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Guest Column: Northwestern needs to do better than the bare minimum in handling Title IX case

Laura Beth Nielsen, Guest Columnist

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On Thursday, a federal judge dismissed a Northwestern undergraduate’s Title IX lawsuit against the University; the dismissal likely will be appealed. Unless there is a settlement, which is the most common outcome in cases like this, the litigation associated with philosophy Prof. Peter Ludlow will go on for some time. As a sociolegal scholar who studies discrimination and harassment, I get lots of questions about what exactly is happening in these legal proceedings from students, faculty and staff. Like many universities in the U.S. struggling to deal with unclear, contradictory and complex laws about sexual assault and harassment, the ongoing interest in these issues means that it is important for the NU community to understand this important area of law. It impacts everyone on our campus.

Many details of this case remain contested, meaning no judge or jury has made a determinative finding of facts. But court documents indicate there is a report in which NU’s own investigation found by a “totality of the evidence” that Ludlow engaged in “unwelcome and inappropriate sexual advances” toward a female undergraduate target after “heavy consumption of alcohol” purchased by Ludlow. When such a finding is made, Title IX requires that a university take certain steps to ensure that the target is able to pursue her (it’s usually a woman, but not always) education. Along with other punishments (we don’t know for sure what those were), NU issued a “no contact order” meaning Ludlow was told not to contact or retaliate against the target. The target thought that NU should have done more to protect her from Ludlow and sued the University on that basis. The question this dismissal answers is whether the no-contact order was enough to protect the target, according to the law. The district court said yes.

What is enough? And how did the court decide? According to a Supreme Court case decided in 1999 called LaShonda D. v. Monroe, when a university knows that sexual harassment or misconduct has occurred, Title IX requires the university to take steps to protect the target so she can complete her education unfettered. In so doing, the university must not act in a way that is “deliberately indifferent” to the target. The target in this case argued that by failing to fire or ban Ludlow from campus until she graduated NU, the University was deliberately indifferent.

Many believe that the “deliberate indifference” legal standard is too low – including me – but that’s just an opinion. It is the standard unless the Supreme Court changes it or Congress amends Title IX to change it. The “deliberate indifference” standard essentially means a university must do slightly more than nothing to protect targets, such as the no-contact order.

The good news is that “deliberate indifference” is just the bare minimum that the law requires. NU can choose to do better than the minimum legal requirements. The deliberate indifference standard is a floor below which NU must not fall, but it is not a ceiling. In addition to the excellent care that victims receive at the Center for Awareness, Response, and Education and Counseling and Psychological Services, NU could establish rules and standards that reflect our commitment to caring and compassion. For example, one best practice followed by some schools is to ban a perpetrator from campus until his target has graduated or voluntarily withdrawn. NU does not have to do better than the law requires, but we certainly may.

Similarly, we could adopt a best practice of specifying and publicizing the range of punishments for certain kinds of sexual assault or harassment when found by the sexual harassment investigators. For example, if a professor exchanges grades for sexual favors, the professor could be fired despite tenure, or put on unpaid leave until the student(s) graduate or put on paid leave for one year. One hallmark of a fair system of punishment is that punishments are known.

A confounding issue in these cases is that personnel privacy laws make it difficult for NU to announce disciplinary actions taken against perpetrators of sexual harassment. But targets who have been brave enough to come forward often are unsatisfied not knowing how the case was resolved. A known set of punishments would protect targets because they would have a sense of how the case was resolved. A known set of punishments would also protect the University from lawsuits motivated by a target’s understandable desire to know the resolution of the case. And finally, a known set of punishments would even protect perpetrators, a concern shared by prominent academics around the country. Consistency is also a hallmark of a fair system of punishment. A community conversation in which everyone participates and discusses appropriate punishments might help us establish known standards.

To be clear, these discussions would be about the steps the university takes after a finding of sexual harassment or assault had been found by our internal investigatory process. And those steps could be the bare minimum or something better if we choose it.

NU students, faculty and staff are compelled to excellence. We are not satisfied with the bare minimum. When it comes to protecting students who have been targets of sexual harassment or assault, I know we can do better. We are Northwestern; we are better than the bare minimum.

Laura Beth Nielsen is a professor of Sociology and Director of Legal Studies, Northwestern University, and research professor at the American Bar Foundation. She is the author of License to Harass: Law, Hierarchy and Offensive Public Speech and is part of The OpEd Project’s Public Voices Fellowship at NU. To respond to this guest column, email a Letter to the Editor to opinion@dailynorthwestern.com.

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