The Department of Education’s Office for Civil Rights (OCR) announced today that it has found that Harvard Law School (HLS) failed to comply with Title IX. OCR has posted its letter of findings and resolution agreement with HLS on its website.
Among OCR’s key findings is that HLS violated Title IX by using the more robust “clear and convincing evidence” standard of proof in sexual misconduct cases rather than the low “preponderance of the evidence” standard, which requires fact-finders to conclude only that the accused student is 50.01 percent likely to be guilty. Like Princeton University’s recent capitulation on this standard, HLS’s change in policy is a disappointing but unsurprising result of OCR’s April 2011 “Dear Colleague” letter, which mandates the use of this standard in cases involving sexual harassment or sexual assault.
OCR’s repeated findings that using a different evidentiary standard violates Title IX underscores that in issuing its 2011 Dear Colleague letter, OCR effectively enacted new, substantive, binding rules without subjecting those rules to public notice and comment as required by the Administrative Procedure Act. As FIRE has argued, those rules should therefore be considered invalid. Yet no college or university has challenged the rules on those grounds—and of all of the institutions in the country, Harvard was probably best equipped to do so.
Per the agreement, HLS will be required to revise certain policies and procedures, review past sexual misconduct cases, and conduct climate surveys, among other steps. FIRE will review the agreement with an eye to its ramifications for student and faculty due process rights—and we suspect we won’t be the only ones. In October, 28 members of the HLS faculty took to The Boston Globe to criticize Harvard’s new university-wide sexual misconduct policy.
OCR’s press release notes that HLS’s agreement “does not resolve a still-pending Title IX investigation of Harvard College,” so it is not yet clear what changes to the university-wide policy will be mandated. But some provisions of HLS’s agreement are sure to reinforce concerns raised previously by HLS faculty, as well as by FIRE, that the school now fails to afford accused students a fair hearing.
FIRE will have continuing coverage as HLS implements its agreement with OCR.