On the 50th anniversary of Title IX, the Biden administration proposed sweeping changes to the landmark law that would bar schools, colleges and universities from discriminating against transgender students, as the battle over transgender rights moves to the front lines of the culture war.
Friday, June 24, 2022
A joint dissent by Justices Breyer, Sotomayor and Kagan in Dobbs v. Jackson Women's Health Organization is expressive in its attack on the philosophical and physical harms to women from the Court's reversal of the fifty-year right of women to choose whether or not to bear a child in choosing an abortion.
For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.***
Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reason able limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.***
We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.
We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.
The dissent finds it clear that other constitutional rights of liberty interests are now threatened:
And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. See Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015). They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” Ante, at 66; cf. ante, at 3 (THOMAS, J., concurring) (advocating the overruling of Griswold, Lawrence, and Obergefell). But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. Ante, at 32. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” Ante, at 15. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other. ***
The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.
And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” position, as JUSTICE KAVANAUGH tries to argue.
The US Supreme Court expressly overruled the 50-year old constitutional right for women to choose an abortion. Dobbs v. Jackson Women's Health Organization.
The vote is 5-4 to overturn Roe/Casey, with the majority opinion by J. Alito, joined by Thomas, Gorsuch, Kavanaugh and Barrett. Roberts concurs only in the judgment of upholding the 15-week ban, but not in overruling Roe. The dissent is Breyer, Sotomayer, and Kagan.
In my first quick look, the majority opinion is not much different from the leaked draft opinion.
Thomas in his concurrence of one calls for revisiting Griswold, Lawrence, and Obergefell, meaning to challenge the constitutional rights to marital privacy, contraception, sexual intimacy and conduct, and same-sex marriage.
Kavanaugh in concurrence says the Constitution calls for neutrality, and not taking sides between the pregnant woman's interest and the fetal life, which he says Roe did. He footnotes a Rehnquist dissent that says exceptions to protect the life of the woman are constitutionally required. He emphasizes that the decision doesn't prohibit abortion, but allows for legislative action. He responds to Thomas and says nothing in the opinion calls into question the constitutional rights to contraception or LGBTQ rights because abortion is different. And, in veiled reference to harmonize the Court's recent decision in Bruen on the Second Amendment, he says in a footnote that the relevant historical evidence for the abortion decision is at the time the 14th Amendment was enacted in 1868 when two-thirds of the states criminalized abortion.
Roberts concurs only to uphold the judgment. He overturns the viability standard from Roe, but does not overrule the right to abortion completely.
A joint dissent by Justices Breyer, Sotomayor, and Kagan is explicit in noting the philosophical and physical harms to women from the decision:
Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions.
See Gender & the Law Prof Blog, The Joint Dissent in SCOTUS Abortion Case Calls Out Women's Loss of Citizenship
President Biden's Proposes New Administrative Rules on Title IX for Campus Sexual Assault and LGBTQ Protections
The U.S. Education Department on Thursday released its proposed Title IX regulations, which would reverse many Trump-era policies and restore the pro-victim approach championed by the Obama administration.
Specifically, the rule would:
- Enshrine protections for sexual orientation and gender identity, as well as “sex stereotypes, sex characteristics, [and] pregnancy or related conditions.”
- Permit, but no longer require, live hearings and cross examination in Title IX investigations.
- Expand the definition of sexual harassment.
- Clarify the protections students, faculty, and staff have from retaliation by their institution.
- Require colleges to confront off-campus conduct that “creates or contributes to a hostile environment.”
- Require certain campus employees to notify the Title IX office of possible sex discrimination, a return to broader mandatory-reporting requirements. If an incident involves students, anyone with “teaching” or “advising” responsibilities — in other words, most faculty members — must report it. Some professors have criticized mandatory reporting, saying it harms the trust they’ve built with their students.
- Require all other faculty and staff members to provide students with the contact information of the campus Title IX coordinator, unless they’re designated as confidential resources.
The changes would once again upend how colleges handle sexual-misconduct complaints. Experts who work with colleges say campus officials are exhausted by more than a decade of political Ping-Pong over Title IX, as the three most-recent presidential administrations have switched up rules and guidance, and colleges have rushed to comply.
“Our goal is to give full effect to the law’s reach and to deliver on its promise to protect all students from sex-based harassment and discrimination,” Education Secretary Miguel Cardona said. “Every student deserves to learn free from discrimination and harassment, regardless of their sex, sexual orientation or gender identity.”
Thousands of people were convicted of practicing witchcraft in Scotland in a hunt that spanned nearly two centuries — and the majority of those sentenced to death and executed were women. Many were also tortured.
The pardons would ensure they are “recognized as victims of a miscarriage of justice and are no longer recorded in history as criminals,” Don said Thursday in a video.
Calls for legal pardons for “witches” or “necromancers” have gathered pace in Scotland, where the country’s most senior politician, First Minister Nicola Sturgeon, issued a formal apology in March to those vilified under the Witchcraft Act. The act, which was in effect from 1563 to 1736, made practicing witchcraft punishable by death.“It was injustice on a colossal scale, driven at least in part by misogyny,” Sturgeon said on International Women’s Day. “They were accused and killed because they were poor, different, vulnerable or in many cases just because they were women.”
Emily Suski, Institutional Betrayals As Sex Discrimination, 107 Iowa L. Rev. (2022)
Title IX jurisprudence has a theoretical and doctrinal inadequacy. Title IX’s purpose is to protect public school students from sex discrimination in all its forms. Yet, courts have only recognized three relatively narrow forms of sex discrimination under it. Title IX jurisprudence, therefore, cannot effectively recognize as sex discrimination the independent injuries, called institutional betrayals, that schools impose on students because they have suffered sexual harassment. Institutional betrayals occur when schools betray students’ trust in or dependency on them by failing to help students in the face of their sexual harassment. These injuries cause harms that can be more severe than those resulting from the original sexual harassment. Further, schools do not passively cause institutional betrayals; they impose them in three affirmative ways: Schools punish students for their sexual harassment, blame them for it, and communicate an automatic, default disbelief of students’ harassment.
Because Title IX’s statutory mandate is broad—it prohibits sex discrimination without limitation—courts could recognize as sex discrimination the institutional betrayals that schools impose on students because of their status as survivors of sexual harassment. None of the three extant judicially created forms of sex discrimination under Title IX, however, has the capacity to meaningfully do so. When schools impose institutional betrayals, therefore, courts find that they do not violate Title IX.
To remedy this jurisprudential failing, this Article develops a theory of institutional betrayals as a new form of sex discrimination under Title IX. Drawing on empirical research on institutional betrayals, this theory contends that when schools impose institutional betrayals, they knowingly injure students because they have suffered gender-based harm. This Article also offers a framework for evaluating this new type of sex discrimination that would compel courts to assess institutional betrayals as sex discrimination. With such changes, Title IX jurisprudence would not only effectively recognize institutional betrayals as sex discrimination but also remedy their harms and better fulfill Title IX’s protective purpose.
Thursday, June 23, 2022
Allison Whelan, Unequal Representation: Women in Clinical Research, Cornell Law Review Online 2021
This Article engages with legal and social history to analyze the present-day consequences of two distinct, yet related historical wrongs: the exclusion of pregnant women and women of child-bearing potential from medical research and the unknowing or unwilling medical experimentation on women of color. It provides a critical contribution to the ongoing discourse about clinical trial representation, arguing in favor of policy considerations rooted in law and society to address the harms caused by this deeply rooted and problematic history.
The underrepresentation of women in clinical research throughout history is a well-recognized problem. Progress has been made, but there is still room for improvement and it must be recognized that not all women have been or continue to be treated equally in the context of clinical research. On the one hand, there is a long history of paternalism and lack of respect for women’s autonomy that has resulted in the exclusion of women from research, particularly pregnant women and women of childbearing potential. The potential consequences of this are many, including harm to women’s health because diseases and treatments can affect men and women differently.
On the other hand, there is also a long history of women of color being unknowingly or unwillingly subjected to unethical medical experiments and procedures. This includes experimentation during human enslavement, carried out most famously by doctors like James Marion Sims, who abused and terrorized Black women who he rented as slaves. He performed myriad gynecological experiments on these women, often without providing them any anesthesia. It is a glaring reflection on the multiple cruelties of slavery as well as the American experience of medical experimentation.
However, the horrors experienced by women of color in the medical setting are far more extensive, spanning into the nineteenth, twentieth, and twenty-first centuries. Famously, throughout the Jim Crow period, Black women became the unwitting subjects of eugenics platforms, legally blessed by the 1927 Supreme Court decision Buck v. Bell. In Mississippi, the frequency and normalization of sterilizations are revealed by the term “Mississippi Appendectomy” becoming associated with the practice. The term reveals the mistruths told to Black women and girls, as well as the callousness and neglect used to obtain consent for the real surgeries taking place. Most recently, during the COVID-19 pandemic, allegations of sterilizations at immigrant detention centers only further the concerns related to these matters, particularly as they affect vulnerable, poor women. This history has contributed to women of color’s distrust in the government, research institutions, and the medical system in general.
These two historical wrongs are distinct, yet related in that they both harm women’s health, dignity, and autonomy. As this Article will discuss, much progress has been made to increase women’s overall representation in clinical trials, but there is far more work to be done with respect to the representation of women of color, and people of color in general. The primary focus of this Article, therefore, is the inadequate representation of women of color, and people of color more generally, in clinical trials.
“These are pretty big gaps, and they’re incredibly persistent,” said co-author Britta Glennon, assistant professor of management at the University of Pennsylvania’s Wharton School of Business.***
The findings — which come from an extensive data set and were confirmed by a survey and follow-up interviews — both partially explain and probably contribute to the underrepresentation of women in science, Glennon said: “If you’re seeing that you’re not getting credit for the work that you do, or even that your senior female colleagues aren’t getting credit for the work that they do, that’s pretty discouraging — so I think we would all be very surprised if there weren’t a significant impact on careers.”
But while Mink strongly defended Title IX and focused on bringing about equality under the law in her 24 years in the House, she did not actually write the bill or introduce it into Congress. Rep. Edith Green (D-Ore.) wrote Title IX and worked tirelessly on Capitol Hill to pass this landmark legislation that has improved the lives of millions of women and girls over the past half-century.
Today, as conservative activists and politicians work to ban the teaching of certain concepts and history related to sex and race, it is important to insist on historical accuracy in our political discussions and remembrances. Mink more fully embraced the feminist and political ideals embedded in Title IX than did Green. But the true story of Green’s involvement reminds us that progress doesn’t only come from the political leaders you’d expect.
Green was well-poised to take on legislation like Title IX by the early 1970s. Before tackling sex discrimination in education, she led an eight-year battle to pass the Equal Pay Act of 1963 — the first legislation of its kind, even if limited in scope by today’s standards. After 15 years in the House, Green became chair of the subcommittee on higher education. She authored or influenced nearly every education bill during her tenure in the House, earning her the nickname “Mrs. Education.”
Green was a champion of sex equality and educational reform, but she seemed to have at least one blind spot on race. By February 1970, when she introduced the first iteration of Title IX, Green was a vocal opponent of court-ordered busing to racially integrate schools. Although Green didn’t see herself as racist, her argument that busing decisions should be left to local control was a favorite of anti-integrationists. Critics alternately referred to her as “the liberal racist,” “the sweetheart of the Southerners” and “the Nixon Democrat.”
Monday, June 20, 2022
Susan Faludi, Op-ed, NYT, Feminism Made a Faustian Bargain with Celebrity Culture. Now Its Paying the Price
The ruination of Roe and the humiliation of Ms. Heard have been cast as cosmic convergence, evidence of a larger forced retreat on women’s progress. “Johnny Depp’s legal victory and the death of Roe v. Wade are part of the same toxic cultural movement,” a Vox article asserted. “These examples may seem disparate, but there’s an important through line,” a USA Today reporter wrote, citing academics who linked the Alito draft opinion, the Depphead mobbing and, for good measure, the “public consumption” of cleavage at the Met Gala (held the same night the Supreme Court draft leaked): “This is backlash.”
Backlash it may be. Even so, putting the pillorying of Ms. Heard in the same backlash-deplorables basket as the death rattle of Roe is a mistake. Lost in the frenzy of amalgamation lies a crucial distinction. There’s a through line, all right. Both are verdicts on the recent fraught course of feminism. But one tells the story of how we got here; the other where we’re headed. How did modern feminism lose Roe v. Wade? An answer lies in Depp v. Heard.***
Using celebrity and hashtag feminism is a perilous way to pursue women’s advancement because it falls victim so easily to its own tools and methods. In Ms. Heard’s case, her ex-husband turned #MeToo’s strategy against itself. Mr. Depp claimed victimization because he’s a money-generating personality — he could be de-famed because he’s famous. And his massive (and vicious) fan mobilization on social media (nearly 20 billion views for #JusticeForJohnnyDepp on TikTok by June 2) was overwhelming, even by #MeToo standards. By contrast, #JusticeForAmberHeard had about 80 million views on TikTok in the same period.
Celebrity representation of feminism is a double-edged sword. If an individual embodies the principle, the principle can be disproved by dethroning the individual. In that way, Ms. Heard became both avatar and casualty of celebrity feminism. When she took the stand, she brought the modern incarnation of the women’s movement into the dock, too, and mobilized those who would see it brought down. If an ambassador for women’s rights wasn’t credible, Ms. Heard’s mob of haters was quick to conclude, then the movement wasn’t, either. No need to fret over those legions of unfamous women who may now think twice before reporting domestic violence.
Coupling the fortunes of feminism to celebrity might have been worth it if it had led to meaningful political victories. But such victories are hard to achieve through marketing campaigns alone, as the right wing understands.
Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman's Reflections as a Law Professor
Angelique Eaglewoman, Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman’s Reflections as a Law Professor, 51 Southwestern U. L. Rev. (2022)
This Essay is a reflection from my perspective as a Dakota woman law professor on my fifth law school faculty. In the illuminating work of Meera Deo, light is shone on the experience of women of color legal academics. "Unequal Profession: Race and Gender in Legal Academia" is a book that should be required reading at every law school. As women of color are faculty members in every law school in the United States, the research, analysis, and recommendations tailored to the experience of women of color law faculty should be a priority topic in those same law schools. As a Native American woman law professor, my experience and journey in legal academia resonate with many of the topics in this important work.
In Part I of this Essay, the necessity of trailblazing is discussed due to the lack of Native American women in the legal academy. Issues around visibility, ethnic fraud, and tribal sovereignty will be discussed. Part II will explore the challenges identified in "Unequal Profession" through a raceXgender framework and provide a personal perspective on dealing with such challenges. The themes of invisibility and lack of respect experienced as a Native American woman law professor will be discussed. The final section in Part III will provide insight into the motivation to stay the course and continue to make space in legal academia. In living a purposeful life, there is a choice to be a law professor as a Native woman with the goal of holding the door open for more Native American faculty, law students, and legal administrators to walk through.
For decades, there was less political will to honor fathers, especially because many men regarded the holiday as “silly.” Such thinking continues to this day, as some men celebrate being fathers by using the holiday as a ticket to spend a day at the golf course, enjoying hours on “their” day away from their children.
This understanding of Father’s Day, though, misses the ways in which Americans have used the holiday as a political vehicle. In the latter decades of the 20th century, Father’s Day was a key battleground regarding parental rights and responsibilities for activists radicalized by the nation’s rapidly shifting familial landscape. At the root of this politicization of Father’s Day — maybe surprisingly — was the history of divorce.***
Enter Father's Day. As some feminists came to view child support enforcement as a key women’s issue, they turned to the new holiday as an opportunity to publicize their cause. In 1971, a group of women and children from the Association for Children Deprived of Support (ACDS) picketed the home of California assemblyman, and potential gubernatorial candidate, Robert Moretti on Father’s Day to press him to champion child-support reforms.
Several years later, in 1975, NOW chapters in Tulsa, Pittsburgh and Hartford, Conn., all participated in “Father’s Day Actions.” The Tulsa protesters promised, in a news release, that “Fathers who are not paying child support can expect that their names and the amounts they are in arrears will be announced” and publicly “displayed by mothers, children and concerned NOW members.” The Hartford women, for their part, laid a wreath at the door of the Superior Court of Connecticut to “mourn the loss of paternal responsibility by all the fathers involved in divorce, separation, and enforcement.”
Some divorced fathers, however, had their own political agenda for Father’s Day.
Fathers’ rights advocates objected to being used as “wallets” and claimed that their ex-wives purposely kept them from seeing their children in violation of visitation orders. In 1971, the National Council for Family Preservation — one of several failed attempts by fathers’ rights advocate Richard F. Doyle to form a robust national organization like NOW — urged its member groups to hold protests on the Saturday before Father’s Day, noting that fathers might “want to be elsewhere with their children on Sunday.” In a news release, Doyle called for the recognition of the “stupid and cruel divorce laws and practices that have made this holiday a mockery for countless fathers and children.”
Friday, June 17, 2022
But a lawsuit filed last week by a South Florida synagogue challenges new legislation in the state banning most abortions after 15 weeks, saying it violates the State Constitution’s right to privacy and freedom of religion. In Jewish law, the suit argues, “abortion is required if necessary to protect the health, mental or physical well-being of the woman.”
The lawsuit, filed by Congregation L’Dor Va-Dor, a progressive synagogue in Palm Beach County not affiliated with a broader denomination, may face an uphill climb in court. But it is a reminder that abortion poses religious issues beyond those of the Christian right. And it suggests potential legal issues that could surface at a time when Roe seems likely to be overturned, and the Supreme Court has been aggressively open to a wider role for religion in public and political life.
Florida’s state law limiting abortions, signed by Gov. Ron DeSantis in April, goes into effect July 1. In banning abortions after 15 weeks, it does not make exceptions for cases of incest, rape or human trafficking. It does, however, allow for abortions if the mother’s life is endangered or if two doctors determine that the fetus has a fatal abnormality. The law was challenged earlier this month by the American Civil Liberties Union of Florida on behalf of a group of abortion providers and abortion rights organizations.***
Deeply-rooted Jewish teachings indicate that abortion is permissible — and even required — if a mother’s life is in danger, said Jewish leaders from across the ideological spectrum. In Jewish thought, it is also widely accepted that as long as a fetus is in the womb, it has “potential,” but not full, personhood, said Michal Raucher, an assistant professor of Jewish Studies at Rutgers University.
The Iowa Supreme Court on Friday overruled a 2018 decision that said the right to abortion was protected under the state constitution.
That decision — coupled with the potential overturn by the U.S. Supreme Court of Roe v. Wade, the 1973 decision that established a nationwide right to abortion — would give Iowa lawmakers significantly more freedom to pass and enforce restrictive abortion laws.
The Iowa Supreme Court's reversal came in a fractured decision that reverses a lower court's decision to block a 2020 law that put in place 24-hour waiting period before an abortion. The majority opinion said the Supreme Court's previous ruling establishing a constitutional right to an abortion "insufficiently recognizes that future human lives are at stake.”
The ruling sends the case back to the lower court for reconsideration.
Fourth Circuit En Banc Holds Charter School's Dress Code of Skirts for Girls is Gender Discrimination under Equal Protection and Maybe Title IX
Peltier v. Charter Day School, No. 20-1001 (4th Cir. June 14, 2022)
Charter Day School (CDS),1 a public charter school in North Carolina, requires female students to wear skirts to school based on the view that girls are “fragile vessels” deserving of “gentle” treatment by boys (the skirts requirement). The plaintiffs argue that this sex-based classification grounded on gender stereotypes violates the Equal Protection Clause of the Fourteenth Amendment, and subjects them to discrimination and denial of the full benefits of their education in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX).
In response, despite CDS’ status as a public school under North Carolina law, CDS and its management company disavow accountability under the Equal Protection Clause by maintaining that they are not state actors. These entities also assert that Title IX, the federal statute designed to root out gender discrimination in schools, categorially does not apply to dress codes.
Upon our review, we affirm the district court’s entry of summary judgment for the plaintiffs on their Equal Protection claim against CDS, and the court’s judgment in favor of the management company on that claim. We also vacate the court’s summary judgment award in favor of all defendants on the plaintiffs’ Title IX claim and remand for further proceedings on that claim.***
As part of this educational philosophy [traditional education as it was 50 years ago], CDS has implemented a dress code to “instill discipline and keep order” among students. Among other requirements, all students must wear a unisex polo shirt and closed-toe shoes; “[e]xcessive or radical haircuts and colors” are prohibited; and boys are forbidden from wearing jewelry. Female students are required to wear a “skirt,” “jumper,” or “skort.” In contrast, boys must wear shorts or pants. All students are required to comply with the dress code unless they have physical education class, when they wear unisex physical education uniforms, or an exception is made for a field trip or other special event. A student’s failure to comply with the dress code requirements may result in disciplinary action, including notification of the student’s parent, removal from class to comply with the dress code, or expulsion, though no student has been expelled for violating the dress code.
In 2015, plaintiff Bonnie Peltier, the mother of a female kindergarten student at CDS, informed Mitchell that she objected to the skirts requirement. Mitchell responded to Peltier in support of the policy, stating: "The Trustees, parents, and other community supporters were determined to preserve chivalry and respect among young women and men in this school of choice. For example, young men were to hold the door open for the young ladies and to carry an umbrella, should it be needed. Ma’am and sir were to be the preferred forms of address." There was felt to be a need to restore, and then preserve, traditional regard for peers. Mitchell later elaborated that chivalry is “a code of conduct where women are treated, they’re regarded as a fragile vessel that men are supposed to take care of and honor.” Mitchell further explained that, in implementing the skirts requirement, CDS sought to “treat [girls] courteously and more gently than boys.”
In support of their summary judgment motion, the plaintiffs submitted evidence of the tangible and intangible harms they suffer based on the skirts requirement. One plaintiff testified that the skirts requirement conveys the school’s view that girls “simply weren’t worth as much as boys,” and that “girls are not in fact equal to boys.” Another plaintiff stated that the skirts requirement “sends the message that girls should be less active than boys and that they are more delicate than boys,” with the result that boys “feel empowered” and “in a position of power over girls.”
The plaintiffs also described the impact of the skirts requirement on their ability to participate in school activities. On one occasion, when a first-grade female student wore shorts to school due to a misunderstanding of the dress code, she was removed from class and was required to spend the day in the school’s office. The plaintiffs also explained that they avoid numerous physical activities, including climbing, using the swings, and playing soccer, except for days on which they are permitted to wear their unisex physical education uniforms. The plaintiffs further testified that they cannot participate comfortably in school emergency drills that require students to crawl and kneel on the floor, fearing that boys will tease them or look up their skirts. Both parties presented evidence from expert witnesses regarding the effects that the skirts requirement and gender stereotypes have on female students.
Deep in the thicket of a new en banc decision from 4th U.S. Circuit Court of Appeals on the constitutionality of a charter school’s “skirts-only” dress code for girls, there’s a nuanced legal debate about whether public charter schools can be sued under the Equal Protection Clause of the 14th Amendment.
In a 10-6 decision in Peltier v. Charter Day School Inc, the 4th Circuit majority determined that under North Carolina’s statutory framework for public charter schools, the schools are state actors — and therefore bound by the Equal Protection Clause — when it comes to setting and enforcing educational policies. The judges in the majority found that Charter Day School’s dress code, which requires girls to wear skirts, skorts or dresses, is unconstitutional because it serves no educational purpose but was adopted, according to statements from school officials, to telegraph the message that girls are “fragile vessels” who require boys' protection, rather than equal treatment.
That message “blatantly perpetuates harmful gender stereotypes ... with potentially devastating consequences for young girls,” wrote Judge Barbara Keenan for the majority. “If CDS wishes to continue engaging in this discriminatory practice, CDS must do so as a private school without the sanction of the state or this court.”
But six 4th Circuit judges said it's not at all clear that the Charter Day School is a state actor. In particular, wrote Judge Marvin Quattlebaum in the court's primary dissent, there's a strong argument that North Carolina did not compel Charter Day to adopt its dress code, so the policy cannot be considered a state action
Wednesday, June 15, 2022
Three lawsuits were filed today in New York, Michigan and Rhode Island to protect Roe v. Wade from being overturned, and firmly establish the Equal Rights Amendment (“ERA”) in the United States Constitution.
The plaintiff, The Elizabeth Cady Stanton Trust, filed the lawsuits to affirm that women are fully equal citizens under the U.S. Constitution, and are entitled to full and Equal Protection of all laws. Stanton was a leading women’s rights activist in the 1800s, whose leadership led to women winning the right to vote in 1920. The Trust’s president, Coline Jenkins, is the great, great granddaughter of Elizabeth Cady Stanton. Jenkins explained that the lawsuits were filed because “only with full Equal Protection of all laws can women’s right to choose be protected."
The lawsuits were filed in response to the recently leaked opinion of U.S. Supreme Court Justice Samuel Alito, who proposes to overturn Roe v Wade. The lawsuits were filed in states where Attorneys General have expressed their support for Roe, and have stated publicly that the ERA is valid. These lawsuits ask the courts to declare the ERA valid and ensure that all laws are fully compliant with the ERA.
The lawsuits assert claims under the ERA as the Twenty-Eighth Amendment to the Constitution and state that because three-fourths of the states have ratified the ERA it is now part of the Constitution and must be enforced. Article V of the Constitution states that an amendment becomes valid the moment the last of 3/4ths of the states ratifies it, which was Virginia in January 2020. But federal officials have refused to acknowledge the ERA’s validity because a purported ratification deadline expired before Virginia ratified. The lawsuits assert that the ERA is valid because the deadline is not valid.
The threat of a Supreme Court ruling overturning Roe v. Wade has spurred a trio of new lawsuits seeking state court recognition of the Equal Rights Amendment—a last-minute effort to preempt that anti-Roe ruling by forcing the high court to factor new constitutional language into its decision.
The women’s rights group Elizabeth Cady Stanton Trust filed lawsuits in state courts in Michigan, Rhode Island, and New York, asking courts there to declare the ERA a fully ratified and enforceable part of the Constitution. The group sued each state’s attorney general, seeking to force the officials “to identify and repair all sex discriminatory laws, policies and programs” in their respective states.
The lawsuits open a new front in the wide-ranging battles over abortion rights and the Equal Rights Amendment. The recently leaked draft of a Supreme Court opinion in the pending case Dobbs v. Jackson Women’s Health Organization would end the court’s 50-year precedent of recognizing a constitutional right to abortion, if the court’s final majority opinion aligns with Justice Samuel Alito’s draft when it is published, likely next month.
“By declaring the ERA’s validity, this Court will prevent the Supreme Court from overruling Roe and protect women’s basic human right to control their own lives,” attorneys wrote in each of the three complaints, filed May 18 in Michigan and Rhode Island and May 19 in New York.
The Equal Rights Amendment doesn’t explicitly address abortion, but the plaintiffs said the amendment’s guarantee of equal protection under the law on the basis of sex would cover the right for women to make reproductive choices free from government interference.
False Claims Continue Claiming Elizabeth Cady Stanton and Susan B Anthony as Anti-Abortion Advocates
False claims continue to abound about pioneering 19th century feminists Elizabeth Cady Stanton and Susan B. Anthony as to their views on abortion, including this week in the Wall Street Journal.
As a scholar of Stanton's work for the last twenty years studying her focus on legal and social reform of the family and marriage, I have written extensively against these false claims and tried to set the record straight by delving into the historical details (incorrectly) asserted for these claims. I post here to refresh the recollection of that work as relevant to ongoing debates:
First, here's the current, incorrect report, written by anti-abortion activists:
Early feminist icons Elizabeth Cady Stanton and Susan B. Anthony changed forever the role of women in American society. In the 19th century they tirelessly promoted public education on behalf of women’s equality and demanded that women be given the right to vote. But contrary to recent claims by advocacy groups, they were not in favor of abortion.
After a leaked Supreme Court draft decision appearing to overturn Roe v. Wade circulated in May, the nonprofit National Susan B. Anthony Museum and House in Rochester, N.Y., accused the Susan B. Anthony List, a pro-life political action committee, of misappropriating the famous suffragist’s name. “To suggest that Susan B. Anthony would support government intervention in a woman’s decision about a pregnancy is abhorrent,” museum president Deborah L. Hughes wrote in a post on the organization’s website.
The Elizabeth Cady Stanton Trust similarly claims that its namesake would have supported abortion-rights advocacy in the 21st century. The group has filed lawsuits in Michigan, New York and Rhode Island, asking courts, according to a press release, “to protect Roe v. Wade from being overturned, and firmly establish the Equal Rights Amendment . . . in the United States Constitution.”
In fact, it’s the pro-choice groups that have it wrong. During their lifetimes, both women vociferously condemned abortion.
Here are links to my work challenging and disproving the historical basis on which these incorrect assumptions continue to rely:
Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012) (discussing both Stanton & Anthony)
Tracy Thomas, ECS Book Elizabeth Cady Stanton and the Feminist Foundations of Family Lawm chp. 4, The "Incidental Relation" of Mother (NYUP 2016)
Tracy Thomas, Gender & the Law Prof Blog, Elizabeth Cady Stanton was Not Against Reproductive Rights
Tracy Thomas, Gender & the Law Prof Blog, Voluntary Motherhood: What Did 19th Century Feminists Think About Abortion and Birth Control
Tracy Thomas, National Constitution Center "We the People" Podcast, The Constitutional Legacy of Seneca Falls
Tracy Thomas, Gender & the Law Prof Blog, Theme for March for Life 2020 Relies on Questionable Women's History, Incorrectly Claiming Early Feminist Leaders as Pro-Life
Tracy Thomas, Gender & the Law Prof Blog, The "Incidental Relation of Mother" and 19th Century Demands for Women's Reproductive Control
If the Supreme Court overturns Roe and Casey in the forthcoming Dobbs decision, as an anticipated, the question is what the law of abortion will then be in each of the states. Several groups have been compiling the information:
Center for Reproductive Rights, What if Roe Fell? (2019), https://reproductiverights.org/wp-content/uploads/2021/12/USP-2019-WIRF-Report-Web_updated.pdf (current as of 2019)
In the last decade, states have enacted over 450 restrictive abortion laws and, in 2019, numerous states enacted blatantly unconstitutional abortion bans as part of this coordinated strategy. If the Court were to limit or overturn Roe, it is likely that 24 states and three U.S. territories would attempt to prohibit abortion entirely. Abortions rights are protected by state law in only 21 states and no U.S. territories. In the remaining five states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, abortion may remain accessible but vulnerable without affirmative legal protection. With several abortion cases already seeking review at the Supreme Court and others making their way toward it, we now are facing an existential threat to reproductive rights.
Public discussion of abortion rights has focused on determining which states would prohibit or heavily restrict abortion access if allowed to do so by the Supreme Court. What if Roe Fell? provides our legal analysis of abortion law, state-by-state and territory-by- territory. We analyzed state constitutions, statutes, regulations, and court opinions in each of the fifty states, the District of Columbia, and the five most populous U.S. territories to answer this critical question: what would happen where you live if the Supreme Court limited or overturned Roe v. Wade?
Restrictions on abortion are most often accomplished by prohibiting abortions at specific gestational limits, usually defined in state law by either a certain number of weeks post-fertilization, or from a pregnant person’s last menstrual period (LMP). Further limitations on abortions in state-level regulation include restrictions based on a pregnant person’s reason for seeking an abortion, and bans on certain types of procedures used in late-term abortions. Additionally, some abortion bans are either contingent on a court ruling overturning Roe v. Wade, or have been in place prior to Roe protections.This dataset explores abortion regulations in all 50 U.S. states and the District of Columbia in effect from December 1, 2018 through October 1, 2021, as well as case law and attorney general opinions that affect the enforceability of these laws.
This dataset is a part of a suite of 16 datasets created by the Policy Surveillance Program of the Center for Public Health Law Research in collaboration with subject matter experts from Resources for Abortion Delivery (RAD), Guttmacher Institute, American Civil Liberties Union (ACLU), Center for Reproductive Rights (CRR), National Abortion Federation (NAF), and Planned Parenthood Federation of America (PPFA), who conceptualized and developed the Abortion Law Database.
Guttmacher Institute, An Overview of Abortion Laws, https://www.guttmacher.org/state-policy/explore/overview-abortion-laws & Guttmacher Institute, State Legislation Tracker, https://www.guttmacher.org/state-policy
NACL Appendices on the Criminalization of Abortion, https://nacdl.org/Document/AbortioninAmericaReportAppendices
Monday, June 13, 2022
Catherine Ross Dunham, Social Truths in the Workplace: How Adversarialism Undermines Discrimination Litigation
This article explores the effectiveness of dispute resolution for gender discrimination claims in the American system of civil litigation. Adversarialism is a defining feature of the American system of civil justice, beginning with reduced trust in the quasi-inquisitorial system of Chancery in the nineteenth century and escalating with the increased importance of lawyers and public trials in the twentieth and twenty-first centuries. Although adversarialism remains of great importance in some aspects of the American system, this article questions whether the adversarial system is the best dispute resolution system to address workplace-based discrimination claims, as those claims are intimately connected to changes in social and cultural understandings within the workplace and within American society.
The tenets of our system over-rely on the assumption of a shared social context to define social truth. But that assumption is flawed in workplace discrimination litigation as workplace context varies by profession, and the worker experience varies based on the individual’s position in the hierarchy. For example, in a gender bias-driven workplace, a male supervisor may see the workplace culture as fair and merit-based, whereas his female contemporary may view the workplace culture as competitive and closed, seeing her position as that of an outsider who had to navigate her career path carefully. These varying perspectives create different social truths in the workplace, which are challenged by litigation. When the female employee claims that she was discriminated against in an unfair workplace, her social truth is thrust against the social truth of other supervisors and managers who view the workplace as fair. Litigation places those two conflicting understandings of workplace culture into direct controversy and positions the relevant parties as adversaries not only on the legal issues, but also on the issue of what is true about the workplace culture, reducing the opportunity for meaningful cultural change within and without the workplace.
This article asks what type of dispute resolution system can create a more reliable assessment of workplace social truth. By exploring options such as the quasi-inquisitorial systems of American Chancery and European conciliation, as well as the role of arbitration in American civil litigation, the article suggests that a non-adversarial approach allows for a more holistic resolution of workplace controversies. If a conflict is overseen by a judicial officer who can approach the conflict from a place of conciliation, cognizant of the relevant community and social context, resolution options can not only offer relief to the plaintiff within the subject workplace, but can also protect the relevant economic and cultural interests of the defendant. Conflict resolution which attempts to understand the competing social truths of the workplace, can offer an opportunity for voluntary change in the workplace without placing parties fully at risk, as they are in the “winner-take-all” litigation scenario. Furthermore, as our social truths evolve and change, our dispute resolution system, which de facto manages those truths through adversarial litigation, should be reconsidered for its role in creating new truths about whether the workplace is fair to all.
Carys Craig & Anupriya Dhonchak, Against Integrity: A Feminist Theory of Moral Rights, Creative Agency, and Attribution, Research Handbook on Intellectual Property and Moral Rights, Ysolde Gendreau (ed), Edward Elgar (Forthcoming)
The term “moral rights” captures a collection of personal rights of the author that run parallel to economic copyright interests. These moral rights include the right of attribution (the right to be associated with the work as its author) and the right of integrity (the right to object to modifications of the work that may prejudice the author's honor or reputation). It is generally agreed that moral rights occupy a unique place (the moral high ground, if you will) within the copyright realm, reflecting an intimate and ongoing personal connection between the author and their work that is deserving of acknowledgement and respect. Yet it is not generally recognized that feminist theory has something to say about the nature of this intimate personal connection and the rights that it seemingly entails.
This Chapter explores insights that feminist theories can bring to the study and development of moral rights protections in copyright law. We begin by explaining why certain facets of conventional moral rights theory (typically based on the writings of Kant and Hegel) are ill-suited to—indeed inconsistent with—a feminist approach in both concept and effect. Conceptually, they demand and support an individualized and romanticized conception of the (patriarchal) author-figure. In practice, to the extent that strong moral rights of integrity and association limit dialogic engagement and transformation of protected works, they risk suppressing the kind of critical and counter-hegemonic expression that is vital to a feminist political agenda. Employing alternative feminist conceptions of situated selfhood, relationality, and dialogic authorship, we then explore what it might mean to reimagine moral rights in a way that resists claims to exclusion and control, but reflects the personal, social, and political value of creative agency. We present a limited defense of the right of attribution on these terms, and conclude with a call for attribution as feminist praxis.
California Corporate Gender Diversity Law Struck Down, But Other States and Countries Continue Trend of New Laws
In 2018, California broke new ground for women when Governor Jerry Brown signed the first-in-the-nation requirement that publicly traded companies in the state have at least one woman on their board of directors by the end of 2019, and two or three (depending on company size) by the end of 2021. The bill’s co-sponsor state Senator Hannah-Beth Jackson put it bluntly: “We are not going to ask any more. We are tired of being nice. We’re tired of being polite. We are going to require this because it’s going to benefit the economy. It’s going to benefit each of these companies.”
Alas, it was too good to last. Last month, the law was deemed unconstitutional in a bench trial by Los Angeles County Superior Court Judge Maureen Duffy-Lewis because it wasn’t designed to remedy a “specific, purposeful, intentional and unlawful” instance of discrimination. She added that the state’s claims that diverse boards would directly boost California’s economy could not be proven.
It’s no surprise that Judicial Watch, the conservative group that prevailed in the litigation, trotted out the dreaded “Q Word” in opposing the measure: quotas. Legal precedent holds that quotas violate the Civil Rights Act of 1964, which prohibits discrimination against people based on race, gender, religion, age and other protected identities, because they could lead companies or schools to discriminate against people outside the targeted groups.
Never mind that in this case the poor, underrepresented targeted group happened to be wealthy white men, who have dominated corporate boards since Queen Elizabeth I the granted the first corporate charter to the East India company in 1600.
The ruling is without question a legal and moral setback, but fortunately for the future of women on boards in corporate America, that particular train may have already left the station. In the short time the law was in force, the percentage of board seats held by women virtually doubled—from 15.5 percent to 31.9 percent. In raw numbers, that translates to 766 female board members when the law was passed to 2046 by the end of 2021. ***
It’s clear from the pitiful progress since California led the way that stronger action is needed. Cases in point: Washington state’s law requires boards to have at least 25 percent of their makeup be members who self-identify as women. But violators face no penalties. Three other states—Maryland, New York and Illinois—merely require boards to disclose their demographic makeup. Ohio “encourages,” but does not require, disclosure.
We should take a page from the European Union playbook, where 40 percent female board seats for publicly traded companies were required as of March of this year. Under the new rules by the Council of the E.U., listed companies must meet the mandate by 2027