In response to a finding by the U.S. Department of Education’s Office for Civil Rights (OCR) that the law school was in violation of Title IX, HLS has adopted updated procedures. OCR is expected to comment by Feb. 6, 2015, though Dean Martha Minow has expressed her confidence that the new policies are now in compliance with federal regulations based on communications with the Department of Education’s regional office.
Over the past several months, a committee of HLS faculty members modified the law school’s interim procedures. According to Professor John Coates, who was asked by Dean Minow to chair the committee, these updated procedures incorporate OCR’s recommendations, including the utilization of a “preponderance of evidence” standard, and also a provision that a person reporting will not be asked to reach a resolution directly with the accused party.
Last fall, the university-wide policy was met with resistance from students on campus and challenges from faculty, a group of whom submitted an open letter to the Boston Globe voicing their criticisms. The updated law school guidelines address two major concerns expressed by many in the law school community— the rights of the accused and mandated reporter requirements.
“The HLS faculty committee engaged in a number of outreach efforts, and tried as best it could to review and monitor the overall conversations about Title IX, both on campus and beyond,” said Professor Coates.
The new guidelines provide for greater protections for students accused of violating the sexual harassment policies. For example, section 2.3 provides for reasonable financial assistance to parties unable to afford attorneys if they would like one.
As for mandated reporters, section 1.1 of the HLS procedures lists several confidential resources available to the HLS community before and after an individual discusses potential violations with a Title IX coordinator. These resources include the Harvard University Office of Sexual Assault Prevention and Response, Harvard Chaplains, RESPONSE Peer Counseling, and UHS Counseling and Mental Health Services. Written permission is required before any of these bodies disclose information to a Title IX Coordinator, except in specified circumstances, like when the situation presents an immediate danger.
Second-year law student Jessica Ranucci says she is “grateful that the Administration has been responsive to that concern from students” with regard to confidential resources, but is worried that because details about the mandated reporter obligations are still missing from the current university-wide policy, “there is no way to ensure that the list will be regularly updated and disseminated to students in the future.”
The HLS faculty committee was formed in mid-October, leaving it two months to develop Harvard Law School’s policy.
“In that time, we met with focus groups of students, attended HU-wide Title IX public meetings, met with numerous HLS faculty individually, discussed our work at several faculty meetings, including two that were devoted exclusively to the procedures, consulted with administrators at HLS and Harvard administrators and faculty outside of HLS, including Mia Karvonides, HU Title IX coordinator, worked closely with the HU Office of General Counsel, retained outside counsel to provide further legal guidance, and met with OCR itself,” said Professor Coates. “The committee listened to what everyone had to say and reflected the discussions in the procedures it developed, to address both the goals of Title IX and the values and culture of HLS.”
Professor Coates is hopeful that the procedures will be well-received by the HLS community, and that they will “contribute to reducing the amount of sexual discrimination, by (among other things) relying on adjudicators who are independent of the HLS community, and setting clear timeframes for resolution of complaints, and [doing] so in a fair manner that addresses concerns that students not be wrongfully found to have violated HU’s Title IX policy, or not be given adequate opportunities to be heard or to have assistance of counsel.”
Professor Janet Halley, who signed the open letter to the Boston Globe, said that the HLS procedures, while not perfect, are superior to the university-wide policy, and that “they are a model of how due process and equitable treatment of the parties can be achieved even under the current pressure imposed by the DOE OCR that is putting them at risk both at Harvard and nationwide.”
Pressure from OCR, Professor Halley fears, pushes Harvard University in the direction of attracting more complaints and placing more responsibility on students for violations.
“It is out of balance. The new HLS Procedures are about re-introducing balance and fairness without sacrificing full enforcement.”
Updates to the HLS policy do not change the substance of the university-wide policy—concerns about the contents of the latter persist. Professor Halley believes HU’s Title IX procedure “remains severely defective, misleading, confusing, and unfair.” In particular, Professor Halley worries about “the legally incorrect and highly muddled definitions of sexual harassment and of unwanted sexual conduct.” She adds that “the severely skewed rules on incapacitation and the failure to extend robust protection to freedom of speech and academic freedom remain huge problems for the entire Harvard community.”
More information about Title IX, along with copies of the university-wide and HLS-specific policies, can be found here: http://hls.harvard.edu/about/title-ix-information/.