Harvard and Title IX: Survey results in hand, policy debate endures
By Evan Lips | February 23, 2016, 7:50 EDT
CAMBRIDGE — Harvard University remains at the forefront of the debate over campus sexual assault, even as a panel of Harvard students and professors meets to consider additional changes to the University’s disciplinary procedures under Title IX, the federal law that prohibits sex discrimination by educational institutions that receive federal funding.
The committee, convened earlier this month and chaired by former interim Dean of the College Donald H. Pfister, is charged with examining data from the campus climate survey released September 21. That survey, conducted by the Association of American Universities on behalf of Harvard and 27 other colleges, sought to assess the level of reported and unreported harassment and assault on campus.
According to the findings, 26 percent (or one in four) of female undergraduates combined at all 28 schools surveyed and 31.2 percent of female seniors at Harvard College were victims either of sexual assault or sexual misconduct at some point during their college careers.
Harvard president Drew Gilpin Faust called the results “deeply disturbing.”
But critics of the campus climate survey argue that the results are misleading. Writing for the Daily Beast, Lizzie Crocker lambasted the AAU for misleading the public:
“The new one-in-four figure from the AAU survey may mislead readers, many of whom will interpret ‘sexual assault’ as rape or other strictly criminal offenses,” Crocker wrote. “A closer look at the survey reveals that 11 percent of female undergraduates said they were assaulted in a way that is consistent with criminal definitions of rape or sodomy.
“Half of these (11 percent of) female undergrads said force was involved, while the other half maintained they were incapacitated by alcohol.”
The formation of the Pfister committee to review the survey data and make policy recommendations marks a new chapter in the school’s Title IX saga, which became public following a blistering announcement in August 2014 by the U.S. Department of Education’s Office for Civil Rights that Harvard was being investigated to determine if they violated Title IX in their approach to dealing with cases of sexual assault and harassment.)
That investigation was itself precipitated by a “Dear Colleague” letter circulated by OCR to colleges and universities in 2011.
In the letter, OCR claimed that in order to be in compliance with Title IX colleges and universities must adopt the lowest burden of proof possible for disciplinary proceedings. That standard, known as the “preponderance of the evidence standard,” requires a finding a guilt if it is “more likely than not” that the accuser is telling the truth. Cases of criminal sexual assault adjudicated in a court of law require proof “beyond a reasonable doubt.” And prior to the issuance of the “Dear Colleague” letter, college disciplinary tribunals typically applied the mid-range “clear and convincing evidence” standard, meaning that it is “reasonably certain” that harassment or violence occurred, as a way to protect both victims and the accused.
The “Dear Colleague” letter was, in effect, a demand that colleges and universities adopt the lower burden of proof or risk investigation by the feds and potential loss of federal funding.
Harvard fires a preemptive strike
In response to the “Dear Colleague” letter, Harvard in July 2014 issued a new campus-wide policy for adjudicating claims of sexual assault and harassment. Under the July 2014 policy, disciplinary tribunals were to employ the lower “preponderance of the evidence.” The policy made no provisions for representation of the accused or the for opportunity of the accused to cross-examine witnesses.
But despite Harvard’s efforts to make claims of campus sexual harassment and assault easier to prove, the new policies were, apparently, too little too late. One month later, OCR announced that Harvard was one of 76 colleges and universities being investigated for Title IX violations.
The law school objects
Nor did the new policy sit well with the faculty of Harvard Law School. In October 2014, 28 members of the law faculty – a rare coalition of conservative and liberal legal scholars — signed on to a statement, published in the Boston Globe, condemning the procedures as a violation of due process.
Although they stressed a need to ensure a safe atmosphere for all students, the law professors wrote that Harvard’s policy “lacks the most basic elements of fairness” such as “separation of the judge, the prosecutor, and the investigator” and “jettison(s) balance and fairness in the rush to appease certain federal administrative officials.” In short, the law professors condemned the policy as “overwhelmingly stacked against the accused, and in no way required by Title IX law or regulation.”
According to the Harvard Crimson, the idea to issue a public letter of protest came from Janet Halley, a law professor who specializes in gender discrimination.
Halley, who regards the the July 2014 policy and procedures as “far beyond anything that federal courts recognize,” stressed that the university drafted the new policies “under the coercive threat of government defunding (rumored to be on the order of $850 million) if they do not implement precisely these changes.”
Halley has not returned a call requesting comment.
On the same day that the faculty letter appeared in the Globe, Harvard Law professor Alan Dershowitz published an op-ed of his own in the Washington Post.
“Fearful of being sued by the federal government, many schools have made it easier both to report accusations of sexual assault (a good thing) and to find a student guilty based on low standards of proof (a bad thing),” Dershowitz wrote.
Separate disciplinary systems
The Harvard Law faculty refused to adopt the policy and, for a time, Harvard allowed the law school to operate under a separate disciplinary system than the rest of the university. But in December 2014, the federal probe that was begun in August determined that the Law School was in violation of Title IX due to its “improper use of ‘clear and convincing’ standard of evidence rather than the ‘preponderance of evidence’ standard of evidence” mandated by the feds.
Nevertheless, ahead of the 2015-16 academic year, law school administrators announced that students involved in Title IX investigations would be guaranteed access to an attorney, paid for by the law school.
Currently, the law school’s website notes that it is still “in the process of revising” its Title IX policies and procedures. The site includes a link to “interim” policies that went into effect at the beginning of the 2014-15 school year “to harmonize Harvard Law School’s sexual harassment policy and procedures with Harvard University’s recently adopted policies and procedures.”
“They are subject to change prior to finalization.”
A lawsuit is born
The Obama administration’s new Title IX “preponderance of the evidence” mandate may soon be tested by a recent lawsuit filed earlier this month in federal court by a recent Harvard graduate.
Alyssa Leader, who graduated last May, claims the school failed to take a “dating violence” complaint she filed against a former college boyfriend seriously. Leader in her lawsuit claims that immediately after she reported the allegations to her residential dean, the dean “discouraged Leader from filing a formal complaint” but ultimately referred her to the school’s Title IX coordinator.
Leader’s lawsuit references the OCR’s “Dear Colleague” letter extensively.
“A failure to adhere to the requirements outlined in the DCL (Dear Colleague letter) could result in the loss of federal funding for an educational institution,” the lawsuit notes.
The lawsuit also references OCR’s investigation into Title IX violations at Harvard Law.
How the Pfister committee will balance the due process rights of the accused in a way that satisfies members of the law faculty with federal pressure to make campus assault and harassment easier to prove remains unclear.
Earlier this week Pfister told the NewBostonPost that the committee is “in a kind of learning phase at this point.”
“We’re looking at a lot of different aspects at how the policies and procedures are being applied,” he said. “Where we find there are adjustments that need to be made we need to make those justifications.”
In a Feb. 8 editorial, the Crimson lauded the fact that a law professor, Christine A. Desan, is a member of the committee.
“We hope now that Harvard can reform its Title IX policies once again, this time bringing the Law School professors’ unique perspectives to bear,” the editorial stated.
Desan did not respond to a request for comment.
A parallel committee, the school’s sexual assault task force created by President Faust in 2014 and charged with investigating prevention policies, failed to meet a January deadline, according to the Crimson.
Faust told the paper she expects the report to be released later this month and noted that the “task force’s final recommendations will build on interim proposals.”