As an earlier post mentioned (see Nov. 26, 2014), a student may be dissuaded from reporting an instance of harassment or sexual abuse through active intimidation or by means of a threat. Another tactic is a retaliatory lawsuit lodged against a complainant. An ongoing case at Northwestern University involves multiple instances of such suits. Peter Ludlow, a philosophy professor whom the university has disciplined in response to two students’ complaints of sexual harassment, has filed a complaint in federal court against the university—for violation of Title IX—and against several individuals, including the university’s president and an unnamed graduate student complainant, for defamation and false light invasion of privacy (referring to holding up someone in a highly offensive and untrue light).
Ludlow had already sued various news media in the Chicago area for their reporting on another, earlier complaint against him, this one by a Northwestern undergraduate. Those news outlets had used the word rape to describe Ha’s accusation of his assault. Ludlow objected to the use of that word because it had appeared nowhere in court documents. The judge, Kathy M. Flanagan, threw out Ludlow’s suit, contending that Ludlow hadn’t been identified by name in any of the reporting in question and that rape and sexual assault—the word that appears in Ha’s complaint—are synonymous.
On Thursday, 5 February, federal judge Sara J. Ellis ruled on Ludlow’s suit against Northwestern University, the anonymous graduate student, and the others named. She dismissed the six counts in his suit without prejudice, meaning that he can revise his complaint and resubmit it within fourteen days.
This situation foregrounds a serious omission in Title IX law, in which a prohibition against retaliatory lawsuits on the part of accused offenders is missing. It also reveals the injustice done to the student who was brave enough in the first place to register her complaint. (I should note here, in fairness to Northwestern, that the university indemnified this student before she gave her testimony. At the same time, the university has a clear and distinct conflict of interest in any such case and cannot, realistically, protect a student complainant from retaliation.) While Ludlow tinkers with his claims of defamation and false light in order to resubmit the complaint, none of the defendants can respond to him. He is free to bring charges of sullying his reputation against them that, ironically, are neither subject to validation by the court nor themselves free of potential defamatory effect. The graduate student is being represented in a negative light that she is prohibited from addressing. She is being unjustly silenced, frustratingly silenced.
Although Ellis’s ruling represents a big step toward remedying the enormous gap in Title IX, her legal grounds for dismissing Ludlow’s suit are confined to his failure to make his case. Preferably, he would be barred from making any case at all in view of and on the grounds of the graduate student’s vulnerability in coming forward.