Laura Kipnis a professor of film at Northwestern University, recently became entangled in allegations that she had engaged in retaliatory behavior under Title IX of the 1964 Civil Rights Act. So what did Laura Kipnis do that resulted in her being charged with retaliation under Title IX? There is no evidence that she held anyone’s grade hostage, withheld a letter of recommendation, threatened anyone, told anyone not to file a complaint or engaged in any of the behaviors normally associated with the word retaliation. She did not reveal any confidential information. What she did do was write an essay criticizing the University’s new policies prohibiting student-faculty dating and commented on the details of publicly known cases at Northwestern as well as other Universities.
The essay is written in an engaging, provocative and polemical style that is critical of what in Kipnis’ opinion is the melodrama embedded in the assumption that students are the powerless victims of professors.
“It’s the fiction of the all-powerful professor embedded in the new campus codes that appalls me. And the kowtowing to the fiction—kowtowing wrapped in a vaguely feminist air of rectitude. If this is feminism, it’s feminism hijacked by melodrama. The melodramatic imagination’s obsession with helpless victims and powerful predators is what’s shaping the conversation of the moment, to the detriment of those whose interests are supposedly being protected, namely students. The result? Students’ sense of vulnerability is skyrocketing.”
Later in the same essay she argues:
“Among the problems with treating students like children is that they become increasingly childlike in response.”
This essay was then followed by a tweet:
“It's a problem that "trauma" is now deployed re any bad experience. And dating is not the same as rape!”
What makes the article all the more intriguing is that Laura Kipnis is a bona fide feminist, and not, to borrow her phrase, some bow tie wearing neo-con. But that doesn’t stop some from labeling Kipnis as an anti-feminist out to destroy Title IX.
For the record, contrary toAmanda Marcotte assertions, Laura Kipnis is not against enforcement of Title IX and she self identifies as a feminist. A cursory review of her academic accomplishments show that she has in fact been a fairly active scholar on advancing at least one type of feminist viewpoint in film and popular culture.
Fortunately, for Kipnis, an investigation conducted by an outside law firm found that there was not a preponderance of evidence that she had engaged in retaliatory behavior.
Butthe investigation and the events surrounding it were in and of themselves bone chilling. And no, this is not a one off exception or part of a campaign to destroy Title IX. It’s part of a pattern of abuse of Title IX directed at individuals or examples of behavior that sometimes have nothing to do with Title IX. This does not mean that there are not examples where Universities, tasked with the impossible job of substituting for law enforcement, have not dropped the ball. The fact is that the debate about Title IX on University campuses is a bit more complex than simplistic narratives on either side acknowledge.
But in this particular instance a group of students marched on the President’s office, carrying their mattresses to demand swift condemnation of Laura Kipnis’ article. This was followed by complaints that Kipnis’ had engaged in retaliation against students for filing Title IX complaints. Kipnis’ was required to submit to an investigatory interview with two attorneys. Her support person was not allowed to participate in the interview and when her support person raised concerns about due process in the Faculty Senate, he himself became the target of allegations of retaliation. Never mind that part of the task of a Faculty Senate, when there is not a collective bargaining agreement in place is to defend academic freedom and due process. During the investigation Kipnis was warned not to speak about the investigation.
But at the same time Lauren Leydon-Hardy a graduate student in another department pronounced Kipnis’ guilty of violating Title IX and Northwestern University’s Faculty Handbook and strongly implied that Kipnis was guilty of retaliation.
“In view of Kipnis' refusal to correct the factual inaccuracies in her piece, and as the misleading narrative propagated by her began to reverberate across multiple media platforms, at least two students filed Title IX retaliation complaints against Kipnis. Because, when a professor writes about your Title IX sexual assault complaint in an erroneous, misleading, and condescending way, that pretty straightforwardly raises questions about retaliation under Title IX.”
In addition, Hardy excoriated the
the University President for an op ed defending Kipnis’ right, and the right of others to engage in First Amendment expression.
There are several issues here.
Firstly, there is the matter of the “factual inaccuracies”. Reportedly, Kipnis’ still faces charges that she violated a provision of Northwestern’s faculty handbook that gives her the right to be free from institutional censure when she engages in speech outside the performance of her duties but simultaneously requires her to insure accuracy in her statements. This is based on the AAUP statement on academic freedom and academic responsibility. But to charge Kipnis with violating the faculty handbook or the AAUP statement is an abuse of this provision.
The current version of Kipnis’ piece contains editorial corrections and the corrections are noted at the bottom of the article. The corrections at the bottom do not support the assertion that Kipnis deliberately or recklessly misrepresented matters. Instead, the corrections revolve around interpretations of the record of public documents. They are the sort of disagreements that form the basis of a substantial amount of academic discourse. What Kipnis’ opponents could do if they believe she is in error (beyond writing her e-mails and demanding she adopt their point of view or publicly accusing her of wrongdoing) is offer to debate her publicly. Of course, marching on the President’s office with mattresses and demanding swift condemnation is a form of free expression in and of itself.
Secondly, this case illustrates how Title IX is sometimes misused nationwide. Don’t misunderstand me please. There is a need for Title IX and for enforcement of all anti-discrimination laws on college campuses. Credible allegations of sexual assault, sexual harassment or any other form of violence or discrimination should be fairly investigated and addressed. Those found guilty of sexual assault should be expelled and it is clear that Universities have done a terrible job of addressing the issue. But in fairness to Universities people are demanding that Universities investigate and adjudicate allegations of criminal misconduct.
Then there is the matter of the conduct of these investigations themselves. Here the matter becomes more murky and complicated as what we normally think of as basic due process does not necessarily apply in the workplace-except when it does. Tenured faculty, and in some instances untenured faculty and University staff are not employees at will. Termination of faculty, and even staff, in many instances (but not all) requires showing of just cause. For the record, Kipnis is tenured. Students at public Universities are always entitled to due process. But campus disciplinary procedures are not courts and so Universities grapple with trying to define what a fair process is and is not. This does not change the fact that at a minimum due process demands that the burden of proof lies with the accuser and that conviction and the imposition of a penalty requires evidence. How much evidence and what kind to large degree is what is being debated today.
The Department of Education insists that the standard should be the standard normally employed in Civil Courts: preponderance of evidence. But this ignores the fact that in Civil Courts there are clear procedures and rules of evidence which are often lacking on University campuses. And even if these rules of evidence are present, these cases are seldom adjudicated by attorneys. Moreover, the standard for discipline, at least as far as Union contracts is concerned is “clear and convincing evidence”. And here again, the standard for what counts as admissible in an arbitration hearing is much more lax than what is required in a civil court. And as long as there is due process the fact remains that the guilty will sometimes walk. The alternative is to convict and deny an education or employment at the whim of whoever hears the case. But let’s be clear: Kipnis’ was not accused of sexual assault or rape. She wrote an essay. There’s a difference.
In Kipnis’ case I lack knowledge of what specific procedural protections are outlined in her faculty handbook. In non-Union environments employers may have the right to silence support people or prohibit legal representation and are often able to get away with running roughshod over faculty handbooks. If you’ve got a spare couple hundred thousand you can hire an attorney to enforce your rights. Just because Universities can abridge their faculty handbooks or deny representation legally doesn’t make it moral or right to do so. And it is far from fair. In a Unionized environment matters may be different: grievances can be filed and you can go to arbitration but that won’t necessarily stop a University from trying to claim that since its Title IX they don’t have to follow the contract. And when you can declare even cases that are not remotely about gender or sexual misconduct Title IX investigations then you can conveniently excuse yourself from worrying about that pesky Collective Bargaining Agreement. And if you are a Union member and believe you have rights under your Collective Bargaining Agreement then you had best hope the arbitrator will agree.
So the fact remains: when you are hauled before outside attorneys or an investigative panel, stripped of rights, accused of misconduct for exercising academic freedom, or simply threatened with a Title IX investigation for conduct entirely unrelated to Title IX or for exercising your academic freedom to criticize Title IX there is a substantial chilling of discourse. When you are denied representation and told who your support person can and cannot be then it is in fact a Kangaroo court and witch hunt. It doesn’t matter whether or not you are disciplined. You may save your career and keep your job. It may be the case, as I suspect it was in this instance that the University felt that legally it had no choice but to investigate. But that doesn’t bring back the sleepless nights and the time and energy devoted to fighting baseless charges.
Disclaimer: the views and opinions expressed in this diary are the views and opinions of Citizen Rat acting solely as a private citizen entirely outside the scope of any of his official duties. This diary was written at home, on my own time, on my own computer using my own internet connection. For the record, though I am opposed to bans on student faculty dating I do not agree in entirety with the views expressed by Laura Kipnis on student-faculty relationships. Obviously however, whether I agree or disagree with her is beside the point. The point is that she is free to speak out and express her views free of institutional censure.