As Harvard’s peer institutions move to update their sexual misconduct policies by lowering the standard of evidence required for a guilty conviction, two lawyers interviewed for this article say that these universities’ changes may encourage Harvard to follow suit.
The University is currently in the midst of a two-year process of reviewing its sexual assault policies to ensure that it is compliant with federal anti-discrimination law.
In April 2011, the Office for Civil Rights released a “Dear Colleague” letter outlining stricter guidelines for colleges and universities for dealing with sexual assault complaints in the wake of a stream of Title IX complaints filed against institutions of higher education, including Harvard Law School.
Last month, both the University of Pennsylvania and Cornell announced that they would modify their sexual assault policies, joining Yale and Stanford in altering their standards in response to the letter. Both the University of Pennsylvania and Cornell adopted the lower standard of “preponderance of the evidence” mandated by the “Dear Colleague” letter, which allows an accused student to be found guilty if the institution is at least 51 percent certain of his or her responsibility for an alleged incident. Previously, some institutions, including Harvard Law School and Princeton, had used a higher “burden of proof” standard, which required “clear and convincing” evidence of the accused student’s guilt.
Peter F. Lake ‘81, a professor at Stetson University College of Law who specializes in higher education law, said he thinks that Harvard could be influenced by the University of Pennsylvania and Cornell to conform to the “Dear Colleague” letter.
“As schools choose to come into compliance, it does build momentum for similar schools to take similar action,” Lake said.
New England School of Law Professor Wendy Murphy, who filed a 2002 Title IX complaint against the College and the 2010 complaint against the Law School, said she thought that the growing trend among institutions to adopt the “preponderance of evidence” standard have made it increasingly “embarrassing” for any school, including Harvard, to hold out.
Currently, Harvard’s investigation system for sexual assault varies across the University.
While the Faculty of Arts and Sciences requires that the Administrative Board be “sufficiently persuaded” of the accused student’s guilt to issue a guilty verdict, the Law School uses the “burden of proof” standard.
Lake said that although he thinks the “Dear Colleague” letter prescribes “a monotheistic universe,” mandating a single set of values for all institutions of higher education, he does see room in the federal guidelines for Harvard to maintain different policies across its schools as long as the University can prove that a central source is coordinating the different processes.
But Murphy said she thinks Harvard must uniformly adopt a “preponderance of the evidence” standard in order to come into compliance with the federal guidelines.
“Under the tougher standard, schools have their cake and get to eat it too,” said Murphy, who said she thought it was “very heartening” to see the University of Pennsylvania and Cornell change their sexual assault policies.
But Murphy said she thought the Law School’s “burden of proof” standard sends a message to students making an accusation of sexual assault that “‘we do believe you—we just don’t believe you that much.’”
Two years ago, Harvard began collecting information to assess how well its sexual assault investigation processes and other University policies adhered to federal Title IX regulations, which require colleges and universities to take “immediate and appropriate steps” in response to a sexual misconduct grievance. Last fall, Chief Diversity Officer Lisa M. Coleman told The Crimson that the University was approaching its review process with an eye toward collecting data and developing programs, rather than revising its sexual assault investigation policies. Although the University had at one point planned to involve a student committee in the review process, the creation of that committee was indefinitely postponed last October.
Lake said that the release of the “Dear Colleague” letter sparked a flurry of changes among many institutions, who swiftly revised their policies in accordance with the new Title IX regulations.
“Certainly schools felt a tremendous pressure to scramble as quickly as they could to figure out how to come into compliance,” Lake said.
Lake said he anticipates a legal battle about the constitutionality of the “preponderance of the evidence” standard, which he thinks may violate accused students’ constitutional right of due process.
Lake added that he thinks the “Dear Colleague” letter puts institutions like Harvard in a difficult position.
Colleges and universities must face the question: “’Do I hold out and violate a federal mandate and face sanctions, or do I potentially violate the due process rights of students?’” Lake said. “That’s a heck of a choice.”
—Staff writer Rebecca D. Robbins can be reached at firstname.lastname@example.org.