I recently wrote an article for graduate students and junior scholars about how to escape a tenured sexual predator. Understandably, some readers responded by demanding that the burden of this work not fall to the victims, and that colleges and universities should simply fire these serial perpetrators.
I could not agree more. Institutions should fire every single known sexual predator on their campuses immediately.
So why didn’t I just write about how to remove serial harassers? Because I don’t know how. Everyone I know who has tried to pursue the firing of a tenured predator has failed, often with dire personal and professional consequences.
Let me be clear: You cannot simply point out a predator and get that man — or in some cases, woman — fired. Do that and you will trigger an internal investigation and parallel legal processes, both of which will require the victim to meet daunting evidentiary standards. In fact, if you so much as tweet a tenured predator’s name and “#MeToo,” you will very likely receive a warning letter from a law firm within days, if not hours, demanding a public retraction and apology, with a financial threat of defamation and legal fees. Certainly the #MeToo movement has outed some serial harassers, but how many actually lost their tenured gigs?
So I cannot offer you a safe and easy way to remove a tenured sexual predator. What I can offer — aided by several colleagues I consulted who have expert knowledge in this area — is a clear outline of the existing obstacles to justice that both frustrate victims and make it easy for tenured sexual predators to remain in power, even after multiple complaints.
A warning: Readers who have experience with a tenured predator may find this article triggering. Yet I hope that these reflections can help people of conscience in academe to better understand this hellscape, and thus fight for change. Without an aggressive system-level revolution, women students and scholars will continue to have little recourse.
If you are in trouble today, my advice on how to escape from a predator still stands. But in this piece, let’s take a look at what it means to fight back.
This is an opaque process. I fully support cries of “zero tolerance,” “fire the predator,” and “the burden should not be on women.” But in reality, there is no way to even attempt to remove a tenured predator without an official investigation, triggered by a formal report by the victim. Whether through a Title IX or other internal investigation, that process requires the complainant to present a case against the predator, with documentation and evidence, that will be adjudicated through a formal campus process.
While the complaint process varies from place to place, there are some common challenges. First, on most campuses, each complaint is evaluated discreetly — and discretely. The following scenario is illustrative, and not about a particular institution or case. However, it is based on actual cases and patterns that are all too common on college campuses. Here’s how it plays out:
- In 2005, a graduate student named “Jane” files an internal report of harassment against a tenured predator. She gives initial testimony that the predator is allowed to read and respond to. However, based on the 2005 protocols, Jane isn’t allowed to read or respond to his counterargument. The campus administration deems the material confidential and seals the results of the investigation. A confidentiality clause in the settlement agreement guarantees that the report and its contents will never be released.
- In 2012, when “Susan” files a complaint against the same predator, it’s evaluated as a new and discrete incident. The administration never tells Susan that it has Jane’s 2005 complaint on file — nor does it have the explicit legal obligation to do so. The results of Susan’s 2012 case are, likewise, held in a separate, confidential file.
- As a result, this year, when “Marsha” accuses the same predator, she will have no access to either Jane’s or Susan’s confidential reports. The university may even have destroyed them if it routinely shreds documents after a given period.
Often in these situations, none of the women ever know that the other cases exist. But, you may be wondering, why weren’t any of the women able to remove the predator through their individual complaints? Opacity, confidentiality issues, and procedural protocols speak to this problem. However, there are also a few other key reasons that the complainants face an uphill battle.
Predators know the system. A seasoned predator knows the evidentiary standards of the internal complaint process, and how to manipulate that system. Say, for example, that our “Susan” initially felt she had a very strong case. The things the tenured predator had said and did were outrageous. But Susan had set consistent and clear boundaries, kept a journal, and reached out to a senior professor for support.
Once she began to compile her report, however, she might notice that the predator had left very little hard evidence — nothing truly incriminating in writing. The most egregious offenses happened when she was working alone with him in his lab, late in the evening. Some of her peers had heard him make inappropriate jokes but were out of earshot for the worst parts. Of course, she’d told a couple of sympathetic lab mates, but they weren’t eyewitnesses. Susan had created a log, so she had dates of the offenses, but otherwise she had minimal evidence. (To be clear, it is never advisable to re-engage a predator to try to gather more evidence.)
Much to her dismay, some of the emails Susan had exchanged with the professor, before he started harassing her, may have left a different impression of their relationship. Could those friendlier exchanges be used to make adverse inferences against her and her case? What looked like an innocuous comment at the time could be misconstrued as evidence of a personal relationship. Maybe he used a wink emoji, and she used a smile emoji. They’d agreed to have a coffee later in the week. Of course, those friendly interactions amounted to nothing. But the predator could use the emails to make a dishonest counterargument against Susan, which she might never be allowed to see or respond to.
With confidentiality on their side, tenured predators can spin a web of lies. A seasoned predator will not leave incriminating documentation of, or witnesses to, his own abuses. He will supply a counternarrative to undermine the claims against him: She was the one who asked me out for coffee half the time. On several occasions, I clearly told her I was too busy. She got angry that I turned her down. She threatened me with retaliation when I promoted her peer. She is in cahoots with my rivals who have been conspiring against me because of my politics. Here are 20 emails that show how much I supported her research.
And just like that, the whole thing starts to become a “he said, she said” quagmire. Ambiguity is exactly what a predator needs to get through a complaint process with a slap on the wrist. Susan made the courageous decision to fight. But a seasoned predator will fight back, and it will probably get vicious. And while universities will always claim that their internal processes are proper and just, this is not going to be a fair fight. The power imbalance is enormous.
Institutions worry about liability and risk. For colleges and universities, a sexual-harassment case is a reputational disaster and an expensive legal minefield. So while most sane people would agree, in principle, that sexual predators should be fired, there are serious procedural and legal challenges that make it very difficult to remove the tenured predator who, in our example, harassed Jane, Susan, and now Marsha.
For example, imagine that in 2012 the university went ahead and disclosed Jane’s confidential 2005 documents, used them to support Susan’s case, and then fired the tenured predator. He could immediately sue the university for violating a confidentiality agreement and for wrongful dismissal. If Jane’s documents are based on “he said, she said” ambiguity, the predator could also sue for defamation. As a result, unless Susan can meet evidentiary standards that are all but unimpeachable, firing the predator puts the university at risk of a lawsuit.
On the other hand, if the university does not fire the predator but chooses to proceed with another quiet internal investigation of Susan’s allegations, it faces additional liability. The administration will now have two confidential reports on file about the same professor, one in 2005 and one in 2012. That means it now has an internal record of not having taken action to remove the perpetrator after the first and second complaints. In fact, the administration may have even given him a paid leave to “get help.”
So what happens when Marsha complains about the same professor in 2020? If the evidence about Jane and Susan comes to light, Marsha could hold the university liable for failing to protect her from a known and documented threat. She may also sue the university and trigger a very public scandal. It could put a spotlight on the administration, with tough questions about complicity and cover-ups. And that could trigger a cascade of comparable lawsuits around confidential-complaint processes. The reputational damage could be very costly.
Given the potential fallout, the institution now faces potential liability and risk from both sides. But what does the balance of power look like? Is the tenured predator connected? Famous? What about his 2002 teaching award? Is he still on the board of that Fortune 500 company? And what about Marsha? Is she poor? Black? Queer? On a student visa? Working three jobs and exhausted? Who is more likely — and able — to successfully sue? These calculations are not about justice, but about liability and risk.
What should she do? Unfortunately, today, Marsha has no easy options. There is no “fire him and leave me alone” button that she can press and walk away. Rather, Marsha needs to evaluate what she is willing to do — and for how long, at what cost, and for what outcome. Does she simply want to escape and find a new lab? If so, her department may quickly shuffle her to another lab assignment to make this go away. Or is she willing to go the distance in her pursuit of justice, cost what it may? In that case, she should gear up for a hard fight. These are questions best resolved with her lawyer and family. No one other than Marsha can decide what is best for her.
There will be consequences to all of her available choices. If Marsha chooses to run, the predator will remain unchecked, and in five years he might even be the dean. If she chooses to pursue an internal investigation, the predator may have a lesser chance of becoming the dean in five years, depending on the quality of hard evidence she is able to compile. However, that investigation will be time-consuming and distressing, and Marsha should manage her expectations of the results.
If her institution has updated its policies in the wake of #MeToo — and now allows her to see and rebut the predator’s counterclaims — she still will need to meet high evidentiary standards to prove her case. Even then, termination is a rare outcome. During the investigation and adjudication period, Marsha is likely to fall behind in her research.
If she has strong evidence and is willing to be litigious, Marsha could push for termination. That process may be long and harrowing, and there is no guarantee that it will result in the removal of the predator. Before Marsha makes this choice, she should reflect on how she may cope with the public exposure, especially if the predator responds with a hostile and vexatious counterclaim — such as a defamation lawsuit — while she is on the job market. She will also need to find an activist organization to support her pro bono, or will have to pay steep legal fees out of pocket. Counseling is highly advisable at this time, but it may not be covered by her health insurance. Suffice to say, this is a rough situation.
Another strategy Marsha could try is to follow the advice in my first article and run — but then circle back to the graduate-student or faculty union and tell the leadership what happened. In some cases, grad-student unions have systematically compiled information about predatory professors and then demanded that the university remove them, without revealing any victims’ identities. While I have not heard of any cases in which predators were fired through this tactic, it can put pressure on universities to make system-level changes. Marsha could consider this a middle-ground strategy — one that gets her immediately out of harm’s way but does not abandon her need for justice.
How can we make this better? Marsha cannot fix this. It is not her job or her responsibility to fix this. But because our institutions must rely on due process and evidence, we require her to make the report and take the risk. And then we betray her.
The only way this changes is if the institution accepts responsibility and makes bold, campuswide reforms. That means:
- Open those confidential documents to identify patterns across cases, without involving prior victims, and then use that information to strip tenure from identified predators.
- Give all complainants access to the full and final reports of their investigations.
- Don’t sign nondisclosure agreements with sexual predators, or indeed, with anyone fired from the university for “just cause.”
- Fight hard on the side of victims against predators’ vexatious lawsuits.
- Develop zero-tolerance policies that make it clear that tenure is designed to protect ideas, not predatory abuse.
Such reforms come at a cost. The university will have to show “just cause” for terminating the predator. That is a high legal burden, but sexual harassment, intimidation, and bullying are all potentially justifiable grounds for termination. Of course the tenured predator might bring a grievance under a collective-bargaining agreement, leading to a costly arbitration that would be painful for Marsha and any others who may be asked to testify. Institutions usually try to avoid these arbitrations, especially when they do not have strong evidence based on the balance of probabilities. The good news in the hypothetical scenario I’ve described is that Jane and Susan’s prior complaints would make it easier for Marsha to make a case in 2020.
Firing a tenured predator is risky because legal outcomes are not fully predictable. But it is not enough to offer him a sweet termination deal with a nondisclosure agreement that allows him to move to some unsuspecting institution. In fact, that cowardly choice opens a university to future liability, if any students or faculty members at his next campus are harmed by the same predator.
Quietly passing the buck is not the solution, nor is it legally necessary to respect privacy in cases in which public safety is at risk. The claim of privacy can be defeated by the public-safety exemption typical of privacy legislation in relation to employment records. There are more cases now in the United States, and beginning in Canada, that argue that nondisclosure agreements that raise dangers for students at public institutions are unenforceable. There are activists pushing hard for this change.
Today, however, what will matter for people like Marsha is whether her university is willing to take that bold stance, or will throw her under the same bus as it did Jane and Susan.
Systemic change requires moral courage. It asks leaders to do what is right rather than what is easy. But there are warriors fighting for this change — in court, graduate-student unions, and feminist-scholar networks. It would be best if campus administrators acted now, based on their moral duty to keep faculty, staff, and students safe. Because, really, this cannot go on.
That revolution has begun but is far from finished. So today, if Marsha came to my office for guidance, I would be heartbroken. I could not in good conscience advise her to fight a potentially losing legal battle. But I also could not deny her desire for justice. The truth is: Both running from a tenured predator and reporting one are bitterly disappointing options. So I would simply remind her that she and her family are the only people who matter — and that she does not owe anything to anyone else. And then I would do everything I could to get her into another lab.
