Amid a national debate about due process and fairness in campus Title IX adjudications, Justice Ruth Bader Ginsburg recently observed, “there’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know: everyone deserves a fair hearing.” Few academics have more powerfully made these criticisms than Northwestern University professor Laura Kipnis, whose 2015 Chronicle of Higher Education essay lambasting Title IX’s application to campus sexual-assault and harassment allegations prompted a university Title IX investigation—against Kipnis herself. Though Kipnis was exonerated, the investigation was a form of punishment, since professors normally aren’t questioned by lawyers hired by their school as the result of publishing in their area of expertise. The experience prompted Kipnis to write Unwanted Advances: Sexual Paranoia Comes to Campus, which explores how Title IX has come to threaten the rights not only of accused students but also of faculty.
One chapter of Unwanted Advances took readers inside a Northwestern University sexual-assault and harassment hearing against philosophy professor Peter Ludlow. Though the university cleared Ludlow of his sexual-assault charges, it found him guilty of sexual harassment, and he resigned. Kipnis lawfully obtained the university’s investigative file and about 1,000 text messages between Ludlow and one of his accusers, a female graduate student.
The graduate student, Lauren Ledyon-Hardy, was a Kipnis critic before the book appeared, twice criticizing her in op-eds in which she charged Kipnis with violating the Northwestern faculty handbook by writing an “alarmingly inaccurate” essay in the Chronicle of Higher Education. She further denounced Kipnis’s “repugnant moral and political views” and hailed the parties who filed Title IX complaints against the professor as “pretty reasonable”—without revealing that she was speaking of herself. Ledyon-Hardy’s conduct exemplifies Harvard law professor Jeannie Suk Gersen’s concern that “Title IX is too often conscripted to serve purposes antithetical to the education of citizens in a democracy, in which disagreement, dissent, or disapproval should lead to argument, not to an infinite loop of institutional investigation.”
After Unwanted Advances appeared, Ledyon-Hardy turned to the courts, alleging that Kipnis’s book was defamatory and improperly disclosed private facts. Her complaint faulted Kipnis for falsely portraying her as excessively “litigious”—a complaint that Ledyon-Hardy ironically sees as remediable through a federal lawsuit. The lawsuit’s core, which focused on Ledyon-Hardy’s disagreement with how Kipnis presented evidence, threatens both academic freedom and investigative work about Title IX. Yet U.S. District Court Judge Jack Blakey has greenlighted the suit. The judge tipped his hand when he allowed Ledyon-Hardy to litigate under a pseudonym—despite her previous op-eds, signed with her real name, criticizing Kipnis. (Kipnis and her publisher, HarperCollins, have filed a response to the complaint, and discovery has commenced in the case. The next stage, absent a settlement, would be motions for summary judgment before the district court.)
Blakey cites passages in Unwanted Advances that, he says, suggest that “[Ledyon-Hardy] has committed a crime.” This is an overstatement, to say the least. The book insinuates, at most, that she misled Northwestern’s Title IX adjudicators. (A more plausible interpretation of Kipnis’s argument is that, in a frenzied campus atmosphere in which she received dubious guidance from Title IX activists, Ledyon-Hardy reinterpreted her relationship with Ludlow to conform to campus ideological assumptions.) Either way, though, Kipnis’s book didn’t suggest that the student had committed a crime—because it’s not a crime for accusers to lie to campus Title IX tribunals.
Even more troublingly, Blakey held the nature of Kipnis’s research—chiefly her obtaining the Title IX adjudication file—against her. As Kipnis recognized, this material showed how “arbitrary and often outlandish tribunals are being conducted at colleges and universities all over the country, with accused faculty and students being stripped of their rights and, in many instances, simply hung out to dry to give the appearance that higher ed is mobilized against sexual assault.” By tracking down the documents that exposed Northwestern’s dubious conduct, Kipnis failed to rely, Blakey maintained, on “only publicly available information,” undermining her defense against Ledyon-Hardy’s claim of disclosure of private facts.
But this type of research has been critical to exposing many problematic Title IX adjudications—including Emily Yoffe’s report on a miscarriage of justice at the University of Michigan, Cathy Young’s undermining of the claims of Columbia University “mattress girl” Emma Sulkowicz, Robby Soave’s exposé about a wrongly accused African-American student at Colorado State University-Pueblo, and my own work about a deeply flawed Title IX adjudication at Amherst College. Other examples come from cases where procedures unduly favored the accused, such as the Salt Lake Tribune’s series about complainant-unfriendly procedures at Brigham Young University.
In virtually any other context, Blakey’s ruling would have generated widespread condemnation from professors for infringing on academic freedom and from journalists for threatening their ability to report on biased campus tribunals. But in the context of alleged campus sexual assault, due process and the pursuit of truth take a back seat to preserving the status quo.
Photo: Elmhurst College