So you complain about the harassment. Then what?

do note: the incidents described below happened 6-7 years ago. As the original post notes, there has been a lot of change at the Penn State philosophy department since then.

You’d think that if the department chair decides to take action, you would see the chair supported by the administration. But that’s not necessarily what happens in a university.

From Leiter’s blog:

A former Penn State department head filed a federal lawsuit against the university and two university officials, alleging that he was removed as philosophy department head for reporting discrimination and harassment within his department.

Mitchell Aboulafia, who was the philosophy department head from July 2003 to March 2004, filed a lawsuit against the university, College of the Liberal Arts Dean Susan Welch and former Associate Dean Ron Filippelli for a breach of contract, violation of the Pennsylvania Human Relations Act and violation of First and 14th amendments of the U.S. Constitution.

As of now, the link to the source of the above quote, along with a few other links, is not working, but there are more details in the post.

16 thoughts on “So you complain about the harassment. Then what?

  1. Owen, thanks so much. I note reluctantly that his complaint refers to past and current members of the department; that is of 2009.

    Unfortunately, universities really do act to support deans. I said to an administrator once, “Everyone acts as though the deans are told that it doesn’t matter what the faculty think of them, it just matters what the provost and president think.” The funny look that I got led me to think I had hit that particular nail right.

    Mind you, the dean in question was fired, so it is clear there were limits. I am not surprised that the university thinks this dean is still within the safe limits; she may well have contacted university counsel before she had him removed. The reasoning might have been quite pragmatic: if we act on the complaint, we’ll be swamped with law suits.

    This is all just awful. It makes me, and surely many others, sick to think of it; and of course we are way outside it.

  2. “The reasoning might have been quite pragmatic: if we act on the complaint, we’ll be swamped with law suits.”

    I suspect the opposite is true: they opened themselves to suits by *not* acting on the complaint.

    Once the university administration has been informed of a case of sex discrimination, they must take reasonable steps, otherwise they become liable for damages. So, until Prof. Aboulafia reported the incidents, the administrators and the university were pretty safe (“What?? we are shocked, *shocked* to find that there is discrimination going on here!”), and if they had just started up whatever procedures they have in place they still would have been okay. But by removing him from his post instead, they became legally responsible for further wrongful acts and exposed themselves to lawsuits.

  3. In a way I think that Jamie and Anne Jacobson are both right.

    Since Prof. Aboulafia was himself a University official I think they would have been liable to lawsuits at the point where he was told. If he’d done nothing the University and he could have been sued. (And insofar as Universities indemnify employees, they’d be on the hook for any damages from his non-report.) By dismissing him for reporting this (if that’s what they did – I don’t have a subscription to the second site to find out more of the facts) they would, however, be doing more things that would be actionable. So legally speaking I think Jamie’s basic point is right. They’re opening themselves up to more possible suits and suits for more egregious action.

    But Anne’s point might be not so much about liability if sued, but the number of lawsuits they’d be liable to get if the underlying complaints were publicized. And that could be true too.

    That said, these kinds of pragmatic reasons are the sort we hope people don’t act on, as natural as it is to consider them.

  4. We need to distinguish between theoretical liability and practical liability. Suing a university is hugely expensive. It usually depends on finding lawyers willing to work on a contingency basis.

    The availability of such lawyers may vary inversely with a university’s willingness to admit liability. Universities can typically outlast an individual’s resources and may also make it quite impractical for a law firm to take tham on. Equally, once the university looks like an easy target, lots of law suits will be filed.

    Or so I was told in my days in faculty governance, with an administration quite diiferent from our current one. And I can still see the sense in it. Unless one thinks there are objective truths about the issues, one’s going to approach them with a view strictly concerned with issues about liability.

    Of course, I do think in terms of objective truth about harassment, and I think the failure here is deeply related to a sexist, racist culture. But within that culture, universities may be playing a game we are largely ignorantt of.


  5. And the problem with lawyers working on contingency is that it is they in the end who decide when a case settles, not the plaintiff.

  6. Mark may be right about Prof. Aboulafia being an official for legal purposes. But in any case, he *did* report, so that’s not relevant.
    I believe that if Penn State started investigating when Prof. Aboulafia reported what he knew, they would have been in pretty good shape legally speaking. They must have a procedure in place for handling sexual harassment complaints. They were legally obligated to use it when informed, but not legally obligated to get the right answer. Following their own procedures wouldn’t have brought on lots of law suits, but rather insulated them from law suits.

  7. Jamie, I don’t understand where the insulation cames from, or quite what you mean by not being obligated to find the right answers. Are these connected?

  8. Oh, well, the university can’t be sued for breach of duty merely because (someone was guilty of harassment and the administration did not find them guilty). That’s what I meant by not being obligated to get the right answer.
    On the other hand, it can be sued for failing to implement its own procedures for investigating (say) sexual harassment once an official has been notified of a complaint.
    The duty is a duty to implement a reasonable procedure, not a duty to get the right verdict.

  9. Under Title VII there is also a prohibition on retaliation against anyone who engages in “protected activity”–like consulting, or reporting concerns to, an affirmative action officer.

  10. Jamie, I want to say again that we need to make a distinction here between “can’s”. You cannot just walk into a court and say I hereby sue the university for being bad. Notoriously, people who try to do it without professional help have a very low probability of success. One thing that people sometimes try is to go to the local press, which can work like a bomb, harming a whole lot of people you never intended to harm. Plus, administrations and boards of regents tend to consider that THE VERY ULTIMATE BETRAYAL, so one can suddenly find that one’s ability to do anything has come to a complete halt.

    Here’s a very different sort of case that illustrates the difference between having a legal right versus being able to pull it off in practice. I know of a case where a provost, who was quite religious, felt very strongly that faculty should not sleep with students. It was not against the statutes of the university, though. However, as he said, when he fired what he regarded as miscreants who slept with students, no faculty could afford to sue the university. I think the cases he fixed on were tenure-track ones, but still contracts were broken and procedures completely disregarded.

    So yes, the faculty could sue the university. But in another sense, no one could, in the sense of afford to. One person tried and lost lots of money.

    Another obstacle to successful suits is very sad: people lie. Even really nice faculty members will lie. The reasons for this are various. Amazingly enough to me, some people just value structures, and they will refuse to testify against someone if it will harm the structure. Others are covering themselves. That do not want to incur the wrath of the dean, for example. Or the dean lies, paper trails get broken, meetings never occurred, and so on.

    Finally, one really bad thing about universities is that in many ways they select for socially inept people who cannot act with much moral sense, or who are actually off balance and make up stories about people. I have to say that a couple of friends of mine have received totally factually fanciful letters about me.

    Let me be clear: I was last involved with university faculty governance at least two administrations ago, so I am not talking about the practices or policies of our current upper administration at UH.

  11. Anne, sorry, I don’t see your point.
    Obviously not every tort will attract an actual suit.

    But why would you think an administration decision that makes potential plaintiffs less likely to win would make them more likely to sue? That would surprise me. I would also be very surprised if university counsel instructed a Penn State administrator to act in such a way as to increase PSU’s legal exposure. I can guarantee you that Brown’s legal office would never, ever give advice like that. (I’m smiling just thinking about asking her.)

    My experience with this topic also comes from my time in faculty governance. I had a number of conversations with the university counsel and her underlawyers. I won’t go into any further detail, for I guess obvious reasons.

  12. @Jamie: it’s worth noting that Penn State’s attorney during the period covering Aboulafia’s case was Wendell Courtney (google him). Also that only 10 days passed between Aboulafia’s report to the AAO and his termination as head of the department, and only a week from the emails from the dean and associate dean reproaching him for going to the AAO and threatening his position as head for doing it. (This is all in the federal complaint behind the PACER paywall linked on Leiter’s site). Even if the dean consulted Wendell Courtney before firing Aboulafia, it’s hard to know whether an increase in liability would have been a concern (see link to Left of Centre site linked in Leiter’s post and also Courtney’s work for Penn State and the Second Mile in the Sandusky situation.)

  13. That’s interesting — I have to admit, though, that you are being a little too subtle for me.
    I googled Wendell Courtney. OMG, he’s a gynecologist! Oh, wrong guy?

    So, he was not actually the PSU counsel, because PSU (astonishingly) did not employ a university counsel, as I understand it (but does now). So maybe that means PSU had some other sort of legal advice, or maybe it means they had no legal advice at all for this sort of thing. But I am not getting the connection with the Two Mile Foundation (unless your only point is that Courtney might be an incredibly inept and unethical lawyer). And I don’t understand why it’s important that such a short time passed between Prof. Aboulafia’s report to the AAO and his removal from his chairmanship.

  14. I found (from an INCREDIBLY unlikely source) a well composed and well researched blog post that essentially outlines the link between homophobic organizations in which adults have “ultimate authority” over children and pedophilia. I think if more people understood the reality that pedophilia is incur able, dangerous, and facilitated by these organizations, more of them would come under scrutiny. Click here to read it for yourself .

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