Reform or Regress?



The new sexual harassment policy.

A university-wide policy designed to address and combat the issue of sexual assault has run up against a rather sheer wall of opposition within the Harvard community. The comprehensive policy, first unveiled over the summer, garnered media attention after twenty-eight members of the Harvard Law School faculty published a letter in the Boston Globe decrying legal procedures that “lack the most basic elements of fairness and due process.”

This sudden upheaval in Harvard’s approach to the issue of sexual harassment is far from unforeseen. The New York Times made plain one driving impetus for change, noting that the federal government “has threatened to withhold funds from universities that do not have adequate sexual misconduct policies”; more than seventy universities are currently under investigation for having inadequate systems in place to address cases of sexual harassment on their campuses. Law professor Janet Halley, one of the authors of the letter and a contributor to NPR’s segment about the new policy, elaborated that “this document has been generated while the university and law school are under investigation by a government agency that has committed itself to a course of over-reaching,” and some of the policy’s shortcomings can be attributed to “political furor and legal pressure.”

Halley explained her opposition in legal terms. The Law School’s superseded policy, she said, included a clear definition of sexual harassment and applied an “objectively reasonable standard”; this reasonableness requirement is absent from the new University policy, inviting people to bring weak claims to the Title IX office that may, for example, have express social conflict without amounting to sexual harassment. She cited the structure of the Title IX office – a “compliance office, required to generate more complaints and more students held responsible” – as a second major problem with the policy. It is “the prosecutor in some cases, the investigator, the adjudicator and the appeals board, and its sole task is to get this Title IX furor to go away. So at every stage, that office will be deeply invested in the rightness of what it did at the prior stage,” she told the Times. A third issue, the one that those of us not steeped in law might find easiest to grasp, is that at no stage does the policy require that the accused be shown the complaint on which his or her defense must rest. Finally, in providing “ample support services” to the complainant and “not one iota of assistance” to the respondent in each case, the new policy creates a dangerous situation for students who struggle financially, especially because cases must progress so quickly that accused students will have to scramble for advice. While Harvard Law School provides funds to its students for legal counsel, the University does not, so accused students are put at risk by the policy’s lack of regard both for their legal rights and their ability to represent themselves.

Meanwhile, some students have vehemently voiced their support for the policy. A sophomore interviewed by the New York Times called the law faculty’s letter “a step backward”; several student groups, including Our Harvard Can Do Better and Harvard Students Demand Respect, voiced similar sentiments about the letter and expressed a wish for even more stringent policies. The policy’s opponents are certainly not claiming that the university’s efforts are entirely misguided; Halley added that “it’s entirely possible to take sexual assault and violence and wrongdoing seriously — to take the terrible things that are happening to some young women in our community seriously — without also expressing indifference to justice for people who are accused.” But “it squanders the moral authority of a legal system to announce, as this one does, that it intends to be applied in an over-broad way without due process for persons accused,” and, in Halley’s view, “it’s going to backfire against core values that we all share about sexual harassment itself.”

Hannah Kates ’18 (hkates@college) is reporting the facts.