Chicagoans should recognize a "chilling effect."

Photographer: Scott Olson/Getty Images

Campus Justice: Punished Until Proven Innocent

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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In February, Laura Kipnis, a professor at Northwestern, wrote an article for the Chronicle of Higher Education in which she decried the creeping bureaucratization and fear that surrounds sexual activity on campus. Last week, she revealed that as a consequence of that article, she had been investigated for violating Title IX of the Civil Rights Act.

No, I'm not eliding some intermediate step, where she used printed copies of the article as a cudgel to attack her female students. The article itself was the suspect act. According to Kipnis, it was seen as retaliation against students who had filed complaints against a professor, and would have a "chilling effect" and create a "hostile environment" for women in the Northwestern community. Northwestern put Kipnis through a lengthy process in which she wasn't allowed to know the nature of the complaint until she talked to investigators, nor could she have representation.

But the process worked, says Justin Weinberg, because Kipnis was eventually exonerated. Weinberg, who teaches philosophy, also thinks it's "not obvious" that writing an article about an ongoing complaint, which does not mention either the students or professors by name, is retaliation under Title IX. Like Brian Leiter, I find his summation of the facts underwhelming, and as Leiter says, "If Kipnis's opinion piece about sexual paranoia on campus, in which the graduate student is not even named and barely referenced, constitutes adverse 'treatment,' then there is no right for any faculty member at any institution receiving federal funds to offer any opinions, however indirect, about any question surrounding allegations of sexual misconduct at the institution."

But I'll let Leiter argue with Weinberg about the case itself, because I want to take issue with this passage: "As I noted earlier, the Title IX investigation yielded no finding of retaliation against Kipnis. One can only imagine how disappointed she will be with this. It turns out that the process she had been demonizing—which of course may have its flaws—pretty much worked, from her point of view."

I think this is deeply wrong, and for all that, it is not an uncommon sentiment. You often hear this sort of argument when people complain about the byzantine procedures that colleges use to adjudicate charges of a racial or sexual nature, or when they argue that we should always presumptively believe any rape accusation: "Well, if they didn't do that, the system will figure it out eventually, so what's the big deal?"

This ignores the fact that the process itself can become the punishment. Sexual assault, racial harassment and similar crimes are serious charges, that should be treated seriously. This makes being charged with such an offense a very big deal for the accused. The judicial process is time consuming, often confusing, and scary. The accused may need to pay for legal advice, even though they often aren't allowed to take counsel into the system with them. Then there's the worry of knowing that however crazy the charge sounds to you, the campus judicial process may have very different ideas.

The campus system is, in its own way, especially punishing: The accused has limited rights, the system is opaque, and it's hard to even know how other cases get resolved. The system cannot send you to jail, but it can expel you with a mark on your permanent transcript that will make it harder to get admitted elsewhere, or if you work for the school, start the wheels in motion to get you fired. These are not small punishments. Some of the system's defenders say it does not need the same due process standards as a legal charge would, because it can't result in prison time. But I doubt these defenders would be so sanguine about this Kafkaesque process if it were directed at them, threatening their futures.

So if we do not attempt to weed out frivolous charges early in the process -- for example, by firmly telling graduate students that they do not have a blanket right to keep their professors from mentioning public charges the students have filed -- then we create a weapon that can be used against anyone you dislike, or disagree with. Courts are well aware of this problem, which is one reason that they try hard to throw out frivolous lawsuits as quickly as possible. It's also why they have all those protections around due process and transparency that campus judicial systems have abandoned. Not to mention a higher standard of evidence for a conviction.

Kipnis's case should have been dropped for the same reason that a court would grant a motion for summary judgment: because even if all the allegations were true, "writing about a case in a way I dislike" is not an act of abuse from which students need to be protected. Now, perhaps Northwestern felt that it could not dismiss the claim so swiftly, because the laws and regulations surrounding civil rights gave them no alternative but to stage a full investigation. In that case, the problem is the same, but the fault lies one level higher, with the bureaucracy that has told schools to put every single accused person through the wringer, no matter how outlandish the charge. This is obviously not good for the individuals accused. But it's also not healthy for the community or for its justice system.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor on this story:
Philip Gray at philipgray@bloomberg.net