12/02/2014 03:30 pm ET Updated Feb 01, 2015

Three More Flaws in Harvard's Sexual Harassment Policy

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In October 2014, 28 professors from Harvard Law School wrote an opinion piece in the Boston Globe criticizing a new university-wide Sexual and Gender-Based Harassment Policy that Harvard instituted over the summer. The professors - and many other commentators - have correctly noted serious due process issues with the rules. They have nevertheless overlooked three especially troubling aspects of the policy that warrant further attention:

1. Appeals Based on New Evidence Must Be Received Within One Week of the Decision of the Investigative Team

Harvard appears to have learned nothing from the case of Caleb Warner in promulgating this provision. In brief, Warner was suspended from the University of North Dakota and banned from campus in February 2010 for allegedly committing sexual assault. In May 2010, however, the local police issued an arrest warrant for Warner's accuser on the basis that she filed a false criminal complaint against him concerning the exact same sexual assault allegation. Despite that astounding fact, UND refused for over a year to reopen the facts of Warner's case. It wasn't until the case received national media attention that UND ultimately reversed Warner's penalty.

In justifying the school's refusal to reexamine the facts, UND's Vice President for Student Affairs pointed out that under the school's student code, all appeals had to occur within five class days of the sanction. Harvard's policy, like UND's, would prohibit an accused student from having his or her case reopened more than one week after a sanction was imposed. There are no exceptions to this time limit, even if an accuser is subsequently criminally charged with filing a false rape complaint with the police concerning the exact same allegation. As seen in Warner's case, such a result is a travesty of justice.

2. Both Accused Students and Complainants Are Limited in Their Choice of "Personal Advisor," in Violation of Federal Law

Harvard's policy states that a "personal advisor" may accompany an accused student or a complainant to interviews with the Investigative Team, but forbids anyone from serving in that role who is not "an officer of the University who is affiliated with the School or unit in which the advisee is enrolled or employed." Harvard's policy is in flagrant violation of the Clery Act. The federal government recently finalized a notice-and-comment rule implementing the Violence Against Women Act that forbids a university from limiting the choice of advisor to someone within the university community. OCR put out a draft of this rule before Harvard implemented the new policy, and the draft contains the same advisor provision. The legislation on which the rule is based was also passed over a year earlier. Yet Harvard seems to have either ignored it or not cared.

3. Both Accused Students and Complainants Have to Write Statements In Their "Own Words"

While Harvard's policy advises accused students to "seek legal counsel before making any written or oral statements" when they are facing the possibility of criminal charges, it simultaneously requires students to write all statements in their own words. This requirement is either totally unenforceable, or it threatens to destroy a student's attorney-client privilege: If an accused student (or a complainant) consults with an attorney, per Harvard's advice, and is then charged with having had the attorney ghost write his or her statement, how is s/he supposed to defend him/herself without discussing the specifics of conversations with counsel and thereby waiving privilege? How much input can the attorney provide to a student without crossing the line into having changed the "words" of the statement?

These three problems, and other serious issues that commentators have identified, threaten to cause miscarriages of justice as Harvard adjudicates sexual harassment allegations. For the good of all its students, the university must scrap its current policy and start over. This time, it would behoove Harvard administrators to include meaningful protections for accused students and consult in advance with those who might identify due process problems before the policy goes live.

Full disclosure: I am a graduate of Harvard Law School.