Harvard Law Professors Slam School’s New Sexual Misconduct Policy

Chuck Ross Investigative Reporter
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Harvard University officials caved in to federal officials in the face of funding threats and enacted a sexual misconduct policy that failed to respect the rights of the accused, claims a group of 28 current and former Harvard law professors.

The legal scholars voiced their frustration with the school’s new policy in a letter sent to The Boston Globe and published Tuesday night.

The Ivy League institution approved new measures to address sexual harassment and sexual assault in July. The policy went into effect this fall.

“We believe that this particular sexual harassment policy adopted by Harvard will do more harm than good,” reads the professors’ letter.

Among the 28 signers of the document are seven women and two high-profile legal scholars – Alan Dershowitz and Charles Ogletree, a friend and former teacher of President Barack Obama.

Harvard enacted the policy after the U.S. Department of Education issued a report in May that included the school among more than 60 others that were being investigated for violating Title IX in handling of sexual misconduct investigations.

In response to that investigation, Harvard administrators moved on a new policy that included a “preponderance of evidence” standard and created an Office for Sexual and Gender-Based Dispute Resolution. The new office included investigators trained to handle sexual harassment and sexual assault cases.

The preponderance of evidence standard provides a lower standard of proof for misconduct charges that was currently being used at Harvard’s 13 individual schools, The Globe reported.

But the legal scholars claim that the university enacted the new measures “by fiat” and that they were enacted out of fear that the federal government would pull funding if the school was found to be non-compliant with Title IX, a law enacted in 1972 to ensure that students are not treated differently on the basis of their sex.

Title IX governs all public and private schools that receive federal funding, which includes federal student loans and grants.

“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 Title IX law or regulation,” reads the professors’ complaint.

Specifically, the group lamented “the absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.”

Under the new policy, one central office is in charge of “investigation, prosecution, fact-finding, and appellate review.”

The new policy also fails “to ensure adequate representation for the accused, particularly for students unable to afford representation,” the professors argue.

All of this goes “significantly beyond” what is required in order to be compliant under Title IX, the complaint reads.

In their letter, the law professors speculated on what fueled what they consider the school’s dramatic response to the Education Department’s pending investigation.

“Harvard apparently decided simply to defer to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger university community,” the scholars wrote.

“The university’s sexual harassment policy departs dramatically from these legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials,” the professors wrote.

They also stated that Harvard, which has among the largest endowments of any university in the world, should consider going it alone rather than stay beholden to the federal government.

“We recognize that large amounts of federal funding may ultimately be at stake,” they continued. “But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats. The issues at stake are vitally important to our students, faculties, and entire community.”

Dershowitz, a high-profile constitutional expert, spoke separately about the school’s policy.

“This is an issue of political correctness run amok,” he told The Boston Globe. (RELATED: California Nears Passage Of ‘Affirmative Consent’ Rape Law)

Despite the change, Harvard’s policy does not go as far as those being enacted in some schools in the U.S. The state of California recently passed a law enforcing a doctrine known as “affirmative consent.” Dubbed “Yes Means Yes,” affirmative consent states that in order for consensual sex to have occurred, both parties much explicitly agree to the act. Pressure is mounting for other schools across the country to enact such strict policies.

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