Here are six take-aways from day one according to the New York Times.
Of interest, TIME recently did a report on Gorsuch’s dissertation (his adviser was philosopher of law John Finnis).
And an allegation has surfaced that while teaching a class at University of Colorado, Gorsuch implied that women exploit companies for maternity benefits.
Yesterday, Canadian public broadcaster the CBC published the story of Isabelle Raycroft, Canada’s latest high-profile victim of intimate partner violence.
Here’s the tl;dr: the trial judge wrote a decision convicting Raycroft’s husband of four counts of assault against her, then got sick and couldn’t deliver the verdict. A replacement judge was appointed to read the verdict and determine the sentence. Before sentencing, a delegation of “old boys” from the rural Ontario community in which the Raycrofts reside appeared before the court to attest to the good character of the convict. Having heard this testimony (but not the evidence that was presented at trial), the replacement judge declared a mistrial. The devastated complainant decided that the public needed to know what she’d gone through. She went to court to have the publication ban on the case waived, and then she went to the CBC.
The story is frustrating, astonishing and riveting, and provides yet more evidence (as if it were needed) that when it comes to sexual violence, the law is an ass. Read it here.
A group of more than 90 law professors have signed on to a white paper regarding the preponderance of the evidence standard’s use in campus sexual misconduct cases. I recommend reading the entire document, but here’s a snippet:
The consistency of the 2011 DCL with civil rights legal doctrine means that, had the 2011 DCL indicated tolerance for other standards of proof in sexual violence cases, it would have approved treating sexual violence and harassment victims differently from all other victims of all other discrimination prohibited under our nation’s anti-discrimination civil rights laws, and done so without any justification for that differentiation. Because differential treatment by the government without justification is itself a form of discrimination, OCR making such an exception in a specific set of sexual harassment cases, but in no other civil rights matters under its jurisdiction, would have been incompatible with the agency’s mission to secure gender equality in education.
Philosophers weigh in at Quartz on the misalignment between sexual assault law and morality. Here’s Tim Kenyon (Waterloo):
“When you get a legal system that’s pathological in some sense, either because it’s unfair to people or it’s incomplete or re-victimizes victims, it’s particularly foreseeable that the law and the morality are going to come apart,” he says. “You’re going to see people looking for alternative ways to find legal or extra-legal remedies.”
Check out the whole article here.
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.”
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:
By now, even if you’re not in Canada, you have likely heard the collective cry of pain that that has arisen among Canadian women and feminists in response to today’s not guilty verdict for Jian Ghomeshi. (Audrey wrote about it here.)
Elsewhere in Canadian social media land, folks have been weighing in on the apparent tension that obtains between affording sexual assault defendants fair trials while at the same time trusting sexual assault victims’ testimony. For every #IBelieveSurvivors tweet, there are countless tweets exaggerating the incidence of false sexual assault accusations and/or bemoaning the criminal justice consequences of taking the victim’s word as gospel.
The thing is, leaving aside the motives of those who are busily concern-trolling #IBelieveSurvivors, there is a genuine tension between believing survivors and ensuring full and robust defenses in criminal trials — two goals that we should all enthusiastically embrace. Much of the difficulty here hangs on defendants’ right to silence.
The media has sometimes referred to the Ghomeshi case as a “he said/she said” case. This isn’t quite right since Ghomeshi didn’t testify. Thus, the case was reduced to a “she said” with no corresponding “he said.”
It seems to me that the clearest positive defense Ghomeshi could have offered would have been to testify, and in that testimony to explain his understanding of consent, and explain what he does to obtain consent before engaging in violent sex with his “partners” (or, at least, with those who have pressed charges). Any responsible BDSM practitioner thinks very carefully and communicates very clearly about consent. It would have been helpful to hear Ghomeshi’s account of his thoughts and communications around the alleged events.
Of course, such a “positive defense” was never going to happen. The Canadian legal system, like many others, guarantees defendants the right to silence. There is no obligation for defendants to testify in their own criminal trials. And, no defense counsel worth her salt would have advised Ghomeshi to waive this right. In a case that rests entirely on competing testimony, there is considerable advantage to defense counsel in being able to cross-examine plaintiffs’ testimonies without having to expose the defendant to similar cross-examination.
I understand the value in the right to silence. This right is in many respects central to ensuring procedural fairness in criminal proceedings.
However, in those sexual assault cases in which the only available evidence is the testimony of the accuser and the accused, the right to silence exposes the accuser to standards of credibility that are not experienced by accusers of any other crimes. No defense counsel ever enquires into the moral fiber of the robbed shopkeeper. In a broader social context in which, as we know, sexual assault is endemic, its rate of prosecution is very low, and the rate of false accusations is extremely low — on par with all other crimes, despite myths to the contrary — this special burden that sexual assault accusers bear is an injustice piled on antecedent injustices.
I don’t know what to do about this. I don’t think we can force defendants to testify at their own trials; nor should we penalize them for failing to testify. However, it is wildly unjust that, as a downstream effect of the right to silence, sexual assault plaintiffs are routinely raked over the coals, their privacy and dignity violated, their character, lifestyle and associations held up to public scrutiny. (And, inevitably, it’s even worse when the plaintiff is racialized, poor, LGBTQ, disabled, etc.) I have no idea what to do about this, but as long as we do nothing, our judicial system remains an accomplice in the brutal, systematic revictimization of survivors.
I’m sharing an invitation to join a friend of the court brief in Whole Woman’s Health v. Cole, a case that’s heading to the Supreme Court challenging the Texas law, HB2 (which, you might remember by way of Wendy Davis’s filibuster), arguing that targeted regulation of abortion providers (or TRAP laws) are unjust irrespective of one’s views on abortion itself. The brief is being organized by an attorney at Fish & Richardson P.C, on behalf of theologians, and academics who work in religious ethics and philosophy of religion. If you work in one of those areas, you can read more about the brief below, and contact them if you are interested in signing through a link at the end.
JOIN THE AMICUS BRIEF ON BEHALF OF THEOLOGIANS AND RELIGIOUS ETHICISTS AGAINST UNJUST LAWS ON ABORTION
The U.S. Supreme Court is preparing to consider the most important abortion case in nearly 25 years. This creates a rare opportunity for theologians and religious ethicists from across the country to come together and bring the teachings of St. Thomas Aquinas and other key theologians and religious philosophers to the Court’s attention, and urge the Court to rule against unjust laws that disproportionately hurt poorer women while undermining public faith in the rule of law.
The Case: Whole Woman’s Health v. Cole
The case, Whole Woman’s Health v. Cole, challenges onerous regulations in a Texas law known as HB2 that would force more than 75% of abortion clinics in the state to close, depriving women of access to safe, legal, high-quality reproductive health care in Texas. At issue are requirements that doctors who provide abortion services obtain admitting privileges at local hospitals and that women obtain abortions only at ambulatory surgery centers, which are mini-hospitals that are not intended for a simple office procedure. These are requirements that the American Medical Association, American College of Obstetricians and Gynecologists, and other leading health care experts say serve no medical purpose and do nothing to promote women’s health; instead, the widespread clinic closures directly threaten the health, safety, and well-being of women, particularly low-income women who live in rural areas.
Summary of the Brief
A number of theologians and religious ethicists from various faiths are planning to file an amicus brief asking the U.S. Supreme Court to strike down Texas’s Targeted Regulation of Abortion Providers (“TRAP”) law, which imposes two sets of restrictions on abortion providers that medical experts, including the American Medical Association and the American Congress of Obstetricians and Gynecologists, have recognized are unnecessary to protect the health of the woman yet have caused many clinics throughout the state to close, imposing a substantial obstacle on a woman’s ability to obtain an early, safe abortion, especially for poorer women.
These theologians plan to argue that TRAP laws are morally unjust, regardless of an individual’s stance on abortion. From the perspectives of the Catholic faith and other Christian denominations, including the writings of Catholic theologian and philosopher Saint Thomas Aquinas, TRAP laws are not a legitimate exercise of state power because they are irrational, pretextual in nature, and cause more harm than good. Under the guise of improving women’s health, TRAP laws seek instead to subvert settled law through dishonest means. But instead of furthering the state’s interests in improving women’s health, TRAP laws disproportionately attack the dignity of low-income and geographically isolated women, make the process of seeking an abortion more difficult and dangerous for these women by creating unjustifiable barriers to their healthcare. Texas’s regulations may even drive poor women to seek later, illegal procedures or try aborting at home, risking their health and lives. And because laws such as HB2 simply disguise the illegalization of abortion through unwarranted burdens on women’s exercise
of their constitutionally protected rights, they also risk fomenting widespread civil disobedience and undermining public faith in the rule of law.Moreover, TRAP laws seek to surreptitiously undermine the current legal status of abortion, effectively imposing a specific moral viewpoint on the general population and overriding the interests of women who may subscribe to any of the broad plurality of views within the world’s religions on the morality of abortion—including within Christianity itself. Those who seek to ban abortion at all stages should argue openly and forthrightly about the morality of their position, and not use TRAP laws as an underhanded tactic.
For these reasons, even from the perspective of one who believes that abortion is gravely immoral, TRAP laws like HB2 are not ad bonum commune (that is, they do not promote the common good) and should not stand. This amicus brief will draw heavily from Saint Thomas’s Summa Theologiae and writings from other religions to explain to the Court how the intent and anticipated effect of HB2 are contrary to Christian and other religions’ teachings on building a just society.
Please contact me about signing the amicus brief of Theologians by clicking here.
If you have expressed your interest through the above link, we will send the brief via email for your review by December 23, 2015. To add your signature to the brief, you will need to respond to the instructions in the transmittal email by December 28, 2015.
This time, from a student in the School of Medicine.
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.
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.
Feminist Philosophers 