http://www.nytimes.com/2014/10/16/educat...olicy.html
Dozens of Harvard Law School faculty members are asking the university to withdraw its new sexual misconduct policy, saying that it violates basic principles of fairness and would do more harm than good.
“Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required” by the federal anti-discrimination law, known as Title IX, they wrote in an op-ed article signed by 28 current and retired members of the Harvard Law faculty and posted online by The Boston Globe on Tuesday night.
Harvard College and Harvard Law School are among the dozens of higher-education institutions under investigation by the federal education department over their handling of complaints of sexual assault or sexual harassment.
The federal government has threatened to withhold funds from universities that do not have adequate sexual misconduct policies.
So over the summer, Harvard, like many other institutions on the list, announced a broad new policy aimed at preventing sexual harassment and sexual violence. The policy, which went into effect last month, defined sexual harassment for the first time, and created new procedures for dealing with complaints.
The law professors say the new procedures are fundamentally flawed.
“Harvard has made the Title IX office the charger, the prosecutor, the investigator, the adjudicator and the appeals board, and its sole task is to get this Title IX furor to go away. So at every stage, that office is deeply invested in the rightness of what they did at the prior stage,” said Janet Halley, one of the professors who signed the article. “It’s a totally secret process, in which real genuine unfairnesses can happen, and it’s so airtight that no one would know.”
The new policy, the professors said, is skewed against the accused, who have no assurance of adequate representation, or of a chance to confront witnesses or present a defense at an adversary hearing.
In a statement responding to the law professors, Harvard defended the new policy, which it said was “an expert, neutral, fair and objective mechanism for investigating sexual misconduct cases involving students.”
“The university appreciates that not every member of the community will agree with every aspect of the new approach,” the statement said. “Some believe the policies and procedures go too far; others believe that they do not go far enough.”
While Harvard is confident that the new policy and procedures offer a “thoughtful, fair and consistent approach to these profoundly complex and sensitive situations,” the statement said, it added that a committee of faculty, staff and students will consider possible improvements.
MaryRose Mazzola, a public policy student at Harvard’s Kennedy School of Government and member of Harvard Students Demand Respect, is one of those who would like to see an even tougher sexual misconduct policy. Her group has started a petition to add to the policy an affirmative consent provision, similar to one recently adopted in California, requiring both students to consent actively to each sexual act.
“We’re deeply concerned with the sentiments of the letter,” Ms. Mazzola said. “But it’s important to note that the latter is from some law faculty, but doesn’t represent the whole school or the university or the students. There’s disagreement on both sides.”
The Harvard law professors are not the only ones pushing back against the policies that have resulted from the Department of Education’s more aggressive enforcement efforts. An article in the Oct. 27 issue of The New Republic magazine argues that many college students accused of sexual assault are having their rights trampled. Its author, Judith Shulevitz, cited 20 pending lawsuits by students who said they had been treated unfairly.
Dozens of Harvard Law School faculty members are asking the university to withdraw its new sexual misconduct policy, saying that it violates basic principles of fairness and would do more harm than good.
“Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required” by the federal anti-discrimination law, known as Title IX, they wrote in an op-ed article signed by 28 current and retired members of the Harvard Law faculty and posted online by The Boston Globe on Tuesday night.
Harvard College and Harvard Law School are among the dozens of higher-education institutions under investigation by the federal education department over their handling of complaints of sexual assault or sexual harassment.
The federal government has threatened to withhold funds from universities that do not have adequate sexual misconduct policies.
So over the summer, Harvard, like many other institutions on the list, announced a broad new policy aimed at preventing sexual harassment and sexual violence. The policy, which went into effect last month, defined sexual harassment for the first time, and created new procedures for dealing with complaints.
The law professors say the new procedures are fundamentally flawed.
“Harvard has made the Title IX office the charger, the prosecutor, the investigator, the adjudicator and the appeals board, and its sole task is to get this Title IX furor to go away. So at every stage, that office is deeply invested in the rightness of what they did at the prior stage,” said Janet Halley, one of the professors who signed the article. “It’s a totally secret process, in which real genuine unfairnesses can happen, and it’s so airtight that no one would know.”
The new policy, the professors said, is skewed against the accused, who have no assurance of adequate representation, or of a chance to confront witnesses or present a defense at an adversary hearing.
In a statement responding to the law professors, Harvard defended the new policy, which it said was “an expert, neutral, fair and objective mechanism for investigating sexual misconduct cases involving students.”
“The university appreciates that not every member of the community will agree with every aspect of the new approach,” the statement said. “Some believe the policies and procedures go too far; others believe that they do not go far enough.”
While Harvard is confident that the new policy and procedures offer a “thoughtful, fair and consistent approach to these profoundly complex and sensitive situations,” the statement said, it added that a committee of faculty, staff and students will consider possible improvements.
MaryRose Mazzola, a public policy student at Harvard’s Kennedy School of Government and member of Harvard Students Demand Respect, is one of those who would like to see an even tougher sexual misconduct policy. Her group has started a petition to add to the policy an affirmative consent provision, similar to one recently adopted in California, requiring both students to consent actively to each sexual act.
“We’re deeply concerned with the sentiments of the letter,” Ms. Mazzola said. “But it’s important to note that the latter is from some law faculty, but doesn’t represent the whole school or the university or the students. There’s disagreement on both sides.”
The Harvard law professors are not the only ones pushing back against the policies that have resulted from the Department of Education’s more aggressive enforcement efforts. An article in the Oct. 27 issue of The New Republic magazine argues that many college students accused of sexual assault are having their rights trampled. Its author, Judith Shulevitz, cited 20 pending lawsuits by students who said they had been treated unfairly.