Gender and the Law Prof Blog

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

Friday, April 28, 2017

Gender, Class, and Science in the 19th Century Patent Office

Kara Swanson, Rubbing Elbows and Blowing Smoke: Gender, Class, and Science in the 19th Century Patent Office, 108 J. History of Science 1 (2017)

The United States Patent Office of the 1850s offers a rare opportunity to analyze the early gendering of science. In its crowded rooms, would-be scientists shared a workplace with women earning equal pay for equal work. Scientific men worked as patent examiners, claiming this new occupation as scientific in opposition to those seeking to separate science and technology. At the same time, in an unprecedented and ultimately unsuccessful experiment, female clerks were hired to work alongside male clerks. This article examines the controversies surrounding these workers through the lens of manners and deportment. In the unique context of a workplace combining scientific men and working ladies, office behavior revealed the deep assumption that the emerging American scientist was male and middle class.

April 28, 2017 in Education, Legal History | Permalink | Comments (0)

Task Forces and Best Practices Rather than Litigation to Achieve Gender Equity for University Faculty

Constance Z. Wagner, Change From Within: Using Task Forces and Best Practices to Achieve Gender Equity for University Faculty

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.

April 28, 2017 in Education, Equal Employment | Permalink | Comments (0)

Monday, April 24, 2017

Some Unexpected Gendered Effects of Formative Assessment

Deborah Jones Merritt, Ruth Colker, Ellen Deason, Monte Smith & Abigail Shoben, Formative Assessments: A Law School Case Study, Univ. Detroit Mercy L. Rev. (forthcoming) 

Abstract

Several empirical studies have shown that formative assessment improves student learning. We build on those studies by reporting the results of a natural experiment at The Ohio State University Moritz College of Law. Students in one of three first-year sections had the opportunity to complete a formative assessment in their spring-semester Constitutional Law course. The assessment consisted of an essay question that the professor had used on a prior exam. Students who submitted an essay answer received prompt, extensive written feedback; they also had the chance to discuss their answer with the professor.

Over the course of three years, about half of the students enrolled in the section took advantage of the formative assessment. Those students achieved significantly higher grades on the final exam even though the assessment score did not factor into their course grade. Notably, students receiving this formative feedback also secured a significantly higher GPA in their other spring-semester classes. Both of these effects persisted after controlling for LSAT score, UGPA, gender, race, and fall-semester grades. These controls helped reduce any effect of selection bias on our findings.

In addition to exploring these relationships between formative assessment and academic achievement, we discuss several race and gender effects that emerged in our analyses. Women, for example, were significantly more likely than men to complete the formative assessment. Women also received significantly higher grades than men in a spring-semester course on Legal Analysis and Writing; men, conversely, received significantly higher grades than women in a Legislation course. A race effect, meanwhile, emerged for students with LSAT scores at or above the school median: Among those students, nonwhite students who completed the formative assessment achieved significantly higher grades in Constitutional Law than white students who submitted the same exercise.

All of these relationships deserve further empirical study. In particular, our results suggest the importance of examining the transfer effects of formative feedback, gender differences in law school learning, and paths for improving the academic experience of minority students.

April 24, 2017 in Education, Law schools | Permalink | Comments (0)

Thursday, April 6, 2017

Trial Lawyers' Report Concludes Campus Sexual Assault Process Unfair Against Accused

New Report on Colleges and Sex Assault Cases

With the Trump administration reportedly debating whether to reverse Obama administration guidance on how colleges should investigate sexual assault, a group of trial lawyers has released a report suggesting the current processes on many campuses are unfairly slanted against the accused.

 

The guidance, issued in a 2011 Dear Colleague letter, was meant to clarify areas of the law, the administration said at the time. It beefed up protections for victims of sexual assault and was a way to push colleges to more thoroughly respond to complaints. Such guidance does not carry the force of law, but it did contain a threat that colleges’ federal funding could be revoked should they fail to comply

 

The American College of Trial Lawyers, in a report last month, said this prospective loss of funding, combined with heavy media attention on cases of sexual assault, has resulted in colleges sometimes disregarding the rights of those accused and on occasion recklessly siding with someone making a complaint to avoid backlash.

 

It suggested that:

  • All hearings in sexual misconduct cases be conducted keeping in mind even the appearance of partiality -- fact finders assigned to the cases should be vetted for any conflicts of interest or affiliations.
  • Anyone accused in a case should be provided with full details of the allegations against them and kept abreast of all evidence as the case proceeds.
  • Those accused should be advised of their right to a lawyer and be allowed to have one present at all stages of an investigation.
  • Parties, including the one accused, should be allowed to do cross-examination of witnesses. (This could be particularly controversial, considering it is generally advised that victims do not interact with the alleged perpetrator. The lawyers' group notes that court systems have said there are alternate ways to see victim testimony, such as via a tape-recorded message or closed-circuit TV.)
  • The accused should be provided with a written record in case they wish to appeal.

April 6, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Monday, March 13, 2017

3d Circuit Says Medical Resident's Title IX Sexual Harassment and Retaliation Claim Survives Motion to Dismiss

 
Under a residency agreement, Doe joined Mercy's diagnostic radiology residency program in 2011 as a second-year, or R2. The program offered training in all radiology subspecialties in a community-hospital setting combining hands-on experience with didactic teaching. As required, Doe attended daily morning lectures presented by faculty and afternoon case presentations given by residents under faculty or attending physicians' supervision. She took a mandatory physics class taught on Drexel's campus, attended monthly radiology lectures and society meetings, joined in interdepartmental conferences, and sat for annual examinations to assess her progress and competence.
Doe says the director of Mercy's residency program, whom she calls Dr. James Roe, sexually harassed her and retaliated against her for complaining about his behavior, resulting in her eventual dismissal. Early on, Dr. Roe inquired about her personal life and learned she was living apart from her husband. He found opportunities to see and speak with her more than would otherwise be expected, often looking at her suggestively. This made Doe uncomfortable, especially when the two were alone. From these interactions she surmised Dr. Roe was sexually attracted to her and wished to pursue a relationship, though they both were married.
 
Three months into her residency Doe sent Dr. Roe an email voicing concern that others knew about his interest in her. She wanted their relationship to remain professional, she said, but Dr. Roe persisted, stating he wanted to meet with her while they attended a conference in Chicago. She replied with text messages to clear the air that she didn't want to pursue a relationship with him. Apparently displeased, Dr. Roe reported these messages to Mercy's human resources department, or HR. In response, HR called Doe to a meeting where she described Dr. Roe's conduct, like how he'd touched her hand at work, and said his unwelcome sexual attention was negatively affecting her training. The next day HR referred Doe to a psychiatrist, noting that her attendance was optional. Doe, however, believed Mercy would use it against her if she didn't go, given her complaints against Dr. Roe. She thus attended three sessions and complained there about Dr. Roe's conduct, but she heard nothing more from HR. Later Dr. Roe apologized to Doe for reporting her. He did it, he said, for fear he'd be reprimanded for having an inappropriate relationship with her. Thereafter two male faculty members, both close with Dr. Roe, trained her significantly less than they had before.
 
In Fall 2012 Dr. Roe learned Doe was getting divorced. His overtures intensified. He too was getting divorced, he told her, and he wanted a relationship with her. He suggested they go shooting and travel together. He said he was uncomfortable with her going to dinner for fellowship interviews and unhappy about her leaving Philadelphia post-residency. During this time Doe asked Dr. Roe and another faculty member for fellowship recommendation letters. They agreed but wrote short, cursory, and perfunctory ones. Dr. Roe even told the fellowship's director that Doe was a poor candidate. When Doe called Dr. Roe to ask why, he said it was to teach her a lesson before hanging up on her.
 
In response to Doe's complaints about Dr. Roe, Mercy's vice president, Dr. Arnold Eiser, called Doe to a meeting with Dr. Roe and others. There Doe complained about Dr. Roe's conduct again but was told to wait outside. A short time later Dr. Eiser escorted her to Mercy's psychiatrist. As they walked Dr. Eiser told Doe her second in-service examination score was poor, an issue she needed to address. Later, however, Doe learned this wasn't true: Her score was in the 70th percentile, and Dr. Eiser had received misinformation. She asked Dr. Roe to report her improvement to the fellowship she'd applied to, but he refused. Mercy later told Doe that to remain in the program, she'd have to agree to a corrective plan. Reluctantly, she signed on.
 
Dr. Roe's conduct continued into Spring 2013. Once while Doe was sitting alone with Dr. Roe at a computer reviewing radiology reports, he reached across her body and placed his hand on hers to control the mouse, pressing his arm against her breasts in the process. She pushed herself back in her chair, stood up, and protested. Another time, when a physician expressed interest in Doe, Dr. Roe became jealous and told Doe she shouldn't date him. Later, in April 2013 Dr. Roe told another resident to remove Doe's name as coauthor from a research paper she'd contributed to. Doe complained, but Dr. Roe said she was acting unprofessionally and ordered her to another meeting with Dr. Eiser. At that meeting Doe again told Dr. Eiser about Dr. Roe's conduct over the past year. Dr. Eiser, however, said the other residents loved Dr. Roe and told her to apologize to him. She did, but Dr. Roe wouldn't accept it, calling it insincere. Dr. Eiser suspended Doe, recommending another visit to the psychiatrist.
 
Thereafter on April 20, 2013 Doe received a letter from Mercy stating she'd been terminated but could appea.
 

March 13, 2017 in Education, Equal Employment, Workplace | Permalink | Comments (0)

Thursday, February 23, 2017

The Mistaken Reliance on Title IX to Deter and Punish Campus Sexual Assault

Corey Rayburn Yung, Is Relying on Title IX a Mistake?, 64 Kansas L.Rev. (2016)

Abstract:     

This Article attempts to answer an essential question related to Title IX’s role in student sexual assault at universities: is it better to improve and universalize student safety and conduct codes or rely on the new Title IX framework that has emerged? The tentative answer offered is that it is a mistake to solely or primarily depend on Title IX to deter and punish offenders in university sexual assault cases. This conclusion is based upon the uncertainty related to various aspects of Title IX doctrine and the regulatory regime that has emerged to enforce the statute. Consequently, this Article concludes Congress should adopt a basic, uniform student safety and conduct code that will cure many of the shortcomings of a legal regime based entirely upon Title IX. This legislation, unlike proposals aimed at merely strengthening the Title IX framework, might potentially avoid some of the backlash that has emerged in the wake of Title IX’s growing application in student-to-student sexual assault cases at universities while better addressing the issue.

 

February 23, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, February 22, 2017

Bringing Tort Law to the Campus Sexual Assault Debate

Sarah Lynnda Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Kansas L.Rev. (forthcoming)

Abstract

In the last few years, campus sexual assault has risen to prominence as a national public concern. As policy-makers scramble to figure out how best to address this problem, the contours of the conversation in scholarship, media articles, and policy-making have devolved into two competing adjudicative frameworks: criminal law or Title IX. In this criminal law versus Title IX debate, two questions dominate. First, who can better adjudicate claims of campus sexual assault: criminal courts using criminal laws, or schools using Title IX? Second, if schools do adjudicate sexual assault claims under Title IX, are students entitled to the same procedural protections as criminal defendants? In this Symposium piece, I argue that this criminal law versus Title IX framing is unduly narrow. It ignores a third, important mode of adjudication for sexual assault claims: tort law. In this essay, I show why tort law has been left out of the campus sexual assault debate, and the potential impact of its inclusion. Incorporating tort law into the campus sexual assault debate has three specific benefits. First, conceptualizing campus sexual assault as a tort reminds us that the same wrong can be legitimately framed and addressed in multiple ways. Second, tort law sets a useful standard for determining the scope of procedural protections in campus sexual assault proceedings. Third, tort law suggests that affirmative consent may be appropriate for campus sexual interactions. Ultimately, bringing tort law into the campus sexual assault debate opens up the vast and fertile ground between the two poles of criminal law and Title IX, and creates a space where better institutional design and a more effective solution to this social problem might be found.

February 22, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Monday, February 13, 2017

Reinforcing Masculine Legal Authority in the Way We Teach Moot Court

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.

 

February 13, 2017 in Education, Gender, Law schools, Women lawyers | Permalink | Comments (0)

Wednesday, October 26, 2016

The ABA's New Rule Mandating Diverse CLE Panels

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.

 

 

 

October 26, 2016 in Education, Law schools | Permalink | Comments (0)

Wednesday, October 5, 2016

Campus Sexual Assault: Why Not Bureaucracy?

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.

 

October 5, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, September 14, 2016

New Books: Gender Shrapnel in the Academic Workplace

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.

 

September 14, 2016 in Books, Education | Permalink | Comments (0)

Wednesday, August 24, 2016

Study Shows Faculty Gender Diversity has Improved, but not on Tenure Track and not at the Top

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 Trajectory

 

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.

August 24, 2016 in Education, Equal Employment | Permalink | Comments (0)

Wednesday, August 17, 2016

Universities Challenge Education Dept's Title IX Guidance

Chronicle, Oklahoma Wesleyan Joins Lawsuit Challenging Education Dept's Title IX Guidance

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.

August 17, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, July 19, 2016

Revisiting Gendered Critiques of the Socratic Method

 Photo

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. 

July 19, 2016 in Education, Law schools | Permalink | Comments (0)

Thursday, June 2, 2016

Woman Expelled for Campus Sexual Assault

Chronicle, Washington State U Woman Was Expelled for Sexually Assaulting a Man

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.

June 2, 2016 in Education | Permalink | Comments (0)

Wednesday, May 11, 2016

Study Documents Title IX's Significant Shift from a Law for Athletics to a Law for Sexual Harassment

Celene Reyolds, The Mobilization of Title IX in Colleges and Universities, 1994-2014      

Abstract:

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.

Introduction: 


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.

May 11, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, May 3, 2016

Anti-Rape Culture as Feminist Intolerance

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.

 

May 3, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Friday, April 29, 2016

Understanding Campus Sexual Misconduct as Sexual Harassment

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?

 

April 29, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, April 27, 2016

How Not to Lead Faculty

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

 

April 27, 2016 in Education | Permalink | Comments (0)

Sunday, April 24, 2016

The Slow Professor: Resisting the Culture of Speed in Academe

Slowing down into deliberate and thoughtful academic work as the antidote to the corporatization of the university.

Inside Higher Ed, Book Review, The Slow Professor: New Book Argues that Professors Should Actively Resist the "Culture of Speed" in Academe

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.”

 

April 24, 2016 in Books, Education | Permalink | Comments (0)