If You Care About Abuse, You Should Care About Who Ted Cruz Wants on the Supreme Court

Ted Cruz is displaying an increasingly disturbing record on child and survivor advocacy. He has a nearly non-existent legislative history of supporting survivors and victims of child abuse, sex abuse, and domestic violence. He voted against the Violence Against Women Reauthorization Act in 2013. He was the only U.S. Senator who did not vote for S. 178, the Justice for Victims of Trafficking Act, in 2015. He considers it appropriate to joke about how he beats his wife and thinks Hillary Clinton should be spanked like he spanks his children. He shows little respect for his children’s physical boundaries.

To make matters worse, last week Ted Cruz appointed Paige Patterson to his Religious Liberty Advisory Council. Patterson has publicly declared that the Survivors Network of those Abused by Priests (SNAP), one of the leading non-profit organizations advocating for survivors of clergy abuse, are “evil doers” who are “just as reprehensible as sex criminals.” SNAP’s vital role in exposing more than 250 child molesters in the Catholic Church was recently featured in the Oscar award-winning movie Spotlight. Patterson’s attack on SNAP came after the organization tried to have him temporarily removed from his leadership position when it came to light he had systematically ignored child and sex abuse allegations against a pastor. Patterson went so far as to verbally attack a women raped by that pastor, accusing her of “protecting evil doers” in the same way he did.

That alone should be reason for Cruz not to appoint Patterson to any position of leadership in his campaign. However, it gets worse. Patterson’s advice to a woman abused by her husband is downright shocking (content warning for description of domestic violence):

I had a woman who was in a church that I served, and she was being subject to some abuse, and I told her, I said, “All right, what I want you to do is, every evening I want you to get down by your bed just as he goes to sleep, get down by the bed, and when you think he’s just about asleep, you just pray and ask God to intervene, not out loud, quietly,” but I said, “You just pray there.” And I said, “Get ready because he may get a little more violent, you know, when he discovers this.” And sure enough, he did. She came to church one morning with both eyes black. And she was angry at me and at God and the world, for that matter. And she said, “I hope you’re happy.” And I said, “Yes ma’am, I am.” And I said, “I’m sorry about that, but I’m very happy.”

But perhaps the most troubling revelation about how Cruz values (or does not value) advocacy for abuse survivors is who he recently declared he would appoint to the Supreme Court if he was president. During the September 2015 Reagan Library Republican presidential debate, Cruz name-dropped Edith Jones on three occasions as who he would love to see on the Supreme Court. “Edith Jones, the rock ribbed conservative on the fifth circuit court of appeals,” he declared, “is who I would have appointed.”

For anyone who cares about child and survivor advocacy, the possibility of such an appointment should be terrifying.

Edith Jones, who serves as a judge on the U.S. Court of Appeals for the Fifth Circuit, made a name for herself because of her notorious 1989 ruling in Susan Waltman v. International Paper Co. This case revolved around workplace sexual harassment and abuse experienced by Susan Waltman while working at the International Paper Company. The following excerpts are from the court case itself, summarizing what happened to Waltman (content warning for detailed descriptions of sexual harassment and abuse and threats of violence):

The first instance of sexual harassment occurred in the Spring of 1982 when an IPCO employee several times broadcast obscenities directed toward Waltman over the public address system. In response, other employees began making suggestive comments to Waltman… Waltman’s supervisor, Garrett, and his assistant urged Waltman to have sex with a co-worker. On several occasions, Garrett touched Waltman in an offensive manner — pinched her buttocks with pliers and tried to put his hands in her back pockets. In addition, Garrett and fellow employees often made sexually suggestive comments to Waltman, for example “I would like a piece of that,” referring to Waltman. During her tenure on the A shift, Waltman received over thirty pornographic notes in her locker… On more than one occasion, co-workers propositioned Waltman… In October of 1983, Waltman reported the incidents recited above to Pardue, one of the IPCO managers. Pardue allegedly told her she should expect this type of behavior working with men… Pardue did not discipline anyone nor did he investigate Waltman’s claims. Rather, Pardue transferred Waltman to another shift. During the summer of 1984, an IPCO employee told a truck driver that Waltman was a whore and that she would get hurt if she did not keep her mouth shut… An IPCO employee told Waltman he would cut off her breast and shove it down her throat. The same employee later dangled Waltman over a stairwell, more than thirty feet from the floor. In November 1984, one employee pinched Waltman’s breasts. In another incident, a co-worker grabbed Waltman’s thigh… At the beginning of January 1985, Waltman contacted Holt, her supervisor, and told him of all the incidents of sexual harassment she had experienced at the mill… IPCO did not reprimand Garrett or any of the other people who had harassed Waltman, nor did IPCO further investigate any of Waltman’s claims.

The incidents go on and on, and the failure of the International Paper Company to respond properly also continues. Two of the judges in Susan Waltman v. International Paper Co. sided with Waltman, reversed the previous court’s decision, and demanded a full trial on the merits of Waltman’s claims. The third judge, Edith Jones, dissented.

Jones’ dissent begins with immediately minimizing the harassment and abuse Waltman experienced. Her experiences, Jones rationalizes, “developed over two and a half years.” In other words, they were not that significant because “the incidents were spaced well apart chronologically.” They also only consisted of “several isolated incidents of unwanted physical contact, an obscene statement made over the plant public address system, plus several remarks addressed to her.” Additionally, Jones argues, Waltman “complains of sexual graffiti on the plant walls…and ‘girlie’ pictures hanging in men’s lockers, as well as a calendar depicting bikini-clad women displayed on a shop wall,” yet none of that comprises “a hostile environment” because it “did not involve [Waltman] or the female anatomy.”

Jones additionally argues that the court should not bother itself with anything other than physical abuse. This is because, “We have so little social consensus in sexual mores nowadays that, short of incidents involving unwanted physical contact, it is impossible generally to categorize unacceptable sexual etiquette. It is likewise impossible to eradicate sexual conduct from the workplace.”

Jones’ conclusion is two-fold and rather chilling: (1) the actions of Waltman’s co-workers should not render her supervisors or employer liable for the sexual harassment she experienced (even though the supervisors and employer looked away) and (2) non-physical sexual harassment, such as sexual graffiti, does not constitute a hostile sexual environment. The most important takeaway from this ruling for abuse survivors and survivor advocates is that Jones refused to hold a institution accountable for its systematic failure to address abuse. This is important because, in the next case we will look at, this theme is repeated.

Five years after Susan Waltman v. International Paper Co., the question of institutional accountability in relation to sexual abuse again arose for Edith Jones. This time it was the 1994 case of Jane Doe v Taylor Independent School District—and the stakes were much, much higher.

Jane Doe, who later revealed revealed her real identity as Brooke Graham, was a fourteen-year-old freshman in high school who was groomed, molested, and raped repeatedly by her 40-year-old biology teacher Lynn Stroud. Stroud had a widely known reputation in his high school for inappropriate grooming behaviors and physical interactions with young girls. Despite this fact, and despite the school’s librarian warning the principal that Stroud was engaging in “child molestation,” the principal and school did nothing for years. When Graham’s mother eventually found out about the abuse, she brought a lawsuit against not only Stroud but the school itself. (You can read the Texas Monthly’s full summary of the events here.)

Jane Doe v Taylor Independent School District sent a shockwave throughout the nation’s public schools. Graham and her lawyers were arguing that the school itself was liable for the criminal actions of one teacher because of systematic negligence. If schools could be held liable for such a thing, every public school in the nation could face similar lawsuits. The case was appealed all the way to the Supreme Court. The Texas Monthly provides a good summary of what was at stake and the overwhelming importance of the result:

An outraged Lankford [the principal] appealed to the U.S. Supreme Court, claiming that if the lower court rulings were allowed to stand, then all public school officials would be “responsible for the private lives of school employees and students, all day, every day, year round.” Many state and national school organizations—such as the Texas Association of School Administrators—filed amicus briefs with the Supreme Court agreeing with Lankford’s arguments. But in October the Supreme Court rejected Lankford’s appeal, siding with Brooke’s right to sue. Attorneys on both sides agree that the ruling gives students substantial legal power to sue their teachers and administrators. Already, according to one document before the Supreme Court, Brooke’s lawsuit has become “a significant catalyst in the explosion of sexual abuse litigation that has been brought against public schools and school officials throughout the country.”

Not only did this case ensure that abused children and their families had legal recourse against negligent public schools that ignored child abusers on their teaching staffs, it also created a sea change in the way public schools considered child protection. Since schools were now potentially liable for child abuse perpetrated by their employees, they made significant efforts to ensure no child abusers worked for them. Immediately after the rulings, Deseret News reports, “many school districts have revised teacher application forms to more readily flag pedophilic behavior. They ask not only about past criminal convictions, but also whether an applicant ever resigned while under investigation for sexual misconduct.” Prior to these rulings, fewer than twenty states conducted background checks on teachers. Post-rulings, that practice is universal.

But what about Edith Jones? She dissented. Jones objected to her “colleagues’ airy assumption that Doe had a clearly established constitutional ‘substantive due process’ right or liberty interest protecting her against ‘sexual fondling and statutory rape’ by a school teacher.” Jones said her colleagues fabricate children’s due process rights to not be fondled or raped by their teachers out of thin air, simply so that “they can hold that the school principal lacks qualified immunity for having poorly supervised the lecherous coach who plotted and consummated Doe’s seduction.”

In Jones’ mind, this was ridiculous. Despite the school principal receiving repeated warnings from other teachers, students, and parents about Stroud’s grooming and abuse of children, Jones believed the principal should be immune from prosecution because “there is no systemic abuse of institutional power exemplified in this case.” Stripping away that immunity would — and this was a negative thing to Jones — grant “a hitherto unrecognized and still-vague constitutional right against sexual molestation of underage minors.”

In both Susan Waltman v. International Paper Co. and Jane Doe v Taylor Independent School District, Edith Jones revealed that she has no qualms with ignoring the fundamental reality of how child and sex abuse thrive: in the darkness of secrecy, where institutions look away from all the troubling signs. If Jones had her way, female employees would have to tolerate sexually explicit drawings in the workplace and violent threats as long as those threats are spaced out during the calendar year. If Jones had her way, both workplaces and schools would be immune from the consequences of failing to properly respond to abuse.

Abuse survivors live easier lives because the Supreme Court ensured Edith Jones did not have her way. It is no small matter, therefore, that Jones is the exact person Ted Cruz now wants on that Court.