Friday, July 14, 2017
We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism
As law schools are implementing the new ABA Standards, these standards call for more formative assessment throughout the semester and at least six credits of experiential learning courses. When these revised standards were initially proposed and the drafters sought feedback, the proposed standards raised a flurry of critiques relating to academic freedom, resource strains, and existing competencies in implementation. After adoption, a responsive and helpful series of conferences, listserv posts, and scholarly activities emerged to address concerns and critiques.
In a recent article titled Experiential Learning in the Era of Donald Trump published in the Duquesne Law Review, however, I highlight one concern that was missing from the initial debate and discussion surrounding successful implementation of these assessment and experiential requirements. The missing component was the political peril (and opportunity) that faculty would face in implementing these requirements in the context of political divisiveness and discord. Law schools are notably implementing these pedagogical reforms in a time of great political division. From the divisive presidential election, to police-community relations, to a worldwide refugee crisis, political discourse is contentious, polarized, and fraught with both risk and opportunity. University campuses have particularly been the sites of difficult discussions about race, politics, gender, and the very role of academic communities in these conversations.
Students and faculty alike seem less capable than ever to manage these complex dynamics, yet true experiential learning and assessment requires us to move into the “eye of the storm” for courses with politically grounded content. This includes courses on gender and the law, feminist theory, reproductive rights, legislation, race and the law, sexuality and the law, and many other topics that may be taught by readers of this blog. How do we as educators simulate for students a real-world lawyering context without stepping on landmines in our reviews, reputations, and careers? The stakes are high. In this modern reality, both faculty and students alike may not be comfortable, prepared, or equipped to navigate these challenges without savvy techniques and methods. This is further complicated when layered on the reality that well-documented gender bias already sits in student and faculty evaluation systems.
This is a pedagogical conversation that gender faculty should lead and engage. In the article, I preliminarily identify three components to a modern experiential learning course addressing topics of political relevance, such as gender and the law courses: (1) student-driven content, instead of faculty-driven content; (2) consistent and holistic student engagement, instead of sporadic or sequential engagement; and (3) vertically and horizontally structured feedback. Critically though, neither the underlying article nor this blog post pretend to have the answers to these questions, but rather, they hope to spark ongoing discussion and idea-sharing. We also have an opportunity in front of us to transform our students into thoughtful problem-solvers and savvy lawyers while advancing the pedagogy of gender courses in tough political times.
Tuesday, July 11, 2017
Merle Weiner, Legal Counsel for Survivors of Campus Sexual Assault, 29 Yale J. L & Feminism 123 (forthcoming 2017)
This Article argues that survivors of campus sexual violence often need legal counsel before, during, and after campus disciplinary proceedings. Lawyers have been overlooked as a critical resource for survivors, and this omission means that most survivors do not receive essential services for addressing their victimization and furthering their recovery. This Article sets forth the reasons why institutions of higher education should make available free legal services to their students who are victimized, and addresses the reasons why institutions might be hesitant to do so. The Article then argues that potential institutional concerns do not relieve colleges and universities of their existing legal obligation to provide some survivors with free legal services. This Article suggests that schools would best meet their legal obligation by providing all survivors with free legal services. The Article then puts its theoretical discussion into perspective by describing the University of Oregon’s unique on-campus program that provides free legal counsel to student survivors. The Article concludes by recommending that the Office for Civil Rights clarify campuses’ legal obligation to provide free attorneys for some survivors and by suggesting that campuses offer all survivors this service. The result would be a better campus response to sexual violence, a decline in the overall rate of post-assault traumatic distress, a likely reduction in the rate of campus sexual violence, and greater progress toward the goal of gender equality.
Thursday, July 6, 2017
Nancy Chi Cantalupo & William C. Kidder have posted A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty, Utah Law Review (forthcoming)
One in ten female graduate students at major research universities reports being sexually harassed by a faculty member. Many universities face intense media scrutiny regarding faculty sexual harassment, and whether women are being harassed out of academic careers in scientific disciplines is currently a subject of significant public debate. However, to date, scholarship in this area is significantly constrained. Surveys cannot entirely mesh with the legal/policy definition of sexual harassment. Policymakers want to know about serial (repeat) sexual harassers, where answers provided by student surveys are least satisfactory. Strict confidentiality restrictions block most campus sexual harassment cases from public view.
Taking advantage of recent advances in data availability, this article represents the most comprehensive effort to inventory and analyze actual faculty sexual harassment cases. This review includes nearly three hundred cases obtained from: (1) media reports; (2) federal civil rights investigations by the U.S. Departments of Education and Justice; (3) lawsuits by students alleging sexual harassment; and (4) lawsuits by tenure-track faculty fired for sexual harassment. It also situates this review within the available and most relevant social science literature on sexual harassment and violence in education and the workplace, as well as on methodological limitations of litigated case data, which tend to contain a higher concentration of high-severity cases compared to a random sample.
Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment. Thus, this study adds to our understanding of sexual harassment in the university setting and informs a number of related policy and legal questions including academic freedom, prevention, sanctions, and the so-called “pass the harasser” phenomenon of serial sexual harassers relocating to new university positions.
Friday, June 16, 2017
The Atlantic, The Push for Gender-Inclusive Curricula Marches On
In 1971, groundbreaking research quantified just how underrepresented and misrepresented women were in U.S. high-school history textbooks, finding, for instance, that there was more textbook space devoted to the length of women’s skirts than to the suffrage movement.
Big textbook publishers like McGraw-Hill, Macmillan Publishers, and the American Psychological Association printed guidelines about how to publish less sexist material. Universities funneled money into new women’s-studies courses; San Diego State University launched the first department of women’s studies in 1970. Congress passed the Women’s Education Equity Act in 1974, which funded more research and the creation of national resource centers to help school districts that wanted to deliver bias-free educations.
Even the Texas State Board of Education, which has long had a disproportionate and conservative influence on what information gets included in national textbooks, hopped on the gender-equality train, issuing a proclamation that textbooks should include “women in leadership and other positive roles with which they are not traditionally identified” and offer “goal choices and lifestyles for girls and women in addition to marriage and homemaking.”
For a while, textbooks and teaching at the secondary and university levels improved. Sexism became more subtle, and women’s stories more common. Scholars pushed not only for gender analysis, but for intersectional analysis along lines of race, class, ability, and sexual orientation, and called women’s-studies pioneers out for “the white-middle class, heterosexual bias of academic feminism [that] pervades research and teaching about women.”
But then, in the mid-90s, the movement stalled—particularly in the K-12 setting. Since then, says David Sadker, a pioneering researcher in the field, “things have been frozen in time … in two decades, there’s been very little progress, and some retrenchment.” Though some research shows that the omission of women is not as great as it once was—and that textbooks have significantly improved when it comes to the inclusion and treatment of women and gender since the 1960s—the subject is still underrepresented.***
The goal of the movement was not to simply hold women leaders up as heroines or societal anomalies, to paraphrase the 18th-century feminist author and activist Mary Wollstonecraft; its advocates wanted women and gender to be treated as more than “sidebar history.” Though showcasing women’s stories on their own is important, women’s-history pioneers also saw unearthing and integrating women’s stories as a gateway to better understand the laws, institutions, systems, and movements that are most familiar to Americans—and to correct and complicate them.
Thursday, June 8, 2017
Kristen Konrad Tiscione, “Best Practices”: A Giant Step Toward Ensuring Compliance with ABA Standard 405(c), a Small Yet Important Step Toward Addressing Gender Discrimination in the Legal Academy, 66 J. Legal Educ. (Spring 2017)
In March 2014, the American Bar Association (ABA) voted to leave Accreditation Standard 405 undisturbed.” The ABA’s decision required law schools to continue to grant tenure to traditional law faculty, yet permitted them to continue to deny tenure to clinical and legal writing faculty. At the same time, recognizing the need for increased professional skills training, the ABA voted to increase the number of experiential credits law students must
complete from one to six. As explained to the ABA Council in advance, these two decisions work together to increase the demands on skills faculty, who are predominantly female, yet keep them at a lower professional status with less security of position.
Regrettably, the long and tortured history of Standard 405 suggests that the vision of equal opportunity for all law faculty—traditional, clinical, legal writing, academic support, and teaching librarians—is not going to be realized anytime soon. The highest and best security of position most professional skills faculty can likely hope for in the near future is that embodied in current Standard 405(c).Thus, law schools’ adherence to established best practices is necessary if “reasonably similar to tenure” is to mean something for those who struggle to and ultimately achieve 405(c) status
The most disturbing aspect of the continued discrimination against skills faculty and the abuse of Standard 405(c) is its disparate impact on women. Women represent roughly forty-three percent of all full-time law faculty, yet, according to 2013 statistics available from the ABA, only thirty-six percent of tenured or tenure-track faculty are female.
In stark contrast, sixty-three percent of 405(c) faculty are women (an increase from fifty-six percent in 2008).29 Because this number may not include legal writing faculty with 405(c) status, the overall percentage of women with 405(c) status may be even higher. This means that, to the extent law schools fail to comply with Standard 405(c), they are nearly twice as likely to disadvantage a woman as a man.
Even more shocking is that seventy-one percent (and holding steady since 2001) of legal writing faculty are women, which usually means they have the least security of position under ABA Standard 405(d). To the extent law schools fail to renew legal writing contracts in a manner inconsistent with 405(d), they are almost 2½ times as likely to disadvantage a woman.
I have long advocated for tenure eligibility for all law faculty regardless of subject matter. That said, ensuring fair compliance with Standard 405(c) is at least a beginning to the work that needs to be done to improve the status of a predominantly female professional skills faculty. Ostensibly, 405(c) protects clinical faculty, but law schools often fail to comply with it, and, as Professor Kathryn Stanchi points out, it acts in practice to cabin faculty and discourage academic freedom.
Tuesday, May 30, 2017
The Unlikely Focal Point in the Title IX Campus Assault Debate: The Preponderance of Evidence Standard
Deborah Brake, Fighting the Rape Culture Wars Through the Preponderance of the Evidence Standard, 78 Montana L.Rev. 109 (2017)
In the heated controversy over the obligations Title IX places on colleges and universities to respond to sexual assault, no issue has been more contentious than the standard of proof used to make findings of responsibility in internal student misconduct processes. In 2011, the Office for Civil Rights (OCR) of the U.S. Department of Education released a “Dear Colleague” letter (DCL) clarifying the obligations imposed on institutions of higher education to use fair and equitable grievances procedures in resolving allegations of sexual assault. Among numerous other requirements, the DCL alerted colleges and universities that it expected them to use the normal civil standard, a preponderance of the evidence (POE), in resolving internal complaints of alleged sexual assault. From the beginning, detractors of the DCL have decried the unfairness of forcing campuses to find students responsible for sexual assault based on a preponderance of the evidence, and the POE remains the singularly most controversial piece of the Title IX framework.
On the surface, the POE is an unlikely focal point in the debate over Title IX’s application to sexual violence. Notwithstanding the emphasis OCR’s critics have placed on the POE, the agency’s 2011 endorsement of the POE largely ratified the status quo. Most educational institutions were already using the POE for sexual misconduct cases well before OCR weighed in. Moreover, it is unclear how much distance separates the POE and its closest competitor, the clear and convincing evidence standard. Although this article defends the POE and argues against ratcheting up the standard to require proof by clear and convincing evidence, it contends that the actual impact of OCR’s endorsement of the POE standard is disproportionate to the pitched debate it has prompted. Understanding why the POE is so contentious requires an examination of the broader debate over Title IX’s application to campus sexual assault.
Monday, May 1, 2017
Daily Telegraph, The New Trend For Studying Gender, Apr. 24, 2017 (link not available).
A rise in the discussion about gender has led to a range of new courses, from celebrity-endorsed women studies to the world's first queer history course. Alice Barraclough finds out what they offer.Of course you don't need a master's degree in feminism to understand inequality between the sexes. But a postgraduate degree in gender studies - or indeed in sexuality or queer history - isn't just about understanding that inequality, but the theories behind it and how we can make a difference.Over the past few years, gender studies has become an increasingly popular cross-disciplinary postgraduate course. It taps into subjects ranging from history and law, to literature, politics and even science. While graduates go on to work for NGOs, charities and advocacy groups, the courses are also popular with professionals who already work in both the public and private sectors, and wish to develop a deeper understanding of gendered practice.The University of Oxford offers a MSt in women's studies while Cambridge offers an MPhil in gender studies. You can study for an MSc in gender and international relations at Bristol or an MA in women, violence and conflict at York.Dr Ann Kaloski Naylor, lecturer at the Centre for Women's Studies, University of York, says students choose women's studies because they want to make a difference to the world, "especially (not exclusively) to the position of women, and feel that this is not only necessary but possible; they want to lead useful lives inspired by, and grounded in, scholarly thought".But why, in 2017, are these courses gaining such interest? "There's definitely a renewed interest from young people. This is enhanced by social media, which has popularised feminism, in that when teenagers sense gender inequality and oppression there is somewhere easy to go to find out and to chat to others," says Dr Kaloski Naylor. "It's a 21stcentury version of 'consciousnessraising' groups, where many women (and some men) can discover that their own sense of injustice is shared, and that personal inequalities - for example, not being allowed to play football or netball, or being told to wear certain clothes - stem from much wider understandings of women and men. It's also clear that issues of abuse and violence motivate people of many genders, and our degree programmes and modules that address issues of violence and feminist cultural activism are really popular."Violence against women is increasingly recognised as a global issue. From September, a one-year MSc in women, peace and security will run at the London School of Economics (LSE) - the first of its kind. What's more, actor and director Angelina Jolie will join former foreign secretary William Hague as a "professor in practice". Last month, Ms Jolie led a postgraduate women, peace and security class at LSE as part of the one-term module currently offered to postgraduate degree students. She spoke about her experience in the field and what motivated her work as UN special envoy.
Friday, April 28, 2017
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.
Task Forces and Best Practices Rather than Litigation 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.
Monday, April 24, 2017
Deborah Jones Merritt, Ruth Colker, Ellen Deason, Monte Smith & Abigail Shoben, Formative Assessments: A Law School Case Study, Univ. Detroit Mercy L. Rev. (forthcoming)
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.
Thursday, April 6, 2017
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.
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.
Thursday, February 23, 2017
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.
Wednesday, February 22, 2017
Sarah Lynnda Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Kansas L.Rev. (forthcoming)
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.
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.