CHRISTOFF ’S DEAR COLLEAGUE LETTER1
HOW TO ABOLISH AFFIRMATIVE ACTION FOR WOMEN:
-- Q & A -Q1: What is affirmative action? A1: Affirmative action is positive discrimination towards a class of persons, often for racial minorities or women. The term is broad in meaning, but it is often associated with colleges. Q2: Are there any ethical reasons for justifying affirmative action for women? A2: No. Women are a solid majority in American colleges: their numbers are increasing, not decreasing. Offering special opportunities to an ever-increasing majority is indefensible and irrational. Q3: Is affirmative action on the basis of race the sa me as affirmative action for women from a legal perspective? A3: No. Affirmative action on the basis of race is covered by Supreme Court rulings. 2 There is no Supreme Court ruling about affirmative action for women. While the Department of Education circulated a Dear Colleague Letter (2015) which justified sex-selective scholarships for the “underrepresented sex,” this Letter is now of dubious value 3 because women are no longer the underrepresented sex in colleges. Q4: Do you support or disavow affirmative action on the basis of race? A4: I am not in a position to substitute my opinion with Supreme Court rulings. If any ambiguity does exist, I would expect the Department of Justice to clarify the matter. Q5: Did you allege discrimination against white men, specifically? A5: No. Q7: My educational institution offers initiatives and programs which are available to women only. What can I do about this? A7: You have multiple choices. You can file an internal Title IX complaint with your University. Title IX is a federal law which prohibits discrimination on the basis of sex. You can file a Title IX complaint with The Office for Civil Rights [OCR], a function of the Department of Education. It might make sense to attempt to solve the problem with your University first; if they dismiss your concerns, do file an OCR complaint. You may use state law mechanisms to dispose of these programs. Q8: Can I file a complaint about any program if men are excluded? excluded? A8: There are certain exceptions in which sex-selective programs are allowed. Athletic scholarships and resources are subject to a different system of inquiry. Fraternities and sororities are exempt from Title IX. 4 This may seem obvious, but there are activists who want to abolish the Greek system. 1
Parody is protected by the First Amendment. Grutter v. Bolinger and and Gratz v. Bollinger. 3 The letter has not been officially rescinded, as far as I am aware. The letter does not cite adequate case law and it was in violation of the Administrative Procedure Act. 4 As per an internal memorandum from 1989. 2
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A program that is entirely external is not covered by Title IX. The program/initiative must either receive money from the University, or it must be using campus space. The overall effect must be discriminatory. For example: your campus has a Lounge for Men, and a separate Lounge for Women. The two lounges are similar in terms of quality. Here, a Title IX complaint is unnecessary.
Q9: Why did you specifically file a complaint against Yale University? A9: The first complaint was against the University of Southern California. At that point, I considered filing a complaint against Harvard University, since it is the largest academic corporation in the world. The objective was to create a binding precedent. Upon careful consideration, I decided that Yale is a better choice. I also wanted to avoid the legal disputes about Harvard’s final clubs. Q10: Do you support the elimination of Harvard’s final clubs? A10: No. The exception clause that protects the Greek system is remarkably similar to the situation involving Harvard’s final clubs. Put in other words, there are final clubs for women and final clubs for men, which creates a balancing effect. In addition, Harvard’s final clubs are completely external to the University, as far as I am aware. They receive “no significant assistance.” Q11: What kind of programs can violate Title IX? A11: Here are some of the programs and initiatives that may violate Title IX.
Any scholarship/award scholarship/award that that is available to women women only. Any only. Any female-only scholarships are very likely to violate Title IX, especially since scholarships for men are very rare (i.e. no balancing effect). Any training that is available to women only. only. For example, does your college offer any kind of training that men cannot attend for any reason? The training is likely to violate Title IX. Example: a high school STEM training session for girls only. Example: “sexual aggression training” that is for women only, implying men cannot be victims. Women’s Studies. Studies. This can be tricky. Does the program have no male faculty members? Does the program have no male students? Does the program have any scholarships which no male has ever received? If any question can be answered with a “yes,” y ou should file a Title IX complaint and see what happens. You would have an even stronger case if you have a male student, or faculty, who is willing to testify that they were denied admission. The Department of Education does not accept curricula and teaching materials as evidence of discrimination. Any conference, conference, initiative, gathering, gathering, or event event that is available to women only. only. Any kind of on-campus activity from which men are excluded is highly likely to violate Title IX. For example: “a panel for women in business.” You would have an even stronger case if the campus offers no equivalent initiatives for men. Any campus space that is available to women only. only. For example, does your University have a lounge or library that men cannot enter? It is very likely to violate Title IX, especially if there is no equivalent facility for men. Any evidence that women receive preferential treatment in admission or scholarships. If scholarships. If such information is available to you, go ahead and file a 2
complaint. A student has obtained such information at Stanford University, for example. 5 Q12: Who can file a Title IX complaint with the Office for Civil Rights? A12: Anyone can file a complaint against any institution. This is consistent with long-standing OCR practice. You do not have to be a lawyer to file a Title IX complaint against your institution, or any institution. However, filing a complaint against an institution with which you are familiar is common sense. Q13: Do I need to spend money? Will I be able to recover money? A13: OCR will not charge you for filing a complaint. You might be able to request damages if you, or any other person, has been specifically denied admission into a specific initiative. However, OCR very rarely grants money awards. Q14: Is it easy to file an OCR complaint? A14: Yes. You do not have to follow a specific legal format, and you do not need to hire legal counsel. All you need is a written narrative, clear and brief, explaining the discrimination. If you need any kind of assistance with your written narrative, please contact
[email protected] and
[email protected] and I will offer you extensive help. Please note that I am not a practicing lawyer and any opinion I present is no substitute for professional legal counsel, including this Q&A. Q15: What if people take negative action against me? A15: You may file an OCR complaint anonymously: indicate that you do not give your consent to OCR to release your personal information to the institution. 6 In addition, if you have evidence that the University (or any other person) takes negative action against you because you filed the complaint, you can file a retaliation claim with your educational institution (or against your educational institution, as it were). Q16: What kind of information do I need to supply? A16: The following information is useful. Any website links. For example, is being a woman explicitly stated as a criterion? For example: “this scholarship is available to women in STEM” may violate Title IX. Does the program have any pictures of events/initiatives in which all participants and decision-makers are women? If so, that is evidence of discrimination. You may send e-mails to the programs to inquire whether they have ever had male participants. If the answer is “no” or if they only have token participation, that is evidence of discrimination. Witness statements from individuals who were denied admission/initiatives; alternatively, witness statements from individuals who considered applying, but who were dissuaded from doing so on account of the discriminatory language. For example: “I am male and I would have applied to this scholarship if not for the fact that the scholarship is advertised as for women only.” Q17: Do you have a template that I can use in order to file su ch a complaint?
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https://www.wsj.com/articles/meet-the-student-whistleblower-who-pushed-stanford-torethink-financial-aid-1517425678 6 https://www2.ed.gov/about/offices/list/ocr/complaintform.pdf 3
A17: Yes. Please contact me at
[email protected] [email protected] and I will be happy to supply you with a copy. Q18: The Department of Education has dismissed your complaint in part and accepted your complaint in part. Is this decision final? A18: No. If additional evidence of disparate treatment emerges, I will amend the complaint against Yale University. Other persons who possess such evidence may be able to abolish more programs in other institutions. In addition, state laws may be more restrictive than federal law in terms of abolishing such programs (for example, California’s Unruh Act).
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