What follows is a guest post by Brian Soucek (UC Davis).
Two weeks after its false statements forced an ASA member to out herself as the philosopher who’d been sexually harassed at the last Annual Meeting, the ASA has finally apologized.
Oh wait…no it hasn’t. The ASA’s statement this week “acknowledge[s]” the call to do better; it “promise[s]” that the Officers and Trustees will “do our very best to ensure a productive environment in which all ASA members” (including, presumably, the harasser who had reportedly been given a spot on the upcoming Program) “can flourish”; and it “thanks[s]” members who have challenged it “to better express and promote … our deepest values.”
What the statement pointedly doesn’t do is acknowledge or apologize for the ASA’s false and damaging statements about Dr. Shelby Moser, in which it was claimed that she never filed a complaint and that the Board of Trustees received only hearsay reports of harassment at the Annual Meeting. (I refer to public statements of Officers and/or Trustees of the ASA as “statements of the ASA.”) This is a glaring and, to me, outrageous omission. What could possibly explain it?
The ASA’s official reason, as suggested in this week’s statement, is that its new policy on Discrimination, Harassment, and Respectful Behavior requires confidentiality.
That’s not true. All the new policy says is that the “Ombudsperson shall take all reasonable efforts to maintain in strict confidence the identity of individuals reporting an incident and the person or persons implicated in an incident.” In this case, there is no confidentiality left to “maintain” regarding the individual making the report. That train left the station when Dr. Moser publicly identified herself—again, solely in order to correct the ASA’s previous public misstatements about her case. The ASA’s refusal to correct or apologize publicly for its own disclosures now can hardly count as a “reasonable effort to maintain” confidentiality.
As a law professor, I suspect another consideration is at work. I assume the ASA consulted with legal counsel before issuing this statement. (My assumption was originally based on the bloodless tone of the ASA’s statement, but it’s now been confirmed by the ASA’s Secretary-Treasurer in a comment thread to a Facebook post.)
Lawyers are paid to assess an organization’s potential liability when it messes up, as the ASA has here. And I can imagine that some lawyers would advise their client against apologizing, just as we might be told not to admit fault after a car accident. If that happened here, however, the advice was deeply wrong. It is wrong morally: the ASA owes its member—our colleague—an apology for the harm it caused her. It is prudentially misguided: the ASA’s primary goal right now should be rebuilding trust with its members, who otherwise have little reason to place their faith in the almost completely non-transparent processes put in place under the new Harassment Policy. And it is stupid from a legal standpoint: all of the relevant facts that expose the ASA to potential liability are already out there. The ASA’s misstatements were made on Facebook for all to see. Dr. Moser and others know, and presumably have a paper trail documenting, exactly what complaints the ASA received. So an apology from the ASA adds absolutely nothing to the ASA’s legal exposure. Think of it this way: can you imagine that a jury who saw the misstatements and Dr. Moser’s original complaint (not to mention all the internal records and emails made available through discovery) would side with the ASA, but a jury who saw the misstatements, the original complaint, the emails, and a heartfelt apology, would suddenly vote to hold the ASA liable?
The ASA’s newfound and misplaced concern with confidentiality and the circle-the-wagons legalism of its response this week both suggest that its call for comments on the new Harassment Policy is urgently needed. To that end, here are a few thoughts on how the Policy needs to be reconsidered or reinterpreted:
- The Policy makes confidentiality an element of the initial complaint process, but it correctly makes no promise that the identity of the parties involved will never be revealed. Moreover, it provides no basis for using confidentiality as an excuse for covering up—or failing to acknowledge or apologize for—mistakes made by the ASA in dealing with harassment. The ASA needs to recognize this. Going forward, it needs to be clear that if the ASA says something false about a party to a discrimination complaint—whether the accuser or the accused—it will correct its false statement and apologize instead of hiding behind a free-floating duty of “confidentiality.”Similarly, it’s at least conceivable that the resolution of a particular case might involve the public disclosure of the harasser’s identity. Interpreting the Policy’s confidentiality requirement to preclude such an outcome would leave the ASA with only two choices: barring a harasser from all future events or exposing other future attendees to a harasser whose identity they don’t know—as the ASA was going to let happen in Toronto.
- Speaking of the resolution of harassment complaints: it is worth noting that the new Policy doesn’t actually say how this will happen. An Ad Hoc Committee is to take statements from both parties, determine whether harassment or discrimination occurred, and then furnish a report and recommend a sanction to the Secretary-Treasurer and President of the ASA. That’s where the Policy gives out. The Policy has nothing to say about what the Secretary-Treasurer and President are to do next. Are they bound by the Committee’s recommendation? Can they make up their own sanction, or decide to do nothing? Not only does the Policy fail to constrain the Officers’ actions, but it ensures that whatever they decide will be kept from public view. The Ad Hoc Committee and Trustees won’t even know. The only person who has to be told the resolution is the Ombudsperson, who is charged with compiling an anonymized annual report which only ASA officers can access in the course of their duties.
- My next suggestion is more controversial, and not as directly tied to the ASA’s failures of the last few weeks. The new policy protects against discrimination based on “an individual’s sex (including pregnancy), sexual orientation, gender identity and expression, race, ethnicity, color, religion, national origin, age, marital status, disability, body size, class, physical appearance, political perspective, or employment status.” I find the list overinclusive. As the song says, “One of these things is not like the others”: namely, political perspective. Some people, for example, take the political perspective that concerns about sexual harassment are overblown and the #MeToo movement is a hoax. This political perspective is denigrated, quite rightly, by the existence of the ASA’s own Policy—the very Policy that purports to eliminate “any discrimination” based on political perspectives. Unlike the other protected traits on the list, political perspectives are traits that we do, and should, sometimes try to overcome. We seek to change others’ political perspectives in ways that would be inappropriate, if not absurd, when it comes to race, gender, sexual orientation, or the other protected traits.This is a distinction that has come up repeatedly in the recent litigation in the United States over religious bakers, florists, and others who don’t want to provide services for same-sex weddings. A slippery-slope argument is offered: if business owners are forced to make cakes celebrating gay couples, will they also have to make swastika-shaped cakes, etc.? To this, the response is: no, because gender and sexual orientation, unlike political opinion, are protected categories under (much of) American antidiscrimation law. Including political opinion, as the ASA’s new Policy does, brings back these kinds of slippery slopes.
- Finally, what’s with all the all-caps legalism at the end of the Policy? There, the ASA’s Policy gets redescribed as a mere “STATEMENT,” one that “IS INFORMATIONAL ONLY AND IS NOT A CONTRACT.” And yet, just two pages earlier the Policy/Statement says that before any of us can renew as members or register for an ASA meeting, we must state that we have read and agreed to comply with the Policy. So is this a contract or not?Normally I’d ignore this kind of boilerplate, just like the signs at restaurants that say “We Reserve the Right to Refuse Serve to Anyone”—a ridiculous claim in places where refusing service on a protected ground is a crime, not a right. But I raise the point here because it shows the ASA again spouting, and hiding behind, poorly considered legalisms. Why, I have to wonder, is the ASA unwilling to treat its Policy as a contract? Why is it unwilling to pledge to follow its procedures and live up to its commitments?
The answer to those last questions, presumably, is: because its lawyers told them not to. It seems that’s also why the ASA refuses to apologize to Dr. Moser. If this was the legal advice the ASA received, it was misguided. But more importantly, the ASA needs to realize that its lawyers’ job is to asses risk; the job of the Officers and Trustees is to decide what level of risk is worth bearing. Minimizing legal exposure is not an organization’s only or highest goal. At this point, making things right with one of its members—and restoring trust with the rest of us—are far more imperative. These are the values that, as the ASA’s statement acknowledges, the organization still needs “to better express and promote.”
Notes on the Contributor
Brian Soucek is Professor of Law and Martin Luther King, Jr. Research Scholar at the University of California, Davis School of Law. He has a JD from Yale Law School and a Phd in Philosophy of Art from Columbia University. In addition to his work on aesthetics in law Brian’s research on antidiscrimination law has been cited by two federal courts of appeals, the Equal Employment Opportunity Commission, and in three briefs filed this year in the U.S. Supreme Court. His most recent work on sexual harassment appeared in a joint collection he organized entitled #MeToo and the Future of Sexual Harassment Law, a collaboration between the Yale Law Journal and the Stanford Law Review.
August 30, 2018 at 8:29 pm
Thank you for this assessment, Brian. I could not agree more that minimizing legal exposure should not be any organization’s only or highest goal. To protect what? From whom? And at what cost? Costs here, as you rightly point out, are important because they include not just any financial cost associated with hiring an attorney and defending a potential lawsuit but the costs of the trust and the morale of its members. We need a professional association that is not just prudent and competent (if it were that), but kind. One that can both accurately assess the risk of a lawsuit (if it came to that — the complainant has already said that she didn’t intend to file a lawsuit) and that can admit to its shortcomings and oversights, take responsibility for these things via a formal and official apology, and be willing to stand behind its decision to do that because it’s the right thing to do. This is always an option for anyone who seeks legal counsel, regardless of what any attorneys advise. The final decision-maker is not the lawyer but the client.
August 31, 2018 at 12:22 am
Dear Professor Soucek,
thank you for your contribution. I agree with the point concerning the importance of the ASA issuing a public apology. This isn’t only due to the person who was damaged by the way her case was handled, but also important for the ASA’s public accountability. I have no doubt that most ASA members are genuinely disappointed and dismayed by what happened, but private apologies do not fulfill the institution’s duty to apologize.
However, I am less convinced by the concerns regarding the presence of “political perspective” in the ASA policy. I offer three considerations:
1) Is it so unreasonable to interpret the police as saying that political perspectives are only protected insofar as they do not conflict with the protection of the other categories mentioned? Is the worry that, from a legal perspective, the policy is not clear enough to force this interpretation, and if so, could it be fixed? (I ask these as genuine questions, I am not a philosopher of law and have no expertise in policy writing)
An example: article 3 of the Italian Constitution states that “All citizens have equal social dignity and are equal before the law, without
distinction of sex, race, language, religion, political opinion, personal and social conditions.” Political opinion is mentioned, but this in no way protects those who have political views that favor discrimination on the basis of, say, religion or race. For instance, apology of fascism is a crime punishable by law, and so is discrimination on the basis of race/ethnicity. Note that the article does not just say that these categories are equal before the law, it goes as far as saying that they have “equal social dignity”. Does this blanket protection of political opinion work only because there are other explicit laws that prohibit discrimination?
2) I also wonder whether by excluding “political perspective” from the policy one would not face a slippery slope of a different sort. An example: some people in the discipline seem to believe that movements such as Black Lives Matters are misguided. They hold the view that inequality is due to socio-economical factors more than they are due to race discrimination.
I post here a link to a post from professor Leiter’s blog; I am not saying that Leiter holds the view, I am simply pointing to the article discussed in the blog post as an example of the view in question.
Should people who hold these views be considered a threat because they could possibly undermine the anti-discriminatory goals of policies such as the ASA’s? They surely do not take themselves to do so – they agree on the end goals but disagree quite substantially about the means.
3) Finally, the positive reasons in favor of the inclusion of “political perspective” must be considered.
I take it that the rationale is as follows: the political situation in the US is rather tense and polarized at the moment. It is not at all unreasonable to assume that departments and institutions with a majority of people who hold a certain view are going to discriminate (perhaps by and large unwillingly and unconsciously) those who hold a view opposite to theirs. Insofar as we are talking about views of an acceptable and respectable sort (the run-of-the-mill Democrat or Republican), people should not be discriminated on that basis.
Now, I understand that the run-of-the-mill Republican is responsible for the election of your current President, and that this casts a dismaying doubt on the respectability of once acceptable political positions. But it seems clear that in a de facto two-party system one must keep some faith in the rationality and good faith of one’s opponent, if one wants to have a democratic system of government.
Sorry for the somewhat long post. Any comment is appreciated.
August 31, 2018 at 5:06 pm
Thanks for such a thoughtful response. I was somewhat hesitant to include my thoughts on political opinion, as I didn’t want to distract from the main point of the piece: the call for an apology from the ASA. Still, I did include it in order to have all my thoughts on the Policy in one place, and because I do think political resistance to sexual harassment law is a real concern. So, quickly, in response to you:
1. The belief that the state should not discriminate based on political opinion rests on far different considerations than calls for political non-discrimination by private actors. The state has no business dictating or coercing individuals’ politics. By contrast, people and groups in the private sphere should be able to “discriminate” all they want against the political opinions of other people and groups. They should be able to call for boycotts, for example, in order to pressure people with bad political beliefs to change them. (They should also, of course, work to convince people to change their beliefs on the merits.) I completely agree that one solution to the problem I raise would be to make clear, if it’s not already, that acting on political opinions in ways that violate the rest of the Policy is not protected. But I think we also should allow ASA members to “discriminate” against those with unseemly political opinions that don’t involve harassment. I could decide not to include on an Art in Politics panel someone who celebrates fascism in art. By contrast, I can’t imagine a situation in which I could decide not to include someone on a panel because I look down on that person’s race or gender.
2. I take it that your worry here is that the Policy, at least without the political opinion prong, might be interpreted to prevent me from INCLUDING on my panel the person who celebrates fascism. I would hope the Policy’s existing language about freedom of expression, vigorous debate, and open inquiry would take care of that. But I understand your concern. Were it me, I’d say that the panel organizer should be allowed to include the fascist. But I also think the audience should be able to attack the fascist’s ideas, making clear their rejection of them. And I think audience members should be able to storm out of the room. I just can’t conceive of that happening based on opposition to any of the other protected traits. That’s why I think political opinion is relevantly disanalogous to the others.
3. I think the ideal of civil and open discussion in which we employ the principle of charity and assume the good faith and rationality of our opponents is a worthy one. But while I ALWAYS need to treat those of other races and genders and sexual orientations as equals, my charitable interpretations of others as good-faith political reasoners is defeasible. Here again, the disanalogies strike me as more powerful than the analogies.
August 31, 2018 at 10:26 pm
Dear Professor Soucek,
thank you for your reply.
To be clear, my point is not that we should allow people invite fascists at panels: I actually think we should prevent people from doing so – in some sense I hold a stronger position than yours, given what you say in your reply to my second point. But I think that the policy, as formulated, gives people too much room to exclude opinions that, while “unseemly” to them, are perfectly acceptable. And this I do count as discrimination.
Of course, there is nothing wrong with ASA members selecting people on the basis of political sympathies. I do not want to prevent that from happening. It is perfectly normal that people would tend to go first for the people who hold relatively similar political views, rather than unseemly ones – after all, discussion with the former category is often more productive. But I also don’t think that the policy, as worded, would prevent them from doing so. It would prevent positive discrimination of those who would want to take part to ASA events and hold views of the unseemly sort.
The now infamous Tuvel case is an example of someone who is no fascist but has been accused of causing harm to minorities – this is the type of controversial viewpoint that I would want people to discuss freely, and I think that an exclusion of that type of content would count as discrimination of an acceptable view. My example of the view of BLM found on the Leiter link above was meant as a similar case.