I didn’t support the campaign to have fraternities restricted or banned at Swarthmore, largely for reasons I articulated earlier this academic year.

I do support the students who’ve filed a Clery Act and Title IX complaint against Swarthmore, and similar groups of students at other campuses.

I might disappoint those students by qualifying that support in the following manner: that I don’t think they yet have a completely clear view of the alternative processes or outcomes that they’d prefer. Once you start a conversation about the difficulties involved in building a better system, you might have some appreciation for why most administrations in higher education have settled for so long for the complex, contradictory and unsatisfying systems of reporting, counseling, and judiciary review that have been built up over the last three decades.

Let’s start with the support first, though. The first and foremost reason that I think this development is a very good thing for Swarthmore and institutions like it is that the filing plus an independent review by consultants will at last create a documented, independent body of testimony and evidence about student experiences and administrative procedures that everyone can use as the standard reference point for going forward.

Ever since I’ve arrived at the college in the mid-1990s, I’ve known students that have alleged that the college handled reports of abuse, assault, harassment or rape inadequately. I’ve had a pretty wide range of committee assignments since I’ve been at Swarthmore but one area that I’ve had no involvement with is judiciary procedures. The one time I served on the Dean’s Advisory Committee almost two decades ago, we mostly discussed alcohol policy, though with little address to the role of alcohol in assault or rape allegations. Without personal experience, I’ve had nothing else to use to evaluate those student allegations except trust in the students I know and trust in my colleagues in the administration, which have pulled in opposite directions. I do know from experience that students sometimes are profoundly wrong or exaggerated in what they say about other aspects of internal process or decision-making at the college. At the same time, I’ve known that sometimes faculty and administration don’t accurately hear or mentally transcribe what they say to students. So without anything direct to go on, it’s been hard to know what to say. Was this a common problem? A sporadic one? What kind of problem was it: a problem with specific procedures, with particular staff members, with a generalized culture, with a specific kind of incident, with the entire society around us? Most of the students I’ve heard from are students I trust very deeply, but they’ve almost always been telling me about what friends or friends of friends have said, not speaking about their own direct experiences. The constant thrumming of discontent has always worried me.

One reason that those stories were vague or indirect was the completely legitimate reason that victims often don’t want to go public, don’t want to have to endure skepticism and hostility, don’t want to have to repeatedly tell a story of trauma, don’t want to be responsible for educating everyone else about victimization.

Another and more important reason, it turns out, is that we have told students that our judiciary procedures require absolute confidentiality from everyone involved in a hearing, so that the students who took the step to most clearly document cases of harassment, assault or rape believed they were required to keep that documentation secret, whether or not they were satisfied with the outcomes of the process. (The student publication the Daily Gazette has published a very good series of investigative reports on this issue that helped to bring this point forward.) So our procedures, intentionally or not, have helped to maintain an environment where it is impossible for the community to have documented knowledge or awareness of the incidence, character or resolution of assault and rape and yet equally where survivors and victims can do little but informally or privately testify about their experiences. Small wonder then that there has been a recurrent, corrosive murmur about the untrustworthiness of institutional process: there has been no way for that murmur to be anything more.

Which is why clear, documented, transparent scrutiny from several different bodies is a good and necessary outcome. It’s the only way to move forward.

Whatever the investigations find, however, there are some persistent contradictions in the advocacy of the students filing the complaints that will prove hard to resolve.

Some changes will be easy to make, and may already have been made. Particularly on reading the investigations in the Daily Gazette, I don’t have any hesitation about saying the following:

1) That a student reporting harassment, assault or rape should never, ever be asked if he or she was drunk or in any way culpable. I don’t even think it’s relevant to ask whether the complainant clearly said no or made an objection to harassing behavior. As many critics have pointed out for decades, that puts the impetus on the person being approached to say or do something, as if the person making an approach can safely assume until something is said that it’s ok to make sexual advances or remarks. If someone’s reporting, the baseline assumption should be that there’s something to report and that the person reporting is a victim of another person’s actions.

2) That sympathy for and counseling to victims be absolutely hard-wired into the reporting process. It’s my impression that the college has moved pretty forcefully in this direction already.

3) That once a report is made, there’s a public record of the report, without names, creating a verified, public database about the incidence of such reports and their resolution. I think from 2011 onward, Swarthmore and most other colleges have fixed that part of the process, in response to federal requirements.

4) That some accommodations of victims should be made much more expeditiously than we have done. For example, moving accuser or accused to other dorms should happen without a lot of hassle or delay. To be honest, I think that should even happen more quickly in cases where there are strong personality conflicts–most residential colleges have tended to treat most friction in living spaces as a “learning experience” that relates back to diversity.

5) That we can do way better than force victims to sit down with the accused in a small room and have to testify to peers, faculty and administrators who may or may not have training or experience relevant to rape and assault cases, in an environment that is at best indifferent to the mental well-being of the victim.

6) That we shouldn’t ever restrain victims from speaking about their experiences. Confidentiality is a powerful but exceedingly dangerous sociopolitical technology that should be used only in very specific and limited contexts. Academic institutions are prone to the massive overuse of confidentiality across a very broad range of practices and procedures, and this is one of them.

However, rethinking judiciary procedures in specific is likely to be a bigger problem.

Here’s the chief contradiction I see among the advocate groups who have been pushing for changes at Swarthmore and other campuses. Some of the students involved, including some at Swarthmore, argue that they would like to see much more expeditious actions taken against reported rapists or assailants, most typically quick movement on expelling offenders and creating some form of permanent record or notation of the reasons for their expulsion. (See for example Tucker Reed’s account of her experiences at USC.)

At the same time, some advocates respond that they would prefer for action to be taken by administrative processes within their institutions rather than by the external legal system, for a number of reasons. First that the legal system is by any standard even slower at producing results; second that it is often far more violating or traumatic for victims than the worst collegiate procedure; and most interestingly third that many of the victims report some degree of compassion or concern for the future of their attackers, preferring that they simply be removed from the community rather than suffer criminal penalties. (At the same time, most victims quite legitimately reject outright that they themselves be compelled via a judiciary process to participate in the rehabilitation or education of their attackers.)

All of these points make sense but they pull in opposite directions. For one, the idea that we should be sufficiently sympathetic to rapists or assailants within a community to not seek criminal penalties, just removal, is in tension with the frequently-repeated dictum that rape is rape, that we shouldn’t see rape that involves two drunken acquaintances who’ve had consenting encounters in the past as any different or lesser than “stranger rape” that leaves the victim severely injured. Nor is it fair to leave the determination of whether to treat rape as a criminal violation reported to the police as a burden on the victim. But requiring or mandating a criminal report in all instances creates problems: by their own account, many victims might be less likely to make a report if they knew that was the outcome, both out of anxiety about the process (knowing, among other things, what an adversarial system will do to distort or manipulate the victim’s experiences) and even out of reluctance to visit criminal penalties on their attackers.

If that leaves colleges like Swarthmore with a need to have a better or different judicial process, what should that look like? I’ve always been a bit unhappy with the pseudo-judicial systems that many universities maintain: they’re demonstrably prone to manipulation in other ways and on other issues besides rape and assault.

If the desired outcome is that an attacker be expelled quickly, and that there be a record of the reason for the expulsion, that’s going to create some serious burdens on the institution. First because that’s a fairly serious penalty that requires something like if not identical to the presumption of the American judicial system: a presumption of innocence until due process is observed. Let’s say you expel a student after three years and put on their transcript, “Expelled for sexual assault”. The expelled student can rightfully say that you have deprived them of the benefits of three years of tuition and the expected lifetime benefits of completing a Swarthmore education. Considering that in recent years, students have sued universities even over what seem like open-and-shut issues like low grades in a course, it’s not unreasonable to expect that more frequent expulsions with clear transcription of the cause will lead to litigation, with potentially large damages being sought.

Meaning that the standards for a finding of assault in an internal procedure would have to be high enough to withstand scrutiny in a civil proceeding and also that they probably ought to be in that being expelled and having a transcript with a note as to cause is a serious penalty if not as serious as a criminal finding of rape or assault might be. If so, that’s likely to run counter to what the critics of current policies are seeking, in several respects. The counseling of victims would have to be utterly firewalled away from a judicial procedure (the degree to which that’s presently the case is the source of a lot of frustration, in that we’ve formerly had deans serving both as the advisors for a judicial procedure and as counselors to victims) and the judicial procedure would have to operate with something like the presumption of innocence for the accused if not with an openly adversarial approach to evidence and questioning, which walks us right back into the problem of seeming unsympathetic or skeptical towards victims. In a small school, it’s going to be very difficult to have one institutional structure that puts no burden on victims, openly acts as their advocates and counselors, promises them justice, redress and healing and then have another institutional structure that can’t promise anything of the sort and then have those two structures interact to produce a coherent and decisive outcome very quickly. It’s going to be equally hard not to have that kind of two-sided approach, however. The students seeking change shouldn’t expect that it’s going to be easy or even possible to create an internal procedure that does all or even much of what they advocate.

They should also consider that building such a system might have many unexpected or unanticipated consequences. For example, if the process has to withstand legal scrutiny, it might be hard to keep other kinds of criminal actions (involvement in drugs, underage drinking, non-sexual violence, even intellectual property violations) wholly out of the loop of that system, to make other kinds of infractions subject to more informal, confidential mediation. We might almost have to have three (or more) separate systems or to define sexual assault, rape and harassment as offenses which are so completely different in impact and gravity that nothing else requires the same kind of process or procedure. In the case of the latter approach, it probably won’t be long before someone argues that some other class of offense or harm is equally serious and requires the same kind of handling.

I suppose as something of an afterword, I’d also suggest that the students bringing the complaint should not be quite so cynical about the possible outcome of an independent review. I support the filing of the Clery Act complaint because I think the more investigative processes the better and because it’s the only way to create more trust in the long-term in the community. But it’s important not to treat investigations of this kind as a zero-sum contest that can either be won or lost, and to therefore “work the ref” by creating a pre-emptive narrative about the intentional insincerity of your opponent and therefore the pervasive untrustworthiness of everything “they” are doing. I think a probing investigation–whether by consultants or the federal government–is likely to find that the mistakes and problems of institutional process over the last twenty years are a product of messy histories (ranging from the crazy-quilt contradictions of in loco parentis at colleges to an ever-shifting legal environment). If so, there is no “they” who has acted with devious intention, nor any “they” who are out to hurt the institution. When I look at this filing, I don’t see sides, I see a lot of people who want the best for Swarthmore and higher education and who are doing the right thing as much as they can in the way they see best, and in the case of the students, doing it with great courage and determination. This isn’t zero-sum: it’s the rare kind of dispute where there are ways for everyone to come out a winner, if only everyone will leave enough space for that to happen and have enough generosity to agree that once we get past the obvious changes, there will be difficult puzzles that can’t be so easily solved.