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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

Friday
Sep072018

Guest Post: Sexual Harassment Allegations Against NYU Feminist Scholar

The following guest post is from Michael Thad Allen.  He is a former university professor and left a tenured position at a major research university (the Georgia Institute of Technology) to earn a law degree at Yale Law school.  As a university professor, Michael Allen dedicated his scholarship to social justice, researching and writing about the Holocaust and civil rights.  His book, The Business of Genocide (University of North Carolina Press) received the 2002 German Studies Association best book award.  He is now the principal of Allen Law, LLC and represents both accused students as well as victims in student misconduct hearings at universities and in federal court.  Turning to a career in Student Rights Law has enabled Attorney Allen not just to study civil rights but to defend them.

In August, an unusual legal scandal prompted soul searching among proponents of the #MeToo movement and advocates of Title IX.  

New York University found that a prominent feminist scholar, Avital Ronell, age 66, had sexually harassed her male graduate student, Nimrod Reitman, half her age (who is gay and has since married a man). Given that Professor Ronell also identifies herself as queer, the story brought enough titillation and hypocrisy to light to make a spring in the moral imagination of almost anyone go “boing-oing-oing.”  

In July of the previous year, Reitman filed his Title IX complaint alleging sexual harassment, stalking, and sexual assault over the course of the three years he had pursued his PhD as Ronell’s advisee.[1]  He claimed, among other things, that she contacted him at all hours, forced him to read to her in bed, kissed him, engaged in “spooning” by pushing her buttocks into his groin, and placed his hands on her breasts.[2]  But after an 11-month investigation, NYU found Ronell responsible only for sexual harassment but absolved her of sexual assault and stalking.

In June 2018, a confidential petition of Ronell’s supporters to the President and Provost of NYU surfaced in the blog of Chicago law professor Brian Leiter.  It had circulated confidentially since May among her colleagues throughout academia.[3]

The letter was authored by President Elect of the Modern Language Association, Judith Butler, a fellow feminist academic luminary. She and numerous other signatories made clear that, in the stratospheric layer of contemporary academic feminists, this Title IX action against one of their own was a legal “nightmare.”  Among other things, they announced, should NYU find Professor Ronell responsible and terminate her, “the injustice would be widely recognized and opposed.”  

Out of one side of their mouths, Ronell’s supporters assassinated Reitman’s character.  Shockingly, the letter admitted to knowing nothing about the facts of the case, but the professors nevertheless accused Reitman of “malicious intention.”  Out of the other side of their mouths, they vouched for the “grace, the keen wit, and the intellectual commitment of Professor Ronell.”  Some, such as University of Texas Professor Diane Davis, also declared the entire matter to pervert Title IX (Davis has since equivocated about this statement).[4]

Davis was not alone in speculating whether a complaint brought by a man against an avowed feminist was hijacking Title IX “in a way that hurt women.”[5]  But to their credit, others, such as the founder of the victim-side advocacy organization Know Your Title IX, Dana Bolger, robustly defended Title IX as a civil rights statute that protects everyone from discrimination on the basis of sex—including men like Reitman.  They have also pointed out the parallels between defenses mounted on behalf of the likes of Harvey Weinstein and the apologetics and victim blaming that Ronell’s supporters are mobilizing in her defense.[6]

The next act in this drama came in mid-August. Reitman filed suit in New York state court against Professor Ronell and NYU.  The facts of Reitman’s case are well pleaded, and the Complaint contains a wealth of assertions that had not previously come to light.  Excerpts from contemporaneous emails flesh out allegations of sexual assault and stalking.[7]  

Predictably, one of Professor Ronell’s defenses has been that all her interactions with Reitman were consensual.  Theirs was, so Ronell, a harmless discourse between “a gay man and a queer woman, [with] a penchant for florid and campy communications.”[8]  Before the Complaint, the media had quoted only a few snippets from these communications. The sheer volume of direct quotations in the Complaint and their earnest sappiness cast more than a little doubt on Ronell’s proffered explanation.  They don’t seem “campy.”  They seem mawkish.

Ronell is apparently an inexhaustible fountain of pet names and pillow talk.  To quote just a few examples, she calls Reitman “sweet companion-Prince,” “my astounding and beautiful Nimrod … sweet kisses & champagne.” She pines for him: “Planting kisses firmly, holding you throughout in gentle accompaniment.” She asks, “my special one … are you in the afterglow of our enchanted visit…” “I feel you with me and you’re preparing already my bubblebath …”[9]  These kinds of statements go on and on, paragraph after quoted paragraph. 

Contemporaneous communications between Reitman and others also show that he complained about Ronell’s behavior and anguished about how to extricate himself from her domination.  

At least at the pleadings stage, this evidence tells a consistent story.  NYU and Ronell will have a chance to tell their version of events, but the volume of facts in the 58-page complaint begs the question how NYU could have absolved Professor Ronell of charges of sexual assault and stalking.  

To date, however, no one has analyzed the legal aspects of the case.  One question jumps out at anyone who has practiced in the Title IX field: namely, why Reitman’s legal team limited his Complaint to state-law claims only. There is no Title IX claim against NYU.

Title IX provides a private right of action against the university, at the very least on a theory of hostile environment.  Reitman appears to have a good retaliation claim as well.  Multiple NYU professors signed the Butler letter, impugning Reitman’s “malicious” motivation and threatening to oppose sanctions against Ronell—at least one being a former NYU Dean of the Graduate School.[19]  

And Reitman does include well-pleaded claims for hostile environment, retaliation, and other theories of discrimination.[20]  Curiously, he does so only under the municipal code of New York City (under the city’s Human Rights Law, NYC Administrative Code § 8-107).  

He also pleads tort claims of negligent infliction of emotional distress and negligence in hiring, supervision, and retention, but no breach of contract—which should also be available given that the policies and handbooks of the university constitute a binding contract under New York law.

There are good reasons why an experienced plaintiff’s attorney might want to avoid a federal Title IX claim.  Reitman’s case as now pleaded will stay in state court and avoid removal to the Southern District of New York.  This may be a conscious attempt to maintain a “home-field advantage” in the state court system.  

It is also possible that Reitman’s attorney is not familiar with potential claims and defenses under Title IX.  Perhaps tellingly, the Complaint asserts that Professor Ronell was the subject of a prior Title IX investigation for raciallydiscriminating against another NYU student.[21]  But Title IX does not cover race discrimination.  (Although such discrimination is clearly actionable under Title VI of the Civil Rights Act of 1964).  

Reitman’s lead attorney, Donald Kravet, is an experienced New York civil litigator.  His practice appears to concentrate chiefly on state-court commercial cases.[22]  But he is clearly no stranger to federal court.  At this stage, he also has plenty of time to amend the Complaint.  The progress of Reitman’s case will continue to be interesting, not only because of contemporary debates over sexual harassment and Title IX but also from a procedural standpoint.


[1]See Complaint, ¶ 123.  https://blog.simplejustice.us/wp-content/uploads/2018/08/FINAL-Complaint-Reitman-v.-Ronell-and-NYU.pdf

[2]Complaint, ¶¶ 31, 32, 71. 

[3]http://leiterreports.typepad.com/blog/2018/06/blaming-the-victim-is-apparently-ok-when-the-accused-is-a-feminist-literary-theorist.html

[4]https://www.nytimes.com/2018/08/13/nyregion/sexual-harassment-nyu-female-professor.html

[5]https://www.chronicle.com/article/New-Disclosures-About-an-NYU/244278

[6]https://slate.com/news-and-politics/2018/08/avital-ronell-harassment-case-some-things-arent-complicated.html

[7]https://blog.simplejustice.us/wp-content/uploads/2018/08/FINAL-Complaint-Reitman-v.-Ronell-and-NYU.pdf

[8]https://www.nytimes.com/2018/08/13/nyregion/sexual-harassment-nyu-female-professor.html

[9]Complaint, ¶ 44.   

[10]See Complaint, ¶ 123.  https://blog.simplejustice.us/wp-content/uploads/2018/08/FINAL-Complaint-Reitman-v.-Ronell-and-NYU.pdf

[11]Complaint, ¶¶ 31, 32, 71. 

[12]http://leiterreports.typepad.com/blog/2018/06/blaming-the-victim-is-apparently-ok-when-the-accused-is-a-feminist-literary-theorist.html

[13]https://www.nytimes.com/2018/08/13/nyregion/sexual-harassment-nyu-female-professor.html

[14]https://www.chronicle.com/article/New-Disclosures-About-an-NYU/244278

[15]https://slate.com/news-and-politics/2018/08/avital-ronell-harassment-case-some-things-arent-complicated.html

[16]https://blog.simplejustice.us/wp-content/uploads/2018/08/FINAL-Complaint-Reitman-v.-Ronell-and-NYU.pdf

[17]https://www.nytimes.com/2018/08/13/nyregion/sexual-harassment-nyu-female-professor.html

[18]Complaint, ¶ 44.   

[19]http://leiterreports.typepad.com/files/butler-letter-for-avital-ronell.doc

[20]Complaint, First through Fifth Cause of Action.

[21]Complaint, ¶ 101.

[22]http://www.kvnylaw.com/representative-cases/

Tuesday
Jun192018

Affirmative Action in Today's Classroom

Reverse discrimination, meritocracy, and color-blind are terms often used in arguments against affirmative action, especially regarding college admissions. Critics say affirmative action is an outdated policy that results in underserving students and lowering the academic prowess of an institution. Many opponents even claim they share Dr. Martin Luther King’s dream of a world without race and that affirmative action is hindering our country from reaching that point. If our society were truly post-racial however we would not see college graduation rates varying so widely between races, all other considerations constant.

Affirmative action is any effort made to improve educational or economic opportunities for historically disadvantaged groups such as people of color and women. This can include recruitment and retention efforts among others. According to a Gallup poll, the nation is split fairly evenly on the issue of affirmative action, but when the question is posed including the term “racial preferences” support drops as low as 38 percent.

Affirmative action, though it was not always called that, dates back to the 14th amendment which calls for equal state protection of similarly situated persons. This really took hold within the workforce in the 60s when Presidents Kennedy and Johnson passed executive orders explicitly referring to race and sex respectively and for the first time using the term affirmative action. It wasn’t until the Brown v. Board ruling when notes of affirmative action began to take hold in education. Like most rulings and laws, things did not change overnight. It was 24 years later in Bakke v. University of California when affirmative action began to get fleshed out in higher education as the court declared race quotas unconstitutional. The focus on affirmative action has largely been a black and white binary argument until recently. A nonprofit group, Students for Fair Admissions, believe “most competitive universities are not in compliance” with the Supreme Court’s decision in Fisher v. University of Texas. Students for Fair Admissions has a current lawsuit against Harvard claiming racial balancing is occurring, specifically regarding Asian students. While the proportion of Asian applicants rise, the proportion admitted has stayed rather constant. Harvard is arguing that they do not put quotas on their student population but that they must pay attention to maintain a truly diverse student body.

Although the narrative of affirmative action is changing, the opponents of affirmative action have maintained a whiteness that cannot be ignored. When the question of affirmative action for women is posed, there is support. When the question of affirmative action based on race is raised, you see more opposition. People feel as though something is being taken from them for opportunity to be given to others. These feelings can be explained as white supremacy. In this context white supremacy refers to a society in which power, privilege, and entitlement are widespread among white people. White people are not uniformly powerful, one must consider intersectionality, but if the focus remains on correcting overt racism and not the systems that perpetuate privilege, change will not be seen.

A landmark case for affirmative action, Grutter v. Bollinger defined the benefits of diversity as promoting "cross-racial understanding," and learning outcomes that "better prepare students for an increasingly diverse workforce and society," and deconstructing racial stereotypes. So, while affirmative action has been seen as taking from the hardworking and giving to an undeserving person of color, we must consider who affirmative action is really benefitting. Is it the populations who are criticized and told they cannot succeed without affirmative action measures, or is it the population that continues to hold power in this society and leaves the classroom a more well-rounded individual because of it?

This post was authored by Ms. Micayla Bean, a masters student in Higher Education Administration at The University of Texas at San Antonio and a graduate assistant in Student Activities. 

Wednesday
Apr182018

College Justice, Where Are You? 

Imagine being a college student who has falsely been accused of sexual assault; then imagine you were suspended or expelled from college simply because of these allegations. No hearing, no courts, no due process. College is supposed to be a new and exciting time but for a third of male college students this is not the case. It is estimated that 1 in 3 male college students will suffer this fate.  False accusations are occurring more than they should and the sad part is these students will be failed by a system which should be equally protecting them.

Under Title IX of the Education Amendments of 1972, campuses are required to prevent and remedy sexual assault cases or they face losing federal funding. In the past, campuses have had a reputation for not taking students’ complaints of sexual assault seriously; so, federal mandates have been put in place beginning with the Obama administration reinterpreting Title IX to the U.S. Department of Education’s Dear Colleague Letter. These mandates have put pressure on campus to find more accused students responsible, instead of the truth of the allegations. According to the Department of Education’s regulations, state schools must have a “prompt and equitable” procedure for resolving sexual assault complaints. These mandates also included adopting a “preponderance of evidence” standard. Under the preponderance of evidence standard due process is non- existent, meaning a hearing is not required, the accused does not have the right to appeal or have an attorney, and campuses are discouraged from permitting cross-examinations. Because of these mandates and regulations, the accused students are being suspended and expelled without the protections they would normally receive in the criminal justice system.

Secretary of Education Betsy DeVos announced she is moving to end the sexual assault procedures on campus set forth by the Obama administration. DeVos mentioned the current Title IX policies often denied due process to the accused, and that is what they are looking to change. Some feel this allows campuses to weaken their procedures for handling sexual assault cases and makes it more difficult for victims to seek justice. While others feel it will allow the accused a fair investigation.

There are detrimental effects for those who have been falsely accused of sexual assaults. In the case of  Andrew Doe v Ole Miss, a third party, who is unnamed, claimed “Andrew Doe” sexually assaulted “Bethany Roe.” Although Roe and Andrew both claimed they had consensual sex, Doe was never formally charged with a crime and Roe never filed a complaint. The University Judicial Council found Andrew guilty and expelled him from the university. The charge is permanently on his record. In Zackary Hunt vs. Denison University and Sophia Celeste Lee,  Zackary Hunt lost a $30,000 scholarship and his place on the University’s football team when he was falsely accused of sexual assault. In Joshua Strange v Auburn University, a grand jury failed to indict Joshua Strange in criminal court but Auburn University found him in violation of the student code of conduct and expelled him from the University. 

Over the last eight years more students are starting to sue colleges when they feel campuses violated their rights under Title IX.  In the case John Doe v. Swarthmore the college was accused of violating “John Doe’s” student rights after he was falsely accused of sexual misconduct. John Doe won and the suspension was lifted. This is not the norm; however, as cases seldom win in criminal court, but the costs for colleges to defend themselves is adding up. Nothing can replace the reputation lost or the mental and emotional toll false accusations take on accused students. With the help from lawyers, parents, and advocacy groups falsely accused students can fight back. While these students believe, their rights have been taken away, anti-rape advocates see it a different way. Anti-rape advocates believe that colleges are now paying more attention to sexual assaults on campuses and offenders are starting to cry foul. They believe most people who are accused of sexual assault would contend that they are innocent. 

Sexual assault on campus is a serious problem. There are not many educational issues debated more than how colleges should deal with sexual misconduct. Of course, Title IX has its challenges, all policies do, but regardless, protocols should be clear that ALL students are protected equally. Have efforts to protect sexual assault victims lead to policies that infringe on the civil right of men?  

This post was authored by Jessica Sherwood, a masters student in Higher Education Administration at The University of Texas at San Antonio. 

Monday
Apr162018

The University is to Blame for My Child’s Death

Student suicide is a topic that needs further discussion considering suicide is the second leading cause of death among college students. Student suicide received national attention when universities made attempts at suicide prevention by placing physical barriers that close access to common suicide locations. The popularity of the Netflix show “Thirteen Reasons Why” also brought a lot of attention to the issue, so much so that universities made dedicated websites to address students’ concerns. A large factor for these high suicide rates are all the pressures college students face, both inside and outside of the classroom. Since college students often live on campus and are seen as members of the campus community, some feel that universities are to blame when students take their own life.

Historically, colleges have not been held responsible for the suicides of their students. For a college to be held liable for their student’s suicide, they need to have had a duty to prevent the suicide. For an organization, such as a college, to have a duty to prevent a suicide they need to have a “special relationship” with the student and have knowledge of the student’s suicidal tendencies. Colleges were not believed to have a “special relationship” with students since this was typically reserved for professionals, such as doctors and psychiatrists, who are directly involved in a person’s health. In Jain v. The State of Iowa and White v. University of Wyoming, the courts reaffirmed this notion when they found that colleges had no legal responsibility to prevent suicide since they are not viewed as healthcare providers. However, future court cases challenged what constitutes a “special relationship” between students and the schools they attend, which have created a dilemma for colleges.

In Schieszler v. Ferrum College the courts changed the finding that colleges do not have a duty to protect students from suicide when they ruled that Ferrum College was guilty of negligence in their student’s death. The school knew about the student’s mental health issues and did not do enough to provide care to the student. Shortly after this case, in Shin v. Massachusetts Institute of Technology, the school was placed in the same situation due to the knowledge the counseling service staff had of the student’s suicidal tendencies. The courts found that the counseling staff had a duty to protect the student, but the school decided to settle the case out of court instead of going to trial. These cases, among others, set a precedence that schools who have knowledge of a student’s likelihood to commit suicide can be held responsible if the student does take their own life.

Liability for student suicide puts schools in a tough situation when trying to formulate ways to prevent student suicides. Some colleges have policies that allow them to prevent students from attending school or living on campus to avoid the risk of having students commit suicide on campus noting that they are a danger to themselves or others. This type of policy can be difficult since dismissing students for suicidal behavior has been challenged in the courts as a violation of the Americans with Disabilities Act (ADA). Colleges could refer students to outside resources instead but this might make it more difficult for students to receive adequate help or make them less likely to pursue assistance. On the other hand, colleges might want to have a very active role and provide comprehensive services to students. In doing so, they then accept the responsibility of having a duty to protect the student. If the student does commit suicide, the college runs the risk of facing lawsuits for not protecting the student.

Should schools take a hands-on approach or leave severe mental health issues to outside services? There is no standard answer to this question but as suicide garners more national attention, hopefully school practices will get more attention and their efforts will find a happy medium.

This post was authored by Carlos Velez, a masters student in Higher Education Administration at The University of Texas at San Antonio and is an advisor at Northwest Vista College. 

Monday
Apr162018

Fraternity pledge gone fatal

Join a fraternity or sorority it will give you a social network, everlasting bond, brother hood, strong lifelong friendships and career advancements they say. Obviously, students can accomplish all these things without pledging and being part of an organization. A big part of pledging is becoming familiar with the fraternity: learning about every single member and learning about the history of the fraternity and the Greek system. The other big part of pledging is proving oneself worthy to be a brother. Will the pledge uphold the ideals of the fraternity? Will he be someone they are proud to call a brother? What happens when you pledge?

Hazing in college has been around since 387 B.C, at Plato’s Academy. In some cases, it has been around as long as the organizations themselves were established. More people have taken notice of the extreme college hazing occurring at universities. Some are rituals and others considered as hazing. Hazing, is any intentional, knowing, or reckless act occurring on or off the campus of an educational institution, directed against a student, that endangers the mental or physical health or safety of a student for the purpose of pledging, being initiated into, affiliating with, holding office in, or maintaining membership in an organization. What is the difference between hazing and bullying? Is it illegal?

At this time, there are no federal laws that look at the issue of hazing. Federal anti-hazing law has been proposed but never made it to the floor of the House of Representatives or US Senate. Most states have laws regarding hazing, 44 out of 50 states have laws . Alaska, Montana, South Dakota, Hawaii, Wyoming, and New Mexico do not have anti-hazing laws. The University of New Mexico, has a zero tolerance policy for hazing but the state of New Mexico does not have a law prohibiting hazing. States have different definitions and punishments for hazing there is no commonality among universities on how they handle hazing incidents that occur on campus. Without laws is there no violation? Is it not a crime?

Some of the organizations blur the lines between hazing and torture. For example, a TCU sophomore of Kappa Sigma consented to some of the branding of his backside. After the student fell into a heavy, alcohol-induced sleep, his "brothers" took liberties with his earlier consent. The Kappa Sigma members pulled his shorts down and continued the branding process, targeting another area of the young man's rear while knocked out without consent.  Question is, off-campus house/chapter events governed by University policies. A University of Texas Lambda Phi Epsilon pledge died from acute alcohol poisoning. Six pledge brothers were required to chug a handle of Bacardi rum while more than 30 fraternity brothers chanted along, challenging the pledges' manhood and loyalty to Lambda Phi Epsilon. His face was then marked numerous anti-gay epithets and obscene drawings.

Universities prefer to turn a blind eye to hazing because they want to avoid the public scrutiny that comes with being at the center of a major campus crime. To help avoid public scrutiny, some universities use the Family Educational Rights and Privacy Act ("FERPA") as a shield to avoid reporting hazing incidents that occur among university. In the Texas Education Code in  to Section 37.153 , if an organization commits an offense under this section, hazing is a misdemeanor. Is the cost of a life a misdemeanor charge and a $5,000 fine? What is the difference between bullying and hazing? Who is to blame? 

This post was authored by Jessica Redwine, a masters student in Higher Education Administration at The University of Texas at San Antonio and a Pre-K teacher in the Edgewood Independent School District.