Northwestern and Title IX: What’s Going On (updated)


Title IX issues at Northwestern University are currently receiving a lot of attention, largely in editorial pieces and comments that obscure or omit certain facts. Since these facts may be relevant to your opinion about the events at Northwestern and Title IX more generally, and since the events in question centrally involve a philosophy professor and a philosophy graduate student, I thought a post here was in order.

The figure at the heart of the controversy is Peter Ludlow. Ludlow, you may recall, has been accused of sexually assaulting an undergraduate student. That accusation has gotten the most attention, but that is not the accusation most relevant to the current controversy.

Peter Ludlow has also been accused, in an internal Title IX complaint at Northwestern, of raping a graduate student in the philosophy department. This story has received less publicity, in part because those making the accusation, including the graduate student, are fearful that publicizing their side of the story will subject them to costly and drawn-out lawsuits (which are an ordeal even if you win). The most publicly accessible account of the accusation has been in Ludlow’s own legal documents, in which he alleges that he had a consensual relationship with the graduate student. According to several documents I’ve reviewed, the graduate student alleging that he raped her strenuously denies that she and Ludlow ever had a consensual dating relationship. (And just to be clear, the word “rape” is not being used in some unusual or idiosyncratic or merely legalistic sense.)

Enter Laura Kipnis, a professor in Northwestern’s School of Communication, who has now written a pair of articles for the Chronicle of Higher Education about Title IX issues. In her first piece, she does not clearly distinguish between the events involving the undergraduate and those involving the graduate student. She writes:

[Ludlow] sued for defamation various colleagues, administrators, and a former grad student whom, according to his complaint, he had previously dated; a judge dismissed those suits this month. He sued local media outlets for using the word “rape” as a synonym for sexual assault—a complaint thrown out by a different judge who said rape was an accurate enough summary of the charges, even though the assault was confined to fondling, which the professor denies occurred. (This professor isn’t someone I know or have met, by the way.) What a mess. And what a slippery slope, from alleged fondler to rapist. But here’s the real problem with these charges: This is melodrama. 

Following this, Kipnis briefly discusses the power dynamics between professors and students and says:

In fact, it’s just as likely that a student can derail a professor’s career these days as the other way around, which is pretty much what happened in the case of the accused philosophy professor.

And then:

I strongly believe that bona fide harassers should be chemically castrated, stripped of their property, and hung up by their thumbs in the nearest public square.

That last line is an implied contrast between Ludlow and “bona fide harassers.” It should be noted that the above excerpts are from the version of Kipnis’s essay that includes revisions after she was contacted by others at Northwestern about the two distinct accusations, the status of the relevant legal proceedings, and the implicature of her rhetoric.

Now put yourself in the shoes of the graduate student, for a moment. She has made a Title IX complaint against a well-known and highly established professor in her program that involves a serious accusation of rape. She is sued for defamation by the professor. The lawsuit is dismissed. But then another professor at her university, Kipnis, writes an essay in her profession’s main news outlet that echoes Ludlow’s account that they were consensually dating, implies she is lying, and suggests that her complaint of rape is an exaggeration and “melodrama.” Kipnis urges readers to see her as harming Ludlow, rather than the other way around, and implies that Ludlow is not a real harasser. Further, when Kipnis is informed about the facts, she refuses to alter the relevant language to remove the implications. What is the lesson to the student, and to others who might come forward?

After that refusal, a Title IX complaint of retaliation and the creation of a hostile environment was lodged against Kipnis. The idea behind these elements of Title IX is to ensure that alleged victims are not threatened, coerced, or otherwise intimidated from participating in the enforcement of their own rights not to be discriminated against. Did Kipnis’s article constitute retaliation or create a hostile environment? If you have a moment, consult the “Retaliation” section in the Justice Department’s Title IX legal manual. To make a long story short, there is no way the answer to that question is “obviously not!”

As a result of the complaint, an investigation into the matter was initiated. The investigation has just concluded and there were no findings against Kipnis.

The investigation involved interviewing Kipnis, which she describes in her second Chronicle article on the matter. Despite Kipnis’s dramatic retelling, what she is describing is Northwestern University getting her side of the story. The investigation was not, contrary to Kipnis, owed to “intellectual disagreement,” but rather to a passage she wrote that could be construed as calling a Title IX complainant a liar, and discouraging other complainants from coming forward.

Kipnis advances her spin on these events—that there is some big conflict of ideas at the heart of these investigations—in a number of ways. One is by weaving her story in with a few events elsewhere. Another is by writing that “The students were willing to drop their complaints in exchange for a public apology from me.” I have been informed that the students involved made no such offer.

Kipnis makes a big deal of the fact that those interviewing her were from an external law firm. The reason for this is that a Title IX complaint had been filed against Northwestern’s own Title IX coordinator, and so, to avoid a conflict of interest, the University hired external lawyers.

Kipnis also advances her narrative through vague descriptions. Consider this passage from her second article:

In the meantime, new Title IX complaints have been filed against the faculty-support person who accompanied me to the session with the investigators. As a member of the Faculty Senate… he’d spoken in general terms about the situation at a senate meeting. Shortly thereafter, as the attorneys investigating my case informed me by phone, retaliation complaints were filed against him for speaking publicly about the matter (even though the complaints against me had already been revealed in the graduate student’s article), and he could no longer act as my support person.  

The faculty-support person Kipnis chose happens to be the president of the Faculty Senate, Stephen Eisenman. As president, he took to the faculty senate floor to speak about the matter and while what counts as “general terms” is subject to interpretation, I am informed that Eisenman provided details of the charges against Kipnis, along with details about how the investigation was proceeding. He questioned the reasonability of the investigation, defended Kipnis, and discussed the possibility of bringing charges against the complaining students for creating a hostile environment. All this, while the confidential investigation into the retaliation charges against Kipnis was ongoing.

In response to this, for the first time in recent history, Northwestern’s Department of Philosophy was moved to issue a joint statement. It reads as follows:

We (the faculty members of Northwestern’s Philosophy Department) call upon Baron Reed, the Philosophy Department’s representative to the Faculty Senate, to join together with other Faculty Senators to inquire into whether Stephen Eisenman, in his role as President of the Northwestern Faculty Senate, violated his obligations by discussing details of an ongoing confidential university investigation on the senate floor, and so therefore should step down from office. Our students deserve to be treated in full accordance with the university’s rules.

The complaint was forwarded to the Faculty Senate’s Governance Committee. The Governance Committee then forwarded the complaint to the Faculty Senate’s Executive Committee. Can you guess who is in charge of the Executive Committee? That would be the Faculty President. So, the complaint against Stephen Eisenman was to be dealt with by a committee headed by Stephen Eisenman. He has since recused himself from considering the matter.

As I noted earlier, the Title IX investigation yielded no finding of retaliation against Kipnis. One can only imagine how disappointed she will be with this. It turns out that the process she had been demonizing—which of course may have its flaws—pretty much worked, from her point of view.

Kipnis has turned her story about her refusal to correct her confused and possibly misleading account of a Title IX complaint allegedly involving rape into a sweeping epic about her time on the front lines of the heroic battle defending academic freedom. Now that more facts are out there, I leave it to the reader to decide whether that is where her story really belongs. She claims that “What’s being lost, along with job security, is the liberty to publish ideas that might go against the grain or to take on risky subjects in the first place.” That she says these words in academia’s most widely read news publication is an irony she neglects to remark upon.

You may still have some sympathy for Kipnis. After all, she was investigated, and that was probably not a pleasant experience. And perhaps you have sympathy for those fragile academics Kipnis says “now live in fear of some classroom incident spiraling into professional disaster,” irrelevant as they are to the events in which Kipnis was involved. But while you are feeling sympathetic, don’t forget to spare some sympathy for someone who seems to have been forgotten in all of this noise: the student.


UPDATE (10:20am, 5/31/15): Hi everyone. Thanks for your comments. I don’t have time to respond to all of them, but here are some additional remarks that, I hope, clarify things:

  • Was a Title IX complaint filed against Laura Kipnis for her position in some “intellectual disagreement”? This is the story Kipnis tries to advance, but the answer is no. The complaint was filed specifically in regard to what she said about the Ludlow cases, what that implied about those who had made Title IX complaints against him, and the belief of the complainants that this constituted retaliation. So I find Kipnis’ attempts to paint herself as a martyr in the fight for “the liberty to publish ideas that might go against the grain or to take on risky subjects in the first place” kind of silly and overblown. I would be really troubled by actual attempts by the government to infringe on this liberty (really!) but this does not seem to be what is going on here.
  • Can just a couple of paragraphs here or a mere tweet there actually constitute retaliation? I am not a lawyer, so don’t treat this as an interpretation of law, but I have to say I am puzzled by the idea that words, or a small amount of words, couldn’t constitute retaliation. Words can have all sorts of effects, including, it seems to me, effects that are retaliatory.
  • Do you think that Kipnis’s comments constituted retaliation, as it is defined by Title IX? I’ll stick with what I said in my original post: I don’t think the answer is “obviously not.” But again, I am not a lawyer. To say that the answer to this question is not “obviously not” is not, of course, to say that it is “yes.” It is just to say that, given my understanding of the law and what was written, it would not be unreasonable to consider the question further, gathering information or evidence in order to make that decision.
  • Do you endorse Northwestern’s treatment of Laura Kipnis? I don’t object to Northwestern taking the Title IX complaint seriously, and I certainly don’t object to Northwestern getting Kipnis’s side of the story (that was the point of the legal interview)—it would have been terrible if they hadn’t! (My understanding is that some Title IX investigations at other institutions have concluded without interviewing the subject of the complaint, which is highly objectionable.) If the university and the lawyers were as cagey as Kipnis reports they were about revealing the charges against her, then that seems to be a problem. As I said in my post, the process may have its flaws.

And now let me just address this comment:  “Justin is cheerleading unaccountable secret tribunals, the harassment and punishment of academics for legitimate speech, and the complete destruction of due process, all in the name of some ideological agenda.” For all the times I am accused of being a cheerleader, I feel like I really missed my calling. I better get a set of custom pom-poms out of all of this. Ok, here goes:

  •  Am I cheerleading for secret tribunals? No. I am in favor of taking students’ complaints seriously. While I referred to possible flaws in the process in my original post, let me be clear that I am not a fan of secrecy here. I’ll repeat what I just said above: “If the university and the lawyers were as cagey as Kipnis reports they were about revealing the charges against her, then that seems to be a problem.”
  • Am I cheerleading for the harassment and punishment of academics for legitimate speech? Nope. I don’t see where I defend harassment in this post nor where I call for punishment. Also, “legitimate speech” is kind of question-begging, don’t you think? I’m a huge fan of free speech, but most of even the staunchest free speech defenders don’t think all speech should be legal.
  • Am I cheerleading for the complete destruction of due process? Come on, man. There was a complaint. It was investigated. This is not the destruction of due process. It is part of due process. Were there procedural problems with how the investigation was conducted—quite possibly. Am I in favor of those procedural problems? Nope. Oh, and by the way, from the perspective of Kipnis and her defenders, it appears the process worked. Did I object to the findings? Nope.
  • Am I cheerleading in the name of some ideological agenda? This again? Oy. If you want to hear more about my so-called “ideological agenda”, go here and read what comes up when you search for “cheerleader,” “ideologue,” and “toughen up.”

UPDATE (5/31/15, 12:00pm): Kipnis has made a public post on her Facebook page that says, “After 72 days I’ve heard that as far as the Title IX complaints against me, ‘A preponderance of the evidence does not support the complaint allegations.’ The complainants have ten days to appeal. The charges that I violated university policies are still outstanding and now go to the university for consideration, according to the letter from the investigators.”

UPDATE (5/31/15, 6:40pm): Here is a new Huffington Post article on the subject. It appears that Kipnis and the complainants, among others, were interviewed for it. There is also a new post at the CHE’s Ticker Blog.

UPDATE (6/1/15, 3:40pm): Here’s an excerpt from the HuffPo piece that deserves some attention, especially from those who want to make the complainants (or me, for that matter) out to be fans of flaws in the Title IX investigative process:

The complainants said they side with Kipnis on a number of issues she raised about the Title IX procedure in her essay. For example, they don’t understand why Kipnis had to jump through hoops to find out the charges against her and couldn’t get them in writing, or why it took two weeks to inform her of the complaint. They were similarly upset that the investigators prohibited recording interviews. “I don’t get why they’re so insistent on that, it adds protection for everybody,” the graduate student said, noting she also found errors in the notes taken by investigators. Kipnis offered a more succinct remark about the control against transparency by investigators: “Secrecy invites abuses.”

UPDATE (6/2/15): The complaint against Stephen Eisenman, Kipman’s support person, has been withdrawn:

The student, who didn’t want her name publicly revealed, said part of the reason she withdrew her complaint against Eisenman was that investigators had begun to probe the case without getting her full statement. “I cannot continue to be so naive as to hope that internal complaint processes can safely be made use of in good faith. It’s clear that they cannot,” the student wrote in withdrawing her complaint on Sunday.

UPDATE (6/6/15): I had forgotten about Cynthia Lewis’s reply to Kipnis in The Chronicle, which makes a point similar to mine about Kipnis’s lack of clarity regarding the two distinct cases (undergrad and grad). She writes:

Specifically, in her synopsis of the undergraduate’s complaint, Kipnis fuses what are actually two sexual-assault complaints, both of which center on the same philosophy professor. She lists the lawsuits the undergraduate student has brought against Northwestern and the professor and then jumps to writing this: “The professor sued various colleagues, administrators, and a former grad student he previously dated, for defamation. …” All of these lawsuits — against the graduate student, colleagues, and administrators — pertain to a completely different charge of sexual assault against the professor. As Kipnis ought to know and acknowledge, the graduate student filed a separate complaint.

In turn, the professor sued the undergraduate for libel/slander and the graduate student for defamation, false-light invasion of privacy, and civil conspiracy. He has also sued Northwestern under Title IX for gender discrimination in its handling of the graduate student’s complaint.

Kipnis’s conflation of the two cases serves her agenda — to argue that professor-student relationships are relatively harmless and to insinuate, by the way, that the undergraduate at Northwestern is hysterical and entitled. But to acknowledge the actual situation — that two complaints from two different students have been lodged against the philosophy professor — seriously undermines her overall argument.

Referring to the slew of lawsuits Kipnis traces to the undergraduate’s complaint, she writes, “What a mess.” But because most of those lawsuits stem from the graduate student’s complaint, Kipnis ironically misidentifies the source of the messiness: the professor’s tendency to get into trouble and his subsequent efforts at damage control.

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JAB
JAB
5 years ago

Oh, I am so glad you wrote this. Thanks.Report

anon female grad student
anon female grad student
5 years ago

I encourage everyone to read the original Kipnis piece, as I think she does certainly distinguish between the undergraduate case, which she discusses in great detail, and the graduate student, who is mentioned in that short phrase. In context, the remarks that follow are clearly about the case with the undergraduate, rather than the graduate student.

I might think that Kipnis was unwise, perhaps reckless, in some of these comments. I might also think that her comments certainly do not constitute anything like harassment or some kind of actionable offense, and that the fact that the definition of retaliation is so broad as to possibly include them is a problem with the definition of retaliation, such that any “adverse action” which is “causally connected” to the original complaint counts.Report

Will
Will
5 years ago

I admit I have trouble keeping everything in the Ludlow case(s) straight. Are there any outstanding or ongoing suits involving him now? I was under the (perhaps mistaken) impression that both the original suits against him and his countersuits had all been dismissed. Since Justin clearly says that he was accused of rape (without any equivocation of qualification) do we know if he was ever criminally charged for that? Thanks to anyone who can clear those factual matters up for me.Report

'That Guy'
'That Guy'
Reply to  Will
5 years ago

This is a very important question given the writer’s statement that there “is an implied contrast between Ludlow and “bona fide harassers.” If Ludlow is yet to be found culpable in any of the investigating that has happened, then there is no implied contrast at all. The ACTUAL contrast is a verdict/finding of guilt by some investigator somewhere.
Does the writer wish to imply that Kipnis wound find him less than a bona fide harasser even if he were found guilty? I hope not, but there aren’t a lot of other options.Report

anon female grad student
anon female grad student
5 years ago

But, as I read the definition more closely, it seems that for an adverse action to count as retaliation, the purpose of that action must be retaliation. And if that’s the case, I think the answer to the question of whether her piece constitutes retaliation *is* “*obviously* not”. Only in the paranoid universe of the complainants did Kipnis write the piece in order to retaliate against the graduate student.Report

Anon
Anon
5 years ago

Justin, your claim that in Kipnis’ first article “she does not clearly distinguish between the events involving the undergraduate and those involving the graduate student” is simply false. Kipnis is perfectly clear that it is an *undergraduate* who sued the university initially and that it was a *grad student* who claims to have been raped.Report

Taylor Carman
5 years ago

Justin, I think you’re conflating two different elements of Title IX. There is no mention of “hostile environment” in the provision concerning retaliation, so I don’t think that’s something Kipnis could have been charged with in the retaliation complaint.Report

Taylor Carman
5 years ago

How does that sidestep intent? It says, no one “shall intimidate, threaten, coerce, or discriminate against any individual … because he has made a complaint, testified, assisted, or participated,” etc. That is, the action must have been taken “because” the person was (somehow) involved in a complaint. Isn’t that the “because” of motive?Report

Anon Grad Student
Anon Grad Student
5 years ago

One question is whether you can “intimidate, threaten, coerce, or discriminate” without intention. Assuming the answer to that first question is “yes,” what is the sense of causation implicated in the “because” you’re pointing to?

My guess (and I’m as ignorant as to this as the next commenter) is that intention is required here. It may be that certain sorts of behavior are considered prima facie evidence of intention, such that there does not always need to be independent evidence of intention.Report

DC
DC
5 years ago

I am continuously surprised at the support that these retaliation claims are getting on dailynous; the complaints are frivolous, particularly the one against Eisenman, and stretch retaliation claims beyond any sane boundary. The retaliation clause in the federal regulations was never meant to be a cudgel to reach anyone who says anything connected with a Title IX discrimination claim, and the claim that someone in a non-supervisory role “retaliates” by publicly criticizing another Title IX investigation is just repellent to modern conceptions of free speech.

First, let’s ignore the Title IX manual; the Department of Education does not write the laws and their interpretation should not be considered as black letter law. Think of them as a prosecuting agency, like a district attorney’s office. The Department’s Office of Civil Rights has adopted a very activist interpretation of the regulations, but has not yet had to defend its interpretation in court, and there is largely a consensus among legal academics that a lot of their more novel theories are not supportable. The code itself states:

“(e) Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.”

The terms “intimidate, threaten, coerce, or discriminate” are not just vague, generalized dictionary definitions; they have a context in the law that require more than hurt feelings. You can’t show retaliation by drawing some hypothetical causal relationship that an action could, in theory, cause someone not to want to file a Title IX complaint in the future. Every major Title IX or Title VI (which courts will look to for guidance) successful retaliation claim involves either concrete actions (firing, reducing salary, denying a promotion) or the creation of a PERVASIVE discriminatory atmosphere. A single essay and tweet does not do that (and neither does commenting on school policy in a school senate meeting).

“That she says these words in academia’s most widely read news publication is an irony she neglects to remark upon.”

I don’t see the irony. That’s like saying my right to speak is not infringed because I’m only facing punishment in one of the two places in which I exercised it.

“But while you are feeling sympathetic, don’t forget to spare some sympathy for someone who seems to have been forgotten in all of this noise: the student.”

Is she having a Title IX complaint lodged against her, too?Report

Taylor Carman
5 years ago

(Sorry, I can’t seem to get my comments nested below those I’m replying to. Can someone help me fix this? Anyway, here’s goes again.) In reply to Justin’s quoting from Title IX — none of that text pertains to the definition of “retaliation,” which was the charge against Kipnis.Report

Anon Faculty
Anon Faculty
5 years ago

Why couldn’t the complaint include charges of both retaliation and hostile environment?Report

Anon
Anon
5 years ago

Contrary to the tendentious interpretations forwarded in this commentary, it *is* perfectly obvious to anyone not in the grip of ideological fervor that the accusations against Kipnis are baseless, whatever one may make of her original editorial. The complainant in the Ludlow case may well be due sympathy for a variety of things, but certainly not for this (hopefully) abortive contribution to the trend of administrative overreach and erosion of academic freedom (the second Kipnis complaint is due even less sympathy than that).Report

DC
DC
5 years ago

They are kind of the same thing in a legal context; retaliation is the general claim, with creating a hostile environment one mode of retaliation.Report

Different anon grad student
Different anon grad student
5 years ago

I am happy to leave construal of Title IX to the lawyers (one thing I’m unclear about, incidentally, is the extent to which the DOJ manual counts as an administrative regulation deserving of *Chevron* deference), but it can’t be the case that merely stating publicly “I think X’s complaint against Y is meritless” (or even “melodramatic”) or “I think Y should have prevailed in his lawsuit against X”, in and of itself, constitutes retaliation against X or Y in any *morally* important or weighty sense of ‘retaliation’. If that were the case, it would be more or less impossible to have any reasonable open discussion about the demands of justice as applied to specific cases.

(Of course, in special circumstances — if one is, for example, involved in administering the case — one might have a duty not to make such public statements. But Kipnis wasn’t in that position.)Report

Taylor Carman
5 years ago

The published references to the complaints against Kipnis that I’ve seen describe them as “retaliation complaints”; I haven’t heard any mention of anyone accusing Kipnis of contributing to a hostile environment. The distinction is important because the charge of retaliation requires demonstrating intent (see above).Report

Anon Faculty
Anon Faculty
5 years ago

DC: If someone takes to the floor of the Faculty Senate to tell a partisan version of a complaint that is supposed to be confidential, and without the complainants getting to present their own version of the story, how does that NOT create a pervasive discriminatory atmosphere? I would think doing so would undermine the complainants’ ability to receive a fair hearing for their complaint, especially if any of those faculty will later be called on to serve on an appeals panel. Even without that, it would seem clear that the harm is a lot more than “hurt feelings.” This looks like a serious blow to their reputations.

Test your intuitions on this by shifting away from Title IX. Imagine an assistant professor is granted tenure but faces strenuous objections from one of her colleagues. Suppose then that the objector (or a friend of his) takes to the floor of the Faculty Senate to comment on what he perceived to be particular weaknesses in the tenure file and advocated overturning the decision. This would be utterly outrageous; anyone who did this should expect to face serious sanctions. How is that different from what happened in this case? Personnel matters, including both tenure decisions and disciplinary hearings, are supposed to be kept confidential–and for good reason.Report

Taylor Carman
5 years ago

If DC is right that “retaliation is the general claim, with creating a hostile environment one mode of retaliation,” then, I take it, the burden would have to be to show that Kipnis didn’t just happen to contribute to the hostile environment, but did so in order to retaliate. My point was that Justin’s account in this post might suggest that the complaint against Kipnis might be warranted by a mere effect of her article rather than by her intention in writing it.Report

Coherentist
Coherentist
5 years ago

It’s perfectly possible that there was both a retaliation and hostile environment complaint, and given that Justin seems to know quite about this case, it’s also perfectly possible that he was in a position to know when he wrote the post.Report

Anon Faculty
Anon Faculty
5 years ago

Taylor Carman: Setting aside the question of Kipnis’s first article, can you comment on whether you think her second article is retaliatory? She is commenting there, not only on Title IX and academic freedom in general, but on a particular complaint, including a complaint that was filed against her faculty-support person. In doing so, she is deliberately undermining the university’s ability to handle those complaints in a fair, confidential way. In other words, her second article is deliberately bringing about an adverse effect for the complainants by undermining their ability to exercise their rights. So, isn’t at least the second article pretty clearly retaliatory?Report

Taylor Carman
5 years ago

I agree with Anon Faculty (20) that the complaint against Eisenman is a different matter altogether.Report

Taylor Carman
5 years ago

To “retaliate” is to “intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by” Title IX. Moreover, the charge of retaliation has to show that any “legitimate, nondiscriminatory reason for the adverse action … is pretextual and that the recipient’s actual reason was retaliation.” The fact finder, that is, must conclude “that retaliation was the real purpose of the action.” Kipnis’s legitimate purpose in both articles has pretty clearly been to be commenting on (what she sees as) an insidious trend; that, after all, is the kind of intellectual work she does. I think it would be hard to show that she was pursuing no legitimate purpose other than retaliating.Report

DC
DC
5 years ago

Anon Faculty:

The purpose of a faculty senate is governance; it seems illogical to hold that if a faculty senator thinks there has been a breakdown in governance he is not entitled to discuss it; that’s the reason that legislators in this country have complete immunity from statements they make on the floor of their legislative bodies. It seems illogical that speaking in general terms about a specific situation that he thinks should be resolved is somehow improper, or discussing an investigation impermissibly violates some confidentiality standard. I mean, confidentiality laws in education are fairly strict, so your reading would basically mean that the faculty senate and its members would frequently not be able to discuss problems that dealt with individual students, no matter how pressing.

As for your hypothetical, I think your example is inapposite. Based on Justin’s post Eisenman apparently believed the complaint itself was made improperly — not just unsupported, or even wrong, but rising itself to the level of malfeasance — in which case I would think a better analogy would be where the objector to tenure brought up actual wrongdoing or a problem with how the tenure process itself was conducted rather than, say, criticizing an evaluation of scholarship or teaching ability.Report

Anon
Anon
5 years ago

The Kafkaesque creativity of Anon Faculty (21) deserves applause! Are we now to think that someone plainly innocent of a Title IX violation and subject to a frivolous complaint can violate Title IX simply by correctly characterizing that complaint as frivolous in a public forum?Report

Coherentist
Coherentist
5 years ago

DC, it does seem that if Eisenman wanted to respond to the complaints in some manner because he believed the filing of the complaints itself was improper, though, that he should not have agreed to serve as a support person in the case. This was pretty easy to find through google, and it’s from Northwestern’s policies and procedures (note the last sentence):

“During the investigation process, both the complainant and the respondent may ask a non-attorney support person from the University community to accompany him or her . . . The support person does not serve as an advocate on behalf of the complainant or respondent, may not actively participate in the investigation, and he or she must agree to maintain the confidentiality of the process.”

http://www.northwestern.edu/sexual-harassment/where-to-get-help/what-happens-with-a-complaint.htmlReport

Anon 2
Anon 2
5 years ago

Sympathy for Kipnis? You’ve got to be joking. Kipnis expressed all manner of scum-bag views in her first article. Worse, in that article, she intentionally conflated two very different cases and omitted important information, because the facts didn’t fit her narrative. Even worse, she sought to hide the fact that she had done this in her second article (along with the facts surrounding her faculty support-person, Eisenman). So I have no sympathy for Kipnis.

But that is not the point. We can’t have Title IX kangaroo courts going on witch-hunts and threatening to abridge the free speech rights of people like Kipnis. She should be able to have her say, and then the flaws in her arguments should be exposed for all to see (and that’s what is happening). You might say that the process seems to have worked okay in this case. That’s not the point, either: from the way the process has been described, there is great potential for abuse.Report

Regina Levy
Regina Levy
5 years ago

Am I the only one who is concerned with the process of investigation? Assume for the moment that Kipnis was guilty of retaliation (a rather untenable assumption, in my view — not only does retaliation require retaliatory intent, Kipnis had no reason whatsoever to retaliate on behalf of a professor she did not even know personally). There is something called “procedural due process,” and it requires, among other things, an unbiased tribunal and the right to be represented by legal counsel. But it’s difficult to argue that the firm hired by the university to play the roles of investigator, prosecutor, and judge can plausibly be seen as such a tribunal. Nor was Kipnis allowed the right to legal counsel. Other aspects of the process such as unwillingness on the part of the hired investigators to present the charges in advance make me suspicious as well. The whole affair is reminiscent of legal proceedings in countries where human rights are trampled. This is disturbing and a real cause for concern.Report

Anon Faculty
Anon Faculty
5 years ago

DC: Typically, governance issues have to do with general issues, not with particular cases. Recall this part of Justin’s post: “I am informed that Eisenman provided details of the charges against Kipnis, along with details about how the investigation was proceeding. He questioned the reasonability of the investigation, defended Kipnis, and discussed the possibility of bringing charges against the complaining students for creating a hostile environment. All this, while the confidential investigation into the retaliation charges against Kipnis was ongoing.” It looks pretty clear that Eisenman WAS discussing a particular case, and not just in general terms.

I would think the implication that a faculty senate cannot discuss problems that deal with individual students is exactly right. This is the reason universities have disciplinary boards, appeals panels, etc. (More generally, the Constitution forbids Congress from passing bills of attainder, which are directed at particular individuals or groups.)

Finally, I really don’t see where you get from Justin’s post the idea that Eisenman believed there was malfeasance in the bringing of the complaint. What would that even mean? Thinking it is unreasonable (Justin’s characterization) is a far cry from thinking there is malfeasance. In any case, it seems clear that he should have let the investigation run its course. If Kipnis ended up being unhappy with the result, she could presumably appeal the decision and then take it to the court system. Again, this is exactly analogous to how a tenure decision ought to be handled. In neither case is it appropriate to discuss a particular case in the faculty senate.Report

Anon Faculty
Anon Faculty
5 years ago

Why would it have to be shown that she was pursuing NO legitimate purpose other than retaliating? Surely, she could be seeking both to advance her career and to retaliate against those who brought the complaint. Would it really make a difference that she had both purposes?Report

Rod Carveth
Rod Carveth
5 years ago

Justin, you did not read Kipnis’ piece carefully, and it is you who have conflated the stories. These Title IX complaints are out of bounds, and are having a chilling effect on free speech.Report

Rod Carveth
Rod Carveth
5 years ago

Justin, by the way, if Dr. Eisenman discussed the Title IX investigation in the manner you allege after the Huffington Post piece came out, exactly in what way was anyone’s privacy, or the integrity of the Title IX investigation compromised?Report

Crimlaw
Crimlaw
5 years ago

You report that the student made a “serious accusation of rape” as part of a Title IX complaint. If that is correct I hope that someone told her that while such an accusation might certainly be a part of a Title IX complaint the accusation would find a more natural home within a criminal law setting. I do not know what OCR would think of criminal allegations made as part of a Title IX complaint that have received no attention from law enforcement. No doubt such an issue would be addressed on a case by case basis rather than in some general way. My own view is that one formally making serious criminal accusations should make them in a criminal law setting. I do not know whether this happened in the case you are discussing.Report

witness
witness
5 years ago

Anon Faculty suggests that Eisenman 1) mentioned the complainant(s) and respondent by name — he did not, though the identity of the respondent (Kipnis) had been previously exposed by a writer in the Huffington Post; 2) AF proposes a blanket prohibition on the discussion of particular Title IX cases among faculty leaders even when no names are used and important issues are at stake — wouldn’t that bar any scrutiny of Title IX, its misapplication, and possible danger to academic freedom? 3) AF’s concluding parallel is false — no career was called into question and no one involved in the matter suffered a harm; in fact, no one was identified. Title IX moreover, defines retaliation as a creating a harm that is “pervasive” and “materially adverse” — an uncertain negative effect on reputation would not count; 4) Eisenman repeatedly told listeners that his concern was “academic freedom”, the protection of which is the paramount responsibility of every faculty senate; he made no specific mention of the complainants.
Wouldn’t this entire string be debarred if AF’s viewpoint was upheld?Report

Richard Zach
5 years ago

Kipnis didn’t mention at all that Ludlow was facing a second rape complaint by a graduate student, as far as I can tell.Report

DC
DC
5 years ago

Anon Faculty:
” Typically, governance issues have to do with general issues, not with particular cases . . . It looks pretty clear that Eisenman WAS discussing a particular case, and not just in general terms.”

Typically, yes, but not exclusively. I did not refer to this as a “general situation,” but rather about a specific situation that was discussed in “general terms,” i.e., potentially in a way that avoids revealing information that should be kept confidential. Again, the problem would not be with an individual student so much as the those individual students revealing a problem with the governance regime, specifically that Kipnis was being unfairly bullied.

“I would think the implication that a faculty senate cannot discuss problems that deal with individual students is exactly right. This is the reason universities have disciplinary boards, appeals panels, etc. (More generally, the Constitution forbids Congress from passing bills of attainder, which are directed at particular individuals or groups.)”

I think that would limit reasonable debate and unncessarily hobble faculty members and place a lot more power into the hands of college administrators. And yes, Congress can’t pass bill of attainders but that’s not the issue here; I didn’t read the post as Eisenman demanding the faculty senate pass some measure punishing the student, but rather pointing out that that the students may be the ones guilty of harassment.

“Finally, I really don’t see where you get from Justin’s post the idea that Eisenman believed there was malfeasance in the bringing of the complaint. What would that even mean? Thinking it is unreasonable (Justin’s characterization) is a far cry from thinking there is malfeasance.”

I am relying on Justin’s characterization of Eisenman’s words, which verbatim are: “He questioned the reasonability of the investigation, defended Kipnis, and discussed the possibility of bringing charges against the complaining students for creating a hostile environment.” In what situation would someone bring charges if they didn’t think there was malfeasance?

“In any case, it seems clear that he should have let the investigation run its course. If Kipnis ended up being unhappy with the result, she could presumably appeal the decision and then take it to the court system.”

The problem with that is as a private university Kipnis would only have a cause of action if her contract with the university provided a due process clause or some such thing. An adjunct or non-tenured faculty member would thus have no recourse if fired because of a malicious or incompetent Title IX investigation because Illinois is an employment-at-will state, and you are requiring her to take on thousands or tens of thousands of dollars in legal expenses because of a bad faith retaliation claim. Furthermore, how would a flawed Title IX practice be changed if nobody was allowed to discuss when it failed?Report

Anon Faculty
Anon Faculty
5 years ago

Crimlaw: Surely, OCR sees allegations of rape and other instances of criminal wrongdoing that haven’t received attention from law enforcement turn up in Title IX complaints ALL THE TIME. There are many reasons why a victim of rape might pursue the Title IX path rather than making a criminal complaint. Take your pick from the following: many police departments have a history of disbelieving rape allegations, rape often occurs in cases where ironclad evidence is difficult to obtain (given that the issue hangs on consent and not merely the presence of DNA), the criminal justice system moves exceedingly slowly, the rape victim may not want to face the brutal cross examination that often occurs in criminal cases (where her character and past behavior are often presented in the worst possible light), etc.

The decision whether to pursue a criminal case must be a tremendously difficult one for a student who has been raped to face, especially in light of the fact that she has just suffered a deeply traumatic experience. Perhaps in an ideal world, every rapist would be convicted in a criminal court. But this world is very far from ideal–and I wouldn’t presume to lecture others on how they ought to respond to their own trauma.Report

anon faculty
anon faculty
5 years ago

Always nice to see a few flickers of fideism on an otherwise secular blog.Report

Taylor Carman
5 years ago

I misspoke/typed slightly (above): it would have to be shown not that Kipnis had no other legitimate purpose, but (as the Manual says) that her “proffered reason” was mere pretext, and “that retaliation was the real purpose of the action.” It wold be very hard to show that, I think, given that she’s in the business of cultural commentary and criticism.Report

Mike Strong
5 years ago

I realized that Justin is heavily shading a viewpoint to attack Laura Kipnis when I read this out-of-context lift for the purpose of setting point of view about her:
“For the record, I strongly believe that bona fide harassers should be chemically castrated, stripped of their property, and hung up by their thumbs in the nearest public square.”

This is the opening sentence in a paragraph which requires the full paragraph to get her point. Here is the full paragraph. There is a “But …” which moves the counterpoint.

“For the record, I strongly believe that bona fide harassers should be chemically castrated, stripped of their property, and hung up by their thumbs in the nearest public square. Let no one think I’m soft on harassment. But I also believe that the myths and fantasies about power perpetuated in these new codes are leaving our students disabled when it comes to the ordinary interpersonal tangles and erotic confusions that pretty much everyone has to deal with at some point in life, because that’s simply part of the human condition.”

This is a very deliberate and very conscious selection, a dishonesty, by Justin and as such impeaches the rest of his article for me. In addition, Justin seems to minimize, if not fully skip over, the concepts of due process and freedom of speech. I find Kipnis’ articles to be well considered. Or better, head over to Salon for Emily Yoffe’s extremely well-done article. Long and worth every word.Report

Student
Student
5 years ago

Witness, where did anon faculty say that the complainants were discussed by name?Report

Anonymous
Anonymous
5 years ago

Mike Strong: It is puzzling what you are objecting to in Justin’s presentation of that quotation. Kipnis claims that the student complainants derailed Ludlow’s career, not that he derailed his own career through his actions with the complainants. She then goes on to say that bona fide harassers should be chemically castrated, and so on. The clear implicature from these passages is that Kipnis does not believe that Ludlow is a bona fide harasser, which is exactly the point that Justin makes when he says “That last line is an implied contrast between Ludlow and “bona fide harassers.'” I see no dishonesty in the quotations that Justin selects, for with or without the additional context you point to, they support his conclusion.Report

Anon Faculty
Anon Faculty
5 years ago

witness: There are several errors in your comment.

(1) I did not suggest that Eisenman mentioned the complainants and respondent *by name*. Here is what Justin’s post says: “Eisenman provided details of the charges against Kipnis, along with details about how the investigation was proceeding. He questioned the reasonability of the investigation, defended Kipnis, and discussed the possibility of bringing charges against the complaining students for creating a hostile environment.” It is quite possible to identify someone by providing enough publicly available detail–such as by reference to a recently published article in the Chronicle.
(2) I did not propose a blanket prohibition on the discussion of particular Title IX cases among faculty leaders. Presumably, some of these faculty leaders might be involved in disciplinary boards or appeals panels. What I suggested was improper was discussing particular cases in the faculty senate when the investigation is still in progress.
(3) Undermining a complainant’s right to a fair, impartial, and confidential hearing of her complaint would certainly seem to be an adverse effect. More generally, I would think students would be terrified to bring complaints against faculty, for fear that their complaints would be aired in public in an unfair way, with no opportunity to respond.
(4) It certainly sounds like Eisenman made specific mention of the complainants. Again, from Justin’s post: “Eisenman … discussed the possibility of bringing charges against the complaining students for creating a hostile environment.” Academic freedom may be “the paramount responsibility of every faculty senate,” but that doesn’t mean that the senate can defend it in any way whatsoever. Senators, like all faculty, are bound by the university’s own policies on respecting the confidentiality of disciplinary hearings.Report

Crimlaw
Crimlaw
5 years ago

Anon Faculty. I have enough experience in criminal law to know that there are many reasons why one might not file a criminal complaint but thanks for the lecture.
You say that OCR “surely” sees criminal allegations in Title IX complaints “ALL THE TIME.” Whether this is so is a factual matter (indeed, a matter of public record) and I do not know if you have examined the issue or if you’re simply philosophically speculating about the contents of actual complaints. My own speculation would be that OCR does not “ALL THE TIME” see such allegations as part of Title IX complaints. I’ll ask a colleague who specializes in this area of law whether this is so.Report

Matt Weiner
Matt Weiner
5 years ago

Aside from the merits or meritlessness of the Title IX complaints, I was gobsmacked by the passage from Kipnis’s second article* where she inquires of the Title IX officials how she could possibly be guilty of retaliation when she hadn’t been accused of sexual harassment or sexual assault in the first place. Is it not one of the most basic facts about Title IX that no one may retaliate against someone for making a complaint of harassment or assault, whether or not the retaliator is the person who was originally accused? Is it not also basic common sense–that if Judy complains to her boss Jeff that Jack harassed her, and Jeff says “We can’t have troublemakers here” and fires Judy, that Jeff has discriminated against Judy?

Maybe if Kipnis hadn’t clowned her way through her harassment workshop (scroll through the first piece for “smoldering glances”) she’d have learned something useful.

Again this isn’t to say that Kipnis did retaliate or that she hasn’t been treated badly, but I think it does call her credibility on these issues into question–which is a problem, since most of what we have here comes from her own account.

*I’ve read the article but don’t seem to be able to access it now, so I can’t give a direct quote.Report

Rod Carveth
Rod Carveth
5 years ago

Anon Faculty — You are assuming that Justin has reporting things in the faculty senate as they have occurred. I am not so sanguine about those prospects, given how Justin has misreported aspects of Kipnis’ original article (she clearly made a distinction between the undergraduate and graduate cases) as well as took quotes out of context.

Beyond that, you can’t have a system where accusers can make charges against individuals where those individuals can’t confront their accusers. In Kipnis’ case, she was not initially told the charges she was facing, and was questioned by lawyers without having her own lawyer (only a supporter who could not say anything). She was also told that the outcome would occur within 60 days, which it has not. This is far, far short of due process.

Plus, what has Kipnis actually done? She reported about Peter Ludlow, a person who has clearly engendered passionate reactions. An undergraduate charged him with inappropriate fondling — not rape. He denied the charges. A graduate student that Ludlow admitted a relationship with accused him of rape. Authorities investigating the case have not found any evidence of rape. In fact, Ludlow has not been found guilty of any criminal behavior. The university found him guilty of sexual harassment, though to suggest that Ludlow received due process in that investigation and decision is to stretch the meaning of due process. A plethora of suits and countersuits have been filed and dismissed. Ludlow’s career is in shambles. Kipnis did not pass judgment about Ludlow’s guilt or innocence. What she did say was this: “But I also believe that the myths and fantasies about power perpetuated in these new codes are leaving our students disabled when it comes to the ordinary interpersonal tangles and erotic confusions that pretty much everyone has to deal with at some point in life, because that’s simply part of the human condition.” My interpretation of that is: “Shit happens. Learn from it and get on with your life.”

When a student files a complaint, should care be taken to protect the person’s identity while an investigation is going on? Maybe for a period of time as facts are gathered, and there’s a determination of if there is a legitimate case. That might not be possible during an investigation, though. In addition, the person for whom the complaint is being made against needs to be informed of the specific charges in a timely fashion and allowed proper representation.Report

Student
Student
5 years ago

Crimlaw: “During FY 13–14, OCR resolved 90 Title IX investigations related to sexual violence at the K-12 and postsecondary levels, including 25 resulting in a resolution agreement. During these two years, OCR’s compliance reviews related to sexual violence made up 19% of the total number of compliance reviews; 9% of OCR’s complaints were Title IX sexual violence complaints.” From: http://www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of-education-2013-14.pdf

Also: http://www.huffingtonpost.com/2015/05/19/colleges-sexual-harassment_n_7309444.html

Both suggest that assault complaints are fairly regularly handled by the OCR. The latter suggests they may be more common than harassment complaints.Report

anon faculty
anon faculty
5 years ago

Justin: deep gratitude for this post. For those of us who were victims of a faculty sexual predator, it’s heartening to see that *someone* in philosophy has the guts to write a piece in defense of the student. It’s also sad to see that the focus on the student has been lost, again, in the comments obsessing over whether retaliation requires intent and all that. So a note to the student: hang in there. You deserve more, and you have a lot of supporters cheering or working hard behind the scenes to try to make sure you get it.

And to those who think Title IX retaliation requires intent: go read your case law. The arrogance of philosophers who persist in spouting about a topic they have very little knowledge of is astounding.Report

J Larner
J Larner
5 years ago

Why in the world was an alleged case of RAPE being referred for action under a TITLE IX filing for crying out loud? Rape is a very serious crime; wouldn’t this a police matter? I find it bizarre that Title IX was the vehicle for this complaint – and the vehicle for the ridiculous witch hunt against Kipnis.Report

'That Guy'
'That Guy'
5 years ago

Confidentiality in a Title IX case is a right of the Reporting Party, and those taking the report must do what they can to maintain that confidentiality whenever possible. That confidentiality does NOT extend to the matters of the case itself. Unless Northwestern has added policy on top of what the OCR has recommended, there is no requirement for confidentiality beyond the identity of the ‘accusers.’ Either the Reporting Party or the Responding Party are free to discuss matters of the case with anyone they wish, free from fear of retaliation, excepting specifically the identity of the accuser. The idea that there is a cone of secrecy over these investigations that does not exist in a court of law is very odd. I have first hand experience with a Title IX case at another institution where a faculty member was accused of a hostile environment, and told that they could not discuss the matter. When pressed repeatedly, the administration admitted that there was no rationale for the secrecy request, but they would ‘appreciate discretion.’Report

Coherentist
Coherentist
5 years ago

‘That guy’ see my comment above at 27. According to Northwestern’s policies, support persons are required to maintain confidentiality of cases and refrain from advocacy.Report

'That Guy'
'That Guy'
5 years ago

The policies recommended by the Office of Civil Rights under Title IX, which applies to all colleges and universities receiving federal funding, hold that the majority of faculty and staff be made mandatory reporters, and as such are required to report any information regarding any sexual assault or harassment to their Title IX coordinators for evaluation. Another reason that these are being adjudicated in the university environment is that they are more likely to result in findings of guilt, given that the Responding Party (defendant) must not be shown guilty beyond a reasonable doubt, but simply guilty by a preponderance of the evidence. In the case of a student on student rape that was reported to the police, you would likely see the case in both the legal and university systems simultaneously.Report

witness
witness
5 years ago

Anon Faculty: Please get your facts straight. 1) Eisenman said nothing at the Senate meeting that could possibly have revealed the identity of the complainants in the Kipnis case. 2) Eisenman made no mention of bringing charges against the complainants. He only stated that Kipnis’s interrogators invited her to make such a charge! 3) Discussion of the case in general terms in the Senate — or even in specific terms — could have no possible effect on its outcome. That was being determined by a pair of attorney/investigators a thousand miles away who are no doubt used to the intellectually and politically fervid atmosphere of university campuses. (They are cop, judge and jury.) A determination of sanction — if Kipnis were found guilty — would be made by a panel completely outside Senate auspices. 3) A faculty Senate is not a public body — it is an assemblage of university leaders. Each senator is elected by their department expressly for the purpose of engaging the most important issues facing the university — none can plausibly be more important than academic freedom. This explains Eisenman’s motivation for speaking to them is general terms about the case.Report

Coherentist
Coherentist
5 years ago

Witness, a quick look at your senate website informs me that your senate’s Committee on Cause mediates between faculty members and the administration over appropriate sanctions — so, could you explain how it is that this committee could have no influence over any outcome?Report

Taylor Carman
5 years ago

anon faculty: No need to resort to insult. All I can say is that if “case law” is in such blatant conflict with the terms of the Legal Manual in ignoring intention, as you suggest, then Title IX really is a mess, and there is obviously great danger of abuse, even if it was avoided in this case. Happily, it appears that Northwestern has dismissed the complaint against Kipnis, consistent at least with my (admittedly nonexpert) reading of the anti-retaliation provision. That’s a relief.Report

'That Guy'
'That Guy'
5 years ago

@Coherentist comment 52. You are correct that it says that, but what does “confidentiality of the process” mean?
In the policies you link in comment 27, there is a section on Confidentiality that states “All participants in the investigation will be advised that they should keep the complaint and the investigation confidential.” I believe “should” is the correct word here, because “must” doesn’t work. The school asks you to be quiet, but it cannot force you to keep quiet and has no recourse if you do not. They would be opening themselves up to even more costly litigation. The privacy of the individuals is sacred, a seen here: “Northwestern makes every reasonable effort to handle inquiries, complaints, and related proceedings in a manner that protects the privacy of all parties,” and the outing of the reporting party in a complaint by the responding party would be an invitation to a retaliation claim, but this request for confidentiality otherwise is toothless. If Northwestern has decided that the advisor is the one person who has to keep their mouth shut, i guess that’s just Franczek Radelet getting their extreme compliance on. Hopefully the OCR is impressed. I am not.Report

Coherentist
Coherentist
5 years ago

‘That guy’ — every institution I’ve been at advises complainants and respondents to maintain confidentiality but does not require it. At two universities I’ve been at, the university procedures given participants the option of included a support person — and at both universities, the support person is subject to different requirements than the complainant and respondent are.Report

witness
witness
5 years ago

Yes, Cohernetist, the support person must “maintain the confidentiality of the process.” But here is the fuller text, which reads somewhat differently:

“All participants in the investigation will be advised that they should keep the complaint and the investigation confidential.

The University cannot promise complete confidentiality in its handling of sexual misconduct complaints. Northwestern makes every reasonable effort to handle inquiries, complaints, and related proceedings in a manner that protects the privacy of all parties. Each situation is resolved as discreetly as possible, with information shared only with those who need to know in order to investigate and resolve the matter.”

I see the words “advised: and “should”, and an emphasis on maintaining if possible, the anonymity of the complainant and respondent. Maintaining the confidentiality of the individuals concerned is clearly more important than the process. No doubt this wording is based on OCR directives described by That Guy above.Report

DC
DC
5 years ago

[email protected]&52:

Even if Eisenman was required as a support person to maintain confidentiality, his statements to the senate were only improper if he made them AFTER he became a support person; considering he was prevented from serving as one, the implication is he spoke in the senate before he found out any information from the Title IX proceedings. And even if he made them during or after his service as a support person, then we’d have to look at the exact comments to see if they in fact violated the confidentiality requirements, that the information wasn’t already publicly disclosed, etc. etc.Report

DC
DC
5 years ago

“Again this isn’t to say that Kipnis did retaliate or that she hasn’t been treated badly, but I think it does call her credibility on these issues into question–which is a problem, since most of what we have here comes from her own account.”

I don’t see why she would need to be credible here, though; she may be mistaken about the legal requirements, but she’s not a lawyer, and I don’t think that casts any doubts on her credibility as to factual matters.Report

witness
witness
5 years ago

Dear Coherntist, As explained in the Handbook, the NU Committee on Cause has no role in determining sanctions related to Title ix. That is handled by a special sanctioning panel and the FAP (Faculty Appeals Panel.)Report

anon female grad student
anon female grad student
5 years ago

It seems he was a support person at one hearing, then spoke to the faculty senate, and then was not allowed to be a support person again.

But more to the point, while Justin is “informed” of certain matters regarding Eisenman’s comments at the faculty senate, what the students did or did not offer to drop the complaint, etc., I regret to say that I cannot consider myself so informed. Justin, to his credit, is clearly taking the words of some person in good faith and trust. Perhaps I am not so trusting.Report

Regina Levy
Regina Levy
5 years ago

I am glad to hear that the case has been dismissed. Could you post a link to the relevant page? Thanks. I don’t know what cases *anon faculty* is thinking of, but in the cases I have read about (they tend to involve an employer suspending an employee without pay, writing negative letters for an employee, etc. as a result of an employee’s filing a discrimination or a harassment complaint), intent is pretty clearly present. More generally a retaliation claim requires three things: (a) protected activity (the complaint of harassment or discrimination); (b) a materially adverse action taken by the defendant against the plaintiff; (c) causation (the materially adverse action must be a consequence of the complaint). It is difficult to see how there could be “causation” in the relevant sense without intent. I wish to point out also that in legal cases, the burden of proof is on the plaintiff to show that the defendant’s reasons for the adverse action were retaliatory (which, of course, is another reason to think that the law requires intent). If, for instance, an employee claims that he has been denied a promotion due to retaliation, and the employer argues in court that the plaintiff has not gotten a promotion due to poor performance on the plaintiff’s part, not due to retaliation, the plaintiff must show that the employer’s purported reasons are have been a mere pretext and that the real reasons are retaliatory (for instance, by providing evidence to the effect that the employer considered the plaintiff’s performance good up until the date of the complaint.)Report

Student
Student
5 years ago

An internal Title IX complaint is not the same thing as a lawsuit, and neither are the legal standards the same as in a lawsuit.Report

AnonAttorney
AnonAttorney
5 years ago

I’m an attorney. I’ve read case law. In this case I don’t think it matters whether retaliation requires intent because the complainant hasn’t come close to showing that a hostile environment was created. Any such claim would be undermined by the support shown to her by her department and lack of any other identified harassers other than Kipnis. A hostile environment is not simply an environment in which one feels unwanted or very uncomfortable. It is one in which unwanted conduct is , to quote Davis v. Monro as Justin did, “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.” These are typically cases where the management is alleged to have been indifferent toward harassment perpetrated by coworkers, students, or some other subalterns. Who are the harassers in this case? The only alleged harasser seems to be Kipnis. But clearly she is not pervasively harassing the student. Even if you think the article itself was very harmful to the student, Kipnis had only written the one article prior to the complaint. That single article could not possibly constitute pervasive harassment. At worst it triggered pervasive harassment from others, but that does not seem to be the claim.

If you abandon a hostile environment claim, then I don’t know what is left of the complaint. Clearly Kipnis’s article did not mandate that the complainant subject herself to harassment as a condition of being a student. What then would be the basis for the complaint?Report

Regina Levy
Regina Levy
5 years ago

No one suggested that an internal Title IX complaint is the same as a lawsuit. Anon faculty (49) wrote: “and to those who think Title IX retaliation requires intent: go read your case law.” It is not a bad advice, actually, since university policies mustn’t diverge from legal principles too much (as Harvard law professors have argued persuasively: http://www.wsj.com/articles/harvard-law-pushes-back-1422663102). It is just that reading case law would not persuade anyone that the case against Kipnis had any merit, quite the opposite.Report

Regina Levy
Regina Levy
Reply to  Regina Levy
5 years ago

This is a reply to Student (65). I tried to post this comment as a “reply” to his post, but somehow, it did not work, I’m sorry.Report

Anon7
Anon7
5 years ago

I have never been as repulsed by an article a I am this one. Justin is cheerleading unaccountable secret tribunals, the harrassment and punishment of academics for legitimate speech, and the complete destruction of due process, all in the name of some ideological agenda. Those who study history have seen such things in the past, and they always end up damaging everyone. During Stalin’s purges, the people who served as judges in one wave of manufactured trials ended up being defendants in the next wave. Once you’ve created a monstrous system and set it in motion, you cannot control or guess who it will target next. Sadly, it seems Justin and some others are positively eager for the purges to begin because they are naively convinced that the show trials will only affect other, more ideologically impure, people.Report

Anon
Anon
5 years ago

“’For the purpose’ *or* ‘because.’ Intent to retaliate is not required, I don’t think.”

Assuming that is in fact the letter and spirit of the rule, which as others point out, may not be so, it reminds me of the spirit of “stand your ground” and of the defenses of cops who murder: “I *felt* threatened, so it doesn’t matter if they were actually doing anything wrong.”

Justin, I really appreciate your blog, and on these sorts of issues, I usually am more sympathetic with your views than those of the Leiter crowd. But this case is really beyond the pale. I’m disappointed to see you towing a party line and failing to recognize how different this case is.Report

Crimlaw
Crimlaw
5 years ago

Student (@48): I’m not sure what those numbers are supposed to show. An investigation classified as “related to sexual violence” need not involve criminal accusations. For example, an investigation of whether a University’s internal procedures for processing complaints of sexual violence are adequate is classified as “related to sexual violence” even if the investigation does not involve any accusations of criminal conduct. Furthermore, not everything a University classifies as “sexual violence” is criminal conduct.
I’ve learned from a colleague who specializes in this area of law that investigations sometimes do involve accusations of criminal conduct from complaining parties. They do not deal with such issues “ALL THE TIME” as had been claimed earlier. OCR does not process such reports in any distinctive way.Report

Rod Carveth
Rod Carveth
5 years ago

To anon faculty — While I appreciate your passion about protecting students, you appear to be leaning toward a standard of the only thing that counts is the charge by a student of sexual harassment, rather than the truth or falsity of those charges. That is chilling, and flies in the face of the fact we know that not all charges of sexual assault are true — as the recent case at the University of Virginia shows.

In Kipnis’ case, she is the target of a Title IX investigation because she questioned the PROCESS of the investigation of Peter Ludlow. This is a professor who has not been found guilty by either law enforcement officials or university officials of any type of sexual assault. He was found to have run afoul of sexual harassment policies because of the unequal nature of power between student and professor. His classes were cancelled not as a direct result of the sanctions against him, but because of the threats of members of the university community to disrupt his classes. That the university allowed this to happen is not exactly its profile in courage.

Protecting students from sexual harassment by any member of the university community is a laudable goal. I fail to see where the attempt the squelch the free speech rights of Laura Kipnis advances the goal in any way, shape or form.Report

Anon7
Anon7
5 years ago

No one has yet commented on the absurdity of a system where charges are filed against Kipnis for a published piece, then against Kipnis’s support person because the support person was being too supportive, and then the outside investigators suggested that Kipnis file Title IX charges of her own against the students who filed Title IX charges, presumably upon the logic that the initial Title IX charges might have violated Title IX. And why were there outside investigators at all? Because the Title IX coordinator is facing Title IX charges. Holy flipping hell–that is total insanity.Report

Taylor Carman
5 years ago

Regina Levy: When I wrote that “Northwestern has dismissed the complaint,” I was inferring from what Justin says in the post: “The investigation has just concluded and there were no findings against Kipnis,” and “the Title IX investigation yielded no finding of retaliation against Kipnis.” I understood that to mean that they’ve concluded in her favor. Is that right, Justin, or does it just mean that they haven’t concluded anything (yet)? Thanks.Report

Anon7
Anon7
5 years ago

@74
Justin, do you have inside information to that effect? Because in Kipnis’s article of two days ago she specifically stated that the investigation is still ongoing and that no report has been made by the investigators. Your statement is the first thing I have seen anyone make about a conclusion being drawn as to the charges.

If true, that is truly the only good news in all of this. The fact that the charges were filed against her at all and pursued in such a strange manner is still cause for concern and debate.Report

L13
L13
5 years ago

Kipnis’s opinions may be unpalatable and held in ignorance, but that does not mean we ought to rejoice at any attempt to shut her up, as Justin/DN seems to be doing.

I think political tribalism is interfering with some people’s critical faculties/moral, compass, to be perfectly honest.

The Title IX claim under discussion is patently frivolous and baseless, and it sets a very dangerous precedent.

I endorse DC’s comments on the subject.Report

Matt Weiner
Matt Weiner
5 years ago

DC: “I don’t see why she would need to be credible here, though; she may be mistaken about the legal requirements, but she’s not a lawyer, and I don’t think that casts any doubts on her credibility as to factual matters.”

If she were mistaken about some small detail, I’d agree, but she’s mistaken about an extremely important fact about sexual harassment law–and also about the concept of sexual harassment. The fact that she seems to consider it outrageous and incredible that someone who didn’t originally commit harassment could be guilty of retaliation casts doubt on her judgments of what else is outrageous and incredible, and that’s what her piece is mostly about.

And it’s not as though she’s presenting some bare recitation of factual record that we could evaluate separately from her judgment. She doesn’t tell us what Eisenman said, so we have to take her word for it that what he said was innocuous, obviously innocuous enough that it would be an injustice for him to be removed from her case. Her ignorance about what sexual harassment is casts doubt on her judgment concerning how innocuous Eisenmann’s remarks were.Report

anonymous
anonymous
5 years ago

‘I have never been as repulsed by an article a I am this one. Justin is cheerleading unaccountable secret tribunals, the harrassment and punishment of academics for legitimate speech, and the complete destruction of due process, all in the name of some ideological agenda.’

^ Seconded. I could not agree more.Report

anon grad student
anon grad student
5 years ago

Even if Kipnis’ CHE piece could reasonably be seen as falling under the legal definition of retaliation — something for which I haven’t seen any good argument yet (where is the adverse treatment? where is the intent? how could we *not* read ‘because’ in a way that does not entail intent?) — that would only be reason for all of us who care at all about free speech to protest vehemently at such an oppressive legal tool. Sorry to make such an obvious point (I wish I didn’t have to!), but freedom of speech *is*, among other things, the freedom to say things that other people might justifiably perceive as inaccurate, stupid and hurtful. I would be terrified, as an aspiring academic, if the standing definition of retaliation had the slightest chance of interfering with this. Fortunately, it seems that it doesn’t, at least for now; but some of the reactions I’ve seen these days from leading figures of our field make me worried about the future.Report

Kind Of Creeped Out
Kind Of Creeped Out
5 years ago

But, the complainants strained to make clear that their complaints had nothing at all to do with the substance of Kipnis’s politics. Rather, the complainants raised concerns about the potential chilling effect that may follow from a professor implying (on a rather grand stage) that a student had lied about having been raped by a professor. This doesn’t seem obviously frivolous or baseless to me, at all.

Still, even setting aside the question of whether their concerns were legitimate or merited, I’m really confused by the backlash against students simply filing complaints when concerns do arise. You might rightly think, “Oh, that concern does not warrant sanctions,” or something like that. But I’m confused about under which circumstances others seem to think filing a complaint is permissible, and when it is not. It seems to me that filing a complaint is something like asking a question about whether or not a wrong has occurred. When is it not okay to ask that question? In particular, in a situation where there is a clear, unambiguous power dynamic, when would it *ever* be okay to tell the more vulnerable that they *don’t* get to raise their concerns, especially via the only formal mechanisms available to them for those purposes?

Note that this is to say nothing of the acceptability of Title IX implementation. You might rightly think that the process of being a respondent in a Title IX complaint is miserable and insufferably peppered with injustices. Still, this would surely not be the fault of the complainants, who (quite rightly) have absolutely no influence whatsoever on the conduct of the investigators.

So, I confess, I find the attitude that the students did something wrong somewhat of a head-scratcher. The merits of their complaints are completely separate from the appropriateness of raising a matter of potential concern. The students didn’t sit in on her classes, or send her harassing emails, or spread vicious rumors about her. They simply filed a discrete, internal complaint. What were they supposed to do, if not that? (Assuming, I hope, that we can all agree that a satisfactory answer to this question is not, “Not have those worries.”)Report

Student
Student
5 years ago

As a reminder, Justin’s posts say the complaints were filed when Kipnis *refused to correct errors*; some of those errors we know The Chronicle itself did see fit to correct because they did correct the piece. I’m not sure why this is getting lost, but it is.Report

Regina Levy
Regina Levy
5 years ago

Thanks for this. The complaint, I think, was that Kipnis’s mention of the student (though without naming the student) “was retaliatory and created a hostile environment.” The issue of intent came up in relation to the retaliation complaint.Report

Anon33
Anon33
5 years ago

“You might say that the process seems to have worked okay in this case,” says Anon2.

Yes, if by “worked okay” you mean “Laura Kipnis was subject to extensive, lengthy illegal harassment that eventually stopped because it was so obviously illegal, absurd, vindictive, and baseless.”

Or, if by “worked okay” you mean “dangerously and maliciously failed for a long time but eventually went on to find other victims.” If this is how philosophers understand reality, our profession seriously needs help.Report

Kind Of Creeped Out
Kind Of Creeped Out
5 years ago

No, I don’t think think that’s right. The complaint was that Kipnis’s refusal to correct the record — which was highly publicized and undermining of the credibility and reputation of the grad student — might be retaliatory, and contribute to a hostile environment. More generally, one might worry that this level of indifference to the facts of the matter in such a high profile article would have a chilling effect on the student body at large. These concerns do not seem obviously illegitimate. And, if we agree about that, I am at a loss as to whatever the students concerned about Kipnis ought to have done.Report

Regina Levy
Regina Levy
5 years ago

The question is not whether the students had a right to file a complaint, but what should the university have done. Anyone has a right to file a complaint in good faith (including a complaint which later turns out to be groundless). We are talking about the actions of university officials. If students want to, they can file a complaint on the ground that Kipnis’s action would have a “chilling effect” on them, as you suggest. The fact is, however, that there is no rule against saying things that may upset people in public forums (compare: “posting caricatures of the sitting president online would have a chilling effect on anyone running for president”). That officials at Northwestern decided to pursue the pretty clearly groundless claim further is not ideal, but it’s fine if they were acting in good faith too. That in the process of doing so, they violated the core principles of due process is not fine. In fact, it’s appalling.Report

Kind Of Creeped Out
Kind Of Creeped Out
5 years ago

I was in board with everything you said right up until the end — which core principles of due process does it seem were violated in the course of the investigation?Report

Regina Levy
Regina Levy
5 years ago

Thank you. Would you mind posting a link?Report

Student
Student
5 years ago

Running for president is not protected conduct. And again, Justin’s post does not say the complainants were concerned with material that was upsetting, but material that was factually inaccurate and refusal to correct the record by the author of the piece.Report

grad student/adjunct
grad student/adjunct
5 years ago

Kipnis’s article was mainly about one thing: a new law being passed banning dating between teachers and students. The details of some of the cases with which she may have delt insensitively or in ignorance were perhaps poorly chosen rapid illustrations of other points, and she should correct them. But the two major take-away points were the following: 1) that there is nothing inherently wrong or exploitative about prof-student relationships, and 2) the sudden focus on these relationships is just a deflection from the real issue, namely prevasive student-on-student rape. She takes the latter so seriously that she suggests banning fraternities, but says that administrations are too cowardly to do so, so they come down on consensual relationships instead. In a university system where students are paying customers (over $70,000 at my institution) and 75% of faculty are on insecure adjunct contracts, the power imbalance is precisely the inverse of what this law would have us believe: structurally, the students (and their parents) are the professors’ employers and, ultimately, their bosses, and have far more power over them than they do over the students. If a relationship goes bad, the worse an unscrupulous prof can do by way of retaliation is give a student a bad grade; a student can destroy a professor’s career and livelihood. The priviledge/exploitation-labor distribution couldn’t be clearer.Report

Rod Carveth
Rod Carveth
5 years ago

Justin,

If you thought your update would serve to take the heat off of you, well, EPIC FAIL!

Your statement, “Oh, and by the way, from the perspective of Kipnis and her defenders, it appears the process worked.”, is a classic ends-justify-the-means argument. Thank goodness it appears that the Title IX investigation is not going to result in any sanctions being levied against Kipnis. But, the investigation should never have occurred in the first place! There was no retaliation. Kipnis was discussing the PROCESS of what happened to Peter Ludlow. She didn’t take sides. She pointed out that there were two sides to Ludlow’s story (and, again, Ludlow has never been found guilty — by other law enforcement officials or by Northwestern — of sexual assault).

Another statement you make is absurdly hyperbolic: “I’m a huge fan of free speech, but most of even the staunchest free speech defenders don’t think all speech should be legal.” True — we shouldn’t reveal military secrets, and we shouldn’t yell “fire” in a crowded theater (as Justice Holmes said: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”). As Holmes also said about free speech: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” What Kipnis said doesn’t even come close to those circumstances. There was no clear and present danger to anyone.

So, Justin, the next time the spirit moves you to provide an update to clarify your position, maybe you should re-think things.Report

Student
Student
5 years ago

It wasn’t a law, it was a policy — and it seems totally fine to me to take issue with the policy; what doesn’t seem fine is to throw students under the bus in trying to do so (and moreover, Kipnis claimed the students’ sense of vulnerability was a result of the new policy, but the first complaint seems to have been filed two years or so before the policy was enacted).Report

Anon7
Anon7
5 years ago

@86. The students should have written an article of their own if they objected to Kipnis’s article. Instead they decided to file charges in an attempt to get her disciplined by the university. The answer to bad speech is better speech. And what you call “refusal to correct the record” is what many other people would call a “disagreement of opinion.”

@Justin
I think you’ve missed the whole point of due process. You argued that due process was followed because (you say) the result ended up favoring Kipnis. Due process is all about the *process,* not the result. A faulty process is a faulty process regardless of the result. The fact that the charges laid against her required multiple leaps of logic, that a grad student at Northwestern could talk about the charges freely and publicly name the accused in the Huffington Post without any criticism but neither Kipnis nor her faculty support person should be allowed to discuss them with anyone even if they do not name the accusers, the fact that university paid attorneys would at first not tell her the charges, and then that the lawyers told her she could not have a lawyer of her own or record any conversation, and the fact that the president of the Faculty Senate was brought up on charges for questioning the way the investigation of a faculty member was being conducted–those are all part of the process, and none of them represent what a reasonable person would call *due process.* Were I Kipnis, I would have showed up at the question and answer session with a recorder and a laywer and let them decide how to proceed from there.Report

Jim Freeman
Jim Freeman
5 years ago

It seems the only parties involved who aren’t prone to a lil’ hyperbole and grandstanding are the outside lawyers, quietly ticking off the billable hours.
University-issued chastity belts and/or attack-dog muzzles for everyone (and perhaps dismissal for anyone even remotely involved in the whole mess)!Report

Matt Burstein
5 years ago

Rod,
1) 2006 called, and it wants its slang back. (Also: only n00bs put their outdated slang in all caps.)
2) Please look up “hyperbole.” I’m pretty sure that Justin does literally mean, without exaggeration, that he is a huge fan of free speech and that most of the staunchest defenders of free speech agree that there are limits. (Also: your response about Holmes here doesn’t even address either claim that Justin made in the quote.)Report

Rod Carveth
Rod Carveth
5 years ago

By the way, for all those who line up against Kipnis and charge her with retaliation, could someone provide specific quotes from her first CHE piece that could be interpreted as retaliatory? I have read her piece multiple times, and either I am missing it, or it just isn’t there.Report

Matt Burstein
5 years ago

Unless, of course, Rod is worried that Justin is claiming that he is an oversized air moving device. Then I apologize to Rod, because I assure you that Justin is an approximately normal sized air mover.Report

Rod Carveth
Rod Carveth
5 years ago

Matt Burstein,

Had I been able to boldface, I would have done that rather than caps.

BTW, re: “hyperbole.” I was giving Justin the benefit of the doubt. If Justin really was serious about his free speech analysis, then he knows nothing about free speech. Speech that is uncomfortable or even offensive is not illegal. It is protected speech.Report

DC
DC
5 years ago

@Creeped Out/81:
“Still, even setting aside the question of whether their concerns were legitimate or merited, I’m really confused by the backlash against students simply filing complaints when concerns do arise. You might rightly think, “Oh, that concern does not warrant sanctions,” or something like that. But I’m confused about under which circumstances others seem to think filing a complaint is permissible, and when it is not.”

I’m not sure why you would be confused; just because there is a large grey area in terms of what is sanctionable conduct in a Title IX context doesn’t mean there isn’t also a point where we can say “at this point there is no legitimate complaint.” Here we are well on the “no legitimate complaint” end of the continuum and it’s not even a close question.

“It seems to me that filing a complaint is something like asking a question about whether or not a wrong has occurred. When is it not okay to ask that question?”

It is not ok to lodge a complaint in order to harass or to punish someone who said something that you did not like. You don’t get to use formal legal mechanisms to compel answers to your “question” which is what happened here.

“In particular, in a situation where there is a clear, unambiguous power dynamic, when would it *ever* be okay to tell the more vulnerable that they *don’t* get to raise their concerns, especially via the only formal mechanisms available to them for those purposes?”

First, I don’t think there’s a “clear, unambiguous power dynamic”; what power can Kipnis exert over this student, exactly? Secondly, I think most of us reject the idea that even where there is a power dynamic that shields the complainant from any moral responsibility for what they do. Having less power doesn’t make it impossible for you to be a bully if the mechanisms exist that let you bully. Thirdly, nobody is entitled to “formal mechanisms” for any possible concern or complaint they may ever have. In this case the proper avenue was to write a response and get it published, or send Kipnis and/or Eisenman a letter detailing what she got wrong and requesting a retraction, or distributing pamphlets.Report

Anon
Anon
5 years ago

This disagreement makes me worry about a general trend: students and professors finding themselves pitted against each other in ways where it’s hard to take a position that won’t be interpreted as either against students or against professors.

I’m worried that this is symptomatic of a deeper problem. Who really is the source of this problem? It’s neither the professors nor the students. It’s administrations and (mostly economically privileged) students’ *parents* who demand their children be treated as protectees and clients–in other words, the upper-middle managerial class, who are using their children as instruments to dismantle the independent power of education and the academic left.

I’m worried that the new new-left is in fact the co-option of the left by the economic right, and that its principle tool is turning students and professors against each other.Report

DC
DC
5 years ago

@Matt: “If she were mistaken about some small detail, I’d agree, but she’s mistaken about an extremely important fact about sexual harassment law–and also about the concept of sexual harassment. The fact that she seems to consider it outrageous and incredible that someone who didn’t originally commit harassment could be guilty of retaliation casts doubt on her judgments of what else is outrageous and incredible, and that’s what her piece is mostly about.”

We are not evaluating her interpretation or judgment about outregeousness or incredibility, though; we are opining on the facts she presents and which nobody disputes: Kipnis published an essay and a tweet — we can see those and judge them for ourselves. The students filed a Title IX complaint based on those writings. The process has been ongoing for months. Eisenman is now also a target of a formal Title IX complaint. My outrage is not Kipnis’, and does not rely on her interpretation of the relevant law.Report

witness
witness
5 years ago

The students who filed the complaint against Kipnis were within their rights to do so and should not be faulted. The wrongs were committed by administrators who failed to quickly recognize that the charges were baseless and that Title IX law was never intended to punish legally protected speech. No Title IX administrator is required to pursue every case presented to him or her with the same instruments. In this case, a simple telephone call or even email with Kipnis (or the editors of the Chronicle) should have settled matters. To bring in a pair of outside investigators to interview Kipnis at length about her article, and to extend the inquiry process to nearly three months is to put academic freedom itself on trial.Report

Rod Carveth
Rod Carveth
5 years ago

I still don’t see where Kipnis’ column constituted any type of retaliation. Who was she supposed to be retaliating against? In order for Y to retaliate against X, Y would have to be aggrieved by X in some way. Where is that connection?

It’s the same for folks who claim Ludlow initiated the defamation lawsuit against the student as a form of retaliation. Ludlow believed that he had been defamed. He was well within his rights to sue. That’s not retaliation. It’s his method to achieve a restoration of justice.

I have no idea what went on between Ludlow and the undergraduate student and Ludlow and the graduate student. But, given that no charges of sexual assault have been brought, it is reasonable to think that he may have been defamed (and he may not have). Just because Ludlow was charged does not mean he gives up his legal rights.Report

Regina Levy
Regina Levy
5 years ago

No one is protected against coverage containing factual inaccuracies either — lots of coverage of lots of issues contains some inaccuracies, including the original post of the host of the this blog, as others have pointed out. The record could be easily set straight by contacting the editors of the venue where the material was posted. (I am also not sure what refusal to correct errors on Kipnis’s part you have in mind. She does say in the second piece that she corrected some errors. Were there more she refused to correct?) Not surprisingly, the plaintiffs in Kipnis’s case did not complain from factual inaccuracies in her coverage.Report

Regina Levy
Regina Levy
5 years ago

This is a response to Student (90).Report

Kind Of Creeped Out
Kind Of Creeped Out
5 years ago

Regina Levy, “Not surprisingly, the plaintiffs in Kipnis’s case did not complain from factual inaccuracies in her coverage.”

This sentence is a flat, unsubstantiated denial of what the complainants, Justin, and myself have all been saying again, and again, and again. I have no idea why this notion is so impenetrable to folks — perhaps it is because Kipnis has made great hay out of this being an injunction of her academic rights. But, once more, please let me say: The nature of the complaints had *nothing* to do with the ideas that Kipnis was articulating. Rather, the complaints were in fact centered on a series of factual inaccuracies that were damning to the credibility and reputation of a title ix complainant. No more, no less. The students simply wanted Kipnis to correct the record.

And, as to the suggestion that student complainants ought to have reached out to Kipnis and/or her editors to address these inaccuracies prior to or in lieu of filing any complaints, as has been reported bytwo NU grad students in Huntington Post blog posts, both the editors and Kipnis were contacted prior to any complaints being filed. It would seem that the concerned parties went to great lengths to address their concerns in an informal and respectful way, before resorting the formal procedures.Report

Student
Student
5 years ago

No one has protection from the publication of inaccuracies? What is defamation and libel law?Report

anon faculty 2
anon faculty 2
5 years ago

Justin, I’m sorry to see you are taking such a pounding for the important contribution you’ve made to making intelligent, fact-based discussion of this topic possible. Thanks so much for your careful, considered post.Report

Kind Of Creeped Out
Kind Of Creeped Out
5 years ago

@DC: “It is not ok to lodge a complaint in order to harass or to punish someone who said something that you did not like. You don’t get to use formal legal mechanisms to compel answers to your “question” which is what happened here.”

Again, the complaints had nothing to do with “punish[ing] someone who said something that [the complainants] did not like.” I really do not understand why folks are so resistant to accepting this fundamental fact, but, again: the complaints were that there were factual inaccuracies which harmfully misrepresented a title ix complainant. Also, the formal mechanisms were not legal mechanisms. The complaints were internal to the university.Report

JAB
JAB
5 years ago

This was helpful for me to read: “we have only the snide, self-serving description by the polemicist subject of the investigation. I find her credibility quite dubious because her essay is little more than an effort to transform even the most pedestrian elements of a routine EEO investigation into some kind of persecution. Odd for a witch hunt, it omits to mention any actual adverse employment action taken against her. OMG she was sent an email message…with LINKS…that she was expected to CLICK! Why it’s practically a genocide! OMG the investigators said they’d discuss the allegations with her when they…wait for it…interviewed her. It’s quite possible that THEY didn’t think there was much to it and that she’s the one turning it into a persecution. Her entire persecution is whining about pedestrian procedures. What you have here is a non-lawyer using the layperson’s Hollywood understanding of the criminal process and shrieking because that wasn’t done in a minor EEO investigation. But she’s an effective propagandist. She has a routine EEO investigation being described as being “plunged into a secretive and labyrinthine bureaucratic process.” That’s patently ridiculous.”Report

anon female grad student
anon female grad student
5 years ago

Here is an account of errors, corrections. It appears that after this email exchange the two errors were corrected. I’m also having a hard time articulating to myself what exactly is supposed to be retaliatory in the original article.Report

Regina Levy
Regina Levy
5 years ago

There is a significant (both legal and moral) difference between libel and defamation, on the one hand, and mere inaccuracy, on the other. I take it that this is a rather obvious point. I also take it to be quite obvious that I was talking about inaccuracy, not libel (and so, I believe, were you, since you too used the word “inaccuracy,” not “libel” or “defamation”).Report

Regina Levy
Regina Levy
5 years ago

This is a response to Student (108).Report

Anonymous
Anonymous
5 years ago

@Kind Of Creeped Out – The formal mechanisms *are* legal mechanisms, although they are not courts of law. For, the formal mechanisms exist partially in order to comply with Title IX and, in particular, the OCR’s regulations that give determinate guidance to universities in light of Title IX’s more general requirements. These formal mechanisms must operate in a certain manner lest the university risk being found in violation of Title IX for its handling of sexual assault and harassment complaints.

So, the threat of significant government sanction drives the university’s operations, which are in turn structured to reflect legal requirements emanating from OCR regulations.

To insist that the university mechanisms are not legal is strictly correct. But, that also suggests what I think may be an incorrect estimation of how state power operates.

States can project their power through the recruitment of private subjects. While the more blunt mechanisms of raw police force and legal action states’ and US attorneys get the most attention (as well they should), we make a mistake if we miss out how the state can insidiously shape private subjects’ lives by way of indirect application of its massive power.

What may worry some people in this particular instance is that university students have triggered a process in which the university itself acts as an agent of state power in an investigation of Kipnis. Many probably believe that given Kipnis’ behavior, state power should not have gotten anywhere near her.Report

Coherentist
Coherentist
5 years ago

Witness — earlier you noted that the faculty handbook at Northwestern says that Title IX sanctions are not handled by the Committee for Cause, except on twitter Kipnis has linked to a public facebook post in which she writes that there was a non-Title IX charge that she had violated university policy. Can you confirm the faculty senate would have no influence over whatever could possibly come of that?Report

DC
DC
5 years ago

“This sentence is a flat, unsubstantiated denial of what the complainants, Justin, and myself have all been saying again, and again, and again. I have no idea why this notion is so impenetrable to folks . . . But, once more, please let me say: The nature of the complaints had *nothing* to do with the ideas that Kipnis was articulating. Rather, the complaints were in fact centered on a series of factual inaccuracies that were damning to the credibility and reputation of a title ix complainant. No more, no less. The students simply wanted Kipnis to correct the record.”

It’s not impenetrable; we just recognize, as some do not, that whether the account contained inaccuracies or not is not relevant to the point. “Retaliation” in Title IX is a specific thing. It does not mean generalized objectionable behavior, or function as a synonym for defamation.

Furthermore, for all the repeated claims of inaccuracies here there has been very little discussion of them, and how those inaccuracies were supposed to turn an opinion piece from protected expression to Title IX retaliation. According to Pogin’s claims (linked here: http://dailynous.com/2015/03/23/scary-ideas/) the alleged factual errors are:

1. Kipnis claimed Ludlow was in a relationship with the graduate student solely based on Ludlow’s word, which might be inaccurate.
2. Kipnis said the student brought several lawsuits, when it was only two.

The first complaint makes no sense to me; Kipnis is allowed to believe Ludlow. She is allowed to evaluate the complaint and come to an opinion on that, and I don’t see how anyone has the right to micro-manage Kipnis’ opinion on the matter. The second is arguably inaccurate (and I really do mean arguably, as some definitions of several mean simply “more than one,” such as when used in Anglo-American law). But in any event she had it changed it to two in response to complaints.

What other inaccuracies are there, as opposed to objections as to tone and her interpretation of events or the position she’s advocated?Report

Anon Faculty
Anon Faculty
5 years ago

On what basis do you say he is yet to be found culpable in any of the investigating that has happened? Didn’t the whole thing become public because the undergraduate was upset over not knowing what had happened in her complaint? The university then released a statement indicating that they had in fact punished him for violating their sexual harassment policy. https://www.insidehighered.com/news/2014/03/05/questions-severity-northwestern-professor-assault-caseReport

Regina Levy
Regina Levy
5 years ago

Response to “Kind of Creeped Out” (107). I don’t know who has suggested that the complaints had anything to do with Kipnis’s main conclusions. I certainly haven’t. What I suggested was that the aggrieved parties complained from retaliation and hostile environment. But there was clearly no case for retaliation. And as AnonAttorney above points out, neither was there a case for creating a hostile environment. Again, though, if the students believed they had a case, they were simply exercising their rights. The question, as I pointed out earlier, was how the university officials should have responded.Report

Student
Student
5 years ago

Pogin’s claim about the lawsuits was that Kipnis said several had been thrown out (one had)– but why think what she said is what the complaints said? IIRC, she said in her piece there were more inaccuracies than the ones she discussed.Report

Richard Zach
5 years ago

For all the people who need Kipnis’ misleading presentation of the cases at issue in her first piece spelled out:
http://chronicle.com/article/Parsing-Sexual-Paranoia/229009/Report

Anonattorney
Anonattorney
5 years ago

Re 78, it is outrageous and incredible to think that some who is neither the harasser nor the complainant’s supervisor could be guilty of retaliation.Report

Anon Faculty
Anon Faculty
5 years ago

AnonAttorney: Do you think that a *second* article on the same topic, though now commenting on the details of the complaint and the future job prospects of the complainants, is creating a hostile environment? Do you think that Eisenman discussing the details of the investigation in the faculty senate creates a hostile environment? I would think that in both cases students would be very afraid to bring complaints against faculty, for fear that there would be an extremely public, unfair discussion.

Keep in mind, too, that we know about these investigations at all only because Ludlow sued the graduate student who brought the complaints. The only version of the events in question has been the one that comes from his lawsuit. His version was then picked up by Kipnis and further distorted in the ways that Justin mentions above.

I hate to say this, but if I were a student observing the whole thing, it would make very clear to me that bringing a Title IX complaint is simply far too dangerous. Abstracting away from the question of whether Kipnis is or is not guilty of anything, I would hope that we can all agree that the graduate student has been so poorly served by the entire process. Title IX offers the promise of a relatively safe environment in which to exercise one’s rights to be free from sexual harassment and sexual violence, where that environment comes with the protection of due process and protection from retaliation and with the expectation of confidentiality. In reality, it looks like these protections are paper thin.Report

witness
witness
5 years ago

To Coherentist — I don’t know anything about a non-title ix charge against Kipnis. Any penalty for violating university rules (separate from Title IX) would be imposed by Kipnis’ dean. She could then appeal to the C. on C. That however has nothing to do with the Title IX charges or her interrogation, briefly described to faculty senators by Eisenman. Any Title IX penalty or appeal is handled by a “sanctions panel” and the Faculty Appeals Panel.Report

Anon Faculty
Anon Faculty
5 years ago

Regina Levy: It is surprising to me that you feel so comfortable saying that Northwestern “decided to pursue the pretty clearly groundless claim further.” Do you have knowledge of all the relevant facts as they were presented to the university? Or are you making this judgment based solely on Kipnis’s presentation of the complaint? If the latter, I would think it is obvious that you shouldn’t reach an opinion on a complaint by listening to only one side.

What I see is the university putting its trust in a process in which each side is allowed to speak carefully and confidentially about whatever problems they think they face. Surely, the expectation is that a groundless claim would be exposed as such pretty quickly.

Bear in mind, too, that we may be talking about a complaint by someone who alleges having been raped by a professor at her own institution. Are there extra obligations that other faculty at that same university owe to her, in virtue of belonging to that same institution? I don’t know the answer to that question, but it seems a legitimate one to ask.Report

Coherentist
Coherentist
5 years ago

Witness, it seems to me that if you don’t know what the non-Title IX charge is then you should refrain from judgement on whether or not it may have been discussed in the course of discussing the Title IX matter. If they are related, it may amount to the same thing.Report

anon female grad student
anon female grad student
5 years ago

Whoops, this was a response to Regina Levy (105) … and I forgot the link: http://www.huffingtonpost.com/kathryn-pogin/melodrama-notes-from-an-ongoing_b_6805676.htmlReport

Regina Levy
Regina Levy
5 years ago

Anon Faculty (124): I was simply relying on the (I believe reasonable) assumption that the basis for the accusation is Kipnis’s first Chronicle piece. I think it is quite clear that even if there were factual inaccuracies in that piece, writing it constitutes neither a ground for a retaliation claim nor a ground for creating a hostile environment claim. More importantly, I said that while *I* think pursuing the claim was not ideal (by which I meant “pursuing the claim by hiring investigators”; an informal resolution would have been quite another matter), if university officials acted in good faith, that is fine by me. My concern was with the actual process — the fact that Kipnis was not allowed to have a lawyer and that the investigators served as judge and jury. This concern stands even if Kipnis was actually guilty. I don’t think there is much room for reasonable disagreement here — procedural due process is extremely important to a functioning liberal society.Report

Rod Carveth
Rod Carveth
5 years ago

Ah, so many things to say, so little time.

First, Laura Kipnis announced on Facebook: “After 72 days I’ve heard that as far as the Title IX complaints against me, ‘A preponderance of the evidence does not support the complaint allegations.’ The complainants have ten days to appeal. The charges that I violated university policies are still outstanding and now go to the university for consideration, according to the letter from the investigators.”

The good news is that there was not enough evidence to support the Title IX complaint. The fact that there are charges that she violated university policies is appalling.

Second, to respond to some of the more outrageous comments. To “Richard Zach,” thanks for providing the link to your letter, because we were able to see Laura Kipnis’ response, which totally blew away the argument in your letter. I just wish the Chronicle could have provided the sound of a mic drop drop at the end of Kipnis’ response. BTW, Richard, please don’t take offense if your book, if it ever gets published, doesn’t make it into my Amazon cart.

To “Student,” please read up on libel and defamation law. Writing a piece that contains minor inaccuracies, such as the use of “several” instead of “two” in terms of the number of lawsuits filed, is not remotely libel or defamation. A piece with major inaccuracies that would harm a person’s reputation that are not corrected might qualify based on a number of other factors.

To “Anonymous Faculty.” To begin, I want to say that at least Laura Kipnis is willing to reveal herself to the public (as have I). You make claims here without the courage to reveal yourself. I can understand students being reluctant to do so. But, I don’t find hiding behind anonymity particularly courageous.

So that you are clear, Peter Ludlow was found by Northwestern University of violating its sexual harassment policy not because of any sexual misconduct, but because he engaged in a romantic interaction with an undergraduate that did not respect the unequal power dynamics between faculty and student.

I am not a proponent of faculty-student relationships. I think most of the time, such relationships work themselves out just fine — the participants stay together, the participants break up. Feelings may get hurt, but folks move on. But, there are instances where abuse of the power relationship can occur, and has occurred. If a faculty person has been in a relationship with a student and abused that power dynamic, I think the faculty member should be appropriately sanctioned.

Did Peter Ludlow sexually assault the undergraduate student in question? I don’t know for sure. Did he rape the graduate student in question? I don’t know for sure. But, so far law enforcement personnel have found enough evidence to charge him, and, so far, neither has Northwestern. It is entirely possible, perhaps plausible, that Peter Ludlow is guilty of no more than poor judgment in getting too close personally to two of his students. With what is basically a “he said, she said” situation, it is very hard to tell.

And, it is perfectly reasonable for Laura Kipnis to bring those circumstances up.

To “JAB,” how about you go through a Title IX investigation, and then talk about how it wasn’t a big deal! Beyond the real concern I am sure Kipnis felt, just from a pragmatic point of view, going through the process was a major time suck for her. I am sure she had far more important things to do with her time than respond to baseless complaints.

As “Witness” noted, the students were well within their rights to file a complaint. The administration should have determined whether they had merit before starting the formal process. Had they done that, these complaints would have received the fate they deserved and been dismissed.

Finally, can someone tell me what Kipnis said in her original essay that could be construed as retaliatory — or, as some allege, defamatory? Neither Kathryn Pogin’s essay nor Lauren Leydon-Hardy’s essay reveals anything beyond the passage about the number of lawsuits.Report

Anon7
Anon7
5 years ago

@124 Anon Faculty wrote: “What I see is the university putting its trust in a process in which each side is allowed to speak carefully and confidentially about whatever problems they think they face. Surely, the expectation is that a groundless claim would be exposed as such pretty quickly.”

Maybe you trust administrators and their outside hired lawyers to be fair and impartial during their secret interrogation of individuals who are not even apprised of why they are being interrogated. It’s nice that you think administrations are that trustworthy. Many of us, based on long, firsthand experience with administrators, absolutely do not share that trust. I have seen a whole lot of groundless claims pursued to ridiculous lengths, with careers left in tatters as a result. You see this situation as the students vs. the professor with the administration acting as a neutral judge. I see it as the students vs. the professor vs. the administration–the administration is not just a judge, but also the prosecutor in the case. That’s why we strongly insist on a transparent process in which everyone is allowed to have proper representation and be informed of the evidence and the criteria for determining guilt.Report

urp
urp
5 years ago

Lots of resistance to the truth in these comments. It’s astounding. Faculty members are obvi scared sh/wit–tless to lose their existing privileges.Report

I haz JD/PhD
I haz JD/PhD
5 years ago

I’m not sure where all you all- above- are getting this intent stuff. You need to look at the rules in context to determine whether or not they’re to be implemented according to a subjective, objective, or modified objective test. At a glance when I see “purpose,” I don’t expect a a subjective test (she intended X…) at work. That word usually triggers a modified objective test (a reasonable person with Kipnis’ education and position COULD have foreseen retaliatory consequences…). Anyway, it all depends on a reading of the rule in relation to the other rules. I see a lot of high-handed rhetoric above from people whose comments indicate that they don’t know very much about interpreting legal language.Report

Coherentist
Coherentist
5 years ago

Rod Carveth, you keep posting things that make me think you’re not reading what it is you’re responding to (e.g., as was already pointed out, the primary issue with respect to the number of lawsuits was not the mistake about how many were *filed*, that was not Richard Zach’s letter, etc.).Report

JAB
JAB
5 years ago

To Rod, give me a break. Kipnis loves being provocative and is incredibly mean (you did read her essays). If her being asked to give her side violates the first amendment there are certainly many, many other EEO investigations that do. I guess you are angry about it all and have your work cut out for you. You are also suggesting a professor is unable to handle far less than would happen if you worked a corporation and wrote about ongoing lawsuits, mocking the those with sexual harassment and rape complaints, suggesting they are fictional melodrama and that the students were just dating a professor (and that dating can not be rape- I think that is what the tweet said). If I were the graduate student I’d sue Kipnis for defamation, for suggesting I dated my rapist and lied, and I defer to experts on Title IX processes for the rest– but it does seem odd that we recognize rights against libel but people people are so outraged that a student might try to handle the same within the university process with which she was working.Report

anon junior faculty
anon junior faculty
5 years ago

Thanks so much, Justin, for the excellent post and updates.

My thoughts go out to the Northwestern grad student and undergraduate — it can’t be easy having to deal with so much support for Kipnis here and elsewhere.

In her second Chronicle piece, Kipnis writes: “My point in citing this legal morass [that is, the lawsuits involving Ludlow] was that students’ expanding sense of vulnerability, and new campus policies that fostered it, was actually impeding their educations as well as their chances of faring well in postcollegiate life, where a certain amount of resilience is required of us all.”

That quote says so much about Kipnis’ twisted view of things. I would have thought that the students who are stepping forward to make complaints and bring law suits within the legal and policy frameworks provided are precisely refusing to bow down to a sense of vulnerability, as they are instead taking active steps to advocate for themselves, or to have others advocate for themselves. That seems to me a form of resilience.Report

grad student/adjunct
grad student/adjunct
5 years ago

you’re the one defending the privileged (the employers) and blaming the exploited (the workers). Your statement is everything that’s ideologically wrong and reactionary with American in one intense doseReport

Not a Feminist
Not a Feminist
5 years ago

It’s quite interesting that Jezebel stands firmly against the graduate students who made the Title IX complaints: http://jezebel.com/feminist-students-protest-feminist-prof-for-writing-abo-1707714321

Feminists seem quite divided on the issue of some feminists attacking a feminist.Report

Matt Weiner
Matt Weiner
5 years ago

[email protected]: “We are not evaluating her interpretation or judgment about outregeousness or incredibility, though; we are opining on the facts she presents and which nobody disputes: Kipnis published an essay and a tweet — we can see those and judge them for ourselves. The students filed a Title IX complaint based on those writings. The process has been ongoing for months. Eisenman is now also a target of a formal Title IX complaint. My outrage is not Kipnis’, and does not rely on her interpretation of the relevant law.”

There are several relevant matters that we cannot judge simply by reference to the writings in question. Most prominent is what Eisenman said; we can’t see that and judge for ourselves, so we have to take (or not) Kipnis’s word that his treatment was outrageously unjustified. Also is the question of whether Kipnis violated confidences (which I believe was the subject of one of the complaints); since we don’t know exactly what was said to her in confidence, and we don’t know whether she said enough to reveal the student’s identity, for instance. We also have only her account of how the Title IX proceedings went. Etc.

In any case, even if we agree with her completely on how unjustified the Title IX proceedings against her were (and she may be right), she’s also been opining quite a lot on sexual harassment in general and how it should be handled; and as far as that goes, it’s worth noting that she makes basic errors about the nature of harassment.Report

Coherentist
Coherentist
5 years ago

Matt Weiner, in the original piece she did describe two students who asked her about being excused from class because of “triggers” — she described roughly when those students took courses from her, their gender, and their race — one of the students she described as a male belonging to a racial minority, but not the racial minority depicted in the film he was concerned about. That does narrow down identities quite a bit.Report

Anonattorney
Anonattorney
5 years ago

Re 123, that’s a good question, but I think the answer is still “no.” Even if the articles counted as harmful or adverse conduct, two in a span of months won’t be pervasive enough for a hostile environment. I should separate some descriptive and normative issues. As a descriptive matter, I’m fairly confident that an arbitrarily selected federal judge isn’t going to consider whatever harm the articles caused sufficient for a retaliation. People have to remember that even the liberal portion of the judiciary is much more conservative than most of the philosophy blogosphere. It took a great deal of hard work to even get courts to recognize hostile environment claims. Hell, courts are still hesitant to recognize purely emotion injuries in cases much more egregious than this. That descriptive fact is, however, lamentable in many ways.

As a normative matter, though I’m not as conservative as the courts, I still don’t think it rises to the level of hostile environment. The harm is too nebulous and the conduct occurs outside of the workplace/university. You gotta remember that, although a purpose of penalizing retaliation is to avoid a chilling effect, the law pursues this purpose by penalizing adverse employment/educational decisions and or the creation of or indifference to a hostile environment. It does not prohibit any act that could have a chilling effect. And it shouldn’t, since plainly permissible acts like defending yourself against an accusation will have chilling effects. It doesn’t even prohibit more aggressive acts like insulting the complainant.

The best case for the student, in my opinion, would be a libel suit. It’s still a bad case because it’s very hard to prevail on a libel claim in the U.S. But since her whole retaliation claim is premised on the allegation the Kipnis knowingly published false and harmful claims about her, it seems to me that, if her allegations are true, core aspects of a libel claim can be made out.Report

Andy Metz
Andy Metz
5 years ago

What exactly did Prof. Kipnis say that created this controversy?Report

DC
DC
5 years ago

“There are several relevant matters that we cannot judge simply by reference to the writings in question.”

Well for Kipnis I think we can, and I say that as someone who has spent several practicing litigation. If the Title IX complaint is specifically on what has been written — and there is no reason to think that it’s based on anything else — it is frivolous and completely inconsistent with caselaw on retaliation and modern ethical norms. I would invite anyone who disagrees about the legal insufficiency of those claims to find a single Title IX or Title VI (or Title VII) case where a plaintiff successfully showed retaliation on facts anywhere approaching these. Again, the retaliation cause of action was not intended to be invoked because you are angry about something someone wrote.

“Most prominent is what Eisenman said; we can’t see that and judge for ourselves, so we have to take (or not) Kipnis’s word that his treatment was outrageously unjustified”

I was judging the outrageousness of Eisenman’s treatment based not on Kipnis but on Justin’s report of what he said, which offers slightly more details. Is there some way he could have disclosed confidential information and threatened the complainants in a way that constituted retaliation under Title IX? I suppose it’s possible, but it’s so unlikely I certainly have no problem making a judgment now about it. In the real world such decisions are made upon psychological certainty, not epistemic certainty.Report

ThirteenthLetter
ThirteenthLetter
5 years ago

Dude, you’re just trying to find a way of looking at this which means you haven’t endorsed secret tribunals and punishment for speech. Whatever lets you sleep at night, I suppose, but recognize the star chamber madness you’re endorsing.Report

Echo
Echo
5 years ago

The process is the punishment. The point is to force people to watch their mouths.Report

witness
witness
5 years ago

To DC: In fact, Eisenman mentioned no names (neither complainants nor respondent) and made no threats of any kind. What could be the basis of the retaliation claim? Why might a university in those circumstances initiate a full-blown investigation? Fear of an appeal to the OCR?Report

anongradstudent
anongradstudent
5 years ago

The idea the process “pretty much worked” is absurd. She was subjected to a 2 month+ investigation over something she published, in which her ability to defend herself was undermined, and in which her career hung in the balance, all over a complaint so frivolous that it never had a prayer of actually resulting in punishment (if Northwestern punished her over this, or reverses itself and does punish her, she’d win the lawsuit easy).

Title IX complaints should be taken seriously. And when they’re as lacking in merit as this one was, they should be dismissed without an investigation.

Just imagine how this “works” for employees without tenure or union backing by the way. Do you think they get to stand up for themselves nearly as much as she did? And if you don’t think this is harmful for free speech and academic freedom, how many TAs, adjuncts, etc. at Northwestern do you think will be publicly critiquing anything going on at the university in the vicinity of Title IX in the future? Sure they might not be punished in the end, but they still might have to endure a 2 month investigation (and a lot of times during these investigations, the accused are banned from campus, and if they teach, they’re removed from their teaching duties). To them, this is a really clear message: shut the fuck up, or this is what we can put you through.Report

James Heartfield
James Heartfield
5 years ago

Since you claim to support the process, it is bad faith, surely, not to accept its outcome, that there is no case against Laura Kipnis. By rehearsing the arguments against her here, and dismissing her defence, you are undermining the outcome of thc investigation – which rather exposes the real point of the charges, that they are not serious attempts to come to a conclusion, but ongoing harassment. I read your snide dismissal of Laura Kipnis’ claims to fair comment, but cannot understand why you will not accept the conclusion of the investigation that exonerates her.Report

Langdon
Langdon
5 years ago

“Did Kipnis’s article constitute retaliation or create a hostile environment? If you have a moment, consult the “Retaliation” section in the Justice Department’s Title IX legal manual. To make a long story short, there is no way the answer to that question is “obviously not!””

There is a sense in which what Justin says is absolutely correct. If one has no knowledge of the relevant law (as Justin has admitted he doesn’t) then one could, upon reading the manual, interpret it in such a way that Kipnis’ actions might count as retaliatory. I presume that the grad students who made the charges were in a similar epistemic position, namely, knowing very little about legal precedents related to retaliation.

But anyone who knows the relevant law will recognize right away that it doesn’t count. It is sometimes hard for those with the requisite background knowledge to put themselves in the position of someone who doesn’t have it.

So, unlike many others commenting here, I understand both why the students made the charge, and why Justin wrote that portion of his post. Given their ignorance, it is not crazy to think these reasonable moves. What I find troubling is that (i) the administration didn’t immediately throw the charges out, given that they did, I presume, have the requisite background knowledge and (ii) why Justin is doubling down given that just about everyone with the requisite background knowledge has pointed out the absurdity of the charge.

I hope the answer to (ii) is not that Justin thinks Kipnis’ actions ought to count as retaliation. Kipnis ought not have included that paragraph in her original article. It was wrong for her to do so, but not because it constitutes retaliation. It was wrong for her to do so because it was unnecessary for the points she was trying to make, because it was callous towards individuals who, for all we know, may indeed be victims of pretty horrific actions, and because it did include false claims that may seem minor to some, but are understandably a big deal to those being discussed. Just because someone has the right to engage in certain speech doesn’t mean they ought to. But, just as importantly, just because someone engages in speech that they ought not have, does not mean they retaliated.Report

James Hanley
James Hanley
5 years ago

You may claim you aren’t cheerleading the destruction of due process, but Ms. Kipnis was originally asked to appear to answer questions without having any idea of the allegations, and although she would be questioned by lawyers she would not be allowed to have a lawyer present. I have to wonder if you really quite grasp what due process entails.Report

I haz JD/PhD
I haz JD/PhD
5 years ago

James Hanley, there are different (and lesser) standards of procedural fairness in administrative law than criminal law. Many of us do grasp what due process is, but we also grasp those contexts in which it can be expected.Report

DC
DC
5 years ago

“To DC: In fact, Eisenman mentioned no names (neither complainants nor respondent) and made no threats of any kind. What could be the basis of the retaliation claim? Why might a university in those circumstances initiate a full-blown investigation? Fear of an appeal to the OCR?”

Like I said, there is some theoretically sanctionable thing he could have said without naming names — extreme detail about everything the student said in such a way that the student becomes easily identifiable, for example, or that he phrased the suggestion that the students might be sanctionable themselves under Title IX in a clearly intimidatory way — but again, I think such things would be so incredibly unlikely that I am willing to structure my belief on the assumption that they did not happen. Particularly since according to the May 1 faculty senate meeting Eisenman appeared to discuss it as one of 6 items in his “President’s report/remarks” which was scheduled to last only 15 minutes, and it does not seem credible that he had the time to provide any level of detail, even were he (as unlikely as it sounds) to try to. I do think you have correctly identified one of the driving forces behind things like this and similar star chamberesque incidents at other schools: fear of the OCR. It would be nice if some of the OCR’s more novel theories about Title IX could reach a court of competent jurisdiction because there seems to be a general consensus among the legal community, including the largely left-wing dominated academic legal community, that they have overreached.Report

James Hanley
James Hanley
5 years ago

I haz JD/PHD, I iunderstand that. But the setup here was structured to deny the target of the complaint any reasonable opportunity to be prepared to defend themselves and to have any assistance in defending themselves. It puts the target in the weakest possible position. Star chamber is not too strong a word for this.

Note that I am not speaking to standards of evidence–since this is not a criminal case, I am not attacking the preponderance of evidence standard–or a jury, or even, for at least this stage of the process, the right to question the accuser. I have made no assumption that all the standards required for a criminal trial must be present here.

As I understand case law on administrative hearings, a person is entitled to know the allegations against them. While Ms. Kipnis did ultimately succeed in demanding this, the fact that she had to demand it in the face of an initial refusal to inform her of the allegations is in itself deeply disturbing. And to be denied the right to have an attorney present at any quasi-legal proceeding where the possible outcomes include loss of career is not a condition that can reasonably be viewed without concern.Report

DC
DC
5 years ago

“It was wrong for her to do so because it was unnecessary for the points she was trying to make, because it was callous towards individuals who, for all we know, may indeed be victims of pretty horrific actions”

I just wanted to point out that this is a very good point — it was completely unnecessary and potentially cruel. I don’t think the student involved in the Ludlow incident who filed a complaint against Kipnis should be a target of a complaint herself–I think we’ve had enough Title IX complaints for a while. Report

James Hanley
James Hanley
5 years ago

Section 555(b) of the Administrative Procedures Act states that “A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative.”

Granted, Northwestern is not an “agency.” However it is fulfilling a function under federal law that puts it in the position of acting as/for an agency. I don’t claim or pretend to be a lawyer, so perhaps I’m wrong that this rule would apply. But it strikes me as being at the very heart of due process.Report

I haz JD/PhD
I haz JD/PhD
5 years ago

Universities are not agencies, nor are they created by the agencies that are the subject of that act, and other federal laws are not subordinated to that act’s procedural guidelines. Universities establish their own procedures for these investigations as long as they comply with Title IX regulations. As far as I can see from the most recent Dear Colleague letter to Title IX administrators, the university isn’t required to allow either party to have lawyers at any stage of the investigation, and if it does so, it has to allow both parties to have lawyers.Report

ScottC
ScottC
5 years ago

On your suggestion, I read the “retaliation” section of Title IX. The relevant part says:

“”[n]o recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by [Title VI], or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subpart.”

Nothing Kipnis wrote could reasonably be construed to be intimidation, threats, coercion, or discrimination at all, much less for the purpose of “interfering” with any right complainant might have. Expressing an opinion on the validity of a charge, even to the point of actually calling the complainant a liar (which Kipnis did not do) is in no way at all an act of intimidation or a threat. To think otherwise is to completely corrupt the language.Report

Leo Irakliotis
Leo Irakliotis
5 years ago

“Her side of the story”. Her side of the story?

She exercised her freedom of expression. That exercise alone made her a “side” in someone else’s story. The only place where the other side of the story should have existed, was the pages of the Chronicle. Not the legal-sized notepads or a third-party investigator.Report

Josh
Josh
5 years ago

Notably, the DOJ manual referenced by the article states that the purpose of the retaliation provisions of Title IX is to prevent people from retaliating against persons “subject to their authority.” Kipnis does not appear to have had any authority over the complainants in this case. While “adverse action” in terms of plain language is susceptible of broad interpretation, the courts have given the phrase sufficient content in a number of contexts to make it clear that only concrete, injurious actions such as suspension, termination, transfer etc. generally qualify. Given the aim of restricting abuse of authority (rather than safeguarding emotions, which are vulnerable to colleagues as well as bosses), this limited scope makes sense. Kipnis likely did not even have the power to take such adverse action against the students in question. While the president of the faculty senate may have had such power, even his apparent threats of legal action likely did not rise to the level of retaliation. The courts have often rejected retaliation claims based on threatened transfers and the like, where the threatened consequence never actually materialized.

Although the article in no way makes a convincing case for why Title IX should have been involved (which in any case was probably not its intent), it does succeed in putting a very different perspective on Kipnis’ original article, and on the objections the complainants had to that article. It’s nice to see that the marketplace of ideas appears to be alive and well, despite the periodic cries of the doomsayers.Report

James Hanley
James Hanley
5 years ago

I haz JD/PhD,
All you’ve really told me is that Title IX doesn’t provide much in the way of due process protections, which is, of course, one of the criticisms. As a lawyer, you certainly don’t need me to tell that that “the law doesn’t require due process” is not the same thing as “due process isn’t required.”Report

Andy Metz
Andy Metz
5 years ago

Wow! I read a LOT about this case over the last 24 hours, and find it really troubling. An observation and a concern.

My observation is that Prof. Kipnis would have been better served had she not referenced a controversy at her school. I don’t say that because she lacks a First Amendment right to comment on the Ludlow case. It’s just that 1) people in her community would read it and could approach her words subjectively rather than objectively; and 2) administrators really hate it when their institutions are seen in the least bit of a negative or controversial light. That being said, I am hard-pressed to see anything so upsetting in either of her essays to warrant a Title IX investigation to begin with, let alone any sanctions (which, fortunately did not happen at this point). I have seen far more misrepresentations of things she wrote (as her opining in her second essay that she “didn’t know” if the graduate students’ essay in the Huffington Post hurting their job prospects = Kipnis threatened their job prospects) than examples in her essays that could be construed as upsetting.

My concern is that the actions Northwestern’s administration are going to lead to further controversies unless they start being more balanced here. I have no problems with the students filing the complaints (though it appears that only one really even had standing to do so). But, the complaints should have been dismissed based on their lack of merit.

Of more concern, though, is how Northwestern has been dealing with student protests over Ludlow and Kipnis. Having a protest is a protected speech. If students wanted to protest outside the classroom buildings where Ludlow and Kipnis teach, fine. But, if the protest was to happen in the classroom where an instructor is to teach, that protest becomes disruptive behavior and can be sanctioned — and should. The protesters should not have the right to deprive the students of the instruction that they have paid for. The fact that Northwestern did not prohibit — or really even discourage such behavior — is really troublesome.

I’d like to say that all’s well that ends well, but given the trouble that Prof. Kipnis was put through, that statement would not be true.Report

James Hanley
James Hanley
5 years ago

According to the website http://knowyourix.org, which appears to be set up to provide information for those who believe they are victims of sexual harassment or assault,
“Under Title IX, both the accuser and accused have equal rights, such as the right to:

-Have an adviser of choice present during the process (this includes an attorney if allowed at all by schools)

-Present evidence or have witnesses speak on their behalf

-Have timely access to information that will be used at the hearing

-Be present at pre-hearing meetings that provide an opportunity to present their testimony”

It’s not clear to me that Kipnis was allowed to have an “adviser” present, as her support person was not allowed to speak. Perhaps he was allowed to pass her notes, as long as he was silent?

It’s not clear she had any opportunity to have witnesses speak on her behalf.

It is clear that they tried to deny her timely access to information that would be used at the hearing.

Possibly the meeting she had was not classified as a hearing. There are many such procedural techniques that can be used to stay within the letter of the rules while ignoring the spirit of the law.Report

I haz JD/PhD
I haz JD/PhD
5 years ago

I don’t recall there being a hearing in the article. Just an investigation. Look, this is really hard to explain to non-lawyers and I’m not saying that to be rude. There’s lots of STUFF going on here and unless you bracket rights and due process talk, you’re not going to understand why they aren’t totally pertinent to the matter. My advice in taking the first step to understand what’s going on is to put aside inappropriate terminology, like rights and due process. I know that sounds totalitarian, but oftentimes when people start in on rights and due process they’re mystifying how the law functions in real-world circumstances.

Title IX doesn’t stipulate much in the way of due process because it leaves it to universities to administer its guidelines. University adminstrative procedures are born out of specific kinds of relationships – university and student; university and staff; university and professor; professor and student, etc… You don’t automatically get due process rights when you’re employed by contract with an institution; what rights you can take for granted depends on the language of the contract, union (if you have one) agreements with the college or university, state law, federal employment and labour laws, etc…, . Obviously, she’s got tenure and isn’t an at-will employee. I don’t know how university affairs function at Northwestern, but from what I can see she is getting a degree of procedural fairness, which makes the operative question whether or not the attorneys Northwestern hired to adjudicate this followed Northwestern’s own protocols in conducting the investigation and in making their decision. I can only surmise that the reason why Title IX limits what due process/procedural guarantees it does impose upon universities is that the act is specifically designed to produce an investigative and adjudicative process meant to deal with the confidentiality issues specific to the student-experience, and so it has a theory as to what publicity does to such investigations (which theory probably gets read into the provisions about harassment and retaliation), and, in securing additional guarantees regarding confidentiality to students who are reporting harassment, it is designed in such a way to correct, in cases of student/teacher complaints, for the power imbalance there. You can claim that the student has all the power, as Kipnis polemically does; but the student has some power here because the law has been crafted to grant the student that power in order to freely make such complaints so as to compensate for a structural lack of power in the university.

Now as to the right of free speech, well, again Kipnis is in an employment relation with the university. You know when institutions tell the press that they cannot comment on ongoing investigations? There’s a reason for that, and it’s not to be polite or neutral. Similarly, when a professor at a university discusses an ongoing investigation there is a fair perception, even if she is uninvolved, that she is tampering with a process meant to remain confidential. Can she comment? That there was an investigation into this indicates that yes, within limits, she may publicly comment on the matter, but that she also needs to be aware of what lines may be crossed. And where that line is gets determined by words like “harassment” and “retaliation,” which I wish Kipnis and others in this thread didn’t think had have such self-evident legal meanings.Report

urp
urp
5 years ago

NO. 136:
I suppose you’re directing that comment at me. first, it’s frankly laughable to refer to tenured professors as exploited. Second, I offered no defense of any one. I only expressed astonishment at the resistance that Justin’s commentary (which strikes me as right) occasioned. If you really think Ludlow or Kipnis are the exploited here and not grad students, like the one who was sexually assaulted, there is simply something wrong with *you,* and I don’t know what to tell you.

The most disgusting thing to see is how supposedly progressive academics like Kipnis hide behind “freedom of speech” for their deplorable behavior. I’ve seen it again and again. All it amounts to is an unwillingness to check and give up their own social privilege. And that’s what I see here.Report

ScottC
ScottC
5 years ago

ihazjd/phd:

“And where that line is gets determined by words like “harassment” and “retaliation,” which I wish Kipnis and others in this thread didn’t think had have such self-evident legal meanings.”

If the use of words in a particular legal context differ substantially from their ordinary, dictionary meanings, then it is the responsibility of the law to make the deviation from ordinary meanings plain in the law itself. Again, I reiterate….there is nothing about anything that Kipnis wrote that could be construed by a reasonable person as a “threat” or as “intimidation” as those words are ordinarily defined. Unless Title IX specifically defines those terms in an idiosyncratic manner (and I cannot find any such definition in the link provided to the law), then the charge of “retaliation” is ridiculous on its face and should have been immediately dismissed.Report

Anon
Anon
5 years ago

urp, I think grad student adjunct, like a number of others on the thread, are worried about the implications of this case for all instructors, especially adjuncts. That’s what they were referring to by “exploited.”

But if you think tenured professors, or for that matter *any* wage laborers, are not “exploited” to any degree, I suggest you read Marx for an interesting contrasting point of view. The ruling class works by pitting workers against each other, as you’re trying to do.

And if you really think that one can’t consistently believe *both* that Kiplis *and* the graduate student in question have been wronged, then I don’t know what to tell you.Report

I haz JD/PhD
I haz JD/PhD
5 years ago

Oh I don’t know where you get that it is “the responsiblity of the law to make the deviation from ordinary meanig plain in the law itself.” Since when?Report

Anon
Anon
5 years ago

Addendum: That last point reminds me of what I find most worrisome (and least authentically “leftist”) about the new-new-left. There’s a tendency to turn every issue into one with two completely separate and dichotomous sides, where to protect or defend one person you must attack and destroy another. Political activism becomes essentially negative, slavish, its only positivity is the negation of negation, the identification and eradication of Evil.Report

ScottC
ScottC
5 years ago

ihaz:

“Since when?”

Since that is the only way for anyone to conceivably understand written law. If the words in a given law are not defined by the law itself, but nor are they defined by their ordinarily understood definitions, then how is anyone to know what the law means?Report

Yet Another Anon Grad Student
Yet Another Anon Grad Student
5 years ago

I think Langdon @148 has the best summary of this thread. Multiple people with law backgrounds have pointed out that retaliation and hostile environment claims require that there be pervasive negative effects on the subject’s material standing at the institution (e.g., firing, lack of access to resources, etc.). It’s pretty darn clear that no article can accomplish this on is own. So, to build upon what Langdon said, it seems to me that the only explanation for the continued defense of the reasonability of the investigation is that people think that the notions of retaliation, etc. SHOULD go beyond concerns about material harm to include fear of social repercussions. That is, they think that causing someone to be afraid of potential futute retaliation by criticising them or disagreeing with their complaint when they do not hold direct institutional power over the person should itself be considered a form of retaliation. If that is the case, I would like to see some sort of argument.

Note also that, as other people have pointed out, the potential inaccuracies in the the article are irrelevant to the retaliation/hostile environment claim given that Kipnis did not have institutional influence over the individual. If she did publish blatantly defamatory inaccuracies then the student should have filed a separate defamation suit.

Again, the crux of the issue is clearly the normative question: What should be considered retaliation? The descriptive question: Was it reasonable to conduct an investigation into whether her actions were retaliatory given the law? has clearly been settled in the negative.Report

Anon7
Anon7
5 years ago

@168
“Since that is the only way for anyone to conceivably understand written law. If the words in a given law are not defined by the law itself, but nor are they defined by their ordinarily understood definitions, then how is anyone to know what the law means?”

That’s what lawyers are for — to tell us that the law really doesn’t mean what it says, but rather the law means whatever lawyers say it means. They have to come up with some excuse to bill clients $500 per hour. It’s no coincidence that Congress is both intensely dysfunctional and at the same time filled with lawyers.Report

James Hanley
James Hanley
5 years ago

I has JD/PhD, Actually, I’m pretty knowledgeable in law, despite not being a JD myself, so you can talk directly to me. And I see what appear to be some problems in your arguments. I’m not trying to pick a fight with you here, but to have a discussion to clarify. First, you say universities aren’t government agencies and don’t have to provide for due process. However _public_ universities are in fact government agencies, albeit state ones, generally subject to the same constitutional constraints as other state agencies. That’s pretty boilerplate, right, with a number of cases concerning free speech, religion, etc., making that clear.

Further, in such cases due process is required when an employee has a property interest in their job, and as I understand, tenured faculty members are one of the stock examples of a person with a property interest in their job.

Of course Northwestern is not a public university, but in your comments you repeatedly said “universities” without any clarification. So that brings us to what due process requirements there are for private universities, and I think your argument would come down to there being no real requirements because a private university is not a government agency. If I have said that in a way that you think doesn’t reflect your argument correctly, please correct me.

I agree that in general that would be true, but I have my doubts it is wholly true when the university is taking action because it is required to by the government. In that case the government is essentially commandeering the university to play an enforcement role in federal law, and I suspect that even a private university is not wholly free to establish whatever process it wants, even if the law in question does not specify a level of due process. Due process is, of course, greater than statutory law, and statutory law cannot simply wipe out whatever due process rights may constitutionally exist. (Which is why I’m not satisfied with the “Title IX doesn’t require it” argument as being a sufficient answer.)

Are you aware of any case law on point here? I’m not, and I’m speculating, but I’m speculating based on constitutional and governmental theory (I’m a political scientist, fwiw), and while I could be wrong, I don’t think reference to Title IX is proof that I am, as I am not arguing that the requirement would stem from that law. In fact I am arguing that any actual restrictions on due process that may exist in Title IX (if any exist) would, I think, be constitutionally problematic. That is, whether I’m right or wrong in my specific belief that greater due process is required, it’s not a statute that will ultimately determine that, but the judicial interpretation of the Constitution.

“I don’t recall there being a hearing in the article. Just an investigation.” That was part of my comment. The system can be rigged to avoid procedural fairness by calling the actions just an investigation rather than a hearing, a word which might trigger a higher procedural standard. All of this is not just a legal process, of course, but also a political one (in the broad sense of that word), and the choice of terminology and structure is generally a political choice, and one that is made to either benefit a particular person or work to their detriment.

“You can claim that the student has all the power.” I didn’t. Let’s please not take it that direction.Report

James Hanley
James Hanley
5 years ago

ScottC, Frequently the specific meanings get worked out through judicial interpretation. If the words aren’t explicitly defined in the law, the Court may work from the plain, common use, meaning, or they may work from how the word is defined in other laws, or they may work from prior judicial rulings, going as far back as common law rulings in British courts that predate the U.S. judicial system. It can be a bugger for the average citizen–and from that perspective, democratically problematic–but a thorough knowledge of case law is often required to know what a word’s legal meaning is.Report

I haz JD/PhD
I haz JD/PhD
5 years ago

James Hanley – Sorry, I’m rushing around and can’t give this a lot of attention now, but I agree that among the many things that affect university/college rules on these matters, in addition to employment rules, union rules, specificities of contract, is the nature of the institution – private or public. Nevertheless, the answer to your question is federalism. A state college wouldn’t be subject to a federal administrative law act act, and off the top of my head I don’t know of any federal universities. As between Kipnis and the university, what’s playing out is a private law matter, so it’s hard for me to see where her constitutional rights come into it.Report

James Hanley
James Hanley
5 years ago

” A state college wouldn’t be subject to a federal administrative law act act”

But they are subject to the Constitution, yes? I keep trying to point to the Constitution, as the public universities are being required to take action under federal law, and you are not really addressing that question.

Actual relevant statutes or cases would be helpful, if you know of any.Report

Anonymous
Anonymous
5 years ago

It seems worthwhile to mention that people commenting in this thread are asking and answering many different questions. Setting aside questions about Eiseman, at least 6 different questions/clusters of questions are being asked and answered:

1. Question: Was it “reasonable” for NU to conduct an investigation of the Title IX complaint? Obviously, since it’s required to by law for universities to investigate each Title IX complaint.

2. Question: Should the law require universities to investigate every Title IX complaint? A popular answer: No, the complaint against Kipnis should not have been investigated (the general idea is that the complaint was frivolous, baseless, without merit, ridiculous, etc, etc).

3. Question: Did NU conduct the investigation in an appropriate or just manner)? Some seem to think they did fine. Others of us think that they did not. Some of the naysayers go so far as to use talk of kangaroo courts, Star Chambers, and secret tribunals. It is in this connection (I think) that people have been talking about due process.

4. Question: Did Kipnis’s article constitute retaliation or the creation of a hostile environment? This is, of course, a legal question. It would seem that one would need to know quite a bit about Title IX to answer it.

5. Did investigating the Title IX complaint undermine Kipnis’s academic freedom? To some of us, it seems helpful to start by asking what “academic freedom” amounts to. Of course, since there’s so much debate about this topic, it’s not as if we can resolve the issue here. But here’s a naive question: Can a professor publish just anything and claim that it is an exercise of her academic freedom? I always assumed not, because it does not seem like a violation of a professor’s academic freedom for her employer to investigate whether she has falsified data or represented someone else’s ideas as her own. Of course, Kipnis didn’t do either of these things. But if we admit that there are cases in which an employer can investigate a professor’s work without violating her academic freedom, we ought to frame our question in terms of whether Kipnis’s case is one of them. (Many of us will say that it is not).

6. Did the students complain that their rights had been violated because they thought that her position on “sexual paranoia” was retaliatory or contributed to a hostile environment. Not according to them. They contend that (i) Kipnis made a false statement about a student who said that she had been raped, (ii) this statement undermined the student’s credibility, and (iii) Kipnis refused to correct the record when they brought the matter to her attention. (Of course, even if (i), (ii) and (iii) are true, that doesn’t mean that their complaint had any merit).Report

I haz JD/PhDi
I haz JD/PhDi
5 years ago

James Hanley, you’re forcing me out of my comfort zone, and the point of my intervention was to ask people to stop thinking that they self-evidently know how the law HAS to work here based on having read the Bill of Rights a few times. This will have to be my last comment. As this is outside my area of specialization and is about the multi-scalar regulation of multiple jurisdictions, I can’t give you the case law, and what follows is VERY general. If you want more detail, I would go to a constitutional law scholar for the broad strokes and a university affairs person to see how policy plays out. The factors that decide complaint and review procedure are complicated, which is why these schools each have a Title IX administrator (who would actually be the person at your school to follow up with). A state university (not Northwestern) would be required to conform to first amendment case law as well as 14th amendment equal protection case law, and would have to balance those rights against each other when they conflict (Title IX being the mechanism to enforce equal protection). While Title IX exists to enforce equal protection for institutions using federal money, it doesn’t necessarily bind private institutions to enforce other constitionally protected rights. Re: a state school, the due process clause of the 14th amendment wouldn’t pertain as there isn’t a property or liberty interest at stake (I wonder if there’s a freedom of association argument that could be made, actually…); at least, it wouldn’t pertain to the employment relationship between the professor and the university. Academic freedom might be written into the enabling state law for a university system or professors might simply have to rely on their afiliation with the American Association of University Professors. The rights that pertain to a conflict between professor and university are the ones established at contract (adjunct or full-time matters very much here) or any rights guaranteed by legislation regarding state employees. It devolves to procedural fairness.

Also, suppose the graduate student making the complaint is Canadian. The connection between the op-ed pieces and retaliatory consequences would be much much MUCH easier to prove in Canada where there are stronger defamations laws and organizational anti-harassment rules (as well as provincial human rights codes of conducts and more prevalent reporting mechanisms). And before we start in on how freer we are because we are America, it’s hard to swallow the idea that academics in Canada don’t enjoy academic freedom because of such restrictions. The grad student’s instinct to go after Kipnis for her essays would be perfectly understandable in that light, especially considering the malice in them. And contra some of the views above, I don’t think the complaint was prima facia nonsensical. Originally, what I had a hard time understanding was how she could have standing to make the complaint given that she was not party to the original complaint. But then I realized that the connection she was drawing was that Kipnis was retaliating not against the complainant, but against the campus “mattress carriers” as a group. That makes it easier to understand why the grad student would get two students unrelated to the original complaint – third parties, as she herself is – to come forward to speak of the chilling effect the op-ed piece. By hystericizing young women on campus, and making the student who levied a rape charge, seem frivolous and unreasonable, she had made it more difficult for any young woman to come forward with a harassment case. I see the argument. I don’t think I completely agree with it (again the fact scenario here is filtered through Kipnis and this article), but in the collective outrage that Kipnis has successfully generated as a the creature of opinion culture that she is, I think many people commenting have lost sight of what’s interesting about what the students did.Report

another Anon Faculty
another Anon Faculty
5 years ago

Even while sympathizing with concerns of academic freedom, I don’t see why others have such a hard time seeing that the two Chronicle articles would have the effect of discouraging other students from reporting Title IX violations. Being called “melodramatic” or being told that one is unable to see the difference between dating and rape are common ways to scare people from reporting sexual assault. Title IX clauses on retaliation and hostile environment are meant to help to solve the following problem: there are too many violations that go unreported because by reporting, students are subject to harsh judgments by fellow students and faculty. In my graduate program the only people who reported any kind of sexual harassment (or worse) behavior were those who were willing to leave (either transfer or quit) thus everyone knew of many more things happening than what was reported. In this case, with Kipnis focusing on specific students (everyone knows who she is talking about even if no names are given), she is sending out the warning to all Northwestern students: “if you present a complaint, you will be made fun of publicly and probably won’t get a job.” This is horrible behavior… one need not agree with all the details about the Title IX process to see this.

Thanks, Justin, for your thoughtful post. I am disheartened by the callousness of so many who have been commenting on this issue (here and elsewhere). I also want to send my support to the graduate students who presented the complaints. Our profession is lucky to have you.Report

Andy Metz
Andy Metz
Reply to  another Anon Faculty
5 years ago

To “another Anon Faculty” — I don’t know what institution you are located at, but I know at mine, as well as some others that I am familiar with, students who report credible instances of sexual harassment are treated no better or no worse than anyone else.

As I indicated in a previous post, I don’t think Prof. Kipnis was wise to report on an incident at her home institution because of the possible emotional reactions she could set off. But, the points that she brought out about the investigation of Peter Ludlow were legitimate ones. She was comparing the times when she was going to graduate school — where the atmosphere surrounding faculty-student relationships may have been a bit too casual — to today — where the pendulum may have swung too far the other way. Ironically, the complaints filed against Prof. Kipnis actually provided evidence to support her position — where by even discussing shortcomings of the Title IX process subjected her to a Title IX investigation.

A couple of other points. First, your quote, “In this case, with Kipnis focusing on specific students (everyone knows who she is talking about even if no names are given), she is sending out the warning to all Northwestern students: ‘if you present a complaint, you will be made fun of publicly and probably won’t get a job.'” is a gross distortion of what she said. She did not “make fun” of anyone. More importantly, in her CHE piece of last week, she reported a discussion she had with a colleague about whether or not the filing of the Title IX complaint by the graduate student would improve the student’s job prospects or not. Her colleague thought it would. She said she wasn’t sure. She didn’t say the student wouldn’t get a job or shouldn’t get a job. She indicated she was wasn’t sure. I’m not sure, either, about what would happen to a student who applied for a job in my department who filed a complaint. A colleague who knows about the case said it would raise questions for her about how collegial the student might be.

Finally, you indicate you are disturbed about the “callousness” of folks commenting here. I don’t know that people who are disturbed about the Title IX investigation here are “callous.” Plus, remember, who was the person who actually had to endure a process that at best was highly uncomfortable, and at worst was terrifying — Prof. Kipnis herself.Report

James Hanley
James Hanley
5 years ago

I haz JD/PhD, So you say you’re out of your comfort zone, and you suggest I talk to a constitutional law expert. As it happens, I’ve studied constitutional law…quite a bit. I’ve even taught it, although I never dealt with this particular type of issue.

As to there not being a property interest here, given that Kipnis is a tenured faculty member, that’s not entirely clear to me. Board of Regents v. Roth made it clear that a tenured faculty member at a _public_ university has a property interest in their job. Whether a tenured faculty member at a _private_ university does or not is a question that is either undetermined, in which case a simple denial is not sufficient, or that has been legally determined, in which case a citation would be the preferred evidence rather than simple hand-waving.

And you keep focusing on whether Title IX requires due process, although I’ve repeatedly stressed that my focus is not on what Title IX requires, and that in fact any requirements of Title IX are wholly beside the point if (emphasis _if_), constitutional due process requirements have a role here. As a JD, I’m sure you understand that statutes are trumped by constitutional rules, yet you keep avoiding that more serious question. And yet you provide no clear legal analysis for doing so.

What I’m asking is what constitutional rights accrue to an individual, not via statute but via the Constitution itself, when a private employer is acting under the requirement of federal law. It’s not at all clear to me that when the federal law tells a private employer that they _must_ investigate an employee, that the employer is not co-opted into being a de facto agent of the government, and that no constitutional rights are implicated when the employer is investigating under compulsion of federal law. That _may_ be the case (in which I would argue that the it is unjust, but that’s a separate issue), but you have not made an actual legal argument that it is. In fact your arguments here have been so devoid of any reference to any statutes, federal regulations, or cases that I could look up, that it could have been made by someone without any serious legal training. I’m persuadable, both by inclination and professional training, but I don’t accept what are essentially arguments from authority (again, both by inclination and professional training).

The suggestion that I talk to a Title IX administrator to understand what due process requirements are required is simply naive. That person is in an enforcement position, so that would be akin to asking a policeman or prosecutor what due process rights a suspect has. Report

ScottC
ScottC
5 years ago

James:

” Frequently the specific meanings get worked out through judicial interpretation.”

Perhaps, but judicial interpretation must be guided by something, otherwise we end up with law made by judges, not legislators, as the judiciary can then “interpret” the law to mean whatever it wants. (Yes, I know that this is indeed how much our system works, but it isn’t supposed to be that way.) With regard to the meanings of words, that guide must be either what legislators explicitly say the words mean, or the ordinary usage of the word.

If a law makes it illegal to draw circles, a judge cannot simply “interpret” the word circle to mean squares. And the fact that at one time a judge might have done so in order to punish someone who drew a square, thus setting a legal precedent that squares actually qualify as circles for legal purposes, doesn’t justify future judges in perpetuating the obvious misinterpretation.

Further, law, in order to be legitimate, must be accessible to the people to whom it is to be applied. No one should need a “thorough understanding of case law” in order to know whether or not to express an opinion on the truth of some charge represents a “threat” or “intimidation” in legal interpretation. If the makers of law want to outlaw such an expression (which, of course, they cannot actually do under the First Amendment), then they need to do so explicitly, not implicitly through the use of words that can only be understood by an elite cognoscenti with special training. (This, BTW, is one of the many injustices with regard to the massive proliferation of new law under the guise of regulatory “guidance”.)

Ultimately I don’t really care what legal precedent says. What Kipnis wrote cannot, under any reasonable interpretation, be characterized as a “threat” or “intimidation”. If legal interpretation says otherwise, then, to paraphrase a famous saying, legal interpretation is an ass.Report

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5 years ago

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