Specializing in the representation of crime victims, women and children.

HARVARD’S NEW AND IMPROVED SEXUAL ASSAULT POLICY

By Wendy Murphy    Jul. 06, 2014

 

Harvard UniversityHarvard released its new sexual assault policy this week. Many people have asked for my reaction so here it is:

First know that the new policy is NOT the result of “working groups” or people “studying” the issue. It is the necessary product of hard-fought litigation over the past fifteen years, most recently against Harvard Law School which came under federal investigation in 2010 and is STILL under investigation after almost four years.  The new policies will likely resolve that investigation though it COULD have been resolved years ago if Harvard had made positive changes sooner – instead of digging its heels in and refusing to redress violence against women on campus under CIVIL RIGHTS laws, as required by federal law.

I’ve been working to persuade Harvard to change its policies since 2002.  I wrote the first-ever law review article explaining the relationship between Title IX and sexual assault many years ago.  Harvard did not stand alone as a school with noncompliant policies, however, the past several years of activism and awareness started with Harvard because the first publicly known Title IX/sexual assault OCR complaint was filed against Harvard (by me) in 2002 and when Harvard Law School hired me years later in 2010 to handle a Title IX matter and I complained that their policies were noncompliant, I filed another OCR complaint in the Fall of 2010 because they refused to correct them.  Certain teachers at the law school who claimed an expertise in Title IX tried to protect the school (while claiming to care about victims) and begged me not to file.  They took disturbing steps to try and stop the complaint from being submitted to OCR, and Harvard owed me a lot of money at the time so I feared not getting paid if I filed, but I filed anyway.

That complaint – along with one I filed at the same time against Princeton – led to the April 2011 “Dear Colleague Letter” – which was excellent.  Alas, the DCL was followed days later by the filing of the Campus SaVE Act in Congress, which was intended to overturn most of what was excellent in the DCL.  SaVE was signed into law by President Obama March 7, 2013 and became law March 7, 2014.  Immediately before its effective date I filed a lawsuit in DC federal court to enjoin its enforcement on the grounds that it violates women’s equal protection and due process rights.  That lawsuit is still pending and includes arguments that Congress lacked authority to enact SaVE under Morrison and/or the Spending Clause. I argued that SaVE cannot constitutionally require schools to apply state criminal law standards to the definition of whether a woman’s federal civil rights were violated during a sex-based act of violence.  Indeed, civil rights standards require proof of only “unwelcomeness” and “offensiveness,” which are much less onerous burdens compared to standards such as “non-consent” and “force.”  I also argued that by eliminating the word “equitable” from Title IX’s regulatory mandate and allowing schools to apply a burden of proof more onerous than “preponderance,” SaVE allowed disparate treatment of women because such standards are not applicable to the redress of other forms of civil rights violence based on other protected class categories.

In response to my lawsuit against the Department of Education, which was filed in February of this year and approved by the Federal Court to proceed on March 6, 2014, President Obama stated publicly that corrective legislation and an executive order might be necessary.  Thereafter, Senator McCaskill convened hearings that, presumably, will be used as the basis for an amendment to SaVE that will eliminate some of its problematic provisions.

In the meantime, in part because the lawsuit implicates Harvard (and more directly UVA), Harvard redesigned its policy and released it to the public this week.  What follows are my thoughts about what Harvard has done.  I hope other schools follow Harvard’s lead and add to its improvements.

Twelve years after I filed an OCR complaint against Harvard College, four years after I filed a similar complaint against Harvard Law School, four months after I filed a federal lawsuit implicating Harvard’s noncompliant policies, and only a month after I gave a talk at Harvard to an alumnae group and to the school’s Title IX coordinator, the University released a new policy this week in which it takes important corrective steps to ensure women’s safety and equality on campus.

Just as I’ve criticized Harvard repeatedly over the years for its stubborn refusal to respect women’s rights, I’m writing to applaud officials there for making positive changes – albeit much too slowly — and a few things still need fixing.

First the good news:

Harvard will now apply a “preponderance of the evidence” standard to determine whether an incident occurred. This is a critically important change because it means that the word of a woman will be accorded exactly the same value as the word of any other student reporting, or defending, any other type of civil rights violence on campus.

Harvard also removed unfair criminal law standards such as “non-consent” and “force,” from the definitions of offenses.  Henceforth a victim need only prove that conduct was “unwelcome” and “offensive.”  These established civil rights terms appropriately place the definition of civil rights harassment and violence against women on par with civil rights harassment and violence based on other protected class categories such as race and national origin.  MIT and the University of Chicago, among many other schools, should take a lesson from Harvard on this important issue.

It is unclear whether Harvard has repaired the baseline problem of not promising “equitable” redress because their diversity page promises only “effective” redress while the more specific policy promises “equitable” redress.  Obviously, “equitable” is better as it means not only inherently fair treatment but also fair in that redress for women will be exactly the same for women as for all other protected class categories such as race and national origin.

Other problems include that Harvard provides no specific timeframe within which matters involving gender-based harassment and violence will be finally resolved.  The new policy states that the investigation, for example, will be completed within six weeks, but an “investigative team” must first complete an “initial review” which is to be completed only “without delay.”  Clearly, the phrase “without delay” is squishy and could mean many months, which makes the promise of six weeks fairly meaningless because the six-week period does not begin to run until the “initial review” is over.  Harvard students will have to work hard to insist that officials interpret “without delay” to mean days, not weeks.

Much of the new policy is a dramatic improvement on past policies, but Harvard persists in treating violence against women as a segregated form of civil rights violence.  Segregating out any policy for different treatment usually leads to worse treatment.  If students are in fact entitled to “equitable” redress, they should be insisting on exactly the same treatment as other forms of civil rights violence.  On this point it is interesting that Harvard’s specific policies on other civil rights harms based on categories such as race and national origin, if there are any, are not publicly available or linked to the new policy so it’s impossible to compare and contrast.

It is however possible to compare Harvard’s new policy to the one that applies to simple non-civil rights offenses, such as theft, to see the ways that the new policy is not as strong as it should be.  For example, while gender-based violations will now be subjected to an unclear timeframe for final resolution, other “peer disputes” will surely be resolved more quickly as Harvard promises that “the entire process,” for generic peer disputes, “from start to end, ordinarily takes between four and eight weeks…”  This is much faster than time frames in the new policy, which are murky not only because of the “without delay” standard for “initial reviews” but also because of the delay afforded in the appeals process.  Protracted appeals are not available for matters involving laptop thefts because that policy states that a decision after review on appeal is the “final” word.  No similar statement appears in the new gender-based harassment policy, which means offenders can seek “reconsideration” long after an appeal is decided such that “final” decisions may not occur for years, including after the victim or perpetrator graduates.

Other concerns include that Harvard’s new policy limits the grounds on which a victim can file an appeal compared to victims of other offenses such as theft.  A victim of gender-based harassment whose rights were violated during an investigation or decision can only appeal if there was a “procedural error” or “new information” comes to light that was not previously available. Disagreeing with the result or believing that the decision violated the victim’s civil rights is not a permissible basis for an appeal.  By contrast, students involved in simple theft matters can appeal not only when there has been a procedural error but also when they disagree with the conclusion.  Appeals are also allowed in theft cases based on whether the disciplinary board’s decision or sanction imposed was “inconsistent” with past practices.  This is not an option for victimized women yet this basis for appeal is critically important to women because violence against them often ends with relatively meager sanctions and victims should be able to appeal on the grounds that offenders who committed less serious sanctions received more serious punishments.

On a brighter note, Harvard has no time limit for when a complaint can be initiated by a victim.  This is a welcome change that other schools should follow.

Harvard also created a university-wide policy such that its various schools and programs will be cohesive in their responses to gender-based violence and harassment.  This is a good thing but a truly unified policy would have ensured that all forms of civil rights discrimination, harassment and violence are handled at the same office and that the exact same procedural and substantive rules are applied equally to all forms of civil rights violations.

Harvard deserves praise for taking a big step in the right direction – especially considering that, under SaVE, it could have adopted much worse policies (except that the still-pending lawsuit I filed to enjoin SaVE argues that worse standards are unconstitutional.)  For that that they should be commended, but they should also be mindful of the ways in which gender-based segregationist policies will always lead to unjust result.  As the world’s most powerful university, Harvard understands this and should consider revamping its new policy one more time, soon, to get it right once and for all.

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