Monday, July 7, 2008

In Memory of Professor Halper

I am writing to share a few thoughts on the passing of Outlaw's faculty advisor, Professor Louise Halper. Although I am no longer an active member or officer of Outlaw, having graduated this past May, I wanted to share with the group my reflections upon her career and her tenure as the faculty advisor for Outlaw.

Professor Halper had a remarkable career, even compared to her many distinguished peers at Washington and Lee University School of Law. Upon graduating from law school at Rutgers University and receiving an LLM at NYU, Professor Halper embarked upon a career dedicated to serving the public good at such institutions as the American Civil LIberties Union. Professor Halper's devotion to the public interest continued into her later career as a law professor as well. 

Upon entering legal academia, Professor Halper demonstrated the unique intellectual prowess for which she is known among her students and colleagues. In addition to serving as a law professor at Washington and Lee, she traveled to and held positions with other academic institutions in both the United States and abroad. Professor Halper was so respected among her peers that she was eventually chosen to lead the Lewis Law Center, which is the research and faculty support component of Washington and Lee's Law School.

I came to know Professor Halper as a scholar through my experiences in her Property and Jurisprudence courses, as well as through my observations of her work as head of the Law Center. In the latter role, Professor Halper worked tirelessly to expose the Law School to areas of legal scholarship not previously explored at Washington and Lee. She helped organize a wonderful symposium about gender issues in Islamic countries. The role of women in the Middle East is seldom discussed at Washington and Lee but is a matter of greater concern as the United States and American legal thought increasingly influence and are influenced by events in the Middle East. Professor Halper's recognition or the importance of these issues and her efforts to bring them to the attention of the community speak highly of her passion and intellectual commitment.

Of special significance to myself and other LGBTI students at Washington and Lee was the symposium that Professor Halper and the Journal of Civil Rights and Social Justice sponsored, entitled "A Queer Definition of Equality." The symposium was the first of its kind at the Law School because it dealt with sexual orientation and the law in a scholarly context. I can remember Professor Halper describing the planned symposium to me a t a barbecue in the Fall. Her excitement regarding the event was rare and infectious, even though it was six months away. It was one of the few times I have seen a grown woman over 60 visibly display a fervor normally reserved for a 16 year old school girl talking about her favorite boy band. As LGBTI students, we have faced immense challenges at Washington and Lee. Professor Halper cared deeply about LGBT issues, and her work obn the symposium revealed her abiding faith in humankind's ability to achieve a more perfect understanding and accommodation of each other through intellectual study and discourse. She is a tremendous loss to the Law Center. Whomever is chosen to succeed her in that leadership role will be simply unable to match the strength of Professor Halper's convictions or her willingness to put diversity issues at the forefront of our community's scholarship.

I also experienced Professor Halper's impressive intellect firsthand in the classroom. Professor Halper was one of the most engaging teachers in the Law School. She constantly elicited students' opinions about the day's reading or even about current legal issues surrounding property law. She also displayed a great desire to connect to her students and engage their minds. In fact, so great was her enthusiasm that she preferred to sit on the desk at the front of the classroom, rather than lecture from behind the podium, just so that she could be closer to the students. In Jurisprudence, our roundtable discussion of law, legal history, and philosophy demonstrated Professor Halper's unique insight into the law. Every student's opinion was heard and valued, an yet Professor Halper could always come up with an idea or argument that put all of ours to shame.

Just this Spring, I entered Professor Halper's office in the Powell Suite to receive her comments on a draft of my Jurisprudence paper. I had written a paper arguing (based upon the theories of a German legal philosopher) that the law could focus on substantive policy goals again, as it had in the past, if certain regulations upon the media and the public sphere were allowed so as to enable a consensus policy created by the legislature to guide the law. I had claimed that this would break the law out of its pure reliance upon procedure. Professor Halper had read the paper and listened patiently to my argument. When I had finished, she said that it appeared to her that my proposal to regulate the public sphere to enable consensus policy-making was simply another version of process theory and not a substantive basis for the law. She elaborated a little further. I objected to her criticism, and a brief debate ensued. But in truth, as soon as Professor Halper had made her initial observation, I knew she was right, and though I pressed on in stubborn refusal to concede, she quickly buried me in the compounding illogic of my position. She was right, plain and simple, and it still showed the great gap between us in understanding and ability. I should also note that this episode revealed not only her intelligence, but also her willingness to challenge other people's assumptions, even if she was sympathetic towards their ideas. I suspect Professor Halper actually liked some of the ideas and arguments I was making. However, this did not stop her from pointing out the flaws in my theory. Professor Halper had not just great intellect, but also intellectual honesty.

In addition to my experience with Professor Halper as a teacher and scholar, I came to know her well as the faculty advisor for Outlaw. I had the pleasure of working with her for two years as our faculty advisor. While it would have been easy for her to remain aloof and simply allow student officers to run the organization without her input, Professor Halper never took the easy approach; she maintained an active interest in the work of the organization despite her many other responsibilities. She would ask about our event schedule and the life of our community, and she would offer helpful suggestions about how to get speakers, how to get funding, and even how to persuade more people to get involved with the organization. Professor Halper was ceaselessly honest and candid, which is why I would always turn to her for advice whenever a problem or a crisis arose. Her advice proved invaluable to me, particularly in my efforts to secure funding and co-sponsorships for the organization's programs and in our attempts to promote Outlaw's policy agenda to the University administration. Much of what the organization has accomplished would either have been impossible or significantly diminished without Professor Halper's support. In addition, Professor Halper was a tireless advocate on our behalf, willing to stick her neck out for us when others would not. Our professors and administrators are fine people with significant personal principles, but few, if any, have consistently backed up their principles with action in the way that Professor Halper has. Professor Halper's willingness to fight for the LGNTI community is perhaps her most missed characteristic now that she is gone.

In closing, I wish to comment upon Professor Halper as a person. Professor Halper made every effort to remain informed of and provide encouragement with regard to her students' lives. She often asked about a student's job hunt or their stress level in Washington and Lee's rigorous academic environment. Professor Halper was principled and willing to fight for what she believed in, but she was also invariably courteous and kind to all people, even those with whom she disagreed. This same kindness drove her to display a special caring for the lives of her students.At the start of each of the past two academic years, Professor Halper attended Outlaw's Queer-b-que. It is an event we hold every Fall to welcome our new members and new students generally. Although we have traditionally invited any faculty members who wish to attend, Professor Halper was the only law faculty member who would come each year. Being the lone faculty member at the event never bothered her. She was happy to be there and was never aloof from the students. She would ask each new student their name and a little bit about them, and she would sit with us like any other student, eating and drinking and talking into the night. Professor Halper acted in a way that made it clear that, while she was a professor and we were students, we were nonetheless all colleagues.

And so, to Professor Louise Halper, our teacher, mentor, colleague, advisor, and friend, I offer my thanks for her life and service, and I wish to express my sympathy and condolences to her family. Rest in peace, Professor Halper.

Tuesday, May 20, 2008

New Policy Proposal, Referenced in Ring Tum Phi May 26

The new version of a proposed hate speech policy worked on by Mr. Martin and Mr. Yahr and referenced in this year's final issue of the Ring Tum Phi in the letters to the editor section, follows:

a) Washington and Lee University condemns the use of hate speech by students, faculty, and staff. No student, faculty member, or staff member, shall use hate speech, in written, oral, or recorded form, in or on facilities owned, operated, or managed by the University. Hate speech includes, but is not absolutely limited in all cases to, the use of slurs, epithets, and clearly derogatory words or phrases on the basis of race, color, sex, gender, religion, national or ethnic origin, age, sexual orientation, or disability. In addition, no student or employee of the University shall, on any grounds, including race, color, sex, gender, religion, national or ethnic origin, age, sexual orientation, or disability, engage in speech designed and intended to incite imminent physical violence or unlawful activity against another member of the University community. Nothing in this section shall be construed to limit, prevent, or prohibit free and open classroom discussion, or the full and free expression of moral, social, philosophical, religious and political views. If a respondent identified in sections (e)–(h) can demonstrate, by clear and convincing evidence, a reasonable, non-derogatory meaning under the circumstances for the respondent's verbal conduct, the respondent shall not have used hate speech or violated this policy. An act in violation of this policy performed by one particular respondent shall constitute one incident of prohibited hate speech in a University facility regardless of the number of individuals who report the conduct.

b) For purposes of this policy, "clearly derogatory words or phrases" are defined as words or phrases that, under the totality of the circumstances, are not reasonably susceptible to a non-derogatory meaning. The term "clearly derogatory words or phrases" is to be construed narrowly.

c) Whether a particular incident qualifies as the use of prohibited hate speech in a University facility is evaluated on a case-by-case basis. Nonetheless, the use of the following terms, words, and phrases in a University facility is highly likely to violate the policy:
-that's so gay
-towel head
-jungle bunny
The foregoing list is not an exhaustive list of hate speech in any way. University administrators, students, faculty, staff, and conduct bodies shall look to this list, in combination with the plain language of the policy, for guidance in considering whether a particular incident, including those not involving specific terms on the list, qualifies as an incident of proscribed hate speech in a University facility.

d) If an individual fails to report an incident of prohibited hate speech in a University facility within 30 calendar days of its occurrence, no notice shall be issued as described in section (e), and no consequences shall attach to the alleged misconduct, regardless of whether a violation of this policy actually occurred.

e) If a student, faculty member, or staff member reports an incident of hate speech in a University facility under this policy, the Dean of Students, or any person that the Dean of Students shall designate, shall issue a notice to the person reported as having violated the policy (hereinafter the respondent). The notice shall state that an individual has claimed that the respondent violated this policy, shall state the date and approximate time during which the report was received, shall briefly state the date and alleged circumstances of the conduct reported, shall state the respondent's right to challenge the notice, and shall state the potential consequences of declining to challenge the report of misconduct failing to challenge the report of misconduct successfully. The notice shall be provided both via e-mail and hard copy. University staff and administrators are encouraged to contact the respondent in-person, if practicable, to discuss the matter and ascertain facts regarding the alleged incident. University faculty, staff, and administrators are also encouraged to provide reasonable aid, comfort, and support, to the victims and witnesses of hate speech.

f) A conduct body shall not impose any sanction or consequence upon the respondent if the respondent has not previously been reported as having violated this policy and has not received a valid notice under section (e). Likewise, if the respondent has been previously reported in error as having violated this policy, the University shall not impose any sanction or consequence upon the respondent.

g) Upon receipt of a notice under section (e), the respondent has a right to assert before a conduct body that he or she has not violated this policy. The respondent must give notice of the respondent's intent to exercise this right within 30 calendar days of receipt of the section (e) notice. The conduct body must hold a hearing on the matter upon request of the respondent. If the respondent demonstrates that he or she has not violated this policy, and that accordingly the notice was issued in error, the University shall deem the respondent to have not violated this policy and to have never been reported for any alleged violation of this policy. The erroneous notice will be null and void for purposes of section (h). Once the conduct body has decided whether a conduct violation has occurred, a notification of that body's decision may be published on an appropriate public board or display. The notification shall state that a student was reported to have violated the University's hate speech policy, shall state that the student challenged the report, shall briefly describe the incident, and shall announce the decision of the conduct body. If the respondent has explicitly declined to challenge the section (e) notice and the underlying report of a violation of this policy, then the notice shall stand, and a notification issued by the conduct body shall reflect that the respondent did not challenge the section (e) notice. The notification shall not, under any circumstances, state the name or identity of the victims, witnesses, or respondent involved in a particular incident. Any details of the incident that are likely to reveal the identity of the aforementioned individuals shall not be included in the notification.

h) If an individual has reported a violation of this policy, and the respondent has previously been determined to have violated this policy under the procedures set forth in sections (e)–(g), then no section (e) notice shall be required, and the individual can refer the matter to a conduct body to be adjudicated in the regular manner in which conduct violations are adjudicated. The conduct body may impose consequences as it sees fit under these circumstances. The decision of the conduct body shall be reported in a notification identical to the section (g) notification, except that it shall state whether any consequences were imposed upon the respondent and describe the nature of any such consequences.

i) In determining whether the respondent has used prohibited hate speech in a University facility, a conduct body, including but not limited to the Student Affairs Committee, the Student Judicial Council, and the Student-Faculty Hearings Board, is encouraged to consider the following circumstances:

A) The public or private nature of the comment

B) The actual and anticipated reactions of the victims and witnesses of hate speech during or shortly after the incident

C) The timing of the conduct in question

j) Given the University community's commitment to honor, civility, and safety, students are expected to report incidents of prohibited hate speech in a University facility under this policy. Students are also encouraged to support and comfort witnesses and victims of hate speech in an appropriate manner. No consequences shall be imposed upon any student for failure to comply with the expectations and duties listed in this section.

k) False and malicious reporting of violations of this policy is strictly prohibited. Any student, faculty member, or staff member who falsely and maliciously reports an alleged incident of misconduct under this policy may be subject to appropriate consequences.

Monday, February 11, 2008

Legal Developments for LGBTI people in Virginia

I have decided that my first post on this blog as Executive Chair should be on a subject relating to sexual orientation and the law. I wish to write a brief commentary on recent legal decisions involving LGBT issues in the Virginia area.
The first case has only minor implications for the law of sexual orientation. In Verrinder v. Rite Aid Corp., 2007 U.S. Dist. LEXIS 90931 (W.D. Va. 2007), an employee of Rite Aid Pharmacies alleged that his co-workers engaged in illegal racial and sexual harassment by decrying those, such as the plaintiff, who married women of a different race and by implying that the plaintiff was homosexual. Verrinder, 2007 U.S. Dist. LEXIS 90931 at 2. The federal district court's discussion of sexual orientation issues was brief, and the court's legal conclusions simply cited the unremarkable concepts that Title VII does not forbid discrimination based on sexual orientation and thus the plaintiff needed to prove that he would not have been harassed if he was not male. See Verrinder, 2007 U.S. Dist. LEXIS 90931 at 25 (stating that "Plaintiff must show that he would not have been subjected to offensive comments about his sexual orientation if he were not male."); Id.  at 24 n. 14 (noting that Title VII does not provide a cause of action for employment discrimination based on sexual orientation). The court then refused to enter summary judgment in favor of the plaintiff.
Verrinder is another reminder of the rather limited state of Title VII law in regards to sexual orientation. The federal courts' continued rejection of the argument that discrimination against gay and lesbian employees is a form of sex discrimination has left the LGBT community with little hope of fighting discrimination under federal law. There is the possibility that a plaintiff could succeed in litigation on the theory that employment discrimination was based on his refusal to conform to certain gender norms because of his perceived sexual orientation, but this view is unlikely to take hold in the Fourth Circuit or similar conservative benches. I happen to agree that Title VII, as it exists now, does not forbid discrimination on the basis of sexual orientation. At the very least, it is clear that Congress did not intend for the statute to cover sexual orientation. The gender norms argument referenced above has some appeal to me, but I believe that the application of Title VII as a means to prevent people from holding certain gender norms is beyond the scope of that statute ( although it might  be addressed by other appropriate legislation). Congress' recent interest in passing the proposed Employment Non-Discrimination Act still represents the best opportunity for resolving employment discrimination against LGBTI individuals. See generally Employment Non-Discrimination Act, H.R. 3685, 110th Cong. (2007).
A more interesting recent case involved custody arrangements in the Virginia state courts. In Sirney v. Sirney, 2007 Va. App. LEXIS 473 (Va. Ct. App. 2007), the appellant divorced her husband and took her four children with her to Oregon, where she lived with her female partner. Sirney, 2007 Va. App. LEXIS 473 at 2.  The father was awarded primary custody in 2004, with the appellant retaining visitation rights. The father then requested sole custody of the children, which the trial court granted because communications had deteriorated amongst the parents, the appellant's relationship with her children had deteriorated because she had not had visitation with them for some time, and the mother cohabitated with a person to whom she was not married. Id.  at 3. The trial court insisted that it had not based its decision on the appellant's lesbian relationship, but rather upon the lack of contact between the appellant and the children (due in part to the mother's fear of hostile contact from her former husband) and two of the children's discomfort with their mother's romantic situation. See id.  at 5 (stating that the decision to give custody to the father was the result of two of the oldest children's discomfort with their mother's relationship and the inability of the appellant and her former husband to co-parent the children). Before the Virginia Court of Appeals, the appellant first argued the trial court gave insufficient weight to the father's hostility towards her and his contribution to her inability to see her children and the breakdown in the parents' communications. See id.  at 5 (describing the appellant's assertion that, given the trial court's finding of the father's hostility, it was an abuse of discretion to fail to give more weight to the hostile actions of the father and the breakdown in communications with him). The court rejected this argument because the trial court had found that the building hostility between the couple was "a two-way street." Id.  at 8. Thus the trial court gave adequate consideration to the father's detrimental impact upon the relationship amongst the parents and the children. The appellant also raised an Equal Protection Clause challenge to the trial court's order prohibiting her partner from staying overnight when the children visited. Id.  at 12. The court rejected this challenge because the trial court's order applied both to same-sex and opposite-sex unmarried overnight visitors, and the order thus treated heterosexual and homosexual relationships in the same manner. Id.  at 13. The court did not agree with the notion that the prohibition on unmarried visitors served to exclude only homosexuals. The court simply stated "[m]other's argument that the trial court would have no grounds to impose the overnight restriction if she was married to her current life partner in a marriage that Virginia would recognize as legal poses a hypothetical situation. 'We need not address this argument since it posits a wholly hypothetical situation.'" Id.  at 13–14 (quoting Pryor v. Commonwealth, 48 Va. App. 1, 7 ( Va. Ct. App. 2006)). 
The Sirney decision, in my view, typifies a jurisprudence that ignores significant facts and context. The order prohibiting overnight visitors is a form of proxy discrimination against LGBT people. The court gave short shrift to the important point that Virginia law does not recognize any gay unions, which renders the trial court's order a de facto ban on overnight homosexual visitors. The court, in a rather strange twist, treats this as an argument based on a "hypothetical situation" that merits no further discussion. Yet appellant makes a significant point; legal regimes banning marriage among same-sex couples provides the basis for other legal measures that deny equal protection of the laws. The Sirney Court's failure to recognize this point demonstrates the failure of the current law regarding sexual orientation to appreciate the pervasive discrimination embodied in a state's ban on gay marriage and in routine state trial court orders.
I have concluded my first blog post for now, and I appreciate you taking the time to read it. I would welcome any comments you have on these cases or on federal and state legal issues affecting LGBTI individuals.

Sunday, February 10, 2008

Hate Speech Policy Proposal

Outlaw's Executive Chair, John Martin, has proposed a policy aimed at reducing or eliminating hate speech and improving the environment at the University. The policy proposal will be considered by the Student Affairs Committee. We encourage open debate about this sensitive issue and would like to hear what you have to say. Anyone can post comments, so don't be shy.

Thursday, January 31, 2008

Thanks for reading the inaugural post on Outlaw's new blog! Are you excited? We're excited. This blog is meant not just for the law school community, but for the undergraduates as well. The ultimate goal is to create some conversation here at W&L about LGBTQ issues. For instance, our esteemed leader John Martin is currently leading the courageous fight to implement a new hate speech policy here at W&L that prohibits gay slurs. We'll post the hate speech policy soon, and we'd love to hear student feedback, whether it's positive or negative. Let the blogging begin!