Harvard Zealots Abuse Title IX to Nail the Accused

Harvard is perhaps the only institution in the country with multiple sets of Title IX procedures, depending on which branch of the university the student attends. At Harvard Law School, the parties are allowed to have full legal representation, the tribunal is basically independent, and there’s meaningful discovery. Harvard undergraduates, on the other hand, experience one of the most unfair procedures of any school—no hearing, no cross-examination, a single-investigator model that allows one person, hired by the Title IX office, to serve as investigator, judge, and jury.

Though inconsistent with the new Title IX regulations proposed by Betsy DeVos, the university is desperate to retain its one-sided procedures. Harvard’s new president, Lawrence Bacow, recently informed the Crimson, “It’s important to be able to encourage people to come forward, to do so without fear, and I think we are not in a position as colleges and universities more broadly, to create a process which just mimics what might be adjudicated in a court of law. I think that would be an inappropriate process for us.” He offered no evidence that fair procedures discouraged reporting, nor any explanation of whether the HLS procedures, which do provide fairness, discourage reporting.

Ironically, even as Bacow has joined the charge against DeVos’ efforts to require cross-examination in Title IX hearings, his university has undermined one of the other (bad-faith) arguments against the new regulations—that they would prevent universities from adjudicating off-campus allegations. The proposed regulations note that no bright line exists between on- and off-campus allegations, and cite to a case from Kansas in which a U.S. district court made clear that an allegation from an off-campus fraternity nonetheless had to be adjudicated under Title IX. The proposed regulation’s intent, rather, seems to be to clarify that Title IX adjudication systems ought not to substitute for either the criminal or the civil courts and that the Title IX bureaucracy should stay out of matters that have nothing to do with the situation on campus.

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And yet Harvard is currently in federal court fighting for the right to adjudicate such a case. A Harvard student, identified in court filings only as John Doe, had a sexual encounter hundreds of miles away with a non-Harvard female. The encounter had nothing to do with Harvard in any way. The accuser claimed that she hadn’t consented; Doe maintained that the encounter was consensual. The accuser complained to the police, but they declined to file charges. So, she filed a civil suit against Doe, which currently is working its way through the court system. This is not a case, in short, of an accuser being “silenced” in any way: she’ll have her day in court.

Around seven months after filing her civil suit, the accuser or her representative appears to have approached Harvard and indicated a desire to file a Title IX complaint against Doe. (To reiterate: the accuser has no connection to Harvard, and the alleged incident occurred in another state, not at a Harvard-related event.) It’s not hard to figure out why the accuser’s lawyer might have wanted to pursue such a course: Doe would have far fewer procedural protections before Harvard’s Title IX tribunal than he would have in civil litigation, and a guilty finding from Harvard would boost the accuser’s civil case.

A few months ago, the First Circuit (in a case involving allegations against students at Brown) had made clear that universities had no obligation under Title IX to adjudicate non-student claims like these. Only if, a three-judge panel noted, the accusing non-student sought to “access university libraries, computer labs, and vocational resources and attend campus tours, public lectures, sporting events, and other activities at covered institutions” would the university need to move forward, since in “any of those instances, the members of the public are either taking part or trying to take part of a funding recipient institution’s educational program or activity.” In the Harvard case, the accusing student had made no indication that she ever planned to make use of any Harvard resources.

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Nor did Harvard University’s own Title IX policy cover the accuser’s claim. It applies to off-campus behavior only if “the conduct was in connection with a University or University-recognized program or activity” (not the case here) or if “the conduct may have the effect of creating a hostile environment for a member of the University community” (also not the case here, since the accuser isn’t a member of the Harvard community). In its effort to implement this policy, Harvard hired more than 50 Title IX staffers.

Despite these precedents, Harvard elected to move forward with the adjudication, prompting Doe to sue. He requested a preliminary injunction, and the case was assigned to Judge Indira Talwani, an Obama nominee recommended by Massachusetts Senator Elizabeth Warren. According to a joint filing by the two sides, at a hearing last week Talwani expressed skepticism that Harvard had authority, under its Title IX policy, to move forward with the investigation.

That might have ended the case. But the university, remarkably, insisted that if it couldn’t adjudicate Doe under its Title IX policy, it would charge him under Harvard’s general disciplinary policy, which has few limitations. (According to the joint filing, Talwani was more open to this argument.) Harvard’s position thus amounts to a suggestion that all sexual assault allegations will be adjudicated under its Title IX policy—except those for which the Title IX policy has no jurisdiction, in which case Harvard will just use another policy.

In other words, according to Harvard, there’s no limitation at all on when and how it can adjudicate sexual assault allegations. This is, to put it mildly, a far cry from the refrain of accusers’ rights groups that universities are actually eager not to try sexual assault allegations. President Bacow doubtless recognizes what his predecessor also understood: the only campus pressure on this issue comes from accusers’ rights activists, and no president will face campus difficulties for cracking down through procedurally unfair actions.

In an ideal world, Harvard’s actions would have generated widespread criticism—both for their basic unfairness and for the university’s willingness to set aside its own procedures to reach its desired outcome. Instead, it’s been Doe’s actions that have come under public attack. WBUR commentator Lauren Rickleen argued that the student’s lawsuit illustrated the “world that Betsy DeVos has created” about Title IX’s inapplicability to off-campus activity involving non-students—ignoring that the key ruling on this issue came not from DeVos but from the First Circuit. Even more extreme sentiments came from Boston University’s campus newspaper, which argued that Doe should never have filed the lawsuit. Instead, the student editors wildly asserted, “you’d think someone accused of a crime would want to be proven innocent.”

This sort of rhetoric, which once was confined to the far-right fringes of the 1990s victims’ rights movement, now has entered the mainstream: a Crimson editorial described DeVos’ efforts to bolster the rights of accused students as actually placing a “newfound emphasis on the protection of perpetrators’ rights.” Once someone is accused, the Harvard student editors seem to believe, that student becomes a “perpetrator”—at least in the Title IX context.

Talwani has yet to rule; both parties have promised an additional report this Friday.