Thursday, June 22, 2017
Jon Hecht, The Surprising Sexism of Maternity Leave
Many Americans still think of parental leave as a "woman's issue," but Derek Rotondo, a employee at JPMorgan Chase, is determined to change that. On Thursday, the American Civil Liberties Union filed a complaint with the Equal Employment Opportunity Commission on behalf of Rotondo, alleging that JPMorgan Chase is engaging in gender discrimination by providing 16 weeks of maternity leave but only two weeks of comparable paternity leave.
“JPMorgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” Galen Sherwin, the ACLU’s Women’s Rights Project's senior staff attorney, said in a statement.
"I'm frankly surprised that a company as large as JPMorgan would have a policy like this in this day and age," Vicki Schultz, Ford Foundation Professor of Law and Social Science at Yale Law School, tells Bustle.
"Providing equal parental leave to men and women is an important step in trying to get at a lot of cultural stereotypes and starting to chip away at the assumption that women do and should bear the primary responsibility for caregiving," Maya Raghu, Director of Workplace Equality and Senior Counsel at the National Women’s Law Center, tells Bustle
The paternity fight may even be a sign of larger societal change. "Legal and cultural change often go hand in hand. One pushes the other," Raghu says.
The effect of more men involved as primary caregivers for raising children could have powerful effects not just for those men, but for the women who would no longer be expected to put their careers on hold to take care of children. Research has suggested time and again that the breaks in work from caregiving — usually experienced more by women than men — contribute to the gender wage gap. Some experts hope that equalizing how workplaces and culture treat men as caregivers could have impact on minimizing that gap.
"Feminist theorists believe that this is really kind of the crux," says Tracy Thomas, John F. Seiberling Chair of Constitutional Law at the University of Akron School of Law and Editor of the Gender and Law Professors Blog. "Right now, a lot of the formal inequalities between men and women since the 1970s have sort of been eliminated in the workplace — as far as different rules, different hours, different wages."
However, the reality is often more complicated than the workplace laws on the book. "A lot of the cases really pushing the theory of gender discrimination right now are at this question of family and parenting and maternity leave," says Thomas. "So if we were to extend it across the board, I think that could be potentially very big in changing [the situation]. Because that's where we've identified we're culturally stuck. We're still stuck on women taking care of kids."
However, as I blogged about last week in Are Men Entitled to Equal Paid Paternity Leave?, the current EEOC guidelines on pregnancy discrimination allow a different leave period for men and women by giving additional time for women based on physical recovery time. It is only the time for caregiving and bonding that must be the same. Thus, it is permissible as the law is currently interpreted to give 16 weeks of paid leave to women, and 6 weeks of paid leave to men.
Linda Greenhouse, Justice Ginsburg and the Price of Equality, NYT, discussing Ginsburg's opinion in the recent case Sessions v. Morales-Santana finding a citizenship rule that treated unwed fathers differently than mothers to violate equal protection, but denying the remedy of extending the beneficial mother's rule to fathers.
And what about Justice Ginsburg? Can we assume she’s happy with the outcome of the case, or do we suppose she wrote the remedial section with gritted teeth? Twenty-four years ago, in July 1993, she was President Bill Clinton’s first Supreme Court nominee, and I covered her Senate confirmation hearing. I had met Judge Ginsburg several times, but didn’t know her well. I found her Judiciary Committee testimony enlightening, and I wrote an analysis that appeared under the headline “A Sense of Judicial Limits.” I described her as “something of a rare creature in the modern judicial lexicon: a judicial restraint liberal.” By that I meant that while her own commitments were to liberal outcomes, she displayed an equally strong commitment to letting Congress take the lead. “In her view, equality — or any other goal — is best achieved if all branches of government have a stake in achieving it.”
So I’m ready to assume that if the remedial portion of her opinion last week was a compromise, it was one she offered willingly. Her “over to you, Congress” handoff may seem naïve in the present political climate, but it conforms with her deepest beliefs about the appropriate judicial role.
And it’s worth remembering that from her earliest years as a nervous young lawyer standing before the nine men of the Supreme Court, Ruth Ginsburg has always played a long game, with the ultimate goal, equality of the sexes, constantly in view. As this case turned out, the price for equality was high. But I don’t doubt that for Justice Ginsburg, it was a price worth paying for being able to strike a blow against still another law based on a generalization about the way “men and women are.”
I have previously blogged about my thoughts on Ginsburg's decision leveling down the remedy for equal protection. See SCOTUS Denial of Equal Protection Remedy Jeopardizes Equality Law: What was Justice Ginsburg Thinking?
Tuesday, June 20, 2017
Supervisor Mark Farrell introduced legislation that would prohibit private employers in San Francisco from asking for and considering past salary information when deciding what salary to offer applicants. The proposal also applies to city government and its contractors.“If women are always held back and down by their salary history, they are prevented from ever catching up with men,” Farrell said. “We have to stop it.”
The legislation was praised during Wednesday’s Board of Supervisors Government Audit and Oversight Committee. Some amendments were made during the hearing, such as postponing the initial implementation date from January 2018 to July 2018 to give time for businesses and The City’s enforcement wing, the Office of Labor Standards Enforcement, to prepare. It is also timed for when the minimum wage increase occurs.
The committee is expected to hold a hearing June 21 on the proposal with a full board vote on June 27.
For the first year, OLSE would only issue warnings if there are violations, but beginning in July 2019, fines could be assessed beginning at $100, and for egregious cases the City Attorney’s Office can sue the employer.
A job applicant would be able to voluntarily disclose their salary if they are seeking a better offer, but an employer couldn’t ask an applicant for salary history. An employer could ask for the applicant’s salary expectations.
Last year, Massachusetts became the first state to adopt a similar law. New York City and Philadelphia followed suit this year.
For additional background on why salary histories contribute to discrimination, see here.
Schedule at a Glance
8:00-9:45 – COUPLES, CHILDREN & PARENTAGE: OLD CONCEPTS, NEW PERSPECTIVES
10:00 – 11:45 – BEYOND VIOLENCE: A LOOK INTO GENDER VIOLENCE AND EQUALITY
12:45-2:30 – (RE) THINKING FEMINISM GLOBALLY
2:45-4:30- REMEDYING RELATIONAL EQUALITY
8:00-9:45 – (RE) DEFINING HARM AND VICTIMHOOD
8:00-9:45 – FEMINIST JUDGMENTS: REWRITTEN TAX OPINIONS PROJECT
8:00-9:45 – STATE POWER AND REPRODUCTIVE DECISION MAKING
8:00-9:45 – REEVALUATING GENDER NEUTRALITY
10:00-11:45 – DEMOCRACY AND GENDER
12:45-2:30 – FEMINIST LEGAL STRATEGIES: COMPARATIVE PERSPECTIVES, CHALLENGES, AND WAYS FORWARD
2:45-4:30 – FEMINIST JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT AUTHOR MEETS READER
2:45-4:30 – GENDER ROLES AND THE STATE
2:45-4:30 – STATES OF VIOLENCE AND LEGAL ACTIVISM IN LATIN AMERICA: BRIDGING FEMINIST, INTERSECTIONAL, AND DECOLONIAL RESEARCH
4:45-6:30 – BREAKING CARCERAL WALLS, BRIDGING MOVEMENTS: FORMING A COHERENT ANTIPUNITIVE AGENDA THROUGH CROSS – SECTORAL COLLABORATIONS
Leigh Goodmark, Should Domestic Violence be Decriminalized?, 50 Harv. J. Law & Gender 43 (2017)
In 1984, the United States started down a path towards the criminalization of domestic violence that it has steadfastly continued to follow. The turn to the criminal legal system to address domestic violence coincided with the rise of mass incarceration in the United States. Levels of incarceration have increased by five times during the life of the anti-domestic violence movement. The United States incarcerates approximately 2.2 million people, with another 5 million under the scrutiny of parole and probation officers. While the criminalization of domestic violence did not have “a significant causal role” in the increase in mass incarceration in the United States, scholars have argued that the turn to criminal law to address domestic violence has contributed to the phenomenon of mass incarceration. Given the current focus on overcriminalization and decreasing mass incarceration, the time may be ripe to consider alternatives to criminalization of intimate partner violence. In her 2007 article, The Feminist War on Crime, law professor Aya Gruber wrote, “Although I am skeptical about the ability of criminal law to solve social inequality problems, there may be good reasons to keep domestic violence crimes solidly on the books.” Professors Cecelia Klingele, Michael Scott and Walter Dickey have called for the development of scholarship addressing “crime problems for which arrest, prosecution, and conviction are the most appropriate responses to crime, along with instances in which invocation of traditional response is particularly fruitless or counterproductive.” Both generally and specifically in the context of intimate partner violence, these articles ask about the continued utility of criminal interventions. This article takes up those questions and asks: should domestic violence be decriminalized?
Monday, June 19, 2017
I invite you to participate in the Constitutional Remedies virtual symposium in November at the Center for Constitutional Law at Akron. As a “virtual” symposium, there’s no need for travel – you can join from the comfort of your own computer via video conferencing. Papers are short (10 pages max), designed to trigger discussion and inform debate. The topic is broad, embracing issues of remedies and the Constitution appearing daily in the news. Topics submitted thus far include leveling down remedies for equal protection, enforcement of religious liberty, Eleventh Amendment concerns with contempt for the government, and TROs in the immigration cases.
We’ve extended the deadline until August 15. Full details below.
Call for Proposals
VIRTUAL SYMPOSIUM: CONSTITUTIONAL REMEDIES
The Center for Constitutional Law at Akron
Friday, November 10, 2017
Constitutional Remedies. The focus of this symposium is on the Constitution and Remedies, broadly defined. Topics for discussion might include issues of remedies for constitutional harms, constitutional concerns with remedies, or comparative constitutional remedies across countries. Such issues dominate the headlines—from immigration travel bans to religious liberty concerns to police force injunctions and national injunctions on executive power. The symposium is designed to be an interactive roundtable, allowing for deeper discussion and questioning beyond mere presentation.
Virtual Symposium. This symposium will be conducted virtually, that is by video web conferencing. The idea is to make it easier for scholars to participate and share ideas, without the barriers of travel such as limited university travel budgets, family obligations, or the demands of teaching and administration. Participants will just need a computer with a webcam and microphone to participate.
Symposium Papers. Proposals for the symposium should be related to the topic of constitutional remedies and intended to produce a short final essay of about 10 published pages. Proposals should be submitted to Professor Tracy Thomas at email@example.com by August 15, 2017. Drafts of accepted papers for the symposium should then be completed by November 1 in time for circulation to and review by participants in advance of the symposium. Finalized essays will then be published in a dedicated symposium issue in the Center for Constitutional Law’s online journal, ConLawNOW an open access journal available to interdisciplinary scholars, journalists, as well as legal scholars (also available on Westlaw).
Friday, June 16, 2017
The American Civil Liberties Union, the ACLU of Ohio and the employment law firm Outten & Golden LLP today filed a discrimination charge with the Equal Employment Opportunity Commission on behalf of a J.P. Morgan Chase employee who claims the company discriminated against him and other fathers by denying fathers paid parental leave on the same terms as mothers.
Derek Rotondo, who filed the class action charge, is a fraud investigator who has worked at J.P. Morgan since 2010. He asserts that J.P. Morgan discriminates against men by designating biological mothers as the default primary caregivers, eligible for 16 weeks of paid parental leave, while presumptively considering fathers to be non-primary caretakers, who are eligible for just two weeks of paid parental leave. Rotondo is the father of two young children, including a two-year old and a newborn just nine days old.
“When I found out how J.P. Morgan’s parental leave policy was actually implemented, I was shocked,” said Rotondo. “It was like something out of the 1950s. Just because I’m a father, not a mother, it shouldn’t prevent me from being the primary caregiver for my baby. I hope that J.P. Morgan will change this policy and show its support for all parents who work for the company.”
Rotondo’s charge — which he filed on behalf of all fathers who were or will be subjected to the same discriminatory policy — alleges that J.P. Morgan’s parental leave policy violates Title VII of the Civil Rights Act of 1964, the Ohio Fair Employment Practices Act, and other state and local laws that prohibit employers from discriminating against employees based on sex or sex-based stereotypes.
“J.P. Morgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” said Galen Sherwin, senior staff attorney with the ACLU’s Women’s Rights Project. “J.P. Morgan needs to make its family leave policy reflect the realities of modern families working in America today.”
Before the birth of his second child, Rotondo sought approval to take parental leave as the primary caregiver. But J.P. Morgan’s human resources told Rotondo that mothers are considered to be primary caregivers, and that fathers can only be treated as primary caregivers (and receive 16 weeks of paid parental leave) if they can demonstrate that their spouse or partner has returned to work, or that “the mother” is medically incapable of caring for the child. Rotondo does not qualify under either of these exceptions, as his wife is a special education teacher on summer break and unable to return to work, and she is in good health.
Here are the EEOC Guidelines on Parental Leave:
For purposes of determining Title VII's requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in this document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in this document as parental leave).
Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.
EXAMPLE 14: Pregnancy-Related Medical Leave and Parental Leave Policy - No Disparate Treatment
An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents, whether male or female, six weeks of parental leave. A male employee alleges that this policy is discriminatory as it gives up to 16 weeks of leave to women and only six weeks of leave to men. The employer's policy does not violate Title VII. Women and men both receive six weeks of parental leave, and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.
EXAMPLE 15: Discriminatory Parental Leave Policy
In addition to providing medical leave for women with pregnancy-related conditions and for new mothers to recover from childbirth, an employer provides six additional months of paid leave for new mothers to bond with and care for their new baby. The employer does not provide any paid parental leave for fathers. The employer's policy violates Title VII because it does not provide paid parental leave on equal terms to women and men.
JP Morgan has explained its policy as applying to primary caregivers, who are presumably women. And it has precluded consideration of equal caregiving between parents. That is expressly discriminatory under the guidelines. See Jessica Lee, Congratulations on the Birth of Your Baby! Now Get Back to Work
Many employers now offer longer amounts of leave to “primary caregivers” and less to “secondary caregivers,” rather than to “mothers” and “fathers.” Does changing the labels actually change whether this is sex discrimination? Hardly. Despite their outward appearance of neutrality, these policies often still discriminate against men, and result in men getting less leave than women. Employers may say “primary/secondary caregiver” but they really mean “mom and dad.” Some employers even discriminate against fathers by automatically assuming that mothers are primary caregivers and fathers are not, requiring dads to provide various types of proof that they truly are a caregiver. One employer advised a new father that could not be considered a primary caregiver unless his wife was “in a coma or dead.”
The Supreme Court's recent decision in Sessions v. Morales-Santana lends additional strong support for a finding of discrimination.
Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. In light of the equal protection jurisprudence this Court has developed since 1971, [the citizenship laws for children born abroad differentiating] for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.
Even if stereotypes frozen into legislation have “statistical support,” our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn.
However, the plaintiff is unlikely to get the exact remedy he seeks of 16 paid weeks.
1. JP Morgan could revise its policy in accordance with the EEOC guidelines and distinguish that the longer time for women is based on physical medical recovery for women, or make slight adjustments as in the example to provide women 16 paid weeks and men 6 paid weeks.
2. The company could level down and provide no paid leave to anyone. That was also the result of the Supreme Court's Morales-Santana decision. See discussion here. The question will go to whether the company wants to continue to provide paid leave to recruit and retain valued women employees in competition with other firms, or whether it believes that the economics of extending paid leave to more men will be too costly.
The federal Family Medical Leave Act requires only that certain employers provide both women and men 12 weeks of unpaid leave for caring for a new child.
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.
Margo Lindauer, "Please Stop Telling her to Leave": Where is the Money: Reclaiming Economic Power to Address Domestic Violence, 39 Seattle U.L. Rev. 1263 (2016)
In this Article, I argue that economic dependence is a critical factor in violence prevention. For many victims of domestic violence, the economic entanglement with an abusive partner is too strong to sever contact without another source of economic support. This Article is a thought experiment in economic justice; it asks the question: is there a way to provide outside economic support for a victim of violence fleeing a battering partner? In this Article, I examine existing systems such as Social Security, unemployment assistance, work-readiness programs, crowd sourcing, and others to evaluate how these sources could provide emergency economic support for victims. I discuss the feasibility of using these systems to provide such support. From there, I provide a safety and security analysis with an eye towards economic freedom.
Thursday, June 15, 2017
Linda Berger, Bridget Crawford & Kathy Stanchi have posted Using Feminist Theory to Advance Equal Justice Under Law, 17 Nevada L.J. 539 (2017). Their essay provides an overview of the Feminist Judgments Conference held in October 2016 at the Center for Constitutional Law at Akron. Papers from the conference are forthcoming in the Nevada Law Journal and the Akron Law Review. A talk by Judge Elinore Marsh-Stormer from the conference is available here, Perspectives from the Bench on Feminist Judgments, 8 ConLawNOW 81 (2017).
Progress toward gender justice faces multiple and growing challenges, not only in the United States Supreme Court but at every level of political and cultural debate and decision making. Within this context, feminist theory and methods are more necessary than ever.
It is therefore timely and fitting that more than 200 hundred lawyers, judges, professors, students, and members of the public gathered for The U.S. Feminist Judgments Project: Writing the Law, Rewriting the Future, a two-day conference hosted by the Center for Constitutional Law at The University of Akron School of Law. The conference had several purposes. First and foremost was to celebrate the publication of Feminist Judgments: Rewritten Opinions of the United States Supreme Court.1 Both this volume, the first in a series, and its organizing focus, the United States Feminist Judgments Project, grew out of the work of the Women’s Court of Canada and the U.K. Feminist Judgments Project. * * *
A second purpose of the conference at the Center for Constitutional Law was to provide a forum for asking (and attempting to answer) a series of discrete questions about judges and the judicial function. Prime among these questions is whether judicial diversity matters—that is, whether it is important to have judges who are representative of many different groups of people as well as many different ways of thinking. On a simplistic level, our reaction might be that of course diversity on the bench matters. As Sally Kenney, our conference keynote speaker, eloquently argues, diversity in positions of power in all branches and all levels of government, including representation by women, is a reflection of the health of our nation’s democracy. In Kenney’s view, diversity on the bench is a requirement of a representative democracy—it is a civic right and responsibility.
The conference also sought to raise the “woman question”—the baseline feminist question of the 1980s and 1990s. The “woman question” asks whether women are represented in decision-making positions and how the law affects women. * * *
The third purpose of the conference was to showcase the work of an international group of professors, attorneys, and other researchers who rely on, challenge, complicate, or extend feminist legal theory. The panels at the conference represented a dazzling array of subject matters, methodologies, and inquiries. Evident throughout the conference presentations were what Martha Chamallas has called some of the recurring “moves” of feminist legal theory: treating women’s experiences as an appropriate subject for legal scholarship, exploring complex identities, challenging implicit bias, and unpacking women’s choices.* * *
The fourth and final goal of the conference—and one that extends to the pages of this issue of the Nevada Law Journal—is to create a community. For two days in Akron, Ohio, the assembled group came together to think in a sustained way about the highest and best aspirations for what the law could be, especially as the law relates to the unfinished promise of economic, social, and political equality between and among women, men, and people of all gender identities.
Katie Eyer, Protected Class Rational Basis Review, 95 N.C. Law Rev. (2017)
It is commonplace today to associate rational basis review exclusively with groups that are not formally afforded heightened scrutiny under the Supreme Court’s equal protection precedents: groups like gays and lesbians, people with disabilities, and undocumented immigrants. Thus, discussions of the benefits of nurturing a jurisprudence of meaningful rational basis review typically focus exclusively on such “unprotected” groups. In contrast, rational basis review is rarely thought of as providing important protections for groups such as racial minorities and women, who have secured “protected class” status and therefore are subject to regular heightened review of group-burdening classifications.
Drawing on extensive original archival research, this Article challenges this common conception. Race and sex discrimination litigators have often historically relied on rational basis arguments as a complement to heightened scrutiny. And during eras when robust rational basis review was prevalent—such as the 1970s—these claims have often succeeded. Today, as a result of, inter alia, the LGBT rights cases (which have expanded judicial conceptions of the scope of rational basis review), we stand at a moment of increased possibility for meaningful rational basis review. Rational basis arguments thus ought to form a part of how we conceptualize the contemporary possibilities for race and gender justice claims.
Such an approach has the potential to revitalize what has long been a stalled constitutional jurisprudence around sex and race discrimination. As many scholars have acknowledged, it is extraordinarily rare for courts today to find that a government actor engaged in intentional discrimination against women or racial minorities—the contemporary standard for triggering heightened scrutiny. But as the history unearthed herein demonstrates, courts (especially lower courts) have, at times, been willing to find that racially and gender-impactful laws violate rational basis review. Moreover, such review has often had the capacity to undermine widely shared assumptions regarding the rationality of entrenched structures of race and gender oppression. As such, protected class rational basis review may present one of the few realistic alternatives for reviving a meaningful project of race- and gender-based constitutional change today.
A summary from SCOTUSblog:
At Dorf on Law, Michael Dorf focuses on “the Court’s remedy” in Morales-Santana – “leveling down” so that no one gets the previously unequally distributed benefit rather than “leveling up” so everyone does – “and how Justices Thomas and Alito approached the case”; he maintains that “[b]y mischaracterizing the Court’s holding they evade responsibility for judging the case on the merits.” At the Gender and the Law Prof Blog, Tracy Thomas also looks at the remedy, criticizing the decision as a “literal roadmap for future courts to deny the ‘extension’ remedy and instead order the ‘withdrawal’ of benefit in cases of sex discrimination” and calling it “one giant step backwards.” In a two-part post on the Human Rights at Home blog, here and here, Deborah Brake explains that “[a]lthough the remedial issue in Morales-Santana is admittedly a thorny one, the Court’s analysis, limited to a determination of what the legislature would have wanted, fails to do justice to the full scope of equality rights and what is required to remedy violations of such rights”; she argues that the court “short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights.”
Here's more from Debbie Brake, Remedial Grief:
The remedy that the Court ordered – nullification rather extension of the more favored treatment – is a classic example of leveling down in response to a violation of equality rights. The problem of leveling down – that everyone can be made worse off from the successful invocation of equality rights – is endemic to equality law, whether its source is constitutional or statutory. One of the most famous examples of leveling down occurred when Jackson, Mississippi, after losing a case challenging the city’s operation of racially segregated swimming pools, decided to close the pools rather than integrate them. The disappointed African American residents of Jackson sued, challenging the pool closure as a violation of the equal protection clause. The Court disagreed, finding the city’s response, closing the pools for everyone, was racially neutral and ended differential treatment.
This tried and true tactic is not merely a remnant of segregation. Leveling down surfaces periodically as a response to equality claims. In Title IX litigation challenging unequal opportunities for girls and women in sports, schools often threaten that such claims will only result in their taking opportunities from male athletes, ending the discrimination with no benefit to female athletes, and leaving them holding the blame for making male athletes worse off. In an example from another case, a pregnant girl who was kicked out of the school’s National Honor’s Society for becoming pregnant successfully sued her school for sex discrimination. Instead of responding by letting the girl participate, the school ended its participation in the National Honor Society altogether – it leveled down. Left unchecked, leveling down can be an effective strategy for de-railing equality claims altogether. Worse yet, in some cases (though not all), the leveling down can exacerbate the stereotypes and injuries from the original discrimination. ***
Leveling down is a thorny and under-analyzed response to discrimination, and one that courts often fail to give sufficient attention. The Morales-Santana decision is no exception. Justice Ginsburg’s opinion for the Court discerns two principles for deciding between nullification and extension. One the one hand, the Court identifies a general preference for extension. On the other hand, the Court confidently asserts that the choice between nullification and extension turns on legislative intent, and how the legislature, had it known that the offending provision would be found unconstitutional, would cure the violation. The Court’s invocation of these two principles is somewhat mystifying. The Court does not identify any source from which a preference for extension derives, other than to cite its own cases blithely asserting that such a preference exists (again, without identifying its source). Nor does the Court attempt to square the preference for extension with the decisive role it gives to legislative intent. If legislatures are more likely to favor extension over nullification in their intent, there is no attempt to prove this as an empirical matter. In the end, the preference for extension seems to drop out of the picture in the face of the Court’s discernment of a legislative intent to nullify rather than extend the favored treatment.
By retreating to congressional intent and abandoning the general preference for extension, the Court does a disservice to the development of equality law, leaving no discernible check on leveling down where the entity that discriminated (in this case, the Congress) desires to remedy the violation by removing the benefit from all rather than extending it to the disfavored group. Because the Court viewed Congressional intent as dispositive, the Court treated the remedy as a closed issue, having discerned a congressional preference for nullification.
And Brake, Remedial Grief, Part 2:
The analysis advocated here often eludes easy answers and this case is no exception. My disagreement with the Court is not necessarily that it reached the wrong result, but that it short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights. The touchstone should not be the remedial preference of the discriminator, but an analysis of whether nullification fully remedies the injury of the discrimination and whether it functions to punish the assertion of equality rights. The Court should have considered whether reverting to the stricter residency requirements for all parents fully eradicates the underlying gender stereotypes about the strength of maternal bonds and the low expectations for paternal influence on children’s values. Given that Congress was willing to ease up on the residency requirements for citizen mothers, does its abandonment of the more lenient rule if it had to include fathers reflect a deep-seated resistance to viewing unwed fathers as legitimate parents, regarding them as insufficiently bonded to their children to deserve citizenship-conferral rights? Or would it reflect a judgment, free from gender stereotypes, that the longer residency is appropriate for all parents in order to ensure the transmission of American values? The relationship between the constitutional injury and the remedy may be difficult to parse, but it is not determined merely by asking the question of what the legislature would have wanted.
Wednesday, June 14, 2017
Signs Special Issue: Gender and the Rise of the Global Right
As political events across the world have made clear, the right wing is ascendant: from the election of Donald J. Trump in the United States; to the Brexit victory in the United Kingdom; to the rise of rise of rightist, nationalist, anti-immigrant, and neo-Nazi parties across Europe; to the election of the Hindu nationalist Bharatiya Janata Party in India; to the Philippine president’s professed admiration for Adolf Hitler; to the impeachment of a democratically elected woman leader in Brazil; to the military coup and gendered crackdown in Egypt; to the virulently antigay legislation in Uganda, in which US–based Christian evangelicals played no small role. Far less studied are the myriad ways in which the global Right represents a particular politics of gender. Indeed, backlash against perceived shifts in gender and sexual norms may have partly spurred the Right’s rise. And right-wing movements have often justified themselves by invoking gender and sexuality—whether through a desire to return to or preserve “tradition” and “shared values” or by stoking anxieties about the sexual threats represented by racial, foreign, or religious others.
These developments present an urgent need for feminist theorizing, across regions and disciplines. It is of critical importance that the central role of gender and sexuality in the rise of the Right be recognized and that the voices of critique be feminist ones, including investigations of the Rights’ representational politics, its workings in discourse, mass media, human rights, law, and culture broadly conceived. We welcome submissions from all disciplines, and especially submissions that are engaging across disciplines and that are themselves inter- or transdisciplinary.
Possible areas of focus might include:
- The gender politics of local right-wing resurgences, the transnational linkages among them, and comparative critiques of their cultures, discourses, and modes of organizing, funding, coordination, and transmission.
- Comparisons of the present moment with past historical shifts, such as the colonial encounter, and their gendered implications for the postcolonial present.
- The fault lines within right-wing gender politics, in which racialization determines which women are to be protected and which are threats, to be deported, jailed, or “liberated.”
- The role of religion and religious actors in right-wing politics, and the gendered agendas they advance.
- The Right’s use of the language of women’s rights, human rights, LGBT rights, or other rights discourses; the role of right-wing women in dignifying, legitimating, and speaking for their movements.
- Right-wing attacks on women’s and gender studies; efforts to discredit the field and establish right-wing ideologues in academic settings.
- Gendered life under repressive regimes; the role of networks, undergrounds, and samizdat.
- The media politics and cyberpolitics of the Right; the discursive structures of mainstream and social media; the gendered phenomenon of the internet troll.
- The interrelations between various gender-related crusades (e.g., the transnational antichoice movement, resistance against LGBT rights, the introduction of transphobic policies, efforts to stop antiviolence legislation).
- Right-wing masculinities (e.g., fathers’ movements, men’s-rights movements, militarist gender ideologies, and constructions of boyhood).
- Links between the gendered effects of global economic crises or structural adjustments and the rise of the Right.
- The representational politics of the global Right, in literature, film, music, art, and popular culture; representations and works of literature that resist, subvert, and push back against the arguments of the new Right and its normalizers.
Signs particularly encourages transdisciplinary and transnational essays that address substantive feminist questions, debates, and controversies without employing disciplinary or academic jargon. We welcome essays that make a forceful case for why the global rise of the Right demands a specific and thoughtfully formulated interdisciplinary feminist analysis and why it demands our attention now. We seek essays that are passionate, strongly argued, and willing to take risks. The issue will be coedited by Agnieszka Graff, associate professor at the Center for American Studies at the University of Warsaw; Ratna Kapur, visiting professor of law at Queen Mary University of London; and Suzanna Danuta Walters, Signs editor in chief and professor of sociology and women’s, gender, and sexuality studies at Northeastern University.
The deadline for submissions is September 15, 2017.
I blogged yesterday about the Supreme Court's decision in Sessions v. Morales-Santana and its remedying of sex discrimination by leveling down, or withdrawing a benefit from one sex, rather than leveling up and extending the benefit to both.
Here is more on the leveling down remedy.
Michael Dorf, Equal Protection and Leveling Down as Schadenfreude
My Verdict column this week explores Monday's Supreme Court ruling in Sessions v. Morales-Santana, in which the Court invalidated a federal statutory provision that confers citizenship on children born outside the U.S. to unwed U.S.-citizen mothers in some circumstances in which such citizenship is denied to children born outside the U.S. to unwed U.S.-citizen fathers.
As I note in my column, an equal protection violation can be remedied either by leveling up (everyone gets the benefit) or leveling down (no one does). The leading case is Heckler v. Mathews. Justice Ginsburg's majority opinion in Morales-Santana parses what I call Congress's "fallback" intent to conclude that the right remedy (absent further congressional intervention) is leveling down. On Take Care, Ian Samuel argues that this "mean remedy" could harm people who thought they were U.S. citizens. Yet the Court says that its holding applies only "prospectively." Not good enough, Samuel complains, because, he says, the Court does not explain what "prospectively" means. I agree that Justice Ginsburg's opinion could have been clearer but she approvingly cites the Solicitor General's merits brief and reply brief on this point. The SG's argument at the relevant pages really only makes sense on the assumption that "prospective" application means application to children born abroad to U.S.-citizen mothers after the date of the Court's opinion--unless and until Congress changes the law.
Because Samuel reads the opinion as harsher than I believe it is, he ends up preferring the approach--at least in practical effect--of Justices Thomas and Alito. Yet, as I shall explain, I do not think that their approach is possible without overruling Heckler v. Mathews.
To see why, we need a brief recap of Heckler v. Mathews. The Social Security Act contained a provision that conferred certain benefits on women but not men. In what Congress no doubt thought was a fiendishly clever poison pill, the statute also provided that in the event that the courts struck down the sex-based preference, no one would get the benefit, i.e., the fallback was leveling down. Then, when a man challenged the law as sex discrimination, the government argued that he lacked standing, invoking the poison pill: Even if the male challenger prevailed on his equal protection claim, the government said, he wouldn't get any benefit; thus his injury was not redressable by a favorable ruling.
The SCOTUS disagreed. Although validating Congress's right to level down via a fallback provision, the Court said that the plaintiff's injury was nonetheless redressable by a favorable ruling. Sure, he wouldn't receive the financial benefit but he would get something else of value, namely, equal treatment. ***
Leveling down as a remedy for an equal protection violation has an element of schadenfreude about it. But it nonetheless comports with our notions of what equality is about.
Perhaps that is what formal equality is about. But feminists talk about equity as a concept broader than pure parallelism and providing equal opportunity for all. Thus, I would argue, formalism and leveling down is not an adequately meaningful remedy for a constitutional violation.
Introducing the Equality Law Scholars’ Forum & Call for Proposals
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) introduce the 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 three to four 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 17, 2017 at Berkeley Law School.
Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 14, 2017.
Full drafts must be available for circulation to participants by October 27, 2017.
Proposals should be submitted to:
Tristin Green, USF School of Law, firstname.lastname@example.org. Electronic submissions via email are preferred.
Tuesday, June 13, 2017
SCOTUS Denial of Equal Protection Remedy Jeopardizes Equality Law: What was Justice Ginsburg Thinking?
I've spent much of the last 20 years writing about remedies. Specifically, I have written a lot about the right to a meaningful remedy required by due process. (For more, see here, here, here, here.) The Supreme Court’s decision in Sessions v. Morales-Santana violates this general command of the law and more concerningly, jeopardizes equal protection law. For a right without a remedy has little value.
In Morales-Santana, a six-justice majority of the Supreme Court led by Justice Ginsburg and including Justices Roberts, Kennedy, Breyer, Sotomayor and Kagan, found that the US law of citizenship for a child born abroad to one American parent discriminated on the basis of the gender. The law required an unwed father to have five years physical presence in the US before going abroad, while an unwed mother needed only one year. Ginsburg in the majority opinion waxes eloquently about the dangers of formal sex classifications and the reliance on “stunningly anachronistic” stereotypes of gender and parenting roles.
The Court, however, refused to grant the remedy requested of applying the one year rule to men. Instead, it applied the five year rule to everyone. Ginsburg acknowledges that the usual equal protection remedy is to extend protection and benefit to the class denied, rather than withdrawing the benefit for both classes. She says, however, and unconvincingly, that the statutory language here requires the withdrawal and application of the stricter standard until Congress weighs in.
I have to agree with Ian Samuel that this remedial decision is a “contender for the worst thing Justice Ginsburg has ever written for the Court.” It seriously jeopardizes equal protection law, and the availability of practical, meaningful relief for discrimination. The equality principle becomes normative rather than operative. It emasculates the equality law by denying the meaningful relief sought of equal application of the benefit. Practically, if discriminatory treatment results in merely a formal reprimand, and actually takes away benefit, there will be little incentive for plaintiffs to sue. Discriminatory treatment will go unchallenged, or will require only “mean” plaintiffs seeking to deny others benefit if they can’t have the benefit too.
I’ve been trying to figure out then, why Ginsburg would write this, and why some of the other Justices would go along.
1. Failure to Consider the Precedent: If there had been a will to award the remedy requested, there was a way to do so. For the remedial holding is in stark contrast to Ginsburg’s demand for a remedy if extension and inclusion in US v. Virginia. There, after the Court held that the Virginia Military Institute (VMI) discrimination against women by not admitting them to the full military education, Ginsburg strongly rejected remedies of anything other than full inclusion and admission to the program. She rejected the creation of a separate military school for women, and reiterated that the remedy required was inclusion and opportunity in the program provided to men. Certainly the VMI case gave her the solid precedent to demand a remedy of inclusion in Morales-Santana.
Interestingly, the Court does not cite one of its closest prior cases where it found an equal protection violation but denied a remedy. In Dep't of Power v. Manhart, 435 U.S. 702 (1978), the Court held that requiring women employees to pay more for retirement benefits than men (because of their average longer longevity) was discrimination. The practice was stopped going forward due to a change in state law, but the Court denied the reimbursement remedy sought by the plaintiffs. The Court created a framework to consider the equities of the impact on the defendant (how would the government get all that money) and potentially on third parties of other retirees. (I’ve written about Manhart here and here).
This equitable standard and framework of Manhart could have been useful to Justice Ginsburg in weighing the equities of the impact of a change in the citizenship rule. It provided a mechanism to evaluate the potential harms to third parties like the children effected, and would have given support for a remedy extending the one-year rule to men.
2. Vote Getting: Perhaps Ginsburg agreed on the remedy to gain votes for the substantive decision on equality. That is certainly a common judicial approach to compromise to get the votes. And remedies are often easy ways for judges to gain these votes without appearing to compromise on the merits. Who were the questionable Justices? Roberts? Kennedy? She only need one of these. Kennedy’s decision in Obergefell and Troxel both evidence strong concern with the impact of unconstitutional state action on children. Children here will be denied citizenship based on the actions of their parents, something Kennedy is usually concerned about. And Obergefell also shows his strong acceptance of the evolving nature of social constructions.
Thus it is possible that she need one vote to get the merits decision. Except, that frankly, there doesn’t seem to be much new in this decision on the substantive of gender and equal protection. The opinion provides a nice summary of the law, citing all of the prior precedents. But it doesn’t add any new ground. Ginsburg does repeat her “exceedingly persuasive justification” language from VMI, which has been read to suggest strict scrutiny is required for gender classifications. Except that she immediately goes on to cite the accepted standard of intermediate scrutiny for gender. So if anything, she has undermined her opinion in VMI that was trying to create precedent for a higher standard of scrutiny.
The majority opinion also arguably adds a new angle from Obergefell about the need to interpret gender discrimination claims against an evolving nature of societal expectations. However, that understanding of antiquated sex stereotypes already exists in the precedent in Hoyt, Frontiero, and Hibbs. The new decision makes it a little stronger, and perhaps that will prove useful in future cases. Except that if you win on this nice academic language, you still lose any meaningful remedy or change.
3. Retroactivity. One judicial strategy for making a decision on the merits palatable is to deny an immediate remedy. The idea is to have legal change dictated, but not applied until the future. This might explain the compromise on the remedy that brought in Roberts. Except, retroactivity usually allows for meaningful relief in the future, which this decision does not.
4. The Mean Remedy: This opinion now provides current, modern precedent for the dangers of equal protection challenges—the denial of benefit to all. What Samuel calls the "the mean remedy" denies benefit to both men and women, rather than extending the benefit one group had previously enjoined. This is the fear all litigators have in brining equal protection challenges, that you will win the battle but lose the war. This was a big concern we had decades ago when litigating a civil rights case on behalf of women prisoners, that the equality claims to equal education and employment (critical to good time credit, income, and rehabilitation) would not be extended equally, but would be denied to all. (That didn’t happen). It is also what VMI tried to do privately after the case – close down the school to deny public military education to both men and women, with the alumni then opening a private school for men only (assumed to be immune from the state action requirement).
Now we have confirmation of that fear – and precedent for denial. We have a new decision, with six votes of liberal and conservative Justices, providing the literal roadmap for future courts to deny the “extension” remedy and instead order the “withdrawal” of benefit in cases of sex discrimination. That to me is one giant step backwards.
Monday, June 12, 2017
SCOTUS Holds Citizenship Law for Unwed Fathers Violates Equal Protection But Denies Remedy Extending Equal Treatment
Justice Ginsburg (6-2) writing for the Court in Sessions v. Morales-Santana holds unconstitutional a federal citizenship law requiring unwed fathers of children born abroad to have previously lived in the US for 10 years, while an exception for unwed mothers required only 1 year of physical presence. In classic Ginsburg voice, the Justice attacks facial classifications based on gender as based on outdated, and illegal, stereotypes. Her opinion provides a good treatise summary of the law of equal protection, citing her opinion in US v. Virginia, Reed, Frontiero, Hibbs, and newly-integrating Obergefell.
However, the Court, refused to extend the one-year exception to unwed fathers, instead, requiring that both men and women be held to the 10-year standard. Which is the danger of an equal protection analysis -- that the treatment sought will be denied or retracted rather than extended equality.
Here are the highlights of the equal protection analysis:
Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida (1961) (women are the“center of home and family life,” therefore they can be “relieved from the civic duty of jury service”); Goesaert v. Cleary, (1948) (States may draw “a sharp line between the sexes”). Today, laws of this kind are subject to review under the heightened scrutiny that now attends “all gender-based classifications.” J. E. B. v. Alabama (1994); see, e.g. United States v. Virginia (1996) (state-maintained military academy may not deny admission to qualified women). Laws granting or denying benefits “on the basis of the sex of the qualifying parent,” our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee. Califano v. Westcott, (1979) (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers). Accord Califano v. Goldfarb, (1977) (plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors’ benefits available to widows); Weinberger v. Wiesenfeld (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson, (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child’s estate).
Prescribing one rule for mothers, another for fathers, §1409 is of the same genre as the classifications we declared unconstitutional in Reed, Frontiero, Wiesenfeld, Goldfarb, and Westcott. As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an “exceedingly persuasive justification.” Virginia; Kirchberg v. Feenstra (1981).
The defender of legislation that differentiates on the basis of gender must show “at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Virginia, 518 U. S., at 533 (quoting Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982); alteration in original); see Tuan Anh Nguyen v. INS, 533 U. S. 53, 60, 70 (2001). Moreover, the classification must substantially serve an important governmental interest today, for “in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (slip op., at 20). Here, the Government has supplied no “exceedingly persuasive justification,” Virginia, 518 U. S., at 531 (internal quotation marks omitted), for §1409(a) and (c)’s “gender-based” and “gender biased” disparity, Westcott.
History reveals what lurks behind §1409 [enacted in 1940] . . . During this era, two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child. Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child. “[D]ominance [of] the husband,” this Court observed in 1915, “is an ancient principle of our jurisprudence.” Mackenzie v. Hare, 239 U. S. 299, 311 (1915). See generally Brief for Professors of History et al. as Amici Curiae 4–15. Through the early 20th century, a male citizen automatically conferred U. S. citizenship on his alien wife. C. Bredbenner, A Nationality of Her Own:Women, Marriage, and the Law of Citizenship 15–16, 20–21 (1998). A female citizen, however, was incapable of conferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien. . . . And from 1790 until 1934, the foreign-born child of a married couple gained U. S. citizenship only through the father....
For close to a half century, as earlier observed, this Court has viewed with suspicion laws that rely on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia; Wiesenfeld. In particular, we have recognized that if a “statutory objective is to exclude or ‘protect’ members of one gender” in reliance on “fixed notions concerning [that gender’s] roles and abilities,” the “objective itself is illegitimate.” Mississippi Univ. for Women, 458 U. S., at 725. In accord with this eventual understanding, the Court has held that no “important [governmental] interest” is served by laws grounded, as §1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. Caban v. Mohammed. Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives. Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. In light of the equal protection jurisprudence this Court has developed since 1971, §1409(a) and (c)’s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.
FN 13 Even if stereotypes frozen into legislation have “statistical support,” our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn. J. E. B. v. Alabama; see, e.g., Craig v. Boren, (1976); Weinberger.
Thursday, June 8, 2017
Updated June 8, 2017
For awhile, it looked like the appointments of new law deans this year was trending women. For my thoughts as to possible explanations for this trend, see my quoted comments in Karen Sloan, If It's a New Law Dean, It's Likely a Woman.
However, now as we near the end of the 2017 hiring season, it seems that the trend is less to a gender preference, and more to equality of appointment.
To date in 2017, 14 of 28 (50%) new deans are women. Two are women of color.
In 2015, 46% of new law dean appointments were women. Annual List of New Women Law Deans.
Still, a new study of law school deans, US Law School Industry: Dean Positions 2015-2016, concludes that “Law programs and their leadership remain potentially gendered. . . . Women continue to be substantially under-represented at the highest levels of leadership, though we find that differences are significantly less pronounced at Assistant and Associate Dean positions.”
Here is the 2017 list:
Aviva Abramovsky, Buffalo (Associate Dean for International Initiatives, Syracuse)
Joan Bullock, Thomas Jefferson (Associate Dean for Academic Affairs, Florida A&M)
Marcilynn Burke, Oregon (Associate Dean for Academic Affairs, Houston)
Cathy Cox, Mercer (President, Young Harris College, former Secretary of State Georgia)
Megan Carpenter, New Hampshire (Co-Director, Intellectual Property, Texas A&M)
Darby Dickerson, John Marshall Chicago (Dean, Texas Tech)
Susan Duncan, Univ. of Mississippi (Interim Dean, Louisville)
Heather Gerken, Yale (Professor, Yale)
Judge Maureen Lally-Green, Duquesne (Judge, Interim Dean, Duquesne)
Rachel Janutis, Capital (Interim Dean, Capital)
Judge Madeline Landrieu, Loyola New Orleans (Judge, Louisiana Court of Appeal)
Lyrissa Lidsky, Univ. of Missouri (Associate Dean, Graduate Programs, Florida)
Hari Osofksy, Penn State (Professor, Minnesota)
Judge A. Gail Prudenti, Hofstra (Judge, Interim Dean Hofstra)
The men appointed to new deanships are:
Richard Bierschbach, Wayne State (Associate Dean, Cardozo)
Paul Caron, Pepperdine (Professor, Pepperdine)
Erwin Chemerinsky, Berkeley (Dean, UC Irvine)
Colin Crawford, Louisville (Professor, Tulane)
Dan Filler, Drexel (Associate Dean, Drexel)
Lee Fisher, Cleveland State (former Lt. Gov, Interim Dean CSU)
Michael Hunter Schwartz, McGeorge (Dean, Arkansas)
Michael Kaufman, Loyola Chicago (Professor, Loyola Chicago)
Gregory Mandel, Temple (Interim Dean, Temple)
John Manning, Harvard (Deputy Dean, Harvard)
Richard Moberly, Nebraska (Interim Dean, Nebraska)
Anthony Niedwiecki, Golden Gate (Associate Dean, John Marshall Chicago)
Jack Nowlin, Texas Tech (Senior Associate Dean, U Mississippi)
CJ Peters, Akron (Associate Dean for Scholarship, Baltimore)
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.
WSJ, A Rooney Rule for Law Firms? Project Aims to Promote More Women (behind pay wall)
It looks like Biglaw firms are finally moving from the rhetoric of diversity to that reality. Thirty firms, including DLA Piper, Paul Hastings, Jenner & Block, Morrison & Foerster, Blank Rome, and White & Case, have committed to abiding by a version of the “Rooney Rule” when promoting and hiring laterals. For those that have no more than a passing familiarity with the concussion-fest that is the NFL, the Rooney Rule — named after the late owner of the Pittsburgh Steelers, Art Rooney — requires teams to interview at least one minority candidate when there is a head coach or general manager vacancy. The rule is seen as a progressive success — yes, eight minority head coachesis seen as a success — and now Biglaw firms are taking a cue from the NFL.***
The idea was proposed by Mark Helm, a partner at Munger, Tolles & Olson, at Diversity Lab’s event, Women in Law Hackathon. Diversity Lab then worked with the firms to develop the rule, and as reported by Law.com, they are committed to making sure the law firm rule is successful:
“These law firms have signed on [to] help us form the idea, put it into fruition, see what works, see what doesn’t work,” said Caren Ulrich Stacy, CEO of the Diversity Lab, which is working with the firms to develop the Mansfield Rule. “We’re going to stick with the firms and we’re going to help them measure and track and then [see] where the needle has moved over the course of the year so that its second iteration next year could be even better.”
The Biglaw version of the rule, named the Mansfield Rule after Arabella Mansfield, the first woman admitted to practice law in the U.S. (a good fact to remember for a future Trivia Question of the Day), asks firms to consider two or more candidates who are women or attorneys of color when hiring for leadership and governance roles, promotions to equity partner, and hiring lateral attorneys. And, if the firms can demonstrate 30 percent of the pool for these positions are diverse, they’ll be “Mansfield Certified.” That spiffy designation will allow firms to participate in a client forum hosted by 45 in-house legal departments, including companies like Facebook, HP, Microsoft, and PayPal.
The participating firms seem committed to the Mansfield Rule, and are hopeful it will yield real results:
“It has been demonstrated again and again that diverse teams make better decisions. While we aspire to create those teams everywhere, including and especially in leadership, it is also well documented that unconscious bias clouds our best intentions,” said Fenwick & West managing partner Kathryn Fritz in a statement to The American Lawyer. “The Mansfield Rule helps us bring greater intention to our considerations and actions so that we can achieve our aspirational goal.”
There also is a sense that an industry-wide solution is what’s needed, as the Wall Street Journal reports:
Alan Hoffman, the managing partner and chairman of Blank Rome, said the firm is thrilled to participate in the pilot because “we’re not retaining women in the practice at the same rate as men.” Blank Rome began in 2012 trying to get more women in line to take over practice group leadership, and now half of the firm’s 16 practices are led by women.
Orrick Chairman and Chief Executive Mitch Zuklie said the rule looks to be a promising way for law firms and their clients to come together to hold the industry accountable and is emblematic of the fact that “systemic problems require systemic solution."
I have written about the need for systemic solutions for gender discrimination such as the use of gender quotas, and also the limitations of token measures like the Rooney Rule. See Tracy Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Gender & Law (online) (Nov. 2016).