For the last several months, members of the Harvard Law School faculty have lobbied hard against Harvard’s new sexual harassment policy, which they said lacked “the most basic elements of fairness and due process.” They demanded the university withdraw the policy and tried to institute their own, law school-specific policy for handling sexual assaults.
Now Harvard Law School no longer has a choice. The Department of Education announced on Tuesday that the law school violated Title IX by failing to properly respond to two student complaints of sexual harassment and using the wrong standard of evidence in campus cases. As part of an agreement it reached with the government, Harvard Law must revise its sexual harassment policy and change how it responds to sexual assault cases—changes that will most likely fall in line with the university-wide policy HLS professors have been fighting.
The findings mark the end of a sweeping, four-year investigation. Education officials outlined several violations in their report, including that it took HLS more than a year to resolve one case, only to fail to conduct an “adequate, reliable, and impartial investigation.” In that case, it took Harvard Law five months to make an initial decision (to kick the respondent off campus), four more months for that decision to be affirmed by a hearing officer, another four months to reach a final decision (to reverse their initial decision and dismiss the case). Sixteen months had passed before the school notified the complainant in writing saying the case had been dismissed. Because of the school’s delay, the respondent was unable to return to the law school for several months while the review process continued. The school also failed to give the complainant a chance to participate in the appeal, even though it allowed the complainant to give additional testimony (which led to it dismissing the case).
The law school says it addressed some of the issues raised in the report, including problems with the specifics included in its sexual harassment policy, throughout the course of the four-year investigation. "Over the past two years, Harvard not only adopted a university-wide policy on sexual and gender-based harassment but also launched a task force to recommend ways to more effectively prevent gender-based discrimination," the law school said in a statement on its website.
The agreement effectively ends Harvard Law's ability to drag its feet over changing its campus sexual assault policy. Had the school not agreed to change its policy in a way that satisfied education officials, it would have risked losing federal funding from the department. No school is immune to that pressure, not even one as rich as Harvard Law. All the same, the concerns raised by the law school's professors—that tougher policies on sexual assault stack the odds against the accused—are common.
Education officials say their agreement with the law school will make the campus safer and more fair. And schools are on notice: If Harvard Law professors can't beat back a sexual assault policy they find unjust, good luck to other schools that try. But the questions and concerns of critics aren't going away any time soon.
