Law Commons^™

Title Ix And "Menstruation Or Related Conditions", Marcy L. Karin, Naomi Cahn, Elizabeth B. Cooper, Bridget J. Crawford, Margaret E. Johnson, Emily Gold Waldman

Faculty Scholarship

Title IX protects against sex-based discrimination and harassment in covered education programs and activities. The Biden Administration's recently proposed Title IX regulations do not, however, include discrimination on the basis of menstruation or related conditions as a form of discrimination based on sex. This comment on the proposed regulations explains why the regulations should include conditions related to menstruation and recommends changes for how to do so.

Title Ix And The Challenges Of Educating For Equality, Linda C. Mcclain

Faculty Scholarship

Educating for equality to foster practicing equality must be a vital task for the next fifty years of Title IX. It is also a task that fits into the mission and expertise of schools as educational institutions. I use “educating for equality” as shorthand for the role of schools in preparing children, adolescents, and college students to participate in and build a world in which—to echo Title IX’s “37 words that changed everything”¹—“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 …

Title Ix’S Unrealized Potential To Prevent Sexual Violence, Katharine B. Silbaugh

Faculty Scholarship

The mandate of Title IX is equality in educational opportunities. If educational institutions could prevent sexual assaults from occurring, they would more fully ensure that students are not limited in their ability to benefit from the school’s educational programs. However, Title IX administration on college campuses still focuses far more on post-assault infrastructure than on assault prevention.

Yet with the ever-increasing particularity of the assault response requirements emanating from the Department of Education (“DOE”)2 and courts, Title IX jurisprudence has strayed too far from this basic purpose: to ensure that students in federally funding schools are not denied or limited …

Attorney General V. Miaa At Forty Years: A Critical Examination Of Gender Segregation In High School Athletics In Massachusetts, Erin E. Buzuvis

Faculty Scholarship

Forty years ago, the highest court in Massachusetts ruled in Attorney General v. Massachusetts Interscholastic Athletic Association that the state constitution's newly-added equal rights amendment prohibited the blanket exclusion of boys from girls' athletic teams. The state’s constitutional law departed from Title IX, as well as that of other states, in providing a legal foundation for a wider selection of gender-integrated high school sports. However, most sports remain segregated by sex.

The Author opines that sport organizers in Massachusetts have missed an opportunity to provide students a more balanced menu of athletic opportunities that incorporate both sex-segregated and gender-free sports …

A Title Ix Conundrum: Are Campus Visitors Protected From Sexual Assault?, Hannah Brenner

Faculty Scholarship

Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. …

Brief Of Amici Curiae Glbtq Legal Advocates & Defenders Et Al. In Support Of Respondent In Gloucester County School Board V. G.G., Sjc 16-273, Jennifer Levi, Shannon P. Minter, Dean Richlin, Amanda Hainsworth, Rachel Hutchinson, Emily J. Nash

Faculty Scholarship

Amici brief submitted by the GLBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, and Foley Hoag, LLP. to the Supreme Court of the United States in the case of Gloucester County School Board v. G.G., by His Next Friend and Mother, Deirdre Grimm. The brief argues that the Court should reject the school board’s claim that privacy interests justify its discriminatory policy for three reasons. First, there is no basis for the creation of a new privacy right that justifies excluding transgender students from shared restrooms. Second, nothing in Title IX or its regulations supports the School …

Inequality, Discrimination And Sexual Violence In Us Collegiate Sports, Erin E. Buzuvis, Kristine Newhall

Faculty Scholarship

While college athletics attract thousands of participants and millions of fans each year, examination of United States college athletics reveals a pattern of inequality, discrimination and abuse, which operates to foreclose women's access and suppress women's interest in athletic participation and leadership. This Chapter examines three gender related issues of integrity in college athletics: gender discrimination in athletic participation and opportunity; barriers to leadership for women coaches and administrators; and the relationship between athletics and sexual violence at college and universities. The Chapter also identifies a number of remedies that can mitigate these problems involving the Department of Education, Congress, …

Sharing Sexism, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

For The Title Ix Civil Rights Movement: Congratulations And Cautions, Nancy Chi Cantalupo

Faculty Scholarship

No abstract provided.

Barriers To Leadership In Women's College Athletics, Erin E. Buzuvis

Faculty Scholarship

Today there is an enormous gender disparity among collegiate head coaches and athletic administrators in the United States. Women fill less than a quarter of head coach and athletic director positions in college athletics and are even minorities among coaches of women's teams. Few other professions are as impervious to gender integration. Leadership in college athletics is, in the words of one scholar, one of the "few male bastions remaining," which raises the question: Why are women so starkly underrepresented in leadership positions within college athletics? There is no easy answer, but rather a variety of factors that exclude, deter, …

Athletic Compensation For Women Too? Title Ix Implications Of Northwestern And O'Bannon, Erin E. Buzuvis

Faculty Scholarship

The NCAA has been relying on Title IX requirements to defend its polices prohibiting compensation for college athletics; it argues that paying athletes in revenue sports, coupled with the commensurate obligation under Title IX to pay female athletes, would be prohibitively expensive.

As a response to the NCAA’s argument, the Author seeks to advance two positions: first, that Title IX would, as argued by the NCAA, require payment of female athletes using some measure of equality; and second, that it is not Title IX that renders the prospect of athlete compensation cost prohibitive, but rather, the fact that college athletics …

Title Ix Feminism, Social Justice, And Ncaa Reform, Erin E. Buzuvis

Faculty Scholarship

This Article discusses social justice feminism as it applies to gender discrimination in collegiate and scholastic athletics in the context of Title IX requirements. Title IX activists today are primarily concerned with securing equal resources and opportunities for women in a college athletic environment. Today, that environment is becoming increasingly commercialized; this presents a Title IX problem because it creates an incentive to invest more athletic department resources into certain men’s athletic programs instead of distributing them equitably to women’s (and other men’s) programs. In addition, the NCAA is presently considering or has recently undertaken deregulation initiatives in a variety …

Theorizing Billable Hours, Theresa M. Beiner

Faculty Scholarship

This article looks at the ethical and diversity implications of high billable hour requirements. While corporate counsel have increasingly demanded a diverse legal workforce and emphasized the need to lower the costs of outside counsel, law firms have not responded to these concerns in a manner that is producing results. Instead, women continue to drop out of law firm practice at higher rates than their male counterparts and the costs of legal services remain high. High billable hour requirements exacerbate both these problems and have implications as well for ethical lawyering. Using data from a variety of disciplines, the article …

Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg

Faculty Scholarship

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument's evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it "obviously correct" that laws excluding same-sex couples from marriage discriminate facially based on …

Judicial Innovation And Sexual Harassment Doctrine In The U.S. Court Of Appeals., Laura P. Moyer, Holley Takersley

Faculty Scholarship

The determination that sexual harassment constituted “discrimination based on sex” under Title VII was first made by the lower federal courts, not Congress. Drawing from the literature on policy diffusion, this article examines the adoption of hostile work environment standards across the U.S. Courts of Appeals in the absence of controlling Supreme Court precedent. The results bolster recent findings about the influence of female judges on their male colleagues and suggest that in addition to siding with female plaintiffs, female judges also helped to shape legal rules that promoted gender equality in the workplace.

Pregnancy And Sex-Role Stereotyping: From ‘Struck’ To ‘Carhart’, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

The guarantee of equal protection of the laws extends to women as well as men. Yet for the first 100 years of the Fourteenth Amendment’s life, the Supreme Court never found a law unconstitutional on the grounds that it discriminated on the basis of sex. Between 1970 and 1980, social movement advocacy and brilliant litigation by Ruth Bader Ginsburg and others changed our constitutional law. Over the course of the decade, the Court extended the anti-stereotyping principle from discrimination on the basis of race to discrimination on the basis of sex. But fidelity to the principle had its limits. In …

Panel Three: Introduction, Suzanne B. Goldberg

Faculty Scholarship

I think some of my colleagues will ask questions about these cases, to ask who is a man or woman, but if the question is legally, what is male or female, and if you think about the questions that you've read, say, in common law out of the Supreme Court – and I'll just talk about discrimination cases, although I think you can talk about other ones, too – think about the sex discrimination cases. The struggle is about, what is discrimination, but the Court in Craig v. Born is talking about different control restrictions for men and women. Or …

Parallel Lives: Women's Rights And Lesbian Rights Litigation, Suzanne B. Goldberg

Faculty Scholarship

I love the title of this panel because it gave me a chance to think about the historical themes and emerging issues in law related to women's rights, which of course is a mere endless set of possibilities.

I spent much of the last decade doing lesbian and gay civil rights litigation, and the question that I will focus on today grows out of that work and is a comparative one or at least a relational one. The question is this: What is the relationship between women's rights litigation as it has evolved in the last thirty years and lesbian …

Feminism At The Millennium, Carol Sanger

Faculty Scholarship

Sexism of all kinds – subtle and blatant, criminal and legal, commercial and private – is the topic of the three books under review. The books initially sort themselves out by discipline: Everyday Sexism and Subtle Sexism are anthologies whose editors and contributors are primarily sociologists; Speaking of Sex is written by a law professor and offers a more focused argument about the persistence of gender inequalities. Distinctions in authorship aside, the three books pose a pair of similar and painfully familiar questions: Why is so much still organized to the disadvantage of women, and what can (feminist) academics contribute …

Amicus Curiae Brief Of Now Legal Defense And Education Fund And Equal Rights Advocates In Support Of Plaintiff-Appellant And In Support Of Reversal, Katherine M. Franke

Faculty Scholarship

NOW Legal Defense and Education Fund ("NOW LDEF") is a leading national non-profit civil rights organization that performs abroad range of legal and educational services in support of efforts to eliminate sex-based discrimination" and secure equal rights. NOW LDEF was founded in 1970 by leaders of the National Organization for Women as a separate organization. NOW LDEF has appeared as amicus in numerous cases involving sex stereotyping as a form of sex discrimination, including Price Waterhouse v. Hopkins, and Fisher v. Vassar College.

Equal Rights Advocates ("ERA") is one of the oldest public interest law firms specializing in …

When Fathers' Rights Are Mothers' Duties: The Failure Of Equal Protection In Miller V. Albright, Kristin Collins

Faculty Scholarship

The history of coverture and the transmission of American citizenship brings an elementary point into focus: The allocation of parental rights is always correlated with the allocation of parental responsibility. This basic legal truism, and its numerous implications for citizenship law, suggests that the principal gender injustice caused by § 1409 is not its truncation of fathers' rights, but its creation and perpetuation of a legal regime in which mothers assume full responsibility for foreign-born nonmarital children. Once we recognize this gendered operation of § 1409, broader failures of equal protection analysis come into relief. First, while the jurisprudential understanding …

Gender Sex Agency And Discrimination: A Reply To Professor Abrams, Katherine M. Franke

Faculty Scholarship

According to the Equal Employment Opportunity Commission, sexual harassment is the fastest-growing area of employment discrimination. In fact, the annual number of sexual harassment complaints filed with the EEOC has more than doubled in the last six years. No one, or at least no one who has given this problem her serious attention, can deny that workplace sexual harassment is a grave problem and that it significantly impedes women's entrance into many sectors of the wage labor market.

Notwithstanding these impressive numbers, sexual harassment legal doctrine remains remarkably undertheorized – particularly by the Supreme Court. For these and other reasons, …

What's Wrong With Sexual Harassment, Katherine M. Franke

Faculty Scholarship

In this article, Professor Franke asks and answers a seemingly simple question: why is sexual harassment a form of sex discrimination under Title VII of the Civil Rights Act of 1964? She argues that the link between sexual harassment and sex discrimination has been undertheorized by the Supreme Court. In the absence of a principled theory of the wrong of sexual harassment, Professor Franke argues that lower courts have developed a body of sexual harassment law that trivializes the legal norm against sex discrimination. After illustrating how the Supreme Court has not provided an adequate theory of sexual harassment as …

Equality For Individuals Or Equality For Groups: Implications Of The Supreme Court Decision In The Manhart Case, William W. Van Alstyne

Faculty Scholarship

This commentary breaks down the case of the City of Los Angeles Department of Water and Power v. Manhart and discusses what effects the Supreme Court's decision will have when Title VII is applied to university employers, particularly in their relationship with TIAA-CREF