Last week, the Boston Globe published an open letter written by 28 current and retired members of the HLS faculty, which requested that Harvard University reconsider its Title IX guidelines. The letter expressed apprehension at both the development process and content of the university-wide policy.
The concerns with the creation of the current university-wide policy are threefold: first, the development process was secret and failed to involve a broad group of faculty; second, the resulting policy prioritized over-compliance with the Department of Education Office for Civil Rights (OCR) above fair and effective procedures that best serve the Harvard community; and, third, the policy destroyed the individual schools’ autonomy to make disciplinary decisions for their respective students.
“There was no community buy-in—the university-wide policy was developed by a secret committee,” said Professor Janet Halley, who has been writing about sexual harassment for more than 15 years. “There are clear issues with the genesis of the policy and we need consultation in the community.”
Halley contrasted the formation of the university-wide policy to the promulgation of the Interim HLS Policy, noting that she had no complaints about the latter—Dean Minow’s appointment process of the faculty committee was transparent and Professor John Goldberg’s leadership was impressive.
The lack of community involvement resulted in a policy that over-complied with OCR’s mandates rather than one that would fairly and effectively address the sexual harassment issues that have plagued the University, she added.
“Harvard has not only a legal responsibility to comply with Title IX and a moral obligation to fully address sexual harassment, but also an obligation to develop procedures that are fair to the accused,” Halley said. “Our issue is not that the policy is university-wide, but that it seems to be driven by a desire to comply with OCR documents that distort sexual harassment law. For instance, nowhere does case law or even the OCR require that a Title IX officer has to run the entire student discipline process.”
Faculty members also identified several major issues with the content of the policy, including an overly expansive definition of sexual harassment; a single office that retains charging, investigative, fact-finding, prosecutorial, and appellant functions; failure to ensure support and representation for the accused; and lack of opportunity to discover facts charged, confront witnesses, and present a defense at a hearing.
“Many key procedural opportunities are provided to complainants and at the same time denied to the accused,” Halley said, summarizing the concerns of the 28 Harvard Law professors.
The authors of the open letter believe the combination of flaws leave innocent people at risk of being held responsible.
“Harvard University has more power than any university in the country to stand up for principle,” said Professor Elizabeth Bartholet, who signed the letter. “It has instead simply caved to funding threats from the federal government.”
The university-wide guidelines affect students at the law school. Halley warns that there will be a disparate effect on low-income accused individuals because the policy offers many resources for complainants, but none for the accused. Unlike Harvard, other universities including Columbia and Chicago have resources available for all students affected by Title IX policies.
“HLS students should know that the new Harvard University Sexual Harassment Policy puts them at great risk, men and women alike,” said Professor Bartholet. “This includes the risk of being wrongfully found guilty of sexual misconduct, and the related risk of destruction of any future legal career.”
Several students have also expressed concern with the ambiguous mandated reporter requirements. While this issue is not discussed in the letter, interests between the university and victims may not be perfectly aligned. The federal government can hold a university liable for cases in which it should have known about, so in the interest of avoiding liability, universities have a major incentive to impose broad reporting mandates. However, this approach could leave victims who are unsure about whether to report without trusted confidants with whom to discuss their situations. The current Harvard Title IX procedures fail to clearly specify who is and who is not a mandated reporter, which could make members of the community reluctant to address problems.
According to Halley, there have been some negative responses to the letter, but for the most part feedback has been overwhelmingly positive. She believes that Harvard should withdraw this sexual harassment policy and have a university-wide conversation about what protecting victims, being fair to the accused, protecting academic values, and legal compliance mean—a process that would require starting from scratch.
The University will hold another community-wide meeting on Monday, October 27, from 12-1 p.m. in Lowell Lecture Hall. This is one of many avenues available to students who wish to share their opinions—participation in forums, events, reading groups, publications, and conversations with the faculty who signed the letter are welcome.
As Halley stated, “This is a moment of tremendous opportunity.”