Title IX, Single Episode Sexual Harassment and Telling Stories Out of School

This June marks the 40th anniversary of Title IX. Its principal provision reads as follows:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”

Educational institutions from primary schools to universities who receive federal funding are subject to the law. Title IX is best known for having transformed the arena of women’s sports. Title IX, however, has a much broader reach: it applies in a number of other key areas, including sexual violence, sexual harassment and gender-based harassment. The latter may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature. One of the  controversial aspects of Title IX jurisprudence is that sexual and gender-based harassment is not only defined by persistent behavior but may also be found in a single episode. This latter fact is the subject of numerous critiques. But what is sometimes missed in such criticism is the full nature of even a “single episode” of harassment, especially within educational institutions.

According to social theorist Anthony Giddens, all social life is episodic. By this Giddens refers to specific beginnings and endings, and to particular sequences within those beginnings and endings.  Even seemingly small single episodes usually effect main institutions within a social totality. This is nowhere more true than in the case of sexual or gender-based harassment in educational settings. Social dominance and hierarchical organization are key features of many educational settings; the relationships between students, teachers, support staffers and administrators are characterized by power and authority, distinction and subordination. Combined with these are hierarchies that exist well beyond educational settings: stratifications of gender, race, class and sexual orientation are just a few.  These conditions may easily give rise to episodes of sexual or gender-based harassment.

Despite the seriousness of such events, they are all too often deemed of little importance in educational settings. As scholar Robin Patric Clair notes, incidents of sexual harassment rarely receive "the same public exposure, legitimation or respect" as other sorts of problems in institutional settings. This may be especially true in the context of education. All too often such concerns are deemed plebeian, mean and  inimical to the storied liberal values, high-minded erudition and studied self-reflexivity thought to prevail in many educational institutions.  Hence, narratives of sexual or gender-based harassment may be, according to Clair, “sequestered”—intentionally segregated from the mainstream and rarely considered an appropriate subject of publicly shared anecdotes.  Because exposure of sexual or gender-based harassment may be harmful to dominant interests in such settings, such narratives are frequently re-framed by rhetorical devices that influence interpretation of the incident without being part of the content of the incident. In such re-framing, victims are often said to have harmed institutional interests, and/or to have misunderstood the harasser and/or to be “too sensitive” to the natural, harmless, and socially appropriate ebullience or humor of the harasser. Finally, re-framing may deny the occurrence of harassment altogether. In short, re-framing can and does make claims of sexual and gender-based harassment “go away.”

Given the climate of sequestered stories of sexual or gender-based harassment found in many educational settings, employing Title IX in such cases can be a challenge since liability is typically triggered only once an institution knows or reasonably should know of the claimed sexual or gender-based harassment. Victims must therefore be empowered to tell their stories, whether of persistent or single episode harassment--in school and out.  The U.S. Department of Education’s Office of Civil Rights April 2011 “Dear Colleague Letter” was a needed reminder of the responsibility that educational institutions bear in addressing claims of sexual harassment, gender-based harassment or sexual violence under Title IX. While not a solution to the these problems, when deployed Title IX can offer push-back to re-framing and allow victims yet another means of articulating the legal and ethical wrongness of such behavior.

[Versions of this article are cross-posted at the blog of the American Constitution Society and the blog of the National Women's Law Center]

Loving is as Loving Does

On June 12, 1967, in the case Loving v. Virginia, the United States Supreme Court unanimously struck down Virginia's anti-miscegenation law, thereby invalidating such laws across the country and allowing interracial couples across the nation to enter into legally recognized marriages. The plaintiffs, Mildred Delores Jeter Loving and Richard Perry Loving, were arrested in the wee hours of the morning in June 1958, confronted in their marriage bed by police officers and arrested for violating Virginia’s Racial Integrity Act. The couple pled guilty, received suspended sentences and were barred from the state. Several years later they reopened the case, leading to the now famous ruling. Click here to see a short film about the Lovings.

Many people celebrate June 12 as Loving Day, the day when racial barriers to marriage equality were toppled and when African Americans came a giant step closer to achieving full civil rights. Today is perhaps a particularly poignant celebration as we debate the status of same-sex marriage by recalling that less than fifty years ago whites and blacks (and people of some other racial backgrounds) could not marry in almost one-third of U.S. states. For decades, there has been a political and legal debate about the meaning of Loving and its implications for the status and rights of same-sex couples in our society. Some have argued that Loving, while useful to the same-sex marriage debate, is not a matter of simply or impulsively matching familiar figures in a test of legal reflection. Maybe not,  maybe so.

The case of the Lovings was not necessarily simple or straightforward, either in law or in fact. At the time that the Lovings were arrested, the legal parameters of equal protection and due process doctrines did not fully resemble their modern forms. The factual backstory of the plaintiffs was equally as opaque. Few people realize, for example, that Mildred Loving, while identified by several documents, by some people in her community and by the justice system as black, did not necessarily consider herself black, but rather, as white and Native American. According to one author, her marriage license, hanging on the wall of her bedroom when she was arrested, identified her as "Indian." In an interview she gave in 2004 Mildred Loving was said to have identified her mother as full-blooded Rappahannock and her father as Rappahannock and white; she went on to say that as far as she knew “no one in her family was black.” The Rappahannock, like some other Native American groups, were sometimes described as being of mixed black and aboriginal blood--despite their own claims of pure aboriginal identity. One account suggests that Mildred Loving may have publicly accepted a mixed Native American-black designation in order to allow the case to proceed on firmer, more compelling grounds. In a case founded on race, the race of one of the parties was in no way clear cut. 

One thing was clear in Loving: the case helped to dismantle racial boundaries and lessened law’s ability to serve as a tool to naturalize racial hierarchies and ideologies of racial purity. Whatever their racial backgrounds Mildred and Richard Loving were prevented by law from forming an intimate and social partnership with each other for reasons that defied logic. Anti-miscengenation laws, regardless of their targets, have long worked hand-in-hand with larger-scale regulatory regimes to limit the rights of citizenship to narrow classes of persons.  Here the analogy is clear: permitting same sex marriage, like permitting interracial marriage, is a step on the path towards full civic membership for all.

Sarkozy, Hollande and a Sunday Kind of Feeling in Paris

Last night marked the finals of the election between Sarkozy and Hollande, with Hollande winning. I have never experienced such a public political culture, with huge numbers of people turning out to vote, people in the streets all day yesterday (Sunday), and an atmosphere like New Year's Eve after last night's announcement. I suppose to some extent it could be likened to the election of Obama in terms of the change in government that Hollande’s election represents. Women and people of color seem particularly energized, not the least because Hollande enjoyed hearty support from George-Pau Langevin, a black woman member of the National Assembly elected from mainland France. Hollande and Langevin posters are everywhere, especially in this arrondissement that Langevin represents (the 20^th arrondissement). However, the Obama comparison is a very loose one.

Yesterday afternoon before the results were announced I went to a huge neighborhood vide-grenier (attic sale) and festival with hundreds of people walking, pushing, and crowding around vendors of everything you could imagine. This is a fairly working-class neighborhood also with a number of artists, writers and intellectuals in residence (sort of like Greenwich Village before Greenwich Village became a “happening” place I suppose). So, the vendors were an eclectic mix of everything from elderly ladies who were selling stuff that looked as if it were from the de Gaulle era all the way to local bouquinistes (second-had book sellers—a good thing; the cost of new books is enormous.) I came to the local public nursery school (yes, preschool is public funded here) where people were crowding in a huge line.  I thought it was some great exhibit or solde (sale).  I wanted to see! (By the way, local public libraries here, including the one a few doors down from me where I do some of my work in the evenings, often have great free exhibits--it is a museum kind of town). I asked a lady coming out of the nursery school, “what's going on in there?” She said, “it’s the voting, it’s a good time now, before the line gets any longer.” (I could not imagine that; I have never seen such a line at a poll).  She was so excited and serious about it. They seem to take their civic duty pretty seriously here.  I think that the two-phase election (the first round was on April 22) is perhaps part of it, and there are laws strictly forbidding publishing exit poll data before the polls close (though outlets in other countries and on Twitter were doing it; it helps that they are on one time zone here in metropolitan France). Also, I believe that having Sunday elections truly helps turnout and engagement.  Pretty much every business is closed here Sunday except for some small food grocers and some restaurants.

It was a real Sunday kind of feeling.

Café au Lait Bien Chaud (“Vous êtes quoi?”)

Je bois un bol de café au lait bien chaud (est-ce qu’un café au lait ever really hot?) and je pense de la question that has confronted me since my arrival in Paris: “Vous êtes quoi?” What are you? I know that part of what prompts this question is apparently my accent when I speak French.  I take pride in trying to master the sound if not the fluency of native French speakers, so my pride is a little bit wounded to think that I am revealing myself to be foreign when I talk. But as one woman told me in a small boutique today where I went to buy a scarf, the ultimate fashion accessory here, (scarves are, mercifully, often inexpensive yet they add a real air of the Parisienne to every outfit and of the Parisien as well; many men of all ages are artfully slinging scarves around their necks in this chilly, wet weather) it’s not how I speak. “C’est votre couleur de peau.”  There, she said it.  It’s my skin color. She pauses patiently as she unrolls the now familiar list: Vous êtes Martiniquaise? Vous êtes Guadeloupéenne? (that’s what she says she is—I took her for Cuban or Venezuelan from her looks and the sound of the Cuban music playing in the background of the store). Vous êtes mulâtresse? WHAT did she just call me, snap?

I have long been familiar with how people in many other parts of the world deal more frankly with skin color than United Statesians. Here in Paris, some people seem to take discussions of national or racial heritage as an early to medium-stage intimate pleasantry (the conversation usually starts in this direction after we have had several minutes of chatting to establish a foundation for such inquiries, such as with my apartment building concierge when I moved in).  I have been especially surprised at being asked if I am a mulâtresse (female mulatto.)  I thought that word went out around 1920, along with Negress (my spell-checker can’t even handle the latter word and it is in English, lol!) I have to set about figuring out just how widely mulâtresse is used here. Maybe it is an in-group thing. All of these conversations have occurred with other women of color, such as when I asked a prosperous looking (avec un véritable sac de Chanel; even in the semi-darkness I can tell that those two c’s seem to be lining up just the right way) tan-colored woman the other night for directions to La Nation metro stop. I was on about my fourth walk around a rond-point and I still couldn’t figure out what direction to go in. We were almost two miles away and after she told me the way she offered to walk with me part of the route as she was going in that direction also. After a few minutes walking and sharing chitchat she offered that she was from Mauritius and asked “D’où êtes-vous?” Where are you from? This is different from what are you, but at its root is the notion that you are not of this place.

The woman in the boutique today was visibly puzzled when I responded, “Je suis Americaine, de la Californie” to her inquires. She went on “Mais d’où êtes-vous vraiment? La Martinique, la Jamaïque …”  No, I said, mostly just American, “depuis au moins 200 ans”  I added.  There, I said it. It is true; I have researched one branch of my mother’s family back to 1803 in Virginia where my first known female ancestor was born.  It dawned on me like a ton of bricks (a really apt mixed metaphor) that this makes me really pretty American. I didn’t know how to feel. Proud? No, just amazement, since I don’t usually have casual national identity conversations in the United States and I have rarely stated these facts out loud.

The lady in the boutique sees my Pierre Nora tome peaking out of my obligatory market sack. I have re-learned, after many years away from Paris, to carry a bag everywhere in case I have to stop for groceries or some other small item.  And I stop a lot, both on account of having a tiny fridge and in order to buy small amounts in different places to sample as much as possible. She asks if I am a student.  I say “oui.” For I have only recently stopped being a PhD student and I am here to learn about the intersection of memory and identity and law—there is no need to expand on my really somewhat complicated professional identity.  For the moment la couleur de la peau et un livre suffit à définir une communauté. After all, comme dit Nora, seule l’histoire confère une identité.

Of the Digital Divide, Information Superhighways and the Human Tool

Systematic and automatic is the attitude.

The human is like a little piece (on a mechanism)


Who can find the truth, when all of us are confronted?

This is the way to serve to preachers of lies.

Human tool.

Some of you heavy metal/Goth fans may recognize these lyrics from the song “Human Tool” by the Argentinean band Vampiria.  You can hear it here. 

I thought of this when I read a story in the New York Times about how homeless people had been deployed as human Internet hotspots at a technology conference in Austin, Texas.  You can read about it here.  The gist of it is that a marketing company equipped homeless people with mobile Wi-Fi devices that offered conference-goers Internet access in exchange for donations by the users.  The homeless people were paid $20 per day and given business cards and T-shirts. They were also allowed to keep donations. It was part of a larger “Homeless Hotspot” project that the company hoped to offer in other areas where heavy demand on cellular networks caused problems with access. Most striking is a photo of a 50-something black man wearing a T-shirt that reads “I’m Clarence, a 4G hotspot” along with instructions for how to SMS Clarence for access.

It is not news that there is a national and global digital divide wherein there are inequalities in access to, use of and/or knowledge of the diverse and proliferating resources of the digital world. As much research suggests, these inequalities are often heavily influenced by economic status, race, gender, nationality and culture. Economic and social outsiders often find themselves with little or no access, and even when they do have access, there may be divides in the purpose for use of Internet resources, such as entertainment versus research, for example, and in the sophistication of use, such as retrieval and passive consumption versus interactivity and contribution to media.  Perhaps one of the most commonly conceived of divides is the divide in access to the digital world and the corresponding divide in the means and nature of use.  This is often expressed in discussions of connecting or not connecting because of differential access to equipment or service.  This also has to do with the place of access such as at work or in public spaces versus connecting at home, or connecting via dial up (yes, believe it or not) versus using high-speed services.  This all raises the related discussion of a term that gained prominence back in the 1990’s: the information superhighway.  The information superhighway referred in its most fundamental sense to the physical route for the transfer of data, such as fiber optic cables and other hardwares that were going to connect businesses and households to the Internet. The information superhighway also had more metaphoric import as the transport mechanism for ideas and information.  Whether in its literal or figurative sense, the information superhighway was touted as an amazing new way to bring together people as both consumers and providers of information.

It is becoming quickly apparent, however, that just as in the case of the development of physical superhighways, there are casualties of the construction of information superhighways. Physical superhighways often displaced poor and racial minority neighborhoods even as wealthy and white neighborhoods, often the prime users of the superhighways, were able to preserve their own neighborhoods.  Superhighway entrances and exits were often strategically placed to benefit business centers and wealthier neighborhoods. Superhighways also displaced public transit in some communities.  Take Los Angeles, my hometown (please.  I couldn’t resist the joke.  Really, I love L.A.).  We used to laugh sadly about how even though the highway ran right thorough some neighborhoods we had to practically stand on our heads to get on or off of it anywhere near the neighborhood. My grandmother and mother used to wax nostalgic about the public transit  “red cars” of their youth, a network of rail lines and electric streetcars that connected L.A and nearby communities.  These were just memories by the 1960’s and 70’s when major highways were built. The poor and other people without cars were all but stranded by the new highway transit system that depended on driving.  As a poor child living in L.A. in a household that didn’t have a car for many years, I was going, perhaps both literally and figuratively, nowhere.  The superhighways availed me nothing.

Like the physical superhighways, the information superhighway is going right by and right over some people and some neighborhoods. Homeless people as Internet hotspots makes the point in a weird, cynical, dystopic way.  It sort of reminds me of the old, old pre-digital days when people sometimes had to hold the television antenna in order to insure reception for everyone else watching.  You only hoped that you would get a turn watching and not holding.  But with the digital divide being what it is, the homeless people featured in the article are little more than human tools—I don’t know that they are going to get a turn as users of the services they are providing for others. They are collectively, in this regard, maybe more like Atlas holding up the heavens.  

American Jesus, Law Jesus

Happy Presidents’ Day.

My nine-year-old daughter left me rather stunned a few weeks ago when she asked me where in the United States Jesus had been born.

Though I would describe myself as a fairly religious person with strong Christian values tempered by some secular humanism, I have not, for some years now, attended religious services regularly for a number of reasons. When I was nine years old I was extremely devout and attended religious instruction several times weekly with our local priest. By the time my older children came along I was not much attached to organized religion but I did provide them with some formal religious training. My daughter, in contrast to my own upbringing and even that of my older children, has received much less formal religious training. I bought a children's bible and read to her periodically when she was very young, and we have, as always, tried to model our faith by the way we live. Given the lack of explicit religious instruction I suppose my daughter’s question was not terribly surprising. I could, I suppose, have answered her gingerly and gently when she asked about Jesus being born in the U.S.  I am not, alas, a very gentle mom when it comes to knowledge gaps.  I said instead: "Do you seriously think that Jesus was born in the United States? How could you have gotten such an idea? I know that we don't go to church much but popular culture alone should have taught you the answer to that! Don't you listen to the lyrics to all those Christmas songs?" (It occurred to me only later that songs such as "Oh Little Town of Bethlehem" may clarify little about Jesus' origins when there are places such as Bethlehem, Pennsylvania....)

Unfazed by my response and the incredulous laughter that accompanied it my daughter replied: "Well, you know, Jesus just seems like a New World figure to me. I assumed that he was born in the United States or at least somewhere in the Americas."  In response I downloaded a bible to my daughter’s Kindle and told her that I would read it with her. She decided that she needed “an overview and summary” before reading a real bible so she went off and spent the afternoon reading her children's bible from cover to cover. That’s my girl.

My daughter’s comment reminded me of the time when one of my sons used to volunteer in a Sunday school class for young children.  One child thought that my son was associated with Martin Luther King and sometimes called him that.  We were somewhat annoyed, assuming that it was because my son was one of the few black people with whom the child interacted and because MLK was the only black figure consistently presented to children in school. But it occurred to me that my son was kind and caring, smart, knew something about religion and happened to be black. If this evoked MLK for the child, well, I suppose it wasn’t such a bad thing. There is a long and rich cross-cultural history of taking ownership of deities (on a funny, sort of related note, here is a link to a blog featuring a set of old jokes about the racial and ethnic origins of Jesus) and geniuses, and often conflating the two categories. United Statesians (notice the non-use of Americans here; we are not alone in the Americas) are no exception.  There is a spectrum that runs from Jesus to George Washington to Martin Luther King that permeates our religious and secular culture. It is in some respects premised on United Statesian (aka American) exceptionalism and the notion that we are, if not deities and geniuses ourselves, the principal originators of deities and geniuses.

The more thought I gave to it, the more my daughter’s belief that Jesus was born in the United States made sense to me. There is definitely something to it. Our culture does seem to teach that we are the “city on a hill” and that those values such as innovation, inclusiveness, liberty, substantive as well as procedural fairness, redemption, egalitarianism and forgiveness were all made in America. This sounds not only like “American Jesus” but also like “law Jesus,” (is that what they meant in Galatians 6:2?) or better still, given the reform nature of Jesus’ teachings, like Restatement Jesus or Model Penal Code Jesus. Why indeed wouldn't Jesus have originated in the Americas? 

Brown Girl in the Ring (Show Me Your Motion, Not Your Papers)

Brown girl in the ring  

Tra la la la la

There's a brown girl in the ring

Tra la la la la la la

Brown girl in the ring

Tra la la la la

She looks like a sugar in a plum

Plum plum

Show me your motion

Tra la la la la

Come on show me your motion

Tra la la la la la la

Show me your motion

Tra la la la la

She looks like a sugar in a plum

--Traditional Caribbean children’s song and game

 A recent news article has me pondering national belonging in a big way.

A then 14-year-old United States born, non-Spanish speaking African American girl named Jakadrien Turner was erroneously deported to Colombia in 2010.   Ms. Turner was, according to news accounts, arrested for shoplifting in Houston, Texas. Though the facts are unclear, U.S. authorities assert that Turner identified herself as an undocumented alien from Colombia. Turner pled guilty to the shoplifting charges and was turned over to federal immigration authorities who sent her before an immigration magistrate where she was ordered deported.  Immigration and Customs Enforcement then asked the Colombian consulate to issue travel documents, which the consulate issued after interviewing the teenager.  Turner was then transported to Bogotá. Once in Colombia Turner was apparently given a work permit and released.  After an odyssey of over a year, Turner was recently reunited with her family in the United States. 

In their defense, United States officials have suggested that Turner’s case is rare. However, the fact is that wrongful deportations are not as rare as is often asserted. It is probably the case that many hundreds of people, mostly people of color, are erroneously deported every year. Many of these deportations are of non-citizens whose deportations were based on improper grounds.  For many of these people, there is no remedy once they have been removed. There is no such barrier to return for American citizens who have been wrongfully deported, thankfully.  Still, wrongful deportation can be the source of numerous harms, and U.S. citizens are victims far more often than is typically imagined. According to an amicus brief filed by the National Immigration Project of the National Lawyers Guild in Castro v. United States, “the problem of detention and deportation of U.S. Citizens is so widespread that citizens may even be detained and deported on a daily basis.” According to a recent article by Jacqueline Stevens of Northwestern University, data suggests that since 2003 more than 20,000 United States citizens have been detained or deported as aliens. 

While there may be more to the Turner story than meets the eye, one wonders how in the world something like this could happen.  Aren’t there numerous safeguards? Just offering the name of someone who apparently belongs elsewhere is enough to be removed to that place? There is something odd about that logic, especially when, very frequently, it is “foreign-looking” or “dark” American citizens who are erroneously deported.   Such people often look or sound to officials as if they came from “somewhere else,” or, at minimum, as if they belong anywhere else but here.  As one commenter in the Colombian newspaper El Tiempo archly suggested about Turner's situtation: “si ella hubiese dado el nombre de una de las hijas del Presidente Obama la habrían enviado a la Casa Blanca porque el nombre coincidía” (if she had given the name of one of President Obama’s daughters, they would have sent her to the White House because the name coincided.) 

Another commenter in El Tiempo opined that U.S. officials “no hicieron el mas minimo esfuerzo de proteger o al menos revisar la situacion de la menor cuando supieron que era colombiana (officials didn’t even make the most minimal effort to protect or at least review the minor’s situation once they knew [believed] her to be Colombian). Perhaps much of the problem lay not just in the fact that Turner didn’t seem to belong to us but that she apparently belonged a very undesirable them.