Heidi Lockwood is associate professor of philosophy at Southern Connecticut State University. She works on topics in logic, metaphysics, and epistemology, and has also done quite a lot of work, both written and behind the scenes, on issues related to sexual misconduct in the academy. She has guest posted* at Daily Nous before. In the following open letter she addresses some recent issues related to the Jeffrey Ketland and Charlotte Coursier case (previously), in particular Ketland’s posting to a blog (since removed) of a list of signatories to a petition to Oxford, which he then called a “lynchmob.”
Dear Oxford Faculty of Philosophy and M-Phi bloggers,
I read with dismay and deep sadness the post of Saturday September 6, “The Oxford Lynch Mob,” authored by Jeff Ketland, a lecturer at Pembroke College.
The post was taken down earlier today, but was up for four days. During that period there was no public response from the Oxford faculty or M-Phi bloggers. In the wake of the silence, I write to explain the badness of this particular speech-act.
First, there is clearly something problematic about a faculty member publishing a blog post which names and attempts to publicly shame more than 100 students. The faculty-student relationship is a fiduciary relationship in which students, who are in a position of relative vulnerability, vest confidence, good faith, reliance, and trust in faculty members, whose advice and academic mentoring is sought. Such a relationship requires the fiduciary to act unequivocally in the best interests of the one who trusts. To publish a list of students who have signed a letter asking for more transparency from the Oxford administration in a manner which suggests that they are guilty of harassment and mobbing is certainly not to act in the best interests of the students named.
Perhaps more importantly, “The Oxford Lynch Mob” post was a textbook case of victimisation (in the UK) and retaliation (in the US). While expressing one’s views on a harassment or equity case is generally not objectionable, publicly accusing a list of students who have written a letter to the university of “secret smear and mobbing,” even when one has been cleared of charges, crosses a very bright legal line.
This particular bright line is an important one, so allow me to elaborate:
Victimisation in the U.K.:
Victimisation is prohibited under the Equality Act 2010. Victimisation takes place when one person subjects another to a detriment because that individual has either engaged in protected behavior, or has helped another to do so. Protected behavior includes asserting one’s legal rights in line with the Act – and making an allegation (whether express or not) that the Act has been contravened. A detriment is interpreted very broadly as any less favorable treatment.
Some of the students who signed the Open Letter were simply asking for transparency regarding the investigation and decision to retain Ketland. Others who signed the Open Letter may have been making an implicit allegation that Ketland’s behavior constituted unwanted conduct which would not have occurred with a male student, i.e., harassment as defined by the Equality Act. Either way, they were engaging in protected behavior. To the extent that Ketland’s post is detrimental to those individuals, it constitutes victimisation and is therefore a violation of the Act – regardless of whether or not the allegation of harassment had merit.
Retaliation in the U.S.:
In the U.S., the ban against retaliation for protected behavior under Title IX was re-iterated in the recent April 2013 Dear Colleague Letter. There have been several recent high-profile retaliation cases, including a case this summer with a philosophy student at CU Boulder in which the university announced a settlement of $825,000 after the student issued an intent to sue for retaliation.
An action constitutes Title IX retaliation in the U.S. if: (1) the complainant who suffers the retaliation engaged in protected conduct (including, e.g., supporting a victim of a civil rights violation); (2) the complainant suffered a materially adverse action (any action that is likely to dissuade a reasonable person in the complainant’s position from exercising his or her legal rights); and (3) there is sufficient evidence to prove that the materially adverse consequence was related to the protected action.
In other words, any action that would dissuade a reasonable person from filing an equity complaint constitutes retaliation, assuming that a link between the action and protected conduct can be established.
As the Department of Justice legal manual on the subject explains, “A right cannot exist in the absence of some credible and effective mechanism for its enforcement and enforcement cannot occur in the absence of a beneficiary class willing and able to assert the right… Retaliation protections are designed to preserve the integrity and effectiveness of the enforcement process itself. Because of this purpose, the merits of any underlying complaint of sex discrimination are irrelevant in assessing a retaliation complaint. The prohibited conduct is the act of retaliation itself.”
Title IX is arguably not applicable in the M-Phi blog post case because the protected conduct did not occur at a university in the U.S. I say “arguably” because the question of whether Title IX governs inter-university and international behavior is an emerging and unsettled question. I include the information on Title IX retaliation here because some M-Phi bloggers and many Daily Nous readers hold positions at U.S. universities, and should be aware that any action that would dissuade reasonable persons from filing an equity complaint, regardless of whether that complaint has merit, constitutes retaliation, which can have significant legal consequences.
And, as is demonstrated by the pre-action letter in which both Colin McGinn and Ed Irwin were named along with the University of Miami, the legal consequences can apply to both institutions and individuals.
As some of you know, I have been a quiet supporter of Jeff over the past several months, trying to help him and his family through what has clearly been a very difficult period. I made the decision to provide this support after reading through a collection of dozens of emails between Jeff and Charlotte, the student he is accused of harassing, from 2008 up through her suicide in 2013. [Editorial note: text originally present at this part of this paragraph was removed at the request of the author; see this comment.] It is difficult correspondence to read. My heart goes out to all involved, including, of course, Charlotte’s family and friends and Jeff’s family and friends. I am hoping that counseling will help the healing process to begin, and will continue to provide whatever support I can.
Charlotte is dead, and therefore can no longer be helped. Jeff is not dead – and is in many ways a victim of both his own unsuccessful efforts to prevent a student from taking her life, and the university’s failure to respond to distress pleas from both sides. His wife and 4-year-old son are also victims of the situation.
There have been enough victims already.
Please, don’t ostrich on this case. Understand that there is deep anger and fear on both sides of the conflict, and that both students and faculty will need active support going forward so that no further harm is done.
Heidi Howkins Lockwood