Strict Scrutiny - Sexual Justice

Episode Date: August 30, 2021

Kate and Leah talk with Alexandra Brodsky, founding co-director of Know Your IX and author of Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Kate Shaw. And I'm Leah Littman. And we are delighted to be joined today by Alexandra Brodsky. We're going to be discussing her new book,

Sexual Justice, on today's episode. So welcome to the pod, Alexandra. Thanks so much. I'm so excited. So by way of an introduction, Alexandra is currently a staff attorney at Public Justice, an organization that pursues high-impact litigation to combat social and economic injustice, protect the earth's sustainability, and challenge predatory corporate conduct and government abuses. At Public Justice, Alexandra focuses on civil rights cases involving harassment and other forms of discrimination against students, the criminalization of poverty, and qualified immunity. Alexandra is a graduate of Yale College and Yale Law School. She also clerked for Judge Berzon on the U.S. Court of Appeals for the Ninth Circuit. She is a founding co-director of Know Your Nine, an organization combating gender

violence in schools. And most relevant for today, although we'd love to talk to her about any of this, she is the author of the new book, Sexual Justice. So congratulations on the book, Alexandra. Thanks so much. This reminds me of the Heidi Montag tweet, like congratulations to anyone who has written a book, but I digress. So maybe we'll start, Alexandra, by asking you to just describe the impetus for the book. Sure. I mean, I have sort of my long-term answer and my short-term answer. My long-term answer is that I have been working as an advocate and as a lawyer on sexual harassment issues, mostly in schools over the last decade.

And a recurring theme in the public debate is concern about what increased protections for victims mean and increased concern for victims means for people accused of sexual harassment. And I have found that parts of that conversation have been really productive and fruitful, you know, with people acting in good faith, trying to figure out what fair procedures look like in schools, in workplaces, elsewhere. And sometimes it's just men's rights activists who are pretending that they care about due process because actually they just don't want anyone to get into trouble for sexually harassing someone. And it was actually during the hearings for Justice Kavanaugh where I think it clicked for me

how deep sort of the public misunderstanding about both due process and what is bad about sexual harm really distilled for me. And that it felt, that was the time that I felt like, man, this is more than a tweet thread. I should, I got to get writing something longer. I don't know. I came away from that thinking Lindsey Graham had a real firm command about what due process means exactly. That was a joke. But I think, I mean, I think in that moment, he was giving voice to something real that so many people believe, which is men getting in trouble for doing bad things, particularly sexual bad things to women is inherently unfair. And also that anything other than a full criminal trial is insufficient process, even though, of course, due process

is a flexible standard that changes depending on the context, the stakes, all of that. Actually, can I ask you a quick terminological question before we kind of delve too far into the substance, which is you referred in your that first answer to sexual harassment, and you kind of use that blanket term throughout the book. Can you just tell us what is encompassed within the term sexual harassment? For some people, it stands, I think, in sort of opposition to sexual assault or abuse or rape, but you use it in a pretty capacious way. So how are you using the term both in the book and in this conversation?

Yeah, so this was one of the harder things I had to figure out in writing because we don't have really great language that in both legal and popular discourse encompasses all of the things I was trying to talk about, which span from verbal harassment to rape to dating violence, sort of a broad range of different kinds of harm based on sex and or that is sexual. And so I ended up using the term that I use in my practice as a lawyer, which is sexual harassment, which per established court precedent encompasses physical violence. So the first time that the Supreme Court weighed in on this question was in Meritor, where it said that Title VII prohibits sexual harassment. And the underlying facts there include rape of an employee by a supervisor, but all of that was encompassed in this broad term. And I find that useful because sexual harms manifest in different ways, but what I think the through line is the effect.

The through line is the ways in which it limits people's participation in schools and workplaces and public life. And then, of course, the motivation, you know, ultimately coming down to sex stereotypes and sex animus. Yeah, that's super helpful. So maybe we could also invite you to share with our listeners a little bit about your work founding Know Your Nine, because that featured prominently in the introduction and preface to the book in which you were describing what you just shared with our listeners was a lot of experience with advocacy on behalf of victims of sexual-based violence and sexual-based harms.

Sure. So my introduction to Title IX was in college. I'd say sort of before Title IX was cool. I feel like Title IX is uncool again, but there was a moment when it was cool. And this was before Title IX was cool. And so in 2011, I was part of a Title IX complaint to the Department of Education against my alma mater about its mistreatment of student survivors. And it was brought by a large group of victims and allies and really spurred change at the school that our organizing, our petitions hadn't been able to accomplish. And through that, I ended up connecting to students at other

schools, including my friend Dana Bolger. And we started to put together some common themes about what was going on at different campuses and why. And one thing that we realized was that there were these tremendous legal protections under Title IX for students, but that most people just didn't know about them when they needed them. So when, you know, a dean would say, why don't you just leave campus and get a job at Starbucks until your rapist graduates? People didn't know in that moment to say, hold up, you're not allowed to tell me that. And so what started as just what we thought was going to be a pretty basic legal education campaign turned into this organization that I guess it's going on its seventh year now,

that's run by, I can no longer credibly call myself a youth organizer at 31, but is run by genuine youth organizers and current students that does a mix of still legal education, but also works to bring student voices to policymakers to ensure that reform is genuinely responsive to their needs. And, you know, I will say that, you know, that is that was the first context in which I started to see these concerns about due process arise. They have not gone anywhere in the many years since. Yeah. And, you know, they really kind of accompanied the beginning and continuation of the Me Too movement as well.

You know, this was both part of the initial pushback and remains part of the pushback to, you know, evaluations of the Me Too movement and proposed reforms in light of the Me Too movement. And so the book weaves together principles that should guide civil responses to allegations of sexual harassment together with discussions of particular cases to make the guidance and claims concrete. And maybe we can talk about some of the general principles

or general guidance it offers first. So you focus on how institutions should respond as a civil matter to allegations of harassment. Why focus on the civil side rather than, say, the criminal side? Sure. I mean, I have sort of two answers to that. The practical one is that I think that the criminal law is mostly entirely useless to survivors of sexual harassment. For one thing, a lot of sexual harm is not criminal. But even when someone is the victim of a crime, the chance that they're going to feel comfortable reporting to the police, that the police are going to pursue an investigation, that a prosecutor is going to take up the case, that there's going to be conviction,

and that that conviction will be useful to them in any way is so small. And instead, a lot of survivors turn to the institutions in which the harassment happens because those institutions are better trusted and also able to provide the kinds of remedies that survivors often need in the wake of violence. So, you know, at the end of the day, the cops can't reassign you to a shift where you don't have to spend time with your harasser. They can't give you a extension on a paper due the week after you're assaulted. But schools and workplaces and similar institutions are uniquely well positioned to do that. I'll also say that it is these extrajudicial contexts where the conversation about process gets trickier,

because there's a lot of guidance from courts about what a fair criminal trial looks like. And that, of course, doesn't mean that every criminal trial is fair, but there are some pretty well-established principles there. And then the question is, well, what happens outside of those contexts when the stakes are different, the resources available are different? What does fairness look like when it isn't a trial? The book makes a strong case for why institutional responses are often better tailored to addressing harms or preventing additional harms when we're talking about

people, as you were suggesting, being excluded from or subordinated in public life because of sexual harassment. And I think that framework is particularly powerful when we're talking about institutions like schools, as some of the examples you gave, or large workplaces. And I guess I wonder whether that framework has as much to offer us by way of solutions or guidance and how we should think about these issues when it comes to people who might like access both to institutional solutions and to institutions, whether that is, you know, gig economy workers, small business employees, you know, people outside the workforce and whatnot. There, it seems like the only solution, if you can call it that, that I've seen is just sustained public campaigns through the media. So what are

the institutions that should serve those people or what might institutional solutions look like for them? Yeah, I think that that is such a tricky question. And I will say that I have incomplete answers, but it all sort of boils down to law is stupid and actually can't solve all of our problems. And yet this is what I do. And so what I have a little bit of insight into, but look, I think that there are some concrete solutions like expand Title VII protections to independent contractors

so that they can report to an employer that will have some civil rights responsibilities to them. There has been work, particularly on the state level, to make sure that domestic workers who may be particularly vulnerable to sexual harassment because they are alone in people's homes have some kind of state agency to report to because there isn't, you know, in that circumstance, you know, the person that someone cleans for, there isn't someone who then employs both of them who can investigate. But at the end of the day, I think the truth is that I believe that institutional responses are helpful to many people. They are also unhelpful to many other people.

And we're going to need to cobble together as many different solutions as possible. One thing that I talk about at the end of the book is sort of reconsidering the private right of action under the original Violence Against Women Act that was struck down in Morrison. And again, courts aren't going to be accessible to everybody, but in the original private right of action gave survivors the opportunity to sue someone who subjected them to gender-based violence, had an attorney's fees provision so that people would actually be able to get lawyers, even if they couldn't prove particularly high damages, or even if the case was a little bit risky. And, you know, of course, that did not survive the court's review, but a lot of that was based on the record that Congress had relied on

in terms of the economic impact of gender violence. And I think with a more robust record in the wake of Me Too, there's a chance that it could survive. As you note in the book, some of the institutional responses that have sprung up mimic kind of judicial processes or legal processes. But as, you know, you noted in explaining why the book focuses on the civil side rather than the criminal side, sometimes those legal processes, you know, can be a deterrent to reporting or people, you know, availing themselves of, you know, a particular process. So, you know, do more formal legal processes or institutional processes that mimic legal ones run the risk of chilling reporting? Or what is always going to be really scary to be cross-examined. And one thing that was interesting to me in digging into the research for this book is that there just really isn't much evidence that traditionally American adversarial procedures

are more truth-promoting than inquisitorial models that are more common in Europe. And for that reason, many schools and workplaces use procedures that don't look much like a trial at all. Hearings are incredibly rare in workplaces outside of public employment. Even those hearings are pretty informal. They're more common in student discipline. But, you know, schools, I think, have still, when given the opportunity, preferred to use procedures that really minimize circuit that has weighed in on this question, other than the Sixth Circuit, has said that an inquisitorial questioning model satisfies the Constitution. So that means that in any kind of student discipline, not just sexual harassment, if there are two parties,

they can submit questions to a neutral third party, and they ask those questions of the other person. Sixth Circuit says that's not okay without explaining why it was deviating from past precedent. But the Trump administration under Betsy DeVos promulgated Title IX regulations that require direct cross-examination in all student discipline in higher ed for sexual harassment. And, you know, I both think, so what that means is that each person chooses a representative who then directly questions the other person. And that could be a lawyer. It could also be their, you know, their dad, their frat brother. And I think that that is both wrong as a policy matter and also raises the question of why would we think that a model that works for all other kinds of harms is insufficient for sexual harassment? And what does that betray about how we view the,

you know, allegations of sexual harm and their credibility? So Alexandra, I wanted to ask, so you strongly urge people to frame questions about sexual misconduct or sexual harassment as a civil rights issue. So will you explain why that is? What is gained by that framing, both substantively and symbolically? I think that there's so much focus, particularly when we're talking about physical sexual violence, on the moment of impact and the moment of the injury. And that really leaves out the long-term effects of sexual harassment, both on individual victims and on classes of marginalized people. And I share in the book this really remarkable allegation in a lawsuit against a fancy prep school in the

Northeast where a young girl had reported that she'd been assaulted by a classmate and the school said, you know, you're asking us to choose between your feelings and this boy's future. As though, you know, her spending time without any protections on this small isolated campus with this guy who had just raped her wasn't going to have an impact on her future, on her education, on her career trajectory. And obviously, those individual injustices accrue and reinforce gender inequality. And I think that reframing sexual harassment as a civil rights issue helps us understand the stakes and so helps us understand what remedies will address those stakes because incarceration is a really incomplete remedy if we're thinking about someone being able to return to the workplace after they've been harassed by a supervisor, you know, even

imagining again that that harassment were criminal. There's no one-size-fits-all model for a just response and that any kind of relief is going to have to be driven by what individual survivors need just to sort of get into the office, get into the workplace, and feel safe. The one other thing I will say, and something I think a lot about in terms of where the legal community on the left has come out on these issues, is I think that progressive and liberal lawyers are really used to, and rightfully so, taking the side of defendants when we think about issues in the criminal law. You know, I think that that's right. Me too. And I think that some people have brought their commitments and sort of projected their commitments from the criminal sphere onto sexual harassment allegations in the workplace and in schools,

you know, where these debates have played out. But I think that realizing that there are real justice stakes for victims as well that speak to the same commitments that make us care about criminal defendants helps us understand that we really need to be concerned with both sides of the V. It's a great point and really well said. And I think one of the things I've found that's the best about the book was that it just sort of rejects zero-sum logic, right? Like we can be as like progressive lawyers deeply committed to the impact both individually and, you know, on a community wide and systemic basis on victims without totally disavowing concerns about defendants and both procedural and substantive justice. And I think

that your answer in the book very broadly, kind of rejects that false binary. One of the reasons why I find the civil rights frame so persuasive, and I really enjoyed that, you know, part of the book is that it accounts for the more systemic consequences of harassment or discrimination actually influences who is in a position to make rules, laws, or policies regarding harassment or discrimination and actually create the law. The book, for example, talks about how sexual harassment is a threat to victims' education and opportunities and how that means fewer women, queer people, trans people, and people of color in leadership positions where they might shape policy. I enjoyed that part of the book because part of what has frustrated me the most about the

conversation surrounding, for example, some notorious Yale law faculty or some former judges on the U.S. Court of Appeals for the Ninth Circuit is that in a world in which you have, you know, faculty or judges engaging in harassment or discrimination, what that does is it allows people who either are lucky enough not to experience that or who are willing to tolerate it to move ahead in the world and gain credentials that, again, allow them to shape laws and policies. And that is something that is difficult to measure, but you see it happening and it has real consequences for the laws and policies that we have.

So that's one of the reasons why I like this frame so much. I 100% agree. And one thing that I've been watching a little bit recently is also the ways in which these men who shall not be named are able to retain credibility on issues regarding sexual harassment when survivors who come forward have a much harder time being understood as experts who can speak to matters of policy. So, you know, on the one hand, you have he who shall not be named writing articles about the definition of rape while facing allegations of sexual harm. And then you have the Washington Post saying if you are a victim of sexual assault, you can't write about any issue

tangentially related to these kinds of harms. I don't think that that's the world we want to live in. Doesn't seem like a great one to me. Yeah. And just to make more explicit the last thing you said, Alexandra, to Leah's point about the kind of production of, you know, legal authority and legal meaning, and the point holds very much in the world of media and Hollywood and cultural production, right? Sort of what voices are lost and what voices have continued to be amplified along the way. It sort of helps underscore the broader stakes beyond just the sort of individual harm that sexual harassment causes. Yeah, because it is affecting, you know,

who gets that court of appeals clerkship, who gets that Supreme Court clerkship, who is then in a position, you know, to get a job in academia, become a public commentator about the Supreme Court, help people understand the work of the court, and it just replicates itself in extremely troubling ways. So another theme of the book is to argue against exceptionalism in cases of sexual harassment. So maybe you can just define for our listeners what is exceptionalism and why you view it as problematic, you know, as applied to cases of sexual harassment. Sure. So broadly speaking, I talk about exceptionalism as the way in which institutions and the public and historically some courts have singled out allegations of sexual harms for uniquely onerous procedures. And so looking

sort of to the history of criminal law in the U.S., you know, a clear example is that there have been unique evidentiary rules for rape allegations that simply weren't applied to any other kind of allegations. So shorter statute of limitations, prompt complaint requirements, corroboration requirements that just didn't exist for any other kind of crime. Lord Hale instructions, which juries were told. I just like no matter how many times I hear this and talk about it, I cannot get over it. Juries were told that basically bitches lie. And that was... Yeah, no, no, just to make it explicit, like the actual instruction, I have that flagged here in my notes on the book. Rape is, quote, an accusation easily to be made and hard to be proved and harder to be defended by the party accused, though never so innocent. It's like that was a communication to the juries.

And that's still in the model penal code. They're quite explicit that the justification for all of these rules was that they thought that women would be mad that you didn't call them back or that if they got pregnant. That is not subtext. That is the text. And I think that we see and I draw heavily here in the work of Michelle Anderson, who's a rape law scholar, the president of Brooklyn College, who has documented how those long histories manifest today for, you know, example and campus procedures. And she has a really wonderful article talking about Harvard's policies, I guess, 20 years

ago at this point. But for me, the DeVos regulations are just the best example of this, where we now have this bizarre situation where students accused of sexual harassment within the definition of these new Title IX regulations promulgated last year have significantly more procedural rights than students accused of other kinds of harassment, of hazing, of beating up their roommates, all these other harms that we think of as analogous, even though as a legal matter, what determines appropriate process or what processes do turns on the stakes. It turns the different interests. Nowhere do we say that process turns on the stakes. It turns, you know, the different interests. Nowhere do we say that process

turns on the specific kind of substantive allegation. And I will say, because I know I'm talking to a lot of lawyers, I know there's an asterisk for fraud. I deal with that in a footnote. But, you know, I think it just goes to, you know, it underscores that civil trials for murder use the same procedures as civil trials for theft and criminal trials for murder use the same procedures as civil trials for theft and criminal trials for murder, use the same procedures as criminal trials for fraud. You know, I think that ultimately that obviously poses a significant obstacle to victims, but I think is taken as sort of standard protocol in thinking through a lot of these questions. Hearing you talk about Harvard's policies from 20 years ago made me

realize I also cannot and should not refer to myself as a youth organizer because that was actually my first experience with Title IX and, you know, dealing with policies involving sexual harassment was Harvard's institution of the corroboration requirement. And I started college right around the time that they, you know, began it and then, you know, were challenged and eventually rolled it back. So yeah, fond memories of my beloved alma mater that I refuse to give any money to. Sorry, that was a separate issue. No, that's the spirit. That's the spirit. Well, but it is also just wild that like the fight has remained so unchanged.

These institutions have been so resistant to these very well-articulated calls for reform for now many, many years. So sort of a question on that point. So you're obviously critical of imposing these crazy heightened standards of proof in such cases. But we should say that some of the guiding principles you lay out definitely do allow decision makers to take account of differences between different kinds of conduct or misconduct. So can you talk a little bit about the kind of guidance to decision makers that the book sort of sets out? In particular, sort of thinking about, you know, you rely on the Matthews due process framework and talk about, you know, due process as a balancing act and think about applying those principles to these kinds of institutional settings. So could you talk a little bit about

some of that? Definitely. So this, I will say, was one of the two hardest chapters for me to write to distill all of law on due process into a chapter that would be interesting for non-lawyers. I originally had the chapter was just me telling stories about cases. And my editor was like, this is incredibly boring. No one cares about the facts of any of these cases. So but, you know, I think that the principles that we can distill. I disagree, editor. One of the things that really stuck out to me was the like opening story about, you know, a client who you call Darby. And, you know, this was a very promising student who was succeeding at school, and she is assaulted by a classmate, and her school basically says, suck it up. And as a result, you know, she

struggles for the remainder of school and, you know, is not the same student and doesn't have the same opportunities, you know, that she did before. But anyways, just my reaction. I'm glad that that resonated. And I should say my editors are wonderful and they appreciated storytelling in general. They were less enthused about, you know, the procedural history of Matthews that apparently is not fair enough. But honestly, also to Leah's point, like the sort of backstories of some of the Supreme Court cases you do talk about, like Meritor, which you talked about earlier in the podcast, has just unbelievably horrifying facts that are sort of sanitized in the Supreme Court opinion, or at least in like the way it

is discussed as this important case on sexual harassment. So I was glad you brought those facts out. But it is true that Matthew's facts, you know, maybe like wouldn't have been as gripping. Yes. So I've distilled some principles from that. And, you know, and I lay these out not just as legal principles, but as ethical principles, because, of course, for a lot of institutions, due process does not apply at all to technical matters. So any private employer, for example, just doesn't have due process commitments to its employees as a matter of law. But as a matter of, you know, I think that both the due process case law reflects our ethical commitments as a society,

at least at its best, and then reflects those back and shapes what we think is fair. And so laying out that due process looks different in different situations, That due process will be responsive to the stakes. So someone who is facing a week-long suspension from work is going to need less process than someone who's going to be fired is going to need less process than someone who might be incarcerated, depending on the outcome of a proceeding, which of course is only in courts. And then also I talk about the importance of looking at all of the different interests in the outcome, because, again, so much of how we think about fairness is dictated by the criminal system, where we have the all-powerful state that deserves none of our sympathy, and then an individual criminal defendant. And so it's really, it makes a lot of sense to procedurally

stack the deck against the state. And I want to be clear that I understand that that is in fact not how criminal prosecution works in theory, but it makes sense, for example, to have a really high standard of evidence, like beyond a reasonable doubt. But it's different when we have two people who both have a really significant interest in what the decision maker decides. provide some heavy accommodations and potentially, you know, either fire the other person or, you know, the employer might have to decide who's telling the truth to figure out who gets transferred out of their shared department. And in that case, it makes sense to have a more level playing field. And so my hope is that these kinds of principles can help institutions figure out what fairness can look like in their context, again, without ever singling

out specifically different kinds of harm. So, you know, to my mind, an employer should use the same procedure for every kind of allegation that is concerns interpersonal harm, where there are two people whose, you know, livelihood and professional trajectory is at stake. Same goes for schools. There's just no reason to have one policy for sexual harassment and one policy for racial harassment and bullying and being a big jerk. You know, you just don't need to have separate rules. So I also wanted to talk about some of the other recommendations in the book.

One is to beware of the bad faith actor. And I was wondering if you could elaborate more on how people might be able to do this, because part of this seems to be, you know, a guidance to people who might have some genuine concerns, let's say about exceptionalism or about fair process for the accused. But those concerns get picked up by or amplified by people who are more hostile to the underlying project of addressing at all or remedying at all harms from sexual harassment. So I guess, you know, outside of the context of Democratic and Republican candidates not meeting with men's rights activists, which is an anecdote in the book, and great guidance, by the way, you know, what is the guidance for, again, you know, someone, a commentator, who, again, might have concerns about exceptionalism, but there's risk that that concern, again, gets picked up and transmitted by someone who is looking to undo the project of holding people accountable for sexual harassment at all. It's really tough. I will say that I don't know that I have gotten it down to a science. I've spent over the last decade, a lot of time trying to talk with people who have concerns about

procedures that are being used. And some of those conversations have led to really fruitful relationships where I, you know, were able to bat ideas back and forth and try to figure out the really hard questions. And sometimes I'm 15 minutes in, I'm like, oh, you just don't think that people get raped. Like you just don't think that this is, or you think it's fine. And then there's sort of nowhere for us to go from there. I do find that keeping an eye out for exceptionalism can be helpful because if someone is only concerned about treatment of people accused of sexual harm and not concerned about people who are fired for literally any other reason, they have feelings about sexual harm. They have feelings about women. It's not that they have some bone deep commitment to procedural fairness. And, you know, that's sometimes hard to tell from the outset, but, you know, you look at,

that should have been a red flag for the DeVos regulations for people on the left who are sort of torn because as a general matter, they like process. And then the question is, well, why is this singling out this one particular kind of injury. Or maybe it should be a red flag when, say, someone who is accused of sexual harassment investigated for sexual harassment by, again, hypothetically, the chief law enforcement officer of a state, but who has also attempted to roll back bail reforms and other measures at making the criminal justice system more fair for the accused, all of a sudden has a real bone to pick about how overly harsh and punitive allegations of sexual harassment can be. Another, you know, again, hypothetical about the hypothetical bad actor, bad faith actor. Yeah, no, I think that that's exactly right. And, you know, I should say that I don't,

it's not just that I think we should be skeptical of these kinds of policymakers and pundits because, you know, they're meanies, but I think that actually their ideas are bad. So, you know, when we look at a lot of these exceptionalist proposals, at the end of the day, they just don't make sense. And we would all know that if we had been talking about, you know, a broader form of misconduct. So a judge on the district of Massachusetts just struck down, I think two weeks ago, a part of the DeVos regulations that are just these totally wild evidentiary rules where if someone confesses in writing to sexually assaulting a classmate, but then refuses to show up for a

hearing, that information can't be considered. That's obviously not how evidence works literally anywhere else in courts and administrative proceedings, anything like that. And I think that if we had been talking about student discipline in general, everyone would have realized that much sooner. But it seems to make sense because had been talking about student discipline in general, everyone would have realized that much sooner. But it seems to make sense because we're talking about rape. So one thing we wanted to ask you about, maybe to say a little bit more about is sort of where you started, which is that the kind of backlash or response to Me Too was framed in many ways in terms of kind of feminists like not caring about fair process or due process. So just wanted to give you a chance to kind of broadly answer that response. If that, and I guess, do you feel like the kind of your critique of the backlash,

does it feel like we have moved since the initial kind of backlash to Me Too? Or has your critique started to land in terms of the receptivity you're getting from audiences when you talk about these topics? Or are we still in a kind of a defensive posture in which the kind of the backlash is still a really powerful one, would you say? I think the backlash is still pretty powerful. I think that people are getting hip to the problem. But I do think that the backlash is serious. I think that, you know, we just saw Catherine Layman, who is the nominee for Assistant Secretary for Civil Rights at the Department of Education, has just been grilled by Republicans primarily concerning, you know, her apparent lack of concern for due process for students, even though she and the Obama administration under her

leadership did a ton of work around discriminatory discipline when she was previously in that role. You know, I guess I would say, I think that the backlash is, part of what frustrates me the most about the backlash is that I think it's just wrong as an empirical matter, because I think that there are so many feminists who come from public defense backgrounds, who come from poverty law backgrounds, where, you know, Matthews is deeply relevant, where the procedural protections are core to so much of the legal work, who really do get it. A lot of us also represent students who face disciplinary charges, even as we also represent

students who are experiencing harassment. Sometimes even as we also represent students who are experiencing harassment. Sometimes those students are the same people. And I think that there's a lot of thoughtful discussion that's happened there that the right has really just caricatured as, you know, women hate men and want them shot on sight. And that's not only frustrating because it means that people are being caricatured, but also because it actually gets in the way of a lot of fruitful discussion. Where sometimes I'll see an op-ed in the New York Times saying schools should not just automatically expel students or employers should not just refuse to investigate and terminate someone as soon as they get an allegation. It's like, of course, there are actually people who have been thinking about this for a long time. And if you would bother to talk to us, we could tell you about the exact intricacies of what policies we think that employers should use. But instead,

you think that you're the first person who has ever thought about the fact that maybe it's important to vet an allegation. One of the things that is very frustrating to me about this critique is not only that many of the people advocating for more serious responses to sexual harassment come from the backgrounds you acknowledge, but also that many of the people advocating for, you know, more serious responses to sexual harassment come from the backgrounds you acknowledge, but also that they recognize the value of process to the accuser in addition to the accused. So, you know, people who are pushing for fairer procedures or more fulsome procedures want them in part so the accuser, as well as potential future victims, have some set of findings and a robust procedure that resulted in a set of findings to point to for the inevitable time when the accused wants full participation in a setting, you know, not subject to whatever disciplinary precautions or other rules, you know, might be instituted so as to prevent future misconduct.

And that's part of what has frustrated me about the critique is that there is value in process and robust procedures, not only for the accused, but also the accuser. And anyone who has thought about this for longer than five seconds recognizes that. And so to suggest that like only one side cares about fair process is just completely wrong. I think that's 100% right. I mean, I think that's so much of what, you know, I have seen in lawsuits from people who have been terminated or disciplined for sexual harassment really reflects the demands that victims have been making for many years, which is you should give us an opportunity to be heard. You should give us an opportunity to tell our side of the story.

You should take this seriously. And I actually, this is a good juncture for me to say that I'm talking in my individual capacity and not for my employer here. But I actually think that Cuomo, the recent investigation into Governor Cuomo should serve as a reason for hope. Because what we saw there is women came forward to say that they had been harassed by the governor. There were legislators who were not ready to impeach without an investigation, which at least for the allegations that he didn't admit to seems like a perfectly reasonable, sound response. And we got that investigation, which gave everyone, Cuomo and his victims, the opportunity to say what happened and to provide their evidence. And the fact that Cuomo doesn't like the outcome doesn't mean that he wasn't treated fairly.

Just seeing that that's what institutions can do, and admittedly very well-resourced institutions, but that's what institutions can do should really give everyone hope. And I think that that's particularly important when some of the really high-profile allegations against other men in government have never had the chance for that investigation. So I'm thinking about with Justice Kavanaugh that, you know, whatever you think about the merits of the allegation, it's now been very well established that Republicans really got in the way of any kind of vetting of the reports that they received. We have Senator Franken who stepped down before an investigation. We have a certain Ninth Circuit judge who stepped down before there

was any kind of investigation. And I think, you know, whatever you think about their personal decisions in those instances, it is easy for people to feel hopeless if they don't see institutions acting and they don't actually get to the truth of the matter ever. So I'm glad that we got the chance to see an institution soundly and thoroughly investigate. And I think that that will serve as a model for future allegations. MeToo backlash or some of the MeToo critics, because for those people who continue to claim that Andrew Cuomo was denied due process, it's like he literally got a full blown investigation led by the chief law enforcement officer of the state. I can't tell you how many victims of sexual harassment want that. Like that is the gold standard in a lot of ways. And the idea that that isn't or the guidance from the book might be useful in thinking through them. One question that I've seen come up repeatedly, and this came up with respect to one set of allegations involving the legal profession, is how to think about or

frame situations in which there is one accuser versus multiple accusers, because it's surely true that multiple accusers add credibility, right? If like many people are saying this person engaged in harassment or misconduct, that makes it more believable. But it also can't slash shouldn't mean that a single accusation isn't credible or isn't important or that we should assume it's the only thing out there. So I guess, you know, how should we think about or how should we talk about cases in which there might only be one accuser in ways that acknowledge, you know, cases in which there are multiple accusers, you know, are certainly different. I think that that's so tricky. And I will say that I don't think that that's a problem that's unique to this issue, where I feel like as a litigator, sometimes when I get worried when my facts are too good, because I'm worried that a court will announce a rule that treats the facts that we have as necessary rather than simply sufficient. You know, I think that first and foremost, recognizing that

testimony of an alleged victim is evidence, period. And so if you have multiple complainants, you have more evidence. But one is still evidence. And that is actually kind of a controversial idea. If we, you know, we were talking earlier about corroboration requirements that were historically required in rape prosecutions that Harvard required when he were a student and recognizing that what someone says happened is at least some income that it might have happened is a pretty radical idea. Now, that doesn't mean that that's going to be enough to sanction someone off of, but it at least weighs on one side. So, you know, we've been talking a lot about institutional responses to allegations of sexual misconduct, and we wanted to ask you about the role of kind of public campaigns and public shaming. So you talk in the book about your ambivalence about the shitty men in media list. Can you talk a little bit actually about the college antecedents to that list that you discuss in the book? And then acknowledging that this is a really tricky issue, what do you think are the complicated ethics of creating so-called like bathroom wall lists of accused abusers and

perpetrators of sexual harm? It's so hard. I have so many feelings about this. So there is a long and rich history, and I think really interesting history, of feminist vigilantism to call out sexual abusers when institutions fail. So I remember hearing when I was in college about women at Brown in the 90s writing the names of people who had assaulted them or their friends on bathroom stalls. And then I have, over the last year, I've been talking to some high school students who have been doing a version of the same on Instagram, where they create these anonymous Instagram accounts where people can message them and say, you know, so-and-so assaulted me, and then the account will post that.

And where I ultimately come down on all of this is it's like, this is, let's just be clear. This is not the way we want to do things, but in order to prevent those kinds of responses, we need to have better alternatives. So it can be true at once that this is going to be inevitably messy, that people are going to be wrongly accused. They're not going to have the opportunity to tell their side of the story, that there's just really no mechanism to vet these allegations. And also that if people have no other options, this could be their best one. This could be necessary for them to feel like they are protecting themselves and their community. And it's really impossible for me to sit in judgment of anyone who pursues the best option available to them at the time. And so

I talked to a school administrator last year who was at a school where one of these Instagram accounts had popped up. And he was feeling really frustrated because the parents of the kids who were named were mad at him. And then the people who had been victimized were mad at him. And I thought, well, at the end of the day, students are only taking this step because they don't trust you to handle this. They don't feel like if they come forward to you, that you will keep them safe. And that's a refrain I heard again and again from the students who had started these accounts. So the best response to that has to be building up meaningful

institutional responses. And I should just add that one thing that I think sometimes gets lost in these conversations about these vigilante efforts, which I have just left out too, is the tremendous risk that comes to the people who create these lists because they are concerned for the safety of their community. So the creator of the Shitty Media Men list is facing a defamation lawsuit. One of the students who I talked to who started one of these Instagram accounts had received a bunch of really violent threats. And there have been some people who have created similar accounts at colleges who have been threatened with discipline by their universities. So it's not just a question of, are these good for the accused? But what are we demanding of victims? What risks are we requiring that they incur when our institutions aren't prepared to

respond appropriately? I mean, the fact that this recurs even in the face of this tremendous personal risk that people are taking on really just underscores how great the institutional failures have been. And you're right, I think it's really complicated. Okay, so in the face of this really systemic set of institutional failures, you know, you do have some concrete ideas on efforts have been. And you're right, I think it's really complicated. Okay, so in the face of this really systemic set of institutional failures, you know, you do have some concrete ideas on efforts to prevent sexual misconduct, especially on campus and in workplaces. What are some of them? I think that there are good models out there that give us reason to hope that institutions are up to the job. So one thing that I think is really important

and goes under discussed is the importance of accommodations for victim, again, particularly in the workplace and in schools, where there's so much discussion about punishment and process, and I recognize that I'm contributing to this problem, but at the end of the day, so many people turn to institutions for help because they need some kind of extra support or they need some kind of change to their schedule. And institutions are well positioned to provide that. You know, they need mental health care, which could be available for free on campus or through an employer. And that to me is often really, you know, in my experience has been the difference between someone staying in school or dropping out or staying in a job and leaving without a next paycheck planned for. And that shouldn't be controversial, right?

Because no one is hurt by that at the end of the day. And then I do think that getting process right is a big part of it. I think that we don't have to start from scratch because pretty much every institution already has some kind of procedure for dealing with misconduct amongst members. And that can be a starting point to develop a policy that is up to the task of handling sexual harassment allegations as well as other kinds of harm. I think it's really important, again, that those procedures not single out sexual harassment, both because that is a recipe for, you know, placing unique obstacles on victims of sexual harassment, but also because many people's experiences can't be

distilled to just one kind of harm. So if you have a woman of color who has experienced racialized sexual harassment, it cannot be that she has to file, you know, go through one investigation for sexual harassment through one procedure and then a whole other procedure for racial harassment and try to disaggregate, you know, what was race and what was sex. That's just not how discrimination works. And then I also think that ultimately one of the benefits of a fair process is that it instills community trust so that people are prepared to accept the outcomes and believe that the project of trying to stop harassment and address it after it occurs is ultimately a just and fair one that deserves community trust. So I spend a lot of time dealing with when all of this goes wrong. I mean, if I would not have, you know, my legal practice representing students would be very different if schools handled allegations great all the time. But I do, I think that we're at the start of trying to get this right. You know, it's so

recent that courts have recognized that sexual harassment is a form of discrimination that institutions have to trust. It is so recently that institutions actually decided it was in their best interest to try to follow that law occasionally. And I think that we will get it right. We just have to have the patience and the willingness to call out the backlash that is trying to stop that progress in its tracks. Just in the spirit of talking about, you know, solutions, we did want to highlight, you know, some of the organizations that are working to address, you know, sexual harassment on campuses. We've already mentioned Know Your Nine. We also wanted to give a shout out to the

University Survivors Movement, an organization that actually does some work with Know Your Nine. University Survivors Movement is a global coalition of student-run advocacy groups which share survivor stories to expose the reality of sexual violence and intimate partner abuse on college campuses and to advocate for trauma-informed policy changes and provide a platform for and uniting student survivors across the country in their fight to end sexual assault on college campuses. So that is probably all we have time for on this episode. Thank you so much, Alexandra, for making time in between having a full-time legal job and writing a book to join a podcast to share with us some things about the book. We really appreciate it.

Thanks so much for having me. I'm a fan. So it's exciting to be here and also to have your early things about the book. We really appreciate it. Thanks so much for having me. I'm a fan. So it's exciting to be here and also to have your early reactions to the book. The book will be out when you are listening to this podcast. So we'd encourage our listeners to check it out. Again, it is called Sexual Justice by Alexandra Brodsky.

Thank you also to Melody Rowell, our producer. Thanks to Liam Bendixson, our intern for the summer. Thanks to Eddie Cooper, who makes our music. And thanks to all of you for listening. If you would like to support the podcast, you can sign up to become a GLOW subscriber at glow.fm forward slash strict scrutiny. Thanks, everyone.