Hiring and “Unofficial” Information


The recent story about East Carolina’s offer to Colin McGinn has generated a variety of reactions, some of which concern what kinds of information it’s permissible for academic employers to take into account in deciding whether to make someone an offer. Of particular concern here is the status of information about a candidate’s past behavior that could be categorized as sexual harassment, sexual assault, or otherwise threatening. Must there have been an official institutional or legal finding confirming a candidate’s problematic behavior for potential employers to take such behavior into account? That might protect against the impact of false accusations, but it ignores the fact that some problem cases are “resolved” by informally pressuring the offender to seek employment elsewhere, or with confidentially agreements forbidding the disclosure of relevant information. There are, of course, worries about “mere” accusations and rumors ruining people’s careers. Yet there are also, I’ve learned, vast differences between who knows what about who has done what, and what seem like mere rumors to some seem like well-confirmed facts to others. Do hiring departments have a duty to investigate the “climate impact” of potential hires? If so, how could they go about doing so ethically?

There are a variety of legal and moral issues here, which readers are welcome to discuss. I would strongly prefer that we stick to hypotheticals and general statements, and avoid mentioning specific cases and persons.

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Mike Veber
Mike Veber
7 years ago

The only way to ethically investigate the question of whether McGinn was guilty of SH would be to view the email correspondence between him and the student who filed the complaint. Unless you saw all those emails, holding the complaints against him in the process of making a hiring decision would be wrong and unprofessional.Report

Heidi Howkins Lockwood
Reply to  Mike Veber
7 years ago

Mike, you wouldn’t invest your money with a broker who had been “merely” accused of financial impropriety. It simply wouldn’t be worth the risk; there are plenty of brokers out there. So why hire a philosopher who has been accused of sexual impropriety? It simply isn’t worth the risk. (Indeed, given that the effects of sexual misconduct can be severe — see, e.g., http://feministphilosophers.wordpress.com/2014/03/25/the-extreme-badness-of-silence-2/ — it would not be hard to argue that choosing to take the risk is unethical.)

More to the point: there are many of us who have much more information than what is publicly available. Please, make an effort to inquire before you hire.Report

Mike Veber
Mike Veber
Reply to  Heidi Howkins Lockwood
7 years ago

Whether I’d invest would depend. Did some officials look into these allegations of financial impropriety? And did they effectively say there was no financial impropriety? Well in that case I might just invest–especially if everything else I know says this broker is top notch. In any case, I doubt I’d just start calling up people who’ve been talking about it on the internet.Report

Tim O'Keefe
Reply to  Heidi Howkins Lockwood
7 years ago

Here is another hypothetical situation:

I’m a manager in a restaurant and trying to decide who to hire. One of the applicants, Joe, has a great background in serving in excellent restaurants, but he resigned from his last job after being accused of taking money from the till. Because Joe worked in a unionized place (remember, hypothetical!) he could only be fired ‘for cause’ after undergoing a hearing with spelled-out procedures, etc. He claims that the managers had it out for him, that the hearing would have been a sham, and that he was being railroaded. Then he resigned prior to the hearing.

Would it be wrong and unprofessional for me to take this into account when deciding whether to hire Joe? Offhand, I don’t think so, although I’m happy to hear arguments on the other side. If Joe is actually innocent, I’d feel bad for him, but if I think there is something like even a 50/50 chance he was stealing from his last workplace, as a manager I’m going to take that into account.Report

Heidi Howkins Lockwood
Reply to  Heidi Howkins Lockwood
7 years ago

Mike: “Did some official look into these allegations of… impropriety?” (Yes, in the McGinn case.) “And did they effectively say there was no… impropriety?” (No.) So your response to these two implies that you agree with the ECU administration’s decision.

“Calling up people who’ve been talking about it on the internet” would have led you not to rumors (the current climate is far too litigious for any of us to risk making unsubstantiated claims), but rather to the attorneys for the victim, who would have informed you that an historic EEOC suit has been filed against McGinn, Irwin, and administrators at Miami.Report

Lauren Leydon-Hardy
Lauren Leydon-Hardy
Reply to  Mike Veber
7 years ago

Why would you/a hiring committee/the entire discipline need to personally review those emails for themselves? Wouldn’t that be a radical and unnecessary violation of the graduate student’s privacy? Hasn’t she had her space, privacy, and trust violated enough? Why/how is it insufficient to substantiate her complaint that she shared those documents with her advisors and the administrators at her institution? And why can’t we trust her advisors, who did see those emails, and who reported in several public and professional arenas that the documents substantiated the student’s complaint? Do you actually mean that unless any given individual has seen those emails for his/herself, that they are in *no* position to evaluate the moral permissibility of McGinn’s candidacy?

Even setting aside questions surrounding the content of the emails/texts, shouldn’t we consider McGinn’s own blogging about all of this? Those posts were prima facie retaliatory (NB that retaliating against a student for filing a sexual harassment complaint _is itself sexual harassment_.) The point is just that you don’t need to see the emails to see that he acted inappropriately toward a student. McGinn’s own discussion of their relationship is chilling.Report

Kathryn Pogin
Kathryn Pogin
Reply to  Lauren Leydon-Hardy
7 years ago

I was going to leave a comment, and then I saw that Lauren already said what I was thinking–so I just want to say: ^This.Report

Mike Veber
Mike Veber
Reply to  Lauren Leydon-Hardy
7 years ago

Of course I never said the student should hand her emails over to me. What I said was that we do not know whether her allegation is true unless we see them. And we didn’t. The UM admin did and they effectively said the charge of SH was not true. There was disagreement among the faculty over whether the complaints were substantiated. I can’t settle that disagreement from here.
And of course I never said no one can evaluate the permissibility of hiring him unless he sees the emails. I didn’t see the emails and I thought we should have hired him.Report

Jeff Heikkinen
Jeff Heikkinen
Reply to  Lauren Leydon-Hardy
7 years ago

“Even setting aside questions surrounding the content of the emails/texts, shouldn’t we consider McGinn’s own blogging about all of this?”

DING DING DING DING!!!

I came here to make this exact point because I couldn’t believe it wasn’t already in the OP or the first few comments. In this case we have McGinn’s own word that at least some parts of what he’s accused of happened, and that even taking everything in its best light he’s a bit of a creeper and totally clueless about how this comes off. (And keep in mind, that’s the *most* favorable possible interpretation.) This is not like the Ludlow case. Even if the worst of what McGinn was accused of is untrue, enough of it is that a department is justified in exercising extreme caution in any relevant hiring decision.Report

BunnyHugger
BunnyHugger
Reply to  Lauren Leydon-Hardy
7 years ago

I was going to say the same thing, but I see others already have. His blogging was, at best, extremely unprofessional, and the fact that he did not seem to realize he was embarrassing himself and hurting his own case speaks volumes about his judgment. His blogging alone seems like more than enough reason to consider him a very risky hire.Report

AnonPhil
AnonPhil
Reply to  Mike Veber
7 years ago

Prof. Veber,

You say that “we do not know whether her allegation is true unless we see them. And we didn’t. The UM admin did and they effectively said the charge of SH was not true.” In light of this, I assume that you are taking Prof. McGinn at his word that the reason he was forced to resign was “failure to disclose a romantic relationship” (granted in order to do this you have to ignore elsewhere where he has insisted that there was not such relationship; it’s often hard to keep Mr. McGinn’s story straight).

If this were the case, what is your view of the fact that their is now an EEOC investigation into Mr. McGinn, Prof. Erwin and the University of Miami which alleges that “Miami played down her [the UM student’s] harassment charges, telling her she did not have enough evidence. Instead, the summary says, Miami told Mr. McGinn he had broken a university rule requiring professors to report romantic relationships with students they supervise. The university then pressured Mr. McGinn to resign, the document says, and he did so last December.” I am, of course, citing a CHE article which describes the student’s suit against Mr. McGinn, UM, and Erwin. So, at the time in which you made this offer were you aware that the case against Mr. McGinn and UM was strong enough that the EEOC had granted that the Title IX case go forward? If so, did you simply think that the case had no merit (despite the EEOCs granting the right to sue, as Prof. Lockwood mentioned earlier)?

Is it your position then that despite the fact that the EEOC was being appealed to in order to sue Mr. McGinn and the University of Miami’s (in virtue of their handling the allegations of sexual harassment against him) you did not think this undermined your case for offering Mr. McGinn a job?

For a bit on the EEOC case you can check out the posting from last April on Feminist Philosophers: http://feministphilosophers.wordpress.com/2014/04/28/mcginn-again/Report

Mark
Mark
7 years ago

I would like to see the intermediate premises between “unless you saw those emails” and “holding the complaints against him in the process of making a hiring decision would be wrong and unprofessional.”Report

Mike Veber
Mike Veber
7 years ago

Unless you ethically investigate the complaints, it is wrong and unprofessional to hold those complaints against him.Report

Matt Drabek
Reply to  Mike Veber
7 years ago

There might be some issues here that are debatable. But I think you should expect that a lot of folks aren’t going to be too charitable to you, given that you appear to have an all-male philosophy department with 14 members (which is the appearance your webpage gives – the webpage seems to indicate that the women in the department don’t teach philosophy courses, but only religious studies courses) and one of your professors was quoted in an article using sexist language (“hysteria”). Lots of folks are going to assume, not unreasonably, that you’re not in a great position to hire this sort of candidate.Report

Mike Veber
Mike Veber
Reply to  Matt Drabek
7 years ago

Yes I could have predicted some people would say we are sexist pigs if we had hired them. Some will now say that anyway. But I try not to let fears that people might call me nasty names affect how I evaluate someone’s job application.Report

Matt Drabek
Reply to  Matt Drabek
7 years ago

Fair enough. My suggestion is that you look at this broader pattern (the overwhelming hiring of men, sexist remarks from inside the department) and use it to re-evaluate the department’s hiring practices and climate. There’s an APA site visit program, for example.Report

Michael Bishop
Michael Bishop
7 years ago

Suppose S is already a faculty member and a department is deciding whether to retain S, and S is accused of some sort of wrongdoing. In that case, it would be unethical and illegal for the department to proceed to recommend not retaining S on the basis of allegations that were not pursued through proper administrative channels.

But now suppose a department is deciding whether to hire S. And suppose in S’s previous position, S resigned under pressure, before facing disciplinary hearings that might have led to S’s being fired. In that case, it seems to me appropriate for the hiring department to take that fact – S resigned from a previous position rather than face disciplinary hearings – to be relevant to whether to offer S a job.

The view that a hiring department must always “ethically investigate” the specifics of this sort of case leaves open the possibility that a serial wrongdoer could go from job to job, resigning before being found guilty of wrongdoing. And hiring departments would not be permitted to consider this fact in making a hire.Report

Mike Veber
Mike Veber
Reply to  Michael Bishop
7 years ago

What I said was meant to apply only to this case. A case like what you imagine is different. As far as I know, this is the only allegation that has been made against McGinn in 40 years of teaching. He has said that publically and I didn’t see anyone come forward with a counterexample. So it isn’t like someone who goes around resigning from jobs after he gets accused of SH again and again.Report

Mike Veber
Mike Veber
Reply to  Mike Veber
7 years ago

And don’t take me to say the student’s allegation shouldn’t be considered even in this case. Everybody knows about it so go ahead and consider it. But don’t forget to consider that the administration reviewed the evidence and did not accuse him of SH.Report

Michael Bishop
Michael Bishop
Reply to  Mike Veber
7 years ago

I thought you were defending a general principle for what sort of information it is appropriate to consider when making a hire. And using this general principle in this case leads to a certain result, which you were defending. Now you say that your argument is not based on this principle.

But now I’m puzzled about your view. Do you think that sometimes it is appropriate to consider the circumstances under which someone resigned from a prior position in making a hire and sometimes it’s not? In that case, this new principle needs to be spelled out. (And I don’t know what such a principle might be.)

Or perhaps there is a different principle involved? Perhaps this: When hiring, a department can always reasonably consider the fact that S was forced to resign under pressure from a previous position, but it can also consider the content of the allegations against S. So suppose S was forced to resign from a previous position under pressure, but it turns out that the “offense” S was alleged to have committed was defending a politically unpopular view in print. In that case, it would be appropriate for a department to consider the allegation but give it no weight in its deliberations. Perhaps the department believes that S is not guilty; or perhaps the department believes that even if S is “guilty” of defending an unpopular view, that is hardly a firing offense.

Is this a better interpretation of your view? Or perhaps your view is something else?Report

Kathryn Pogin
Kathryn Pogin
Reply to  Mike Veber
7 years ago

Mike, I’m confused by what seems to be your inconsistent attitudes towards appropriate standards of evidence. You’ve said that the only ethical way to settle the epistemic question of whether harassment occurred is to view the original emails. It seems as though you think direct evidence is crucial to making a judgment if you are to be a responsible epistemic agent. And yet here, you are taking an absence of evidence rather than direct evidence to support the claim that this was the first time someone was accused of sexual harassment. That strikes me as an odd inference to make for someone who’s advocating for a direct evidence standard (actually, the direct evidence standard strikes me as odd too, as it would seem to lead to many reductios). Do you have any direct evidence in this case that there have never been any other allegations of sexual harassment? If so, I would be befuddled. Particularly because (as others have pointed out) certain blog posts seem to be prima facie retaliatory, and retaliation in the context of a sexual harassment complaint is itself sexual harassment under the law (regardless of whether the underlying complaint is substantiated).Report

Mike Veber
Mike Veber
7 years ago

I’ll avoid the pitfalls of trying to formulate general principles and just add: it is one thing to “consider” the fact that there was an allegation of SH by a grad student against McGinn. It is another thing to decide not to offer him a job because of that. I did the first thing.Report

Lauren Leydon-Hardy
Lauren Leydon-Hardy
Reply to  Mike Veber
7 years ago

Can I ask, since you didn’t address this in your response to my earlier comment: did you consider the series of blog posts that McGinn authored about his relationship with the student, the genius project, etc.? Is McGinn’s own testimony insufficiently direct evidence for the goings-on between them? Or, perhaps, you found nothing particularly objectionable about his own descriptions of his pedagogy. If the latter is so, that might help to clear up much of the confusion in this thread, so far.Report

Anon
Anon
7 years ago

I’d like to see an explicit argument to the effect that those who have committed sexual harassment shouldn’t be hired. Suppose we have a character M who (I think unlike McGinn) is known to have sexually harassed. Here’s one way it could run:

(1) M has committed s.h. in the past
(2) If M has committed s.h. in the past, he’s be likely to again if given the opportunity (e.g. if hired)
(3) It’s (prima facie) wrong to do anything that makes s.h. more likely
so (4) M shouldn’t be hired.

The problem — or anyway, one problem — here is that (2) is false. Perhaps if all other things were equal, M is more likely to offend again. But why think that all other things are equal? If a hiring department knew of the previous case, one would expect them to take measures to reduce the chance of any s.h. happening in the future, by e.g. limiting M’s one on one contact with students, monitoring his communications for anything unprofessional, etc. So I don’t think this argument is very good. So what is the argument? Is it based on punitive principles? Principles of desert? What?Report

Liam
Liam
Reply to  Anon
7 years ago

“If a hiring department knew of the previous case, one would expect them to take measures to reduce the chance of any s.h. happening in the future, by e.g. limiting M’s one on one contact with students, monitoring his communications for anything unprofessional, etc.”

… Or, say, not hiring M.Report

Matt Drabek
Reply to  Anon
7 years ago

Okay, how about this one:

(1) M has committed s.h. in the past.
(2) Any new tenure-track or tenured job has far more than one fully qualified “best” candidate.
(3) At least one alternative mentioned in (2) has not committed s.h.
(4) One of those alternatives should be hired over M.
(5) M shouldn’t be hired.Report

Matt Drabek
Reply to  Matt Drabek
7 years ago

…obviously (4) requires a little work to render the argument valid, but that wouldn’t be difficult (i.e., something like “if two candidates are equally qualified and one has committed s.h., don’t hire that one…”).

I’m well aware that some search committees deny (2), but I think they’re just flat wrong about that.Report

Anon
Anon
Reply to  Matt Drabek
7 years ago

(4) — or at least some reformulation that makes the argument valid — seems question begging. In support of the claim that people who have committed s.h. shouldn’t be hired, you’re appealing to (something very close to) the claim that if some candidates are equally qualified, one who has committed s.h. ought not to be hired. But that is virtually a restatement of the conclusion. I want to know what reasons people take themselves to have for thinking that.Report

Matt Drabek
Reply to  Matt Drabek
7 years ago

I’m not sure that’s right. I’m just saying that s.h. is, in some sense, generically negative. I could assert that without assuming that a person shouldn’t be hired because of s.h. There are all sorts of generic negatives (e.g., having a writing sample that’s not quite up to full potential, having a letter of recommendation with one negative sentence) that count in some sense against a candidate but aren’t sufficient for saying they’re not hire-able.Report

Tim O'Keefe
Reply to  Matt Drabek
7 years ago

In support of Matt’s (4): Because it’s an important prerequisite for a professor to do their job well that they don’t sexually harass their students, and because sexual harassment causes serious harm to its victims and to the wider academic community. I don’t find convincing the suggestion that “limiting M’s one on one contact with students, monitoring his communications for anything unprofessional, etc.” should make the department rest easy that things will be OK. And even if that were true, having to do all of those things to help safeguard one’s students would be, all on its own, a major PITA and a significant downside to hiring M as opposed to somebody else.Report

Kathleen Lowrey
Kathleen Lowrey
Reply to  Anon
7 years ago

This seems to treat a propensity to sexually harass as a kind of disability requiring reasonable accommodation, rather than as a simple bad. Which is interesting, because that is so often how this pattern of behaviour is treated — we have to work around Professor X’s propensities, because what he brings us is otherwise so valuable.

It seems to me that this is pernicious on two fronts: the obvious one, of course, about whether a propensity to sexual harassment should in fact be accommodated. But also about whether accommodation itself is “compensatory”. It strikes me that this very framing, which we hear so often about damaging behaviour (Polanski might be a child rapist, but come on, the guy is a great filmmaker! etc.), is invoked precisely because it seems logically similar to the invokers when thinking about workplace or social inclusion generally over the past several decades (“women! gays! people of color! people with disabilities! What a pain they all are! But since they contribute something to society and the workplace, fine fine okay maybe it balances out if we let them participate”). Thus they feel a similar “deal” ought to be cut in a case like, say, McGinn’s. We’re talking about bads balancing against goods right? Same deal, right? And then they feel baffled and beleaguered when others can’t follow their airtight logic.Report

Kathryn Pogin
Kathryn Pogin
Reply to  Anon
7 years ago

I don’t think one needs to endorse a general principle that no one who has engaged in sexual harassment should be hired in order to think that someone who has acted in a egregiously unprofessional manner, acted out at a vulnerable student and her supporters, has given no public apology for doing so, and so far as we know has not made a private one either, should not be hired.Report

Jeff Heikkinen
Jeff Heikkinen
Reply to  Anon
7 years ago

Why think (2) is false?

I take it your last paragraph was intended as an argument to that effect, but to me it reads more like a tacit admission that (2) is *true*, or at least plausible, packaged as a list of far-from-foolproof ways to mitigate the potential damage from that.

(Some of which, by the way, are potentially labour- and resource-intensive in ways that hiring another candidate isn’t. So that gives rise to another consideration against hiring. You’re not only making s.h., or at least creepy and unprofessional behaviour, more likely, but *also* committing resources to minimizing – not eliminating! – this risk, that you would not otherwise have to use in that way.)Report

Pierce
Pierce
Reply to  Anon
7 years ago

How about:

1. M has committed s.h. in the past.
2. S.h. is an exercise of profoundly poor judgment.
3. If M has exercised profoundly poor judgment in the past, he’s more likely than candidates who have not exercised profoundly poor judgment in the past to do so again.
so 4. other candidates who have not exercised profoundly poor judgment in the past should be hired instead.Report

HK Andersen
HK Andersen
7 years ago

Mike Veber, you seem to be conveniently failing to engage with the other evidence that commenters here have offered. There are two allegations in question, only one of which you are responding to. There were accusations of sexual harassment, yes. AND there were accusations about retaliatory blog posts directed at the student _because_ she filed a sexual harassment suit.

There were not simply allegations from a student of sexual harassment, to which none of us may be privy. There were also public blog posts by McGinn himself, to which we all had access. Regardless of the validity of the accusations in the suit, the retaliatory blogposts are available to all of us, including you, and are themselves a separate issue to consider in choosing to make the offer. There is no reason to pretend that the private emails are the only sources of evidence in this case.Report

ConcernedGradStudent
ConcernedGradStudent
Reply to  HK Andersen
7 years ago

First off, I want to thank everyone who is pressing Prof. Veber on McGinn’s retaliatory behavior. Again, these are not “privileged information”, he publicly posted these on his blog. I think that it would help the conversation to be specific about some of these retaliatory posts. A couple examples:

– On several occasions McGinn alleged that the only reason the student made a complaint of sexual harassment was because he threatened to give her a bad grade (i.e. a “poor evaluation”).
Besides this raising serious questions concerning the student’s privacy, i.e. FERPA concerns (that is, professors cannot publicly start announcing student’s grades/performance on their personal blogs), it is also rather dubious considering that if the student was at all aware of Philosophy’s climate issues, especially concerning how individual’s who make accusations are treated (see: “What it’s like to be a woman in philosophy”), then making an accusations of sexual harassment in order to get out of a bad grade seems unlikely…

– In addition, McGinn also publicly insulted the student’s boyfriend (another graduate student at Miami) who corroborated her accusations of his behavior. This included calling him “dupe,” unintelligent, etc.

This conversation has also ignored the NYT’s reporting the student’s accusing (and the boyfriend’s corroborating) the professor soliciting her for sex: i.e. suggesting the she should have sex with him over the summer when no one was around (this again was purported to have been sent in an email). While this might not be the sort of “hard evidence” that one who demands to see all the emails wants on hand, it is worth considering that this, again, was offered by Miami’s graduate students, and that graduate students, being the most vulnerable members of our professions, would very likely not makes these charges lightly.

Finally, doesn’t it make sense that a University would weary of any professor who thinks that his private “Genius Projects” are pedagogically appropriate?Report

Michael Otsuka
Reply to  ConcernedGradStudent
7 years ago

To supplement the above, I think it’s also relevant that this open letter from substantial majorities of the faculty and PhD students of the Miami Philosophy Department offers what, on any reasonable interpretation, amounts to a very strong condemnation of McGinn’s blog posts:

http://leiterreports.typepad.com/blog/2013/07/an-open-letter-of-support-from-faculty-and-students-at-the-university-of-miami.htmlReport

anonphil
anonphil
7 years ago

The claim has been repeated, as if it were fact, that McGinn’s blog posts were “retaliatory.” But how those tone-deaf, unhinged posts would constitute retaliation is unclear–given that McGinn by that time was in no position of authority or “power” over the complainant (nor anyone else) and had already resigned his position at Miami.

To be clear, such blog posts would in effect disqualify a candidate from consideration for being hired in the department of which I am member: we aren’t about that, and we don’t need any “official institutional or legal finding” in order to make the determination based on what is known publicly. (Had a candidate already demonstrated a real change in his sensibilities, our department might possibly view the situation differently.)Report

Kathryn Pogin
Kathryn Pogin
Reply to  anonphil
7 years ago

Retaliation under Title IX does not require that any actor have institutional power over another (actions between students are one of the typical examples). Even if, counter factually, that were not true, he was still employed by the university at the time.Report

anonphil
anonphil
Reply to  Kathryn Pogin
7 years ago

How McGinn’s blog rantings factually constituted “retaliation” remains unclear.

From the Title IX Legal Manual:
“The Title IX regulations incorporate the requirement in the Title VI regulations, which provides that ‘[n]o recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by [Title VI], or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subpart’…. Retaliation claims have their own remedial purpose in that they seek to ensure that rights created under a federal civil rights statute do not go unenforced for fear of adverse official reaction.”Report

Jeff Heikkinen
Jeff Heikkinen
Reply to  Kathryn Pogin
7 years ago

I *sort of* agree with anonphil in that “retaliatory” is a poor choice of words. Is “creepy” better? How about “douchey”? True, those accusations lack the extra punch of being potential title IX violations, but they still seem like sufficient reasons to hire someone else, at least in this market.Report

Kathryn Pogin
Kathryn Pogin
Reply to  Kathryn Pogin
7 years ago

One way the Department of Education has cashed out what constitutes retaliation is behavior that would deter a reasonable person in similar circumstances from exercising their civil rights. Having the person you’ve filed a complaint against blog about your educational record (which, if identifying is also a violation of the student’s rights under FERPA), tying your allegations to allegedly poor academic performance, seems to me to be so deterring.Report

Heidi Howkins Lockwood
Reply to  Kathryn Pogin
7 years ago

anonphil and Jeff Heikkinen: the EEOC suit that has been filed against Miami (and McGinn) is a retaliation suit. For an explanation of how McGinn’s rantings constituted retaliation, please see here: http://feministphilosophers.wordpress.com/2013/08/05/additional-remarks-on-the-recent-doe-warning-about-retaliation/

(The most helpful text is not the Title IX Legal Manual, but rather the April 2013 Dear Colleague Letter.)Report

David Wallace
David Wallace
Reply to  Kathryn Pogin
7 years ago

Could someone explain to this non-US-resident what the interplay here is between Title IX and the First Amendment? I’d generally thought that in the US it was much more difficult to have legislation that prohibited (even very hostile) forms of speech, especially from private actors. (That is: I can see fine how someone’s blog postings could constitute retaliation; I’m less clear how they could constitute a kind of retaliation that’s not also protected speech. And I’d thought that the jurisprudence on harassment was quite narrowly defined, again precisely because of the First Amendment.)Report

HK Andersen
HK Andersen
Reply to  Kathryn Pogin
7 years ago

David Wallace: I’m not a legal scholar, but here is something. The basic idea of retaliation here is retaliation against someone who files a charge related to their own civil rights being infringed upon.Title IX specifically concerns civil rights of women to education and educational activities, which is why it keeps coming up. Title IX protects women in any program that receives federal financing from certain kinds of discrimination. For instance, many schools used to have sports programs of a wide variety for men, but only one or maybe two for women. Title IX is taken to establish equity, where the same number of sporting activities must be available to men and women.

As with many civil rights issues, when a person files a complaint against someone else (or, more specifically, against an institution for allowing an individual to compromise their rights), there is a further right (meta-rights!) to not be retaliated against simply for filing the charge. This is taken to be independent of the outcome of the original charge: even if you file a charge that is eventually dismissed or found groundless, the institution is not allowed to retaliate against you for having filed it. Otherwise, it would be very easy to arrange things so no one ever filed charges about even rampant civil rights violations, because it would mean expulsion, harassment, etc.

So: if a charge has been filed with respect to specific conduct (like that of the philosopher who shall not be named in this thread), then the University receiving federal funds also has an obligation to make sure the student in question does not suffer further damages for simply having filed the charges asserting one’s own civil rights. Student filed a suit. Regardless of the outcome of that suit, she had a right to file it and have the case heard. Retaliation against her, anything that damages her educational opportunities, is a separate offence from that listed in the original suit.

Meanspirited blog posts (so long as they don’t violate student privacy by e.g. disclosing grades) are protected speech. Mean blog posts that are responses to charges of violated civil rights and which damage the reputation, standing, or other educational opportunities of the claimant are not protected. Title IX is the specific statute in question: it is by dint of sex rather than race, for instance, that the retaliation and failure to protect by the University transpired.Report

Peter Alward
Peter Alward
7 years ago

1. I guess I take the moral significance of the distinction between official and unofficial information about job candidates to be tied to considerations of fairness. To adjudicate candidates in part on unofficial information is to treat them unfairly — consider, for example, assessing a candidate on the report of a mutual acquaintance rather than her/ his dossier.

2. Fairness is not the only moral consideration at issue in hiring a job candidate — among (many) other things, the welfare of one’s students is morally relevant. And I don’t think the distinction between official and unofficial information is significant when considering the welfare of one’s students (note: this is an inclination of mine, not an argument). Now I’m not sure whether or not it’s appropriate to actively seek out unofficial information about any potential threat a candidate poses to students, especially if one is aware of no grounds for suspicion. But if it is widely known that allegations have been made that a candidate is a potential threat to one’s students, my inclination is to think one has an obligation to take them into consideration.

3. There are, of course, epistemic differences between various sources of information — some sources of information are more reliable than others. But this doesn’t mean that you completely disregard less reliable sources — including “unofficial information” — only that you give it less weight than information stemming from more reliable sources. Moreover, different moral considerations can point in different directions — someone might even argue that a relatively small risk of harm to students might be outweighed a candidate’s other compensating virtues. So I guess the upshot is that even though the distinction between official and unofficial information isn’t always significant, the sorts of decision at stake here remain complex — and different people acting in good faith can decide differently.

4. Notice how I never once mentioned Coli… oops, I almost blew it.Report

Martin Shuster
7 years ago

There’s a huge glut of extremely talented and qualified philosophers out there. I would ask then why a department would choose to hire someone who palpably has a sketchy background. And saying that McGinn has a sketchy background is entirely compatible with also believing that Miami could have treated him unfairly. His background is sketchy, above all, in virtue of his own blog posts, and secondarily, in light of his history with Miami, his un-collegial book reviews, and so forth. Why bother with such a hire when there is no shortage of great philosophers without such baggage?Report

Derek Bowman
7 years ago

Job candidates often hear that hiring is about ‘fit’ and that our years of commitment to the profession do not mean that anyone owes us a job. Does that only apply to junior scholars?Report

David Wallace
David Wallace
7 years ago

I don’t really have a view on the overall issue, but I think it’s a little misleading to state, as several commentators do, that the sheer number of talented people looking for philosophy jobs means that someone with a cloud over them should be turned away in favour of one of those. Notwithstanding the severity of the job market at the junior level, there just aren’t that many moveable senior-hire people with McGinn’s publication and citation track record. He’s ranked around 100th on Schwitzgebel’s recent tally of most-cited authors in SEP, for instance; he has a dozen or more books with top-rated publishers and many articles in Mind, JPhil and the like; his “can we solve the mind-body problem?” has been cited more than 600 times. NYU and Rutgers can’t pick and choose among a wide stable of philosophers with that kind of research profile, and East Carolina obviously has far more difficulty attracting strong applicants than they do.

Now, it might make sense not to hire even a very senior, very strong candidate because they’ve done something seriously wrong. (I’m avoiding comment on this particular case; I haven’t followed it carefully enough.) It might be that McGinn’s past work is overrated or is not reflective of his current research potential. (I’m on record as viewing his recent foray into philosophy of physics, at least, as risibly bad.) And it might be that tracking publications or citations, or indeed making senior hires in general, is a less good hiring strategy than picking a highly promising junior person whose research record is less developed so far. (I think this is situation- and person-dependent.) But it’s really not true that East Carolina, or anyone really, is going to have a bunch of candidates academically indistinguishable from McGinn.Report

Jennifer Frey
7 years ago

Of course McGinn’s exceptionally creepy, self-serving, and disgusting blog posts matter to whether or not he should be hired as a faculty member in a philosophy department. He was publicly defending a certain *pedagogy* which was offensive, inappropriate, unprofessional, and that showed an incredible lack of good judgment as a teacher (I’d also call it harassment, but I needn’t press that to make my case) This included, lest we forget, an admission that he sent a female graduate student frankly sexual content for the sake of making her into a “genius.” Is there anyone willing to defend this behavior, let alone *hire* someone who promotes it on his own blog? ECU philosophy does not get to pretend that just didn’t happen. It happened, guys. We all saw it, and most of us didn’t forget about it. Major newspapers wrote about it. It was embarrassing.

Also, of course it’s relevant that the exclusively male philosophy faculty at Eastern Carolina University just can’t see anything wrong with this behavior (I see there is one woman listed, but as a professor of “religious studies”) and wants to stick to the nothing-was-really-proved-about-SH-and-he’s-just so-accomplished narrative. Actually, plenty was proved about Colin McGinn after those allegations surfaced; he gave us, for a few weeks, a window into his thoughts about teaching and about the norms of student-professor relations and it was truly shocking.

Thank goodness the administration at ECU had better sense than the philosophy department members, who, based on comments here and in the CHE, seem to care far more about having a famous colleague than about the safety and well being of their female students.Report

Zara
Zara
7 years ago

Putting McGinn aside, the general issue is a real one. Imagine you’re hiring and and Candidate X emerges as probably the best candidate, though the department has yet to meet to make a decision. Imagine also that X has not kept it hidden from their colleagues that they have applied for your job. Finally, imagine that one of X’s colleagues, who is also one of your friends from graduate school, warns you that, despite X’s excellent philosophical work and superficial charm, X writes snide emails to graduate students, refuses whatever departmental service X finds “tedious”, is rude to visiting speakers, periodically grieves their salary increase as insufficient, overworks their TAs, etc. (Embellish the alleged bad behaviour as you see fit — it doesn’t have to be of a sexual nature to be damning.) What do you do? (You can scale the example back of course: maybe it just turns out that X was really rude when giving a talk at the department of a friend of yours.)Report

Crimlaw
Crimlaw
7 years ago

David Wallace asks a good question about the relation between title ix (and related issues) and first amendment protections. The answer to the question, so far as I can tell, is that the matter is an open question awaiting relevant case law for clarification and perhaps resolution. The EEOC and the Department of Education have taken various positions and will act in accordance with those positions. Those entities positions may or may not hold up under judicial scrutiny – interpretive statements by administrative bodies do not have any constitutional authority. Those familiar with judicial treatment of title vii administrative statements and restrictions in the not so distant past will recognize that some similar issues are in play at present.Report