Women’s Law Association Statement on Harvard’s Title IX Procedures

In the fall of 2014, members of the Harvard Women’s Law Association (WLA) drafted this statement, which the 2014-15 WLA Board approved for publication. As the conversation around Title IX on campus continues, we wanted to share this piece of WLA history and reaffirm our commitment to creating a safe and equal learning environment for women both at Harvard and across the nation.

At this critical moment, Harvard is uniquely positioned to contribute to and lead the national debate over how to address the problem of sexual assault on campus. As representatives of the largest student group on the law school campus and as members of the Harvard community, we write to voice our recommendations for creating a safe and equal learning environment, both at Harvard and on campuses across the country.

Our membership is diverse. We are future public defenders, prosecutors, victim advocates, and university faculty. We represent students who are passionate about indigent defense and students who are passionate about prosecuting sex crimes. Yet we agree that there are some basic guidelines and principles that all universities—starting with Harvard—should follow as they take the necessary steps to address this critical national issue.

We must consolidate the gains made by the federal government, by universities, and by students — but we must do so correctly, by establishing a policy and furthering a culture that is fair to both complainants and respondents of sexual harassment. The policy should reflect the realities of living, learning, and working at a university. It should be transparent, clear and compassionate. It should start with these five recommendations.

  1. In Support of ChangeSexual assault is a growing epidemic on campuses, and we need new, modern policies to address this problem. In July, Harvard released a new university-wide policy that replaces a law school policy that had not been revised for nearly twenty years. The new policy implements critical new measures to bring incidents of sexual assault out of the shadows—by encouraging reporting while protecting victims who come forward. It reflects the high standards of respect and mutuality that the vast majority of our peers and colleagues exemplify every day, while holding accountable the small minority who disregard those values. The new policy is an important step in the right direction, and we shouldn’t return to a two decade-old law school policy.
  2. Effective, Guaranteed RepresentationIt is critical that both complainants and respondents have the right to be represented by an effective advocate free of charge. The university should ensure that both parties are represented by lawyers or advisers who will inform them fully about their rights and about the adjudicatory process. Such a guarantee is essential to ensure that indigent respondents receive a fair hearing as we take a more aggressive approach to addressing the problem of campus sexual assault.
  3. Neutral InvestigatorThe investigator of the complaint should be a neutral third party. A fair and neutral investigator is critical to the fairness and privacy rights of both the complainant and the respondent. Harvard’s policy is a good model, but it should go further by housing the investigator outside of the Title IX Office in order to maximize impartiality.
  4. Limited Role for FacultyFaculty should play an extremely limited role in the adjudication of sexual harassment infractions. While we respect the faculty’s interest in overseeing the adjudication of their students, we believe every student’s interest in autonomy and privacy outweighs faculty concerns in this context. Faculty expertise is generally not in sexual harassment, and faculty members are typically removed from the social environments surrounding these incidents. Moreover, students rely on relationships with faculty to advance their professional careers and enrich their academic learning. It is therefore not ideal for the accused or for the accuser to interact with faculty in this setting. Unless he or she specifically chooses to seek counsel or advice from a particular faculty member, students should not have to meet faculty in this setting.
  5. Clarity and TransparencyFinally, clarity and transparency are essential to any effective policy–and both are currently absent in the wake of the announcement of the new policy at Harvard. The Title IX Office must proactively ensure that members of the Harvard community understand the new policy and procedures. For example, neither faculty nor students know with clarity which Harvard personnel are mandated to report incidents of sexual assault. In fact, at a recent meeting on this subject, one faculty member indicated that she was a mandatory reporter while another, in an identical faculty position, indicated that she was not. This confusion undermines the policy’s goal of encouraging reporting, because victims remain unclear about what statements will trigger which proceedings. Likewise, the community is still unclear about what situations constitute “unwelcome conduct” under the new policy. We recommend that Harvard publish guidance analogous to Yale’s examples to assist students, staff, and faculty in translating the new regulations into their lives and day-to-day conduct.

Harvard and schools around the county are working hard to craft an effective and fair response to the epidemic of sexual assault on university campuses. All new policies, however thoughtful, require some tweaks, and we believe that a robust debate about how to address such a critical issue is healthy.  But the people whom these policies affect the most–female students–have not had as loud a voice in this debate, at Harvard and elsewhere, as policymakers, experts in Title IX, law professors, and administrators.

That needs to change and this statement is our first contribution. We look forward to continuing the discussion.

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