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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