S11, E1: In the Eye of the Swarm
S11, E1: In the Eye of the Swarm
Series 11: The Collateral Damage of Revenge in Science
With the perspective that distance and time provides, any reasonable person can see injustice, but it can be difficult to spot up close. For instance it’s easier to condemn historic slavery than the slavery1 that we benefit from, happening in Africa and other places now. Sometimes looking back is a good way to see forwards.
Similarly, we can readily condemn lynch mobs that committed atrocities in history, without recognising them as progenitors for modern day mobs online. They may not be carrying ropes or chains but they still want to hunt down individuals and destroy their lives.
The appetite for vengeance is always too great because no amount of retaliation can ever be enough to satisfy each and every member of the swarm. Some will be left hungry for more and others will be left wanting a first taste.
This Series 11 is in five ‘episodes’ and concerns the damage done by mob behaviour in academia.
The process of justice is meant to be set apart from mob interests. But what can be known about any case, when those adjudicating it are simultaneously trying to appease an angry, hysterical and self-righteous crowd?
We can be certain of only one thing; it’s no longer justice.
1916
In 1916, after four minutes of deliberation, black teenager Jesse Washington was convicted of rape and murder in Waco Texas. Occupying the courtroom were 1,500 people, three-times its 500 seat capacity and meanwhile, up to 20,000 people gathered outside.
He had confessed, but you have to wonder what the consequences would have been to any juror that dared to be openly uncertain about how his confession was extracted or, of his guilt.
The Investigation of a Mob
Civil rights activist and suffragette Elisabeth Freeman, went undercover for the NAACP, travelling to Waco to find out what happened immediately after Jesse Washington’s conviction.
Later in her report she would conclude that he was guilty. Of course, the question of guilt was really moot, because it would have been impossible for her to find any evidence to exonerate Mr Washington even if it once existed. She was pragmatic and set out to identify the injustice that could be exposed around a lynching.
It was without any resistance from court officials or law enforcement, that the mob were allowed to put a chain around the seventeen year-old’s neck and drag him away, to exact brutal and horrific retribution.
If you can stomach it, a contemporary report by Crisis deserves to be read which is based on Elisabeth Freeman’s account as special agent for the NAACP. Her report was used to campaign against lynch mob justice, which to be clear, is no justice.
It this respect, the law is not only there to protect the rights of the accused, but to protect each of us from what we might do out of unbounded revenge and also, what we might fail to do out of cowardice.
Common law legal systems in the West have evolved over nearly a thousand years. It’s the feature of case law that each case benefits from and potentially contributes to legal refinement. Laws should apply to everyone equally with everyone entitled to a robust defence. Historically there have been many lapses where other considerations have been allowed to override the principles of justice. The Waco atrocity in 1916 was symptomatic of what was happening in that period of US history.
No matter what the crime, there can be no justice if a guilty judgement is preordained by a mob or, they are permitted to mete out arbitrary and unmoderated punishment. It occurs to me that justice is most important when it’s unpopular.
2015
In 2014, Exoplanet researcher Geoffrey Marcy was alleged to have acted in sexually inappropriate ways with students at the University of California, Berkeley. Additionally there was a claim of an assault. By the end of 2015 Dr Marcy had resigned.
In common with most of the people who have opinions on this, I have zero special knowledge of what happened, so what is obvious to me should be easy for anyone to see. Let’s acknowledge, for instance, that Berkeley’s Title IX investigation was being conducted while a mob demanding retribution were gathering strength in numbers.
First a flavour of what was alleged as summarised by Professor Janice Fiamengo in one of her pieces on the subject.
All of the complaints referred to incidents that had occurred many years previously, some of which Marcy remembered quite differently. One complainant said she saw Marcy become “inappropriately touchy” with an undergraduate student at a conference. Another said Marcy “began to rub the back of her neck” after giving her a lift home in his car, an experience that left her confused and ashamed for years. In the most egregious claim, a woman reported, eight years after the fact, that at a post-colloquium dinner with colleagues, Marcy “placed his hand on her leg, slid his hand up her thigh, and grabbed her crotch.”
“Astronomers Build a Feminist Black Hole for a Former Star”, The Fiamengo File, Janice Fiamengo
Following the example of Elisabeth Freeman, albeit without the benefit or necessity of her unfathomable courage, what can be learnt about modern mob justice?
It is currently fashionable to suppose that evolved justice is part of the problem because is serves vested interests and is reactionary. Remember all mobs believe they have right on their side, if they are young, they are particularly susceptible to the delusion that they are seeing things properly for the first time in human history.
Every revolution has a component of tearing down what is not understood alongside the acceptance of incidental collateral damage. If you’re interested in Dr Marcy’s own account it can be found here. Should you read it I’d urge to consider, if only for a moment, the implications of it being true.
A Pantomime for Due Process
So what of the Title IX investigation at Berkeley? As you might expect of any internal process, the proceedings are meant to be confidential, yet we can get this from an article on BuzzFeed News:
The letter [Geoff Marcy’s apology] was a rare public spillover from an investigative and disciplinary process that is usually conducted in secret. The proceedings of the investigation, which have not been made public, were obtained by BuzzFeed News. Marcy did not respond to requests for comment, instead forwarding them to his lawyer.
Although it might be correct to say that the proceedings ‘have not been made public’, the fact that BuzzFeed News seems to be in possession of the details, possibly the transcript, means it is clearly no longer private.
The Title IX regulations, at 34 C.F.R. § 106.71(a), state the general rule that a recipient must keep confidential the identity of any person who has reported sexual harassment, or who has been reported to be a perpetrator of sexual harassment.
To clarify, the recipient (of the complaint) is the administration office for the Title IX process. This suggests the Berkeley administration are in breach of the confidentiality clause.
The purpose of this provision is to prevent the school from retaliating against anyone.
So there is a clear provision to prevent the sort of retaliatory behaviour that has been exacted on Geoff Marcy, his students, co-authors and colleagues. It would seem that Berkeley fell short of that provision too.
This duty of confidentiality has three exceptions in 34 C.F.R. § 106.71(a): if disclosure is permitted under FERPA; if disclosure is required by law; or if disclosure is necessary to carry out the purposes of Title IX and its regulations, including to conduct a grievance process.
FERPA (Family Educational Rights and Privacy Act) is a federal law to protect the privacy of student education records which gives the parents or guardians the right to manage the information including its disclosure. Students over the age of 18 (nominally the age of majority) or in university education can manage their own.
It is difficult to see how any of the following FERPA exceptions would apply to disclosures in this case.
A recipient’s disclosure of the identity of a respondent cannot be made with a retaliatory purpose without violating 34 C.F.R. § 106.71. If the disclosure is made by a recipient without falling into one of the three exceptions listed in 34 C.F.R. § 106.71, OCR may view the disclosure as potentially retaliatory, and examine the facts and circumstances to determine whether the disclosure either (i) satisfied one of the three exceptions (for example, the disclosure was necessary to carry out the purposes of the Title IX regulations), or (ii) was made for a non-retaliatory purpose.
So to summarise the implied question, what could be the ‘non-retaliatory’ purpose, of leaking information about the proceedings to BuzzFeed News? Similarly, other than for retaliation, what would be alternative rationale for BuzzFeed being given access to complainants?
Implicitly, anyone disclosing the complainant’s identity (other than the complainant themselves) or for that matter, the identity of the accused (other than by the accused himself) would surely be in breach of FERPA.
Under 34 CFR §99.32(a)(1) institutions are required to maintain a record of each breach which might be accessible in redacted form via a FOIA (Freedom Of Information Act) request.
Regardless, that something could be leaked to BuzzFeed from inside the investigation, is not indicative of an impartial process. It suggests that somebody either cowered to outside pressure or had an agenda.
The BuzzFeed ruse was to elicit an unguarded response that would open the door to information not in the public domain. Point being (in case it’s not obvious), no negative connotation should be drawn from the fact that Geoff Marcy deferred to legal counsel i.e., rather than responding to ‘requests for comment’.
Erasure
Dr Marcy’s resignation failed to satisfy the the appetite for recriminations and the lack of dead meat led to frustrated buzzing. Then came the idea that he could have his name removed from his work and the field of study he cofounded. Perhaps there would be ‘conspirator’ flesh to feed on.
You might read what
says on his Substack, “A Dangerous Attack on the Scientific Process” about the injustice of academic cancellation and consequences of erasing a person’s contribution to science, on science itself. If you have more time there is the longer article he wrote on Quillette, “Campus Puritans Come for an Astronomer—And His Byline”. also discusses the ethics of stripping someone of authorship, her experience of academic culture and raises some important questions in her piece, “Astronomers Build a Feminist Black Hole for a Former Star”. I would particularly recommend her follow up “The Feminist Black Hole Swallows Non-Compliant Women Too” that concerns the impact on researcher , an innocent party who just happened to collaborate on a project with Geoff Marcy afterwards.In S11, E3: Bonfire of the Ironies, I ask why it is that the abuse, threats, intimidation and exclusion that Dr Villarroel has suffered is apparently of no concern. The organisations and administrations professing to be advocates for women’s rights in academia have shown themselves to be imposters. You can read the story in her own words below.
Recalibration
Wherever possible in this five part series, I have ignored the fact that the claims against Geoff Marcy are unproven by a credible legal process, often setting aside the concern that the findings are not ‘beyond reasonable doubt’.
Elisabeth Freeman had to look past the question of guilt in her 1916 investigation to see the bigger problem within the town of Waco. Here, I need to make something clear that might be too obvious to see: her report on the lynch mob was not out of any sympathy for rape or murder. It’s the sort of distinction that mobs can’t understand.
At the time, Elisabeth Freeman reported that most of the people she interviewed in Waco defended the lynching, including those whose job it was to uphold the law and prevent it from happening. Hopefully most people can see this for what it is looking backwards.
Perhaps we need more distance to assess what is happening now in academia. Mob-led dogma and hysteria, the fearfully silent and the complicit bureaucratic class. Yet must it take another century to relearn that from the conflation of uncontrolled rage and self-righteous indignation, comes aimless revenge and not justice?
To those in the coterie of bullying I close with one question: how old will your grandchildren be when they first become sickened by who you once were?
Next S11, E2: The Fly Papers
I wrote about modern slavery in the article linked below.
You note: "The Title IX regulations, at 34 C.F.R. § 106.71(a), state the general rule that a recipient must keep confidential the identity of any person who has reported sexual harassment, or who has been reported to be a perpetrator of sexual harassment." There is one missing party in this statement--the complainant. The way you game the confidentiality system is by becoming a complainant yourself. There do not appear to be confidentiality restrictions on complainants releasing the information.