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Harvard Law Professor: OCR’s Stance on Campus Sex Assault is ‘Madness’

On Tuesday, Harvard Law School (HLS) entered into a resolution agreement with the Department of Education’s Office for Civil Rights (OCR), ending a lengthy investigation into whether the school’s policies violated Title IX. To no one’s surprise, OCR concluded in the letter of findings that accompanied the resolution agreement that the school’s policies were indeed in violation of Title IX.

As FIRE discussed when we initially reported on the agreement, OCR’s letter of findings alleged, among other things, that “the Law School improperly used the ‘clear and convincing’ standard of evidence, rather than the ‘preponderance of the evidence’ standard.”

On Wednesday, HLS Professor Elizabeth Bartholet, who has been on the faculty since 1977 and now serves as director of the school’s Child Advocacy Program, and whose civil rights credentials are well established, commented on this unfortunate development. In an email to The Wall Street Journal’s Law Blog, she wrote:

The federal government’s decision that Harvard Law School violated Title IX represents nothing more than the government’s flawed view of Title IX law. The Department of Education’s Office of Civil Rights, which issued the decision, is not the ultimate decision-maker on law. The courts are responsible for interpreting the law. And I trust that the courts will eventually reject the federal government’s current views. The courts’ decisions to date, including the U.S. Supreme Court, show a much more balanced approach to sexual harassment, one which recognizes the importance of vindicating the rights of those victimized by wrongful sexual misconduct, while at the same time protecting the rights of those wrongfully accused, and protecting the rights of individual autonomy in romantic relationships.

As powerful as these words are, this statement packed the strongest punch:

I believe that history will demonstrate the federal government’s position to be wrong, that our society will look back on this time as a moment of madness, and that Harvard University will be deeply shamed at the role it played in simply caving to the government’s position.

We at FIRE could not agree more. OCR’s interpretation of Title IX is deeply flawed first and foremost because it unfairly curtails due process rights for students accused of sexual misconduct. This is an argument that FIRE (and a host of others) has made repeatedly for more than three years and an argument that Professor Bartholet and 27 of her Harvard Law School colleagues made in an op-ed in The Boston Globe last October.

Hopefully, in 2015 we will put an end to this “madness.”

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