Jeannie Suk Gersen

In 2011, the Obama administration transformed Title IX law by issuing its “Dear Colleague" letter, a set of recommendations encouraging colleges to amplify their protections of victims of campus sexual assault and harassment. But the Dear Colleague letter's guidelines have proved difficult for colleges to adhere to — and have attracted many critics, primarily for their failure to provide due-process protections for accused students. Harvard Law School’s Jeannie Suk Gersen is one of those critics. In her regular columns at The New Yorker and in a California Law Review article entitled “The Sex Bureaucracy” (a version of which appeared in The Chronicle Review), Gersen has argued that the Obama-era Title IX regime was “detrimental to the fight against sexual violence.” Under Betsy DeVos, U.S. secretary of education in the Trump administration, that regime is about to undergo major changes. The Chronicle Review spoke with Gersen about the new rules, how the Title IX debate became so polarized, legal challenges to DeVos by the ACLU, and the role of the law professor as public intellectual.

An article by Jeannie Suk Gersen: This spring, the coronavirus pandemic has upended college and university life, as campus classes, dormitories, and social activities have been abruptly displaced by online instruction. As exams and graduation ceremonies proceed virtually this month, some schools are announcing plans to cancel or delay the fall semester or to run it partly or entirely online. On May 6th, amid this chaos and uncertainty, Betsy DeVos’s Department of Education issued its regulations on Title IX, which impose new legal requirements on how schools must conduct their discipline processes for sexual harassment and assault. Immediately, prominent civil-rights attorneys expressed outrage. Catherine Lhamon, the chair of the U.S. Commission on Civil Rights and the assistant secretary for civil rights in Obama’s Education Department, tweeted that DeVos is “taking us back to the bad old days . . . when it was permissible to rape and sexually harass students with impunity.” Fatima Goss Graves, the president and C.E.O. of the National Women’s Law Center, wrote, “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.” In a statement, Nancy Pelosi called the new regulations “callous, cruel and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.” It was unclear, however, precisely what aspects of the regulations were so extreme and alarming.

An article by Jeannie Suk Gersen: A truth that burst into public view with #MeToo in 2017 was that sexual exploitation in its many forms has been ubiquitous and experienced largely by women. So anyone following the story of #MeToo could hardly find it shocking that, after a promising primary season with a record number of excellent female candidates, the first Presidential election since the movement’s rise has come down to a race between two men who have both been accused of sexual assault. Tara Reade has accused Joe Biden of sexually assaulting her twenty-seven years ago, and several women have accused him of unwanted touching. More than a dozen women have accused Donald Trump of sexual assault and misconduct, and he has bragged on tape about grabbing women’s genitals. It is unlikely that the Democratic Party will abandon their only candidate who remains in the race, and who leads Trump in polls. So many liberals, who are justifiably desperate to turn the page on the horrors of Trump’s Presidency, are grasping at the world of difference between Trump and Biden—and viewing Reade’s sexual-assault allegation more skeptically than #MeToo has allowed in recent times. This moment may prove to be a pivotal chapter of #MeToo, which marks its more mature reckoning with its deeper goals. And, in fact, there is a no more fitting person to embody that development than Biden, whose long career has repeatedly positioned him at the levers of power in the government’s responses to sexual violence.

An article by Jeannie Suk Gersen: During his confirmation hearing, in 2018, Brett Kavanaugh insisted that “one of the greatest moments in American judicial history” was the case of United States v. Nixon, in 1974. In a unanimous decision, written by Chief Justice Warren Burger, one of President Richard Nixon’s appointees, the Supreme Court rejected Nixon’s claim of absolute executive privilege, ordering him to comply with a judicial subpoena to turn over the White House tapes that would lead to his resignation. In an article from 2016, Kavanaugh wrote, admiringly, that the Justices “stood up to the other branches, were not cowed, and enforced the law.” In the coming months, several cases will test the Court’s strength in this regard. In each of these cases, President Donald Trump is attempting to block the examination of his conduct, by claiming that the chief executive is immune from various forms of investigation. At stake in these cases is the public’s ability to know about, and seek accountability for, misconduct. But, more important, they represent a gut check for our system of separation of powers. As the Supreme Court hears these cases, beginning this month and extending through the next term, it will enter what may prove to be among its greatest moments or its worst.

An article by Jeannie Suk Gersen: During my first year teaching at Harvard Law School, I fell flat on my face. In addition to prepping for class like a maniac, I spent an inordinate amount of time cultivating a professional aura. I always dressed up for class, did my hair, and put on makeup. One day, I found myself late getting to class. In my pencil skirt and heels, I entered the amphitheatre-style classroom from the back. My fifty students were already seated and ready. Rushing down the gauntlet of steps toward the podium, carrying my casebook, teaching notes, seating chart, and a hot tea, I felt my ankle buckle. Everything flew out of my hands and I face-planted. The univocal gasp of my students still haunts my nightmares. I thought, in that moment, that my teaching career was over, but I got up, walked to the podium, and began teaching the class, because I didn’t know what else to do. I was immediately more relaxed and comfortable than I’d ever been in the classroom—and so, it seemed, were my students, who loosened up immensely...Teaching over Zoom has revealed the role that spatial distance plays in education in the first place. The geography of a large classroom, with the professor at the front, automatically communicates the hierarchy that separates teacher and students. That distance is visually erased in a Zoom class, where there’s no podium, or front or back of the room. The face of the professor appears onscreen in the same way as the faces of students when they speak. The closeup view brings everyone in close.

An article by Jeannie Suk Gersen: Most crises in American life have been local. Even the disasters of earthquakes, tornadoes, hurricanes, and floods are relatively confined in space and time. They do not spread to every state and threaten every corner of all of our lives. The coronavirus pandemic is that rare crisis that is truly national, where the response of a state may ultimately be only as effective as the response of other states. By now the vast majority of the country is under stay-at-home orders, issued state by state, but a handful of holdout states threaten to undercut the efficacy of others’ costly and painful social-distancing efforts. As a result, states with fewer infections and deaths may merely await their turn to become hot spots, particularly as some states with lockdowns could begin to lift them prematurely while others keep their lockdowns in place. The dangers of non-uniformity urge the question: If our fates are bound together in this emergency, why has there been no national stay-at-home order? Asked earlier this month whether there should be a federal order locking down the nation, Anthony Fauci, the director of the National Institute for Allergy and Infectious Diseases, said, “I just don’t understand why we’re not doing that—we really should be,” but he also acknowledged a tension with “states’ rights to do what they want.” Fauci is not alone in thinking that a national order would be preferable.

A TED Talk by Jeannie Suk Gersen: To understand what makes marriages work, we need to talk about why they sometimes end, says family law professor Jeannie Suk Gersen. Follow along as she lays out three ways that thinking about marital decisions through the lens of divorce can help you better navigate togetherness from the beginning.

An article by Jeannie Suk Gersen: Prosecuting a case in front of a trial jury comes naturally to Representative Adam Schiff, a former federal prosecutor and the lead House manager in the impeachment trial of Donald Trump. Schiff has urged senators to think of themselves as “impartial jurors” with a constitutional responsibility “to hold a fair and thorough trial.” But, more than a week into the trial, the question of the President’s guilt of the charges of abuse of power and obstruction of Congress has been upstaged by suspense over whether the Senate will vote to allow the process for examining evidence that we ordinarily associate with a “trial”—particularly, hearing witness testimony. Once the allotted time for speeches by both sides has run, and after senators have a chance to put questions to each side, Democrats want the Senate to issue subpoenas for evidence, while Republicans aim to move immediately to a vote to acquit.

A three-judge panel of the U.S. Court of Appeals for the First Circuit in Boston heard oral arguments Tuesday on what rights a private college must give to a student accused of sexual assault. The case, John Doe v. Boston College, involves a current male BC student accused of sexually assaulting a female BC student in November of 2018. Doe, the anonymous plaintiff, was suspended for one academic year by BC after officials at the private college conducted an internal investigation into the accuser's Title IX complaint filed earlier this year and allegations against him...Harvard law professor Jeannie Suk Gersen, who represents Doe, explained after the hearing that the plaintiff contends that both sides in a college sexual assault case should have the right to ask each other questions. Last year, the First Circuit ruled in a separate, narrower case against Boston College that Massachusetts law requires colleges to treat students with "basic fairness" when they face disciplinary charges. In this case, Boston College has argued the U.S. Constitution's due process clause does not apply to private colleges.

The impact of the #MeToo movement in American culture is undeniable, and the high-profile prosecutions of Harvey Weinstein, Bill Cosby, and other powerful men suggest it’s a legal success, as well. But the broader impact of the movement will depend upon lawmakers and judges’ willingness to incorporate its principles into the American legal system. Some activists have argued that prosecutors should be able to use “Me Too” evidence—allegations that a defendant committed a similar offense against individuals other than the victim in the case at hand. This evidence isn’t easily admissible. But prosecutors may be able to persuade courts that the voices of other victims can help a judge or jury determine the truth of an accusation...As Harvard Law School professor Jeannie Suk Gersen has written, the strength of “Me Too” evidence lies in “the power of numbers across time.” While a victim’s lone account of the offense might not be believed, “the choruses of ‘me too’ ” make each account much more believable. “Me Too” witnesses together convey a potent message that “what you say happened to you happened to me, too, and so it is more likely that we are both telling the truth.”

An article by Jeannie Suk Gersen: Legal opinions do not often invoke Toni Morrison. But, last week, a federal judge relied on Morrison’s words in a rousing conclusion to the case on Harvard University’s use of race in admissions. “Race is the least reliable information you can have about someone. It’s real information, but it tells you next to nothing,” Morrison told Time, in 1998. The judge, Allison Burroughs, said that when this wisdom is accepted it will “ultimately make race conscious admissions obsolete.” But that hasn’t happened yet. The clearest message to emerge from the evidence in the Harvard case is that élite universities are very far from being able to achieve racially diverse student bodies using only race-neutral methods.

Four feminist law professors at Harvard Law School have been telling some alarming truths about the tribunals that have been adjudicating collegiate sex for the past five years. Campus Title IX tribunals are “so unfair as to be truly shocking,” Janet Halley, Jeannie Suk Gersen, Elizabeth Bartholet, and Nancy Gertner proclaimed in a jointly authored document titled “Fairness for All Students.” That document followed up on a previous open letter signed by 28 members of the Harvard Law School faculty in 2014 arguing that the updated sexual assault policy recently installed at Harvard was “inconsistent with some of the most basic principles we teach” and “would do more harm than good.”

Podcast: Mischele Lewis learned that her fiancé was a con man and a convicted pedophile. By lying about who he was, did he violate her consent, and commit assault? Lewis’s story raises a larger question: What is consent, and how do we give it? ... Alondra Nelson, a professor of sociology and the president of the Social Science Research Council, explores this shifting of sexual norms with The New Yorker’s Joshua Rothman. They spoke with the legal scholars Jeannie Suk Gersen and Jacob Gersen, and with the facilitator of cuddle parties, who compares her nonsexual events to “going to the gym for consent.”

On a crisp and gray September morning, Jeannie Suk Gersen stepped into a lecture hall at Tufts University...Gersen is a feminist legal scholar and a writer of wry, slightly elliptical commentary on legal matters at The New Yorker. She is our foremost guide to the challenges that the #MeToo movement poses to the legal system. She has staked out a position at once conventional and embattled. She shares #MeToo’s goal of ending the impunity surrounding sexual assault. But she remains committed to the principles of due process, presumption of innocence, and the right to a fair hearing. This commitment places her in tension with some of the most impassioned actors in American public life, some of whom have come to regard due process as a fatal obstacle to deterring and punishing sexual misconduct...Gersen, [Janet] Halley, [Elizabeth] Bartholet, and [Nancy] Gertner designed an alternative set of Title IX procedures — applicable only to Harvard Law students — that the Office for Civil Rights eventually certified as meeting the requirements laid out in the Dear Colleague letter, while also satisfying the principles of fair process as Gersen and her colleagues understood them.

An article by Jeannie Suk-Gersen: In 1944, in New York, a decade before Allen Ginsberg, Jack Kerouac, and William S. Burroughs would publish their countercultural works, there was a killer in their midst. Lucien Carr was a brilliant Columbia University student from a prominent Midwestern family. He had introduced the three men to one another and was at the center of the circle of friends that defined what was later known as the Beat Generation. The nineteen-year-old Carr stabbed another member of the group, David Kammerer, in Riverside Park, with a Boy Scout knife, and dumped his body in the Hudson River. Carr claimed that Kammerer, his former scoutmaster, who was thirty-three, had followed him for years, from city to city, and made “indecent” advances. The New York press, defending Carr, portrayed the killing as an “honor slaying.” Although he was charged with murder, prosecutors allowed Carr to plead guilty to the lesser crime of manslaughter. He served two years in a reformatory and then lived out his life as a respected news-agency editor. The case was one of the first high-profile instances of a “gay panic” defense, in which a person claims that his violent act was a sudden emotional response to an unwanted advance from a person of the same sex.

An article by Jeannie Suk Gersen: Had Brett Kavanaugh not been accused of sexual assault, one of the first cases he would have heard as a Supreme Court Justice would have been that of Herman Gundy, a convicted sex offender. When nominated, last July, Kavanaugh was expected to be confirmed in time for the term that started last October. But the emergence of sexual assault allegations against him delayed his confirmation vote until October 6th, just after the Court’s first set of oral arguments—which included Gundy’s request to invalidate his federal conviction for failure to register as a sex offender. In June, the Court denied Gundy’s petition. As it turns out, Kavanaugh’s absence from the case likely changed its outcome.

You probably don’t think about intellectual property laws when you go shopping or watch the World Cup or surf the web, if ever. Yet the stuff we covet is governed by rules that have developed over hundreds of years around the world, which dictate what is made and sold, how, and for how much money. The new book, A History of Intellectual Property in 50 Objects, examines these dictates through the lens of iconic items that have influenced global culture. Released in June by Cambridge University Press, this collection of 50 essays on everything from ancient Korean clay-glazing techniques to Coca Cola bottles, Post-It notes, and internet protocols takes an unusual and accessible approach to its opaque topic...Designer Coco Chanel wasn’t much of a stickler for intellectual property law herself...Chanel died in 1971. By the 1980s, imitations of her small, rectangular quilted purse with its long chain-link shoulder strap were everywhere, as the book’s essay about the bag by Harvard Law School professor Jeanie Suk Gersen explains.