Gender and the Law Blog

Mothers With Disabilities: At the Intersection of Family and Employment Law

Nicole Porter, Mothers with Disabilities, 33 Berkeley J. Gender, Law & Justice (2018)  

This paper explores the intersection of three marginalized groups: women, mothers, and individuals with disabilities. At the same time, it also explores the intersection of two different areas of law — family law and employment law. I argue that mothers with disabilities are triply disadvantaged in the workplace — they are disadvantaged because they are women, because they have disabilities, and because they likely have caregiving responsibilities. This disadvantage stems from the stereotypes attributed to these groups and because workplaces are structured around an able-bodied, masculine norm. Mothers with disabilities are also disadvantaged in the areas of marriage, reproduction, divorce, and custody. Women with disabilities are less likely to get married and have children. Those who become disabled after marriage are more likely to get divorced. Upon divorce, mothers with disabilities are much more likely to experience difficulty maintaining custody of their children. And mothers with disabilities often face interference by the state with their parenting relationship, including the possible termination of their parental rights. In this paper, I explore the particularly precarious position facing those who live at the intersection of multiple identities — women, mothers, and individuals with disabilities.

Upskirting Now a Criminal Offense in UK

Upskirting Law Clears Final Hurdle to Become Specific Criminal Offence

Upskirting has been made a specific criminal offence after a Bill to ban the cruel craze received Royal Assent in the House of Lords.

 

People convicted of taking an image or video of a victim’s groin or buttocks under their clothing face being jailed for two years and being put on the sex offenders’ register.

 

Gina Martin, who campaigned for the law change after being upskirted at a festival in 2017, welcomed the move and said it was a “long time coming”.

 

Prime Minister Theresa May, who was in the House of Commons as cheers rang out when the Bill received Royal Assent in the Lords, said she was “very pleased to see the degrading practice of upskirting become a criminal offence after the tireless work of victims and campaigners.”

 

Victims called for the creation of a specific law after becoming frustrated with a lack of options to prosecute perpetrators.

 

While some people were able to seek a conviction under harassment, voyeurism or outraging public decency laws, the creation of a specific offence means suspects can be prosecuted where they sought to obtain sexual gratification or cause humiliation, distress or alarm.

Federal Judge Holds Male-Only Military Draft Violates Equal Protection

ABA J, Male-only Draft Violates Equal Protection Principles, Federal Judge Says

A federal judge in Houston has ruled that the male-only draft violates equal protection principles of the Fifth Amendment’s due process clause.

 

U.S. District Judge Gray Miller ruled Friday in a suit by the National Coalition for Men....  Miller granted the group’s motion for summary judgment but did not grant an injunction because the issue had not been briefed.

 

The U.S. Military currently relies on volunteers. But the Military Selective Service Act still requires men between ages 18 and 26 to register for the draft. Men who fail to register can be fined up to $10,000 and imprisoned for up to five years.

 

Miller noted that the U.S. Supreme Court had upheld the draft-registration law in 1981 in Rostker v. Goldberg. But women weren’t eligible for combat at the time, and the purpose of draft registration was to prepare for a draft of combat troops.

 

Circumstances have changed since that ruling, Miller said. In 2013, the U.S. Department of Defense lifted the ban on women in combat, and in 2015, the department lifted all gender-based restrictions on military service.

 

The government had argued that the decision to exclude women was justified by the administrative burdens of registering them. But the government did not present any evidence that Congress considered whether a female draft was unjustified because fewer women than men will be able to meet the physical standards of combat, Miller said.

 

“Had Congress compared male and female rates of physical eligibility, for example, and concluded that it was not administratively wise to draft women, the court may have been bound to defer to Congress’ judgment,” Miller wrote. “Instead, at most, it appears that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.”

 

In a footnote, Miller said that combat roles “no longer uniformly require sheer size or muscle.” Women “could conceivably be better suited physically for some of today’s combat positions than the average man, depending on which skills the position required,” he said.

 

The Selective Service System had argued that a ruling on the case should be postponed under separation of powers principles because Congress is currently considering whether to add women to the draft. The government had argued that the congressional debate also meant the case is not yet ripe for review.

 

The government noted that a national commission was considering congressional recommendations.

 

But there is no guarantee that Congress will act, Miller said. Congress has been debating the male-only draft since at least 1980 and recently rejected a proposal to include women, he wrote. And national security concerns don’t justify a refusal to act by the courts, he said.

The decision in National Coalition for Men v. Selective Service Administration is here. The judge, Judge Gray Miller, is a 2006 George H.W. Bush appointee and has military experience, serving as a Merchant Marine and a police officer.

Next, Defendants must show that the MSSA's male-only registration requirement is "substantially related"to Congress's objective. See Miss. Univ.for Women v. Hogan, 458 U.S. 718, 724 (1982). "The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." Virginia, 518 U.S. at 533; see also Rostker, 453 U.S. at 67 (noting that the Court previously struck down gender-based classifications that were based on "overbroad generalizations"). "[I]f the statutory objective is to exclude or 'protect' members of one gender because they a represumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate." Mississippi Univ.for Women, 458 U.S. at 724 (citing Frontiero v.Richardson, 411 U.S.677, 691 (1973) (plurality opinion)).

 

Defendants offer two potential justifications for male-only registration.5 First, Defendants argue that female eligibility to serve in combat roles "does not answer the question of whether women should be conscripted into combat roles" because conscription could lead to ''potential tradeoffs"for the military. Dkt. 80 at 27 (emphasis added). Construed liberally, Defendants appear to be arguing that requiring women to register for the draft would affect female enlistment by increasing the perception that women will be forced to serve in combat roles. Id. at 28; Dkt. 80-3 at 173.

 

However, this argument smacks of "archaic and overbroad generalizations" about women's preferences. Schlesinger,419 U .S .at 507---08; see also Virginia, 518 U.S. at 533; Rostker,453 U.S. at 67. At its core, Defendants' argument rests on the assumption that women are significantly more combat-averse than men. Defendants do not present any evidence to support their claim or otherwise demonstrate that this assumption is anything other than an "ancient canard" about the proper role of women." Rostker, 453 U.S. at 86 (Marshall, J., dissenting) (quotations and citations omitted). As the Court reasoned in Schlesinger:

 

In both Reed and Frontiero[,] the challenged classifications based on sex were premised on overbroad generalizations . . . that men would generally be better estate administrators than women . . . [and] that female spouses of servicemen would normally be dependent on their husbands, while male spouses of servicewomen would not. In contrast, the different treatment of men and women naval officers . . .reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service.

 

419 U.S. at 507-08. It is not a "demonstrable fact"that fewer women will enlist for fear of being conscripted into combat. This justification fails.

 

Moreover, this justification appears to have been created for litigation. See Virginia, 518 U.S. at 533. Defendants have not produced any evidence that Congress actually looked to this concern in declining to add women to the draft. Defendants' evidence establishes only that Congress may have considered a similar issue in evaluating the Department of Defense's decision to open combat positions to women. See Dkt. 80-3 at 171-74. Thus, although the court must give significant deference to Congress's judgment in military affairs, such deference is not implicated here.

For prior legal scholarship on the gendered draft, see Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L. Rev. 96 (2008), reprinted in Thomas & Boisseau, Feminist Legal History (NYUP 2011).   Hasday argues that extrajudicial change in facts of women's admission into combat positions forms a basis for rethinking the precedent -- exactly what the court found and did in National Coalition for Men.

See also Judge Cites RBG, Rules that Men-Only Draft is Unconstitutional

Change is Happening: An ABA Summary of Changes After MeToo

ABA, Change is Happening

 has been more than a year since the advent of the #MeToo movement and, as its impact continues, it is not too soon to ask: What has changed about sexual harassment in the workplace and, more broadly, about the chances for women to advance at the same rate and into the same senior roles as men?

 

In the legal profession, a number of crucial steps took place in 2018 for bringing the problem of sexual harassment into the open and giving all members of the profession the tools needed for eliminating sexual harassment in the workplace.

 

The American Bar Association (ABA) has taken a leading role. At the ABA Annual Meeting in Chicago in August 2018, the House of Delegates unanimously passed the Commission on Women in the Profession’s Resolution 300, urging legal employers not to require arbitration in cases of sexual harassment. [https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/2018_am_300.pdf]

At the February 2018 ABA Midyear Meeting in Vancouver, British Columbia, the House of Delegates unanimously passed the Commission’s Resolution 302, which lays out the policies and procedures needed for all employers to eliminate sexual harassment in the workplace. [https://www.americanbar.org/content/dam/aba/events/women/2018_mm_302.pdf]

 

Both of these resolutions highlight ways to eliminate the most common forms of sexual harassment: “quid pro quo” harassment, involving sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature; and harassment based on sexual advances, requests or conduct that creates an intimidating, hostile, or sexually offensive work environment. They also speak to the intersectionality of gender and race, the combined effects of racial discrimination and gender discrimination on the advancement of women—a phenomenon that deserves more recognition and focus than it has received.

 

Happily, the ABA is not the only organization that has taken strong actions. There are meaningful proposals to amend the Congressional Accountability Act of 1995, to reform procedures for the initiation, investigation, and resolution of sexual harassment claims by congressional employees. The amended legislation will hopefully become law by the time this issue of Perspectives is published. Many states—including New York, California, Massachusetts, Maryland, Minnesota, Delaware, Tennessee, and Louisiana—have strengthened the relief available to victims of sexual harassment and proposed new measures to prevent future harassment.

Race and the History of the Kentucky Woman Suffrage Movement: The Power of African-American Women Voters in School Suffrage

Randolph Hollingsworth, Power of African-American Women Voters in Lexington's School Suffrage, 1895-1902: Race and the History of the Kentucky Woman Suffrage Movement, 

Women suffragists in the U.S. included partial suffrage through participation in school-related elections as one of their strategies to reach full citizenship rights. Kentucky had already pointed the way for this strategy when in 1838 a statewide law passed protecting the right of female taxpaying heads-of-households in rural areas to vote on matters related to the new common school system. The leaders of the Kentucky Equal Rights Association (KERA) sought to build on this precedent during the 1890 Kentucky constitutional convention that offered the possibility of the legislature to grant women the right to vote. When the charters of cities of the second-class (i.e., Lexington, Covington and Newport) were up for revision in 1894, the General Assembly included what the KERA lobbyists were hoping for – the right for women in second-class cities to vote on school-related issues. By then, women in fifteen other states had successfully lobbied for legislation for partial suffrage (or full suffrage in some Western territories and states). This presentation will chronicle the evolution of school suffrage laws of Kentucky, focusing on the 1901 school board election in Lexington and the revocation of school suffrage in 1902. That election cycle evidenced a large percentage of African-American women whose registration totals favored the Republican Party. However, only half of the registrants ended up casting a vote – leading to the election of a Democratic Party ticket that year. The unusual numbers of black women voters threatened the racially conservative norm, and in January 1902, the Kentucky legislature repealed the partial suffrage law. The political backlash over the racial disproportionality of women voters in this election exposed the Kentucky partisan feuds of the time, however the issue of race control was at the core of the reasoning for revoking even this limited attempt at partial suffrage in Kentucky. This paper argues that race mattered more than partisan politics, class or social standing in determining the outcome of suffrage laws for women in Kentucky.

Book Review: Lifetime Disadvantage, Discrimination and the Gendered Workplace

Nicole Porter, An Ambitious Approach: A Review of Lifetime Disadvantage, Discrimination and the Gendered Workforce, 22 Employee Rgts & Employment Policy J. (2018)  

In this review of Susan Bisom-Rapp’s and Malcom Sargeant’s book, Lifetime Disadvantage, Discrimination and the Gendered Workforce, I both summarize and applaud the authors’ ambitious approach to exploring the disadvantages women experience in the workforce throughout their careers and the cumulative effects of those disadvantages over their lifetimes. The authors develop a “model of lifetime disadvantage,” and this model is presented in an exhaustively researched and thoroughly enjoyable read. In addition to exploring the causes and effects of the discrimination and disadvantages women face, the authors also explore possible solutions, both here in the United States as well as in the United Kingdom. The authors take a broad and ambitious approach to solving the lifetime disadvantage suffered by women. Because I also like to think broadly when reimagining what is possible in the workplace and in life, I use this review to preview my own book in progress, which is an unabashedly ambitious approach to ameliorating the workplace disadvantages suffered by women and individuals with disabilities.

CFP A Critical Guide to Civil Procedure, Including Perspectives of Race, Gender, Class and Sexual Orientation

CFP

A CRITICAL GUIDE TO CIVIL PROCEDURE
CALL FOR PAPERS

Boston University School of Law (host; co-sponsors Seattle University and University of Washington) Workshop Date: Wednesday, May 8, 2019

Abstract Deadline: March 15, 2019

Convenors: Portia Pedro, Brooke Coleman, Suzette Malveaux, & Elizabeth Porter

Civil Procedure is not a technocratic, neutral area of study, yet there is no collection of civil procedural scholarship engaging perspectives at the margins. In this workshop, we will discuss these perspectives. The workshop will support a book project that the convenors are editing.

The idea for the book project is to create a critical reference guide for the core civ pro concepts students learn every year. We envision a collection of essays - loosely keyed to traditional textbook topics - that reveal the relationship between civil procedural rules/doctrines and race, gender, sexual orientation, national origin, class, and disability. In addition to basic civil procedure concepts like pleading, jurisdiction, discovery, and aggregate litigation, we hope to include a critical analysis of related topics such as rulemaking institutions, arbitration, and remedies.

This workshop will include authors who have already agreed to contribute to this book project, but we also want to bring in more voices. At the workshop, contributors will discuss a five-page precis of their essay (precis are to be submitted in advance of the workshop). The final essays should be roughly 10,000 words, including footnotes. (Essays should not include “Part I” basic background, but should center on the author’s critical analysis.) The essays for the book project are due by August 1, 2019.
If you are interested in participating in the workshop and contributing to the book, please submit an abstract and author biography (no longer than 500 words each) by March 15, 2019 to [email protected]. We will select papers by April 1, 2019.

The workshop will provide meals for contributors. Contributors must cover travel and lodging costs. Information about reasonably-priced hotels will be provided as the date approaches.

Financial Assistance: Convenors may allocate limited funds to help cover partial travel expenses or accommodations for a small number of selected participants. If you wish to be considered for financial assistance, please submit a separate written request, specifying your city of departure and an estimate of travel costs, along with your abstract submission. We regret in advance that we are unable to provide full financial assistance to participants. Feel free to contact us with any questions.

Brooke Coleman ([email protected])

Suzette Malveaux ([email protected])

Portia Pedro ([email protected])

Elizabeth Porter ([email protected])
 

CFP Journal of American History: Sex, Suffrage, Solidarities

CFP Journal of American History

Journal of American History CFP: Sex, Suffrage, Solidarities: Centennial Reappraisals

The year 2020 marks the centennial anniversary of the Nineteenth Amendment. What are our obligations to this moment? What are the crucial questions and unresolved problems in the histories and historiographies of suffrage in the United States? The Journal of American History will observe the centennial with a sustained, multidimensional appraisal. From late 2019 through 2020, we intend to publish a variety of scholarly analyses across our many platforms. Our ambition is to foster creative thinking about the amendment, its discursive and material frameworks, and its complex, often-unanticipated legacies. Our theme for the project—Sex, Suffrage, Solidarities—is intended to provoke new questions about the amendment and the political, economic, and cultural transformations of which it has been a part.

We invite original papers on all topics pertaining to women’s suffrage. We seek essays that examine the work of activists, both before ratification of the Nineteenth Amendment and after. We welcome submissions that investigate the complicated linkages among suffrage, citizenship, identities, and differences. We encourage global, transnational, and/or comparative perspectives, particularly if they compel us to reperiodize or otherwise reassess conventional ways of thinking about campaigns for women’s rights or the project of adult citizenship more broadly. We welcome research articles but will also receive proposals for other genres or formats of scholarly prose.

The deadline for consideration in our Sex, Suffrage, Solidarities series is August 2019. Learn more about JAH submission guidelines here.

We also seek submissions on these themes for the OAH member magazine, The American Historian(submission guidelines here), and for our blog, Process: A Blog for American history (submission guidelines here).

Do We Still Need the Equal Rights Amendment?

NYT, Do American Women Still Need the an Equal Rights Amendment?

When Phyllis Schlafly crusaded against the Equal Rights Amendmentin the 1970s as a threat to all-American motherhood, she handed out freshly baked bread and apple pie to state legislators. She warned of a dystopian post-E.R.A. future of women forced to enlist in the military, gay marriage, unisex toilets everywhere and homemakers driven into the workplace by husbands free to abandon them.

 

The E.R.A., which had been sailing to ratification, failed. Yet gay marriage is now the law. Women in the military see combat, although women are not required to register for the draft. Six women — so far — are running for president. A record-shattering number of women have claimed seats in Congress. And the percentage of prime-working-age women participating in the labor force has soared from 51 percent in 1972, when Congress passed the E.R.A., to more than 75 percent last year.***

 

Mrs. Schlafly may not have been able to prevent social changes that transformed the lives of American women, but she did drive a wedge between conservatives and liberals that remains today. “She was one of the early architects of class conflict as expressed through culture wars, as a way to stop the progress of the equality ideals of the professional management elite,” said Joan C. Williams, a feminist legal scholar skeptical about the usefulness of the Equal Rights Amendment. “One of the ironic messages of the E.R.A. is not to underestimate the power of ‘bathroom anxiety’ in pushing the country to the right.”

Critiques of the Department of Education's Proposed Rulemaking for Title IX

Nancy Chi Cantalupo, Dog Whistles and Beachheads: The Trump Administration, Sexual Violence & Student Discipline in Education, Wake Forest L. Rev., forthcoming  

On November 29, 2018, the Trump administration’s Department of Education (ED), under the leadership of Secretary Betsy DeVos, published in the Federal Register a Notice of Proposed Rulemaking (NPRM) proposing expansive changes to ED’s regulations under Title IX of the Educational Amendments of 1972 (Title IX). These changes focus on Title IX’s prohibition of sexual harassment, which includes sexual violence as a severe form of sexual harassment. The NPRM, among a very long list of other starkly unequal proposals, proposes to lift the historical expectation that schools will use a preponderance of the evidence standard of proof in their internal sexual harassment investigations. Instead, the NPRM proposes a rule that would instead push schools to adopt a clear and convincing evidence (C&C) standard for not only sexual harassment but other forms of discriminatory harassment.

In its first part, this article will map the ways in which the NPRM’s attempt to replace the historically-used civil rights preponderance standard with the quasi-criminal C&C evidence standard attempts to establish a beachhead in a larger and longer war against civil rights and equal educational opportunity. This broad attack on civil rights in education will undermine the rights of not only sexual harassment victims, but all discriminatory harassment victims, especially women students of color and those in other intersectional populations (e.g. girls with disabilities) who are disproportionately vulnerable to multiple forms of discriminatory harassment. ED’s permission to adopt an inappropriate standard for sexual harassment will open the door for schools to do the same for other forms of discriminatory harassment, resulting in fewer protections from all discriminatory harassment, not just sexual harassment, and at precisely a time, post-2016 election, when such harassment is skyrocketing.

The article next demonstrates how the due process dog whistle is a key weapon in the establishment of that beachhead. Specifically, it will show that although ED claims to have issued the NPRM to enhance accused students of color’s due process rights and promote racial justice, the NPRM actually acts as a part of a campaign by a number of coordinated groups, many of which are men’s rights groups and/or funded by foundations like the Koch Foundation, to undermine the rights of not only harassment victims but also accused students who are overwhelmingly African American. As a dog whistle, it seeks to convince the public that dismantling Title IX protections for sexual harassment victims will better protect students of color’s due process rights, while distracting attention from Trump officials’ quiet dismantling of Obama-era efforts to stop disproportionate school discipline of Black students.

The final part will then discuss the potential and actual use of the “commenting power” to defend Title IX and its intended beneficiaries (i.e., sexual harassment victims) — as well as the classes protected by civil rights laws that can be attacked via an anti-Title IX beachhead. This section will use the results of a June-September 2017 ED comment call, asking for public “input on regulations that may be appropriate for repeal, replacement, or modification,” to show the high level of democratic support for Title IX, as well as the undemocratic nature of agency actions such as the NPRM. It will also discuss the important implications of this resistance strategy for the NPRM as well as the Administrative Procedure Act, which is fundamentally concerned with reining in anti-democratic impulses by non-elected officials.

The Feminist Case Against Individualized Adjudication of MeToo Claims

Lisset Pino, Wal-Mart v. Dukes: The Feminist Case Against Individualized Adjudication, 30 Yale Journal of Law & Feminism (2018)

Discussions of due process often focus on individualizing trials in order to provide persons an opportunity to be heard. In keeping with this traditional understanding, Justice Antonin Scalia’s majority opinion denying class certification in Wal-Mart v. Dukes describes class actions as “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” This Comment grapples with the normative implications of the American legal focus on individualized (rather than collective) adjudication. It argues that the “usual rule” of individualized adjudication makes it much more difficult for the American legal system to adequately evaluate claims of widespread discrimination. When such claims arise from the behavior of numerous bad actors operating within an institutional context, the adjudicative focus on individuality tends to obscure how oppressive institutional dynamics have made the discrimination possible. These dynamics often only become evident when individual experiences are considered in the aggregate, in two key ways. First, as the #MeToo movement shows, aggregation of claims results in believability: one woman accusing a powerful man of sexual misconduct can be easily dismissed, but hundreds of accusers are more difficult to ignore. Second, aggregating claims can often demonstrate the institutional dimension of discrimination, proving that discriminatory behavior is not due to a single bad actor, but rather has been enabled by institutional structures that must be changed to prevent the behavior from recurring.

Using Algorithms to Advance Equality Goals in the Workplace

Stephanie Bornstein, Antidiscriminatory Algorithms, 70 Alabama L. Rev. 519 (2018)  

Can algorithms be used to advance equality goals in the workplace? A handful of legal scholars have raised concerns that the use of big data at work may lead to protected class discrimination that could fall outside the reach of current antidiscrimination law. Existing scholarship suggests that, because algorithms are “facially neutral,” they pose no problem of unequal treatment. As a result, algorithmic discrimination cannot be challenged using a disparate treatment theory of liability under Title VII of the Civil Rights Act of 1964 (Title VII). Instead, it presents a problem of unequal outcomes, subject to challenge using Title VII’s disparate impact framework only. Yet under current doctrine, scholars suggest, any disparate impact that results from an employer’s use of algorithmic decision-making could be excused as a justifiable business practice. Given this Catch-22, scholars propose either regulating the algorithms or reinterpreting the law.

This Article seeks to challenge current thinking on algorithmic discrimination. Both the “improve the algorithms” and the “improve the law” approaches focus solely on a clash between the anticlassification (formal equality) and antisubordination (substantive equality) goals of Title VII. But Title VII also serves an important antistereotyping goal: the principle that people should be treated not just equally across protected class groups but also individually, free from stereotypes associated with even one’s own group. This Article is the first to propose that some algorithmic discrimination may be challenged as disparate treatment using Title VII’s stereotype theory of liability. An antistereotyping approach offers guidance for improving hiring algorithms and the uses to which they are put, to ensure that algorithms are applied to counteract rather than reproduce bias in the workplace. Moreover, framing algorithmic discrimination as a problem of disparate treatment is essential for similar challenges outside of the employment context—for example, challenges to governmental use of algorithms in the criminal justice context raised under the Equal Protection Clause, which does not recognize disparate impact claims.

The current focus on ensuring that algorithms do not lead to new discrimination at work obscures that the technology was intended to do more: to improve upon human decision-making by suppressing biases to make the most efficient and least discriminatory decisions. Applying the existing doctrine of Title VII more robustly and incorporating a focus on its antistereotyping goal may help deliver on the promise of moving beyond mere nondiscrimination and toward actively antidiscriminatory algorithms.

Redressing the Sexual Harassment in Elementary, Middle, and High Schools

Ann McGinley, Schools as Training Grounds for Harassment, University of Chicago Legal Forum, Forthcoming

This article analyzes elementary, middle, and high schools' role in permitting and encouraging peer sex- and gender-based harassment of children and the law's role in failing to hold schools accountable for their negligent and intentional behavior in sanctioning it. Part I discusses the evidence of rampant peer harassment in schools. Part II analyzes the problem through the lens of masculinities theory. Part III examines court cases and decisions of the Office of Civil Rights of the Department of Education ("OCR"), and demonstrates that the proposed Title IX regulations would apply the strict court standards to OCR complaints, thereby making remedying of school-based harassment virtually impossible. Part IV proposes new legal standards for the courts and argues that the court standards should be more similar to those applied historically by the OCR. It also suggests possible legislative reform. The article concludes that when schools ignore their responsibilities to prevent and remedy peer sex- and gender-based harassment they become important training grounds for future harassers, a role that the #MeToo Movement cannot tolerate. 

11th Annual Feminist Legal Theory Conference: Applied Feminism and MeToo

11th Feminist Legal Theory Conference: Applied Feminism and #MeToo, University of Baltimore School of Law

We are happy to announce the Eleventh Feminist Legal Theory Conference sponsored by The University of Baltimore School of Law's Center on Applied Feminism and The University of Baltimore Law Review. The theme of this year's conference is Applied Feminism and #MeToo  and it will be held at the University of Baltimore School of Law in Baltimore, MD, on April 11 and 12, 2019. The conference will focus on the #MeToo social movement, and its impact and limitations nationally and internationally. The conference will examine emerging proposals to change institutions where gender-based harassment and assault occur, are investigated, or are adjudicated, such as workplaces, universities, and courts. The conference will also explore and offer reforms regarding critical issues such as credibility discounting, survivor trauma, anger, contrition, restorative approaches for accountability, and the lack of visibility for all persons subjected to gender-based harassment and assault, such as those who are of color, immigrant, young, involved in the criminal justice system, and male or a gender minority. 

Program Schedule

 Conference Opening Remarks

                             Margaret E. Johnson, Professor of Law and Co-Director, Center on
                             Applied Feminism, University of Baltimore School of Law

 9:15-10:45 a.m. Panel I:  Exploring Comparative Perspectives on #MeToo

                            Moderator: Nienke Grossman, Professor of Law, University of Baltimore
                            School of Law

                            Indigenizing The #Me Too Campaign: A South African Perspective , 
                            Penelope Andrews, Sabbatical Scholar, Columbia Law School, 
                            Distinguished Visiting Professor of Law, New York Law School

                            #MeToo and the Pursuit of Women’s International Human Rights, 
                            Benedetta Faedi Duramy, Professor of Law & Associate Dean for Faculty 
                            Scholarship, Golden Gate University School of Law

                            Recognizing Rage Surrounding the #MeToo Movement and Differing 
                            Approaches to Address It, Johanna Gusman, Visiting Research
                            Scholar, Georgetown University Legal Center

                            Misdirection and Misogyny:  Political Deployment of "Women's 
                            Issues" to Justify Nativist Goals, Dina Francesca Haynes, 
                            Professor of Law, New England Law

11-12:30 p.m.     Panel II:  Interrogating Intersectional Identities of #MeToo

                           Moderator: Elizabeth Keyes, Associate Professor of Law, University of 
                           Baltimore School of Law

                           Immigrant Women in the Shadow of the #MeToo Movement, Nicole 
                           Hallett, Assistant Clinical Professor of Law, University at Buffalo School
                           of Law

                          There Are No Outsiders Here: Rethinking Intersectionality as 
                          Hegemonic Discourse in the Age of #MeToo, Teri McMurtry-Chubb,
                          Professor of Law, Mercer University Law School

                          Applying Lessons from #MeToo to Abusive Policing, Josephine Ross, 
                          Professor of Law, University School of Law

                          #WhoAmI? Harm & Remedy for Youth of the #MeToo Era, 
                          Charisa Smith, Associate Professor, City University of New York 
                          School of Law

12:30-2:00 p.m. Lunch Program (12th Floor)

                           Keynote Speaker: Debra Katz, Founding Partner, Katz, Marshall & 
                           Banks, LLP

2-3:30 p.m.        Panel III:  Tackling #MeToo Inside and Outside the Courtroom 

                           Moderator: Shanta Trivedi, Clinical Teaching Fellow, University of Baltimore 
                           School of Law

                          Third Generation Discrimination Part II:  An Empirical Analysis of 
                          Judicial Decision Making, Catherine Dunham, Professor of Law, Elon
                          University School of Law and Chris Leupold, Associate Professor of 
                          Psychology and Faculty Fellow for Law and Leadership, Elon University 
                          School of Law

                          #MeToo: The Path from Credibility Discounting to Systemic Change, 
                          Deborah Epstein, Professor of Law and Co-Director, Domestic Violence 
                          Clinic, Georgetown University Law Center

                          #MeToo, Sexual Harassment and Accountability: Considering the Role 
                          of Restorative Approaches, Julie Goldscheid, Professor of Law, 
                          CUNY Law School

                          Restorative Justice through Administrative Law: Male Military Sexual 
                          Assault and the Veterans Administration, Elizabeth Tarloski, Staff 
                          Attorney/Adjunct Professor, William and Mary Law School-Lewis B. Puller Jr., 
                          Veterans Benefits Clinic

3:45 -5:15 p.m.  Panel IV: Exploring #MeToo Relational Dynamics in the Workplace
                           and Beyond

                           Moderator: Zina Makar, Clinical Teaching Fellow, University of Baltimore 
                           School of Law

                           Sorry Not Sorry, Jamie Abrams, Associate Professor, University of 
                           Louisville Brandeis School of Law

                           Peer Retaliation in the Post #MeToo Era, Deborah Brake, Professor of
                           Law and Associate Dean for Research and Faculty Development, University 
                           of Pittsburgh School of Law

                           #SororityToo: Breaking the Code of Silence about Relationship
                           Violence in Collegiate Greek Life, Tanya Cooper, Director, Restoration 
                           and Justice Clinic; Assistant Clinical Professor of Law, Pepperdine 
                           University School of Law

                           Rethinking Institutional Response to Sexual Harassment in the Wake
                           of #MeToo, Joanna Grossman, Ellen K. Solender Endowed Chair in 
                           Women and Law & Professor of Law, SMU Dedman School of Law

A Critique of the Trump Administration's Proposed Standard of Evidence for Campus Title IX Proceedings

William Kidder, (En)forcing a Foolish Consistency?: A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of Evidence Regulation for Campus Title IX Proceedings 

Prevention of sexual assault and sexual harassment are major challenges at U.S. colleges and universities today. In recent years a vigorous law and policy debate emerged within the higher education community about Title IX and whether the “preponderance of evidence” or “clear and convincing” evidence represents the more appropriate standard of evidence in campus sexual violence and sexual harassment disciplinary procedures. During the Obama administration the Office for Civil Rights in the U.S. Department of Education issued a 2011 “Dear Colleague” letter recognizing that the preponderance of evidence standard was the appropriate standard for Title IX investigations. The Trump administration's Office for Civil Rights rescinded this earlier guidance and in November 2018 issued a notice of proposed rulemaking regarding Title IX regulations. The new proposed regulation reflects a “you can have more discretion, if you rachet up” policy: a college can only use the preponderance of evidence standard if it adopts that same standard across-the-board in similarly serious non-Title IX student misconduct cases and in both Title IX and non-Title IX cases where the accused/respondent is a faculty member or employee. If a campus chooses to adopt the clear and convincing evidence standard in Title IX cases, the proposed regulation would not restrict campus discretion in non-Title IX student cases.

While the relationship between the burden of proof and outcomes is complicated and dynamic, the main tendency if campuses were to shift to the clear and convincing evidence standard in Title IX adjudications would likely be a net decrease in accuracy because the rise in “false negative” errors (student or employee commits sexual misconduct but is found not responsible) would outnumber the corresponding decrease in “false positive” errors. By implication, a shift to the clear and convincing standard would also make it more difficult – other things being equal – for campuses to impose disciplinary accountability in cases of serial sexual misconduct and serial sexual harassment.

This article also aims to inform the debate about Title IX and faculty and student disciplinary cases by objectively identifying whether the preponderance of evidence or clear and convincing evidence standard is used in most domains that are reasonably analogous to faculty Title IX-related misconduct proceedings (a more stringent test than looking only at student-to-student Title IX cases). This review includes U.S. federal civil rights adjudications, faculty research misconduct cases linked to federal research grants, civil anti-fraud proceedings, attorney debarment/discipline cases and physician misconduct/license cases. In a large majority of these areas, preponderance of evidence is used as the standard of evidence. This pattern highlights concerns about the Office for Civil Rights selectively referencing cases that support its proposed Title IX regulation and questionable claims about the clear and convincing evidence standard and stigma. This article also raises questions, depending on how the notice-and-comment process unfolds, about the proposed Title IX regulation and the Administrative Procedure Act.

Gender and Judging: Evidence from the European Court of Human Rights

Erik Voeten, Gender and Judging: Evidence from the European Court of Human Rights, 

Are women’s appeals for judicial remedies more likely to be successful if there are more women on the bench? Examinations of this question have mostly been confined to the North American context. This article evaluates this question in the European Court of Human Rights using a new dataset that incorporates both the gender of judges and applicants to the Court. Using matching within judgment, the analysis confirms findings from the U.S. context that female judges are more favorably disposed towards discrimination cases filed by women. Yet, female judges are not more likely than male judges to support rights claims filed by women on other legal issues. There is, however, strong evidence that female judges are more favorably disposed towards male and female applicants who allege physical integrity rights violations, such as torture. This is consistent with the attitudinal theory of judging. Thus, gender composition affects issues beyond those traditionally thought to be women’s rights issues. Moreover, the analysis reveals that women disproportionally file property rights claims, an issue that has gotten very little attention in the literature on gender and courts

Integrating Yale's Fraternities as a Way to Disrupt Gendered Power of Both Privilege and Sexual Misconduct

I'm interviewed in this story, with some thoughts on both gendered power and systemic remedies.

NPR, Here & Now, Female Yale Students File Suit Alleging School Turned "Blind Eye" to Fraternity Sexual Misconduct

Three female students are suing Yale University and nine off-campus fraternities there, arguing the fraternities create a hostile environment for women and that Yale is "turning a blind eye" to sexual misconduct.***

 

Among its claims, the lawsuit argues Yale is violating Title IX, the law banning sex discrimination at schools that receive federal funding. The plaintiffs want the fraternities to allow women to join — and to gain access to fraternities' powerful alumni networks.

 

In addition to allowing women into fraternities, the plaintiffs in the lawsuit are asking Yale to create more oversight of the off-campus fraternities, including appointing "sober monitors" to watch alcohol consumption at parties and to intervene in cases of sexual harassment or assault.

 

"I think schools have tried to address the situation by distancing themselves from fraternities, having them go off campus," says University of Akron law professor Tracy Thomas. "This is actually asking for the opposite. Some of the relief is asking for Yale to create a Greek council and to create more oversight, bouncers at the fraternity parties, and so that may change how schools have been trying to deal with the issue."

Listen for the full story.

Ending Sexual Harassment by Reforming the Law of Retaliation

Nicole Porter, Ending Harassment By Starting with Retaliation, 71 Stanford L. Rev. Online (2018)

The #MeToo movement has shined a much-needed spotlight on harassment in the workplace. But with that increased attention, the narrative that has developed does not necessarily reflect reality. The #MeToo narrative tells a story of women reporting harassment at record levels; employers taking the complaints seriously; and victims of the harassment having the harassment remedied without any negative consequences. In reality, reporting rates of harassment are very low in large part because victims of harassment fear retaliation if they report it. Thus, this paper argues that we cannot hope to end harassment without starting by addressing the reality of retaliation. In addition to discussing the fear of retaliation, and how difficult it is to bring a valid retaliation claim, I also explore possible reforms — to the law of retaliation, and changes employers might implement to decrease retaliation and increase the reporting of harassment so that it can be remedied.

Harvard University Policy Sanctions Students Who Join Single-Gender Group

Harvard Cracks Down on All-Male Clubs. But It's Women's Groups That Have Vanished.

Just over a year ago, Harvard University's leaders made an announcement that they hoped would be the final word, for the time being, in a lengthy debate over the future of campus social life.

 

Starting with the freshman class in 2017, any student who joined a single-gender social group — like one of the university's exclusive final clubs, or a fraternity or sorority — would face restrictions. Members wouldn't be able to hold leadership positions on campus, serve as captains of athletic teams, or receive Harvard's endorsement for postgraduate scholarships like the Rhodes and the Marshall. The groups could avoid the sanctions only if they went coed.

 

Technically, the policy had been unveiled in May 2016. But after 18 months of contentious conversations, Harvard's governing board finally voted to approve the restrictions. The board's action would, in theory, institute the policy beyond the tenure of Drew Gilpin Faust, the president at the time, who stepped down this summer.

 

To some observers, the demise of exclusionary social groups on college campuses makes a lot of sense. As student populations diversify, administrators are growing more aware of the need to foster inclusive environments, not ones segregated by gender and class. At Harvard, the men's final clubs in particular seem like vestiges of a university from an earlier era, when the student body was whiter and wealthier than it is today.

 

So on the surface, it would be easy to dismiss the lawsuits filed against Harvard by Greek organizations last month as a last-gasp effort. Privileged people are digging in their heels in the face of threats to their privilege, the argument goes. The suits are accompanied by a national campaign and petition, with an extensive website that purports to tell "the Truth" about single-gender social organizations. Some sorority chapters at other colleges have encouraged members and alumni to sign on.

 

But the sorority members who have become the loudest voice in favor of the lawsuits argue that their fight isn't about protecting privilege at all. It's about protecting women.

 

Harvard officials have said their crackdown on social groups was designed to do just that. In their view, all-male final clubs encourage misogynistic behaviors and create problematic environments for women. The solution? To discourage the behavior at the source.

For a related story, see Women Students Sue Yale University and Fraternities Seeking Gender Integration

The History of Galentine's Day and Women's Political Friendships

Kimberly Hamlin, Wash. Post, Galentine's Day and the Political Power of Women's Friendships

Oprah and Gayle, Mary and Rhoda, Tina and Amy. To update a popular aphorism, behind every successful woman are other successful women. But female friendships are not just good for one’s health and career, they are also good for politics. And now we have a holiday that, among other things, highlights the political power of female friendship: Galentine’s Day.

 

In February 2010, NBC inaugurated the holiday on its sitcom “Parks and Recreation,” starring Amy Poehler’s iconic character Leslie Knope, civic crusader and friend extraordinaire. As Knope described, each year on Feb. 13, she gathers together her best female friends, including her mom, to celebrate what she loves about them over waffles.

 

Nine years later, Galentine’s Day has become a nationaltradition, a day for, as Knope put it, “ladies celebrating ladies.”

 

Galentine’s Day is not just a pop-culture celebration, however. It is a political statement. Sure, Leslie and her pals swapped stories over waffles and crafts, but Galentine’s Day is about something more. From her office tributes to Madeleine Albright to her group activism disguised as social outings, Knope promoted civic engagement grounded in female friendship. Knope convinced new generations that, like gathering for dinner or splurging at the spa, engaging in politics is something worthwhile that women should do together. And savvy viewers could not help but link Knope’s political engagement to that of Poehler and her real-life friend Tina Fey, such as their 2008 endorsement of Hillary Clinton for president during “Saturday Night Live.”

 

In doing this, Knope built on an important tradition: women engaging with local, state and federal government and supporting one another while doing it. For the past two centuries, female activists have sought out friendships with other women to fortify themselves and their causes against a world that was hostile to women and women’s leadership.