On Proportionality of Punishment of Academic (Sexual) Harassers

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.

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.)--Brian Leiter "Academic Ethics: What Should We Do With Sexual Harassers in Academe? Should they be barred permanently from teaching?" The Chronicle of Hire Education.

I warmly recommend Brian Leiter's piece (from which I have quoted above). It raises a lot of important issues about matters of principle and also some of the cases familiar from professional philosophy (McGinn, Pogge). I find all of it worth reflecting on, and I hope it inspires discussion across our discipline as well as wider university culture. Most of what follows questions the proportionality principle -- "Punishments should be proportional to the offense" -- that Leiter relies on. I offer evidence that academic life, including academic sanctions, is not governed by such a proportionality principle. (That is compatible with it governing our legal system.) I'll also say something about how we should try to think about the violation of what Leiter calls "the fundamental idea of a university" that is, "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." (I explicitly ignore here both (i) the issue of citing and teaching material of sexual harassers that Leiter also discusses in passing because I can't improve on Neil McArthur's old guest-post which seems to have escaped Leiter's notice and I ignore (ii) some of my disagreement with Leiter over how he presents/interprets the cases he discusses.)

As I have noted before (while writing about the Pogge case recall), academics actually treat harms against the profession rather severely: for example, serial plagiarists (e.g., Martin Stone) are (when caught) often banished from the profession and academic life, and given no second chances. This is also true of folk that get caught in multiple cases of serious academic misconduct (Stapel, Marc Hauser, etc.). In many cases of violations of academic integrity we de facto do not believe in second chances and we think that employment in the profession should be prevented. Many years ago, a journalist pointed out to me (with a mixture of bemusement and outrage) that academics tend to treat sins against the profession/discipline far worse than society treats a whole range of awful crimes. We convey something of this attitude to our students when we can give a student a (fairly automatic) F for (serious) cheating; many universities have some kind of procedure in which a student's academic misconduct becomes either a permanent feature of the academic records or becomes a permanent barrier to completing the degree.* What is especially notable about these cases is that disciplines and universities often are far more severe than the law. (That's not true of all the cases; some grant agencies have become notably harsher than universities/disciplines.)

I am not denying that it is possible to treat the kinds of cases I mention in the previous paragraph as falling under some kind of proportionality principle. But (a) that's not the natural reading of these cases and so the principle of proportionality does not apply in violations of academic integrity; and (b) if the proportionality principle is taken to apply then the severity of these punishments is strong evidence that we take violations of the integrity of the academic enterprise as extremely serious offenses. (Of course, a reformist reader may decide that the proportionality principle does apply here, and argue that the existing punishments do not fit the crimes, or that there are half-way places between utter banishment and ongoing engagement in academic work--this came up in the Hauser case.) My own favored interpretation is actually (b) -- our practice reveals we tacitly take violations of the integrity of the academic enterprise as extremely serious offenses --, but what follows will only assume that one needs to argue for the principle of proportionality in the context of academic offenses and can't take its applicability for granted.

Now, it's quite clear that until very recently our discipline (nor the academy, although professional philosophy lags some other disciplines) treated sexual harassment of students and colleagues without any seriousness at all--Leiter also notes this in his piece. (I am hopeful that there has been a norm change, although I worry that our  collective inability to prevent various kinds of retaliation and harassment directed against victims who have stepped forward may make the new norm rather hollow in practice.) The question now is as Leiter suggests, ‘How should we treat a wrongdoer in such a situation?’ but before we answer that we also need to settle if these cases fall under the principle of proportionality (as Leiter assumes) or fall under some other principle. (To be sure Leiter also allows that "protecting possible [future] victims" is also a consideration that may be taken into account and he may well be allowing other considerations; there is no disagreement between us on this point.)

Here I want to turn to Leiter's important observation that the cases of sexual misconduct and worse violate 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." I agree with Leiter about this (although I suspect that a lot of misconduct is not a consequence of perceived sexual desirability). This particular harm is distinct from all the other harms that follow from various forms of sexual misconduct (and let me grant that these harms may well fall under some proportionality principle). Violations of this fundamental idea are very much like violations of academic integrity. These violations undermine our collective mission to teach, learn, and master an intellectual discipline. In the case of plagiarism we have long recognized this, in the cases of sexual misconduct we have been scandalously slow to acknowledge it.

Now one may think this sexual misconduct violates only the educational/research mission of individual victims. In fact, I would argue that sexual misconduct within the academy violates this fundamental idea not just for the victim but also for the wider academic environment. I never recognized this feature until I spoke to a number of women who had not themselves been targeted in anyway, but started to wonder why they did or did not receive attention from their teacher/supervisor/colleague (who was engaged in sexual misconduct). It really pollutes, so to speak, a whole intellectual environment. (It is no surprise, after all, that universities are modeled, in part, on monastic institutions.) So, this is why we should at least consider treating sexual misconduct within the academy as a species of academic misconduct and so liable to rather serious punishment from one's peers.

 

 

*Some novelists love satirizing our stance (which may seem ridiculous to outsiders), but the more reflectives ones recognize that in so doing we also bind ourselves to norms that may make us better as a group than the daily lives and societies we belong to.

Comments

[Ole Koksvik]

FWIW, the evidence of which I'm aware strongly suggests that academic misconduct a la plagiarism is treated very widely according to proportionality, at least as far as students are concerned. It's a widespread source of consternation with colleagues I've discussed this with, that the response if often so very mild.

More importantly, it's compatible with that, that there is a threshold above which the appropriate response /is/ to bar the person from further participation in academica.

[Michael Mirer]

What seems to be missing from this discussion of proportionality (more evident in Leiter's piece than yours) is any discussion of what kind of harm is being caused and how that relates to the harasser's status as a teacher. Leiter's two strikes policy seems to suggest that the act of harassment is minimal enough that it is worth risking subjecting future students to it. In both the Pogge and McGinn cases their actions were directly related to their status as advisers/mentors, and we have reason to believe that at least one of them was a serial harasser. I don't know how either conducted themselves in a classroom, but based on their actions I do think we have reason to question their competence as pedagogues (which I would hold is different from their expertise in philosophy).

[Matt]

A point only slightly related to your main issue here. I'd really like to encourage people, when referring to the serial plagiarizer(*) scholar of medieval philosophy, to refer to him as Martin W.F. Stone, so as to help distinguish him, in google searches and the like, from the completely distinct and innocent of plagiarism legal philosopher, Martin Stone, who teaches at Cardozo law school. (I only found out about the MWFS cases when searching for the legal scholar's web page and got a lot of hits connecting the name with plagiarism. I don't know how Stone, the legal scholar, feels about the whole thing - I don't know him at all - but I have long felt sorry for him on this.) It seems like trying to minimize any confusion is a small thing to do.
(*) in relation to proportionality considerations, the fact that Martin W.F. Stone really did _a lot_ of plagiarism, in lots of venues, surely matters. He's not someone who we know of only one bad act. But that's beside the side point I wanted to make here.

[David Duffy]

I would look to the example of medical ethics:

"... whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence."

A single sexual act with someone who is in a professional relationship with you leads to deregistration to work in the field for several years at a minimum, which undoubtedly affects earnings, and could perhaps be regarded as disproportionate in some lights (given modern mores).