Title IX: (Some of) What the AAUP Left Out (Updated)

The AAUP recently released a report on Title IX for a comment period (summary version here). There are two points in particular where it appears as if myth and speculation are presented under the guise of fact, and I think it’s incredibly important for the academic community to be clear on where things actually stand.

First, from the AAUP’s report on the issue of the Office for Civil Rights’ interpretation of Title IX as requiring sexual discrimination complaints be adjudicated according to a preponderance of the evidence standard:

OCR’s 2011 Dear Colleague Letter (DCL) went further, mandating an evidentiary standard that conflicts with due process protections of faculty and students. In a shift of enormous significance the DCL prohibited the use of the standard calling for “clear and convincing” evidence (highly probable or reasonably certain), and replaced it with a lower standard: that there need be no more than a “preponderance of evidence” (more likely than not) to assess sexual violence claims and all sexual harassment claims. The DCL explicitly noted that university procedures using a “clear and convincing” evidentiary standard were “not equitable under Title IX.” Although it marked a substantial change in procedures, OCR did not engage in the federal administration rulemaking public notice and comment process prior to issuing this 2011 DCL. The “preponderance of evidence” standard is a new mandate, however, even though the OCR describes the DCL only as a clarification of its 1997 and 2001 Guidances, which had followed federal rulemaking requirements.

The OCR has done more than merely “describe” the 2011 DCL letter as a clarification, though. Rather, Catherine Lhamon explained why the OCR believes the 2011 Dear Colleague Letter was not a substantial change of procedure as follows:

The standards outlined in the 2011 DCL stem from the Department’s Title IX regulations, including but not limited to, the requirement that educational institutions adopt “grievance procedures providing for prompt and equitable resolution” of complaints. Prior to the 2011 DCL, OCR had determined in letters of findings issued during multiple Administrations that in order for a recipient’s procedures to be “equitable,” they must use a preponderance of the evidence standard (i.e., more likely than not) to determine whether sexual violence has occurred. As OCR’s practice in these cases confirms, it is Title IX and the regulation, which has the force and effect of law, that OCR enforces, not OCR’s 2011 (or any other) DCL. OCR’s 2011 DCL simply serves to advise the public of the construction of the regulation it administers and enforces.

But, more to the point, if Title IX complaints were held to a higher standard than a preponderance of the evidence when other civil rights claims are adjudicated by exactly that standard, then it would follow that complainants would be held to a higher standard, i.e., disadvantaged, on the basis of sex, i.e., they would be subject to sexual discrimination.

Why are civil rights claims adjudicated by a preponderance of the evidence standard? Nancy Cantalupo explains:

Read More »

Guest post: Turkish academic in solitary confinement

An anonymous Turkish academic has sent the following:

Three academics were detained after they signed a petition to ask the government to  to stop the war in the South East of Turkey and start a process for peace. One of the three, Esra Mungan, is a professorrom the Psychology Department at Boğaziçi University in Istanbul.  A few days ago, she was put in solitary confinement for reasons unknown. One of her students translated the message she gave to a visitor.

Esra Mungan (Boğaziçi University): “(…) I am under solitary confinement in the same conditions as those who are sentenced to aggravated imprisonment. In the interrogation, they asked me about the 14 items that were published in the newspaper Akşam. They say that I received instructions from KCK (Group of Communities in Kurdistan). A real scholar does not receive orders from anyone. And that’s the reason why we are against YÖK (Council of Higher Education, the institution that is responsible for the supervision of universities and was founded after the coup d’état of 1980). We don’t take orders from anyone; we have been fighting against this for years. We don’t want the Council of Higher Education to control our institutions, we want to manage our own universities (…) For the first time in my life, I haven’t read for 50 hours. Being without books was a psychological torture for me. (…) I think about the classes of my students the most, I have 54 students. I teach memory. I miss my class a lot. (…) I am physically rested, yet broken down psychologically. I used to go to the university at 8 AM and I was the one who used to turn the lights off. What is important here is that my students are deprived of their right to education. I cannot teach my thesis students, their right to education is taken away. I teach 13 students at MA level. It was very pleasant but my students are left in the lurch. (…) I was educated in Germany from age 2.5 until 15. They constantly taught us about the Nazi period and how bad it was. As a result of my education, I learnt to say no to the things that I believe to be wrong in spite of the public opinion. In Hitler’s Germany everybody said ‘yes’ but it turned out to be wrong. This period reminds me of Hitler era in Germany. Freedom of thought is important; I don’t do anything that I don’t believe in. I have dealt with the issues of everyone, I have been sensitive, I tried to improve the conditions of subcontracted workers at the university.”

Other academics who signed the peace petition have already lost their jobs, some have been attacked by students or members of the public, and some are awaiting  investigation or trial. All are highly vulnerable and should not be named or contacted about this publicly by international supporters (unless they say so themselves).

In January four students were arrested for signing a petition in support of academics who were being investigated for signing the first petition.

For another story on the topic, go here.

Jason Stanley on the Free-Speech Fallacy

The focus of the piece is on claims by Jonathan Haidt and others who are part of the Heterodox Academy that academia needs to be diversified by the addition of conservative voices.  Stanley responds:

The political diversity at issue in the writings of Heterodox Academy members is the narrow spectrum between liberals and conservatives. These categories are occasionally used as if they naturally corresponded to “Democrat” and “Republican.” This bizarrely narrow view of political diversity conveniently fits into an argument to hire conservatives, but not Marxists or critical race theorists. “Liberal” and “leftist” are used interchangeably throughout their writings, as if there isn’t a feminist critique of liberalism. Where are the Marxists or feminists in economics, a discipline that is, according to Haidt, “the only social science that has some real diversity”?

In a 2014 paper published in the Harvard Journal of Law & Public Policy, Nicholas Quinn Rosenkranz, a Heterodox Academy member and professor of law at Georgetown University, decries liberal overrepresentation in law schools. But again, most feminists, Marxists, and critical race theorists do not identify as liberals, and law schools notoriously lack advocates of these standard leftist positions. This failing of political diversity is rendered invisible by the partisan setup of this research program.

Disturbing restriction on UK government funding

Chris Bertram writes:

Unless ministers grant specific exceptions then, government grants to bodies like the Institute for Fiscal Studies and the National Institute of Economic and Social Research to conduct research into policy, must not aim to “influence legislative or regulatory action”. The same would go for university-based researchers in receipt of government money vie HEFCE or the Research Councils. Still more absurd than this is the picture that emerges when the clause is combined with the government’s own “Impact Agenda” which forms part of its “Research Excellence Framework”. Under this, university researchers who apply for grants are required to demonstrate “impact” which may include influencing government policy, but it will now be a contractual condition that you may not do this thing that you must do.

Trigger Warnings

There’s been a fair amount of discussion of trigger warnings recently (well, for months now, but especially over the last few weeks) in the media. As the academic year begins, and syllabi are on our minds, the debate is unlikely to go away. My own view is that this entire conversation has been poorly (perhaps, not accidentally) framed. We would do well to avoid false dichotomies that undermine the interests of both purported parties to the debate. That is, the division on this issue appears to be largely between professors and students. It’s the case of Academic Freedom, Intellectual Tradition, and Good Sense, et. al. vs. Entitled, Sensitive, and Zealous Student Activists Who Need to Toughen Up — except, I don’t think it really is.

The AAUP’s report on trigger warnings raises a number of concerns regarding trigger warnings. Among them, concerns of conflict with academic freedom insofar as faculty may be pressured or required to include trigger warnings on their syllabi against their own pedagogical judgement, concerns that students will be encouraged to lodge complaints if a course covers material that they find offensive, concerns that faculty will be held responsible for student trauma, concerns that trigger warnings serve to stifle discussion, and so on. It is interesting that trigger warnings elicit such a plethora of worries and spark intense disagreement when the practice of advising discretion or offering notice of content is more widespread. Lindy West suggests that “trigger warning” might be operating something like a dogwhistle now:

Back in early July, comedian Jimmy Fallon tripped on a rug in his kitchen, caught his wedding ring on the counter as he fell, and suffered a gruesome injury called a ‘ring avulsion’– basically, a medical term for ripping your finger off. Fallon spent 10 days in intensive care and came close to losing the digit, which, unfortunately, most ring avulsion sufferers do. Explaining his massive white bandage when he returned to his late-night show weeks later, Fallon warned: ‘If you Google it, it’s graphic. So don’t Google it’ . . . Odd that the anti-free-speech brigade isn’t up in arms about announcements such as Fallon’s – surely he, too, is “coddling” his audience, withholding valuable ‘exposure therapy’ for avulsion victims and infringing on Google’s free expression. It’s almost as though, coded as feminine and largely associated with rape victims, the antipathy toward trigger warnings is about something else entirely.

Even if West is right, not all of the dissent on trigger warnings is reducible to bias.  I think the most pressing concerns, though, are not in fact concerns about trigger warnings themselves, nor are they fundamentally concerns with student requests for them. They are, rather, at root concerns borne out of the corporatization of the university. Where administrators view students as customers and respond to conflict on campus by way of risk-assessment both faculty and students are worse off; but this isn’t students’ fault and it doesn’t entail that students have no place in discussions about curricula and pedagogy. In fact, this self-same administrative strategy  has greatly contributed to the traumas associated with sexual misconduct amongst students, one of the most salient phenomena requests for trigger warnings are a response to.

As we grapple with administrative creep — with this risk-averse financially-minded way of living together as an educational community increasingly being woven into the fabric of university life — I think it would be a mistake for faculty and students to forget that the sharpest division in the trigger warning debate is an artifice of someone else’s making. Students are (rightfully) frustrated that public relations, athletic titles, and protecting the university brand so often come before student safety.  Likewise, faculty are (rightfully) frustrated  with administrative overreach into their classrooms, their research, and the very structure of faculty governance. When we consider the background dynamics of the trigger warning debate, it seems to me that there is more in these frustrations to unite students and faculty than there is to divide them. Without the fear of administrative creep, disagreement regarding best pedagogical practices would surely remain, but what issue is free from disagreement in higher education? It’s in the context of the neoliberal, corporatized, university that controversy encourages censorship (self-censorship, or otherwise) and that trauma can be exacerbated in unique and challenging ways.

As Aaron Hanlon explains, trigger warnings themselves are meant to encourage greater engagement with a broader range of material rather than discourage it.

I use trigger warnings in the classroom as a way of preparing students who may be suffering from post-traumatic stress disorder while also easing the entire class into a discussion of the material. The thinking behind the idea that trigger warnings are a form of censorship is fundamentally illogical: those who offer warnings, at our professional discretion, about potentially triggering material are doing so precisely because we’re about to teach it! If we used trigger warnings to say, effectively, “don’t read this, it’s scary,” then there’d be no need to warn in the first place; we’d just leave the material off the syllabus.

Trigger warnings are not the end of controversial material in the classroom; they are a new beginning. A way for faculty to reach out to students, who might otherwise struggle, as partners in an intellectual journey into risky territory. They may well have their pitfalls, but perhaps some of the surrounding frustration has been misdirected.

James Rhodes, on the importance of bearing witness

“It’s important to bear witness, but also it’s important to give a message that bad things happen and we don’t lie about it, we don’t hide it, we don’t pretend it hasn’t happened, we don’t do everything we can to remove every piece of evidence that it happened, to erase the past.”

This is from an interview regarding his legal battle to publish a memoir in which he discusses his experience of being sexually abused as a child

But, he says, it’s also “a book about music. It’s a love story, it’s a book to Hattie, my wife, who’s the greatest thing ever. It’s a book about my son, about composers, about the extraordinary lives that these composers and musicians lead, it’s about all the things that are important to me. I don’t ever want this to be ‘the guy who was abused as a kid’, any more than I want, ‘this is the guy who’s a Pisces. This is the guy who’s 5ft 11in … 10½ … I live in Queen’s Park, I’m married to a woman who is a 10 when at best I’m a five and a half or a six on a really good day, I play the piano. . .

Last year, his previous wife took out an injunction against publication, on the basis that to have these “toxic” details in the public domain would harm their son. This was rejected in the first court case, but upheld on appeal, and in an elaborately restrictive judgment. “It ended up being a bunch of judges having editorial control over what I said. Literally to the point where I wasn’t allowed to use graphic language or vivid and colourful descriptions. I could use the word ‘rape’, but I couldn’t use the phrase ‘getting raped’ … ”He pauses, and recalls: “The shock of being told, in effect, you can’t say that. Not only can you not write it in a book, but we are trying to gag you from speaking anywhere in the world on any medium – on Twitter, in interviews, on TV – about not just sexual abuse but mental illness. Can you imagine? I wouldn’t be able to tell you now that I’m in treatment for mental illness without being threatened with imprisonment, had this been successful.”

Thankfully, he won in court. You can read the full story here.

Civility v. Freedom? Or something else?

Daily Nous reported that Marquette University is seeking to fire McAdams, and discusses academic freedom in a separate post here. Further discussion of these events is taking place at the Academe Blog (the blog of the AAUP, though its bloggers note the posts may not represent the official position of the organization):

Competence and integrity “in the current case,” as Holz puts it, demand that McAdams refrain from “sham[ing] and intimidat[ing] [a graduate student teacher] with an Internet story that was incompetent, inaccurate, and lacking in integrity, respect for other’s opinions, and appropriate restraint.” In Holz’s telling, McAdams need not exercise appropriate restraint because doing so would foster a more civil discourse—that would be the deeply problematic civility narrative. Rather, he needs to do so because this is how you help graduate students develop as teachers, a key part of faculty members’ jobs at a university: “it is vital for our university and our profession that graduate student instructors learn their craft as teachers of sometimes challenging and difficult students.” Whenever faculty choose to take an interest in graduate students’ teaching, those student instructors have a reasonable expectation of “appropriate and constructive feedback in order to improve their teaching skills.” McAdams made no effort to offer constructive feedback before or after condemning Abbate as a teacher, by name, on his public blog.

After listing several incidents of a similar flavor, Holz concludes that “with this latest example of unprofessional and irresponsible conduct [Marquette has] no confidence that [McAdams] will live up to any additional assurances . . . that [he] will take seriously [his] duties to respect and protect [Marquette] students, including [Marquette] graduate student instructors.”

. . .  Academic freedom is a license to say whatever one please in one’s research and non-institutional, extramural communications. It needs to remain such, as this license guarantees the very possibility of inquiry. And there are of course grey areas, where the limits of academic freedom are unclear. The AAUP often intervenes in these areas in the service of protecting speech rights—and rightly so. Defending faculty speech rights makes the project of a modern university possible. But so does helping students develop.

It is true that, as a matter of principle, the academic freedom central to the very idea of a university trumps civility. But McAdams’ is not a case of academic freedom under siege. His is a case of an abusive professor persistently, up to the present day, refusing to acknowledge any special obligation to the development of a graduate student at his university.

We only harm ourselves in working to add this sorry story to the record of CIVILITY v.FREEDOM.

Jonathan Chait embraces extended notion of silencing

There are many things to be said about Jonathan Chait’s recent article attacking Political Correctness, and Lindsay Beyerstein says most of them, incredibly well.  But what I want to talk about is a small, fascinating fact. This is that he has embraced one of the more controversial ideas of 1990s feminism– that speech can silence other speech, and in ways that are so difficult to fight that a free speech advocate should be concerned.  Not all of his examples are like this– as Beyerstein rightly notes, a couple of them are examples of vandalism and theft on the part of leftists.  But I’m interested in the ones that are.

First, some background.  Feminist critics of pornography like Catharine MacKinnon, Rae Langton and Jennifer Hornsby have famously argued that pornography can silence the speech of women. There are lots of ways that this claim can be criticised (and I myself have criticised Langton’s version of it). But one of the most standard sort of criticisms is to insist that women aren’t silenced– that they can and should fight back through speech. It doesn’t make any sense, this line goes, to suppose that speech can silence in the way that they suggest. (Though of course even those making this argument acknowledge that speech in the form of censorship laws can silence.)

Often, the debate between “free speech” proponents and their critics is cast by free speech proponents as a conflict between those who think all speech should be seen as contributing to the free flow of ideas (defenders of free speech) and those who make the misguided claim that some speech silences, and thus works against the ideal of free speech. That’s what Chait at first seemed to be doing in his article. But then he turned his attention to those who “call out” microaggressions, and gave extended examples of how this sort of criticism, especially online, can have a silencing effect. He also discussed the case of a writer who felt silenced by an outpouring of online criticism of her views. In these discussions, he was clearly taking the side of those who felt silenced by speech of others. And he was clearly outraged.

This move of Chait’s is interesting as it means that in his case both sides are in agreement that speech may be silencing in such a pernicious way that one shouldn’t just shrug and say that more speech is the remedy. The disagreement, then is simply over which kinds of speech are of this kind. And a fascinating fact about Chait’s article is that the kind he is critical of is actually the kind that “free speech” advocates usually consider the most untouchable– substantive political criticism.

(I think there’s a huge amount of interesting work to be done, by the way, on ways that “calling out” can silence, and on the issue of when such silencing is problematic and when it isn’t. I don’t have settled views on this. But I’d rather not get into that in comments.)

Is civility a professional error?

A guest post from MM McCabe

Amid the debate about academic freedom which has been in the professional news recently, there has been a parallel discussion about the nature and importance of ‘civility’. It is a category mistake (as I have argued) to take civility to be the converse of academic freedom. But some have argued that civility is still a professional error: that we may or even should use uncivil language and a hostile stance at times in dealing with opposition and criticism. And the demands for incivility are heard more acutely when we face attack on our very institutions and seem to be fighting for our academic lives.…..

Begin, however, with the ordinary case. In the corridor or the classroom or the seminar, civility is at least an aspiration – that we speak and listen to each other in a civil manner: it is an aspiration within an existing community – hence the political overtones of the word. Why should we bother? Civility is an attitude displayed in the content of what one says, revealed by tone or linguistic choice, but it is fundamentally an attitude to another person – of taking them seriously, of treating them with respect and care, and without prejudice. This, I take it, matters intrinsically – just because whatever enterprises we are engaged in, we are engaged together. This explains the shock and outrage and the sympathy for its target when civility seems to be cast aside.

But civility matters practically and instrumentally, too. For discussion – not only in philosophy, but perhaps philosophy is a paradigm case – is a fragile thing. In its full sense it relies both on each party’s having the confidence to speak without hesitation or fear and on each party’s ability to listen to the other. Shouting, of course, precludes listening; and so does its behavioural counterpart, incivility – where the damage may be done at a distance, or over a length of time. For these are exercises of power; and they distort and damage and stunt each party over time. (As a young graduate student, in seminars with an array of philosophical heavyweights, I said not a word in public for years; and the sense, both of terror at speaking up, and of hubris in daring to think I have something to say, has remained with me ever since, only overcome, regrettably, by a natural garrulousness). The wielding of power is bad for each party; both the silenced and the speaking end up with a view of what they each think that comes from their squinted sense of themselves, rather than from some better assessment of what they (might have) said. That is bound to limit what we think about – since some stuff never gets said; and some gets said too much. And it is bound to limit us.

For all this has both a narrowing effect and a broadening one. Incivility relies on an assumption of being right; and that assumption itself may make a speaker risk-averse (this is the Mastermind syndrome – you too can be a specialist within a vanishingly narrow scope…) or pontifical everywhere (this is the God syndrome – to which both those who believe in a god and those who do not are prone…). Both syndromes affect both parties to a discussion where the balance of power is out of whack: but they are the assumptions of power, not of careful inquiry.

For the hearer, civility has an obvious epistemic advantage, that it does not tempt us to accept beliefs whose warrant is sustained only by force majeure; it allows us to see the limits of expertise or authority; and it encourages us to think that we too might have something to say. Moreover, in eschewing particular attack, it allows us to turn our attention better to what is impersonal and abstract; it has that instrumental value.

For the speaker (or the writer) it may be hard to remember that we might be wrong, or that we could think again, or that others might have thought about the same things too; and in the grip of a passionate conviction it is especially difficult to make oneself look at the passion from the outside, from the perspective of another, from the abstract stance of the discussion itself. But discussion gives us these other perspectives: if we are able to listen, then we can think about what we think is different ways. If we are sure we are right about something, we can surely afford the patience to listen to a different view; and if the different view is worth hearing, then perhaps we are not so right after all. But that sense of perspective arises only if the other party to our discussion is able, not only to listen, but also to speak. Listening, if you like, goes both ways; and each of us has to have courage to speak, as well as the patience to hear, if the deep intellectual benefits of discussion are to be reaped. That courage can be very hard indeed to find. Civil exchanges, where the exercise of power is absent, are one condition for finding it.

Civility is hard, though: it is easy indeed to feel oneself under threat and to respond without hesitation, seeking to defend ourselves. This escalates – one remark construed as uncivil provokes another and another; and then the history of the offence is just repeated and rehearsed. This is the rhetoric of the playground, of ‘she said, he said, she said…’, the endless recapitulation of grievance, the constant repetition of what was done, by whom, to whom, and under what provocation. Such disputes, legalistic in their detail, may be not only interminable, but utterly indeterminate, since the original offence is often lost in the retelling itself. Both parties, of course, take themselves to be in the right, and to have behaved impeccably. Either may be right. But in such a situation, remember Jarndyce v. Jarndyce: we are all the poorer for it (apart, perhaps, from the Court of Chancery). Return, then, to the nature of the aspiration to be civil. The prospect of restoring good will and the possibility to speak and to listen together demands that the endless detail is, at last, abandoned. The future of collaborative discourse is more important than its past.

In all of our exchanges, perhaps, we fall short: civility is under construction, but it continues to be an aspiration. But there is still a question of the role of rage: are we never right to express fury, or righteous indignation? Communities, after all, are not only the place for polite discussions of an afternoon in the study, but the locus of structures of power, places where wrongs can be done and go unnoticed or unprotested. When that happens, there is another demand upon us, a different kind of courage called for – the courage to protest, to object, to stand up for one party against another – a courage that is demanded even where there is no risk of physical harm. So in counterpoint to the aspiration to civility, there is a proper demand to call out wrong, and to insist on expressing disapproval or disdain or condemnation. This may be a case, merely, of objecting to a wrong; or a protest against the improper wielding of power. (It should not, I think, for all the reasons above, simply call out an intellectual mistake – accusations of stupidity promote the wretched ‘smartness’ competition). Such a protest may indeed express other responses than civility: anger is the properly moral emotion in response to some appalling injustices. And that rage may be, not only about the content of the injustice, but directed against the perpetrator – after all, we regularly think that there is a connection, sometimes, between the views that someone holds and their moral character. As so often, there is a matter of fine judgment here between the demands of moral indignation, and the demands of attentiveness; and this, we might think, works within any community, whatever its boundaries. But once again there is a difference of category: moral indignation may be a moment or a stance against some particular offence; but it should not be a general attitude, nor a repetitive trope, nor, indeed, a policy. Instead, in general, civility serves us well; for it underpins the virtues that promote freedom of inquiry: modesty, a sense of community and intellectual courage.

Academic free speech and the academy: an informative approach

Mary Margaret McCabe has a thoughtful post on free speech and civility. She argues that there is a pragmatic inconsistency in letting civility trump free speech in the academy.

If academic institutions exist for the pursuit of knowledge and understanding, whether alone, or with colleagues, or with students, such inquiry does not say in advance what may or may not be thought, or considered or assumed or believed. Socrates’ injunction to follow the argument where it leads is surely the right one: inquiry is not constrained by canons of what can or cannot be said or thought. This is true, at whatever level the inquiry occurs. So an inquiry into inquiry is similarly unconstrained. Equally, an inquiry into how inquiry should be institutionalized is free in the same way. The context of inquiry, that is, is a suitable topic for inquiry too – the openness runs across fields and up the orders, to include, of course, the inquiry into academic freedom itself.

If that is right, then the basis of academic freedom is internal to the nature of academic business.

What about civility? Aside from cases of the impossible interlocutor, one who will not listen, civility is something to which we academics should aspire:

Civility is an important aspiration in the context of inquiry that is free in the sense I outlined. For free inquiry occurs between and among people; and people are over and over affected not only by the content of what is said, or even the general import of what is said, but also by its manner and its tone. Loud and fierce declarations of opinion often force an interlocutor to be silent, or to be afraid; in such cases civility is clearly conducive to an effective and productive exchange of ideas.