Activists, Law Profs Divided on Title IX Decision

Just days after the announcement that Harvard Law School had been found in violation of anti-sex discrimination law Title IX, student activists and the lawyer behind the original complaint have praised the findings and expressed cautious hope for the future. Law School professors who previously denounced Harvard’s sexual harassment policy, meanwhile, criticized the decision and remain in vocal disagreement with the University’s approach to the issue.

Following a years-long investigation, the U.S. Department of Education’s Office for Civil Rights announced on Tuesday that the Law School’s “current and prior” sexual harassment policies failed to meet OCR Title IX standards; in particular, OCR noted the Law School’s handling of two student complaints and what it described as a lack of adequate training for Law School professors and administrators in their decision. The University and the Law School have entered a resolution agreement with OCR to address the identified shortcomings.

The OCR decision comes just months after Harvard unveiled a new University-wide sexual harassment policy and set of accompanying procedures last July. With those procedures, Harvard adopted a centralized approach to handling sexual assault, creating a central office to investigate all claims of sexual harassment filed against students and adopting the OCR-preferred “preponderance of the evidence” standard for determining guilt.

New England School of Law Professor Wendy Murphy, who originally filed the complaint against the Law School in 2010 at about the same time as a since-resolved complaint against Princeton, said she was not surprised by OCR’s findings, though she added that the investigation spanned far longer than most others.

Murphy said the investigation against the Law School could prove significant for dozens of other higher education institutions across the nation currently under investigation for their Title IX compliance.

“I’m hopeful that, with the ruling against one of the world’s most prestigious universities, a law school no less…that the fact that this is a ruling against Harvard Law School will in and of itself…inspire all other schools to fall in line and to strictly comply with Title IX,” Murphy said.

Murphy added that she believes that the findings of the investigation against the Law School were less harsh than they could have been because the school was credited with resolving some shortcomings through Harvard’s new policy and procedures—changes that Murphy said she believes would not have been crafted if not for her original Title IX complaint and the subsequent investigation.

Murphy’s response to the news stands in stark contrast to what some Law School professors are saying about OCR’s decision and the federal government’s enforcement of Title IX more broadly.

Elizabeth Bartholet, a Law School professor, wrote in an email that the OCR decision “represents nothing more than the government’s flawed view of Title IX law.” She wrote that OCR’s interpretation of Title IX deviates from what she called the “much more balanced” interpretation found in the courts and argued that OCR’s role is not to interpret the law to begin with.

She criticized Harvard for entering the resolution agreement, rather than “stand[ing] up against the federal government.”

Janet Halley, another professor at the Law School, echoed Bartholet’s criticism of the OCR decision, arguing that “We, as a Law School and as a individual members of the Faculty, have nothing to be ashamed of.”

Halley and Bartholet spearheaded the writing of an open letter from more than two dozen Law School professors published in The Boston Globe in October that criticized Harvard’s new University-wide sexual harassment policy and procedures, alleging that they are biased against the accused. Discontent among Law School faculty members over the University’s central framework led to the adoption of new Law School-specific procedures that await OCR’s approval.

Student activists, meanwhile, lauded Harvard’s agreement with OCR. Jessica R. Fournier ’17 and Julia R. Geiger ’16, organizers for Our Harvard Can Do Better, an undergraduate activist group, said they were pleased with the conclusions of the Law School investigation. They added that they hope changes in staff training and policy clarity—terms of the resolution agreement in the Law School case—will make their way to the College, which is currently under investigation for its own Title IX compliance.

Further impact of OCR’s findings at the Law School are still pending, as Harvard and the Law School still must make Title IX policy and procedural changes, as required by the resolution agreement. Murphy said she will be waiting to see how the Law School and University respond to the agreement.

—Staff writer Noah J. Delwiche can be reached at noah.delwiche@thecrimson.com. Follow him on Twitter @ndelwiche.

—Staff writer Andrew M. Duehren can be reached at aduehren@college.harvard.edu. Follow him on Twitter @aduehren14.