Ludlow to Face Hearing; Accuser Regrets Coming Forward
The Chronicle of Higher Education has a new article (paywalled) on the complaints at Northwestern University regarding Peter Ludlow and the recent discussion of those complaints by Laura Kipnis in a pair of articles (for CHE). According to CHE, “Northwestern has banned [Ludlow] from the campus, he said, and has scheduled a hearing for next month on whether he should be fired.” The author, Robin Wilson, adds:
Mr. Ludlow has said the claims are false and that he did nothing wrong. He has sued the students for defamation and the university for gender discrimination and invasion of privacy.
Those lawsuits have been dismissed.
A number of parties were interviewed for the article, including Stephen Eisenman, Kipnis’s support person during the Title IX investigation into complaints that her writings might have constituted retaliation against one of the complaining parties, a philosophy graduate student:
Mr. Eisenman says universities can and should respond to students’ complaints of sex assault. But, he adds, colleges cannot protect students from public discourse about the issue or even about their cases in particular. “The university cannot prevent speech from happening because she had a terrible experience,” he said.
The graduate student who accused Ludlow of rape was also interviewed for the article:
In an interview over FaceTime, she said she wished she had never come forward to complain about Mr. Ludlow. Following the publication of Ms. Kipnis’s first essay, in February, and a follow-up essay published last week, “My Title IX Inquisition,” the graduate student has become the target of nationwide criticism by those who say she is using federal law as a weapon to stifle free speech.
“The Kipnis article piled torment on top of an already impossible situation,” the graduate student said of the original essay. She felt Ms. Kipnis was belittling her, the student said, for reporting a sexual assault and was minimizing the gravity of it.
When she first reported the alleged assault by Mr. Ludlow to the university, the graduate student says administrators promised to keep her charges confidential and protect her from retaliation. What she’s learned, she says, is that universities are incapable of following through on such pledges.
“Why did I hand this over to a system that is so toothless, so full of empty promises, only to be made a laughingstock?” she asked. “They can’t stop Laura Kipnis from calling me a liar. They can’t stop Eisenman from going up before the Faculty Senate and talking about this. They can’t keep my name off the blogs.”
The graduate student has been receiving hate mail.
Wilson also spoke with the president of Northwestern, Morton Schapiro, who defended how Northwestern handled the complaint against Kipnis:
“This is not about restricting the free speech of a faculty, it’s about abiding by the laws and doing what we think is right,” Mr. Schapiro said during a faculty meeting on Tuesday…
Mr. Schapiro said it is the university’s responsibility to take each Title IX complaint seriously. The university had to hire outside lawyers to investigate, he said, because conflicts of interest prevented its own administrators from conducting the investigation…
“The idea that I could say, ‘This is frivolous, you can’t use Title IX in this way,’ is ludicrous,” he said. “It’s the law.”
The way the grad student has been vilified for simply engaging in the process she is *asked* by her school to engage in is just so wrong. When you report to schools, they will bring along the Title IX officer if it’s the report of a sex crime. What critics of the student are asking her to have done is to have somehow know that “philosophers generally won’t approve” if she reports more than just the sex crime but also that Kipnis has published that she is dating her rapist. This would require her to step outside of this process, not giving them information they seek, explaining (somehow?) that she knows on some topics, the process will fail her and its promises are false. (I can’t imagine how this would work or the kind of position she’d be in to know this.) She’d have to say (or not tell them) that she is going to hire a lawyer for defamation (regarding Kipnis’s publication). Would they have even allowed her to do that?
“They can’t stop Laura Kipnis from calling me a liar. They can’t stop Eisenman from going up before the Faculty Senate and talking about this.”
Did somebody actually advise her that the university somehow had the power to do those things? Truly astounding that she would think that. (Although it’s, frankly, also astounding that she read Kipnis’s article as concluding that she was a liar. JAB, by the way, if you think that there is even a prima facie case that Kipnis’s publication constitutes defamation, I suggest you talk to a lawyer. Not even close to defamation.
From Kipnis: “What she [the graduate student] wants is for me to have told this story from her point of view.” … “She seems to think the entire essay is about her, so I think she misread the essay.”
I read the article as using the two cases at Northwestern as allegedly paradigmatic examples of the phenomenon the whole article is indeed discussing and criticizing. And so I don’t see how the complaints involved any misreadings.
The positive freedom of speech to testify to having been raped (and for your testimony to be given appropriate credence) ought to be at least weighed against the purported threats to the free speech rights of tenured academics to publicly ridicule students without consequence.
This may come across as trolling, but I have no trolliatory intent. It might be worth separating worries about how Northwestern, Kipnis, and others dealt with/discussed the original rape complaint against Ludlow from worries about the title IX retaliation complaint against Kipnis and how Northwestern handled that. On the first issue, the big problem seems to be that the complaint wasn’t kept confidential in the first place. How did all of that become public? Was it via one of Ludlow’s lawsuits?
When I read Kipnis’s first article, I got the distinct impression that she didn’t think the graduate student had been raped by Prof. Ludlow. Is there anyone who didn’t get this impression? Is there anyone who read the article and thought that Kipnis was concerned that the graduate student had been forcibly raped?
I’m not saying that the student was indeed raped, nor am I saying that Kipnis defamed anyone. I’m not saying that anyone should have filed a Title IX complaint against Kipnis. I’m not saying that she didn’t have the academic freedom to write what she wrote. I’m not saying she did anything wrong. I’m just saying that she didn’t seem to be taking the graduate student’s alleged rape seriously. Should she have? Again, I’m not saying that. I’m just saying that I wish we would raise this point when we are discussing the Kipnis case.
Jack Samuel — we do have quite an extensive political and legal history on this very kind of issue don’t we? One thing we learn from it is that freedom of speech of course brings with it no guarantee that one’s speech will be assigned any particular credence by others. Another thing we learn is that freedom to do things like file formal charges does not conflict with the freedom of others to comment in various ways on the charges and those who make the charges. Everyone is free to do the former and free to do the latter. Do you think there is some conflict between these things?
About the rape charge itself — I’m open to correction but some more familiar with the Ludlow case than I am have said that no criminal charge of rape has been made against Ludlow and that Northwestern’s investigation of the issue found Ludlow responsible for sexual harassment but not rape. It seems odd to continue to refer to Ludlow as a “rapist” (as in comment #1 above) if those reports are correct, but perhaps freedom to speak in that way is something worth defending.
In response to Crimlaw:
I know you know this, but I still think it’s worth saying, given the context: the fact that NU’s investigators didn’t find that Prof. Ludlow had had “non-consensual sex” with the student is consistent with his having had “non-consensual sex” with her.
My belief is that the student’s complaint became public, or at least widely known, when Ludlow filed his lawsuit. So an unfortunate lesson that would not have occurred to me before these events is this: nobody can enforce confidentiality in any proceeding against anyone else, since the latter party can lay out all the details of the proceeding in a lawsuit. I’m not a lawyer, but I believe that a legal filing such a lawsuit is privileged speech, so that any university confidentiality rules are unenforceable. (You can’t punish someone for engaging in privileged speech.)
The takeaway: any complaint you bring against anyone for any reason in any forum might lead to a lawsuit in which confidentiality is breached, and the breach is unpunishable.
Anonymous @8 : What you say is true and thank you for saying it.
Similarly, however, even if Northwestern had found that Ludlow is responsible for sexual assault it would be true that this is consistent with his not having committed sexual assault. In the law and elsewhere there is almost always this sort of gap between matters of fact and the findings of inquiries.
Crimlaw @7: is that the outcome of the graduate student’s rape accusation, or of the undergrad’s accusation that Ludlow engaged in non-rape sexual assault? (The latter one prompted PL’s lawsuit against the news outlets that said he ‘allegedly raped’ rather than ‘allegedly sexually assaulted.’) Really, we need some sort of Ludlow malfeasance flowchart.
When you say “similarly…” do you mean to imply that innocent people are wrongly convicted just as frequent as guilty parties getting off because of lack of evidence?
Richard Zach @12: Of course not. That’s a completely different issue. It’s an issue studied pretty carefully within criminal law though I doubt one can move easily from conclusions in that domain to conclusions about campus hearings. Among the important differences would be differences in the burden of proof and differences in the rigor of the procedures.
I was responding to the point that there is “consistency” between a lack of a finding of guilt and factual guilt. I replied with the observation that there is also consistency between a finding of guilt and factual non-guilt. Neither claim is a claim about frequency.
I know what you wrote. I just wanted to make sure that you didn’t intend to suggest that your observation was relevantly similar, despite your use of “similarly.”
Anonymous (6) writes:
“When I read Kipnis’s first article, I got the distinct impression that she didn’t think the graduate student had been raped by Prof. Ludlow. Is there anyone who didn’t get this impression?”
Since you ask… I can safely say I did not get any such impression. I do not know whether you are referencing the original version of the essay, but it doesn’t matter. In neither version could I even tell from Kipnis’s article that the graduate student had accused Ludlow of rape. (Or that the graduate student is female, or in Philosophy.) Her article mentions Ludlow’s “defamation” complaint against the “former graduate student,” and moves on. In response to Kathryn Pogin’s complaint of inaccuracy (see the HuffPost link), Kipnis’s article was amended to read that *Ludlow’s complaint says* that he dated the graduate student (whereas the original had said that the dating was fact). Fair enough. But since I do not think that Kipnis said or implied that there is no such thing as rape (in or out of a dating relationship), I do not see that anything in even the original version of the article suggests that Kipnis was making any judgment about the merit of the graduate student’s charge, a charge that (I say again), was not even mentioned.
It’s possible that some readers are attending to the next paragraph, where Kipnis complains of a slippery slope from “alleged fondler to rapist.” But this clearly is a reference to the undergraduate case.
It’s also possible that some readers with privileged access to all the background facts might read things into the article that were unavailable to me. But (I gather from her reply to Cynthia Lewis), Kipnis herself had no such background as of writing. I hold that any such readings (a) are not in the article and (b) probably were not in Kipnis’s mind.
“My belief is that the student’s complaint became public, or at least widely known, when Ludlow filed his lawsuit. So an unfortunate lesson that would not have occurred to me before these events is this: nobody can enforce confidentiality in any proceeding against anyone else, since the latter party can lay out all the details of the proceeding in a lawsuit. I’m not a lawyer, but I believe that a legal filing such a lawsuit is privileged speech, so that any university confidentiality rules are unenforceable. (You can’t punish someone for engaging in privileged speech.)”
As an initial matter, while I think privacy is a valuable thing, it’s not the only valuable thing. There are other rights that maybe should sometimes take priority over some theoretical absolute right never to have anything you don’t want revealed to the public, revealed to the public. There are trade-offs between privacy of an individual and the right of someone they accused to seek redress for what they consider wrongs.
In regards to what’s called the litigation privilege, it’s actually a little bit more complicated than that:
First, as a private university a place like Northwestern may be allowed to punish someone for disclosing information that under their rules should have remained confidential, whether it’s in a lawsuit or not. The absolute immunity of the litigation privilege provides immunity from judicial sanction, not private sanction.
Second, even in judicial proceedings the litigation privilege is not really absolute. Many jurisdictions recognize a wrongful prosecution tort, where a defendant in a civil case can sue the plaintiff separately if the lawsuit was brought in bad faith or to harass. Some jurisdictions also have SLAPP statutes which explicitly allow that kind of thing.
Third, while you can’t always prevent someone from revealing confidential information in an initial complaint, you certainly have several options to stop the release of information. You can move the court to have the complaint (or the confidential information contained within) sealed which will close it off the public. You can also move for a protective order to prevent another party from releasing confidential information.
Re DC at 5:03: The litigation privilege is concerned with causes of action arising from statements occurring in the context of litigation, not sanctions. Rule 11, wrongful prosecution, abuse of process, anti-SLAPP, etc., are not exceptions to the litigation privilege as they do not really concern actionablility of statements in litigation. But maybe this is too far into the weeds.
DC, I take your point about the details. But I still think that my general point stands: As a rule of thumb, when you bring a complaint about any matter to any authority, you should assume that that authority typically does not have a foolproof way of guaranteeing or enforcing confidentiality. (There are exceptions, maybe certain legal maneuvers, etc., so this is only a guideline or general rule.) Any sexual harassment officer, for example, should be cautious in what s/he says to victims coming forward: “The University will take all reasonable steps to protect your confidentiality and we are confident that your confidentiality will not breached, but we cannot absolutely guarantee it 100%.”
UNC Groundskeeper (3): If we’re talking about Kipnis’ first essay, she devotes 3 paragraphs out of 55 (I may have miscounted the latter) to the undergraduate’s claim, and just one phrase (not even a whole sentence) in passing to the graduate student. This is hardly a case of the “whole article” being about those two cases. You could strip all three paragraphs out of the piece with very little change to its substance. There’s only one case, and the only sense in which it’s “paradigmatic” is as an example in the academic setting of the messiness of intimate human relationships. I take the point of Kipnis’ essay to be that trying to make academia a “mess-free zone” is a lousy idea. She was only tangentially concerned with the specifics of that case.
The notion that an essay where 52 of the 55 paragraphs are completely unrelated to the claimants could have been “retaliatory” when neither was named and one was barely referred to at all is simply ludicrous. The people pushing this line of argument are doing their larger social agenda a tremendous disservice.
Prof. Lowry,
That is not a fair characterization of the worry.
I don’t think anyone would have been particularly worried had the negative consequence for Kipnis been merely that she was embroiled in something; I certainly wouldn’t have. What worries me is that she faced charges from the university, and the charges were taken seriously.
And press charges against you?
That is not a fair characterization of the injustice.
I don’t think anyone would have been particularly worried had the university been asked to consider something. What’s worrisome is that there were charges pressed against her. That is the danger to freedom of speech – not Kipnis’, but all of ours.
@Bogart@17:
When I say sanction I mean generally as in referring to a judicially-enforced punishment of some sort, whether in tort or criminal law, and not just in terms of Rule 11-style sanctions. I’m simplifying a little about the litigation privilege and malicious prosecution/anti-SLAPP, because it gets a little convoluted depending on the jurisdiction you’re in. Generally a malicious prosecution or anti-SLAPP lawsuit would be brought against the filing of an action as a totality rather than specific statements made in the course of it. However, it still functions as an exception to the litigation privilege in the sense that those statements can be used against the defendant to show that an action brought actually was improperly brought, and many courts have explicitly characterized malicious prosecution claims as providing an “exception” to the litigation privilege. But I think you are right in that we are going a little too far into the weeds.
My apologies; I meant to post my comment, above, in the “One of the Kipnis Complainants Speaks Out” thread, where Prof. Lowry posted hers.
Re DC@21: Stop being so reasonable.