(Cross-posted at Concurring Opinions)

You mention male privilege in a blog post, and it’s inevitable: Someone else (usually male) will start asking about female privilege. If men have privilege, don’t women have privilege too? And does that undercut the idea of male privilege as a type of gender subordination which is built into society? (Because, the implication goes, we all have privilege — and so feminists should stop complaining about male privilege.)

And, so, predictably, some critics of feminism, “men’s rights” blogs, and the like have assembled lengthy lists of female privilege. (Women get their dates paid for — it isn’t fair!) And it’s true that there are areas where, taken on a stand-alone basis, male and female treatment appears to favor women. As we’ll see, I don’t think these areas really provide an analogue to male privilege.

We’ll start with the obvious, descriptive matter: Some areas exist in which women have some advantages. For one obvious example, some bars offer free drinks to women on some evenings. (Ladies night.) Looked at in isolation, these could be viewed as areas of female privilege. However, in context, it seems evident that this apparent female privilege fills one of two roles.

First, in many cases, the alleged privilege is actually a thinly disguised direct benefit to men. Why do women get free drinks on Thursday nights? Because many men see women as sexual objects. And so the apparent female privilege there is actually a smoke screen, to conceal the fact that women are being objectified and held out as bait to attract men to the bar, a script which is built on assumptions about male earning power, and norms of sexual interaction which cast men as subjects and women as objects. Tracy Clark-Flory at Salon notes how this plays out:

The women of New York get to continue to enjoy “Ladies Night” specials, thanks to a judge who earlier this week struck down a lawsuit alleging that attempts to attract chicks with discounted drinks are unconstitutional. It’s a decision plenty will no doubt be toasting tonight — but I fail to see this as a victory for femalekind.

In the past, judges have ruled in similar cases across the country that “Ladies Nights” are A-OK. The legal argument is one thing — and a very complicated thing at that — but just how okay is it politically and philosophically?

Clubs promote drink discounts to attract more women — because that means more men will show up. I believe the technical term for this is: Sex sells.

Commenter allgoodtees makes a similar point in an excellent comment:

Just about anything that can be put forth as so-called female privilege has roots in misogyny.

Commonly Cited Female Privilege: When custody arrangements are made during a divorce, rarely does a woman have to fight for the right to be with her children.

Misogynist Roots: Women have always been considered the primary caretakers of children, and are pressured from every side to do so to the point where men who are observed publicly tending to their own children are often asked if they’re “babysitting” them until their wife gets home. If men and women were equally considered to be caretakers, custody arrangements would more than likely be equally considered.

***

Commonly Cited Female Privilege: Women can be around large groups of young children and not be suspected of being a sexual predator.

Misogynist Roots: See above; if men and women were equally assumed to be caretakers of children, a man wanting to be involved with childrens’ activities (as anything other than “coach”) more than likely wouldn’t be viewed with suspicion.

***

This hurts men too, in very detrimental ways.

Commonly Cited Male Issue: Men are far more likely to commit suicide than women.

Misogynist Roots: “Big boys don’t cry”, “Man up” – Expressing emotions is something routinely coded as female (less than), so men are more likely to bottle them up and less likely to seek therapeutic help if bottling them up fails to work. If being emotional were a human thing instead of a woman thing, I’m willing to be those statistics would level out in time.

***

Commonly Cited Male Issue: Men are sexually assaulted, but there is far less attention paid because they are even less likely to report it than women.

Misogynist Roots: Because sexual assault is overwhelmingly a crime that happens to women at the hands of men, men who are raped have been “made the woman” (less than). Because of this, not only are they less likely to report it, but because of this attitude, they are less likely to be taken seriously by the police.

If men were truly concerned with raising awareness of this issue, the best way to do it would be to form their own organizations and fight for the recognition of this crime. They would seek out funding to form shelters for men who have been victims of sexual assault or domestic violence instead of routinely coming into discussions of the victimization of women and, politely or otherwise, ask that they be given equal consideration.

***

I think that covers a few of the bases.

It’s a point that has been made before on feminist blogs, and I agree entirely. It’s often the case that alleged female privilege merely repackages male privilege; the alleged benefits to women are extremely limited and subject to caveats, and don’t really help women very much.

I’ll go further, though, because I don’t think that all instances of female privilege are so directly linked to patriarchy. I think it’s possible that some instances of female privilege actually do award some benefits to women, without a direct and immediate tie to male privilege. That is, I think that in some cases, we could say that female privilege is “real.” But, as I’ll explain, I think those cases are probably even more pernicious.

Let’s take an asserted case of female privilege — for instance, draft immunity — and assume arguendo that it is a real instance of privilege. (I realize there are arguments that this is not a real privilege, but let’s assume it is for the moment.) Why would a real female privilege exist in society, and what might it mean?

First, an instance of female privilege would have significant potential masking effects on male privilege. There are hundreds of examples of minor societal norms — men paying for the date, men taking the combat roles in the military — which potentially give a small tangible benefit to women. These little trifles may create a perception that privilege is available to everyone: “Men get some privileges, and women get others. Hey, I guess it’s all just a wash!”

So the first negative consequence of a “real” female privilege would be to muddy or blunt arguments about male privilege. (And we’ve seen it happen, on the recent male privilege post.) This would be an incredibly misleading perception, because male privilege is the real prize, and any female privilege (such as it is) is a ragtag collection of shitty consolation prizes. Women don’t get to be CEO or President or Senator or general — but hey, they get their dinner paid for on that date. Go, female privilege! And yet the existence of any potential privilege can be a distraction from the reality that every important real privilege is reserved for men.

So in fact, a “real” female privilege could be even more pernicious than an obvious false female privilege (like Ladies Night), because it could have this masking effect.

It doesn’t stop there, though. I think there’s an even worse effect, which is the real dark side of female privilege: Female privilege (or the perception of it) is the primary reason used to convince women to buy in to and support the patriarchal system.

If women as a group truly felt like they got nothing from the patriarchy, there would be revolution in the streets. Women would not stand for a system that was stacked 100 to 0. But when it’s stacked 90 to 10, suddenly there’s the possibility that women will start to feel _ownership_ of their small plot of land. (Commenter PrometheeFeu compared it to a caste system, and that’s a great comparison. If society can convince the subordinated group that they’re lucky and blessed to have the special caste privileges of the lower caste, they’re much less likely to fight the system.)

Does it work? Frighteningly well. Because it turns out that many women don’t support feminism or gender equality. In fact, they’re often the most active voices against equality. Who opposed the ERA? Phyllis Schlafly, that’s who — a woman, and tens of thousands of other women who she mobilized. Fast forward thirty years, and the same struggle plays out, as a surprisingly large number of women today decide that they would rather not be feminists.

Why do women fight against gender equality? There are a variety of reasons; but if you spend any time reading Phyllis Schlafly or Helen Andelin or their blog successors today, it seems clear that many women believe that feminism or gender equality will undermine their special role as women. That is, they are attached to the benefits that their patriarchy-provided role provides — a type of cultural validation for some women who accept existing gender norms — and they don’t want feminists to take that away.

This desperate attempt to retain the perceived benefits of female privilege drives much of the (shockingly common) anti-feminist women’s writing. (And given the overall power structure, it’s easy to understand the desperation that drives that kind of writing. Members of subordinated groups may be understandably desperate to hang on to the few benefits that they do have — the things that they see as privilege.)

I have to think it would be different if we were selecting rights from behind a Rawlsian veil of ignorance. Door number one is membership in a group with a 90%+ chance of being on the Supreme Court, a 100% chance of being President, a 90% chance of being CEO or major business leader, an overwhelming majority in generals and scientists and the wealthy and powerful. Door number two is membership in a group that gets free drinks on Thursday, draft immunity, occasional compliments about being pretty, and affirmation and validation about the importance of the feminine role. No one in their right mind would choose Door Number Two.

But that’s not how it goes. Instead, women are given a bundle of disadvantage at birth, with a few shiny trinkets thrown in, and then patriarchal institutions tell those women, “your feminine role as women is so special.” And many women — especially women who don’t work or go to school, and so may lack some other common avenues of validation — buy into that idea. And like the prisoners in Plato’s cave, they will then fight to the death against their own liberation.

Female privilege, if it exists, is a ragtag combination of consolation prizes to keep the women quiet and content in a system which subordinates them. Real power remains in the patriarchal power structure. The existence of possible female privilege in areas like the draft doesn’t disprove this; the pitifulness of female privilege simply reinforces the original point.

Meanwhile, female “privilege” is employed as a tool to keep women from challenging their own subordination. And it’s frighteningly effective.

Feminist Law Professors

We disagree with Michael to the extent that it stands for the proposition that the rape shield law has any application to prior sexual abuse suffered by a child victim. In construing the rape shield statute, “our paramount concern is the legislative intent” in enacting it….To discern this intent, we must “read words and phrases in context according to the rules of grammar and common usage.”…Ohio’s rape shield law prohibits evidence of “specific instances of the victim’s sexual activity” unless one of four exceptions applies. The statute’s reference to “specific instances of the victim’s sexual activity” connotes volitional activity by the victim with another and not involuntary activity such as that which would stem from being subjected to sexual abuse. State v. Stoffer, 2011 WL 4579182 (Ohio App. 7 Dist. 2011).

In my research on rape shield rules from across the country, this is the first example that I could find in which a court categorically concluded that a rape shield rule does not preclude the admission of evidence of other acts of child sexual abuse committed against the alleged victim. Moreover, this quote strongly implies that the Court of Appeals of Ohio, Seventh District would find that the rape shield rule also does not preclude the admission of evidence of other rapes or sexual assaults committed against an alleged adult victim, a reading borne out by this later passage in the court’s opinion:

[W]e construe that the legislative intent of Ohio’s rape shield law was to address only past consensual sexual activity of the victim and not prior sexual abuse suffered by the victim.

In this post, I will explain why I think that Stoffer is not only horribly misguided but also dangerous.

In Stoffer, Michael Stoffer was convicted of two counts of gross sexual imposition and three counts of illegal use of a minor in nudity-oriented material or performance based, inter alia, upon acts he allegedly committed against his 7 year-old daughter, A.P. At trial,

Stoffer proffered the testimony of Jamie Kemats, a guidance counselor at A.P.’s school. She testified that in January 2008 A.P.’s brother B.P. had reported that another student touched A .P. in gym class. Kemats interviewed A.P. about the incident and confirmed B.P.’s report. The police were summoned and Kemats later learned from the principal that the five-year-old offender admitted to the incident and was removed from the school.

Stoffer claimed that “[b]ecause the incident was of the same nature and occurred around the same time as the crimes charged in the superseding indictment,…the jury should know about it.” The trial court disagreed, concluding that evidence of the incident was inadmissible under Ohio’s rape shield rule, R.C. 2907.05(E), which provides in relevant part that

Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

The Court of Appeals of Ohio, Seventh District disagreed. In reaching this conclusion, the court initially cited to the opinion of the Court of Appeals of Ohio, Second District, in In re Michael, 694 N.E.2d 538 (Ohio App. 2 Dist. 1997). In In re Michael, the defendant allegedly raped an 8 year-old and claimed that the trial court erred by precluding him from presenting witness testimony and Children Services records indicating that other individuals had sexually abused the alleged victim. The defendant acknowledged that this evidence was inadmissible under Ohio’s rape shield rule but claimed that the trial court had to allow him to present it pursuant to his Sixth Amendment right to present a defense.

The Court of Appeals of Ohio, Second District agreed that the defendant had the right to present some evidence of other sexual abuse because otherwise the jury would perceive the alleged victim as a “sexual innocent” and “believe the sexual experience he described must have occurred in connection with the incident being prosecuted; otherwise, he could not have described it.” That said, the appellate court found that the trial court did allow the defendant to present some evidence of this other abuse and that the trial court’s “application of the rape shield statute” to exclude other evidence of this abuse “did not unconstitutionally infringe upon Bryan’s right to present evidence in his defense.”

As noted in the block quote that opened this post, the Court of Appeals of Ohio, Seventh District disagreed in Stoffer, initially concluding that

We disagree with Michael to the extent that it stands for the proposition that the rape shield law has any application to prior sexual abuse suffered by a child victim. In construing the rape shield statute, “our paramount concern is the legislative intent” in enacting it….To discern this intent, we must “read words and phrases in context according to the rules of grammar and common usage.”…Ohio’s rape shield law prohibits evidence of “specific instances of the victim’s sexual activity” unless one of four exceptions applies. The statute’s reference to “specific instances of the victim’s sexual activity” connotes volitional activity by the victim with another and not involuntary activity such as that which would stem from being subjected to sexual abuse.

The court then went on to hold that

This interpretation of Ohio’s rape shield statute is supported by the General Assembly’s use of the “victim’s sexual activity” throughout that provision. The statute specifically prohibits opinion and reputation evidence of the victim’s sexual activity. Opinion and reputation evidence are methods of proving character. Evid.R. 405. Character is generally thought to include qualities, like honesty and integrity, over which that person has control. Therefore, when the General Assembly sought to protect a victim from opinion and reputation evidence, it was contemplating evidence of a victim’s sexual history over which they had control.

The state interests identified by the Ohio Supreme Court in Gardner, supra, which are advanced by the rape shield law also support this understanding of the “victim’s sexual activity.” It is hoped that guarding the victim’s sexual privacy and protecting them from undue harassment encourages the reporting of rape, thus aiding crime prevention. Interpreting the rape shield statute to exclude evidence of past sexual abuse does not further these state interests. While sexual abuse victims may very understandably be reluctant to disclose past instances of sexual abuse, that discomfort is different from the undue harassment that rape shield statutes were enacted to protect against—undue harassment that may be caused by the revelation of one’s own history of questionable voluntary or consensual sexual activity.

Ultimately, the court concluded that

Based on the foregoing, we construe that the legislative intent of Ohio’s rape shield law was to address only past consensual sexual activity of the victim and not prior sexual abuse suffered by the victim. Therefore, the rape shield statute has no application in this case and the trial court erred in applying it.

So, why are these conclusions all kinds of wrong?

Specific instances of the victim’s sexual activity≠Only consensual activity

First, I’m not sure that I buy the court’s logical leap from the presupposition that courts “read words and phrases in context according to the rules of grammar and common usage” to the conclusion that the same rules that apply to character evidence should apply to rape shield evidence simply because Rules 404-405 and the rape shield rule both reference “reputation” and “opinion” testimony. Both Federal Rule of Evidence 610 and Ohio Rule of Evidence 610 preclude the admission of

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.

Is religious belief/opinion volitional? I suspect that some would say that it is. I suspect that many others would say that it is not. And if we believe that it is not, why shouldn’t Rule 610, which covers opinion testimony, guide how courts construe the rape shield rule and mean that even nonvolitional sexual activity is covered by the rape shield rule?

Second, even if the court is right that the character evidence rules should govern our understanding of how to interpret the rape shield rule, the court is patently wrong that the character evidence rules only govern volitional/consensual actions. Let’s say that a defendant is charged with murder. And let’s say that the prosecution has evidence that the victim stole drugs from the defendant in the past. If the prosecution tries to use this evidence to prove that the murder was likely drug-related because the past drug incident established the defendant’s propensity to engage in drug transactions, the evidence would be inadmissible under Federal Rule of Evidence 404(b)/Ohio Rule of Evidence 404(b), which both provide that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”

Both of these rules, however, provide that evidence of these other crimes, wrongs, or, acts are admissible to prove other purposes such as motive. Thus, evidence that the victim previously stole drugs from the defendant would be admissible to prove that the defendant had a motive to kill the victim. And indeed, this is exactly what the Court of Appeals of Michigan found in People v. Kennedy, 2007 WL 3309995 (Mich.App. 2007) based upon the exact facts stated above: Evidence of the prior drug theft was admissible, but only for the limited purpose of proving the defendant’s motive to kill the victim.

In other words, evidence that drugs were taken from the defendant without his consent/volition was character evidence and only admissible against the defendant if offered for a permissible purpose. This being the case, why shouldn’t the same analysis apply to the rape shield rule when prior sexual acts are committed against the alleged victim without her consent/volition?

Third, let’s take the court’s conclusion to its logical extreme. Here’s a classic case in which everyone agrees that the rape shield rule applies: A defendant is charged with the homosexual rape of an alleged victim, and the defendant wants to present evidence that the alleged victim is homosexual. The defendant’s theory is obvious: Because the alleged victim is homosexual, this evidence proves that (s)he has a propensity to consent to homosexual acts and that (s)he likely acted in conformity with that propensity, and thus consented, at the time of the crime charged.

Unlike evidence of past child molestation/sexual assault/rape, such evidence clearly goes to the issue of consent and is thus inadmissible under rape shield rules. Indeed, the federal rape shield rule explicitly precludes the admission of evidence of an alleged victim’s sexual predisposition, and evidence of homosexuality clearly constitutes evidence of sexual predisposition. And while some still hold on to the belief that sexual preference is a choice, I think that most people now rightfully realize that it is not a choice. Sexual preference is not volitional. Pursuant to the court’s opinion in Stoffer, that would make it admissible without regard to the rape shield rule.

Excluding evidence of past child sexual abuse furthers state interests

I am flabbergasted by the conclusion of the Court of Appeals that “[i]nterpreting the rape shield statute to exclude evidence of past sexual abuse does not further…state interests” in “guarding the victim’s sexual privacy and protecting them from undue harassment[,] encourag[ing] the reporting of rape, thus aiding crime prevention.” Really? Take the case of In re Michael. The defendant wanted to present evidence that the alleged child victim was sexually abused to prove that the child victim was fabricating allegations of molestation against him and was able to do so convincingly based upon prior acts of chld molestation committed against him.

Is the court in Stoffer trying to argue that the admission of such evidence does not invade the child victim’s privacy? That deeming such evidence outside the scope of the rape shield rule wouldn’t deter a child victim from reporting prior acts of child molestation? In fairness to the court, the answer is “no.” But doesn’t that actually make the court’s opinion worse? According to the court,

While sexual abuse victims may very understandably be reluctant to disclose past instances of sexual abuse, that discomfort is different from the undue harassment that rape shield statutes were enacted to protect against—undue harassment that may be caused by the revelation of one’s own history of questionable voluntary or consensual sexual activity.

So, even though reading the rape shield rule to cover other acts of child molestation would protect the privacy of alleged victims and diminish their reluctance to report, the court was unwilling to do so because such acts were not in the minds of drafters of rape shield rules?

My response: Shit happens. In response to the assassination of John Lennon and the assassination attempt on Ronald Reagan, Congress enacted Federal Rule of Evidence 704(b), which provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Although this rule was “enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity,” courts have since found that it “applies to all instances in which expert testimony is offered as to the mental state or condition constituting an element of the crime charged or defense thereto,” often to the detriment of prosecutors. United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995).

Shit happens. Ohio’s rape shield rule states that “[e]vidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted” unless an exception applies. Evidence of child molestation is evidence of a specific instance of the victim’s sexual activity. It therefore should not be admissible unless an exception applies. I refer the Court of Appeals to the law of intended consequences.

The rape shield rule should cover evidence of past rapes of adult victims

But did the drafters of rape shield rules really not intend them to cover nonconsensual sexual activity? As noted, there is an exception to Ohio’s rape shield rule that allows for the admission of evidence of specific instances of the victim’s sexual activity to prove the origin of, inter alia, semen. Federal Rule of Evidence 412(b)(1)(A) has a similar exception allowing for the admission of such evidence “to prove that a person other than the accused was the source of semen, injury, or other physical evidence.”

So, when does this exception typically come into play? Defendant is charged with raping Victim, and the prosecution has evidence of injuries suffered by Victim such as a vaginal abrasion. Defendant admits to sexual intercourse with Victim but claims that it was consensual and that the injuries came from another act of nonconsensual sexual abuse committed against Victim. As the Supreme Court of Maine noted in State v. Drewry, 946 A.2d 981, 993 (Me. 2008), under this type of exception, such evidence is sometimes admissible “to ‘generate doubt as to [the defendant's] participation in abuse,’ even where that evidence involves ‘inquiry into any evidence of abuse.”

Doesn’t the very existence of this type of exception establish that rape shield rules were meant to cover nonconsensual sexual activity? After all, why would evidence of nonconsensual sexual activity only be admissible under an exception to the rape shield rule, and only if offered for a certain purpose, if the rape shield rule does not preclude the admission of nonconsensual sexual activity in general?

-Colin Miller

Feminist Law Professors

Hope Solo will appear on Dancing with the Stars and Billie Jean King will appear in a series of ads by the Arthritis Foundation endorsing exercise as a treatment for arthritis.

Earlier this week, reps from Solo’s pro team, the WPS Magic Jack, confirmed that the U.S. National Team keeper will appear on DWTS.  Solo tweeted to fans (here), “I’m excited for this challenge but most importantly to try and raise awareness 4 women’s soccer.”

Today’s NYT had this article on the Arthritis Foundation‘s ad campaign.  The ads will be unveiled at the U.S. Open tomorrow.  In one, apparently King says, “Tennis is a weapon for me with arthritis.”

With both news items catching my eye this week, I couldn’t help but think that without Billie Jean King, Hope Solo probably wouldn’t be on DWTS.  Ok, that sounds tenuous, but King was and is one of the most outspoken advocates for women’s sports.  Without King (and maybe without that famous match she played with Bobby Riggs), maybe there wouldn’t be millions of girls and women playing sports.  And if girls and women didn’t play sports, there wouldn’t be a Women’s World Cup, and if there weren’t a Women’s World Cup…well, you get it.

There’s lots still to achieve in terms of gender equality in athletics, to be sure.  In the meantime, DWTS may have increased its audience share with the recruitment of Hope Solo.

Let’s not forget, though, that Billie Jean King had her own DWTS moment (ok, not exactly) back in 1968.  King won Wimbledon that year (singles and women’s doubles).  The cameras rolled when King danced with tennis great (and 1968 Wimbledon men’s singles winner) Rod Laver at a post-Wimbledon ball.   A clip of that dance is available here.  Great vintage footage!

-Bridget Crawford

Feminist Law Professors

The New York Times reports today on “Scientific Advances on Contraceptive for Men.”  Here is an excerpt:

The most studied approach in the United States uses testosterone and progestin hormones, which send the body signals to stop producing sperm. While effective and safe for most men, they have not worked for everyone, and questions about side effects remain.

So scientists are also testing other ways of interrupting sperm production, maturation or mobility. * * *

[One man who participated in a research trial] did, however, like the progestin implant, which caused no side effects. Although it “kind of was a disappointment” that the accompanying testosterone shots did not help him win amateur bicycle races, he said, the implant made him “the talk of the party.”

Men’s reactions, he said, ranged from “ ‘I would do something like that’ to ‘Dude, you’re crazy. How do you know if your sperm count will return? Is there shrinkage in any area, or malfunctioning?’ ”

But “women were just totally excited,” he said. “If I were single, I probably would have been able to use that as a dating thing.”

One of the many important factors in the success of any male contraceptive will be women’s willingness “to trust that their partners are using birth control, as men do now,” the story notes (here).  That makes sense to me.  I’m not sure, but I wonder if eventually one might see demographic or other differences in women’s self-reported levels of trust in their male partner’s use of birth control.  Would a woman demand to see a prospective partner’s “certificates of compliance” with a particular birth control protocol?  From the 1990′s, I remember those wallet-sized cards that one could get, showing the dates of one’s last HIV test, the results and the testing facility.  I suppose something similar could work for male contraceptives.  Hmmm…but then again, from the 1980′s, I remember fake I.D.’s, too.

-Bridget Crawford

Feminist Law Professors

I have written elsewhere about how the costs imposed on same-sex couples to have their relationships recognized can be reconceptualized as a tax on them. The Advocate has another example of such a cost–this one imposed privately but relying on the public denial of recognition to/imposition of costs on same-sex couples as a reason for asking same-sex couples to pay for privileges that heterosexuals take for granted:

When John Christopher Millican died June 11, his partner of 10 years, Terrance James, filled out paperwork to have his obituary run in the local paper, The Batesville Daily Guard. When the obit was published, however, it did not include James’s name, but it did list Millican’s deceased parents and surviving siblings, with whom he had little contact, according to the Center for Artistic Revolution, an Arkansas gay rights group.

James complained, but an editor for the Daily Guard told him the paper has a policy against printing names of unmarried partners and cited the fact that Arkansas does not recognize same-sex unions. She told him, however, that the paper would run a paid obituary for $85 that would include any information he wanted. (Most smaller newspapers run obituaries free of charge; in larger cities, the obits of prominent people run as news items, while other death notices carry a fee.) This led to an action call on Change.org and coverage in many gay news outlets.

Put differently, the newspaper is happy to recognize different-sex couples for free and will do the same for same-sex couples, if they pay them $85!

The solution? GLAAD is going to pay the $85 fee and the newspaper is going to donate the money to a charity chosen by Terrence James. The newspaper is also going to revise its policy–precisely how was unspecified–”to avoid this situation arising again.”

Why did GLAAD pay the $85? If this is really a matter of equality and, in GLAAD’s words, an “awful injustice,” shouldn’t the fee have been waived instead of being donated to charity? Wouldn’t that have been an appropriate first step toward correcting and revising this insulting and demeaning policy?

-Tony Infanti

Feminist Law Professors

Feminist Law Professors

Judge Nancy Gertner kicks ass. I remember writing a motion in limine regarding the admissibility of virtual reality evidence for the annual mock technology trial when I was a student at William and Mary. Judge Gertner served as the judge for this mock trial, and she really took the time to pour over my motion, delivering a thoughtful ruling on it. The experience was one of the main things that inspired me to become an Evidence professor. If you are looking to inspire someone to enter a career in the law, or just to inspire someone generally, I have no doubt that her new book, In Defense of Women: Memoirs of an Unrepentant Advocate, will do the trick. Just watch this clip of Judge Gertner talking about her life, and I’m sure you’ll be sold.

Recently, I learned that Judge Gertner is retiring and has been appointed as a Professor of Practice at Harvard Law School. Harvard’s gain. The bench’s loss. Judge Gertner leaves a legacy of compelling decisions, and, according to an article on her retirement, one of her swan song opinions might just be her masterpiece. According to boston.com,

to understand Nancy Gertner, better to consider the case of a hotel housekeeper named Carmen who said she was driven from her job by a boss who thought she was too old.

When the hotel owners sought to dismiss Carmen’s age discrimination suit on the grounds it was just one manager making “stray’’ remarks, Gertner could have upheld or denied the motion in a single page. But that’s not her way.

Rather, she issued an intricately detailed 33-page decision that came down on the hotel like a collapsing roof, putting management on notice that there’s no excuse for calling Carmen or anyone else “an old shoe’’ or an “old hankie.’’ The defendant’s lawyer might want to think about settling this case, say, yesterday.

So, what was the case, and what did Judge Gertner hold?

The case was Diaz v. Jitan Hotel Management, Inc., 2011 WL 181777 (D. Mass. 2011). The facts were as stated above.

Specifically,…[Carmen Diaz] allege[d] that after twenty-two years of excellent service and two “Department Head of the Year” awards, she was suddenly denied review and the corresponding annual raises. Her direct manager, Mitesh Patel (“Mitesh”) repeatedly asked her when she was going to retire, told her that she was getting old, and indeed called her an “old pumpkin,” an “old shoe,” and an “old hankie.” When she hired a 52–year old laundry attendant, he told her, “You’re going to convert this hotel into a nursing home.” The harassment, she allege[d], permeated the environment. Indeed, another manager told her that management thought she was too old for the job and that “old people should remain home.”

Diaz thereafter filed a complaint with the EEOC and the Massachusetts Commission Against Discrimination. Jiten then moved for summary judgment, alleging (1) “that whatever claims Diaz ha[d] [we]re directed solely against Mitesh, her direct manager;” and (2) that “Mitesh’s discriminatory statements [were] merely ‘stray remarks,’ certainly not indicative of his discriminatory animus or the employment environment as a whole.”

Judge Gertner was having none of this, responding

As support for this last claim, Judge Gertner cited Sandra F. Sperino, A Modern Theory of Direct Corporate Liability for Title VII, 61 Ala. L. Rev. 773, 787-88 (2010), for the proposition that

One of the current problems in employment discrimination law is that courts view discrimination largely as a ‘problem of errant or rogue individual discriminators acting contrary to organizational policy and interest.’…In some cases, the search for the rogue actor is appropriate; however, in others, the search for the rogue actor asks the wrong question about culpability. It ignores the fact that multi-tiered or group decisionmaking processes may make it difficult or impossible to locate intent within a particular person….[It] disregards the ways that both formal and informal processes and policies within an organization shape the intentions and actions of its individual members, and the ways that the actions and intentions of the individual members shape the organization.

Judge Gertner then went on to hold that

That’s a pretty great opinion, huh? But wait, there’s more. This was merely the introduction to the opinion. Judge Gertner later really dug into the facts of the case, discrimination law, and how and why courts have distorted the holding of Price Waterhouse v. Hopkins beyond recognition. I won’t detail all of that analysis here. Instead, I will simply point readers to my recent post on Kerri L. Stone‘s terrific article, Clarifying Stereotype, 59 U.Kan. L. Rev. 591 (2011), which reaches many of the same conclusions as Judge Gertner’s opinion.

This isn’t surprising to me because Judge Gertner’s opinions have always read like really good law review articles. I’m sure she will fit in quite well as a Professor of Practice at Harvard. And I’m just as sure that the bench will be losing one of its surest voices.

-Colin Miller

Feminist Law Professors

Federal Rule of Evidence 801(d)(2)(E) provides that “[a] statement is not hearsay if…[t]he statement is offered against a party and is…a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Rule 801(d)(2)(E) is based upon agency theory. As long as co-conspirators are engaged in a conspiracy, statements made by one conspirator in furtherance of that conspiracy are attributable to co-conspirators. But when exactly is a statement in furtherance of a conspiracy? Well, as the Court of Appeals of Idaho noted in State v. Rolon, 201 P.3d 657 (Idaho.App. 2008), there is a split among the courts.

Some courts find that “stray” comments qualify as co-conspirator admissions. For instance, in United States v. Clark, 18 F.3d 1337 (6th Cir. 1994), Jeffrey Mullins, Roger Clark, and others allegedly robbed three banks. After the third alleged robbery (but before the money from the robbery was distributed), Mullins said to his girlfriend that “Roger (Clark) got sick, that he was a wimp, that he couldn’t handle it any better than anybody else could. Everybody wanted part of the money, but they couldn’t handle the job.” The Sixth Circuit found no problem with the girlfriend testifying concerning this statement under Federal Rule of Evidence 801(d)(2)(E), finding that a “statement need not actually advance the conspiracy to be admissible” and that ”statements which identify the participants and their roles in the conspiracy are made ‘in furtherance’ of a conspiracy.” The court in Rolon rejected this reading of Rule 801(d)(2)(E) and joined those courts that had held that “a determining factor is whether a statement in any way assists or advances the objectives of a conspiracy-otherwise such a statement is not ‘in furtherance’ as prescribed by the rule.”

This split was the first thing that I thought about after reading the terrific recent article, Clarifying Stereotype, 59 U.Kan. L. Rev. 591 (2011), by Kerri L. Stone, a professor at the Florida International University College of Law. The major point of Professor Stone‘s article is that, in the wake of the Supreme Court’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), courts have cited to Hopkins “in a one-size-fits-all manner in virtually every case brought under Title VII in which stereotyping of any kind or in any context has been alleged.” In other words, courts themselves have engaged in stereotypical thinking in addressing Title VII stereotyping claims, sometimes leading to similar claims being treated disparately and other times leading to disparate claims being treated similarly. And this is how we end up with a supervisor’s “stray” stereotypical comment to an employee being one court’s garbage but another court’s treasure. Professor Stone‘s goal in the article is to dig beneath courts’ habitual citations to Hopkins and see what really is (and should be) going on.

Early in the article, Professor Stone explains the Court’s holding in Hopkins, in which Ann Hopkins brought a mixed-motive Title VII action against Price Waterhouse, claiming that she was denied partnership based upon sex discrimination as well as the proffered reason of interpersonal problems. Her main evidence of sexual discrimination was evidence of sex stereotyping in partners’ evaluations of her. According to Professor Stone,

The Court, however, noted workplace comments predicated on sex stereotyping “do not inevitably prove that gender played a part in a particular employment decision.” Rather, the Court found the plaintiff bore the burden of demonstrating that her employer “actually relied on her gender in making its decision.” While stereotyped remarks could evince that gender played a role in the decision, the Court believed the case involved more than stray remarks.

As Professor Stone notes, the Supreme Court did not give much guidance to lower courts in how to apply this analysis in future cases. Instead,

-”The Court…was not as clear as might be imagined as to the legal doctrine of stereotyping and its contours generally;”

-”The Court gave even less clear guidance as to how courts should go about discerning illicit stereotyping that could make employers run afoul of the law….[,] t[aking] a we’ll-know-it-when-we-see-it approach to sex stereotyping;” and

-”The Court left the lower courts the task of infusing its words with additional meaning.”

The problem, according to Professor Stone, is that courts have not infused Hopkins‘ words with additional meaning. Instead, when confronted with motions for summary judgment dismissing Title VII claims in which stereotyping of any kind or in any context has been alleged, courts habitually apply Hopkins in an opaque, one-size-fits-none manner that lends itself to inconsistency and unreliability, i.e., they have applied it stereotypically. Professor Stone‘s goal is to dig beneath the surface of these opinions and unearth (and challenge) what courts are really doing. And what she finds is that

Although the courts have been less than explicit about this fact, a court confronted with an allegation that a stereotyped comment or belief evinces discrimination “because of” sex must address two primary questions. The ultimate question, of course, is whether Hopkins applies to the case so as to compel the court to view the comment or belief as existing and serving as evidence of discrimination sufficient to at least create a triable issue of fact. The first question–a focus of this Article–is whether a stereotype is even in play. In other words, is there a stereotyped belief, voiced or somehow acted upon, that could serve as viable evidence of discrimination? The second question is when a sufficient nexus may be said to exist between the stereotype and the adverse action at issue.

Professor Stone then breaks down this first inquiry further, finding that

Among the questions that courts appear to have considered when resolving the issue of whether or not a stereotype–expressly articulated or not–was in play include the following: Does the statement reference an identifiable class, or is it too vague or ambiguous; is the stereotype an entrenched stereotype, meaning, is it societally known; is the stereotype adequately voiced, or is too tacit or implied to be discerned as such; and is the comment or remark a stereotype that adverts to a characterization of a person based upon his class, or is it merely an inartful characterization of a trait or behavior that has no relation to either the plaintiff’s protected class or to the speaker’s perception of the class?

Does the Stereotype (need to) Reference an Identifiable Class?

Should plaintiffs using stereotypical comments to prove Title VII claims have to prove that they were signaled out because they are members of  protected class and treated less favorably than those outside the class? Some courts reach this conclusion, such as the Eastern District of Michigan in Maturen v. Lowe’s Home Centers, Inc., 2007 WL 3173962 (E.D. Mich. 2007), in which the plaintiff’s supervisor told him that he “should learn to control [his] wife and keep her in her place” after the plaintiff’s wife criticized his employer’s store and personnel in an e-mail to the supervisor. In dismissing the plaintiff’s claim, the court concluded that “[t]he salient issue in a Title VII claim of discrimination is whether the plaintiff was singled out because of his membership in a protected class and treated less favorably than those outside the class, not whether the plaintiff was treated less favorably than ‘someone’s general standard of equitable treatment.’”

Professor Stone points out that this makes no sense because there is both intergroup bias (e.g., preferring male employees to female employees) and (the more difficult to prove) intraclass preference (e.g., preferring more feminine female employees to more masculine female employees or vice versa). And, indeed as she notes (and as I noted in a previous post), courts have been receptive to Title VII claims alleging family responsibility discrimination “even though the discrimination does not systemically discriminate against all women.” Professor Stone also takes to task courts finding that stereotyping based upon gender non-conforming behavior not observed at work falls outside the scope of Title VII, concluding that “[i]f gender nonconforming behavior is not observed in the workplace but is still used as the basis for a workplace-related consequence, it is certainly no less an action taken ‘because of’ protected class status than it would be if the behavior were discernible at work.”

Is the Stereotype Entrenched (and does it need to be)?

In Love v. Motiva Enterprises, LLC, 2008 WL 4286662 (E.D. La. 2008), the plaintiff sued for discrimination, claiming that she received complaints that she did not conform to her supervisor’s “idea of a liberated, physically fit woman” or of a “slimmer, liberated woman.” The Eastern District of Louisiana, however, rejected this claim, finding that someone’s idea of a “liberated, physically fit woman by definition cannot constitute a stereotype, which is based on society’s general ideas about traits commonly thought to be shared by persons of the same physical type.”

Professor Stone again takes these types of opinions to task, concluding that

the question of how entrenched the stereotype is should not be relevant, so long as it inheres in the decision-maker’s mind. Stereotypes are nefarious because of the mindset they evince; that mindset is subjective and should not need societal reinforcement to be valid evidence of animus, prejudice, or misperception that may have precipitated class-based disparate treatment. Moreover, whether the stereotype invoked goes toward the woman being “too manly” ought not be the dispositive question as to whether she can prove sex discrimination. To the extent any decision-maker is inclined to see a protected class ideal in a certain way and then judges a protected class member in a way in which he would not judge a non-class member for failing to conform to this ideal, the class member experiences discrimination on the basis of class status.

Was the Stereotype Explicit or Too Tacit or “Inartful” to Evince Prejudice?

In Valles-Hall v. Ctr. for Nonprofit Advancement, 481 F.Supp.2d 118 (D.D.C. 2007), a Hispanic female sued her former employer, claiming, inter alia, that complaints about her “aggressive and inflammatory” style of communication were coded, “stereotyped characterizations that are often used when women and people of color are self-confident, intelligent and assertive.” As support for this claim, she alleged that her then-supervsior told her

that “[i]f making judgments about people and telling them is a cultural thing, then maybe we should tell the staff it’s a cultural thing and they should buck up and take it.” This same supervisor, however, informed the plaintiff that she deemed her “behavior not to be ‘a cultural thing’ but rather to be ‘verbal abuse.”’

In granting the defendant’s motion for summary judgment, the court held that the supervisor’s comment was “[a]t most,…a stray remark that, although probative of discrimination, cannot serve as direct evidence of discrimination.” Professor Stone is troubled by this conclusion and similar conclusions, and I agree. Going back to the introduction to this post, I think that we can all agree that a co-conspirator can make a statement during a conspiracy that does not further the conspiracy (e.g., a statement about the co-conspirator getting food or doing laundry). But can we ever say, as a matter of law, that a supervisor’s stereotypical comment to an employee is merely a “stray” comment or too tacit to serve as evidence of discrimination?

Professor Stone cites to a lot of research refuting this theory and compellingly notes that because “the law has rendered overt and explicit bias taboo and socially unacceptable, invidious discrimination…has become expressed in increasingly subtle, nuanced ways, with those harboring bigoted attitudes deploying coded speech, tacit understandings, and unspoken, but acted-on preferences.” Therefore, “[t]o the extent that social mores dictate restraint when it comes to the utterance of such comments, the fact of their vocalization ought to strengthen the presumption of their truthfully representing the beliefs of the speaker.”

Is the Comment Merely an Inartful Characterization of a Trait that Has No Relation to Class Status?

Finally, what about cases where a supervisor makes no comments explicitly referencing race/gender/etc., but the plaintiff claims that the supervisor’s view of her skills was “tainted” by the supervisor’s “discriminatory attitude? For instance, what if, as in Cuttino v. Genesis Health Ventures, Inc., 2006 WL 62833 (D. Conn. 2006), the plaintiff claims that she was targeted for particularly bad treatment because of her status as “an assertive African-American employee.” Well, according to the District of Connecticut, it is unlikely (impossible?) for the plaintiff to succeed if she was replaced by another African-American employee.

Professor Stone again finds this nonsensical based upon intraclass preference and notes that if the plaintiff

could demonstrate that traits that she possessed were not tolerated as well in her as they would be in one who was not a member of her protected class, she should certainly have a cognizable claim of race discrimination. Moreover, if she could show that a decision-maker was more prone to discerning or ascribing certain traits to her than he would be to one who was not a member of her protected class (in this case, race), she should certainly have a cause of action.

Conclusion

Professor Stone also analyzes what courts are (and should be) doing under the second question, and I direct readers to the article to read her complete analysis on the issue. Overall, I think that the article does a wonderful job of exposing a real complacency in courts in applying Hopkins to Title VII claims in which stereotyping is alleged, and I strongly recommend it to readers (and hope that the article finds its way into the hands of some judges). The bottom line seems to be that courts taking the easy out of applying the same generic Hopkins analysis to widely disparate discrimination claims are engaging in the same type of stereotypical behavior that Title VII sought to curtail and that, as in the article, they need to dig deeper and address what is really going on. I asked Professor Stone what led her to write the article, and she responded:

In the spring of 2008, I was teaching an employment law class, and we had just finished reading and discussing the 1989 Supreme Court case of Price Waterhouse v. Hopkins. A woman in my class raised her hand and shared that she had been told by her boss at work that she was “too girly” to succeed at the company. The boss, she quickly added, had “no problem with women,” though, and he had readily hired and promoted numerous other women. I put the question to my class: if this woman were to suffer an adverse action at the hands of this boss, would Title VII have been violated? The group’s feelings were mixed. One student raised his hand and contended, “Employment is at will. If this guy really has a good record with women and he has singled her out because of the way in which she comes across to him, that’s his prerogative.” Another student countered, “What about Hopkins? Isn’t that gender stereotyping?” Others weighed in: if this woman were held back while many other women were not, how could the issue be tied to her sex and not to particularities of her personality?

I decided to try a different tack. “OK. Let’s change the example here. What if a firm had a spectacular record of hiring and promoting members of a certain minority racial group—let’s say Asian Americans, and let’s say in numbers greater than the group exists in the labor pool. But one day, one guy is pulled aside and told that he’s “too ethnic” seeming to succeed at the company. Title VII problem?” I watched with interest as the class bristled, as I’d hoped they would, as they thought more about the issue. “But that’s really offensive for that boss to say,” one student remarked. “Yes,” I answered, “but anchor your analysis to Title VII.” We discussed Title VII’s objectives and their nexus with the notion of “stereotyping.” It was in the course of this discussion that I began to think about the fact that there has been an immense amount of confusion as to Hopkins’s precise meaning with respect to stereotyped remarks and beliefs that are alleged to have factored into adverse employment decisions. Once back in my office, a review of Title VII cases invoking Hopkins over the course of the twenty years since its issuance, and especially several recent cases highlighted this confusion.

This article really came out of that discussion and my subsequent review of the confused jurisprudence on point. Here is the article’s abstract:

Discrimination on the basis of sex in employment is illegal, but can one legally be fired for being “too girly?” How about for not acting “manly enough?” The notion that stereotyped beliefs about groups can engender employment discrimination liability was first set forth in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Notably missing from that opinion, however, was clear guidance as to how to discern when an impermissible stereotype is at play, when a belief underlies or motivates an adverse action at work, or under what circumstances a comment alleged to evince “stereotyping” may be ample evidence of discrimination. This Article is the first analytical exploration of the concept of stereotyping in the context of employment discrimination claims.

Courts guided only by Hopkins, which is ubiquitously invoked, but unclear, have come up short in their adjudication of these cases. Courts have failed to engage with the threshold questions of what it means to stereotype; how stereotyping translates into impermissible action; and why stereotyping is considered to be nefarious and capable of fomenting discrimination. This Article examines Hopkins’s language, its precise mandates, and its guidance for lower courts. This study then explains the widespread extrapolation of Hopkins by the lower courts and the framework in which it now operates. Hopkins furnished guidance that is less than clear as to when so-called “stereotyping” is evidence that warrants evaluation by a trier of fact and when a comment is harmless or too attenuated from an adverse action to permit an allegation of discrimination to survive. This Article also identifies the various smaller, often unarticulated questions bound up in the larger issues of when impermissible stereotyping has occurred, and how various courts’ failure to specify these questions and their answers may have led to the confused state of stereotyping jurisprudence. In light of these questions, this work offers a matrix to guide stereotyping analyses in the future.

-Colin Miller

Feminist Law Professors

The full text of the decision of the Supreme Court of the State of New York, Appellate Division, First Department appears after the fold.

H. Kenneth Ranftle v. Craig Leiby, Respondent, 4214

By Mazzarelli, J.P., Catterson, Manzanet-Daniels, Romn, JJ.

February 24, 2011

New York City Bar Association, Office Of The Attorney General, City Of New York, Amici Curiae. Alexander M. Dudelson, Brooklyn, For Appellant

Lambda Legal Defense And Education Fund, Inc., New York (Susan L. Sommer Of Counsel), For Respondant

Kramer Levin Naftalis & Frankel Llp, New York (Eve Preminger Of Counsel), For The New York City Bar Association, Amicus Curiae

Andrew M. Cuomo, Attorney General, New YorK (Allison J. Nathan Of Counsel), For The Office Of The Attorney General, Amicus Curiae

Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson Of Counsel), For The City Of New York, Amicus Curiae

Order, Surrogate’s Court, New York County (Kristen Booth Glen, S.), Entered On Or About July 27, 2010, Which Denied Appellant’s Petition To Vacate The Probate Of His Brother’s Will, Unanimously Affirmed, Without Costs.

In his Last Will and Testament, executed on August 12, 2008, the decedent made bequests to three brothers, including appellant, and a goddaughter. He left the residue of his estate to respondent, his same-sex partner, whom he had married in Canada on June 7, 2008. Decedent appointed respondent as the executor of his will, which included an in terrorem clause. On December 12, 2008, respondent, as the executor named in the will, filed a petition for probate in the Surrogate’s Court. Respondent identified himself as the decedent’s surviving spouse and the sole distributee. On December 12, 2008, respondent served the legatees with notice of probate, and on December 15, 2008, the Surrogate’s Court issued a decree granting probate.

On January 26, 2009, the Surrogate’s Court issued an opinion finding that respondent was “decedent’s surviving spouse and sole distributee” (EPTL 4-1.1) and thus, citation of the probate proceeding need not issue to anyone under SCPA §1403(1)(a). The court found that the decedent’s same-sex marriage to respondent was valid under the laws of Canada, where it was performed, and did not fall into either of the two exceptions to the marriage recognition rule, as the marriage was not affirmatively prohibited or proscribed by natural law. Accordingly, the Surrogate’s Court found that the marriage was entitled to recognition.

By order to show cause, dated June 23, 2009, appellant petitioned the Surrogate’s Court for vacatur of the probate decree and permission to file objections, alleging that the court was without jurisdiction to grant probate without citation having been issued on the decedent’s surviving siblings. Appellant argued that the recognition of the decedent’s same-sex marriage violated public policy in New York and that he should have been cited in the probate proceeding and provided with an opportunity to file objections thereto as a distributee.

In denying the instant petition, the Surrogate found that appellant’s position that same-sex marriage violated public policy had been “specifically addressed and rejected by the Appellate Division in Martinez v. County of Monroe (50 AD3d 189 [2008], lv dismissed 10 NY3d 856 [2008]) and is patently without merit.” We agree.

New York’s long-settled marriage recognition rule affords comity to out-of-state marriages and “recognizes as valid a marriage considered valid in the place where celebrated” (Van Voorhis v. Brintnall, 86 NY 18, 25 [1881], see also Mott v. Duncan Petroleum Trans., 51 NY2d 289, 292 [1980]). This rule does not extend such recognition where the foreign marriage is “contrary to the prohibitions of natural law or the express prohibitions of a statute” (Moore v. Hegeman, 92 NY 521, 524 [1883]; see also Thorp v. Thorp, 90 NY 602, 606 [1882]). Same-sex marriage does not fall within either of the two exceptions to the marriage recognition rule.

The failure of the Legislature to enact a bill “affords the most dubious foundation for drawing positive inferences” (see Clark v. Cuomo, 66 NY2d 185, 190-191 [1985], citing United States v. Price, 361 US 304, 310-311 [1960]). Thus, the Legislature’s failure to authorize same-sex couples to enter into marriage in New York or require recognition of validly performed out-of-state same-sex marriages, cannot serve as an expression of public policy for the State. In the absence of an express statutory prohibition (Moore, 92 NY at 524) legislative action or inaction does not qualify as an exception to the marriage recognition rule.

This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.

Feminist Law Professors

In recent days news circulated regarding an incident at Widener University’s school of law. It seems that a faculty member was called to task for repeatedly offering hypotheticals about killing the dean in the context of teaching his criminal law class. The dean happens to be a black woman, Linda Ammons. Some students complained about what they viewed as repeated instances of “violent, racist, sexist” behavior by the white male professor. There were also apparently claims by students that the professor had engaged in a “pattern” of misconduct , ”cursing and coarse behavior, “racist and sexist statements” and “violent, personal scenarios that demean and threaten” the professor’s colleagues at the institution. You can read one newspaper’s account of the matter here.

I have watched in horrid fascination the various deconstructive responses to this story from members of the legal academy:

1. Silence. This is perhaps the most interesting response, especially given that Dean Ammons has been in the academy for many years and is known to many.

2. Dispassionate equanimity. This mostly consisted of calls to wait and see, to not jump to conclusions until all of the facts are in. We are, after all, law professors. We wouldn’t be acting according to our training if we took a position before knowing all of the facts.

3. Precedential analysis and dismissal. A number of scholars, many of them “progressive”, have suggested that if the legal academy were to get up in arms about what the professor under fire said, it wouldn’t sit well with the position of many (but certainly not all) progressive faculty members in the case of Ward Churchill. Some of you will recall Ward Churchill as the academic who in an essay compared World Trade Center victims on 9/11 to “little Eichmanns”. Churchhill was fired by his university but later reinstated.

4. It’s all good because it’s part of the game. Many academics who also teach criminal law have loudly asserted that hypotheticals that feature the death or maiming of people are part of the “morgue humor” that prevails in this area. After all, homicide is for many of us who teach criminal law the crown jewel of the course. There are, by necessity, unpleasant discussions. People die in some cases, sometimes in really horrible ways. If we didn’t laugh, we might cry. Also, an acknowledged part of the “game” of academics is engaging in what one professor called “passive-aggressive” behavior towards administrators. How else can you get back at deans who give you bad offices and worse schedules than with a little good-natured ribbing in hypotheticals?

Moreover, many have asserted in response to this situation that an important part of the game is academic freedom. This mostly consists of assertions that making such statements is well within the rights of a professor. After all, one of the hallmarks of academia is the right to make remarks in the course of doing our work that may be unpopular. Indeed, the whole notion of tenure is closely tied to academic freedom, in recognition of the fact that academics may sometimes do and say things that are not well received or highly valued.

Somehow I have been troubled by all of these responses, so I offer my own deconstruction of the deconstruction.

Silence is perhaps the worst of the responses. Silence basically suggests that this just doesn’t matter enough to comment upon one way or another. In some respects this is akin to another relatively recent situation involving a black woman academic. See my blog post On Being a Black Woman Lawyer (Or, the Sound of Silence).

The dispassionate equanimity approach, while making sense onits face, obscures the broader concerns here and hides itself in a cloak of legalism. No, we shouldn’t make a decision until the facts are in. But given the nature of the claims here, where we are not really dealing with a denial (the professor under siege apparently admits that he made such remarks about the dean), there is plenty of room for righteous indignation. While thedispassionate equanimity approach is no doubt a tribute to legal formalism, it is also a marvelous example of what some people call the “formalist fiction”: that broader normative and policy considerations have no relationship to formal articulations of law.

The problem with the particular brand of precedential analysis offered here is that the analogy to Ward Churchill is, in my view, a very inapt precedent, as it offers little that is substantively useful by way of analogy. A professor who writes an essay ostensibly assailing a group of people that most of us consider innocent victims is very different from a professor who apparently repeatedly makes remarks that invite the captive listeners to violently envision an actual individual known to the listeners. At a minimum, we can generally choose not to read essays. Students in contrast have little power to choose not to listen to their professors or to absent themselves. As I have written elsewhere, the paradigmatic approach of the “legal method” is sometimes flawed, as it is based upon the often unstated assumption that there is broad agreement on the warrants of the paradigm. Now, we usually understand that in undertaking analysis by analogy, there may be few cases that agree “on all fours,” and that part of the exercise is exploring the aptness of the cases cited as precedent. The problem comes in when such analyses take shortcuts whereby no one bothers to parse the analogy, usually based on the assumption that we all agree anyway, when really some of us, sometimes huge sums of some of us, disagree on the aptness of the precedent. This dissonance undermines the value of precedent as a legitimate tool for reaching conclusions, and works a startlingly odd form of legal discursive violence on those in disagreement.

The it’s all good, it’s part of the game approach also has much to recommend it on its face. As someone who worked as an assistant prosecutor in an office where we once passed around photos of a dismembered drug suspect and invited laughter (“there’s one we won’t have to try”), I really understand “morgue humor.” When I taught criminal law I had a hypo where a robber came into the classroom and held a small knife to my back, and I in turn pulled out my high powered assault weapon from the podium (where I repeatedly asserted that I kept it), aimed it at the robber, demanded that he drop his knife and then shot the robber repeatedly until he died. Self-defense or not?

I also get the urge to passive-aggressiveness in hypotheticals. I used to offer a long-running hypo about leaning out of the impossibly small, oddly-positioned window of the office to which administrators had assigned me (jab) and doing target practice by firing across the street to hit the window of a tobacco shop. The “joke”, and the key fact, was that I did this while hundreds of people gathered for a parade in the street below (as was sometimes the case). As I used to explain, I taught so many large classes and served on so many committees that there was little chance that a parade would occur when I was not present at the building (another jab). Is it manslaughter or murder if I kill someone during target practice? It all made for great discussions. But never, ever, did it occur to me to make an actual person, and certainly not an actual person in my workplace, the subject of my hypothetical homicides.

Passive-aggressive humor that explicitly or implicitly assails those who hold power over you is a time-honored part of what some scholars have called “carnivalization”. Carnivalization usually occurs where social subordinates breech the norms of polite discourse and behavior as a means of acting out against oppression. Carnivalization may include mockery of those in power or self-mockery by the oppressed group. I have written about this elsewhere.

The problem with carnivalization is that while carnivalization represents an upsetting of mainstream power and norms, it is possible to deploy carnivalizing norms to silence persistent outsiders, especially when those outsiders are perceived as “upstarts”, that is, when they begin to have some claim to power or status themselves. In my previous writing on this topic I used as a principal example Imus’s calling members of the championship Rutgers women’s basketball team “nappy-headed ho’s”. I also offered the instance of upper middle class white college students throwing “pimp and ‘ho” parties right in the midst of their dismayed black classmates. This is ersatz carnival, a cynical inversion of carnival norms. Even in today’s post-racial, post-sexist United States, race, class and gender still frame relations of power. Even when the president is a black man, or the dean is a black woman, there is no disruption of mainstream power norms when those who have traditionally wielded power continue to deploy it in verbal assaults—it is racist, sexist, BAU: business as usual.

-Lolita Buckner Inniss

cross-post from Ain’t I a Feminist Legal Scholar, Too?

Feminist Law Professors