A collection of 28 professors at Harvard Law School have banded together to publish a stinging indictment of Harvard University’s new rules pertaining to sexual harassment and assault.
The op-ed, run Wednesday in the Boston Globe, is in response to new rules promulgated at America’s premier university last July about how the university will resolve alleged instances of sexual harassment and assault.
The rules, which took effect at the start of the fall term, were created partly as a response to an ongoing federal investigation into Harvard for possible violations of the federal Title IX law that prohibits sex discrimination at all schools receiving federal funding. The rules create a new office for investigating sexual harassment and assault claims that is separate from the office used for all other alleged offenses.
“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,” the professors say in the op-ed. The new standards, they argue, “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by [any] law or regulation.”
The chief issues raised by the professors is in the procedural nature of the new rules. Harvard’s new standards, they say, provide no means for the accused to cross-examine witnesses in an adversarial hearing, a right that is essential at ordinary criminal trials. They also complain that students with limited means are not provided with legal representation, and that the rules create a fundamental inequality between what is expected of accusers and the accused.
Another significant flaw the professors see is the fact that sexual complaints are resolved by a Harvard office that is also in charge of Title IX compliance, a situation they say creates a conflict of interest where the arbiter of guilt would have an incentive to find accused men guilty.
The signatories, who amount to about one in seven of Harvard Law’s 195 faculty members, include several notable liberals. Professor Charles Ogletree taught President Obama during his time at the school and has remained a close friend throughout Obama’s career. Duncan Kennedy, a pioneering figure in the hard-left field of critical legal studies, also signed the op-ed, as did feminist legal scholar Janet Halley.
Harvard has defended its new policy in a statement, saying it was crafted after two years of work and is an “expert, neutral, fair, and objective mechanism.”
While the law professors think the university has gone too far, other argue the school has not yet gone far enough. Some campus activists have launched a petition effort urging the university to adopt an “affirmative consent” standard for sex similar to the one recently mandated at all publicly-funded colleges in California. The standard, also known as “only yes means yes,” makes a person guilty of sexual assault if they do not obtain explicit consent for sexual activity, instead of the traditional legal standard where an assault typically only occurs if consent is explicitly denied.
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