In 2014, twenty-eight Harvard Law professors published the strongest coordinated response to the post-2011 campus war on due process. The professors lamented that they found “the new sexual harassment policy inconsistent with many of the most basic principles we teach.” They alleged that Harvard’s new policies “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.” The goal, the professors correctly concluded, must “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.”
Utterly dismissing these concerns, Harvard Law School dean Martha Minow told the Crimson that the “University’s current policy and our procedures for handling allegations of sexual misconduct move us in the right direction.” Minow was speaking after resolution of an OCR complaint, in which the anti-due process agency found (as OCR always seems to do) that the targeted school violated Title IX.
The agreement letter between OCR and Harvard was in some respects typical. OCR alleged that Harvard Law had violated Title IX by using a clear-and-convincing (around 75 percent) rather than the preponderance-of-evidence (50.01 percent) standard. As FIRE pointed out, the agreement—with one of the nation’s leading law schools, no less—affirmed that OCR “effectively enacted new, substantive, binding rules without subjecting those rules to public notice and comment as required by the Administrative Procedure Act.” OCR also faulted Harvard’s old policy for not allowing double-jeopardy principles by permitting only accused students to appeal, and for not concluding one sexual assault inquiry quickly enough.
As has occurred in previous settlements with SUNY and SMU, OCR also inserted an ex post facto review of cases from the past two academic years, ordering the law school to reinvestigate sexual assault claims (under the new, lower threshold) and to provide “any additional remedies necessary.” Will previously acquitted students now be branded rapists?
A considerable portion of the resolution agreement, however, amounted to little more than OCR lashing out at the Harvard Law professors, and reminding the law faculty who now has the power in campus due process debates. The resolution deemed Harvard’s current, extremely due process-unfriendly, sexual assault policy in violation of Title IX. But it did so not for any meaningful substantive reason. Instead, OCR seemed not to like what Harvard officially said about its provisions.
And so, Harvard Law is now required to formally assert that no Law School inquiry can “reverse or alter a factual finding” made through the current, due process-unfriendly policy. (OCR seems worried that the law professors might overcome Minow’s hostility to due process and set up a policy outside the bounds of the university’s.) The law school must now formally clarify that the university’s new policy supersedes the old policy, that HLS now uses the preponderance-of-evidence threshold, and that the accuser has the right to appeal a not-guilty finding. (Each of these components is already present in Harvard’s new policy; the “violation” seems to be that the policy doesn’t contain a one-sentence summary of each provision.) The net result: amendments to the current policy that will amount to a “clarification” rejecting, on an almost line-by-line basis, the assertions made by the 28 Harvard Law professors. This is pettiness by resolution.
OCR sent one final message to the 28 law professors. Any subsequent change in Harvard Law’s sexual assault policy must obtain OCR approval. Does anyone want to guess what the chances are that OCR would ever sign off on the law professors’ desire to restore due process?