From Colorado alum Annaleigh Curtis:
I graduated from the University of Colorado Boulder Philosophy Department in 2013. While there, I served as a student representative on the Climate Committee and Philosophy Graduate Student Co-President during AY 2011-2012. College Professor of Distinction Alison Jaggar was my dissertation advisor. I am currently a second-year law student at Harvard Law School. The following observations and opinions are my own and do not represent the views of any of the above people or institutions. I offer them in the hope that they will add a voice to the conversation on an issue of great importance to the academic world, not just at CU or Northwestern or Miami, and not just for philosophy. I also offer them in defense of Prof. Jaggar’s actions, which I believe have been unfairly maligned in Prof. Barnett’s recent claim against CU.
First, all faculty have a University-mandated responsibility to protect students against discrimination, harassment, and retaliation through mandatory reporting. Doing so is a legal and moral obligation, not meddling or stirring the pot. Note further that the value in reporting and investigating claims of discrimination, harassment, and retaliation is not limited to cases in which policies have been violated. Even if a particular claim turns out to be unfounded, the obligation to report all potential claims still exists.
Second, this particular retaliation claim was settled over the summer to the tune of $825,000 for the victim. As with any legal settlement, one stipulation was that CU did not admit any fault. However, I think this is a strong indication that the claim was not completely out of left field. The University took it seriously, as they should have. Any notion that the claim was unserious, even if one thinks that it ultimately should not have succeeded, further discourages students and professors from reporting issues that are already chronically underreported.
Third, an earlier inquiry likewise found that the initial investigation and report by the Office of Discrimination and Harassment (which has recently been renamed the Office of Institutional Equity and Compliance) was performed fairly and in line with CU’s legal obligations. In my opinion, this suggests that claims about blowing the whistle against that process were unfounded since it proceeded fairly and legally.
Fourth, Prof. Jaggar should be proud of her role in challenging what she believed were retaliatory actions. We should be calling on other professors to explain why they failed to do the same.
Annaleigh Curtis, PhD (University of Colorado, Boulder ’13), JD Candidate (Harvard Law School ’16)
Feminist Philosophers 
The third point is false. Ms. Curtis is apparently referring to the investigation by David Fine. But that investigation was after Barnett filed his report and it was not an investigation of the ODH’s conduct, but rather an investigation of Barnett.
WDM, I take it the public information on this suggests that Dr. Curtis is correct. The article she links to reads,
“Barnett wrote a 38-page report about the victim and sent it to the university, according to the notice of claim.
After receiving that report, the university hired Denver attorney David Fine to conduct an independent investigation into the matter, Huff said. The university will pay Fine $148,589.15 for that work, Huff said.
CU declined to provide the Camera with the results of Fine’s investigation, citing confidentiality around matters involving sexual harassment. For the same reason, the university also refused the Camera’s request for the 38-page report written by Barnett.”
And later the article further reports, “”At all points, ODH has acted appropriately,” Huff said. “An independent review by attorney David Fine supports this.””
This suggests that at least part of Fine’s investigation was into whether ODH was correctly understanding and acting on its legal obligations with regard to the initial investigation.
philodaria,
You’re right, the Fine investigation was BOTH into Barnett’s investigation and the ODH investigation. It is still true, though, that this was after Barnett filed his report.
A more detailed description of the Fine report can be found in the notice of claim that Barnett’s attorney filed […].
The implicit assumption in Curtis’s piece is, of course, that Barnett is guilty of retaliating against the female student. Were that not the assumption, Curtis–and all of the media surrounding this case–would not be justified in lamenting that Jaggar is named in Barnett’s complaint. Jaggar is not being named for the fact that she aided an alleged victim of sexual assault, but rather, as the report states, for wrongfully alleging that Barnett retaliated. Regardless of her former place in the department, Curtis is not in a position to know if Barnett is guilty, and I might further add that the standards of evidence used to “convict” him–both in the case of the ODH report and that of David Fine–use a preponderance standard that is far below the standards that any court of law, or indeed any philosopher, would use. Claiming that it is more than 50% likely that something occurred, or suggesting that a claim is valid because it isn’t “out of left field,” is a weak basis for real knowledge.
Over at daily nous, someone suggested that Barnett is not suing Jagger but only suing the university (and Jagger is named only as an employee of the university). I have two questions about this: (1) does it matter to the argument that he shouldn’t sue a colleague on grounds of defamation for making claims about whether his actions were unprofessional or potentially violate Title IX, and (2) is defamation law different when it involves the employee/colleague relation as opposed to just an isolated remark made on the internet?
Jennifer, I wish I could answer your answer, but I can comment on my own experience in filing an EEOC complaint. I took myself to be complaining about 3 individuals, but the formal complaint had to be phrased as against the university with the three as employees. In my case, they were all in offical positions, but since I was complaining about a present and a future chair, i’m not sure the official positions made much difference.
WDM, I’m not sure why you seem take that to be evidence against Dr. Curtis’s arguments above. The fact that the investigation was done after Barnett filed the report is natural given that he was complaining about the ODH’s conduct, and if the university wanted to treat his complaint appropriately, the natural thing to do would be to hire an outside investigator, just as they did, in response. That the investigation “found that the initial investigation and report by the Office of Discrimination and Harassment (which has recently been renamed the Office of Institutional Equity and Compliance) was performed fairly and in line with CU’s legal obligations. In my opinion, this suggests that claims about blowing the whistle against that process were unfounded since it proceeded fairly and legally,” doesn’t seem to be contradicted by it’s being completed after the report was filed.
Jennifer, it’s unclear to me that the claim made at Daily Nous is true. The notice of claim states that Barnett intends to assert claims he has against CU-Boulder and two of it’s employees. That reads like he’s planning to file suit against both the university and the employees (including Jagger), not merely the university, and in so doing, naming certain employees.
My understanding of the Notice of Claim is that he is only suing the University, but that Prof. Jaggar (not Jagger, a mistake the NoC also makes) and Chancellor DiStefano are named as agents of the University. Still, the NoC takes aim at Prof. Jaggar’s actions, which I felt merited a response.
Let me rephrase a point from my comment above: there’s something somewhat conventional about who gets cited in these legal notices, as far as I can tell. E.g., my EEOC claim had to be about the university with my real targets named as agents.
JCR,
I think you’ve misunderstood the point. There is an obligation–and value arises from fulfilling it–in reporting every possible instance so that it can be investigated by the University. This does not assume that everyone who has a complaint made against them is guilty, or that the person complained against here was guilty. Indeed, the whole point of having such an investigation is to determine whether University policies (and federal policies) have been violated.
use a preponderance standard that is far below the standards that any court of law
For what it’s worth, this is at least pretty misleading as put. “preponderance of the evidence” is that _normal_ standard in civil cases, so of course “courts of law” use that standard (in cases like the one that was the basis for the following events here) all the time. A higher standard is used in criminal cases, but this isn’t a criminal case.
Annaleigh,
I agree that there is an urgent necessity to report “every possible instance” of sexual assault. I think you’re missing my point, which is that Barnett’s claim states that Jaggar knowingly spread false information. That would be an act of grave misconduct, and certainly not of the same order as protecting a student. The defenses leveled in favor of Prof. Jaggar presume that Barnett’s claim is obviously false–a mere attempt to deflect blame. Given the lack of evidence available to the public I just can’t countenance the conclusions that you and others have drawn.
Whether or not we agree about the justness of Barnett’s claim, the implicit bias in your original piece stands, and is itself a form of sexism that assumes innocence or guilt based on sex. Should all reports of sexual assault and harassment be taken very seriously? Of course! Should men be presumed guilty simply because many men before them and many after them may be guilty? I don’t think so. Might evidence, facts, and superior standards of guilt–rather than gendered assumptions about victimhood and perpetrators–be a better method for protecting victims? Yes.
Annaleigh, let me ask you about the sum paid to the student. My experience as someone lodging a complaint, as a member of the faculty senate involved in university policy, and as a friend of people filing or being involved in filing is this: to some extent, decisions about settlements are based on best estimations of an outcome. And the board in a university investigating a complaint tries to estimate whether something illegal has indeed occurred and also what it’s fate at a trial would be. Finally, a trial is probably going to cost a hundred thousand dollars at least and outcomes are never very certain (this last is from my very experienced lawyer).
So we can ask what scenario was CU thinking was likely? Why did they settle for so much? The settlement was was way over the cost of a trial. One explanation would be that it looked quite likely that the student would win at the trial and the punitive damages could be very much in excess of $800,000++.
There’s another story about the university sending a message about being against sexual harassment. I don’t find that plausible. I mean, surely 400,000 or so would have done it. And universities, in my experience, are very well aware that when they give out huge sums they are sending a message to the local lawyers: We’re a really good target! Come and get us!
Opps, Annaleigh, I think basically I’m agreeing with your interpretation.
Let me also point out that it is now being said that CU’s lawyer says that Barnett only committed on small accidental bit of retaliation. What I understand is that Barnett’s lawyer says that CU’s lawyer says this, a very different matter.
I haven’t seen CU’s lawyer’s report. I hope it is confidential. Still, please someone correct me if I’m wrong about this.
JCR,
Nothing in my post presumes guilt. Nothing that’s been reported in the news about Prof. Jaggar’s actions or even anything in the NoC once you strip away the conclusory assertion that she spread knowing falsehoods suggests she presumed his guilt either. I am certainly in favor of fair adjudications and procedural due process; nothing I’ve said here suggests otherwise. I suspect you are giving it a motivated reading. Motivated how, I can’t speculate since you are anonymous.
Anne,
Yes, I think that’s a fair understanding of settlements. They are an expected utility calculation based on risk of continuing to trial and potentially getting a large judgment from a jury because they can more or less decide how to set the damages (not necessarily punitive damages, but possibly so). In an ideal world, both parties are best off settling since both have some control over the outcome. Of course, that’s an ideal construction of settlement, but that’s how it’s supposed to work. Re: the report by David Fine, I don’t think there is a publicly available version. I haven’t seen any version at all, I am just going based on the bit quoted in the Daily Camera article. The only other information about it is from the NoC, which obviously has its own version of events.
Annaleigh: If you’re not presuming that Barnett is guilty, what justifies you in saying that Prof. Jaggar has been “unfairly maligned” in Barnett’s claim? And you’re right that I’m “motivated.” I’m a feminist that has been shocked by how quickly and unfairly both Barnett and the male student have been presumed guilty in the media and in philosophy circles. To be accused at all is to be found guilty, it seems, and I can’t see how that’s a positive outcome for men or feminists.
Matt: I ought to have been more specific about civil/criminal standards of evidence, yes. And yet despite your defense of using the preponderance standard, I suspect that if you were accused of an act that you didn’t commit (for argument’s sake), were denied due process–i.e. even a mere chance to clear your name before guilt is assigned–by a group with secret proceedings, and after all of this were fired from your job and likely prevented from obtaining employment in the future, all of this based on the suggestion that it’s more than 50% likely that you committed said act, I suspect that your support for this standard of evidence would wane.
I suspect that your support for this standard of evidence would wane.
Well, I’m a lawyer (as well as having a philosophy PhD), and work in an area where preponderance of the evidence is used all the time (immigration law), so you can be pretty sure that you’re wrong there. The issue of due process (or its lack – something I take no issue on here) is a distinct one, and running it together with the standard of proof only leads to confusion. It’s possible (again, I take no stand on it here) that there are due process concerns here. But if that’s so, it’s independent of the fact that the standard of proof used was the completely normal one (not one that would be denied by any court, as you suggested) and not obviously inappropriate.
Point taken, Matt. Thanks for the additional information and clarification.
JCR,
The unfairness to Prof. Jaggar lies in being characterized by the NoC as someone out to get Prof. Barnett when all the information we have suggests that she simply fulfilled her legal obligations to report *arguably* retaliatory behavior. No one is presuming the guilt of the student or Prof. Barnett; that’s for the University to determine in line with its federal duties and subject to review by the courts.
I’d welcome some non-anonymous discussion, but to be honest I suspect that we already know each other and you’d rather not (or are unable to) have your name attached to what you’re saying.
Doesn’t the NoC describe behavior that goes well beyond Jaggar’s legal or institutional obligations? If those descriptions of her actions are true– the emails and conversations, in particular– she didn’t just email the relevant UC office to report a possible case of retaliation. If one does that and then keeps one’s mouth shut the odds of being sued independently drop significantly.
Phil: It seems to me that there’s a very important, highly contested conditional in your comment: “If those descriptions of her actions are true ….” I find many people objecting that those like Barnett deserve a presumption of innocence (true) and that we shouldn’t hastily condemn the accused. Should not Jaggar be extended the same courtesy? And yet, what I see around many of the blogs–although often through the veil of anonymity–is that those decrying the lack of due process for Barnett are happily vilifying Jaggar.
Of course, Barnett deserves due process rights, and we shouldn’t judge him before any procedures of justice have had their chance to work. But let’s not forget that some of those procedures have had a chance to work. Whether we agree with the outcomes is a different question. But there’s an important epistemic difference between judgments about Barnett’s actions compared to Jaggar’s. The latter has merely been accused; the former has been found by one procedure to have acted inappropriately. Of course, that’s a separate question from whether his behavior constituted “retaliation” under Title IX, and that’s also separate still from whether firing was the appropriate response to such a finding. But that is separate still from one’s judgment and opinion that he acted unprofessionally. I think from the stipulated facts of the matter, that’s an easy judgment to make. But that’s just my opinion.
I should slightly clarify my comment: I think that both the conditional itself is contestable (that, assuming the truth of the antecedent, then the consequent must be true) *and* whether the antecedent is in fact true.
Rachel, thanks for your reply. I want to make clear that I’m not vilifying Jaggar, nor am I assuming that the description of her actions in the notice of claim are true. I’m saying that the actions attributed to her in the NoC go well beyond simply fulfilling her obligations. I get the sense– maybe I’m wrong– that some people think *even if* the NoC is correct in describing Jaggar’s actions, Jaggar merely did what she is required to do *and* it’s bad that Barnett is suing Jaggar. I think both of those things are false.
There’s a separate question about the plausibility of the NoC claims. Some of them are about easily confirmed matters of fact known to both Barnett and the UC (e.g., emails, the contents of the outside investigator’s report). My intuitive guess is that it’s unlikely for Barnett’s lawyer to misrepresent those things (because so pointless to do so) but ymmv.
Does it go “above and beyond” the duty to report? It’s not clear how to unpack that. Does the duty to report mean a duty *not* to discuss a reportable situation at all with colleagues? I don’t know the answer to this. Do you? If you don’t, is it *obvious* then that her actions go above and beyond the duty to report?
There are many contestable points to your comments. Few to none of them are obvious.
You say–“Prof. Jaggar should be proud of her role in challenging what she believed were retaliatory actions. We should be calling on other professors to explain why they failed to do the same.” Isn’t it obvious what they would say? They didn’t do the same because they believed Barnett’s actions were not retaliatory. Rather, they thought he was attempting to rectify an injustice. I don’t see how that can be dismissed as a ridiculous or incomprehensible interpretation of his behavior, given what’s in Barnett’s notice of claim. So it’s not particularly incumbent upon other professors to explain themselves.
Phil: To be clear, I never said that you were vilifying Jaggar. Maybe you think there’s an implicature there. I don’t think there is.
Annaleigh,
You’re correct that we already know each other, and no, I do not wish to engage in a non-anonymous conversation.
I’d only add a final point, which is to highlight your sense that “all the information we have” points to the conclusion that Jaggar simply fulfilled her rightful obligations. Regardless of your former position in the department, and regardless of your affiliation with Prof. Jaggar, you might consider the possibility that you do not have all the information necessary to assume that Jaggar is being wrongfully accused. You might also consider that the information you do have is biased. If all the parties involved–and the media–had done this rather than assuming guilt or innocence based on _very_ limited and biased (variously, in favor of both “sides”) information, I suspect that the vitriol around the case would be much less. Instead of creating deeper dividing lines between so-called “radical feminists” and alleged “male perpetrators and enablers,” we’d be talking about real solutions to the various problems made evident by this case.
FP posted earlier a Daily Camera article which says:
“Barnett claims that Jaggar made false statements about him in the May 2013 email, which was sent to Forbes and faculty members Mitzi Lee, Robert Pasnau, Michael Tooley, Kathrin Koslicki and Carol Cleland.
In the email, Jaggar wrote about a meeting with those faculty members in which she expressed concerns about Barnett’s conduct.
She wrote that while looking into the university’s investigation of the sexual assault, Barnett questioned witnesses and then began telling philosophy faculty members a “tale” about what happened on the night of the assault. She wrote that he placed “much of the blame” on the victim.
In conversations with various people, Jaggar wrote, Barnett focused on the woman’s sexual behavior that night and how much she’d had to drink.” … The smearing of her reputation has hurt (female graduate student) very badly,” Jaggar wrote. “I am wondering if it could be construed as creating or contributing to a hostile environment. … I am also wondering if (Barnett’s) activities seeking to discredit (the student) might fall within (the Office of Discrimination and Harassment’s) definition of retaliation.”
Jaggar wrote that by raising her concerns about Barnett, she hoped to protect individuals “who may be especially vulnerable or even targeted because of their gender or race.”
“When women are victims of assault and rape, it is extremely common for their reputations to be smeared,” she wrote. “This is a major reason why victims often fear to report assaults.””
At least with respect to what is publicly available, I think we can safely say that Curtis (and her supporters, myself included) here is not jumping to conclusions in the absence of information. Granted, we have limited information–that’s certainly true, and very well worth pointing out–but the information I do have, including portions of the email in question, having read Barnett’s NoC, and the finding by the university’s outside investigator that Barnett did retaliate on the basis of a conversation with a colleague, suggests certain thing to me which are strongly in favor of the spirit of Dr. Curtis’s post.
Whether or not Barnett’s actions do constitute retaliation, it seems fully warranted for Jaggar to be concerned that his behavior may constitute retaliation. So we can set aside whether the independent investigation found that Barnett did retaliate under Title IX. More importantly–much more importantly, I think–it’s a fully legitimate thing to worry about what Barnett’s investigation would do to further damage the student’s reputation and further create a hostile work environment for her and her peers.
And yet this latter is not to say that it’s a bad idea that the ODH investigation was challenged. However, Barnett was totally inappropriate in how he went about it. Let’s not forget that.
Jaggar contacting the relevant office to express concerns about possible retaliation: totally the right thing to do. If, in fact, she talked to colleagues about it, sent emails about it, and talked to GS1 about it…that seems both foolish and wrong. At least my institution makes very clear what my obligations are and aren’t in such cases (for this very reason!).
Phil MC, at my institution (and my previous institutions) it is standard practice for a faculty member to contact folks who are not a part of the office which oversees Title IX issues if they were, say, contacting a department chair, members of a climate committee, and so on. If it was a graduate student who raised the concerns to Jaggar, she’d have to talk about it, at least to some extent. And if it were me, I would report it to the Title IX office but I would also feel an obligation to let the student know that I had done so.
Maybe I can add some helpful (non-private, yet otherwise non-notable) information here. The people Prof. Jaggar shared that information with were, to the best of my recollection, at the time, respectively, the Chair of the Department and the faculty members on the Climate Committee. So, as philodaria suggests, it seems entirely appropriate that she alerted them to the possible problem.
On Aug 7th we reported the Daily Camera as saying the the CU spokesman said, “We have established mechanisms with trained professionals who are in charge of conducting investigations,” he said. “Having non-trained, non-professional people conducting unauthorized investigations is not appropriate.”
I am inclined to agree with the spokesman. If a colleague were going around asking faculty and students about the night in question, I’d feel an obligation to tell others that they shouldn’t talk about such stuff. In fact, I’d probably feel that some of my colleagues were so used to sexualized discourse about women in the department that they would hardly notice that questions about a student’s sexual behavior on a certain night are VERY inappropriate.
I have no idea what Alison said, but I think that the importance of protecting students excuses her speaking to convey the gist of the very faulty behavior; what was done by her was probably more commendable than her waiting until she researched it more.
If I’ve got this right, Barnett is suing Jaggar because she sent emails to other faculty accusing him of engaging in retaliation (not for laying an official complaint about it). But I’m worried about this: imagine that the situation had gone slightly differently: Jaggar had raised her concerns, another faculty member had responded explaining that in their opinion, Barnett was not guilty of retaliation, and the matter had gone no further.
It looks to me like this would still be defamation, on Barnett’s terms: because Jaggar’s relevant behaviour in the two scenarios is exactly the same. But it seems to me that raising your concerns with a colleague – especially with a colleague who is on the climate committee – is exactly the right thing to do. It’s what I would do prior to laying an offficial complaint, if I believed there was grounds for it – because I would realize that I might be wrong, and that it would be a good idea to get a second opinion from a colleague who is involved with this issues in some official capacity, before laying a complaint that would likely trigger an investigation against another colleague who is possibly completely innocent if retaliation.
I certainly don’t think it would have been appropriate to involve the whole department, or something like that: but I worry that simply saying ‘if you do anything other than lay an official complaint in these circumstances, then you can be sued for defamation’ would have the result that people who are worried that a person is retaliating are deterred from consulting colleagues before laying an official complaint. And this seems like it would be bad from the perspective of the (alleged) retaliator, as well as from the perspective of the alleged accuser-of-retaliation. It would be bad because it would make it more likely that an official complaint – which us surely much more disruptive than a private discussion among colleagues – will in fact be laid.
AnonGrad: I suspect that’s right, and I suspect that Barnett’s case will be a big waste of his money.
Annaleigh and anon. grad student: thanks so much for the observations and info. In my university I think one is supposed to start with the chair, if appropriate, in this sort of case. After all, she isn’t complaining to the unit committee dealing with harassment issues on her own behalf. I wonder if she could even bring a charge through them.
it strikes me that somehow floating above much of the discussion of this case (not just here but in other fora as well) is a misunderstanding of what it is (legally and morally speaking) to retaliate towards those who make accusations of sexual assault or harassment.
Legally and ethically, retaliation of the relevant sort can occur without any special *intent* to smear, vilify, or otherwise cause problems for the accuser. *if* Barnett did anything of which he is accused, e.g., if he he asked about the accuser’s previous sexual history (!), he did retaliate, in the relevant sense (perhaps this sense doesn’t jive with how we ordinarily think of retaliation, but that’s irrelevant).
One (and only one) reason for condemning retaliatory actions, whether they are intended as such or not, is to prevent a very real chilling effect — many people do not make accusations because they fear their reputations will be smeared, their private and sexual lives scrutinized, or even their employment or permission to pursue a degree of study revoked. (I should know — I myself chose not to report not one but TWO instances of sexual harassment, bother *after* 2000, because of a very real fear of these sorts of consequences). Even if barnett’s intent was to clear the name of his own student, and not particularly to harm the accuser or to punish her for the accusation — he still *did* retaliate, *if* he did indeed ask about her sexual history.
It *STILL* amazes me how little philosophers understand of what constitutes sexual harassment (there are still people on the internet who seem to think you can’t sexually harass someone unless they explicitly tell you NOT to sexually harass them!) and now, what constitutes retaliation of accusers. Philosophers are just now catching up on decades of moral and legal theory on these topics… I swear that every single department needs intensive training on these topics. The ignorance on these matters is embarrassing, not to mention harmful.
Also, male philosophers need to understand where the feminist exasperation on harassment in the discipline is coming from. I’m going to go out on a limb and say that nearly ALL female philosophers have either themselves been sexually harassed or personally know one other female philosopher who has been (yes, i said *ALL*). Women frequently don’t tell their male peers about this stuff. In other words, the harassment that is reported is just a drop in a huge, huge bucket. If it seems that female philosophers are getting oddly worked up over one or two isolated cases, part of the reason for that is that these are *not isolated cases.* they’re utterly ordinary.
I’m not particularly familiar with that story, but it seems to me that Prof. Barnett is not blaming Prof. Jaggar for having raised the concern that his actions might constitute retaliation. Rather, what I understood when I read his notice of claim is that he is blaming her for making false claims about his actions when she raised this concern, which is not the same thing. Here is what Prof. Jaggar said about Prof. Barnett’s actions in an email to their colleagues, according to the Daily Camera article quoted by Kathryn Pogin above:
““Barnett claims that Jaggar made false statements about him in the May 2013 email, which was sent to Forbes and faculty members Mitzi Lee, Robert Pasnau, Michael Tooley, Kathrin Koslicki and Carol Cleland.
In the email, Jaggar wrote about a meeting with those faculty members in which she expressed concerns about Barnett’s conduct.
She wrote that while looking into the university’s investigation of the sexual assault, Barnett questioned witnesses and then began telling philosophy faculty members a “tale” about what happened on the night of the assault. She wrote that he placed “much of the blame” on the victim.”
From what I can gather by reading Prof. Barnett’s notice of claim, he is denying that he went around the department and talked about what happened that night. According to him, all he did was ask questions about what people said to the ODH, in order to determine whether its investigation had been fair. That may also have been wrong even if that’s all he did, but surely it’s not the same thing as investigating what happened that night and going around the department telling a tale about it.
Of course, I have no idea whether what Prof. Barnett said he did is true, but I just want to point that, if it is true and if Prof. Jaggar did indeed made such claims in that email, then it’s not clear to me that he’s not justified in blaming her. And, whether or not any of that is true, it doesn’t seem to be the case that he is blaming Prof. Jaggar for expressing her concern that his actions might constitute retaliation. It doesn’t mean that his complaint has any merits, since it may not be true that all he did was inquire into the ODH’s investigation and, moreover, even if that’s all he did it might still constitute retaliation (I have no idea), but I think we should be clear about why he is naming Prof. Jaggar in his complaint.
I would also like to make a remark about the fact that the investigator hired by the University of Colorado found that the ODH’s investigation had been fair. I’m not sure how much credit we can give this finding. Indeed, if what is said in Prof. Barnett’s notice of claim about this investigation is correct, I can’t see how it could possibly have been fair. In that document, Prof. Barnett alleges that it has grossly misrepresented the evidence in a way that obviously harmed the accused and neglected pieces of evidence that were in his favor.
If what he says is true, then it seems clearly incompatible with the fairness of the ODH’s investigation. For instance, he claims that the ODH summarized a witness’s testimony in a way that made it sound like he was concerned that GS2 might hurt GS1 and that he therefore had to physically separate them, while in fact (still according to Prof. Barnett’s notice of claim) the witness denies that he had such a concern, that he did such a thing and that he said anything to suggest that to the ODH. If that’s true, I just don’t see how the ODH’s investigation could have been fair, regardless of what the investigatir hired by the university found and whatever piece of information I’m certainly missing.
Now, obviously, I don’t know whether what the notice of claim says about that is true, but it seems to me unlikely to be false. Indeed, as was already noted by Phil MC above, the claims made in the notice of claim are so easily verifiable (you just have to ask the witnesses what they said to the ODH and compare that with the way in which it was represented in the latter’s report about the incident) that I can’t think of any reason why Prof. Barnett’s lawyer would have made them unless they were true. I’m not a lawyer and there may be things I’m missing, but this strikes me as a terrible strategy.
Anyway, like I already said, above I’m not familiar with the case and don’t know anything more that what has been made public, but this is what I wanted to say about that situation.
I’d just like to point out that asking witnesses specific questions about the alleged victim’s sexual behavior _is not_ the same thing as including witness testimony that alludes to the AV’s sexual behavior. The former is surely retaliatory, the latter, arguably not.
According to Barnett’s notice of claim, he only asked witnesses about how ODH accurately or inaccurately reported their original testimony. If one of the witnesses testified to behavior that might (wrongfully) be used to “slut shame” the AV, that onus of responsibility is on the witness, not Barnett. As the notice of claim states, Barnett’s objective was to include all the information that the witnesses gave, not to include or omit it selectively as both ODH and the “independent” report (paid for by CU, I might emphasize) allegedly did.
PL, I do see you are trying to be careful and fair. I am sorry to disagree, then, since I think that what Barnett said about witnesses after his investigation has little or no evidentiary merit. This is not because I think he is mendacious, but rather because he is not a trained interrogator. Further, my understanding is that he was a supervisor of the accused student, or at least in some way close to him. That makes him a biased untrained interrogator, even if the bias was only implicit and he had no awareness of acting on it. But those he talked to were aware of his relationship to the students, and I think it is an extremely good bet that they really, really wished they had said when they told Barnett they said. And indeed maybe they did say just what they told him they said. But I don’t think we know this.
Let me give you an example of what can happened in cases where one has a biased and untrained interrogator whose subjects know that the interrogator has a dog in the game, as it were. I have this from the dean who oversaw the whole thing: Prof. X was up for tenure and the department vote against him was something like 10-3 for him. However, there were also a number of lackluster letters of reference. Prof. A thought X should get tenure. He called up the refs with lackluster letters and asked if they really meant to write such things. Of course, they said “no” and recanted their letters. X got tenure eventually, by the way, though it was not just because of A’s actions.
JCR (formerly anon), I expect I am getting confused, but let me ask anyway. I read some of Barnett’s lawyer’s account. In it is a description of the young woman’s behavior on the night in question, and the following morning. It is very detailed and actually makes me feel very sorry for her that no one stepped in to stop the behavior of an out of control drunk young woman.
The thing I don’t get is how Barnett’s lawyer got those descriptions. Do they come from Barnett, who says he wasn’t there? One would suppose so. So how did he get them? There are all sorts of details. Did he get them from the witnesses? If so, then he had some extended conversations about the sexual behavior of a drunken, out of control student. I can see that Alison was not sure it was retaliatory, but honestly it was almost certainly a very damaging thing to do. I think that that would finish off the young women’s career at CU because it greatly diminishes the possibility that they can forget and move on. And not tell incoming students and faculty.
This is a guess on my part, of course, but nothing I’ve heard makes me think his actions clearly were not damaging. And of course, I may be wrong and I hope I am. But I don’t think retaliation has to be harm the agent fully understands. I’ve been through very similar stuff (though not about sex, thank god) with various people at my university that I brought up before the EEOC. And I have stressed here on this blog that anyone getting involved in legal stuff needs to have a lawyer, because one does not know necessarily how one’s actions can be viewed under the law, there is what from an outsider’s point of view seems to be a matter of conventionality, and so on. I don’t see Barnett’s lawyer’s after-the-fact spin is good enough.
Let me add that this isn’t my post, and I’m going to try to stay away. Actions last week mean that some of my earlier case is on the verge of re-opening. It’s all very upsetting, and I think I should let others conclude the discussion. I am sorry! Please object in comments if you think I should really answer for my remarks.
I am writing in to thank Annaleigh for her post. Annaleigh, I thing you’ve got it exactly right, and that Barnett’s having named Jaggar is not only absurd but also an act of desperation. Your dedication in responding to and defending the reasonable non-sexist view in response to some of the comments on this thread is admirable and speaks to your integrity, patience, and dedication. Can I have a some of your composure? :)
Thank you, Annaleigh, for your statement. I think you’ve got it exactly right. Your efforts in writing the statement and responding to comments posted here is really admirable. As a fellow former advisee of Alison Jaggar, I’m sincerely appreciative of what you’ve done.