Wednesday, February 21, 2024

Feminist Pedagogy in Legal Education

Jamie Abrams, Feminist Pedagogy in Legal Education, Oxford Handbook of Feminism & the Law in the U.S. (Deborah Brake, Martha Chamallas & Verna Williams, eds. 2023).

This chapter . . .  traces and evaluates the influences of feminism in legal education. It explores how feminist critiques challenged the substance of legal rules, the methods of law teaching, and the culture of legal education. Following decades of advocacy, feminist pedagogical reforms have generated new fields, new courses, new laws, new leaders, and new feminist spaces. This chapter captures many reasons to celebrate the accomplishments of our feminist pioneers and champions. It also serves as a critical call to action to modern faculty, administrators, and students to carry the work forward with a vigilant purpose and determination.

February 21, 2024 in Education, Law schools, Theory | Permalink | Comments (0)

New Book: Inclusive Socratic Teaching

New book from my co-editor on the Gender & Law Blog. 

Inclusive Socratic Teaching by Jamie R. Abrams

Jamie Abrams, Inclusive Socrative Teaching: Why Law Schools Need it and How to Achieve It (U.C. Press June 2024)

For more than fifty years, scholars have documented and critiqued the marginalizing effects of the Socratic teaching techniques that dominate law school classrooms. In spite of this, law school budgets, staffing models, and course requirements still center Socratic classrooms as the curricular core of legal education. In this clear-eyed book, law professor Jamie R. Abrams catalogs both the harms of the Socratic method and the deteriorating well-being of modern law students and lawyers, concluding that there is nothing to lose and so much to gain by reimagining Socratic teaching. Recognizing that these traditional classrooms are still necessary sites to fortify and catalyze other innovations and values in legal education, Inclusive Socratic Teaching provides concrete tips and strategies to dismantle the autocratic power and inequality that so often characterize these classrooms. A galvanizing call to action, this hands-on guide equips educators and administrators with an inclusive teaching model that reframes the Socratic classroom around teaching techniques that are student centered, skills centered, client centered, and community centered

 

February 21, 2024 in Books, Education, Law schools | Permalink | Comments (0)

Wednesday, January 31, 2024

Campus Wars, Women Leaders, and the Glass Cliff

NYT, Campus Wars Aren't About Gender--Are They?

***

“Four women presidents, all new in their roles, far too new to have shaped the culture on their campuses, called before Congress? Of course there’s a pattern,” Dr. Andrews said. “The question is, What’s the agenda? Is it to take down women leaders? To attack elite universities through a perceived vulnerability? To further a political purpose?”

Privately if not always publicly, other women in the academy described a similar reaction to the spectacle around the hearing on Dec. 5 and the fallout since: Ms. Magill and Dr. Gay resigned, their critics made it clear they were coming for Dr. Kornbluth, and last week, prominent male donors demanded the ouster of Cornell president Martha Pollack, too.

***

Are women more likely to end up in vulnerable positions? Social psychologists have proposed the idea of the “glass cliff” to describe the phenomenon of women who become leaders in times of crisis. In institutions not used to female leaders, they are seen as weaker. Subject to greater scrutiny, they tend to fail sooner.

“It’s not clear whether they’re selected because it’s a difficult time and people think women can make it better when things are bad, or if women are really set up, inadvertently or advertently,” said Madeline Heilman, an emerita professor at New York University who has conducted decades of experiments on sex bias in the workplace. Whatever the case, she said, “if they both start well and a man does poorly, people offer excuses and other reasons before they see it as indicative of what he’s like. For a woman, it fits into the stereotype of not being qualified. What is seen as a mistake for men is a lethal error for a woman.”

Decades of experiments show other ways that stereotypes disadvantage women. Men and women alike are too stingy when evaluating women and too generous when evaluating men, whether what’s being judged is their height or the strength of their C.V. Studies of millions of scientific papers find that those with women as lead author are far less likely to be cited than those led by men. Reports on the status of women on individual campuses and from national organizations  document  marginalization and persistent disrespect. Taken in isolation, such episodes can seem small, but they add up, leaving female professors earning less and taking longer to be promoted, irrespective of productivity. Fed up, many “senior” women leave.

January 31, 2024 in Education, Equal Employment, Gender | Permalink | Comments (0)

Thursday, October 26, 2023

New Study Shows that Even With Tenure Women are More Likely to Leave Higher Ed

Chronicle, Even With Tenure, Women Are More Likely to Leave Higher Ed

Across academe, women are more likely to leave their faculty positions than men, and attrition is highest for women who have tenure or work in fields outside of science, technology, engineering, and math, according to a new study.

And even when men and women leave at the same rate, their reasons for doing so are gendered: Early-career women are more likely to leave due to issues with work-life balance, while women later in their careers are more likely to leave because of a hostile work environment. Men tend to cite professional reasons, such as a lack of resources or support.***

Women were more likely to leave their faculty roles than men at every career stage, and the gap grew wider at the top of the ladder. At the assistant-professor level, women were 6 percent more likely to leave than men. Among full professors, that figure was 19 percent.

Tenured faculty leaving at the highest rate is surprising, Raj said. But she speculated that women with tenure might be able to transition into other careers more easily than their less-experienced colleagues if the environment drives them out.

Women at less prestigious institutions were also more likely to quit.

Women most often cited issues with workplace climate as their reasons for leaving, such as harassment, dysfunctional department leadership, and feelings of not belonging. Men most often recounted professional reasons for leaving, such as difficulty obtaining funding or poor administrative support.

Previously, research has shown that one of the biggest drivers of inequity between women and men on the faculty is responsibilities at home. Additionally, Raj has observed gender gaps in sponsorship from more senior academics and in service work such as mentoring students.

Study, Science Advances, Gender and Retention Patterns Among US Faculty

Women remain underrepresented among faculty in nearly all academic fields. Using a census of 245,270 tenure-track and tenured professors at United States–based PhD-granting departments, we show that women leave academia overall at higher rates than men at every career age, in large part because of strongly gendered attrition at lower-prestige institutions, in non-STEM fields, and among tenured faculty. A large-scale survey of the same faculty indicates that the reasons faculty leave are gendered, even for institutions, fields, and career ages in which retention rates are not. Women are more likely than men to feel pushed from their jobs and less likely to feel pulled toward better opportunities, and women leave or consider leaving because of workplace climate more often than work-life balance. These results quantify the systemic nature of gendered faculty retention; contextualize its relationship with career age, institutional prestige, and field; and highlight the importance of understanding the gendered reasons for attrition rather than focusing on rates alone.

October 26, 2023 in Education, Equal Employment, Gender, Workplace | Permalink | Comments (0)

Wednesday, October 18, 2023

A Theory of Perversity as an Outer Bound of Rational Basis Review

Professor Boone's theory discussed, and then applied to the contexts of abstinence-only sex education, mandatory arrest laws in domestic violence, and targeted regulation of abortion providers.

Meghan Boone, Perverse & Irrational, 16 Harv. Law & Policy Rev. (2022)  

In our system of representative democracy, legislatures are given a great deal of latitude to select and pass laws that they deem to be in the public interest. Assuming that no suspect class or fundamental right is involved, the Constitution has been interpreted to only require legislative action to satisfy rational basis review—a highly deferential standard that requires only that a legitimate purpose exist and the means adopted to achieve that purpose are rationally related to that purpose. Under rational basis review, legislatures can and do enact laws that are significantly over- or underinclusive to the identified problem. They can enact laws that do not even accomplish their intended purpose in most instances. They can even enact laws which are unsupported by any evidence, much less high-quality evidence. And yet . . . courts insist that rational basis review still means something. That it is something other than a blank check for legislatures to do as they will.

This Article explores one example of the outer bounds of rationality—demonstrated perversity. That is, a law that clearly contravenes the overarching legislative intent because the law is solely or primarily responsible for producing the opposite result of that intent. Although often unnamed as such, perversity presents itself across the legislative landscape, from mundane local ordinances to sweeping federal legislation. And while not explicitly recognized as a basis for finding a law unconstitutional, Supreme Court precedent clearly hints at the possibility that demonstrated perversity could be a basis for invalidating laws.

By defining perversity, identifying when and how it occurs, and exploring how it might be used to challenge the constitutionality of various government actions, this Article aims to illuminate an undertheorized corner of the already robust literature on rational basis review. It argues that current rational basis review precedent already employs a type of perversity analysis, although courts fail to explicitly acknowledge it as such. Moreover, it argues that modern changes in scientific and empirical methodologies and the explosion of the information economy demonstrate the need for this type of analysis; without it, rational basis review is meaningless. Ultimately, the Article concludes that while rational basis scrutiny gives legislatures wide latitude, courts must set a constitutional limit by striking down statutes which cause outcomes clearly counterproductive to legislative goals.

October 18, 2023 in Abortion, Education, Reproductive Rights, Theory, Violence Against Women | Permalink | Comments (0)

Friday, October 6, 2023

Teaching Patriarchy After Barbie

Teaching Patriarchy Post-Barbie, Ms.

Like many, I’m grateful that this summer’s Barbie film has moviegoers around the world talking about the patriarchy. I am delighted that the highest-grossing movie of 2023 has brought the word “patriarchy” into our daily parlance. Now that we have the language to describe our predicament, it’s critically important to keep talking about the patriarchy, and to keep going down the path that Barbie takes us on to investigate the way our daily lives are impacted by patriarchal constructs. I’ve been using similar tactics to the Barbie movie to introduce these ideas to my first-year students at UC Santa Cruz, with revealing results.

Most students sign up for my composition course to fulfill a general writing requirement, without knowing what the subject of the class will be. When they discover the topic on the first day of class, some students express that they have no desire to “Come Closer to Feminism,” as I have titled the course (borrowing this phrase from bell hooks’ marvelous handbook Feminism is for Everybody).

Faced with this reality, I have had to create a way for students to learn about feminism even if they initially describe themselves as anti-feminist. My goal is to make the course accessible and applicable for everyone who is placed into it. This includes helping students of all backgrounds unpack how the intersections of their individual gender, racial and sexual identities make them particularly privileged—or oppressed—within our patriarchal society.

October 6, 2023 in Education, Pop Culture, Theory | Permalink | Comments (0)

Thursday, September 28, 2023

Finding a Constructive and Fair Way to Frame the Rhetoric of Rape

Kathryn Stanchi, The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz, International Journal for the Semiotics of Law (Forthcoming)

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change.

This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

September 28, 2023 in Education, Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, September 12, 2023

An Analysis of the Heightened Procedural Protections for Title IX Campus Sexual Misconduct Cases

Kelly Behre, The Irony of Title IX: Exploring How Colleges Implement Credibility Discounts Against Student Victims of Gender-Based Violence In Campus Misconduct Case," 103 Boston U. L. Rev. Online 109 (2023)


On May 6, 2020, the U.S. Department of Education released new Title IX regulations requiring colleges to provide expanded due process rights for student respondents in campus misconduct cases involving sexual assault, dating violence, and stalking. A little over a year earlier, a California appellate court also expanded rights to student respondents in sexual misconduct cases, indicating that the trend is not limited to one particular presidential administration.2 To those unfamiliar with typical campus adjudication procedures, many of the new rights federal and state law afford respondents in campus misconduct cases involving gender-based violence might seem intuitive. The right to retained counsel, the right to a live hearing following an investigation, the right to cross-examine all witnesses, and the right to appeal are all common in U.S. criminal and civil law systems. But when placed within the context of campus misconduct procedures, the normalization of these protections for only one class of student respondents requires interrogation. The expanded due process rights do not apply to all students responding to campus misconduct violations; they do not even apply to all students responding to violations that could also constitute crimes or result in expulsion or suspension from college. The new rights only protect students responding to campus misconduct violations that involve gender-based violence, and the resulting harms of the additional procedures only burden student victims of gender-based violence.

This article provides specific examples of campus misconduct procedures demonstrating how colleges may provide heightened procedural protections to student respondents and heightened burdens to student complainants in gender-based violence cases that diverge from their adjudication procedures for other forms of misconduct on the same campus. Part I provides a brief overview of the current legal landscape for campus adjudications involving gender-based violence. Part II employs two hypothetical fact patterns to identify specific differences between the procedural protections campuses provide students responding to a complaint of physical assault against another student generally and the protections provided to students responding to a complaint of physical assault against a current or former dating partner. Part III addresses how heightened procedural protections for student respondents cause additional harms for student complainants in campus cases involving gender-based violence. Part IV explores the role that credibility discounting of victims of gender-based violence plays in the creation of heightened procedural protections for respondents in campus misconduct cases involving gender-based violence. It further suggests that any future changes to Title IX policy involving campus misconduct procedures should include an analysis comparing the rights and protections colleges afford respondents in gender-based violence adjudications to all other respondents in campus misconduct adjudications.

September 12, 2023 in Education | Permalink | Comments (0)

Friday, August 18, 2023

Ninth Circuit Says Law Banning Transgender Students is Likely Unconstitutional

ABA J, Law Banning Transgender Students from Female Sports Likely Unconstitutional, Ninth Circuit Says

A federal appeals court on Thursday ruled for a transgender college student who challenged an Idaho law that bars transgender athletes from participating in women’s and girls' student sports in public schools.

The 9th U.S. Circuit Court of Appeals at San Francisco upheld a finding that the law likely violates the equal protection clause, according to an Aug. 17 press release by the American Civil Liberties Union.

Bloomberg Law has coverage.

The appeals court ruled for Lindsay Hecox, a student at Boise State University who wanted to try out for the cross-country team and play club soccer.

The 9th Circuit upheld an injunction banning enforcement of the Idaho law, the Fairness in Women’s Sports Act. The law bars all transgender women and girls from participating in or trying out for public school female sports teams at every age—from intramural to elite teams.

The law provides for a verification process that can be invoked by a person who wants to dispute another person’s sex. The process requires “intrusive medical procedures,” the appeals court said in an Aug. 17 opinion by Judge Kim McLane Wardlaw.

The American Civil Liberties Union had filed the lawsuit, along with the ACLU of Idaho, Legal Voice and Cooley.

The case is Hecox v. Little.

August 18, 2023 in Constitutional, Education, LGBT, Sports | Permalink | Comments (0)

Thursday, August 17, 2023

Analyzing the Glass Ceiling of the NCAA's Name, Image and Likeness Rule under Title IX

Tanyon Boston, The NIL Glass Ceiling, Richmond L. Rev. (forthcoming)  

On July 1, 2021, the National Collegiate Athletic Association (NCAA) adopted the most progressive reform in modern intercollegiate athletics history when it conceded the right of nearly 500,000 NCAA athletes to monetize their names, images and likenesses (NILs). This historic reform followed the enactment of dozens of state laws on the topic and a unanimous Supreme Court decision in NCAA v. Alston, which held that the national governing body violated antitrust laws with its restrictions on athletes’ educational, and perhaps other, benefits. Almost immediately, wealthy University of Texas donors established an unprecedented $10,000,000 collective to finance NIL opportunities for Longhorns athletes. Today, there are over one hundred collectives, whose NIL opportunities favor men’s sports by a ratio of over five-to-one. Such enormous disparities in privately financed NIL send women discouraging messages about the state of gender equity, not only in intercollegiate athletics, but also in the workplace – where women face similar glass ceilings.

Although legal scholars have written extensively on the antitrust, labor and tax law implications of NIL, very little scholarship exists on the Title IX implications. In seeking to fill the gap, this Article uses a hypothetical state university to illustrate how schools facilitate gender discrimination through NIL collectives, contrary to Title IX. After exploring the implications of Title IX’s regulatory gap with respect to NIL, this Article introduces three proposals to close the gap.

August 17, 2023 in Education, Sports | Permalink | Comments (0)

Fla College Moves to Dismantle Gender Studies Arguing it is Not an Area of Academic Study

Chronicle, New College of Florida's Board Starts to Dismantle Gender Studies

Earlier this year, the conservative activist and writer Christopher F. Rufo proclaimed that intolerant left-wingers had essentially captured New College of Florida, the state’s designated honors college. As a newly appointed trustee, Rufo employed the rhetoric of battle in describing his effort to right the ship:

“We will plunge into a period of inevitable conflict and controversy, with determination to advance the interests of the people of Florida ... to demonstrate that there is a way out of the institutional hostage crisis,” he wrote in City Journal.

During a board meeting Thursday, Rufo lobbed a grenade. He made a motion — which ultimately passed — to “direct the president and staff to take the necessary and proper steps to terminate the gender-studies program, beginning with the 2024 enrollees.”***

Rufo said that the gender-studies program was not compatible with the Board of Trustees’ mission of reviving a “classical liberal-arts education” at New College. During the 35-minute discussion of his motion, he argued that there is “great historical precedent” at other colleges for abolishing academic programs that “stray from their scholarly mission in favor of ideological activism.”***

Matthew Spalding, a trustee, echoed Rufo’s criticism of gender studies. “It’s not within the liberal arts, and it’s more of an ideological movement than an academic discipline,” said Spalding, dean of Hillsdale College’s Graduate School of Government, in Washington D.C., who was appointed to the board by DeSantis.

“It’s a mishmosh of things,” Spalding said at another point in the meeting. “Read the website — I have no idea what it’s about. It’s very confused.”

Mark Bauerlein, another DeSantis appointee and a professor emeritus of English at Emory University, in Georgia, said that while he’s not “against” gender studies, he does not think it should be an “independent disciplinary entity.”

During the meeting, Reid argued that gender studies is an established discipline at many higher-ed institutions. Some New College students take courses in gender studies because, for them, it is a “significant component of a liberal-arts degree,” she added

August 17, 2023 in Education | Permalink | Comments (0)

Tuesday, August 15, 2023

New Book Equality Unfulfilled: How Title IX's Policy Design Undermines Change to College Sports

New Book by Elizabeth Sharrow About Title IX "Equality Unfulfilled" is Published

Elizabeth Sharrow, associate professor of public policy and history, has published a new book, “Equality Unfulfilled: How Title IX’s Policy Design Undermines Change to College Sport” (Cambridge University Press, July 2023), examining the half-century legacy of the law’s passage.

As Sharrow and co-author James Druckman of Northwestern University explain in the book, the year 1972 is often hailed as an inflection point in the evolution of women’s rights. Congress passed Title IX of the Education Amendments of 1972, a law that outlawed sex-based discrimination in education. Many Americans celebrate Title IX for having ushered in an era of expanded opportunity for women’s athletics, yet 50 years after its passage sex-based inequalities in college athletics remain the reality. “Equality Unfulfilled” explains why, identifying institutional roadblocks – including sex-based segregation, androcentric organizational cultures and overbearing market incentives – that undermine efforts to achieve systemic change.

Drawing on surveys with student-athletes, athletic administrators, college coaches, members of the public and fans of college sports, it highlights how institutions shape attitudes toward gender equity policy. It offers novel lessons not only for those interested in college sports but for everyone seeking to understand the barriers that any marginalized group faces in their quest for equality.

 

 

The cover art for the book Equality Unfulfilled by Elizabeth Sharrow

August 15, 2023 in Books, Education, Legal History, Sports | Permalink | Comments (0)

Wednesday, July 19, 2023

Gender Inequality and Representations of Women in the Contracts Curriculum

Deborah Zalesne, Gender Inequality in Contracts Casebooks: Representations of Women in the Contracts Curriculum, 17 FIU Law Rev. 139 (2023).

Gender has always explicitly or implicitly played a critical role in contracting and in contracts opinions—from the early nineteenth century, when married women lacked the legal capacity altogether to contract, through the next century, when women gained the right to contract but continued to lack bargaining power and to be disadvantaged in the bargaining process in many cases, to today, when women are present in greater numbers in business and commerce, but face continued, yet less overt, obstacles. Typical casebooks provide ample offerings for discussions of the ways in which parties can be and have been disadvantaged because of their gender and gender identity. At the core, gender inequity often stems from long-held stereotypes about women in contracting, which are often on full display in the cases. The vast majority of cases in the typical Contracts casebook are drawn primarily from the commercial context; sales, franchise, employment, and transfer of property cases predominate most Contracts casebooks, with many fewer cases in the family context. In the commercial cases, women and other people who do not identify as men, rarely seen as the businessperson, seller, or landowner, are sorely underrepresented, and the “non-male” perspective tends to be obscured. Casebook offerings involving non-male parties still tend to be clustered in certain areas—namely contract defenses, promissory estoppel, and family cases. The result is a Contracts curriculum that typically confines women to certain traditional roles and relegates women’s issues to a secondary status, privileging rational, arms-length market promises at the expense of family-based promises. The overall gender allocation in cases may or may not be reflective of the actual presence of women in the universe of American contracts cases. But either way, it raises some issues regarding how the typical casebook presents women in the realm of contracts cases, and overall, the role of women in contracting. There is, of course, a diversity of viewpoints and a multiplicity of voices among women and feminists, who are divided by age, race, religion, sexual orientation, gender identity, ethnicity, and class, among other things. There are divisions among feminists over the nature and source of gender injustice, as well as over solutions.2 Feminists differ, for example, over the roles of men and women (such as biological differences and cultural frameworks that land women as the primary caretakers most of the time), and whether and how the law should account for those differences.3 When it comes to contract law, some feminists embrace contracting as a means of empowerment,4 while others express concern over whether most women have the bargaining power necessary to protect themselves in the bargaining process. 5 The goal of the Article is not to set out in any detail the contours and fine points of feminist legal theory. Rather, the Article will simply highlight gender-based deficiencies in the ways in which women are portrayed in traditional contracts cases and casebooks, often as either victims, overly-aggressive commercial actors, or in other specific gendered roles such as bride, princess, nurturer, mother, spouse, or mistress. In doing so, the Article will highlight feminist themes and conflicts in contract law and the ways in which reliance on gender-based stereotypes can negatively affect legal analysis in Contracts cases.

July 19, 2023 in Books, Business, Education, Gender, Law schools | Permalink | Comments (0)

Friday, June 30, 2023

Conn Supreme Court Allows Defamation Suit by Defendant in Yale Sexual Assault Case to Go Forward Citing Lack of Procedures in Title IX Hearing

Aaron Keller, Conn. Justices Nix Absolute Immunity In Yale Hearings, Law360

In a stinging high court indictment of Yale University's internal sexual misconduct hearings, the Connecticut Supreme Court on Friday unanimously held that the elite college's proceedings are not quasi-judicial in nature and that absolute immunity does not immediately protect an accuser from an accused student's defamation and tortious interference claims.

Answering several certified questions from the Second Circuit, Connecticut's highest state court said a lower form of privilege, qualified immunity, does apply to the private college's internal hearings. However, the accused student who challenged those proceedings, Saifullah Khan, defeated that lower immunity and should have survived a federal district court judge's dismissal of his claims against his accuser, according to the opinion.***

The opinion reopens a path for Khan, who was acquitted of criminal sexual assault charges, to pursue claims against his accuser, the college and its administrators.

"We are mindful of these concerns and sensitive to the need to encourage alleged victims of sexual assault to report their abuse to the appropriate authority at any institution of higher education, free from fear of intimidation and retribution," [Judge] Mullins wrote.

But the court also said investigations without "adequate procedural safeguards" can lead to unfair outcomes, noting a "competing public policy that those accused of crimes, especially as serious a crime as sexual assault, are entitled to fundamental fairness before being labeled a sexual predator."

Aaron Keller, Conn Court Ruling May Force Colleges to Rethink Title IX Hearings, Law360

A Connecticut Supreme Court opinion critical of a Yale University sexual misconduct proceeding will likely cause colleges to scramble to examine whether criminal-law-style adversarial processes should be added to Title IX hearings where they typically don't appear and arguably don't belong, several experts told Law360.

The Connecticut Supreme Court's opinion, issued Friday, held that a student accused of sexual assault, Saifullah Khan, could pursue a defamation lawsuit in Connecticut federal court because the underlying Yale proceeding was not quasi-judicial. The state Supreme Court, answering certified questions from the Second Circuit, said absolute immunity did not apply to Yale's proceeding due to its lack of procedural safeguards. ***

Anne M. Coughlin, a professor at the University of Virginia School of Law, said the Connecticut high court's opinion will "be studied and cited by every university in the country." "It was just astonishing to me," she said. "The very thing the court singles out as flaws … are the very reforms that people wanted to put in place in order to encourage women to report in the university setting."

Coughlin suggested that some colleges might even "panic" to check their Title IX procedures and send them "back to the drawing board" in light of the decision.


Stanford Law School professor Michele Dauber called the decision "terrible." "This court, comprised of five men and just two women, will chill reporting of campus sexual assault in Connecticut and perhaps beyond," she said. "Around the country, students alleging assault are being terrorized by the very real fear that they can be sued for defamation when they make a report of sexual assault to their colleges," Dauber said. "Title IX procedures are already humiliating and grueling for complainants. Now, thanks to this decision, reporting can result in a complainant being dragged through years of litigation by their accused perpetrator."***

Nancy Chi Cantalupo, an associate dean and professor at Wayne State University Law School who was the primary drafter of American Bar Association recommendations for improving student misconduct hearings, said social science research suggests the opposite of what the Connecticut Supreme Court found necessary.

"Adversarial proceedings do not result in better fact-finding in these cases," she said. "This assumption that adversarial proceedings are more fundamentally fair — I don't think those are borne out by the research. It's an indication that the court is relying on platitudes that have been unquestioned in the legal system for centuries." She said the presumption favoring cross-examination is rooted in "stereotypes about victims lying."***

Tracy A. Thomas, the Seiberling chair of constitutional law at the University of Akron School of Law, agreed that the opinion might spur colleges to treat sexual misconduct hearings like adjudications.

Some schools may struggle, she said, because many perceive their educational mission as one of guidance and mentorship, not of retribution and punishment. The opinion is "really going to hold the process to a higher standard, more like a judicial standard," she said.

Thomas said the Connecticut decision was "probably the right decision," but she, like many others, feared that it may open the door for unscrupulous defendants or their surrogates to abuse cross-examination techniques.

But getting the process right in the eyes of the courts will protect accusers, she noted. "It actually helps victims," she said. "A good process is good for everybody. It would have helped more facts come out." [And, according to the CT Supreme Court, a quasi-judicial proceeding would have immunized the victim against a defamation claim].

June 30, 2023 in Courts, Education, Violence Against Women | Permalink | Comments (0)

Wednesday, June 28, 2023

SCOTUS Won't Hear Case of Charter School Requiring Girls to Wear Skirts

Wash Post, Supreme Court Won't Hear Charter School's Bid to Force Girls to Wear Skirts

The Supreme Court on Monday declined to review the case of a North Carolina charter school that wanted to force female students to wear skirts in the name of “chivalry,” letting stand a lower-court ruling that deemed the policy unconstitutional.

The move is a victory for civil liberties advocates and a blow to social conservatives who hoped that — after allowing public vouchers to be used at religious schools last year — the top U.S. court would exempt charter schools from constitutional protections. The case could have had far-reaching implications for charter schools, which operate in a gray area, functioning as public schools that are run by private organizations.***

Only public institutions can be sued for violating constitutional rights — which protect students from discrimination, censorship and being thrown out of school without a hearing. The high court has ruled that students cannot be forced to recite the Pledge of Allegiance, that undocumented students have the right to attend school, and that all students, regardless of race, have the right to an equal education.

The appellate court looked at the particulars of North Carolina’s charter school system, noting that state law explicitly describes charters as public schools open to all students, holds them to state board of education standards and gives charter school employees government benefits. Ninety-five percent of Charter Day’s funding comes from public sources, the court noted.

June 28, 2023 in Education, Gender, SCOTUS | Permalink | Comments (0)

Tuesday, June 6, 2023

University Fired Two Employees for Using Gender Pronouns in Emails

NYT, A University Fired Two Employees for Including Pronouns in Their Emails

When Raegan Zelaya and Shua Wilmot decided to include their pronouns at the end of their work emails, they thought they were doing a good thing: following what they viewed as an emerging professional standard, and also sending a message of inclusivity at the Christian university where they worked.

But their bosses at Houghton University, in upstate New York, saw the matter very differently.

Administrators at Houghton, which was founded and is now owned by a conservative denomination that branched off from the Methodist Church, asked Ms. Zelaya and Mr. Wilmot, two residence hall directors, to remove the words “she/her” and “he/him” from their email signatures, saying they violated a new policy. When they refused to do so, both employees were fired, just weeks before the end of the semester.

Houghton’s firing of the two staff members has dismayed some of its alumni, nearly 600 of whom signed a petition in protest. And it comes as gender and sexuality have become major fault lines in an increasingly divided nation, and after other faith-based organizations, including Yeshiva University in Manhattan, have argued that First Amendment protections of religious freedom allow them to treat gay and transgender people differently than others.

June 6, 2023 in Education, Gender | Permalink | Comments (0)

Thursday, May 25, 2023

School Book Removals May Create Hostile Environment Violating Student Civil Rights

Wash Post, Book Removals May Have Violated Student Civil Rights, Education Dept. Says

In a move that could affect how schools handle book challenges, the federal government has concluded that a Georgia school district’s removal of titles with Black and LGBTQ characters may have created a “hostile environment” for students, potentially violating their civil rights.

The Education Department’s Office for Civil Rights released its findings in a letter Friday wrapping up its investigation into Forsyth County Schools’ 2022 decision to pull nearly a dozen books from shelves after parents complained of titles’ sexual and LGBTQ content. To resolve the investigation, the district north of Atlanta agreed to offer “supportive measures” to students affected by the book removals and to administer a school climate survey, per the letter. ***

The Education Department’s investigation into the Forsyth district — which involved the examination of school documents, interviews with top school personnel and a review of public board meeting records — was based on a complaint alleging that the January 2022 removal of books created a “racially and sexually hostile environment for students,” according to the department.

The district ultimately removed eight books indefinitely and two temporarily, according to the letter, and it limited four titles to high schools. Superintendent Jeff Bearden told the school board that the books being yanked “were obviously sexually explicit or pornographic,” according to the letter.

Of the books listed for removal, three center on characters of color and one on an LGBTQ protagonist, according to a Washington Post analysis. The nixed titles include “The Bluest Eye” by Nobel Prize-winning author Toni Morrison, the Forsyth County News reported and Caracciolo confirmed.

A study by the Washington Post found that the majority of all school book bans are being filed by a small number of people. See Objection to sexual, LGBTQ content propels spike in book challenges

A small number of people were responsible for most of the book challenges, The Post found. Individuals who filed 10 or more complaints were responsible for two-thirds of all challenges. In some cases, these serial filers relied on a network of volunteers gathered together under the aegis of conservative parents’ groups such as Moms for Liberty.

And the types of claims:

The Post analyzed the complaints to determine who was challenging the books, what kinds of books drew objections and why. Nearly half of filings — 43 percent — targeted titles with LGBTQ characters or themes, while 36 percent targeted titles featuring characters of color or dealing with issues of race and racism. The top reason people challenged books was “sexual” content; 61 percent of challenges referenced this concern.

In nearly 20 percent of the challenges, petitioners wrote that they wanted texts pulled from shelves because the titles depict lesbian, gay, queer, bisexual, homosexual, transgender or nonbinary lives. Many challengers wrote that reading books about LGBTQ people could cause children to alter their sexuality or gender.

 

May 25, 2023 in Books, Education, Gender, LGBT, Race | Permalink | Comments (0)

Wednesday, April 26, 2023

Reflections on Progress Without Equity, Title IX at Fifty in K-12 Athletics

Elizabeth Kristen, Reflections on Progress Without Equity: Title IX K-12 Athletics at Fifty, 30 American J. Law & Gender 227 (2022)

Title IX of the Education Amendments of 1972 (“Title IX”) turned fifty this year. Despite tremendous progress for women and girls over the last five decades, the promise of gender equity in athletics remains elusive, especially at the K-12 level. Unlike so many other civil rights laws passed in the 1960s and 1970s, Title IX remains a highly under-litigated and underenforced statute. A basic Westlaw search for “Title VII of the Civil Rights Act of 1964” yields more than 10,000 federal cases. But the same search for “Title IX of the Education Amendments of 1972” yields about 2500 cases. Only a small fraction of those cases (about 300) include the word “athletics,” and fewer still address gender inequity at the K-12 level. This Article provides a brief overview of the “state of play” concerning gender inequity in athletics and the basic structure of Title IX athletics equity law. It then considers the Ollier v. Sweetwater1 high school Title IX athletics case and lessons learned from that hard-fought litigation on behalf of a class of high school girls that sought to level the playing field at their school. It then makes nine recommendations for what changes should be made to our approach to Title IX athletics at the K-12 level to ensure more effective enforcement to achieve gender equity. Inequalities in athletics at the K-12 level require litigation and policy changes that will have substantial and positive impacts on the lives of girls and young women.

April 26, 2023 in Education, Sports | Permalink | Comments (0)

Tuesday, April 25, 2023

For the First Time, Court Holds That Female Student Athletes Can Sue Universities for Damages

Andy Zimbalist & Carrie Baker, Student-Athletes Can Now Sue Discriminatory Universities for Damages, a Victory for Title IX, Ms.

A first-in-the-nation court ruling says female student-athletes deprived of equal athletic financial aid can sue their schools for damages.

U.S. District Court Judge Todd W. Robinson ruled on April 13 that the female student-athletes suing San Diego State University (SDSU) for violating Title IX can pursue claims for equal athletic financial aid, equal treatment and retaliation. The decision is the first in the nation to hold that female student-athletes deprived of equal athletic financial aid can sue their schools for damages.

“This is a major step forward for women and against sex discrimination at SDSU and nationwide,” said lead counsel Arthur H. Bryant of Bailey & Glasser in Oakland. “SDSU has been cheating its female student-athletes out of hundreds of thousands of dollars in equal athletic financial aid each year. It is giving its male student-athletes far better treatment than its female student-athletes. And it blatantly retaliated against its female student-athletes for standing up for their rights. Now, it can be held accountable.”

The class-action lawsuit alleges female student-athletes were given less scholarship support than the male athletes, received inferior treatment and benefits and were retaliated against when they protested against discrimination. Judge Robinson agreed their suit could go forward and went a step further—awarding the students the right to seek monetary damages.***

The other avenue for redress of grievances is litigation. Here too, courts usually require non-compliant schools to enter into a program to improve the treatment of female athletes. Until the SDSU case, however, female athletes experiencing sex discrimination in athletics did not sue for damages but instead sued for injunctive relief—a court order directing a school to stop or reduce discriminatory practices. Now, we know they can sue for monetary damages

April 25, 2023 in Courts, Education, Sports | Permalink | Comments (0)

Friday, April 14, 2023

The Case For and Against Abolishing Title IX

Alexandra Brodsky, The Case Against and for "Abolishing Title IX," 103 Boston University Law Review Online 19 (2023).

I recently visited a college to give a talk about sexual harassment. Afterward, students told me that the campus had, recently, been the site of protests to “abolish Title IX.” One might have imagined 19-year-old men’s rights activists demanding that Congress repeal Title IX of the Education Amendments of 1972.1 But the protesters were advocates for survivors. I wondered: did they really want to legalize sex discrimination in education? The students reassured me that no, they did not. To campus protesters, the students told me, the call to “abolish Title IX” was a criticism of their campus “Title IX office,” tasked with receiving and investigating sexual harassment grievances. Survivors felt unsupported by that office, frustrated that the school could not provide them support and safety without forcing them through a retraumatizing fact-finding gauntlet. ***

To avoid any ambiguity, I should make explicit that, despite all this, I very much do not think we should abolish Title IX. By creating a floor for how schools must address sexual harassment, the law does more good than harm, even if it also creates a ceiling, and I am unwilling to abandon Title IX’s protections against other forms of discrimination. But it is entirely understandable why some students see Title IX as the problem, rather than the solution. That is a real shame because Title IX still can be a useful tool for students, and because Title IX’s ability to withstand waves of backlash depends on student organizing.15 If students do not see Title IX as something worth fighting for, its power will only continue to diminish.

So, what do we do? I have a very ambitious proposal, a moderately ambitious proposal, and a very modest one. The very ambitious proposal is that we need to make Title IX worthy of students’ trust. 

 

April 14, 2023 in Education, Violence Against Women | Permalink | Comments (0)