Harvard Law Pushes Back

The University of Virginia held a two-day conference last February on “Sexual Misconduct Among College Students.” One of the speakers was the Education Department’s Assistant Secretary for Civil Rights, Catherine Lhamon, who touted her office’s efforts to compel colleges and universities, under pain of losing federal funds, to adopt draconian policies on sexual harassment and assault.

These policies have raised serious concerns about due process and basic fairness for the accused, and an audience member asked Ms. Lhamon how she planned to deal with such “push-back.” Her reply: “We’ve received a lot of push-back, and we need to push forward notwithstanding.” The recent experience of Harvard Law School demonstrates the value of pushing back.

Both Harvard Law and Harvard College, the university’s undergraduate division, were on the Office for Civil Rights’ list of 55 institutions under investigation for violations of Title IX, the law that is the basis for the OCR’s sexual-misconduct mandate. Effective with the 2014-15 academic year, Harvard’s administration instituted universitywide “Interim Policies and Procedures” designed to satisfy the OCR’s demands.

Most institutions yield to OCR’s pressure without significant dissent. But at Harvard, 28 law professors—including liberal luminaries Elizabeth Bartholet, Alan Dershowitz, Nancy Gertner, Janet Halley, Duncan Kennedy and Charles Ogletree —signed an open letter, published in the Boston Globe, in which they described the new policies and procedures as “inconsistent with many of the most basic principles we teach.”

Among their complaints: “the absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense”; the designation of a Title IX compliance officer, “rather than an entity that could be considered structurally impartial,” as investigator, prosecutor and judge; “the failure to ensure adequate representation for the accused,” especially for lower-income students.

The professors also faulted the university for having “apparently decided simply to defer to the demands of certain federal administrative officials,” and law-school administrators listened. They adopted new procedures, independent of the university’s and far friendlier to due process.

Accused students will now have the right to a lawyer and access to financial assistance if they need it. Cases will be adjudicated by an independent panel rather than by the Title IX compliance officer. On Dec. 30 the OCR accepted the new procedures in a settlement agreement with Dean Martha Minow.

The resolution does not address all of the law professors’ concerns. Although the law school has improved its procedures, it is still subject to the university’s policies.

The professors are concerned that these policies define sexual harassment in a way “that goes significantly beyond Title IX and Title VII law” and impose “rules governing sexual conduct between students both of whom are impaired or incapacitated” by alcohol or other drugs, which are “starkly one-sided as between complainants and respondents.” Such impairment vitiates an accuser’s consent but is not a defense for the accused.

Dean Minow also agreed to OCR’s demands to modify the procedures in ways that raise further due-process concerns. The law school must include “a statement that complainants have a right to proceed simultaneously with a criminal investigation and a Title IX investigation,” which could make it impossible for an accused student to defend himself in the university proceeding while preserving his right against self-incrimination.

And it must adopt an “explicit prohibition of public hearings in cases involving sexual assault or sexual violence,” so that it will be difficult for the public or the press to monitor the process for abuses.

Still, the law school’s new procedures are a significant improvement over the university’s, and they promise more fairness than the kangaroo-court systems many universities have adopted under OCR pressure. The investigation of Harvard College is still under way, and the university could do far worse than to follow the lead of Harvard Law, the school that pushed back.

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