Gender and the Law Prof Blog

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

Friday, May 11, 2018

Reconceptualizing Sexual Harassment, Again

Vicki Schultz, Reconceptualizing Sexual Harassment, Again

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mother's Day - Friend or Foe to Feminism?

Thursday, May 10, 2018

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

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

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

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

CFP 2d Annual Equality Law Scholars' Forum

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

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

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

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

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

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

Proposals should be submitted to:

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

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

Law Professors Weigh in on School Dress Codes and Mandatory Bras

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

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

 

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

 

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

 

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

 

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

. . . . 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

A related earlier blog post is here.

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

Changing the Toxic Culture of Domestic Violence by Renorming in Law

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

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

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

Tuesday, May 1, 2018

The Case Against Mandatory Referral Laws for Campus Gender Violence

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

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

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

School Dress Codes and Bras

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

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

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

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

 

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

 

 

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