Feminist Philosophers

News feminist philosophers can use

Another Pogge story May 24, 2016

Filed under: sexual harassment — jennysaul @ 1:08 pm

From Delia Graff Fara, at Leiter.

I had a mildly unpleasant experience with Pogge when I was a senior undergraduate at Harvard and he was a visiting professor who stayed in my “house”, Harvard’s equivalent to residential colleges at Princeton and Yale. (I lived in Cabot House.)

In brief, I was having a meeting with Pogge during and after dinner in our dining hall to talk about Rawls and Rousseau, the subjects of my senior thesis.  He kept me talking for longer than I felt comfortable with.  It was night and the dining hall had long since emptied out.  I finally ended the meeting when he started rubbing my thigh, by just saying that it was late and that I needed to leave.

 

 

Pogge, ‘Remarkable’ Conduct, and Greedy Women

Others have already remarked on parts of Pogge’s response to the recent allegations outlined at BuzzFeed (with additional information at Huffington Post), e.g., here, here, and here. Daily Nous reported that the response had been updated with email correspondence, so today I read through it. Two themes in particular stuck out.  First, the “remarkable” nature of Lopez Aguilar’s showing up at Yale for the purportedly fake appointment, and second, the (nearly explicit) insinuations that the allegations against him are coming from greedy women looking to profit. After reading the correspondence Pogge has provided, Lopez Aguilar’s conduct not only fails to be remarkable — Pogge’s appears even more so. And while references to greedy women may play well to sexist stereotypes, the trope is not borne out in the evidence we’ve been given.

From Pogge’s reponse:

“There are other familiar phenomena that can explain false allegations: we know of law firms going after rich institutions for the sake of winning large financial settlements, which can often be obtained through the extreme embarrassment of a media frenzy even without court proceedings in which the evidence could be carefully and critically examined. And we know that false charges and rumors can be highly effective weapons in the intensely competitive worlds of academia and university politics . . . I would welcome the opportunity to challenge her allegations in a proper judicial forum. But I fear that such talk of legal action is no more than a cover for legally extorting a financial settlement . . . On 30 August 2010, Lopez Aguilar presented herself with my fake job offer letter at Yale. This was remarkable for four reasons. First, she had never accepted the position by signing and returning the offer letter as the text of this letter clearly prescribed. Second, she showed up for work two days before the starting date specified in the offer letter, just before I would return from Latin America as she well knew. Third, she had a concurrent full-time job at Brookings Institute and thus was not available for a second full-time job. Fourth, she obviously knew that she had asked for this letter to secure an apartment lease and had offered to ‘rip it to shred’ (21 July 2010) after it had served that purpose. On the basis of Lopez Aguilar’s conduct and subsequent communications, I inferred that her plan was to force me into paying her a second full-time salary for the 2010-11 year. My alternative to somehow finding the money to pay her was to confess to Yale that I had provided her with a fake offer letter.”

I’m going to reproduce portions of the email exchanges here, but the full text of Pogge’s response and the correspondence is available here.

Regarding Lopez Aguilar appearing at Yale, when Pogge alleges she knew full well that she was not actually employed by him, in an email sent to both Pogge and Lopez Aguilar on August 29 (from page 20 of the PDF), someone (I don’t know who; the sender’s name is redacted) writes:

“Fernanda, [redacted] usually gets in around 10. I usually get in around 9. Let us know when you plan to come. If you’ve gotten your ID card authorized for 230 Prospect, then you can get in the front door. You would do that either at the ID place on Whitney, or at the MacMillan Center. If not, you should call me or [redacted], and we’ll come down and let you in. My cell is [redacted]. Looking forward to meeting you!”

Lopez Aguilar responded that day to both Pogge and the sender,

“Also [redacted], I was wondering if you happened to know whether I should go to one place first, either the ID place on Whitney or MacMillan Center, in my quest for building access tomorrow. Do you know if my name is already listed as qualifying for access approval?”

If Lopez Aguilar’s appointment was never genuine, why, exactly, is she being advised on how to show up for work? Moreover, what’s remarkable about showing up in advance of one’s start date to get her ID card authorized, if that’s what you’ve been instructed to do?

On August 30, Pogge wrote:

“You got me into a huge amount of trouble Fernanda, as I am not authorized to give out jobs to people on my own. I sent you that letter, as drafted by you, strictly for the Tafts Apartment because, so you said at the time, you could not get a letter from Brookings fast enough to secure the apartment you wanted. This was strictly as a favor to you so you could get this apartment. . . I am just amazed. You manage to destroy in an hour as much as I manage to build in months. For what? To get into the building with your own card on Tuesday?”

In a reply dated August 31, 2010, Lopez Aguilar wrote,

“I can swear to you, honest to everything that I hold dear, that I do not understand this sorry state of affairs. . . You have trivialized me and my actions Monday, under the false claim that I ‘just wanted to get into the building with my own card.’ No! I was instructed to report to MacMillan as per [redacted] request (which you read), and after I had asked if you or anyone else knew about my status/if I had permission to obtain access, to no avail. Once there, I tried to prove that I was at Yale legitimately, and not utterly delusional. I showed [redacted] the letter of employment I drafted for the Taft because I honestly believed that you would be employing me; and had you told me that my presence at Yale was to be clandestine, I would have never, ever done so. I would have asked you why, certainly, but I would not have shown them the letter. I only used it to prove that you and I had been in correspondence about my working at the Global Justice Program.

And yes, I sincerely thought you would be employing me, by way of a monthly stipend. I thought the only thing that was indeterminate was the monthly amount, which is why I had specified that this document would be worthless in September, when we would determine an amount that you thought more appropriate.”

In an email dated September 3, 2010, Pogge confirmed that there was nothing wrong with her showing up, working on campus, or asking about access, but rather it was showing someone the offer written for the purposes of securing an apartment that was unappreciated. Which is to say, the very email correspondence Pogge has provided the public seems to undercut each of the reasons we are meant to find Lopez Aguilar’s conduct “remarkable.” According to the correspondence, she didn’t sign and return the letter because she did not believe that the stipend amount offered in it was definite.  She showed up before the start date because she had been instructed to arrange building access for herself. Whether or not she had another position, Pogge himself seemed to be expecting her to work with his program at Yale, and moreover, expected her on or around the letter’s start date.

Regarding the notion that the alleged victims are after him, or Yale, for money, and always have been, on page 24, from an email dated September 6, 2010, Lopez Aguilar writes that she would like to be paid for the work she did for ASAP (“at whatever price you think fair, although, as I have already made clear to you – my estimates (of time, energy spent) place that assignments work value at $2,000), but that she will continue her work for the Global Justice Program without pay. She requested that she be granted the appropriate unpaid status so as to obtain access to campus, and particularly the building she would be working in. Again, on September 7, she reiterates that from this point onward, she would prefer not to be compensated for her work with GJP, but she that intends to serve as a volunteer throughout the year. Pogge replied both that he does not want the Global Justice Program to receive further help from her, and moreover (in an email dated September 7), the sort of unpaid status that would allow her access to the building and campus does not exist (which, in turn, raises questions about his account that she was not meant to be paid).

I find it perplexing that Pogge inferred “her plan was to force [him] into paying her a second full-time salary for the 2010-11 year” when in the correspondence he’s provided, she explicitly says multiple times after their dispute that she does not want to be paid for work with the GJP going forward, and yet she is still willing to do said work.

More generally, if she were after financial gain, going to the media before having filed suit in court would be an irrational thing to do, as it is keeping a university’s name out of embarrassing media in the first place that would typically make for the best leverage in terms of a settlement. Complaints filed with the Department of Education do not result in financial settlements for victims like many lawsuits do, and so at least with respect to that legal action, a financial motivation makes no sense (indeed, having not yet filed such a complaint, again, would make for better leverage if one were merely seeking financial gain).  And, of course, none of that is to mention that six years is quite a long time, and a significant amount of energy, to spend pursuing a settlement. If one were really after easy money, there are better uses of one’s time.

Finally, with respect to the claim “that false charges and rumors can be highly effective weapons in the intensely competitive worlds of academia and university politics,” it is worth remarking on that the one woman who was willing to identify herself publicly is the same woman who has left academia. This isn’t surprising. Indeed, I am sure that Pogge is quite familiar with the difference power, politics, and dependence can make. And while in some ways, I appreciate that he acknowledges that there is generally a high price to pay for reporting harassment, I am also sure that he is familiar with how liberal rhetoric can be used to distract from the persistent inequalities of the status quo. In fact, I think he wrote the book.

UPDATE: The link to the response doesn’t seem to be working right now. A copy of the response and appended correspondence is here.

 

Guest Post: Common strategies to undermine victims May 23, 2016

Filed under: sexual harassment,Uncategorized — jennysaul @ 6:19 pm

Elise Woodard writes:

It’s extremely common, in cases of sexual harassment or assault, for the accused (and their allies) to attempt to undermine women’s credibility in the following ways.:
(1) Remark on the fact that the woman continued communicating with her alleged assailant even after the incident. Bonus points if her communication was at any point enthusiastic or amicable.
(2) Note if the woman did not report the incident immediately. The longer she waits, the less credible her story is. (Despite the fact that most women do not report right away, for various reasons some of which are related to trauma.)
(3) Exploit any fact you know about her relationship history or her mental health history. Capitalize on the fact that she was taking anxiety medication, has a history of depression, or even a passing interest in BDSM (in cases of sexual assault).
(4) Highlight that the most horrifying details of the incident were missing from the initial report. Ignore the fact that recounting (or even recalling) these details is often degrading, humiliating, and difficult for the woman.
(5) Use feminist language or draw attention to your feminist affiliations in a patronizing way, so that you seem like you care more about women’s interests than they do.
(6) Suggest that your accuser has financial or other ulterior motives for making such a “false” accusation. Ignore how (re)traumatizing cases involving sexual assault/harassment are for the victim (though, apparently, also the accused “as can be seen … from the gap [the case] left in [Pogge’s] publication record”) and how difficult they are to win.

Pogge has not employed each of these strategies (in part because not all of them are applicable), but he has done most of them. It’s important to keep in mind the fact that these 6 tactics are frequently used to unjustly undermine a woman’s credibility. (3) through (6) have no bearing on the truth of the accusations, and a woman’s actions referenced in (1) and (2) are extremely common, in part because these incidents are often traumatic. [For anyone who has been sexually assaulted or harassed, or who has basic knowledge about trauma, (1) and (2) may be far too familiar.]

Unfortunately, these tactics are often sufficient for persuading people to suspend judgment about the case. And given standards of evidence in legal cases, suspending judgment can be effectively the same as just taking the side of the accused. Thus, given the tactics’ neutralizing power, it’s hard to not believe that they result in some sort of testimonial injustice.

 

Schliesser on Pogge

Filed under: sexual harassment,Uncategorized — jennysaul @ 1:48 pm

With characteristically thoughtful reflections.

Here’s just one:

Pogge has been an excellent mentor to many talented and accomplished women. This has been great for the profession, which, as we all know, has struggled to recruit and maintain women in the field. To recognize this, is not to deny that he has also been an awful professional colleague to other women (humans can be this imperfect); and, as the reports make clear, several of these have left the profession to our great shame. In addition, there must be quite a few witnesses (I have spoken to a few unrelated to the cases discussed in the press) who may not have interacted with Pogge personally, but who saw that he would get away crossing boundaries without anybody lifting a finger. How many more left the field in disgust (or anger)? Given that the profession is such a status hierarchy, bad behavior at the top can generate a huge pattern of exclusion. This is our generation’s disappearing ink.

For more, go here.

 

 

More on Pogge: Links

Filed under: academia,sexual harassment — jennysaul @ 8:48 am

An excellent discussion of the way that the “presumption of innocence” is used in internet discussions, by Jonathan Jenkins Ichikawa here.

The admonition not to pass judgement about the allegations is simply the admonition to ignore them. “Don’t believe anything unless it’s been proven in a court of law.” But this is just a ludicrous epistemic standard. Do you care whether powerful men in academic philosophy are using their stature to coerce students into compromising sexual situations? Then you should be interested in credible testimony to the effect that this one has been. Don’t be tempted by the fallacious inference from it hasn’t been proven in court to you have no way to tell whether it’s true.

Eric Schliesser notices the strangeness of Pogge’s invocation of lie detector tests here.

I was baffled to read the quoted sentence in Thomas Pogge’s Response to the Allegations (see here) My gut reaction was, “if a mutually agreeable experts can be found, such an expert would be a fraudster.” It is widely known that Polygraph testing is a pseudo-science.

Philosophy Goes Pop on testimonial injustice in discussions of the case here.

This is not an isolated phenomenon. When Bill Cosby was accused of rape by 58 women, a surprising number of people leapt to his defense, delegitimizing the women’s claims altogether as hearsay. We are consistently taught to view women as liars, starting with the stereotype that women are gossips who believe whatever they are told. This stereotype pervades depictions of women who claim to have been assaulted or harassed. In fact, one police unit even called their sexual assault division the ‘Lying Bitches Unit.’ There is a tendency to believe that women are lying about sexual harassment and assault, and to find alternative explanations that exonerate the perpetrators.

Huffington Post here.

Pogge’s response, here.

Buzzfeed, discussing Pogge’s response, here.

If you’re looking for places with discussions of Pogge (including, sadly, a lot of scepticism about victims’ testimony) there are two posts up at Daily Nous, here  and here.

Here, we’d welcome discussion from those grappling with how to improve our profession.   Those who want to undermine victims’ credibility can head somewhere else.  We’ll be confining ourselves to useful discussion.

 

Big News Story on Pogge Case May 20, 2016

Filed under: sexual harassment,Uncategorized — jennysaul @ 7:49 pm

But a recent federal civil rights complaint describes a distinction unlikely to appear on any curriculum vitae: It claims Pogge uses his fame and influence to manipulate much younger women in his field into sexual relationships. One former student said she was punished professionally after resisting his advances.

Read the whole story here.

 

Anthropology tackles sexual harassment April 30, 2016

So much is so familiar.  But there are some good ideas we haven’t tried.  In particular:

Meeting registrants were required to agree to AAPA’s code of ethics, which forbids sexual harassment and discrimination, and many attendees sported ribbons with antidiscrimination slogans.

Really interestingly, their problems seem just like ours, despite very different numbers.  8 out of 10 of their board members are women, and the association’s members are 56% women.

 

For more, go here.

 

 

Melissa Harris-Perry interviews Anita Hill April 19, 2016

Filed under: gender,intersectionality,race,sexual harassment,Uncategorized — jennysaul @ 8:58 am

I really don’t need to say more than that, do I?  But if you want a teaser…

HARRIS-PERRY: How did race and gender affect how you were heard -during your testimony?
HILL: Those members of Congress had never even considered that Black women had our own political voice. They assumed that Black men spoke for us. For an African-American woman to have her own political voice and own political position, and to believe that our perspective should be added to the conversation, was just something they hadn’t even considered. I think that’s why, politically, things changed. I think that’s why women -became so agitated and so energized to make change on this important issue. And for Black women, it was like, Okay, we have to make sure we are speaking for ourselves.

 

For the rest, go here.

 

Response to AAUP report on Title IX from Faculty Against Rape April 15, 2016

Faculty Against Rape has drafted a response to the AAUP’s draft report on Title IX to submit by the end of the comment period tomorrow, and they are accepting signatures from academics in support of the letter. The full letter is here, and the form to add your name is here.

Here’s a passage from the introduction:

As members of Faculty Against Rape (FAR), a group of more than 300 faculty and civil rights activists from across the U.S., we write to express grave concerns regarding the American Association of University Professor’s (AAUP) draft report on Title IX.  We started FAR in the summer of 2014 as an ad-hoc volunteer collective whose mission is to get more faculty involved in preventing sexual assault and sexual harassment and improving campus responses. FAR is also committed to protecting faculty who experience retaliation for doing so. Over the past two years, FAR has provided resources for faculty to learn how to best support survivors, tools for faculty who want to get more involved in reform efforts, and support for faculty who face retaliation. Collectively, our members have supported literally hundreds of survivors at campuses across the country. Many of them have endured significant retaliation from university administrations who want to protect the university brand, even at the cost of the safety and well-being of students. We have seen the crisis of campus sexual violence, and the nature of Title IX enforcement as practiced, often inadequately, across campuses in the United States, first-hand.

Our experiences, as members of educational communities involved in these issues on the ground, have made evident that Title IX enforcement at institutions of higher education is, indeed, a matter of pressing concern. However, if the AAUP seeks to adequately understand, and competently comment on this issue, it must take care to, at the very least, attend to the body of existing expert scholarship— including scholarship by some of its own members— on this topic. As it stands, we are troubled by much of the framing, content, unrepresentative nature of, and failures of accuracy within, the draft report.

The overall impression given by the report is that the Department of Education’s Office of Civil Rights is ‘overreaching’ in its mandated mission of providing guidance to universities and ‘abusing’ Title IX; this,  despite the fact that there is broad underreporting of campus sexual assault by universities. The American Association of University Women (AAUW) analyzed DOE data and found that 91% of colleges did not report any rapes in 2014, leading the AAUW to exclaim that “The data reported by the nation’s colleges simply defy reality and common sense,” given that they “don’t reflect campus climate surveys and academic research.”

While we would ordinarily join with the AAUP in resisting the corporatization of institutions of higher learning, we are deeply concerned that the AAUP’s analysis of this issue as it pertains to Title IX, by pitting student concerns for campus safety against faculty interests, reinforces the symptoms instead of addresses the problem. Students and faculty alike are rightfully alarmed by universities and colleges placing the protection of their reputation before the integrity of their campus communities — but these concerns ought to unite, rather than divide us. The AAUP is right to remind us that administrative overreach into the classroom may be driven by a misguided focus on public relations, but we should also acknowledge that it is this very feature of the contemporary university that victims of campus sexual misconduct have been decrying as they witness justice, safety, and prevention sacrificed time and again for the sake of the bottom line.

 

What’s Wrong with the AAUP’s Report on Title IX: Preponderance of the Evidence Standard Redux March 31, 2016

I posted a couple of days ago about some of the problems with the AAUP’s recent report on Title IX. I think there are others, but for considerations of space, just mentioned two: one of which was the AAUP’s resistance to the preponderance of the evidence standard, the other was the AAUP’s confusion regarding the increase and manner of OCR investigations. At some point, I think it would be valuable to discuss some of those other issues (I’ll draw on a couple of points from this letter from the National Women’s Law Center below, but I encourage you to read it in full as it pertains to some of the other issues in the report as well), but first, more on the justification for the preponderance standard.

Brian Leiter wrote a reply to my post, taking issue with this passage:

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.

I cited Jackson v. Birmingham Board of Education in the explanation of my thinking, and in an update on his post, Leiter writes, “that retaliation for reporting sex discrimination is actionable sex discrimination for purposes of Title IX does nothing to establish that a higher standard of proof to prevail on a sex discrimination claim is sex discrimination.” Leiter is right that, in itself, that retaliation in the context of Title IX constitutes sex discrimination says nothing about standards of proof, but I didn’t say that it did. What I did say is that I think the courts’ reasoning in the course of determining whether or not retaliation constitutes discrimination – i.e., how the court defined what it is for something to constitute “discrimination on the basis of sex” – does.

Here’s that language again (emphasis mine):

In all of these cases, we relied on the text of Title IX, which, subject to a list of narrow exceptions not at issue here, broadly prohibits a funding recipient from subjecting any person to “discrimination” “on the basis of sex.” 20 U. S. C. ß1681. Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX’s private cause of action. Retaliation is, by definition, an intentional act. It is a form of “discrimination” because the complainant is being subjected to differential treatment. See generally Olmstead v. L. C., 527 U. S. 581, 614 (1999) (KENNEDY, J., concurring in judgment) (the “normal definition of discrimination” is “differential treatment”); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682, n. 22 (1983) (discrimination means “less favorable” treatment). Moreover, retaliation is discrimination “on the basis of sex because” it is an intentional response to the nature of the complaint: an allegation of sex discrimination. . .

The import of the Jackson language quoted is not that the retaliation was a response to the person (Roderick Jackson) but to the claim (in Jackson’s case, a series of complaints about unequal treatment that he felt were prohibited by Title IX).  It can be analogized to campus responses to sexual assault cases in the following way: when a victim makes a complaint that s/he was sexually assaulted, under Title IX that is a claim of sex discrimination, because sexual assault is a severe form of sexual harassment, and sexual harassment has been confirmed by SCOTUS to be a form of sex discrimination.  Therefore, if the school responds to that claim using a process that requires a higher standard of proof than the standard of proof that the school uses for other claims, ones that do not implicate Title IX and do not allege sex discrimination, that is, in the words of the Court in Jackson, “differential treatment.”  So if a student made a complaint that s/he was the victim of harassment based on his/her race, the school would be required under Title VI to use a preponderance of the evidence standard.  If the school were still using “clear and convincing evidence” for sexual assault cases, this would mean that claims of sex discrimination (severe sexual harassment in the form of sexual assault) would be treated differently, and less favorably, by the school from claims of race discrimination (racial harassment).

Similarly, if one white, male, heterosexual student accused another white, male, heterosexual student of punching him in the face and the school used a preponderance of the evidence standard in its process for responding to that assault, but was still using “clear and convincing” in its process for sexual assault, that would be differential treatment based on the nature of the claim, where the claim alleging discrimination based on sex got “‘less favorable treatment” (see language from Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682, n. 22, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983) included in Jackson) than the claim not alleging discrimination based on sex.

The National Women’s Law Center (lead counsel in Jackson v. Birmingham Board of Education) seems to agree that parity with other claims justifies the use of the preponderance standard in Title IX claims: Given that Title IX was modeled after Title VI, and preponderance of the evidence is the standard used in claims brought under Title VI, it is also the standard that applies to Title IX claims. The preponderance standard is also used in litigation of claims under Title VII of the Civil Rights Act of 1964, regarding sex discrimination in employment. Thus, it is the correct standard for allegations of sexual harassment, including violence.” (If you doubt that courts have taken up this standard, note the footnotes to this passage in their letter.)

Likewise, Nancy Cantalupo, in the piece I linked to a few days ago, writes,

Allowing schools to adopt a criminalized standard of proof such as “clear and convincing” evidence or “beyond a reasonable doubt,” . . . would also create legal and administrative barriers for student survivors of gender-based violence that do not apply to the vast majority of comparable populations involved in civil or civil rights proceedings, all of which use the preponderance standard. To name just a few, these groups include: other students alleging other kinds of sex discrimination; students alleging discrimination based on other protected categories, like race or disability; gender-based violence survivors seeking protection orders in civil court; students alleging other forms of student misconduct; and students accused of sexual or any other misconduct who sue their schools in civil court. In reality the preponderance standard is used in the vast majority of cases, not only in internal disciplinary proceedings but also in other administrative or civil court proceedings and under other civil rights statutes that protect equality . . . Indeed, separating out sexual violence victims for different procedural treatment would enact a new kind of damaging “exceptionality [for] rape,” as Michelle Anderson discusses in her paper for the September 25 Conversation. Using anything more stringent than a preponderance standard would symbolize that we as a society are comfortable with giving one group of women and girls, as well as men and boys who are gender-minorities and victimized because of it, unequal treatment when compared to everyone else.

In a footnote on this passage, Cantalupo notes:

Research shows that the majority of higher education institutions had voluntarily adopted a preponderance of the evidence standard for all student conduct proceedings by the early 2000s. See Michelle J. Anderson, Sexual The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Assault, 84 B.U. L. Rev. 945, 1000 (2004); Heather M. Karjane et al., Campus Sexual Assault: How America’s Institutions of Higher Education Respond 122 tbl.6.12 (2002), http://www.hhd.org/sites/hhd.org/files/mso44.pdf  [http://perma.cc/9Z57-PHR5]. Therefore, using a different standard from the preponderance standard in cases involving sexual or other forms of gender-based violence would mean that student victims of gender-based violence would be less protected than students who are victimized by another student in any other way.

Now, Geoffrey Stone has argued against the preponderance standard as follows (emphasis mine):

To justify its insistence on the preponderance of the evidence standard, the Department of Education draws an analogy to civil actions in court. In the typical civil law suit for damages, whether the issue is a car accident, a breach of contract, or an assault, the standard is preponderance of the evidence. But this is a bad analogy. For a college or university to expel a student for sexual assault is a matter of grave consequence both for the institution and for the student. Such an expulsion will haunt the students for the rest of his days, especially in the world of the Internet. Indeed, it may well destroy his chosen career prospects. This is especially likely, for example, for law students.

To the extent that analogy between internal Title IX complaints at an educational institution and action in courts is apt (there is a substantive difference in that what happens in court is thereby public record), the analogy to civil action is far more apt than an analogy to criminal proceedings. In addition to the fact that in criminal cases it is the state, and not the alleged victim, who is party to the proceedings, as Stone writes, civil law adjudicated by a preponderance of the evidence standard provides relief for assault. Again, from the National Women’s Law Center:

The preponderance of the evidence standard is appropriate even in cases where there could be criminal sanctions for the defendant’s actions. For example, it is used in civil proceedings between two private parties, where—like a campus grievance proceeding for a complaint of sexual harassment—each party “has an extremely important, but nevertheless relatively equal, interest in the outcome.” This includes civil proceedings arising out of conduct that can also be criminal, but where there is no authority to impose criminal sanctions, such as a civil tort action for battery, robbery, or murder.

This goes, too, for civil cases regarding sexual violence. For instance, cases brought under California Civil Code Section 52.4, or Illinois’ Gender Violence Act.

Of course, Stone is right that expulsion may haunt a student. We should absolutely take that seriously, and I do. At the same time, let’s not forget how many students are expelled for infractions like plagiarism as compared to sexual assault; let’s not forget having been subject to sexual violence may haunt a victim; let’s not forget that being subject to sexual discrimination (including sexual harassment and assault) might, and in a number of cases has, destroyed victims’ chosen career prospects; let’s not forget that victims are often forced to transfer schools, or drop out; let’s not forget that victims have also been dragged through the nasty trenches of the internet, nor that some have been driven to suicide as a result. Moreover, let’s not forget that it is exactly these kinds of effects that educational institutions are legally obligated to address insofar as they impact one’s access to education; that is, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

 

 
Follow

Get every new post delivered to your Inbox.

Join 11,973 other followers