by Claude Opus 5.5
Halley and the Gersens argue campus systems overreach; survivor advocates argue they underprotect. Can both critiques be correct of the same system?
American campus sexual misconduct systems are attacked from two directions. Janet Halley, in “Trading the Megaphone for the Gavel” (2015), and Jacob Gersen and Jeannie Suk Gersen, in “The Sex Bureaucracy” (2017), argue that the Title IX apparatus overreaches: it expands definitions of misconduct beyond anything the criminal law would recognise, regulates ordinary sexual conduct through a growing administrative bureaucracy, and adjudicates with procedures that give respondents too little protection. Survivor advocates argue the reverse: that the same systems underprotect, leaving complainants with long, retraumatising processes, inconsistent findings and sanctions that seem trivial relative to the conduct alleged. The case behind these seminars has supplied material for both: a twelve-day hearing with over thirty witnesses and expulsions on one side; reported sanctions including a reflection paper, and a respondent permitted to graduate, on the other.
It is tempting to think these critiques must cancel out, so that if both are made the system is probably about right. That inference is too quick. Both critiques can be correct, because they need not be claims about the same dimension of the system.
The apparent contradiction
Suppose we model a disciplinary system as a single dial running from lenient to harsh. Then overreach and underprotection are opposite claims: one says the dial is set too high, the other too low. On this model they cannot both be true, and the existence of complaints from both sides is weak evidence of balance.
But a disciplinary system is not one dial. It has at least four independent parameters: the scope of prohibited conduct (what counts as misconduct), the evidential and procedural threshold for a finding (standard of proof, rights of participation, cross-examination), the severity and fit of sanctions, and the reliability of the process (consistency, speed, competence). A system can be set high on some and low on others.
How both can hold
First, a system can overreach in scope and underprotect in enforcement. The Gersens’ central target is definitional and bureaucratic expansion: the regulation of unwelcome conduct, of speech, of training and of “sex bureaucracy” generally. Survivor advocates’ central complaint is about serious conduct, assault, being under-investigated or under-sanctioned. There is no contradiction in a system that brings too much minor conduct within its jurisdiction while handling the gravest allegations badly. Indeed, resource dilution offers a mechanism linking the two: an office stretched across a broad mandate may lack capacity to investigate serious cases thoroughly.
Second, a system can be procedurally thin and substantively unreliable at the same time. Halley’s concern is that procedures fail respondents: limited notice, limited access to evidence, conflicted adjudicators. But the same procedural thinness produces unreliable outcomes in both directions. Poor procedures do not simply tilt towards complainants; they generate error. A process without rigorous fact-finding will produce some false findings of responsibility and some false findings of non-responsibility. Both groups of critics can therefore be describing real victims of the same defect.
Third, a system can be harsh in sanction range and erratic in application. Expulsion is available, and was reportedly used here. Yet a system can also impose sanctions that look disproportionately light in other cases. Inconsistency is a distinct vice. A system that is sometimes too harsh and sometimes too lenient is not balanced; it is arbitrary, and arbitrariness wrongs both respondents and complainants.
Fourth, a system can be oriented to the wrong goal. The Gersens’ deeper argument is that the bureaucracy is driven by institutional compliance: protecting the university from federal enforcement and litigation. If that is right, then the system’s outputs will track institutional risk, not justice for either party. Respondents will sometimes be sacrificed to show seriousness; complainants will sometimes be managed to contain liability. Both critiques then identify symptoms of a single underlying pathology.
What this means for evaluation
If both critiques can be correct, then the complaints from both sides are not evidence of balance. They may be evidence of a system that fails on several dimensions at once. The right question is not whether a system is too harsh or too lenient in aggregate but which parameters are miscalibrated, and in which direction.
That reframing has practical consequences. It suggests that reforms need not be zero-sum. Better investigation, adequate resourcing, independent adjudicators, clear and consistent sanction guidelines and transparent reasoning would improve accuracy, which serves both complainants and respondents. The real trade-offs, such as the standard of proof, which distributes errors between the parties, are narrower than the polarised debate suggests.
Limits of the reconciliation
This reconciliation has limits. Some disagreements are about the same parameter. Survivor advocates who support preponderance and critics who want clear-and-convincing evidence are directly opposed. Advocates who see cross-examination as retraumatising and critics who see it as essential to accuracy disagree about the same procedural feature. On these points, both critiques cannot be fully satisfied.
There is also a risk in the reconciliation itself. Saying that the system fails everyone can become a way of avoiding judgement about which failures are graver and who bears them. It may be that, in a given institution, one critique describes the dominant failure and the other a marginal one.
Conclusion
Halley and the Gersens on one side and survivor advocates on the other can both be correct about the same system, because a disciplinary system has several dimensions that can be miscalibrated independently, and because procedural weakness and compliance-driven orientation produce errors in both directions. The coexistence of their critiques is not evidence that the system is balanced. It is more plausibly evidence that it is inaccurate, and accuracy is a goal both sides share.