Unfinished Process

When Harvard first announced its new, University-wide sexual assault policies and procedures in July 2014, they were rightly hailed as a badly needed correction to a system that benefited neither the accuser nor the accused.

The U.S. Department of Education’s Office for Civil Rights had launched Title IX investigations at both Harvard College and Harvard Law School for their mishandling of sexual assault cases. Last March, an anonymous student’s heartbreaking and harrowing account of her rape and the administration’s failed response drew national attention to the College’s crisis.

The Administrative Board that adjudicated all disciplinary cases was shown to be yet again deeply flawed. Operating nebulously—never releasing even anonymized summaries of its proceedings, despite promising to do so five years ago—the Ad Board required complete confidentiality, limited student access to legal counsel, and decided cases on a “sufficiently persuaded” standard with no recognizable legal analogue.

But despite having some of the country’s most distinguished experts on administrative law just down the street, not a single law professor was consulted in the policies’ drafting—a major mistake. The Law School faculty learned of the sweeping changes in the media, just like everyone else.

The frustration came to the fore in October, when 28 prominent Law School professors, including former Dean of the Law School Robert Clark and Alan Dershowitz, published a damning op-ed in the Globe, slamming the University policy’s lack of due process, overly broad definition of sexual harassment, and threat to academic freedom.

Shortly after, a committee formed by Dean Martha L. Minow began work on new Law School-specific policies, a major break from the University’s goal of a single sexual harassment policy. Months later, the procedures were adopted by the Law School in December.

Although the policies Faust had announced in July were progress, they were far from perfect. For one, the University adopted the preponderance of evidence standard advocated by the Office for Civil Rights and favored by advocates. But it also centralized compliance, investigations, and enforcement in the newly created Office for Sexual and Gender-Based Dispute Resolution, or ODR, inviting the possibility of bias for officials seeking to limit damage to Harvard’s reputation at the expense of the best interests of students.

“Having the investigation carried out by somebody different than the person who is going to be deciding the truth of what happened….that’s important for, frankly, everyone,” said Professor John Coates, the law professor who chaired the faculty committee that drafted the Law School’s new policies.

There is “no separation of the judge, the prosecutor, and the investigator,” said Philip Heymann, a Law School professor who cosigned the Globe op-ed. In the University’s announced policies, “the central Harvard office will be the judge of the facts, will make the final determination of facts, which could not be reviewed by the Faculty of Arts and Sciences or the Law School.”

And though the University’s chief Title IX officer Mia Karvonides, who oversees ODR, insists that “people need to understand, to have trust and have confidence that this is an unbiased process,” the possibility of bias is often as damning as its appearance.

In an internal memo circulated by 20 Law School professors, most of whom were signatories to the Globe op-ed, it is noted that investigators must be “entirely free from influence by the Harvard administration.” Instead, reliable and independent fact-finders, such as judges or experienced, former law enforcement officials, should be kept on retainer to ensure the impartiality of the verdict.

On the issue of misplaced incentives, the University’s policy have a clear hole. A problem of possible bias in cases as significant as sexual harassment is unacceptable—and though the Law School’s procedures might be more expensive if implemented University-wide, they have the virtue of being more impartial to both the accuser and the accused.

The faculty committee was limited by the University to revising issues of procedure, not policy substance. And Coates’s blunt assessment that “the procedures the Law School came up with are better” is correct.

Under the University’s sexual harassment procedures, attorneys cannot be present during meetings and interviews. There are no live hearings. Parties cannot interrogate witnesses and challenge evidence being collected.

Those accused can “bring a personal advisor who happens to be an attorney (like a law professor), but that person has to be a university officer. But many students do not know personal advisors in the university who happen to be attorneys,” wrote Law School professor Jeannie Suk in an email response to written questions.

The Law School’s procedures correct for these deficiencies by granting access to legal counsel at all stages of the process, and paying for adequate counsel to those who cannot afford it. They grant hearings, allow for evidence to be responded to directly, and provide a path for appeal to both parties.

These procedures provide an even playing field to traditionally underprivileged groups.

“I’ve been aware of and involved in several Harvard cases, and the majority have been against black respondents,” Law School professor Janet Halley wrote in an email.

Though the Law School committee had to keep to the preponderance of evidence standard held by the University, the better standard of “clear and convincing evidence,” currently used in all Law School disciplinary proceedings, should be the one used University-wide.

Though substantive policy was beyond the ability of the committee to change, Law School professors still raise two serious objections to it—one more concerning the other.

The first points to the overly broad definition of sexual harassment about the ability of “impaired or incapacitated” persons to consent. The policy lacks a reasonable person standard that is found in most case law, and seems to imply that the “complainant may be incapable of consent by dint of that impairment while the same level of impairment gives [the] respondent no mitigation,” Suk wrote in an email.

“I’m terrified on behalf of college students,” said one professor who worried that the clause, without clarification, would sweep consensual sex between two students after moderate drinking into the category of sexual harassment.

Other professors indicated their worries that the policy would impinge on academic freedom, as discussions on rape law or hypotheticals involving gender or sex could be claimed to constitute harassment.

The University policy has a single line that claims no part of it shall be construed to abridge academic freedom and inquiry, while the Law School interim procedures spend several more lines elaborating. Though it seems far-fetched that the University would sanction an instructor for any academic discussion in the classroom, Coates seems right when he says that “it’s slightly embarrassing that it’s a single sentence.”

Despite its many faults, the University policy was certainly a step in the right direction. But though its deficits come not from ill will, they must still be rectified. The original error of the University was moving the policy forward without adequate consultation of the school’s faculty, especially those Law School faculty who might have a wise thing or two to say on the issue.

We could not locate a single law professor who had gone on the record in defense of the University’s policy and against the Law School’s new ones.

But the mistakes are not as important as the opportunity to improve in the future. Harvard Law School has constructed a process immensely better than the one governing the conduct of most Harvard students. It’s time to change that.