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Last week, 28 law professors drawn from a wide range of legal disciplines, including legal philosophy, constitutional law, and civil rights, published a letter criticizing the university's newly revised sexual harassment and sexual assault policy. The letter listed several grievances with the new policy, but the brunt of the criticism rested on two claims—that the new policy unfairly infringes on the rights of the accused, and that the way the policy was implemented “violates ... traditions of academic freedom and faculty governance.” While neither of these complaints can be brusquely dismissed, the first merits significantly more credence than the second. Further, given universities’ troubled history in dealing with cases of sexual assault, we disagree with the letter's assertion that the new policy "will do more harm than good."
On the spectrum of issues that are important for the faculty of Harvard Law School have control of in order to defend academic freedom, sexual harassment policy certainly ranks low. Sexual harassment policy is not a matter of curriculum or freedom of opinion. This change in policy will have no effect on any of the signed professors' abilities to publish, teach, or even to contribute to the discourse on sexual harassment policy. Perhaps the professors are correct in saying that this policy takes away a right to determine discipline traditionally maintained by the faculty, but tradition has not been a particular just arbiter for victims of sexual assault.
The letter makes no direct mention of the "preponderance of evidence" standard that the new policy has instituted, which is preferred by the U.S. Department of Education's Office for Civil Rights and a step in the right direction from the "sufficiently persuaded" standard employed earlier. Instead the letter chooses to focus on how Harvard's new policy exceeds Title IX requirements, and how going beyond the minimum requirements somehow means that the university is failing to “stand up.”
The letter's concerns with the centralization of authority to process sexual harassment claims into the Office for Sexual and Gender-Based Dispute Resolution and with the issue of the rights of representation for the accused are also substantial. The ODR will be composed of "trained investigators," and though it is true that this is not an independent authority, it is still an improvement over a system in which the Ad Board, a body not required in any substantive way to have expertise in sensitive issues like sexual harassment, had control over the hearing and judgment of such cases. The ODR might not be an ideal solution, but the idea that it will become a facilitator of false accusation and unjust sentencing seems farfetched.
If Harvard is to extend larger rights of representation for the accused, the authors of the letter point to an important point that requires clarification. In the rare case of a false accusation, it would be horrible to see a student unable to defend him or herself because of inability to afford adequate representation. Financial means, or even legal savvy or acumen, should not privilege one student over another in these cases. But it is still distorting to argue that the need for clarification here spoils the new policy in its entirety.
The authors of the letter are correct in saying that Harvard University must “stand up for principle.” But the principle it must stand for is justice for the victims of sexual harassment and assault. The new policy is not perfect. But even accounting for the letter's legitimate grievances, it absolutely does more good than harm.
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