- “It strikes me that the best way to understand the distinctive characteristics of US voting patterns is to to treat “Southern White” as an ethnicity.”
- In Defense of Disney
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- John Corvino’s Definitive Rebuttal Of The “If We Accept Gays, Don’t We Have To Accept Polygamy, Incest and Bestiality” Argument
- Why Scalia’s ‘Racial Entitlement’ Quote Is Even Scarier Than You Think | ThinkProgress
- Frustrations of an Asian American Whedonite
- What Paul Ryan’s Budget Means for Women | The Nation
- Breakfast Epiphanies: Encounters With Notorious Homophobes – Kevin Mims (on personal encounters with both Maggie Gallagher and Orson Scott Card).
- “Uncle Sam had a much older and classier sister named Columbia, the feminine historic personification of the United States of America, who has since the 1920s largely fallen out of view.”
- Study: Women’s wages are falling even further behind men’s
- Could the eagles have flown Frodo into Mordor?
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- Does Free Speech Protect the Right to Panhandle? – Reason.com I disagree with the writer about banners, though.
- The Tolkien Family Refuses to Let An Unauthorized Biography Pass. Another example of how copyright laws are used to censor material that should be publishable.
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- Telling the Truth About Education— American schools aren’t in terminal decline
- Study: Gas taxes are six times as effective as stricter fuel-economy standards
- Sneezing, in slow motion:
When I read about the wage gap, I want to support methods to change it.
When I read that a professional policy organization (who should know how to run a study, dammit) is putting out bad numbers, it makes me bang my head on the desk.
To anyone who does work on study design, that convenient parenthetical basically implies that the numbers are bullshit. Seriously: how can anyone who knows about the gender split in social tasks or childcare, or anything else, fail to design a study that doesn’t ignore reality? I’d expect this from a high school student, not a GD policy center.
How are folks supposed to support paycheck fairness if they’re being lied to?
That’s how wage gap numbers are typically given in the US, and have been for decades. This is because that’s how the government measures it, and everyone’s getting their source numbers from the government. Anyone who has even a slight familiarity with wage gap figures is already aware of this.
No one is lying. And the claim that because they included an honest disclaimer clarifying what the wage gap statistic is, presumably for the benefit of readers who don’t already know, they are “lying,” is bombastic and unreasonable.
No, it’s not.
Look: the claim is “equal work equal pay.” Right?
That means that you have to measure equal work, and compare pay.
The government does whatever it wants, because it’s more focused on other metrics (like overall employment an GDP.) IOW, it’s obvious that the government isn’t incredibly concerned about equal pay for equal work. So it does the “cheap” study and not the “detailed, solve-this-problem” study. This is a policy center which IS concerned about equal pay, equal work. It doesn’t have that excuse.
Moreover, they’re communicating with the public. The concept that normal people (who don’t usually know statistics) would be entirely filled-in by the parenthetical is, frankly, ridiculous.
No, that’s not “the” claim. There is no such thing as “the” claim, if you mean a single claim about the wage gap that absolutely all communications about the wage gap must be in service to.
“Equal work equal pay” is a good thing, obviously, but it’s not the only thing. “Equal access to good-paying jobs” is another good thing, for instance, which is not covered by “equal work equal pay.” There are important questions about justice, caregiving and wages — how should we deal with the fact that taking time off from careers to raise children is almost entirely done by women, and has lifetime wage effects? that “equal work equal pay” does not cover.
There are legitimate reasons that the movement of the wage gap as a whole is of legitimate interest.
Finally, I think the Institute for Women’s Policy Research – or, for that matter, the writers of wonkblog – can rightly assume that the majority of its readers are more highly informed about these issues than the average person. There’s a lot of value in “wage gap 101” explanations, but there’s also value in discussions that assume that readers are already familiar with the basics. You seem to be suggesting that ALL discussions of wage gap stats should be aimed at the novice, and I don’t agree.
Recently the Inspector General of the DoJ did an investigation on how the DoJ is enforcing the Voter Civil Rights Act under Attorney General Holder and President Obama’s administration. There are sections from the IG’s report that would seem to buttress Justice Scalia’s proposition. Citing from the report.
Page 11:
Remember that the investigation that this report was produced to describe was prompted members of the House of Representatives wishing to have an accounting of the refusal of the DoJ to investigate actions by self-described Black Panthers at voting booths that allegedly targeted white voters. That would seem to fall within the definition above of a practice. However, on page 89 of the report we see:
and
Note that Mr. Perez did not hold that the white people involved had not been subject to racial discrimination. He held that the law should not be enforced in such a fashion so as to protect white people from discrimination. In other words, while the law appears to have been written to protect racial groups that were in a minority in a particular jurisdiction, the DoJ is interpreting it as only applying to groups that are in a minority nationwide.
It’s not quite clear to me what Justice Scalia meant by the term “racial entitlement”. However, it seems to me that you could well consider the DoJ’s attitude towards the Voter Civil Rights Act as that it is a racial entitlement in that only particular races are entitled to its protections.
You do not have to look far into Supreme Court rulings to find that it will strike down laws that are enforced on a racially discriminatory basis. The various States’ death penalty laws come to mind. And when Arizona passed it’s immigration reform act many people – including people here on this blog – called for it to be struck down on the possibility that it might be enforced on a racially discriminatory basis.
No time to parse out the basic issue, but as far as your comment on the consumers of the Women’s Policy Network’s study – sure, you’re right about those people who read it directly. The problem is that such studies are picked up, summarized (proably without the disclaimer) and publicized by the MSM as proof of a problem to people who ARE novices, and who are unlikely to ask “Hm. I wonder what the underlying assumptions and conditions of that study are.”
Actually, in this case, the disclaimer wasn’t from the IWPR report – it was added by the blogger I linked to.
Good questions. For those women who choose the path of childbirth and those people who choose the path of taking on the primary child rearing role in their family (I phrase it that way because I know two stay at home dads) – and these days these are choices, not inescapable destiny – how should we deal with the lifetime wage effects? The questions have to include “Should we deal with it at all? Is this actually a problem?” and “Is this an issue that government has a proper role in?”
I don’t think the report and the media coverage are dishonest, G&W. There are multiple questions in play when it comes to the wage gap. Empirically, women as a group make less than men as a group (as this study re-confirms for the zillionth time) for a complex of reasons such as life choices, family structures, willingness of employers to hire for some jobs, willingness of women to work some jobs, differential preferences in job flexibility vs. wage maximization, social prejudice for or against men or women taking certain jobs, etc. etc. etc.
When years of education, hours worked, parenting status, and career field/industry are corrected for, women and men make about the same amount of money.
Where dishonesty comes into play is when someone is talking about issues relating to the corrected-for-many-variables comparison, but using the total collective outcome comparison as a source for talking points or rhetorical positioning. See the Ledbetter ‘Equal Pay’ act for an outstanding example of the latter; there wasn’t even an equal pay claim involved in the issues around Ms. Ledbetter not getting her day in court, it was a statute of limitations question, on which she lost. The ‘Equal Pay’ act was about extending the statute of limitations (to an absurd degree) for one class of plaintiff; was there the slightest discussion focused around, what should the statute of limitations be, what are the interests and rights to be balanced, etc? No, it was all ’85 cents on the dollar’ and other emotionally resonant but factually unconnected rhetorical flourishes.
Hey, when I was a kid in school we were taught various all-American songs. One of which was “Columbia, the Gem of the Ocean”. And being a long-term resident of Chicago, one of the most notable events in Chicago’s history (symbolized by one of the 4 stars on Chicago’s flag) was the Columbian Exposition of 1893. There are still buildings in public use from that.
The statistic is a median (something only quoted in the cut and pasted graph) so it doesn’t confirm that, and it is very misleading for them to suggest it represents women in general.
Although the Wonkblog post called it a “study” (and I quoted that when I linked to it), this really isn’t a “study.” It’s a report on what the government statistics for 2012 (released two months ago) show when fit into the context of past years.
Another Alex, a medium is a standard way of measuring a populations income. There’s nothing dishonest about it.
Robert, is it your view that six months was the appropriate “statute of limitations” for pay discrimination claims? If an employer gets away with it for six months, then they’re Big Barda’s husband?
Lily Ledbedder’s case was a straight-up equal pay case – she was being paid less for the same work. The question of if employees have any effective way of seeking justice from employers who are illegally discriminating against them based on their sex, is a question that is not only relevant but essential to “equal pay.”
A median is the most reliable way of measuring population’s incomes, since the mean is incredibly skewed by the high-end earners and the mode is skewed by the low-end earners.
This is especially relevant because Ms. Ledbetter wasn’t even aware of the discrimination until the statute of limitations had passed.
—Myca
Re: “Could the eagles have flown Frodo into Mordor,” Oglaf has a take on it that includes an objection the author of the linked article did not address.
—Myca
“Robert, is it your view that six months was the appropriate “statute of limitations” for pay discrimination claims?”
Six months does not strike me as an unreasonably short period.
“Lily Ledbedder’s [sic] case was a straight-up equal pay case – she was being paid less for the same work”
This is not in fact true. Her case was relatively complex, and her theory of how she was discriminated against was that in 1979, 1980, and 1981, when she started working at the Goodyear plant, she received a series of bad performance evaluations, based (in her view) on malicious discrimination from the supervisor who wrote those evaluations. After 1981 her evaluations improved and her salary increased year by year, but those three years of bad evaluations at the beginning were a weight through the rest of her career. (Naturally, if you get small or no raises for three years, while your counterparts get normal raises in those years, then all else being equal, at the end of your respective careers your salary is going to be lower, perhaps significantly so.)
Ms. Ledbetter retired in 1998, and promptly filed suit. By the time of her trial, the supervisor in question was dead, and the probability that any living employees would have much of probative value to say about events two decades past seems quite low.
So: do you think that 20 years is the appropriate statute of limitations for equal pay cases?
“The question of if employees have any effective way of seeking justice from employers who are illegally discriminating against them based on their sex, is a question that is not only relevant but essential to “equal pay.””
Employees who are being discriminated against have at least two avenues of redress; suing under Title VII or suing under the Equal Pay Act.
Employees who were discriminated against 20 years in the past, on the other hand, are probably out of luck. This is not because they weren’t discriminated against or because women ought to stay home and make biscuits; it’s because it is incredibly difficult to litigate claims that far in the past.
The Supreme Court, by the way, did not completely close the door on Ledbetter-alikes. They held, contra Myca, that she knew of the discrimination long before her retirement but chose not to sue for any number of possible reasons until she had retired. They specifically allowed that their decision in Ledbetter would NOT foreclose action brought by a person in a similar situation, who could show that they reasonably did not know of the discrimination until recently, and that they filed suit within 180 days of their discovery.
The last time we argued on this one, you challenged me to name a case that justified the world-will-end rhetoric some conservatives use on this issue, and I responded: the Lilly Ledbetter case. She wanted to sue for things that happened two decades ago, at the hands of a dead man. Do you think that’s something that should be automatically allowed by the courts?
Excuse me, I misspoke there – the Court didn’t hold that she knew about the discrimination. (I read the decision years ago, but relied on Wikipedia for this comment – then something tickled my brain about what I’d said and I went back and reread it again.)
Rather, it’s obvious that she knew.
It is her own allegation that she declined the sexual overtures of her supervisor when she first began working at Goodyear, and that in retaliation he gave her bad performance evaluations, resulting in no raises. Significantly later, but still before the statute of limitations for Title VII, she alleges that same supervisor sabotaged a pay review and again cost her a deserved raise.
It is impossible for someone to know that their supervisor maliciously sabotaged performance evaluation in retaliation for an event that the someone was a part of, and then claim that they didn’t know this had any effect on their pay for 20 years. (Indeed, in looking over the decision again, Ms. Ledbetter does not make the claim that she didn’t know, or anything like that.)
So she knew, and as the Court held in its original opinion, she could have and should have filed suit back then. I can think of a lot of reasons she wouldn’t, and most of them are sympathy-making; indeed, I think her story (if true) is a sad one, and I think it likely that it is true. But we don’t throw out the statute of limitations because of one hard case, unless we care more about scoring a couple of cheap political points than we do about taking effective steps to combat discrimination.
Dense but good law review article on why Ledbetter was correctly decided and why the Ledbetter Act is a dreadful misfire: https://www.law.nyu.edu/ecm_dlv3/groups/public/@nyu_law_website__journals__law_review/documents/documents/ecm_pro_064070.pdf
Actually, you had said that the LL Fair Pay Act:
I asked, “Since this is such a certainty, perhaps you can link to a couple of actual, documented cases such as you describe?”
Your only response was to cite the example of Ledbetter’s case. This is wrong for two reasons, the first being the obvious logical fallacy of blaming Ledbetter’s lawsuit on a law that didn’t exist until after the lawsuit was settled. But that’s just a technical issue. (Anyway, the Ledbetter Fair Pay Act just restored the law to what it had been before five Conservative justices used Ledbetter vs Goodyear to rewrite legislation from the bench, so you would have had a fair point there, in a way.) The more serious problem is that you’ve continually, and radically, misstated the facts of the Ledbetter case.
First of all, you make it sound like there was a single bad actor at Goodyear who discriminated against Ledbetter “in 1979, 1980, and 1981” and then disappeared, and after that the one and only issue was the continuance of that first-three-years- discrimination, which Ledbetter never reported to anyone until she filed suit after she retired.
You’re right that she was hired by Goodyear in 1979, but virtually nothing else you say is accurate.
Ledbetter was indeed sexually harassed by her supervisor Mike Maudsley in the early 1980s (if we take her word for it, which I do). He offered her good performance evaluations in return for sex; when she complained to the personnel manager, Jerry Jones, Jones told her that Goodyear didn’t need “troublemakers,” by which he meant women.
Ledbetter filed a discrimination charge with the EEOC, but it was settled by Goodyear transferring Ledbetter into another section where, in theory, she would no longer be supervised by Maudsley and Jones. Thank you for that slap on the wrist, Reagan administration appointees. (There were other sexist incidents, too, btw.)
But then, from 1990 to 1997, Maudsley was moved to the center that Ledbetter had been moved to, and continued asking her out (and being refused). He also falsified her performance audits and wrote her up for violations she hadn’t committed. This happened multiple times, the last in 1997. Jones, meanwhile, was put in place as Ledbetter’s direct supervisor by 1996. The plant manager in the late 90s, Richard O’Dell, told Ledbetter that Goodyear “did not need women” because women “caused problems.”
It was Maudsley’s 1990s audits of Ledbetter’s work that were at the center of her lawsuit. Somehow, Goodyear managed to lose or destroy those audits (even though they were supposed to be preserved), which is very convenient for Goodyear. It is (if you assume Ledbetter is lying, which I don’t) unfortunate for Goodyear that Maudsley passed away – but that’s not Ledbetter’s fault, nor is it Ledbetter’s fault that Goodyear managed to lose its own records.
Ledbetter started the paperwork with the EEOC in March of 1998, filed a formal charge in July, retired in November 1998, and filed suit in November 1999.
So according to you, a case in which a whole bunch of male supervisors either endorsed sexism or were directly sexist, and in which sexist performance reviews by a bitter rejected man were the reason for denying raises right up until a year before Ledbetter filed with the EEOC, is a case of a poor innocent corporation being “sued for acts long since disavowed, committed by people long since dead, making defense against spurious claims…”
In fact, Goodyear maintained a culture of pervasive sexism in the plant that Ledbetter worked in for two decades, a culture that was maintained by multiple men in supervisory positions. During that period, Ledbetter was not the only female employee who experienced sexism. Goodyear had every opportunity to take responsibility and change the sexist culture at its plant, and chose not to. It is entirely appropriate that Goodyear be held responsible for its corporate behavior.
As for “when did she know,” some right-wingers – not so much you, to your credit – have made a big deal of that Ledbetter has variously given either 1994 or 1998 as the date she found out about the pay discrepancy. There are a lot of normal human explanations for this (maybe she misspoke, maybe she misremembered, maybe she “knew” in the sense of being pretty sure in 1994, but didn’t “knew” in the sense of “I’m now so certain I’m going to call a lawyer” until 1998, maybe she panicked and told a lie but it didn’t end up being germane to the case), none of which are relevant to the issue we’re discussing.
No, it really wasn’t.
It was about whether individual acts resulting from a discriminatory decision themselves count as acts of discrimination or whether only the original decision counts.
Ms. Ledbetter and her legal team reasoned (based on previous court decisions regarding racial discrimination) that each paycheck was an act of discrimination, and that her most recent paycheck(s) were within the statutory limit.
The court held that only the original decisions resulting in discrimination could be counted for purposes of timing the statute of limitations.
This is why Justice Ginsburg expressed concern about ‘hidden’ discrimination, in which the victim doesn’t know she’s being discriminated against (since businesses often go to pains to conceal employee pay from other employees) until after the statute of limitations has passed. The court’s interpretation in this case would seem to indicate that a victim of such discrimination is out of luck.
That’s unfair, so the law got changed.
One solution, it’s true, would have been to simply change the duration of the statute of limitations … make it 25 years, say. The bill does not do that.
Instead, the bill counts ongoing discriminatory action as ongoing discrimination (sounds pretty reasonable), and starts the statute of limitations timer from the most recent discriminatory action, rather from the original decision to discriminate.
—Myca
“(Anyway, the Ledbetter Fair Pay Act just restored the law to what it had been before five Conservative justices used Ledbetter vs Goodyear to rewrite legislation from the bench, so you would have had a fair point there, in a way.)”
I don’t think this is accurate. The text of Title VII is clear; 180 days from the discriminatory event. In the majority opinion, Alito makes references to a line of cases laying out what such events are, what Congressional intent was in limiting the time, etc.
You may be referring to the Bazemore decision, in which the Court held that some black workers who were paid less than white co-workers during a period prior to the Civil Rights Act were entitled to sue for relief under Title VII, even though the discriminatory pay structure was set up in the distant past, and that the discriminatory wrong reset the clock every time the black workers got a paycheck (this was the main theory Ledbetter relied on in her paycheck-accrual theory).
Alito does a good job, I think, of explaining why Bazemore was decided as it was and why it didn’t apply to Ledbetter (or many other cases). Basically it boiled down to intent; the management knew that the old pay system had been racially discriminatory, they knew that the continuation of the differential pay scales in the post-CRA era was illegal, but they let it continue. Knowing the pay is unjust, writing out the paychecks is indeed a continued act of discrimination. But in Bazemore, the management knew that the pay system had been discriminatory; it was written down in black and white, literally. Whereas Goodyear didn’t have a memo from 1979 saying “be sure to pay chicks 20% less”.
Bazemore, in essence, means that if you inherit or choose to continue, a pay policy that violates the 1964 act, and do not correct the policy when it comes to your attention, you’re on the hook for that discriminatory policy even if people don’t sue you right away. If there was still such a standing policy at Goodyear, 15 years after the passage of the Act, nobody is alleging it that I can see in the record. Without that fact pattern as part of a complaint, the each-paycheck-a-new-crime holding in Bazemore doesn’t apply.
(If that is what you’re thinking of, it seems odd that you’d refer to the Court finding a precedent to be inapplicable as ‘rewriting legislation from the bench’. The legislation doesn’t say anything at all about paycheck-accrual or other theories; the legislation says 180 days, full stop.)
As for the cases you request: we’ve got a new incentive now that people can wait a long time to file, because the EEOC clock resets every pay cycle. That decision didn’t travel backwards in time; people didn’t start holding onto their cases in 1980 so that they could screw the system in 2008. For decades, you’ve had to jump on pay discrimination cases if you wanted them heard. And it takes years for these things to grind through the courts; it took Ledbetter’s case 10 years. Call me in 2018. That said, here’s a review on some of the cases that have been filed:
http://www.rkmc.com/~/media/PDFs/Determining%20the%20Reach%20of%20the%20Lilly%20Ledbetter%20Fair%20Pay%20Act.pdf
It’s long and it’s late but my quick takeaway is that some of my gloom-and-doom may be unwarranted – because a lot of courts are construing the Ledbetter Act extremely narrowly, and blowing up the cases that have been coming in.
You provide a lot of additional information on the case, and I thank you for the presentation of that information, but looking at what you write, it neither falsifies my presentation of the material issues or greatly strengthens Ledbetter’s claim. It DOES weaken the rhetorical point I made about things that happened long ago; some of the things that happened were not so long ago, and I sit corrected there. I didn’t know about those because the court decision doesn’t talk about them, and the court decision didn’t talk about them because they weren’t legally material at the Supreme Court level.
There were only three things that happened within the law’s window: the issuance of paychecks, and pay reviews in 1997 and 1998. The Court of Appeals found that the evidence was insufficient to prove discrimination in the latter two cases, and Ledbetter’s argument to the Supreme Court didn’t actually rely on those decisions being discriminatory in and of themselves; rather, she alleged that the earlier false statements about her work carried forward into those reviews. The time of the wrongdoing, however, was before the window created by the statute of limitations.
My ears perked up when you said she had filed charges in the 1980s but that they were settled; if that were true, then her whole case is called into question, because you don’t get multiple bites at the apple. She didn’t file charges; she filed a complaint with the EEOC and declined to sue. I suppose she might have decided to take the offer by Goodyear to move away from the offending individual because she sensed that the EEOC wasn’t going to be much help, but I’m not sure where the weak-spined Reagan appointees come into her deciding not to sue.
I wasn’t aware of any right-wing folk making a big deal about her making statements until you mentioned it. Some Googling around and, oof. You’re an honest guy so you won’t regret it, but you should regret it. There isn’t any question; she knew. She knew the magnitude and she knew who was making more. We know this because it’s in her deposition, starting at page 231 in the Supreme Court transcript. (http://www.scotusblog.com/movabletype/archives/LedbetterJoinAppendix.pdf)
“…I asked for another quick meeting with him to – I wanted to go back over some questions I had, what I could do to get my raise. I needed to earn an increase in pay. And what I could do, I wanted to get in line with where my peers were, because I told him at that time that I knew definitely that they were all making a thousand at least more per month than I was and that I would like to get in line. Because I was still below the midpoint. I had never got the money up to reach the midpoint. And I felt like that I should be up in line with my peers, and I needed to know what I needed to do in order to achieve that.
Q. And that conversation happened when?
A. It was the next day after the initial evaluation. Because Mike didn’t have time to stay and talk, and I didn’t get to ask my questions.
Q. Okay, Well, are we talking about in 1995?
A. I believe that is correct.
Q. So when you had this conversation with Mike
Tucker about the 1995 evaluation, you told him then that you
wanted to try to get your pay more in line with your peers?
A. That’s correct.
Q. How did you know what your peers were earning?
A. Different people that I worked for along the way had always told me that my pay was extremely low.
Q. And when you say people you worked for, you are talking abut your managers?
A. Yes. Kim Whitman had told me that.
Q. Okay. And did he tell you it was low in comparison to your peers?
A. Yes.
Q. And he was your manager in 1992?
A. Yes, sir.
Q. So you knew in 1992 that you were being paid less than your peers?
A. Yes, sir.
Q. And you knew that throughout 1993, 1994 and 1995?
A. I didn’t know how much at that time.
Q. Yes, ma’am.
A. I didn’t learn that until – how much difference until probably about 1994 and ’95. ”
Dude. Not only is this relevant and germane, it’s devastating. OK, sure, there’s some wiggle room as to the exact timing of her knowledge, and the exactitude of it. But there is absolutely no confusion in what she’s saying; her various managers for years told her she was getting less, and she believed it. There is a legitimate question about when she knew the magnitude of the difference, but that’s not super important – and is long before 1998 in any event.
I don’t think she panicked or told a lie or got confused, because there’s absolutely none of that in her deposition testimony. She remembered the name of the specific manager and the details of the two meetings she had with him to talk about pay. Could she be off by a year? Sure. But the earliest possible date, according her own unimpeached testimony, is 1992 and the latest possible date is 1995.
Other than a desire to strengthen YOUR rhetorical position, which is a lot solider when talking about someone fighting to rectify pay discrimination that had been hidden from her, than it is talking about someone who knew about the discrimination but waited between three and six years to file suit, is there any reason to impeach Ms. Ledbetter’s testimony? Is there any reason to believe that she was wrong in her specific recollection, framed around the timing of a specific and documented meeting, about what different people were ‘always’ telling her?
“I’m not convinced enough that it’s true to hire a lawyer” doesn’t play as a reason to not file suit. She was convinced enough to seek out meetings with her supervisor to address the issue. Unless she’s a total psychopath who just plain makes shit up when questioned – and I see absolutely no indication of that in any of her testimony, which is that of a decent and hardworking person who did her best in a hard environment – this is the honest report of a person who was perfectly aware that discrimination was occurring, didn’t like it, did what she could to fix or mitigate it on her own, and eventually went to law to seek recompense. She’s not a bad person for not understanding the time constraints on that kind of suit…but the devastation her clear statements about what she knew does to her case isn’t a sufficient reason in my book to start doubting her word.
Wow, Robert, you’re going to throw out your back with all that goalpost moving.
What goalposts have I moved? I predicted some cases that would be very difficult to fairly resolve, because of the length of time that will have passed from the discriminatory acts; nothing you wrote about even went to that point, you just asked for cites of cases that take ten years to finalize, five years after the law allowing those cases to proceed.
I backed off some specific rhetoric-for-effect about Ms. Ledbetter’s specific case, based on your more comprehensive picture of the narrative background of that case. Would you rather I doubled down and went nit-pickery on the legally largely unimportant narrative, or just admit that I was not in full possession of the narrative background and yield the point?
My back DOES hurt, but it’s from the strain of carrying around my enormous package.
Myca:
“This is why Justice Ginsburg expressed concern about ‘hidden’ discrimination, in which the victim doesn’t know she’s being discriminated against (since businesses often go to pains to conceal employee pay from other employees) until after the statute of limitations has passed. The court’s interpretation in this case would seem to indicate that a victim of such discrimination is out of luck.”
This part of her dissent is perfectly cogent, albeit immaterial to Ledbetter’s case, since it’s apparent that she knew about the discrimination, and she didn’t make a claim of ignorance or that Goodyear was hiding the discrimination.
And actually the majority didn’t say that the victim of hidden discrimination would be out of luck. They said Ms. Ledbetter was out of luck. They said that they weren’t going to rule on the merits of the ‘discovery’ theory, whereby a plaintiff might say ‘hey, I just found out about this today’, *because* Ms. Ledbetter didn’t present such a claim and so it was outside the scope of what they’d granted cert for:
“We have previously declined to address whether Title VII suits are amenable to a discovery rule. National Railroad Passenger Corporation v. Morgan, 536 U. S. 101 , n. 7 (2002). Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.”
Fascinating and depressing NYT debate on whether colleges should be adjudicating claims of rape, or whether they are best left to the courts.
http://www.nytimes.com/roomfordebate/2013/03/12/why-should-colleges-judge-rape-accusations
Just for fun, play a game:
1) How many quotes can you find, made by any commentator in the thread, which address the rights of the defendant in any context, or acknowledge the severe limitation of those rights in the college context?
2) How many quotes can you find, made by any commentator in the thread, which acknowledge that defendants should sometimes be found “not guilty?”
Have fun with #1 and especially #2. I’m still at a loss about how there can be an entire thread these days which basically focuses on “how do we best punish these guilty motherfuckers” without at least ONE person asking “um, how it it that you’re sure that they’re all guilty?”
I haven’t read through the article yet, but it’s always seemed odd to me that colleges could adjudicate claims of rape to begin with. I mean, rape is a crime. That’s what we have criminal courts for. Like, if two ten-year-olds get into a fight on a school playground, then the school can probably deal with it without getting the police or courts involved, but if a college student — an adult — is accused of rape, why should the fact that he’s a student have any bearing on anything?
Folks claim that a lack of prompt action is discriminatory to victims under other civil rights legislation.
IOW, if you accuse someone of rape and the college doesn’t promptly investigate and/or punish them, and if the college fails to accommodate you (for example, by banning the defendant from being around you) as a result of your accusation, then you are being discriminated against.
If that sounds like bullshit, you’re right.
The entry cost of criminal justice is a feature, not a bug. The concept that you have to be willing to (for example) testify under oath in order to get someone really badly punished is a good thing. The concept that that person will get judges who are supposed to be consistent, and not ones which vary widely between colleges is a good thing. The fact that some people will be found not guilty, and that the system won’t punish them until that determination is made is a good thing.
In the “you can’t make this up” department, some boards–I won’t call them adjudicatory boards because that is an insult to judges–have reached really problematic results. Like, say, finding that raising a defense to rape was evidence of guilt, because obviously a guilty defendant would say it didn’t happen.
On the eagles: I haven’t seen anyone raise the decisive objection. We have no reason to think Frodo could have thrown the Ring into the fire of Mount Doom, whether he got there by eagles or not.
Isildur was supposed to have been a great man, of elven blood, a King, able to withstand the horror of Sauron’s presence as few of any race could. He seems to have held the Ring for about half a second before deciding to keep it for himself. Gandalf the angel/demigod and Galadriel the ancient elf-queen who defied the Powers of the World say that neither of them could give up the Ring if they took it for any length of time. Gollum was originally a hobbit or similar critter, with some resistance to the Ring’s wraithification – he didn’t even touch the precious before killing his relative for it. We do not see one example suggesting that anyone could have cast the Ring into the fires of Mount Doom voluntarily.
‘So what did Gandalf hope to accomplish by walking?’ I hear you cry. Unless he had orders from Mandos himself (who heard from Tolkien how it would turn out), the wizard must have planned to push Frodo in. And he knew the eagles would never go for that.
This does not address the more important objection of what Sauron could possibly have been thinking.
Gandalf knew that nobody could ever make the saving throw against Ring domination; even if you roll a string of 20s the GM has still foreordained it as a plot point. Nobody can resist.
BUT, the surface of Mt. Doom’s inner sanctum is slippery and treacherous. You have to make a dex check to avoid falling in. His thought was that Frodo would be killed along the way, and stolid Sam, with the lowest dexterity score in the Shire, would make the attempt. (That’s why he made sure that this seemingly worthless hobbit was sent along on the most important quest in history.) Even with a +2 bonus for being cautious, he figured Sam had about a 1 in 3 chance of lava-planting, and taking the Ring with him – the best odds, by far, of any plan he had attempted to wargame out with Elrond.
Gollum’s role, which Gandalf wanted him left alive for, was to be the eventual assassin of Frodo. Gandalf’s working assumption was that Gollum would kill Frodo, then Sam would kill Gollum, and then splish-splash-sizzle-pop, it’s the Fourth Age.
It didn’t work out exactly as he planned it, but it did work out. Highest intelligence in the party: it works.
From number 4:
gay marriage will lead to polygamy, polyamory and ultimately to the replacement of marriage itself by an infinitely flexible partnership system.
One of those cases I wish were as likely to occur as conservatives fear it is.
Here’s a web comic I enjoy: http://www.lackadaisycats.com . Anthropomorphic cats set in St. Louis during prohibition. The plot is quite detailed and there’s a lot of character development, it’s not a 4-panel a day thing. I love the art, too.
What a bunch of losers we are — writing blog post after blog post, and for what?
How about for The Washington Post, and for a salary?
I agree with Ron. Lackadaisycats is awesome. The art is superb, and the writing is good.
The price of those: the speed. But it’s worth the wait.
Grace
This is possibly the most heartwarming article I’ve ever read: ‘Bikers Against Child Abuse make abuse victims feel safe’
@dragonsnap: Sharing!
dragon_snap: that is remarkable! Thanks for linking to it.
That’s just a fantastic article. Thanks for sharing it. It’s particularly appropriate since…
On Friday, one of my coworkers was arrested on a few child porn charges. Do I work with the worst group of people around or are the various awfulnesses at work more common than I know?
More common than you know. Last child porn arrest by my department, that I’m aware of, was within the last few weeks.
Welcome to a small taste of what being a cop does to your opinion of humanity. I could retire if I had a dollar for every time someone I’ve just met confidently and cheerfully says, “Well, pretty quiet in our area, though, huh?”. When I give a summary of the DWIs, burglaries, domestics, credit card frauds, and whatnot which I’ve dealt with in the last few days, they slide on a look of shocked surprise. They don’t want to believe it. And they don’t; pretty soon, they jettison the look of shocked surprise and try the confident smile thing again, often by making another assertion about my work, my fellow officers, or my department which is factually untrue. Once we’re into the third iteration, this can start to get socially awkward for them, though usually by that time I’m starting to enjoy it and the host is changing the subject.
Briefly, we had a local paper which printed a summary police blotter, and I lost count of the number of times people came up to me and said, “Wow, you guys are BUSY!” Apparently a bowdlerized summary of our log, provided by us to a newspaper, printed in that newspaper, was better evidence than me just saying so.
Obviously there are reasons we don’t trumpet all the details of case we investigate to the public at large, but if we did, the public at large would probably feel less safe than they do already.
So, yeah. More common than you know. Lock your doors when you’re not using them, and keep your computers secure.
Grace
There you go. My brother has been a Harley mechanic for years. Yeah, a lot of them wear leather and look and talk rough. And they tend to be distrustful of authority. But by and large they’re a bunch of regular folk who are not looking for trouble and are the salt of the Earth if you need anything.
Co-worker (or, most likely, former co-worker) has 10 counts of child porn. I’d like to believe it’s a false accusation but I get the impression that the police gather actual evidence before making an arrest. Oh, well, I guess we need a dose of disillusionment every now and again.
I dunno… Sometimes the police have actual evidence. And sometimes they concoct evidence. I’d withhold judgement until there’s a trial.
closetpuritan, Richard, Jake Squid and Ron, I’m glad you enjoyed the article as much as I did :)
Grace, I’m sorry you have to deal with so many people ignorant (willfully or otherwise) of what your job entails and how ‘in demand’ you are.
Jake, I’m very sorry about your workplace situation :(
And, last but not least, epic congratulations to Mandolin, whose novella “The Lady Who Plucked Red Flowers Beneath the Queen’s Window” has been nominated for a Seiun award (the Japanese equivalent of a Hugo) in the Best Foreign Short Fiction category!
Jake, I’d be pretty sure that the cops found child porn on your co-worker’s PC. OTOH, I know a little about networks and security and such, so I’d be willing to suspend judgement until they have their day in court. There’s other ways for things to get on your PC that for you to have put them on there yourself.
Noted right-wing blowhard demeans female public official by commenting on her attractiveness
Next thing you know some intern is going to come up with a stained dress ….
I’m waiting for the national publicity on MSNBC, CNN, NBCBSABC and condemnation from the liberal blogosphere, splashy stories in the newspapers, etc.
Ron, I agree with you that Obama’s remark was inappropriate and sexist (although far less newsworthy than “legitimate rape” comments). And I’ve seen both mainstream media and lefty people talking about the sexism of his comment (1 2 3 4 5 6 7 8 9).
But you seem to be implying partisan bias. Can you give an example of ” national publicity on MSNBC, CNN, NBCBSABC and condemnation from the liberal blogosphere” following President Bush complimenting a woman as smart, accomplished and pretty? Also, did you forget that after Obama called a female reporter “Sweetie,” there was so much criticism that he was forced to publicly apologize?
I read about Obama’s remark on the front page of the online version of the SF Chronicle.
Bush giving Angela Merkel an unwanted backrub, now that story was buried…
Is the End In Sight for America’s Biofuel Boondoggle?
One hopes so. Apparently there are bills wending their way though Congress that can stop this nonsense.
Links backing up a lot of this at the original article, which see. How about we use food to make food cheaper instead of making operating automobiles cost more.
Ron, that’s great news about the absurdity that is corn ethanol subsidies!
Some more recent news items that may be of interest to readers here:
+ Judge Strikes Down Age Limits on Morning-After Pill (New York Times link)
+ The Uruguay Congress has passed a bill (by a two-thirds majority!) that legalizes same sex marriage. (BBC link) It also makes quite a few other interesting changes in marriage law, as is discussed in more detail here. (Autostraddle link)
+ The French Senate has also approved same sex marriage! This great Autostraddle article about it includes reactions and reflections from French readers.
Today, in my birth state of the Commonwealth of Massachusetts it is Patriots’ Day. The Boston Marathon and the only morning start on the Major League Baseball schedule are notable sporting events being held. But what are we celebrating?
The events of April 19th, 1775, the “shot heard ’round the world”, when the American colonists first mounted armed resistance against the world’s then-preeminent imperial power. And why did they mount that resistance? What was the defining event that caused them to finally start the Revolutionary War? Was it excessive taxes? Was it suppression of the freedom of speech? Was it the establishment of a State religion? Was it the Boston Massacre, when people were shot down by British troops in the streets of Boston for assembling to petition the government for redress of their grievances? Nope. It was because the government was marching to Concord, Massachusetts (along a road I have walked on hundreds if not thousands of times) to seize the colonists’ guns, shot and powder at the armory there – in other words, to disarm them.
Yup – to defend the militia’s stockpiles of weapons.
Why you think that matters at all to today’s debates – in which the GOP is defending your right to privately own an unregistered weapon with a high-capacity magazine – is a puzzle.
The good news for you, Ron, is that your side has clearly won the day in Congress.
The GOP will also defend your right to privately own an unregistered photocopier with a high-capacity auto-collater, too. Though I don’t see why you NEED such an overpowered tool of mass distribution. I think the 1st amendment should only protect parchment and ink pens, and maybe hand-powered printing presses if you’re a loyal citizen. ;)
Not yet, Amp. The Manchin-Toomey amendment isn’t nearly as protective of civil rights as it’s claimed, at least according to a poster at the Vokokh Conspiracy.
But on the bright side, Toomey-Manchin (written by two politicians with positive NRA ratings) does virtually nothing to prevent anyone from buying firearms without a background check. So if you want criminals and spouse abusers to be able to buy guns without impediment, this is the legislation for you!
Fuck. I finish writing a post that takes me back to Boston, and I read about the Boston Marathon bombings. I wonder how many fewer people will run next year.
Re: the Marathon. My daughter paced a friend of hers from mile 8 to mile 23 (just after Heartbreak Hill) and then peeled off to go home. Her friend, who just recently lost her mother, crossed the finish line and jogged over to one of the tents. Not 15 seconds after she crossed the finish line the first of the two bombs went off. I’m pretty familiar with the area, as I lived about 3 blocks away for 3 years when I was at MIT.
My daughter found out what was happening when the T stopped at BU and they told everyone to get off. At that point she was about a mile west of Copley Square. She could smell the explosives when she got out into the surface.
I knew she’d be out there to support her friend. And as soon as the bombs went off the authorities shut off cell phone service in Boston to keep anyone from setting off any more bombs using cell phones. So it took a while to get through to her.
Ron, I’m very glad your daughter is okay. Her friend was okay too, right? Hearing about things like that on the news, knowing someone you love is there and not being able to get a hold of them is really scary.
My brother ran the Boston Marathon too—he was finished and a good ways away before the explosion, but he heard it. I had trouble getting a hold of him too, probably for the same reason. He did manage to text his wife, who called my parents, who called me at work. And I then posted on Facebook, since his friends had been asking. (He had posted his time about an hour earlier.)
Her friend was fine, fortunately.
I would like to know what you all think of this:
Dove Beauty Soap hired a forensic sketch artist to sketch a group of women. He did two sketches of each woman. For the first one, he did the sketch based on how the woman described herself. For the second one, he did the sketch based on how one of the other women in the group described the woman from memory after being told to talk to her for a while to get to know her. In neither case did the artist look at the woman being sketched (or doing the description) at any time before, during or after the sketches.
The pairs of sketches were then hung side by side and the women who were the subject of the sketches commented on them. Check it out, I thought it was pretty remarkable.
I have mixed feelings about the Dove ad. I’m all for dialing our standards of beauty down a notch or six and appreciating real, human beauty rather than make-up and Photoshop fantasy. And it is worth pointing out that we’re often our own harshest critics. But at the same time, a “kinder, gentler” beauty standard is still a standard that values women primarily for their looks and teaches little girls that it’s more important to be pretty than smart or kind or brave. It was also a pretty thin, young, and white group of women.
Or, what she said.
Ron @ 58, I’m very glad to hear that.
Are we? Or does it teach “All that stuff you think you see in the mirror? No one else is worrying about it. It’s not important. Stop thinking about it and think about more important stuff.”
Define “young”. It wasn’t all 23-year-olds. I thought there was at least one woman 50+. But I can’t swear to it. And you also have to ask – a) who’s their target demographic and b) we don’t know how these folks were selected. Maybe people who were elderly, obese, etc. didn’t want to sign up. Remember the premise that women often have poor self-image is operative here.
There’s a critique of the Dove piece here. Here’s a bit of it:
Well…. it’s true, right? Sad, but true. Pretty people get better treatment everywhere from relationships to careers to juries.
It’s hard to imagine a company suggesting that beauty is irrelevant, because that would be a lie.
It’s obvious that beauty standards are changing and changeable, and it sure would be nice if the “is s/he a good middle manager?” or “do I think I should vote guilty?” had nothing to do with the question “do I think s/he is good looking?” But it’s a bit of a stretch to ask someone to sell that as true.
I think the interesting part of the Dove commercial had to do with self-image, and the fact that many people tend to focus on the parts which they don’t like, rather than promoting the parts which they do like. But in the end, it’s still Dove, which sells stuff that people use to try to make themselves look however they think is beautiful.
In the “O, the Irony” Department, given our recent discussion: combination of immigration bill and ACA potentially makes it thousands of dollars cheaper to hire a forgiven not-illegal-anymore immigrant than a citizen or legal-from-the-getgo immigrant.
http://news.investors.com/041713-652257-immigration-reform-meets-obamacare-employer-mandate.htm
It’s hard to imagine a company suggesting that beauty is irrelevant, because that would be a lie.
I can easily imagine a company suggesting any lie, as long as it will make them a buck at no risk. You should give your imagination a workout, gin-and-whiskey, it clearly needs the exercise.
The rest of the post is true, though. Unfortunate, but true.
Regarding the critique of the Dove video that KellyK and Amp have linked to:
I agreed with much of it, but I was quite surprised when the author of the critique placed the “has freckles” and “has a round face” self-descriptions in the negative column, as opposed to being neutral or positive. My face is quite round and squishy and I quite like it, and though I don’t have any freckles, as far as I’m concerned they add an instant +10 to anyone’s attractiveness. Did I miss clues in the inflections of the self-describers to indicate that they didn’t like these aspects of themselves? Are having a round face and/or freckles generally seen as unattractive, unbeknownst to me?
I’m also curious as to whether the portraits that we didn’t see had roughly equal ‘beauty’ in the self- and acquaintance-descriptions, maybe even the self-description being more ‘beautiful’ than the other one. What if someone’s self-description was even more pretty than their actual face? How would that fit into their narrative of ‘you are more beautiful than you know’ (which is sometimes accompanied by the awful addendum: ‘which only increases your beauty’)? I guess the science student in me is a bit wary about Dove not sharing all the results of their experiment : )
Well, now, here’s another critique of that Dove ad. It goes at it from a couple of angles, but there’s one specific one on procedural grounds that lends a new perspective altogether. From here:
THere’s a couple of other interesting sections in there as well.
Yow. Amp, can you fix that link for me? I apparently didn’t close it right….
[Done! –Amp]
I’ve been trained in Smith & Wesson’s IdentiKit, and used it to make composite “sketches” (many of which I then had to do surgery on with a pencil and eraser toward the end of the process). The back-and-forth is a critical part of the process for an accurate representation. Without that, it’s nothing more than an educated guess.
Grace
This was a really fantastic thing for our local professional soccer team to do. The support from the fans was nothing short of amazing. 3000 people showed up for that game. Sometimes people are wonderful.
God bless America, there’s still some people who aren’t afraid of the government:
Bloomberg Refused Second Slice of Pizza at Local Restaurant
In Chicago the Mayor wouldn’t have said a word. He’d have just gotten up and left. And the next day every department in town would have sent an inspector over – building, plumbing, electrical, sanitation, you name it, and they ALL would have found something wrong. I guess the situation is too novel for Bloomberg to react classically.
I have no idea if this is a reliable source. I sure hope so. And I hope the people of New York buy every pizza this guy can make.
That is a really funny story – but it’s a joke story, not a real story. That site is a fake news site, like the Onion.
Dammit. I was hoping it was real. It should be real ….
Wow, I wish it were real too. That would be awesome.
Post-racial America strikes again: Racisim at the White House Correspondents’ Dinner.
Ugh, the people involved the Boston bombings were literally Caucasian. Racist and ignorant.
That article was painful to read, Elusis. And not just because of the way the author was treated; the author never misses an opportunity to sacrifice clarity and brevity to florid prose.
I start thinking things like “plagues are by definition ‘filthy’. They’re unclean because they’re made of germs…”
Not that the writing style means anything one way or another about the point being made.
A couple things from Slate about the imprisonment of the three recently rescued women, and others like them:
http://www.slate.com/blogs/xx_factor/2013/05/06/elizabeth_smart_abstinence_only_sex_education_hurts_victims_of_rape_and.html>Elizabeth Smart Says Pro-Abstinence Sex Ed Harms Victims of Rape
I think it may be possible in theory to teach abstinence-only sex ed without giving out the message that the wrong kind of sex makes you worthless. In practice, that doesn’t seem to be what happens. [I’m not clear on whether Smart is criticizing abstinence-only education in general, or if the headline is the product of people trying to find a political angle to generate more clicks.]
Amanda Berry’s Story Isn’t Happy and It’s Not Over
Hey, I wonder if Ariel Castro ever thought about how it feels to be imprisoned indefinitely? I guess he’ll have plenty of time to think about it now!
A question for all:
Who is the oldest and most random significant person (ex-partner, ex-best-friend, etc.) who has gone the longest time out of your mind until they suddenly friend you on facebook or link to you on Linkedin?
I just had a woman link to me who I dated 1000 miles away and who I broke up with around 1991. Very odd.
My wife had a college friend that I’d gotten to know as well. We had heard from her a few times, but had not heard from her or seen her for 10+ years until she friended us on Facebook. We ended up going with her and her husband – whom we had never met – on a vacation to Boston and had a great time together.
Did y’all notice the recent DOE standard releases which gut civil rights on campus?
Oddly (or perhaps not) they don’t seem to be getting much attention–much less an “oops, perhaps we pushed a bit too hard on this”–from the feminist blogosphere.
http://thefire.org/article/15767.html is one of many articles.
Yep. That’s been playing on Instapundit and the Volkoh Conspiracy for quite some time. It’s as if nobody in the Federal government every heard of the 1st Amendment. Although given the news out of the IRS that should surprise no one.
Actually, I shouldn’t say that. They believe in the First Amendment – as long as you favor the same causes they do.
And one of those causes seems to be the concept of a “safe space” – a place where you never hear opinions that you disapprove of seriously promoted and where you never hear something that you consider insulting, degrading, racist, sexist, etc., etc. Note that the standard set for these “speech codes” is now based purely on the opinion of the listener, not any kind of objective standard (which had been in the old regulations, but is now pulled out).
I predict that once this has been put in, you will have seen the last performance of “The Vagina Monologues” on a campus. This is truly a double-edged sword and it will be wielded.
g&w, did you actually read the DOE letter? You really shouldn’t take FIRE at its word.
The key passage that seems to have set off FIRE (and Wendy Kaminer writing at the Atlantic) frothing about feminist black helicopters might be this (their rant is sufficiently content free that it is hard to tell):
“Third, Sexual Harassment Policy 406.5.1 improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive. This policy provides examples of unwelcome conduct of a sexual nature but then states that “[w]hether conduct is sufficiently offensive to constitute sexual harassment is determined from the perspective of an objectively reasonable person of the same gender in the same situation.” Whether conduct is objectively offensive is a factor used to determine if a hostile environment has been created, but it is not the standard to determine whether conduct was “unwelcome conduct of a sexual nature” and therefore constitutes “sexual harassment.” As explained in the Legal Standards section above, the United States considers a variety of factors, from both a subjective and objective perspective, to determine if a hostile environment has been created. ”
The “legal standards section above” links to the 2001 DOE standard on sexual harassment, so apparently we have been living under the heel of the feminist jackboot for over a decade. Who knew?
I’m not going to even bother to ask if RonF, who has heard of this for a while on various right wing sites, has bothered to read the letter. I will only note that “speech codes” appears nowhere in the DoE letter, but presumably is part of the fevered imaginings of Instapundit, etc.
At least, since the “speech codes” are imaginary, RonF’s prediction will never be proved wrong (depending on whether “this” references the DoE letter’s recommended policies or the fantasies of rightwingia). “if FALSE then purple unicorns fly out my ass and kiss RonF on the nose” is a true statement, after all.
[Lost to Edit …]
Mind you, the concept of “safe space” does not extend to non-liberal viewpoints. There is no “safe space” for them on a campus. People are free to both figuratively and literally shout those down and subject the people who hold them to any manner of insults, offense, etc.
Yes, and then the poor non-liberals are burned at the stake. It truly is a tragedy.
Yes, of course I read it. I also read the prior one, and various supporting documents.
If you’d like a more detailed analysis by a law professor, here’s one:
http://www.volokh.com/2013/05/13/the-administration-says-universities-must-implement-broad-speech-codes-2/#more-74535
Some of those folks are attacking a straw man; as I noted on the Volokh thread there is still a vaguely, potentially-objective requirement that it “denies or limits a student’s ability to participate in or benefit from a school’s education program” and folks are ignoring it, though as a practical matter that seems only to require a student’s assertion so it’s actually pretty subjective.
It’s not just FIRE who is on this, you know; FIRE was just a convenient link to somewhere that hosts the full text with a minimum of spam.
Some various things continue to shock me about the DOE’s position (other than this ,) including their insistence on a combination of right restrictions for defendants, proactive steps to be taken to protect the accuser (which must be taken prior to any determination of guilt, and which are not precluded from having a negative effect on the accused,) the right of the accusER to appeal, and the flat rejection of anything other than a “preponderance” standard. From the DOE’s perspective, it seems like accusations are pretty much akin to convictions.
But be that as it may: The DOE letter specifically states that they are rejecting the objective standard for sexual harassment, which–given the incredible range of subjectivity involved in communication–is fucking ludicrous. I don’t think the DOE is even close to the mark here.
See, the problem is that they’re trying to write the laws to prevent sexual harassment of the type which is illegal (criminally and civilly.) But in doing so they have vastly expanded the definition of sexual harassment to include a lot of stuff which IS NOT illegal and which SHOULD NOT be illegal. Offending people, upsetting people, and insulting people is obnoxious–but it isn’t something that the government should be enforcing directly or indirectly.
And that won’t end well. If you believe that colleges will rationally and fairly interpret this stuff to avoid stepping on fundamental liberties then perhaps you should do a bit of reading on FIRE, because it isn’t going to happen.
They specifically state that U Montana definition does not match the 2001 standard definition. Where do you see them changing the definition?
Pfff… as if legal definitions and rules matter. Everything will be decided in closed meetings, and will be presented so the institution comes out smelling like roses. Here’s three cases that I, or my wife, have personally witnessed. All three happened at institutions of higher learning that are in the top five of their types.
1) Zero tolerance for fighting – all parties are supposed to be automatically expelled. Nasty fight between two students with half a dozen witnesses. One is white, the other black, the white is a known, hated asshole, and beats the other with a white cane. Despite happening in a dorm, the case, ‘accidentally’ and against policy, goes to the city’s police (as opposed to the institution’s police) and ends up with a restraining order, and the white guy expelled. No action whatsoever against the black guy (Who was, in a matter of fact, completely and utterly blameless. Oh, and it was not me.)
2) Multiple counts of racist vandalism (graffiti and destruction of monuments on campus) Huge outcry, changes in the institution’s policy, compulsory awareness classes, student activity groups losing funding and coming under scrutiny, automatic punishments for even minor lack of sensitivity… It turns it was all a false flag operation by a professor. No punishments, no more noise of any kind. A resignation is tended, and no apologies to anyone are offered.
3) Ok, on this one, I’m gonna have to be a bit more circumspect. Hmm… Let us say that an altercation that streamed from political activism due to an international issue led to the exchange of ethnic slurs, profane language and, according to some witnesses, shoving. The investigation starts, a lot of declarations and promises are made… it turns out the person who was not involved in the original protest is a foreign professor from a different institution than the student’s. The name leaks out, which is reason enough for one of the institutions to deem the investigation compromised, and declare the matter closed. The other institution holds a full faculty meeting and declares (paraphrased) “As opposed to the hypocrites next door, we actually care about social justice, and would have had the matter resolved and the guilty punished.” The broadsides are still flying, and I am watching to see who’s gonna sink.
Looks like the issue is that the DoE wants sexual harassment that does not rise to the level of creating a hostile environment to be a punishable offense?
I think it’s a bit worse than that, Charles. They want it to be a punishable offense to discuss sex, period, in a way that anyone hearing or seeing the discussion finds offensive. “circulating or showing e-mails or Web sites of a sexual nature” – that’s me saying “some of the most offensive porn is found at http://www.thisisntright.com” or you saying “I think that Emily Nagoski’s blog has something important to say about this”.
Basically if it involves naughty bits and someone isn’t happy, you’ve committed an offense regardless of the objective facts of the matter. That’s not just lowering the bar a bit on harassment rules, it’s making the preferences of the most sensitive the norm. Which, in and of itself and in saner culture, might be a gesture of good faith towards a more welcoming environment…but we live in a culture where people get upset because somewhere there is a statue of a woman, and she has nipples.
The guidelines, at least on my casual reading, appear to require that universities and colleges completely ignore decades of First Amendment jurisprudence and set themselves up to be crushingly crushed in court by people who committed some heinous crime like opining about the likely sexual prowess of a fellow 18-year-old and then got walloped in some college kangaroo court.
That is and isn’t the real issue.
Yes, they don’t want the hostile environment test. but more to the point, the alternatives that they are demanding aren’t a “slightly less stringent objective test,” they’re subjective. So while the DOE is presenting this as a small (or nonexistent) change in the regs, it fundamentally
Moreover, these things have a multiplicative or even exponential effect. To use a well-known criminal law example: It is bad that some POC get targeted by the cops; it is bad that some POC are treated worse by the criminal system because of the racism of judges and juries; it is bad that a higher proportion of POC are unable to afford private counsel to give a fullblown personalized defense. Each of those things is bad on its own. But it is the combination of those things means that POC are truly fucked over; the combination is much much worsethan the sum because of how they play off of each other.
The DOE’s recent letter regarding standards of evidence would (in the context of objective laws for the underlying offenses) have been bad but not AS bad; the very-recent letter regarding subjective laws for the underlying offenses would (in the context of the old standards of evidence) have been bad but not AS bad…. but the combination is truly out of hand.
Taken together, it’s
the elimination of any presumption of innocence;
the change to a very low evidentiary standard (the DOE now requires schools to use a “preponderance of the evidence,” which is the lowest standard possible. It’s a wholly inappropriate standard for untrained fact finders on serious issues where the defendant is usually not permitted to have counsel.);
the insistence that the accuser be permitted to appeal any adverse finding;
the requirement for the school to take measures (which as per the DOE may include “disciplinary action against the accused”) prior to the determination of fault;
and so on.
g&w, I’m also curious where you are getting:
could you quote the passages that support this?
could you quote the passages that support this?
Section 2 of the linked Volokh analysis piece lays it out. An objectively hostile environment is no longer to be used as the standard for what constitutes sexual harassment; now it is ‘unwelcome conduct of a sexual nature’.
Which facially is unobjectionable if ‘unwelcome’ comes from the same place as ‘objectively hostile’ but for objectively hostile we have a reasonable-person test; if I put up a G-rated poster of a movie star in my cubicle and you find it oppressive, the judge will laugh at you. Under the new standard if there is anything sexual at all about the display – for example, it might be a G-rated photograph that depicts a woman, or a man – and you find it ‘unwelcome’ then you have the basis for a claim. Maybe DOE didn’t intend it that way, but that’s how it reads, and it is a disastrously low standard.
Yes, I read the linked Volokh piece. I’d be interested in seeing that laid out with quotes longer than two to three words, or with clearer references to the relevant passages.
The Volokh piece in turn links to the agreement between DOE and the university, at http://www.justice.gov/crt/about/edu/documents/montanaagree.pdf
The first section ‘Terms’ gives a nice big chunk of consecutive words saying what I’ve said in two comments thus far.
Thanks.
What is the current prevalence of preponderance of evidence standards in universities currently? The DoE letter implies that it is not uncommon. Googling Oregon university preponderance of evidence grievance procedure turns up PSU title IX grievance procedure is preponderance of evidence and University of Oregon Student Codes of Conduct is preponderance of evidence except in cases where expulsion is a possibility.
Note that Volokh notes that the DoE letter states that the rules should not be interpreted to prohibit protected speech, so performances of Vagina Monologues and discussion of Emily Nagosi’s blog are pretty trivially obviously not to be counted as sexual harassment even if they are unwanted by someone.
From the 2001 guidance: http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html#II
“Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. [6] Sexual harassment of a student can deny or limit, on the basis of sex, the student’s ability to participate in or to receive benefits, services, or opportunities in the school’s program. Sexual harassment of students is, therefore, a form of sex discrimination prohibited by Title IX under the circumstances described in this guidance. ”
So the definition of sexual harassment used in the Montana agreement letter is not new by any means.
And that list of sexual conduct? That follows directly after:
“Sexual harassment is conduct that:
is sexual in nature;
is unwelcome; and
denies or limits a student’s ability to participate in or benefit from a school’s education program.”
Are we really intended to read the fact that the Montana agreement letter does not explicitly incorporate clause 3 as a repudiation of existing DoE policy? Particularly given the contents of UM investigation findings, which repeatedly reference the definition including the 3rd clause, that seems highly unlikely.
The DoE does irritatingly vacillate on how it is defining sexual harassment across these various documents (sometimes, sexual harassment is unwanted sexual behavior that interferes with a student’s ability to be a student, sometimes it is unwanted sexual behavior that might interfere with a student’s ability to be a student), but reading that to mean that the DoE has now shifted to seeing any form of unwanted sexual behavior as actionable sexual harassment is perverse. That vacillation in terminology has been there all along. However, in either case, sexual harassment only requires action by the University under the 3 clause definition, not the 2 clause definition. Nothing in the Montana documents that I have found explicitly declares this to not be the case anymore, nor is the Montana document a high enough policy document that it would be the appropriate place to declare that drastic of a change in policy.
The Montana document is intended as a blue print, etc, because it spells out how sexual harassment policy should be organized and administered, not because it defines sexual harassment.
This continues to look like a non-event to me.