Harvard Law School Professors Issue Comment on Title IX Changes

As the public comment period for United States Secretary of Education Betsy D. DeVos’s proposed Title IX rules drew to a close Wednesday night, Harvard Law School faculty members Jeannie Suk Gersen, Nancy Gertner, and Janet E. Halley submitted their own response praising and critiquing the requirements.

In their 22-page commentary on the new rules, the faculty members presented revisions to the Department of Education’s proposed definition of sexual harassment and live cross-examination requirement. They also denounced the proposals’ new evidentiary standard option for formal investigations.

DeVos released the new rules for enforcing Title IX — a federal anti-discrimination law that underpins Harvard’s policies on sexual misconduct — in November 2018, opening them up to a 60-day comment period that ended Jan. 30. The rules have faced criticism since an earlier version was leaked in August 2018, drawing criticisms for narrowing the definition of “sexual harassment” and introducing live cross-examinations. Many have argued this practice would deter victims of sexual misconduct from coming forward.

The Department had received more than 96,000 comments as of Wednesday evening.

The Law School faculty members’ contribution — submitted independently from the University — came shortly after Harvard offered its own commentary via the Association of Independent Colleges and Universities in Massachusetts and the Association of American Universities. The two coalitions published their critiques of the new Title IX rules on behalf of their membership schools last week.

Gersen, Gertner, and Halley wrote they support the new proposals’ mandated live hearings as a method that “allows parties to probe, and decision-makers to assess, the credibility of the parties and of witnesses.” The university coalitions strongly denounced this aspect of the proposal.

In the right environment, Halley said in an interview, cross-examinations are a useful tool, especially when regulated by formal legal proceedings that can prevent issues like duplicative questioning.

“All of those protective rules that govern cross-examinations in a trial keep it from being abuse,” she said.

In their comment, however, the faculty members wrote cross-examinations could cause harm to both complainants and respondents if questioning were to grow too harsh.

Instead, they proposed a “submitted questions” method currently employed at the Law School, wherein both parties can submit questions to a case’s investigator. The investigator, the faculty members recommend, would be responsible for asking all questions, except for those deemed “irrelevant, excluded by a rule of evidence clearly adopted in advance, harassing, or duplicative.”

In addition to their proposed modifications to the live hearing process, the Law School faculty members critiqued the rules’ new definition of “sexual harassment.”

Under Obama-era Title IX policies, sexual harassment was defined as “unwelcome conduct of a sexual nature” that included “requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

The new rules redefine sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity,” based on Supreme Court precedent.

This definition is “both too narrow and too broad,” the faculty members’ comment reads. Their response contended that the rule should require all hostile environment claims to be “objectively reasonable,” and that a claim should only need to be severe or pervasive — not both.

In a press release, the faculty members reiterated that their critiques and endorsements of the new Title IX rules are all aimed at improving students’ academic experiences and protecting both complainants and respondents.

“I wish that more advocates would take into account the possibility – the reality, in my view – that men of color, trans students, and people with disabilities are subjected to unfair accusations and unfair processes precisely because of their non-normative status in society,” Halley wrote in an emailed statement.

“A fair process that cares both about sexual assault and other forms of discrimination should be an important goal,” she added.

—Staff writer Simone C. Chu can be reached at simone.chu@thecrimson.com. Follow her on Twitter @simonechu_.

—Staff writer Iris M. Lewis can be reached at iris.lewis@thecrimson.com.