Harvard Law Gave More Rights To Accused Students In Sexual Harassment Cases, Feds Find

12/30/2014 02:35 pm ET | Updated Dec 30, 2014
ASSOCIATED PRESS

Harvard Law School violated federal law by giving more rights to accused students than to accusers in sexual harassment and assault cases, the U.S. Department of Education's Office for Civil Rights announced Tuesday.

The decision closes one of the longest-standing federal investigations into allegations that a school was violating the gender equity law Title IX in its handling of sexual harassment and rape cases. The investigation of Harvard Law began in December 2010, and ended on Dec. 23 with a resolution agreement stipulating action items the school must take under federal monitoring. The department announced the agreement Tuesday and sent a letter of its findings to the school.

A separate Title IX probe of Harvard College -- the undergraduate school at the Cambridge, Massachusetts, campus -- is ongoing. Harvard College is now one of 91 colleges under investigation for sexual violence issues, up from 52 when the undergraduate school's review started in late April.

The Education Department's findings against Harvard Law were similar to the concerns the department flagged when OCR closed Princeton University's investigation in November.

Harvard Law afforded more post-hearing rights to accused students in sexual harassment and assault cases than to students who were alleging they were harmed, OCR found. If a student was facing dismissal or expulsion for allegedly committing a sexual assault, he or she had the opportunity to call and question witnesses during a supplemental hearing process, the OCR said. Accusers in the cases did not receive the same opportunity.

According to the Education Department, Harvard Law did not appropriately handle two student complaints of sexual assault.

In one instance, federal officials found, the law school took 13 months to make its final determination in the case. During that time, the accused student was provided a supplemental hearing with representation by counsel and was allowed to provide testimony, while the complainant was not. In the end, the school reversed its initial decision to dismiss the accused student and dismissed the reporting student's complaint.

The feds also faulted Harvard Law for using a “clear and convincing” evidence standard of proof in sexual assault cases. OCR said this policy was "inconsistent" with the "preponderance of the evidence" standard -- more likely than not to have occurred -- which the Education Department noted is "required by Title IX for investigating allegations of sexual harassment or violence."

Wendy Murphy, the attorney who filed the initial complaint against Harvard Law in 2010, said she hopes Tuesday's announcement will have a ripple effect nationwide.

"When Harvard gets in trouble, everyone pays attention, and unlike changes at lower-tiered schools, change at the top trickles down, so it's a particularly important case," Murphy said.

OCR said it will monitor Harvard Law's implementation of new university-wide policies on sexual misconduct, ensuring that they afford appeal rights to both parties and provide a timeframe for resolving cases, in compliance with Title IX.

Catherine E. Lhamon, assistant secretary for civil rights in the Education Department, credited in a statement the "strong leadership" of Harvard President Drew Faust and law school Dean Martha Minow for bringing about the resolution agreement signed on Dec. 23, "for which I know their students will benefit significantly."

The resolution agreement stipulates Harvard Law must expressly state that victims can pursue a criminal investigation, in addition to filing a complaint with the school. The college must also provide more staff training on Title IX, conduct annual climate assessments, and review all cases of sexual harassment filed during the 2012-13 and 2013-14 school years.

The letter sent from the Education Department to Harvard Law marks the sixth time OCR officials determined in 2014 in a review examining sexual violence cases that a higher education institution violated Title IX.

The decision comes after Harvard Law instituted a new sexual assault policy earlier this year. Faculty at the school criticized the policy in an October op-ed in the Boston Globe for a lacking "the most basic elements of fairness and due process" and being "overwhelmingly stacked against the accused." Student activists also spoke out against the policy, saying that it still put victims at a disadvantage.

On Tuesday, OCR said the new policies had fixed some of the errors that federal officials found, including adopting the standard of evidence currently mandated by Title IX.

In a letter from Dean Minow to the campus community Tuesday, she noted the resolution agreement recognizes the school has already taken steps "to redress the shortcomings identified by the Department, and that the University’s current policy and our procedures for handling allegations of sexual misconduct move us in the right direction."

Minow said Harvard plans to submit new sexual assault policies to OCR that are specific to the law school, and that the school is "confident that the new University policy and the Law School's new procedures comply with Title IX."

CONVERSATIONS