Friday, April 2, 2021
Sixth Circuit Allows Professor's First Amendment Suit to Proceed, Challenging Discipline for Refusal to use Transgender Student's Preferred Pronouns
The Cincinnati-based 6th U.S. Circuit Court of Appeals has reinstated a First Amendment lawsuit by a public college professor in Ohio who violated school policy by refusing to use a transgender student’s preferred pronouns.
The 6th Circuit ruled for Shawnee State University philosophy professor Nicholas Meriwether in a March 26 opinion by Judge Amul Thapar, an appeals court appointee of President Donald Trump. Thapar was viewed as a potential U.S. Supreme Court nominee during Trump’s presidency.
Meriwether, a devout Christian, believed God created humans as male or female, and said using preferred pronouns to refer to a student in his class violated his religious beliefs.
The student had protested after Meriwether referred to her as “sir.” University policy required professors to use students’ preferred pronouns, and Meriwether received a written warning.
Meriwether proposed a compromise where he would refer to the student only by her last name. At first it was accepted, but was later rejected. The university said Meriwether should either stop using all sex-based pronounds in his classroom, or he should refer to the transgender student as a female.
Meriwether sued for free speech and free exercise violations under the First Amendment, and due process and equal protection violations of the 14th Amendment. A federal judge tossed the claims, but the 6th Circuit reversed as to the First Amendment claims.
March Madness Could Spark a Title IX Reckoning, The Atlantic
The gender inequality in college sports runs far deeper than a few social-media posts can reveal. As Cheryl Cooky, a professor studying sport sociology at Purdue University, told me in a recent phone conversation: “The problem is not the weight room itself, but what kind of groundwork has been laid that produced this moment where the weight-room controversy occurred. Nobody looked at that space and said, ‘Something’s not right here.’ It took someone posting on social media to bring attention to the issue.”
Although the NCAA is a nonprofit that organizes athletic tournaments for college athletes, it acts more like a professional-sports organization. And the deeply entrenched sexism in intercollegiate sports means that male athletes are treated with red-carpet fanfare, and women are treated as second-class citizens. That swag-bag gear, forinstance? The women’s paraphernalia doesn’t say march madness, because the NCAA refuses to use the name of its highly marketable men’s tournament to refer to the parallel women’s tournament, which is held at the same time. If you download the NCAA March Madness Live app, you might be under the impression that the women’s tournament doesn’t exist at all—no women’s schedule, bracket, or game highlights are available. This is the first year in which the entirety of the women’s tournament will be shown on national television, whereas the men’s tournament has been taking over airwaves for decades. And still, Sunday’s women’s championship game will be available only on ESPN, while the men’s championship game will air on CBS, a national broadcast network, making their game more widely available.
Broadcast and advertising deals are private-market decisions. But these issues involve student athletes, who are playing for schools beholden to Title IX—the statute that prohibits gender inequality at any educational institution receiving federal financial assistance (basically every school in the NCAA, via student financial aid). So is it legal that the NCAA calls its women’s tournament by a different (and far less marketable) name? Or that the broadcast deals it strikes for the men’s tournament are so much larger than those for the women’s? According to the Supreme Court’s decision in NCAA v. Smith, it is.
In 1999, the Court ruled that, although the NCAA runs sports tournaments for schools—and collects money from those schools—the league itself does not receive direct funds from the federal government. But Neena Chaudhry, the general counsel and senior adviser for education at the National Women’s Law Center, says a legal argument could be made that the NCAA should be held to Title IX when it comes to these tournaments. Chaudhry, who worked on NCAA v. Smith, has successfully argued at the state level that high schools have essentially given sports leagues controlling authority over their federally funded athletic programs.
. . . .
Thursday, March 11, 2021
"Reverse Title IX" Procedures Favoring Mostly Male Respondents as Continued Structural Discrimination Rather than Overcorrection
Sarah Lynnda Swan, Discriminatory Dualism in Process: Title IX, Reverse Title IX, and Campus Sexual Assault, 73 Oklahoma L. Rev. (2020)
For decades, the Title IX process of adjudicating campus sexual assault has been heavily weighted against complainants (usually women). However, at some universities, this weighting has recently flipped, such that Title IX procedures at these institutions now seem weighted not against complainants, but against respondents (usually men). This “reverse Title IX” trend is typically described as an overcorrection, stemming from schools’ over-zealous attempts to comply with the Title IX requirements the Obama Administration imposed in 2011.
This Article offers a different account of Title IX’s procedural flip. It argues that Title IX’s procedural switch can be productively viewed through the lens of discriminatory dualism. Discriminatory dualism posits that structural discrimination frequently divides into two seemingly opposite—but in fact mutually supportive—strands. Applying the theory of discriminatory dualism here suggests that reverse Title IX is not a mere overcorrection. Instead, it is part of a patterned, recurring, and common way that structural discrimination upholds existing social hierarchies.
Echoing other examples of discriminatory dualism, Title IX’s twinned procedural problems work to sustain existing gendered and social hierarchies in three main ways. First, procedural unfairness to respondents functions to “confirm” the stereotype underlying the initial procedural problems with Title IX: that women are not credible witnesses and are committed, at all costs, to punishing men for perceived slights and imagined harms. Second, the emergence of the reverse Title IX strand undermines the complaints about unfairness to complainants, suggesting that they are misplaced and that the “real” problem is discrimination against men. The confusion created by these dueling complaints undermines the legitimacy of the Title IX system of adjudication as a whole, rendering all findings potentially suspect. Finally, Title IX’s discriminatory dualism creates a double bind, under which universities are portrayed as only capable of adjudicating in ways that are either unfair to complainants or unfair to respondents. These consequences all work to the detriment of
those seeking gender equality.
President Biden on Monday ordered Education Secretary Miguel Cardona to re-examine his predecessor Betsy DeVos’s controversial rule strengthening the rights of those accused of sexual harassment or assault on the nation's campuses. And, raising the hopes of the rule's critics, Biden said in his order that Cardona should consider “suspending, revising, or rescinding” it.
To mark International Women’s Day, Biden signed an executive order spelling out that it’s his administration’s policy “that all students should be guaranteed an educational environment free from discrimination on the basis of sex.” And discrimination, he said, includes sexual harassment and violence, as well as discrimination based on sexual orientation or gender identity.
The order directed Cardona to review within 100 days the Education Department’s regulations and policies to make sure they comply with the antidiscrimination policy. Biden specifically mentioned the department’s policy on Title IX of the Education Amendments of 1972.
DeVos last May reversed the Obama administration’s policies on campus sexual assault and harassment, angering women’s and civil rights groups but bringing praise from those who believe the rights of the accused are often trampled upon by institutions.
Saying her rule would balance campuses’ response to allegations of harassment and abuse that have “often stacked the deck against the accused,” DeVos required colleges to hold live hearings and allow for the cross-examination of those alleging misconduct. Women’s rights groups said it would discourage victims from coming forward.
DeVos’s rule, among other things, also allowed colleges and universities to raise the bar on deciding whether sexual misconduct took place to a “clear and convincing” standard instead of whether there was a “preponderance of evidence” against the accused. The rule also allowed institutions to ignore allegations of misconduct that happened off campus, except at fraternities and sororities or at events that are part of a university program.
DeVos took the stance after critics said guidance issued by the Obama administration in 2011 and 2014 was skewed against the accused. T
Monday, February 22, 2021
It's that time of year again for Gender & Law-Prof Blog's annual list of women law deans. Updates as new announcements are made.
Mary Davis (Kentucky, Interim Dean), Kentucky
Linda Greene (Wisconsin), Michigan State
Johanna Kalb (Loyola NO, Associate Dean), Idaho
Amelia Smith Rinehart (Utah, Associate Dean), West Virginia
So far, women are about 44% (4/9) appointments announced this term.
Karen Sloane, Meet the Record-Setting Number of Incoming Women Law Deans (2019)
National Law Journal, Incoming Batch of Law Deans Is More Diverse Than Ever (2019)
Michelle Benedetto Neitz, Pulling Back the Curtain: Implicit Bias in the Law School Dean Search Process, Seton Hall L. Rev.
Friday, February 12, 2021
Hannah Brenner Johnson, Standing in Between Sexual Violence Victims and Access to Justice: The Limits of Title IX, 73 Oklahoma L. Rev. (2020)
Sexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by the Supreme Court to provide a private right of action by which victims can hold institutions accountable.
In the most typical cases, one enrolled student accuses another enrolled student of sexual assault. The university investigates, perhaps holds a hearing panel, issues a determination after applying the relevant evidentiary standard, and, where warranted, imposes appropriate sanctions. If a student victim is dissatisfied with the institutional response, they have the right to sue the school in federal court. Not all cases follow this typical example, however, raising the question of who, specifically, is entitled to avail themselves of the protections of Title IX. Sometimes victims are visitors or "outsiders" who have been raped or assaulted on campus by enrolled students. Their right to sue educational institutions has been called into question by courts that have denied them standing to sue the schools in federal court.
Historically, some judges have used the standing doctrine to deny access to the courts to certain minority groups. Victims of sexual violence represent a new addition to this cohort of excluded parties. A growing number of federal district courts have barred this class of victims from pursuing their grievances against colleges and universities based ostensibly on their "outsider" or "non-student" status, and federal appellate courts have, to date, been reluctant to take a stand either way. A new case that has emerged along these same trend lines is currently percolating in the Sixth Circuit, brought by a woman who was sexually assaulted in a dormitory at the University of Kentucky (UK). The plaintiff in this case was not actually enrolled at UK but resided in campus housing while attending a community college per a formal agreement between institutions. When she sued UK under Title IX for its deliberate indifference in responding to her reported rape, the trial court dismissed her case without reaching the merits. Instead, the court used a narrow interpretation of standing, finding that in order to sue a school under Title IX, an individual must be formally enrolled as a student or enrolled in a program or activity of that institution.
This distinction between insider and outsider rape victims is wholly problematic. Colleges and universities, while reliant on the presence of and tuition generated by their enrolled students, cannot entirely depend on insiders to succeed. They actively solicit, depend on, and profit from engagement with outsiders every single day as a means to fulfill their educational mission. This Article will use Doe v. University of Kentucky as a point of contemporary illustration (filled in by the decisions of other similar cases) to argue that individuals who are sexually assaulted on college campuses should be afforded equal access to Title IX protections and, specifically, should be granted standing to sue regardless of their enrollment status.
Wednesday, October 21, 2020
Equal Pay Lawsuits by Women Law Professors Allege Significant Continuing Gender Discrimination in Academia
*** Linda Mullenix’s annual salary, however, is at least $31,000 less than three male law professors at her school. Like Mullenix, some of these male professors teach civil procedure. However, they have had shorter careers and fewer publications than she has, and for the most part, similar student evaluations, according to the Equal Pay Act lawsuit she filed in the U.S. District Court for the Western District of Texas in December 2019. The complaint also alleged sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. Additionally, she alleged her raise for the 2018-2019 academic year was only $1,500, while other UT law professors with fewer accomplishments received $10,000 raises.
And this is not the first time Mullenix has complained to the university about compensation issues. In 2011, she retained counsel and sent a demand letter asserting an equal pay claim after she discovered a male professor with less experience annually earned $50,000 more than she did. Eight years later, that pay gap had decreased—by $17; that professor now earns $49,983 more than Mullenix, per her 2019 lawsuit. As a result of her actions, she has been described as “poison” by school administrators, according to the complaint, because she repeatedly speaks out about pay inequity at the law school.
In May, a Texas federal judge granted the university’s motion to partially dismiss Mullenix’s lawsuit on the basis that she failed to allege a causal connection between her pay complaints and receiving the lowest raise of any law school faculty member. The order dismissed Mullenix’s Title VII retaliation claim; her Equal Pay Act and sex discrimination claims are ongoing.
Mullenix’s lawyer, Colin Walsh of the Austin firm Wiley Walsh, told the ABA Journal he will continue with her Title VII discrimination and Equal Pay Act claims and looks forward to entering the discovery phase. Meanwhile, a spokesman for the university told the Journal the institution “strongly supports” equal pay based on merit and performance, and it has done work to ensure salary equity for faculty members. Law school faculty pay, he wrote in an email, is decided by “a committee review of teaching, service and scholarship with professional criteria applied to make these determinations.”
At least five equal pay lawsuits have been filed by female law professors since 2016; the actions involve four schools. One of those schools has been sued more than once, and three of the lawsuits remain open.
Although law schools may rely on several factors in determining compensation, in actuality, law school deans often have significant discretion in deciding what to pay professors, and their unchecked decisions can be tainted by gender bias, according to lawyers interviewed by the ABA Journal. Salaries, raises and appointments should be based on teaching, service and scholarship. But dean evaluations in those areas can be biased as well, some say, with men getting better appointments and more respect for their research and writing, with little regard for the work’s quality and importance.
Moreover, professors who have filed Equal Pay Act claims have seen their careers impacted in other ways. For instance, more than one used the word “poison” to describe how they were viewed after confronting law school leadership with discrimination concerns. Others found themselves removed from important faculty committee assignments (a factor used in determining pay) and put on “‘do nothing’ committees.”
Walsh says pay discrimination against women is just as much of a problem in the law schools as it is in the private sector.
“It may be a bit worse because of instances of institutional misogyny. Any place you have a large contingency of older white men, you’re going to have a pay gap,” Walsh adds.
In all of the Equal Pay Act lawsuits, plaintiffs say they were treated worse by the schools after suing.
See also Chronicle of Higher Ed, A Raft of Pay-Gap Lawsuits Suggests Little Progress for Academic Women
Last week, five female professors at Rutgers University filed a lawsuit in state court accusing their institution of paying them tens of thousands of dollars less than their male colleagues. Days earlier, Princeton University agreed to a settlement, worth nearly $1.2 million, after a U.S. Department of Labor review found that 106 female full professors had been paid less than their male counterparts between 2012 and 2014. And in September, four female professors at Northern Michigan University settled their own pay-discrimination lawsuit for $1.46 million.
The University of Arizona resolved a pair of similar cases in 2019, doling out $190,000 to a trio of female former deans and $100,000 to an associate professor, all of whom alleged they’d been underpaid. And the University of Denver settled in 2018 with seven female law professors to the tune of $2.66 million.
To understand the raft of pay-discrimination lawsuits, The Chronicle spoke to Jennifer A. Reisch, who represented the lead plaintiff in the Denver case and argued on behalf of a professor at the University of Oregon who awaits a ruling on her own gender-discrimination case
Friday, October 16, 2020
Paper Reports Statistics on Military Sexual Assaults, Showing Lower Rate of Assaults, Higher Rates of Reporting, and Additional Available Rights as Compared to Civilian and Collegiate Jurisdictions
David Schlueter & Lisa Schenck, A White Paper on National, Military, and College Reports on Prosecution of Sexual Assaults and Victims’ Rights
In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing Congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states, and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, the authors conclude that the rate of sexual assaults in the military is lower than for other civilian jurisdictions. Military victims report offenses at a higher rate than the jurisdictions examined.
Tuesday, October 13, 2020
Conference-- Title IX, MeToo and Administrative Law: Responding to Backlash and Looking to the Future
Panel Two (10:00-11:40am PT): Litigation Challenges to Trump/DeVos Administrative Actions, 2017-present
Panel Three (11:50-1:30pm PT): #MeToo, the Blasey-Ford/Kavanaugh Hearings & the National Impact of Sexual Harassment, 2017-present
Panel Four & Symposium Wrap-Up (1:40-3:30pm PT): The Future Under a Biden-Harris vs. Trump II Administration
Confirmed Panelists and Moderators:
· Lindy Aldrich, Ladder Consulting
· Kelly Behre, UC Davis Law
· Deborah Brake, University of Pittsburgh School of Law
· Hannah Brenner-Johnson, California Western School of Law
· Erin Buzuvis, Western New England University School of Law
· Sage Carson & Sarah Nesbitt, Know Your IX
· Shelley Cavalieri, University of Toledo College of Law
· Nancy Chi Cantalupo, California Western School of Law
· Jessica Fink, California Western School of Law
· Maha Ibrahim, Equal Rights Advocates
· William Kidder, UCLA Civil Rights Project
· Naomi Mann, Kelsey Scarlett & Lexi Weyrick, Boston University School of Law
· Victoria Nourse, Georgetown University Law Center
· Emily Martin & Shiwali Patel, National Women’s Law Center
· Amelia Parnell, NASPA: Student Affairs Administrators in Higher Education
· Lynn Rosenthal, Co-chair, Obama Administration White House Task Force to Protect
· Samuel Bagenstos, University of Michigan Law School
Students from Sexual Assault
· Jodi Short, UC Hastings College of Law
· Amanda Walsh, Victim Rights Law Center
· Lua Yuille, University of Kansas School of Law
Tuesday, September 29, 2020
Deborah Brake & Joanna Grossman, Reproducing Inequality Under Title IX, 43 Harvard J. Law & Gender 171 (2020)
This article elaborates on and critiques the law’s separation of pregnancy, with rights grounded in sex equality under Title IX, from reproductive control, which the law treats as a matter of privacy, a species of liberty under the due process clause. While pregnancy is the subject of Title IX protection, reproductive control is parceled off into a separate legal framework grounded in privacy, rather than recognized as a matter that directly implicates educational equality. The law’s division between educational equality and liberty in two non-intersecting sets of legal rights has done no favors to the reproductive rights movement either. By giving a formal “right” to stay in school and the right to equal treatment with temporarily disabled students, Title IX may be strategically deployed by proponents of restricting abortion rights to minimize the educational consequences of involuntary motherhood. The hard realities of how pregnancy and parenting impact schooling are obscured.
The article explores the legal divide between pregnancy discrimination and reproductive rights in relation to education in three parts. Part I discusses the rights included in, and omitted from, Title IX relating to pregnancy and reproduction. Part II surveys the liberty-based reproductive rights framework for pregnancy prevention and termination and discusses its limits in protecting young women from the educational effects of unwanted pregnancy and motherhood. Part III concludes by discussing the implications of separating out pregnancy discrimination from the broader set of reproductive rights and elaborating on the harms that flow from the law’s failure to recognize the educational equality dimensions of the denial of reproductive rights.
Jennifer Hirsch & Shamus Khan, Sexual Citizens: A Landmark Study of Sex, Power and Assault on Campuses
A groundbreaking study that transforms how we see and address the most misunderstood problem on college campuses: widespread sexual assault.
The fear of campus sexual assault has become an inextricable part of the college experience. Research has shown that by the time they graduate, as many as one in three women and almost one in six men will have been sexually assaulted. But why is sexual assault such a common feature of college life? And what can be done to prevent it? Drawing on the Sexual Health Initiative to Foster Transformation (SHIFT) at Columbia University, the most comprehensive study of sexual assault on a campus to date, Jennifer S. Hirsch and Shamus Khan present an entirely new framework that emphasizes sexual assault’s social roots—transcending current debates about consent, predators in a “hunting ground,” and the dangers of hooking up.
Sexual Citizens is based on years of research interviewing and observing college life—with students of different races, genders, sexual orientations, and socioeconomic backgrounds. Hirsch and Khan’s landmark study reveals the social ecosystem that makes sexual assault so predictable, explaining how physical spaces, alcohol, peer groups, and cultural norms influence young people’s experiences and interpretations of both sex and sexual assault. Through the powerful concepts of “sexual projects,” “sexual citizenship,” and “sexual geographies,” the authors offer a new and widely-accessible language for understanding the forces that shape young people’s sexual relationships. Empathetic, insightful, and far-ranging, Sexual Citizens transforms our understanding of sexual assault and offers a roadmap for how to address it.
Monday, September 28, 2020
Executive Order Against Training Federal Employees, Contractors and Military on Racism Applies to Sexism Too
Executive Order on Combating Race and Sex Stereotyping, White House (Sept. 22, 2020)
This executive order is an expression not only of white fragility, but also of male fragility. It reads as a defense of the oppressors. It embodies defensiveness in the face of illustrations of racial and gender privilege, while it reacts to perceived affronts to white men's moral character. While titled as an order about "stereotyping," it is most concerned with what the order calls "race and sex scapegoating."
The prohibitions on addressing racism in federal employment training and contractors have been mentioned in the media and challenged by scholars.
Less discussed have been the provisions that also prevent teaching about sexism. The Order prohibits federal workplaces, unions, military, and federal contractors from teaching about such "divisive concepts" as sexism, male privilege, or systemic sexism.
It decries "sex scapegoating," defined as: "assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others."
The order provides an example of a training of concern: "Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other."
Tuesday, September 15, 2020
The United States Supreme Court's historic June 15 decision about LGBTQ workers' rights had its first impact on how courts define sex discrimination at colleges.
The U.S. Court of Appeals for the 11th Circuit concluded that Title IX of the Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions, also protects transgender students from discrimination based on their identity, said the court's Aug. 7 decision, written by Judge Beverly Martin.
"We conclude that Title IX … prohibits discrimination against a person because he is transgender, because this constitutes discrimination based on sex," Martin wrote.
Martin drew upon the Supreme Court's new interpretation of "sex," which includes sexual orientation and gender identity, and decided a transgender high school student in Florida could sue his former school district for its bathroom policy. The policy blocked the student, who identifies as male, from using the boys' bathroom because he was not biologically male and required him to use a female or gender-neutral bathroom, court documents said.
The decision could impact how colleges in the 11th Circuit, which encompasses Alabama, Florida and Georgia, implement bathroom policies and could subject colleges within the states to Title IX lawsuits related to discrimination against transgender students more broadly
Thursday, June 4, 2020
Constance Wagner, In Search of Best Practices on Gender Equity for University Faculty: An Update"
Norman Shachoy Symposium at Villanova Law School, 2019
This article updates the author’s earlier work on the search for gender equity among women faculty in the university setting in the United States. The author reflects on the fact that some of the literature in this area does not sufficiently address the challenges facing women of color. She seeks to fill the gap in her own research by referencing best practices discussed in three recent books on the professional lives of university faculty who are women of color. She argues that future work on best practices for achieving gender equity must address issues of intersectionality of race, gender, and class in order to develop effective tools for change in the university setting. This article was prepared for the 2019 Norman Shachoy Symposium at Villanova Law School, which focused on “Gender Equity in Law Schools”.
Thursday, May 28, 2020
Samuel Bagenstos, Legitimacy and Agency Implementation of Title IX, 42, Harvard J. Law & Gender (2020)
Because Title IX of the Education Amendments of 1972 involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), the administration of that statute by the Department of Education's Office for Civil Rights has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions for being illegitimate—for reflecting the agency’s improper imposition of value judgments on the statute. Three key applications of Title IX have drawn the most controversy in this regard: gender equity in intercollegiate athletics; transgender students’ rights; and sex-based harassment and assault on college campuses. This symposium essay argues that the critique is misplaced. One may agree or disagree with OCR’s applications of Title IX in these three key areas. But these applications are not illegitimate. To the contrary, they are implementation decisions made consistent with the longstanding “core” conception of discrimination — intentional disparate treatment. These decisions are inherently contestable, because even the “core” conception can be instantiated in many ways. But there are strong reasons to believe that OCR is best positioned to choose which instantiations to adopt. This essay thus shows how disputes over Title IX implicate broader questions of what discrimination means, as well as broader debates involving the legitimacy of the administrative state.
Tuesday, May 26, 2020
New Book: Presumed Incompetent II: Personal Narratives of Race, Class, Power, and Resistance of Women in Academia
The courageous and inspiring personal narratives and empirical studies in Presumed Incompetent II: Race, Class, Power, and Resistance of Women in Academia name formidable obstacles and systemic biases that all women faculty—from diverse intersectional and transnational identities and from tenure track, terminal contract, and administrative positions—encounter in their higher education careers. They provide practical, specific, and insightful guidance to fight back, prevail, and thrive in challenging work environments. This new volume comes at a crucial historical moment as the United States grapples with a resurgence of white supremacy and misogyny at the forefront of our social and political dialogues that continue to permeate the academic world.
Contributors: Marcia Allen Owens, Sarah Amira de la Garza, Sahar Aziz, Jacquelyn Bridgeman, Jamiella Brooks, Lolita Buckner Inniss, Kim Case, Donna Castaneda, Julia Chang, Meredith Clark, Meera Deo, Penelope Espinoza, Yvette Flores, Lynn Fujiwara, Jennifer Gomez, Angela Harris, Dorothy Hines, Rachelle Joplin, Jessica Lavariega Monforti, Cynthia Lee, Yessenia Manzo, Melissa Michelson, Susie E. Nam, Yolanda Flores Niemann, Jodi O’Brien, Amelia Ortega, Laura Padilla, Grace Park, Stacey Patton, Desdamona Rios, Melissa Michal Slocum, Nellie Tran, Rachel Tudor, Pamela Tywman Hoff, Adrien Wing, Jemimah Li Young
For the first volume, see Presumed Incompetent: The Intersections of Race and Class for Women in Academia
Wednesday, May 6, 2020
Dept of Education Announces New Rules on Title IX for Campus Sexual Assault, Requiring a More Judicial Like Process and Granting More Rights to the Accused
It also offers a narrow definition of sexual harassment, requiring that it be severe, pervasive and objectively offensive.“Today we release a final rule that recognizes we can continue to combat sexual misconduct without abandoning our values,” DeVos told reporters. The regulation is scheduled to take effect in August.
Her approach has come under fire from women’s rights groups and Democrats, who said it would allow assailants and schools to escape responsibility and make college campuses less safe for women. It was welcomed by advocates for the accused, who say the existing procedures are unfairly biased against them.
Even before the regulation was released, opponents were vowing to challenge it in court, hoping to halt or at least stall the new rules.
“We will fight this rule in court, and we intend to win,” said Emily Martin, a vice president at the National Women’s Law Center, an advocacy group. She said the core of the challenge would be that the department was “arbitrary and capricious” and in violation of the Administrative Procedure Act, and that the agency has ignored evidence showing that the rules would harm survivors of sexual violence.
Friday, April 17, 2020
Institutional Perpetuation of Systemic Gender and Racial Discrimination by the Continued Use of Student Evaluations Despite Research Consensus on their Bias
Debra Austin, Leadership Lapse: Laundering Systemic Bias through Student Evaluations, Villanova L. Rev. (forthcoming)
The use of the student evaluation of teaching (SET) for high stakes faculty employment decisions amounts to a lapse in leadership. A scholarly consensus has emerged that using SETs as the primary measure of teaching effectiveness in faculty review processes can systematically disadvantage faculty from marginalized groups. The growing body of evidence shows that women and minorities get lower ratings of their teaching than white men. Using biased evaluations allows colleges and universities to discriminate against faculty whose identities deviate from white male heteronormativity.
Despite the knowledge that empirical research demonstrates these instruments are biased, the academy has accepted them as credible. Bias in student evaluations can lead an institution to determine that a faculty member who differs from the straight white male stereotype is an inadequate teacher. Faculty with lower student ratings are penalized in the hiring, retention, compensation, and promotion processes.
This article summarizes empirical research demonstrating that student evaluations are biased against female faculty and faculty of color; describes the impact on student learning; details the influence on institutional culture of using student evaluations for assessing teaching quality for performance evaluations, compensation, promotion, and retention; and suggests recommendations for evaluating teaching effectiveness in fair and responsible ways. Law schools should lead the change in this discriminatory higher education practice because they are institutions dedicated to social justice and to training leaders who will drive social change in the legal system, government, business, media, and philanthropy.
Wednesday, March 18, 2020
Aya Gruber, The Complexity of College Consent, Adjudicating Campus Sexual Misconduct and Assault, Cognella, 2020
Teachers, parents, and administrators tell students that consent is “simple.” To be sure, every day, millions of people follow the directive to have only consensual sex with great success and have mutually wanted, unproblematic intimate contact. Law and policy, however, rarely intervene in easy cases. Consent standards intervene in the hard cases. College sexual consent policies delineate when sex between two competent adults of equal status, without force or threat, is a punishable offense. They determine what should happen when the accuser feels harmed but the accused believes he or she has not committed harm. They weigh in on default views of sex — whether people generally desire, are ambivalent toward, or fear sex. They guide decision makers on whom to believe in “he-said-she-said” cases. In short, consent is far from simple. This chapter, written for the book Adjudicating Campus Sexual Misconduct and Assault, unpacks the complex concept of consent in college codes. Its aim is taxonomical and explanatory: to categorize various consent formulations and clarify how they regulate behavior and resolve disputes. The first part of the chapter is a brief history of “ordinary” and affirmative consent standards in criminal law. The second turns to the concept of consent itself. There, I explore what it means to say that a sexual transaction between two people is consensual and whether consent relates to a state of mind, communication, or both. The third part examines the various formulations of consent in college codes, placing them on a scale from most to least regulatory. Finally, I discuss the complicated costs and benefits of affirmative consent.
Wednesday, February 19, 2020
Shawn Fields, Institutionalizing Consent Myths in Grade School, 72 Oklahoma L. Rev. (2020)
Scholars and advocates have long decried antiquated notions of consent in the criminal law of rape and sexual assault. Significant progress has been made to redefine consent in criminal codes and in our collective consciousness as freely given, informed, enthusiastic, explicit, revocable, and to be considered from the perspective of the consenting party. But despite this progress, the criminal justice apparatus continues to fixate on details irrelevant to the consent calculus such as the victim’s dress. This obsession with the victim’s clothing reflects a troubling willingness to imply consent or, alternatively, blame the victim for provocatively “asking for it.” Significant scholarship has demonstrated the corrosive impact of this fixation, resulting in a “credibility discount” of women making sexual violence allegations, the acquittal of defendants engaged in clearly criminal sexual conduct, and a concomitant reluctance of female victims of sexual violence to even engage with the criminal justice system.
None of the foregoing is new or particularly controversial. But while this unfortunate reality has been well examined, this Essay reflects upon a lesser explored, early root cause of the status quo: the hard wiring of consent myths in grade school through gendered dress codes and the gendered messaging these dress codes institutionalize about consent. Increasingly pervasive, increasingly sex obsessed dress codes feed narratives at an early age that girls are sexual objects who are responsible for the assaultive behavior of perpetrators and who “ask for” any unwanted sexual attention their dress may attract.
This Essay highlights the dangerous, highly sexualized justification often given by school administrators for gendered dress codes: a desire to create a “distraction-free learning environment” for boys. This messaging sexualizes underage girls, forces them to become hyper-cognizant about their physical identity, and signals a male entitlement to act inappropriately towards the female body for which the female will be punished. At root, these dress codes, and the justifications behind them, normalize and excuse sexually predatory behavior as a natural “distracted” reaction while blaming the victim for provoking the unwanted behavior. This institutionalization – which continues to grow – naturally feeds corrosive narratives that persist in criminal sexual assault adjudications, including implied consent, the requirement of a “perfect victim,” and the myth of the “unstoppable male.”