The following guest post* is by one of parties who filed a Title IX complaint against Laura Kipnis (Northwestern). The author wishes to remain anonymous.
Thoughts from One of the Title IX Complainants
a guest post by Anonymous
Laura Kipnis is right. Those involved in the Title IX complaints at Northwestern, responding to her essay “Sexual Paranoia Strikes Academe” find themselves in a Kafkaesque situation – but what, exactly, is Kafkaesque about this situation is largely missing from public discourse.
I know, because I am one of the students who filed a complaint against her.
Much has been made of the fact that Kipnis’ essay was critiquing new campus policies limiting faculty-student relationships, particularly, the ways in which she believes students have been infantilized as a result of them. The basis for our complaints, however, was not her politics. The theoretical issues she raises are ones that I believe are complex, vexed, and important to discuss in the university, with the full protection of academic freedom for differing views. They are important and the various resolutions are not obvious. I, too, have questions about prohibitions on faculty-student relationships – not because I think students are too coddled but because I worry they risk pushing predatory relationships underground rather than preventing them. If students could be dissuaded from seeking help, should they need it, because their relationship was shrouded in secrecy, that strikes me as reason to be concerned.
It is true that I think the argument Kipnis offered in her essay was intellectually silly and concretely harmful to individuals in our community, but it is simply false that the basis of the complaints raised against her had to do with the stance she takes on these vexed issues. We filed complaints because in her desire to weigh in on the theoretical debate, Kipnis took factual liberties with the specific issues facing students at Northwestern. Her erroneous representation of a particular case at Northwestern, involving living, breathing, human beings, caused tangible further harm to two women already found to have been sexually harassed by a Northwestern professor. Her callous refusal to correct those factual errors once they had been brought to her attention was a violation of the norms of academic integrity, which are a necessary precursor to academic freedom.
Kipnis’ mentions, by way of illustration, the mess of lawsuits arising out of complaints against a philosophy professor. Lest we be confused by her framing, these complaints were neither related to allegations of improper consensual relationships, nor were they a result of our new, purportedly infantilizing, policies. Rather, each was a complaint of assault, one involving an allegation of rape, brought by two independent students against the same professor. Both were found by the university to have been sexually harassed. Our new policies were an effect, not the cause. Both students were since sued by the professor they accused. Both of the suits against them were dismissed.
Multiple people who were in a position to know Kipnis was mistaken in some of the facts contacted her, urging her to issue corrections. She refused (though, after being contacted directly, The Chronicle of Higher Education did make some). Kipnis believes these errors were minor. I wonder, though, if she would find them so very minor were she one of those women being sued by the same professor found to have harassed them. If she were one of those who tried to bring a confidential complaint of assault forward, through the same brutal process Kipnis felt harmed her, only to find herself unwillingly in the midst of extremely public controversy. What if Kipnis were one of those who, just when she wanted to put the most traumatizing part of her life behind her and move on with her education, had a professor of her own university take to national media to publicly misrepresent what happened to her? And worse still, given precisely that awful legal morass, felt unable to make use of her voice, except through the protected use of university procedures?
I am not one of those students either. Nor am I, like Kipnis, a tenured professor. I am a graduate student who knowingly involved myself in a legally volatile situation because Kipnis, intentionally or not, wrote false things about two students found by our university to be victims. I thought standing up for a fellow student in need was the right thing to do when the university was failing to respond to a complaint that one of these women filed, even to let her know they had received it, for almost two weeks (owing to a conflict of interest given a separate complaint filed against our Title IX coordinator). Kipnis was unwilling to make basic factual corrections, though our faculty handbook enjoins her to accuracy. It was made clear to her she was doing harm to two women who had been harmed enough. These women, though they are living what is, to some of us, an unimaginable nightmare, have exhibited bravery and resilience in pursuit of both their own rights and their educations. Now, Kipnis would have us think she is the victim of an inquisition because she was subjected to the very same brutal process that is the only means available to students to make their concerns “safely” known to the university. And we’re the ones with the sense of vulnerability more befitting of children? Seriously? Yes, this is Kafkaesque.
Kipnis is right about the problems with Title IX systems – across campuses, really. I think she should have been allowed to have the charges in writing. I think she should have been allowed to record her meetings with the investigators. These problems, though, are precisely the same problems that students, much more vulnerable than her, without tenure, and often without access to attorneys at all, face regularly – including the students on the other side of the complaints against her (perhaps Kipnis would like to know there was a point in the process where I advocated on her behalf, before her support person later violated a written confidentiality agreement, because a concern had been raised about a comment he made online and the investigators were considering whether he should then be removed from his role in the process; I informed them, in no uncertain terms, I believed it would be a violation of her rights when he had not yet violated university policy).
Of course, there is the issue of academic freedom, but would academic freedom protect, say, falsifying research data? Making unwanted sexual advances in print? Academic freedom is absolutely fundamental to the integrity of the university – but let’s not pretend that what, exactly, it consists in isn’t genuinely a complicated question. Let’s not pretend that it obviously protects a refusal to make basic factual corrections. Whether or not such a refusal amounts to signaling retaliation is a separate question, but shouldn’t we have the right to ask our university that very question? And if you were still concerned that we may have attempted to silence her views by bartering our complaints in exchange for an apology or a gag-order, you need not fear – that never happened and I do not know if Kipnis genuinely thinks it did, or if again, she may be taking liberties to suit her narrative.
Set the question of what rises to retaliation under law aside for a moment. When a student comes forward to her university to say she’s been raped, but she’s terrified of what coming forward would mean for her future, and when a university responds to let her know that they will protect her – “retaliation is strictly prohibited!” they say – what should she think that means? What would you think it means? Would you think you could be sued for filing a complaint? Would you think that a professor at your institution could take to the stage of national media to misrepresent what happened to you, blithely indifferent to yours pleas that she, at the very least, be responsible to facts, whatever her broader opinion? Would you think that the president of your university’s Faculty Senate could violate a written confidentiality agreement by discussing a complaint you filed on the floor of the faculty senate while it was still being investigated? Would you want to come forward, risking your well-being, career, and your future, if any and all of these things could happen without repercussion? Of course not, because no reasonable person would.
Some, of course, will still think I’m a witch-hunting, freedom-hating, harbinger of a new McCarthyism and that Kipnis is fighting on the frontlines of liberty (if only Rosa Parks had so many powerful men on her side). That’s their right, though I think they would be mistaken. Please consider, though, the other woman who filed a complaint against Kipnis. In virtue of her being my colleague and a friend, I know that she has claimed to have been assaulted by a professor. She knows what happened to her, and she will never recant her story, but nonetheless, she regrets coming forward. She regards it as nothing less than a life and career ruining decision. Hold these two facts together in your mind: she believes she was assaulted, and she regrets having ever told another soul. This is the world we live in. It’s not melodramatic; it’s heartbreaking.
+1
Is this author willing to state, publicly and for the record, what the falsities were in the Kipnis piece?
Plouffe, you can check the corrections at the bottom of Kipnis’ original piece for two of them.
Do those two constitute the full extent of the criticism?
So let’s assume she made factual errors. How does that create a case for filing a complaint that she engaged “retaliation”? Who was she retaliating against? No one, because no one had accused her of anything? On behalf of whom? No one.
To answer your question, the retaliation need not come from the subject of the complaint. It could come from the subject’s friendly colleague, for example, or his boss, or any of a range of people at the institution. This is not to comment on the particular investigation, but just to answer your technical question.
I took it that the links to the CHE Letter to the Editor and the HuffPo piece were supposed to give a sense of the claims of falsity.
If told that “retaliation is strictly prohibited” in response to a University complaint I would not think that this somehow would prevent me from possibly being sued. Not even Northwestern University can prevent civil suits in that way. Why would someone thing it could?
Most would likely agree that it would be better practice for a University to explain to complaining parties the limits of such a “no retaliation” clause.
@Plouffe: Did you try reading the pieces linked within the article (the one about the factual liberties and the one about issuing corrections)? They seem to address your question directly.
If these are the only falsities at issue, then using them to show that one’s speech is retaliatory and not protected leaves something to be desired. I was thinking that Anonymous had something else to offer aside from what is already public record. Perhaps not?
Thanks so much for writing this!
Plouffe, if you do not see how the portrayal of the nature of one’s relationship with the person one claims to have raped you as one that has been established to be consensually romantic, is problematic, then it’s going to be hard to resolve disagreement, here.
I did not claim it would not be “problematic” (if the claim is indeed false). The issue is whether it would rise to the level of retaliation.
I applaud the brave and articulate author of this piece. I am saddened by the (perceived and no doubt genuine) need for anonymity. I wish we lived in a world where people were safe to express such thoughts and actions more openly.
The Kipnis article claimed that the grad student and the professor found guilty of sexually harassing her had been engaged in a consensual relationship–that they had dated. The second correction to the CHE article suggests that this was explicitly denied by the author of this post. This post makes clear that the author of this post and others corrected Kipnis on this matter in time for Kipnis to avoid making that accusation. That, regardless of its legal status or upshot, is shockingly poor journalism and just plain revolting.
It appears that there is a great deal of exaggeration here. The two errors that Kipnis appears to be guilty of is 1) she referred to a several lawsuits by the undergraduate student when there were two; and 2) she reported Ludlow’s characterization of the relationship with the graduate student as an “affair” with consensual sexual activity while the graduate student denies that the had a relationship and that the sex was consensual.
I have a hard time figuring out why the first error is so egregious. In addition, Kipnis included that sentence in a discussion of what a “mess” things had turned out to be with legal suits and countersuits. Plus, let’s be clear. Ludlow was never found by law enforcement to have sexually assaulted the undergraduate. Even the university characterized his behavior as “inappropriate,” but not assault.
In the case of the graduate student, Kipnis not presenting both Ludlow’s characterization of the relationship and the graduate student’s was careless. But, it should also be pointed out that this careless was barely mentioned, and certainly had far less prominence than the discussion of the undergraduate’s case. Again, the university did not find that Ludlow had assaulted the graduate student, but had crossed the lines of what was appropriate between individuals of differing levels of power.
Finally, exactly when did Peter Ludlow give up his rights. He denied then, and continues to deny that he did anything wrong in either case. He felt defamed, and filed suit. The fact that both suits were dismissed did not mean he had no right to file them, just as both the undergraduate and graduate students had every right to complain against Ludlow.
Overall, I found the author’s argument here unconvincing in terms of justifying going after Prof. Kipnis.
That’s a good point. I can see how the issue you raised might be of interest to, say, other people in a similar position as the graduate students mentioned here: people who are considering whether they should file a retaliation claim/procedure when they are the target of or have to deal with the effects of some publicly available articles such as Kipnis’s. In this case, however, people commenting on this thread will hardly be helpful to these students in this manner. Nor can we contribute much to the actual development of the case since I assume that we, as simple readers, are not part of it. In any case, I take it that this very thoughtful letter is making different and more important points- some of which are not directly relevant to the philosophy of law.
Like Johnathan, I want to applaud the author of this. Not only is it courageous, it is extremely well said and well argued, and it makes points that everyone following this discussion should hear and take absolutely seriously.
Quick thoughts. First, rape isn’t ruled out by the existence of a romantic relationship. Maybe I’m being touchy but it seems like some commentary on this case elide that. Second, what are we arguing about, really? Kipnis behaved badly? Agree! Kipnis is guilty of retaliation in the title IX sense? Disagree! Higher ed is completely f’ing clueless about how to handle these issues well (granting that it’s a really tough problem)? As much endorsement as I have in me.
This is how you do it. Would we all had more colleagues like the author of this piece–we should be so lucky.
I agree with Andy Metz. Nothing in the articles–and I’ve read them closely, along with the responses here and on Huffpo and the Chronicle–strike me as grounds for a Title IX action.
I’m a bit confused by a technical point. Was the complaint filed by the author on behalf (with the corresponding consent form and so on)) of the students who filed the original complaint against Ludlow? I initially thought it was, but this post made it seem as though the author filed an independent claim. Could anyone clear this up?
“We filed complaints because in her desire to weigh in on the theoretical debate, Kipnis took factual liberties with the specific issues facing students at Northwestern.” […] “Whether or not such a refusal [to make basic factual corrections] amounts to signaling retaliation is a separate question, but shouldn’t we have the right to ask our university that very question?”
Is anyone else puzzled by this? One files a Title IX complaint asking for the grounds of one’s complaint?
Not to deny the seriousness of the need for collective and individual reflection on many of the points raised above; but if this piece is meant to be an apologia or some sort, I can only read it as tacit admission that the author(s) did not know what they were doing and have only come to realise/publicise this.
AnonAttorney, according to Kipnis two complaints were filed, one by one of the women involved in the Ludlow affair, and one by someone who apparently had no connection themselves but decided to get involved by filing the complaint against Kipnis. It seems that the piece published here was written specifically to avoid identifying which one of those people is the author.
An anonymous comment is not brave. It’s prudent, not cowardly, but not brave either. Neither is an an anonymous essay. This doesn’t mean it’s a bad essay, it’s just that bravery, like the accuracy of the allegations against Ludlow, and the accuracy of the statements in the editorial, is besides the point in a discussion of the legitimacy of a title IX complaint against Kipnis.
There is a weird argumentative move that’s become popular here. When somebody accuses you of being too sensitive, you do not show that you are not too sensitive by saying the person who called you too sensitive is too sensitive for pointing out your sensitivity. that doesn’t show you’re ‘tough’. You just show the person who called you sensitive is a hypocrite, but then, you are still both too sensitive. You have to explain why you are not too sensitive. You don’t do this by saying, “I know you are but what am I?”
My understanding of the situation is that the students presented a complaint against Kipnis because they believed that her article constituted retaliation. Even if their complaint is in the end dismissed, this doesn’t mean that the students made a mistake in presenting their complaint to being with. There is a lot of criticism of the students for presenting the complaint. The students’ claims may or may not be found to have merit but this is a different question as to whether they were within their right to present a claim. I think the student writing the article here is right to say that students are less likely to report sexual assault on campus after the Kipnis affair than they were before and this is very heartbreaking indeed.
“Even if their complaint is in the end dismissed, this doesn’t mean that the students made a mistake in presenting their complaint to being with. There is a lot of criticism of the students for presenting the complaint. The students’ claims may or may not be found to have merit but this is a different question as to whether they were within their right to present a claim.”
No one is questioning whether they had a right (in the broadest legal sense) to lodge the complaint. Nor is anyone claiming that because the complaint was dismissed that this shows ipso facto that the complaint should not have been lodged. The question is whether there was sufficient reason for the complaint to be lodged. Given the available evidence, there was not. And that the complainants did not know how Title IX cases are actually handled does not justify lodging the complaint.
another Anon Faculty,
“The students’ claims may or may not be found to have merit but this is a different question as to whether they were within their right to present a claim.”
But whether they had a *right* to do so is a different question than the one at issue: whether they *ought* to have–whether it was justified or productive or reasonable to.
“I think the student writing the article here is right to say that students are less likely to report sexual assault on campus after the Kipnis affair than they were before and this is very heartbreaking indeed.”
I’m not sure of this. What if everything had ended with Kipnis’ first article? Would students really have been less likely to report sexual assault on campuses? That’s a lot of political power to give to a single article anywhere, much less an article in The Chronicle for Higher Education.
I suspect that *now* students may be less likely to do so, but that has more to do with the ugly fallout of the Title IX complaint, which could have been avoided if problems with Kipnis article had been raised in a more constructive manner.
A thoughtful, well written reflection instead (much like the one they’ve offered here!) would have not only avoided a lot of ugliness, but probably won over many of the people now siding with Kipnis.
AnonAttorney — Yes, this complaint was filed to support the graduate student who was allegedly raped by Peter Ludlow. What is interesting is that if this was a legal suit, I am not sure the author would have standing.
Another Anon Faculty, I don’t think anyone has claimed that the students didn’t have the right to file a complain against Kipnis, but many people – among which I count myself – think that they were wrong to do so. Surely there are many things which one has a right to do, but that one nevertheless shouldn’t do.
That being said, I think Northwestern is even more guilty, for they should have just dismissed the complaints right away on the ground that it was frivolous instead of subjecting Kipnis to the investigation she recently described. But it’s understandable that it didn’t do that, since the threats made by OCR against any university that doesn’t comply with its recommendations on how to implement Title IX.
As it has been explained at length in the comments of another recent post on this blog, the mere fact that one is being subjected to an investigation – even when the way in which it’s conducted is not problematic, which it certainly was on the case of the investigation against Kipnis – is punitive and that’s why a university should not start one when the complaint is frivolous.
Now, even if you’re right that the publication of Kipnis’s article might deter students from reporting sexual assault, which frankly I find hardly obvious, it doesn’t mean that the complaint against her wasn’t frivolous.
Anon — I agree that if the graduate students had not called attention to Kipnis’ first article, the feared chilling effect on them would be non-existent. The major point of Kipnis’ article had to do with changing mores concerning faculty-student relationships. The Ludlow example was a side issue, and I don’t know that many of the readers would have focused on it. Once the complaints were made, though, it really escalated the controversy. I saw the original article, and left thinking, “Wow, things have changed a lot,” and reflected on how the relationship lines among faculty and students were much blurrier when I a graduate student.
@Monica@9:
The thing that may be confusing Plouffe (as it is certainly confusing me) is the letter and related post (which I will refer to collectively as “letter”) you linked contain many arguments that have nothing to do with inaccuracies but are rather criticisms of Kipnis’ opinions, beliefs, and philosophies. So when people keep pointing to the letter, I can’t make out whether they mean just the two actual factual errors, or do they also consider the letter’s other allegations as “inaccuracies” (which I don’t really think is defensible)?*
If it really is just the two actual errors, then the implication is that if Kipnis had published the article in its current form, then there would have been no retaliation claims. Now if it is the two actual errors, then it seems hyperbolic to state that their inclusion turns an otherwise protected work into a retaliatory one. I don’t know how having two lawsuits mischaracterized changes the narrative fundamentally, or how whether the two were in a relationship or not has bearing on whether a sexual assault occurred. If anything, the fact that Ludlow admits to a relationship with the student makes me think less of him, but does not change my opinion of the student.*
Now if it isn’t just the two errors, and refers to the accusations that it’s “misleading” or that Kipnis’ opinion piece “fail[s] to conform with the best data on trauma coming out of psychology and cognitive science,” then while those arguments may be a perfectly legitimate response to make against Kipnis’ opinions in the form of a letter to the editor or another editorial, then those accusations are a bizarre thing to request corrections over.
* The letter also contains something that really makes me uncomfortable, namely “one must wonder how a relationship could be found to both sexually harassing and consensual at one and the same time.” Just like sexual assault can occur within an otherwise consensual relationship, sexual harassment can as well.
Anon 28 – you mean like this letter: https://feministphilosophers.wordpress.com/2015/03/03/open-letter-from-an-nu-grad-student/? Or like the ones that multiple students wrote to Kipnis and the Chronicle informing them of errors, the most important of which wasn’t corrected until nearly a month later, and well after the complaints were filed? The letters that have earned their writers hate mail and abuse from multiple corners of the Internet? We know what lies in store for young women who wrote reasoned defenses of themselves on issues like these.
In response to Dept. Chair (@19) and Plouffe (@27),
I don’t think the decision of the students to bring the complaints is the interesting question here. I think Justin in his post on this subject identified one of the interesting questions, about which people do disagree: were the complaints *obviously* unfounded?
The question matters not because of what it means for the students’ decisions to complain, but because of what it means for how the case was handled. If the answer is ‘yes’–if the students obviously had no case–then in addition to the procedural problems that all seem to agree about, there’s also the problem of a frivolous case being pursued rather than dismissed by the university’s investigators. This is the point of Megan McArdle’s article. If the answer is ‘no’–if there’s some ground for reckoning Kipnis’s piece retaliation–then the investigators were right to pursue the case (even if their procedures were problematic). It seems to me that Justin takes the latter view, and this is what leads him to say that the system basically worked, a few flaws notwithstanding. Kipnis, McArdle, and Leiter takes the former view, and this leads them to conclude that the system is fundamentally flawed.
One question I have: what is the relationship between stating a falsehood about someone and retaliating against them? I’m dimly aware of the fact that if you state an unjustified falsehood about someone that causes certain kinds of defined damages, you can be sued for libel or slander in many countries. Was the idea behind the complaint that Kipnis retaliated in something like this way?
We’re still waiting to hear what errors in the original piece could possibly justify a Title XI complaint. “Several”? The fact that someone disputed a fact? This is absurd beyond belief, and Daily Nous is disgracing itself by presenting it as reasonable. Graduate students should not be encouraged to dig ever deeper holes for themselves after having been pressured into digging the first hole. Verbum sap.
I fall into the camp of people who think Title IX is being misused. Nevertheless, I also want to make it clear that the students are not the ones at fault. They can attempt to file whatever claims they like so long as they do not do so in bad faith, and I think it is pretty clear that they were not operating in bad faith. The fault here rests upon (1) the shoulders of the administrators who completely mislead these students as to what they were actually protected from, (2) upon the executive branch for demanding that every claim be subject to an in-depth investigation no matter how frivolous it seems to be, and (3) (once again) upon the university for adopting ridiculous procedural policies. It would have been fine if the case were subjected to a reasonable preliminary investigation such that some sort of summary judgment were possible. Then they could have determined within about a day that Kipnis’ articles did not meet the criteria for harassment and hostile environment claims, even if the factual claims of the complaint were true. Instead, the ridiculously byzantine and opaque process made everything 100 times worse for everyone involved. We can hardly blame the students for this. They have my sympathy.
Thanks to this student for writing this important clarification of the record, and thanks to Justin for posting it. There are a lot of us out here who support you!
I am confused. Kipnis’ factual errors seem to be:
1. she wrote “dated” instead of “claims to have dated” with respect to the graduate student
2. she wrote “several” to refer to two lawsuits with respect with the undergraduate student
Is that right?
@Crimlaw: Perhaps they think “no retaliation” means “no consequences, even if you are being wildly irresponsible”.
I also want to express support for these students—I think they got more than they bargained for. But can’t we say that what they did was incredibly irresponsible and foolish, and, indeed, they are responsible, while also saying something like, these are members of our profession, who are becoming negative symbols in a media reaction to these events, and we should stand against this, in case their identities become known? I don’t want these two women, particularly the original complainant, to suffer extremely negative consequences for this lapse in judgment. And if they are receiving hate mail, we should do what we can to stand by them and say that this is unacceptable.
But I still do want to say that this is a serious lapse in judgment.
anon female grad student — are you saying the student who came forward in this case with an assault allegation was being ‘wildly irresponsible’ in doing so?!
Great letter, by the way. I’m really glad that Justin shared it.
Andy Metz, i agree that she would not have standing to file a lawsuit. However,I know that one can file a title 9 complaint based on harassment/retaliation against a third party. But, my understanding was that the third party still had to be named in the complaint and had to sign the complaint. I didn’t know if something else was done in this instance.
I strongly agree with #36.
I would almost agree with Johnny Thunder, but I think the biggest question is not so much whether the charge of retaliation was “obviously unjustified” under the current interpretation of Title IX, but rather whether what Kipnis did *should* be actionable, under a reasonable law. Apparently Brian Leiter thinks it *is not* actionable, and I hope he’s right, but most of us don’t know enough law to have an opinion about that.
In any case, I just wanted to add myself to the list of those who think the problem here isn’t really with what the students did, but with a system that threatens to punish Laura Kipnis for publishing her article.
Anonymous Author:
Sorry for your trauma. I don’t mean to traumatize you further. I hope you won’t take my questions that way. But I do have some.
I have to say upfront that I do not find your OP very well reasoned. But perhaps I am missing something. I don’t think you are alone in reasoning the way you do. I think others I have seen weigh in on these matters reason in something like the way you are. I find all instances of it equally problematic.
But let me test whether I’ve got the reasoning right by asking you for further clarification on a few points. Start with the following. You say:
“Kipnis took factual liberties with the specific issues facing students at Northwestern. Her erroneous representation of a particular case at Northwestern, involving living, breathing, human beings, caused tangible further harm to two women already found to have been sexually harassed by a Northwestern professor. Her callous refusal to correct those factual errors once they had been brought to her attention was a violation of the norms of academic integrity, which are a necessary precursor to academic freedom.”
So the basis of your retaliation charge seems to be the thought that in violating what you call “norms of academic integrity” (because of her “callous refusal to correct”) Kipnis somehow engaged in retaliation against the accusing student. Suppose — just for the sake of argument — that what you say — about violating norms of academic integrity, I mean — is true, I’m afraid I still don’t see how that’s supposed to motivate the charge that she retaliated against the student who made the original complaint against Ludlow. Can you explain that please? You don’t really attempt to do so in your OP. What you do seem to imply is that you didn’t actually assertively charge Kipnis with retaliation. What you did, rather, was ask the university whether her behavior amounted to retaliation. You say:
” Whether or not such a refusal amounts to signaling retaliation is a separate question, but shouldn’t we have the right to ask our university that very question?”
But aren’t you mischaracterizing what you did, here? You actually did quite a bit more than that, right? You didn’t ask — “Hey, would this behavior amount to retaliation?” You lodged a charge that you (or a third party, since it’s unclear which student you are) had been retaliated against. Right? Or are you equating making a charge with asking a question? I can sort of see how one might get into thinking that. But I don’t think that’s the most revealing way to think about it. You lodge a charge, that forced the U to undertake an investigation. It was charged with asking and asking the question whether Kipnis’s behavior constituted retaliation. (I’m not, by the way, holding you at all responsible for the way the U handled your accusation. Pretty bizarre stuff, that.)
It seems pretty clear that you yourself had already made up you mind. You did think that Kipnis’s behavior (and also the behavior of the President of the faculty Senate) amounted to retaliation. You seem to think that you were entitled to think that by something somebody said. Indeed, it seems you may still think that. i say that because although you say “set aside the question of whether this rises to the level of retaliation,” you then quickly seem to imply that any reasonable person would think that it does. I’m thinking of the following:
“When a student comes forward to her university to say she’s been raped, but she’s terrified of what coming forward would mean for her future, and when a university responds to let her know that they will protect her – “retaliation is strictly prohibited!” they say – what should she think that means? What would you think it means? Would you think you could be sued for filing a complaint? Would you think that a professor at your institution could take to the stage of national media to misrepresent what happened to you, blithely indifferent to yours pleas that she, at the very least, be responsible to facts, whatever her broader opinion? Would you think that the president of your university’s Faculty Senate could violate a written confidentiality agreement by discussing a complaint you filed on the floor of the faculty senate while it was still being investigated? Would you want to come forward, risking your well-being, career, and your future, if any and all of these things could happen without repercussion? Of course not, because no reasonable person would.”
But this is what I get confused by the reasoning in your OP. I’m sure the University meant it and meant it sincerely that they would see to it that the student who filed the charge was not retaliated against for making the charge. But I don’t think it reasonable at all to construe such assurances as implying that University thereby takes on the burden of policing the speech of members of the academic community in the way that you seem to think it should. You seem to think that title IX prohibitions against retaliation amount to prohibitions against anybody saying, thinking or doing anything that might cause the accuser any sort of hurt feelings.
Let’s grant that hurt feelings can deter action. So perhaps you’re thinking that anything that has a tendency to deter the accuser’s action amounts to retaliation. Is that your reasoning? I suppose that makes some kind of sense if you think that Title IX gives an accuser an absolute right to be taken by others at his or her word, an absolute right to be free from the negative opinion of others — or at least the expression of negative opinions, by others, including, perhaps, the negative opinion of mere bystanders, at least if they are members of the relevant community, but even if they have no direct or indirect power over the student. Maybe you’re thinking that a professor at a student’s university, in virtue of being a professor there, has some intrinsic power over the student’s reputation. Maybe you think that the expression of negative opinions that might damage that reputation of the accuser is a form of attack, a form of intimidation, a form of retaliation. An abuse of repuational power, let’s call it.
But I’m afraid that doesn’t seem like a “reasonable” construal of what “no retaliation” means. In fact, it seems extraordinarily broad, don’t you think? And because so broad, quite unreasonable. A law that enshrined such a conception of what retaliation might amount to would be really, truly frightening. Cause it really could be used to silence all sorts of expression of opinion.
If I’m right — and I’m no lawyer, so who knows — then an accuser does take certain risks and can’t be shielded from those, I’m afraid, by the law or the university or the courts or anybody else. There’s for example the risk that he or she might not be believed. THere’s the risk that some in his or her community might just have and express negative opinions of some sort about his or her actions and accusations.
Myself, I tend to withhold judgment on these things for as long as I can. I’m prepared to believe the worst of everybody involved in this scenario. Ludlow, his accusers, the university, Kipnis, etc. That includes you too, I’m afraid. I have no idea who you are or what you are like. But if you turned out to be a horrible person, I wouldn’t be shocked. Same for Kipnis, same for Ludlow. I’m also prepared to believe the best of each of you too. Ludlow could be the biggest sexual predator ever for all I know and his victims victims in the truest sense. Not having much real evidence to go on, I choose simply to remain agnostic for the nonce.
But suppose I were more prone to rash judgments. Suppose, counterfactual, that I have made up my mind somewhat rashly and my rash opinion is unfavorable to the accusers. And suppose that I was to say as much in print. Would the rashness of my judgment suffice to make me complicit in the alleged harassment of the accuser? Would just the holding and expressing of a rash judgment make me complicit in further harassment? That’s what you seem to think. Indeed that’s what many seem to imply. Rash judgments unfavorable to the accuser heap on violation. (But couldn’t the same be said about rash judgments unfavorable to the accused too, I wonder?) I’m no fan of rash judgments, believe me. I think that should be avoided. Mostly on epistemic grounds. But maybe on moral grounds too. But if we start using the law to legislating against them, down that path lies a frightening degree of thought control. Or so it seems to me.
Anyway, I do hope you heal and receive justice, whatever justice entails. But I do think the filing of the charges against Kipnis was neither a wise nor a reasonable thing to do, however infuriated (whether justly or unjustly) you were by her opinions.
@DC: I have just read the additions to the thread (I don’t check the comment thread that often, I’m afraid). Yes, I can see the confusion. The way I see it, many authors in this thread try to elucidate whether the graduate students at NU ought to have filed a Title IX complaint. Some of them describe it as “going after prof. Kipnis”. They evaluate in multiple ways whether the parties had any justification for doing so. To me, it seems that this line of thought developed above boiled down to whether the factual inaccuracies are minor or not. I see that many authors in this thread conclude: “no, they ought not to bc the corrections were minor”. I see many problems just with this line of questioning: well, *who* has to decide when one/someone else files this complaint? I find it strange that a bunch of people who are not personally involved to start policing the actions of someone whom they don’t even know. I, myself, have just started reading the Title IX documentation. But it is clear to me, that this is hardly a matter to be settled by some remote parties. Moreover, I think it’s deeply problematic to think that one can separate the factual inaccuracies from the overall point or narrative of Kipnis’s piece if only because the same misrepresented facts can be embedded in rather different arguments: they can exemplify different things, they support different conclusions. One such narrative is where they are instances of “sexual paranoia on campuses”. And this is where Kipnis’s beliefs and philosophies are directly relevant to how she writes about the cases. Finally, I can imagine how being the graduate student at the receiving end of this argument, I can say that as far as those matter involve *me*, they are not minor. I can also see how telling someone else what is/ought to be of minor importance or not is dismissing their point of view as a knower. Suppose there was an overwhelming consensus on this thread that the changes are minor. What then? First, let us remind ourselves that this is not a conversation in which the person who is most deeply involved can be a part of, in a safe manner. Did we manage to support anyone here? Kipnis, perhaps? I am not sure what we would achieve, other than split into camps and feel that our opinions are validated and “right” every time someone posts something we resonate with. The way I see it, we missed other good opportunities for conversation. Leave that aside for a moment. I don’t see many suggestions for how the graduate student would have been empowered to act in light of Kipnis’s first piece. What is clear to me is that we can count ourselves to be very lucky to have a thoughtful and kind friend who is willing to support us and lend their voice when we need it. I would have been personally devastated by Kipnis’s piece if I would have been the case she described there. But it would have hurt more to see how so many members of the community I want to see myself a part of are policing my reasons, question my motivations and take me to be the paradigmatic case of destroying academic freedom, digging at the heart of what universities as knowledge communities stand for. Far from being melodramatic, it is deeply worrisome.
The reason we should all be reading this article is that it reminds us of the human costs of the abstract positions on speech we wave around at each other. The lack of empathy for alleged victims amongst the Speech Warriors is truly staggering, and I’d place a lot more credence in their intuitions if I thought that hey genuinely cared about the way that speech can target the vulnerable.
THAT said, author, if you’re reading this, I think that you may eventually come to view your actions differently. The launching of a formal complaint within an institution that has the power to sanction and/or fire people is a serious matter, and must be treated as such if institutions are to function at all. The odds of being able to demonstrate *intent* to retaliate were very low, given that Kipnis merely played fast and loose with facts in order to score larger rhetorical points in the silly little game she’s playing. So, I think, that what many of us are (gently and not-so-gently) saying is that there may have been a slight error in judgment here: you wanted to protect students, but you have in fact produced a situation which Kipnis has all-too-easily been able to spin as a “witch hunt”, since her article was more stupid and crass than it was openly malevolent. Title IX complaints are crucial tools for students, but when they are used in cases like this they may lose some of their public legitimacy.
Thanks to the author for a very thoughtful post, and for his/her courage in getting involved. Still, I am not sure about filing the complaint. The author says the complaint was filed not because of Kipnis’ views on the “theoretical issues”, but because Kipnis took “factual liberties”. I don’t think such a sharp distinction can be drawn.
If I were in the student’s position (I may not be able to image it fully), I would be upset both by the factual liberties Kipnis took and by the fact that she was using my situation as an example in making her point about the broader, theoretical claims. If I came forward about an allegation of rape, I would be horrified to find that someone, even if they got the facts right, was treating my coming forward as a weakness on my part, and was seeing my situation through the lens of students behaving like children. If the person also got the facts wrong, that would merge together for me with the theoretical stance into a general sense of condemnation and disapproval, as if I was making a big deal out of nothing. Kipnis’s “melodrama” comment captures this: it blurs the line between her theoretical position and her depiction of this particular example.
In the current atmosphere, it might not be possible to come forward and hope that the case will be seen only on a factual basis and independent of broader theoretical issues. That is only possible when there are more precedents and conceptual clarity on the issues. To help the people coming forward, and the people accused, what is needed is much more discussion of the theoretical issues; to create frameworks in which the cases can be seen more objectively, rather than the cases themselves also being the locus of the theoretical disagreements.
@Monica
“…But it would have hurt more to see how so many members of the community I want to see myself a part of are policing my reasons,”
Well isn’t that what the members of an academic community do? Police reasons, as you put it. Isn’t that what we do when we treat the other as a fellow rational being? Try to determine which claims and counterclaims are backed by the “force of the better reason.” Policing reasons is a sign of respect, I would think.
@Monica:
I think it is important to have empathy for the students involved with Ludlow, and even to some extent with the student who wasn’t involved with him but decided to become part of the process. The more I see how Title IX is fundamentally misunderstood by professional academics and university administrators, the more sympathetic I am to the students for not getting it right. Again, most of our ire seems reserved for Northwestern for making such a mess of it. The attorneys especially involved knew better and should have alerted the school pretty quickly that the essay wouldn’t support a Title IX complaint.
It is very important to scrutinize this case not in order to attack or punish the complainants, or even the university, but to have a public debate over what Title IX is and what it is not, and the responsibilities of universities to conduct investigations that are fair to all parties involved, including the accused. The harder Northwestern gets hit during this discussion, the more likely it is that other universities will do a better job going forward.
To specifically address an important point you raise:
” They evaluate in multiple ways whether the parties had any justification for doing so. To me, it seems that this line of thought developed above boiled down to whether the factual inaccuracies are minor or not.”
I think there are a lot more issues implicated that are being glossed over, and the fact that even the anonymous explanation that we are all responding to here does not address in concrete terms what inaccuracies constituted the retaliation does not help. As I see it, to have an arguably justified retaliation claim in this situation you would need all of these things to be at least credible on their face:
1. First, that Kipnis’ statement about the student being in a relationship with Ludlow is inaccurate. Unless I’ve missed something, Ludlow claims they were in a relationship, and the student has not publicly said one way or the other. Obviously sexual assault can be carried out within a relationship so absent a statement from the student I don’t see how Kipnis is accusing the student of lying or doing anything improper, so I don’t see how Kipnis’ decision to rely on Ludlow’s characterization absent any available denial constitutes wrongdoing under Title IX (as opposed to, arguably, poor journalistic practices).
2. Next, that as a matter of law a single essay by someone in a non-supervisory role in which the complainant was referred to anonymously and frankly almost tangentially could “intimidate, threaten, coerce, or discriminate against” Title IX complainants. The only way I can think of making this stick would be a “hostile environment” claim, which the caselaw is pretty clear has to be repeated and pervasive and cannot stand simply because of a single incident.
3. That Kipnis, in this case actually wrote the essay intending to “interfer[e] with any right or privilege” of the complainants secured by Title IX.
4. That the innaccuracies in the essay were, in fact, material ones that could have created a hostile environment, which would require them to be so egregious and over-the-top that they fundamentally changed the day-to-day “environment” in which the complainant existed. Simply being inaccuracies (even intentional inaccuracies) is not enough; retaliation under Title IX refers to something more specific than generalized bad behavior. It is not an administrative analogue to defamation, slander, or charges of unprofessionalism.
If any one of these is not credible then the claim as a whole is not credible. Personally, I find 2 and 3 especially to just not be credible accusations.
Suppose someone very publicly, and over your strenuous objections, claimed it was established that there was a consensual sexual relationship between you and your alleged rapist, while offering no evidence for this claim beyond the say so of someone found guilty of sexual harassment nor suggesting she had any. What would one make of that? Speaking strictly for myself I would be strongly inclined to think 1) this person has it out for me and/or 2) this person would rather write an inflammatory piece than an accurate one. If you grant me that the first response is a reasonable one, and you add that the author is a prof in the same institution where this went down, then I think you have the resources to see why suspicion of retaliation is not unreasonable.
Additionally, one thing that needs to be borne in mind in all this is the difficulty of speaking without opening oneself to a lawsuit. Such lawsuits, even if they are clearly going to be unsuccessful, can make life miserable especially for the financially vulnerable who lack the resources to get top-notch legal advice–adding to their fears and hesitancy to speak. In such contexts we should be wary of supposing that people are able to share with us all of their reasons for doing what they did.
I was open to the complaint until reading this. Violating–and this is an obvious stretch to bring up that as part of an action regarding federal law–the faculty handbook has nothing to do with Title IX. Getting facts wrong is not retaliation–even if they should have been fixed. Some things are obvious: Kipnis should have corrected her piece. But if the question is if this is obviously not a title IX, the essay answers it by not even bothering to go through anything in title IX or caselaw or precedent that would lead one to the conclusion the author wants to draw. The problem is we have a way of importing all manner of behavior into the law: the prison industrial complex is fed by bringing within the law all manner of behaviors that have no business there. Academic freedom means putting up with crappy ideas, even offensive ones (and Kipnis’s rather naive suggestions about professor-student relationships are well past their expiration date). But if the question is about Title IX, then leave it for those who use their power to abuse women or men.