Law Schools

28 Harvard law profs blast new sexual-assault policy as 'stacked against the accused'

  • Print.

Twenty-eight current and former Harvard law professors are blasting the university’s new sexual assault policy as lacking “the most basic elements of fairness and due process.”

The professors outlined their objections to the policy in an opinion column published by the Boston Globe. The New York Times, Bloomberg News, the Huffington Post and the Harvard Crimson have stories.

The professors say they endorse the importance of protecting students from misconduct, but they believe the new policy will do more harm than good. According to the professors, Harvard’s new procedures for deciding cases of alleged sexual misconduct “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,” which bars sexual bias in education programs receiving federal funds.

According to the professors, the policy does not give the accused an adequate opportunity to discover the facts charged, to confront witnesses and to present a defense at an adversary hearing. There is a failure to provide adequate representation to the accused, particularly for students who can’t afford to pay, they say. And they complain that the investigation, prosecution, fact-finding, and appellate review are all lodged in one place–with the Title IX compliance office.

The professors also say the policy has “inappropriately expanded the scope of forbidden conduct,” in part by adopting rules that “are starkly one-sided” when both students are impaired. The policy says that sexual conduct will be deemed unwelcome “when a person is so impaired or incapacitated as to be incapable of requesting or inviting the conduct,” according to the Harvard Crimson article.

Among those who signed the letter are professors Elizabeth Bartholet, Philip Heymann, Duncan Kennedy, Charles Nesson and Charles Ogletree, and emeritus professor Alan Dershowitz.

Harvard Law School and Harvard College are among dozens of universities under investigation for alleged Title IX violations for their handling of sex-assault cases.

A group called Our Harvard Can Do Better issued a statement responding to the law professors’ criticisms.

“Harvard’s sexual harassment policy is not criminal justice law. The newly-created Office of Dispute Resolution (ODR) is not part of the criminal justice system. None of the possible outcomes of an ODR complaint hold anywhere near the severity or longevity of any criminal justice outcome,” Our Harvard Can Do Better wrote in the statement. “By implying Harvard should disregard its legal obligation to protect all of its students and ensure a safe and anti-discriminatory environment, this piece displays a callous lack of understanding of sexual violence and its effect on survivors in educational institutions.”

Our Harvard Can Do Better backs an “affirmative consent standard” in defining sexual assault that requires explicit consent to each sexual act between students. Harvard is the only Ivy League school lacking such a policy, according to the Huffington Post.

Harvard released a statement saying it appreciates that not every member of its community will agree with the new approach, and a committee of faculty, staff and students will offer advice on possible improvements.

Updated at 3:54 p.m. to link to the Our Harvard Can Do Better statement.

Give us feedback, share a story tip or update, or report an error.