Jeannie Suk Gersen

An essay by Jeannie Suk Gersen. In 2010, as Cyrus Vance, Jr., took office as Manhattan’s new District Attorney, he promised that “crimes committed by the affluent, the powerful, or by public officials will be investigated and prosecuted as vigorously as street crimes.” Today, his office’s failures to prosecute the affluent and the powerful threaten to define Vance’s tenure as D.A., even as he heads for unopposed reëlection to his third term, on November 7th.

An essay by Jeannie Suk Gersen. In 2015, Laura Kipnis, a film-studies professor at Northwestern University, published a polemic in The Chronicle of Higher Education titled “Sexual Paranoia Strikes Academe.” Kipnis argued that students’ sense of vulnerability on campus was expanding to an unwarranted degree, partly owing to new enforcement policies around Title IX, which prohibits sex discrimination at educational institutions that receive federal funds. The new Title IX policies on sexual misconduct which were then sweeping campuses perpetuated “myths and fantasies about power,” Kipnis wrote, which enlarged the invasive power of institutions while undermining the goal of educating students in critical thinking and resilience. “If you wanted to produce a pacified, cowering citizenry, this would be the method,” she concluded.

When Education Secretary Betsy DeVos last week announced plans to revise the nation’s guidelines on campus sexual assault, the predictable din of outrage drowned out the applause from some unlikely corners of college campuses: Many liberals actually approve...“Betsy DeVos and I don’t have many overlapping normative and political views,” said Janet Halley, a Harvard Law School professor and expert on sexual harassment who supports the change. “But I’m a human being, and I’m entitled to say what I think.”...Also among them were four feminist professors who wrote a letter to the Department of Education last month beseeching DeVos’s department for a revision of the rule. Definitions of sexual wrongdoing are now far too broad, they wrote...The authors — Halley, Elizabeth Bartholet, Nancy Gertner, and Jeannie Suk Gersen — have all researched, taught, and written about sexual assault and feminist legal reform for years. Halley, who has represented both accusers and the accused in campus cases, said her colleagues maintain universities should have robust programs against sexual assault.

The archetypal image of the campus rapist is a rich, white fraternity athlete. The case of Brock Turner—the freshman swimmer at Stanford University convicted last year of sexually assaulting an unconscious woman after meeting her at a party, but sentenced to only six months in jail—reinforced this...How race plays into the issue of campus sexual assault is almost completely unacknowledged by the government...Janet Halley, a professor at Harvard Law School and a self-described feminist, is one of the few people who have publicly addressed the role of race in campus sexual assault. Interracial assault allegations, she notes, are a category that bears particular scrutiny...Since there are no national statistics on how many young men of any given race are the subject of campus-sexual-assault complaints, we are left with anecdotes about men of color being accused and punished. There are many such anecdotes. In 2015, in The New Yorker, Jeannie Suk Gersen, a Harvard Law School professor, wrote that in general, the administrators and faculty members she’s spoken with who “routinely work on sexual-misconduct cases” say that “most of the complaints they see are against minorities.”

An essay by Jeannie Suk Gersen. Over the summer, anticipation over what the Education Department might do about campus sexual assault heightened as the Education Secretary, Betsy DeVos, held high-profile meetings with groups advocating for the interests of universities, sexual-assault victims, and accused students—including one men’s-rights group accused of harassing women online. DeVos’s civil-rights head, Candace Jackson, alarmingly, told the Times that “90 percent” of campus accusations are over drunk or breakup sex. As the new school year began in earnest, widespread fears of a “rollback” of Title IX enforcement accompanied DeVos’s long-awaited policy speech, which was delivered on Thursday, at George Mason University.

...As four Harvard law professors— Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet and Nancy Gertner —argued in a recent article, a fair process requires “neutral decisionmakers who are independent of the school’s [federal regulatory] compliance interest, and independent decisionmakers providing a check on arbitrary and unlawful decisions.” The four had been among more than two dozen Harvard law professors to express concerns about the Obama administration’s—and Harvard’s—handling of Title IX.

...There is no doubt that until recently, many women’s claims of sexual assault were reflexively and widely disregarded—or that many still are in some quarters...Action to redress that problem was—and is—fully warranted. But many of the remedies that have been pushed on campus in recent years are unjust to men, infantilize women, and ultimately undermine the legitimacy of the fight against sexual violence...As Jeannie Suk Gersen and her husband and Harvard Law School colleague, Jacob Gersen, wrote last year in a California Law Review article, “The Sex Bureaucracy,” the “conduct classified as illegal” on college campuses “has grown substantially, and indeed, it plausibly covers almost all sex students are having today.”...In a 2015 article for the Harvard Law Review, Janet Halley, a Harvard law professor, describes a case at an Oregon college in which a male student was investigated and told to stay away from a female student, resulting in the loss of his campus job and a move from his dorm.

Four Harvard Law School academics have asked the U.S. Department of Education to revisit policies regarding campus sexual misconduct investigations...The Harvard memo (PDF) was signed by Janet E. Halley, Elizabeth D. Bartholet, and Jeannie Suk Gersen, all of whom are Harvard law professors, and Nancy Gertner, a lecturer at the school who is also a retired federal judge. They submitted the memo to the Department of Education Aug. 21. “Definitions of sexual wrongdoing on college campuses are now seriously overbroad. They go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment. They often include sexual conduct that is merely unwelcome, even if it does not create a hostile environment, even if the person accused had no way of knowing it was unwanted, and even if the accuser’s sense that it was unwelcome arose after the encounter,” the memo reads.

Four Harvard Law School faculty members are pushing for the Department of Education to revise Obama-era Title IX standards governing how universities respond to sexual harassment and assault on campus. In a memo submitted to the Department of Education last week, Law School professors Janet E. Halley, Elizabeth D. Bartholet ’62, and Jeannie Suk Gersen and lecturer Nancy Gertner called on the Education Department’s Office of Civil Rights to reevaluate the standards put forth in the 2011 Dear Colleague Letter.

An interview with Jeannie Suk Gersen. When Candice Jackson, acting head of the Education Department's Office of Civil Rights recently said that “90 percent” of campus sexual assaults “fall into the category of ‘We were both drunk, we broke up, and six months later I found myself under a Title IX investigation,” it caused an uproar. She quickly apologized, saying, “all sexual harassment and sexual assault must be taken seriously.” But, the exchange only brought more attention to the way the federal government is handling sexual assault cases on university campuses.

An essay by Jeannie Suk Gersen. At his rally in Phoenix on Tuesday night, Donald Trump remarked, of his decision to take on the Presidency, “Most people think I’m crazy to have done this. And I think they’re right.” A strange consensus does appear to be forming around Trump’s mental state...The class of professionals best equipped to answer these questions has largely abstained from speaking publicly about the President’s mental health. The principle known as the “Goldwater rule” prohibits psychiatrists from giving professional opinions about public figures without personally conducting an examination, as Jane Mayer wrote in this magazine in May.

An essay by Jeannie Suk Gersen. The application process for schools, fellowships, and jobs always came with a ritual: a person who had a role in choosing me—an admissions officer, an interviewer—would mention in his congratulations that I was “different” from the other Asians...In a federal lawsuit filed in Massachusetts in 2014, a group representing Asian-Americans is claiming that Harvard University’s undergraduate-admissions practices unlawfully discriminate against Asians. (Disclosure: Harvard is my employer, and I attended and teach at the university’s law school.) The suit poses questions about what a truly diverse college class might look like, spotlighting a group that is often perceived as lacking internal diversity.

Essays by Jeannie Suk Gersen. A tweet by a President is neither a law nor an executive order. That reality is important to keep in mind when considering President Trump’s tweet on Wednesday morning, saying that the U.S. government “will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” Trump’s tweet seemingly banning transgender people from military service has the same legal efficacy as his myriad other tweets expressing desires, promises, and intentions, many of which are unlikely to come to fruition, from building a wall on the Mexican border to changing the libel laws.

An op-ed by Jeannie Suk Gersen. Debates over policies to deal with sexual assault on college campuses have been fraught in the best of circumstances. But under President Donald Trump’s Administration, such debates bring with them a particularly toxic backstory. There was, of course, the “Access Hollywood” recording of Trump boasting about kissing and grabbing women by their genitals without their consent, and at least a dozen women have publicly accused him of sexually harassing or assaulting them. Many people are understandably skeptical of policy moves on sexual misconduct that may emerge from his Administration.

An op-ed by Jeannie Suk Gersen. ...On Monday, the Supreme Court unanimously ruled the disparaging-trademarks provision unconstitutional, as a violation of free speech protected by the First Amendment. (The court’s newest Justice, Neil Gorsuch, did not participate because the case was heard before he was confirmed.) Going forward, the government will not be able to deny registration of any trademark simply because it is considered offensive. The ruling makes all manner of racist, sexist, or otherwise insulting terms eligible for federal registration by someone who wishes to use them to identify the goods or services they are selling. Lots of money can be at stake.

The mistrial in the Bill Cosby case has left us deadlocked on another question: Is the legal system stacked against women in she said/he said sexual assault cases?...Jeannie Suk Gersen, a professor at Harvard Law School, has a provocative thesis: There is an inherent bias against women, but it doesn’t stem from sexism. “We chose to set up our system to be stacked in favor of the defendant in all cases,” she said. “So, in areas where most of the defendants are male, and most of the accusers are female, it’s a structural bias in favor of males. Even if we were to get rid of sexism, it would still be very hard to win these cases. I think this is what we have to live with on the criminal side, because we’ve made the calculation that this is the right balance of values.”

An op-ed by Jeannie Suk Gersen. During Kevin Steele’s successful election campaign for District Attorney of Montgomery County, Pennsylvania, in 2015, he attacked the longtime incumbent, Bruce Castor, for having “refused to prosecute Bill Cosby” and promised “tough sentences for sexual predators.” After taking office, District Attorney Steele immediately moved on his promise to vindicate Bill Cosby’s victims, arresting and charging Cosby for the sexual assault of Andrea Constand, one of nearly sixty women to have accused Cosby of sexual assault over several decades. But Cosby’s criminal trial, on three counts of indecent assault for the 2004 incident, ended in a mistrial due to a hung jury, after six days of deliberations produced neither conviction nor acquittal.

An op-ed by Jeannie Suk Gersen. Nearly a century ago, Oliver Wendell Holmes, Jr., famously suggested, in defense of free speech, that “every idea is an incitement.” But are words themselves violence? The striking acceptance of the notion that some speech can constitute violence—and therefore has no place on a university campus—has coincided, this year, with the eruption of actual physical violence over speech.

An op-ed by Jeannie Suk Gersen. With a one-sentence order last week, the Supreme Court dashed hopes of a big transgender-rights decision this term. The Court was supposed to review the case of Gavin Grimm, a transgender teen-age boy who sued the Gloucester County School Board for the right to use the boys’ bathroom and won, in the Fourth Circuit. But the basis of the Fourth Circuit’s decision was the Obama Administration’s view that Title IX, the 1972 law that prohibits schools that receive federal funding from discriminating “on the basis of sex,” requires schools to treat transgender students in a way consistent with their gender identity.