Some Things I Still Don't Understand About the McGinn Case

I have gone back and forth about whether to publish this post or not. There'd be something I didn't understand, so I'd write about it a little, then decide not to publish it and put it away. Then something else would come up, and I'd write about it a little, then put it back away. And so on. Interest in the case, as evidenced by our comment section, has waxed and waned several times. And McGinn's recent posts raise some interesting points. So I figured, what the hell. Readers who are sick of this shit should feel free to skip it--and let's be serious, maybe so should the rest of us. This is none of my business, and it's probably none of yours.

Anyways, here are some things I still don't understand about the McGinn case.

1. At the University of Miami, under what circumstances would a faculty member be required to disclose a consensual but non-sexual relationship to his or her superiors and withdraw from evaluative authority? The Miami faculty handbook says, "romantic, amorous, or sexual," but (as McGinn has pointed out) that's not too specific. 
1. Suppose the senior person wanted a sexual relationship with the junior person, but didn't act on this desire and was able to successfully keep it to him- or herself. Disregarding practical difficulties with enforcement, would the person be required to disclose and/or withdraw? [My guess: no]
1. On the other hand, if we suppose that the senior person is secretly in love with the junior person, then I suspect that the senior person would be required to disclose and withdraw--although this would defeat the purpose of being secretly in love. But that just shows that you shouldn't be secretly in love with your graduate students. Literally: if you are, you have an obligation not to be.
2. Suppose the senior person wanted a sexual relationship, suggested this to the junior person, and then the junior person declined. Does the disclose-and-withdraw requirement apply there? [My guess: possibly, yes. Maybe. Not entirely sure. It depends?]
3. Suppose that, according to the senior person, the relationship could be correctly (if cryptically) described as an "intellectual romance" that was not at all sexual in nature. Does the disclose-and-withdraw requirement apply in that kind of case? [My guess: I have no idea because I don't know what that even means.]
2. What was the basis for this (potential?) charge? Why did the University think that McGinn was obligated to disclose the relationship? Based on what I've been led to suspect is the evidence, this isn't the most obvious charge, after all.
1. I think I understand the non-McGinn side of the story, thanks to a recent anonymous commenter. (Who, of course, may or may not be on the level. Who knows? Not me.) According to this comment, the university initially approached McGinn with this charge because when the RA turned over the incriminating emails, she submitted only those that contained McGinn's (alleged) advances and stuff, and did not simultaneously turn over emails or other evidence of her having declined (in spite of the fact that this evidence (allegedly) existed). This meant that although the University could see that there was an apparent sexual aspect to the relationship, in that he had (allegedly) proposed sex, it could not immediately determine that it was not consensual, or that it had persisted despite her objections. This meant that it could not sustain charges of sexual misconduct or harassment at that time.
2. Now, maybe that's what happened and maybe it isn't. I don't know--I'm not Columbo. But I can at least follow the logic. On McGinn's version, though, I can't see how the University's behavior makes any sense. I can't see where there's any policy at Miami that says you have to disclose and withdraw from positions of evaluative authority over your friends or your mixed-doubles partner or whatever. If McGinn's version of the story is true, why would anyone have thought that he was required to disclose and withdraw? 
3. McGinn says that the President of the University of Miami has the power to overrule the Faculty Senate, and can unilaterally declare that, say, sexual harassment has occurred even if the FS finds that it didn't. Where does this come from? The UM faculty handbook contains a detailed description of their disciplinary procedures, (I'm looking at § B4.9, pp. 29 - 33) but I can't find any mention of this power. 
4. In Edwin Erwin's letter to Seth Zweifler, who is the author of both of the CHE articles about the case, Erwin indicates that it is his view that "most of" the second article "is very fair to [McGinn]," although some portions of it misrepresent the case against him. These portions misrepresent the case by suggesting that it was about sexual harassment when, according to Erwin, it was really just about McGinn's alleged failure-to-disclose and withdraw. 
1. But as I read it, the suggestion of sexual misconduct has been present from the very beginning. It pervades both of the CHE pieces, and virtually all of the subsequent commentary. As far as I can tell, there has been literally no mention of the failure-to-disclose charge other than McGinn's own complaints that the case about him has been misrepresented, and my occasional commentary about it in which I wonder what in the hell that's all about. I don't see how anything anyone other than McGinn has said could be taken to suggest that this is anything other than a sexual misconduct case. And the bulk of what McGinn himself has said about it (apart from his explicit denials, that is) seems to suggest the same thing. 
2. And so I don't understand why Erwin and McGinn (in virtue of the way he has approvingly reposted the Erwin letter) would be willing to say that "Most of [the second CHE] article is very fair to Colin". If they see things how they say they see things, they'd have to think that virtually all of the CHE's reporting on the case is deeply unfair. 
5. I was reading McGinn's recent post, in which he reprints his initial response  to the University to the failure-to-disclose charge. 
1. Reason 1 doesn't strike me as very strong. If a disclosure-requiring relationship exists, that one or the other (or both) of the relata do not wish to disclose it makes no difference whatsoever. Disclosure and withdrawal from evaluative authority protects both parties from a variety of potential negative effects, including a lot of the things McGinn mentions later on.
1. Another weird thing about this is the implication that he and the RA had a discussion about whether he should disclose and withdraw. If so, then the existence of this discussion indicates that there was some question as to whether he should disclose and withdraw, and that it was thought by at least one of them to be worth discussing. If it's worth discussing, maybe it's worth discussing with someone who has a clearer understanding of the policy than McGinn claims to have. If the policy is as unclear as McGinn thinks it is, maybe he got it wrong.
2. And I think it matters when this alleged discussion took place. Before or after the "handjob" email? Before or after the alleged request for sex? Makes a difference.
2. Reasons 2 through 8 strike me as fairly compelling, but only if you construe them as reasons not to begin a disclosure/withdrawal-requiring relationship with the student. Construed as reasons not to disclose an existing disclosure-requiring relationship, they are very weak. 
3. I don't understand reason 9--it is absolutely mystifying. I can't see anything in the relevant section of the UM faculty manual that might be interpreted as precluding the coauthoring papers, or the making of positive statements about the person in a general way. What's he talking about? 
4. Reason 10 seems to me to assume facts not in evidence, given McGinn's own claims that he's not sure what the regulation means. McGinn says he doesn't think the relationship warranted disclosure/withdrawal. I don't know if he's right, but according to several people who have seen the emails, McGinn made sexual jokes involving her performing sex acts and suggested that they have sex. I don't know if that's true, but I also don't see a way to make sense of the University's position if it's not. (See item 2.1.) And McGinn's denials seem to be more semantical than categorical. And since McGinn admits that he doesn't understand the policy very well--he finds it incomprehensibly vague--I'm not sure I find his opinion here particularly trustworthy.
6. Another recent post uses a hypothetical discussion about a nuclear attack on Iran as a prop to illustrate the difference between proposing a course of action and merely entertaining it. This post seems to indicate that the "sex three times" incident reported in the second CHE article actually happened, but not quite as reported. McGinn doesn't specifically say what he's talking about, so it's hard to be certain if that's it. But he seems to be saying that he did not literally propose sex, but merely was willing to entertain the possibility of sex in order to be assured that it was not a good idea and that it was not even the least bad of some set of alternatives. 
1. For one thing, why does everything McGinn says about the case have to be couched in riddle and metaphor? Why can't he just tell his side of the story in plain, literal language? Maybe this is epistemically questionable, but the fact that he is unable or unwilling to do this makes it very hard for me to see things his way. 
2. For another thing, under what circumstances would it make any sense at all to "entertain" this possibility? I think I understand why a top government official might be willing to entertain the possibility of a nuclear strike against Iran, if only to immediately rule it out so that the discussion can move on to more viable proposals. Especially if the goal was self-consciously to discuss the pros and cons of all possible courses of action. 
1. But I don't see why it would be necessary for a professor to entertain the possibility of having sex with his research assistant, in order to assess the pros and cons of that course of action, on the way to consideration of more viable proposals. 
2. And I don't see why it would be necessary to discuss specific numbers of sexual encounters as individual alternatives. (The "n times" remark. Maybe I'm misinterpreting.) Maybe that was supposed to make it funny.
3. And I don't see why it would be necessary to include the research assistant in these discussions--seems like it would be a pretty bad idea. Suppose you're the high-ranked government official who's trying to find a solution about Iran. Suppose that you're having the discussion in which you entertain the possibility of nuking them. Suppose that, for some reason, you have not made this discussion private between you and your national security team or whoever, and that you have literally included  the Iranian government in this conversation. How easy is it going to be to convince them that this discussion of nuking them was entirely innocent, and that you were just contemplating it, were not suggesting it, and there's no reason to take it as a serious proposal? I think it would be hard. 
4. And I don't see how an intelligent person could be surprised if other people were to miss the crucial detail that he was merely entertaining the possibility, and not actually suggesting it. Or, if the person didn't believe him when he said he was  merely entertaining it without intending in any way to suggest it. It seems to me that a discussion like that is all but guaranteed to generate misunderstanding. And that the kind of misunderstanding it would generate is likely to get a person fired and/or divorced. It seems to me that "entertaining" a possibility like that would be an incredibly stupid idea.
7. Regarding McGinn's "advice" post from earlier today, I'm not sure I have much to say. Some of it sounds like decent advice--it might not be a bad idea to maintain a certain level of professional distance from one's students--but some of it seems a little unreasonable and extreme ("Do not form genuine friendships with students. Do not engage in any non-academic activities with students.) Of course, he's had a recent bad experience and can be forgiven for advising an abundance of caution. 
1. He's clearly right, though, that "there will be an immediate presumption of guilt against you if an allegation is made," that you should "not suppose that the authorities are much concerned with justice"--assuming he means the administration, who will be concerned with protecting the institution from liability--and that if someone has accused you of sexual harassment you should immediately get a lawyer. That all seems basically right. 

I'm really sorry about this.

--Mr. Zero