Today, Harvard University student newspaper The Harvard Crimson provided an insightful look at the university’s policies and procedures relating to campus sexual assault, the law school’s branching out from university policies, and the heavy criticism of Harvard’s disregard for student rights. Like many of its peer institutions, Harvard has found itself the target of accusations both that it doesn’t come down hard enough on sexual misconduct and that it disregards principles of due process.
As Torch readers know, colleges and universities have been inundated with guidance from the federal government in recent years and have struggled to comply with the mandates of the April 4, 2011 “Dear Colleague” letter from the Department of Education’s Office for Civil Rights (OCR) and recommendations from White House Task Force to Protect Students from Sexual Assault. Colleges are even attempting to match the so-called “blueprint” for sexual harassment policies announced in a resolution agreement with OCR and the Department of Justice that was meant to be binding only on the University of Montana.
In an article titled “Caught Between Criticisms,” two Crimson staff writers noted mounting pressure from the government and from victims’ advocates to set a higher bar for what constitutes consent and a lower burden of proof, purportedly in order to eliminate sexual assault on campus. But as the article explains, dozens of Harvard Law School professors and many other due process advocates have urged Harvard to consider also the rights of students accused of sexual assault. Although Harvard Law developed its own Title IX procedures separate from that of the rest of the university, in December OCR determined that the law school had violated Title IX, further complicating the debate.
According to the Crimson, Professor Elizabeth Bartholet, who joined 27 of her colleagues in objecting to Harvard’s sexual harassment policy in The Boston Globe in October, “said she wishes Harvard had taken more of a leadership role against the federal government, which she claims is pressuring universities to lead investigation processes that deny due process rights to the accused.” As FIRE has written on The Torch before, Professor Janet Halley has been instrumental in leading the faculty charge against Harvard’s unjust policies, detailing thoroughly how they impede accused students’ ability to get a fair hearing. Another Crimson article published today, “A Call to Arms,” tells how Halley’s continued efforts have greatly influenced the conversation about sexual assault at Harvard.
In a third article published today, “Unfinished Process,” the Crimson staff takes a closer look at some of the specific problems with the university’s policies. For example:
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.”
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.
In our past coverage of due process issues, FIRE has argued that each of these elements poses a serious risk to due process for accused students—the single-investigator model, an inability to cross-examine witnesses, and the lack of a right to counsel.
Toward the end of its assessment of the policy, this Crimson article makes an assertion that, if true, should stop policy-writers dead in their tracks:
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.
Law professors are certainly not flawless. But when no member of the faculty of one of the nation’s most elite law schools will publicly defend policies that have severe implications for student rights, perhaps they should be revisited—and rewritten.