When Lawyers forget Equitable
By Laura Fogerty
By Wendy J. Murphy, JD
For The Patriot Ledger
March 26, 2016
***Lawyers for campus rape victims too often fail to ask judges to enforce Title IX’s “equitable” treatment mandate, leaving the Office for Civil Rights (OCR) at the Department of Education (DOE) the only meaningful enforcement option for women seeking effective enforcement of their fundamental right to full educational equality and “equitable” protection from, sex-based discrimination, assault and violence.
Despite a plethora of news stories about schools taking aggressive steps to stop campus sexual assault, women are still very likely to be victimized in college. (1 in 4). High incidence rates of all sorts of bad behavior in institutional settings are correlated with cover-up policies, (e.g., church abuse) and schools have a particularly strong incentive to hide the truth about sexual violence because the behavior is so prevalent, and they want to keep tuition dollars flowing. Plus, schools are economically incentivized to side with offenders, (which also keeps incidence rates high), because officials believe they’re less likely to be sued by a mistreated victim than a correctly punished rapist.
Victims can help lower incidence rates by filing more lawsuits when officials are “indifferent” to their federal obligation to prevent and redress sex-based discrimination, including assaults, in a “prompt and equitable” manner. Promptness and “equity” are required under civil rights laws such as Title IX, yet few schools actually provide either promptness or equity.
“Equitable” treatment of women in education has been mandatory since the 1970s, and is by far Title IX’s most important guarantee because it means women must receive exactly the same redress on campus as victims who suffer assaults based on things like race and religion. Proving “INequitable”treatment is easy. Victims simply point out the ways that other types of civil rights offenses are afforded better redress compared to offenses against women. For example, if a student who commits a racist assault is expelled in a matter of days, then a student who commits a sexist assault should be expelled just as quickly. Or, if officials regularly apply the civil rights definition of “unwelcome and offensive” to determine whether an ethnic assault happened, but apply a more onerous definition, such as “sexual misconduct,” to determine whether a sexist assault happened, this would be INequitable because “unwelcome and offensive” is much easier to prove than “sexual misconduct.”
Notwithstanding the profound importance of gender “equity,“ the word “equitable” was strangely left out of a recent Title IX lawsuit filed in Massachusetts federal court against Harvard on behalf of a victim who suffered physical and sexual assault, as well as stalking. The victim’s lawyers nowhere cited Title IX’s “equity” mandate, and instead, cited NON-civil rights laws, such as the Campus SaVE Act, which do not require “equity” and are harder to prove than Title IX. Similarly odd lawsuits have been filed in the past few weeks against Kansas University and the University of Tennessee.
Asking a court to apply INequitable laws that are also harder to prove is like claiming on your taxes that you earned more money than you actually did, and then insisting that the government ignore all your valid deductions.
The California attorneys who filed the Harvard case, Irwin and Alex Zalkin, have represented victims of abuse in the past, but their firm also does criminal defense work on behalf of offenders. Their lawsuit alleges that Harvard did little in response to the victim’s complaint until the eve of graduation, and then unlawfully ruled in favor of the perpetrator. Assuming the facts are true, Harvard failed to provide a “prompt and equitable” response. But because the Zalkins did not ask the court to enforce their client’s right to “equitable” treatment, the court cannot rule that “equitable” treatment was denied. Put another way, win or lose, a lawsuit that does not seek equity cannot achieveequity, for a single victim or for women as a class at Harvard.
I asked the Zalkins to amend their complaint to ask for enforcement of Title IX’s “equity” mandate. I explained that I’d written a law review article on the issue, and won landmark cases against Harvard in 2002 and 2010. I pointed out that the civil rights of their client and all women at Harvard will be diminished if they do not ask for “equity,” and that it is unconscionable for any lawyer to participate by silence in the establishment of women’s inequality as normative, on campus or in larger society. But they declined to amend their complaint.
I hope the Harvard victim reads this piece and insists that her lawyers file a new complaint asking for enforcement of Title IX’s “equitable” treatment mandate. Victims who file lawsuits in an effort to hold schools accountable need to hold their lawyers accountable, too, to ensure maximum protection for their rights, and for the rights, safety, and full equality of all college women.