CAMBRIDGE, MA—On April 1, 2003, in an extremely important victory for fundamental fairness on our nation’s private as well as public campuses, the United States Department of Education’s Office for Civil Rights (OCR) dismissed a complaint against Harvard University. Wendy Murphy, a Boston lawyer, had alleged that revisions to Harvard’s disciplinary procedures—changes devised to eliminate baseless charges of misconduct (including sexual misconduct or “date rape”) between students—violated federal anti-discrimination laws. The OCR pointedly observed that Harvard’s new procedures are not unlawful, since the law “does not prohibit the use of due process.” The Foundation for Individual Rights in Education (FIRE) advised various critics of the old policy on what kinds of changes were needed, and it vigorously supports Harvard’s policy change.
FIRE’s co-director, Harvey A. Silverglate—who debated Murphy publicly several times on this issue—hailed the OCR’s decision as a victory for fair procedure. He observed: “The message is clear. Civil rights and due process are not in conflict with each other. Both are indispensable elements of justice.”
Harvard faced a growing problem at our colleges and universities, the fact that even groundless allegations of sexual misconduct suffice to put an accused student through the ordeal of a full and painful hearing. One case in 2001-2002, handled by Silverglate—a Boston attorney—involved a student who underwent such an ordeal absent any credible evidence of wrongdoing. In May 2002, recognizing the cruelty of such a process and the need to distinguish between supported and unsupported complaints, Harvard added a preliminary review process to its student-against-student procedures. Before Harvard may act, a complainant now must present some evidence that the charge could be corroborated.
The new procedure outraged those impatient with due process, who claimed that Harvard’s revised policy—when applied to sexual assault charges—denied female sexual assault victims the right to bring charges that automatically resulted in actual disciplinary proceedings. Murphy filed a grievance with the OCR in June 2002, arguing that because women file more sexual assault claims than men, the new Harvard policy would affect women disparately. This, she claimed, was a violation of Title IX, a federal law on sex discrimination in education.
As the OCR recognized in its dismissal of the case, however, all that the Harvard policy does is to drop—early in the proceedings—frivolous or baseless complaints regardless of who brings them. “Title IX does not prohibit a process that limits the proceedings if it appears from a reasonable preliminary inquiry that further investigation would not produce evidence that could resolve the complaints,” wrote Thomas J. Hibino, OCR regional director, to Harvard President Lawrence H. Summers. “These changes do not deny a student with a complaint of sexual assault access to a prompt and equitable process for resolving the complaint.”
“False convictions abound in campus courts, and not only in sexual assault cases,” said Silverglate. “Universities desperately need better procedural protections and more rational ways to find facts and to guard against unjustified convictions,” he added. “It is time to take the kangaroo out of campus courts. This is a very important first step. OCR’s stamp of approval will open the door for greater due process at colleges across the country. It sends precisely the right message. More due process protections serve the rights of both the victims and the falsely accused. Rights are not a zero-sum game. They belong to everyone.”
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience on our campuses of higher education. FIRE’s efforts to preserve liberty at Harvard and elsewhere can be reviewed by visiting www.thefire.org.
Harvey A. Silverglate, FIRE’s Boston office: 617-523-5933; email@example.com
Thor L. Halvorssen, FIRE’s Philadelphia office: 215-717-3473; firstname.lastname@example.org
Thomas J. Hibino, Regional Director, Office for Civil Rights: 617-223-9667
Harry Lewis, Dean, Harvard College: 617-495-1555; email@example.com
Lawrence H. Summers, President, Harvard University: (617) 495-1501; firstname.lastname@example.org