New W.H. campus sexual assault guidelines: Still pretty terrible, but a step in the right direction

President Obama’s sexual assault task force marked its one-year anniversary last week, and released new guidelines for colleges to develop with law enforcement.

Just asking colleges and universities to work with local law enforcement when dealing with claims of sexual assault is a step in the right direction, as the American justice system is far more qualified to handle accusations than schools. Still, as I’ve written before, there is a role for colleges to play when it comes to handling sexual assault — namely as a support service for accusers as they go through the legal system.

But the new guidelines, called a memorandum of understanding, still allow schools to have their own legal system. And although the guidelines say their purpose is, in part, to “respect the legal rights of those accused of sexual assault,” the document poses a bias to schools by repeatedly referring to accusers as “victims,” and the accused as “alleged suspects” or “alleged offenders.” This terminology muddies the waters, creating a “guilty until proven innocent” mentality.

“The message here is clear: a crime has occurred (since the accuser is either a victim or a survivor),” Johnson wrote. “An accused student is, according to the administration, the ‘alleged perpetrator’ of that crime. Under this definition of events, it would seem that an accused student could defend himself only by identifying the actual ‘perpetrator’; because of the MOU’s language, a defense based on a claim that an assault never occurred is off the table.”

Johnson also notes that the new guidelines give accusers the power to decide whether the sexual assault is also reported to police. This allows actual offenders to face only expulsion when they should be in jail, and innocent students to have no due process rights in trying to prove their innocence. If an accuser could almost guarantee the person they are accusing would be punished (as current activists and the administration seem to be pushing for) why even take the chance of reporting to police?

The new guidelines also require schools to conduct their own investigations even if the police are also investigating. As we’ve seen before, colleges just aren’t equipped to handle these investigations themselves. In the case of a he said/she said situation, the schools are under tremendous pressure to take the “she said” as fact, which put a lot of students at risk and opens universities up to a wave of lawsuits. And in the recent case at Vanderbilt University, the school, having no authority to subpoena, wouldn’t have had access the evidence to find the young men responsible.

The administration also suggests in its guidelines that, when developing an agreement between schools and law enforcement, that “critical partners” be included. They specifically name law enforcement, prosecutors’ offices and victims’ services. They do not mention anyone who may speak on behalf of the accused — it’s all about accusers.

Bottom line: Working with police is a step in the right direction when it comes to handling sexual assault, but creating a separate legal system with less-trained college administrators who are acting in the school’s best interest (which currently is to find people guilty, not adhere to a fair process) is still a bad decision. Police, rather than college administrators, need to investigate crimes.

Remember this? quote AS MEMBERS of the faculty of Harvard Law School, we write to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school. We strongly endorse the importance of protecting our students from sexual misconduct and providing an educational environment free from the sexual and other harassment that can diminish educational opportunity. But we believe that this particular sexual harassment policy adopted by Harvard will do more harm than good. As teachers responsible for educating our students about due process of law, the substantive law governing discrimination and violence, appropriate administrative decision-making, and the rule of law generally, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach. We also find the process by which this policy was decided and imposed on all parts of the university inconsistent with the finest traditions of Harvard University, of faculty governance, and of academic freedom. Among our many concerns are the following: Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation. Here our concerns include but are not limited to the following: ■ The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing. ■ The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial. ■ The failure to ensure adequate representation for the accused, particularly for students unable to afford representation. Harvard has inappropriately expanded the scope of forbidden conduct, including by: ■ Adopting a definition of sexual harassment that goes significantly beyond Title IX and Title VII law. ■ Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students. Harvard has pursued a process in arriving at its new sexual harassment policy which violates its own finest traditions of academic freedom and faculty governance, including by the following: ■ Harvard apparently decided simply to defer to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger university community. ■ Harvard failed to engage a broad group of faculty from its different schools, including the law school, in the development of the new sexual harassment policy. And Harvard imposed its new sexual harassment policy on all the schools by fiat without any adequate opportunity for consultation by the relevant faculties. ■ Harvard undermined and effectively destroyed the individual schools’ traditional authority to decide discipline for their own students. The sexual harassment policy’s provision purporting to leave the schools with decision-making authority over discipline is negated by the university’s insistence that its Title IX compliance office’s report be totally binding with respect to fact findings and violation decisions. We call on the university to withdraw this sexual harassment policy and begin the challenging project of carefully thinking through what substantive and procedural rules would best balance the complex issues involved in addressing sexual conduct and misconduct in our community. The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment. The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom. The law that the Supreme Court and lower federal courts have developed under Title IX and Title VII attempts to balance all these important interests. The university’s sexual harassment policy departs dramatically from these legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials. We recognize that large amounts of federal funding may ultimately be at stake. But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats. The issues at stake are vitally important to our students, faculties, and entire community. Elizabeth Bartholet Scott Brewer Robert Clark Alan Dershowitz, Emeritus Christine Desan Charles Donahue Einer Elhauge Allen Ferrell Martha Field Jesse Fried Nancy Gertner Janet Halley Bruce Hay Philip Heymann David Kennedy Duncan Kennedy Robert Mnookin Charles Nesson Charles Ogletree Richard Parker Mark Ramseyer David Rosenberg Lewis Sargentich David Shapiro, Emeritus Henry Steiner, Emeritus Jeannie Suk Lucie White David Wilkins

Remember this?

quote

AS MEMBERS of the faculty of Harvard Law School, we write to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school.

We strongly endorse the importance of protecting our students from sexual misconduct and providing an educational environment free from the sexual and other harassment that can diminish educational opportunity. But we believe that this particular sexual harassment policy adopted by Harvard will do more harm than good.

As teachers responsible for educating our students about due process of law, the substantive law governing discrimination and violence, appropriate administrative decision-making, and the rule of law generally, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach. We also find the process by which this policy was decided and imposed on all parts of the university inconsistent with the finest traditions of Harvard University, of faculty governance, and of academic freedom.

Among our many concerns are the following:

Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation. Here our concerns include but are not limited to the following:

The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.

The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.

The failure to ensure adequate representation for the accused, particularly for students unable to afford representation.

Harvard has inappropriately expanded the scope of forbidden conduct, including by:

Adopting a definition of sexual harassment that goes significantly beyond Title IX and Title VII law.

Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.

Harvard has pursued a process in arriving at its new sexual harassment policy which violates its own finest traditions of academic freedom and faculty governance, including by the following:

Harvard apparently decided simply to defer to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger university community.

Harvard failed to engage a broad group of faculty from its different schools, including the law school, in the development of the new sexual harassment policy. And Harvard imposed its new sexual harassment policy on all the schools by fiat without any adequate opportunity for consultation by the relevant faculties.

Harvard undermined and effectively destroyed the individual schools’ traditional authority to decide discipline for their own students. The sexual harassment policy’s provision purporting to leave the schools with decision-making authority over discipline is negated by the university’s insistence that its Title IX compliance office’s report be totally binding with respect to fact findings and violation decisions.

We call on the university to withdraw this sexual harassment policy and begin the challenging project of carefully thinking through what substantive and procedural rules would best balance the complex issues involved in addressing sexual conduct and misconduct in our community.

The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment. The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom. The law that the Supreme Court and lower federal courts have developed under Title IX and Title VII attempts to balance all these important interests. The university’s sexual harassment policy departs dramatically from these legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials.

We recognize that large amounts of federal funding may ultimately be at stake. But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats. The issues at stake are vitally important to our students, faculties, and entire community.

Elizabeth Bartholet

Scott Brewer

Robert Clark

Alan Dershowitz, Emeritus

Christine Desan

Charles Donahue

Einer Elhauge

Allen Ferrell

Martha Field

Jesse Fried

Nancy Gertner

Janet Halley

Bruce Hay

Philip Heymann

David Kennedy

Duncan Kennedy

Robert Mnookin

Charles Nesson

Charles Ogletree

Richard Parker

Mark Ramseyer

David Rosenberg

Lewis Sargentich

David Shapiro, Emeritus

Henry Steiner, Emeritus

Jeannie Suk

Lucie White

David Wilkins

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