Thursday, May 18, 2017

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.

As background for folks who aren’t familiar with the history, Title IX was passed by Congress in 1972. The full text of the law reads:
"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."
It’s a common misperception (and one Kipnis seems to suggest in various places) that Title IX was passed in order to address funding equity in athletics, but it actually wasn’t written with discrimination in athletics in mind. Regulations regarding its applicability to athletic programs weren’t issued until 1975. The NCAA challenged the legality of Title IX a few months later as a result (the suit was dismissed). In the following years, the increase in women’s athletic opportunities as a result of Title IX was one of the most salient effects of the law, which is probably why so many folks came to associate Title IX with women’s sports. The intent, though, was to prohibit sex discrimination in federally-funded educational programming generally. But — and here’s the relevant historical point — in 1980, an appeals court affirmed that sexual harassment constitutes a form of sex discrimination under Title IX. The famous case, Alexander v. Yale, had been brought by five Yale students who were advised by Catharine MacKinnon. They lost the case, but got what they were asking of the court anyway (that Yale implement sexual harassment grievance procedures) as well as a place in landmark legal theory.

In other words, sexual misconduct on college campuses has been legally recognized as a Title IX matter for nearly four decades, and not just since 2011. Sexual harassment is prohibited by Title IX because it’s a form of sex discrimination, and sexual assault is prohibited because it’s an extreme form of sexual harassment.

To be clear, I am by no means a Title IX expert. I am no expert of any kind on any legal matter; I’m a student (in philosophy, at Northwestern), not an attorney. But that’s sort of my point about the oddness here — I’m not an expert, I’m not writing a book about Title IX matters, and even I know that the 2011 DCL did not expand the scope of Title IX to include sexual misconduct.

If you read the 2011 DCL, some of the evidence that this is false is contained within the letter itself (e.g., some of the case law it cites demonstrates sexual harassment was prohibited by Title IX before 2011). The 2011 DCL also refers to earlier guidance from the OCR regarding sexual harassment (sexual harassment is referenced in Title IX guidance from 1997, 2001, 2003, etc.). Some of the most notable instances of criticism of the 2011 DCL also include references to this same information. For instance, the letter sent to the OCR by Will Creeley on behalf of FIRE shortly after the 2011 DCL was released, makes clear that FIRE’s concern with the letter was not that Title IX should not be understood to protect students from sexual misconduct but rather centered around questions of due process and appropriate evidentiary standards. Responses to those criticisms of the DCL by organizations like the National Women’s Law Center make the more narrow scope of disagreement regarding the guidance clear, too.

In addition to being odd, it’s unfortunate, I think, that this is now being confused in discussion following the book (e.g., here). The controversy surrounding the 2011 DCL is a serious matter of public concern, and misrepresenting the subject of that controversy is unlikely to advance serious public discourse.



  2. As far as I can tell you're right that the 2011 DCL didn't expand the mandate. But isn't this just a minor imprecision? The DCL did reorient Title IX activities around sexual misconduct. It made sexual harassment the primary discrimination issue. It motivated the allocation of resources to that end, and I'm sure also the founding of organizations like Know Your IX.

    Certainly, Kipnis is right about the vagueness of the guidelines. As the AAUP pointed out, the 2011 DCL obscured the difference between sexual violence and sexual harassment, including harassing speech, so that you get to the point, as Kipnis puts it, where writing an essay gets you accused of creating a hostile environment.

    I guess I'm wondering what you think the force of this criticism is. It doesn't seem to affect her main point. And it's seems like the kind of mistake that books like this are bound to have some of.

  3. Sexual harassment is not OCRs primary enforcement issue. OCR enforces civil rights in education generally, and though Title IX has gotten significant media attention, my understanding (and OCR reports on their enforcement activity seem to confirm) that Title IX is not what they deal with most frequently. For instance, see the 2015 fiscal year-end report here, which includes data on OCR administrative enforcement by statute:

    In any case, I'm not convinced that the 2011 DCL obscured the difference between sexual violence and sexual harassment. Sexual violence is under the purview of Title IX /because/ it's a form of sexual harassment, and earlier OCR guidance set out very explicitly that Title IX should not be interpreted as usurping the first amendment. Just like it would be weird if a theologian objected to a commentary on Exodus on the grounds that it doesn't cover Genesis too, I think it's a little weird to object to the 2011 DCL on the grounds that it doesn't repeat what the OCR already said about speech rights in the 2003 DCL. But, the thing is, regardless of whether you or I are right about the 2011 DCL, *that's* the debate that ought to be had because that's where there is a real controversy. It doesn't help that debate move forward in any meaningful sense if we start from a basis of alternative facts. Organizations like FIRE are doing a much better job of clearly laying out what informed concerns and objections one might have to how the OCR is guiding institutions to enforce Title IX.

    This error may not affect her thesis -- but I do think it indicates something about one's method of fact checking or familiarity with the subject matter.

  4. In 2011 in a "Dear Coaches" letter, the OCR changed the strike zone from "knees to shoulders" to "anything that crosses the plate and is caught before it hits the ground." While the Office of Collegiate Recreation (OCR) has mandated rules of collegiate sports for decades, Kipnis seems to think the 2011 DCL changed the OCR's focus to baseball, when in fact baseball had had strikes and balls since the invention of the game. The 2011 DCL all provided that the batter may appeal any strikes called even under the new, expanded zone.

    1. Let's take Kipnis's original sentence and translate it in terms of your parody, by substituting the terms you use for the terms she uses.

      “In 2011 the Office of Collegiate Recreation (OCR) expanded Title IX’s mandate from football to encompass baseball (everything from the strike zone to the height of the mound to the designated hitter rule), issuing guidelines so expansive that anything that crossed the plate and was caught before it hit the ground counted as a strike."

      This sentence would still be false give the fact pattern you describe, since the OCR had dealt with baseball all along, and so it wound not be true that the 2011 letter expanded their mandate to cover baseball.

      I find it odd here that you use the phrase "change the focus," which neither Kipnis or Pogin used. Perhaps if Kipnis had used that phrase her sentence would be defensible. But that is not what she said; she explicitly said that the letter expanded the mandate to encompass sexual harassment, which is false, given that the mandate already encompassed sexual harassment.

    2. Ok, I admit I was just tossing one out there. This was a sort of metaphor for the preponderance standard being much wider than the previous standard. If baseball only changed one thing (the strike zone as in the parody), doing so doesn't only change that one aspect: it ripples through the game with unintended and unforeseen feedbacks, many of which will be undesirable also.

    3. I like A non Mouse's analogy. It's perceptive and supple and seems to get at the issue. OCR had dealt with "baseball", but they'd dealt with it in a much different way.

      The point about how the strike zone change ripples outward with unintended and undesirable consequences, *****! - that's five stars, not profanity.

  5. Your paragraph that applauds FIRE is (unintentionally?) ironic because FIRE's own website contradicts that paragraph's claim.

    See particularly the following Q in the FAQ:

    Why is FIRE so concerned about OCR’s letter of April 4, 2011?


    With regard to freedom of expression, the April 4 letter fails to explicitly acknowledge that colleges owe free speech rights to their students. It also fails to recognize the fact that truly harassing conduct (as defined by the law) is distinct from protected speech. Public universities may not violate First Amendment rights, and private universities must honor their promises of freedom of expression. Previous OCR letters on this subject were clear about this, but this most recent letter is not.

    The reason this lack of clarity is so important (and so disappointing) is that many colleges already enforce vague and overly broad sexual harassment policies, and often confuse speech protected by the First Amendment with speech or conduct that is actually punishable as harassment. With its lack of guidance on this issue, OCR’s April 4 letter compounds these problems.

    End quote.

    I agree with you that FIRE is doing us all an important service with its education and litigation. FIRE was one of Kipnis' advocates and she praises its work.

    I wouldn't have expressed it as you did, but I agree in general with you that (as you wrote) "It doesn't help ... if we start from a basis of alternative facts."

    1. I am perfectly aware that FIRE takes a different position than I do on a variety of issues, including matters pertaining to OCR guidance -- but there's a difference between views I don't share and are unreasonable and/or uniformed, and views I don't share but which are reasonable and/or informed. I think it's the responsibility of schools to be responsive to OCR guidance and the law, and to the extent that schools ignore OCR guidance, including earlier OCR guidance on first amendment rights, that's both irresponsible and on them. FIRE thinks the responsibility falls more squarely on the OCR to keep reminding schools of what they already said. I don't think there's much that's weird about thinking their arguments are clear and well reasoned, even if I take a different position.

    2. You wrote:

      I think it's a little weird to object to the 2011 DCL on the grounds that it doesn't repeat what the OCR already said about speech rights in the 2003 DCL.

      and in the same paragraph:

      Organizations like FIRE are doing a much better job of clearly laying out ...

      My point was that your reference to FIRE was ill placed because it contradicted, rather than supported, your opinion in the same paragraph.

      By your own description, you are nearly a PhD in Philosophy and about to enter law school. You're clearly a capable scholar in each, but in this particular place in your argument (as written) it was poorly supported by the citation - indeed it was contradicted.

      By the way, this is an example of two sides discussing a matter to get closer to truth, much like due process includes cross examination. Here I am examining a paragraph, not what's in the writer's mind.

    3. I don't see the irony here, or how Pogin's citation fails to support her argument. In the paragraph of her comment from which you are quoting, she says that she thinks that a particular objection to the 2011 DCL is weird. But,* she says, the debate over that objection is the debate we should be having, and it is good that FIRE is raising that objection, rather than Kipnis's false claim that Title IX was not taken to cover sexual misconduct before the 2011 DCL.

      So it doesn't seem ironic that FIRE is raising the objection that Pogin disputed earlier in the paragraph. Indeed, the fact that FIRE is raising that very objection is key to Pogin's point. And the passages you've quoted from FIRE's letter make clear that that is the objection that they are raising, and not Kipnis's claim that previous letters did not cover sexual misconduct. Looking at the text of the actual letter, it would be odd for the FIRE letter to mention "OCR’s 2001 Revised Sexual Harassment Guidance (2001 Guidance)" (among other mentions) if the OCR 's mandate had not included sexual misconduct before 2011.

      *One thing I try to teach my students is that they should pay careful attention to transitions when they read and write; in this case, Pogin's use of the word "But" is a key clue to the dialectical situation, that the point she is about to make is in contrast to the previous objection she has raised against the objection to the DCL, not a continuation of it. The FAQ you quote says that previous DCLs were clear on the distinction between harassment and protected speech, which would be an odd claim to make if they had not addressed harassment.

  6. I wasn't talking about the focus of OCR but the focus of, specifically, Title IX efforts. They have arguably become obsessed with harassment and assault.

    I'm pretty sure Kipnis, FIRE and AAUP are pulling in the same direction here. Isn't that your impression too?

    To me, this is a small understandable error about background issues. Her book is mainly about her first-hand experience with Title IX processes. I think that's its value. These historical issues just frame her own experiences for the less informed readers. Someone who knows a bit more about Title IX in general than Kipnis can still get a lot out of what she has seen and heard herself. I think the book remains important.

    1. I don't know what your evidence is that the focus of Title IX efforts has changed as a result of the 2011 DCL. Laura Dunn, for instance, who founded SurvJustice began working on this issue well before 2011. The OCR was working on this issue well before 2011, and indeed, a year before the 2011 DCL was released OCR officials commented that Title IX is one of the strongest tools for addressing sexual misconduct on campus ( What has happened, I think, is increased efforts to educate students on how to exercise their rights under Title IX, which has resulted in increased attention on enforcing the law. But that's the result of activist efforts that were underway before 2011.

      But, no, I don't think Kipnis is on the same page as FIRE. For one, because I really don't think this is the only way in which she misunderstands Title IX (it's just a poignant example because it's a very basic mistake, it comes so early in the book, and she's repeated the claim in interviews since and so wasn't a one-off). For two, in a few places she's suggested she's not sure campuses should be handling campus sexual assault at all, and FIRE doesn't question that sexual assault is a civil rights issue -- their position is much more nuanced. But third, Kipnis has said she endorses campuses instituting hate-speech codes, which is a position that's too extreme even for me, let alone for FIRE. (I do endorse anti-harassment policies, but that's a very different kind of thing.)

    2. "What has happened ... is increased efforts to educate students on how to exercise their rights under Title IX, which has resulted in increased attention on enforcing the law. But that's the result of activist efforts that were underway before 2011."

      I don't really disagree with this. I would add (and I would hope you agree) that 2011 was a kind of "tipping point" for those efforts. The DCL letter was motivated by them, but also catalyzed the elements already in play. I (and Kipnis) would include under "increased attention" something like "growing paranoia", but I guess that's where you would say we've gone too far. (That's the crux of the disagreement, perhaps.)

      When I say that FIRE and Kipnis are pulling in the same direction here, I don't mean they agree on all things or all issues. I think FIRE would agree that "increased attention" has too often meant "overzealous concern". It's time to tone it down a bit.

      The original Title IX complaint against Kipnis was a great example of something that should have been nipped in the bud at an administrator's desk, saying, simply, "She wrote an essay. That's protected speech and not a valid basis for a complaint."

    3. This all seems, loosely, within the bounds of reason and fair argument. One important point, though, omitted:

      What the OCR letter actually did was tell colleges they could lose federal funding, and/or be investigated, for not doing enough to combat sexual misconduct. You, I, and Kipnis have no claim to be Title IX experts, but I'm including you, Kathryn, in that group, since, unless I missed it, you've omitted that very important point.

      Funding and reputation are two big concerns for any contemporary university. So it's fair to say that the 'Dear Colleague' letter put tremendous pressure on colleges to quickly show compliance.

      And, in classic bureaucratic fashion, the letter was long on stakes and urgency and short on specifics, which left colleges scrambling to implement, and afraid that using discretion or making mistakes in the process would have a major impact. Seems like a great way to intensify anxiety.

      And, as you acknowledge, they suggested the 'preponderance of evidence' standard. What that means, though, is that administrators get the evidentiary standards of civil courts, and their power to levy damages - expelling a senior who has paid 150k in tuition is a mighty result - without anything but cursory training in investigation or adjudication, mostly just a bunch of half-baked slogans - and with no due process protections for the accused.

    4. 2. If I were going to bring a lawsuit against you, Kathryn, or Jonathan, say if I thought comments here in this thread defamed me - do you mind if the judge is a former RA who got a promotion and went to a weekend seminar on hate speech? Also, you don't get a lawyer. Also, you don't get to ask me any questions. Also, you don't get to know the details of the complaint I've made, or even which of your comments I've cited as defamatory, or as intentional infliction of emotional distress, or whatever. We believe complainants never lie about these things, and the objective definitions and standards are less important than the subjective impact.

      By the way, the ex-RA working as the judge has been told the court will lose funding if she doesn't comply with all of the above conditions, and there's a risk hers could become known as the "hate courtroom." And that defamation is under-policed, that defamers are getting away with it all the time, and the crisis is so dire that the funders of this court consider it a major warning sign - grounds for investigation, maybe - if findings for plaintiffs in defamation cases don't spike up rapidly.

      Sounds pretty good, right? When conservatives say things like "stack the deck", "kangaroo courts" and "star chambers", apart from the connotation of left-radical totalitarianising with the latter terms, which may be exaggerated, they're just stating the truth.

    5. 3. We can disagree about what narrative framework best describes our sexual culture and gender relations, we can hash out the objective and subjective realities of rape and sexual assault - I, Kipnis, whoever, may in fact be wrong to say it's a moral panic. But in terms of the system which has been created to handle the maybe-heightened problem, it's just buffoonery and rank amateurism.

      It doesn't actually leave women, victims and accusers, dealing with a power imbalance. Or it does, but not in the way they claim. It might protect victims, but it might also put women in a position of supreme entitlement - that their feelings about a sexual relationship or encounter are immune from scrutiny, and can be enough, when evidence to the contrary is suppressed, to damn a man, his career, his reputation. Of course if you're on the side with power, as Jonathan is, a video singing out spam about "facials" is just harmless.

      The other ironic consequence - and maybe this is what women want, to mitigate their shame and vulnerability - is that claims of sexual harassment and assault are being diluted by all this excess to the point of meaninglessness. That actually provides *cover* for the people who are guilty by a just standard. It gives credibility if Bill Cosby wants to cry "moral panic!" or "sexual hysteria", and it increases skepticism about claims of male misconduct.

    6. Not sure why my 2. and 3. were approved, but not the 1. I only suggested, IIRC - and not to be indelicate about Kathryn's feelings, as a graduate student philosopher here taking a public position - that none of us seem to be exactly experts on Title IX, since she omits the fact that the OCR letter warned that federal funding would be withdrawn for universities failing to straighten up and comply with new, vague, strict expectations. That seems like a pretty big fact. I put it, I think, more eloquently in the original comment. Apologies if there were some other stray offense or mis-statement I included inadvertently.

    7. RE: moderation — that got lost in spam somehow. I've found and approved it.

    8. Federal funding could be withdrawn before the 2011 DCL. That didn't change.

    9. It didn't, Kathryn? What am I missing? I'll hunt for sources - was the DCL a *reminder* funding could be withdrawn, a kind of heightened warning?

    10. Right--Title IX has always (and only) conditioned anti-discrimination requirements tied to federal funding. The DCLs are meant to serve as reminders and as guidance to institutions Title IX applies to. They typically refer to changes in case law schools should know about, or matters the OCR is finding in individual investigations are broadly not being properly attended to, or matters of special timely concern (like the bathroom stuff).

    11. So if it was a "reminder" or a heightened warning - doesn't that suggest it could have put pressure on universities, especially when the reminder came with new stipulations?

      I also worry that getting into the weeds of these details (well technically Title IX has *always* covered x) is a way to defer really thinking about the objections Kipnis, FIRE, etc. have raised. Or, you know, do you want to take up my offer of 3:27:00 PM on 5/26/17 in comment "2.", why or why not? Do you think, irrespective of particular cases or implications, 'moral panic' might fit?

      I would also say, personally, I thought of myself until a few years ago, when feminists went from musing, queasily, about "grey rape", to absolute moral certainty about rape culture and toxic masculinity and so on, as unequivocally in support of every feminist cause.

      Now, it's qualified support. Not that it particularly matters to you. But I think there's been a kind of moral over-reach, where women benefit from the stereotypes that they are more innocent and more discerning in social, interpersonal and emotional exchange. I think Internet discourse has created groupthink, where women, especially victims, reinforce each others' biases and perceptions in a way that isn't entirely accurate or fair. And might sometimes pressure each other to testify to emotional injury where it otherwise did not exist. And might, as a result, create an impression that rape and sexual trauma occur more frequently than they do.

      There are cases where frankly entirely innocent men have been railroaded by Title IX bureaucracy. At best, those are outliers to be corrected - at worst, a symptom of a more complex dynamic.

      I only offer this, modestly, to say that in spite of these serious misgivings, I'm still in full support of reducing the incidence of rape and sexual trauma, of teaching men to be more considerate and less aggressive, of communicating the seriousness of power, and of teaching women to protect themselves without internalizing the idea that they are thus responsible for their own victimization. But I don't think the Title IX stuff, or the false-alarm panics, or replacing patriarchal ideological myths with feminist ideological myths, are the way to accomplish all of the above.

  7. I think the idea that Kipnis's book (and Kipnis herself) is "unlikely to advance serious public discourse" is demonstrably wrong. Her intervention has already contributed greatly to serious discourse on this topic. Including the conversations at this blog, which Jonathan has been gracious enough to host.

    1. Kathryn says that making legal mistakes of this sort is unlikely to advance the discourse. That's consistent with the book causing advanced discourse. Insofar as the advanced discourse includes false presuppositions, that's not an ideal situation.

    2. That's a fair point. If Kathryn is just setting a fact straight, that's of course entirely laudable. Errors are never ideal. But I think this one is embedded in a largely accurate perception of the trend that the 2011 DCL marks, even if it did not initiate it. I don't think it undermines the overall value of the book. No book is ideal.

    3. But quite a bit of what Kipnis says at least appears to depend on facts she relays and her interpretation of those facts. Beyond the Ludlow case, there is the passage where she says that many people wrote her with stories about Title IX, for which (at least in the excerpts I've read) we only have her word. More importantly, insofar as she doesn't give details of these cases, we have to depend on Kipnis's interpretation in order to believe that these really are cases of "overblown charges, capricious verdicts, and frightening bureaucratic excess." The same pattern holds of Kipnis's original piece about sexual harassment; we had to take her word for the underlying facts about what she was saying, and their interpretation.

      So there's a heavy epistemic burden on Kipnis's word. If she's wrong about even basic publicly verifiable facts on the subject, then that provides a reason to doubt her interpretation of the facts for which we have to take her word. And that diminishes the overall value of the book considerably.

      (BTW, if you're wondering why I'm commenting so much on this thread when I said I couldn't before, I happen to have left open the alternate browser that doesn't keep me from using Blogger comments, for whatever reason.)

    4. There's a different approach to this: Ludlow's accusers claim he did something bad enough to destroy at least his career--with his life as acceptable collateral damage. Kipnis is arguing that in order to actually destroy someone's life like that, you have to have a really good case for his having done something very bad. She's only trying to establish reasonable doubt, not certainty about any particular facts. She's not saying he's a good person. She's saying the case for his being a very bad person, whose life needs to be shattered, isn't very solid.

      We don't have to take her word (I certainly don't let anything hinge on that). She's only asking us to think about what a due process might have looked like. That is, I don't actually think the burden of proof here is on Kipnis in the way you suggest. But Title IX (after the 2011 DCL) does put the burden of proof on him.

    5. Thomas, that's just not true. Kipnis asserts emphatically and repeatedly that the allegations against Ludlow are false. She is not merely making a case for reasonable doubt. She is affirmatively making the case that the student isn't telling the truth.

      This wouldn't be happening if she'd written a book that said "hey, I disagree with the preponderance of evidence standard for Title IX cases, I think these are important and harmful enough decisions to warrant reasonable doubt standards," and here are some cases where I think there's reasonable doubt.

    6. How can you make a case for reasonable doubt without suggesting that the accuser isn't telling the truth? Ludlow can only be innocent, as I understand it, if Hartley is not telling the truth.

      I get that Kipnis thinks Ludlow is innocent. But the book can be valuable even if I don't believe her on that point, or even if I only reach a reasonable doubt on the subject. You're just saying that this part of her argument fails (in your eyes).

      Or are you also saying she should keep her opinion about Ludlow's innocence to herself. That she doesn't have a right to make that opinion known?

    7. Anyone accused of being a witch is a witch.

      Anyone who defends anyone on a charge of witchcraft is also a witch.

      Anyone who objects to either of the above rules is a witch.

    8. Thomas, you said Kipnis is "only trying to establish reasonable doubt, not certainty about any particular facts". I said that's wrong; she isn't merely claiming that Ludlow hasn't been definitively proven to be innocent—she's saying that actually, as a matter of fact, Doe isn't telling the truth.

      I'm saying that she hasn't earned that claim, and she shouldn't make it. If she wants to express her opinion that she might not be telling the truth, and that consequently, there wasn't strong enough evidence to terminate Ludlow's job, then OK. I don't consider that point of view beyond the pale. (She certainly wouldn't get sued for saying that.)

      Even if she said, "my personal belief is that Doe is a liar and Ludlow was wrongly accused", that'd be a lot better than what she actually did. What she actually did was represent herself as an authority on the matter, and invite the world to trust her. It's closer to: "I have carefully examined the evidence using detached objectivity, and I'm here to tell you that Doe is lying." That's very far from trying to establish reasonable doubt. If the lawsuit is right, it's libel.

    9. I've been thinking of her book as obviously polemical and partisan, not an objective history of Title IX and the Ludlow case. I imagine that's also what her lawyers are going to emphasize.

      I read her more as saying, "I was there (at the hearing). I have seen the documents. And I don't think Doe is telling the truth about the relationship." It is not necessary to unpack the "I think" as "personal belief". She did actually "carefully examine the evidence".

      All non-fiction writers invite the world to trust them. But readers are free to let the errors you are talking about undermine that trust. And I'm assuming that's what you and Kathryn are doing here. You are saying she's an unreliable witness and hasn't thought carefully enough about the case.

      My view, I guess, is just that she has "earned" her claim, and she even has the right to be wrong about the claims she is making. I don't think she has an "authority" to worry about here because she really is writing from her own experience, her own perspective.

    10. I find the burden of proof/reasonable doubt argument to be a red herring here. Whether or not Kipnis is trying to establish that the accusations or false or merely raising a reasonable doubt, her case depends on the facts as she has presented them, and thus relies on her credibility. If the error she made about Title IX undermines her credibility (and I think it does), then that undermines her case.

      Analogy: In a court of law, a defense attorney only needs to establish a reasonable doubt, not to affirmatively establish their client's innocence. But if the defense calls a witness who testifies to facts that depend on the witness's word (say, an alibi witness), and the witness gets other things demonstrably wrong in a way that undermines their credibility, that undermines the case that there's a reasonable doubt.

      The question isn't exactly what evidential standard Kipnis's book needs to meet, the question is whether her mistake makes it harder for her to meet it. I think it (clearly) does. I also find it ironic that the defenses of her on this thread are invoking things like "she's expressing her own experience and perspective" (not a direct quote) and "she got the spirit right even if she got the letter wrong," which seems like the very attitude that Kipnis is objecting to when applied to people who view themselves as victims of assault or harassment.

    11. I agree, Matt. I participated in this sidetracking because I am also thinking about the lawsuit, where the distinction does seem important—but that's not the topic of this post. So you're right: factual mistakes are a problem, whatever strength Kipnis intends to establish.

    12. Matt, didn't you introduce the "epistemic burden" theme?

    13. Re: Jonathan Jenkins Ichikawa5/19/2017 02:46:00 PM

      Is libel a claim in the lawsuit?

      If so, I missed that.

    14. Count 3 of the complaint (¶¶84–89) is defamation. IANAL but I'm under the impression that under the circumstances (a published book), defamation is equivalent to libel. If I'm mistaken about this, I amend my remark above: "If the lawsuit is right, it's defamation."

    15. Right: libel is written defamation. The word "libel" is not in the law or the complaint.

      Two interesting aspects will be in play if the lawsuit makes it to court (most don't - they settle out of court).

      1) Is Doe/Hartley a public figure for the purposes of determining the standards for defamation. One would think that she is a private figure, but maybe not: As noted by Kipnis in her response to a letter to the editor of NU's paper, Doe/Hartley had already revealed much in an earlier interview in the CHE. Thereby, Doe/Hartley is a public figure by drawing herself into the controversy of public concern. If Doe/Hartley is a public figure, she must prove a much higher standard that Kipnis or her publisher acted not just negligently but with malice.

      2) The burden of proof will be on plaintiff, but again we will see the "preponderance of evidence" standard.

      More reading is here (Google it):


    16. Thomas: The theme I introduced was that there is an "epistemic burden on Kipnis's word," meaning (as I thought was fairly clear in the original post, but perhaps it wasn't) that her argument rests heavily on many claims for which we have to take her word--that is, the only reason we have to believe them is that she says they are true. Which is not an unusual situation in the epistemology of testimony, but one in which it is extremely important to figure out whether the speaker's testimony is reliable, and the speaker's verifiable/falsifiable testimony (particularly on the same subject) is a critical source of evidence on that question.

      The issue you introduced (and Anonymous trolled on) was, as I said, about the epistemic standard Kipnis's book needs to meet in order to achieve her goals, which is orthogonal to the question of whether her inaccuracy on Title IX diminishes her credibility. Even if she only needs to raise a reasonable doubt, it's harder for her to raise a reasonable doubt if she can't be trusted on basic facts.

    17. I think there is an important difference between criticizing her background research and criticizing her first-person account. She made an honest mistake about the DCL letter, where the truth wouldn't have significantly weakened her argument. To me, that doesn't call her honesty on matters where she claims to have first-hand knowledge into question.

      But you are, of course, free to let it count against her in your reading of the rest of the book. I have to admit I understand that attitude. It's a bit like a philosopher of science who displays ignorance about a historical episode that you happen to know something about. Or...

      A silly example of this: I was reading a book by one philosopher with great interest, but then ran into a passage where he was discussing conspiracy theorists and mentioned the movie Capricorn One. He called it the Capricorn Factor (probably confusing it with the Jesus Factor) and said it was about the Moon landings, when it was really about an imagined Mars landing. At the time, it took the wind out of my enthusiasm for the book. Thinking about it now, though, I think I should have just let it slide and seen what he had to say about substantive matters.

    18. Thanks for the exchange, everyone!

  8. Back to your original point. You cited a sentence from Kipnis' book:

    In 2011 the [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 ...

    I get your point. It might have been more accurately expressed as:

    In 2011 the [OCR] expanded the interpretation of sexual misconduct (everything from sexual harassment, to coercion, to assault, to rape) as a form of sexual discrimination, by issuing guidelines so vague ...

    Nevertheless, in my opinion, her writing is superb, independent of whether I agree with her position on any given issue. As an accomplished and popular writer, she now has true academic freedom, much more than professors without that source of income and influence.

    1. No, I don't think that's accurate either. (I also don't think it's an interpretation of Kipnis that coheres with what she said.)

    2. I kind of liked that edited version. And I think it can easily be fitted into her larger argument.

  9. Kipnis recently repeated her misunderstanding in an interview with the CBC, and goes further claiming that the "expansion" of Title IX into matters of sexual misconduct is thought by most to have been illegal.

    1. Thank you for linking to that excellent interview.

      The section you refer to begins at 11:45 of the 27:04 long interview. The interviewer, Michael Enright, describes Title IX's role as enhancing women's athletics and then Laura Kipnis does make a slip in the conversation to say that "most people" believe its expansion into sexual misconduct was illegal. She should have said, "most people that email me" or "many people" or "some people" or "I feel."

      She could have said, "there is at least one ongoing lawsuit (FIRE's) challenging the legality of the 2011 DCL." FIRE's claim (you know but the lurkers may benefit reading) is that the OCR didn't follow US federal rules about public comment period before issuing the DCL. This is an excellent example of the peril of not having such a public comment period - instead we get all sorts of reactions in policies and adjudications instead of in publicly expressed words before the new Federal policy takes effect. In that regard I feel the 201 DCL was illegal, and it's a shame that an injunction wasn't issued to postpone its effect until such time as pending litigation would be decided. I presume that has something to do with the DCL not being a law but merely an administrative interpretation of the US Federal government agency, OCR. "If you want to keep receiving Federal funds, then you must abide by all these regulations."

    2. You're jumping through so many hoops I actually can't tell if you're sincere or trolling me. It's a bit like if I said most scientists believe in the ether, and then someone tried to rescue my credibility on the matter by saying, oh, she spoke imprecisely--what she meant was most scientists who email her about these things, or most scientists who worked before ..." etc. Yes, some folks believe the 2011 DCL should have gone through a notice and comment period. That's decidedly not because they believe the letter represented any substantive change in policy regarding whether or not Title IX applies to sexual misconduct.

    3. As Obiwan said, I'm not "not the troll you're looking for."

      If you wish to take the very precise one-bit attitude toward "whether or not Title IX applies to sexual misconduct", i.e. that it is a purely logical true or false statement, then fine. We are done. You are convinced. And I don't care about the historical details as much as how the current implementation is making academia worse not better.

      If you wish to be more nuanced and ask HOW it applies, then yes of course the 2011 DCL represents a very substantive change in policy. THAT's the point. When it introduced the preponderance of evidence standard with the 2011 DCL, the OCR opened Pandora's box and did so illegally: it did not follow its own rules by not having a public comment period.

    4. It really isn't a matter of being interested in one or the other. The question I am here interested in is the 2011 DCL as it pertains to a Kipnis's book. That doesn't mean I have no interest in the second question. It means that whether or not you are right that the 2011 DCL represented a substantive change in the law, that doesn't bear on whether or not Kipnis understands Title IX.

      I don't believe this is the only error in her book. The student suing her is a colleague of mine, and so I have first hand knowledge of some of the evidence Kipnis purports to summarize in her book. I believe she paints a grossly inaccurate picture of what happened at Northwestern. I'm not going to lay out all of my evidence because I'm not going to further violate the privacy of those involved. My point here is that I've found the demands for specific evidence from those who believe the book is inaccurate in public discourse puzzling because the book doesn't even get some basic matters of public record right. This is one of those basic matters. So, yes, more nuanced conversations about Title IX and its implementation are needed. That's not the conversation I'm having here. I'm saying if that's what you want, I believe there is good reason to think Unwanted Advances is not a reliable contribution to that conversation.

  10. I just found something (via FIRE) that bears on the main point of the Kathryn's post. Back 2011, Sandy Hingston wrote an interesting piece explaining "how student sexual misconduct became a federal civil-rights liability for colleges", very much much focused on the 2011 DCL, which Brett Sokolow described as "one of the most important moments of my professional life." Sokolow is lawyer who has built his career on mitigating Title IX liabilities. In 2011 (!) his firm founded ATIXA, which, of course, references the DCL on its "about" page.

    To me, there's no question about the importance of the DCL. Kipnis gets the spirit of the letter right, even if she gets the letter (as it were) wrong.

    1. If you read the piece closely, you'll see that Sokolow had been writing white papers before 2011 on how this was already happening through case law. Everyone agrees the 2011 DCL was important. Again, Kipnis's interpretation of the spirit of the matter is that the OCR didn't properly vet whether or not Title IX applies to sexual misconduct--and that's fiction.

    2. Yes, I took Hingston to be saying that Sokolow was essentially lobbying for something like the 2011 DCL.

      I don't think replacing Kipnis's "fiction" with the correlative fact sets the DCL in a significantly different light. But I'm grateful for your correction, because it'll make my future writing about this more precise.

      Thanks for the post.

    3. Sorry to be persistent on this KP, but FIRE disagrees with you. It's lawsuit challenges specifically the VETTING of the 2011 DCL as not following procedure for public comment.

      This relates to University governance in the abstract. Faculty DO NOT LIKE the idea of administrators governing without FACULTY input. The public DOES NOT LIKE the idea of government bureaucrats governing without people's input (either directly or via their elected representatives).

      I suspect you may agree with me on that general point, but you have surprised me before.

      I think the discussion on this blog is an excellent example of all of us, more or less, pulling in the same direction, after much the same goals, and discussing the details or the implementation.

      Meanwhile the actual jerks continue to be jerks.

      To her credit, Kipnis wrote a BOOK published by a reputable publisher. It's going to be very hard for the plaintiff to prevail in court (my opinion). She may extract a settlement, but not a verdict in her favor.

      I saw a tweet by Kipnis suggesting that she had only this past week learned the term "Streisand Effect." Amazing if true. And relevant for Doe/Hartley.

    4. OK, Anon, I think you are trolling me now given that I just said exactly what you now take yourself to be arguing with me about. Yes, FIRE believes that the 2011 DCL should have gone through a notice and comment period. They are not the only organization who thinks this. Others disagree about this, and believe the 2011 DCL did not represent a significant change of administrative policy, but rather was offering guidance to institutions about what the law already required. All of that is utterly beside the point that Kipnis keeps mistakenly repeating and that I am here taking issue with. The reason FIRE and others believe that the 2011 should have gone through a notice and comment period is because they do not believe the law already required that sexual misconduct complaints be adjudicated by a preponderance of the evidence and they believe that specific matters of procedure advised (that is, that complainants and recipients have equal rights to appeal) are not appropriate. Taking issue with X is not the same as taking issuing with Y.

    5. We're all going to benefit from less trolling and less of people feeling like they are being trolled. So in the interest of tamping that feeling down, let me suggest that perhaps our messages passed like ships in the night. Here's your comments and mine in the order that they appear, which isn't quite chronological because of the way the blog maintains threads.

      I think when you write "I think you are trolling me now given that I just said exactly what you now take yourself to be arguing with me about." you didn't realize that my post appeared 2 minutes before yours, according to the blog history. (See ** below). (If I am identifying correctly the antecedent of your comment.)

      Regardless, no harm is meant to you by me. I feel it is always very important to recognize that it is not personal, i.e. not about the person, but only about the ideas as expressed.

      Kathryn Pogin5/18/2017 02:49:00 PM
      Kathryn Pogin5/19/2017 01:12:00 AM
      Kathryn Pogin5/19/2017 08:00:00 AM
      Kathryn Pogin5/19/2017 08:34:00 AM
      Kathryn Pogin5/19/2017 05:53:00 PM
      Kathryn Pogin5/20/2017 11:13:00 AM **
      Kathryn Pogin5/20/2017 08:10:00 AM
      Kathryn Pogin5/20/2017 01:39:00 PM

      A non Mouse5/18/2017 06:14:00 PM
      A non Mouse5/19/2017 02:50:00 PM
      A non Mouse5/18/2017 06:27:00 PM
      A non Mouse5/19/2017 04:24:00 AM
      A non Mouse5/20/2017 09:07:00 AM
      A non Mouse5/20/2017 10:52:00 AM
      A non Mouse5/19/2017 04:55:00 AM
      A non Mouse5/20/2017 09:03:00 AM
      A non Mouse5/20/2017 11:11:00 AM **

      I am mostly played out here.

    6. Yes, you're right. The comment wasn't approved yet when I posted above and I didn't notice the time stamp. Thank you for the clarification.

  11. The DCL, with strong advocacy/support from the Obama administration, put pressure on schools to become more active (and in more ways) in identifying and punishing sexual misconduct, which I think was basically Kipnis' point. As Kathryn pointed out, the DCL also called for the preponderance of evidence standard, perhaps the the most controversial part of the OCR "guidance." Kipnis and Kathryn are both correct as far as I can tell.

    Title IX was indeed applied before 2011 to sexual misconduct, but the DCL greatly turned up the pressure. There was a big difference on most campuses between pre- and changed campus regulations and enforcement significantly.

    To try to frame this as some kind of epistemic test is a bit silly, even for grad students.

    1. The majority of schools were already using the preponderance standard before 2011. What's controversial is whether or not schools are required to use it, not whether most schools changed evidentiary standards because of it (since they didn't). In any case, as I've already said to others, if you want to jump through hoops to charitably interpret her, ok. I think it's obviously inconsistent with what she's actually said.

      Are graduate students supposed to be intellectually silly? This is a stereotype I'm not familiar with.