Friday, June 24, 2022

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.”

June 24, 2022 in Education, Legal History, LGBT | Permalink | Comments (0)

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.

June 24, 2022 in Education, Theory | Permalink | Comments (0)

Thursday, June 23, 2022

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.”

June 23, 2022 in Education, Legal History, Legislation, Sports | Permalink | Comments (0)

Monday, June 20, 2022

Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman's Reflections as a Law Professor

Angelique Eaglewoman, Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman’s Reflections as a Law Professor, 51 Southwestern U. L. Rev. (2022)

This Essay is a reflection from my perspective as a Dakota woman law professor on my fifth law school faculty. In the illuminating work of Meera Deo, light is shone on the experience of women of color legal academics. "Unequal Profession: Race and Gender in Legal Academia" is a book that should be required reading at every law school. As women of color are faculty members in every law school in the United States, the research, analysis, and recommendations tailored to the experience of women of color law faculty should be a priority topic in those same law schools. As a Native American woman law professor, my experience and journey in legal academia resonate with many of the topics in this important work.

In Part I of this Essay, the necessity of trailblazing is discussed due to the lack of Native American women in the legal academy. Issues around visibility, ethnic fraud, and tribal sovereignty will be discussed. Part II will explore the challenges identified in "Unequal Profession" through a raceXgender framework and provide a personal perspective on dealing with such challenges. The themes of invisibility and lack of respect experienced as a Native American woman law professor will be discussed. The final section in Part III will provide insight into the motivation to stay the course and continue to make space in legal academia. In living a purposeful life, there is a choice to be a law professor as a Native woman with the goal of holding the door open for more Native American faculty, law students, and legal administrators to walk through.

June 20, 2022 in Education, Law schools, Religion, Women lawyers | Permalink | Comments (0)

Friday, June 17, 2022

Fourth Circuit En Banc Holds Charter School's Dress Code of Skirts for Girls is Gender Discrimination under Equal Protection and Maybe Title IX

Peltier v. Charter Day School, No. 20-1001 (4th Cir. June 14, 2022)

Charter Day School (CDS),1 a public charter school in North Carolina, requires female students to wear skirts to school based on the view that girls are “fragile vessels” deserving of “gentle” treatment by boys (the skirts requirement). The plaintiffs argue that this sex-based classification grounded on gender stereotypes violates the Equal Protection Clause of the Fourteenth Amendment, and subjects them to discrimination and denial of the full benefits of their education in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX).

 

In response, despite CDS’ status as a public school under North Carolina law, CDS and its management company disavow accountability under the Equal Protection Clause by maintaining that they are not state actors. These entities also assert that Title IX, the federal statute designed to root out gender discrimination in schools, categorially does not apply to dress codes.

 

Upon our review, we affirm the district court’s entry of summary judgment for the plaintiffs on their Equal Protection claim against CDS, and the court’s judgment in favor of the management company on that claim. We also vacate the court’s summary judgment award in favor of all defendants on the plaintiffs’ Title IX claim and remand for further proceedings on that claim.***

 

As part of this educational philosophy [traditional education as it was 50 years ago], CDS has implemented a dress code to “instill discipline and keep order” among students. Among other requirements, all students must wear a unisex polo shirt and closed-toe shoes; “[e]xcessive or radical haircuts and colors” are prohibited; and boys are forbidden from wearing jewelry. Female students are required to wear a “skirt,” “jumper,” or “skort.” In contrast, boys must wear shorts or pants. All students are required to comply with the dress code unless they have physical education class, when they wear unisex physical education uniforms, or an exception is made for a field trip or other special event. A student’s failure to comply with the dress code requirements may result in disciplinary action, including notification of the student’s parent, removal from class to comply with the dress code, or expulsion, though no student has been expelled for violating the dress code.

 

In 2015, plaintiff Bonnie Peltier, the mother of a female kindergarten student at CDS, informed Mitchell that she objected to the skirts requirement. Mitchell responded to Peltier in support of the policy, stating: "The Trustees, parents, and other community supporters were determined to preserve chivalry and respect among young women and men in this school of choice. For example, young men were to hold the door open for the young  ladies and to carry an umbrella, should it be needed. Ma’am and sir were to be the preferred forms of address." There was felt to be a need to restore, and then preserve, traditional regard for peers. Mitchell later elaborated that chivalry is “a code of conduct where women are treated, they’re regarded as a fragile vessel that men are supposed to take care of and honor.” Mitchell further explained that, in implementing the skirts requirement, CDS sought to “treat[] [girls] courteously and more gently than boys.”

 

In support of their summary judgment motion, the plaintiffs submitted evidence of the tangible and intangible harms they suffer based on the skirts requirement. One plaintiff testified that the skirts requirement conveys the school’s view that girls “simply weren’t worth as much as boys,” and that “girls are not in fact equal to boys.” Another plaintiff stated that the skirts requirement “sends the message that girls should be less active than boys and that they are more delicate than boys,” with the result that boys “feel empowered” and “in a position of power over girls.”

 

The plaintiffs also described the impact of the skirts requirement on their ability to participate in school activities. On one occasion, when a first-grade female student wore shorts to school due to a misunderstanding of the dress code, she was removed from class and was required to spend the day in the school’s office. The plaintiffs also explained that they avoid numerous physical activities, including climbing, using the swings, and playing soccer, except for days on which they are permitted to wear their unisex physical education uniforms. The plaintiffs further testified that they cannot participate comfortably in school emergency drills that require students to crawl and kneel on the floor, fearing that boys will tease them or look up their skirts. Both parties presented evidence from expert witnesses regarding the effects that the skirts requirement and gender stereotypes have on female students.

See also In "Skirts Only" Case, 4th Circuit Says Innovation Great, Inequality Ain't, Reuters

Deep in the thicket of a new en banc decision from 4th U.S. Circuit Court of Appeals on the constitutionality of a charter school’s “skirts-only” dress code for girls, there’s a nuanced legal debate about whether public charter schools can be sued under the Equal Protection Clause of the 14th Amendment.

 

In a 10-6 decision in Peltier v. Charter Day School Inc, the 4th Circuit majority determined that under North Carolina’s statutory framework for public charter schools, the schools are state actors — and therefore bound by the Equal Protection Clause — when it comes to setting and enforcing educational policies. The judges in the majority found that Charter Day School’s dress code, which requires girls to wear skirts, skorts or dresses, is unconstitutional because it serves no educational purpose but was adopted, according to statements from school officials, to telegraph the message that girls are “fragile vessels” who require boys' protection, rather than equal treatment.

 

That message “blatantly perpetuates harmful gender stereotypes ... with potentially devastating consequences for young girls,” wrote Judge Barbara Keenan for the majority. “If CDS wishes to continue engaging in this discriminatory practice, CDS must do so as a private school without the sanction of the state or this court.”

 

But six 4th Circuit judges said it's not at all clear that the Charter Day School is a state actor. In particular, wrote Judge Marvin Quattlebaum in the court's primary dissent, there's a strong argument that North Carolina did not compel Charter Day to adopt its dress code, so the policy cannot be considered a state action

 

June 17, 2022 in Constitutional, Education, Gender | Permalink | Comments (0)

Thursday, June 9, 2022

Ohio House Passes "Save Women's Sports Act" Bill to Prohibit Transgender Female Athletes in School Sports and Includes Verification Process of Genital Inspection

Ohio GOP Passes Bill Aiming to Root Out "Suspected" Transgender Female Athletes Through Genital Inspection

House Republican lawmakers in Ohio passed a bill at 11:15 p.m. Wednesday night that would ban transgender girls and women from participating in high school and college athletics. It also comes with a "verification process" of checking the genitals of those "accused" of being trans.

 

The 'Save Women's Sports Act,' or House Bill 61, wasn't supposed to be on the schedule for legislators originally. However, at the last minute, Republican representatives added the language to a completely different bill.

 

H.B. 151 would revise Ohio’s Teacher Residency Program, trying to reduce state control in schools. The bill, sponsored by Republican state Rep. Don Jones, from Freeport, got a surprise addition.

Powell's Save Women's Sports Act Passed by Ohio House

State Rep. Jena Powell’s (R-Arcanum) Save Women’s Sports Act was approved by the Ohio House on Wednesday. The legislation would prohibit biological males from competing in female-only sports within the state. Powell spoke to the legislation’s passage on the House Floor.

 

“The Save Women’s Sports Act is a fairness issue for women. Across our country, female athletes are currently losing championships, scholarship opportunities, medals, education and training opportunities, and more to discriminatory policies that allow biological males to compete in girls’ sports,” said Powell.

 

Powell’s Save Women’s Sports Act, which passed as an amendment to House Bill 151, would ensure that no school, interscholastic conference, or organization that regulates interscholastic athletics can allow biological males to compete in women’s sports. 

 

“All these girls ask for is a fair shot, and to be given the chance to play and win by the rules in the sports that they love. The opportunity is being ripped from them by biological males,” Powell added

June 9, 2022 in Education, Legislation, LGBT, Sports | Permalink | Comments (0)

Monday, May 9, 2022

N.J. Bill Proposes Remote School Accommodations for Students with Menstrual Disorders

The New Jersey Assembly has proposed a bill allowing students experiencing a menstrual disorder to attend school remotely.  The summary of the bill explains how the bill works and why it is important: 

This bill permits a student enrolled in a school district to attend school through virtual or remote means while experiencing symptoms of a menstrual disorder. The student's parent or guardian will submit a written request for accommodation no later than the start of the school day the accommodation is required.  Under the bill, menstrual disorders include, but are not limited to, dysmenorrhea, endometriosis, menorrhea, and polycystic ovarian syndrome.

 

     A parent or guardian will provide medical documentation, as required by the principal of the school in which the student is enrolled, to prove the student meets the requirements for virtual or remote instruction related to menstrual disorders.  Under the bill, a day of virtual or remote instruction will be considered the equivalent of a full day of school attendance for the purposes of meeting State and local graduation requirements or the awarding of course credit.

 

     Also under the bill, the Commissioner of Education, in consultation with the Commissioner of Health, will provide school districts with criteria for defining an excused absence from school related to a menstrual disorder.

 

     Menstrual disorders, and the pain and discomfort associated with them, are often cited as the reason menstruating students miss school days.  Menstrual disorders are also fairly common; one in five menstruating students experience menorrhagia, and nearly 70 percent of menstruating students experience dysmenorrhea.  Students who attend class while experiencing a menstrual disorder often report classroom performance or concentration being negatively affected.  Additionally, nearly one third of students who menstruate report missing at least one day of school while experiencing menstruation.

May 9, 2022 in Education, Legislation, Reproductive Rights | Permalink | Comments (0)

Thursday, April 7, 2022

New Title IX Rules Proposed to Include Transgender Students

New Title IX Rules Set to Assert Rights of Transgender Students

Discrimination against transgender students would be a violation of federal civil rights law under proposed regulations the Education Department is expected to finalize in the coming weeks.

 

Title IX bars discrimination on the basis of sex in education, and the new rules would make clear this includes discrimination based on sexual orientation and gender identity, among other things, according to two people familiar with a draft of the proposed regulation who spoke on the condition of anonymity because they were not authorized to publicly comment on the subject.

 

Regulations carry the power of law. The rules, if finalized, would set up a clash with state laws that bar transgender women from competing in women’s sports. Those statutes are already being challenged in the courts.

 
A spokeswoman for the Education Department declined to comment on what will be in the proposed regulation, which the administration has said it expects to publish in April.
 

The draft text of the regulation included this key sentence, according to the people familiar with it: “Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.”

 

The regulations would also rewrite, for the third time in three administrations, complex rules for universities and K-12 schools in adjudicating allegations of sexual harassment and assault. The Trump administration’s version included more due process rights for the accused, and the new version is expected to be friendlier to those leveling the accusations.

April 7, 2022 in Education, LGBT | Permalink | Comments (0)

Thursday, March 17, 2022

Why March is National Women's History Month

Why March is National Women's History Month

Local Celebrations

As recently as the 1970s, women’s history was virtually an unknown topic in the K-12 curriculum or in general public consciousness. To address this situation, the Education Task Force of the Sonoma County (California) Commission on the Status of Women initiated a “Women’s History Week” celebration for 1978.

 

The week March 8th, International Women’s Day, was chosen as the focal point of the observance. The local Women’s History Week activities met with enthusiastic response, and dozens of schools planned special programs for Women’s History Week. Over one-hundred community women participated by doing special presentations in classrooms throughout the country and an annual “Real Woman” Essay Contest drew hundreds of entries. The finale for the week was a celebratory parade and program held in the center of downtown Santa Rosa, California.

 

Mobilizing a Movement

In 1979, Molly Murphy MacGregor, a member of our group, was invited to participate in The Women’s History Institute at Sarah Lawrence College, which was chaired by noted historian, Gerda Lerner and attended by the national leaders of organizations for women and girls. When the participants learned about the success of the Sonoma County’s Women’s History Week celebration, they decided to initiate similar celebrations within their own organizations, communities, and school districts. They also agreed to support an effort to secure a “National Women’s History Week.”

 

Presidential and Congressional Support

The first steps toward success came in February 1980 when President Carter issued the first Presidential Proclamation declaring the Week of March 8th 1980 as National Women’s History Week. In the same year, Representative Barbara Mikulski, who at the time was in the House of Representatives, and Senator Orrin Hatch co-sponsored a Congressional Resolution for National Women’s History Week 1981. This co-sponsorship demonstrated the wide-ranging political support for recognizing, honoring, and celebrating the achievements of American women.

 

A National Lobbying Effort

As word spread rapidly across the nation, state departments of education encouraged celebrations of National Women’s History Week as an effective means to achieving equity goals within classrooms. Maryland, Pennsylvania, New York, Oregon, Alaska, and other states developed and distributed curriculum materials for all of their public schools. Organizations sponsored essay contests and other special programs in their local areas. Within a few years, thousands of schools and communities were celebrating National Women’s History Week, supported and encouraged by resolutions from governors, city councils, school boards, and the U.S. Congress.

 

Each year, the dates of National Women’s History Week, (the week of March 8th) changed and every year a new lobbying effort was needed. Yearly, a national effort that included thousands of individuals and hundreds of educational and women’s organizations was spearheaded by the National Women’s History Alliance.

 

National Women’s History Month

By 1986, 14 states had already declared March as Women’s History Month. This momentum and state-by-state action was used as the rational to lobby Congress to declare the entire month of March 1987 as National Women’s History Month. In 1987, Congress declared March as National Women’s History Month in perpetuity. A special Presidential Proclamation is issued every year which honors the extraordinary achievements of American women.

 

Presidential Message 1980

President Jimmy Carter’s Message to the nation designating March 2-8, 1980 as National Women’s History Week.

From the first settlers who came to our shores, from the first American Indian families who befriended them, men and women have worked together to build this nation. Too often the women were unsung and sometimes their contributions went unnoticed. But the achievements, leadership, courage, strength and love of the women who built America was as vital as that of the men whose names we know so well.

 

As Dr. Gerda Lerner has noted, “Women’s History is Women’s Right.” – It is an essential and indispensable heritage from which we can draw pride, comfort, courage, and long-range vision.”

 

I ask my fellow Americans to recognize this heritage with appropriate activities during National Women’s History Week, March 2-8, 1980.

 

I urge libraries, schools, and community organizations to focus their observances on the leaders who struggled for equality – – Susan B. Anthony, Sojourner Truth, Lucy Stone, Lucretia Mott, Elizabeth Cady Stanton, Harriet Tubman, and Alice Paul. Understanding the true history of our country will help us to comprehend the need for full equality under the law for all our people.

This goal can be achieved by ratifying the 27th Amendment to the United States Constitution, which states that “Equality of Rights under the Law shall not be denied or abridged by the United States or by any state on account of sex.”

Women's History Month: How It Started, Why we Celebrate

March 17, 2022 in Education, Pop Culture | Permalink | Comments (0)

Professor Awarded $3 Million in Sex Discrimination Case for Denial of Tenure Due to Pregnancy

UT Austin Must Pay Professor $3 Million in Sex Discrimination Case

The University of Texas at Austin must pay an engineering professor denied tenure $3 million, because it would have promoted her in 2019 if she hadn’t been a woman, and pregnant, a federal jury in Texas decided.

 

The assistant professor, Evdokia Nikolova, was awarded $1 million for past pain and suffering in the gender- and pregnancy-discrimination case and $2 million in future damages, plus $50,000 in back pay and benefits.

 

Nikolova is still employed by UT Austin as an assistant professor in the department of electrical and computer engineering. Her lawyer, Bob Schmidt, declined to say whether she’s still seeking tenure, citing the university’s right to appeal the verdict. Awarding Nikolova tenure was beyond the jury’s purview, he said.

 

Above all, Schmidt said he hopes the jury’s decision restores Nikolova’s reputation as a scholar after it was so damaged by the illegal tenure denial.

 

“The jury heard five days of compelling evidence from lots of witnesses, looked at hundreds of exhibits and documents,” he said. “But the No. 1 thing is how qualified Dr. Nikolova was, and how clearly she met the standards for tenure at UT.”***

 

Peter Glick, Henry Merritt Wriston Professor in the Social Sciences at Lawrence University, who studies overcoming biases and stereotyping, served as an expert witness for Nikolova during the trial. He said in an interview that there’s a tension between notions of the ideal worker and the ideal mother, and that fields in which workers are perceived to be especially devoted to what they do—think academic science—may be especially punitive for mothers. (On the flip side, he added, men have been shown to gain favor in the workplace when they become fathers, since notions of the ideal worker and the ideal father don’t clash like they do for mothers, as men are idealized as primary providers instead of primary caregivers.) And while much research on gender bias in the workplace examines hiring practices, Glick said, the literature as a whole suggests that bias against women is much more “robust”—meaning worse—when it comes to how institutions promote and reward workers than in hiring.

March 17, 2022 in Education, Equal Employment | Permalink | Comments (0)

Monday, March 14, 2022

Kinda Abdus-Saboor on "Lessons From Pandemic Pedagogy: Humanizing Law School Teaching to Create Equity and Evenness"

Kinda L. Abdus-Saboor has published Lessons from Pandemic Pedagogy: Humanizing Law School Teaching to Create Equity and Evenness in volume 69 of the Journal of Legal Education. The article concludes: 

This year has been rich with chaos and uncertainty. And yet, amid all of the chaos emerged the opportunity for a long-overdue shift in the law school classroom. The pandemic brought the discriminatory impact of law school policies to the forefront. It inspired dialogue about students’ challenges at home and raised concerns about students’ well-being. Essentially, it seems, the pandemic infused a humanistic, subjective undertone into an environment that is known for its thrashing, stoic, and unbothered overtones. Evenness and equity became a part of the lesson plan as we strive to embody the values of the often-misconstrued millennial worldview: a sense of entitlement to a better now and a better future with a gratitude for the progress that has been made thus far.

 

Through this evolving remote “pandemic pedagogy,” law schools around the country began to move toward equitable spaces in which the context of students’ learning mattered. While there are many aspects of the pandemic that we are in a hurry to leave behind, this redirection from tradition to equity should not be one of them. For if we always do what we have always done, then we will always be what we have always been. The legal profession has long been a white, male-dominated space. It is safe to say that it is about time to break the mold.

The essay is a thoughtful and reflective read. My favorite sentence from the essay is a simple, yet poignant, reminder that "we are not teaching things, we are teaching people." 

March 14, 2022 in Education, Law schools | Permalink | Comments (0)

Wednesday, March 9, 2022

Florida Passes "Don't Say Gay" Law Limiting Teachers in Elementary Schools from Instructing on Sexual Orientation and Gender Identity Topics

The text of the Florida so-called "Don't Say Gay" law is here.

Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.

 

It authorizes a parent to: "Bring an action against the school district to obtain a declaratory judgment that the school district procedure or practice violates this paragraph and seek injunctive relief. A court may award damages and shall award reasonable attorney fees and court costs to a parent who receives declaratory or injunctive relief."

Discussion of the new law is here:

Wash Post, Florida Legislature Passes Bill to Restrict LGBTQ Topics in Elementary School 

 

Florida Approves Controversial "Don't Say Gay" Law in Political Win for DeSantis

March 9, 2022 in Education, Legislation, LGBT | Permalink | Comments (0)

Thursday, February 3, 2022

Explaining Justice Ginsburg's Divergence from Strict Scrutiny in her Decision in US v. Virginia

Earl Maltz, The Road to United States v. Virginia: Ruth Bader Ginsburg and the Battle Over Strict Scrutiny, Rutgers Women's Rights L. Reporter (forthcoming)  

Throughout her long career as both a litigator and a member of the Supreme Court, Ruth Bader Ginsburg was a champion of women’s rights who insisted that the Constitution outlawed legal distinctions that were based on sexist stereotypes. However, in one important respect, the arguments that Ginsburg made as a litigator in the 1970s differed significantly from those that were embodied in her signature opinion in United States v. Virginia. During the 1970s, Ginsburg often contended that laws that treated women differently than men should be subject to strict scrutiny because sex discrimination was analogous to race discrimination. By contrast, in Virginia, although she spoke for the Court in holding that women could not be excluded from Virginia Military Institute, her opinion emphasized the differences between distinctions based on race and distinctions based on sex for constitutional purposes. This article is the first to focus on this aspect of Ginsburg’s opinion in Virginia and to provide an explanation for her change in course.

February 3, 2022 in Constitutional, Education, Judges, SCOTUS | Permalink | Comments (0)

Tuesday, February 1, 2022

Hierarchy, Race & Gender in Legal Scholarly Networks

Hierarchy, Race & Gender in Legal Scholarly Networks

Keerthana Nunna - University of Michigan Law School

W. Nicholson Price II - University of Michigan Law School

Jonathan Tietz - University of Michigan Law School

A potent myth of legal academic scholarship is that it is mostly meritocratic and that it is mostly solitary. Reality is more complicated. In this Article, we plumb the networks of knowledge co-production in legal academia by analyzing the star footnotes that appear at the beginning of most law review articles. Acknowledgements paint a rich picture of both the currency of scholarly credit and the relationships among scholars. Building on others’ prior work characterizing the potent impact of hierarchy, race, and gender in legal academia more generally, we examine the patterns of scholarly networks and probe the effects of those factors. The landscape we illustrate is depressingly unsurprising in basic contours but awash in details. Hierarchy, race, and gender all have substantial impacts on who gets acknowledged and how, what networks of knowledge co-production get formed, and who is helped on their path through the legal academic world.

The traditional myth is that legal scholarship is largely meritocratic and largely solitary. Under such a view, what gets you ahead is simply a good idea: a head-turning paper that generates a whirlwind of citations and chatter with its brilliance. Under such a view, demographic considerations like an author’s race, gender, and academic pedigree should matter little in the marketplace of ideas. That myth may comfort those who ended up atop the tower, but it is belied by reality. Hierarchy, race, and gender matter to a legal academic’s success; they matter to the acceptance of her ideas; they matter to her own experience. Against a rich backdrop of theoretical and qualitative work examining these issues, we present here a quantitative study of one way to observe the impact of hierarchy, race, and gender: the acknowledgements sections of law review footnotes, and what they can tell us about legal scholarly networks.

The author footnote—variously known as the star, dagger, biographical, vanity, or bug footnote—gives a peek into who contributed (nominally, at least) to the intellectual product that is the final, published law review article. They provide small, partial portraits of the author’s professional and social networks. Taken in the aggregate, these footnotes give a peek (cloudy, to be sure) into the underlying relationships, interactions, and social networks that make up legal academia. And we can examine that picture for signs of the impact of hierarchy, race, and gender to see whether they show up in a quantitatively observable fashion. (Spoiler alert: they do.)

Here, we examine the star footnotes for nearly 30,000 law review articles published in generalist law journals over about a decade. We probe who acknowledges whom; how school rank matters; and what racial and gender based disparities exist in who gets asked, or who gets credit (it’s hard to tell) for feedback in scholarly papers. Not to hide the ball: we find that authors tend to acknowledge scholars from peer schools, most of all their own school, but also to typically acknowledge folks from somewhat fancier schools. We find that men are acknowledged more than women and nonbinary scholars, and white scholars more than scholars of color. We examine intersectional effects, which are complex; read on to find out more. One bright spot here: networks of scholars of color appear to be particularly robust.

 

February 1, 2022 in Education, Gender, Law schools, Race, Scholarship | Permalink | Comments (0)

Monday, December 27, 2021

Hair Rules: Race, Gender, and Stigmatization in Schools

Patricia A. Banks has published Hair Rules: Race, Gender, and Stigmatization in Schools in Volume 25 of the University of Pennsylvania Journal of Law and Social Change. The abstract summarizes: 

As laws banning racial hair discrimination in schools are proposed across the United States, it is increasingly important to understand how grooming policies can stigmatize students. This essay engages social science theory and research on stigmatization and the case of Arnold v. Barbers Hill Independent School District to investigate the cultural constructions of male students who wear long locs. Drawing on content analysis of court documents around this Texas lawsuit involving two black male cousins who were disciplined in school because of refusing to cut their locs, I examine how school officials justified the school district’s hair rules through associating the defendants’ hairstyle with a range of stigmatizing attributes. The conclusion considers the potential for this court case, as well as hair discrimination legislation, to mitigate the stigmatization of boys who wear long locs, long braids, and long twists. I argue that to fully address the stigmatization of boys who wear these styles, laws and policies must be attentive to race as well as gender.

December 27, 2021 in Constitutional, Education, Gender, Race | Permalink | Comments (0)

Monday, December 20, 2021

Legal Education's Curricular Tipping Point Toward Inclusive Socratic Teaching

As we design our Spring syllabi, I am excited to share my own recent publication that came out this month in volume 48 of the Hofstra Law Review titled, Legal Education's Curricular Tipping Point Toward Inclusive Socratic Teaching. The article draws heavily on the work of feminist and critical pedagogies. The abstracts explains: 

Two seismic curricular disruptions create a tipping point for legal education to reform and transform. COVID-19 abruptly disrupted the delivery of legal education. It aligned with a tectonic racial justice reckoning, as more professors and institutions reconsidered their content and classroom cultures, allying with faculty of color who had long confronted these issues actively. The frenzy of these dual disruptions starkly contrasts with the steady drumbeat of critical legal scholars advocating for decades to reduce hierarchies and inequalities in legal education pedagogy.

This context presents a tipping point supporting two pedagogical reforms that leverage this unique moment. First, it is time to abandon the presumptive reverence and implicit immunity given to problematic Socratic teaching despite the harms and inadequacies of such performances. Professor Kingsfield depicted an archetype of Socratic teaching where the professor wields power over students instead of wielding knowledge to empower students. He used strategic tools of humiliation, degradation, mockery, fear, and shame. Socratic performances that are professor-centered and power-centered do not merit the reverence and immunity they still receive after decades of sound critiques. This critique is framed as a call to “cancel Kingsfield.” Socratic teaching can (must) be performed inclusively. This Article proposes a set of shared Socratic values that are student-centered, skills-centered, client-centered, and community-centered.

Second, this Article proposes refining law school accreditation standards to ensure that students achieve learning outcomes equitably in inclusive classrooms. Accreditation reforms cannot happen around the architectural perimeter of legal education. Nor can reforms be implemented solely in episodic siloes by staff, external speakers, or even robust seminar courses. Rather, accreditation standards need to hold institutions accountable to measuring learning outcomes and addressing identified disparities and inadequacies in the curricular core of legal education.

December 20, 2021 in Education, Theory | Permalink | Comments (0)

Wednesday, December 15, 2021

AALS Women in Legal Education Section Programming at 2022 Annual Meeting

From the WILE Newsletter h/t Susan Bisom-Rapp and Victoria Haneman.

WILE ANNUAL MEETING SCHEDULE AT A GLANCE (virtual conference)

◆ Wednesday, January 5, 12:35 - 1:50 pm Eastern: AALS Awards Ceremony (the inaugural Deborah L. Rhode Award will be presented to Professors Stacy Butler and Wendy Greene)

◆ Wednesday, January 5, 2:00 - 3:00 pm Eastern: WILE Networking Session

◆ Wednesday, January 5, 3:10 - 4:25 pm Eastern: Open Source Program on the Impact of Deborah Rhode (planned by Section on WILE, the Section on Professional Responsibility, Section on Pro Bono, Section on Leadership)

◆ Wednesday, January 5, 4:45 pm - 6:00 pm Eastern: WILE Works-in-Progress: Other Voices in Feminist Legal Theory

◆ Thursday, January 6, 12:35 - 1:50 pm Eastern: WILE Primary Program - Equality, Intersectionality, and Status in the Legal Academy

◆ Thursday, January 6, 2:00 - 3:00 pm Eastern: WILE Award Ceremony (the Ruth Bader Ginsburg Lifetime Achievement Award will be presented to LSAC Deputy for Legal and Global Higher Education Camille deJorna)

◆ Friday, January 7, 4:45 - 6:00 pm Eastern: Introducing and Supporting Intersectionality in Pedagogy

 

WILE kicks off the 2022 Annual Meeting at the AALS Awards Ceremony (Wednesday, January 5, 12:35 – 1:50 pm Eastern) during which the inaugural Deborah L. Rhode Award will be presented to Professors Stacy Butler (Arizona) and Wendy Greene (Drexel). The award, created by WILE and the Sections on Leadership, Professional Responsibility, and Pro Bono & Public Service, honors the contributions, service, and leadership of the late Deborah Rhode by recognizing new trailblazers in legal education and the legal profession. Professor Butler is being honored for founding and directing Innovation for Justice (i4J), a social justice-focused innovation lab. Professor Greene is being recognized for her scholarship, activism, and law reform work aimed at prohibiting race-based natural hair discrimination. I am grateful for the hard work of the award selection committee: Interim Dean Douglas Blaze (Tennessee), Professor Renee Knake Jefferson (Houston), Assistant Director Nadine Mompremier (Columbia), and Associate Dean Adrien Wing (Iowa).

Our second event is the WILE Section Networking Session (Wednesday, January 5, 2:00 – 3:00 pm Eastern), which will afford our members a chance to meet and learn in a more informal format. Thanks to WILE Secretary Victoria Haneman (Creighton) and Executive Committee member Milena Sterio (Cleveland-Marshall) for moderating that session. I encourage you all to attend this valuable session.

Following that session will be the Open Source Program – The Impact of Deborah Rhode (Wednesday, January 5, 3:10 – 4:25 pm Eastern) (Co-Sponsored by the Sections on Leadership, Professional Responsibility, Pro Bono & Public Service Opportunities, and WILE). A distinguished panel representing Deborah Rhode’s diverse interests has been assembled to reflect on her legacy and its impact on future projects and initiatives. The panelists are Professor Ben Barton (Tennessee), Dean Garry Jenkins (Minnesota), former Assistant Dean Tom Schoenherr (Fordham), and Associate Dean Adrien Wing (Iowa). Topics include Deborah Rhode’s impact on women and diversity in legal education, legal ethics, the imperative of pro bono within the legal academy and the profession, and leadership. Thanks to Lucy Ricca (Stanford), who is the Policy and Program Director at the Stanford Center on the Legal Profession, for expertly organizing and serving as moderator for the Open Source Program. Chair Elect Lisa Mazzie (Marquette) served on a multi-Section subcommittee, which selected the program’s speakers.

Our fourth program at the Annual Meeting is the WILE Works-in-Progress Session – Other Voices in Feminist Legal Theory (Wednesday, January 5, 4:45 – 6:00 pm Eastern). This program, based on a call for papers, focuses on the views of scholars whose work marks them as feminist legal theorists even if they have not traditionally been labeled as such. The scholars presenting work are: Noa Ben-Asher (Pace), Gender Identity, The New Legal Sex; Kim D. Ricardo (UIC), Comparative Study of Abortion Laws in Argentina and the United States; and Anna Offit (SMU), Benevolent Exclusion. Professor Bridget Crawford (Pace) is our discussant. The session moderator is Dean Lolita Buckner Inniss (Colorado). The session was organized by Dean Inniss (Colorado), Rachel Croskery-Roberts (UCI), Catherine Hardee (California Western), Fernanda Nicola (American), and Nancy Soonpaa (Texas Tech)

The following day, WILE hosts its primary program, Equality, Intersectionality, and Status in the Legal Academy (Thursday, January 6, 12:35 – 1:50 pm Eastern)(Co-Sponsored by the Section on Minority Groups, and the Section on Sexual Orientation and Gender Identity Issues). Based on a call for papers, this session will explore visible and invisible status distinctions in the legal academy, how people of color and women are affected by them, and whether various solutions can improve equality. Scholars presenting work are Angela Mae Kupenda (Mississippi College), Killing Me Softly with His Song, and Options toward Professing the Truth; Rachel Lopez (Drexel), Untitled: The Power of Designation in the Legal Academy; Shefali Milczarek-Desai & Sylvia Lett (Arizona), Flipping the Script: Two BIPOC Law Professors Embrace and Enunciate Difference to Further Equality in the Legal Academy; and Melissa Weresh (Drake), Hierarchy Maintained: Gender Inequity in the Legal Academy. As WILE Section Chair, Susan Bison-Rapp will moderate the session. The session was organized by WILE Chair Elect Lisa Mazzie (Marquette) along with Executive Committee members Naomi Cahn (Virginia), Rachel Croskery-Roberts (UCI), Rona Kaufman (Duquesne), Ashley London (Duquesne), Linda McClain (Boston), Nancy Soonpaa (Texas Tech), and Milena Sterio (Cleveland-Marshall).

Following immediately after the WILE primary program, the Section will host its Annual Ruth Bader Ginsburg Lifetime Achievement Award Ceremony (Thursday, January 6, 2:00 – 3:00 pm Eastern). Since 2013, WILE has given out a lifetime achievement award to an individual who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and providing opportunities to others. Our 2022 recipient is Camille deJorna, who serves as Deputy for Legal and Global Higher Education at the Law School Admissions Council (LSAC). Before that post, she served in a top role in the ABA’s Section of Legal Education and Admissions to the Bar and oversaw the admissions and student affairs offices at several law schools, including Columbia, Hofstra, and the University of Iowa. She was selected by the WILE Executive Committee for her pathbreaking work on diversity and inclusion in the legal academy and profession. Special thanks to Dean Lolita Buckner Inniss (Colorado) for managing the nomination process and to Dean Tamara Lawson (St. Thomas) for providing the beautiful plaque for the occasion.


The Section’s seventh and final program is a session on pedagogy titled Introducing and Supporting Intersectionality in Pedagogy (Friday, January 7, 4:45 – 6:00 pm Eastern). Discussions related to gender, race, class, sexual orientation, age, immigration, and/or disability visibly shape the law and richly impact classroom outcomes. The goal of this session is to consider new pedagogical tools and ideas both for incorporating intersectional feminism into the law school classroom, and for exploring these ideas with faculty colleagues who may be resistant. Speakers include Jamie Abrams (Louisville), Bridget
Crawford (Pace), Teri McMurtry-Chubb (John Marshall), and Kathryn Stanchi (UNLV). Serving as commentators are Dean Angela Onwuachi-Willig (Boston) and Dean Sean Scott (California Western). WILE Secretary Victoria Haneman (Creighton) will moderate. Assisting Victoria Haneman (Creighton) in organizing the session were Executive Committee members Jill Engle (Penn State Law), Catherine Hardee (California Western), Fernanda Nicola (American), and Kerri Stone (Florida International).

 

December 15, 2021 in Conferences, Education, Law schools, Scholarship | Permalink | Comments (0)

Tuesday, December 7, 2021

Florida law school creates Ben Crump social justice center with goal of increasing racial and gender diversity in the profession

Florida law school creates Ben Crump social justice center

A South Florida law school on Thursday announced the creation of a social justice center named after Ben Crump, the Black civil rights attorney who has gained national prominence representing victims of police brutality and vigilante violence.

The Benjamin L. Crump Center for Social Justice, housed at the St. Thomas University College of Law in Miami Gardens, aims to nurture the next generation of civil rights lawyers while also pushing more racial and gender diversity in the legal profession, school officials told The Associated Press ahead of the announcement.

. . .

As a past president of the National Bar Association, the largest network of predominantly Black attorneys and judges, Crump said civil rights and social justice lawyering isn't seen as a lucrative area of practice for aspiring attorneys. He said he hopes that lending his name to the center inspires law school students to consider social justice as a worthy, career-long pursuit.

December 7, 2021 in Education, Gender, Law schools, Race | Permalink | Comments (0)

Thursday, November 11, 2021

Veterans Day from a Gender & Law Perspective: Equality, Discrimination, Preferences, Family, Health, Assault, and the Draft

Here is an overview of some of the scholarship and current legal movements regarding gender, veterans, and the miltiary:

The Supreme Court's classic case upholding veterans' preferences despite their disparate impact against women. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).

United States v. Virginia (VMI), 518 U.S. 515 (1996) (Ginsburg, J.) (requiring state male-only military college to admit women equally to VMI)

US v. Briggs,  592 U.S. ___ (Dec. 10, 2020) (holding that military rape cases have no statute of limitations)

Gender & the Law Prof BlogSCOTUS Refuses to Hear Challenge to Male-Only Draft but 3 Justices Dissent (June 15, 2021)

Gender & the Law Prof Blog, Federal Judge Holds Male-Only Military Draft Violates Equal Protection (Feb. 26, 2019)

Gender & the Law Prof Blog, 9th Circuit Hears Challenge to Men Only Draft

Gender & the Law Prof Blog, Senate Overwhelming Votes to Require Women to Register for Draft (2016)

Gender & the Law Prof Blog, Justice Ginsburg's Legacy and the Draft Case

EEOC, Policy Guidance on Veterans' Preferences Under Title VII

Jamie Abrams, editor at the Gender & Law Prof blog, Examining Entrenched Masculinities Within the Republican Government Tradition,  114 West Va. L. Rev. (2011). 

Jamie Abrams & Nickole Durbin, Citizen Soldiers and the Foundational Fusion of Masculinity, Citizenship, and Military Service, 11 ConLawNOW 93 (2021). 

Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L.Rev. 1 (2008).

Melissa Murray, Made With Men in Mind: The GI Bill and the Reinforcement of Gendered Work After World War II, in Feminist Legal History (Tracy Thomas & Tracey Jean Boisseau eds. 2012).

Congress' Deborah Sampson Act Signed Into Law (2021):  to improve the benefits and services provided by the Department of Veterans Affairs to women veterans, and for other purposes.

H.R. 2982, Women Veterans Health Care Accountability Act: To direct the Secretary of Veterans Affairs to conduct a study of the barriers for women veterans to health care from the Department of Veterans Affairs.

Gender & the Law Prof Blog, How to Reduce Discrimination in Veterans' Preferences Laws, featuring Craig Westergard, Questioning the Sacrosanct: How to Reduce Discrimination and Inefficiency in Veterans' Preference Law, 19 Seattle Journal for Social Justice 39 (2020)

Gender & the Law Prof Blog, Bills Introduced in Congress to Allow Professional Licenses of One State to be Valid in State to Which Military Spouse is Relocated  

Gender & the Law Prof Blog, Parental Right Issues in Military Academies Disproportionately Harms Women 

Gender & the Law Prof Blog, Study on Military Sexual Assaults Concludes that Rate of Assaults is Lower, Rate of Prosecution Higher, and Victims Report More Often than in Civilian Society (May 2021)

November 11, 2021 in Courts, Education, Equal Employment, Family, Healthcare, Masculinities, Work/life | Permalink | Comments (0)

Wednesday, November 10, 2021

Book "Why Don't Women Rule the World?"

Book, Why Don't Women Rule the World?

Why Don't Women Rule the World?

Why Don't Women Rule the World?: Understanding Women's Civic and Political Choices

FIRST EDITION

 “[Why Don’t Women Rule the World?] is unlike other texts in its comparative approach and strong theoretical underpinnings. It has interesting pedagogical features that will resonate with comparative scholars, Americanists and those who integrate public policy analysis into the course.”
—Rebecca E. Deen, University of Texas at Arlington  

Why don’t women have more influence over the way the world is structured?  

Written by four leaders within the national and international academic caucuses on women and politics, Why Don't Women Rule the World? helps students to understand how the underrepresentation of women manifests within politics, and the impact this has on policy. Grounded in theory with practical, job-related activities, the book offers a thorough introduction to the study of women and politics, and will bolster students’ political interests, ambitions, and efficacy.  

Key Features: 

  • A comparative perspective expands students’ awareness of their own intersectional identities and the varying effects of patriarchy on women worldwide.  
  • A variety of policy areas highlighted throughout the book illustrates how different theories are applied to real-world situations.            
  • Multiple political engagement activities keep students engaged with the content.

November 10, 2021 in Books, Education, Legislation, Pop Culture | Permalink | Comments (0)