I used to believe much more in procedural reform as a way to deal with questions of fairness, equity and justice. That every institution and community should have its established rules and processes, and if you signed on, you accepted those as obligations. It’s a very Ned Stark way of looking at things and has the same appeal that honor has to Ned Stark: in the best case scenario, mutual rule-following produces a kind of rough, semi-stable sort of utilitarian outcomes. A few men may get their heads lopped off for deserting from the Wall, and women might get stuck making the best of the bad deals handed to them by men, but at least life isn’t a Hobbsean nightmare. People who live outside the system might suffer, but that’s their problem. The harvest is stored and the world survives another long winter. In the worst case scenario, you go to your execution confident that you’re a better man than your murderers and that they’ll eventually regret what they’ve done. (After a lot of death and suffering.)
As the analogy ought to make clear, I’m less enamored of this approach now. Because at the least a proceduralist frequently discovers what Ned Stark did: respect for the rules is worth very little against those who not only disrespect those rules but know how to use the proceduralist’s self-restraint against him. But also because most rules, laws, deliberative processes and codes end up drifting from the lived reality of an institution or a community. Following the rules as rules disconnects them from their purpose, deprives them of an organic, renewable ideal. Simple truths and messy ambiguities alike get pushed aside, and the hard work of making a consistently better, more secure, more satisfying life for everyone within an institution or community gets deferred.
Rule-making also is often the equivalent of inviting a vampire to enter a home. Trying to make changes in everyday consciousness, practice or expression take hold through prescriptive rules is a mismatch of objective and method at the outset, but that mismatch is frequently aggravated because rule-making brings a whole host of experts, consultants and wonks into the room who are happiest dealing with human beings from the antiseptic distances that abstractions, generalizations and universalizations permit.
I think this is a bit of what was making me anxious last spring in talking to disparate groups of Swarthmore students about the changes they wanted to see at the college or even in the world at large. I am actually beginning to wonder if there isn’t a little teeny bit of truth to the idea that some of the current generation of college students really do not like certain formulations of autonomy or open-ended situations that are designed to maximize contingent outcomes. Even when they’re showing tremendous leadership and initiative, I see a lot (not all or maybe even most) of recent students asking (demanding!) that institutions and authorities do things for them, create rules and strictures, intervene, control (but controlling only what those students want controlled).
Some of my anxiety is probably just personal, just the difference between the world I grew up and the world that a 20-year old today has grown up in. But some of this has to do with the lessons I’ve learned about the limits to proceduralism, that if you ask lawyers to help you fix the world, what you get is some expensive instructions about how to comply with existing laws. I think this has become particularly evident in the changes that Swarthmore and many other colleges are trying to make around sexual assault and harassment policies.
Many changes as we’ve experienced them in the last year are good. When I recently talked with my departmental colleagues about the fact that they now have zero discretion about reporting what a student tells them about an experience of assault or harassment, I felt like that was a positive change in our professional practice. There’s still discretion in the system, but that’s between the Title IX coordinator (to whom we now report on these matters) and the students involved.
But there are aspects of what we’re doing that feel a bit too driven by rule-making and bureaucracy. There was some confusion earlier this semester, for example, about whether a student (or employee) who happens to mention in conversation that they were abused when they were young, before being at Swarthmore, should still be the subject of a report and if so whether that should trigger all sorts of further reporting and investigation. As far as slippery slopes go, that’s a short one: no college should be involving itself into the entirety of the lives of its students or employees, for any reason.
The students clearly were bothered earlier this semester when the college took stronger steps to enforce restrictions on underage drinking. But that’s another demonstration of the downside of procedural reform: institutions that are forced to take note of process, rules and law can’t afford to forget what they’ve noticed if they’ve noticed those things officially.
The deeper problem is that the roots of assault and harassment are both personal and cultural, and institutional policies and strictures and actions aren’t very effective at grappling with practices or subjectivities that operate at that level. I think broadly speaking this is a problem with the American left in general over the last three or four decades, that it has remained fixated on issues and questions that really are cultural and social while also showing very little ability to cope with those questions in those terms. Because that takes a fundamentally illiberal, even authoritarian kind of official power that goes well beyond laws and rules in the power it wields against culture and habitus. Or it takes a methodical kind of dialogic and persuasive approach spearheaded by people who are skilled in reading the patterns of everyday life, who have a good ear for how ordinary people talk and think, particularly the people who need to change their ways of being and doing.
I can’t decide if some of our students know that they aren’t yet very good at the second kind of approach and therefore avoid it, if they knowingly reject the need for the second kind of approach, or if they don’t see the limits of what can be accomplished with rules, procedures and enforcement within a basically liberal order. I’m not sure of the same of American progressives in general. But I do know that there can be bad outcomes when you’re not clear about what you’re doing or why. Lawmakers and rule-enforcers don’t usually know where to stop of their own accord, and the only way to keep them from going too far is to be absolutely clear all along about core principles and values. In particular, if you try to use rules as a tool for instrumental refashionings of culture and subjectivity, you are going to find it very difficult to set boundaries. For example, if this or that text or statement or idea is problematic outside of the classroom and should be banned or censured or punished, then it’s going to be very hard not to think the same about other texts or statements or ideas inside of it, even (or especially) those that are being taught because they’re troubling. If social censure or critique between peers isn’t sufficient to remake the cultural underpinnings of community, and official sanction or punishment necessary, where does that stop? If you start setting boundaries of inclusion and exclusion with very tangible instrumental purposes in mind (rather than a belief that a generally inclusive practice will produce basically good if indeterminate outcomes), where will you stop?
The college’s sexual assault counselor turned out to have lied about his credentials (he had none), and his primary concern was boosting frats rather than assisting survivors, when he wasn’t running up giant unexplained debts. It looks like they hired this guy — at a dean-level position! — because his dad had been the football coach. It seems to me like the Swarthmore community is right to be skeptical of the seriousness with which the administration treats sexual assault complaints.
Basically, you need to trust the other party before you can rely on informal methods, and in regards to sexual assault reporting/counselling, Swat has been untrustworthy.
One of those links goes nowhere, but I don’t want to get too hung up on that anyway if that’s possible. I guess my real question would be, “What is trustworthy?” What’s the gold standard? I rather suspect nothing, precisely because the point about the ubiquity of assault, and the inability of a wide range of institutions to credit that ubiquity, is well taken. Towns like Steubenville aren’t about one person, they’re about a lot of people and what they commonly think and believe. We are not all of us helpless against that, and the coming of the law is part of the beginning of the end of it all. But it’s not the end itself, and the next part will be much harder.
“Even when they’re showing tremendous leadership and initiative, I see a lot (not all or maybe even most) of recent students asking (demanding!) that institutions and authorities do things for them, create rules and strictures, intervene, control (but controlling only what those students want controlled). ”
They’ve seen the alleged old system (freedom and insecurity for a solid chance of success) laid out dead in front of them, chopped into pieces with a battleaxe, and then the pieces roasted, and then fed to swine. The solid chance of success is gone, freedom in many ways is gone (the national security state + the IT industrial complex + our financial overlord have vast amounts of data, and quite a bit of ability to use it).
I have always felt that colleges should not be in the position of handling criminal cases. Which is to say the opposite of what the phoenix article points to:
“he asked if she had been ‘date raped or attacked.’ I said that I was confused— isn’t a ‘date rape’ as much an attack as any other rape?— and he replied ‘You know what I mean”
An “attack” will potentially get someone sentenced to +20 years in prison with a life time mark as a sex offender. A “date rape” has a small chance of conviction in a trial and even if convicted, may only result in a misdemeanor. Denying this doesn’t help the victims. Most of what I read in the Phoenix seems to be issues of conflict resolution. Someone has sex with someone and one party views it as rape and one doesn’t leaves very little room for traditional mediation. Moving dorm rooms, administrative punishments, counseling, semesters off campus, seem far, far too little punishment for one party, and far too much for the other.
This is extremely frustrating to me because you are talking about two different issues – why assault happens and how it is punished – as if they are the same thing and should be attacked the same way. When you’re talking about “the roots of assault,” you’re talking about why it happens and how to keep it from happening. That’s clearly extremely complicated and based in cultural values, teaching, and as such, could never be changed with laws and regulation or at least laws and regulation alone. But that’s not at all what IX activism is focusing on changing. The Clery and DOE charges are about far more tangible and clear cut, post-assault issues. I have been raped and I need my rapist to be punished/out of my dorm/out of my classes. That’s the same as the push to reform the court system so that it stops letting off rapists. You have to fix the system and the regulation to do that – dialogue and persuasion is not going to do it. I find it hard to believe that you have read the accounts of what the college has done – illegally, disgracefully, and ongoing – against survivors and don’t believe that rule enforcing is necessary. (Not rule making in terms of Title IX – they’re not changing the law, nor are the reporting practices you mentioned new, you were just previously unaware of them and should have put a bit more research into the law before writing about it.)
Have any of your students looked at this essay and if so, what did they think of it?
As for your general point, I agree that neither rules nor judgement are reliably trustworthy.
I’m really, really glad I never took a class with you.
I also hope another faculty member shoulders the burden (and from this post it absolutely seems like a burden) of trying to educate you about why your argument, when stripped of its authoritative/academic posturing, inaccessible language and ~rational civility~, boils down to an argument every ASAP facilitator has dealt with time and time again, usually from str8 white males:
BUT WHAT ABOUT THE GREY AREA?
ime, men emphasizing “the grey area” of rape and/or sexual assault, who are overly concerned about rules around rape and/or sexual assault being “too rigid,” read: present and enforced at all, are either realizing they’ve raped someone and immediately entering a denial spiral or acting out against restrictions, possibly for the first time, being explicitly laid on their head.
I’m really glad you’ve brought your kneejerk libertarianism out to try to stop survivors from getting the institutional protection and care that they need in the aftermath of their assaults.
PS: Your dismissal of the immense issues around y/our particular institution’s hiring and retaining of inappropriate staff pretty much shores up my opinion that you should not be in any position of power or authority over young people.
I think One of Many is raising a very good point and it is indeed a confusion that my piece gets tangled up on. I think however that I’m not the only one getting tangled on it. I should be clearer (I thought I was) that the changes we’ve made are very good ones in terms of dealing with what was poorly dealt with before: the post-assault issues. But even some of the survivors at Swarthmore were worried by the way that a case was dealt with this semester where a student who commented on pre-Swarthmore abuse found that her case was taken up by the new system and where the advice of the college lawyers drove that reporting to places that the student didn’t want it to go (and I think even some of the administrators did not want it to go). That’s part of what I’m thinking about when I suggest that rule-driven systems tend to develop their own logics that move away from the goals that reformers were eventually seeking. This is a point that critical race theory drives home again and again about law, that law is in and of itself not necessarily a remedy for power or injustice and in fact can produce its own kinds of injustices even while strictly observing its own logics and strictures. There needs to be some sense of what the ultimate goals of rules and laws might be that is not contained within the system of rules themselves in order to keep steering them towards those goals. In this case, justice and healing for survivors.
The “grey area” is the domain of causes and roots. I really think you’re right that I’m too quick to entangle resolutions with this other domain. But I think if you look at the discussions on this campus and others, many of the supporters of the reforms are also quick to connect the two of them. That’s understandable and in some cases even useful or generative.
Prof. Burke mentions a “fundamentally illiberal, even authoritarian kind of official power” and “a methodical kind of dialogic and persuasive approach.” The comments above have been talking about the student-activists’ relationship with the former, but I don’t think that this has brought enough attention to the latter.
My understanding of the activism as a minimally-involved Swarthmore student is that it really is a two-pronged approach. Students have been pushing to reform CJC policies, reporting, and the like on the one hand, and this may be more visible to faculty and administration. But I’ve also seen a tremendous amount of patient work to win over hearts and minds with the goal of building a culture that values healthy consent and abhors, rather than hides or tacitly protects, rape. Since this second part is directed primarily at other students and doesn’t directly concern policies, it may be less visible to faculty and administrators. But reform of culture is the ultimate goal, and though it’s huge and farsighted, I do think that meaningful progress has already been made.
I think so too, Chris, and you’re right that it is less immediately visible to faculty and administrators.
“I am actually beginning to wonder if there isn’t a little teeny bit of truth to the idea that some of the current generation of college students really do not like certain formulations of autonomy or open-ended situations that are designed to maximize contingent outcomes.”
I literally don’t know what this means. What are these situations you speak of?
“Even when they’re showing tremendous leadership and initiative, I see a lot (not all or maybe even most) of recent students asking (demanding!) that institutions and authorities do things for them, create rules and strictures, intervene, control (but controlling only what those students want controlled).”
Demanding that the College follow the law that is already in place…
“But some of this has to do with the lessons I’ve learned about the limits to proceduralism, that if you ask lawyers to help you fix the world, what you get is some expensive instructions about how to comply with existing laws.”
This was MUCH needed. You know how many rapists were sanctioned before the complaints? 0. Do you know how many were after? 3. That’s incredibly significant.
“But there are aspects of what we’re doing that feel a bit too driven by rule-making and bureaucracy.”
I don’t think anyone disagrees with you. There was an immediate need for change. At this point, the standard of strict, mindless adherence to the law is producing far better results than unethical disobedience of the law. Remember — 0 rapists sanctioned in the 10 years prior to the complaint, 3 rapists sanctioned in the 5 months post complaint. This is profound.
“As far as slippery slopes go, that’s a short one: no college should be involving itself into the entirety of the lives of its students or employees, for any reason.”
I don’t understand what this means.
“The students clearly were bothered earlier this semester when the college took stronger steps to enforce restrictions on underage drinking. But that’s another demonstration of the downside of procedural reform: institutions that are forced to take note of process, rules and law can’t afford to forget what they’ve noticed if they’ve noticed those things officially.”
I’m sure as hell not bothered by this. Swarthmore isn’t above the law. Everyone knew that this would be a consequence. And you know what? Swarthmore’s alcohol culture and atrocious alcohol policies were certainly related to their mishandling of sexual assault.
“The deeper problem is that the roots of assault and harassment are both personal and cultural, and institutional policies and strictures and actions aren’t very effective at grappling with practices or subjectivities that operate at that level.”
There you go — you make a completely unsubstantiated claim. There is plenty of research to substantiate the claim that an environment with a zero-tolerance policy for rape has less rape. Colleges that condone rape (either through policy or practice) have much higher rates of sexual assault.
“I think broadly speaking this is a problem with the American left in general over the last three or four decades, that it has remained fixated on issues and questions that really are cultural and social while also showing very little ability to cope with those questions in those terms.”
Structure shapes culture…
“Or it takes a methodical kind of dialogic and persuasive approach spearheaded by people who are skilled in reading the patterns of everyday life, who have a good ear for how ordinary people talk and think, particularly the people who need to change their ways of being and doing.”
The irony of this statement is overwhelming.
“I can’t decide if some of our students know that they aren’t yet very good at the second kind of approach and therefore avoid it, if they knowingly reject the need for the second kind of approach, or if they don’t see the limits of what can be accomplished with rules, procedures and enforcement within a basically liberal order.”
I love the condescension here. What have you done for sexual assault at this college? I remember you posted before about how you knew sexual assault policies were problematic for years but just ignored it because it was third-hand. Easy to criticize from your ivory tower. Please, come and make the changes you want to see. I’d really appreciate it. As someone who was actually sexually assaulted and faced a school that wouldn’t do anything, I can tell you for sure that the procedural reforms are absolutely necessary. They address the immediate needs.
“For example, if this or that text or statement or idea is problematic outside of the classroom and should be banned or censured or punished, then it’s going to be very hard not to think the same about other texts or statements or ideas inside of it, even (or especially) those that are being taught because they’re troubling.”
Ahh…the good old slippery slope argument. If we crack down on rape then think about all the other things we’ll crack down on. Love this.
“If social censure or critique between peers isn’t sufficient to remake the cultural underpinnings of community, and official sanction or punishment necessary, where does that stop? If you start setting boundaries of inclusion and exclusion with very tangible instrumental purposes in mind (rather than a belief that a generally inclusive practice will produce basically good if indeterminate outcomes), where will you stop? ”
Jesus Christ. We are talking about rape. We are talking about expelling rapists. Do you honestly disagree with this? Do you honestly think we should be keeping known rapists in our community? If we were talking about cracking down on campus murder, I can be certain you wouldn’t be saying the same thing.
Look, nobody is saying that the complaint fixes everything. If there’s anyone who does say that, then I agree they’re seriously misguided. The structural solutions are here to address the structural issues. I do believe they will have a cultural impact as well, but the primary focus of these endeavors is to change the structure and procedures.
I’m honestly not sure why you enjoy critiquing the anti-rape activism on campus when you’re not actually bothering to do anything. Or if you are, you’re not doing it visibly which is a large critique of yours to the students.
I’m going to hazard a defense of Prof. Burke, because I think the students who are dismissing him as an abettor are missing something important. Two things, actually. One is that one thing no rule or set of rules can do is force people to follow it. I am (I think) rationally ignorant about what’s going on at Swarthmore in particular, but in general, if an administration is protecting rapists, the problem isn’t that there aren’t enough rules about how to treat rapists, the problem is that the administration doesn’t care. In short, the problem is the people, not the rules.
Talking about the other problem is going to get me dismissed as an abettor too, but so be it. In general–again, I know nothing about any instances, but we are speaking here about rules, not specific cases–the problem with getting justice in rape cases is that by the normal standards of legal procedure, most rapes are very hard to prove. If there are witnesses to a rape, or to evidence of a rape, then failure to seek justice is a cover-up, which is, again, a cultural problem, not a lack of rules. But in cases without witnesses, it is practically impossible to prosecute rapists without violating the basic precepts that a person accused of a crime is innocent until proven guilty and must be proved guilty beyond a reasonable doubt. If justice requires that (actually guilty) rapists be punished, then no legal system based on those precepts can deliver justice.
If a community actually wants to discard those precepts in order to prevent rape, I would be curious to see the results of that experiment. But otherwise, to attempt to fight rape with rules despite that bedrock problem is to commit the classic activist’s fallacy: Something must be done / This is something // This must be done. It is not abetting the guilty to critique that fallacy without having any alternative plan.
Confused, I think I just must be terrible at expressing myself on this subject.
Here is what I would like to be clear is my baseline opinion before I try to move to any of the more complicated issues.
a) This college and many others have done very poorly with these policies for a long time, with real and terrible consequences for our students past and present.
b) The reasons for doing poorly range from the fact that almost all institutions have done poorly because of embedded ideologies and systems around gender and violence to some of the specific confusions and contradictions that are a legacy of higher education to the specific work of specific individuals.
c) What we are doing now is a major improvement, and there is more work to be done.
What this piece seeks to add to that baseline is this:
a) We should be wary of the tendency of rule-driven and legal systems to create inflexibility and barriers to more humane forms of support and counseling if they’re not kept in check, of systems where the judgment of lawyers threatens to supplant the judgment of counselors, support staff, and activists themselves. I guess I’m puzzled at why this point is perceived as an attack as I think it is something that activists themselves have been worrying about. I think it must be a weakness in the way I’ve expressed this view. The example I had in mind is one that’s been covered in the student press, where a student who mentioned being a survivor of abuse that happened before she came to the college found that her case was referred to authorities because of legal advice.
b) But also: I do think there has been a tendency in these discussions (here and elsewhere) to overlap conversations about causes and culture with conversations about sanctions and rules. That’s understandable, and it’s reasonable to hope that a system which removes all ambiguity around the consequences of assault and rape will have an effect on the frequency of assault and rape. But it’s also important to keep some distance between the two. Which it seems to me even the harshest responses here agree with.
c) I do think that some students on campus have a view of what can be accomplished through centralized authority that worries me, and it is not limited to this issue. What comes along with that is that many students also don’t fully grasp the ways in which the institution works, acts or thinks, which is admittedly difficult for students to see both because of their positionality and the short time they’re here. I’ve been teaching 20 years at Swarthmore and I still learn new things about how stuff works almost every semester. But if you take this issue, a faculty member like myself typically has had only two points of possible formal influence on it up until recent years. Either we have at some point been faced with the question of how to counsel a student who has confided in us about an experience they’ve had, or we’ve been on a committee that has a direct relevance to the issue, such as the Dean’s Advisory Committee or the CJC. Even on a committee, faculty rarely set the agenda actively, but largely instead play a reactive or consultative role. Otherwise, opportunities to act come down to something like expressing oneself in a public context (like a blog) or speaking out in a larger meeting of the faculty or the community.
One of the major issues that has frustrated students has tended to inhibit any possible public statement by faculty too. Because information about CJC processes has been so strictly confidential, most of us have had no more knowledge about what has or has not happened than students have had. I’ve mentioned before that all I’ve known for years is what students I know well say in side conversations (during seminar breaks, for example) about what they’ve heard third-hand from friends or friends of friends about cases or issues or poor administrative choices. That is not much to go on when it comes to blogging, and considering that in those same conversations I’ve sometimes heard students tell me about other third-hand information that I know is actively wrong (say about how a particular policy or decision was made, or about what a particular faculty member’s research is about) it has always been difficult to know what one could say in a public setting. I’m very careful in this blog not to comment too directly on people I know or confidences I’ve been included within, but to try and talk as much as I can about what is in our local “public sphere” or about patterns that connect us to many other institutions.
I’m not sure what Confused thinks that I or any other faculty member ought to do if we think, without direct knowledge, that there’s a specific mistake or error in judgment being made by the administrators who work directly with CJC processes or assault. I’ll refer to the example in the Phoenix this past week. I’m really bothered by what I read about a student who was found responsible for a rape showing up on campus again without consequences. I’m bothered both because it seems to me that if we found a student to have committed rape, that student should be expelled, not suspended, and because if credible witnesses report that the student was back on campus despite being told not to return while suspended, there should be immediate consequences for that action that don’t require another hearing. But I’m not on the CJC, I’m not on the Dean’s Advisory Committee, I don’t have privileged information about the case beyond what I read in the student paper, and on some level, the functioning of the entire college requires a kind of presumption of mutual professional respect between faculty and between faculty and administration. I am already, via this blog and my big mouth, likely seen as guilty of meddling in things that are not my direct responsibility or charge. I am glad the case is in the paper, and I think that student activists will need to continue to press in this way in order to keep the system moving in the right direction. Perhaps Confused would prefer that this is all I limit my commentary to, which is fair enough, except that in many measures, this blog is my vehicle for musing about the issues I’m trying to work out in my own head, the things that worry me and confuse me and frighten me. If it were not, it would not be worth writing.