A Closer Look at HLS’ Sexual Harrassment Guidelines

BY LELA KLEIN

In a recent Record article published on November 8, Pamela Foohey reported that the Dean of Students Office had added a prominent link to Harvard Law School’s Sexual Harassment Guidelines on its webpage following a Record investigation into problems some students were having accessing the guidelines on the web. As part of her report, Pamela talked with students about the prominence of the guidelines in general within the law school community, noting that “now that the guidelines are more prominent, it may be an opportune time to open a dialogue about their substance and effectiveness.” This article is my attempt to take Pamela up on her suggestion. Having attended Antioch College as an undergraduate, when I reflect on the substance and effectiveness of HLS’ guidelines, I naturally begin by comparing HLS’ guidelines with Antioch College’s historic Sexual Offense Prevention Policy, which, although not a sexual harassment policy specifically, is a policy that reflects institutional values, as HLS’ guidelines similarly are claimed to express.

However, unlike the Antioch policy, which includes aspirational definitions (for example, Antioch’s policy specifies that “sexual offenses are seen as not just a violation of an individual, but as a violation of the Antioch Community”), HLS’ guidelines announce that they “establish institutionally enforceable prohibitions, not aspirational standards.”

Should Harvard Law School incorporate similar aspirational standards into its guidelines, thereby going further than simply meeting its obligations under Titles VII and IX? More simply, what institutional values do HLS’ guidelines reveal? A preliminary glance shows room for improvement and even some aspiration. When examining the guidelines’ language with an eye to the institutional values reflected, it is the commentaries to the rules that provide insight into the guidelines’ animating priorities. For example, Guideline 2 of Part I deals with relationships between faculty and students, mandating that faculty members not “request or accept sexual favors” or “solicit a romantic or sexual relationship” with students under their direct academic supervision.

The commentary to this guideline states: “romantic relationships between Law School faculty and their students create the appearance of favoritism and are fraught with potential for actual favoritism and for quid pro quo sexual harassment.” It is interesting (perhaps even striking) that the appearance of favoritism is what is cautioned against, not the potential for abuse of power (as Harvard University’s sexual harassment policy cautions). Is unfair academic advantage really what we should be concerned most about in faculty-student relationships? Or should we be more concerned with the potential for faculty members to use their power to create a coercive environment in which a student’s consent to a relationship may not be freely given? Is the harm of a quid pro quo merely favoritism? What about the loss of educational opportunity, the abuse of trust?

Perhaps this emphasis is unique to the law school environment because students and faculty are less unequal in law school than in the rest of the university. Yet, one could argue that law school in particular creates a power imbalance that fosters this kind of manipulation.

Duncan Kennedy has compared the law school classroom to “the patriarchal family,” describing it as “hierarchical with a vengeance, the teacher receiving a degree of deference and arousing fears that remind one of high school rather than college.” Surely this unique level of deference does not end the day a student is released from a faculty member’s direct academic supervision.

Further, the limits of HLS’ guidelines are also striking, especially when compared to other sexual harassment policies. For example, while Harvard University’s workplace policy specifies that harassment can be conduct or words and can happen on or off campus, HLS’ guidelines explicitly exclude off-campus verbal harassment between students from their purview. While it is clear that not every crude come-on at every law school party should be subject to disciplinary action, should we categorically exclude an incident because it is “wholly verbal” and “off-campus”?

While this limit conforms to Title VII and IX because Title VII operates in work environments and Title IX in educational setting, is this an instance in which HLS should do more than simply meet its obligations? Why should law students be treated differently than staff and faculty in this regard? As a large portion of law students live and socialize primarily with other law students off-campus, isn’t it more likely for off-campus abusive behavior to have a negative impact on work or academic performance? Is this not an instance for some aspiration?

The Kennedy School’s brochure “Tell Someone,” defines sexual harassment as including “verbal comments and suggestions” and states that “[sexual harassment] can also occur between persons having the same university status.” What differentiates Harvard Law students from our colleagues at the Kennedy School?

My focus on language and detail – the rationale behind the faculty-student relationship rule and the disparity between the limits of various University policies and HLS’ guidelines – is not a purely academic exercise. The way in which HLS’ guidelines portray the importance of the issue of sexual harassment through language and limits will be echoed in how seriously the Harvard Law community as a whole responds to charges of harassment and harassing acts and environments generally. As law students, we are likely to be better versed in this area than the average citizen, having studied sexual harassment in 1L classes like Torts and Criminal Law. Yet, Pamela’s article suggests that Harvard Law still may foster a culture in which many law students say they would never report their own experiences with harassment.

One student interviewed stated: “the level of conduct that I would be willing to ignore before making those kinds of waves is pretty high and would likely have to reach the level of actual physical assault.” Another said: “I would report a sexual harassment incident only if I had it on tape. Otherwise, I am convinced that I would not be taken seriously and would be labeled a liar and a troublemaker. I would be ‘confidentially’ blacklisted.” Perhaps increased discussion of HLS’ guidelines and “institutional values” will initiate a needed culture change.

I hope that such culture change incorporates some aspiration.

Lela Klein is a 2L.

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