Gender and the Law Prof Blog

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

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)

Tuesday, October 1, 2019

Book Review: The Transformation of Title IX and the Success of the Administrative State

Samuel Bagenstos, This is What Democracy Looks Like: Title IX and the Legitimacy of the Administrative State, Michigan Law Review, Vol. 118, No. 6, 2020

We are, once again, in the middle of a battle over the legitimacy of the administrative state. An increasingly vocal band of scholars criticizes administrative agencies as unaccountable, elitist, captured, and implementing bad policy. The more populist elements of the Trump Administration’s rhetoric have taken this critique to a broader audience, to great political effect. Though the picture is complex, the Roberts Court has appeared sympathetic to important aspects of the critique. Agencies enforcing civil rights laws — and particularly the Department of Education’s Office for Civil Rights (OCR) — have been a principal target of the critics of the administrative state.

With The Transformation of Title IX, R. Shep Melnick steps into this fight — and he takes the side of those who find OCR’s actions illegitimate. Melnick focuses particularly on three especially controversial contexts in which the courts and OCR have applied the statute: intercollegiate athletics, campus sexual harassment and assault, and the treatment of transgender students in elementary and secondary schools. He argues that OCR and the courts have, through a process of “institutional leapfrogging,” steadily adopted more and more intrusive rules governing educational entities. He contends that these rules are highly contestable and neither specifically required by the statutory text nor envisioned by the statute’s drafters. But, he argues, the leapfrogging process — in which the agency pushes forward, then the courts go a bit farther than the agency, then the agency goes even a bit farther, and so on — has enabled these massive innovations in the law to fly under the radar and evade democratic checks or debate.

This piece reviews The Transformation of Title IX. The book offers an important take on some issues of high public salience. It reflects a detailed immersion in the operations of OCR, as well as a strong understanding of the legal-doctrinal issues. But the book’s thesis is fundamentally misguided. OCR has not subverted or evaded democracy. Rather, the agency has served as a catalyst for democratic debate, a forum in which that debate has played out, and an implementer of the will of the people. The Title IX experience rather supports the claim made by some scholars that administrative agencies can be a key locus of democratic deliberation over the scope of basic rights.

October 1, 2019 in Books, Education, Sports | Permalink | Comments (0)

Thursday, September 26, 2019

New Books: Stanford Victim from the Brock Turner Case Tells Her Story

NPR, Chanel Miller Says "Know my Name" as She Reflects on her Assault by Brock Turner

Her name is Chanel Miller.

 

For four years, she has been known publicly as Emily Doe, "an unconscious woman" or simply "Brock Turner's victim." In her memoir Know My Name, she wants to set the record straight: "I am a victim, I have no qualms with this word, only with the idea that it is all that I am," she writes. "However, I am not Brock Turner's victim. I am not his anything."

 

In 2015, Miller was sexually assaulted by Turner on Stanford University's campus. Two Swedish graduate students were passing by on bikes and chased Turner off an unconscious Miller. Turner was convicted of three felonies but served only three months of a six-month sentence in county jail. The case became notorious for its illustration of the race and wealth gap in sentencing, and for the stinging eloquence of Miller's victim statement, which went instantly viral when it was published by BuzzFeed.

 

Know My Name is a devastating, immersive memoir of her sexual assault and its aftermath. We live with Miller minute by minute, thinking and feeling with her. At points, particularly during the account of her testimony, it is hard to read it and breathe at the same time.

"Know My Name" A Sexual Assault Survivor Tells the World

“Know My Name” is an act of reclamation. On every page, Miller unflattens herself, returning from Victim or Emily Doe to Chanel, a beloved daughter and sister, whose mother emigrated from China to learn English and become a writer and whose father is a therapist; a girl who was so shy that, in an elementary school play about a safari, she played the grass. Miller reads “Rumi, Woolf, Didion, Wendell Berry, Mary Oliver, Banana Yoshimoto, Miranda July, Chang-rae Lee, Carlos Bulosan.” She rides her bike “through the Baylands … across crunchy salt and pickleweed.” She fosters elderly rescue dogs with names like Butch and Remy and Squid. She rages against a form that identifies “victim’s race” as white. “Never in my life have I checked only white. You cannot note my whiteness without acknowledging I am equal parts Chinese.”

 

“Know My Name” is one woman’s story. But it’s also every woman’s story — the story of a world whose institutions are built to protect men; a world where sexual objectification is ubiquitous and the threat of sexual violence is constant. Before Turner assaulted her, Miller had already survived one act of deadly misogyny near her college, the University of California at Santa Barbara, when Elliot Rodger, a privileged young man enraged that he’d never had a girlfriend, went on a spree and killed six people.

 

After the assault, Miller enrolls in art school in Rhode Island. But the East Coast proves no safer. Walking back from class, “I passed three men sitting on a car who fastened their eyes on my legs, clicked their tongues and smacked their lips, performing the sounds and hand gestures one might use if attempting to summon a cat. … I trained myself to tuck my head down, avoiding eye contact, feigning invisibility.”

 

Miller takes us through the trial, her steadfast, supportive attorney, the humiliation of testifying, her rage when Judge Aaron Persky sentences Turner to just six months in county jail and probation, because a longer sentence would have a “severe impact” on the onetime Olympic hopeful. She quotes Turner’s father’s complaints that “these verdicts have broken and shattered” his son, who can no longer enjoy the rib-eye steaks he once loved. Turner himself says that he wants to “speak out against the college campus drinking culture and the sexual promiscuity.” “He had lived shielded under a roof where the verdict was never accepted, where he would never be held accountable,” Miller writes.

 

And then there was Stanford. “Their apathy, their lack of apology I could live with, but what troubled me most was their failure to ask the single most important question: How do we ensure this does not happen again?

 

Eventually, there’s a hint of justice, a tiny rebalancing of the scales. Judge Persky is recalledTurner’s appeal is denied. Miller writes an incandescent, awesomely angry victim impact statement that blazes across the internet, beginning, “You don’t know me, but you’ve been inside me, and that is why we’re here.” While Turner registers as a sex offender, Miller signs a book contract. She texts her mother a picture of herself in New York City, enjoying a celebratory dessert of grilled peaches. Her mother texts back, “You are mommy’s dream.”

September 26, 2019 in Books, Education, Violence Against Women | Permalink | Comments (0)

Monday, September 9, 2019

National Women's Law Center Report Shows DC Dress Codes Unfairly Target Black Girls

DC School Dress Codes Unfairly Target Black Girls, Students Say

School dress codes are often enforced in uneven ways, and black girls are disproportionately targeted, students from Washington, D.C., said in a report last year from the National Women’s Law Center. Now, some of those students are beginning to speak up — organizing walkouts, lunchtime protests and meetings with administrators to call out dress codes they see as unfair.

 

In a new report released Wednesday, the National Women’s Law Center highlighted some of these recent shifts and rated D.C. public and charter high schools based on the strictness of their dress code policies.

 

The researchers found that, among 29 D.C. schools, majority-black high schools on average had more dress code restrictions than other high schools. And charter schools in the District, on average, had more than twice the number of dress code restrictions than traditional public schools in the 2018-2019 school year.

 

“Especially in this Me Too movement that we’re in, schools shouldn’t be teaching students that it’s okay to scrutinize girls’ bodies ... or make them feel like they have to cover up or feel less than,” said Nia Evans, author and lead researcher of the report.

September 9, 2019 in Education, Race | Permalink | Comments (0)

Thursday, August 15, 2019

New Book by Attorney, "Nobody's Victim" on Cases Challenging Title IX Sexual Violence and Revenge Porn

The Lily, Wash. Post, Carrie Goldberg's New Memoir "Nobody's Victim": How Schools Fail Black Girls

The following is an excerpt from attorney Carrie Goldberg’s memoir, “Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls,” which comes out Aug. 13. In 2014, Goldberg made a name for herself representing victims of sexual violence — specifically in cases of revenge porn. Her law firm, C.A. Goldberg, PLLC, specializes in handling cases of sexual harassment, sexual assault and blackmail.

 

This excerpt appears in Chapter 4, “Girls’ Lives Matter,” in which Goldberg describes her work with three clients — all middle-school-aged girls of color from New York City. In the chapter, she describes the Title IX complaint she filed with the U.S. Department of Education Office for Civil Rights on behalf of Vanessa, who alleged a classmate sexually assaulted her when she was 13.

 

“When I opened my firm, the idea of representing clients who were still in middle school wasn’t even on my radar,” Goldberg writes. “But by 2018, I’d filed seven Title IX complaints with the U.S. Department of Education Office for Civil Rights, including five on behalf of middle and high school students who were sexually violated by their peers, then shamed and blamed by the school officials who were supposed to be protecting them.”

 

In this excerpt, Goldberg outlines the stories of two other clients and discusses a larger system of bias against black girls and women who report sexual assault.

August 15, 2019 in Books, Education, Media, Violence Against Women | Permalink | Comments (0)

Tuesday, August 13, 2019

Feminist Law Professors Critique Title IX and Domestic Violence Law

Chronicle, The Revolt of the Feminist Law Professors

 In the fall of 2011, the Department of Education’s Office for Civil Rights issued informal, non-binding guidance on how colleges should treat claims of sexual assault and harassment in a document now referred to as the Dear Colleague letter. It was accompanied by public claims of an ongoing crisis of sexual violence on universities made by President Barack Obama and Vice President Joe Biden. In 2014, Gersen and three of her colleagues — Elizabeth Bartholet, Janet Halley, and Nancy Gertner — led a contingent of their peers in calling out the system of investigation and adjudication that emerged during the Obama years as “so unfair as to be truly shocking.” The four were joined by 24 of their Harvard Law colleagues in an open letter published in The Boston Globe decrying Obama’s Title IX recommendations as “overwhelmingly stacked against the accused.”

 

In a statement called “Fairness for All Students Under Title IX,”  jointly authored with Halley, Bartholet, and Gertner, Gersen noted that at many colleges, investigators are trained to start by believing the complainant. Many schools would “improperly house the functions of investigation and adjudication” in the same office, with “strong incentives” to keep the schools in the Office for Civil Rights’ “good graces.” “Some schools,” they wrote, “allow appeals only on very narrow grounds such as new evidence or procedural error, providing no meaningful check on the initial decisionmaker.” The evidentiary threshold required was the lowest one, the “preponderance of the evidence” standard, meaning anything greater than 50 percent certainty should yield a finding of wrongdoing. 

August 13, 2019 in Courts, Education, Violence Against Women | Permalink | Comments (0)

Thursday, July 18, 2019

American Law Institute's Reasonably Speaking Podcast on Responding to Sexual Assault Allegations on Campus

Responding to Sexual Assault Allegations on Campus

Suzanne Goldberg, Professor of Law at Columbia Law School and Executive Vice President for University Life at Columbia University, and Gil Sparks, member and past Chairman of the Board of Trustees of the University of Delaware, discuss what schools are doing to implement procedures that are both effective and fair for those who have suffered from such misconduct and for those accused.

July 18, 2019 in Education | Permalink | Comments (0)

Thursday, May 16, 2019

High School Student Challenges Rule Prohibiting Girls from Wearing Pants at Graduation

Her School Prohibited Girls From Wearing Pants at Graduation. So She Fought Back.

It was the principle of it all, the fact that it was 2019 and women had been wearing pants for a century.

 

“I didn’t think that was very acceptable,” Kozak told The Washington Post.

 

She knew female students before her had found the policy problematic and that individual exceptions had been made for those who felt strongly enough about the issue to formally ask for permission from administrators to put on pants (though they still had to roll the pant legs up, so their ankles would appear bare — like those wearing dresses.)

 

“I felt the female students were being disproportionately burdened by going through this extra process that their male counterparts did not have to go though,” she said. “And I did not think that was fair or right."

 

But nobody had felt powerful enough to dismantle the policy altogether. Maybe, she thought, it was time to try.*** 

 

So weeks later, on a school night in mid-April, Kozak took her fight to the school board.

 

She hadn’t had time to get on the agenda, so she typed up a short speech in Google Docs and planned to present it during public comment at the end of the meeting. For two hours, she waited through budget conversations and introductions of the new superintendent, through other student presentations and mundane crosstalk.*** 

 

Kozak invoked the American Civil Liberties Union and its recent legal victory against a public charter school in North Carolina, which had defended its no-pants policy for young girls — and lost.

May 16, 2019 in Constitutional, Education | Permalink | Comments (0)

Thursday, March 14, 2019

US Women's Soccer Team Sues for Gender Discrimination

US Women's Soccer Team Sues US Soccer for Gender Discrimination

Twenty-eight members of the world champion United States women’s soccer team significantly escalated their long-running fight with the country’s soccer federation over pay equity and working conditions, filing a gender discrimination lawsuit on Friday.

 

The suit, in United States District Court in Los Angeles, comes only three months before the team will begin defense of its Women’s World Cup title at this summer’s tournament in France. In their filing and a statement released by the team, the 28 players described “institutionalized gender discrimination” that they say has existed for years.

 

The discrimination, the athletes said, affects not only their paychecks but also where they play and how often, how they train, the medical treatment and coaching they receive, and even how they travel to matches.***

 

The bulk of the suit mirrors many of the issues raised in a wage discrimination complaint filed by five United States players with the Equal Employment Opportunity Commission in 2016. Frustrated by a lack of progress on that complaint after nearly three years of inaction, the players received permission from the federal agency in February to sue instead. (One of the players on the original complaint, the former goalkeeper Hope Solo, filed her own gender discrimination lawsuit against U.S. Soccer in August.)

 

The suit offers a new forum but also new hurdles. The players, represented by Jeffrey Kessler, who has been involved in labor fights in nearly every major American sport, will have to prove not only that their team and the men’s squad do the same work, but also overcome questions about the differences in their pay structures and their negotiated collective bargaining agreements. And the C.B.A. has already left them without one bit of leverage: The players cannot strike to press their case at least until it expires at the end of 2021.

 

But to experts in gender discrimination and Title IX cases, the argument they are making is familiar.

 

“These are the same kinds of arguments and claims that we still see at every level of education for women and girls, from K through 12 to college,” said Neena Chaudhry, the general counsel of the National Women’s Law Center in Washington. “It’s unfortunately a sad continuation of the way that women and girls in sports are treated in the U.S.”

March 14, 2019 in Education, Equal Employment, Sports | Permalink | Comments (0)

Friday, February 22, 2019

Race and the History of the Kentucky Woman Suffrage Movement: The Power of African-American Women Voters in School Suffrage

Randolph Hollingsworth, Power of African-American Women Voters in Lexington's School Suffrage, 1895-1902: Race and the History of the Kentucky Woman Suffrage Movement, 

Women suffragists in the U.S. included partial suffrage through participation in school-related elections as one of their strategies to reach full citizenship rights. Kentucky had already pointed the way for this strategy when in 1838 a statewide law passed protecting the right of female taxpaying heads-of-households in rural areas to vote on matters related to the new common school system. The leaders of the Kentucky Equal Rights Association (KERA) sought to build on this precedent during the 1890 Kentucky constitutional convention that offered the possibility of the legislature to grant women the right to vote. When the charters of cities of the second-class (i.e., Lexington, Covington and Newport) were up for revision in 1894, the General Assembly included what the KERA lobbyists were hoping for – the right for women in second-class cities to vote on school-related issues. By then, women in fifteen other states had successfully lobbied for legislation for partial suffrage (or full suffrage in some Western territories and states). This presentation will chronicle the evolution of school suffrage laws of Kentucky, focusing on the 1901 school board election in Lexington and the revocation of school suffrage in 1902. That election cycle evidenced a large percentage of African-American women whose registration totals favored the Republican Party. However, only half of the registrants ended up casting a vote – leading to the election of a Democratic Party ticket that year. The unusual numbers of black women voters threatened the racially conservative norm, and in January 1902, the Kentucky legislature repealed the partial suffrage law. The political backlash over the racial disproportionality of women voters in this election exposed the Kentucky partisan feuds of the time, however the issue of race control was at the core of the reasoning for revoking even this limited attempt at partial suffrage in Kentucky. This paper argues that race mattered more than partisan politics, class or social standing in determining the outcome of suffrage laws for women in Kentucky.

February 22, 2019 in Education, Legal History, Race | Permalink | Comments (0)

Thursday, February 21, 2019

Critiques of the Department of Education's Proposed Rulemaking for Title IX

Nancy Chi Cantalupo, Dog Whistles and Beachheads: The Trump Administration, Sexual Violence & Student Discipline in Education, Wake Forest L. Rev., forthcoming  

On November 29, 2018, the Trump administration’s Department of Education (ED), under the leadership of Secretary Betsy DeVos, published in the Federal Register a Notice of Proposed Rulemaking (NPRM) proposing expansive changes to ED’s regulations under Title IX of the Educational Amendments of 1972 (Title IX). These changes focus on Title IX’s prohibition of sexual harassment, which includes sexual violence as a severe form of sexual harassment. The NPRM, among a very long list of other starkly unequal proposals, proposes to lift the historical expectation that schools will use a preponderance of the evidence standard of proof in their internal sexual harassment investigations. Instead, the NPRM proposes a rule that would instead push schools to adopt a clear and convincing evidence (C&C) standard for not only sexual harassment but other forms of discriminatory harassment.

In its first part, this article will map the ways in which the NPRM’s attempt to replace the historically-used civil rights preponderance standard with the quasi-criminal C&C evidence standard attempts to establish a beachhead in a larger and longer war against civil rights and equal educational opportunity. This broad attack on civil rights in education will undermine the rights of not only sexual harassment victims, but all discriminatory harassment victims, especially women students of color and those in other intersectional populations (e.g. girls with disabilities) who are disproportionately vulnerable to multiple forms of discriminatory harassment. ED’s permission to adopt an inappropriate standard for sexual harassment will open the door for schools to do the same for other forms of discriminatory harassment, resulting in fewer protections from all discriminatory harassment, not just sexual harassment, and at precisely a time, post-2016 election, when such harassment is skyrocketing.

The article next demonstrates how the due process dog whistle is a key weapon in the establishment of that beachhead. Specifically, it will show that although ED claims to have issued the NPRM to enhance accused students of color’s due process rights and promote racial justice, the NPRM actually acts as a part of a campaign by a number of coordinated groups, many of which are men’s rights groups and/or funded by foundations like the Koch Foundation, to undermine the rights of not only harassment victims but also accused students who are overwhelmingly African American. As a dog whistle, it seeks to convince the public that dismantling Title IX protections for sexual harassment victims will better protect students of color’s due process rights, while distracting attention from Trump officials’ quiet dismantling of Obama-era efforts to stop disproportionate school discipline of Black students.

The final part will then discuss the potential and actual use of the “commenting power” to defend Title IX and its intended beneficiaries (i.e., sexual harassment victims) — as well as the classes protected by civil rights laws that can be attacked via an anti-Title IX beachhead. This section will use the results of a June-September 2017 ED comment call, asking for public “input on regulations that may be appropriate for repeal, replacement, or modification,” to show the high level of democratic support for Title IX, as well as the undemocratic nature of agency actions such as the NPRM. It will also discuss the important implications of this resistance strategy for the NPRM as well as the Administrative Procedure Act, which is fundamentally concerned with reining in anti-democratic impulses by non-elected officials.

February 21, 2019 in Education | Permalink | Comments (0)

Tuesday, February 19, 2019

Redressing the Sexual Harassment in Elementary, Middle, and High Schools

Ann McGinley, Schools as Training Grounds for Harassment, University of Chicago Legal Forum, Forthcoming

This article analyzes elementary, middle, and high schools' role in permitting and encouraging peer sex- and gender-based harassment of children and the law's role in failing to hold schools accountable for their negligent and intentional behavior in sanctioning it. Part I discusses the evidence of rampant peer harassment in schools. Part II analyzes the problem through the lens of masculinities theory. Part III examines court cases and decisions of the Office of Civil Rights of the Department of Education ("OCR"), and demonstrates that the proposed Title IX regulations would apply the strict court standards to OCR complaints, thereby making remedying of school-based harassment virtually impossible. Part IV proposes new legal standards for the courts and argues that the court standards should be more similar to those applied historically by the OCR. It also suggests possible legislative reform. The article concludes that when schools ignore their responsibilities to prevent and remedy peer sex- and gender-based harassment they become important training grounds for future harassers, a role that the #MeToo Movement cannot tolerate. 

February 19, 2019 in Education | Permalink | Comments (0)

Monday, February 18, 2019

A Critique of the Trump Administration's Proposed Standard of Evidence for Campus Title IX Proceedings

William Kidder, (En)forcing a Foolish Consistency?: A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of Evidence Regulation for Campus Title IX Proceedings 

Prevention of sexual assault and sexual harassment are major challenges at U.S. colleges and universities today. In recent years a vigorous law and policy debate emerged within the higher education community about Title IX and whether the “preponderance of evidence” or “clear and convincing” evidence represents the more appropriate standard of evidence in campus sexual violence and sexual harassment disciplinary procedures. During the Obama administration the Office for Civil Rights in the U.S. Department of Education issued a 2011 “Dear Colleague” letter recognizing that the preponderance of evidence standard was the appropriate standard for Title IX investigations. The Trump administration's Office for Civil Rights rescinded this earlier guidance and in November 2018 issued a notice of proposed rulemaking regarding Title IX regulations. The new proposed regulation reflects a “you can have more discretion, if you rachet up” policy: a college can only use the preponderance of evidence standard if it adopts that same standard across-the-board in similarly serious non-Title IX student misconduct cases and in both Title IX and non-Title IX cases where the accused/respondent is a faculty member or employee. If a campus chooses to adopt the clear and convincing evidence standard in Title IX cases, the proposed regulation would not restrict campus discretion in non-Title IX student cases.

While the relationship between the burden of proof and outcomes is complicated and dynamic, the main tendency if campuses were to shift to the clear and convincing evidence standard in Title IX adjudications would likely be a net decrease in accuracy because the rise in “false negative” errors (student or employee commits sexual misconduct but is found not responsible) would outnumber the corresponding decrease in “false positive” errors. By implication, a shift to the clear and convincing standard would also make it more difficult – other things being equal – for campuses to impose disciplinary accountability in cases of serial sexual misconduct and serial sexual harassment.

This article also aims to inform the debate about Title IX and faculty and student disciplinary cases by objectively identifying whether the preponderance of evidence or clear and convincing evidence standard is used in most domains that are reasonably analogous to faculty Title IX-related misconduct proceedings (a more stringent test than looking only at student-to-student Title IX cases). This review includes U.S. federal civil rights adjudications, faculty research misconduct cases linked to federal research grants, civil anti-fraud proceedings, attorney debarment/discipline cases and physician misconduct/license cases. In a large majority of these areas, preponderance of evidence is used as the standard of evidence. This pattern highlights concerns about the Office for Civil Rights selectively referencing cases that support its proposed Title IX regulation and questionable claims about the clear and convincing evidence standard and stigma. This article also raises questions, depending on how the notice-and-comment process unfolds, about the proposed Title IX regulation and the Administrative Procedure Act.

February 18, 2019 in Education, Violence Against Women | Permalink | Comments (0)

Integrating Yale's Fraternities as a Way to Disrupt Gendered Power of Both Privilege and Sexual Misconduct

I'm interviewed in this story, with some thoughts on both gendered power and systemic remedies.

NPR, Here & Now, Female Yale Students File Suit Alleging School Turned "Blind Eye" to Fraternity Sexual Misconduct

Three female students are suing Yale University and nine off-campus fraternities there, arguing the fraternities create a hostile environment for women and that Yale is "turning a blind eye" to sexual misconduct.***

 

Among its claims, the lawsuit argues Yale is violating Title IX, the law banning sex discrimination at schools that receive federal funding. The plaintiffs want the fraternities to allow women to join — and to gain access to fraternities' powerful alumni networks.

 

In addition to allowing women into fraternities, the plaintiffs in the lawsuit are asking Yale to create more oversight of the off-campus fraternities, including appointing "sober monitors" to watch alcohol consumption at parties and to intervene in cases of sexual harassment or assault.

 

"I think schools have tried to address the situation by distancing themselves from fraternities, having them go off campus," says University of Akron law professor Tracy Thomas. "This is actually asking for the opposite. Some of the relief is asking for Yale to create a Greek council and to create more oversight, bouncers at the fraternity parties, and so that may change how schools have been trying to deal with the issue."

Listen for the full story.

February 18, 2019 in Education, Gender | Permalink | Comments (0)

Thursday, February 14, 2019

Harvard University Policy Sanctions Students Who Join Single-Gender Group

Harvard Cracks Down on All-Male Clubs. But It's Women's Groups That Have Vanished.

Just over a year ago, Harvard University's leaders made an announcement that they hoped would be the final word, for the time being, in a lengthy debate over the future of campus social life.

 

Starting with the freshman class in 2017, any student who joined a single-gender social group — like one of the university's exclusive final clubs, or a fraternity or sorority — would face restrictions. Members wouldn't be able to hold leadership positions on campus, serve as captains of athletic teams, or receive Harvard's endorsement for postgraduate scholarships like the Rhodes and the Marshall. The groups could avoid the sanctions only if they went coed.

 

Technically, the policy had been unveiled in May 2016. But after 18 months of contentious conversations, Harvard's governing board finally voted to approve the restrictions. The board's action would, in theory, institute the policy beyond the tenure of Drew Gilpin Faust, the president at the time, who stepped down this summer.

 

To some observers, the demise of exclusionary social groups on college campuses makes a lot of sense. As student populations diversify, administrators are growing more aware of the need to foster inclusive environments, not ones segregated by gender and class. At Harvard, the men's final clubs in particular seem like vestiges of a university from an earlier era, when the student body was whiter and wealthier than it is today.

 

So on the surface, it would be easy to dismiss the lawsuits filed against Harvard by Greek organizations last month as a last-gasp effort. Privileged people are digging in their heels in the face of threats to their privilege, the argument goes. The suits are accompanied by a national campaign and petition, with an extensive website that purports to tell "the Truth" about single-gender social organizations. Some sorority chapters at other colleges have encouraged members and alumni to sign on.

 

But the sorority members who have become the loudest voice in favor of the lawsuits argue that their fight isn't about protecting privilege at all. It's about protecting women.

 

Harvard officials have said their crackdown on social groups was designed to do just that. In their view, all-male final clubs encourage misogynistic behaviors and create problematic environments for women. The solution? To discourage the behavior at the source.

For a related story, see Women Students Sue Yale University and Fraternities Seeking Gender Integration

February 14, 2019 in Education, Gender | Permalink | Comments (0)

Wednesday, February 13, 2019

Women Students Sue Yale University and Fraternities Seeking Gender Integration

Three women students have sued Yale University and Yale Fraternities claiming a hostile environment in violation of Title IX from the sexualized, assaulting environment of the fraternities, and unequal educational opportunity in violation of Title IX for the perpetuation of privilege and opportunity available to men in fraternities.  Both addressing the eradication of gendered power that systemically reinforces women's inferiority.  The women also bring ancillary contract and unfair trade claims, seeking a legal vehicle for expressing the disappointment of being lured into a top university, only to find a toxic gender social culture reminiscent of the the 1950s.

The complaint is here: McNeil v. Yale University (D. Conn.) (filed 2/12/19).

Para. 5.  Yale is a microcosm of the ongoing epidemic of sexual harassment and assault at all-male fraternities. For decades, social science research has warned that fraternities perpetuate and normalize forms of gender discrimination and sexual violence. Studies have found that fraternity brothers commit sexual assault at three times the rate of other male college students. Brothers are also reportedly more likely to use alcohol to obtain sex, more likely to be involved in gang rapes, more likely to endorse traditional gender roles, and more likely to espouse rape myths. Nevertheless, fraternities remain powerful institutions. Colleges and universities depend on fraternities to, among other things, house students, serve as social venues, and yield an ever replenishing source of alumni donors.

The relief demanded is not the elimination of the fraternities but rather gender integration, allowing women to join fraternities, and greater integration with and oversight by the university.  For support for this remedial outcome, see Justice Ginsburg's majority opinion in the Virginia Military Institute case, United States v. Virginia (1996).

The women spoke on CBS News, video here.

Procedural complications from the lawsuit are likely due to the Supreme Court's decision in Wal-Mart v. Dukes (2011) hindering class actions in gender discrimination cases.  And also due to the separate existence of the national entities of the fraternal organizations themselves. 

For further information on the new lawsuit see:

NY Times, Women Sue Yale Over a Fraternity Culture They Say Enables Harassment

USA Today, Lawsuit Seeks to Force All-Male Fraternities to Allow Women

Independent, Female Students Sue Yale University Fraternities Attended by Brett Kavanaugh and George Bush

February 13, 2019 in Education, Gender | Permalink | Comments (0)

Thursday, February 7, 2019

Law Schools Enrolling the Most Women