Gender and the Law Prof Blog

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

Wednesday, October 21, 2020

Equal Pay Lawsuits by Women Law Professors Allege Significant Continuing Gender Discrimination in Academia

ABA J, Recent Equal Pay Lawsuits by Female Law Professors has Shined a Light on Academic Compensation Process 

*** 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.”

‘Institutional misogyny’

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

October 21, 2020 in Education, Equal Employment, Law schools, Workplace | Permalink | Comments (0)

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.

October 16, 2020 in Education, Legislation, Violence Against Women | Permalink | Comments (0)

Tuesday, October 13, 2020

Conference-- Title IX, MeToo and Administrative Law: Responding to Backlash and Looking to the Future

Title IX, MeToo, & Administrative Law: Responding to Backlash & Looking to the Future
 
 
 
Welcome & Panel One (8:00-9:50am PT): “Due Process” Narratives, Standards of Evidence, & Other Backlash Controversies, 2014-2016

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

October 13, 2020 in Conferences, Education | Permalink | Comments (0)

Tuesday, September 29, 2020

Exploring the Legal Divide Between Pregnancy Discrimination and Reproductive Rights under Title IX

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.

September 29, 2020 in Education, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Books: Sexual Citizens: A Landmark Study of the Social Roots of Campus Sexual Assault

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.

September 29, 2020 in Books, Education, Theory, Violence Against Women | Permalink | Comments (0)

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."  

September 28, 2020 in Education, Gender, Race | Permalink | Comments (0)

Tuesday, September 15, 2020

Eleventh Circuit Holds that Title IX Protects Transgender Students

Federal Appeals Court: Title IX Protects Transgender Students

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

September 15, 2020 in Education, Gender, LGBT | Permalink | Comments (0)

Thursday, June 4, 2020

Best Practices for University Faculty on Gender Equity for People of Color

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”.

June 4, 2020 in Education, Gender, Law schools, Race | Permalink | Comments (0)

Thursday, May 28, 2020

The Legitimacy of Agency Implementation of Title IX

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.

May 28, 2020 in Education | Permalink | Comments (0)

Tuesday, May 26, 2020

New Book: Presumed Incompetent II: Personal Narratives of Race, Class, Power, and Resistance of Women in Academia

Presumed Incompetent II: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

May 26, 2020 in Books, Education, Race, Workplace | Permalink | Comments (0)

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

Betsy DeVos Announces New Rules on Campus Sexual Assault, Offering More Rights to the Accused

Education Secretary Betsy DeVos on Wednesday released a sweeping new directive governing how schools must handle allegations of sexual assault and harassment, giving new rights to the accused and giving colleges a clear but controversial road map to navigating these highly charged investigations.

 

The final regulation bars universities from using a single official to investigate and judge complaints, a popular model, and instead creates a judicial-like process in which the accused has the right to cross-examine accusers and to a live hearing.

 

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.

May 6, 2020 in Education, Violence Against Women | Permalink | Comments (0)

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.

April 17, 2020 in Education, Gender, Manliness, Race | Permalink | Comments (0)

Wednesday, March 18, 2020

Explaining the "Simple" Idea of College Sexual Consent Policies

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.

March 18, 2020 in Education, Pop Culture, Violence Against Women | Permalink | Comments (0)

Wednesday, February 19, 2020

The Dangers of Gendered School Dress Codes to the Institutionalization of Sexual Consent Myths

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.”

February 19, 2020 in Education, Gender, Masculinities, Pop Culture | Permalink | Comments (0)

Monday, February 3, 2020

Re-Affirming the Value of the Sports Exception to Title IX's General Non-Discrimination Rule

Doriane Lambelet Coleman, Michael J. Joyner & Donna Lopiano, "Re-Affirming the Value of the Sports Exception to Title IX’s General Non-Discrimination Rule, Duke J. Gender Law & Policy (forthcoming) 

Title IX expresses society’s commitment to sex equality in educational settings. The structure of the statute’s regulatory scheme makes clear that the goal is sex equality, not sex neutrality. Notwithstanding the general preference for sex neutral measures, the sports exception to Title IX’s general nondiscrimination rule has long been one of the statute’s most popular features. The challenge in the beginning of the Title IX era was to get educational institutions to conceive of and equally to support females as athletes. We continue to fight for equal support, but as Title IX concludes its first semi-centennial, we no longer struggle as we did in the beginning with the basic concept of females as athletes, or of female sport as a high value social good. 

The challenge as we move into Title IX’s second semi-centennial is to get institutions to address the remaining disparities in their treatment of female athletes and female sport at the same time as we enter a new era in which we are being asked to imagine that “female” includes individuals of both sexes so long as they identify as women and girls. This ask reflects the intellectual choice to conceive of sex as a social construct rather than as a fact of biology tied to reproduction, and also the strategic choice of trans rights advocates to work toward law reform that would disallow any distinctions on the basis of sex. The problem is that female sport is by design and for good reasons a reproductive sex classification. These reasons have nothing to do with transphobia and everything to do with the performance gap that emerges from the onset of male puberty. Whether one is trans or not, if one is in sport and cares about sex equality, this physical phenomenon is undeniably relevant. Changing how we define “female” so that it includes individuals of both sexes, and then disallowing any distinctions among them on the basis of sex, is by definition and in effect a rejection of Title IX’s equality goals. Those who push for these changes are committed to sex neutrality, not sex equality.

The goals of this paper are to provide the legal, factual, and normative background necessary to evaluate the merits of this challenge to the sports exception to Title IX’s general nondiscrimination rule, and then to present the case for re-affirming the exception in a form that is appropriate for this next period of its history. It proceeds in three parts: Part I describes the legal history of Title IX’s sports exception, its goals, and the current state of the legal doctrine. Part II explains its scientific basis and rationale. Part III sets out the best case for and against affirming the commitment to sex equality in education-based sport, and then presents our argument for resolving the collision of interests at issue. The paper concludes that the original Title IX commitment to sex equality continues to do important work and should not to be abandoned, including in the sports space where equality requires not only recognizing but also celebrating physical sex differences. Including trans people within this design is difficult by definition, but policymakers should accept the challenge.

February 3, 2020 in Education, Sports | Permalink | Comments (0)

Wednesday, January 29, 2020

VA Passes Bill to Provide Menstrual Products in Schools

Virginia Senate Passes Bill for Schools to Provide Menstrual Products

The Virginia Senate unanimously passed a bill Tuesday requiring public schools to include free menstrual products in their bathrooms. 

 

Senate Bill 232 applies to schools that educate fifth-to-12th graders. According to the Virginia Department of Education, this encompasses 132 school districts and almost over 630,000 female students. 

 

"I would like to see that the supplies are available, just like other supplies that we keep in the bathroom," said Sen. Jennifer Boysko, D-Fairfax, the legislation's chief patron.

 

An earlier version of the bill applied the stipulation to the aforementioned schools where at least 40% of students qualified for free or reduced lunch. 

 

Boysko introduced the bill to make it more convenient for students to access menstrual products and help them avoid accidents.

 

"This is a necessity and girls can't carry out their school day without it," Boysko said. "Some girls are missing school time and end up going home and missing classes because of these kinds of challenges."

 

According to Boysko, school budgets currently cover menstrual product expenses, but they are often kept in the nurse's office, making it inconvenient for students. 

 

January 29, 2020 in Education, Healthcare, Legislation | Permalink | Comments (0)

Tuesday, January 7, 2020

Harms and Remedies for Young Women in the #MeToo Era

Charisa Kiyo Smith, #WhoAmI: Harm & Remedy for Youth of the #MeToo Era, 23 U. Penn. J. Law & Soc. Change (forthcoming)

Legal approaches to sexual and gender-based harms between minors are both ineffective and under-examined. Despite the #MeToo movement, the flashpoint confirmation hearing of Supreme Court Justice Kavanaugh involving alleged high school peer sexual assault, and heightened public awareness, fundamental issues regarding individuals under age 18 remain ignored, over-simplified, or misunderstood. While the fields of children’s rights, family law, and criminal justice consistently wrestle with the continuum of human maturity and capacity in setting legal boundaries and rules, under-theorizing the #MeToo matter for youth will continue to perpetuate harm, toxic masculinity, and complicity in rape culture.

This article bridges the gap between empirical reality and legal response in a crisis that cannot be understated. As many as 81% of students between grades 8 and 11 report experiencing school sexual harassment, and girls ages 16-19 are four times more likely than the general population to be victims of sexual assault. These figures are undoubtedly low as much victimization goes unreported, including among males, LGBTQI populations, communities of color, and adults. Engaging the consciousness of the #MeToo movement — one of newfound courage and tenacity among survivors — this article calls for a paradigm shift while deconstructing, reimagining, and reorganizing the problematic legal landscape regarding sexual and gender-based harms between youth.

This article asserts that status quo responses miss concerns unique to minors and simultaneously over-criminalize, infantilize, and neglect youth. At best, the status quo approach fails to address underlying causes of rape culture and other harms. At worst, it deprives survivors of true remedies and recourse while unfairly branding children with life-long punishment. Sexting among youth is a pervasive habit that presents an archetypal case study. Myriad sexting scenarios can lead to a blunt legal response that fails to recognize the inaccuracy of victim-offender binaries in the digital age.

After critiquing and deconstructing the existing criminal law approach, this article recommends a paradigm shift that more aptly situates the “Me” in #MeToo concerning minors. Creating an informed, interdisciplinary typology of instances of sexual and gender-based harm among youth, this article ultimately proposes a tiered response system defaulting to public health education and harm-reduction, which only resorts to criminal legal intervention in the most severe situations. Although egregious events may require legal redress, a large portion of incidents involve issues beyond the narrow scope of law and impact youth who seek nonlegal or farther-reaching remedies.

January 7, 2020 in Education | Permalink | Comments (0)

Friday, November 1, 2019

The Elusive Goal of Gender Equity in Law School Enrollment

Deborah Jones Merritt & Kyle P. McEntee, Gender Equity in Law School Enrollment: An Elusive Goal, Journal of Legal Education (forthcoming)

Women finally make up more than half of law students nationwide, but that milestone masks significant gender inequities in law school enrollment. Women constitute an even larger percentage of the potential applicant pool: for almost two decades, they have earned more than 57% of all college degrees. As we show in this article, women are less likely than men to apply to law school — or to be admitted if they do apply. Equally troubling, women attend less prestigious law schools than men. The law schools that open the most employment doors for their graduates enroll significantly fewer women than schools with worse job outcomes and weaker access to the legal profession.

We explore here the factors that may contribute to this ongoing gender gap in law school attendance. We also propose several strategies for closing the gap. Enrollment equity alone will not put women on an equal footing with men; a sizable literature probes gender biases that pervade the law school environment. Recognizing and addressing the enrollment gap in legal education, however, is an essential first step toward improving the representation of women throughout the legal profession.

November 1, 2019 in Education, Gender, Law schools | Permalink | Comments (0)

Wednesday, October 23, 2019

Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical Context

Joanna Grossman, The Pregnant Pause: Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical ContextVerdict

Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***

 

Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***

 

In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***

 

At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.

 

October 23, 2019 in Constitutional, Education, Equal Employment, Family, Legal History, Pregnancy, SCOTUS | Permalink | Comments (0)

SororityToo: Using Systems Change Theory to Reform High-Risk Greek Life

Tanya Cooper, #SororityToo, Michigan State L. Rev. (forthcoming)

Sexual violence is an epidemic affecting millions of students, and those who participate in collegiate Greek life are especially vulnerable. As social societies bent on secrecy, Greek life hides violence in its midst. Laws and campus policies when accessed offer little help to victims, and often secondarily traumatize them. Publicized scandals on campus and social media campaigns, however, have raised awareness and sparked public outrage against the widespread problem of sexual violence and high-risk Greek life. Systems change theory offers a useful framework to reform high-risk Greek life from many angles: education, reporting, litigation, and collective action of its system actors. Effective strategies exist to create safer Greek organizations for students but without reform, we will continue to jeopardize the education and health of millions of students.

October 23, 2019 in Education, Violence Against Women | Permalink | Comments (0)