Universities show their true colours in court

Institutions cannot boast of a respectful environment for researchers and trainees if they flout those values to cut legal liability, says Steven Piantadosi.

Last month, lawyers for Dartmouth College in Hanover, New Hampshire, argued that two women must be named publicly if they are to join a class-action lawsuit describing rape, abuse and harassment in its Department of Psychological and Brain Sciences. The suit has been filed by seven others, six whom are identified. The college’s arguments for outing the complainants’ identities include that pseudonyms are “confusing” and that unnamed plaintiffs will make a fair defence impossible — even though Dartmouth itself does know these women’s identities.

The motion to remove anonymity is strategically prudent: win or lose, it will discourage other students from joining lawsuits. Yet, protection of confidentiality is nearly universally valued in cases where people report personal and lasting trauma. A petition protesting against Dartmouth’s strategy has now gathered more than 500 signatories, including US presidential candidates Elizabeth Warren and Kirsten Gillibrand, a Dartmouth alumna. (Dartmouth has said that it hopes to resolve plaintiffs’ claims outside the legal process, and that whereas individuals can participate in internal investigations and file cases anonymously, representatives of a class should be public; the case entered mediation on 29 May.)

This same institution boasted in April that it hoped to “move beyond basic legal compliance” to create “a learning environment free from sexual harassment and the abuse of power”. In my view, universities cannot claim that they are creating a safe, supportive and respectful place for their researchers and trainees if they do not defend these ideals in court, too.

This kind of hypocrisy pervades academia. To avoid lawsuits, universities have allowed, even encouraged, harassers to resign voluntarily in return for confidentiality, leaving perpetrators free to find jobs and repeat their behaviour elsewhere. Or, universities have imposed mild sanctions or cursory investigations to avoid lawsuits from perpetrators. A 2018 report from the National Academies of Science, Engineering and Medicine that found sexual harassment rife in the sciences acknowledged that universities’ fears of legal repercussions protect serial harassers.

That mindset often leads complainants and whistleblowers to be attacked when they insist on substantive action to stop abuse. I am one of six professors who resigned from the University of Rochester in New York as a result of our treatment after we reported sexual harassment within our department of brain and cognitive sciences. Our case centres on faculty member Florian Jaeger; Rochester itself confirmed that at least ten women chose to avoid him because of his behaviour. That meant missing educational and networking opportunities and on professional development, and in some cases switching research directions.

An external report commissioned by the University of Rochester’s Board of Trustees says that Jaeger’s behaviour was harmful and inappropriate but that it did not break the law or violate existing university policy, which has since been updated. Jaeger remains on the faculty. Several (now) former faculty members, including myself, retained an outside law firm, which interviewed students and faculty and concluded that both Jaeger and the university breached the law. Our federal lawsuit is ongoing.

Removal of anonymity happened in our case too. An investigator revealed the name of a junior faculty member witness (my spouse) to her deans and provost. (Although the university says that her identity would have become obvious, a lawyer it hired found that the disclosure was “not appropriate”.) Also, a law firm that Rochester hired — Debevoise & Plimpton, the company that the Weinstein Company retained — went on to name four students after guaranteeing their confidentiality. The firm apologized and has said this was accidental, but in my view, the lack of diligence from a firm claiming expertise in sexual-misconduct cases is telling.

Like Dartmouth, Rochester has set up commissions and launched a campaign to foster a ‘culture of respect’. At the same time, it has argued in court that actions such as accessing and distributing complainants’ e-mails without permission, or excluding complainants from meetings, are acceptable workplace actions rather than illegal retaliation. (Rochester says it upholds the same values in legal strategies that it expects from its employees, and it disagrees with many of our characterizations.)

Lawyers will say that any client is due the best defence possible. But there’s a difference between mounting a zealous case and winning at all costs. Administrators, trustees and alumni must pay attention to how their universities act in court, just as they are starting to pay attention to whether their university’s investment holdings are ethical. We only see what institutions truly value in the foxhole where values are hard to protect — where doing the right thing requires admitting mistakes so that they can be fixed, addressing wrongs, and telling the truth even if it increases liability.

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