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Vol. 16, No. 5, 2017
 
     
 
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just punishment for
SEXUAL HARASSMENT IN ACADEME


by
BRIAN LEITER

______________________________________________

Brian Leiter is a professor of jurisprudence and director of the Center for Law, Philosophy, and Human Values at the University of Chicago. Be sure to visit his philosophy blog. This article originally appeared in The Chronice of Higher Education.

Colin McGinn, a prominent philosophy professor at the University of Miami, resigned in 2013 rather than subject himself to a faculty inquiry regarding allegations of sexual harassment. He pled guilty only to failure to disclose a romantic relationship with a graduate student. She subsequently sued him and the University of Miami, claiming that she was sexually harassed and that the university took the easy way out, getting the wrongdoer to resign in order to avoid a prolonged public spectacle (it appears the latter calculation was not successful).

Should Professor McGinn be allowed to teach again after this scandal? Faculty at East Carolina University offered him a one-year visiting position subsequently, but the university’s administration vetoed it. I opened a discussion about all of this on my philosophy blog, posing the question: "Should loss of a job for sexual misconduct bar someone from any future academic appointment?"

A female assistant professor of philosophy responded as follows: "Uh -- YES. Is this a serious question?"

Her reaction led John Gardner, then the professor of jurisprudence at the University of Oxford, to reply as follows:

Of course it’s a serious question. We need to begin by asking whether the refusal to hire is punitive, and, if so, whether the punishment is proportionate to the offense. Or whether the refusal to hire is preventative, in which case whether there are ways to prevent that do not destroy someone’s life so completely. If the answer is ‘both,’ we need to know in what proportions, so that we can work out whether the constraints on each goal are being sensibly applied. If the answer is ‘neither, we’re just trying to send out a signal’ — then I invite you to consider whether it’s morally acceptable to use a person, any person, to do that. Unpleasant narcissists are people too and it’s not open season when one of them gets exposed for what he is. It still matters how we treat him. It shocks me that anyone would doubt whether ‘How should we treat a wrongdoer in such a situation?’ is a serious question.

Sexual harassment of students by their professors betrays the fundamental idea of a university as a place where everyone can come to learn and master an intellectual discipline, and be evaluated on their intellectual competence, rather than their sexual desirability.

Professors in fields like law, medicine, engineering, or the sciences, fired from an academic post for sexual misconduct, may well find another powerful perch outside the academy. That ideal has been betrayed for a long time, which has led to widespread frustration with institutional inaction in the face of sexual harassment — but also to vindictive responses from those frustrated.

Liberals who no doubt believe that convicted felons "deserve a second chance" sometimes sound like they think that accused or university-convicted sexual harassers should never be heard from again. But how could that be right?

Punishments should be proportional to the offense; that is a widely accepted principle of punitive justice. No one thinks that a sexual harasser should be castrated or hung. One also hopes no one thinks a sexual harasser should be prohibited from earning a living ever again. (Even convicted murderers, released from prison, are allowed to work).

But should a sexual harasser be barred permanently from teaching?

Clearly the answer depends on the nature of the offense and the offender’s response to a finding of sexual harassment. Some will point to McGinn’s flat denial of any wrongdoing; others will note his "unpleasant narcissis[m]," as Gardner put it. Those are relevant, but hardly decisive. How could his alleged sexual harassment of a Ph.D. student — whom he had hired as a research assistant and with whom he was working closely — bear on the safety of letting him teach undergraduates for a year as a visiting professor at East Carolina University?

What about a new permanent academic appointment? Has his punishment so far been insufficient? He no longer has an academic job or salary, and he has been embarrassed nationally and internationally. What more is required? Compensation to the alleged victim? Perhaps so, and given the lawsuit, he may yet have to pay that.

But suppose he does? What then? Can he at that point become a visiting professor at a state university focused on undergraduate education?

Someone who is found to be a sexual harasser should be punished but also prevented from victimizing someone else. That seems a sound ethical principle, but does it explain the current practices in academe?

On the one hand, academe is notorious for passing off sexual harassers ‘under the radar’ from one campus to another. If a professor is accepting a new teaching job under a cloud of sexual-harassment allegations, that should be disclosed. On the other hand, there are cases like that of Sujit Choudry, former dean of the law school at the University of California at Berkeley, who was found to have violated the university’s sexual-harassment policy, though there was no finding that he acted with a sexual intent. Since being sued, he is now subject, remarkably, to a second disciplinary hearing by his university — this time in an attempt to fire him from his tenured position (earlier this month Choudry himself sued the university, alleging that he was the victim of racial discrimination in its handling of this case). When does the punishment end?

A dean of a major law school should not be hugging his secretary on a regular basis, as Choudry did. Such a dean may not be a sexual harasser, but he is sufficiently insensitive to professional norms and legal rules to be unfit for administrative responsibilities, including responsibility for ensuring that others comply with legal rules regarding sexual harassment. He should have been removed from his job as dean. That seems hard to argue with.

So perhaps colleges and universities should consider another approach to dealing with sexual harassment by faculty: cut their salaries. But now Berkeley wants to fire him for the offense for which he lost his deanship and some salary already. He is now spending tens of thousands of dollars defending his right to remain as a professor, even though there has been no public allegation about misconduct in that role. In cases like this, vindictive hysteria appears to have replaced a proportionate response to the actual misconduct.

Some academics think the punishment for sexual harassers should extend beyond being effectively fired, demoted, and shamed. Thomas Pogge, a professor of philosophy at Yale, has been the subject of several allegations of sexual harassment, though Yale did not find against him on the most recent claim. (I have been among those sceptical of the official exoneration, I should note).

Pogge has been criticized and excoriated on social media as well as in a public letter signed by most of his department colleagues. But all of that was not enough for James Sterba, a philosophy professor at the University of Notre Dame. According to a report in The Huffington Post, Sterba is "no longer including Pogge’s work in exams for his graduate students." Sterba is quoted as saying of Pogge: "You don’t need him. He carries too much baggage — he doesn’t have to be cited anymore."

But how can Sterba’s decision be squared with the obligations of a professor to ensure that students are properly trained in a subject and its literature? In a post on this question on my blog, most philosophers, fortunately, disagreed with Sterba’s move.

Even when proportionality of punishment, and protecting possible victims, are kept in mind, there will still be cases where sexual misconduct warrants a permanent bar on teaching. But what then? A terminated faculty member, especially one prone to sexual harassment, is likely to continue behaving the same way in new settings. Is ousting a serial sexual harasser from higher education just a case of passing off the problem not to another university, but to a non-academic workplace?

The problem may not recur in cases where the fired faculty member can no longer occupy positions that give him power over potential victims. But sexual harassment is a widespread problem in many professions, not just in academe. Professors in fields like law, medicine, engineering, or the sciences, fired from an academic post for sexual misconduct, may well find another powerful perch outside the academy.

So perhaps colleges and universities should consider another approach to dealing with sexual harassment by faculty: cut their salaries. Call it a ‘carrot and stick’ approach, though with a stick bigger than the carrot. Firing tenured professors for harassment, or cutting their salaries, are both legally complicated. But the latter approach does not simply pass off the problem to the non-academic world. Why not punish sexual misconduct by faculty — at least sexual misconduct that is not criminal, in which case the legal system should take over — with serious internal sanctions, not de minimis ones?

For a first-time sexual harasser, whose actions were not criminal, cut that offender’s salary by 25 percent (or more if someone is very highly compensated) for a probationary period of two years. Then, if the offender gets his act together, his salary goes back to where it was. Make clear that a second offense during the probationary period will result in termination and disclosure of the grounds for termination.

If an offense occurs after the probationary period, cut that repeat offender’s salary by, say, 40 percent for another probationary period, with similar conditions.

Incentives, as my law and economics colleagues emphasize, often do work. The incentives for appropriate behaviour when it comes to sexual misconduct need to be more severe than they have been to really change behaviour, but they must also hold a promise of redemption. Absent such an approach, I fear we will see a continued slide into disproportionate and vindictive responses to sexual harassment, ones that will either condemn sexual harassers (disproportionately) to penury or that will simply send the problem outside the academy.

 

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