The Case for Student Shields

Unusual sexual harassment lawsuit at Northwestern U., in which a professor is suing a former graduate student who accused him of assault, has sparked debate about student indemnification policies.

November 5, 2014
 
Peter Ludlow

Should colleges and universities indemnify students who bring charges of sexual assault for lawsuits launched by their alleged attackers? New developments in an ongoing case at Northwestern University have brought that question to the fore, with proponents saying that indemnification promotes environments in which victims feel comfortable coming forward, without the threat of financial devastation if they’re sued. Opponents, meanwhile, say that such policies could encourage false claims.

Earlier this year, news broke that an undergraduate at Northwestern was suing the university for violations of Title IX of the Education Amendments of 1972 in how it handled her complaint of sexual assault against Peter Ludlow, an associate professor of philosophy there. The student said that Ludlow assaulted her after an evening out together at an art exhibit and several bars. After an investigation, the university found that Ludlow had violated its sexual harassment policy – but not enough to fire him. Northwestern enacted some sanctions, such as precluding Ludlow from a pay raise for a year, and told him to avoid social contact with students. But the alleged victim said that wasn’t enough, and accused Northwestern of “deliberate indifference and retaliation” following her report.

After details of the case were made public, including by Northwestern in an unusual statement, another student – this time a Ph.D. candidate in philosophy – came forward alleging that Ludlow had had nonconsensual sex with her. The graduate student first disclosed the alleged assault to Jennifer Lackey, another professor of philosophy, who reported it to the university and helped file a formal complaint. A third-party investigator hired to look into the new allegations found while there was insufficient evidence to support the assault claim, Ludlow still had violated Northwestern’s sexual harassment policy based on his position of power relative to the graduate student.

Now, Ludlow is suing the university, Lackey and – in a relatively unprecedented move – the graduate student for defamation, false light invasion of privacy and civil conspiracy. He’s accusing the university of violating gender discrimination under Title IX.

Ludlow denies the assault claim, pointing to the fact that he and the graduate student had engaged in a consensual relationship prior to the assault. He says that the third-party investigation was flawed and biased against him, in that it “failed to consider or even cite relevant evidence in [his] favor.” He specifically accuses Lackey and the graduate student of defamation and false light invasion of privacy.

Lackey is indemnified by the university in this suit, as her involvement relates to her employee status. But the student may not be. Northwestern – like many institutions – only grants student indemnification requests on a case-by-case basis, and a spokesman declined to say whether it had been offered to the graduate student named in Ludlow’s suit; Northwestern generally does not comment on pending litigation.

Lackey said she, too, was legally limited in commenting on the active case against her. But she said it highlights the importance of indemnification policies protecting students who report sexual assault to their institutions and participate in Title IX investigations.

“The absence of indemnification for student victims can have a chilling impact on academic communities, for it provides an extremely effective means of silencing victims of sexual assault and sexual harassment: the threat of financial ruin from defending against lawsuits brought by the very people who have already victimized them,” Lackey said in an email. “If we want colleges and universities to be safe for all of our students, we need to make it clear to victims that that their courage in coming forward will be supported, and indemnification is a vital part of this support.”

Lackey pointed to recent post she’d written on the topic for the Daily Nous, a popular philosophy blog. In it, she encourages faculty members helping a student report sexual assault to “fight aggressively on her behalf for the college or university to indemnify her."

"You are in a far more powerful position than she is in, and you have far more resources to appeal to in negotiating and advocating on her behalf,” Lackey wrote. “Tell your institution how it is in its own interest in the long run to cultivate an environment in which students can seek justice and safety for themselves and others without the added risk of financial ruin."

In her post, Lackey also says it's “important to recognize that lawsuits often force the defendant into silence,” and the “social isolation that comes with it.” To that end, she also asks fellow philosophers – whose discipline is notorious for sexual harassment – to “reach out to victims of sexual assault and sexual harassment, to let them know that they do not stand alone and that their position in our profession is secure.”

Graduate students in Northwestern’s philosophy department also posted a letter on the Daily Nous in support of their peer, “vigorously repudiating” Ludlow’s suit against her.

“The pursuit of this legal strategy and its silencing effects should be troubling to the philosophical community,” the graduate students’ letter says. “Suing a graduate student for filing an internal, and otherwise confidential, sexual misconduct complaint is intolerable.”

Following her post, Lackey said she’d gotten some positive feedback, including from colleagues who didn’t know that student indemnification was “even a possibility.”

Mi-Kyoung Lee, an associate professor of philosophy at the University of Colorado at Boulder, which last year suspended graduate admissions following highly publicized concerns about a culture of sexual harassment and bullying there, read Lackey’s post. She said she hadn’t previously heard of student indemnification but was “very interested” in the idea.

“The worry is that if respondents to sexual harassment complaints then bring lawsuits against the complainants for defamation or false statements,” Lee said, the effect will be "chilling and silencing" to future complaints, unless students can defend themselves without incurring "crippling" legal fees.

On the flip side, Lee said, as an alternative to suing those who report sexual assault for defamation, respondents who feel they've been treated unfairly could lodge federal complaints against their universities for mishandling a Title IX case.

In their letter, the Northwestern graduate students also suggest that course of action for dissatisfied Title IX respondents, saying: “It should be noted that even if a faculty member feels that their due process rights have been infringed upon, and even if no university grievance process is available, there are other [federal] courses of action available."

But blanket student indemnification for students participating in Title IX investigations has its opponents, too, with some saying that guaranteeing a shield against legal fallout could encourage false claims. Others, too, say it’s not the university’s role to protect students in this way.

Even outside of highly charged sexual assault cases, indemnification remains controversial. In 2008, for example, a professor at Columbia University’s Teachers College was accused of plagiarism, and her lawyer, Paul Giacomo, objected to the fact that those bringing complaints against his client were indemnified. Giacomo claimed that Columbia had tainted the plagiarism investigation by shielding the accusers from any eventual lawsuit. "People who are telling the truth don't need to be indemnified," he told Inside Higher Ed at the time.  

Brett Sokolow, president and chief executive of the NCHERM Group, which advises institutions on issues related to security and sexual assault, among other topics, said that blanket student indemnification due to all those concerns remains “an idea being floated, not a trend.” He didn’t know of any campuses offering it.

Why “should the university cover the costs of an independent third party’s choice to sue?” Sokolow said, noting that the university “does not and cannot” control whether a faculty member takes action in an attempt clear his or her name. The “problem” with indemnification remains that “while most such defamation actions are baseless, some are in fact the accused person’s only chance to vindicate themselves and clear their names from a false accusation," he said.

Sokolow also said indemnification could make institutions more legally vulnerable down the line. “The question for me is if a victim prevails in a defamation suit, can she then bring additional charges internal to the institution alleging that the suit was retaliatory?” he asked. “I would imagine so.”

Ludlow, who is not teaching this quarter but remains on the Northwestern faculty, did not respond to a request for comment. The graduate student co-defendant referred questions back to Lackey.

The professor said she’d heard all the major arguments against indemnification. In response, she’s relied on analogy, saying that having medical insurance doesn’t make more people want to break their bones or otherwise incur pain or illness.

Similarly, Lackey said, the “trauma associated with reporting sexual assault and sexual harassment by members of one’s own academic community is so deep and far-reaching that protection from the possibility of adding financial devastation to this hardly seems to be an incentive to raise false allegations.” 

Shira Tarrant, a professor of gender studies at California State University at Long Beach, and a representative of the new, national Faculty Against Rape (FAR) group, said it was "standard practice for universities to indemnify their faculty and staff, and it therefore seems reasonable to extend this protection to the student community." She said indemnification for students is an "emerging and important issue" that FAR plans to investigate more closely.

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