Open Letter from the Northwestern Philosophy Graduate Students (Guest Post)


In June it was reported that Peter Ludlow was suing officials, a professor, and a graduate student at Northwestern University for defamation, gender discrimination and invasion of privacy. The following guest post* is an open letter to the philosophical community adopted by the Northwestern University Philosophy Graduate Students by way of a vote.


Open Letter from the Northwestern Philosophy Graduate Students

As many in the philosophical community already know, sexual misconduct is a prevalent problem in the discipline. Our department is currently bearing the weight of its own controversy regarding sexual misconduct, and we fear that particular developments in the situation at our institution could have far-reaching consequences for victims elsewhere and going forward. After being accused by two different students of sexual assault, and being found responsible for sexual harassment by the university’s Sexual Harassment Prevention Office in each case, a member of our faculty responded by suing (among others) the university, one of his colleagues, and, most troubling to us, a graduate student.

While some of the legal matters await final resolution, litigation itself raises new practical and ethical considerations. Anyone named as a defendant in a legal complaint will naturally be advised by her* attorney not to discuss the matter with others. The silencing effects for a student who is sued by a professor for alleging sexual misconduct within her university’s own reporting procedures must be distressing: she will likely be isolated against her will from educational, professional, and personal support networks by someone who has proven willing to sue not only her, but also those who would support her.

Many instances of sexual misconduct go unreported, in large part because the risks of reporting are many and serious while the potential gains are very slim. The risks of further loss of community, of damaging actual and potential professional relationships, of not being believed, or of being reduced to how one has been treated, rather than being perceived as an intelligent, talented, and valuable individual and member of a community, already deter victims from reporting. Add to these risks the possibility of being named in a lawsuit (and the consequent potential for financial ruin if not indemnified) as well as having personal information and details of a traumatic experience made public, and the hazards are substantially multiplied.**

The pursuit of this legal strategy and its silencing effects should be troubling to the philosophical community. Suing a graduate student for filing an internal, and otherwise confidential, sexual misconduct complaint is intolerable. If the legal strategy implemented by this faculty member is treated as acceptable, it is not only injustice to our fellow graduate student that is at stake–though this is a substantial concern in itself. The implications for victims going forward, within the profession and otherwise, are staggering. Treating such an approach as acceptable effectively amounts to accepting those implications, as well as silence for ourselves. It should be noted that even if a faculty member feels that their due process rights have been infringed upon, and even if no university grievance process is available, there are other courses of action available under, for example, Title VII and Title IX. Consequently, we feel we must vigorously repudiate this legal tactic and provide vocal support to those whose voice would be taken from them.

One necessary step to adequately supporting victims is opening up communication between administrators, faculty, and graduate students, both within departments and across them. We hope that the discipline’s internal conversation regarding sexual misconduct will continue, that it is honest yet sensitive to issues of vulnerability and power dynamics, and that we do not avoid confronting discrimination and exclusion because we are too concerned with privacy to do anything at all. When we act as if privacy concerns cannot be appropriately balanced with substantive communication, we only exacerbate the stigma that victims already feel. The fact that philosophy departments have become a central battleground for rights to non-discrimination in academic settings is a result of a collective failure on the part of our discipline, and as such will require collective action to rectify it. We hope this letter will serve as a small step towards that end.

We admire our fellow graduate student for her strength and bravery and are proud to share an intellectual home with a colleague who is both uncommonly brilliant and courageous. We stand with her, and in support of victims everywhere.

*While we are using the feminine pronoun, this is applicable to persons of any gender.

**Here, we do not mean to claim that personal information need accurately be made public. Unfortunately, whoever initiates a legal complaint has the advantage of being able to make public a narrative of events that indeed need not be accurate, or even approximately accurate, unless it is to prevail in court. When filing a motion to dismiss, a defendant does not have the opportunity to dispute matters of fact. This only underscores our concern about the impact this new precedent may have on victims. 

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Heidi Howkins Lockwood
Heidi Howkins Lockwood
6 years ago

*Standing applause*! May this set an example of how to support a survivor for graduate students — and faculty — in other departments. And may the courage and moral compass of these students be a source of inspiration for the discipline at large.Report

Baron Reed
Baron Reed
6 years ago

I’m very proud of our graduate students–all of them! I am happy to be a part of the community that they have created, and I wholeheartedly agree with the last two sentences of their statement.Report

Matty
Matty
6 years ago

I’m not sure I understand the norm being expressed here. Is it (1) that faculty members who sexually harass graduate students should not sue their victims as retaliation once accusations are made, or is it (2) that faculty members who are *accused* of sexually harassing graduate students should not sue their accusers once accusations are made? (1) seems obviously true but is only applicable if we assume or have established that the faculty member is guilty of harassment. (2) seems more like a norm that might helpfully govern situations where we operate with less than complete information, but I’m not convinced that (2) is correct. Despite the general power imbalance between faculty and students, it is still possible for a student to unjustly accuse (and thereby destroy the career and personal life of) a faculty member. Should we endorse a norm such as (2) that would condemn a faculty member for seeking legal recourse in such a situation?

The letter states: “Suing a graduate student for filing an internal, and otherwise confidential, sexual misconduct complaint is intolerable.” If the internal, and otherwise confidential, complaint is full of false accusations, and if this initially internal and confidential complaint nevertheless results in the ruining of a career and who knows what else, is suing the graduate student still intolerable? If not, then the above norm needs to be revised.Report

anon
anon
Reply to  Matty
6 years ago

From the letter: “It should be noted that even if a faculty member feels that their due process rights have been infringed upon, and even if no university grievance process is available, there are other courses of action available under, for example, Title VII and Title IX.”

I take that in those rarest of cases (if there are any at all) restricting appropriate legal action to being against a university would still not allow for “ruining of a career and who knows what else” of a professor given that university’s should not sanction professors for, nor make public, defamatory accusations.Report

Matty
Matty
Reply to  anon
6 years ago

One can at least imagine cases where a university would not be *morally* culpable for sanctioning a professor on the basis of accusations that are, in fact, false. I’m not a lawyer, and so I have no idea whether in such cases the university would still nevertheless be *legally* culpable. If not, then the only legal recourse available to the professor would be to sue the graduate student directly.Report

anon
anon
Reply to  Matty
6 years ago

It’s worth pointing out that defamation requires not only that a statement be false, but that it be intentionally false, and harms a person’s reputation, and not be subject to privilege (if it is subject to qualified–as opposed to absolute–privilege, then it must also be intentional, reckless, and with malice). It’s also worth pointing out that if it becomes in any sense normal for students to be sued for filing sexual misconduct complaints, the current problem of under-reporting will surely be exacerbated. Given that, as the students said in their letter, the disincentives for reporting are already so high, and given that it seems very unlikely that a professor would ever be in a situation where the only means of redress is to sue a student, this seems like an incredibly plausible norm to me.Report

Matt
Matt
Reply to  anon
6 years ago

“defamation requires not only that a statement be false, but that it be intentionally false”
That’s not actually right. For a non-“public figure” at least, intentional falsity isn’t normally required. Negligence will typically suffice. Negligence is a much lower standard than intentionality. I think that that is probably the right standard. The US has a _much_ higher standard for defamation than most other similar countries. My own view is that most other countries probably have too low a standard, and that this allows a lot of valuable speech to be stifled. But, requiring _intentional_ falsehood for most cases would be too high. It’s not generally required, and almost certainly wouldn’t be required in a case like this. (I have no idea if the speech in question could even possibly be characterized as negligent, if false at all, but it’s important to be right on the legal issues, I think.)Report

anonymous
anonymous
Reply to  Matty
6 years ago

The argument cannot be about whether there might or could be false allegations. Setting aside the widely agreed upon fact that false allegations of sexual misconduct are exceedingly rare (for reasons which should be obvious, by now), it seems to me that if we were to prevent professors from suing their accusers, it may be that some folks would lodge false accusations, and then some profs would not be able to sue their accusers. Maybe that constitutes a harm to those professors. If we don’t prevent retaliatory lawsuits, some profs might then sue some earnest accusers, and that definitely constitutes a harm to those victims. Arguably, either way we’re exposing some group to some risk. Inarguably, one of those groups is vastly more vulnerable, while the other group is worlds more established (professionally, financially, etc.) and would nevertheless have further and alternative recourse (a fact which is in no way contingent on the veracity of the complaint itself).

Also, it’s worth pointing out that the likelihood of a false allegation surviving an investigation is actually very, very low. By lodging a complaint students expose themselves to highly invasive investigations which, arguably, are antecedently disposed to favor high profile professors.Report

h
h
Reply to  anonymous
6 years ago

Are false allegations of sexual misconduct really *exceedingly* rare? Obviously, that depends on what one means by ‘exceedingly.’ To be sure, they are far more rare than many people in general society take them to be, and pointing this out is important, since it counteracts the immediate assumption ‘I bet she’s just making it up’, which may people have, and which is obviously extremely damaging in innumerable ways. However, there is also a danger in presenting false accusations as *more* rare than they actually are. ‘Exceedingly rare’ suggests ‘it practically never happens’–i.e., happens so infrequently that the possibility of it happening shouldn’t figure in any significant way into one’s practical reasoning. This isn’t true, and it is dangerous to suggest that it is, for a few reasons: (a) If false accusations practically never happen, then I have a strong justification for concluding, on the sole basis of the fact that X was accused of sexual misconduct, that X is guilty of misconduct, and am warranted in treating X as if that were true (b) If false accusations practically never happen, then investigations into the veracity of allegations are practically unnecessary. So, if I am an investigator, then I have a very good reason to think that X is guilty before I even look at the evidence. And if I’m not an investigator, but hear that X has been exhonerated, I have a strong reason to be suspicious of the investigators, or at least to continue believing that X is guilty, despite the exhoneration. (c) If false accusations practically never happen, then I should not care much about the rights or well-being of the falsely accused (for the same reason that I don’t care much about the rights or well being of victims of alien abductions). This seems to be the upshot of your comment. Since practically no one is ever falsely accused, we don’t have much reason to worry about the loss they would suffer if they lost the right to sue. And if we can provide a benefit to victims (of which there are lots) by eliminating some of the rights of the falsely accused (of which there are, practically, none), then that’s obviously what we should do. Notice that the exact same reasoning would apply to eliminating, for example, rights of due process, if (as is surely the case) doing this would provide some potential benefit to victims. That kind of thinking is, quite frankly, terrifying.Report

anotherfemalegradstudent
anotherfemalegradstudent
Reply to  h
6 years ago

Regarding the frequency of false complaints, there was this helpful comment on a post recently: http://dailynous.com/2014/10/13/two-ways-to-help-victims-guest-post-by-jennifer-lackey/#comment-30961

I can’t find a plausible reading of anything in the letter above nor the comments here that entails a mode of practical reasoning you are worried about, but, I do think this is relevant to the version of your concerns that is more plausibly related to what else has been said here:

The problem we now face is chronic underreporting of sexual assaults, not false reporting. To cite just a couple of statistics: a 2007 study showed that about one in five women and 6 percent of men are victims of completed or attempted sexual assault while in college (https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf), and a 2005 report found that fewer than 5 percent of completed or attempted rapes are reported (https://www.ncjrs.gov/pdffiles1/nij/205521.pdf). Those silent and *actual* victims of *actual* crimes are innocent, unlike the hypothetical victims of false accusations that FIRE worries about. And if the statistics are correct (or even close to correct), this means that more than 2.6 million of the approximately 24 million students who are currently enrolled in universities in the U.S. have been very seriously harmed. Take a moment to say that number, slowly: MORE. THAN. TWO. AND. A. HALF. MILLION. students. And that’s just the current student population. The consequences of even attempted assault are often life-changing: persistent PTSD, stress, anxiety, depression, suicidal thoughts…Report

Heidi Howkins Lockwood
Heidi Howkins Lockwood
Reply to  Matty
6 years ago

Matty, the claim as I understand it is certainly (2): faculty members who are accused of sexual misconduct should not sue their accusers once accusations are made.

The reason for (2) is not “merely” the power imbalance, which, as you suggest, is a problem. (Given that the faculty member in the case the NU students are referring to continues to hold a position as a tenured member of the graduate student’s department, the badness of filing a suit against her should be apparent.)

(2) is also supported by the fact that complaints filed with university grievance boards are protected — just as testimony in court is — by absolute privilege. So, for example, if a person is offering testimony as a witness in court, and gives damaging testimony about someone else, including opinion-based testimony, those statements will be protected from civil liability for defamation. This is because the courts want to encourage people to testify openly and honestly in both judicial and quasi-judicial proceedings.

The only exception to (2) is if an accuser or someone aware of the accusation carries the complaint beyond the proceedings in manner that involves reporting the allegations as truth, rather than reporting the fact that there is an allegation. So, for example, if a student activist group posts a list of “rapists on campus” on the back of a bathroom door, they will likely be assuming liability for defamation. If, on the other hand, the group uses the title “students who have been formally accused of sexual misconduct on campus” or “students who have allegedly been formally accused of sexual misconduct” for their list, they are less likely to be liable for defamation, provided that it is in fact true that each of the students names has been the subject of a formal investigation.

The reason I mention this last exception is because survivors of course need support from mentors, colleagues, and friends. It is inhumane and unrealistic to expect a survivor not to seek advice in deciding whether to pursue a complaint. But those mentors, colleagues, and friends need to exercise caution and care — even when they are convinced of the truth of the allegation — by saying “X allegedly sexually assaulted Y,” or “X has been formally accused of sexual misconduct by Y,” so that the complainant herself is not unintentionally exposed to a claim arising from a failure that is not her fault.Report

Crimlaw
Crimlaw
Reply to  Heidi Howkins Lockwood
6 years ago

Is this claim:
“(2) is also supported by the fact that complaints filed with university grievance boards are protected — just as testimony in court is — by absolute privilege”
and the later claim about the “only exception” to it meant to convey the law on this matter in all US jurisdictions or in one specific jurisdiction?
Do you think it’s clear from statutes or case law that it is absolute privilege that attaches to such statements rather than what is commonly called qualified privilege?
Brian Leiter’s discussion of this issue as it related to the Ludlow case suggested that “qualified privilege” was the relevant category in Illinois rather than absolute privilege. Was he mistaken?Report

Anon
Anon
Reply to  Heidi Howkins Lockwood
6 years ago

Thanks for this explanation. It seems very clear why this is in place to make it possible for people to report misconduct safely. Your posts on this topic have been very helpful.

But in regard to the rights of a person who might feel falsely accused, am I right in understanding it this way: while the one who is accused of misconduct can not sue for defamation, they still have the chance to prove their case in the University complaint system, and so, are able to clear their name in that way, if they are, in fact, innocent.

Of course, “merely” being accused can have negative consequences on reputation, but if one wanted to address that, (and if the law allows) it seems like that should come after having been vindicated, not before.Report

Laura Whittenburg
Laura Whittenburg
6 years ago

Northwestern’s philosophy graduate students continue to outdo themselves. I am so grateful that they RELENTLESSLY stand up and speak out. Every line of this letter demonstrates profound empathy.Report

Shannon Dea
Shannon Dea
6 years ago

“We admire our fellow graduate student for her strength and bravery and are proud to share an intellectual home with a colleague who is both uncommonly brilliant and courageous. We stand with her, and in support of victims everywhere.” I congratulate these graduate students for their courage and solidarity. Throughout this very difficult time, they continue to distinguish themselves.Report

h
h
6 years ago

So, just to be clear. The norm proposed here entails this: If I am falsely accused of sexual harassment, and as a result of this I lose my job and my reputation is irreparably ruined, such that I am unable to get another job in academia (or elsewhere?) then I am to forego the legal means provided by the law to people in such a situation and not sue.
So the idea is this: in such a case, I am sacrificing the normal means of (partial) restitution available to me for the sake of the greater good of protecting actual victims of sexual harassment (which my accuser, ex hypothesi, is not) against possible legal actions. In other words, I am to consider my own reputation and career a sacrifice at the altar of these victims.
Perhaps that level of altruism is laudable. But it strikes me as far too demanding of an ideal to establish as a professional norm. I find it nearly impossible to believe that anyone, including the students who signed this letter, if they found themselves in such a situation (rare as it may be) would actually abide by it.
A sentiment like this is easy to support when we are sure that the person in question was actually guilty. But when we consider the case of the falsely accused, it seems very disturbing.Report

Fritz Allhoff
Fritz Allhoff
6 years ago

I’m not sure I understand the argument here. At this stage, it’s an open question whether the student defamed Ludlow. Maybe she did, maybe she didn’t. Don’t know since their hasn’t been a trial yet. I certainly think it’s wrong to say that, even if he was defamed, he shouldn’t sue to have his rights vindicated. If such lawsuits do have chilling effects, then that’s just a collateral consequence of our justice system. Again, maybe his claim isn’t meritorious. But that’ll come out in the proceedings. Suppose, alternatively, that it is, and the student committed defamation. She shouldn’t be immune from the lawsuit. Since we don’t know whether there was defamation, I don’t see how we can criticize Ludlow for bringing suit. The “legal tactic” being pursued is the vindication of Ludlow’s right against defamation. I don’t find that objectionable, which isn’t to say that it’s not without costs.Report

Levi Roth
Levi Roth
6 years ago

Regarding “It should be noted that even if a faculty member feels that their due process rights have been infringed upon, and even if no university grievance process is available, there are other courses of action available under, for example, Title VII and Title IX. Consequently, we feel we must vigorously repudiate this legal tactic and provide vocal support to those whose voice would be taken from them.”

Perhaps I misunderstand what are included in due process rights – I am a philosophy student, not a lawyer – but this strikes me as a subtle non sequitur. As I understand due process rights, they are rights to certain treatment *by the university* when one is in a university proceeding. So, for example, one has a due process right to be informed of the accusations and the evidence supporting them, and to present one’s own rebuttal and supporting evidence. But one does not have due process against an accuser. Consequently, a false accusation means that one can suffer an injustice even if due process is scrupulously observed, and the mere fact that one has separate recourse for violations of due process rights does not mean that one has separate recourse for this other injustice.Report

anonymous
anonymous
Reply to  Levi Roth
6 years ago

Presumably, if a professor has sufficient evidence to demonstrate in a court of law that they were in fact defamed, they also have sufficient evidence to prove that the accusation is defamatory to their university. If a university nonetheless sanctions a professor despite the fact that the evidence does not support the allegations, it is difficult for me to understand why failing to decide according to the evidence would not give rise to grounds for redress according to due process.Report

Anne Jacobson
Anne Jacobson
6 years ago

I do think the grad students have behaved wonderfully. Kudos to them.Report

Jenny Saul
Jenny Saul
6 years ago

It’s great to see this courageous statement of support.Report

Amber Carlson
Amber Carlson
6 years ago

I’m disheartened–though wholly unsurprised–to see so many comments here worrying about potential harm done to the accused. It makes me want to detail familiar points that anyone attentive to discussions about gender climate in philosophy should have already encountered (e.g. the number of false accusations is extremely low; victims have little to gain and much to lose; power imbalances matter, etc). Instead I will just say this: populating this comment thread with concerns for the accused unhelpfully shifts the focus away from supporting the complainant.

If we want our profession to be a place women can minimally feel safe (let alone thrive!), we need a culture where sexual harassment *is not tolerated.* Full stop.

Part of not tolerating sexual harassment is creating space for victims to come forward. Setting the precedent where professors can sue students for lodging complaints would be devastating when the risks of fling complaints are already extremely high. The chilling effect would be substantial, and we do not have to accept it as collateral damage. We can do better.

My thanks and support go out to the complainant for her courage and fortitude. My thanks and support also go out to the graduate students at Northwestern for setting a great example for us all.Report

h
h
Reply to  Amber Carlson
6 years ago

See my comment above (I didn’t see this before I posted it.) This comment exhibits exactly the attitude that ought to terrify us. Obviously, the fact that the number of people falsely accused is small does not entail that we should not worry about potential harm done to them–not any more than the fact that the number of people who are transgender is small means that we shouldn’t worry about harm done to them. And the ‘well, it’s different, because they’re vulnerable’ response is ridiculous. If you’ve been falsely accused of a serious crime, you are in a *very* vulnerable position, even if you are a tenure-track professor.Report

anonymous
anonymous
Reply to  h
6 years ago

h, I’m having trouble figuring out how you think your comments are connected to the actual content of either of the two comments you’ve said are terrifying.Report

Amber Carlson
Amber Carlson
Reply to  h
6 years ago

It is an often employed and usually effective silencing technique to suggest that people who call for focus on victims are insensitive and/or blind to justice in general. h, your reading of my post was careless, and I do not appreciate the various silencing attempts emerging in this thread. Again, we can do better.Report

h
h
Reply to  Amber Carlson
6 years ago

Amber. You said that you are ‘disheartened … to see so many comments here worrying about potential harm done to the accused.’ The reason you gave for why this is ‘disheartening’ is that ‘the number of false accusations is extremely low’. What did I miss?

My response was that the conclusion does not follow from this premise. I agree that the number of people falsely accused is very low, i.e., that there are very few people who are falsely accused of sexual misconduct. My claim is that, despite the fact that there are very few of them, it is reasonable (even laudable) for people to be concerned about their well being, and thus to be worried about ‘potential harm’ done to them. (Provided, of course, that they are also concerned about the well being of victims).

But perhaps your reason for finding it ‘disheartening’ is that the accused in sexual harrassment cases are powerful, and the victims relatively powerless, and thus our focus ought to fall more on the latter’s interests. Fair enough, except that that isn’t always true. Suppose that the accused is not a white tenured professor, but a black adjunct, and that the accuser is the white daughter of a very wealthy and politically well-connected hedge fund manager. Given that this is a real possibility (sadly, whites falsely accusing blacks of sexual misconduct is a very real part of our nation’s history), it strikes me as very important that we never lose sight of the rights of the accused, and that we give them a significant amount of weight when we are deciding which norms and policies to adopt.Report

anon
anon
Reply to  h
6 years ago

Given the ratio of comments raising concerns about those who are false accused (a relatively rare phenomena) to those who are raising concerns about those who are victims (a relatively large group of people), it strikes me that Amber’s comment is very far from carrying any implication that no one should ever be concerned about anyone who is falsely accused.Report

C.K. Egbert
C.K. Egbert
Reply to  Amber Carlson
6 years ago

I am also very disappointed at this. It certainly represents the priorities of people that they would be so concerned over such a minuscule possibility (which already is pretty well safeguarded against and for which avenues of restitution already exist), rather than on the lack of restitution for victims and the massive silencing and re-victimiation of victims.

I can’t say I’m surprised either, though, as any attempt at making perpetrators accountable is invariably met with extreme resistance. I wish people would realize that “due process” means that victims reliably have justice done, rather than reliably ensure perpetrators go free.Report

anon female grad student
anon female grad student
6 years ago

I am in accord with h above — even if most are, not everyone accused of sexual harassment is guilty of sexual harassment. There will be people–good people–who are falsely accused, and (as we all know) university systems can fail in horrible ways. So yeah, I think professors *should be able* to sue (although, of course, in general, it is a good idea to only do it as a last resort).
We also need to make sure good checks are in place, so that people will not be suspected of making false complaints. If we have a system of accountability *all around* (not just for those accused of harassment, but also complainants) complaints will be taken with the gravity that they ought to be taken with. If the atmosphere surrounding this issue gets shrill or people start drawing battle lines, that is not a healthy atmosphere for anyone, either complainants or those accused of harassment. So the idea that we should be limiting the options available to those accused of harassment strikes me as a bad one. There are good reasons a person might want to sue for defamation.Report

anotherfemalegradstudent
anotherfemalegradstudent
Reply to  anon female grad student
6 years ago

Can you clarify why you believe professors ought to be able to sue students in particular rather than sue universities which sanction them on the basis of defamatory statements? (A side note: “Shrill” may not be the best word choice in contexts like these.)Report

anon female grad student
anon female grad student
Reply to  anotherfemalegradstudent
6 years ago

I suppose when the university is not liable for some of the things the student has done–this would be one scenario.Report

Jay
Jay
6 years ago

I’d like to point out that the letter does not seem to propose a change in legal policy or rights, but rather proposes that we as a community view a kind of certain tactic with suspicion. Given the radical disparity in power and resources between grad students and professors and the obvious detrimental effect the threat of lawsuits will have on the ability of people to speak out, I think that suspicion is warranted.Report

Jennifer Lackey
Jennifer Lackey
6 years ago

I want to reiterate what many have already said here: the Northwestern philosophy graduate students have provided us with a model for how to support victims of sexual misconduct in our communities, and they have done so with profound empathy, respect, and courage. I am incredibly proud of, and heartened by, these students. If graduate students, who are some of the most vulnerable members of our profession, can come out with this kind of public support, we should all be doing so, too—clearly, loudly, and forcefully.Report

anon grad
anon grad
6 years ago

Serious factual(?) question — Does a faculty member suing a graduate student for accusing them of sexual harassment *not* count as “retaliation” under Title IX?

(I am a female graduate student, and am growing increasingly concerned — especially given the frequency of public comments that are clearly much more concerned with the “rights” of those accused of sexual harassment and assault than with creating a safe environment for the meager 20% or so of our profession that is female — that there is even less infrastructure in place to support me than I had thought).Report

anon p
anon p
6 years ago

I’m disheartened and even alarmed by the righteous indifference often expressed in the philosophy blogosphere about harm to the falsely accused. It’s as if, for example, issues of intersectionality are unheard of, irrelevant, or trivial — unsupported by no long reality of the racially-disparate nature of false accusations (and convictions), including sexually-charged accusations, in the U.S. Maybe this attitude of indifference is implicitly due to the exceptionally small number of men who might be affected in philosophy.

False, sexually-charged accusations against certain males of color have been a feature of American life. Whatever the actual numbers, the impact of these false accusations reaches far beyond the lives of the individuals falsely accused. Of course, false charges of sexual misconduct aren’t limited to males of color. That the ratio of false-to-valid charges is very small doesn’t mean the total number of false charges is small to the point of practical insignificance. This is not the occasion to recite high-profile cases of falsely accused males of color (or low-profile cases I’m personally familiar with). Nor am I suggesting that the sexual misconduct case directly motivating the Northwestern grad students counts for the falsely accused.

Surely, there must be impactful ways to support victims of sexual misconduct without discounting protections and redress for the falsely accused. For example, in university contexts, maybe contractually-mandatory binding arbitration for defamation cases, with damages capped, would strike a fair balance.Report

Fall in Queue
Fall in Queue
Reply to  anon p
6 years ago

Just to be clear, do you take this “righteous indifference” to be in display in this open letter by the Northwestern students? Because no matter how I squint I see no such thing.Report

Caleb
Caleb
Reply to  anon p
6 years ago

I think anon p’s question of intersectionality is a good point, but I also still have trouble seeing why even one who considers herself falsely accused should be able to sue a graduate student who claims to have been harassed. What does this accomplish that suing the university does not? Other than deterring future reporting of cases by all graduate students who think they may have been harassed.Report

Edwin Sydney
6 years ago

That is strong courage demonstrated and a true spirit.Report

Matty
Matty
6 years ago

As the person who seems to have started the discussion (here) about the norms recommended by the letter, I too am disheartened by the response this discussion has generated. C.K. Egbert suggests that those of us who have raised doubts about these norms — and in particular about the norm which states that professors should never sue graduate students — have thereby revealed our “priorities.” Concern for the unjustly accused (here and elsewhere) is indeed one of my priorities, but can one really infer from my comment that it’s my only priority, or even that it’s a higher priority than the rights and well-being of victims? Several people in this thread have made inferences along these lines, and they strike me as entirely unwarranted. One can have (and raise) reasonable doubts about the norm in question without being, as one anonymous graduate student put it above, “much more concerned with the ‘rights’ of those accused of sexual harassment and assault than with creating a safe environment for the meager 20% or so of our profession that is female” Personally, I aired my doubts about the norm in question because it was the only aspect of the letter about which I had any doubts. Perhaps I should have included a statement at the beginning of my post explicitly expressing my recognition of the deeply ingrained problems in our profession and my very real sympathies with the victims of sexual harassment. I assumed that this sort of thing would go without saying, as it would were I discussing these issues with friends or colleagues over coffee. That was clearly a mistake.Report

Heidi Howkins Lockwood
Heidi Howkins Lockwood
Reply to  Matty
6 years ago

Matty, thanks for clearly expressing your sympathies with the victims/survivors of sexual misconduct. Given that the victims in philosophy have been (and are, even now) simply quietly leaving the discipline — many after experiencing neglect, silencing, retaliation, or worse in the wake of filing a complaint — sympathy and support is not an attitude that we can presume.

The NU students are clearly writing this letter to express support for a student in a very specific situation. They know both the student and the faculty member in question. They are also taking a risk in daring to speak out. Both of these are factors that should be taken into consideration in displaying respect for their position. I suggest that, in addition to explicitly expressing support for survivors of sexual misconduct, we should also be explicitly joining the NU graduate students in expressing support for *this* particular survivor. The facts are not in dispute: (1) Peter Ludlow was accused by two different students of sexual assault; (2) he was found responsible for sexual harassment by the university’s Sexual Harassment Prevention Office in each case; and (3) he filed two suits, one against media outlets who reported on his case, and another against the university, faculty mentor, *and* the graduate student. In this particular case, silence — or thinking “I don’t want to get involved, I don’t know want to judge, it’s not my problem” — is, in my humble opinion, both reprehensible and a symptom of the underlying problem in philosophy. What Ludlow did, as described in the court paperwork alone — and what he continues to do, by attempting to name and shame the student by suing both her and his own colleague — is wrong. As a discipline, we ought to be saying this loud and clear.

With respect to the more abstract, general question of why it’s not okay to sue a complainant for defamation, we once again need to pay attention to the structure of the underlying problem. Could it be the case that there are complaints that cannot be substantiated, or even false accusations? Sure. That’s true in any sphere in which people raise complaints. It is conceivable, for example, that a black American might file a false complaint against a white police officer. This does *not* of course mean that the white police officer should then file a suit against the complainant. Why? Well, first, because it takes an enormous amount of courage to file a complaint, given the likelihood of retaliation by both the accused and friends of the accused. The mere fact that the complainant decided to take that risk suggests that *something* is wrong. There are also the background injustices, which mean that the officer has access to resources, opportunities, and support which the complainant does not enjoy. To harness those advantages in an effort to sanction a complainant is itself a form of repression.

The problem we now face is chronic underreporting of sexual assaults, not false reporting. To cite just a couple of statistics: a 2007 study showed that about one in five women and 6 percent of men are victims of completed or attempted sexual assault while in college (https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf), and a 2005 report found that fewer than 5 percent of completed or attempted rapes are reported (https://www.ncjrs.gov/pdffiles1/nij/205521.pdf). Those silent and actual victims are too traumatized, too afraid of retaliation and other consequences, to report the crimes that have been committed. The victims are of course not just women, not just white, not just cisgendered, not just heterosexual, not just able-bodied. But let me break down the numbers for the women alone, to provide a sense of the magnitude of the problem. There are approximately 13 million students who identify as female currently enrolled at a U.S. university. So if the statistics are correct (or even close to correct), this means that more than *2.6 million* of those current students are — or will be, before they leave university — victims of completed or attempted sexual assault. Ninety-five percent, or 2.47 million, of those victims, have not reported.

Another relevant fact is that several studies have suggested that serial predators are responsible for approximately 90% of the cases of sexual misconduct on college campuses.

The numbers are so staggering here that *surely* we ought to be erring — in both our actions and thoughts — on the side of the complainants, in order to encourage victims to come forward, and to try to identify perpetrators, particularly serial predators, to put an end to the epidemic.Report

anon female grad student
anon female grad student
6 years ago

I would also like to say, I am concerned that there be a safe environment for graduate students, and yes, there are real problems here. I am not *more concerned* about the rights of the accused. Like I said above, we need a culture of responsibility and accountability all around in order for these issues to be addressed effectively, so limiting the recourse of the accused seems like a bad idea.

It’s not helpful to start accusing people of good will of being on the side of harassers, or something like that. We’re all trying to have a discussion about how to make things better. The Northwestern students suggest that professors should never sue students. A few of us think this would be counterproductive. I am heartened at the concern we all have for the situation, and hope we can continue to work to make things better.Report

Baron Reed
Baron Reed
Reply to  anon female grad student
6 years ago

I believe the suggestion is that professors should never sue students (or anyone else, for that matter) who bring complaints of sexual misconduct to their university’s office of sexual harassment. As others have noted, this does not mean that there is *any* sense in which the person against whom the complaint was brought is denied due process. Yes, a false accusation of sexual misconduct can harm someone’s reputation. But so, too, can a false accusation of credit card fraud, assault & battery, or murder harm one’s reputation. In the latter cases, when someone testifies in court that the defendant has committed one of these crimes, that testimony is privileged; the defendant cannot sue the testifier in civil court.

There is some question whether the courts will recognize a university’s investigation as a judicial or quasi-judicial setting. They have done so in the past for public universities. I can’t speak to whether courts *will* do the same for private universities, but on the question of whether they *should* do so, I am strongly inclined to think they should.

There are, of course, penalties for giving false testimony in court. In the same way, university disciplinary boards will presumably issue penalties for giving false testimony in their investigations. Given this, it is unfortunate that so much of the discussion here has focused on protecting the rights of those against whom complaints have been filed. There is no reason to think that there is a general concern here. On the other hand, there very much *is* reason to worry about the well-being of victims of sexual misconduct.Report

Anonymous
Anonymous
6 years ago

I wholeheartedly endorse what the graduate students say in their letter and I greatly admire them for saying it.

I was overjoyed by their description of their fellow graduate student: she is indeed uncommonly courageous. I can only hope that other members of the philosophical community will follow the lead of the Northwestern graduate students and tell her so.

(Some of us may prefer to offer support privately rather than publicly. If so, and if we do not know the name of the student in question, we should look to the comments section of Jennifer Lackey’s post (this blog) about how to help victims of sexual harassment. Comments 12 and 14-17 address this issue.)Report

Supporter
Supporter
6 years ago

Thank you to the NU philosophy grad students!

In all of the discussion about what the law should be, it seems that some of the most important elements of the letter are getting lost.

Regardless of how you feel about the law, I believe that it is paramount that we understand the disturbing consequences of being sued for defamation on the basis of what was said to a university sexual harassment office. We must be mindful that we cannot pass judgment based on the “facts” as they are described in the defamation suit.

When someone is accused of sexual harassment or assault, one can immediately and publicly dispute the facts. When a victim is sued for defamation, she* will be advised against making any statements in her defense. This allows the perpetrator’s narrative to dominate regardless of how wrong it might be.

This is why it is so important that other people speak up on her behalf. Kudos to the grad students for doing so.Report

Supporter
Supporter
6 years ago

Just to be clear, you are referring to Jennifer Lackey’s post on 10/13 not to comments 12 and 14-17 above.Report

Matt
Matt
6 years ago

There are, of course, penalties for giving false testimony in court.
This is formally true, but as a matter of practice perjury charges are extremely rare, and of course do not compensate the person wronged when false testimony is given. Of course, I have not the slightest bit of real evidence that anything false was said in this case, and so do not want to make any suggestion in that direction. But, it’s worth knowing that the possibility of a perjury charge is very, very rare, and is really no protection of due process at all.Report

Anonymous
Anonymous
6 years ago

I just realized that I wasn’t entirely clear: I am referring to Comments 12 and 14-17 in response to Jennifer Lackey’s post on October 13, where this post was entitled “Helping Victims of Sexual Assault and Harassment: A Guest Post by Jennifer Lackey.”Report

Anonymous
Anonymous
6 years ago

“These types of lawsuits are a form of retaliation as can be dismissed quickly user anti-SLAPP laws. Such laws allow victims to recover costs and sanctions against the people and the lawyers who file them.

Most lawyers for victims don’t file anti-SLAPP motions to dismiss strategic and retaliatory lawsuits because the lawyers for victims often become lawyers for victims at the behest of universities and the schools are not always opposed to retaliatory suits because they chill other victims from coming forward.

Wendy Murphy
New England Law|Boston”Report

Jeremy
Jeremy
6 years ago

Despite that, testimony in a court of law is privileged. Do you object to the privilege attached to testimony in a court of law for the same reasons you object to the grad students’ claim here? (Of course, the grad students aren’t even making a case for legal privilege.)Report

Matty
Matty
6 years ago

Heidi (if I may), thanks for engaging in this way. Upon reflection, I think you’re absolutely correct that — given the current state of the profession — sympathy and support cannot be presumed (especially in a conversation among relative strangers). I appreciate your pointing this out as you did.

With respect to the relatively abstract discussion of the disputed norm, I think I will bow out at this point, as I don’t have much to add to what I’ve already said. The conclusion you state in the last paragraph, namely, “that *surely* we ought to be erring — in both our thoughts and actions — on the side of the complainants,” seems right to me. I remain unsure as to whether we should err so far on the side of complainants that we adopt professional norms according to which professors should never seek direct legal redress from graduate students (even when those students have not moved beyond the internal processes at their respective institutions). This may be because I have too strongly internalized various norms of the American criminal justice system, such as the norms pertaining to due process and the presumption of innocence. It would certainly speak to the severity — the tragedy — of our current situation in philosophy if it required us to dispense with (or even to disvalue) those norms. Or so it seems to me, at any rate.Report

Baron Reed
Baron Reed
6 years ago

So, are you suggesting that defendants in criminal cases *should* be able to sue witnesses for defamation? That seems like a terrible idea. The whole point of having a trial is to determine, as best as possible, the facts of the case. Why would we allow unhappy defendants to attempt to re-adjudicate the matter elsewhere? Doing so would be a clear deterrent to witnesses, who would rightly be worried about incurring legal expenses simply for offering their testimony in court.

Again, I don’t see why we are worrying *so much* about the rights of those against whom complaints are raised. Why would we think they should have the right to sue for defamation when defendants in a murder trial don’t have that right? And why would we equate protections for the accused with the right to sue for defamation? That is not the way it works in criminal court. I see no reason to think that it should be different in the setting of a university’s investigation.

It is also worth noting that defamation cases are hard to win, especially in this sort of case. The plaintiff needs to provide clear and convincing proof that the defendant’s statement is false. If the plaintiff can do so, presumably he or she would have done so in the initial sexual misconduct investigation.

Given the difficulty of winning a defamation lawsuit, why bother filing one? As various people have said, there are advantages to filing a suit one has no chance of winning. You can get your own version of the story into the public sphere, while also forcing silence on the other person. And you can dissuade others from speaking up on behalf of the victim out of fear of being named in a defamation lawsuit themselves. (On that note, I again applaud Northwestern’s graduate students.) The very filing of a defamation lawsuit in this sort of case is injurious. That is why many of us find it reprehensible.Report

anon
anon
6 years ago

For those trying to follow the dialogue here, Matty’s response is in response to Heidi’s comment at 39.
(http://dailynous.com/2014/10/22/open-letter-from-the-northwestern-philosophy-graduate-students-guest-post/#comment-48096)Report

anon
anon
6 years ago

Following up on what Baron says, it is in fact true that are penalties for giving false testimony in university proceedings–if it can be shown that someone files a complaint disingenuously, the penalties are quite high (at I have been at three different universities, the possible penalties at all three include expulsion).

It is difficult for me to imagine any graduate student taking on such a risk for the sake of filing a *false* complaint.Report

InDisbelief
InDisbelief
6 years ago

“Ludlow said Slavin, Lackey and the student made false claims against him during the investigation. The University hired Patricia C. Bobb, an independent investigator, to look into the graduate student’s claims.

Ludlow’s suit says that Bobb found the claims of non-consensual sex unsubstantiated, but that she did find Ludlow had violated NU’s sexual harassment policy because he had “unequal power“ in his relationship with the graduate student. Ludlow contests this finding from Bobb’s report, according to his lawsuit.

Bobb’s report was then distributed within the University against Ludlow’s wishes, the suit says.”

So, now the graduate students are saying that Ludlow does not have the right to appeal to the law to find out who distributed the report that was supposed to be kept confidential, and to have his rights, against defamation and breach of privacy, vindicated?

I really don’t understand the view of people’s individual rights, the law, and due process the NU graduate students have. The fact that there is an asymmetry in power – found not just in academia by the way – does not cancel the rights of an individual: to try to demonstrate he is innocent, to have his reputation preserved, to protect his privacy or receive justice for the breach of it… Having rights, which you don’t lose just because you are a professor within a program where your former girlfriend is still a student, is at the core of a civic society.

Incidentally, what reasons do we have to think that Ludlow has or had any negative influence on this woman’s thriving within the NU program? Or that he ever tried to use any of such influence to interfere with her success? “Asymmetry of power” is far too vague a notion: what could he reasonably do, and what did he try to do?

Choosing to have a girlfriend amongst the graduate students of your program might be imprudent in many ways. Yet, such imprudence does not have the consequences the NU graduate students see. One does not cease to be a citizen with rights so easily. Fortunately.Report

InDisbelief
InDisbelief
6 years ago

Fortunately, due process does not depend on what we can imagine. And the complaint, in its most important part, was already found to be false: the external investigator concluded that it is not the case that there was nonconsensual sex between Ludlow and his then girlfriend. That, by the way, does not even mean that the graduate student filed her complaint maliciously (though she might have): she might be honestly persuaded that Ludlow is guilty of wrongdoing against her. Yet, the investigation reached a different conclusion, at least with respect to “nonconsensual sex” accusation. It is not clear (to me) whether the graduate student was charging Ludlow of sexual harassment; but that’s what Ludlow has been found guilty of so far. In any event, if there is a reasonable suspicion that the graduate student distributed a confidential document containing private information regarding Ludlow, and by doing that she also defamed him and maybe was positively trying to damage his reputation, then the truth about that, too, should be found, and any guilty party – including a graduate student, why not? – should pay for breaching the law and causing damage to another individual.Report

Kathryn Pogin
Kathryn Pogin
6 years ago

InDisbelief, your claim regarding what the investigator found is false. The investigator did not find sufficient evidence to support a finding of guilt, but that is NOT the same thing as finding that the allegation was false.Report

Kathryn Pogin
Kathryn Pogin
6 years ago

InDisbelief, forgive me, I was so shocked at your comment regarding what the investigator found that it eluded me just how many of your claims are false. I would suggest rereading our letter as well as various news reports regarding the case.Report

Matty
Matty
6 years ago

Thanks, Anon. For some reason, my attempt to respond to Heidi directly failed, and my comment was sent to the bottom of the thread.Report

Jennifer Lackey
Jennifer Lackey
6 years ago

InDisbelief, I do not know why this continues to get lost in the discussion, especially after being emphasized repeatedly, but basing one’s view of the facts of a situation from a lawsuit that is told from ONLY ONE PERSPECTIVE is extremely irresponsible. Please use greater caution when discussing things about which you are ignorant.Report

Anonymous
Anonymous
6 years ago

InDisbelief, I’m not sure why you’re taking so much of what is claimed in that lawsuit on trust. Girlfriend? And the issue of distribution of the report is completely independent of the lawsuit against the student. And I would think that the students in the program have tons of evidence regarding whether there was a “negative influence on the woman’s thriving” within the program. I agree with Kathryn. The sheer number of false statements is startling.Report

Supporter
Supporter
6 years ago

In Disbelief, it is hard to know where to start in responding to such an inflammatory statement rife with misunderstandings of the views people are expressing in this thread.

I want to reiterate what I (and others) said in previous posts. The “facts” as they are outlined in the defamation suit cannot be treated as if they are true. The defendants have not had the opportunity to offer an alternative explanation. Making judgments about what transpired based on the defamation suit filing is reckless. Your seeming acceptance of them only highlights the argument that defamation suits allows an aggressor to control the conversation.

For instance, those most able to respond to your query, “Incidentally, what reasons do we have to think that Ludlow has or had any negative influence on this woman’s thriving within the NU program? Or that he ever tried to use any of such influence to interfere with her success?,” OR to correct any of the statements that you made about what you think happened are prevented from doing so.Report

InDisbelief
InDisbelief
6 years ago

Kathryn Pogin, It is strange that you would find or look for false statements in my comments, as almost none of what I said was addressing the facts of the case – only the claim, which you acknowledge to be true that Ludlow was found not guilty of sexual assault in the graduate student case, as the Bobb report did not find evidence of such an assault having ever occurred. The rest of what I wrote is an appeal to considering very seriously the importance and value of due process, of equality under the law, of the rights that cannot be denied to anyone.

I read the letter you, graduate students at NU, wrote very carefully. It embodies a view of individuals’ rights and civic living that I find abhorrent and very dangerous. Let’s look at some of the claims:

“It should be noted that even if a faculty member feels that their due process rights have been infringed upon, and even if no university grievance process is available, there are other courses of action available under, for example, Title VII and Title IX. Consequently, we feel we must vigorously repudiate this legal tactic and provide vocal support to those whose voice would be taken from them.”
–Is the suggestion that a citizen should refrain, or somehow should be made to refrain from using any and all the legal means of recourse that are available to him?
–What should ultimately the repudiation of this legal [legal] tactic amount to and obtain?

I also find the letter to include at least one major contradiction, between (A) “Anyone named as a defendant in a legal complaint will naturally be advised by her* attorney not to discuss the matter with others.” and part of (B) “Suing a graduate student for filing an internal, and otherwise confidential, sexual misconduct complaint is intolerable.” If these complaints are confidential, then there is no additional “silencing” that derives from one’s attorney advising one not to discuss the matter with others, once one becomes defendant in a law suit. Incidentally, it is because these proceedings are covered by confidentiality that now Ludlow can complain for having been damaged by the unlawful circulation of that confidential report – hence, his law suit.

Your invitation to read more of the “various news reports regarding the case,” too, is most troubling. And, again, it is at the core of this discussion: trials do not take place in the public square of the media, or for that matter the public square of a university campus or a department hall. Let me be very clear: I have no interest what-so-ever in finding out on my own, maybe with the help of some newspaper articles, whether Ludlow is guilty or innocent, and of what. Much more simply, we should be happy to grant the rights of the accused, even of those who will turn up being guilty if so will be the case, for only that way do we preserve our civic life.Report

InDisbelief
InDisbelief
6 years ago

To a few of the comments, which I gather are made by fellow philosophers: since when are questions and quotations taken to be statements and claims? I think it was Kathryn Pogin who stated “The investigator did not find sufficient evidence to support a finding of guilt.” In any event, *no one* is addressing *the* point I was trying to make through my comments: that no one can be denied of his legal rights, that due process is owed to everyone, and that guilt and innocence are not decided by journalists, graduate students, or blog participants.

Let me be clear. I do *not* have a view “of the facts of [this] situation,” (Jennifer Lackey) nor have interest in developing one, if by ‘situation’ is meant what truly happened in terms of sexual assault, violation of privacy, etc. in this case. My view is about what living in a civic society, all equal under the law, entails and I hope will continue to entail.Report

anon
anon
Reply to  InDisbelief
6 years ago

InDisbelief: yes, living in a civic society, all equal under the law, is precisely what Kathryn Pogin, Jennifer Lackey, and others are trying to advocate for. See Lockwood’s comment at 39. ((http://dailynous.com/2014/10/22/open-letter-from-the-northwestern-philosophy-graduate-students-guest-post/#comment-48096))Report

Elizabeth Harman
Elizabeth Harman
6 years ago

This letter is so important. Thank you to the Northwestern graduate students for writing it. Women who report the sexual harassment and sexual assaults they have experienced are heroes. They are taking on great personal burdens to make things better for everyone. I’m so glad to see this woman supported by her fellow students.Report

Kathryn Pogin
Kathryn Pogin
6 years ago

In Disbelief, you wrote,

“Is the suggestion that a citizen should refrain, or somehow should be made to refrain from using any and all the legal means of recourse that are available to him?”

Obviously not ‘any’ since we suggested alternatives.

You also wrote, “And the complaint, in its most important part, was already found to be false: the external investigator concluded that it is not the case that there was nonconsensual sex between Ludlow and his then girlfriend.”

That is false.

You also wrote, “In any event, if there is a reasonable suspicion that the graduate student distributed a confidential document containing private information regarding Ludlow, and by doing that she also defamed him and maybe was positively trying to damage his reputation, then the truth about that, too, should be found, and any guilty party – including a graduate student, why not? – should pay for breaching the law and causing damage to another individual.”

Strictly speaking, this is a hypothetical, and so cannot be false on a literal reading—but as pragmatic implicatures go, it is false. If you were familiar with even Ludlow’s version of events, you would know that even he has not accused the graduate student of distributing a confidential report.

You also wrote: “Choosing to have a girlfriend amongst the graduate students of your program might be imprudent in many ways. Yet, such imprudence does not have the consequences the NU graduate students see.”

This presupposes that this case is one in which a graduate student was someone’s girlfriend. One might think both that you are not in a position to know that, and that if you think that, you may have inferred it from the legal complaint filed against the student. I would be wary of making inferences on the basis of a legal complaint before the defendant has had a chance to dispute the facts.
You also wrote, “Incidentally, what reasons do we have to think that Ludlow has or had any negative influence on this woman’s thriving within the NU program?”

I suspect you do not know anyone who has gone through the process of filing a sexual misconduct complaint, nor anyone who has been sued on the basis of one, but one might think that if it is something we students are concerned with it is something for which there are reasons to be concerned.

Now, given that a few of my friends tell me that they have previously received cease and desist letters for discussing this matter in venues like facebook, and given that I am commenting under my real name—I have been put in a position where I have to wonder if I might also receive a cease and desist letter (or worse) merely for engaging in the comments section here under my own name.

Regardless of whether or not you agree with our proposal, regardless of your attitudes towards issues of sexual misconduct in the discipline, this seems like an objectively bad direction for our profession to be heading into. As Amber said, we can do better.Report

InDisbelief
InDisbelief
6 years ago

Kathryn Pogin, you wrote, quoting me:

In Disbelief, you wrote,

“Is the suggestion that a citizen should refrain, or somehow should be made to refrain from using any and all the legal means of recourse that are available to him?”

Obviously not ‘any’ since we suggested alternatives.

I am sure we are all interested in a productive discussion, and hence in the proper application of the principle of charity. Yet, I am really at a loss now at finding the right way to express my questions. Answer them in whichever way you want but, please, make every effort to understand them: are the NU graduate students asking that a citizen should refrain, or somehow should be made to refrain from using any of the the legal means of recourse that are available to him, and use them all if he so desires? Is my question clear now?

You also wrote, again quoting me:

You also wrote, “And the complaint, in its most important part, was already found to be false: the external investigator concluded that it is not the case that there was nonconsensual sex between Ludlow and his then girlfriend.”

That is false.

How is that compatible with your writing, in 55, “The investigator did not find sufficient evidence to support a finding of guilt”?

There is truth and falsehood *within a legal context*: if you make an allegation and it is found to be not supported by sufficient evidence, then your allegation was false. Relatedly, people are innocent until proven guilty: innocent, not innocent-but-we-really-all-know-he’s-guity until proven guilty.

In the same way, if Ludlow’s allegations against the graduate student were proven to be unsubstantiated, then he will have succumbed, legally, and she will have prevailed.Report

JustinF
JustinF
6 years ago

I share people’s desire to make a show of solidarity and support for a student who we have good reason to believe is going through very rough times at little or no fault of her own.

Like some other posters, I have reservations about the actual content of the letter though, esp. about its blanket prohibition against suing accusers for defamation. I think false accusations are as rare as they are in large part because making false accusations opens one to liability, so I’m not confident that we should socially prohibit the unjustly accused from using this legal recourse.

My own view is this: By filing the lawsuits PL is digging himself in even deeper. He had better be vindicated in these lawsuits or else I will then think he’s vile and despicable for having filed them, even more vile and despicable than I would have taken him to be just for being guilty of the misdeeds he is accused of. If the letter had said that we should strongly hold it against professors when such lawsuits fail to vindicate them, then I would whole-heartedly agree. My reservations are just about whether we should view the lawsuit as already clearly inappropriate, when we don’t yet know if it will vindicate him.Report

anon p
anon p
6 years ago

The righteous indifference is explicit in many of the comments here, in response to the Northwestern open letter, and in views expressed elsewhere. I won’t speculate about what others can’t see and why.

Meanwhile, HHL below uses a grossly misleading comparison as a rationale for continuing down the path of righteous indifference about protections and redress for the falsely accused — maintaining the false dichotomy whereby victims of (sexual) misconduct would otherwise be fundamentally undermined. There is (at least in the contemporary U.S.) no “courage” or noble “risk” in anyone, including “a black American,” knowingly filing a false complaint of serious wrongdoing against anyone, including “a white police officer.” Appeal to “the background injustices” is irrelevant regarding justice in such a case. HHL’s conclusion that the white police officer should not try “to sanction [the false] complainant” — because doing so would itself constitute “a form of repression” against the socioeconomically disadvantaged individual or group — is so far beyond my grasp of the right or the reasonable that commenting further would not be productive. Similarly, with these lines drawn, there isn’t much room for productive discussion about how to support victims of sexual misconduct as well as victims of false sexual misconduct accusations. But HHL has provided undeniable clarity about the disagreement.

Anyone with interest in the tradition of “feminist” indifference and even enabling of false sexual misconduct accusations can read, for example, Alison Edwards, “Rape, Racism, and the White Women’s Movement: A Response to Susan Brownmiller,” 1976. http://www.sojournertruth.net/rrwwm.htmlReport

Anon
Anon
6 years ago

I don’t know the answer under Title IX. Under Title VII, courts have taken different views. Some courts – the minority – have held that filing a suit is not retaliation as a matter of law. Other courts – the majority – have held that filing suit may be retaliation if the suit is baseless and was filed with retaliatory intent. Though I haven’t looked into it, I imagine that the case law in the Title IX area – assuming there is some – is similar.Report

Amber Carlson
Amber Carlson
6 years ago

Insufficient evidence of guilt in a university investigation is not the same thing as the allegations being false. Kathryn’s claims are perfectly consistent.Report

anon p
anon p
6 years ago

Due to lack of formatting control, my response to Fall in Queue (7:07am) is below, at 4:31pm,Report

InDisbelief
InDisbelief
6 years ago

Amber Carlson, I don’t know whether you are correct. Yet, does it matter? I stay happy with Kathryn’s claim, that “The investigator did not find sufficient evidence to support a finding of guilt.” Let me be clear: I don’t say this to maintain that Ludlow is innocent of sexual assault; it’s not up to me, or the philosophy faculty or graduate students at NU, to find that out. Thus far he has been found not guilty of sexual assault, right.

Yet, the point of discussion is altogether another: even guilty people have rights. The point of discussion is the graduate students’ demand that, somehow, the philosophy profession should take sides against Ludlow for his pursuing all the legal avenues that are available to him. His legal suit against the university and others is about gender discrimination, defamation, and violation of privacy. These are serious matters, and if he believes he suffered wrongdoing, he has the right to seek justice.

HHL (in 39) even took the very legal action Ludlow has started as proof of his guilt: “The mere fact that the complainant decided to take that risk suggests that *something* is wrong,” she says. Talk of ‘silencing’! I am glad that Ludlow can appeal to a judge to seek justice. And the philosophy community should say that he, and anyone else, has that right, whether he’s guilty or innocent.Report

InDisbelief
InDisbelief
6 years ago

Baron Reed, I don’t know what else to say, to direct the discussion on my comments to what my comments are about: they are not about Ludlow’s having or not having girlfriends, but on his having the right to use all the legal means available to any citizen to protect his reputation, privacy, etc., which he (not I) claims to have been damaged. Should the philosophy community deny him *that* right? That is why I chose ‘InDisbelief’ as a nick. I just can’t believe this is what is being asked to the philosophy community.Report

anon grad
anon grad
6 years ago

Just to clarify my comment — Of course I don’t think we should throw people’s actual legal rights out the window the very moment someone somewhere says “This person sexually assaulted me.” But, of course, nobody here is proposing that. Nobody here is even proposing that Ludlow shouldn’t sue the University if he thinks he was denied due process in their internal investigation or some such. All that’s being said, as far as I can tell, is that we as a profession should generally disapprove of professors suing students who claim they were sexually assaulted, for very good reasons that have already been detailed here a number of times and from several different angles.

The very fact that such a modest suggestion as that is being treated by some as highly controversial, somehow threatening to people’s legal rights, or even (incredibly) “terrifying” is extremely disheartening to me. The very fact that so much of the reaction to the above letter has been to aggressively make space for the rights of the accused — which as far as I can tell have not actually been threatened by anybody, and which were not really wanting for defense either, in this particular context — only underscores the points made above regarding reasons people fail to report, and the disturbing effects of taking this kind of legal strategy to be acceptable behavior. Who in their right mind would want to report, given the potential costs? And why can’t we do anything about those costs?Report

Supporter
Supporter
6 years ago

InDisbelief: You have repeatedly suggested that we should protect an individual’s right to use “all legal means available.” Could you please clarify what you mean by this?

Are you are suggesting that any lawsuit anyone files is above reproach? Does the mere fact that someone can file a lawsuit mean that it is acceptable to do so? Do you not believe that there is such a thing as a frivolous lawsuit? Is it not possible that someone would abuse the law? Is is really a violation of someone’s civil rights to question how that person is choosing to use the law.Report

InDisbelief
InDisbelief
6 years ago

Anon grad, well… being all equal under the law means that your being a university professor does not make any one, not even just one, of your rights disappear. Besides, the right we are here talking about – the right to sue someone whom you believe defamed you, because she is an accuser is no minor right. I find it sad that none of the comments (unless I missed it) touches upon the harm, the angst, and the consequences on one’s career and well being that being defamed brings about. No one, independently of his or her profession, should be take that right (yes, it’s just one out of several in the circumstances) away. Looked at from the other side, no one should be put in the privileged position of accusing another person with impunity. Do you realize what that would mean? Remember that the discussion is general – it has nothing to do with what you may know of your fellow graduate student (thoughts like “oh, she would never make a false accusation!” should never cloud our judgment on people’s rights). I am also skeptical on relying too much on the “power imbalance” reasoning. That’s just too vague; let’s flesh it out a bit. I already suggested that, the way things are (if nothing else with the NU program being so much in the spotlight) Ludlow might have no influence what-so-ever on her progress through the program. Of course, all of this must be very distressing for her, and as a human being I certainly sympathize. I also hope that the university is doing everything possible to offer any needed support and protection and what else. Yet, really, one’s responsibility for claims or actions that might be defamatory (maybe they’re not, but it will be up to a court to decide that) has to stand. In the case of the defamation law suit, the “power imbalance,” I would say, really boils down to financial resources; most likely Ludlow has many more of such resources than the graduate student. Yet, again, the correct route cannot be that of depriving an individual of an important right, or ask his professional community to criticize him for wanting to exercise it. I would find it much more noble to support the, now, accused differently: raising money for her defense – even across those in the profession who want to do that – searching for pro bono legal support, and the like. What strikes me as rather unbelievable is the proposal that two persons’ rights be tailored around their different financial situations or positions within a school: one losing a right because in some ways more powerful and the other acquiring a very dangerous impunity because in some ways weaker.

I will be even more worried if this open letter was approved by all the graduate students, if nothing else because unanimity always worries me!Report

InDisbelief
InDisbelief
6 years ago

Supporter, you wrote:

“You have repeatedly suggested that we should protect an individual’s right to use “all legal means available.” Could you please clarify what you mean by this?”

My employer and persons X, Y, and Z have defamed me and violated my privacy, by saying or doing certain things–or so I think. I can sue my employer, and X, Y, and Z. I can also do other things (see Title IX etc.). If everyone has the right to do those things, includingto sue the employer and those people, a university professor is not forbidden from suing X just because he is a professor and X is a student. That’s what I mean by ‘all legal means available’–I mean the same means anyone else (including X, notice) would have.

You wrote: “Are you are suggesting that any lawsuit anyone files is above reproach?” No. “Does the mere fact that someone can file a lawsuit mean that it is acceptable to do so?” No. “Do you not believe that there is such a thing as a frivolous lawsuit?” Yes. “Is it not possible that someone would abuse the law?” Yes. “Is is really a violation of someone’s civil rights to question how that person is choosing to use the law.” No.

It is an attempt to violate people’s rights to try to propose a general rule like the one suggested in the open letter: that because one is an accused faculty member and another a student accuser, the faculty member should never sue the student. And I oppose the appeal to an entire profession/community–the philosophical one–to subscribe to such an aberrant rule.Report

InSupportOfAnonGrad
InSupportOfAnonGrad
6 years ago

InDisbelief,
While I think it reasonable to have concerns for everyone’s rights. I think that one of us (either you or me) must be misunderstanding anon grad. I don’t think that talk of “rights disappearing” is entirely clear here. I believe that what anon grad meant was not that we, the philosophical community, should cancel any legal rights. I cannot see where anyone has proposed that, and I don’t even know what that would mean. (On the surface grammar, that would be proposing something impossible as we can’t do that sort of thing. So, I’m thinking something else must be the meaning of your statement).

Instead, the proposal is that we adopt a norm as a profession. This is entirely compatible with the continued presence of both moral and legal rights. There are, after all, rights to do wrong. What I understand the NU students to be saying is that it is, generally speaking, wrong to counter sue one’s accuser in circumstances such as these. Could there be circumstances that might switch this valence? I don’t think they’ve said anything about that. But clearly the context is pertinent here. Regardless, the claim that such suit is wrong and be deemed as such is orthogonal to claims about the presence or absence of legal rights. The only sort of right that I can see it affecting would be a moral Hohfeldian privelege (that no on have a claim against one that one not sue). But that’s a right that seems interestingly far afield from any reading of the discussion.

Now, taking off the philosophicalese that this conversation has unfortunately forced. I want to convey my support to the NU community and to state that they will continue to be in my thoughts and actions.Report

InDisbelief
InDisbelief
6 years ago

InSupportOfAnonGrad: I did not mean that the graduate students are hoping the impossible, such as canceling people’s rights. They are asking the philosophy community to censor Ludlow and to take the same attitude towards any case involving an accused faculty and a accusing student.

Here’s the crucial paragraph in the letter: “The pursuit of this legal strategy and its silencing effects should be troubling to the philosophical community. Suing a graduate student for filing an internal, and otherwise confidential, sexual misconduct complaint is intolerable. If the legal strategy implemented by this faculty member is treated as acceptable, it is not only injustice to our fellow graduate student that is at stake–though this is a substantial concern in itself. The implications for victims going forward, within the profession and otherwise, are staggering. Treating such an approach as acceptable effectively amounts to accepting those implications, as well as silence for ourselves. It should be noted that even if a faculty member feels that their due process rights have been infringed upon, and even if no university grievance process is available, there are other courses of action available under, for example, Title VII and Title IX. Consequently, we feel we must vigorously repudiate this legal tactic and provide vocal support to those whose voice would be taken from them.”

It implies two things (amongst others): 1) that the philosophy community should find “intolerable,” unacceptable, worthy of repudiation “the legal strategy implemented by this faculty member, and 2) that a similar attitude should be taken for all such cases, involving a professor and a student (given the “staggering” “implications of this particular legal suit “for victims going forward”). Why 1)? Well, either because they know something about this particular case, beyond what the letter says, hence are judging Ludlow guilty, and implicitly asking the philosophy community to do the same; or because of what stated in 2). Hence, they are *doubly* suggesting that for a faculty member to sue a student accuser ought to be censored, in all cases, by the philosophy community. This is the *norm* for our profession that they are advocating for.

I deeply disagree with adopting such a norm. Following it, would so often be against the legitimate interests of an unjustly accused person. And yet, violating it would automatically place a person – who might very well be a victim of wrongdoing such as defamation – against one’s own profession, adding more damage and isolation to what he or she is already suffering. It would be very unwise for the philosophical community to adopt such a professional norm. It’s worrisome that anon grad sees it as just “a modest suggestion.”Report

Anonymous
Anonymous
6 years ago

InDisbelief writes, “Being all equal under the law means that your being a university professor does not make any one, not even just one, of your rights disappear. Besides, the right we are here talking about – the right to sue someone whom you believe defamed you, because she is an accuser is no minor right.” Other commentators have also referred to the *legal right* to sue students for filing false complaints with the sexual harassment offices at their universities.
It seems relevant that it is not clear whether anyone—professor or otherwise—has the legal right to sue a student who files such a complaint.

In their opinion in case of Keri v. Hartman, the Supreme Court of Indiana wrote:

“We hold complaints made by a current student pursuant to a university anti-harassment policy are protected by an absolute privilege and cannot serve as the basis for civil liability to a person who is the subject of the complaint.”

For various reasons, it is not clear whether their decision applies to complaints filed at *private* universities (The Keri v. Hartman case was filed by a professor at Purdue University.). Though I am not an attorney, I feel safe in assuming that the attorneys involved in Prof. Ludlow’s case will address this issue. Until the issue is resolved, I feel unsafe in assuming that professors have the legal right to sue students for filing sexual assault complaints.

In my opinion, people ought to find out what the legal rights of the accused *are* before they object to the norm proposed by the NU graduate students.Report

C.K. Egbert
C.K. Egbert
6 years ago

Yes, we are asking people to take a stand on the behavior of our colleagues. That demonstrates our commitments as a community.

Regardless of one’s “legal rights” (which does not ergo make them morally legitimate), what are the dynamics here if it is possible for a professor who is accused of harassment (through confidential processes, no less) to sue the accuser for merely filing a complaint? It means that that a harasser could, reasonably, threaten his victim with a lawsuit for even bringing a complaint at all (“If you do this, I’ll sue you”). Given that professors are going to have greater institutional (and most likely economic) power, this is a viable threat. Even if the complaint is merited, and even if the accused doesn’t win the defamation suit, the victim now has to defend herself in court against the suit (leading to potential financial ruin if not indemnified, and increasing the emotional stress associated with bringing a complaint at all).

So, you’ve created another enormous barrier to filing a complaint. What is the victim going to do? Probably not file the complaint. In fact victims already don’t file complaints because of the ways it could negatively impact their careers and relationships, not to mention the fact that the process itself often re-victimizes them. You’ve just removed ALL potential restitution or justice for the victim.

What about the professor? Someone who has been accused (and found guilty!) can always sue the university. So even if we condemned suing the person who made the complaint, we are by no means condemning all forms of restitution (or even the main ones) from the accused. But if we do not condemn this, and this becomes an accepted norm, we’ve just condoned an extremely effective strategy at removing all possibility of restitution or justice or due process for the victim.

Is it asking too much of us to take a stand against an abuse of the law that can effectively silence victims? Philosophers have drunk hemlock for less.Report

InDisbelief
InDisbelief
6 years ago

Anonymous in 84: It’s my understanding that the student is not being sued on the basis of having of having filed her complaint, but on the basis of knowingly making false statements within her complain as well as during interviews with university officials, for contributing to make public confidential information, and for conspiring. So, though I am not a lawyer myself, I am skeptical that the Keri v Hartman opinion applies here in an easy way. In any event, I think it is wrong to say that “people ought to find out what the legal rights of the accused *are* before they object to the norm proposed by the NU graduate students”: if Ludlow were not to have that right, then the NU grad students open letter would lose most of its reason to be; it is only under the assumption that Ludlow does have that legal right, that their appeal to the philosophical community becomes substantive.

Anonymous in 60: You wrote: “the issue of distribution of the report is completely independent of the lawsuit against the student.” Actually, I just went through Ludlow’s Complaint at Law and, under “Count VI – Civil Conspiracy Against All Defendants,” one can read: “Defendants unlawfully conspired for the purpose of concocting false evidence to support terminating Plaintiff. In so conspiring, Defendants knowingly made false statements of material fact about Plaintiff and allowed those false statements to be publicized within the University.” (p. 14) Also, under Count IV (the defamation charge against the the graduate student amongst others), it says “Defendants […] publicized these statements without privilege.” (p. 13) So, perhaps the distribution of the report is not exactly what Ludlow is referring to, but he is explicitly referring to making public, even by the graduate student, (false, Ludlow claims) information that should have remained private. In any event, I doubt such hairsplitting about what Ludlow’s complaint precisely turns around is going to be helpful to the discussion. It’s not up to us to decide the merit of his complaint. The question the NU graduate students have raised is whether an accused faculty should be censored by his profession for filing a legal suit against a student who accused him, when he believes the student did him wrong beyond the filing of her internal complaint with the university.Report

Zara
Zara
6 years ago

A compromise.

One one hand, we as a community should act as if complaints made by a current student pursuant to a university anti-harassment policy are protected an absolute privilege and cannot serve as the basis for civil liability to a person who is the subject of the complaint — even if, for technical reasons, the courts do not always treat such complaints in this way. So we should condemn suing students for any allegations – even false ones – made to duly appointed investigators at the University in the course of an investigation.

On the other hand, if a student or anyone else makes false allegations against a professor in an obviously non-privileged setting, e.g., over coffee with colleagues or at the water-cooler, then we as a community have no reason to treat such allegations as privileged, and should not necessarily condemn suing the student for publicizing the allegations without privilege.Report

Rachel McKinnon
Rachel McKinnon
6 years ago

From what I’ve heard from those on the inside of sexual harassment/assault cases at universities, it’s about as likely as being a brain in a vat that false accusations result in a professor being found at fault and for them to face serious sanctions (or firing). It’s not a legitimate worry. False accusations are easy to weed out through the process.Report

anon p
anon p
Reply to  Rachel McKinnon
6 years ago

“It’s not a legitimate worry. False accusations are easy to weed out through the process.”
Enough is enough. There’s a name for the exaggerated confidence, righteous indifference, willful ignorance, and convenient distance from racial reality on display in much of this thread.

I’ll share the “not a legitimate worry” story with my good friend (who was) in a different humanities field. He lost his tenure-track position — i.e., wasn’t renewed, despite far exceeding tenure requirements at his university — after a chain of events triggered by a white female undergrad complaining that his remark about being “glad ripped jeans are back in style,” said in front of a class and about no one in particular, caused her to feel “uncomfortable” in some “sexual or gendered” way. My friend’s official sanction was a one-hour, online, sensitivity-training exercise. In response to his early concerns, a (white female) university lawyer told him, “You worry too much.” Less than a year later, the (white female) provost overrode the department’s fourth-year tenure review and chose not to renew him — on grounds of “teaching issues,” though his teaching evaluations were well above average.

I can assure you that my friend is not “a brain in a vat.” He is a (dark-skinned) black male — of which there are few generally in academia and fewer in philosophy. Many comments have suggested, explicitly or implicitly, that since any actual cases of false or wrong accusation are so few as to be statistically insignificant (or happen only due to “the background injustices” afflicting a sexually victimized group), they shouldn’t factor in thinking about due process and other protections for the (unfairly) accused.

Message received. But fear not. My friend didn’t deeply fault the student and never thought to sue her. He did try to sue the university, for his job back and lost wages, but ran out of money when the case stalled. He’s no longer in academia. Please spare him empty condolences.

In the realm of science fiction, Derrick Bell’s “The Space Traders” is pertinent reading. Also, as previously mentioned, see Alison Edwards, “Rape, Racism, and the White Women’s Movement: A Response to Susan Brownmiller,” 1976. http://www.sojournertruth.net/rrwwm.htmlReport

Jane Dewitt
Jane Dewitt
6 years ago

I’m pretty puzzled by the discussion here. Some people are being accused of caring about the guilty, or the rights of the guilty, more than the rights of the innocent. But that’s not how I interpret what is going on. *Everyone* agrees with this:

1) It is morally wrong for the guilty to sue the innocent as a strategy for avoiding the consequences (for the guilty) of the guilty person’s violations of legal or moral rules.

What people at least seem to be disagreeing about is this:

2) It is morally wrong for the innocent to sue the guilty as a strategy for avoiding the consequences (for the innocent) of the guilty person’s violations of legal or moral rules.

I think (2) is false not because I care about victims of false accusation more than victims of sexual assault, or because I think false accusations are rare, or anything like that. I just think (2) is obviously false–and that (1) is just as obviously true.* But maybe there is less disagreement here than it seems. The graduate student letter, for example, assumes that some injustice is being done to the graduate student being sued:

“Suing a graduate student for filing an internal, and otherwise confidential, sexual misconduct complaint is intolerable. If the legal strategy implemented by this faculty member is treated as acceptable, it is not only injustice to our fellow graduate student that is at stake–though this is a substantial concern in itself.”

Lackey makes a similar assumption, in her comment, when she says that the GS letter shows us how to support “victims of sexual misconduct”. If these assumptions are correct, as I myself am inclined to believe, then we are in a situation covered by (1), and not (2), and presumably all of us can agree that Ludlow is acting immorally. For the reasons outlined in the graduate student letter, I think all or almost all of us would agree that violating (1)–and hence Ludlow’s behavior, if he is violating (1)–is *grievously* immoral. But that does nothing to support (2). The only argument I’ve seen for (2) is a broadly consequentialist one: if we allow the innocent to sue the guilty in such cases, the results, overall, will be worse than if we didn’t. I find it a bit difficult to evaluate that claim, but I don’t find it obviously false. That’s irrelevant, however, since I’m not a consequentialist. I assume that the other people who are strongly inclined to deny (2) are not consequentialists either. But being a non-consequentialist doesn’t mean that I don’t care about victims of sexual assault. Indeed, one reason I am a non-consequentialist is that I do care about the victims of sexual assault–I think that sexual assault is always wrong, even if it happens, by some unlikely sequence of events, to produce the best consequences. Just so, I think that (1) is obviously true, even in cases where violating (1) would produce the best consequences. Let me say it again: violating (1) is heinously, grievously, wrong, especially in cases like this one, for the reasons articulated by the graduate students in their letter. We should have no tolerance for people violating (1). But that just doesn’t do anything to support the truth of (2).

* Well, I don’t think they’re *just* obvious–I think I could give some pretty good arguments for them if needed. But I *do* think they’re obvious.Report

Rachel McKinnon
Rachel McKinnon
6 years ago

In the case you mention, it wasn’t a false accusation of sexual harassment or assault, though. It was an instance where a student took the comment as making her uncomfortable. Now what was done with that complaint was extremely distressing, on a number of levels. But I think this is very different from a false accusation of sexual harassment or sexual assault, which is the purpose of the open letter, and the purpose for my comment. The point is *not* that someone shouldn’t sue a university for failures of due process: the point is that it’s wrong for a professor to sue the *student*. And I think it would be wrong for your friend to sue the student for what happened to him. I think it would be quite fair to sue the university (and perhaps administrators, even the lawyer) for what was done to him.

However, I do take your point that radicalized issues are (always) at play.

But I think these issues are separate from the point I was making, and the point that I take others to be making. It’s quite possible I’m wrong.Report

Student
Student
6 years ago

anon p, you are of course right that there are fraught racial issues within discussions of, and the history of, allegations of sexual misconduct. This also applies to victims. Many women of color are abused both by being subject to such misconduct, and by being perceived as less credible than their abusers.Report

StephenG
StephenG
6 years ago

I would urge any victims of sexual harassment or assault who are subsequently sued as a result of their reporting the misconduct through official channels to seek pro bono representation. Many large law firms have robust pro bono programs, and I would start with a list of Biglaw lawyers who are graduates of your university.

Many states immunize libel reporting victims from libel suits under the so called “litigation privilege”. Other common law privileges may apply as defenses.Report

John Doe
John Doe
6 years ago

What other sentences do you agree with? Or is is just the “last two?”Report

Shalom Beck
6 years ago

False allegations of sexual abuse are rare. They are, however, a high percentage (something like half) of total allegations of sexual abuse.
http://sf-criminaldefense.com/wp-content/uploads/2013/03/KaninFalseRapeAllegations.pdfReport

anon
anon
Reply to  Shalom Beck
6 years ago

Shalom, the 1994 Kanin study you cite has been thoroughly discredited. Kanin’s data was drawn from a police department whose investigative procedures at the time (1978-87) were condemned by both the U.S. Justice Department and the International Association of Chiefs of Police. Among the procedures the department was criticized for were intimidation tactics including but not limited to polygraph testing, aggressive lines of questioning suggesting that the rapes were imagined, and efforts to persuade reluctant complainants that the best way to close the case would be to agree to recant, rather than withdraw, the complaint.

Police intimidation of victims is unfortunately still a very real problem today, even on university campuses. I myself was subjected to an absurdly aggressive and misguided line of questioning this past summer in connection with my efforts to help a victim; the university police officer who questioned me suggested that I must have had a relationship of some kind with the accused, because “why else would [I] get involved with the complaint”? This particular police officer is also the lead investigator for sexual assault and misconduct cases, and is currently the subject of an open suit in which the plaintiff alleges that he detained and then physically assaulted her during an off-campus motor vehicle stop. The same officer was investigated for misconduct in connection with the 2007 arrest of a black teen who was riding his bike on a sidewalk. I reported my concerns to the university, but as far as I know, they did nothing.

Other problems with the Kanin study include small sample and non-representative sample size, lack of independent verification of police procedures, and failure to test for biases which would have influenced police behavior. David Lisak puts it succinctly: the paper is “an interesting opinion piece… but should never used to assert a scientific foundation for the frequency of false allegations.”Report

anonymous
anonymous
6 years ago

A critique of the Kanin study cited at 91 above: http://www.icdv.idaho.gov/conference/handouts/False-Allegations.pdf

“In sum, the lack of any articulated or systematized method of analysis, the lack of a
clear definition of what constitutes a false report, and dependence on the classifications
made by a police department that was using investigative procedures that are now widely
rejected, all render Kanin’s findings extremely suspect. Finally, his finding that 41% of
rape cases were false reports is at least 4 times higher than the estimates found by studies
that used systematic methods to determine the frequency of false rape allegations (Heenan
& Murray, 2006; Jordan, 2004; Kelly et al., 2005; Lonsway & Archambault, 2008).”Report

Anonymous
Anonymous
6 years ago

I know that there are other readers of this thread who, like me, fully support the graduate students’ letter and are disturbed (though probably not surprised) by the negative reaction it has provoked. As I have read all the negative comments, I have repeatedly needed to remind myself that there is no reason to think that these views are popular among other members of our profession. But even though I know that the people expressing these negative views are not a representative sample, I find my spirits getting low when I read this thread.

Just in case others are having the same reaction, I want to draw attention to the fact that I have talked to fellow philosophers who passionately agree with everything in the graduate students’ letter, but haven’t expressed this online. At a conference this past weekend, I talked to two friends who not only expressed support for everything the graduate students said but expressed their admiration for their having the courage to say it. Since neither of them is the kind of person to comment on blogs, they haven’t said it here. Moreover, I talked to other philosophers who hadn’t seen the post, but expressed their support when I told them what it said. Yet another philosopher hadn’t seen the post, was told what it said, and thought that I must have misunderstood the letter. Why? Because he couldn’t wrap his mind around the fact that what they said needed saying: he thought it was completely obvious. He admitted that he hadn’t paid any attention to Prof. Ludlow’s case.

I myself was heartened by these reactions, so I thought I would mention them here.Report

Jane Dewitt
Jane Dewitt
6 years ago

I was convinced by this article that we just don’t know how many rape accusations are false, and would be interested in reasons to doubt that, if others aren’t convinced: http://www.bloombergview.com/articles/2014-09-19/how-many-rape-reports-are-falseReport

anonymous
anonymous
6 years ago

Jane, I am more inclined to trust the Lisak et al paper linked in 95 than I am a blog post by Megan McArdle. The Lisak et al abstract reads: “One of the most controversial disputes affecting the discourse related to violence against
women is the dispute about the frequency of false allegations of sexual assault. In an effort
to add clarity to the discourse, published research on false allegations is critiqued, and the
results of a new study described. All cases (N = 136) of sexual assault reported to a major
Northeastern university over a 10-year period are analyzed to determine the percentage of
false allegations. Of the 136 cases of sexual assault reported over the 10-year period, 8 (5.9%)
are coded as false allegations. These results, taken in the context of an examination of
previous research, indicate that the prevalence of false allegations is between 2% and 10%.” http://www.icdv.idaho.gov/conference/handouts/False-Allegations.pdfReport

Elise Springer
Elise Springer
6 years ago

anonymous @6:53, About “false allegations” research: we should note that such a review does not confirm that up to 10% of allegations are false allegations; it shows that up to 10% were found lacking in credibility (according to the criteria, evidential standards, and methods of the investigation). This is part of what Kathryn Pogin is drawing attention to, above… Given that allegations concern conduct that is generally kept out of public view, we should expect quite a few genuine and justified grievances to end up being dismissed as “baseless” by a responsible panel that seeks clear (even if not “beyond a reasonable doubt”-standard) evidence. From a legal and pragmatic point of view, we need to be able to declare some defendants to be “cleared,” but we ought not to confuse that with moral innocence. (Of course, the same logical point goes for real guilt vs “guilt” as the finding of formal proceedings, though there, there’s less systematic reason — barring systematic corruption — to expect false positive findings.)

One deterrent for victims is fear that if one cannot get one’s case over the relevant evidence threshold (civil or legal), one’s allegations will be glossed as “false.”Report

Elise Springer
Elise Springer
6 years ago

Apologies (I can’t edit my comment directly): looking at the study itself, it’s clear that the researchers were not conflating “false allegations” with those that did not clear the evidence threshold; they were specifically looking into how many allegations (at a university, during the study interval) drew convincing counter-evidence. The wide 2%-10% range is the result of disagreement among evaluators of potential counter-evidence.Report

InDisbelief
InDisbelief
6 years ago

I already criticized the substance of the open letter, and what the letter asks the philosophical community to endorse. Yet, now I have a couple of points of concern regarding the etiology, so to speak of this letter, and the debate surrounding it.

It’s realistic to suppose that the NU philosophy department is deeply afflicted by these events – the allegations against Ludlow, the involvement of a faculty and a graduate student, Ludlow suing members of that community. Yet, the graduate students who drafted and voted this letter are making a general point and appeal to the philosophy community at large, putting forward a principled position. As a member of the philosophy community I am bothered by a couple of things (again, this time without objecting to the substance of the letter, as I have already done that in previous posts):

– I wish the graduate students could find more of a personal and distinctive “voice” on this matter. I am troubled by seeing similarities between their letter (posted on this blog on Oct. 22) and the post that Jennifer Lackey – faculty in that department – had published in Feminist Philosophers on Oct. 13 (there is a link to the latter post in the letter). For example, as the open letter begins by saying “As many in the philosophical community already know, sexual misconduct is a prevalent problem in the discipline,” Lackey’s post begins with “As many in the philosophical community already know, sexual misconduct is a prevalent problem in the discipline.” Both the letter and the post have a disclaimer about the use of the feminine pronoun. Moreover, the other disclaimer the letter has (“Unfortunately, whoever initiates a legal complaint has the advantage of being able to make public a narrative of events that indeed need not be accurate, or even approximately accurate, unless it is to prevail in court.”) expresses the same thought posted by Baron Reed, also faculty from that department, in his comment to Lackey’s post. What am I trying to imply by calling attention to these similarities? Not that the faculty ghost wrote the open letter, or that somehow the graduate students are lying about it. I just want to suggest – strongly suggest – to the community of graduate students at NU that they reflect on the serious matters affecting their department as much as possible on their own, also finding as I said their own voice.

– I was also put off, for lack of a better term, by discovering what maybe many – though I suspect not all – already know: that Lackey is directly involved in Ludlow’s law suit, in which she is a defendant. Personally, I wish I had known that when reading her comments of praise for the graduate students, who came forward to the philosophy community with this open letter. Of course, Lackey has the right of saying what she said and of intervening into this on line conversation. Yet, in the circumstances, I wish that I as a reader and member of the philosophy community to which this letter is addressed, had been given that information. As I have argued, I disagree with the position the letter advocates, and which some discussants, including Lackey, endorse, for what that position entails. Yet, in addition, now that what I would call Lackey’s conflict of interests is clear to me, I find her praises of the students’ act of coming forward, quite simply, less significant.

My personal, though, I would suppose, realistic suspicion is that the situation at NU philosophy department has greatly deteriorated, and understandably so. If I were a graduate student there, I would seek the greatest intellectual autonomy in spite of all the passion and maybe deep fracture between groups of faculty, which must clearly affect the climate and culture of that program right now. If I were a faculty directly involved in the matter, I would approach it with more… tact if I can use the word. For the sake of the students, I would step back in certain circumstances, and so favor their search for a culturally autonomous response to such a troubling situation. For the sake of the philosophical community at large, I would add to the expression of my views on such important and general matters an explicit disclaimers that explained my own personal involvement with this particular case.Report

MissingThePoint
MissingThePoint
6 years ago

On the comments of InDisbelief:
1) False allegations of sexual harassment or assault do occur but are in fact rare (see evidence cited in other comments)
2) Reporting sexual harassment at all (whether truly or falsely) carries much risk and little reward, so there is little incentive to do so (even when it did in fact occur).
3) False accusations of defamation are possible and are arguably quite common (though I cannot provide evidence here).
4) Regardless of how common false accusations of defamation are, there is a very high incentive to make an accusation of defamation (whether truly or falsely), because there is much to be gained whether or not one is guilty of harassment.
5) So, we have a situation in which both victims of sexual harrassment and victims of defamation can legally seek redress and no one has suggested this should not be the case; however, community norms and non-legal consequences highly disincentivize reporting sexual harrassment even when it does in fact occur, while the current social situation highly incentivizes allegations of defammation even when it has not in fact occured.
6) The suggestion is that we as a community adopt norms that redress this imbalance, removing some of the social barriers to reporting sexual harrassment because as a matter of fact those barriers are impeding justice. We do so in part by frowning on the sort of legal tactic employed by Ludlow because it a) contributes to the suppression of honest reporting of sexual harrassment (and in addition thereby increases the incentive to make false accusations of defamation), but b) the incentives for accusations of defamation would still be high enough that we have little reason to think that the community stigma would impede justice in cases where defamation actually occurs. Again, no one seeks to deny legal rights, only to create an atmosphere that reconfigures the costs/benefits of those accusations in a way that no longer clearly privileges those already in a powerful position.
7) Moving the discussion in the comments quickly to the legal rights of the accused not only misses the point but, whether consciously or not, only demonstrates and further entrenches the social imbalance which 6 is meant to address.
8) Attempts to excuse 7 by logic chopping and appealing to some philosophical virtue of disinterested truth seeking are disingenuous, uncharitable, and patronizing.
9) However, I’m sure many of the people raising such concerns have done so out of a genuine concern for justice, but I suspect those concerns arise with the immediacy and force they do precisely because the social situation in our field is unfortunately such as to render them more salient than the pervasive sexual misconduct in our field. The worry that it would be wrong to stigmatize professors who would sue graduate students even while leaving that recourse legally open ignores that it is already the case that this is exactly the situation victims of sexual harassment are already in. Yet, even though the target of discussion is the plight of the sexually assaulted, concern with the well being of the professor dominates discussion.
10) If one wishes to argue that victims should just be brave and make the accusations anyway despite the social repercussions, this would be a double edged sword applying equally well to victims of defamation. However, as things stand the negative social impact of reporting sexual harassment is demonstrably causing harm while we have every reason to suspect that the LACK of social consequences for accusations of defamation is contributing to this same harm. This is exactly why it is important that we support the NU students rather than raising the specter of “reverse discrimination”.
11) So in the final balance: We should frown on the faculty suing graduate students who have accused them of sexual misconduct though we have neither the means nor intention of removing that legal right. There will be cases where this puts someone genuinely falsely accused in a difficult social predicament; however, we have every reason to believe that this will be rare, that the social and power dynamics are already on the side of the accused so that we have every reason to believe that the genuinely falsely accused will not find him/her self so thoroughly socially stigmatized that legal recourse is out of the question, and that this will go some way toward redressing the current plight of victims of sexual harassment in our field.
12) Finally, and most importantly, by supporting this move, we demonstrate that sexual misconduct is not acceptable and will no longer be ignored in our discipline, hopefully creating an atmosphere where sexual misconduct is itself less common, hopefully eventually rendering concerns about how we should handle such cases a less salient concern.

I for one am grateful to the NU student body for taking steps to empower the next generation of philosophers to change our field for the better. Whatever the merits of the proposal, we should not lose sight of the real goal of supporting our colleagues who have been victims of sexual misconduct and standing up as a discipline to affirm loudly that the current state is unacceptable and will be changed.Report

Female NU Philosophy Grad
Female NU Philosophy Grad
6 years ago

InDisbelief:

Your concerns are not only unfounded, they distract from the task at hand. The “voice” of the grad student letter is entirely that of the grads, and any suggestion otherwise is simply demeaning. The open letter public by the graduate students, the blog post from Jennifer Lackey, as well as the open letter published LAST MARCH (http://dailynorthwestern.com/2014/03/05/opinion/philosophy-graduate-students-an-open-letter-to-the-northwestern-community/) all begin in the same fashion. To quote from the original letter, “philosophy has a gender problem.” This is a very basic manner in which to begin any post of this type and it seems unproblematic that any number of posts would do so. To imply that some sort of malfeasance must be taking place simply because a common ethical concern is shared by many people in the same community is baseless. Both open letters that have originated from Northwestern graduate students are motivated by the same worries, and I believe that we have made it clear, well before Jennifer Lackey’s own post, that as a community, the majority of our students find the case in question reprehensible. Our voice is necessarily communal—the letter was drafted and adopted by the graduate community— but it is our own, and the letters were drafted and adopted by a group of responsible and autonomous thinkers. Any suggestion otherwise is completely without merit.

As for Jennifer Lackey, while her mentorship is much appreciated by us, her influence does not reach so far as to radically alter the ethical commitments of so many thoughtful persons. Perhaps the fact that a number of us within the department hold similar ethical positions on the issue should reinforce the possibility that the positions advocated are worth taking seriously.

Further, as a female member of the Northwestern philosophy community, I can say without hesitation that as far as I can tell, there is no fracture in the NU philosophy department. True, any such scandal puts some stress on the members of a community, and some of us are more effected than others, but there has been real cohesion and openness among us during these discussions and I have been encouraged, not discouraged, by the way that our department has handled this pressure. I am further encouraged by the possibility that this situation might bring about substantive change in the philosophical community at large; it is comments such as yours, InDisbelief, that erode that possibility by failing to deal with the substance of our remarks.Report

Supporter
Supporter
6 years ago

Well said, Female NU Philosophy Grad!Report

AnotherNUGrad
AnotherNUGrad
6 years ago

To boot, InDisbelief, your comment falsely attributes to the student letter that it copied (or at least included verbatim) the opening sentence of Lackey’s earlier post. Her post does not include that same sentence, and opens instead “It is not a secret that colleges and universities have been plagued by cases of sexual assault and sexual harassment. ”

That we (students and Lackey both) are aware of the problems of sexual harassment and assault in philosophy in particular and academia in general should not be evidence that we fail to think for ourselves, but rather for our ability to be aware of the state of affairs in the world.Report

InDisbelief
InDisbelief
6 years ago

Dear Female NU Philosophy Grad: On one thing you will have to agree with me, or so I hope: I certainly did address the *substance* of the graduate students’ letter in so many comments above. It’s interesting how your complaint, that the substance of the letter not be address, so closely mirrors mine: that the substance of my comments against the position advocated by the letter was not being addressed. It’s important that, even on ethical matters, and even when surrounded by peers who all agree with each other as you say, one stays open to the other’s point of view, especially when it is the (respectfully stated I think I can say) point of view of someone who has no personal stake in all of this, but for my love for the profession.Report

InDisbelief
InDisbelief
6 years ago

AnotherNUGrad: my apologies to you and others: I did not mean to indicate that the two sentences were identical; that is the unfortunate consequence of copying and pasting on a mobile device. Sorry for the confusion.

As always when reading other people’s contribution, please look at the considerations presented in their plurality and complexity. I did not just called attention to the opening sentence (and, of all things, with that unfortunate typo!)Report

Jane Dewitt
Jane Dewitt
6 years ago

Sorry, I didn’t mean to suggest that we should accept anything on *anybody’s* authority, including McArdle’s. I meant to evaluate the argument. It seems like claiming that the prevalence of false allegations is between 2% and 10% is compatible with what I, and McArdle, claimed. The difference between 2% and 10% is huge–a factor of five. And I’m not sure I buy that the Lisak et al paper established that the rate is between 2% and 10%: it is drawn from a very small, and idiosyncratic, sample. On the other hand, I doubt that the rate is much higher than 10%. So maybe we agree after all?Report

Jennifer Lackey
Jennifer Lackey
6 years ago

InDisbelief: It is sad that honest, courageous attempts at bringing about positive change in the philosophical profession are met with such undermining tactics. It might be difficult for some to believe that a group of graduate students could independently display such bravery, insight, and compassion, but this just further reveals what an extraordinary community of students we have here at Northwestern.

It was never a secret that I am a named defendant in Ludlow’s suit. Justin’s introduction to the graduate students’ letter links to a story in which this was made explicit. But that this fact creates a conflict of interest with respect to my applauding the students for publicly supporting their classmate is an utter mystery to me.Report

anonymous
anonymous
6 years ago

Jane, I’m sorry but you are wrong that Lisak et al base their 2-10% figure on only their study. They also provide analyses of 7 other studies. From the paper:

“Among the seven studies that attempted some degree of scrutiny of police classifica- tions and/or applied a definition of false reporting at least similar to that of the IACP, the rate of false reporting, given the many sources of potential variation in findings, is relatively consistent:
• 2.1% (Heenan & Murray, 2006)
• 2.5% (Kelly et al., 2005)
• 3.0% (McCahill et al., 1979)
• 5.9% (the present study)
• 6.8% (Lonsway & Archambault, 2008)
• 8.3% (Grace et al., 1992)
• 10.3% (Clark & Lewis, 1977)
• 10.9% (Harris & Grace, 1999)

It is notable that in general the greater the scrutiny applied to police classifica- tions, the lower the rate of false reporting detected. Cumulatively, these findings contradict the still widely promulgated stereotype that false rape allegations are a common occurrence.

In the emotionally charged public discourse about sexual violence, it is often the case that assertions are made without reference to research data. Such assertions not only under- mine rational discourse but also damage individual victims of sexual violence. The stereo- type that false rape allegations are a common occurrence, a widely held misconception in broad swaths of society, including among police officers, has very direct and concrete consequences. It contributes to the enormous problem of underreporting by victims of rape and sexual abuse. It is estimated that between 64% and 96% of victims do not report the crimes committed against them (Fisher et al., 2000; Perkins & Klaus, 1996), and a major reason for this is victims’ belief that his or her report will be met with suspicion or outright disbelief (Jordan, 2004).

The stereotype also contributes to negative responses to victims who do report, whether by family members or by personnel within the criminal justice system. When law enforcement personnel believe that half or more of rape reports are fabricated (Jordan, 2004), their approach to victims can easily become more akin to hostile inter- rogation than to fact finding (IACP, 2005b). In an effort to fight this tendency, EVAW International has published what is perhaps the most comprehensive set of training cur- ricula, designed especially for law enforcement, which specifically address the issue of false reporting as well as the criteria for formally reporting (Lonsway, Archambault, & Berkowitz, 2007) and “clearing” (Archambault & Lonsway, 2007) sexual assault cases. The online training materials address both the technical aspects of rape investigation and classification, as well as its more psychological aspects, including the “cycle of suspi- cion” that can quickly intimidate and alienate victims and ultimately undermine a rape investigation.

Given the intense debates and controversies that mark the public discourse on sexual assault, it is remarkable how little research has been done in the United States on how rape cases are handled in the criminal justice system. Commonwealth countries, notably Great Britain, have generated major, government-funded studies designed to track rape cases from their initial report to law enforcement through to their ultimate disposition within the system. These so-called “attrition” studies are complex, labor intensive, require the coop- eration of multiple agencies, and need to be repeated over time to track changes in the criminal justice system. However, they provide the clearest window into how our society is responding to sexual violence. When properly designed, studies of attrition can also provide crucial data on the rate of false reporting in rape cases. It would seem imperative that support of such attrition studies be a major funding priority of agencies charged with fostering needed research in the domain of sexual violence.”Report

Anonymous
Anonymous
6 years ago

In response to InDisbelief:

“I just want to suggest – strongly suggest – to the community of graduate students at NU that they reflect on the serious matters affecting their department as much as possible on their own, also finding as I said their own voice.”

I myself assume that this is precisely what the NU graduate students have been doing; I see no reason to doubt that this is the case. Am I supposed to think that my philosophical peers are incapable of independent thought because some of their language is similar to language used by Jennifer Lackey and Baron Reed? I have found that when different people are trying to express the same point, they often use similar language. I have also found that different people, thinking independently of one another, often arrive at the same conclusions. I respect the NU graduate students enough to believe that they have “search[ed] for a culturally autonomous response to such a troubling situation.” I believe that they searched for it, found it, and subsequently published their letter. (To be clear: I do realize that although we know that a majority of the grad students voted in favor of the letter, we have no reason to think that the vote was unanimous.)

“If I were a faculty directly involved in the matter, I would approach it with more… tact if I can use the word.”

I want to be careful not to misunderstand you: you are insulting Prof. Lackey by suggesting that she has been less-than-tactful in her response to a student’s allegation of sexual assault. Here is what I have seen her do: (i) write an open letter to provide suggestions for helping students who are victims of sexual assault and harassment and (ii) openly praise the graduate students in her department. If this constitutes a lack of tact, may we all be tactless.Report

AnotherNUGrad
AnotherNUGrad
6 years ago

InDisbelief, if you want to put forth your own alternative positive suggestions for how we, as a profession, can better address the very serious problem of sexual misconduct in our discipline or how we can protect persons from marginalized social groups among us from discrimination, then I would be happy to engage with you further. Absent that sort of contribution to this discussion, I take it other commenters have already offered you sufficient reply.Report

Baffled
Baffled
6 years ago

In response to InDisbelief:

In your post, you don’t explicitly state that Jennifer Lackey lacks integrity. However, I can’t help but think that this is exactly what you are suggesting. If I’m right, I have no idea how you could possibly think that you are justified in making this suggestion. Your comments in this thread have made it clear that you don’t know Jennifer personally. They have also made it clear that you don’t understand the situation at Northwestern. You have no reason to think that Jennifer’s actions are anything except above reproach.

If you are suggesting that Jennifer lacks integrity, you have made two mistakes. First, you have been epistemically irresponsible, since you have formed your opinion on the basis of. . . actually, I have no idea. You certainly haven’t formed it on the basis of good evidence. Second, you have made a moral mistake: it’s morally wrong to make such a serious accusation (whether implicitly or explicitly) when you have absolutely no reason to think that it is true.Report