Opinion: Can We Be Better?

Dr. Scott Hancock, Associate Professor of History and Africana Studies and Chair of the History Department at Gettysburg College (Photo provided)

Dr. Scott Hancock, Associate Professor of History and Africana Studies and Chair of the History Department at Gettysburg College (Photo provided)

By Professor Scott Hancock

Earlier this week The Gettysburgian reported on the most recent developments in Kelsi Kennedy’s lawsuit against Gettysburg College. Kennedy states she was raped in what used to be the Phi Sigma Kappa fraternity house in October of 2016, and her lawsuits have sought to hold Gettysburg College legally responsible in three different ways. As The Gettysburgian noted, one of those was recently dismissed by a federal judge. The other two are pending. 

I’m not a lawyer. I do not have a J.D. I don’t know all the facts. And there are undoubtedly legal aspects of this case that I would not fully understand even if I did have all the facts at hand. As a professor who pushes to students to ground their arguments with strong critical thinking and sound evidence, I want to be wary of venturing a public opinion when I’m keenly aware of my own limited knowledge—especially nowadays, when much of our political discourse coming from the highest levels of government and so-called ‘experts’ on news shows is often based on cherry-picked bits of data or just outright, purposeful deception. 

And yet. Not knowing everything can easily become an excuse to be silent and stay out of the fray altogether. We don’t always need every possible fact, or have to understand fully every possible nuance, before suggesting different ways of thinking about something. So my argument here is not about the merits of either Kennedy’s or the college’s defense—I simply don’t know enough to weigh in intelligently. Instead, I’m concerned about a legal strategy undertaken by the law firm representing Gettysburg College—and therefore is the college’s strategy—that I’d argue violates the moral and ethical values that the college claims it stands for and wants students to aspire to. 

The Gettysburgian article states that Gettysburg College is asking the judge to dismiss the remaining claims. That’s not surprising. But our college is also asking the judge to “order Kennedy to pay the college’s legal fees.” 

Some context: rigorous methodological research has shown that false claims of rape are uncommon. When a woman says she has been raped by a man, 92% to 98% of the time, that claim is not a false one. For example, a thorough study of accusations of rape in Los Angeles over the course of a year found that 95.5% of claims were not false claims. I point this out, because as an academic institution that highly values serious research and its application to real life situations, we should know that it is extremely likely that Kennedy did indeed endure a serious sexual assault and trauma—and, if this is the case, is very probably is dealing with the trauma now and for years to come. 

I get it that the college needs to defend itself against lawsuits. I get it that the college has sought to dismiss the Title IX claim by someone who was not a student, as that claim could open the college up to all kinds of liability. I don’t like it but I understand it. 

I do not understand why Gettysburg College is going beyond defending itself and going on the attack—against a young woman who has in all likelihood been raped and traumatized on our campus by our students—by seeking to make her pay for the college’s perhaps unsavory but understandable defense. I do not understand why Gettysburg College, whose website states that “there are no bystanders here”; that it has always stood for “socially responsible citizenship”; whose mission statement says our core values include “sensitivity to the human condition”, the value of “ethical leadership that is inclusive, collaborative, and directed towards effecting change for the greater good” and “that a residential college best promotes the sense of community”; why this college seeks to punish a woman who we have every reason to think has indeed been attacked on our campus, in our community, by our students who have failed to live up to those values. 

I asked someone who has had a long and successful career as a lawyer what might be going on here. This person told me—after remarking wryly that ‘this is why people don’t like lawyers’—that it is likely the law firm and the college are making the demand that Kennedy pay the college’s legal fees as a bargaining chip so she will settle. Again, I get that—but I think we can be better. I think Gettysburg College, which is constantly calling our students to think and act on higher moral and ethical plane that consistently exhibits sensitivity, compassion and justice, can be better. I’m not suggesting that the college capitulate to anyone who makes any claim of being harmed on campus. The college most certainly should hold individuals responsible for their conduct, and seek to defend itself in ways that are legally permissible—and are ethically and morally responsible. It’s about balancing the college’s right and power to defend itself with our ability to love and care for other people who enter our community, regardless of whether they were students or not. Martin Luther King, Jr., said in 1967 that “what is needed is a realization that power without love is reckless and abusive, and that love without power is sentimental and anemic. Power at its best is love implementing the demands of justice, and justice at its best is love correcting everything that stands against love.” Seeking to make Ms. Kennedy pay the college’s legal fees is an exercise of power without love. And that’s not justice. Though since “justice” is a word curiously absent from our mission statement, I suppose one could argue we need not be concerned about achieving it. We should be: we can be better.

From a purely pragmatic perspective: what kind of message does this send? Yesterday the President and Provost’s Office offered a presentation to the faculty about the challenging future demographic and enrollment trends for liberal arts colleges like Gettysburg. Strategies were proposed for how we can be innovative in continuing to attract a healthy number of excellent students, and faculty were encouraged to offer more suggestions. Well, here’s one: let’s not succumb to playing the game like everybody else does in cases like Ms. Kennedy’s. What kind of message might it send, and what kinds of students might we attract, if Gettysburg College did something a bit radical and acted as an institution in a manner that combined power, love and justice to someone who was attacked in our community?

Can we be better? 

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Author: Gettysburgian Staff

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5 Comments

  1. Every bit of Professor Hancock’s message rings true. We ought to be better. I’m thankful he’s drawing attention to this issue.

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  2. The professor is correct: he doesn’t have enough knowledge to provide intelligent commentary. Yet he plunges ahead. If these suits are federal cases, no doubt the College is seeking Rule 11 sanctions against opposing counsel and the plaintiff for bringing meritless claims. Sounds like a very common and sound strategy. Yet he apparently would prefer that the College open up its endowment and write a check, since he cites some quite amazing, no doubt cherry-picked statistics that almost 100% of claims of rape are “not false claims”. Even if true, that statistic does not have any bearing on whether these particular causes of action consist of meritless claims of liability against a deep pocket (the College).

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    • Dear Barry,
      I’d actually say I did not “plunge ahead” but attempted to offer a measured response by acknowledging my limitations. I also sought input from somebody who has many years of experience as a lawyer and trial attorney. And the research I cited is not “cherry-picked”, but based on a careful study that was published by one of the leading peer-reviewed journals in the field of legal studies. The claims of the complainant do not appear to be meritless; at the very least we know that her claims fit within a pattern of how many sexual assaults and rapes occurs. And as I acknowledge, I understand that the college often has a need to seek legal defenses. Lastly, and I’d argue most importantly, what I’m arguing is that as an institution that calls upon its faculty, students and administrators to think and act on a set of values that considers the welfare of the community and individuals, we should be asking ourselves if “very common” strategies match those values. Your argument that it’s common and sound (which sounds like another way of saying ‘effective’) doesn’t mean it’s the right thing to do. If the claims are indeed meritless–if the claims fall into one of the 2 to 8% of claims that are clearly false–then the strategy is likely sound. But I’m presuming you’re not part of the college’s law firm & therefore have no more knowledge of the actual facts of the case than most of us (and if you do, is it ethical for you to be weighing in publicly?), and yet you seem to be presuming that simply because the law firm is pursuing the complainant for the college’s legal fees that the claims must therefore be meritless. That’s exactly the kind of unqualified evidence-less leap in logic I hope our students do not make in their current careers as students or any future career they pursue.

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  3. Dear Professor Hancock,

    Thank you for sharing this perspective. As the anniversary of one of my most traumatic experiences at Gettysburg College approaches, I am reminded of how unjust the legal system that governs us is. While I am not studying law, I am currently in the Higher Education and Law course at the University of Michigan Law School. Just yesterday we talked about the problematic interpretations of the law. My professor acknowledged that the law was made up, but neglected to acknowledge who made the law and who it serves. Unfortunately, it was made clear to me that the legal system must be changed, but it is cases like these that serve as changes to the law but the system is flawed. However, it is judges and lawyers who interpret the facts being presented to them and it is in their hands to understand the situation as they so chose. I remain hopeful that Kennedy receives the justice she deserves. I hope that college and universities realize that this is a real issue that we continuously turn a blind eye to. I can only say that I did not find it enough when the college found the person who harmed me guilty and only charged him with $100, four-points, and pushed back the date he could rush. But I was assured that it would forever appear on his college transcript and I have to live with that as enough.

    As I read the case (https://www.leagle.com/decision/infdco20190320f81) with the framework I have been provided by someone on the General Council at U-M, I am hesitant to say that the system will be just. I fear that the mentality of which is reinforced in law school will continue to arise in large decisions like this one. One thing I am learning is the demand for change but institution neglect change — they hold change-makers down because there is a disruption of the norm. I support all that you are saying and I thank you for setting an example.

    While I never had the opportunity to take a class with you, I thank you for your work and the support you offer students. Thank you for speaking out about issues some don’t date to discuss. Thank you.

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    • Dear Ivana,
      I apologize for not having replied sooner. Thank you for willingness to comment so frankly and honestly. It is shocking but sadly not terribly surprising what you had to go through here. There’s not much we can do to change the legal system in the near future, but hopefully we can make some effective progress in how our college deals with sexual assault. Feel free to email me anytime if you’d like to discuss any of this more specifically.

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