Harvard Law Title IX violations: Will other colleges take notice?

Harvard Law School violated Title IX in how it handled sexual violence and harassment complaints, the Department of Education’s Office for Civil Rights (OCR) has ruled after a four-year investigation.

The detailed resolution agreement entered into by the Law School and Harvard University in Cambridge, Mass., will be read closely and could influence policies at other schools.

“It’s a terrific ruling…. When Harvard gets in trouble, people pay attention. Change does trickle down,” says Wendy Murphy, an adjunct professor at New England School of Law who filed the complaint against Harvard Law in 2010.

It was the first such complaint ever filed against the law school, Professor Murphy says, and she had pressed it to change its policies earlier that year when the school hired her as a consultant.

In some past rulings, OCR has tended to be gentler with schools, saying it did not find a violation but the school agreed to certain improvements – which can send confusing signals, Murphy says. In this case, OCR clearly states that the “previous and current sexual harassment policies and procedures used by the Law School do not, as written and as applied in the two sexual assault cases examined by OCR, comply with Title IX’s requirements.”

Among the violations cited, the law school took over a year to make its final determination on one student’s complaint, and only allowed the subject of the complaint to participate in an appeals process that reversed that student’s dismissal from the school. Title IX requires the complainant and the respondent to be treated equitably in such procedures.

OCR credits Harvard Law with correcting some of the original problems with its policies when it adopted a policy this year in conjunction with a new university-wide policy for addressing sexual harassment and sexual assault complaints under Title IX.

For instance, it previously required “clear and convincing evidence” of misconduct before there would be formal disciplinary sanctions, but it has since adopted the “preponderance of the evidence standard required by Title IX,” OCR states. 

That’s important, Murphy and others say, because the preponderance standard (basically requiring a judgment that it was more than 50 percent likely the misconduct occurred) is the only way to give equal weight to both the complainant and the respondent.

But the new university-wide policy prompted a number of objections, listed this fall in an open letter by 28 Harvard Law faculty members concerned about lack of due process for the accused and lack of independence for the law school to determine its own approach.

OCR outlined a number of additional problems that the school has agreed to correct. Among these:

• Not all decisionmakers had been adequately trained on sexual harassment and assault and Title IX compliance.
• The university-wide Title IX policy does not make clear that sexual violence cases cannot be resolved through mediation. (This is important because such informal approaches make it too easy for a school to keep its reported numbers of sexual assaults artificially low, Murphy notes.)
• The university policy needs to clarify that students can pursue campus-based complaints and criminal complaints simultaneously.

OCR will be reviewing and monitoring new procedures the law school adopted in December. The Law School has also agreed to review complaints filed in the past two school years and provide any additional remedies to complainants if there were inconsistencies with Title IX requirements.

The law school will now also conduct annual climate surveys to measure the degree of sexual harassment and violence and the impact of its policies on students.

“I congratulate Harvard Law School for now committing to comply with Title IX and immediately implement steps to provide a safe learning environment for its students,” said Catherine Lhamon, assistant secretary for civil rights, in a statement Tuesday.

“[W]e are confident that the new University policy and the Law School’s new procedures comply with Title IX,” said Harvard Law School Dean Martha Minow in a statement to the law school community.

OCR entered into a similar resolution agreement with Princeton University in November. Another OCR Title IX sexual-violence investigation, against Harvard College, is still pending. As of late October, OCR had 86 such pending cases involving postsecondary institutions.