Dec. 20, 2017

By Wendy Murphy

Dear Gloria, Irwin, and the American Bar Association;

You have all expressed an interest in helping prevent campus sexual assault, but your actions belie your words.

To the American Bar Association (ABA): you recently adopted a policy urging all colleges and universities to segregate out only violence and abuse of women for second-class treatment in campus-based civil rights redress proceedings. You nowhere urge that schools treat any other class of student in such a discriminatory manner. Nor do you explain why you believe women as a class should be subjugated, or why violence against women deserves worse treatment compared to other civil rights abuses. Indeed, you utterly fail to acknowledge that women were granted full equality in civil rights laws nearly forty-five years ago when Title IX was enacted (Title IX covers private schools) and “sex” was added as a protected class category to Title IV of the Civil Rights Act of 1964 (Title IV covers public schools). This shameful move by such a prestigious legal organization is both disturbing and curious. Forty-five years after being granted full equality, women have a right to expect the ABA to issue a policy statement demanding enforcement of their rights, once and for all.

Advocates are beginning to mobilize against the ABA policy, and parents’ groups in particular are circulating a petition demanding that the ABA revoke its discriminatory policy statement. While a policy statement is not enforceable in the courts, the issuance of a formal policy enables the ABA to lobby for the enactment of state and federal laws that will expressly permit the second-class treatment of women in civil rights proceedings to redress violence against women on college campuses.

To Attorneys Allred and Zalkin: you have both have helped a few students file lawsuits against universities in cases where victims were mistreated after reporting sex-based civil rights violence on campus. But both of you failed to hold schools accountable for the adoption of policies that undermine gender equality under civil rights laws, and subject women to second-class treatment.

By accepting cash settlements while allowing schools to retain discriminatory policies, lawyers obtain a financial benefit for a few students (and themselves) at the expense of all women.

Attorney Allred, you settled claims against Occidental College and the University of Connecticut, while leaving in tact policies that are inherently discriminatory and unfair to women, such as the schools’ use of criminal law standards to define and determine sex-based civil rights violence and abuse. And while your Connecticut lawsuit was pending, a new law was being enacted in Connecticut that weakened women’s rights under Title IX, yet neither you nor your clients spoke out. As a result, all women at all universities in Connecticut will now receive lesser legal protections in campus redress proceedings, compared to other students who suffer civil rights violence based on other protected class categories, such as race and national origin.

Attorney Zalkin, you similarly filed lawsuits on behalf of victims in federal courts around the country, in which you alleges violations of Title IX, but you nowhere cite your clients’ right to full equality under civil rights laws, or assert claims alleging that your clients are entitled to exactly the same treatment as students who suffer civil rights violence based on other protected class categories, such as race and national origin. To the contrary, you asked the courts to enforce weaker, second-class campus policies that segregate out sex-based violence and subject women to worse legal protections than students from other protected class categories.

I realize some lawyers, including many in leadership at the ABA, are relatively new to the issue of campus sexual assault and civil rights laws, but women’s rights advocates have been working hard for decades to enforce full gender equality under university-based civil rights laws and policies.

Please take the time to better understand the issues and the rights at stake for all women, so that you can better protect and advocate for the rights of all women in all legal actions. One important document you should examine is a recent “findings letter” against the University of New Mexico, in which the Department of Justice makes clear that Title IX is coextensive with Title IV of the Civil Rights Act of 1964, and that victimized women must receive exactly the same treatment as victims who suffer harm based on other protected class status, such as race and national origin.

Unless women receive the fully equal treatment to which they are entitled under civil rights laws on all college campuses, they cannot achieve equal access to education, or be protected from sex-based violence, or reach their full potential on campus and in larger society.

As you probably know, women are more likely to be sexually assaulted if they attend college than if they do not. Women are even more likely to be victimized while enrolled in college than while enlisted in the hyper-masculine environment of the military. Offenders are also more likely to be punished for sexual assault by military officials than by university officials.  Stranger still, a college student is more likely to be suspended or expelled for smoking marijuana than for abusing a woman.

The primary reason for this shocking data is that schools have not been held accountable for adopting and enforcing policies and procedures that subject the redress of violence against women to less protective standards and more onerous burdens compared to the redress of other civil rights harms on campus based on categories such as race and national origin. This, as you know, denies women equal protection and due process of law.

Women will continue to be mistreated on campus until all lawyers always hold schools accountable, not only by filing lawsuits for money, but also by requiring as a mandatory condition of settlement that schools fix the policies that enable and permit the second-class treatment of women.

A financial settlement without a corresponding policy change allows schools to continue to violate women’s rights with impunity so long as they are willing to bear the expense of an occasional lawsuit. The safety and equality of women as a class is too important to be used as leverage in a private lawsuit for personal gain.

Women everywhere look forward to your enlightened views, and continued advocacy.