Harvard Law Professors Challenge Unfairness of Title IX

A lawsuit filed by an accused professor against Baylor University is the latest in a string of litigation from professors or high-level university employees adjudicated under campus Title IX tribunals. It was all but inevitable that the unfair Title IX apparatus that has ensnared thousands of accused students would target professors as well. It might have seemed that self-interest alone would have led professors to demand a fair adjudication process for all.

That academics are supposed to be committed to the truth, of course, should have been motive enough. Yet, as the Obama administration set up its campus procedures, few professors spoke up.

A sensational recent piece in the Chronicle of Higher Education from Wesley Yang profiled four law professors who did: Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet, and Nancy Gertner. The article discussed their lengthy efforts to bring about fairer Title IX adjudication systems, and the consistency of their critique of the system. It’s remarkable to reflect that more than five years have passed since the quartet joined around two dozen of their Harvard Law colleagues in expressing concerns about the unfairness of Harvard’s Title IX policies.

[A Federal Court Takes on Title IX]

Halley noted how the legal cowardice of colleges and universities allowed the Dear Colleague letter—issued without notice and comment, but with the clear expectation that colleges had to follow its provisions, lest they lose their federal funding—to stand unchallenged. If the issue had been litigated, Halley told Yang, “Every single court would have said, ‘You don’t have to do this.’” But universities “would have been portrayed as protectors of rapists,” and therefore pursued the path of least resistance.

In a remark that mirrored comments by lawyer Patricia Hamill before the Senate Education Committee, Suk Gersen noted the gap between the reality of Title IX cases and the common cultural understanding of sexual assault. “We are giving young people the idea that the unhappiness that they have about their relationships is a matter to be taken up with the authorities,” she commented to Yang. “Everyone who works in the Title IX world, if you talk to them about the nature of these factual claims, for the most part, we are not talking about accusations of forcible or coercive conduct.” They will, of course, not say so publicly.

Halley, as she had previously, spoke out about the racial aspect of the Title IX debate, noting that “Jeannie and I and Nancy all agree that in the range of cases that we have happened to see, the number of accused who are men of color is just creepily high.” (That—until the recent University of Wisconsin/Quintez Cephus case—even local branches of the NAACP had remained silent on this issue remains troubling.)

[Yet Another Attack on Due Process by Title IX)

And in perhaps the most important line of the piece, Suk Gersen discussed the rationale for the quartet’s action: “This truly was nothing more than living up to the ideals we live by and teach our students every day.”

The article is, unfortunately, paywalled, but those with academic subscriptions should read it all.

One important point about these four law professors: they have critiqued the current Title IX regime as academics. Nancy Gertner, for instance, published a 2015 essay explaining why the Obama-era preponderance standard had such an unfortunate effect, tending toward gender bias. “The new standard of proof,” she argued, “coupled with the media pressure, effectively create[d] a presumption in favor of the woman complainant. If you find against her, you will see yourself on 60 Minutes or in an OCR investigation where your funding is at risk. If you find for her, no one is likely to complain.” Gertner expanded on her perspective in a 2016 article for Yale Law Journal.

Elizabeth Bartholet, meanwhile, accurately predicted—in 2015, when the trend was not entirely clear—an “escalating wave” of lawsuits from accused students. (The total is now more than 500.) She also was willing to publicly criticize her own institution, faulting “Harvard University for not taking a good look at what the federal government was demanding, deciding on the merits whether it was good or bad, making the commitment to fight against those aspects that were being pushed that were in fact bad policy, and then performing a leadership role.”

Halley has published essays criticizing affirmative consent and exposing Harvard’s biased Title IX training offerings. And Suk Gersen’s co-authored California Law Review article remains the most detailed, nuanced interpretation of the entire Title IX apparatus and the assumptions behind it.

In an era where few academics have been willing to speak out against the Title IX unfairness in their midst, Suk Gersen, Halley, Gertner, and Bartholet stand out all the more.

KC Johnson

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

2 thoughts on “Harvard Law Professors Challenge Unfairness of Title IX

  1. Another fine article, Mr. Johnson. One correction: our university, Oklahoma Wesleyan University, did sue the Office of Civil Rights of the Department of Education in 2016 alleging, inter alia, that the Obama DOE had unlawfully issued the Title IX guidance in 2011 and had unilaterally imposed unfair and impermissible conditions on all colleges and universities. Oklahoma Wesleyan joined a lawsuit filed earlier by a student at the University of Virginia in federal district court in Washington, D.C. (Doe v. Jackson et al. (originally Doe v. Lhamon et al.), 1:16-cv-01158-RC.

    We partnered with the Foundation for Individual Rights in Education (FIRE) in the suit. After the Trump Administration withdrew the 2011 guidance and proposed new rules, we withdrew the suit in February 2018.

    At the time, DOE admitted, “the 2011 rules have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints. Instead, schools faced a confusing and counterproductive set of regulatory mandates, and the objective of regulatory compliance has displaced Title IX’s goal of educational equity.”

    That’s not to minimize your and Prof. Halley’s observation that there was abject legal cowardice among colleges and universities that allowed the 2011 guidance to go unchallenged. FIRE talked to hundreds of colleges before finding one – Oklahoma Wesleyan – that was willing to take OCR and DOE on. Let the record so reflect.

  2. For every student who manages to get a suit filed, there are probably a thousand others who should have sued, but either didn’t want to pursue it, or didn’t have the money to find a lawyer — or even if he did, couldn’t find a lawyer to take his case.

    It’s not easy to find a lawyer to sue a college, even if you have the $20K-$50K to put down on a retainer. Most honest lawyers will tell you are wasting your money trying and the colleges know this.

    It’s like the Ford Pinto, they know that it’s far cheaper to pay off the suits they lose. There are roughly 20 Million college students — 500 lawsuits would be 0.0025% even if they were all filed on the same year. This is not a real risk to the colleges, particularly with the limits on liability that protect them.

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