Preventing Sexual Assault

Universities nationwide are trying to do a better job of addressing sexual misconduct on campus. At HLS, new procedures reflect many voices.

Over much of the past year, Harvard, like universities around the country, was engaged in a major review of the many policies and procedures across its schools for preventing, investigating and disciplining sexual misconduct. Last summer, the university issued a new policy and new procedures designed to follow the most recent federal guidance from the U.S. Department of Education.

In the fall, after a number of HLS faculty raised due process concerns about the new university procedures, the entire Harvard Law faculty explored ways in which the school might adopt separate procedures to address some of those concerns. In December, after consultation with the Department of Education’s Office for Civil Rights, Harvard Law adopted new procedures for implementing the university-wide policy and also resolved a 4-year-old inquiry by DOE, which found that some of the law school’s prior procedures had not met current benchmarks under Title IX.

These developments, and their impact on the rights of the accused and on victims—and even on classroom discussions—have been the subject of widespread commentary, in publications from the New Republic to The Wall Street Journal. Below are excerpts from some of the student, faculty and alumni contributions to the debate.

 

“Rethink Harvard’s Sexual Harassment Policy”

The Boston Globe  Oct. 15, 2014

Letter from HLS faculty: Elizabeth Bartholet; Scott Brewer; Robert Clark; Alan Dershowitz, Emeritus; Christine Desan; Charles Donahue; Einer Elhauge; Allen Ferrell; Martha Field; Jesse Fried; Nancy Gertner; Janet Halley; Bruce Hay; Philip Heymann; David Kennedy; Duncan Kennedy; Robert Mnookin; Charles Nesson; Charles Ogletree; Richard Parker; Mark Ramseyer; David Rosenberg; Lewis Sargentich; David Shapiro, Emeritus; Henry Steiner, Emeritus; Jeannie Suk; Lucie White; David Wilkins

As members of the faculty of Harvard Law School, we write to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school.

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"this particular sexual harassment policy ... will do more harm than good.”


We strongly endorse the importance of protecting our students from sexual misconduct and providing an educational environment free from the sexual and other harassment that can diminish educational opportunity. But we believe that this particular sexual harassment policy adopted by Harvard will do more harm than good.

As teachers responsible for educating our students about due process of law, the substantive law governing discrimination and violence, appropriate administrative decision-making, and the rule of law generally, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach.

 

“What Title IX Does”

The Harvard Crimson Oct. 24, 2014

Stephanie E. Davidson ’13, Kristi L. Jobson ’12 and Katherine L. Kraschel ’12

As alumnae of the Law School, we are disheartened by [the Harvard Law School professors’] public dismissal of the University’s long-overdue attempt to address sexual violence at Harvard. Our professors claim that the policy inappropriately expands forbidden conduct, tramples on the rights of the accused, and did not rely on sufficient input from faculty. …

In fact, read on its face, the policy reflects an internal determination that the minimum, federally mandated requirements are not sufficient to create the environment that fosters full intellectual engagement and exploration for all members of the Harvard community. Compliance with Title IX should be a floor, not a ceiling. A university like Harvard, which prides itself on educating tomorrow’s leaders, should be at the forefront of the national response to sexual assault.


 

“Going to Harvard is a privilege, but safety is a right”

The Boston Globe Oct. 31, 2014

Anna Byers ’16, Anna Joseph ’16 and Maggie Dunbar ’15

[Some HLS professors] claim that the new policy “effectively destroyed the individual schools’ traditional authority to decide discipline for their own students” by centralizing arbitration in the university-wide Title IX Office. We believe that a university-wide structure is a fairer way to ensure that all students, regardless of school affiliation, can access a neutral arbiter. Whether a student is studying design, law, or medicine should have no effect on the protections they receive. A Title IX Office has the expertise and commitment to equality to both uphold the law and implement university policy.

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"your letter has distracted ... from ... ending the scourge of sexual assault ...”


We appreciate your interest in assuring that the university’s policy is fair, and we welcome your attempts to remedy its shortcomings. But we worry that your letter has distracted many in our community from an important goal—ending the scourge of sexual assault at our university. On that account, the new policy represents a step in the right direction. Instead of condemning the Title IX Office, we should now focus our energies on improving the university’s policy—always with the twin goals of preventing sexual assault and sexual harassment, and of ensuring that justice and fairness are served.

 

“Harvard’s New Sexual Harassment
Policy Must Change”

WBUR, Cognoscenti BLOG Nov. 14, 2014

HLS Professor Janet Halley

[Harvard’s] procedures … risk making victims of the unharmed and villains of the innocent. They deprive accused students of due process by placing the entire decision-making process in the hands of a single university officer, who has the authority to charge, investigate, adjudicate and hear appeals, all in a single case. That officer is in the impossible position of checking, testing and reviewing her own decisions. …

Several other crucial American values are also under threat by policies like Harvard’s. One of them is academic freedom. While the [Obama] DOE OCR has admitted—grudgingly—that public institutions must respect the First Amendment while enforcing sexual harassment bans, it makes no commitment to free expression values at private institutions, where the First Amendment does not apply. … The broader values of academic freedom, the very lifeblood of education and research, appear not to register as important to DOE OCR at all.

 

“The Trouble with Teaching Rape Law”

The New Yorker Dec. 15, 2014

HLS Professor Jeannie Suk ’02

[M]y experience at Harvard over the past couple of years tells me that the environment for teaching rape law and other subjects involving gender and violence is changing. Students seem more anxious about classroom discussion, and about approaching the law of sexual violence in particular, than they have ever been in my eight years as a law professor.

We are currently in the middle of a national effort to reform how sexual violence is addressed on college campuses. This effort is critical, given the apparent prevalence of sexual violence among students. But it’s not clear that measures taken to protect victims always serve their best interests. At Harvard, twenty-eight law professors, myself included, have publicly objected to a new sexual-harassment policy on the grounds that, in an effort to protect victims, the university now provides an unfair process for the accused. … [This is] unfortunately of a piece with a growing rape exceptionalism, which allows fears of inflicting or re-inflicting trauma to justify foregoing usual procedures and practices of truth-seeking.

Now more than ever, it is critical that law students develop the ability to engage productively and analytically in conversations about sexual assault. … If the topic of sexual assault were to leave the law-school classroom, it would be a tremendous loss—above all to victims of sexual assault.

 

“Sex, Lies and Justice”

The American Prospect Winter 2015

HLS Senior Lecturer on Law Nancy Gertner

Feminists should be concerned about fair process, even in private institutions where the law does not require it, because we should be concerned about reliable findings of responsibility. We put our decades-long efforts to stop sexual violence at risk when men come forward and credibly claim they were wrongly accused. We put our work at risk when the media can dredge up the shibboleths about false accusations of rape, a collective “We told you so” tapping into old attitudes. … [W]e should not substitute a regime in which women are treated without dignity for one in which those they are accusing are similarly demeaned. Indeed, feminists should be concerned about fair process, not just because it makes fact-findings more reliable and more credible, but for its own sake.