Harvard law Professors Condemn Campus Sex-Assault Policy

A group of Harvard Law School professors condemned the university’s new sexual misconduct policy, saying it violates the rights of the accused and “departs dramatically” from current law.

Harvard’s procedures for deciding sexual misconduct cases “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation,” the 28 professors said in an open letter published late yesterday on the Boston Globe website. “We find the new sexual-harassment policy inconsistent with many of the most basic principles we teach.”

In July, Cambridge, Massachusetts-based Harvard established an Office for Sexual and Gender-Based Dispute Resolution that will use expert investigators to look into all types of sexual assault, stalking, harassment or misconduct. The school also adopted the U.S. Education Department’s recommendation to use the “preponderance of evidence” standard in adjudicating cases, meaning that an incident is more likely than not to have occurred.

The faculty members, including emeritus professor Alan Dershowitz, said the policy should be retracted because it denies the accused access to legal counsel, knowledge of the accusations against them and the right to question witnesses, potentially exposing them to “unfair and inappropriate discipline.” It also holds one party more culpable when both are impaired by alcohol or drug use.

‘Profoundly Complex’

“The university is confident that the policy and procedures meet their promise of a thoughtful, fair and consistent approach to these profoundly complex and sensitive situations,” Jeff Neal, a Harvard spokesman, said in a statement. “Not every member of the community will agree with every aspect of the new approach,” he said. “This type of discussion is fundamental to any vibrant academic community.”

A committee of faculty, staff and students will advise the school on whether the policies and procedures can be improved.

While an internal college system can be used to move a student’s housing or make administrative decisions, it shouldn’t substitute for the criminal justice system on matters such as rape, said Scott Berkowitz, founder of the Rape, Abuse & Incest National Network, an advocacy group that aids victims of sexual assault.

“Most schools’ internal judicial systems are the worst of both worlds,” Berkowitz said. “They don’t give the accused the protections of the criminal justice system, and they mistreat the victims, too.”

Civil Rights

Dozens of colleges across the country, including Harvard Law School and the university’s undergraduate college, are under investigation for alleged violations of Title IX, the law that prohibits gender discrimination in education.

The Education Department’s Office for Civil Rights started its inquiry of the law school in 2010 after a complaint filed that year alleged the school used too high a standard to prove sexual assault and harassment. The investigation of Harvard College began this year after a student group filed a complaint saying that students who reported having been sexually assaulted weren’t given housing and classroom accommodation that would keep them apart from their alleged assailants.

While Harvard’s new policy falls short, it’s the first “intermediate step” by the administration to place an equal burden on alleged perpetrators and alleged victims in an investigation, according to a statement from Our Harvard Can Do Better, a student-led campaign to end sexual violence on campus.

‘Callous’ Letter

“By implying Harvard should disregard its legal obligation to protect all of its students and ensure a safe and antidiscriminatory environment, this piece displays a callous lack of understanding of sexual violence and its effect on survivors in educational institutions,” the group said, referring to the professors’ letter.

The new policy exceeds the scope of Title IX, the professors wrote. They also criticized the university, saying it failed to adequately consult faculty before imposing the policy, which applies to faculty and staff as well as students.

“The professors are right: Recent Title IX enforcement efforts have abandoned constitutional protections at campuses across the country and they must stop,” said Anne Neal, president of the American Council of Trustees and Alumni, a Washington-based advocacy group. “It’s time that trustees, administrators and faculty follow their lead and draw a line in the sand,” she said in an e-mailed statement. 

In the letter, the professors said Harvard is bowing to pressure from the federal government, which can deny funding to schools deemed not in compliance with the law, the professors said in the letter.

 “We recognize that large amounts of federal funding may ultimately be at stake,” the professors said. “But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats.”

Harvard is the world’s wealthiest university, with an endowment of $36.4 billion.