Harvard Law School's Sexual Assault Policies Need To Change, And Now, Feds Say

One of the nation's top institutions, Harvard Law School, is bowing to pressure from the U.S. Department of Education to change its sexual assault policies in order to insure the equitable resolution of sexual harassment claims and protect women on campus. After a four-year investigation, the Department of Education’s Office of Civil Rights found Harvard Law’s policies and procedures for handling sexual assault cases violated the Title IX ban on gender discrimination. If the law school had refused to adopt the reforms proposed by the OCR — changes that nearly 30 professors opposed for violating the due process rights of accused students — Harvard ran the risk of losing federal funding.

During its investigation, OCR found that Harvard Law’s past and current procedures violated Title IX, as did the institution’s handling of two complaints.

While the law school did have a Title IX coordinator and gave students the coordinator’s contact information, in keeping with Title IX guidelines, the OCR took Harvard Law to task for using the “clear and convincing evidence” standard of proof in dealing with sexual assault complaints rather than the lower threshold of the “preponderance of the evidence." The OCR recommends that universities rely on the latter in determining whether or not a sexual assault was likely to have occurred.

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The OCR also noted that accused students were given more rights than those filing complaints in the appeals process. In one instance, the respondent was able to appeal his sentence before a faculty board without input or testimony from the complainant. His sanction was later overturned and the case dismissed.

Specifically, the respondent-student benefited from a supplemental hearing with representation by counsel and was allowed to provide testimony; the supplemental hearing and faculty review resulted in the reversal of the decision to dismiss the student. As a result, the Law School failed to provide an equal opportunity for both parties to participate in the post-hearing review of the Ad Board’s recommended sanctions for the accused student, and, as such, the complainant was not provided an adequate, reliable and impartial investigation of that sexual assault complaint.

As a result of the agreement, Harvard Law adopted the “preponderance of the evidence” standard; agreed to train staff and provide information to students on the revamped procedures; to review sexual harassment claims from the past two years to check for Title IX compliance and to provide for the safety of both the student filing the complaint and the broader campus while the claims were investigated.

Said Catherine E. Lhamon, assistant secretary for civil rights, in a statement:

I am very pleased to bring to close one of our longest-running sexual violence investigations, and I congratulate Harvard Law School for now committing to comply with Title IX and immediately implement steps to provide a safe learning environment for its students, said Catherine Lhamon, assistant secretary for civil rights.

Over the past few years, campus activists have sought to reform their universities’ sexual assault policies so as to hold more perpetrators accountable and support survivors as they navigate systems that often seem hostile or doubt their complaints. In their campaign, many have found a ready ally in the OCR and its Title IX policy. Under Title IX of the Education Amendments of 1972, institutions that receive federal funding are not allowed to discriminate on the basis of gender, which includes allowing sexual harassment and assault to create a hostile environment.

Following a slew of student complaints, the OCR has opened investigations into more than 40 universities and colleges nationwide, including Harvard Law and Harvard College, the undergraduate arm. But given the law school’s prominence, it is likely that other law schools and universities around the country will follow in its example and adopt the revised sexual assault policies that the Office of Civil Rights is promoting.

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Particularly noteworthy is the vocal opposition that a contingent of Harvard Law professors has raised to the stronger sexual assault rules. Last summer, the wider Harvard University adopted new university-wide policies for handling sexual harassment complaints, requiring the law school to change its disciplinary procedures. Among the reforms were the creation of a centralized office to handle complaints (as opposed to allowing each of the 13 schools to oversee their own cases) and the adoption of the lower “preponderance of the evidence” standard.

In October, 28 law faculty members made headlines for penning an op-ed lambasting the new university-wide policies as lacking in “the most basic elements of fairness and due process” and “overwhelmingly stacked against the accused.”

The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment, the op-ed noted. The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom. The university’s sexual harassment policy departs dramatically from these legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials.

Their worries have been echoed elsewhere.

But in turn, three Harvard Law students wrote their own open letter and circulated a petition in support of the proposed Title IX office and the new reforms. The criminal justice model does not best serve campus sexual assault cases, the advocates argued. Regardless, the procedures put in place do protect the accused’s rights and ensure that both the complainant and respondent have access to information, counsel and the appeals process.

Because going to Harvard is a privilege, but safety is a right; because when you speak, people listen; because we respect you, and consider your voices when finding our own: we ask you to reconsider the positions you stated in your op-ed, the law students wrote.
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It remains to be seen how Harvard’s new sexual assault policies and the new changes to Harvard Law’s practices mandated by the OCR will serve their students. But the systemic problem of sexual assault in campus environments clearly requires new strategies and tools than what administrators have wielded thus far.

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