Gender and the Law Blog

Transgender Students and the First Amendment

Dara Purvis, Transgender Students and the First Amendment, Boston U. Law Review (forthcoming)

Suppose that a transgender child experiences teasing and harassment from their classmates, whose hostile reactions interrupt the school day. School administrators tell the transgender child that in order to allow educational activities to continue, they must dress in more gender-neutral clothing, ideally consistent with the sex they were assigned at birth. The student’s parents protest, arguing that their child’s clothing is speech that expresses their gender identity. The school points to Tinker v. Des Moines, allowing suppression of student speech where it creates a material disruption, as well as recent legislation characterizing discussion of gender identity as lewd and obscene.

This Article is the first analysis to map out and counter both obscenity and material disruption as justifications to limit gender identity speech. Although not all clothing choices by students are symbolic speech, gender presentation is the type of intentional and cognizable message that is protected under the First Amendment. Comprehensive examination of student speech cases demonstrates that current attempts to define gender identity as an inappropriately sexualized topic for children are inconsistent with existing law. Finally, the Article illustrates for the first time how schools can create a heckler’s veto by teaching students that the speech of transgender students is abnormal. The Article proposes an analytical revision that takes the schools’ role into account, reconciles the conflict between the heckler’s veto doctrine and Tinker’s material disruption test, and strengthens protection of all controversial student speech.

Etienne C. Toussaint on "The Purpose of Legal Education"

Etienne C. Toussaint has posted forthcoming work on SSRN titled The Purpose of Legal Education. This article is to be published in Volume 111 of the California Law Review (2023). The abstract previews:  

 

When President Donald Trump launched an assault on diversity training, critical race theory, and The 1619 Project in September 2020 as “divisive, un-American propaganda,” many law students were presumably confused. After all, law school has historically been doctrinally neutral, racially homogenous, and socially hierarchical. In most core law school courses, colorblindness and objectivity trump critical legal discourse on issues of race, gender, or sexuality. Yet, such disorientation reflects a longstanding debate over the fundamental purpose of law school. As U.S. law schools develop antiracist curricula and expand their experiential learning programs to produce so-called practice-ready lawyers for the crises exposed by the COVID-19 pandemic, scholars continue to question whether and how, if at all, the purpose of law school converges with so

 

This Article argues that the anti-racist, democratic, and movement lawyering principles advocated by progressive legal scholars should not be viewed merely as aspirational ideals for social justice law courses. Rather, querying whether legal systems and political institutions further racism, economic oppression, or social injustice must be viewed as endemic to the fundamental purpose of legal education. In so doing, this Article makes three important contributions to the literature on legal education and philosophical legal ethics. First, it clarifies how two ideologies—functionalism and neoliberalism—have threatened to drift law school’s historic public purpose away from the democratic norms of public citizenship, inflicting law students, law faculty, and the legal academy with an existential identity crisis. Second, it explores historical mechanisms of institutional change within law schools that reveal diverse notions of law school’s purpose as historically contingent. Such perspectives are shaped by the behaviors, cultural attitudes, and ideological beliefs of law faculty operating within particular social, political, and economic contexts. Third, and finally, it demonstrates the urgency of moving beyond liberal legalism in legal education by integrating critical legal theories and movement law principles throughout the entire law school curriculum.

 

 

UN Chief Warns Gender Equality is 300 Years Away

Wash Post, "Gender Equality is 300 Years Away", UN Chief Warns

Decades of advances on women’s rights are being wound back and the world is now hundreds of years away from achieving gender equality, according to the United Nations.

Speaking to the U.N. Commission on the Status of Women on Monday, ahead of International Women’s Day on Wednesday, Secretary General António Guterres said gender equality is “vanishing before our eyes.”

He drew special attention to Afghanistan, where Guterres said women and girls “have been erased from public life” following the return to Taliban rule. The regime has barred women and girls from universities and some schools. The Taliban has also blocked many female aid workers, imperiling key aid programs, including those overseen by the U.N.

In many places, women’s sexual and reproductive rights “are being rolled back,” he said. *** Maternal mortality is on the rise, he said, and the coronavirus pandemic has forced millions of girls out of school, and mothers and caregivers out of the global workforce.***

 

The U.N. chief also said gender equality is at risk from a technology industry heavily skewed toward a male workforce. Men outnumber women by 2 to 1 in the tech industry, and in the growing field of artificial intelligence, that gender gap rises to 5 to 1, according to Guterres, putting the world-changing industry at risk of “shaping our future” in a gender-biased way.

Guterres also trained a spotlight on the “misogynistic disinformation and misinformation” he said was flourishing on social media, and what is known as gender trolling aimed at “silencing women and forcing them out of public life.”

Thalia González and Rebecca Epstein on "Critical Race Feminism, Health, and Restorative Practice in Schools: Centering the Experiences of Black and Latina Girls"

Thalia González and Rebecca Epstein have posted their article on SSRN: Critical Race Feminism, Health, and Restorative Practice in Schools: Centering the Experiences of Black and Latina Girls, 29 Michigan J. of Gender & Law (2022). The abstract provides: 

 

Restorative practices (RP) in K-12 schools in the United States have grown exponentially since the early 1990s. Developing against a backdrop of systemic racism, RP has become embedded in education practice and policy to counteract the harmful and persistent patterns of disparities in school discipline experienced by students of color. Within this legal, social, and political context, the empirical evidence that has been gathered on school-based restorative justice has framed and named RP as a behavioral intervention aimed at reducing discipline incidents—that is, an “alternative” to punitive and exclusionary practices. While this view of RP is central to dismantling discriminatory systems, we argue it reflects an unnecessarily limited understanding of its potential and has generated unintended consequences in the field of RP research. First, the reactive RP model of analysis focuses more exclusively on behavioral change, rather than systemic improvement, to address discipline disparities. Second, RP research has insufficiently examined the potential role of RP in achieving health justice. Third, RP research too rarely engages in intersectional analyses that critically examine gendered racism. This study is intended as a course correction. Building on the work of legal scholars, public health researchers, sociologists, restorative justice practitioners, and our own prior work, this original study is the first to examine non-disciplinary RP through a critical race feminist lens, and—just as importantly—a public health praxis. Our findings reveal that the interplay between RP and adolescent health, race, and gender can no longer be overlooked. Proactive non-disciplinary RP was found to promote supportive school environments that enhance five key protective health factors for Black and Latina girls. Additionally, results indicate that RP improved the mental health and wellbeing of Black and Latina girls, building fundamental resilience skills that can help overcome the complex array of social structures that serve to disempower and disenfranchise girls and harm their educational and health outcomes.

Misunderstanding the Meriwether Case Seeming to Uphold a Professor's Right to Misgender Students

Brian Soucek & Ryan Chen, Misunderstanding Meriwether

Meriwether v. Hartop is widely seen as one of the most important academic freedom and transgender rights cases of recent years. Whether praising it as a victory for free speech, or condemning it as a threat to educational equality, commentators across the political spectrum have agreed on one thing: the Sixth Circuit did something big when it held that professors at public universities have a First Amendment right to misgender their students in class. But contrary to popular belief, Meriwether held no such thing. In fact, the Sixth Circuit could not have held what nearly everyone believes, given the case’s procedural posture. Meriwether has been misunderstood, and this Article aims to put a halt to the false narrative that has emerged around Meriwether before its consequences continue to spread.

Where previous work has explained why Meriwether’s holding is wrong, this Article delves into the complicated intersection of civil procedure and government employee speech claims to show why Meriwether’s holding is different, and far less important, than its foes and friends alike seem to think. In doing so, the Article also shows how a false legal narrative can develop, spreading from an opinion that encourages the mistake, to advocates and press who eagerly report it, to commentators, legislators, and courts each with reasons of their own for inflating the opinion’s importance, eroding gender identity protections along the way. This Article, finally, situates the widespread misunderstanding of Meriwether alongside other precedential mistakes and offers insight into how they might be counteracted before further distorting the law and threatening important equality rights.

SCOTUS Asks SG to Weigh in on Granting Cert for NC Charter School Case Mandating Girls Wear Skirts

Supreme Court Could Consider Charter School Dress Code

The Supreme Court is asking the Biden administration to weigh in on whether it should take up a case over a North Carolina charter school’s dress code requiring its girl students to wear skirts or dresses.

In a brief order Monday, the justices invited U.S. Solicitor General Elizabeth Prelogar to weigh in on whether the court should take up that case, Charter Day School v. Peltier, one of several major court cases in recent years that challenge school dress code policies as sexist and discriminatory.

Charter Day School, a K-8 public charter school operated by a private contractor in Leland, North Carolina, says it seeks to provide a “classical, traditional-values-based education,” enforced in part with a dress code designed to promote “mutual respect between boys and girls.” The case centers around the school’s policy, blocked by a federal court, requiring girls to wear a skirt, skort or jumper to school. ***

In 2019, District Judge Malcolm Howard ruled in favor of the plaintiffs, represented by the American Civil Liberties Union, and prohibited the school from enforcing the skirt requirement. Both parties appealed the case to a panel of the U.S. Court of Appeals for the 4th Circuit, which ruled that dress codes treating boys and girls differently violated Title IX, but that the school was not an actor of the state and thus couldn’t be sued on constitutional grounds for its dress code policies. 

The full 4th Circuit reheard the case and largely ruled against the school in a 10-6 ruling in June 2022, finding that the school is a state actor and thus violated the Equal Protection Clause with its skirt requirement. The ruling remanded whether the policy violated Title IX back to the district court. 

Judge Barbara Milano Keenan wrote the court’s opinion and noted that “nothing in the Equal Protection Clause prevents public schools from teaching universal values of respect and kindness.”

“But,” she continued, “those values are never advanced by the discriminatory treatment of girls in a public school. Here, the skirts requirement blatantly perpetuates harmful gender stereotypes as part of the public education provided to North Carolina’s young residents.”  

In September 2022, Charter Day School asked the U.S. Supreme Court to take up the case. 

The Black-White Paradigm and the Continuing Erasure of Latinas as Law Deans

Laura Padilla, The Black-White Paradigm's Continuing Erasure of Latinas: See Women Law Deans of Color, 99 Denver L. Rev. 683 (2022)

The Black-white paradigm persists with unintended consequences. For example, there have been only six Latina law deans to date with only four presently serving. This Article provides data about women law deans of color, the dearth of Latina law deans, and explanations for the data. It focuses on the enduring Black-white paradigm, as well as other external and internal forces. This Article suggests how to increase the number of Latina law deans and emphasizes why it matters.

Title IX Concerns from the Lack of Transparency in Reporting Intercollegiate Names, Images and Likeness Earnings

Tanyon Boston, NIL Data Transparency, 83 Louisiana L. Rev. (forthcoming 2023)

 Since July 2021, intercollegiate athletes have earned nearly $1 billion from monetizing their names, images, and likenesses (NIL), with some earning more than professionals. Such earnings were made possible by state NIL laws and by the NCAA’s simultaneous retreat from enforcing restrictions on athletes’ ability to earn compensation for the use of their NILs. Commentators argue that the unforeseeably impressive NIL figures are driven by disproportionate institutional support for athletes in certain high-profile sports. If true, this may raise Title IX concerns, as NIL earnings for female athletes lag considerably behind that of their male counterparts. Although most state NIL laws require athletes to report NIL data to their schools, schools are not required to make the information publicly available—not even in redacted form. The current lack of NIL transparency by schools makes it virtually impossible to accurately identify potential gender disparities.

This Essay explores the relationship between the lack of NIL transparency and incentives for colleges and universities to meet Title IX’s requirements for NIL. It argues that shielding NIL data from public scrutiny is inappropriate given Title IX’s culture of disclosure. This Essay further argues that stakeholders will be unlikely to implement a NIL framework that aligns with Title IX’s purpose, without a universal disclosure mandate. After exploring how a lack of NIL transparency frustrates Title IX’s purpose, this Essay concludes with a workable proposal for collecting and disclosing NIL data.

Gender Gaps in Legal Education and the Impact of Class Participation Assessments

Kenneth Khoo & Jaclyn Neo, Gender Gaps in Legal Education: The Impact of Class Participation Assessments 

The gender gap is a well-studied phenomenon in education policy. While prior research has illustrated the presence of this gap in U.S. Law Schools, questions remain as to whether these findings are generalizable to other jurisdictions where national, cultural, historical, institutional and societal norms are substantially different. In this article, we investigate the presence and nature of a gender gap in one of Asia’s leading law schools, the National University of Singapore (“NUS Law”). Employing a novel dataset with granular data on student, instructor, course, and component characteristics, we provide evidence that the gender gap persists over numerous cohorts of students. Even after controlling for a wide range of covariates such as standardized entry scores, high school rankings, income proxies, and a large array of fixed effects, female students systemically underperform their male counterparts across numerous metrics of law school performance. To examine the plausibility of possible causal mechanisms behind the gender gap, we exploit a natural experiment in which NUS Law randomly assigned first and second-year students to a range of mandatory courses with different class participation assessment weights. We provide evidence that female students who were assigned to courses with larger class participation weights had relatively lower class participation scores when compared to male students. Remarkably, however, policies that permitted female students to choose their courses in their third and fourth years eliminated this negative relationship – even after accounting for heterogeneity across class sizes and course choices. Our work suggests that pedagogical policy should consider the relationship between assessment modes and female student autonomy in narrowing the gender gap in legal education.

CFP Pandemonium -- Reflections on the Status, Health, Precarity and Promise of the Discipline of Feminist Studies

WSQ WOMEN'S STUDIES QUARTERLY SPECIAL ISSUE SPRING 2024

CALL FOR PAPERS: PANDEMONIUM

PRIORITY SUBMISSION DEADLINE: MARCH 1, 2023

Scholarly articles should be submitted to WSQ.submittable.com.

GUEST EDITORS:

TRACEY JEAN BOISSEAU, Purdue University

ADRIANNA L. ERNSTBERGER, Marian University

This special issue of Women’s Studies Quarterly invites reflection on the status, health, precarity, and promise of the discipline of women’s, gender, sexuality, and feminist studies in light of our current state of pandemonium. By “pandemonium,” we point not only to those tragedies, inequalities, and disruptions to the university and higher education stemming directly from the Covid-19 pandemic but also to the crisis-roiled political context fomenting a barrage of assaults on feminist studies as a discipline in the United States and elsewhere that have been accelerating for several years prior to the pandemic and have only intensified since its outbreak.

Submissions should address ways our discipline--its individual practitioners and organizational institutions—have been affected by, or have encountered adversity and experienced struggle in the face of:

• The Global Pandemic and a panoply of consequences flowing from it
• Right-wing (white supremacist, anti-immigrant, anti- queer/trans, misogynist, etc.) movements
• Right-wing corporate media and social media
• Authoritarianism, illiberalism, and threats democratic institutions
• War, invasion, civil strife, and refugeeism
• Neoliberalism, corporatism, and commercialization
• Climate-change disasters, environmental degradation, and climate-change denial
• Impoverishment and the “austerity” measures and policies arising from the above

We are keenly interested in contributions that document and evaluate the ways that our discipline and its practitioners exercise and exhibit resistance, revolutionary praxis, and refusal to the above in the form of:

• Scholarly, pedagogical, and administrative strategizing
• Organizational-, institutional- and alliance-building (both inter- as well as intra-disciplinary)
• Public engagement, political activism, and direct action (both on- and off-campus)
• Escape hatches, off-ramps, and alternative social- cultural protest forms and modalities

We welcome contributions that recognize and share artistic and creative endeavors, performances, and cultural interventions offering insight and inspiration regarding the core themes of this issue.

Especially encouraged to submit are women; people of color; Black; Indigenous; gender-variant, LGBTQIA+; disabled people; and those whose work is located outside the United States or who collaborate cross-nationally.

PRIORITY SUBMISSION DEADLINE: MARCH 1, 2023

• Scholarly articles should be submitted to WSQ.submittable.com. Send complete articles, not abstracts. Remove all identifying authorial information from the file uploaded to Submittable. We will give priority consideration to submissions received by March 1, 2023. Scholarly submissions must not exceed 6,000 words (including un-embedded notes and works cited) and must comply with formatting guidelines at https://www.feministpress. org/submission-guidelines. For questions, email the guest issue editors at WSQEditorial@gmail.com.
• Artistic works (whose content relates clearly to the issue theme) such as creative prose (fiction, essay, memoir, and translation submissions between 2,000 and 2,500 words), poetry, and other forms of visual art or documentation of performative artistry should be submitted to WSQ.submittable.com. Before submitting, please review previous issues of WSQ to see what type of creative submissions we prefer. Note that creative submissions may be held for six months or longer. We do not accept work that has been previously published. (Simultaneous submissions are acceptable if the editors are notified immediately of acceptance elsewhere.) For questions related to creative prose submissions, email WSQCreativeProse@gmail.com. For questions related to poetry submissions, email the WSQ’s poetry editor at WSQpoetry@ gmail.com. For questions regarding other forms of artistic or creative work, email the visual arts editor at WSQvisualart@ gmail.com.

Can Title IX Be Used to Exclude Trans Athletes

WP, A Battle Over Title IX: Can it be Used to Exclude Trans Athletes?

On Thursday, a federal appellate court heard arguments concerning the rights of transgender student-athletes.

But unlike most other legal challenges of this kind, the plaintiffs aren’t trans people suing to have their rights recognized.

Instead, a group of young cisgender women, represented by the Christian conservative legal organization Alliance Defending Freedom, is arguing that allowing trans athletes to compete on teams that align with their gender identity violates the rights of cis women.

 

The case, Soule et al v. Connecticut Association of Schools et al, was dismissed by a federal district judge last year, but it has proved to be consequential.

On Thursday, a federal appellate court heard arguments concerning the rights of transgender student-athletes.

But unlike most other legal challenges of this kind, the plaintiffs aren’t trans people suing to have their rights recognized.

Instead, a group of young cisgender women, represented by the Christian conservative legal organization Alliance Defending Freedom, is arguing that allowing trans athletes to compete on teams that align with their gender identity violates the rights of cis women.

 

The case, Soule et al v. Connecticut Association of Schools et al, was dismissed by a federal district judge last year, but it has proved to be consequential.

 

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Federal Trial in Purdue Sexual Assault Case Continues this Week

Purdue Sexual Assault Investigation Trial Starts Monday

A trial against two Purdue administrators for suspending a student after she made sexual assault allegations, which Purdue determined to be false, starts Monday.

The student, called Nancy Roe in court documents, claims in the federal lawsuit that Purdue’s sexual assault investigation procedure is gender discriminatory because it suspends students who don’t prove assault allegations to Purdue’s standards.

Purdue is also accused of violating the Fourteenth Amendment Due Process and Equal Protection clauses by reportedly not giving Roe any prior notice or an opportunity to respond before suspending her in 2017, the pretrial order reads.

 

See also Federal Suit Against Purdue Hinges on Texts, Recordings, Credible Claims in Sexual Assault Case

In the second day of testimony in a former student’s federal lawsuit against Purdue – Crux of the case: Did Purdue retaliate against her when it suspended her for two years after investigating her sexual assault claim, while having the person she accused write a 10-page term paper on consent as punishment for recording their dorm room encounter? – the word of the day was “incapacitated.”

Things hinged on Purdue’s determination that Nancy Roe – as the then-19-year-old student is identified in court documents – might have been intoxicated, but she wasn’t incapacitated when a fraternity member walked her to her residence hall on the Monday night of Grand Prix week in 2017 and wound up having sex with her.

On Tuesday, Purdue Dean of Students Katie Sermersheim said on the witness stand in a federal courtroom in Hammond that she stood by determination that the student lied about the incident, dragging another student into an investigation over something consensual.

 

In a related case  brought by the accused man in the incident, Justice Amy Coney Barrett (pre-SCOTUS), wrote the opinion flagging Title IX for its potential "male bias."  See Understanding Judge Barrett's Opinion in Doe v. Purdue

The case is here: Doe v. Purdue

Purdue students John and Jane had consensual sexual intercourse 15-20 times. Jane’s behavior became erratic. Jane attempted suicide. Weeks later, John reported Jane’s suicide attempt to an advisor. Jane was upset and distanced herself from John. Months later, during Sexual Assault Awareness Month, Jane alleged that while sleeping with John, she woke to him groping her over her clothes. Jane says she reprimanded John. John then purportedly confessed that he had digitally penetrated her while she was sleeping weeks earlier. Jane told the university that John had gone through her underwear drawer, chased her through a hallway while joking about tasering her, gone to her room unannounced, and lost his temper in front of her. Purdue pursued Jane’s allegations although Jane did not file a formal complaint. John was suspended from Navy ROTC, banned from buildings where Jane had classes and from his dining hall. John submitted a denial, noting that after the alleged incidents, Jane texted him over the holidays, sent his family cookies, and invited him to her room. Investigators neither gave him a copy of the report nor shared its contents. Moments before his committee appearance, he learned that it falsely claimed that he had confessed and failed to describe Jane’s suicide attempt. Jane neither appeared nor submitted a written statement. The panel refused John permission to present witnesses. John was found guilty by a preponderance of the evidence. Purdue suspended him for a year and imposed conditions on his readmission. The ROTC program terminated his scholarship. John sued, asserting Purdue used flawed procedures and violated Title IX by imposing a punishment infected by sex bias. A magistrate dismissed. The Seventh Circuit reversed. John adequately alleged violations of both the Fourteenth Amendment and Title IX

Martha Fineman's Feminist Legal Theory Project Historical Archive at Risk of Being Lost

Preserving Our Legacy: An Important Piece of Feminist History is at Risk of Being Lost

One of these women was Martha Albertson Fineman, who in the early 1980s launched the Feminism and Legal Theory Project at University of Wisconsin Law School. For decades, the project has brought together scholars and activists from the U.S. and abroad to explore the most pressing contemporary legal issues affecting women. In multiple-day sessions, organized around specific, evolving sets of issues, feminists presented working papers and debated women’s legal rights. Fineman recorded and preserved these groundbreaking conversations, as well as the working papers and other written material prepared for these sessions.

Fineman is now struggling to convince librarians more accustomed to collecting individuals’ or organizations’ papers of the importance of this historic trove of audio, visual and written materials documenting the collective development of feminist concepts, aspirations and theory.***

For close to four decades, Fineman’s Feminism and Legal Theory Project has hosted hundreds of conversations where feminist thinkers from across the United States and world have shaped and explored a wide range of concepts relating to women’s position within law and society. Those conversations delved into the “public nature of private violence,” the legal regulation of motherhood, feminism’s reception in the media, the relevance of economics to feminist thought, the complexities of sexuality, conflicting children’s and parental rights, the origins and implications of dependency and vulnerability, and the extent and nature of social responsibility.

“Feminism teaches us that the best ideas come from working together in inclusive, supportive groups,” said Fineman. “Feminism has grown through consciousness raising and the sharing of experience. The best ideas and the best politics emerge from collective engagements and processes.”***

“In the Feminism and Legal Theory Project, we created what I called ‘uncomfortable conversations’—events where people who shared values, but disagreed about strategies and implementation, could talk,” said Fineman. “If there were areas of disagreement around collective objectives, you could talk about them and work through them hopefully in a constructive manner. That’s how actual progress can be made.”***

Fineman recorded all of these conversations—a treasure trove of close to four decades of feminist intellectual history. But she is now struggling to find a home for this invaluable archive of the first generation of feminist legal thinkers.

“History has something to teach us. If we don’t collect the history and preserve it, then it can’t teach us,” said Fineman.***

After speaking with people at women’s history archives, Fineman is concerned about how decisions to preserve women’s history are made. “Who makes the determination about what and who in the past matters? How and why they make such decisions ultimately shapes what will constitute women’s or feminist history,” said Fineman. “An important piece of feminist history is at risk of being lost or isolated and sidelined.

Study Tracks the Progress of Women's Representation and Achievement in Law Schools 1948 to 2021

Elizabeth Katz, Kyle Rozema & Sarath Sanga, Women in U.S. Law Schools, 1948-2021 

We study the progress of women’s representation and achievement in law schools. To do this, we assemble a new dataset on the number of women and men students, faculty, and deans at all ABA-approved U.S. law schools from 1948 to the present. These data enable us to study many unexplored features of women’s progress in law schools for the first time, including the process by which women initially gained access to each law school, the variance in women’s experiences across law schools, the relationship between women’s representation and student achievement, and the extent to which women occupy lower status faculty and deanship positions. We contextualize our findings by situating them within the vast qualitative literature on women’s experiences in law schools and the legal profession.

See also ABA J, Law School Achievement Gap by Gender for Faculty and Deans Examined in New Paper

A Study of the Comments to the Devos Title IX Rulemaking of 2018-20 Shows Overwhelming Opposition

Thomas Dircks, Lindsey LaForest, Timothy O'Shea, Alice Parks, Brittany Van Ryder, Nancy Chi Cantalupo, Overwhelming Opposition: the American Public’s Views on the Devos Title IX Rulemaking of 2018-2020 

On November 29, 2018, then Secretary of Education Betsy DeVos and the U.S. Department of Education (“ED”) published a notice of proposed rulemaking (“NPRM”) regarding Title IX of the Education Amendment of 1972, 20 U.S.C. §§1681 et seq. (“Title IX”), particularly ED enforcement regarding sexual harassment and gender-based violence (“SH-GBV”). This report discusses data collected by a crowd-research project in which hundreds of volunteers read and collected information from 117,358 of the 124,000+ comments filed in response to the NPRM into a “Big Comment Catalog” (“Catalog”). First, the report reviews the number and percentage of comments that supported or opposed the NPRM’s proposals, including by identified subgroup and topic. It then analyzes the themes of the comments filed, first the common concerns of the less than one percent of commenters who supported the NPRM and next of the more than 99 percent who opposed it. The Catalog is available in Appendix B of the report.

Of the 117,358 cataloged, organized, and examined by the research team (see the Methodology section for an explanation of why the Catalog does not include all 124,000+ comments that ED says were filed in the proceeding), 115,670 comments took a definitive position on the proposals. Of those comments that took a definitive position, more than 99 percent (n: 114,817) opposed the proposed rules while less than one percent (n: 853) supported them.

The predominant theme in the 853 supporters’ comments was the belief that ED’s Title IX enforcement methods for SH-GBV should imitate the criminal law. These comments favored the NPRM for correcting what supporters alleged were biased procedures that had been tolerated by ED in the past and approved of the NPRM’s requirements for live hearings with cross-examination, a heightened evidentiary standard, and protection of the accused’s—but not the victim’s—"due process” rights.

In part due to how many more commenters opposed the NPRM than supported it, the list of objections was also significantly longer. First, opposers objected to the NPRM’s narrowed scope of Title IX protections, including those limiting the types of SH-GBV that would qualify as violating Title IX, reducing the number and type of employees obligated under Title IX to assist a victim-survivor, and decreasing the obligations on funding recipients to address reports in an efficient manner. Of particular concern to opposers were the NPRM’s narrowed definitions for various terms, as well as the elimination of Title IX protections with regard to online harassment and off-campus SH-GBV. Second, those who opposed the NPRM addressed the potential harm to survivors, educational institutions, and students’ rights caused by the NPRM’s criminal law-imitative requirements for internal investigations, disciplinary systems, and a higher standard of evidence. Third, opposers objected to the NPRM’s adoption of broad religious exemptions from Title IX and for its disparate impacts on student populations already vulnerable to discrimination, including K-12 students and students who face intersectional discrimination.

This report’s authors thank the many volunteers who participated in this project over the last three years (see the Methodology section and Appendix A for a list of volunteers). Without their efforts, the Catalog and this report would not have been possible.

Study Shows Unintended Consequences of MeToo in Fewer Research Projects and Collaborations for Junior Women Academics

Marina Gertsberg, The Unintended Consequences of #MeToo - Evidence from Research Collaborations 

In this study, I use research collaborations between junior female and male academics at U.S. Economics departments as a laboratory in which to analyze how #MeToo affected workplace interactions between men and women. I find that junior female academics start fewer new research projects after the #MeToo movement. This decrease is driven by a decline in the number of collaborations with new male co-authors at the same institution. The negative effect is more pronounced in locations with more liberal gender attitudes. Moreover, I show that the drop in collaborations is concentrated in universities with both a high number of sexual harassment cases and more ambiguous sexual harassment policies. These results suggest that the social movement had unintended consequences that disadvantaged the career opportunities of the protected group. The study has also important implications for the design of organizational sexual harassment policies.

School Dress Code Bans Skirts and Dresses

TX School District's Dress Code Dresses, Skirts to Promote Workforce Skills

The Forney Independent School District announced this week that it was implementing the new dress code to help improve the children’s “future workforce skills” for the 2022-23 academic year. All hoodies, as well as hooded jackets and coats, will be prohibited for all the roughly 15,000 students inside any of FISD’s 18 schools. Dresses, skirts and skorts are now allowed only for kids in prekindergarten through the fourth grade in an effort the district says will “help prepare students for a safe and successful future.”

 

“The use of a school dress code is established to improve student self-esteem, bridge socio-economic differences among students, and promote positive behavior, thereby enhancing school safety and improving the learning environment,” the district wrote in its announcement to parents.***

 

Historians have noted how school dress codes have been a way to assert power and control over students. Einav Rabinovitch-Fox, an assistant professor of American history and women’s and gender history at Case Western Reserve University, wrote in The Post last year about the long history schools had of imposing codes of appearance and behavior, from uniforms to rules of conduct.

 

“As social institutions that are meant to prepare future citizens to function in society, schools are hardly democratic spaces. Instead, schools use their authority to enforce social values through curriculum choices, enrollment decisions and also dress codes,” Rabinovitch-Fox wrote. “Dress codes have usually targeted women and minorities, continuing a long tradition of policing these groups’ appearance and presence in public.”

 

Yet other schools have required skirts for girls: See Fourth Circuit En Banc Holds Charter School Dress Code for Girls is Gender Discrimination; see also Controlling Women by Controlling Clothes in the Workplace

President Biden's Proposes New Administrative Rules on Title IX for Campus Sexual Assault and LGBTQ Protections

Chronicle, Here's How Title IX Could Change Under Biden's Proposed Rule

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.

Sweeping Title IX Would Shield Trans Students, Assault Survivors

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.

 

The proposal would also amend the rules that govern how educational institutions investigate and resolve claims of sexual assault and sexual harassment. Over concerns that people were being wrongfully punished, President Donald Trump’s education secretary, Betsy DeVos, revised the rules to make them more accommodating to the accused. Critics assailed the changes, saying they would discourage sexual assault survivors from coming forward to report assaults or harassment.

 

“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.”

Developing a Theory of Institutional Betrayals as Actionable Sex Discrimination under Title IX

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.

The Legal History and Original Drafter and Advocate of Title IX, Edith Green

Wash Post, The True Mother of Title IX. And Why it Matters Now More than Ever

June 23 marks 50 years since Title IX, which prohibits sex discrimination in education, was signed into law. The anniversary has sparked discussion of Rep. Patsy Takemoto Mink (D-Hawaii) — the first woman of color elected to Congress in 1964, for whom Title IX was renamed in 2002. In fact, the media often refers to Mink as the "mother” of Title IX.

 

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.”