discrimination goals of Title IX, to respect religious liberties, or to facilitate a sustainable engagement between these potentially competing values.
Thursday, February 4, 2016
Nancy Chi Cantalupo (Barry), For the Title IX Civil Rights Movement: Congratulations and Cautions, Yale Law Journal Forum (forthcoming).
Abstract:The Yale Law Journal's September 25, 2015 Conversation on Title IX confirmed the existence of a new civil rights movement in our nation and our schools, led by smart, courageous survivors of gender-based violence and joined by multiple generations of anti-gender-based violence activists, attorneys, leaders, and scholars. Movement leaders have wisely chosen Title IX as their particular banner and organizing point. As a civil rights statute, Title IX guarantees broad rights to an equal education, and although schools' compliance with Title IX and the statute's enforcement still require significant improvements, today's movement can build upon a legal foundation established by previous waves of the pro-equality and anti-gender-based violence movements.
But in doing so, the Title IX movement must remain vigilant against pushes to criminalize Title IX. Suggestions that gender-based violence which violates Title IX can be punished like criminal offenses and that Title IX proceedings should therefore follow the procedures of the criminal justice system conflate Title IX with criminal laws against rape and sexual assault. This conflation fundamentally undermines Title IX's central purpose: to protect and promote equal educational opportunity for all students, including both the alleged perpetrators and the victims of gender-based violence.