Title IX Report for Harvard Law Follows Sex Harassment Policy Changes

Harvard Law School botched two sexual assault complaint investigations, according to a Department of Education report released last week. In one, the school took more than a year to resolve a complaint, did not allow the complainant to participate, and ultimately reversed a decision to dismiss the accused from the law school, reports Boston.com.

The DOE report follows a controversial change in Harvard University's sexual assault policy that was enacted over the summer, despite a strongly worded open letter objecting to the changes by 28 members of the Harvard Law faculty. According to Boston.com, despite those objections, Harvard Law will now follow the university's policy as part of an agreement resolving the DOE investigation.

The investigation, interestingly, was prompted by a report to the DOE from a member of the New England School of Law's faculty that Harvard Law's policies might have violated Title IX.

The Voluntary Resolution

According to The Associated Press, the resolution agreement includes changes to the Law School's sexual harassment and assault policies, as well as an agreement to review complaints dating back to the 2012-13 school year. The school will also notify students and employees about their right to file complaints, pursue criminal sanctions in sexual violence cases, and submit sexual harassment and sexual violence complaints to the DOE's Office for Civil Rights.

The Policy Changes

According to The Boston Globe, many of the new policies are significant changes to the way the university as a whole deals with sexual harassment and assault allegations, including:

• Moving the investigation of complaints to a centralized university-wide office, rather than letting each individual school set its own policies;
• Hiring experts to investigate complaints, rather than leaving it to faculty members; and
• Adoption of a "preponderance of the evidence" standard campus-wide.

The Law Professors' Objections

Shortly after the new policy was announced, 28 law professors signed on to an open letter, published in the Globe, objecting to the changes. The letter said that the new procedures "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."

The specific objections included:

• A lack of fact discovery, ability to confront witnesses, or an adversarial hearing;
• The lodging of investigation, prosecution, fact-finding, and appeal functions in a single (arguably partial) Title IX office;
• The failure to provide representation for the accused, especially those who cannot afford representation;
• A broad definition of sexual harassment that goes beyond Title IX or Title VII law;
• A shift to one-sided rules regarding consent between two intoxicated students;
• A shift from the traditional (school-by-school) way of doing things; and
• A failure to involve faculty in the development of the new policy;

Despite the objections, the resolution of the DOE investigation will mean that Harvard Law will join the wider University's new policy and will adopt the preponderance standard, rather than use the clear and convincing standard that it previously employed.

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• Will Cooley's Bar Passage Woes Lead to Accreditation Scare? (FindLaw's Greedy Associates)