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Harvard Law Professors Slam Government Stance On Sexual Assault

Professors at the prestigious law school say the U.S. Department of Education is creating an environment of "guilty until proven innocent" and may put students' civil rights at risk
Jan 02, 2015 at 7:46 AM ET
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One of America’s most prestigious law schools got a legal slap on the wrist on Tuesday, and many of its professors are unhappy. The U.S. Department of Education’s Office for Civil Rights announced that Harvard Law School had failed to respond adequately to student claims of sexual harassment and assault and was therefore in violation of Title IX. The decision will see that the Ivy League law school revise its sexual harassment policies again, in addition to the university-wide changes announced earlier this year. The OCR cited two specific incidents where the prominent school failed to respond swiftly and appropriately to student complaints.

The problem, in the eyes of many Harvard Law professors, is that the decision and the changes it kicks off (a) are flawed and (b) fly in the face of the basic principles of law. In the current atmosphere, where rape and sexual assault on college campuses are believed to be epidemic, seeing colleges like Harvard Law forced into self-improvement could be understood as a welcome change. However, professors at the school, which has produced 20 Supreme Court justices, say the announcement could actually hurt the civil rights of students. They also see it as part of the federal government’s ongoing bullying of the nation’s institutes of higher education. And this isn’t a case of mansplaining to protect entitled male students—the Harvard Law professors who object to the judgment include several female academics.

Many of these professors have already been critical of the sexual harassment policy the university announced this summer in response to another Title IX investigation. They believe that it stacks the odds against the accused from the beginning by presuming guilt rather than innocence—violating a core tenet of the U.S. justice system. And now the OCR’s censuring of the law school has added more fuel to the fire.

“The federal government’s decision that Harvard Law School violated Title IX represents nothing more than the government’s flawed view of Title IX law,” Harvard Law professor Elizabeth Bartholet says in an email. “The Department of Education’s Office of Civil Rights, which issued the decision, is not the ultimate decision-maker on law. The courts are responsible for interpreting the law. And I trust that the courts will eventually reject the federal government’s current views.”

The decisions of the U.S. Supreme Court, Bartholet goes on to argue, “show a much more balanced approach to sexual harassment, one which recognizes the importance of vindicating the rights of those victimized by wrongful sexual misconduct, while at the same time protecting the rights of those wrongfully accused, and protecting the rights of individual autonomy in romantic relationships.”

The law school’s settlement with the OCR includes proposed procedures that differ from Harvard’s school-wide sexual harassment policy. The broader university policy was decried by over two dozen Harvard Law professors who voiced their concerns in an October editorial in The Boston Globe, claiming that they found it “inconsistent with many of the most basic principles we teach.” The law school has since worked to formulate its own policy in an effort to ensure that the accused are afforded due process, just as much as the victim is afforded speedy justice, where warranted.

“The Harvard Law School has managed to negotiate procedures for law school students which, although they are far from model, and fail entirely to solve the substantive problems with the Harvard University Sexual Harassment Policy, provide at least the basics of due process,” Bartholet says. “These stand in significant contrast to the policies applicable throughout the rest of the university.”

Bartholet and her colleagues acknowledge that sexual assault is a horrific crime and that those who commit such crimes should be punished accordingly, but the university’s sexual harassment policy, they argue, solves problems by creating different ones. As they wrote in their statement to The Boston Globe, “This particular sexual harassment policy adopted by Harvard will do more harm than good.” The danger, they believe, is that it makes it near impossible for someone accused of sexual harassment to be given a fair hearing.

Among the guidelines that contribute to this are the establishment of a central office to handle accusations of sexual misconduct (which is a Title IX compliance office and therefore structurally biased because it operates on behalf of the federal government and not the university itself), the failure to ensure proper legal representation for the accused, and substantive overreach by expanding Title IX’s definition of sexual assault.

“The Harvard University policy goes way beyond what the courts have found to be an appropriate definition of sexual assault or sexual harassment,” Bartholet says.

The school also changed its burden of proof as required by Title IX to a “preponderance of evidence” rather than “beyond a reasonable doubt,” which means that only 51 percent certainty is needed before the accused can be convicted.

This becomes especially sticky in the complex and all-to-common instance where both students had consumed some amount of drugs or alcohol prior to engaging in sexual activity. In these cases, the university risks favoring the accuser without regard to whether or not there was any wrongful intent or perceived consent on the part of the accused.

Harvard is far from the only school to enact such policies, and the result, as Emily Yoffe outlined in an article published on Slate earlier this month, is that the accused are starting to push back by way of expensive lawsuits. In the past three years, more than three dozen lawsuits have been filed by young men implicated in sexual misconduct, citing that their due process rights have been violated. Bartholet believes we’ll continue to see more.

“I have served on the Harvard Law School faculty since 1977, and during that time have observed no unfair treatment of students claiming violation of their Title IX rights,” she says. “I have, however, observed wrongful treatment of a student accused of such violation.”

Of course, this is not to diminish or stifle the voices of victims, which should be given full attention. The fact of the matter is that schools have the responsibility to address sexual harassment while protecting the rights of all their students, not some at the expense of others.