Guest Post: Kipnis on Title IX

The following is a guest post by Kathryn Pogin, a graduate student at Northwestern Philosophy and an incoming student Yale Law. She is a colleague of the student who is suing Kipnis and Harper Collins —Jonathan

Since the release of Unwanted Advances: Sexual Paranoia Comes to Campus, a recurring theme in public disagreement regarding the book has been that if critics believe the book is in error, they should be specific, and provide evidence, while critics were hesitant to do so when it seemed that would only further violate the privacy of those depicted in the book. Whether or not there were errors in the representation of events at Northwestern may be adjudicated in a more appropriate venue than blogs and Facebook now, anyway – but one thing I’ve found odd about this dynamic is that there are errors in the book about matters of public record.

Consider this passage:

“In 2011 the Department of Education’s office for Civil Rights (OCR) expanded Title IX’s mandate from gender discrimination to encompass sexual misconduct (everything from sexual harassment, to coercion, to assault, to rape), issuing guidelines so vague that I could be accused of ‘creating a hostile environment on campus’ for writing an essay. These vague guidelines (never subjected to any congressional review) take the form of what are called, with faux cordiality, ‘Dear Colleague’ letters—note the nebulously threatening inflections of overempowered civil servants everywhere.” (p. 36 of Unwanted Advances)

This is false. The 2011 Dear Colleague Letter (DCL) is controversial — but it’s not because it expanded the scope of Title IX to include sexual misconduct. Title IX already covered sexual misconduct. Rather, it’s because in that letter, OCR issued guidance that schools should use the preponderance of the evidence standard when adjudicating sex discrimination complaints, including complaints of sexual misconduct.

Laura Kipnis and Harper Collins have been sued

I have just learned that the graduate student Laura Kipnis discusses at length in Unwanted Advances has sued both Kipnis and the book's publisher, Harper Collins. She's suing for public disclosure of private facts, false light invasion of privacy, defamation, and intentional infliction of emotional distress.

As I mentioned in a comment in a recent post here, I do believe that Kipnis dramatically misrepresented the student in dishonest and harmful ways. I am not surprised that there is a lawsuit alleging this. All of my blogging so far has bracketed those issues, since getting into the details of the misrepresentations would involve further violations of privacy. I have been trying to make the case that even if the specific evidence she cites is correct, her case is both uncompeling and harmful. But since Jane Doe vs. Harper Collins and Laura Kipnis is now public, some of Doe's specific complaints can now be discussed. (Many commenters have expressed frustration with people saying that the book is inaccurate without saying how. They may now be in a position to relieve some of their curiosity.)

The lawsuit puts in public, for the first time, Doe's version of the story. You can read it here. (It's a 23-page pdf.) This is of course her allegation; the evidence is something that will presumably be considered in court. A few highlights follow. Consider the usual content warnings to be in place.

Retroactively Withdrawing Consent

Following are more of my thoughts on Laura Kipnis's discussions of university sexual harassment and assault policies in Unwanted Advances. All the obvious content warnings.

Comments

A number of people have asked me about my blog's comment policy. As some readers may have noticed, in recent posts I have had many comments by anonymous commenters with minimal or negative value. I rarely delete comments, and I sometimes reply to them even when it is obvious that my interlocutors aren't engaging in good faith. Many people have asked me why I do this. As they point out, one result is that the comments sections of my posts end up being very unwelcoming to many of the people I might wish to be engaging with. This is absolutely true, and a serious cost to the current procedure.

One reason I haven't disabled anonymous comments, or engaged in more significant comment moderation, is that I don't only want to be discussing these issues with people who already agree with them. I'm spending quite a bit of time engaging with the Kipnis book in part because I am amazed that so many people find it compelling. But I don't just want to gawk at them with members of my own tribe. That doesn't get us anywhere. I want to assume that many of them are thoughtful humans it's possible to have a real conversation with—to have a chance of changing their minds, or to have a chance to correct any of my own errors.

Many people who are skeptical about the things I've been writing about sexual assault are unwilling to say so under their own names.

Not all of the comments I'm talking about are productive conversation of the form I'm talking about. Indeed, the majority are not. For example, there's no value related to the intellectual common ground in comments that do nothing but comment on my personal appearance, or comments that do nothing but lie about what someone has said. There's absolutely a case to be made for screening or deleting such comments. I guess there are two reasons I don't do that.

First, the line between comments that are and are not potentially productive is not always an obvious one; putting the bar for speech super low means I won't mistakenly exclude things that could have been useful. I'm letting in more garbage, but there's at least that advantage.

Second, I think it's important, for those of us who spend most of our time talking to people who agree that, e.g., a workplace where employers habitually let their hands linger on their female employees contributes to rape culture, to be aware of the cultural backlash to the advances of recent decades. We shouldn't forget that we live in a world where, if you say that a good exercise in female agency can be to report your boss's sexual assault, or that student activists aren't the force behind unjust Title IX investigation procedures, you're likely have commenters crawl up and tell you that you're a snowflake narcissist who doesn't deserve his job, maybe with some speculation about your sex life thrown in for good measure. I think this is a gross fact, but it is a fact that I think it'd be a mistake to ignore or forget.

Gratuitous insults from anonymous commenters don't really bother me personally—so I'm not suffering myself from the abuse (aside from the not-trivial time it takes to respond, on those occasions when I decide to respond). Obviously many people in different professional and social positions are different from me in this respect—I'm not saying how anybody should feel about this kind of thing, just how I do. The main cost, from my point of view, is the one mentioned at the top: letting the toxic voices in disincentivizes some people I'd like to be talking to from participating in the conversation. My compromise solution so far has been to open public facebook threads for posts, so that anyone with a facebook account can discuss it there. That's imperfect for a lot of reasons, but it's the compromise I've landed on so far. I may well change my mind at some future date.

(In case it wasn't obvious: this is not intended remotely as a criticism of blogs that use heavier moderation. I think they do so for very good reasons. Different spaces are, and should be, different.)

Unwitting Rape

This is a spin-off of a thread in this post. Content warning for rape. Probably not necessary or recommended reading for most readers.

Administrators and Snowflakes on Sexual Assault Policies

Wow, there were a lot of comments on my last post about Laura Kipnis's book. (Here's a bit of meta-commentary about them, for anyone interested.)

Let me start this post by saying something I'd've thought would be obvious: in attacking some of the things Kipnis says, I'm not thereby attacking all of them. I have many important disagreements with the book, both on general cultural matters and on particular conclusions she draws about cases she discusses. I think that, her protestations to the contrary notwithstanding, the book perpetuates rape culture. I think I made that case in my last post, and I plan to make it again in future ones. But that doesn't mean I think she's wrong about everything.

Several people have taken me to task for defending the Title IX status quo. I have a quick retort: I don't defend the Title IX status quo. One of the several central conclusions of Kipnis's book is that universities' reflexive legalistic instincts contribute to injustices, including injustices against people who are accused of wrongdoing. The way Kipnis tells her story, respondents are often not told what they're being accused of until investigations are complete; they're also, she says, often denied the possibility of legal representation, despite the severity of the matter under investigation. If this is true—and I suspect that it is—it is not just.