I was interested to read alkali’s comment because it speaks to something I was thinking about from the very first comments, when some commenters (who may or may not be current students, I don’t know) seemed to object to your concern about litigation and/or your failure to advocate a process that would unequivocally support complainants/victims/survivors.

I think that the threat of litigation is both real and serious, but I understand why it would seem like no big deal, especially to a student. Swarthmore may be rich by the standards of liberal arts colleges, and may seem timeless and quite secure, but faculty and administrators understand that the dollars on the bottom line are extremely tight and will remain extremely tight.

I don’t think the parallels alkali draws to Rutgers or Penn State are quite apropos. The described situations are two-step: first there was a horrible abusive person in a position of power he should not have been in and then there was legal and PR fallout. And of course a focus on the legal fallout would overlook the PR fallout. The discussion here, in contrast, does not address the PR fallout because the PR fallout is intrinsically connected to the first bad act, hiring and (even worse) then protecting an abusive person. Proper procedures such as the ones Tim is trying to zero in on (and articulating the difficulty of realizing) would largely immunize the school from PR fallout. But they wouldn’t immunize the school from legal fallout, because all you need to create legal fallout is a grudge and a lawyer. Hence, legal liability is a very real issue to consider in trying to develop the “right” sort of system.

In the end, I think Tim and alkali are on the same page though. Tim’s point is that if we try to develop a system that is perfectly fair to everyone it will be slow and expensive, and if we create a system that delivers “justice” to complainants/victims/survivors in a more timely fashion, there will be other liability. The call to see what an outside review might do is a logical outcome: an admission that the system will remain imperfect and messy, but that we can probably improve on it in nonetheless significant ways.

For his or her part, alkali says we should seek a “course of action [that] would best serve the institution, its community, and its values.” I would offer “there is that of God in everyone” and suggest that whatever process is settled on, there should be the option of restorative / truth and reconciliation practices included on some level. As Tucker Reed wrote, she and her rapist were part of the same society.

http://www.nytimes.com/2010/04/15/us/15student.html?pagewanted=all&_r=0

First, you say that it’s inappropriate to address survivors as victims in this post because it presumes guilt. What do we call the victims of a shooting? Victims. Even though we haven’t proven anything. What do we call someone who was hit by a car? A victim. Even before anyone has gone to court. It’s not presuming guilt. It’s our vernacular. Further, given that college students believe 54% of sexual assault claims are fabricated even though only 2-8% really are, I think we can safely say that presumption of guilt hasn’t been the pressing issue here.

To address the police issue again, please know that under Title IX, federal government explicitly stated that colleges and universities are required to investigate all claims of sexual assault even if the police are also handling it. And let’s not forget that one of the allegations against the college is that they specifically discourage and prevent students from reporting these crimes to the police.

To focus on one narrow part of this thoughtful post: discussions of how institutions ought to conduct themselves should not fall into the trap of what ought to be done to avoid lawsuits against the institution. Addressing an issue in that way suggests that the issue may be resolved by recourse to an external and objectively discernible legal standard, which is rarely the case. When institutions take actions that will have serious consequences for particular individuals, the possibility that those individuals will initiate lawsuits is always present, and the legal questions that such lawsuits raise (and how courts will resolve those questions) can rarely be fully anticipated in advance. It is almost always better to put questions of potential liability on the back burner and focus instead on what course of action would best serve the institution, its community, and its values.

By way of example, the Rutgers men’s basketball coach was recently fired after it had come to light that the coach had treated players abusively, including using homophobic and misogynstic epithets and hurling basketballs at the backs of their heads. The university hired a law firm to do an exhaustive examination of whether that conduct might expose the university to a lawsuit, and particularly an antidiscrimination lawsuit. When those allegations became public, it was obvious that that focus on potential liability was too narrow, because it failed to address the more central question of Rutgers ought to have a coach who routinely assaults players. Likewise, I understand that the administrators at Penn State were similarly highly focused on concerns about lawsuits, with even more catastrophic results.

This is a little beside the point but that’s actually not true. The US Department of Education says “A criminal investigation into allegations of sexual harassment or sexual violence does not relive the school of its duty under Title IX to resolve complaints promptly and equitably.”

Totally possible that I’m misinterpreting this, but I think it’s saying that all colleges and universities do have to use their own processes and cannot simply wash their hands of the matter by turning the issue over to the authorities.