Monday, December 3, 2018
Several national fraternities and sororities sued Harvard University on Monday over a 2016 rule that discourages students from joining single-gender social clubs, marking the first legal challenge to the school's policy.
Two fraternities and two sororities filed a lawsuit in Boston's federal court, while another sorority separately sued the school in Massachusetts state court. Both cases argue that the school's policy discriminates against students based on their sex and spreads negative stereotypes about students who join all-male or all-female organizations.
Starting with last year's freshman class, Harvard students who are members of single-gender clubs are barred from leading campus groups or becoming captains of sports teams. The school also refuses to endorse the students for prestigious fellowships, including the Rhodes and Marshall scholarships.
Harvard officials crafted the rule to curb secretive all-male groups known as "final clubs," whose members include some former U.S. presidents but have faced mounting criticism from the university. A 2016 report by the school accused the clubs of having "deeply misogynistic attitudes" and tied them to problems with sexual assaults.
But the rule also applies to a variety of other groups, including fraternities, sororities and even single-gender musical groups. Since the rule took effect last year, at least three sororities have cut ties with their national organizations and reopened as co-ed groups.
The Cambridge, Massachusetts, university was discriminating against students on the basis of their sex by punishing men and women who join all-male or all female-organizations, the lawsuits alleged.
The policy was motivated by sexism, with Harvard incorrectly seeking to link all-male organizations and fraternities to sexual assaults and contending that single-sex organizations subordinate women, according to the lawsuits.
“Harvard’s sanctions policy seeks to dictate the sex of people with whom men and women may associate and the gender norms to which men and women must conform,” the federal complaint said.
The policy has resulted in the elimination of nearly every women’s social organization, with Harvard administrators privately calling them “collateral damage” in their effort to punish men who join all-male groups, according to the complaint.
Title IX has an express exemption for fraternities and sororities:
Title IX does not apply to the membership practices of a social fraternity or social sorority if the active membership consists primarily of students in attendance at an institution of higher education and the fraternity or sorority is exempt from taxation under the Internal Revenue Code. 20 U.S.C. § 1681(a)(6)(A); 34 C.F.R. § 106.14(a). All other programs and activities of social fraternities and sororities are governed by Title IX if they receive any Federal financial assistance. US Dept of Education, Exemptions from Title IX
Friday, November 9, 2018
Her school, Charter Day School in Leland, North Carolina, prohibits female students from wearing pants or shorts — a policy that an ongoing lawsuit claims is illegal.
Charter Day is hardly the first school to come under fire for a controversial dress code policy, but their skirts-only rule is “definitely an outlier,” Galen Sherwin, an ACLU attorney who is involved in the case, told TODAY Style.
“This is definitely an extreme case,” she said. “Certainly none of the schools in the local area have a similar requirement, including the Catholic schools.”
Tuesday, October 9, 2018
Lawsuits Against Harvard and NYU Law Reviews Allege Illegal Racial and Gender Preferences for Editors and Articles Harm White Men
A Texas-based group called Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP) sued the Harvard Law Review on Oct. 6 and the New York University Law Review on Sunday, claiming that their racial and gender preference policies violate federal anti-discrimination laws. The lawsuits come at a time when law reviews—the traditional bastion of white males—are celebrating the increased diversity of their membership ranks. Harvard Law School, for example, had its first black women editor-in-chief in 2017. The Columbia Law Review has its first black male editor-in-chief ever this year.***
The new suits allege that policies at both law reviews violate the rights of students by giving women and minorities an unlawful advantage in getting onto those sought-after organizations. Moreover, the suits allege policies that give a preference to articles written by women and minority scholars violate the rights of others hoping to place articles there.
“Harvard Law School and Harvard University are violating Title VI and Title IX by allowing the Harvard Law Review to use race and sex preferences when selecting its members, editors, and articles—in direct contravention of the Law School’s supposed non-discrimination policy,” read the Harvard Law Review suit.
Thursday, September 20, 2018
The College of New Jersey is among a small but growing number of institutions that now offer alternatives to trial-like investigations that critics say can be traumatic for everyone involved. The U.S. education secretary, Betsy DeVos, has indicated, through Title IX guidance issued in 2017 and then in draft regulations obtained and reported last month by The New York Times, that the Trump administration welcomes alternative ways of handling sexual-misconduct disputes.
Approaches that start with the offender admitting responsibility and agreeing to repair the harm appeal to some students who aren’t interested in seeing someone suspended or expelled. Proponents see alternative resolution agreements as a way to cut down on Title IX investigations, save colleges money, and potentially be fairer to the accused.
But skeptics worry students will feel pressured to bypass a formal investigation and will regret it later on if offenders get off too easily. And asking a student to sit down with an assailant and work out an agreement is not only unrealistic, they argue, but possibly retraumatizing.
The agreement reached by the two students at the New Jersey college didn’t require face-to-face conversations, but they did have to agree on certain stipulations. He would attend a workshop on consent and alcohol-education classes. She wanted him to know how different people’s bodies react to alcohol and how it affects their ability to consent to sex. He would view an online seminar on the neurobiology of sexual assault. The seminar, by Rebecca Campbell, a professor of psychology at Michigan State University, had helped her make sense of her confusing emotional reaction to what she later considered an assault.
Both students had a few days to view and suggest changes in the two-page agreement.
"We don’t want this to be seen as a get-out-of-jail-free card," said Jordan L. Draper, dean of students and Title IX coordinator. "It’s an educational opportunity."
Draper is a proponent of what’s known as restorative justice, an umbrella term that covers a variety of interventions aimed at healing rather than assessing blame and punishing.
Tuesday, September 18, 2018
Title IX processes that address campus sexual assault are undergoing dramatic changes in structure as well as in policy review. After receipt of the Department of Education’s 2011 “Dear Colleague” letter, colleges and universities were impelled to review how their institutions were implementing Title IX. From website information through investigation and decision-making on alleged violations, the ways in which higher education addresses federally guided changes is a matter of national conversation. This article addresses change considering campus sexual assault allegations, and does not explicitly address other forms of Title IX complaints, such as athletic funding and opportunities. This essay limits discussion to sexual harassment and sexual discrimination Title IX claims only, particularly, sexual assault.
The primary topic of ongoing concern is how Title IX investigations and hearing processes are conducted. Review, and in some cases revision, of campus policies was prompted by two interconnected influences. The first was the referenced letter from the Department of Education, and the second was due process and other criticisms raised by those who advocate within the criminal justice framework. This essay explores the impact that criminal law and criminal lawyers have had on Title IX processes. Part of this exploration will include the ABA Criminal Justice Section’s recommendations on how Title IX sexual harassment complaints should be handled. Unknown at the time of this writing is whether the administration will be influenced by these recommendations, although to date it has not. As of this publication, Secretary of Education, Betsy DeVos, met with representative survivors and their advocates, as well as those who claim to have been wrongfully accused. The Secretary also accepted comments on deregulation, which included a review of Title IX regulations. The proposed regulation review was part of the administration’s “Enforcing the Regulatory Reform Agenda.” We can anticipate change, although when and what change is undetermined now. To date, the primary action taken by Secretary DeVos was the rescission of the Obama Era “Dear Colleague” letter discussed early in this article. Incorporated throughout this discussion are the changes, as well as the complications, that develop when the Title IX process is viewed through a criminal justice lens. Particularly explored, is how stereotypes regarding women’s credibility forms the foundation of challenges faced by survivors of sexual assault who seek relief. The last section of this essay addresses proposed recommendations to address the needs of those accused as well as protecting the harmed student.
More changes from the Secretary of Education are expected, which makes consideration of the concerns addressed in this article vital.
Monday, June 11, 2018
Melissa Berger, Inspirational Office Art
Each law student was provided with two index cards. One was entitled ACTION ITEM and the other was entitled TAKE-AWAY. The students were asked to complete the cards in their own handwriting and in their own words. I explained to the students that the cards would be placed onto a poster that would hang in my office. The Action Item was to describe a concrete step forward in the area of Gender Equality that the students hoped we could achieve. I had them tie this action item to their specific research and final paper in the class. If the goal had been achieved by the next time they saw the poster, they could remove the card from the board. (Cards were taped loosely with decorative metallic tape). The Take-Away item was to describe what each student would take away from the course and hopefully pass forward.
Once the cards were completed, I had the students bring the cards to our last class. For this class, I reserved a free conference room in the back of a nearby coffee and bagel shop. My (mostly, but not entirely female) students apparently had named this our “Empowerment Brunch.”
I had each law student “present” their cards and tape the cards onto a black poster board. The end result was an inspirational poster board that the students can re-visit whenever they visit their alma mater.
Ahead of class, I had explained to the students in an email: “During this class, we will engage in a BRAINSTORMING SESSION about how to CHANGE THE WORLD. To that end, please bring with you your two INDEX CARDS filled out in advance. Remember the TAKE-AWAY card is what will you take away from this course (perhaps from the readings, the presentations, the classes, other). What will you take with you for years to come (and perhaps pass forward)? Remember the ACTION ITEM card is based upon the research you conducted this semester – what do you hope we can accomplish specifically? What is the one action item that could solve or ameliorate your legal dilemma/question?
I will make up a poster board with our cards and other graphics and keep it on display in my office. In future years, when you come visit me—perhaps we will see real progress on some of these action items. After a semester of heavy coursework, let’s stay positive and push this ball forward. We are all relying on YOUR GENERATION to change how the law treats gender going forward.”
Some of the students’ Action items would likely actualize in the near future, such as “Get three people a year to watch a women’s sports events.” Others were loftier, but so important to articulate: “I want to dedicate my legal career to public service to help women, transgender and non-gender conforming individuals to gain full equality under the law.”
In terms of the Take-Aways, the cards were varied and proved quite moving as well, such as: “The law touches nearly every aspect of women’s lives,” and “Discussion about equality promotes equality.”
It was a terrific final class full of motivating conversation and plenty of dreaming. This poster proudly hangs in my office and still inspires me today
Friday, May 11, 2018
Developing Enhanced Due Process Protections for Title IX Sexual Assault Cases at Public Institutions
Jim Newberry & William E. Thro, After the Dear Colleague Letter: Developing the Enhanced Due Process Protections for Title IX Sexual Assault Cases at Public Institutions, Journal of College & University Law (forthcoming).
Since the formation of the American Republic, Americans have maintained a fundamental mistrust of government power. In the Title IX realm, the Obama Administration exacerbated those concerns. In its efforts to enforce Title IX and to reduce sexual misconduct on campuses, the Obama Administration issued a “Dear Colleague Letter” in April 2011 and a follow up Question and Answer document in April 2014, both of which set out OCR’s view of the obligations of institutions receiving federal financial assistance under Title IX and its implementing regulations. This 2011 Dear Colleague Letter “explains the requirements of Title IX pertaining to sexual-harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.”
As Fifth Circuit Judge Edith Jones observed, this 2011 Dear Colleague Letter, “was not adopted according to notice-and-comment rulemaking procedures; its extremely broad definition of ’sexual harassment’ has no counterpart in federal civil rights case law; and the procedures prescribed for adjudication of sexual misconduct are heavily weighted in favor of finding guilt.” Specifically, the Dear Colleague Letter and the 2014 OCR Q & A document: (1) suggest institutions handle sexual assault cases with a single person serving as detective, prosecutor, judge, and jury; (2) maintain hearings are not required; (3) imply “the school should not start the proceedings with a presumption of innocence, or even a stance of neutrality . . . [but with an assumption] any complaint is valid and the accused is guilty as charged;” (4) forbid the consideration of the complainant’s sexual history with anyone other than the accused student; (5) discourage cross-examination; (6) allow an appeal of not guilty verdicts; and (7) mandate a preponderance of the evidence—rather than clear and convincing evidence or beyond a reasonable doubt—as the standard for determining guilt. Although the 2011 Dear Colleague Letter and the 2014 Q & A result in an increased focus on the problems of sexual assault on campus, some scholars have suggested these documents undermine due process.
On September 22, 2017, the Secretary of Education released new guidance that revoked both the 2011 Dear Colleague Letter and the 2014 Q & A document. Instead, OCR established Revised Sexual Harassment Guidance as the guiding light for future assessments of institutional compliance. Further, the Secretary announced her plans to initiate a “rulemaking process that responds to public comment.” The proposed rulemaking process will undoubtedly address multiple stakeholder concerns with the approach to sexual misconduct, but one anticipates that due process concerns for public institutions will be near the top of the list of concerns addressed in rulemaking effort.
The purpose of this Essay is to set out a vision for what due process in the Title IX sexual assault context should look like. In accomplishing this purpose, the authors—drawing on existing case law, policy arguments, and their own experiences as higher education lawyers—propose a set of due process protections which will equitably balance the interests of (a) Complaining Witness seeking redress for multiple forms of sexual misconduct, (b) Respondents seeking protection against lifelong stigmas arising from unfair campus proceedings, and (c) institutions of higher education seeking to eliminate all forms of educational program discrimination based on sex.
Thursday, May 10, 2018
The American Civil Liberties Union stepped in this week to defend the choice of students at a Florida high school to go bra-free, saying the school’s threat to impose a mandatory bra policy for girls amount to sex discrimination.
The ACLU says Braden River High School in Bradenton violated a 17-year-old student’s rights last month after it required her to cover her nipples with adhesive bandages, saying her undergarment-free look had become a distraction to fellow students, including boys who laughed or stared at her.
Lizzy Martinez was pulled from class, given an extra shirt and, when that wasn’t deemed enough, given the bandages. She was then sent back to her classroom after what she called a humiliating experience.
“Stop sexualizing my body,” she said, taking to Twitter to ding her school.
She attempted to lead a boycott, urging fellow students to come to school without bras or speak out about her treatment, but the school warned that this too could be deemed a distraction.
. . . .
Elizabeth M. Schneider, a professor at Brooklyn Law School, said schools need to be wary of citing distractions as the basis for their rules. She said educational institutions, like law schools, used to exclude women on the basis that their presence would distract male students and thus inhibit learning.
“The high school is playing into a very old and illegal concept in using the theme of distraction as a ground for differential treatment,” Ms. Schneider said.
She also said it would be unconstitutional to make it mandatory for female students to wear bras.
“Unless you are going to do a body check of every woman student who comes through the door, which would be even far more illegal, it’s impossible to check,” Ms. Schneider said.
Tracy A. Thomas, a professor at the University of Akron School of Law, said Lizzy’s situation is representative of the #MeToo movement with women coming forward sharing experiences of sexual harassment.
“Girls are surprised and hurt when they learn that their fellow male students and the administrators view them through this sexualized lens,” she said.
She suggested school policies punish boys for inappropriate comments, rather than shame female students.
A related earlier blog post is here.
Tuesday, May 1, 2018
Alexandra Brodsky, Against Taking Rape Seriously: The Case Against Mandatory Referral Laws for Campus Gender Violence, 53 Harvard Civil Rights-Civil Liberties J. 131 (2018)
In response to growing national concern about gender violence on college campuses, legislators have proposed a rash of state and federal bills that would require schools to refer all sexual assault reports to the police, regardless of the student victims’ wishes. These so-called “mandatory referral” laws appeal to a popular intuition that the best way to address rape is to involve law enforcement. Yet surveys, victims’ criticism, and the history of other efforts to force survivors into the criminal legal system show that such bills would discourage survivors who wish to avoid criminal intervention from reporting to their schools and, as a result, directly undermine the wellbeing of victims and reduce opportunities for accountability. Despite clear shortcomings, opponents of campus rape reform have been able to champion these counter-productive bills under the guise of supporting survivors by co-opting a historically salient feminist strategy: demanding that policymakers take gender violence “seriously,” which the public imagination equates with criminal prosecution. This Article maps the political landscape that gives rise to mandatory referral bills, explains the proposals’ failures as a matter of policy, and calls for a new rhetoric of taking victims’ needs seriously.
The ACLU is intervening after [Lizzy] Martinez, a 17-year-old junior at Braden River, was disciplined for not wearing a bra under her shirt to school due to a painful sunburn. School administration removed her from class, told her she was distracting other students, and required her to put Band-Aids over her nipples for the rest of the day. The school maintained that it was doing this in Martinez’s best interest — but then proceeded to block her on Twitter when she complained that she felt sexualized, and it discouraged students from participating in a student protest against the stigmatization of female bodies.
The ACLU letter to the school district is here and it is well worth the read.
As described above, the justification proffered for the enforcement of the dress code against Ms. Martinez was rooted in sex stereotypes that male students were “distracted” by her nipples and a paternalistic desire to “protect” Ms. Martinez from the laughter and stares of her male classmates. The justification reflects overly broad and archaic generalizations about boys’ inability to control their sexual impulses and girls’ inability to make their own decisions about the clothing that makes them feel safe and comfortable. These stereotypes reinforce a culture of victim blaming in which schools convey the message to female students that they are at fault for experiencing sexual harassment if they make certain clothing choices. The Supreme Court has long struck down policies based on “‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”
The biased enforcement of the dress code against Ms. Martinez and other female students jeopardizes their equal access to education by forcing them to miss important class time. As described above, Ms. Martinez missed multiple days of school, including three tests. It also prioritizes male students’ freedom from “distraction” over female students’ physical comfort.
Tuesday, April 10, 2018
John attended a party, drank six beers, then proceeded to a bar and drank more beer and alcohol. He left the bar in the early morning, sufficiently intoxicated that he cannot remember what happened for the remainder of the night. Based on text messages he later found on his cellphone, John knows that he called Jane. The two had engaged in several prior physical encounters. Jane, who had also been drinking, joined John in his bed. According to Jane’s subsequent statement, the two engaged in some consensual sexual acts, but Jane stopped consenting and John continued to engage in non-consensual sexual acts. John was found responsible for violating Miami University’s sexual assault policy and was suspended for four months. John sued Jane, Miami University, and individual University employees. John and Jane reached a settlement. The court dismissed John’s remaining claims. The Sixth Circuit affirmed the dismissal of John’s Title IX hostile-environment claim, Title IX deliberate-indifference claim, and 42 U.S.C. 1983 substantive-due-process claim. The court reversed, in part, finding that John sufficiently pleaded procedural-due-process and equal protection claims against one employee based on the claims that she was not an impartial adjudicator and did not fully disclose the evidence against him. The court also reversed a finding of qualified immunity as to that employee and held that John sufficiently pled his Title IX erroneous-outcome claim.
Doe v. Miami University (6th Cir. Feb. 9, 2018) (opinion by Karen Nelson Moore)
We agree with the district court that John has pleaded sufficient facts to cast “some articulable doubt on the accuracy” on the outcome of his disciplinary hearing. He alleges that he was so intoxicated that he cannot recall the critical events in question. Thus, John’s only knowledge of what occurred is drawn from Jane’s description. In her written statement, Jane describes a series of sexual acts between herself and John, some of which were consensual and some of which were not.
She states that she initially agreed to digital penetration, but at some point told John to stop. Id. John did stop, but only after some period of time had passed. Then John asked Jane if he could engage in oral sex. According to Jane, she said no, but John proceeded anyway and Jane responded by pushing him away, rather than re-verbalizing her denial of consent. John then stopped. Jane also states, however, that “I never said no.”
[John was suspended by Miami for three terms].
Taken together, the statistical evidence that ostensibly shows a pattern of gender-based decision-making and the external pressure on Miami University supports at the motion-to dismiss stage a reasonable inference of gender discrimination. John alleges facts showing a potential pattern of gender-based decision-making that “raise a reasonable expectation that discovery will reveal” circumstantial evidence of gender discrimination. He asserts that every male student accused of sexual misconduct in the Fall 2013 and Spring 2014 semesters was found responsible for the alleged violation, and that nearly ninety percent of students found responsible for sexual misconduct between 2011 and 2014 have male first-names. Additionally, John incorporated an affidavit from an attorney who represents many students in Miami University’s disciplinary proceedings, which describes a pattern of the University pursuing investigations concerning male students, but not female students. Lastly, John points to his own situation, in which the University initiated an investigation into him but not Jane, as evidence that Miami University impermissibly makes decisions on the basis of a student’s gender. Discovery may reveal that the alleged patterns of gender-based decisionmaking do not, in fact, exist. That information, however, is currently controlled by the defendants, and John has sufficiently pleaded circumstantial evidence of gender discrimination.
John also alleges that the two other members of his Administrative Hearing Panel (Van Gundy-Yoder and Elliott) and the two individuals who decided his appeals (Ward and Brownell) were not neutral decision-makers. He argues that Van Gundy-Yoder and Ward were biased due to their research interests. But merely being a feminist or researching topics that affect women does not support a reasonable inference that a person is biased. John also alleges that all of these individual defendants faced institutional pressures to find him responsible due to external influence from the federal government and lawsuits brought by private parties.
Tuesday, April 3, 2018
"When it comes to silencing women," writes Mary Beard, "Western culture has had thousands of years of practice." Academe is no exception. A recent conference at Stanford University featured 30 speakers — all of them men, all of them white. The incident sparked ridicule and outrage, as well as a sense that higher education is facing a reckoning. Over the past few months, amid mounting revelations of sexual harassment, The Chronicle Review asked presidents and adjuncts, scientists and humanists, senior scholars and junior professors to take on the theme of women and power in academe. Here are their responses.
Friday, March 23, 2018
Back in the late 1800s, when "brain fever" was used as an argument for why women shouldn’t receive a formal education, Mount Holyoke College was among the first to offer an all-female undergraduate program.
But a lot has changed since the first women’s colleges were founded — today there are nearly 40 — and many of them have been grappling with one specific aspect of that identity in recent years: How should transgender applicants be considered?
Propelled by increasing social pressures and Title IX guidelines issued during the Obama administration, many of these institutions have rewritten their admissions policies to change and clarify who will be counted.
Mount Holyoke, for example, now says students who self-identify as women can be considered for admission, according to a policy statement: "We recognize that what it means to be a woman is not static. Traditional binaries around who counts as a man or woman are being challenged by those whose gender identity does not conform to their biology."
The college further emphasizes its commitment as a historic place for women, partly founded on the motto "Go where no one else will go, do what no one else will do."
Monday, March 19, 2018
Kristina Mitchell, Student Evaluations Can’t Be Used to Assess Professors .
Our research shows they're biased against women. That means using them is illegal.
A new study I published with my co-author examines gender bias in student evaluations. We looked at the content of the comments in both the formal in-class student evaluations for his courses as compared to mine as well as the informal comments we received on the popular website Rate My Professors. We found that a male professor was more likely to receive comments about his qualification and competence, and that refer to him as “professor.” We also found that a female professor was more likely to receive comments that mention her personality and her appearance, and that refer to her as a “teacher.”
The comments weren’t the only part of the evaluation process we examined. We also looked at the ordinal scale ratings of a man and a woman teaching identical online courses. Even though the male professor’s identical online course had a lower average final grade than the woman’s course, the man received higher evaluation scores on almost every question and in almost every category.
This is frustrating, perhaps more so given that we certainly are not the first study to look at the ways that student evaluations are biased against female professors. But we might be among the first to make the case explicitly that the use of student evaluations in hiring, promotion, and tenure decisions represents a discrimination issue. The Equal Employment Opportunity Commission exists to enforce the laws that make it illegal to discriminate against a job applicant or employee based on sex. If the criteria for hiring and promoting faculty members is based on a metric that is inherently biased against women, is it not a form of discrimination?
It’s not just women who are suffering, either. My newest work looks at the relationship between race, gender, and evaluation scores (initial findings show that the only predictor of evaluations is whether a faculty member is a minority and/or a woman), and other work has looked at the relationship between those who have accented English and interpersonal evaluation scores. Repeated studies are demonstrating that evaluation scores are biased in favor of white, cisgender, American-born men.
This is not to say we should never evaluate teachers. Certainly, we can explore alternate methods of evaluating teaching effectiveness. We could use peer evaluations (though they might be subject to the same bias against women), self-evaluation, portfolios, or even simply weigh the evaluation scores given to women by 0.4 points, if that is found to be the average difference between men and women across disciplines and institutions. But until we’ve found a way to measure teaching effectiveness that isn’t biased against women, we simply cannot use teaching evaluations in any employment decisions in higher education.
Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible as of late by the media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The United States Supreme Court has interpreted the law to contain a private implied right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. Over the past several years, a handful of district courts in the United States have rendered opinions that effectively refined the class of individuals who are entitled to protection under Title IX. These cases create two separate classes of individuals with different rights: students and non-students. Two cases in particular, K.T. v. Culver-Stockton College and Doe v. Brown University, both held that non-students who were sexually assaulted on campus by students enrolled at that university were not entitled to bring a Title IX cause of action for damages against the school for its deliberate indifference to their complaints of sexual assault. The Doe case is currently on appeal to the First Circuit and the Eighth Circuit dismissed the K.T. without ruling on this question of standing. Even more recently, in the sex abuse scandal involving a Michigan State University physician who was convicted of assaulting dozens of girls, athletes, and students, lawyers defending the university argue that the subset of victims who were not enrolled students (but who were treated by the doctor on campus) lack standing to sue under Title IX. There is growing evidence to suggest that these cases represent an emerging development in the evolution of Title IX jurisprudence. This article seeks to add to the ongoing and complex Title IX conversation by exposing a novel, yet very real conundrum: to whom does Title IX apply? Should students who are officially enrolled in an institution be safer than those who are not? Are non-students who interact within the university context simply left out of the spectrum of Title IX protections? And what sort of campus safety dynamic is created if we distinguish between kinds of victims in terms of extending protections of the federal law? After extensive analysis, the article concludes that creating safer campus communities probably demands an extension of rights to individuals who engage in the programs and activities of a university, regardless of their status as students.
Monday, March 5, 2018
Zipporah Wiseman, What Feminist Pedagogy has Wrought, 11 American J. Gender, Social Policy & Law 963 (2003)
As the day progressed, and I listened to each of your papers, I was struck more and more by the realization that you are part of a revolution in legal education. When I began teaching in 1973--no, twenty years before that--when I went to law school, what you are doing now was unimaginable. Legal education, in mid-century, in the huge majority of law schools, comprised studying and parsing appellate decisions. A law school class consisted of an authoritarian male in the front of the classroom who led us, the poor hapless students, overwhelmingly male, through a series of questions, usually focused on one student, guiding us to the one right answer. We might be lucky enough to guess the answer. But the professor was the only one who knew it. Thus he (it was always a he) demonstrated how, in his all-wise and all-knowing authority he guided us on the right path to the right answer through the exercise of pure reason.In her book [Battered Women and Feminist Lawmaking (2000)], Liz Schneider describes the model of pedagogy that she, with the assistance of Sarah Buel, initiated in her course on battered women at Harvard Law School in 1991. That course, and the ones all of you teach, are the revolution. The thought that one could teach law as a process of fostering social change and even more radically, change in the lives of women, was a totally foreign notion several decades ago. Significantly, in my view, none of you has spent any time discussing your pedagogical method. That is simply not an issue for you anymore. This is what you do and how you do it. One powerful way is you tell stories. Brenda Smith gave us a wonderful example of feminist pedagogy. I would guess that we will all remember her story long after we have forgotten everything else that has been said here.* * * You are also changing the culture of law schools as well as the larger culture.And when the day comes when our male colleagues stop calling feminists' courses “soft” law and their own courses “hard” law--which they do with nary a glimmer of self consciousness or awareness of the sexual connotation--then we will have in fact revolutionized the law schools. I have, however, no sense that this, or any other similar characterization of your work, affects your consciousness of what you are doing or achieving, or what you are fighting for or about. Okay. That's their problem.I wanted to tell you that I am walking on cloud nine after listening to all of you. I want to congratulate you and tell you that you have brought a message of hope.
Wednesday, February 28, 2018
Students and staff could be punished if they fail to obtain affirmative consent for sex through “words or clear, unambiguous action” under a policy change approved Wednesday by the Minnesota State Board of Trustees.
The policy applies to some 375,000 students at the state-run system’s 30 colleges and seven universities, as well as faculty and staff and anyone who has sex on campus.
“As an English teacher, I just never thought I’d see a sentence that included sexual activity and the words clear and unambiguous in the same sentence, but you know, progress,” trustee Louise Sundin joked.
More than a thousand U.S. colleges, including the University of Minnesota and every college in California and New York, have adopted “affirmative consent” language in recent years.
It puts the onus on the partner initiating sex to obtain clear consent rather than on the receiving partner to object — “Yes means yes” instead of “No means no.”
Tuesday, February 27, 2018
There is no log of how many campus rape cases go to trial each year, but experts and victim advocates agree that the number is vanishingly small. The Department of Justice estimates that between 4 percent and 20 percentof female college students who are raped report the attack to law enforcement. Of reported cases, only a fraction lead to arrests, let alone a trial.
The one at Yale, then, might seem like a perfect case to test the fiercely debated question of whether college rape accusations are best handled by internal university panels or by law enforcement.***
“This isn’t about which institution is better,” said Janet Halley, a Harvard Law School professor who has written about the legal implications of Title IX enforcement. “It’s about what happens when you put two institutions into the same process and they have different rationalities, different institutional cultures — but above all different rights attached to them.
“This is oil and water flowing in together.” ***
The debate around who should handle investigations seems unlikely to fade. Even as Ms. DeVos has permitted universities to more closely align their hearing processes with those the criminal justice system, she has also retained the requirement that schools investigate claims of sexual misconduct, rather than simply hand them off to law enforcement.
Wednesday, February 14, 2018
Top college campuses were far more likely to host male professors to speak in department talks than female professors, according to new research led by a Rice University graduate student.
The scholars tracked speakers at 3,652 talks in the 2013-14 academic year in biology, bioengineering, history, political science, psychology and sociology departments at top-ranked schools.
Nearly 70 percent of those talks were delivered by male professors, the research found, even as a random sampling of professors appeared equally motivated to deliver talks, regardless of gender. The authors also controlled for higher rates of men than women in higher education.
"Different preferences between men and women did not seem to be responsible for the gender discrepancy in colloquium talks," said Christine Nittrouer, a psychology graduate student at Rice who led the research, in a press release.
Talks were more likely to include a female speaker when a female chair organized the event, the research found.
Thursday, February 1, 2018
Guardian, The Cult of Mary Beard
I've found myself a part of the cult of Mary Beard, impressed by her model of how to be a professor.
Everyone who has met Beard seems to have a story about encountering her for the first time – usually involving her rigorous intellect, her total lack of formality, and her sense of mischief.
In public, in private and in her academic writing she is skeptical, wary of consensus, the kind of person who will turn any question back on itself and examine it from an unexpected angle. She is not afraid to take apart her own work:
The learned but approachable figure you see on TV translating Latin inscriptions, carving up a pizza to explain the division of the Roman empire, or arguing about public services on Question Time, is precisely the Beard you encounter in private, except that in real life, she swears magnificently and often.
Beard is a celebrity, a national treasure, and easily the world’s most famous classicist. Her latest book, Women and Power, about the long history of the silencing of female voices, was a Christmas bestseller on both sides of the Atlantic. In the eight years since her debut TV documentary, Pompeii, she has conquered the small screen. She is one of a trio of presenters who will, in March, front Civilisations – a new, big-budget version of Kenneth Clark’s 1969 series Civilisation, the most revered cultural TV series in the BBC’s history.
As recently as a decade ago, it would have seemed unlikely, even outlandish, that a middle-aged classics don, her appearance a million miles away from the groomed perfection expected of women in the public sphere, would end up so famous and, by and large, so loved.
Since then, Beard has become a standard-bearer for middle-aged women, and beloved by the young – indeed, by anyone who wants to be seen in terms of their ideas, not their looks; anyone who think it’s cool to be smart; and by those who relentlessly ask questions and never reject a contrary opinion out of hand. Beard’s intellectual style, which suffuses all her scholarship – a commitment to rigorous scepticism that refuses to be cynical – has made her a model for those who worry that the shouting and bullying of the digital world make reasoned political debate impossible.
Her career stands, in a way, as a corrective to the notion that life runs a smooth, logical path. “It’s a lesson to all of those guys – some of whom are my mates,” she said, remembering the colleagues who once whispered that she had squandered her talent. “I now think: ‘Up yours. Up yours, actually.’ Because people’s careers go in very different trajectories and at very different speeds. Some people get lapped after an early sprint.” She added softly, with a wicked grin: “I know who you are, boys.”
Beard describes herself as academically “flighty”. Instead of burrowing into one small area – a single Latin author, for example, or Roman religion in a given period – she has darted between topics; and, perhaps because of her gregarious nature, has preferred those topics not to be especially obscure. ...This eclecticism has given her the means to range widely through the ancient world in her public work. So has the fact that her scholarship has been relatively mainstream, rather than at the bleeding edge of academic fashion.
Her full story is well worth the read.