A Feinberg School of Medicine student is suing Northwestern under Title IX saying the school responded with “deliberate indifference” after he reported he was sexually harassed by a professor.
A federal judge ruled last week that the student can move forward with his Title IX lawsuit against the University. His lawyer confirmed Friday that he will do so.
Judge Sara L. Ellis ruled Aug. 6 that the medical student can make his case that the University retaliated against him and did not respond as rapidly or as strongly to his grievances as it has to similar complaints filed by female students. Ellis dismissed the student’s allegation that the University responded inadequately to his sexual harassment complaint.
The student says a Feinberg microbiology and pathology professor sexually harassed him and later retaliated against him after the student rejected his advances by assigning him poor grades, opposing his application to a fellowship and directing others to discontinue a promised scholarship, according to the suit.
Another Title IX lawsuit against Northwestern is proceeding August 15, 2015
Philosophical Change in the Shadow of the Law June 9, 2015
Womandamus is a new contributor to FP. They have some expertise in law and philosophy, but this series will not offer legal advice or counsel.
It is a well-known idea that people “bargain in the shadow of the law.” In other words, we take all kinds of legal information and facts about the legal system into account when we go through our lives, whether we are deciding to take a plea deal, run a red light, or make a billion dollar deal. Yet we also bargain in the shadow of what we perceive the law to be, rather than what it is. This is unsurprising since (1) most ordinary people are in no position to know what the law is and (2) even most lawyers are not in such a position. Law school does not teach anyone the law because it cannot do so. Rather, it teaches people to “think like lawyers” because the law may turn out to be one thing or another, depending on a whole host of contingencies.
This uncertainty, paired with the extreme coercive power of the law, can make it hard—even scary—to conform our actions to the law or know what the legal effect of our actions might be. This uncertainty and fear has the potential to stand in the way of real change even where everyone generally agrees that some change would be desirable. Philosophy has some problems, as you all know, that are increasingly involving the legal system head on. At least some of these problems are widely-recognized, and many philosophers are aching for some change. However, the shadow of the law looms menacingly over their efforts, whether this is reasonable or not.
Fears about defamation suits, concerns about due process, confidentiality requirements, complaints about Title IX, and other legal actions may be more or less warranted, more or less reasonable, but they often have the effect of discouraging people from pursuing change in philosophy, particularly in a public way. Philosophers and graduate students may fear coming forward or naming their colleagues lest they be sued for defamation or in violation of a confidentiality agreement with their University. Even if a case ultimately ends in a quick dismissal, it is still costly and exhausting to be on the receiving end. Many non-lawyers (and, I would venture, especially philosophers, who tend to be privileged and are less likely to be the target of heavy policing) will never have an interaction with the legal system beyond paying parking tickets and doing jury duty, so the fear of being involved in a lawsuit in any capacity can be crippling.
As the profession continues to grapple with issues relating to climate, it will increasingly confront the law. In a series of future posts, I would like to offer some analysis of legal issues that the profession has already confronted in some form or another: retaliation, defamation, settlements, due process, Title IX in general, and other topics that might improve legal literacy among philosophers. These posts will focus on the U.S. context, but Canada and the U.K. may be similar. It is important to remember that the answer to any legal question will always depend, in part, on what jurisdiction you are in. While I can’t offer legal advice, I do hope to clear up some general misconceptions about the law in a way philosophers can understand. If you have topics you would like to see addressed, please leave a comment, and I’ll try to get to them.
James Rhodes, on the importance of bearing witness May 27, 2015
“It’s important to bear witness, but also it’s important to give a message that bad things happen and we don’t lie about it, we don’t hide it, we don’t pretend it hasn’t happened, we don’t do everything we can to remove every piece of evidence that it happened, to erase the past.”
This is from an interview regarding his legal battle to publish a memoir in which he discusses his experience of being sexually abused as a child
But, he says, it’s also “a book about music. It’s a love story, it’s a book to Hattie, my wife, who’s the greatest thing ever. It’s a book about my son, about composers, about the extraordinary lives that these composers and musicians lead, it’s about all the things that are important to me. I don’t ever want this to be ‘the guy who was abused as a kid’, any more than I want, ‘this is the guy who’s a Pisces. This is the guy who’s 5ft 11in … 10½ … I live in Queen’s Park, I’m married to a woman who is a 10 when at best I’m a five and a half or a six on a really good day, I play the piano. . .
Last year, his previous wife took out an injunction against publication, on the basis that to have these “toxic” details in the public domain would harm their son. This was rejected in the first court case, but upheld on appeal, and in an elaborately restrictive judgment. “It ended up being a bunch of judges having editorial control over what I said. Literally to the point where I wasn’t allowed to use graphic language or vivid and colourful descriptions. I could use the word ‘rape’, but I couldn’t use the phrase ‘getting raped’ … ”He pauses, and recalls: “The shock of being told, in effect, you can’t say that. Not only can you not write it in a book, but we are trying to gag you from speaking anywhere in the world on any medium – on Twitter, in interviews, on TV – about not just sexual abuse but mental illness. Can you imagine? I wouldn’t be able to tell you now that I’m in treatment for mental illness without being threatened with imprisonment, had this been successful.”
Thankfully, he won in court. You can read the full story here.
Judge who said 14 year old victim was partly responsible for her own rape to be given an award April 30, 2015
Next month, less than a year after he was censured by the Montana Supreme Court for comments he made while sentencing a man who raped a 14-year-old girl, retired District Judge G. Todd Baugh will receive a lifetime achievement award from the Yellowstone Area Bar Association.
Marian Bradley, president of the Montana chapter of the National Organization for Women, said there is “something absolutely wrong” with members of the local bar giving Baugh the award, according to a report in Last Best News.
“Do they not have respect for the women and children of this community?” she said. “This is outrageous.” . . .
Baugh was censured by the state high court in July 2014 for his comments during the 2013 sentencing of Stacey Dean Rambold, who was a 47-year-old business teacher at Billings Senior High School when he raped Cherice Moralez, a student of his, in 2007.
Just before her 17th birthday in 2010, while charges against Rambold were still pending, Moralez committed suicide.
Rambold later pleaded guilty in the case.
Baugh was vilified across the country after he sentenced Rambold to 15 years in prison with all but 31 days suspended.
During the sentencing, he said the 14-year-old victim was “older than her chronological age” and “as much in control of the situation” as her abuser.
After his remarks went viral and sparked public protests in Billings and other cities, Baugh apologized for his comments and acknowledged that his lenient sentence in the case violated state law.
He tried to modify the sentence retroactively, but the Montana Supreme Court ruled that he could not revise a sentence he’d already handed down.
After the Supreme Court overturned Baugh’s sentence, another district judge sentenced Rambold to 15 years in prison with five years suspended.
Notre Dame under Title IX investigation April 18, 2015
Clarifying Indiana’s RFRA: No, It’s Not the Same as Others March 31, 2015
There have been some articles floating around about Indiana’s Religious Freedom Restoration Act that are highly misleading (as well as misleading comments on the matter from Governor Pence)—e.g., there’s an article in the Washington Post which points out that several other states have their own RFRA statutes, and there’s a federal RFRA as well. This is true, but it does not follow from the fact that two laws have the same name, or even that they share some language in common, that they are in fact similar. Indiana’s law is staggeringly different.
First, some background; In 1990, SCOTUS issued a landmark decision in Employment Division v. Smith, determining that the free-exercise provision of the first amendment does not provide religious exemption from laws of general applicability. Smith and Black were members of the Native American Church and had been fired from their jobs for having ingested peyote during a religious ceremony—they argued that they should be entitled to unemployment benefits as their having ingested peyote during a religious ceremony should be protected under the First Amendment, but the court determined it was not (effectively, nearly eliminating the Sherbert Test in the process). In 1993, Congress passed the Religious Freedom Restoration Act in order to reinstitute protections from religious discrimination which result from such (apparently) religiously-neutral laws (that is, prohibitions on drug-use may be religiously neutral, and yet have discriminatory differential effects nonetheless, as was apparent in Smith).
In 1997, SCOTUS decided City of Boerne v. Flores determining that Congress had exceeded its power in extending RFRA beyond the federal government to states, and so, many states began passing their own RFRA legislation in response to bridge that gap once more. Indiana’s law is the latest, but, again, that does not mean it’s the same as others by the same name. There are extremely important—and disconcerting— differences.
One significant difference is how the Indiana RFRA defines religious exercise. Section five reads, “As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” This is in stark contrast to how religious exercise is understood under federal law, where the exercise in question must be the result of a belief which is religious in nature (general understood as part of comprehensive doctrine dealing with issues of ‘ultimate concern’ or something similar) and sincerely held. Though sincerity is (sometimes, but) rarely questioned in religious freedom claims (by the court or by other litigating parties), the more narrow understanding of religious exercise prevents abuse of the law and pre-textual claims to religious belief.
Another significant difference is that in Indiana, unlike e.g., Illinois, there are no protections from discrimination based on sexual orientation or gender identity under state law. Some individual cities in Indiana do have such protections by way of city ordinances, but state law pre-empts local law when the two conflict. Since the law has not gone into effect yet, and consequently has not yet been tested, it is unclear whether the state courts would determine that protection from discrimination on the basis of sexual orientation constitutes a “compelling interest” of the government (or, depending on the case, what the ‘least restrictive means’ of achieving it would be), but, the lack of protection in state law means at the very least that it will be unclear to those who would claim such discrimination is religious exercise whether or not the law allows it (and some folks have already interpreted it to mean that it does). Potentially, the lack of such protections — and Pence’s refusal to institute them — could mean that it will be more difficult to demonstrate that preventing discrimination on the basis of sexual orientation is a compelling state interest.
Further, Indiana’s RFRA explicitly extends the notion of personhood for the purposes of religious exercise very broadly—perhaps unsurprising in the wake of Burwell v. Hobby Lobby, but, still troubling, especially when we consider the context of its definition of ‘religious exercise’: “As used in this chapter, ‘person’ includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.”
There are other differences between Indiana’s recently passed RFRA and those that are in place elsewhere, but you get the point. This is not your ordinary RFRA, and the difference is dreadful.
UPDATE: I didn’t see this until after I hit post, but one Indiana lawmaker certainly appears to think that preventing discrimination on the basis on sexual orientation is not a compelling interest (but he also seems confused about the law in other ways).
We’re kicking off what we hope will be an extremely useful series of guest posts today from amanforsomeseasons. I’ll let him introduce himself.
As a regular reader and a friend of the Feminist Philosophers blog, as a former philosopher and current lawyer (yes, I know), and as a feminist and an interested observer of events that affect women’s issues, I am pleased to be given an opportunity to provide some legal commentary around many of the subjects discussed on this blog.
I have recently enjoyed a number of lively and stimulating discussions with a regular Feminist Philosophers blogger, particularly about how universities are handling – and, in some cases, failing to handle – allegations of sexual harassment and discrimination. One of the major themes of our discussions has been why some universities opt to deal with these issues publicly, often to their detriment, while others decide instead to whitewash the problem quietly.
I enjoyed hearing the perspective of someone who sees frequent and startling examples of the latter solution; she was very interested to hear my legal perspective on both. She said that the Feminist Philosophers’ readership, too, might be interested to get a lawyer’s take on these things, and so she has invited me to post a few entries. Depending upon the reception, I may do more than a few (but hopefully not less).
I welcome comments and have asked that commenting for my posts remains open; I will do my best to engage with the commenters. And now the fine print:
- Please understand that in blogging here, or in responding to comments, I am writing for educational purposes only, to give general information and a general understanding of the law. I do not intend to provide specific legal advice about your individual circumstances or legal questions. You acknowledge that neither your reading of, nor posting on, this blog establishes an attorney-client relationship between you and me. My posts should not be used as a substitute for seeking competent legal advice from a licensed attorney in your state. Readers of this information should not act upon any information contained on this website without seeking professional counsel. The transmission of confidential information via Internet email is highly discouraged.
Thank you. I am looking forward to our discussions.
Following its investigation, OCR determined that the Law School’s current and prior sexual harassment policies and procedures failed to comply with Title IX’s requirements for prompt and equitable response to complaints of sexual harassment and sexual assault. The Law School also did not appropriately respond to two student complaints of sexual assault. In one instance, the Law School took over a year to make its final determination and the complainant was not allowed to participate in this extended appeal process, which ultimately resulted in the reversal of the initial decision to dismiss the accused student and dismissal of the complainant’s complaint.
During the course of OCR’s investigation, the Law School adopted revised procedures that use the “preponderance of the evidence” standard for its sexual harassment investigations and afford appeal rights to both parties, in compliance with Title IX. The Law School also complied with the Title IX requirements relating to the designation of a Title IX Coordinator and publication of its non-discrimination notice.
Notre Dame appeals to SCOTUS over ACA October 8, 2014
The University of Notre Dame has appealed to the Supreme Court, requesting that it require the lower courts reconsider its case against the HHS mandate in the light of the Hobby Lobby decision. Notre Dame lost its previous appeal, in which three anonymous students filed an intervening suit.
One unique feature of the legal complaint that Notre Dame is asking be reconsidered is that it asserts government regulation which treats religious universities as distinct from houses of worship violates the university’s religious belief in the unity of the Church. In its complaint, the university writes,
The U.S. Government Mandate also improperly attempts to sever Notre Dame from the Roman Catholic Church. Notre Dame sincerely believes in the unity of the Catholic Church, including that Catholic educational institutions, especially Notre Dame, are by definition the “heart of the church” or Ex Corde Ecclesiae. Notre Dame’s mission is just as central to Catholic faith and life as the mission of Catholic houses of worship. Yet, the U.S. Government Mandate would limit the definition of “religious employers” to houses of worship, attempting to sever the Church from its heart and to divide the unified Church. The U.S. Government mandate would thus turn the broad right to Religious Exercise into a narrow Right to Worship.*
Irrespective of what one thinks about religious freedom, women’s rights to healthcare, or potential violations of the establishment clause, this is a troubling argument. If religiously-affiliated universities could not be treated as distinct from houses of worship without violating religious exercise rights, then effectively, students at those universities could not be protected from sexual misconduct, harassment, or discrimination by Title IX as Title IX is not applicable to houses of worship (nor could it be).
*It is worth noting that Notre Dame has argued in court in the past (cf. Laskowski v. Spellings and Am. Jewish Cong. v. Corp. for Nat’l. & Cmty. Serv.) that activities such as the provision of healthcare coverage benefits do not constitute religious exercise.