Author’s note: This book review concerns guidance issued by the Department of Education’s Office for Civil Rights during the Obama Administration. Secretary of Education Betsy DeVos recently rescinded the guidance and plans to issue a rule pursuant to the Administrative Procedure Act. However, internal policies and procedures put in place by colleges and universities in response to the Obama-era guidance, which were what ensnared Professor Kipnis, are still in effect.
Introduction
Laura Kipnis, professor of filmmaking and proud feminist, was shocked to find herself the subject of a Title IX investigation. What was her offense? Had she made a pass at a student or developed a reputation for telling ribald jokes at faculty meetings? No. She had written an essay criticizing a new Northwestern University policy prohibiting dating between faculty and undergraduate students. For this offense, she became the subject of protests featuring mattress- and pillow-carrying students and, more ominously, a Title IX investigation that threatened to end her career.
Unwanted Advances is the fruit of Kipnis’s Title IX experience. She was intimately involved in both her own Title IX investigation and the dismissal hearing of her colleague, Peter Ludlow, who was also alleged to have violated Title IX. Due to unusual circumstances, Kipnis had access to many documents from both proceedings and was not bound by standard confidentiality agreements.
It is likely Kipnis’s background as a professor of film that makes this book shine. Her exploration of the people involved in Ludlow’s case, and other anecdotes that she briefly discusses, is as interesting as a novel. She draws the reader’s attention to the ambiguity of relationships and the prevalence of conflicting desires – something with which we are all familiar, but consideration of which seems to often be absent in adjudicating Title IX claims. This is not the book to read for an exacting discussion of the Title IX legal regime, nor is it supposed to be, but it is an excellent look into the confusing, multiple-narrative world of a Title IX investigation. It also provokes concern that application of Title IX to speech may infringe upon the First Amendment.
Title IX
When many people think of Title IX, they think of women’s collegiate sports teams. But Title IX has expanded beyond requiring women’s athletic teams or women’s bathrooms. The Supreme Court found in Cannon v. University of Chicago (441 U.S. 677) that a private right of action is available under Title IX. Franklin v. Gwinnett County Schools (503 U.S. 60) established that monetary damages are available under Title IX for a teacher’s sexual abuse of a student when the school knew about the abuse, and Gebser v. Lago Independent School District (524 U.S. 274) held that a school must be aware of teacher-student abuse and that its response must amount to “deliberate indifference” in order to be liable. Finally, the Supreme Court held in Davis v. Monroe County Board of Education (526 U.S. 629) that a school could be liable for student-on-student sexual harassment.
The Department of Education’s Office for Civil Rights (OCR) enforces Title IX. If a student believes a university has violated her rights under Title IX, she can file a complaint with OCR. OCR then investigates the complaint. In some cases, OCR will expand the investigation beyond that individual student’s complaint into an investigation of the entire school’s Title IX compliance. OCR also issues “Dear Colleague” letters that, while technically only explaining how OCR will enforce Title IX, arguably make substantive changes to what is considered sexual assault and sexual harassment, and how universities are expected to handle such claims.
If a university is found to have violated Title IX, it may lose federal funding. Almost all colleges and universities are heavily dependent upon federal funding, so the mere threat of losing funding terrifies institutions. And even if a university is found not to have violated Title IX, any OCR investigation is punishment in and of itself. Kipnis writes that an average Title IX investigation “lasts two to four years …. The process typically costs a school $200,000-$350,000.” Schools therefore have a very strong incentive to do almost anything within their power to avoid being the subjects of an OCR investigation.
Investigation of Kipnis
Kipnis’s essay, ““Sexual Paranoia Strikes Academe,” prompted two Title IX complaints by students. One student filed a complaint “on behalf of the university community” and two other students, claiming that the essay “had a chilling effect” on students’ ability to report sexual misconduct.” The other student objected to being mentioned in the essay as “a former grad student he [Peter Ludlow, to be discussed shortly] previously dated.” (The latter student has now sued Kipnis over Unwanted Advances - http://www.chronicle.com/article/Laura-Kipnis-Is-Sued-Over/240105.)
At first Northwestern refused to disclose even what the complaints were or who had made them. Kipnis was not allowed to have an attorney present when she finally spoke with the attorneys hired by Northwestern to investigate the complaints, nor was she allowed to record the interview. She was facing an investigation that put her career in serious jeopardy with no idea of what the complaints were about or any way to fight the complaints other than with her own wits. After an agonizing investigation, she was eventually cleared of any wrongdoing.
Dismissal Hearing of Ludlow
Kipnis then served as the faculty support advisor for a philosophy professor, Peter Ludlow, who had been the subject of two Title IX investigations and who the university now sought to dismiss. Kipnis provides a detailed discussion of the circumstances surrounding the two complaints. To summarize, an undergraduate student filed a Title IX complaint against Ludlow based on his alleged behavior during a single night during which she and Ludlow went to an art exhibit, drank, and both slept in his bed (though both she and Ludlow agreed they did not have sex). The second complaint was from a graduate student who, years earlier, had been involved with Ludlow for several months and said that Ludlow once had nonconsensual sex with her when she was drunk.
The attorney hired to investigate the rape claim was unable to make a determination about the claim because of other evidence that cut against the claim. However, the investigator wrote, “He [Ludlow] took advantage of the unequal power balance between them which arose out of their academic professional relationship as professor/student and mentor/mentee.” Kipnis writes: “[I]f power differentials make consent impossible, then any person in a position of asymmetrical power (a male, a professor, a high earner) who has sex with a person with less power (a female, a student, a low earner), is effectively a rapist even if the less-empowered person has consented.” [emphasis in original]
Although the investigator had been unable to make a determination about whether a rape had occurred, another investigator who had been charged with investigating the claims by the student who slept in Ludlow’s bed had ruled that he had made “unwanted advances” to the student. This case had initially been resolved two years earlier, and although the university disciplined Ludlow, it had not dismissed him. In the wake of the rape allegation, the university sought to dismiss him on the basis that Ludlow had engaged in a pattern of inappropriate behavior.
Kipnis served as Ludlow’s faculty support advisor during the dismissal hearing. Ludlow resigned before the hearing concluded, having concluded that the outcome was likely to be adverse to him and so he might as well save on legal fees.
Campus Rape Culture
The third subject on which Kipnis focuses is culture. Today, she says, there are two conflicting stories about sex on college campuses: “The first story is all about license: hooking up, binge drinking, porn watching . . . Layered on top of that is the other big story of the moment: sex is dangerous; it can traumatize you for life. It’s not a happy combination.”
Kipnis, as a feminist, is concerned that the combination of these two stories encourage women to see themselves as victims of predatory men and for school administrators to treat them as such. She believes strongly in female agency and considers this a step backward. She also believes that this story actually harms women by relieving them of responsibility for taking steps to protect themselves against rape, particularly in regard to drinking. Heavy drinking exposes women to danger to which it does not expose men, but if you mention this on campus “you’ll immediately be accused of ‘blaming the victim’”. Kipnis does not want to blame any victims – she would like to reduce the number of future victims, and women who experience not-strictly-consensual but not-strictly-nonconsensual sex because they are too drunk to know what they really want, only to wake up the next morning filled with regret. Conversations with her students led her to conclude that “There’s no doubt that plenty of men are having sex with women who are comatose or close to it; are using various combinations of persuasion or physical advantage, or assuming consent where none is given.” On the other hand, “To be fair to the men, it can be impossible to tell when someone is blacked out; you can seem completely cogent while being technically incapable of consent.”
Kipnis’s point is that we should take the world as it is, not as we would like it to be. And the world as it is means that heavy drinking often puts young women in positions where men take advantage of them, even if the situation does not meet the legal definition of rape. She writes that there is evidence that sexual-assault prevention strategies that focus on changing female behavior have more success than those that focus on changing male behavior.
However, I wonder if Kipnis herself is a bit guilty of wishing the world and people were different than they are. At one point Kipnis posits that perhaps students drink to excess in order to “enact regressive gender stereotypes,” and later that “For the more emotionally unprotected among us, drunken random hookups are a formula for psychological discomfort and interpersonal disaster.” A few paragraphs later, she relates an anecdote from a student who engaged in such a drunken hookup, but took it as an opportunity for personal growth. But it seems likely that there are a number of girls who, for reasons of personality or background, would not take such an experience in their stride, and would not do so however much the importance of female agency was impressed upon them.
Kipnis pins her hopes on women developing more agency and resiliency and more caution around alcohol, both of which are laudable aims. OCR pins its hopes on – I think – encouraging men to be very sure that they have received consent at every stage of sexual activity by hanging the threat of a Title IX investigation over their heads. Unfortunately, I suspect both efforts will be largely ineffectual, because they do not tackle hookup culture head-on. If OCR and colleges and universities really believe that there is an epidemic of campus rape, they should take steps to reduce the circumstances in which such sexual assaults occur. Some of these steps would be relatively straightforward – for example, mandatory single-sex dorms that do not allow members of the opposite sex in the dorms from midnight to eight a.m. Schools could prohibit drinking or possessing alcohol on campus (of course, students can always go to off-campus parties). Schools cannot prevent every broken heart or every regretted hookup, or even, sadly, every rape. And women are moral agents as well. But reducing the prevalence of sexual activity on campus generally would leave fewer women saddened and confused after not-entirely-consensual hookups, and fewer men facing Title IX investigations. This would require a tacit repudiation of some aspects of the sexual revolution, however, and therefore will not be adopted.
Carissa Mulder is a graduate of Notre Dame Law School and special assistant to Commissioner Peter Kirsanow of the U.S. Commission on Civil Rights. She resides in Virginia. This review does not represent the views of the Commission.