Law School Profs Condemn New Sexual Harassment Policy

Twenty-eight Law School professors called for Harvard to withdraw its newly installed sexual harassment policy in a pointed open letter published on Tuesday night.

The letter represents the most extensive public criticism of the new sexual harassment policy since it was announced this summer. It comes while Harvard’s compliance with Title IX anti-sexual discrimination statutes continues to be investigated by the Department of Education’s Office for Civil Rights.

The letter, which was addressed to the Boston Globe and posted on its website Tuesday evening, outlined the professors’ grievances regarding the policy, which centers on what they characterized as a lack of “the most basic elements of fairness and due process.”

The professors complained that the policy far exceeds the scope of the Title IX legislation with which Harvard seeks to comply, and that it was drafted and implemented without appropriate consultation with the faculty.

The group of more than two dozen wrote that the policy has reasonable aims but that its investigative and punitive elements unfairly disfavor accused parties. They pointed specifically to the lack of opportunities for the accused to see the facts against him or her, face the accusing party, and have counsel available.

“Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation,” the professors—21 men and seven women—wrote.

The authors also attacked the University for language in the policy stipulating that any instance of sexual conduct that occurs “when a person is so impaired or incapacitated as to be incapable of requesting or inviting the conduct” will be deemed “unwelcome.” The professors characterized this procedure as “starkly one-sided...and entirely inadequate to address the complex issues involved in these unfortunate situations.”

The authors went on to criticize the University at length for what they said amounted to bowing to the dicta of federal authorities instead of conceiving its own policy.

“Harvard apparently decided to simply defer to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger University community,” they wrote.

The authors also wrote that the policy was conceived and implemented without appropriate consultation with Harvard’s schools and faculty members, accusing central administrators of having “undermined and effectively destroyed the individual Schools’ traditional authority to decide discipline for their own students.”

While some bodies, including the Faculty of Arts and Sciences, have held open meetings to discuss the changes, the professors noted that none of the policy’s most substantive provisions were up for alteration as a result of these gatherings.

Late Tuesday night, University spokesperson Jeff Neal defended Harvard’s new policy while acknowledging its opponents and praising the discourse around it.

“The University appreciates that not every member of the community will agree with every aspect of the new approach,” Neal wrote. “Some believe the policies and procedures go too far; others believe that they do not go far enough. This type of discussion is fundamental to any vibrant academic community.”

Neal added that, in an attempt to better respond to community feedback, a new faculty, staff, and student committee was formed in September and “will offer advice to the University...[about] whether there might be opportunities for improvement either in the new policy and procedures or in their implementation.”

The letter is by no means the first hiccup for the new policy. Since its launch this summer, advocates have loudly complained about its lack of an affirmative consent provision, an element that has been adopted by other universities and that would require explicit consent before any sexual acts.

Tuesday’s letter carried 28 signatures: Elizabeth Bartholet, Scott Brewer, Robert C. Clark, Alan M. Dershowitz (Emeritus), Christine Desan, Charles Donahue, Einer R. Elhauge ’83, Allen Ferrell, Martha A. Field ’65, Jesse M. Fried, Nancy Gertner, Janet E. Halley, Bruce L. Hay, Philip B. Heymann, David W. Kennedy, Duncan Kennedy, Robert H. Mnookin ’64, Charles R. Nesson ’60, Charles J. Ogletree, Richard D. Parker, J. Mark Ramseyer, David Rosenberg, Lewis D. Sargentich, David Shapiro ’54 (Emeritus), Henry J. Steiner ’51 (Emeritus), Jeannie Suk, Lucie E. White ’72, David B. Wilkins ’77.

—Staff writer Matthew Q. Clarida can be reached at Follow him on Twitter @MattClarida.