Gender and the Law Prof Blog

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

Tuesday, November 21, 2017

In Last Year, 40 Lawmakers in 20 States Publicly Accused by 100 People of Sexual Misconduct or Harassment

Sexual Harassment Troubles Mount in Statehouses Around the Country

Since last year, at least 40 lawmakers – nearly all men – in 20 states have been publicly accused by more than 100 people of some form of sexual misconduct or harassment, a USA TODAY NETWORK analysis found.

 

The total, which doesn’t include confidential or anonymous complaints or government staffers who have been accused of sexual misdeeds, reflects unprecedented levels of scrutiny on statehouses across the country.

 

Swift action has been taken against high-profile men, including Hollywood producer Harvey Weinstein, and others accused of sexual harassment. There have been varying degrees of punishment for lawmakers. 

 

Two weeks ago, Kentucky House Speaker Jeff Hoover resigned from his leadership position amid growing pressure over a report that he settled a sexual harassment complaint made by a staff member.

 

Florida's Senate president earlier this month ordered an investigation into allegations that Sen. Jack Latvala, who is running for governor, made inappropriate comments or touched six women. Latvala has denied the claims.

 

Earlier this year, Rep. Mark Lovell, a freshman Tennessee lawmaker, resigned amid allegations of sexual harassment. The resignation followed last year's expulsion of former Rep. Jeremy Durham, who had inappropriate sexual contact with at least 22 women, according to an attorney general's investigation.

 
The ways lawmakers have handled sexual harassment and assault allegations has left some experts looking for change. 

 

“The consequence must fit the transgression,” said Jennifer A. Drobac, an Indiana University law professor and expert on sexual harassment cases. “You have to withdraw the privileges, kick them out of Congress or out of the statehouse. Take away the privileges of their employ and their health care benefits.” 

 

Debbie Dougherty, a professor in the Department of Communication at the University of Missouri who has written several reports on sexual harassment, said the latest wave of sexual harassment allegations against powerful men follows a slow but steady stream of similar accusations against officials at FOX News, Uber and the National Park Service.

 

“It’s like a stone rolling downhill. You see some and then you see some more and then you see a lot,” said Dougherty.

 

“The problem has been ignored and minimized for so, so many years that I think we’re just seeing the tip of the iceberg.”

November 21, 2017 in Legislation, Violence Against Women | Permalink | Comments (0)

Monday, November 20, 2017

Proposed Tax Plan Would Deny Business Deductions on Sexual Harassment Settlements if No Disclosure

What the Tax Senate Bill Would Do for Sexual Harassment Victims

An amendment to the tax reform bill working its way through Congress would deny businesses the ability to write off sexual harassment settlements as business expenses.

 

The Senate tax bill, passed by the Senate Finance Committee Thursday, includes an amendment that says businesses cannot deduct settlements, payouts, attorney fees or other expenses related to sexual harassment or sexual abuse, if such payments are subject to a nondisclosure agreement.

 

The amendment was proposed by New Jersey Democratic Senator Bob Menendez.

 

The proposal could affect sexual harassment settlements in a couple of ways. Businesses would no longer be allowed to write off legal settlements, fines and other expenses associated with sexual assault and harassment as "ordinary and necessary business expenses." And by denying these deductions, the amendment would make it costlier for companies to cover up misconduct.

 

"Right now a company can secretly settle allegations of sexual harassment in the workplace, silencing the victim and making it harder for other victims to come forward to seek justice," wrote Juan Pachon, spokesperson for Menendez, in an email to CNNMoney. "To add insult to injury, these same corporations can actually take a tax break for those payouts. Senator Menendez believes it's wrong for corporations who fail to protect their employees from sexual harassment to be able to write it off as an 'ordinary business expense."

 

Daniel Hemel, assistant professor of law at the University of Chicago law school, says the amendment's specific mention of non-disclosure agreements seems intended to disincentivize them -- a move that stops short of banning their use altogether.

 

"This is a pretty soft punishment if you're trying to deter closed agreements," he says. "I would think of this as largely symbolic legislation, but not exclusively so. It may change the way that some subset of sexual harassment cases are handled. But look, if an employer has a very strong preference for a closed agreement, then the tax deduction is unlikely to convince them to have an open agreement."

So at the end of the day businesses can still right off the settlements as long as they have an open, transparent agreement.  

The question is what impact what tax restrictions might have on settlements.  The availability of the deductions could actually helps victims at it increases or leverages the available monies employers have to settle the cases and provide compensation to victims.  

November 20, 2017 in Business, Legislation, Violence Against Women | Permalink | Comments (0)

Why Sexual Harassment Training Doesn't Work

Why Sexual Harassment Training Doesn't Stop Harassment

Only a handful of scientific studies have tested the effectiveness of sexual harassment training, which is nearly ubiquitous in American workplaces and intended to help protect workers as well as minimize an employer’s own legal and financial risks.

 

[R]esearchers don’t have much evidence that sexual harassment training is effective at certain key goals: reducing the number of incidents in a workplace; or helping to shift its culture toward one that takes the issue seriously.

 

Last year, the Equal Employment Opportunity Commission published a reportthat found only two research papers based on large-scale studies of anti-harassment training in workplaces (rather than in lab settings).

 

The research showed that the training does have benefits — particularly in increasing awareness of what constitutes sexual harassment and how it should be reported. But it also showed that some efforts had a negative effect, such as a study where male participants were more likely to blame the victim and less likely to report harassment.

 Congress is Making Harassment Trainings Mandatory. Science Shows They Don't Work.

That sentiment has also reached Capitol Hill, where harassment allegation reports recently emerged. "Going forward, the House will adopt a policy of mandatory anti-harassment and anti-discrimination training for all Members and staff,” House Speaker Paul Ryan (R-WI) said in a statement Tuesday. “Our goal is not only to raise awareness, but also make abundantly clear that harassment in any form has no place in this institution.”

 

There’s just one problem with this initiative: It’s probably not going to do anything to curb sexual harassment.

 

The research from sociology and organizational psychology on the billion-dollar anti-harassment training industry suggests these programs aren’t actually effective at stopping or preventing abuse.

 

“Over 90 percent of large US employers have harassment trainings in place, but it’s having very little effect, if no discernible effect, on the overall number of harassment complaints that are reported,” Harvard sociologist Frank Dobbin told Vox. “I don’t think we can sit around and wait for training to solve the problem.”

 

Experts who study workplace harassment view these trainings as more of a strategic defense against future lawsuits than a solution to a pervasive problem.

Lauren Edelman, What's the Point of Sexual Harassment Training? Often, to Protect Employers

Now that we’ve had something of an awakening about the pervasiveness of sexual harassment in the American workplace, the conversation is shifting to what to do about it. In many workplaces, the answer seems to be that we need mandatory training and clearer policies.

 

That seems to be the dominant thinking on Capitol Hill. After more than 1,500 former congressional aides signed a letter calling for action, the House and Senateadopted mandatory anti-harassment training for all lawmakers and staffers. This “sends a clear message: harassment of any kind is not and will not be tolerated in Congress,” Sen. Amy Klobuchar (Minn.), the ranking Democrat on the Senate Rules Committee, said in a statement.

 

Unfortunately, there is little evidence that training reduces sexual harassment. Rather, training programs, along with anti-harassment policies and reporting procedures, do more to shield employers from liability than to protect employees from harassment. And the clearest message they send is to the courts: Nothing to see here, folks.

November 20, 2017 in Business, Violence Against Women | Permalink | Comments (0)

Wednesday, November 15, 2017

Judge Grants Summary Judgment in College's Favor in Case Over Expulsion for Sexual Misconduct

Judge Tosses Suit Against Colgate University Over Expulsion for Sexual Misconduct

A lawsuit filed by an anonymous former student claiming that Colgate University unlawfully expelled him in his senior year based on accusations of sexual abuse by three female students was dismissed Wednesday by a federal judge for the U.S. District Court for the Northern District of New York.

 

U.S. District Judge Lawrence Kahn  granted the small liberal arts university in Hamilton summary judgment with respect to each cause of action in the lawsuit brought on by John Doe in August 2015, Doe v. Colgate University, 5:15-cv-1069.

 
 The plaintiff’s attorney said he planned to appeal the ruling to the U.S. Court of Appeals for the Second Circuit.

 

The anonymous plaintiff in the lawsuit attended the university from 2011 until he was expelled during his senior year in April 2015, after being found responsible for three instances of sexual misconduct against the unnamed students that occurred during the 2011-12 academic year. He  contended the touching was consensual and not reported to college officials until much later.  The plaintiff alleges that in his expulsion, Colgate University violated Title IX—a federal law that prohibits sex-based discrimination in education—and the state’s Human Rights Law. The plaintiff also claimed that the university was in breach of contract, breach of the covenant of good faith and fair dealing, violated the New York General Business Law, as well as demonstrated liability based on equitable estoppel theory and was negligent.

 

Kahn granted the plaintiff anonymity in April 2016 after a magistrate judge had earlier denied the request. The plaintiff successfully argued that the potential harm he faced outweighed the public’s interest in his being identified.

 

In his decision released Tuesday, Kahn wrote that the plaintiff “fails to provide sufficient evidence that gender bias motivated Colgate’s decision to expel him.”

 

The plaintiff had argued that the school was biased in favor of women due to student activism and the reaction to what occurred in Columbia University, when a female student carried a mattress throughout  the campus after an inquiry by the university found a lack of evidence that she was raped by a male student. The plaintiff also claimed that Colgate’s investigation was tainted because the primary investigator, Val Brogan, once worked in the Abused Persons Unit at the Onondaga County Sheriff’s Department, and  might be biased against men.

November 15, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Friday, November 10, 2017

New Hot Topic Announced for AALS: Rethinking Campus Response to Sexual Violence

AALS Hot Topic Programs

Rethinking Campus Response to Sexual Violence: Betsy DeVos, Title IX, and the Continuing Search for Access to Justice
Friday, January 5, 2018 from 8:30 -10:15 am

Moderator:

  • Hannah Brenner, California Western School of Law

Speakers:

  • Mary M. Penrose, Texas A&M University School of Law
  • Verna Williams, University of Cincinnati College of Law
  • Cory Rayburn Young, University of Kansas School of Law
  • Nancy Chi Cantalupo, Barry University Dwayne O. Andreas School of Law
  • Ben Trachtenberg, University of Missouri School of Law

The Trump Administration recently revised the Title IX process addressing sexual violence on college campuses. These revisions, coupled with a Sixth Circuit decision finding due process protections lacking in a university’s Title IX hearing, underscore the importance of ensuring that both victims and accused receive access to justice following allegations of sexual violence. Against the backdrop of these and other current events, this panel considers strategies for rethinking the response from a legal access to justice perspective. As lawyers and legal academics, this topic is important to us, our students, institutions, and society as we strive to find balance between the rights of victims and accused. The voices on this panel offer diverse viewpoints regarding Title IX’s role in addressing sexual violence. Panelists will discuss necessary protections for those bringing claims of sexual violence to ensure fair resolution that causes limited harm to these individuals and their educational opportunities, and protections for those accused of perpetrating sexual violence, recognizing that consequences may extend far beyond the classroom. We challenge attendees to return to their campuses and respectfully engage one another to find meaningful solutions to an issue that, thus far, has failed to adequately guarantee access to justice for all.

For other programs coming up at AALS, see Law and Gender Programs at AALS 2018

November 10, 2017 in Conferences, Education, Violence Against Women | Permalink | Comments (0)

Wednesday, November 8, 2017

The Difference Feminist Knowledge Might Make to Domestic Violence Death Review Committees

Elizabeth Sheehy, A Feminist Reflection on Domestic Violence Death Reviews ,  in Myrna Dawson, ed. Domestic Homicides and Death Reviews: An International Perspective (Hampshire: Palgrave Macmillan, 2017) 373-398.

This paper interrogates what contribution feminist knowledge and praxis might make to assessing and deepening the work of Domestic Violence Death Review Committees (DVDRCs). While DVDRCs may be struck by governments or civil society and may differ in terms of the form and content of their governance, all DVDRCs have their origins in the work of frontline feminist activists who documented the unique features that differentiate woman killing from other forms of homicide and demonstrated that intimate femicide is predictable and therefore preventable. Another uniting characteristic of DVDRCs is that their work is overwhelmingly focused on the deaths of women, since women account for the vast majority of domestic violence deaths -- 83% of such deaths in Canada. 

DVDRCs build on the important work of frontline feminists by studying domestic violence homicides, identifying risk factors, ascertaining points of contact with legal and social structures that might have intervened, and making recommendations for change in law, policy, and practice for the purpose of preventing such deaths in the future. Yet when one reads the reports of DVDRCs, feminists, feminist analysis, and feminist practice are almost entirely absent from the overwhelming majority. This paper will investigate what imperatives a feminist framework might bring to this work.

November 8, 2017 in Theory, Violence Against Women | Permalink | Comments (0)

Wednesday, October 25, 2017

The Lessons of Fox News for Reforming Sexual Harassment Law

Kate Webber Nuñez, Toxic Cultures Toxic Cultures Require a Stronger Cure: The Lessons of Fox News for Reforming Sexual Harassment Law, 122 Penn State L. Rev. (forthcoming):

A series of sexual harassment scandals have disrupted Fox News, causing the departure of some of its top executives and anchors. The upheaval at Fox News, however, came from public disclosure and social pressure; the actual law prohibiting harassment failed to deter or stop the rampant abuse at the network. Legal scholars have previously identified the problems with federal harassment law that could explain why widespread sexual harassment occurred at the highest levels of Fox News. Specifically, the existing literature details how women are forced to report harassment nearly immediately, despite the many career reasons not to, and yet are not fully protected against retaliation when they do. Scholars have also documented that if a victim’s claims do make it to court, the standard for proving harassment is a nearly insurmountable burden to overcome. These identified weaknesses in the law would seem to explain why it failed to act as a stronger deterrent to Fox News. Fox News, however, is headquartered in New York City, a jurisdiction with its own local anti-harassment law that is much more strongly worded. In fact, the New York City Human Rights Law removes each of the identified problems in federal harassment law. The example of Fox News therefore demonstrates that with entrenched harassing cultures, stronger anti-discrimination statutes that “fix” the identified weaknesses of current law are not a complete solution. Thus, this article advocates for two alternative means of strengthening harassment law: expanded use of systemic harassment claims and limits on the use of confidential settlements and mandatory arbitration agreements. This analysis is of particular relevance in light of recent sexual harassment scandals affecting companies such as Uber and The Weinstein Company.

October 25, 2017 in Business, Violence Against Women, Workplace | Permalink | Comments (0)

What Women Victims of Domestic Violence Want from the Criminal Justice System

 Robyn Holder & Kathleen Daly, Sequencing Justice: A Longitudinal Study of Justice Goals of Domestic Violence Victims

What women as victims of domestic violence want from criminal justice has long interested researchers and advocates. This article foregrounds the ways in which ‘justice’ matters to victims and how a desire for justice may change over time. We find that victims have multiple justice goals, which are ordered and unfold through the criminal justice process. The goals are directed towards three domains of victim, offender and community; and are influenced by both personal and public interests. Accountability is a threshold goal from which others—punishment, deterrence, rehabilitation or another—may be contemplated. From the perspective of victims, achieving justice is sequencing these goals through hybrid processes with differing degrees of victim participation.

October 25, 2017 in Violence Against Women | Permalink | Comments (0)

What Women Victims of Domestic Violence Want from the Criminal Justice System

 

Robyn Holder & Kathleen Daly, Sequencing Justice: A Longitudinal Study of Justice Goals of Domestic Violence Victims

What women as victims of domestic violence want from criminal justice has long interested researchers and advocates. This article foregrounds the ways in which ‘justice’ matters to victims and how a desire for justice may change over time. We find that victims have multiple justice goals, which are ordered and unfold through the criminal justice process. The goals are directed towards three domains of victim, offender and community; and are influenced by both personal and public interests. Accountability is a threshold goal from which others—punishment, deterrence, rehabilitation or another—may be contemplated. From the perspective of victims, achieving justice is sequencing these goals through hybrid processes with differing degrees of victim participation.

October 25, 2017 in Violence Against Women | Permalink | Comments (0)

Tuesday, October 24, 2017

A Short History of Sexual Harassment

As sexual harassment dominates the news, a blog post here collecting some of the key sources for understanding the legal history of sexual harassment.

Lin Farley, NYT, I Coined the Term "Sexual Harassment." Corporations Stole It.

It wasn’t until April 1975 that women had a word for talking about what their male bosses were doing to them.

It was that month that I first used the phrase “sexual harassment” in public, during a hearing on women in the workplace by the New York City Human Rights Commission, at which I was testifying as an instructor at Cornell University. The New York Times covered the hearing in an article that was reprinted across the country. And thus, a concept was born.

Reva Siegel, A Short History of Sexual Harassment Law

As we have· seen, the practice and protest of sexual harassment have a long history, in which we can situate developments of the 1970s as a recent and relatively short chapter. But these developments nonetheless represent a dramatic turning point in social and legal understandings of the practice.

In the 1970s Catharine MacKinnon and Lin Farley and the many other lawyers and activists who represented women in and out of court were able to mount a concerted assault, of unprecedented magnitude and force, on the practice of sexual harassment. Responding on many fronts to the demands of the second-wave feminist movement, the American legal system began slowly to yield to this challenge, and for the first time recognized women's right to work free of unwanted sexual advances.

How did this come about? Sexual harassment law arose, first and foremost, from women acting as part of a· social movement speaking out about their  experiences as women at work; the term "sexual harassment" itself grew out of a consciousness-raising session Lin Farley held in 1974 as part of a Cornell University course on women and work. But more was required for the American legal system to recognize this experience of gendered harm as a form of legal injury, when for centuries it had refused.

Carrie Baker, Sexual Harassment: Law for Women, By Women, in Feminist Legal History  

Carrie Baker, The Women's Movement Against Sexual Harassment  

 

October 24, 2017 in Violence Against Women, Women lawyers, Workplace | Permalink | Comments (0)

Tuesday, October 10, 2017

CAL Passes Bill to Codify Obama-Era Title IX Guidance for Campus Sexual Assault

California Senators Want to Codify Obama-Era Title IX Guidance on Campus Sexual Assault

With the stroke of a pen, Education Secretary Betsy Devos rescinded Obama-era Title IX guidance—effectively undoing nearly half a century of policy and advocacy work that helped to protect women and girls from sexual assault and advance equal access to education. The Department of Education’s updated guidance on Title IX allows schools to mediate rather than adjudicate sexual assault cases, revokes the suggested timeline for investigations and revises the suggested “preponderance of evidence” standard for sexual assault cases to make room for schools to enforce “clear and convincing evidence” standards.

 

Colleges and universities have been swift to respond, speaking out against the new interim guidance and pledging to uphold the old standards by following the procedures with which they were imbued under the Obama-era guidance. In a statement on Friday, UC Berkeley said it “stands firmly in support of the profoundly important policies enacted in recent years that seek to ensure a more efficient and fair system for all parties in cases of sexual harassment and sexual violence.” Penn State stated that it was their goal “to keep our reporting mechanisms and supportive services for responding to incidents of sexual and gender-based harassment and discrimination as effective and accessible as possible.” Washington University announced that “regardless of decisions at the federal level” they “have no intention of turning back on our commitment or resolve.”

 

These responses are undeniably uplifting and important—but laws are only as good as their enforcement. Without the proper mechanisms for effective enforcement that the previous guidance provided, it is hard to say whether schools will hold themselves accountable to the law or let their promises ring empty. Rather than hope for the best, California Senator Hannah-Beth Jackson (D-Santa Barbara) authored a bill that would enshrine into California law the Obama guidelines that guaranteed girls and women equal access to education.

 

SB 169 sends a message that the state does not want to sit idly by as the federal government attempts to propel women’s rights into the past. “In California, we will not go back,” Jackson said in a statement on Friday. “Both houses of the Legislature made a clear bipartisan statement by passing my bill, SB 169, to protect the Obama-era guidelines that strike an appropriate balance that were put in place during his tenure. We will not back down from the progress we have made on sexual assault and sexual violence.”

 

SB 169 passed with a 28-10 vote and is awaiting a signature from Governor Jerry Brown (D)

October 10, 2017 in Education, Legislation, Violence Against Women | Permalink | Comments (0)

Wednesday, October 4, 2017

Most Women in Prison are Victims of Domestic Violence. That's Nothing New.

Most Women in Prison are Victims of Domestic Violence. That's Nothing New.

While the mass incarceration of men has dominated the discussion of policing and prisons over the past few years—and rightly so—there’s been a recent shift in thinking about incarcerated women, and not a moment too soon. According to a report by the Vera Institute, women’s incarceration has increased a startling 14-fold since 1970. Like their male counterparts, these women are also overwhelmingly women of color.

 

Despite the shocking increase in their numbers, however, the specific issues and needs of female prisoners have largely gone ignored. In particular, as National Domestic Violence Awareness Month begins in the U.S., it’s worth noting that the vast majority of women in prison are single mothers who have been victims of domestic and/or sexual violence.

 

These concerns have rarely been part of prison-reform discussions, and yet this fact is typical of the history of women’s incarceration in our country.

 

Criminal justice in the American South for decades following the Civil War was meted out unjustly, disproportionately affecting African Americans, regardless of gender. And, thanks to a unique historical record created by women in a Mississippi prison in the 1930s, it’s possible to see that the similarities between women’s incarceration then and now is significant. In both periods, women were more likely to be incarcerated for nonviolent crimes than for violent ones. Likewise, many of the incarcerated women in both cases were victims of domestic and sexual violence whose income was vital to their family household.

This report matches my own experience.  In practice, I handled a pro bono class action on behalf of the women prisoners in D.C.  See Women Prisoners of DC v. District of Columbia.

October 4, 2017 in Courts, Legal History, Violence Against Women | Permalink | Comments (0)

Friday, September 22, 2017

Dept Ed Rescinds Obama Title IX Procedures for Campus Sexual Assault

Today the Dept of Education rescinded the prior Title IX "Dear Colleague Letter" on handling claims of campus assault and issued its own letter.

2017 Dear Colleague Letter (Sept. 22, 2017)

The purpose of this letter is to inform you that the Department of Education is withdrawing the statements of policy and guidance reflected in the following documents:
    • Dear Colleague Letter on Sexual Violence, issued by the Office for Civil Rights at         the U.S.Department of Education, dated April 4, 2011.
    • Questions and Answers on Title IX and Sexual Violence, issued by the Office for         Civil Rights at the U.S. Department of Education, dated April 29, 2014.


These guidance documents interpreted Title IX to impose new mandates related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct. The 2011 Dear Colleague Letter required schools to adopt a minimal standard of proof—the preponderance-of-the-evidence standard—in administering student discipline, even though many schools had traditionally employed a higher clear-and-convincing-evidence standard. The Letter insisted that schools with an appeals process allow complainants to appeal not-guilty findings, even though many schools had previously followed procedures reserving appeal for accused students. The Letter discouraged cross-examination by the parties, suggesting that to recognize a right to such crossexamination might violate Title IX. The Letter forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints, forcing schools to establish policing and judicial systems while at the same time directing schools to resolve complaints on an expedited basis. The Letter provided that any due-process protections afforded to accused students should not “unnecessarily delay” resolving the charges against them.

 

Legal commentators have criticized the 2011 Letter and the 2014 Questions and Answers for placing “improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” As a result, many schools have established procedures for resolving allegations that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation. 

 

The 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints. The guidance has not succeeded in providing clarity for educational institutions or in leading institutions to guarantee educational opportunities on
the equal basis that Title IX requires. Instead, schools face a confusing and counterproductive set of regulatory mandates, and the objective of regulatory compliance has displaced Title IX’s goal of educational equity

 

The Department imposed these regulatory burdens without affording notice and the opportunity for public comment. Under these circumstances, the Department has decided to withdraw the above referenced guidance documents in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits. The Department intends to implement such a policy through a rulemaking process that responds to public comment. The Department will not rely on the withdrawn documents in its enforcement of Title IX.

DoE Q&A on Campus Sexual Misconduct (Sept. 22, 2017).  This allows for mediation and provides required procedures for adjudicating campus sexual misconduct.

 

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

Tuesday, September 19, 2017

How Title IX Enforcement Probably Discriminates against Minority Students

Ben Trachtenberg, How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students, 18 Nevada L. Rev. 2 (forthcoming 2018)

Abstract

This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement—launched with the best of intentions in response to real problems—almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, preventing evaluation of possible disparate racial impact. Further, several aspects of the university disciplinary apparatus—including broad and vague definitions of offenses, limited access to legal counsel, and irregular procedures—increase the risk that black students will suffer disproportionate suspensions and other punishment.

This Article brings needed attention to an understudied aspect of Title IX enforcement and raises concerns about the potential effects of implicit bias. While many commentators and courts have addressed whether university disciplinary procedures mistreat men—or, instead, even now provide inadequate protection for college women—few observers have discussed possible racial implications, which may explain (and be explained by) the current lack of data. Outside the context of sex-discrimination cases, university discipline procedures for quotidian matters such as plagiarism and alcohol abuse likely exhibit similar biases.

This article argues that the U.S. Department of Education should use its authority under Title VI of the Civil Rights Act to require that colleges and universities immediately begin collecting and publishing the sort of data already reported by elementary and secondary schools, thereby allowing observers to assess the scope of disparate impact in campus discipline processes.

September 19, 2017 in Education, Race, Violence Against Women | Permalink | Comments (0)

Monday, September 11, 2017

Dept of Education to Ensure Due Process for those Accused of Sexual Assault under Title IX

 Wash Post, Devos Decries "Failed System" on Campus Sexual Assault, Vows to Replace It

“We must do better because the current approach isn’t working,” she said.

Christina Hoff Sommers, Protecting Due Process in Sexual Assault Cases on Campus, Chronicle of Higher Ed.

used to wonder what was worse: Republican politicians ignoring women’s issues or Republican politicians talking about them. The recent speech by Secretary of Education Betsy DeVos is a welcome exception: Her address on the need to reform campus sexual-assault procedures was empathetic and judicious. She offered a way forward that should appeal to fair-minded people across political and cultural divides.

"One rape is one too many," she said. But, she added, "One person denied due process is one too many."

She acknowledged the suffering of both victims of sexual assault and those falsely accused of assault: "Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined." Those are non-negotiable principles, and she promised to revamp the current system for adjudicating cases of campus sexual assault, which she called "broken."

That broken system was created by a letter from a little-known public official. No one in the House or Senate voted for it, and no judge reviewed it. The public was not notified in advance and did not discuss it before it was issued. On April 4, 2011, Assistant Secretary of Education Russlyn Ali sent out her now-famous "Dear Colleague" letter to colleges across the country.

The letter advised them to determine guilt in sexual-assault cases by the lowest standard possible — a preponderance of evidence — and to "minimize the burden on the complainant." It said nothing about the rights of the accused. Informal measures for resolving "he said, she said" confrontations were ruled out of order. "In cases involving sexual assault," Ali instructed, "mediation is not appropriate even on a voluntary basis."

Ali thought college administrators were doing too little to protect students from the reported epidemic of sexual violence and harassment on campus. I have argued elsewhere that these reports were exaggerated, and that most college officials did take the problem seriously, but I don’t question her sincerity. I do question her judgment and her right to regulate by fiat. Secretary DeVos was right to say, "Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students."

Colleges were panicked by Assistant Secretary Ali’s "Dear Colleague" letter and rushed to meet the new requirements. They revamped their disciplinary committees and hired Title IX officers to run programs with titles like the Office for Sexual and Gender-Based Dispute Resolution. According to Emily Yoffe, Harvard has 55 full- and part-time Title IX coordinators. Princeton has 41.

Fearing Title IX investigations and loss of federal funding, many colleges set up extrajudicial sex courts, where defendants could be found guilty of a crime even if there was a 49.9 percent chance that they were innocent. At last count, more than 150 lawsuits have been filed since 2011 by students (mostly young men) alleging unfair treatment in a campus sexual-assault proceeding.

See also, prior post, Harvard Law Profs Call for DOE to Revise Title IX Campus Assault Policy

September 11, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, August 30, 2017

Trump's OCR Resolving Campus Sexual Assault Cases More Often

The Chronicle, Federal Sex-Assault Investigations are Being Resolved More Often. These 11 Cases Show How.

Since President Trump took office, one of the most closely watched issues in higher education has been his Education Department’s shifting approach to enforcement of campus sexual-assault policy.

 

Candice E. Jackson, acting assistant secretary for the department’s Office for Civil Rights, directed her staff to sharply scale back the scope of sexual-violence investigations under the gender-equity law known as Title IX. Her instructions sought to cut down on a backlog of cases that the department said had "exploded" under President Barack Obama

 

Mr. Trump’s presidency is still young, but signs have emerged already that the department is delivering on that pledge. Sexual-violence investigations are still being opened at a rapid pace — this week, the department acknowledged six new ones, for a total of 350 active cases. But resolutions have grown more frequent, too, with two more announced this week.

o far, 11 sexual-violence cases have been resolved in the Trump era. Here’s what we know about them:

 

The resolutions are coming at a faster clip.

The civil-rights office is on pace to resolve more sexual-violence cases this year than it did in any other since the department issued its controversial 2011 "Dear Colleague" letter. Last month was especially busy — five cases were resolved in July alone. That’s the most resolutions of any month in the enforcement era marked by the 2011 guidance.

 

They’re also being delivered more quietly.

After President Obama’s civil-rights office first released its list of Title IX sexual-violence investigations, in May 2014, it became common for the department to announce its resolution agreements in news releases. Those public disclosures have been much less frequent since President Trump took office. Of the 11 investigations resolved in the Trump era, just two of those resolutions — involving Wittenberg University — were announced on the department’s website (in March). As BuzzFeed reported at the time, the department did not give the same treatment to a case involving the University of Alaska system, resolved in February, nor has it done so with a more recent case at the Butte-Glenn Community College District, resolved last month.

 

The new trend is "administrative closure."

The civil-rights office will administratively close an investigation — which means it issues a closure letter but no findings or resolution agreement — in certain situations, such as when investigations overlap with the actions of other agencies. For instance, OCR will close a complaint if the same party has filed similar allegations with another civil-rights agency or a state or federal court. It will also close a complaint if it receives "credible information" that the allegations have been resolved and that there are no broader, systemic allegations in question. The office may also close a complaint administratively if a complainant withdraws his or her allegations or refuses to cooperate.

August 30, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Symposium on Campus Sexual Assault

The Journal of Legal Education's summer issue features a symposium exploring on campus issues related to sexual harassment, Title IX, and academic policies, including the following articles:

August 30, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, August 29, 2017

Harvard Law Profs Call for DOE to Revise Title IX Campus Assault Policy

Four Harvard Law Faculty ask DOE to Change Campus Sexual Assault Policies

Four members of the Harvard Law School faculty have called on the U.S. Department of Education to revise the Obama Administration’s policies enforcing Title IX in matters of sexual harassment and sexual assault on college and university campuses.

 

The four scholars — Janet HalleyJeannie Suk Gersen ’02Elizabeth Bartholet ’65, and Nancy Gertner — have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were among the 28 Harvard Law School professors who published a statement in the Boston Globe on Oct 15, 2014, criticizing Harvard University’s sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”

 

On August 21, in a memo entitled “Fairness for All Students under Title IX,” the four scholars urged the Department of Education to adopt what they describe as “an agenda of fairness for all students, accusers and accused.”

 

Said Jeannie Suk Gersen: “In recent years the Education Department has pressured colleges and universities to adopt overbroad definitions of wrongdoing that are unfair to both men and women, and to set up procedures for handling complaints that are deeply skewed against the accused and also unfair to accusers.”

 

Janet Halley said: “To fully address campus sexual assault, the college definitions of violations and processes need legitimacy. Now is the time to build in respect for fairness and due process, academic freedom, and sexual autonomy.”

 

The memorandum is available here:

http://nrs.harvard.edu/urn-3:HUL.InstRepos:33789434

August 29, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, August 23, 2017

The Sex Discrimination Roots of Campus Sexual Assault

Deborah Brake, Back to Basics: Excavating the Sex Discrimination Roots of Campus Sexual Assault, Tenn. J. Race, Gender & Soc. Justice (2017)

This article, written for a symposium devoted to the legacy of celebrated Lady Vols coach, Pat Summit, connects the dots between Title IX’s regulation of campus sexual assault and the law’s overarching goal of expanding women’s access to leadership. Beginning with a discussion of how sexual objectification and harassment obstruct women’s paths to leadership, the article situates campus sexual assault as an important part of Title IX’s overarching agenda to promote equal educational opportunity. Although liberal feminism and dominance feminism are often discussed as competing theoretical frames for understanding and challenging gender inequality, they are best seen as complementary and mutually reinforcing strategies for dislodging the social practices that separate women from power. Sexual assault is just such a practice, and sex discrimination law has long recognized it as a form of sex discrimination. And yet, the current controversy over Title IX’s approach to campus sexual assault has become mired in the weeds of procedural discourse and de-gendered narratives of alcohol and campus partying culture, obscuring the gendered reality – and gender inequality – at the root of the problem. This article traces the evolution of Title IX’s current framework for regulating institutional responses to campus sexual assault with the goal of shoring up the sex discrimination roots underlying that framework. It begins this work by acknowledging that neither courts nor the enforcing agency has fully explained how and why the requirements in the Office for Civil Rights 2011 Dear Colleague Letter (DCL) stem from the statutory ban on sex discrimination. It proceeds to sketch the contours of the sex discrimination grounding for the principles in the DCL, moving beyond sexual assault itself as a gendered practice to focus on how gender scripts and rape myths affect institutional responses to it. The article concludes with a call for further work connecting the statutory ban on sex discrimination to the DCL’s specific requirements for institutional responses to campus sexual assault.

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

Monday, August 7, 2017

The N.F.L.’s Domestic Violence Policy:  Revealing the Limits of an Internalities Approach to Domestic Violence

From Guest blogger, Jamie Abrams:

The National Football League’s (NFL’s) response to domestic violence provides a good example of the limits of internalities and the expansive and transformative power of externalities to apply a framework introduced in my last blog entry.  In August 2014, the NFL Commissioner Roger Goodell announced a new Personal Conduct Policy. The policy was enacted after a high profile case of domestic abuse involving Ray Rice and his then-fiancée.  Commissioner Goodell faced harsh criticism for allegations against him ranging from giving Rice an inappropriately light punishment to attempting to cover up the scandal by ignoring the existence of the security camera footage until the media released it.  The revised policy stated that assault, battery, domestic violence or sexual assault involving physical force would be subject to a suspension of six games without pay for the first offense.  The suspension would apply regardless of whether the player was formally charged.  A second qualifying offense would lead to a lifetime ban from professional football.    The NFL sought to ensure a “fair and consistent process for player and employee discipline” that would “set a higher standard.”

The NFL’s response, however, rested entirely on internalities.  It depended on the victim coming forward to report the allegations of assault.  It added an additional punitive and professional outcome to the existing criminal and civil consequences.  In its application, the policy only raised the stakes for the victim in coming forward to report domestic violence against prominent athletes.  This approach is inherently limited in its efficacy and insulates the NFL (which is a proxy for the state in this example) from accountability.

When understood in the context of externalities and broader political framings, the NFL could have dramatically reframed its approach in actually using its power as the NFL to change behaviors.  The culture of the NFL could have been more closely examined to see the ways in which it acts as a provoker of domestic violence and the ways in which it could better prevent domestic violence.  For example, in a highly masculine environment, might the publicity, threatened job loss, and income loss embedded in the NFL policy – particularly when initiated by the victim – actually exacerbate the risk of domestic violence?  Might the NFL work to change its culture of masculinity in ways that effectively address the medical, social, and statistical risks of domestic violence that are unique to NFL culture? 

Expanding the lens to include externalities offers an insightful contrast to consider what might be missing from an internalities approach.  It reveals how the NFL camaraderie and the team atmosphere of the NFL might be leveraged to create positive peer associations and stronger cultural values and beliefs about healthy relationships.  It reveals how the NFL might also provide more support for its players who are prior victims of abuse or witnesses of abuse or hold other risk factors.  With the power and resources of the NFL expanded to an externalities approach, perhaps stronger lasting change could be achieved.

 

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Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

August 7, 2017 in Guest Bloggers, Sports, Violence Against Women | Permalink | Comments (0)