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Title IX and Sexual Harassment

Mitchell Abidor
April 17, 2017


by Mitchell Abidor

Discussed in this essay: Unwanted Advances by Laura Kipnis. Harper, 2017, 245 pages.

AMERICAN COLLEGES have become a punching bag, or laughing stock, for certain elements of student life that have become standard: trigger warnings (advance notice of upsetting subjects), safe spaces, banning of speakers defending unpopular ideas, and more. Who did not hold their head in wonder when reading about the college students who complained that they found the name “Trump” written on the sidewalk to be “threatening”?

Into this nest of hornets comes Laura Kipnis’ compulsively readable and essential Unwanted Advances, which deals with a matter far less anodyne than mere offended feelings, namely, the expansion of the use of Title IX, which has grown from protecting women’s right to equal treatment in sport to a means of cracking down on sexual assault. This would not seem to be an objectionable aim at all, but as Kipnis demonstrates, Title IX is being used in circumstances that lack due process to ensure the fairness and safety of outcomes, resulting in what Kipnis likens to witch-hunts. Those accused are not informed of the charges against them; no lawyers are allowed; the adjudicating officer often bases his or her decisions on assumptions about male-female (or male-male, or female-female) relationships. The end result has often been catastrophic, with he-said/she-said hearings that have resulted in career-ending verdicts for professors and the curtailing of studies for students. Most alarmingly, jobs can be lost and lives ruined based on what a hearing officer deems “preponderance of evidence,” the proper weight of which is determined with no set guidelines.

Kipnis focuses on the fate of Peter Ludlow, a philosophy professor at her own university, Northwestern, who was the accused in two cases, both of which glaringly expose the flaws in the Title IX process.

Ludlow was first accused of assaulting a student, Eunice Cho, with whom he’d spent an evening out at art galleries and a bar, and whom he then invited to sleep at his home, which he claims they chastely did, fully clothed. Kipnis is enraged by Ludlow’s stupidity, given the reigning atmosphere, but as her close examination of the case shows, there is no reason to believe anything untoward happened (Kipnis clearly and fairly notes that it is impossible to know exactly what happened, but unlike the accuser Cho, she provides evidence to back up her case), certainly nothing that would result in an alleged suicide attempt (Kipnis thoroughly debunks Cho’s claim about this) and a case of PTSD -- or a man’s career being ended. That the student went out with the professor willingly seems clear. But in the world of what Kipnis calls “moral panic” associated with Title IX, Cho’s claim that whatever she did was coerced, due to the power Ludlow had over her as a professor, is allowed to stand, while the reality -- that he was not her professor and so had no ability to fail her or undermine her -- falls by the wayside.

The second case against Ludlow is more frightening. It resulted from a complaint filed two years after a three-month relationship with a graduate student, Nola Hartley, who also was not supervised by Ludlow. Under Title IX, consent can be retrospectively withdrawn, which is precisely what Hartley did, insisting that she and Ludlow had only had passing encounters, all nonconsensual, despite the existence of a thousand romantic texts and emails over a three-month period. As Kipnis asks, “What [does] it mean to not consent to sending a thousand texts and emails?

FOR DECADES, French philosopher Michel Foucault has been the rage on American college campuses, but the teaching of Foucault -- that power is polyvalent and multi-directional -- has not sunk in. The mindset of Title IX, when dealing with professor-student relations, is that all power flows one way, and it is the professor who rules and abuses his or her power. Kipnis writes: “The reality is that it’s far more likely for a student to derail a professor’s career these days than the other way around. In fact, students can be quite ruthless in trying to bring down the objects of their enmity, including fighting (with increasing success) to fire professors whose views, demeanors, or humor they find not to their liking.” And Kipnis provides a host of examples as proof.

Aside from the strictly academic side of the matter, the notion of power flowing one way, from the omnipotent professor to the powerless student, ignores the messy nature of romantic relations. A reading of the documents in the second case against Ludlow makes it abundantly clear that, in fact, Nola Hartley had the upper hand in a consensual relationship that was loving at the start but, like many relationships, turned sour. Ludlow had no power over her academically, and the texts and emails they exchanged show he was far more smitten with her than she with him. She was even able to have him drive her to the airport to catch a flight to visit her other lover! It all ended badly, and Title IX enabled her to wreak revenge by retrospectively denying they had ever had a relationship at all, and that whatever had been done during their non-relationship was non-consensual on her part. That an investigator was able to find Hartley in the right, Kipnis says, “requires [the investigator] to expunge all female intelligence, agency, autonomy, and desire from her calculations.”

Along with the procedural nightmares recounted in Unwanted Advances, Kipnis, who describes herself as a leftist and a feminist, is more concerned with a larger issue: the way feminism is being used as a way of returning to the days of passive femininity under the guise of fighting sexual assault. What is removed from the equation in the cases she discusses is female agency. “In a sexual culture,” she writes, “that emphasizes female violation, endangerment, and perpetual vulnerability (‘rape culture’), men’s power is taken as a given instead of interrogated: men need to be policed, women need to be protected.” Women are assumed to be unable to say “no.” She continues: “What use to anyone is a feminism so steeped in self-exoneration that it prefers to imagine women as helpless children rather than acknowledge grown-up realities?”

There are feminists who believe that “We should believe, as a matter of default, what an accuser says. Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.” These words were written by the activist Zerlina Maxwell in the Washington Post after it was revealed that the infamous University of Virginia rape story related in Rolling Stone was false. One can understand the initial impetus behind her remark: Women have been for too long, and continue to be, disbelieved when they claim they’ve been raped. But does justice require the abandonment of any critical standards? Can anyone intellectually sustain such a point of view?

Kipnis points out that the wave of feminist activism she grew up with decades ago aimed at getting school administration out of students’ lives. Students were adamant that they were free individuals and that the administration was the enemy. Those who depend on Title IX insist that the university act in loco parentis, and God help the school that fails to stand by its child, right or wrong.

KIPNIS DOES NOT for a second believe that sexual assault is not a problem on campuses, but, statistics in hand and through personal investigation, she presents it as connected to the mania for binge drinking. “The pattern . . . when it comes to heterosexual sex, is college-age men and women getting bombed and acting out the respective gender extremes: men as aggressors, as predators; women as passive, as objects.” Here, too, Kipnis refuses to accept as a practical matter that concentrating on changing male conduct is the only way to go, but insists that the conduct of college women must be changed as well, that they must be taught how to avoid dangerous situations, to defend themselves, and to say, loudly and firmly, “No.” Doing so is not blaming the victim, she makes clear, but rather an acceptance that waiting for men to change is a recipe for allowing the assault attendant to binge drinking to continue into a far distant future. She writes:

Yes, aggressively disposed men forcing sex on passively inclined women is routine in our culture. But if women can’t be taught to protect themselves against such normalcy because men should stop assaulting women, and because learning to defend yourself means capitulating to rape culture -- well, here you begin to see the two-way nature of the current social pathology.

Universities and their Title IX apparatus become a kind of helicopter parent, in the name of a version of feminism that Kipnis does not recognize. “This isn’t feminism, it’s a return to the most traditional conception of female sexuality,” she argues. “What dimwitted sort of feminism wants to shelter women from the richness of their own mistakes?”

She herself was once brought up on Title IX charges as a result not of her actions but her ideas, since contesting the bureaucratization of sexual assault can be alleged to have a “chilling effect” on those who think otherwise -- which is a Title IX violation. Her description of her hearing is suitably angry and mocking, but what happened to her just a few weeks ago when she was invited to speak at Wellesley is even more revelatory of what has gone wrong in our universities.

A campaign was mounted to keep Kipnis away. Six professors there, while claiming to defend free speech by placing limits on it, worried about the impact of listening to her. “There is no doubt,” they wrote, “that the speakers in question impose on the liberty of students, staff, and faculty at Wellesley. We are especially concerned with the impact of speakers’ presentations on Wellesley students, who often feel the injury most acutely and invest time and energy in rebutting the speakers’ arguments.”

You have read correctly: listening to opposing ideas is an imposition because it forces students to expend energy thinking. Here is a protest video against Kipnis by Wellesley students:

EARLY IN HER BOOK, Kipnis writes that future generations “will wonder how supposedly rational people could have succumbed so easily to collective paranoia.” They’ll wonder, she hopes, “how anyone would have described any of this as feminism when it’s so blatantly paternalistic . . . Restoring the most fettered versions of traditional femininity through the backdoor is backlash, not progress.”

All of the syndromes so sadly common on the left -- self-proclaimed anti-fascists deciding who has a right to speak; the fear of listening to opinions that go against the grain; the demand for protection from all that is unpleasant or considered to be so -- all of this is of a piece, and is cause for alarm. If there’s anything that should have been learned from the past century of political action, it’s that the ideas and means employed before achieving power are predictive of what will happen when victory has been achieved. What is occurring in our universities is a caricature of what progressives have fought for, a caricature that we can only hope will never be able to take the step into reality. Voices like Kipnis’ are necessary in order to awaken us to the sins of our own camp and to warn us off enabling their continuation.

Mitchell Abidor, a contributing writer to Jewish Currents, is a translator and writer living in Brooklyn. He has published many books of translations from the French, his articles have been translated into German and French, and his Voices of the Paris Commune has just appeared in a Turkish edition, put out by Kafka Kitap of Istanbul.

Mitchell Abidor, a contributing writer to Jewish Currents, is a writer and translator living in Brooklyn. Among his books are a translation of Victor Serge’s Notebooks 1936-1947, May Made Me: An Oral History of My 1968 in France, and I’ll Forget it When I Die, a history of the Bisbee Deportation of 1917. His writings have appeared in The New York Times, Foreign Affairs, Liberties, Dissent, The New York Review of Books, and many other publications.