Duke Journal of Gender Law & Policy

Prosecuting Domestic Violence After Giles: Why a Categorical Approach to the Forfeiture Doctrine Threatens Female Autonomy

Michael Vargas — Thu, 10 Jan 2013 13:11:11 PST

¿Only English? How Bilingual Education Can Mitigate the Damage of English-Only

Jennifer Bonilla Moreno — Thu, 10 Jan 2013 13:11:11 PST

Leveraging the Courts to Protect Women’s Fundamental Rights at the Intersection of Family-Wage Work Structures and Women’s Role as Wage Earner and Primary Caregiver

Jill Maxwell — Thu, 10 Jan 2013 13:11:10 PST

Embodying Vulnerability: A Feminist Theory of the Person

Saru M. Matambanadzo — Thu, 10 Jan 2013 13:11:09 PST

Lonely Colonist Seeks Wife: The Forgotten History of America’s First Mail Order Brides

Marcia Zug — Thu, 10 Jan 2013 13:11:09 PST

The Gender Bind: Men as Inauthentic Caregivers

Kelli K. García — Thu, 10 Jan 2013 13:11:08 PST

Almost twenty years after the enactment of the Family and Medical Leave Act (FMLA), an ostensibly gender-neutral statute, companies are still less likely to offer paternity leave than they are to offer maternity leave. Although women have traditionally faced discrimination in the workplace because they are viewed as inauthentic workers—not fully committed to paid employment—men face the corresponding problem and are viewed as inauthentic caregivers. Men who seek family leave transgress gender norms and risk workplace discrimination and stereotyping. This article makes explicit how the social and cultural contexts in which the FMLA is applied interact to maintain the status quo and produce gendered outcomes at work and at home. The FMLA was expected to promote workplace gender equality by providing genderneutral leave and thus reduce employers' expectations that women are more costly than men because they require special accommodations. Unfortunately, women continue to take significantly more leave than men to care for a newborn child or sick relative. This article argues that that the view of men as providers first and caregivers second encourages discrimination against male caregivers and interacts with overwork and inflexible work schedules to contribute to stereotypical divisions of labor within families. This article further proposes policies, including paid family leave, to promote co-equal caregiving and breadwinning between men and women.

A Cautionary Tale: Black Women, Criminal Justice, and HIV

Gloria J. Browne-Marshall — Fri, 31 Aug 2012 05:25:20 PDT

The Roles of Phones and Computers in Threatening and Abusing Women Victims of Male Intimate Partner Abuse

Joanne Belknap et al. — Fri, 31 Aug 2012 05:25:19 PDT

Third-Party Consent to Search: Analyzing Triangular Relations

Orit Gan — Fri, 31 Aug 2012 05:25:18 PDT

How does the law construct consent? This Article explores this question in the context of Supreme Court decisions regarding third-party consent to searches of dwellings. Using textual analysis, a method rarely used in Fourth Amendment law, this Article argues that the Supreme Court employs an a-contextual and gender-blind analysis of consent that is insensitive to power dynamics. Using the feminist scholarship on consent, this Article critiques the notion of consent as developed by the Supreme Court. At the same time it rejects the feminist redefinition of consent as vague and unclear.

This Article proposes that the third-party consent to search doctrine involves a triangular relation between the police officer, the consenting third-party, and the suspect. Accordingly, this Article explores each edge of the triangle. This triangular relation analysis shows that the problematic notion of consent is more acute in third-party consent cases than in other consensual search cases. Thus, this Article proposes the abolition of the third-party consent to search doctrine.

Intimate Partner Violence—Is There a Solution?

Diksha Munjal — Fri, 31 Aug 2012 05:25:18 PDT

The Parental Rights of Rapists

Kara N. Bitar — Fri, 31 Aug 2012 05:25:12 PDT

Can Gender Equity Find a Place in Commercialized College Sports?

John C. Weistart — Tue, 12 Jun 2012 16:54:02 PDT

The premise of Title IX should be uncontroversial: no person may be ex- cluded from the benefits of an educational program on the basis of gender. 1 There is a sense in which Title IX, at the time of its adoption more than twenty years ago, simply captured what was an independent societal norm of considerable force. Women were participating in higher education, including graduate and professional education, in increasing numbers and were properly claiming a right to equal opportunities. Sexual harassment was, and is, a per- sistent problem and some disciplines have changed only slowly. 2 The prevailing perception, however, was that universities were, with varying degrees of will- ingness, reexamining their past practices and moving away from their prior model of male preferences. On the landscape of gender equity in higher education, athletics stands out as a notoriously troubled area. Participation by women in college sports has increased, but their programs are a persistent source of discouraging statistics. A majority of the students at Division I schools are women. 3 Nonetheless, women athletes receive only 35 percent of the athletic scholarship money that is distributed. 4 By common consensus there are no more than a handful of schools at which the percentage of women participating in athletics matches the percentage of women in the student body, 5 which at present is the most com- monly used standard for judging compliance with Title IX. 6 Expenditures for support of women's programs, such as those for recruiting, ...

The Concept of Substantial Proportionality in Title IX Athletics Cases

Mary W. Gray — Tue, 12 Jun 2012 16:53:59 PDT

I. Introduction In the past several years, four federal court decisions interpreting Title IX 1 have sent tremors through the collegiate athletic establishment. 2 In all of these cases, the courts found the universities to have failed to provide effec- tive accommodation for the athletic interests and abilities of their women students, as required by the regulations issued pursuant to Title IX. 3 Al- though the regulations state that such accommodation is only one of the factors to be considered in determining compliance with Title IX, it was because of deficiencies in this area that courts found the institutions in viola- tion of the statute. In particular, courts asserted that the universities did not provide participation opportunities to women and men in numbers "substan- tially proportionate" to their respective enrollments. Unfortunately, the courts failed to supply guidance as to the precise meaning of "substantially propor- tionate." This Article suggests a statistical framework for such guidance. II. Statutory Background A. The Title IX Statute and Regulations Title IX of the Education Amendments of 1972 requires that institutions not discriminate on the basis of sex in their athletics programs, including intercollegiate athletics. 4 When Congress originally enacted Title IX, it pro- vided that the Department of Health, Education, and Welfare issue regula- tions that would assist educational institutions in complying with the stat- ute. 5 After the Title IX regulations were promulgated, the Office for Civil Rights (OCR) of the Department of Education issued a Policy Interpretation Manual ...

An End to the Odyssey: Equal Athletic Opportunities for Women

Jeffrey H. Orleans — Tue, 12 Jun 2012 16:53:57 PDT

I. Preface Princess and maids delighted in that feast; then, putting off their veils, they ran and passed a ball to a rhythmic beat. 1 So Homer, c. 800 B.C., sings of Princess Nausikaa before she befriends Odysseus near a stream on the island of Skheria. Homer's adventurer ac- cepts his royal rescuer's "game of her own" without surprise. Three millen- nia later, many American colleges are still unsure how men and women can have as equal a chance to "pass a ball" against other colleges as to parse the epic of Odysseus and Penelope in their classrooms. Title IX of the Education Amendments of 1972, 2 which bans sex dis- crimination in all education programs that receive federal financial assistance, should have assured those opportunities. Almost a quarter-century later, however, its promise is still unfulfilled, 3 and major litigation to define its application to athletics has begun only recently. These delays have created an air of crisis, division, and anger on many campuses. Because most college presidents and athletic directors do not know what Title IX requires, they frequently overestimate the difficulties of compliance. In my experience, supporters of men's collegiate teams are espe- cially likely to lack clear information, and to be frustrated with what they believe are overly rigid obligations. Yet a generation's delay in enforcement has led women student-athletes and their coaches to view compliance with increasing urgency. We should be asking why equal opportunity has been so long in com- ing. When we ask instead ...

Media Coverage of the Post Title IX Female Athlete: A Feminist Analysis of Sport, Gender, and Power

Mary Jo Kane — Tue, 12 Jun 2012 16:53:54 PDT

I. Introduction Sport is one of the most important institutions in American culture. This certainly is demonstrated by the vast resources spent on sport-related enter- prises. With respect to discretionary spending alone, billions of dollars are spent annually on the sale of licensed sport products (e.g., baseball caps). In 1992, retail sales of all licensed sport merchandise totaled $ 12.2 billion. 1 In the early 1990s, the top four men's professional sport leagues (football, bas- ketball, baseball, and ice hockey) generated almost $ 4 billion in revenues. 2 Most recently, Anheuser-Busch announced that they had signed a $ 40 million contract to be the official beer sponsor of the 1996 Olympic Games to be held in Atlanta, Georgia. 3 Sport has become such a bedrock of our national psyche that sport figures often come to symbolize larger pressing social concerns such as date rape (Mike Tyson), never-ending and seemingly ran- dom acts of violence (Tonya Harding/Nancy Kerrigan, Monica Seles), and spousal abuse (O.J. Simpson). In spite of the all-pervasive influence of sport, academic scholars have ignored its significance. But if sport is "just a game," why are so much time, money, and cultural support invested in this particular institution? As media scholar Nick Trujillo cautions, the academic study of sport should not be taken lightly as an area of scholarly pursuit. 4 Feminist scholars in particular have given scant attention to sport, per- haps because they consider it an activity that belongs to men and therefore has little ...

The Path of Most Resistance: The Long Road Toward Gender Equity in Intercollegiate Athletics

Deborah Brake et al. — Tue, 12 Jun 2012 16:53:52 PDT

While sports have long played an important role in educating boys and young men in leadership, physical fitness and competitive skills, only recent- ly have girls and young women had the chance to benefit from athletic opportunities. Over two decades of experience with a federal statute pro- hibiting sex discrimination in school sports programs have brought important successes in opening doors for female athletes. However, enforcement of equal opportunity in this area has encountered strong resistance from the athletic establishment, which has fought efforts to equalize resources and opportunities for young women. Heightened enforcement of equal athletic opportunity in the 1990s has rekindled old opposition to basic notions of gender fairness in sports. React- ing to the recent successes of female athletes in the courts, both college foot- ball and other men's sports advocates have taken the offensive in challeng- ing the law's requirements, arguing that men are more interested in sports than women and therefore deserve the lion's share of resources and opportu- nities. While such challenges have not succeeded, future progress toward gender equity in sports requires a renewed commitment to the underlying principle that female athletes are as deserving of sports opportunities as their male counterparts. This Article discusses the recent backlash against the legal requirements governing sex discrimination in intercollegiate athletic programs in the con- text of the history and enforcement of the law. Part I discusses the require- ments of the law, its legislative and interpretive history, and recent advances in enforcement. Part ...

Still on the Sidelines: Developing the Non-Discrimination Paradigm under Title IX

Brian A. Snow et al. — Tue, 12 Jun 2012 16:53:49 PDT

I. Introduction Despite the promises of equal opportunity for women signalled by the passage of Title IX of the Education Amendments of 1972 (Title IX), 1 little progress in the creditable realization of this goal occurred in intercollegiate or interscholastic athletics between 1972 and 1992. 2 This lack of progress was unfortunate. 3 In many ways, most women were still on the sidelines. However, recent judicial decisions have allowed many, but certainly not all, women to leave the sidelines and enter the playing fields as equals. By virtue of three landmark cases, Cohen v. Brown, 4 Roberts v. Colorado State Board of Agriculture, 5 and Favia v. Indiana University of Pennsylvania, 6 women who are blessed with great athletic ability have earned a mandate for nu- merical parity with men in intercollegiate athletic programs. In these three cases, federal district courts issued injunctions to prevent post-secondary institutions from eliminating certain women's intercollegiate athletic teams, 7 or reducing them to a lower level status. 8 Every decision was affirmed on appeal. 9 The various courts held that the defendant institutions in each of the three cases had engaged in gender discrimination, prohibited by Title IX, 10 by failing to meet any one of three alternative measures established in the Policy Interpretation. 11 These three measures, which are designed to be considered consecutively, attempt to provide for assessment of the opportu- nity for individuals of both genders to compete in athletic programs by de- termining: 1. Whether intercollegiate [or interscholastic ...

Foreword

Tue, 12 Jun 2012 16:53:47 PDT

Second Parent Adoption: A Model Brief

Suzanne Bryant — Tue, 12 Jun 2012 16:53:34 PDT

The Liberal Judicial Construction of State Adoption Laws Allows Courts to Grant Second Parent Adoptions to Lesbian and Gay Adults I. Introduction: Second Parent Adoptions A second parent adoption refers to the adoption of a child by his or her legal parent's 1 non-marital partner, without requiring the first partner to give up any parental rights or responsibilities. 2 In second parent adoptions, as in step-parent adoptions, the child is already living in the couple's home and will continue to live there. In both types of adoptions, a non-legal parent has a relationship with the child and wishes to adopt without terminating the legal parent's rights. Therefore, a second parent adoption is the natural extension of step-parent adoptions; in both cases, the couple simply desires to provide legal and emotional stability for the child. Second parent adoptions may occur when a child's heterosexual parents are unable or unwilling to marry and establish paternity, 3 or when the parents are lesbian or gay. Courts have granted both heterosexual and lesbian and gay second parent adoptions relying on the step-parent adoption analogy. 4 When presented with a second parent adoption petition, a court initially must decide (1) whether state law prohibits the two parents from filing a joint adoption petition 5 and (2) whether granting the adoption requires the court to terminate the legal parent's existing parental rights. 6 Once these legal hurdles have been overcome, the primary issue before the court is whether the adoption is ...

Second Parent Adoption: A Personal Perspective

Deborah Lashman — Tue, 12 Jun 2012 16:53:32 PDT