Letizia Palumbo is a visiting scholar at Columbia Law School, and a Ph.D. Candidate at the University of Palermo, Department of Politics, Law and Society.  This fall at Columbia she is researching the limits of current feminist interpretations of sex-trafficking developed around the “victim” versus “agency” dichotomy.  These are her thoughts about two recent cases of sexual violence in Italy:

Last October 17th in Italy, the Court of Appeals of Rome issued a sentence declaring that the rape of a sex worker is less punishable than the rape of a woman that does not choose to be a prostitute. The day after, October 18th, the Juvenile Court of Rome decided to suspend the trial of eight Italian boys who raped a young girl of 14. These two sentences, although not final at the time of this writing, constitute yet another step backwards in the recognition and strengthening of constitutional and legal rights of women in Italy.

Let’s examine the first case. On November 2008, an Italian man of 31 years old kidnapped, robbed and raped a Romanian prostitute. On March 2009, the man was charged with kidnapping, sexual violence and robbery, and was condemned to seven years imprisonment. Nevertheless the most recent sentence by the Court of Appeals of Rome on October 18th reduced his jail time from seven to three years and four months.

The main idea behind this decision was that sex workers by choosing to “work on the street,renounce their physical and moral integrity.” The physical, moral and legal offences to a prostitute cannot be considered equal to that of woman who is “not a prostitute” and, therefore, the crime in question should be judged in light of these attenuating circumstances.

It is clear from this perspective adopted by the Court that women must conform to the attitudes/behaviours that are morally accepted by society. Failing to do so, they run the risk of being punished (by being raped).  This means that men can feel empowered to violate women’s autonomy and not respect the rights of sex-workers because sex workers have neither social nor legal legitimacy.  This sentence, thus, implies different punishments for two kinds of rape. There are rapes of “series A” which have to be strongly punished, and then there are those of “series B” which require less punishment because the victim’s moral transgression or behavior encourages sexual violence.

The “series B” category could also be applied to the case of the young girl raped by eight boys in August 2007, in Castro Montalto – a small town close to Viterbo (Rome).  The eight boys, all juveniles at the time, met a 15 year old girl at a party, led her out into the woods, and gang raped her.  A few days later, the girl reported the crime and the boys were identified.  To great public outcry, the mayor of Montalto di Castro provided 20,000 euro to cover legal costs for six of the eight boys -indeed one of the boys seemed to be his nephew.   As mentioned at the beginning of this article, last October 18th the Juvenile Court of Rome settled to suspend the trial, deciding to “put the boys under observation” for 24 months. The young men (two of which are now 18 years old) will have to follow a program of support and control and at the end of this period must demonstrate sincere penitence and apologize to the victim and her family for their deed.  If they pass this test, the court will strike the crime from their record.

Rape of the Sabine Women[/caption]Not only have feminist groups raised their voices in protest, but the public at large has also expressed its indignation over this sentence, whose passing so clearly demonstrates how little traction feminist politics are getting in Italy.  In fact the decision of the Court of Rome shows, for the umpteenth time, an institutional failure to adequately address the issue of violence against women.  While the young men will be absolved and assisted in their reintroduction into society, their victim has been abandoned.  No institution has thought about the social rehabilitation of the girl, who is so traumatized that she has dropped out of school.

Public furor has also been directed at many of the people of Montalto di Castro, who have shown solidarity with the rapists.  One local said “these guys are good boys, they don’t need to rape rather it was this girl that the same day, before of the party, had sex with another boy….”  Someone else commented “if I were 17 years old, I would line up to get with her….the girl is not serious. It is her fault.”  Even the mayor of the city weighed in, implying that native-born Italians are genetically incapable of rape, although for the immigrant population it is another story altogether. “Rape exists only when committed by Romanians” he said, and then added “the only animals in our region are the Romanian immigrants. They’ve got rape in their blood.”  When the Romanian community expressed its displeasure at his comments, he denied ever saying them. The victim’s mother, recognizing that this case is not without its racial and cultural overtones, commented that “my daughter is not getting justice because the boys are Italians.”

The disconcerting comments by the locals of Castro Montalto, along with the decisions by the Court of Appeal of Rome and the Juvenile Court of Rome, demonstrate that after many years of feminist and women’s struggles, Italian public opinion and its institutions still seem to adhere to the idea that women bring sexual violence upon themselves through their behavior.  In other words, when a woman decides to act in a manner not sanctioned by dominant values, her free expression implies a de facto sexual availability, which can be “conquered”, if need be, by means of violence.

In this interpretive light, an act of violence against a woman is, paradoxically, not a consequence of her oppression, but her freedom.  In fact, the freedom of women (and the resulting anxiety that women no longer carry on traditional cultural and national values) compels men to exercise their power and control through violence.  In short, violence against women increases proportionally to the amount of freedom and power that women acquire.

Violence against women is thus a manifestation of men’s fear about women’s freedom and mobility. This fear, as Italian scholar Tamar Pitch stresses, is “closely linked to fear about the future and the ‘other,’ which leads to the search for – or even the fabrication of- pseudo-homogeneous, pseudo-traditional cultural identities.” As a result, such sentiments lead to the criminalization of migrants, who are potential menaces to national “values.”

From this perspective, the two aforementioned cases illustrate perfectly how in Italy legal and political strategies often use the issue of rape in order to underline the boundaries between “we” and the “others”, “citizens” and “migrants”, “good women” and “bad women.”  According to the reigning criteria in the Italian legal and political discourse, sexual violence most frequently occurs either when a woman chooses to act  “inappropriately,” thus imperiling herself (considering specifically sex-workers), or when migrants rape white women (thus leading to strengthened security measures against immigration).

Once again, in Italy the body of women is used by the political and legal discourse to reinforce and reshape racist and/or moral ideologies and stereotypes.  And once again what is ignored is the structural inequality of power that creates the condition for the social control over women and also undermines women’s security.  And what is lost in the argument, once again, is the real suffering of women.

Milli Kanani Hansen, currently a second year law student at Columbia Law School is on the editorial board of the Human Rights Law Review, is the Research Chair for Rights Link (is a human rights law student organization at Columbia Law School that provides free legal research services to human rights and public interest law groups both domestically and around the world) and is working on a student note (a student law review article) on the lack of rights that victims of sexual assault crimes have over the DNA evidence collected from their bodies  — hardly any states require law enforcement agencies to inform a victim when his/her rape kit is not tested, a victim does not have a right to possess/take her rape kit from police custody, and most law enforcement officers don’t communicate with victims between the time of the assault and the trial, if there is one.  She read the article in today’s New York Times,  Indicting DNA Profiles Is Vital in Old Rape Cases, by Al Baker and has these reactions:

Every two minutes, someone is raped in the United States. Most of these victims consent to the collection of physical evidence from their bodies, or a “rape kit”. Rape kits can help identify unknown assailants, confirm the presence of a known suspect’s DNA, corroborate a victim’s version of events in a contested assault, and exonerate innocent suspects.

In the last decade, law enforcement officers and prosecutors in New York City have been at the forefront of finding ways to maximize the evidentiary value of these rape kits. After discovering a backlog of over 16,000 untested rape kits in police storage facilities in 1999, the New York Police Department (NYPD) and the Manhattan District Attorney’s office ensured that the back-log was eliminated and implemented a policy to test all rape kits. This testing of backlogged kits resulted in over 2,000 cold hits, and, since 2003, the NYPD has seen its arrest rate for rape increase significantly – from 40 percent to 70 percent of all reported cases.

A New York Times article published in today’s paper highlights the success Manhattan prosecutors have had in using the evidence collected from those rape kits to identify and convict rapists in cases with no known suspects. Aware that the statute of limitations prevented cases from being brought against assailants who were unknown, prosecutors have indicted the rapist’s DNA with the hopes of later being able to connect that DNA to an individual. While the statute of limitations for certain sex crimes was lifted in 2006, these DNA indictments are important for the rape cases prior to 2006 in which there is no named suspect.

While the use of DNA evidence to exonerate wrongfully convicted individuals has gotten quite a bit of attention over the past years, the rights of victims to have DNA evidence used effectively has largely been ignored. A study funded by the National Institute of Justice found that evidence from approximately 169,000 rape cases still sits in law enforcement storage facilities. A Bureau of Justice Statistics bulletin suggests that here may be thousands of more samples that sit in crime lab storage facilities. Because jurisdictions are not required to report or publish the number of untested samples in their possession, it is difficult to get any sort of accurate picture of the magnitude of the problem in the United States. A report published by Human Rights Watch in March of 2009 found that, in Los Angeles County alone, there were over 12,500 untested rape kits in police evidence facilities. Over 1,200 of those kits were from unsolved cases in which the attacker was a stranger to the victim – the type of case in which DNA evidence can be most probative or helpful.

The process of collecting a rape kit can be invasive and uncomfortable, often taking four to six hours to complete. While victims often leave with the expectation that their rape kits will be used by law enforcement officials to further their cases, most victims don’t know that thousands of rape kits sit untested in police storage facilities. Each of those kits represents a lost opportunity for justice for victims of rape.

Federal efforts to address this problem, while perhaps well-intentioned, have been woefully weak. The Debbie Smith DNA Backlog Grant Program (42 U.S.C. § 14135), originally enacted in 2000 and reauthorized just last year, gives money to jurisdictions to address the backlog of DNA testing. Despite being named for a rape victim who, as a result of the testing backlog, waited six years before having her assailant identified, the federal program does not effectively bring relief for most rape victims. Law enforcement agencies are not required to use any of the money obtained through the program for the testing of rape kits, and the vague reporting requirements connected with the grant don’t facilitate congressional oversight. A lack of political will at the local level contributes to the perpetuation of the problem. An October 2008 audit of the Los Angles city crime lab, for instance, revealed that over $2 million dollars of federal funding went unused even as the backlog of rape continued to grow. In my own analysis of the reports submitted by jurisdictions receiving federal funds, the results have been discouraging. Of the 59 cities that actually provided data on the number of DNA cases backlogged in their jurisdiction, over half actually had an increase in the backlog during the grant period.

Testing every rape kit and effectively using the evidence collected to secure the rights of sexual assault victims will require both financial commitment and initiative by law enforcement agencies. The pay-off is not only justice for victims, but a reduction in the number of assailants allowed to escape punishment. As a Manhattan district attorney in the sex crimes unit noted, “We had the political will to [test all rape kits], and now, the policy is a no-brainer given all the rapes we have been able to solve and prosecute.” Stronger federal incentives for jurisdictions to test rape kits might help. Public pressure on local law enforcement agencies to address the problem is essential. Until then, all rape victims will not have the access to justice they deserve.

The Supreme Court issued a decision today authored by Justice David Souter that is likely his last opinion on the Court.   The Court decided Safford Unified School District v. Redding 8-1 that the Fourth Amendment’s prohibition against unreasonable searches and seizures was violated when public school officials searched a 13 year old girl by having her strip down to her underpants and bra and shake them to see if any “contraband pills” dropped out.  None did.  But the “none did” part wasn’t what the case turned on – instead the question was the reasonableness of asking a young girl to stand almost naked at school and prove that she hadn’t hidden drugs in her underwear when a classmate had told school officials that she had gotten prescription drugs from the girl searched.  It’s important to note that the drugs in question were not Quaaludes, speed, ecstasy or other street drugs, or even “recreational” prescription drugs such as vicodin or oxycontin, but were much more benign pain killers – prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve.  Girls with bad menstrual cramps often use these drugs – you don’t/can’t get high from them.

But there she stood, shaking her bra and undies for school officials nonetheless.  As Justice Thomas argued in his dissent, wherever a pill could fit, it’s reasonable to search (he used a baseball bat in a pocket metaphor that I’ll skip for now).

Eight members of the Supreme Court felt the undie-shaking search was unreasonable under the law of the Fourth Amendment – only Justice Thomas held the view that it wasn’t, as he was the lone dissenter.  (I’ll resist the urge to think out loud about Justice Thomas’ history of sexual exhibitionism and the ironies of his dissent in this case.  It’s hard, but I’ll leave it to others to connect the dots here.)  Justice Thomas’ dissent boils down to this: discipline and rule enforcement in schools should not be governed by the Fourth Amendment (or the Equal Protection clause by implication) because school officials should be understood as having the unfettered authority parents have to discipline and regulate their children’s behavior (in loco parentis, in legal lingo).  If Savana Redding’s parents didn’t like the “zero tolerance – search your undies if you’re a suspect” policy they should have moved her daughter to another school.  (In fact, that’s what they did given how outrageous they found the behavior.)  This kind of “love it or leave it” approach to the scope of the Constitution defies belief: “hey, if you think you should have a right to better treatment, go find other people who share your views and move there.”

Chief Justice Roberts could have assigned the case to a more conservative justice than Justice Souter given that he, Roberts, was in the majority, but he didn’t.  So there is some significance to the fact that Justice Souter wrote the opinion for the overwhelming majority of the Court four days before his last day as a Supreme Court justice.   Justice Souter is no stranger to sex assault/civil rights cases, and one reading of the facts is that what happened to Savana Redding was a form of sexual assault (I don’t hold this view, but you almost feel that Souter does when you read the opinion).   Twelve years ago, Justice Souter wrote the opinion for an unanimous Court finding that Judge David Lanier could be tried for violating the civil rights of women who were told that Lanier would treat their cases favorably if they performed sexual favors for him.  Read about the case here.

What’s different about the Redding case, when compared with the Lanier case, and what might suggest that it will make a difference to have another woman on the Court (or at least a man like Justice Stevens who seems to “get” these issues), was that the Supreme Court found in Redding, unlike in Lanier, that the school officials’ conduct was not “constitutionally outrageous.”  This means that the school officials will be cut a break in this case becauase they, unlike Judge Lanier, might have been reasonably mistaken as to whether it was ok to subject Savana to a strip search looking for Aleve-like drugs based on an unsubstantiated tip.   Justices Ginsburg and Stevens wrote separately to insist that any reasonable school official should have known that this conduct ran afoul of the Fourth Amendment.  Press coverage of the oral argument in the case underscored Justice Ginsburg’s outrage at her male colleagues’ jokes about stuffing things down their underwear in junior high school.  As Dahlia Lithwick blogged at Slate about the case today, after the towel-snapping tone of the oral argument, one wonders what Justices Ginsburg and Stevens said to their colleagues in conference that got them to rule 8-1 in Redding’s favor, and got Souter the job of writing the opinion on his way out the door.

Today, the House of Representatives voted on a bill that had come before them in 2007 and failed, the Matthew Shepard Act (officially, the Local Law Enforcement Hate Crimes Prevention Act of 2009 or LLEHCPA).  Last Friday the Act passed the House Judiciary Committee by a vote of 15–12.  Today, the House considered and passed the act, 249 to 175.   The bill would:

• expand the 1969 United States federal hate-crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability;
• remove the current prerequisite that the victim be engaging in a federally-protected activity, like voting or going to school;
• give federal authorities greater ability to engage in hate crimes investigations that local authorities choose not to pursue;
• provide $10 million in funding for 2008 and 2009 to help State and local agencies pay for investigating and prosecuting hate crimes;
• require the FBI to track statistics on hate crimes against transgender people (statistics for the other groups are already tracked).

It takes quite a bit to move me to sadness and tears while wanting to hurt someone.  Today, Representative Virginia Foxx, (R. N.C.),  stood on the floor of Congress before the mother of Matthew Shepard, and offered the following gratuitously hateful comments about the  murder of Mrs. Shepard’s  son:

I also would like to point out that there was a bill — the hate crimes bill that’s called the Matthew Shepard bill is named after a very unfortunate incident that happened where a young man was killed, but we know that that young man was killed in the commitment of a robbery. It wasn’t because he was gay.  This — the bill was named for him, hate crimes bill was named for him, but it’s really a hoax that that continues to be used as an excuse for passing these bills.

I am breathless just reading this statement.  Can you imagine how Matthew’s mother felt hearing it?   Rep. John Lewis, who knows a little bit (sic) about hate crimes and lynching, responded: “She should be ashamed.  That is unreal, unbelievable. The law enforcement people and almost every reasonable person I know believes he was murdered because he was gay.”

Every not-insane, not-hateful person knows that Matthew Shepard was ruthlessly murdered on account of his being gay.  The men who tortured and killed him said so, witnesses said so.  And the facts said so.  No one who was “merely” a robber would be have been subjected to the treatment Matthew got.  In fact, they men who killed him,  Aaron McKinney and Russell Henderson, admitted to planning to rob Matthew – not the other way around.   The evidence showed that he was robbed, pistol whipped, tortured, tied to a fence in a remote, rural area, and left to die. McKinney and Henderson also found out his address and intended to rob his home. Still tied to the fence, Shepard was discovered eighteen hours later who a man at first thought that Shepard was a scarecrow. At the time of discovery, Shepard was still alive, but in a coma.

It moves me to weep, to cry out, to want to get on the next plane to North Carolina that we live in a country where someone like Foxx can deny on the floor of the House in front of Matthew Shepard’s mother, the violent, pervasive, enduring reality of the violence against gay, lesbian and trans youth while blaming them for the violence they suffer day after day after day.

May the passage of this bill, and President Obama’s signature making it law, put Foxx and her supporters to shame.   But her ignorance and hatred toward gay people does not exhaust the full scope of her insensitivities.   Her voting record reveals votes against Katrina Relief, and the Voting Rights Act, while instead she, a former Christmas Tree farmer,  saw her time better spent introducing bills such as a joint resolution praising the Christmas Tree Industry as a national treasure.

The “Values” link on Rep. Foxx’s website describes her ethical commitments:

Protecting and encouraging a strong family is of vital importance to our nation’s progress and prosperity. We should continue to promote and push for policies in Washington that allow families to flourish and that protect life at any and all stages. Our nation was based on Judeo-Christian values and we must never turn our backs on these principles. While the First Amendment to the Constitution explicitly states that Congress shall make no law establishing a state religion, it also prohibits Congress from prohibiting the free exercise thereof. The First Amendment guarantees Americans the freedom to think, speak, and believe as they choose. To force Americans to check their religious beliefs at the door when engaging in any sort of public debate is wrong. I will fight to maintain our rights and to honor and carry on our religious heritage.

It’s one thing to say that you can’t support same-sex marriage because the bible says not to.  It’s another to say that your Judeo-Christian values require you to deny, if not endorse, deadly violence against innocent young people.  Shame.  Shame.  Shame.

Last Friday night, the Syracuse men’s basketball team was routed by Oklahoma, losing 84-71 – in no small measure because of the shooting collapse of Syracuse’s star guard Eric Devendorf, who finished the game with only 8 points.

Why should readers of a Gender and Sexuality Law blog care about the Syracuse men’s basketball team?  Well, the Syracuse team got as far as they did because Devendorf escaped any meaningful punishment from the University after he punched Kimberly Smith, an SU junior, in the face last November.  In fact, almost the entire men’s basketball team was involved in this attack – they surrounded her car, kicked and dented the car, yelled at her, and when she got out Devendorf punched her.  She asked the Syracuse Police to initiate criminal proceedings against him but they preferred to refer the case over to  SU’s  Office of Judicial Affairs – a student-run group that weighs minor cases on campus.  At the hearing on the incident, 6′ 4″ Devendorf claimed that he had been defending himself when he hit Smith.

The Office of Judical Affairs recommended that in light of the fact that Devendorf was already on probation for hitting another student the previous spring, Devendorf be suspended for the remainder of the year - meaning that he couldn’t play, go to classes or set foot on campus for the remainder of the academic year.  This might have been the end of his NCAA and professional basketball career.  Devendorf appealed the ruling, and the punishment was reduced to 40 hours of community service, and he would be allowed to return to school in the spring ‘09 semester.   He did all this, missed 2 games and all was forgiven.  Syracuse was ranked third in the Southern regional conference when the bracket was announced and they did well until they ran into the Sooners last Friday night.  While the Orangemen were winning TV commentators highlighted Devendorf’s athletic ability and coolness under pressure – he was a team leader and a charismatic player.

Devendorf’s lenient treatment from the Syracuse Police and the University’s disciplinary board is, of course, not unusual for a top collegiate athlete who gets into trouble.  Examples abound of charges of sexual misconduct or violence being swept under the rug when taking them seriously might jeopardize a college or university’s athletic program.

I was involved in an incident here at Columbia several years back when a female student accused several members of the Columbia Men’s Basketball team of sexual assault.  After a hearing before our internal disciplinary board the student/athletes were also given community service as a penalty.  And what service were they instructed to perform?  Educating the other members of the basketball team on the problem of sexual assault.  Can’t you just picture the guffaws and innuendo-laden jokes that surrounded these guys’ “presentation” to their teammates on Columbia’s policy against sexual assault and harassment?

“They probably think I’m an a-hole, man,” said Devendorf after he hit Kimberly Smith.  “I know they do. I know everybody thinks I’m an a-hole.”  Yep.  Everyone except the Syracuse Basketball coach Jim Boeheim, the Syracuse Athletic Department and the University Appeals Board.

Until our colleges and universities start taking their student disciplinary codes seriously – including parts of the codes dealing with violence and sexual assault – our campuses will continue to be unsafe spaces for female students, whose safety must take a back seat to the university administration’s drive to win basketball, football, and lacrosse titles.

- Katherine Franke

Columbia’s Sexuality and Gender Law Clinic recently filed a brief in the European Court of Human Rights involving the right of victims of sex trafficking to a remedy under various European and International Laws.  My recent article in the European Lawyer magazine, which takes a somewhat different view from Professor Franke’s post, elaborates the trafficking/slavery linkage.  Here’s an excerpt (you can link to the full article here ):

The UK officially abolished the trans-Atlantic slave trade more than 250 years ago, but it turns out that the practice is far from dead.
A case recently filed in the European Court of Human Rights (ECtHR), M. v the United Kingdom, shows just how vigorous and heinous the slave trade continues to be. But the trade’s character has changed, with £5 billion generated each year largely from traffickers’ control of women and children, making trafficking in persons the second largest criminal activity in the world.
With clearer attention to the facts and more developed identification systems, the international community has begun to see these women and children for what they are – victims of severe human rights abuses.  M v the United Kingdom thus offers an important opportunity, during a crucial moment, for the ECtHR to clarify the obligations of Council of Europe member states to trafficking victims. A ruling in M’s favour would reinforce that sex trafficking is a modern form of slavery and should be treated with as much seriousness as we treat the trans-Atlantic slave trade of the past. It would also clarify and underscore states’ responsibilities to victims in their territories who have suffered human rights abuses, including the duty not to act in ways that expose victims to further harm.

From the Reproductive Rights Law Prof Blog:

Obama to Keep Abstinence-Only AIDS Coordinator, by Jodi Jacobson:

Confirming month-old rumors, a high-level source reported last night that President-Elect Obama’s transition team has asked Ambassador Mark Dybul to remain in place as Global AIDS Coordinator, despite strong opposition by treatment access, HIV prevention, and women’s rights advocates across the global HIV and AIDS community, many of whom signed letters calling for a change in PEPFAR leadership at this crucial time.  While keeping Dybul on may be a stopgap measure for a new Administration dealing with huge problems across the board, it is a decision that signals we may not be getting “the change we need” in global AIDS policies.

Dybul, a medical doctor, is strongly associated with the failed policies of the President’s Emergency Plan for AIDS Relief (PEPFAR), including those that flout both evidence and human rights, and that neglect the role of stigma, discrimination and gender equity in the spread of HIV.

On Tuesday, the Supreme Court heard oral argument in Fitzgerald v. Barnstable School Committee – a case involving a girl in the kindergarten at Hyannis West Elementary School who claimed that every time she wore a skirt to school, an eight-year-old third grade boy on the school bus would force her to lift her skirt, pull down her underpants, or spread her legs, while other students laughed at her. She charged the school with sex discrimination in connection with their investigation of these allegations. Her complaint made two separate sex discrimination claims: one under the Equal Protection clause of the 14th Amendment and the other under Title IX of the 1972 Education Amendments – a law prohibiting sex discrimination in any educational program that receives federal funding.

The issue before the Supreme Court did not address the merits of her claim, rather it raised a technical, yet extremely important, issue of federal anti-discrimination law: when Congress enacted Title IX, did it intend it to be the only protection students would have against sex discrimination in education, thereby eliminating a claim under the 14th Amendment’s Equal Protection clause? (The technical formulation of the question is whether the implied right of action contained in Title IX precludes a §1983 Equal Protection cause of action?) The federal circuit courts have split on this question, and the Supreme Court took the case to resolve this split. A fuller summary of the case is available here.

Why is the case important? It is a huge deal that the Court could find that Title IX – a statute that Congress enacted to provide protections against sex discrimination in education in addition to those contained in the Constitution – would be read a generation later to eliminate the application of the Constitution in schools.

Unfortunately, the oral argument before the Supreme Court this week didn’t go so well. The transcript is available here. Justice Breyer asked if it would be possible to imagine a case in which an institution would be found not to have violated Title IX, but still could be held to have violated the Constitution. Kay Hodge, the lawyer representing the school district, said she could not imagine such a case. In this case, she added, there could not be claims under both Title IX and the Constitution because the parents’ claims under both were “virtually identical.”

But they aren’t virtually identical.

First, the plaintiff alleges that the school discriminated on the basis of sex both in the course of the investigation and in the proposed remedy. This theory may not state a Title IX violation because it may not establish that “the harassment deprived [respondent] of educational opportunities or benefits,” a requirement of a Title IX claim. There is, however, no such requirement for constitutional equal protection claims; investigations or remedies that are discriminatory may trigger a constitutional violation regardless of whether the student’s educational opportunities were disrupted.

Second, under an Equal Protection theory, plaintiff could have established that the school had a practice or policy of being more responsive to complaints of bullying lodged by male victims than to claims of harassment advanced by female victims, something much more difficult to make out under Title IX.

The Sixth, Eighth, and Tenth Circuits have held that Title IX does not preempt constitutional claims against schools. In contrast, the First, Second, Third, and Seventh Circuits have held that Title IX does foreclose constitutional claims arising from the same incident that prompted suit under Title IX. Only once before has the Supreme Court found that a statute like Title IX signaled Congress’ intent to preclude a Constitutional claim- in Smith v. Robinson. In that case Congress took little time to tell the Court that it had gotten the issue wrong, promptly passing a law clarifying that it did not intend to preclude Constitutional claims when it passed civil rights statutes expanding the rights of students to an education free from discrimination.

Accepting the school’s argument would mean that Congress, by enacting a statute that was intended to provide additional protections for victims of sex discrimination, meant to withdraw all other remedies for the vindication of existing constitutional rights even though the old and new remedies differ significantly in scope. It would also mean that Congress intended to preclude use of § 1983 to enforce the Constitution by enacting a statute that provides no express private rights at all, thus leaving it to the courts to decide the nature of the new substitute remedy. This means the Congress can do an end run around the Constitution by enacting a vague statute that sort of takes aim at discrimination, and then rather than having the Constitution dictate what protections one has against discrimination, give that power to the Supreme Court to decide. Of course, if I were able to write the Supreme Court’s opinions this wouldn’t be a problem! But John Roberts has got the job, and he made clear in the oral argument on Tuesday, and in earlier decisions, that he’s not at all interested in interpreting anti-discrimination laws felicitously, as we say in the law.

One of the courses I teach at Columbia Law School has to do with litigating cases of excessive force against the police.  See the syllabus here if you’re interested.  A couple months ago I was talking to a lawyer, James Cook, in Tallahassee, Florida about a taser case he is working on (you can see the YouTube video of the officer using a taser against a very distraught man – but beware, it’s very disturbing):

Cook also told me about a case he was handling where a state trooper stopped two young women on the interstate and told them they were going to jail (passenger too) for speeding unless they exposed themselves to him.  He asked me whether I knew of any police department training materials on sexual assault or abusive of authority.   Two of my students, Shelby Schwartz and Brian Ward, volunteered to look into the issue, and their report is available here.

A few things to highlight:

• Police officers recently being trained in Maryland held a competition among the trainees to see how many of them could get pictures of women’s breasts in exchange for not writing them traffic tickets.

• My students were unable to find one police department that included issues of sexual assault or sexual misconduct in their training materials.  And not one of the organizations that do back up to police departments, collecting or helping to develop training materials and personnel policies had a model policy on this issue.

• The Violence Against Women division of the Protecting Citizen’s Civil Rights Project of the International Association of Chiefs of Police have begun to explore the development of training policy on this issue.  Their earlier work centered on training police officers on violence against women crimes, strengthening the commitment of law enforcement officers to respond to these crimes, and enhance the ability of communities to respond to victims.  I was pleased to hear that they are taking the issue of sexual assault by police officers seriously.

•For more information documenting this problem, see Driving While Female: A National Problem in Police Misconduct

In the police misconduct area, much attention has been paid to racial profiling, misuse of tasers and other vitally important issues, but it is shocking – some might say conscience shocking – that despite the common practice of male police officers abusing their authority to extract sexual favors from female citizens, not one police department has implemented either policy or training informing their officers that this conduct violates the Constitution.