Jeannie Suk Gersen

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.

An op-ed by Jeannie Suk Gersen. Last week, the Trump Administration did exactly what many dreaded regarding transgender students. The Justice Department and the Education Department issued a letter that withdrew the Obama Administration’s letters directing schools to allow transgender students to use bathrooms consistent with their gender identity (rather than genitalia, chromosomes, or sex assigned at birth). The same day, the Office of the Solicitor General sent a letter asking the Supreme Court to take note of this about-face in the government’s position on what Title IX requires of schools. The Supreme Court was set to resolve two questions this term in the case of the Gloucester County School Board against Gavin Grimm, a transgender teen-age boy: first, whether the federal government’s view on transgender bathroom use was entitled to deference by courts; and, second, whether the government’s interpretation was correct.

The University of British Columbia plans to introduce a standalone sexual-assault and misconduct policy and establish a centre to support assault survivors, the latest Canadian postsecondary institution to respond to persistent calls for the education sector to address such incidents on campus...But UBC's experience developing the new guidelines also shows the challenges of designing a policy with more ambitious goals than those of a criminal proceeding, from identifying repeat offenders to educating the campus community. Getting it right is like balancing on a "knife's edge," wrote Harvard law professor Jeannie Suk Gersen in an essay in The New Yorker about the experience of American universities in this area.

First came the fashion police. Now come the fashion lawyers. While the fashion police playfully expose the dos and don’ts of style, fashion lawyers draft contracts and provide legal advice behind the curtains, far from the spotlight and glamour of the red carpet. Still, the job can be exhilarating. Students who took “Fashion Law Lab,” a nine-day course offered at Harvard Law School (HLS) during the January term, caught a glimpse of the allure of the fashion industry, and most couldn’t get enough of it...“It was mentally exerting but rewarding,” said J.D. student Keith Thomas. “It was … so different from other courses at HLS. It was so practically focused, and the skills we learned are transferable to other industries outside fashion. It was fantastic.” That was exactly what the instructors, Jeannie Suk Gersen, the John H. Watson Jr. Professor for Law, and Nana Sarian, general counsel of Stella McCartney, had in mind when they thought up the experiential course.

Dear Betsy: Even students who’ve been accused of sexual assault deserve the chance to defend themselves. Betsy DeVos is President-elect Donald Trump’s pick for secretary of education...In an information vacuum, all sexual assault cases look the same. As Harvard Law School professors Jacob Gersen and Jeannie Suk Gersen declared in the Chronicle of Higher Education earlier this month, “In essence, the federal government has created a sex bureaucracy that has in turn conscripted officials at colleges as bureaucrats of desire, responsible for defining healthy, permissible sex and disciplining deviations from those supposed norms.”

...you’d expect the Obama Department of Education to be doing whatever it could to nurture, support, and protect colleges and universities. But instead, it seems to be acting almost as if it were controlled by . . . a cabal of its enemies. For example, in the area of Title IX enforcement Obama’s Department of Education has taken a statute that simply reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance,” and turned it into an Orwellian nightmare of what Harvard law professors Jacob Gersen and Jeannie Suk call bureaucratic sex creep.”

An op-ed by Jacob Gersen and Jeannie Suk Gersen. Often with the best of intentions, the federal government in the past six years has presided over the creation of a sex bureaucracy that says its aim is to reduce sexual violence but that is actually enforcing a contested vision of sexual morality and disciplining those who deviate from it. Many observers assume that today’s important campus sexual-assault debate is concerned with forcible or coerced sex, or with taking advantage of someone who is too drunk to be able to consent. But the definition of sexual assault has stretched enormously, in ways that would have been unimaginable just a few years ago. Indeed, the concept of sexual misconduct has grown to include most voluntary and willing sexual conduct.

In recent weeks, Casey Affleck’s performance in Manchester by the Sea has gone from acclaimed awards contender to near-Oscar lock. The soft-spoken, scraggly-bearded actor has taken the stage at a number of ceremonies already—the Critics’ Choice Awards, the Gotham Awards, the New York Film Critics Circle—ahead of what’s looking like an increasingly likely victory at the Academy Awards. The surge of publicity has brought renewed attention to two sexual harassment lawsuits filed against him in 2010 that alleged he had manhandled women, was verbally abusive, and generally behaved outrageously on the set of his film I’m Still Here, which he directed. Both cases were mediated and eventually settled out of court for undisclosed sums. ...“People carelessly conflate rape with the entire range of sexual misconduct that can occur,” the Harvard Law School professor Jeannie Suk Gersen told the Times. “It’s all repulsive. But both morally and legally there are distinctions—degrees of behavior. Parker was accused of something far more serious.”

This was supposed to be the awards season when Hollywood, having been scorched by consecutive #OscarsSoWhite years, avoided tumult over race. Not so. ... Jeannie Suk Gersen, a professor at Harvard Law School who teaches criminal law and sexual harassment law, said the reason could be far simpler: Mr. Parker’s case was criminal and Mr. Affleck’s was civil. “People carelessly conflate rape with the entire range of sexual misconduct that can occur,” Ms. Suk Gersen said. “It’s all repulsive. But both morally and legally there are distinctions — degrees of behavior. Parker was accused of something far more serious.” (Ms. Suk Gersen is particularly attuned to Mr. Parker’s case, having contributed an article in September to The New Yorker, “The Public Trial of Nate Parker.”)