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.
Oh, I am so glad you wrote this. Thanks.
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.
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.
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.
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.
Title IX 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.”
“For the purpose” *or* “because.” Intent to retaliate is not required, I don’t think. See http://www.justice.gov/crt/about/cor/coord/ixlegal.php#3
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.
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.
From the Title IX manual: “courts interpreted Title IX as prohibiting hostile environment harassment in cases involving employees of educational institutions receiving federal funds.”
That comes at the end of this paragraph:
“As noted in the previous section on employment, courts generally apply standards established under Title VII regarding what constitutes discrimination to guide their interpretation in Title IX cases. Although, as discussed below, the Supreme Court held that the Title VII and Title IX standards for assessing a defendant’s liability for money damages in private litigation differ, similar standards have been applied in defining actionable misconduct. See, for example, Alexander v. Yale Univ., 459 F. Supp. 1, 4 (D. Conn. 1977), aff’d 631 F. 2d 178 (2d Cir. 1980)(comparing sex discrimination in educational settings with sex discrimination in employment settings and deciding that quid pro quo sex harassment provides a cause of action under Title IX as it does under Title VII). Several years after the decision in Alexander, the Supreme Court declared that courts should accord Title IX “a sweep as broad as its language” when interpreting Title IX’s scope. North Haven v. Bell, 456 U.S. at 521 (quoting United States v. Price, 383 U.S. 787, 801 (1966)(Congress’ use of the phrase “no person shall be subjected to discrimination” in Title IX’s statutory language means that employees, as well as students, are covered by its antidiscrimination provision.) As a result, courts interpreted Title IX as prohibiting hostile environment harassment in cases involving employees of educational institutions receiving federal funds. See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).”
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?
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.
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?
(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.
Why couldn’t the complaint include charges of both retaliation and hostile environment?
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).
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.
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.)
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).
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.
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.
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.
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?
I agree with Anon Faculty (20) that the complaint against Eisenman is a different matter altogether.
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.
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.
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?
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.html
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.
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.
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.
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?
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.
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?
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.
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?
Kipnis didn’t mention at all that Ludlow was facing a second rape complaint by a graduate student, as far as I can tell.
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?
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.
Always nice to see a few flickers of fideism on an otherwise secular blog.
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.
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.
Witness, where did anon faculty say that the complainants were discussed by name?
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.
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.
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.
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.
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.
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.
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.
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.
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.’
‘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.
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.