Feminist Philosophers

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Pogge, ‘Remarkable’ Conduct, and Greedy Women May 24, 2016

Others have already remarked on parts of Pogge’s response to the recent allegations outlined at BuzzFeed (with additional information at Huffington Post), e.g., here, here, and here. Daily Nous reported that the response had been updated with email correspondence, so today I read through it. Two themes in particular stuck out.  First, the “remarkable” nature of Lopez Aguilar’s showing up at Yale for the purportedly fake appointment, and second, the (nearly explicit) insinuations that the allegations against him are coming from greedy women looking to profit. After reading the correspondence Pogge has provided, Lopez Aguilar’s conduct not only fails to be remarkable — Pogge’s appears even more so. And while references to greedy women may play well to sexist stereotypes, the trope is not borne out in the evidence we’ve been given.

From Pogge’s reponse:

“There are other familiar phenomena that can explain false allegations: we know of law firms going after rich institutions for the sake of winning large financial settlements, which can often be obtained through the extreme embarrassment of a media frenzy even without court proceedings in which the evidence could be carefully and critically examined. And we know that false charges and rumors can be highly effective weapons in the intensely competitive worlds of academia and university politics . . . I would welcome the opportunity to challenge her allegations in a proper judicial forum. But I fear that such talk of legal action is no more than a cover for legally extorting a financial settlement . . . On 30 August 2010, Lopez Aguilar presented herself with my fake job offer letter at Yale. This was remarkable for four reasons. First, she had never accepted the position by signing and returning the offer letter as the text of this letter clearly prescribed. Second, she showed up for work two days before the starting date specified in the offer letter, just before I would return from Latin America as she well knew. Third, she had a concurrent full-time job at Brookings Institute and thus was not available for a second full-time job. Fourth, she obviously knew that she had asked for this letter to secure an apartment lease and had offered to ‘rip it to shred’ (21 July 2010) after it had served that purpose. On the basis of Lopez Aguilar’s conduct and subsequent communications, I inferred that her plan was to force me into paying her a second full-time salary for the 2010-11 year. My alternative to somehow finding the money to pay her was to confess to Yale that I had provided her with a fake offer letter.”

I’m going to reproduce portions of the email exchanges here, but the full text of Pogge’s response and the correspondence is available here.

Regarding Lopez Aguilar appearing at Yale, when Pogge alleges she knew full well that she was not actually employed by him, in an email sent to both Pogge and Lopez Aguilar on August 29 (from page 20 of the PDF), someone (I don’t know who; the sender’s name is redacted) writes:

“Fernanda, [redacted] usually gets in around 10. I usually get in around 9. Let us know when you plan to come. If you’ve gotten your ID card authorized for 230 Prospect, then you can get in the front door. You would do that either at the ID place on Whitney, or at the MacMillan Center. If not, you should call me or [redacted], and we’ll come down and let you in. My cell is [redacted]. Looking forward to meeting you!”

Lopez Aguilar responded that day to both Pogge and the sender,

“Also [redacted], I was wondering if you happened to know whether I should go to one place first, either the ID place on Whitney or MacMillan Center, in my quest for building access tomorrow. Do you know if my name is already listed as qualifying for access approval?”

If Lopez Aguilar’s appointment was never genuine, why, exactly, is she being advised on how to show up for work? Moreover, what’s remarkable about showing up in advance of one’s start date to get her ID card authorized, if that’s what you’ve been instructed to do?

On August 30, Pogge wrote:

“You got me into a huge amount of trouble Fernanda, as I am not authorized to give out jobs to people on my own. I sent you that letter, as drafted by you, strictly for the Tafts Apartment because, so you said at the time, you could not get a letter from Brookings fast enough to secure the apartment you wanted. This was strictly as a favor to you so you could get this apartment. . . I am just amazed. You manage to destroy in an hour as much as I manage to build in months. For what? To get into the building with your own card on Tuesday?”

In a reply dated August 31, 2010, Lopez Aguilar wrote,

“I can swear to you, honest to everything that I hold dear, that I do not understand this sorry state of affairs. . . You have trivialized me and my actions Monday, under the false claim that I ‘just wanted to get into the building with my own card.’ No! I was instructed to report to MacMillan as per [redacted] request (which you read), and after I had asked if you or anyone else knew about my status/if I had permission to obtain access, to no avail. Once there, I tried to prove that I was at Yale legitimately, and not utterly delusional. I showed [redacted] the letter of employment I drafted for the Taft because I honestly believed that you would be employing me; and had you told me that my presence at Yale was to be clandestine, I would have never, ever done so. I would have asked you why, certainly, but I would not have shown them the letter. I only used it to prove that you and I had been in correspondence about my working at the Global Justice Program.

And yes, I sincerely thought you would be employing me, by way of a monthly stipend. I thought the only thing that was indeterminate was the monthly amount, which is why I had specified that this document would be worthless in September, when we would determine an amount that you thought more appropriate.”

In an email dated September 3, 2010, Pogge confirmed that there was nothing wrong with her showing up, working on campus, or asking about access, but rather it was showing someone the offer written for the purposes of securing an apartment that was unappreciated. Which is to say, the very email correspondence Pogge has provided the public seems to undercut each of the reasons we are meant to find Lopez Aguilar’s conduct “remarkable.” According to the correspondence, she didn’t sign and return the letter because she did not believe that the stipend amount offered in it was definite.  She showed up before the start date because she had been instructed to arrange building access for herself. Whether or not she had another position, Pogge himself seemed to be expecting her to work with his program at Yale, and moreover, expected her on or around the letter’s start date.

Regarding the notion that the alleged victims are after him, or Yale, for money, and always have been, on page 24, from an email dated September 6, 2010, Lopez Aguilar writes that she would like to be paid for the work she did for ASAP (“at whatever price you think fair, although, as I have already made clear to you – my estimates (of time, energy spent) place that assignments work value at $2,000), but that she will continue her work for the Global Justice Program without pay. She requested that she be granted the appropriate unpaid status so as to obtain access to campus, and particularly the building she would be working in. Again, on September 7, she reiterates that from this point onward, she would prefer not to be compensated for her work with GJP, but she that intends to serve as a volunteer throughout the year. Pogge replied both that he does not want the Global Justice Program to receive further help from her, and moreover (in an email dated September 7), the sort of unpaid status that would allow her access to the building and campus does not exist (which, in turn, raises questions about his account that she was not meant to be paid).

I find it perplexing that Pogge inferred “her plan was to force [him] into paying her a second full-time salary for the 2010-11 year” when in the correspondence he’s provided, she explicitly says multiple times after their dispute that she does not want to be paid for work with the GJP going forward, and yet she is still willing to do said work.

More generally, if she were after financial gain, going to the media before having filed suit in court would be an irrational thing to do, as it is keeping a university’s name out of embarrassing media in the first place that would typically make for the best leverage in terms of a settlement. Complaints filed with the Department of Education do not result in financial settlements for victims like many lawsuits do, and so at least with respect to that legal action, a financial motivation makes no sense (indeed, having not yet filed such a complaint, again, would make for better leverage if one were merely seeking financial gain).  And, of course, none of that is to mention that six years is quite a long time, and a significant amount of energy, to spend pursuing a settlement. If one were really after easy money, there are better uses of one’s time.

Finally, with respect to the claim “that false charges and rumors can be highly effective weapons in the intensely competitive worlds of academia and university politics,” it is worth remarking on that the one woman who was willing to identify herself publicly is the same woman who has left academia. This isn’t surprising. Indeed, I am sure that Pogge is quite familiar with the difference power, politics, and dependence can make. And while in some ways, I appreciate that he acknowledges that there is generally a high price to pay for reporting harassment, I am also sure that he is familiar with how liberal rhetoric can be used to distract from the persistent inequalities of the status quo. In fact, I think he wrote the book.

UPDATE: The link to the response doesn’t seem to be working right now. A copy of the response and appended correspondence is here.

 

Un-diversifying academia May 18, 2016

Filed under: academia,diversity,gender,race,Uncategorized — jennysaul @ 5:20 pm

An important article on universities’ failure to tenure and retain the members of underrepresented groups that they hire.

This disturbing trend of denying tenure to women and minorities at disproportionate rates vis-à-vis white males is revealed in June Junn’s study at the University of Southern California. Junn found that of 106 tenure cases, heard between 1998 and 2012 at USC, 92 percent of white males were tenured, whereas only 55 percent of women and minority scholars were.

 

New online modules on sex and gender based research May 17, 2016

Filed under: gender,science,sex — Lady Day @ 10:07 pm

The CIHR Institute of Gender and Health has just launched three free online modules for researchers, funders and peer reviewers on sex and gender based analysis. Check them out here.

 

Reflections on philosophical rudeness April 28, 2016

Filed under: academia,bias,civility,gender,women in philosophy — jennysaul @ 5:36 pm

Nomy Arpaly has recently initiated a really interesting discussion on this topic.  After an excellent discussion of the problems of philosophical rudeness (read it!), she ties the issue to gender.

I would like to add the following. I think the state of women in philosophy can be improved significantly simply through the elimination of rudeness in philosophical discourse. One can have many views about things we could or couldn’t do, should or shouldn’t do, to improve the state of women in philosophy, but before we settle those issues, why not start by doing what we already know that we have excellent reasons to do – utilitarian, Kantian, virtue-oriented, and commonsensical reasons, independent of any special feminist theory – and reduce our rudeness?

Here is how I think it will help. First, if everyone is rude, women are judged unfairly (as potential colleagues, for example) because rude women are treated more harshly than rude men, by everyone, due to implicit bias. Implicit bias is notoriously hard to change, but thankfully it is not as hard to change behavior – such as rudeness. I am not saying that we should not try to change implicit bias – of course we should – nor am I saying that changing behavior is easy (I have plenty of experience to the contrary), but you get my drift.

Second, in the actual world, polite women are also judged harshly when they respond to the rudeness of others. In a job interview, for example, a woman who faces a rude interviewer has the choice between responding assertively (and thus facing the notorious “shrill voice” bias) and responding gently. A woman who responds in a gentle, conciliatory manner to a rude interview question, or who looks too insecure and intimidated in response to the rude question, is often perceived by the some people in the room as not having enough to say. This whole painful catch-22 does not occur if the interviewer is not rude in the first place. Again, changing behavior is much easier than changing implicit bias.

Third, it has been said many times that women are put off by the idea of entering philosophy because girls are not taught to handle confrontational, adversarial situations, or situations where one’s abilities are judged harshly. Some think philosophy should change here – either through what I called “pacifism” earlier or through changing the way we evaluate people, or otherwise. Some, on the other hand, say that though the education of girls should change, philosophy shouldn’t. After all, girls and women play sports nowadays, and compete in athletics, and the ones who do most definitely don’t ask for the rules of rugby to be changed to make it kinder and gentler, or for boxing be made non-adversarial, or for the cruelty of publishing players’ stats to be stopped.

Me? All I want to do here is suggest that we try to eliminate what we already regard as foul play, what we already know we shouldn’t do but do anyway. It won’t solve everything, but if we reduce rudeness, I solemnly promise that more women will want to do philosophy. I hereby conjecture with confidence that the simple words “sorry, but you were saying-?”, can make a critical difference, consciously or not, to some young women’s readiness to do philosophy. It might sound silly, especially if one forgets how susceptible all humans are to seemingly insignificant factors, but it is not silly, but rather tragic, if we have lost some wonderful potential contributions to the field just because we couldn’t wait for someone to finish talking. It would show the wrong priorities if we continue to lose such wonderful contributions in the name of some supposed sacred right to be as obnoxious as we’ve always been.

For further reflections on philosophy and rudeness, inspired by Arpaly, check out Kieran Healy.

 

Melissa Harris-Perry interviews Anita Hill April 19, 2016

Filed under: gender,intersectionality,race,sexual harassment,Uncategorized — jennysaul @ 8:58 am

I really don’t need to say more than that, do I?  But if you want a teaser…

HARRIS-PERRY: How did race and gender affect how you were heard -during your testimony?
HILL: Those members of Congress had never even considered that Black women had our own political voice. They assumed that Black men spoke for us. For an African-American woman to have her own political voice and own political position, and to believe that our perspective should be added to the conversation, was just something they hadn’t even considered. I think that’s why, politically, things changed. I think that’s why women -became so agitated and so energized to make change on this important issue. And for Black women, it was like, Okay, we have to make sure we are speaking for ourselves.

 

For the rest, go here.

 

Response to AAUP report on Title IX from Faculty Against Rape April 15, 2016

Faculty Against Rape has drafted a response to the AAUP’s draft report on Title IX to submit by the end of the comment period tomorrow, and they are accepting signatures from academics in support of the letter. The full letter is here, and the form to add your name is here.

Here’s a passage from the introduction:

As members of Faculty Against Rape (FAR), a group of more than 300 faculty and civil rights activists from across the U.S., we write to express grave concerns regarding the American Association of University Professor’s (AAUP) draft report on Title IX.  We started FAR in the summer of 2014 as an ad-hoc volunteer collective whose mission is to get more faculty involved in preventing sexual assault and sexual harassment and improving campus responses. FAR is also committed to protecting faculty who experience retaliation for doing so. Over the past two years, FAR has provided resources for faculty to learn how to best support survivors, tools for faculty who want to get more involved in reform efforts, and support for faculty who face retaliation. Collectively, our members have supported literally hundreds of survivors at campuses across the country. Many of them have endured significant retaliation from university administrations who want to protect the university brand, even at the cost of the safety and well-being of students. We have seen the crisis of campus sexual violence, and the nature of Title IX enforcement as practiced, often inadequately, across campuses in the United States, first-hand.

Our experiences, as members of educational communities involved in these issues on the ground, have made evident that Title IX enforcement at institutions of higher education is, indeed, a matter of pressing concern. However, if the AAUP seeks to adequately understand, and competently comment on this issue, it must take care to, at the very least, attend to the body of existing expert scholarship— including scholarship by some of its own members— on this topic. As it stands, we are troubled by much of the framing, content, unrepresentative nature of, and failures of accuracy within, the draft report.

The overall impression given by the report is that the Department of Education’s Office of Civil Rights is ‘overreaching’ in its mandated mission of providing guidance to universities and ‘abusing’ Title IX; this,  despite the fact that there is broad underreporting of campus sexual assault by universities. The American Association of University Women (AAUW) analyzed DOE data and found that 91% of colleges did not report any rapes in 2014, leading the AAUW to exclaim that “The data reported by the nation’s colleges simply defy reality and common sense,” given that they “don’t reflect campus climate surveys and academic research.”

While we would ordinarily join with the AAUP in resisting the corporatization of institutions of higher learning, we are deeply concerned that the AAUP’s analysis of this issue as it pertains to Title IX, by pitting student concerns for campus safety against faculty interests, reinforces the symptoms instead of addresses the problem. Students and faculty alike are rightfully alarmed by universities and colleges placing the protection of their reputation before the integrity of their campus communities — but these concerns ought to unite, rather than divide us. The AAUP is right to remind us that administrative overreach into the classroom may be driven by a misguided focus on public relations, but we should also acknowledge that it is this very feature of the contemporary university that victims of campus sexual misconduct have been decrying as they witness justice, safety, and prevention sacrificed time and again for the sake of the bottom line.

 

Minicourse on Metaphilosophy and Sex Equality April 4, 2016

The School of Philosophy and Art History at the University of Essex are very pleased to announce that Professor Michèle Le Doeuff will be giving a minicourse on ‘Metaphilosophy and sex equality’ at Essex on 11th – 13th May 2016. The abstract for the minicourse is as follows:

Metaphilosophy, in the sense of discussing what form of philosophy is valuable and what form is hopeless, is everywhere in our lives. It takes place within highly classical works and in the most informal conversations we have down the pub.

Sex equality happens not to be a major beacon for these discussions, to put it mildly. Who lays down the law to whom? On the other hand, if you consider that sex equality should indeed be among the non-negotiable landmarks of any discussion about philosophy, you might have the feeling that you are stating the obvious, and then discover that it never registers.

Now, if metaphilosophy is about defining what philosophy is (how it works, how it occasionally dysfunctions), it does appear as a most eligible level of discussion for feminists. A sphere in which you could at last appeal to justice is more than appealing. All the same, the question «what is philosophy?» sometimes proves slippery.

​In classes, pupils tend surreptitiously to start discussing the character of the philosopher, certainly male, old, bearded and endowed with encyclopaedic knowledge. A woman engaged in philosophy may find it wise not to discuss the question at all and simply prove her existence by doing her job, just as you can prove the possibility of movement by duly taking a stroll. But is this the end of the story?

The minicourse is made up of three lectures:

Wednesday 11 May, 3-5pm: Lecture – The Price to pay (and for becoming what?)
Thursday 12 May, 3-5pm: Lecture – You said ‘progress’?
Friday 13 May, 3-5pm: Lecture – In Praise of autodidacticism

Further information on the course can be found on the Essex website: https://www.essex.ac.uk/philosophy/news_and_seminars/minicourses/default.aspx

Book a place
Booking is required to attend the minicourse. To book your place please email Katherine Bialey at kbailey@essex.ac.uk.

Please send any queries or questions about the minicourse to Rosie Worsdale: rworsd@essex.ac.uk

 

Gender stereotypes and the gender gap in higher education

There’s an interesting op-ed on the role of gender stereotypes in gender differences in college participation and performance in the New York Times today by Andrew Reiner who teaches a course on masculinity at Towson University, and I thought our readers might be interested. Here’s a snippet of it:

In many ways, the young men who take my seminar — typically, 20 percent of the class — mirror national trends. Based on their grades and writing assignments, it’s clear that they spend less time on homework than female students; and while every bit as intelligent, they earn lower grades with studied indifference. When I asked one of my male students why he didn’t openly fret about grades the way so many women do, he said: ‘Nothing’s worse for a guy than looking like a Try Hard.’

In a report based on the 2013 book “The Rise of Women: The Growing Gender Gap in Education and What It Means for American Schools,” the sociologists Thomas A. DiPrete and Claudia Buchmann observe: “Boys’ underperformance in school has more to do with society’s norms about masculinity than with anatomy, hormones or brain structure. In fact, boys involved in extracurricular cultural activities such as music, art, drama and foreign languages report higher levels of school engagement and get better grades than other boys. But these cultural activities are often denigrated as un-masculine by preadolescent and adolescent boys.

. . . By the time many young men do reach college, a deep-seeded gender stereotype has taken root that feeds into the stories they have heard about themselves as learners. Better to earn your Man Card than to succeed like a girl, all in the name of constantly having to prove an identity to yourself and others.

 

What’s Wrong with the AAUP’s Report on Title IX: Preponderance of the Evidence Standard Redux March 31, 2016

I posted a couple of days ago about some of the problems with the AAUP’s recent report on Title IX. I think there are others, but for considerations of space, just mentioned two: one of which was the AAUP’s resistance to the preponderance of the evidence standard, the other was the AAUP’s confusion regarding the increase and manner of OCR investigations. At some point, I think it would be valuable to discuss some of those other issues (I’ll draw on a couple of points from this letter from the National Women’s Law Center below, but I encourage you to read it in full as it pertains to some of the other issues in the report as well), but first, more on the justification for the preponderance standard.

Brian Leiter wrote a reply to my post, taking issue with this passage:

But, more to the point, if Title IX complaints were held to a higher standard than a preponderance of the evidence when other civil rights claims are adjudicated by exactly that standard, then it would follow that complainants would be held to a higher standard, i.e., disadvantaged, on the basis of sex, i.e., they would be subject to sexual discrimination.

I cited Jackson v. Birmingham Board of Education in the explanation of my thinking, and in an update on his post, Leiter writes, “that retaliation for reporting sex discrimination is actionable sex discrimination for purposes of Title IX does nothing to establish that a higher standard of proof to prevail on a sex discrimination claim is sex discrimination.” Leiter is right that, in itself, that retaliation in the context of Title IX constitutes sex discrimination says nothing about standards of proof, but I didn’t say that it did. What I did say is that I think the courts’ reasoning in the course of determining whether or not retaliation constitutes discrimination – i.e., how the court defined what it is for something to constitute “discrimination on the basis of sex” – does.

Here’s that language again (emphasis mine):

In all of these cases, we relied on the text of Title IX, which, subject to a list of narrow exceptions not at issue here, broadly prohibits a funding recipient from subjecting any person to “discrimination” “on the basis of sex.” 20 U. S. C. ß1681. Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX’s private cause of action. Retaliation is, by definition, an intentional act. It is a form of “discrimination” because the complainant is being subjected to differential treatment. See generally Olmstead v. L. C., 527 U. S. 581, 614 (1999) (KENNEDY, J., concurring in judgment) (the “normal definition of discrimination” is “differential treatment”); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682, n. 22 (1983) (discrimination means “less favorable” treatment). Moreover, retaliation is discrimination “on the basis of sex because” it is an intentional response to the nature of the complaint: an allegation of sex discrimination. . .

The import of the Jackson language quoted is not that the retaliation was a response to the person (Roderick Jackson) but to the claim (in Jackson’s case, a series of complaints about unequal treatment that he felt were prohibited by Title IX).  It can be analogized to campus responses to sexual assault cases in the following way: when a victim makes a complaint that s/he was sexually assaulted, under Title IX that is a claim of sex discrimination, because sexual assault is a severe form of sexual harassment, and sexual harassment has been confirmed by SCOTUS to be a form of sex discrimination.  Therefore, if the school responds to that claim using a process that requires a higher standard of proof than the standard of proof that the school uses for other claims, ones that do not implicate Title IX and do not allege sex discrimination, that is, in the words of the Court in Jackson, “differential treatment.”  So if a student made a complaint that s/he was the victim of harassment based on his/her race, the school would be required under Title VI to use a preponderance of the evidence standard.  If the school were still using “clear and convincing evidence” for sexual assault cases, this would mean that claims of sex discrimination (severe sexual harassment in the form of sexual assault) would be treated differently, and less favorably, by the school from claims of race discrimination (racial harassment).

Similarly, if one white, male, heterosexual student accused another white, male, heterosexual student of punching him in the face and the school used a preponderance of the evidence standard in its process for responding to that assault, but was still using “clear and convincing” in its process for sexual assault, that would be differential treatment based on the nature of the claim, where the claim alleging discrimination based on sex got “‘less favorable treatment” (see language from Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682, n. 22, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983) included in Jackson) than the claim not alleging discrimination based on sex.

The National Women’s Law Center (lead counsel in Jackson v. Birmingham Board of Education) seems to agree that parity with other claims justifies the use of the preponderance standard in Title IX claims: Given that Title IX was modeled after Title VI, and preponderance of the evidence is the standard used in claims brought under Title VI, it is also the standard that applies to Title IX claims. The preponderance standard is also used in litigation of claims under Title VII of the Civil Rights Act of 1964, regarding sex discrimination in employment. Thus, it is the correct standard for allegations of sexual harassment, including violence.” (If you doubt that courts have taken up this standard, note the footnotes to this passage in their letter.)

Likewise, Nancy Cantalupo, in the piece I linked to a few days ago, writes,

Allowing schools to adopt a criminalized standard of proof such as “clear and convincing” evidence or “beyond a reasonable doubt,” . . . would also create legal and administrative barriers for student survivors of gender-based violence that do not apply to the vast majority of comparable populations involved in civil or civil rights proceedings, all of which use the preponderance standard. To name just a few, these groups include: other students alleging other kinds of sex discrimination; students alleging discrimination based on other protected categories, like race or disability; gender-based violence survivors seeking protection orders in civil court; students alleging other forms of student misconduct; and students accused of sexual or any other misconduct who sue their schools in civil court. In reality the preponderance standard is used in the vast majority of cases, not only in internal disciplinary proceedings but also in other administrative or civil court proceedings and under other civil rights statutes that protect equality . . . Indeed, separating out sexual violence victims for different procedural treatment would enact a new kind of damaging “exceptionality [for] rape,” as Michelle Anderson discusses in her paper for the September 25 Conversation. Using anything more stringent than a preponderance standard would symbolize that we as a society are comfortable with giving one group of women and girls, as well as men and boys who are gender-minorities and victimized because of it, unequal treatment when compared to everyone else.

In a footnote on this passage, Cantalupo notes:

Research shows that the majority of higher education institutions had voluntarily adopted a preponderance of the evidence standard for all student conduct proceedings by the early 2000s. See Michelle J. Anderson, Sexual The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Assault, 84 B.U. L. Rev. 945, 1000 (2004); Heather M. Karjane et al., Campus Sexual Assault: How America’s Institutions of Higher Education Respond 122 tbl.6.12 (2002), http://www.hhd.org/sites/hhd.org/files/mso44.pdf  [http://perma.cc/9Z57-PHR5]. Therefore, using a different standard from the preponderance standard in cases involving sexual or other forms of gender-based violence would mean that student victims of gender-based violence would be less protected than students who are victimized by another student in any other way.

Now, Geoffrey Stone has argued against the preponderance standard as follows (emphasis mine):

To justify its insistence on the preponderance of the evidence standard, the Department of Education draws an analogy to civil actions in court. In the typical civil law suit for damages, whether the issue is a car accident, a breach of contract, or an assault, the standard is preponderance of the evidence. But this is a bad analogy. For a college or university to expel a student for sexual assault is a matter of grave consequence both for the institution and for the student. Such an expulsion will haunt the students for the rest of his days, especially in the world of the Internet. Indeed, it may well destroy his chosen career prospects. This is especially likely, for example, for law students.

To the extent that analogy between internal Title IX complaints at an educational institution and action in courts is apt (there is a substantive difference in that what happens in court is thereby public record), the analogy to civil action is far more apt than an analogy to criminal proceedings. In addition to the fact that in criminal cases it is the state, and not the alleged victim, who is party to the proceedings, as Stone writes, civil law adjudicated by a preponderance of the evidence standard provides relief for assault. Again, from the National Women’s Law Center:

The preponderance of the evidence standard is appropriate even in cases where there could be criminal sanctions for the defendant’s actions. For example, it is used in civil proceedings between two private parties, where—like a campus grievance proceeding for a complaint of sexual harassment—each party “has an extremely important, but nevertheless relatively equal, interest in the outcome.” This includes civil proceedings arising out of conduct that can also be criminal, but where there is no authority to impose criminal sanctions, such as a civil tort action for battery, robbery, or murder.

This goes, too, for civil cases regarding sexual violence. For instance, cases brought under California Civil Code Section 52.4, or Illinois’ Gender Violence Act.

Of course, Stone is right that expulsion may haunt a student. We should absolutely take that seriously, and I do. At the same time, let’s not forget how many students are expelled for infractions like plagiarism as compared to sexual assault; let’s not forget having been subject to sexual violence may haunt a victim; let’s not forget that being subject to sexual discrimination (including sexual harassment and assault) might, and in a number of cases has, destroyed victims’ chosen career prospects; let’s not forget that victims are often forced to transfer schools, or drop out; let’s not forget that victims have also been dragged through the nasty trenches of the internet, nor that some have been driven to suicide as a result. Moreover, let’s not forget that it is exactly these kinds of effects that educational institutions are legally obligated to address insofar as they impact one’s access to education; that is, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

 

Title IX: (Some of) What the AAUP Left Out (Updated) March 29, 2016

The AAUP recently released a report on Title IX for a comment period (summary version here). There are two points in particular where it appears as if myth and speculation are presented under the guise of fact, and I think it’s incredibly important for the academic community to be clear on where things actually stand.

First, from the AAUP’s report on the issue of the Office for Civil Rights’ interpretation of Title IX as requiring sexual discrimination complaints be adjudicated according to a preponderance of the evidence standard:

OCR’s 2011 Dear Colleague Letter (DCL) went further, mandating an evidentiary standard that conflicts with due process protections of faculty and students. In a shift of enormous significance the DCL prohibited the use of the standard calling for “clear and convincing” evidence (highly probable or reasonably certain), and replaced it with a lower standard: that there need be no more than a “preponderance of evidence” (more likely than not) to assess sexual violence claims and all sexual harassment claims. The DCL explicitly noted that university procedures using a “clear and convincing” evidentiary standard were “not equitable under Title IX.” Although it marked a substantial change in procedures, OCR did not engage in the federal administration rulemaking public notice and comment process prior to issuing this 2011 DCL. The “preponderance of evidence” standard is a new mandate, however, even though the OCR describes the DCL only as a clarification of its 1997 and 2001 Guidances, which had followed federal rulemaking requirements.

The OCR has done more than merely “describe” the 2011 DCL letter as a clarification, though. Rather, Catherine Lhamon explained why the OCR believes the 2011 Dear Colleague Letter was not a substantial change of procedure as follows:

The standards outlined in the 2011 DCL stem from the Department’s Title IX regulations, including but not limited to, the requirement that educational institutions adopt “grievance procedures providing for prompt and equitable resolution” of complaints. Prior to the 2011 DCL, OCR had determined in letters of findings issued during multiple Administrations that in order for a recipient’s procedures to be “equitable,” they must use a preponderance of the evidence standard (i.e., more likely than not) to determine whether sexual violence has occurred. As OCR’s practice in these cases confirms, it is Title IX and the regulation, which has the force and effect of law, that OCR enforces, not OCR’s 2011 (or any other) DCL. OCR’s 2011 DCL simply serves to advise the public of the construction of the regulation it administers and enforces.

But, more to the point, if Title IX complaints were held to a higher standard than a preponderance of the evidence when other civil rights claims are adjudicated by exactly that standard, then it would follow that complainants would be held to a higher standard, i.e., disadvantaged, on the basis of sex, i.e., they would be subject to sexual discrimination.

Why are civil rights claims adjudicated by a preponderance of the evidence standard? Nancy Cantalupo explains:

(more…)

 

 
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