Blacklisting is back.

In the days of Joe McCarthy, Hollywood screen writers and actors were the targets. Today, it is University professors accused of sexual harassment. Being accused is enough to destroy a professor’s career. Even speaking out against a false accusation can be dangerous, as I found out.

One of the most widely discussed cases involves the philosopher Colin McGinn, who resigned from the University of Miami after the University accused him of failing to report a romantic, non-sexual relationship with a 26 year old graduate student. The University did not accuse him of sexual harassment. Yet bloggers accused him and this was enough to get McGinn disinvited from conferences and speaking engagements, and blacklisted in the profession.

In 2015, the student making the initial complaint filed a lawsuit against the University of Miami, McGinn, and me. I had commented on the case and was accused of defamation. The Judge dismissed all charges against me with prejudice and none of us were found liable for any of the student’s claims.

Despite his legal victory, the blacklisting of McGinn continues. His case is not unique. Other philosophers have been blacklisted and have found it impossible to find employment in academia.

One is former Northwestern University philosophy professor Peter Ludlow. Ludlow’s university did not accuse him of sexual harassment, but he was nevertheless blacklisted by other universities, is out of philosophy, and to survive has been forced to move to Mexico. He too has been prevented from giving papers and has been subjected to blacklisting in publishing. Ludlow’s case is discussed in Laura Kipnis’ lively book Unwanted Advances: Sexual Paranoia Comes to Campus.

Two former members of the University of Colorado philosophy department were threatened with being fired because of issues related to sexual harassment, although sexual harassment was not the charge against either. Both resigned and are now out of the profession.

Two more recent cases involve a Yale philosophy professor and a distinguished philosopher at the University of California at Berkeley. One hundred sixty nine academics signed a petition against the former Yale professor, although Yale found no evidence of sexual harassment. The Berkeley Professor is retired, but 46,334 people have signed a petition demanding that he be stripped of his professor emeritus title and that his name be removed from the Center for Social Ontology at Berkeley.

There are many more academics blacklisted after being accused of sexual harassment without proof of guilt.

One cannot assume that all of these cases are alike with respect to guilt or innocence; sorting them requires credible evidence. Even this modest point is controversial. Some commenting on the #MeToo movement take the position that given the harm suffered by so many women, there would be a utilitarian gain if those credibly accused of sexual misconduct suffered punishment even if some are innocent. There is something to this point. There is good reason to clear the stables and begin again with a new understanding of how women in the workplace ought to be treated. Yet a policy of “Kill them all and let God sort it out” is not a rational policy, nor a morally acceptable one.

The #MeToo movement comes to academia: a prominent Harvard economics researcher is facing allegations that he made "sexually inappropriate" comments: https://t.co/NMQJmKVFvM — Vox (@voxdotcom) May 23, 2018

For professors actually guilty of sexual harassment, what would be an appropriate punishment? Brian Leiter, a philosopher and law professor at the University of Chicago, asked on his philosophy blog if loss of a job for sexual misconduct justifies being barred for life from future employment. One female philosopher responded “Uh –YES. Is this a serious question?”

It is. Sexual harassment may include what the Hollywood film producer Harvey Weinstein allegedly did to so many women over a long period of time, but under United States law, far less egregious behavior can also constitute sexual harassment.

The U.S. Equal Employment Opportunity Commission (EEOC) defines “sexual harassment” to include unwelcome sexual advances, but using coarse sexual language or telling sexually offensive jokes also constitute sexual harassment if the result is a hostile or offensive work environment. What is the appropriate punishment for such verbal behavior? Reduction in salary? Firing? Firing plus blacklisting? Or, something else? It is hardly obvious that permanent exile is always the appropriate response to such objectionable speech.

Despite doubts about relying on the EEOC definition in deciding appropriate punishment, it should be possible to have a rational discussion about blacklisting if we stick to that definition, but most academics who favor a “commonsense” account of sexual harassment do not. Many give a much wider definition.

Here is how the Feminist Majority Foundation characterizes sexual harassment:

“Any of the following unwanted behavior may constitute sexual harassment:

leering

wolf whistles

discussion of one’s partner’s sexual inadequacies

sexual innuendo

comments about women’s bodies

‘accidentally’ brushing sexual parts of the body

lewd & threatening letters

tales of sexual exploitation

graphic descriptions of pornography

pressure for dates

sexually explicit gestures

unwelcome touching and hugging

sexual sneak attacks, (e.g., grabbing breasts or buttocks )

sabotaging women’s work

sexist and insulting graffiti

demanding, “Hey, baby, give me a smile”

inappropriate invitations (e.g., hot tub)

sexist jokes and cartoons

hostile put-downs of women

exaggerated, mocking ‘courtesy’

public humiliation

obscene phone calls

displaying pornography in the workplace

insisting that workers wear revealing clothes

inappropriate gifts (ex. lingerie)

hooting, sucking, lip-smacking, & animal noises

pressing or rubbing up against the victim

sexual assault

soliciting sexual services

stalking

leaning over, invading a person’s space

indecent exposure”

Does leaning over, invading a person’s space or demanding, “Hey, baby, give me a smile” warrant firing and a lifetime ban on university employment?

The Feminist Majority Foundation’s view of sexual harassment is not intended to be scientific, but this cannot be said of the recent report of the National Academies of Science, Engineering, and Medicine.

The National Academies report on sexual harassment in academia will be released TOMORROW. If you're planning to attend in person (we are!), public transit is the best bet, as the #ALLCAPS victory parade will be happening along Constitution Avenue, at the same time as the event. https://t.co/9aDqTjCMEm — AAS Public Policy (@AAS_Policy) June 11, 2018

The report asks how prevalent sexual harassment is in these disciplines. It concludes that it is very common; 58% of academic employees say they have been sexually harassed. The report characterizes different types of sexual harassment. By far, the report says, the most common form of reported sexual harassment involved what the committee calls “gender” harassment: verbal and nonverbal behaviors that convey hostility, objectification, exclusion, or second-class status.

Without clear definitions of these concepts, there is no way to tell how many of these reports of gender bias are accurate. How would the scientists conducting the study determine if a joke or other type of utterance was intended to convey “objectification” or whether the listener merely interpreted it this way? The same problem arises for someone interpreting a remark as conveying “exclusion” or “second-class” status. How did the scientists reliably distinguish comments that conveyed exclusion or second-class status from those that did not?

James Damore was fired by Google in 2017 after he wrote a memo suggesting that the under-representation of women at Google was a result of women’s lesser interest in software engineering—rather than discrimination within the technology sector. Did his memo convey a message of exclusion? Some interpreted it this way; some did not. How would we tell who is right?

Even if we can tell that a message conveyed hostility, objectification, or exclusion, what would be the appropriate punishment for gender harassment? Should the guilty scientists or engineers be fired and blacklisted for life, or just fired, or neither?

Some academics do not see sexual harassment as the main issue. They hold that even if there is no sexual harassment, any professor who has an affair with a graduate student or colleague of a lower rank should be fired and banned permanently from teaching. Such affairs, it is alleged, are never consensual because of power imbalances. This extreme doctrine goes far beyond a sensible thesis that universities should discourage such affairs. Besides being implausible, the extreme view is also insulting to women.

In the last century, professors and students, doctors and nurses, bank presidents and vice-presidents, union bosses and their underlings, fell in love, had affairs, and often married. The idea that in most or all of these cases the women lacked the strength to overcome the effects of their power disadvantage is not based on any credible evidence and is insulting to these women and, in some cases, men.

Blacklisting is not a venial sin. Except where it involves extremely bad actors, it is an evil practice. Yet the shame of academia is not this. It is rather the blacklisting of the merely accused without proof of guilt.

As many in Hollywood learned in an earlier era, once an accusation is made, its effects can rarely be extinguished. Careers and marriages were ruined; friendships were broken; some became impoverished; others, such as Philip Loeb, committed suicide.

Why are so many professors convinced that once accused never hired? Do they think that gossip, rumors, and accusations suffice as proof? Some do; they have shown this by their style of argument, as I found out in my own department. I very much doubt that most do.

Something else is going on. There is a widespread fear of bad publicity and retaliation.

Administrators know that rehiring a McGinn or a Ludlow can trigger a backlash that can harm them. Students may demonstrate, as they did at Northwestern when Ludlow was permitted to teach after being accused. The story of hiring an accused philosopher can wind up on the Huffington Post or on the front page of the New York Times, as the McGinn story did, damaging the reputation of the department and the university. The Board of Trustees might react by demanding resignations of administrators or blocking their promotions.

Philosophers who try to hire someone accused of sexual harassment know that the administration may punish them by withdrawing financial support for salaries, time off, or new hires. Their reputation may suffer when other philosophers condemn them.

Editors of academic books fear that contributors will withdraw if an article by someone accused of sexual misconduct is included. Few organizers of academic conferences will dare invite an accused scholar lest trouble follow.

As long as this situation persists, administrators and faculty will have a powerful reason not to hire someone publicly accused of sexual misconduct even if there is no credible evidence of guilt. It is not a moral reason but one of self-interest. The gain from hiring a distinguished professor such as McGinn and remedying an injustice is likely to be outweighed by what is said to be a risk of scandal-tinged harm to the university or department, which in translation often means risk of detriment to my career, my standing in the profession, my salary, my promotion, my perks.

Moral courage in this domain is hard to find. The prevalent motto is: “Tis time enough tomorrow to be brave.”

Ed Erwin is a Professor of Philosophy at the University of Miami.

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