Wednesday, April 29, 2009

Standing, Feminism, and Women's Studies at Columbia University

The lawsuit by Roy Den Hollander against Columbia University's Institute for Research and Gender at Columbia University has provoked a spate of media coverage including the most recent NYT article reporting on the dismissal of the lawsuit.  With a bit of tinkering, this litigation could be adapted to a constitutional law examination with any number of issues.

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Magistrate Judge Kevin Fox recommended dismissal of the complaint based upon standing.  Fox's order, available at 2009 WL 1025960, provides:

The amended complaint alleges the plaintiffs have been harmed by: (1) the existence of the Women's Studies program at Columbia, as it discriminates against male students and causes harm to males by propagating negative information regarding males; and (2) the absence of a Men's Studies program at Columbia that would focus on issues relevant to males and “counter” the information taught through Columbia's Women's Studies program.

The plaintiffs' alleged injury, which is purportedly based upon the content of, or the discriminatory impact flowing from, the Women's Studies program at Columbia, is not an “injury in fact,” since the plaintiffs do not allege they enrolled in a Women's Studies course(s) at Columbia that caused them to suffer a direct injury occasioned by firsthand exposure to the content of the Women's Studies course(s), or that they were discriminated against, by being denied the opportunity to participate in Columbia's Women's Studies program.

In support, the Magistrate Judge cites Moose Lodge No. 107 v. Irvis, 407 U .S. 163 (1972) (finding that the plaintiff lacked standing to challenge the Moose Lodge's racially discriminatory membership policy, because he never applied for membership).   The Magistrate's discussion signals the equal protection issue lurking here.  Of course, had the analysis proceeded further, Moose Lodge would also be pertinent to deciding the state action issue, given that Columbia University is not a public university. 

The District Judge, Lewis Kaplan, adopted the Report and Recommendation in his Order.  Although brief, Judge Kaplan's Order made three additional points.  First, Judge Kaplan rejected the notion that Magistrate Fox should have recused himself because he is a graduate of Columbia University.  Second, Judge Kaplan considered an objection to the Magistrate's description of the action as being brought pro se.  As Kaplan noted, this is not true as a "purely technical matter" since Hollander is an attorney and the second plaintiff in the case, but even if true such an argument "betrays a remarkable instinct for the capillaries" given that the pro se designation actually worked to Hollander's benefit under the more liberal pleading rules afforded pro se litigants.  Third, Kaplan stated:

Finally, although the Magistrate Judge did not reach the merits, it bears noting that plaintiffs’ central claim is that feminism is a religion and that alleged federal and state approval of or aid to Columbia’s Institute for Research on Women & Gender therefore constitute a violation of the Establishment Clause of the First Amendment.  Feminism is no more a religion than physics, and at least the core of the complaint therefore is frivolous.

In his final paragraph, the judge labels the claim "absurd" and dismissed the case.

RR

April 29, 2009 in Cases and Case Materials, Gender, Recent Cases, Religion, Standing, State Action Doctrine, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2008

On Palin, the Branchflower ethics report, husbands & state action

The Branchflower investigative report concluding Governor Palin abused her power as governor to settle a personal matter makes interesting reading.  (A pdf link to the 263 page Branchflower report is available at the Alaska Daily News and the New York Times, and many other outlets as well).   

But what strikes me most is the role of Sarah Palin's husband, Todd Palin.  I'll admit I have a personal reaction.  I've known too many heterosexual women (including legal academics and lawyers) who use the phrase "my husband" incessantly, as if appealing to some authority in a conversation with me.  Although, I will say, I haven't ever had any of the women with whom I've worked invite their husbands into meetings or ever had their husbands call me and give me job instructions.

One could start thinking about whether I would be equally appalled if the gender roles were reversed - - - what if one of my male colleagues had their wives or partners in meetings?  And what did I really think of of Hillary Clinton's role in the White House?   And one could start imagining same-sex couple constellations.  Indeed, Todd Palin makes a similar point in his deposition, available as pdf here.

Instead, however, I'm thinking STATE ACTION.

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It is easy to imagine a hypothetical, although to make it a little simpler, assume the person who might bring a constitutional challenge against Todd Palin was not a state employee, so that the question of state action rests more squarely on the shoulders of Todd Palin.  In "all fairness" - - -  as the language from Edmonson v. Leesville Concrete provides - - - could we call Todd Palin a "state actor" ?   Does that depend on how one "fairly" interprets the intertwining of a spousal relationship and work relationships?

RR


October 10, 2008 in State Action Doctrine | Permalink | Comments (0) | TrackBack (0)