Gender and the Law Prof Blog

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

Wednesday, June 13, 2018

Senate Judiciary Committee Hearing Today on Sexual Harassment by Judges

Watch the hearing here on CSPAN Senate Committee Examines Workplace Misconduct in the Federal Judiciary, June 13, 2018

Joan Biskupic, CNN, Senate Judiciary Committee Takes up #MeToo in the Courts

The Senate Judiciary Committee will hear testimony related to judicial misconduct on Wednesday, including from a Washington lawyer who says she collected numerous accounts of sexual harassment by judges, in the first public airing of US judges' #MeToo moment.

Jaime Santos says that after women went public last December with complaints against California-based US Appeals Court Judge Alex Kozinski, she and colleagues began trying to address the larger harassment issue by talking to women who had worked closely with federal judges in prestigious law clerk positions.
"Harassment and abuse within the judiciary are not the rule, but these experiences are not uncommon," Santos, who is a former law clerk from the 9th Circuit, where Kozinski served, says in prepared testimony. "Law clerks and externs from numerous federal courts shared with us that they had felt demeaned, belittled, or humiliated during their clerkships or externships.
 
"Some shared stories about being asked sexual questions during job interviews, hearing their judge or co-clerks speak about female attorneys in derogatory and objectifying terms, and being groped or kissed in public and in private."
 
A CNN special report in January, examining about 5,000 judicial orders arising from misconduct complaints over the past decade, found that courthouse employees and others with potentially valid complaints against judges rarely use the judiciary's misconduct system, or get no relief when they do. Judges overseeing the system seldom find that a claim warrants an investigation or that a judge should be disciplined.
 
On Wednesday the Senate committee is also scheduled to hear from James Duff, director of the Administrative Office of the US Courts, who oversaw a group set up to examine judicial misconduct. Chief Justice John Roberts established the working group in December after The Washington Post first reported complaints from women against Kozinski.
 
In his prepared remarks, Duff highlights the group's proposal for a national Office of Judicial Integrity, with a hotline for employees to seek counseling, guidance and intervention if harassed. Duff also says the current process for reporting complaints against judges "works well when utilized." He said officials are trying to make it easier to use.
The working group reported earlier this month that "inappropriate conduct" in courthouses is "not limited to a few isolated instances," but the group did not detail the magnitude of employee abuse beyond saying it was "not pervasive."
It did make several recommendations, including that judges put a greater priority on improving workplace culture, the code of conduct be revised to make clear what behavior is prohibited and the complaint system be made more transparent and accessible.
 

Live tweeting commentary on the hearing by Courtney Milan (pen name of former law prof and Kozinski judicial clerk Heidi Bond) @courtneymilan 

For more on the Working Group Report from the committee which studied the issue:

The Federal Judiciary Working Group Issues Its Report on Workplace Sexual Misconduct

Working Group Recommends Changes to Prevent Workplace Harassment in the Judiciary

June 13, 2018 in Courts, Judges, Legislation, Women lawyers, Workplace | Permalink | Comments (0)

Tuesday, June 12, 2018

CFP The Trump Administration and the War on Diversity

2018 Law & Society Association Diversity Committee and Wake Forest University Law Review Symposium Issue

“The Trump Administration and the War on Diversity”

Call for Papers

The Trump Administration has inspired much criticism within the realm of diversity advocates. Since his election, President Trump has moved swiftly to change and overhaul civil rights protections. Exclusionary actions on the part of the Executive Branch have already impacted universities and workplaces across the nation. To the dismay of diversity advocates, these attacks on inclusion have been both numerous and effective in emboldening those who have long fought against efforts for greater diversity and inclusion.

These attacks impact diversity at a broader level including race, ethnicity, socioeconomic status, disability, religion, genetic/health status, sexual orientation, gender identity, and addiction. There are few indications that the administration will limit itself to these actions. This symposium issue explores the iterations and nuances of diversity and discrimination during the Trump Administration.

We invite scholars from all fields to submit 500-word proposals for papers to be submitted to the symposium issue by Friday, August 3, 2018. Proposals must be sent to Hailey Cleek, the Senior Articles Editor (cleehm16@wfu.edu). The Law Review will accept two types of proposals: (1) those that will be longer pieces (approximately 8,000 - 15,000 words) to be published in the bound edition of the Law Review and (2) those that will be shorter pieces (between 2,000-2,500 words with approximately 50 footnotes) and published in the Law Review’s on-line platform. Submissions can explore any topic relevant to understanding diversity in the context of the Trump Administration. Interdisciplinary and diverse approaches (historical, philosophical, qualitative, quantitative, etc.) are strongly encouraged.

Papers accepted for publication will be due on December 3, 2018 with an expected length of approximately 12,000 words. First author reads will be returned March 13, 2019 with needed revisions on March 20, 2019. Final author reads will be April 5, 2019 with needed revisions on April 12, 2019. Shorter, on-line submissions must be submitted by January 25, 2019. Please indicate if the submission is a colloquy and who the colloquy author is. Colloquies will follow an opening statement, rebuttal, and closing statement format.

June 12, 2018 in Call for Papers | Permalink | Comments (0)

The Unfinished Story of Roe v. Wade

Reva Siegel & Linda Greenhouse, The Unfinished Story of Roe v. Wade, in Reproductive Rights and Justice Stories (Melissa Murray, Kate Shaw & Reva Siegel eds., forthcoming 2019)

We tell the story of Roe v. Wade for a forthcoming volume in the Foundation Press Law Stories series. To those who support abortion rights, Roe demonstrates the Court’s crucial role in protecting individual rights in the face of determined political opposition. For its critics, Roe was the work of an “unelected” Court creating new constitutional rights; supposedly, by deciding matters properly left to democratic determination, the Court inflamed conflict over abortion and riled our politics.

We explain the origins of the abortion right and conflicts over it differently. The story we tell is not simply a litigation history of a landmark case, but as importantly a story about the democratic foundations of our constitutional law. We start our account of the abortion conflict before Supreme Court litigation begins. Conflict enters the picture well before the courts do, as people argue over the Constitution’s meaning in their everyday lives. We recount how citizens who lacked power in any conventional sense were able over time to change the way the nation and its courts understood longstanding guarantees of liberty, of equality, and of life.

Roe itself, filed in federal district court in Dallas in March 1970, was one of many cases in the late 1960s and early 1970s that invoked the Constitution to challenge the century-old regime of criminal abortion statutes; Roe just happened to be first in line on the Supreme Court's docket. These cases emerged from principled and heated dialogue among powerful social movements that initially did not even have courts in view. The story of Roe v. Wade is the story of conflict born in democratic politics that engendered the rights claims that the Court would ultimately recognize. The conflict continues to this day, even as advocates and their arguments have changed as few would have expected. 

This framework offers a fresh context for reading Roe. Enlarging our perspective in this way allows us to recover claims for and against abortion rights to which the Court’s opinion in Roe responded, as well as claims that the Court ignored—claims for women’s equality and for protecting potential life that played an important role in reshaping the abortion right nearly twenty years later in Planned Parenthood of Southeastern Pennsylvania v. Casey

The account of Roe’s history the chapter offers can inform both normative and predictive debate about Roe’s future.

June 12, 2018 in Abortion, Constitutional, Legal History | Permalink | Comments (0)

Monday, June 11, 2018

Registration Open for Georgia Women's Leadership in Academia Conference

Hello,

The University of Georgia School of Law and the Women’s Leadership in Academia initiative is proud to announce that our 2018 summer conference is now open for registration!

Please visit the conference website at http://www.law.uga.edu/womens-leadership-academia-conference to see the schedule, read about supplemental events such as a CV review opportunity and an optional book club, and register to attend! The conference website also has information about travel and available hotel blocks.

 

The Women’s Leadership in Academia Conference will be held July 19-20, 2018 at the University of Georgia’s School of Law in beautiful Athens, GA. This conference provides substantive leadership programming aimed at advancing women law professors, law librarians, and clinicians in leadership positions in the academy.

 

Please circulate this announcement widely to your friends and colleagues interested in advancing women in legal education. We hope you will be able to join us!

June 11, 2018 in Conferences | Permalink | Comments (0)

Illinois Ratifies the Equal Rights Amendment

Illinois Ratifies Equal Rights Amendment Decades After Deadline

Illinois state lawmakers voted Wednesday to ratify the Equal Rights Amendment — decades after Congress’s deadline to ratify the measure expired.

The Illinois House passed the measure 72-45, the Chicago Tribune reported. The state Senate had voted in favor of ratification last month, and it does not require the support of Gov. Bruce Rauner (R).

The passage sets the stage for a possible legal battle over the amendment, since Congress’s deadline for states to ratify the amendment expired in 1982.

But supporters argue that because a 1789 amendment was ratified more than two centuries later, in 1992, the Equal Rights Amendment could still be added to the Constitution, the Tribune noted.

Congress approved the amendment in 1972. But only 35 states ratified it ahead of the deadline, three short of the number required to add it to the Constitution.

Nevada similarly ratified the Equal Rights Amendment last year after the deadline.

See also Illinois Approves Equal Rights Amendment, 36 Years after Deadline

Some critics have also questioned the necessity of such an amendment, saying federal laws have already been passed to extend equal rights to women. Stone said ratification of the amendment “would make some difference in marginal cases where the law allows discrimination today” and “lock in” many of the federal protections women have gained over the decades.

“The main reason for adopting the Equal Rights Amendment today if one could legally, constitutionally do it would be the symbolic importance of it,” Stone said. “The rejection of it is in some ways insulting. So, the symbolic importance of it is to who we are as a nation — what our aspirations are, what our values are. That in itself is an important affirmation of who we are.”

For the legal history of the ERA from beginning to end, see my chapter with TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women's Political Activism (Holly J. McCammon & Lee Ann Banaszak, eds.) (Oxford Press 2018)

The ERA Coalition believes the time is ripe again for an equal rights amendment, given the next generation’s interest and recent political activity (Neuwirth 2015). In 2014 Oregon passed a state ERA referendum with 64% of the vote. Illinois and Virginia also passed state ERA laws, two states that had not previously ratified the federal ERA. Federal ERA  proponents advocate a “three-states-more” strategy, which assumes the continued validity of the prior ratifications and seeks ratification of ther required three additional states. One state, Nevada, ratified the ERA in March 2017. This extended ratification strategy is supported by the delayed the ratification of the Twenty-Seventh Amendment (salary change for Congress must take effect the following term),  as it was sent to the states for ratification in 1789, but not ratified until 1992, when the last states joined (Burroughs 2015).

June 11, 2018 in Constitutional, Legal History | Permalink | Comments (0)

The Federal Judiciary Committee Issues its Report on Workplace Sexual Misconduct

Workplace Changes Recommended for Judiciary

The Federal Judiciary Workplace Conduct Working Group, a group of federal judges and senior Judiciary officials formed at the request of Chief Justice John G. Roberts, Jr., issued a report recommending measures to improve workplace conduct policies and procedures in the federal Judiciary. The Working Group submitted its findings to the Judicial Conference of the United States, the federal Judiciary’s policy-making body. The report and an executive summary are available online.

 

The recommendations include clarifying workplace standards and communications about how employees can raise formal complaints, removing barriers to reporting complaints, providing additional and less formal avenues for employees to seek expert advice and assistance on workplace conduct issues, and utilizing enhanced training on these subjects for judges and employees.

 

Several recommendations of the Working Group have already been implemented or are underway, such as clarifying that confidentiality rules in the Judiciary do not prevent law clerks or employees from reporting misconduct by judges. Many of the report’s recommendations require further action by the Judicial Conference.  

The report is here.

Commentary by Joan Biskupic, CNN, Judicial "Inappropriate Conduct" Broader than Isolated Incidents, Panel Finds

A special US judiciary working group set up last December after a prominent appeals court judge was accused of sexual harassment reported on Monday that "inappropriate conduct" in the nation's courthouses is "not limited to a few isolated instances."

 
Yet the eight-member group -- which met with scores of former and current employees of the judiciary and invited comment nationwide -- did not detail the magnitude of employee abuse in the US judiciary beyond saying it was "not pervasive." The group also did not note whether, during its five months of study, any action was taken against individual judges or other court employees.
The working group, which was established by Chief Justice John Roberts, made several recommendations in its report, including that:
  • judges should put a greater priority on improving workplace culture
  • the code of conduct should be revised to make clear what behavior is prohibited
  • the complaint system should be made more transparent and accessible.

June 11, 2018 in Courts, Judges, Women lawyers, Workplace | Permalink | Comments (0)

Students Brainstorm How to Change the World on Law & Gender

Melissa Berger, Inspirational Office Art

Each law student was provided with two index cards.  One was entitled ACTION ITEM and the other was entitled TAKE-AWAY. The students were asked to complete the cards in their own handwriting and in their own words. I explained to the students that the cards would be placed onto a poster that would hang in my office. The Action Item was to describe a concrete step forward in the area of Gender Equality that the students hoped we could achieve. I had them tie this action item to their specific research and final paper in the class. If the goal had been achieved by the next time they saw the poster, they could remove the card from the board.  (Cards were taped loosely with decorative metallic tape). The Take-Away item was to describe what each student would take away from the course and hopefully pass forward.

 

Once the cards were completed, I had the students bring the cards to our last class. For this class, I reserved a free conference room in the back of a nearby coffee and bagel shop. My (mostly, but not entirely female) students apparently had named this our “Empowerment Brunch.”

 

I had each law student “present” their cards and tape the cards onto a black poster board. The end result was an inspirational poster board that the students can re-visit whenever they visit their alma mater.

 

Ahead of class, I had explained to the students in an email:  “During this class, we will engage in a BRAINSTORMING SESSION about how to CHANGE THE WORLD. To that end, please bring with you your two INDEX CARDS filled out in advance. Remember the TAKE-AWAY card is what will you take away from this course (perhaps from the readings, the presentations, the classes, other).  What will you take with you for years to come (and perhaps pass forward)? Remember the ACTION ITEM card is based upon the research you conducted this semester – what do you hope we can accomplish specifically?  What is the one action item that could solve or ameliorate your legal dilemma/question?

 

I will make up a poster board with our cards and other graphics and keep it on display in my office.   In future years, when you come visit me—perhaps we will see real progress on some of these action items. After a semester of heavy coursework, let’s stay positive and push this ball forward. We are all relying on YOUR GENERATION to change how the law treats gender going forward.”

 

Some of the students’ Action items would likely actualize in the near future, such as “Get three people a year to watch a women’s sports events.” Others were loftier, but so important to articulate: “I want to dedicate my legal career to public service to help women, transgender and non-gender conforming individuals to gain full equality under the law.”

 

In terms of the Take-Aways, the cards were varied and proved quite moving as well, such as: “The law touches nearly every aspect of women’s lives,” and “Discussion about equality promotes equality.”

 

It was a terrific final class full of motivating conversation and plenty of dreaming. This poster proudly hangs in my office and still inspires me today

June 11, 2018 in Education, Law schools | Permalink | Comments (0)

The Jurisprudence of Uncertainty: Knowledge, Science & Abortion

Mary Ziegler, The Jurisprudence of Uncertainty: Knowledge, Science & Abortion, 2018 Wisconsin L. Rev. 316 (2018)

While the outcome of abortion cases seems to depend exclusively on the undue-burden standard, we have mostly missed the linchpin of recent decisions: conclusions about who has the authority to resolve uncertain scientific or moral questions. Using original archival research, this Article traces the history and present-day impact of the law and politics of uncertainty doctrine in abortion law.

 

The Article makes sense of the inconsistency running through the Court’s abortion jurisprudence: that the Court has not applied a single, coherent definition of uncertainty. Specifically, the Court has confused objective uncertainty, involving gaps in knowledge that can theoretically be closed through research, and subjective uncertainty, involving moral, ethical, or philosophical questions. Conflating these two kinds of uncertainty has led the Court to inject moral disapproval and disgust into what theoretically are questions of fact.

 

The Article proposes that the Court should formally distinguish between objective and subjective uncertainty. In cases of subjective uncertainty, the Court should generally defer to legislatures’ views on matters like the value of fetal life or equality for women, balancing them against the constitutional liberty recognized in Casey and Roe. When dealing with objective uncertainty, the Court should look for evidence on the purpose and effect of a law as the Court recently explained in Whole Woman’s Health v. Hellerstedt. Disentangling the two forms of uncertainty will make abortion jurisprudence more coherent, consistent, and faithful to the balance of competing constitutional values that Casey and Whole Woman’s Health command.

June 11, 2018 in Abortion, SCOTUS | Permalink | Comments (0)

CFP The Uses and Abuses of History in the Trump Era

Call for Papers

Conference: “The Uses and Abuses of History in the Trump Era”

Rochester Institute of Technology, Rochester, NY

March 28-29, 2019

“The very concept of objective truth is fading out of the world. Lies will pass into history.” –George Orwell

Scholars, artists, and writers are invited to submit proposals for presentations at this interdisciplinary conference.

Conference theme:

The past is infinitely productive as a deep well of symbolic persuasion. Political actors dip into the well for inspirational tales of heroes and cautionary tales of reprobates and failed experiments. Evocations of the past insinuate messages of belonging, the contours of the polity, values, and leadership.

During the 2016 US presidential campaign, the candidates harnessed public memory to gain support. While Hillary Clinton aligned herself with the suffragists as she aimed to become the country’s first female president nearly a century after women gained the right to vote, Donald Trump’s “Make America Great Again” stirred up nostalgic visions of hope for white, working-class male prosperity and pride.

Since the election, the historical imagination has been pushed into overdrive, as a highly polarized electorate aims to promote its vision of the nation’s future, often by asserting certain narratives about the past. Examples can be seen in debates about the racism of famous suffragists, the statues of confederate soldiers, a portrait of Andrew Jackson in the Oval Office, “Pocahontas” as a slur, Harriett Tubman’s image on the $20 bill, the flag as a symbol of “our heritage,” “chain migration” and “anchor babies,” whether the country is a “nation of immigrants,” and whether it was “founded on Judeo-Christian principles.”

This conference celebrates the publication of and features work by contributors to the interdisciplinary volume, Nasty Women and Bad Hombres: Gender and Race in the 2016 US Presidential Election (Christine A. Kray, Tamar W. Carroll, and Hinda Mandell, eds., University of Rochester Press, forthcoming October 2018). While the book sits at the heart of the conference, we also call upon scholars, artists and writers to present new works related to the conference themes.

Possible topics:

We seek presentations that: analyze recent evocations of the past in national political discourse, offer correctives of such representations, and/or situate contemporary developments in historical context.

Possible areas of investigation include (but are not limited to):

  • Critical analyses of heritage, tradition, nostalgia, commemoration, and politics
  • “Alternative facts” and alternative histories
  • The historical role of news media in U.S. politics and charges of “fake news”
  • Social media, popular media, and national politics
  • Stephen Bannon’s historical vision
  • History and nationalism, including the global resurgence of nationalism and the history and contemporary expressions of White nationalism in the U.S.
  • Men’s movements and the alt-right
  • S.-Russia relations
  • Policymaking, including environmental, industrial, and trade; “Bring back coal”; “Bring back manufacturing”
  • Religious histories and histories of religion in U.S. politics
  • Contemporary social movements, including #BlackLivesMatter, #NoDAPL, #MeToo, #NeverAgain, and the Women’s Marches
  • Histories of resistance and history-within-resistance; creativity and history in art, craft, dance, and song
  • Suffragist history and “pro-life feminism”
  • The occupation at Standing Rock and symbols of sovereignty; Right by prior occupation: indigenous sovereignty and Zionism, compared
  • Immigration policy and race relations; “genealogical activism” and #ResistanceGenealogy; Rep. Steve King (R-IA): “We cannot restore our civilization with somebody else’s babies.”
  • Post-election memoirs and public memory of the 2016 presidential election
  • The historical significance of women running for election in the 2018 midterms
  • The right, the left, and the FBI
  • Kanye West on Harriet Tubman and slavery as a “choice”
  • Public anthropology, public history, and national politics

Presentation proposals:

Abstracts of 300-500 words should be sent to Christine Kray: cakgss@rit.edu.

Deadline for submission of abstracts: Sept. 1, 2018

Accepted presenters will be notified by Sept. 15, 2018

Questions? Contact the conference organizers:

Christine A. Kray, Department of Sociology & Anthropology, Rochester Institute of Technology, cakgss@rit.edu

Tamar W. Carroll, Department of History, Rochester Institute of Technology, twcgsh@rit.edu

Conference participants will have the option of participating in a tour of the Susan B. Anthony Museum and House and a trip to the Mount Hope Cemetery to visit the graves of Frederick Douglass and Susan B. Anthony. The conference will also feature a showing of “Election Day 2016,” a documentary film about the convergence on Susan B. Anthony’s grave in 2016.

A nominal registration fee for conference presenters will cover all meals. Information about hotel group rates, directions, parking, and tours is forthcoming. All conference rooms will be equipped with projector, screen, Internet connection, and microphone. Sign-language interpreters are available upon request, subject to availability.

Conference website: https://www.rit.edu/cla/socanthro/conference-uses-and-abuses-history-trump-era

June 11, 2018 in Call for Papers, Media, Pop Culture | Permalink | Comments (0)

Friday, May 11, 2018

Reconceptualizing Sexual Harassment, Again

Vicki Schultz, Reconceptualizing Sexual Harassment, Again

Twenty years ago, I published an article in the Yale Law Journal entitled “Reconceptualizing Sexual Harassment.” Five years later, I published a follow-up article in YLJ. These two pieces anchored a body of writing that proposed a new theory of sexual harassment. 

Recent events reveal the work still depressingly relevant. Still relevant, because sexual harassment remains far too widespread, despite forty years of activism and legal reform. And still relevant, because the need for an adequate theoretical framework to guide action remains as pressing as ever, twenty years later.

Now is the time to reinvigorate theory. With the election of Donald Trump and the rise of the #MeToo movement, we are witnessing an extraordinary cultural moment of resistance against sexual harassment — one that could enable real change. I am heartened by the courage, tenacity, and smarts of the women and men who have come forward to challenge harassment in an effort to change the status quo. I include here not only the survivors who have risked so much to share their stories, but also the reporters who have worked to expose long-held secrets in the entertainment, technology, media, and other important industries. Most reports have focused on workplace or career-related harassment, a focus that is unsurprising given the centrality of work and workplace inequality to women’s lives. For that reason, this essay will focus on workplace harassment (though much of the analysis would apply also to sexual harassment on campus, a sphere that is important in its own right and as a training ground for professional life).

May 11, 2018 in Theory, Violence Against Women | Permalink | Comments (0)

The MeToo Movement as an Analytical Tool to Critique Rape Crisis Framing of Victim Services

Jamie Abrams, The #MeToo Movement: An Invitation for Feminist Critique of Rape Crisis Framing, 52 Richmond L. Rev. (forthcoming)

This article invites feminists to leverage the #MeToo Movement as a critical analytical tool to explore the longevity of the enduring rape crisis framing of victim services. For nearly half a century, victims have visited rape crisis centers, called rape crisis hotlines, and mobilized rape crisis response teams to provide services and support. This enduring political and social framing around rape as a crisis is opaque, has prompted a political backlash, and risks distorting hard-fought feminist legal, social, and political battles. It has yielded underreporting, underutilization, and recurring risks of budgetary cuts. This model and terminology have gone virtually unchanged for nearly half a century. Crisis language denotes urgency, decisiveness, judgment, action, and mobilization, all leading to closure. These descriptions can be problematic when mapped onto the lived experiences of certain communities. 

The #MeToo Movement presents modern feminists with a powerful, productive, and timely opportunity to critique the existing crisis model of service provision and support. This article invites feminists to begin this dialogue. It presents three critiques of the current framing. First, the crisis framing risks resurrecting troublesome legal relics relating to statutes of limitations and evidentiary hurdles. Second, it risks being perceived as exclusionary and limited, thus cabining its impact. Particularly, campus sexual assault victims and marginalized communities generally may not universally connect to an opaque crisis framing. Third, crisis framing risks distorting the scope of sexual assault. It limits the expansive range of harms that are associated with rape and sexual assault and the systemic longevity of the problem of rape and sexual assault in society. While the language of crisis seems to invoke an urgent call to action, which is to be applauded, this language risks blurring the long history of sexual assault and erasing a legacy of inaction in countless institutional and political and social settings. It also suggests a beginning and an end to a victim’s recovery journey. It suggests that closure is attainable when in reality, ongoing monitoring, responsiveness, and engagement are critically necessary.

May 11, 2018 in Pop Culture, Theory, Violence Against Women | Permalink | Comments (0)

Developing Enhanced Due Process Protections for Title IX Sexual Assault Cases at Public Institutions

Jim Newberry & William E. Thro, After the Dear Colleague Letter: Developing the Enhanced Due Process Protections for Title IX Sexual Assault Cases at Public Institutions, Journal of College & University Law (forthcoming).

Since the formation of the American Republic, Americans have maintained a fundamental mistrust of government power. In the Title IX realm, the Obama Administration exacerbated those concerns. In its efforts to enforce Title IX and to reduce sexual misconduct on campuses, the Obama Administration issued a “Dear Colleague Letter” in April 2011 and a follow up Question and Answer document in April 2014, both of which set out OCR’s view of the obligations of institutions receiving federal financial assistance under Title IX and its implementing regulations. This 2011 Dear Colleague Letter “explains the requirements of Title IX pertaining to sexual-harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.” 

As Fifth Circuit Judge Edith Jones observed, this 2011 Dear Colleague Letter, “was not adopted according to notice-and-comment rulemaking procedures; its extremely broad definition of ’sexual harassment’ has no counterpart in federal civil rights case law; and the procedures prescribed for adjudication of sexual misconduct are heavily weighted in favor of finding guilt.” Specifically, the Dear Colleague Letter and the 2014 OCR Q & A document: (1) suggest institutions handle sexual assault cases with a single person serving as detective, prosecutor, judge, and jury; (2) maintain hearings are not required; (3) imply “the school should not start the proceedings with a presumption of innocence, or even a stance of neutrality . . . [but with an assumption] any complaint is valid and the accused is guilty as charged;” (4) forbid the consideration of the complainant’s sexual history with anyone other than the accused student; (5) discourage cross-examination; (6) allow an appeal of not guilty verdicts; and (7) mandate a preponderance of the evidence—rather than clear and convincing evidence or beyond a reasonable doubt—as the standard for determining guilt. Although the 2011 Dear Colleague Letter and the 2014 Q & A result in an increased focus on the problems of sexual assault on campus, some scholars have suggested these documents undermine due process. 

On September 22, 2017, the Secretary of Education released new guidance that revoked both the 2011 Dear Colleague Letter and the 2014 Q & A document. Instead, OCR established Revised Sexual Harassment Guidance as the guiding light for future assessments of institutional compliance. Further, the Secretary announced her plans to initiate a “rulemaking process that responds to public comment.” The proposed rulemaking process will undoubtedly address multiple stakeholder concerns with the approach to sexual misconduct, but one anticipates that due process concerns for public institutions will be near the top of the list of concerns addressed in rulemaking effort. 

The purpose of this Essay is to set out a vision for what due process in the Title IX sexual assault context should look like. In accomplishing this purpose, the authors—drawing on existing case law, policy arguments, and their own experiences as higher education lawyers—propose a set of due process protections which will equitably balance the interests of (a) Complaining Witness seeking redress for multiple forms of sexual misconduct, (b) Respondents seeking protection against lifelong stigmas arising from unfair campus proceedings, and (c) institutions of higher education seeking to eliminate all forms of educational program discrimination based on sex. 

May 11, 2018 in Constitutional, Education, Violence Against Women | Permalink | Comments (0)

Mother's Day - Friend or Foe to Feminism?

Thursday, May 10, 2018

New Ruth Bader Ginsburg Movie Finds its Heart in Love, not Law

Vogue, A New Ruth Bader Ginsburg Movie Finds its Heart in Love, not Law

The Ruth Bader Ginsburg documentaryRBG, directed by Betsy West and Julie Cohen, is probably not what you think it is, or even what, given the partisan hoopla in which we attempt to live our lives, you’d be forgiven for thinking it might be: a fawning polemic detailing a liberal justice battling the court’s right wing. There is fawning, though a fair amount is done by conservatives, including soon-to-retire Republican Senator Orrin Hatch and Antonin Scalia, the conservative justice and, until his death in 2016, the BFF of RBG. But the film is a deftly crafted portrait of a refreshingly wildly mild-mannered legal mind who was a powerful force in American life long before she donned the black robes and her trademark collars (one for dissenting opinions, one when she is siding with the majority, a fashion touch she developed with her female justice predecessor, Sandra Day O’Connor). What’s surprising to a casual follower of the judicial branch is that you’ll be reaching not for your legal pad while watching the film, but the tissues, given that what actually underpins RBG is a love story.

May 10, 2018 in Media, Pop Culture, SCOTUS, Women lawyers | Permalink | Comments (0)

CFP 2d Annual Equality Law Scholars' Forum

Call for Proposals for the Second Annual Equality Law Scholars’ Forum

Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law last fall, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) announce the Second Annual Equality Law Scholars’ Forum to be held this fall.  This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 9-10, 2018 at UC Davis Law School.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 1, 2018.

Full drafts must be available for circulation to participants by October 19, 2018.

Proposals should be submitted to:

Tristin Green, USF School of Law, tgreen4@usfca.edu.  Electronic submissions via email are preferred.

May 10, 2018 in Call for Papers | Permalink | Comments (0)

Law Professors Weigh in on School Dress Codes and Mandatory Bras

Wash Times, School May Make Bras Mandatory After Forcing Student to Cover Nipples with Band-Aids

The American Civil Liberties Union stepped in this week to defend the choice of students at a Florida high school to go bra-free, saying the school’s threat to impose a mandatory bra policy for girls amount to sex discrimination.

 

The ACLU says Braden River High School in Bradenton violated a 17-year-old student’s rights last month after it required her to cover her nipples with adhesive bandages, saying her undergarment-free look had become a distraction to fellow students, including boys who laughed or stared at her.

 

Lizzy Martinez was pulled from class, given an extra shirt and, when that wasn’t deemed enough, given the bandages. She was then sent back to her classroom after what she called a humiliating experience.

 

“Stop sexualizing my body,” she said, taking to Twitter to ding her school.

 

She attempted to lead a boycott, urging fellow students to come to school without bras or speak out about her treatment, but the school warned that this too could be deemed a distraction.

. . . . 

 

Elizabeth M. Schneider, a professor at Brooklyn Law School, said schools need to be wary of citing distractions as the basis for their rules. She said educational institutions, like law schools, used to exclude women on the basis that their presence would distract male students and thus inhibit learning.

 

“The high school is playing into a very old and illegal concept in using the theme of distraction as a ground for differential treatment,” Ms. Schneider said.

 

She also said it would be unconstitutional to make it mandatory for female students to wear bras.

 

“Unless you are going to do a body check of every woman student who comes through the door, which would be even far more illegal, it’s impossible to check,” Ms. Schneider said.

 

Tracy A. Thomas, a professor at the University of Akron School of Law, said Lizzy’s situation is representative of the #MeToo movement with women coming forward sharing experiences of sexual harassment.

 

“Girls are surprised and hurt when they learn that their fellow male students and the administrators view them through this sexualized lens,” she said.

 

She suggested school policies punish boys for inappropriate comments, rather than shame female students.

A related earlier blog post is here.

May 10, 2018 in Constitutional, Education | Permalink | Comments (0)

Changing the Toxic Culture of Domestic Violence by Renorming in Law

Melissa Berger, Reforming by Re-Norming: How the Legal System has the Potential to Change a Toxic Culture of Domestic Violence, 44 Notre Dame J. of Legislation 171 (2018)

Regressive societal norms and gender-based biases, both explicit and implicit, have compounded over time to form a cultural realm of tolerance toward domestic violence. This Article examines how the law has contributed to the development of this culture, and more importantly, how the law can be utilized to transform a toxic culture of intimate partner violence. The law can be a positive agent of change, and its powers should be marshaled to effectuate change in attitudes and norms towards domestic violence. By importing the social norms theory of psychology and theories of re-norming and implicit biases, we may work to detoxify society’s treatment and tolerance of intimate partner violence.

May 10, 2018 in Gender, Violence Against Women | Permalink | Comments (0)

Tuesday, May 1, 2018

The Case Against Mandatory Referral Laws for Campus Gender Violence

Alexandra Brodsky, Against Taking Rape Seriously: The Case Against Mandatory Referral Laws for Campus Gender Violence, 53 Harvard Civil Rights-Civil Liberties J. 131 (2018)

In response to growing national concern about gender violence on college campuses, legislators have proposed a rash of state and federal bills that would require schools to refer all sexual assault reports to the police, regardless of the student victims’ wishes. These so-called “mandatory referral” laws appeal to a popular intuition that the best way to address rape is to involve law enforcement. Yet surveys, victims’ criticism, and the history of other efforts to force survivors into the criminal legal system show that such bills would discourage survivors who wish to avoid criminal intervention from reporting to their schools and, as a result, directly undermine the wellbeing of victims and reduce opportunities for accountability. Despite clear shortcomings, opponents of campus rape reform have been able to champion these counter-productive bills under the guise of supporting survivors by co-opting a historically salient feminist strategy: demanding that policymakers take gender violence “seriously,” which the public imagination equates with criminal prosecution. This Article maps the political landscape that gives rise to mandatory referral bills, explains the proposals’ failures as a matter of policy, and calls for a new rhetoric of taking victims’ needs seriously.

May 1, 2018 in Education, Violence Against Women | Permalink | Comments (0)

School Dress Codes and Bras

ACLU Warns Florida School District its Dress Code and Protest Policies are Unconstitutional

The ACLU is intervening after [Lizzy] Martinez, a 17-year-old junior at Braden River, was disciplined for not wearing a bra under her shirt to school due to a painful sunburn. School administration removed her from class, told her she was distracting other students, and required her to put Band-Aids over her nipples for the rest of the day. The school maintained that it was doing this in Martinez’s best interest — but then proceeded to block her on Twitter when she complained that she felt sexualized, and it discouraged students from participating in a student protest against the stigmatization of female bodies.

The ACLU letter to the school district is here and it is well worth the read.

As described above, the justification proffered for the enforcement of the dress code against Ms. Martinez was rooted in sex stereotypes that male students were “distracted” by her nipples and a paternalistic desire to “protect” Ms. Martinez from the laughter and stares of her male classmates. The justification reflects overly broad and archaic generalizations about boys’ inability to control their sexual impulses and girls’ inability to make their own decisions about the clothing that makes them feel safe and comfortable. These stereotypes reinforce a culture of victim blaming in which schools convey the message to female students that they are at fault for experiencing sexual harassment if they make certain clothing choices. The Supreme Court has long struck down policies based on “‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”

 

The biased enforcement of the dress code against Ms. Martinez and other female students jeopardizes their equal access to education by forcing them to miss important class time. As described above, Ms. Martinez missed multiple days of school, including three tests. It also prioritizes male students’ freedom from “distraction” over female students’ physical comfort.

 

 

May 1, 2018 in Constitutional, Education, Gender | Permalink | Comments (0)

Wednesday, April 18, 2018

The Deleterious Effects of the Marriage Penalty Tax on Women and Society

Dennis R. Lassila, Murphy Smith & Daqun (David) Zhang, Negative Social and Economic Effects of the Marriage Penalty Tax on Women and Society

For decades the marriage penalty tax (MPT) has been debated, reduced, increased, and muddled in the US tax system. The issue is important to individual taxpayers, as well as to policy-makers, academic researchers, and society overall. Research shows that the MPT has a negative impact on marital stability, resulting in particularly deleterious effects on women and children, as single females, especially single-parent females, are more likely to be in poverty. Consequently, the MPT is a gender issue in that women are more negatively affected by it than men are, but to varying degrees all members of society are negatively affected, women, men, and children. The purpose of this study is to review how the MPT was affected by the new tax law, the Tax Cuts and Jobs Act of 2017, and briefly review the history of the MPT and its impact on individuals and society. While the MPT was greatly reduced by the 2017 Act, notably regarding tax rates, the MPT, as connected to the earned income tax credit, continues to have a major detrimental impact on low to moderate income couples, discouraging marriage and having a particularly negative effect on their children.

April 18, 2018 in Family, Legislation | Permalink | Comments (0)