by Ed Kazarian
There’s an important piece up at Inside Higher Ed today about a developing debate concerning whether universities should offer blanket indemnity to students who file internal harassment and assault complaints, as they regularly do for faculty and other employees. While the IHE piece is a news story, and so doesn’t take a position on the matter, it seems to me that the arguments in favor of extending automatic indemnification to student complainants are very strong.
In what follows, I'll explain why I think so.
I’m going to leave aside the specific instance prompting this discussion (read the article if you want to find out about it) and consider the more general policy question.
In current practice, employees are typically indemnified by their employers against suits concerning events occurring in the workplace (i.e., the employer takes over the employee’s liability and legal costs). But this protection may not be extended to students—and frequently will be so extended only on a case by case basis, and thus after the fact of filing any complaint.
In view of this, Jennifer Lackey raises an important concern (as quoted in the IHE piece): "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.” This seems obviously correct; and it is worth underlining here that if students do not know whether they will be indemnified until *after* filing a complaint, the deterrent effect will be substantially similar to a policy stating that they will not be indemnified at all.
Several other points are discussed in the article, two of which perhaps deserve mention here. First, the question is raised of whether universities should work to limit their exposure to liability by shifting it onto complainants. This, however, seems at very least in tension to the spirit of Title IX, especially to the fact that universities are required by that statute to provide reporting and adjudication mechanisms for harassment complaints. If universities are supposed to police themselves and adjudicate complaints in this regard, then it seems that they should be responsible for the outcome of these adjudication procedures, not the complainants. Secondly, the article also mentions a worry stemming from an older, and unrelated case, that “people telling the truth shouldn’t need to be indemnified.” But this seems especially problematic in this case of harassment and assault complaints for at least two reasons: 1) harassment and assault are notoriously difficult to substantiate, so that asking complainants to expose themselves to substantial liability simply in order to file cases would amount to asking them to take a very considerable risk; and s) there are already a tremendous number of situational and experiential and emotional factors that are likely to deter victims from filing such complaints.
Indeed, near the end of the article, Prof. Lackey is quoted again taking precisely this last point into account in order to remind us that 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.”
Given these points, then, and 1) the fact that universities are obligated by Title IX to provide mechanisms for reporting sexual assault and harassment, 2) the fact that they are given substantial responsibility for adjudicating cases presented through those mechanisms, and also 3) that universities have frequently encouraged students to use these mechanisms (at times in preference to reporting cases to criminal authorities), it seems difficult to imagine a good ethical reason for universities not to indemnify all student complainants.
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