Another Kipnis Case at Northwestern

BY JOHN K. WILSON

The New Yorker revealed today that Laura Kipnis’ Title IX nightmare, discussed in her recent book, did not end when the book came out. In fact, six graduate students and four professors at Northwestern filed another Title IX complaint against her retaliation because of the book, and the administration investigated her for a month over the charges, asking her 80 questions about her sources and motives for statements in the book, such as “what is the source/are the sources for this information?,” and “How do you respond to the allegation that this detail is not necessary to your argument and that its inclusion is evidence of retaliatory intent on your part?” Kipnis responded by not answering these ridiculous questions.

Books aren’t retaliation. They literally can’t be retaliation because books just sit there and get read. They don’t commit an action. According to Northwestern, “Examples of retaliation could include, but are not limited to: adverse actions relating to someone’s employment; reducing a grade; removing someone from an organization; direct or indirect intimidation, threats, or coercion; or harassment or other forms of discrimination.” Nothing about Kipnis’ book comes anywhere close to anything like that. This doesn’t mean that Kipnis is right or her book is accurate; it simply means that you can’t use anti-retaliation policies to punish people because you don’t like their books.

Northwestern was apparently forced to admit this, but it decided that Kipnis had violated the university’s incredibly vague and dangerous policy on “civility and mutual respect” because she questioned the truth of a graduate student’s account and hoped that “the book will cause a bit of a shit storm.” Northwestern said that these “behaviors could be interpreted as demeaning and/or intimidating.”

No, they can’t. If Kipnis had literally created a storm made of shit and rained feces upon her enemies, that would be demeaning and intimidating. But a reference to a metaphorical shit storm is neither one. And judging the truth of things is a fundamental purpose of a university, not a violation of its rules.

In the end, a dean at Northwestern decided to avoid the shit storm and not find Kipnis guilty on trumped-up charges of lacking “civility.” But the larger question is why Northwestern held an investigation at all over something that did not meet a minimal standard of retaliation.

Now it appears that Northwestern has suddenly decided to change its retaliation policy after dismissing the complaint against Kipnis, with the aim of making it easier to punish anyone like Kipnis accused of retaliation. The new proposed policy is hidden behind a password protection due to Northwestern’s strange policies (which prohibit outsiders from seeing policy proposals), but I was able to obtain the language.

The new policy defines retaliation this way:

“Retaliation: any attempt to seek retribution against an individual or group of individuals who engaged in protected activities. Retaliation can take many forms, as described in Section II below. Action in response to protected activities is retaliatory if (i) it has a materially adverse effect on the working, academic, or other University-controlled environment of an individual; and (ii) it would not have occurred in the absence of the protected activities.”

This is an incredibly broad and poorly-written policy. What does it mean if a definition includes two separate definitions without any indication of whether both or either one must be met? The first line is especially bad: “any attempt to seek retribution” could mean almost anything, including writing books or articles critical of another person, since “retribution” is never defined. If that definition stands by itself, it’s a severe threat to academic freedom.

The second definition of retaliation offered in the policy is also troublesome. It marks a small but important change from Northwestern’s current view of retaliation “defined as an adverse action taken because an individual has engaged in protected activities.” Notice the two differences: before it was an adverse “action” taken “because” of the activity. Now, it will be an adverse “effect” that wouldn’t have happened in the absence of it. Even if the accused didn’t make an action aimed at harming someone, the “effect” is sufficient. And even if it wasn’t caused by an initial complaint, if it somehow happened as a result of it, that’s sufficient.

The new proposed policy at Northwestern is a dramatic danger to academic freedom, one that re-makes “retaliation” in new ways. It appears that Northwestern mostly copied an existing bad policy at Princeton, seeing in it an opportunity to broaden the definition of retaliation.

A policy this bad would be objectionable at any time. But coming in the wake of dubious accusations against Kipnis that should have been immediately dismissed, this new policy seems aimed at encouraging people to use the campus retaliation policy to silence criticism. And that makes it a frightening step. At a moment when Northwestern’s disastrous response to the Kipnis case has brought widespread criticism, the administration ought to be improving its flawed systems, not making them worse.


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5 thoughts on “Another Kipnis Case at Northwestern

  1. so as an expert on speech, your expert opinion is that “intimidation” can only happen if a literal storm of feces is brought into being?

    “Northwestern said that these ‘behaviors could be interpreted as demeaning and/or intimidating.’ No, they can’t.”

    Seriously? You are now saying that a woman who has been doubly, triply, victimized both in private and in public is objectively wrong to claim that she feels intimidated?

    Who put you in charge of that distinction? is that the legal standard for intimidation? Because as someone who follows law carefully, my experience is that most “intimidation” is done with words, words that “just sit there.”

    AAUP defends academic freedom because words ARE important. because they DO have consequences. you are bending over so far backwards here to defend several vile actions by reprehensible people that you are now demeaning your own central principles. If you honestly believe that words cannot intimidate, you need to go back to law school and start a new career as a legal scholar to advance your opinion. What’s next? Words can’t be used as part of a criminal conspiracy? Words can’t be used to direct another person to commit a crime?

    Words are often a part of civil and criminal prosecution. Further, I’m sorry, but standing from the outside, part of the point of Kipnis’s book and of Ludlow’s giving Kipnis personal communications from the woman in question WAS to intimidate her. and it worked. And even so Northwestern used a careful process and, likely correctly according to its existing standards, took no action against her. Give me a break. this is the process working correctly, and your repeated inability to stand on the side of powerful professors and institutions versus repeated, ongoing, extremely widespread harassment of various sorts is really troubling. It’s columns like this that make me happy I no longer belong to AAUP, because I don’t know what “freedom” you are defending or whose “freedom” you are defending.

    • Yes, I am saying that subjective impressions do not define intimidation (to be fair, I’m not certain anyone at Northwestern claimed to be intimidated by Kipnis, that was the administration’s judgment). And you appear to have a very broad definition of “intimidation” in mind rather than a legal definition. Here’s a common definition of intimidation: “intentional behavior that ‘would cause a person of ordinary sensibilities’ to fear injury or harm” (https://en.wikipedia.org/wiki/Intimidation)
      So it’s a rational person standard, and it normally refers to physical harm, not to emotional harm. When Kipnis referred to her book causing a “shit storm,” she was clearly stating that her book is controversial, not threatening someone. Criticizing an alleged victim’s claims must be part of the permissible public debate on campus, even if being criticized might discourage complaints. Otherwise, if Ludlow claimed that he was the victim and filed a Title IX countercomplaint, would you ban all public criticism of him and call it retaliation?

      So, words can intimidate and threaten. If Kipnis had made actual death threats in her book, I would not defend her. But opinions about a campus controversy are not a form of intimidation. The fact that some words in rare circumstances can constitute a crime does not mean that one’s opinions about a political controversy are therefore a crime.

      I also question your claim that I’m standing on the side of the powerful here. Of course, I believe in protecting everyone’s free speech, whether they are powerful or powerless. But is Kipnis, who has no power over any of these graduate students in another field, and who has never filed a complaint against them, really more powerful than the four professors and the administration seeking to punish Kipnis?

      • Agreed. This entire episode also demonstrates, albeit in an indirect way, how the economic model of privatization, centering on the financialization of student tuition, has created a situation where administrative overreach is teaching students how not to be resilent.

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