November 30th, 2020


Harassment Gone Haywire: Pleas for gender and racial parity threaten to upend science research

Richard A. Epstein

By Richard A. Epstein

Published June 20,2018

 Harassment Gone Haywire: Pleas for gender and racial parity threaten to upend science research

The National Academies of Science, Engineering and Medicine last week published a lengthy report on the sexual harassment of women in their three respective disciplines. The New York Times headline about the report read: "How Universities Deal With Sexual Harassment Needs Sweeping Change, Panel Says." The panel that authored the report consisted of 15 women and five men, and was co-chaired by Wellesley President Paula Johnson and MIT professor Sheila Widnall.

The panel got the matter half right. Yes, current policies regarding sexual harassment in these and other fields of academia must change. The panel is also half wrong: What must end are nonstop efforts to tar institutions and individuals with excessive enforcement efforts under overbroad definitions of sexual harassment. The panel's report was composed inside an ideological echo chamber from which all dissenting voices were systematically excluded, and its conclusions reflect its own want of open-minded discussion.

One would expect the panel's harsh indictment of current practices to be supported by documented evidence of pervasive harassment. In fact, it only refers to a collection of outdated studies dating back 20 years. The report's key piece of quantitative evidence is that in 2017 "there were more than 97 allegations of sexual harassment at institutions of higher education covered in the media, and there are likely many more allegations that are working their way through confidential formal reporting processes." The report never asks which of these allegations have been retracted or may yet be shown to be false.

Nor does it seek to differentiate between gradations of offending conduct, let alone recognize that even if every claim were true, it works out to a fraction of an allegation per institution for that year. From this thin evidence, it concludes, wrongly, that "more rapid and sustained progress in closing the gender gap in science, engineering, and medicine is jeopardized by the persistence of sexual harassment and its adverse impact on women's careers in our nation's colleges and universities." It further ignores that in 2017, the number of women enrolled in medical school exceeded the number of men for the first time ever, although the gap persists in other disciplines.

How then does the report identify a crisis from such skimpy evidence? It starts with a dubious three-part definition of sexual harassment: "(1) gender harassment (verbal and nonverbal behaviors that convey hostility, objectification, exclusion, or second-class status about members of one gender), (2) unwanted sexual attention (verbal or physical unwelcome sexual advances, which can include assault), and (3) sexual coercion (when favorable professional or educational treatment is conditioned on sexual activity)."

These categories are listed in reverse order of the conduct's seriousness. Indeed, given the elastic contours of the first definition, it may well be that in the University of Texas system, as the report notes, between 20 and 40 percent of female students suffered sexual harassment. After all, some men's (and women's) remarks surely conveyed "objectification, exclusion, or second class status." But it offends every sense of proportionality to equate physical assault with a statement like "men outnumber women at the top of the distribution of mathematical ability." Would it count as "gender" sexual harassment for a man, after this and similar reports, to say that the system is rigged in favor of women? And of course, the panel never mentions the number of women who have harassed men under this broad definition.

Having established its purported grievance, the panel then condemns the various institutional enforcement efforts to combat sexual harassment. Why? Because existing procedures seek "to create policies and training on sexual harassment that focus on symbolic compliance with current law and avoiding liability, and not on preventing sexual harassment." Why the finding of symbolic compliance? If anything, there is over-enforcement of anti-harassment norms. Under current legal doctrine, institutions can only hope to avoid supervisory liability if they put in place elaborate bodies and procedures to ferret out and punish sexual harassment claims, often through ad hoc panels that hold claims of sexual assault to a low burden of proof and deny the accused even the right of cross-examination (as demanded by the notorious 2011 Obama administration "Dear Colleague" letter, since revoked by the Trump administration).

Nonetheless, the panel wants to have it both ways. It wants to "foster greater cooperation and respectful work behavior," and recommends that "academic institutions should combine anti-harassment efforts with civility-promotion programs." Its report insists that "a large body of social science research points to practices that can enhance gender diversity and excellence in faculty hiring." But it fails to understand that carrots and sticks often do not work well together. The worst way to encourage cooperation between senior male and junior female scientists, and thereby promote female advancement in STEM, is to threaten men in advance with harsh sanctions if hauled up on baseless sexual harassment charges under these broad definitions. The best prophylactic measures available inevitably produce isolation and exclusion, because the broad definition of harassment always exposes them to the risk of unfair charges.

It only gets worse. True to form, this report goes beyond the narrow question of sexual harassment to invoke the need to create "diverse, inclusive, and respectful environments" in order to combat the implicit and unconscious biases its authors attribute to those who disagree with them. Unfortunately, this emphasis often leads to a monochromatic intellectual environment that is exclusive and wholly intolerant of political and intellectual differences. But the panel is oblivious to its own biases when it recommends that academic institutions "should take explicit steps to achieve greater gender and racial equity in hiring and promotions, and thus improve the representation of women at every level."

Talk about overkill! The proposal is a prescription for institutional disaster; it risks reducing the overall quality of academic work by substituting less qualified women for more qualified men based purely on immutable characteristics. Nor does the report offer any evidence of the exclusion of women with strong credentials from key positions in research or administration; indeed, it does not do so because everyone knows that universities aggressively seek to recruit qualified women and minority candidates for STEM positions. But instead of pointing to particular women or minority applicants who had been passed over, it demands that these teaching and research institutions rectify supposed gender and racial imbalances, no matter what the conditions on the supply side of the market. In this regard, the panel rehashes the equally unwise official program for "Enhancing Diversity in Training Programs" announced by the National Institute of Health. Indeed, the targets are only more unrealistic when they are pegged to general population ratios in particular cities or regions, and not to the quality of potential applicants.

The panel offers no reason to think that its draconian initiatives will achieve the elusive goal of parity. The preferences and abilities of potential applicants matter as well, and unrelenting compromises can cause serious damage to excellence and merit in critical programs. But the panel never once addresses the costly trade-offs that are needed to make good on its grandiose recommendations. Quite simply, no sleight of hand can let admissions and hiring committees go deeper into the pool of women and minorities while keeping quality levels constant.

Nonetheless, one way to duck the problems in reaching parity is to downplay all objective tests in favor of subjective evaluations, done of course by committees filled with partisans of gender and racial parity. Their use of soft factors introduces an added measure of discretion that allows some combination of reverse discrimination and de facto quotas --- phrases the panel never utters --- to flourish. That explicit and conscious favoritism for women and minority candidates is sure to breed resentment from men who are passed over notwithstanding their superior qualifications. Surely, the alleged institutional barriers to advancement do not rest in some hidden discrimination, given that women obtain more Ph.Ds. today by a 4 to 3 ratio, even as differences by sex persist in math, engineering, and the hard sciences. For decades, these gaps have been far larger by race, so the prospects for parity of racial representation in the these fields are virtually zero.

It is also important to note the snowball effect whenever compromises are made at the entry level for advanced graduate programs and academic positions. The tremendous success of scientific research in the United States shows that the traditional measures of excellence are accurate predictors of future performance. These standards mean the strongest candidates tend to advance. If the entry-level pool were identical by race or sex, then those initial ratios should hold as these candidates advance. But any difference in academic strength between groups will be magnified at each new rung in the promotions ladder, so that the distributions will become more skewed. It is costly to block this process because the losses from bad appointments increase as people move up the organizational ladder. As the compromises get greater, the resulting situation will become more unstable.

Unless merit is allowed to win out for all men and women, the new policies designed to produce higher achievement and foster greater respect will end up producing less of both. Pity that this panel does not acknowledge the law of unintended consequences.

Richard A. Epstein is an American legal scholar best known for his writings and studies on classical liberalism, libertarianism, torts, contracts, and a wide variety of topics in law and economics. He is the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, the Laurence A. Tisch Professor of Law at New York University Law School, and a senior lecturer at the University of Chicago.

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