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Op Eds

What Title IX Does

By Stephanie E. Davidson, Kristie L. Jobson, and Katherine L. Kraschel

On October 15, 28 of our former Harvard Law School professors penned an open letter in the Boston Globe detailing their concerns about the University’s interim sexual harassment policy. As alumnae of the Law School, we are disheartened by their public dismissal of the University’s long-overdue attempt to address sexual violence at Harvard. Our professors claim that the policy inappropriately expands forbidden conduct, tramples on the rights of the accused, and did not rely on sufficient input from faculty. We applaud The Crimson’s recent editorial rebutting these claims, and write to offer a few of our thoughts as former law students.

While criticizing the policy as a product of deference to “the demands of certain federal administrative officials rather than [to] independent judgment,” the professors simultaneously state that the University “inappropriately” adopted “a definition of sexual harassment that goes significantly beyond Title IX and Title VII law." In fact, read on its face, the policy reflects an internal determination that the minimum, federally mandated requirements are not sufficient to create the environment that fosters full intellectual engagement and exploration for all members of the Harvard community. Compliance with Title IX should be a floor, not a ceiling. A university like Harvard, which prides itself on educating tomorrow’s leaders, should be at the forefront of the national response to sexual assault. Rape is the most common violent crime on American college campuses.

Without a strong anti-violence policy, student-survivors are forced to attend courses, eat their meals, and even sleep in the same spaces as their assailants. Faced with such a prospect, far too many survivors suffer serious declines in their mental, physical, and educational health. Despite the fact that this nightmarish predicament describes the lived realities of somewhere between 19 and 25 percent of female students and the 10 percent of campus rape survivors who are men, the authors of last week’s op-ed examine Harvard’s policy in an academic light, without any connection to the realities of sexual assault on campus. Professors often do not live on campus, but nearly all undergraduate (and some graduate) students do.

The letter’s concern for the rights of accused students does not land on deaf ears. The policy is imperfect, and we share a belief that disciplinary procedures require a truly neutral adjudicating body. However, we are baffled by our professors’ one-dimensional focus on the rights of an individual accused of violating the policy and their willingness to abandon the project of developing a more equitable, trauma-informed disciplinary procedure in the name of due process.

In choosing to express their objections in the Boston Globe and signing the letter as members of the Harvard Law School faculty, the professors positioned themselves as the esteemed legal experts they are, speaking to a lay audience. We are disheartened at the way the professors blurred the line between constitutionally protected due process rights critical to criminal prosecution by the state and the right to consistent and fair processes enjoyed in disciplinary proceedings by private educational institutions. Unlike geographic communities in which we are subject to criminal laws, educational communities are communities by choice. As such, we take on positive obligations to fellow community members when we join them.

Moreover, the professors’ focus on additional protections of potential perpetrators overlooks Massachusetts law: according to the Supreme Judicial Court of Massachusetts in Schaer v. Brandeis University, accused students are not constitutionally entitled to due process in campus adjudication procedures. Harvard has made the decision to put the right to live in the absence of constant threats of sexual violence and objectification above the right to have sexual encounters without affirmative consent. Our professors’ refusal to consider or acknowledge the possibility of a different approach to keeping students safe is particularly disheartening, given that many of them have taught us to question the status quo.

The authors of last week’s letter fall prey to the trap that first-year law students encounter repeatedly in criminal law: the tendency to treat sexual assault differently than any other crime. Their concern for the futures of expelled perpetrators makes little sense given the lack of such concern in any other disciplinary context: What happens to the student accused of cheating on a test, stealing a laptop, or plagiarizing a paper? Similarly, their concern that alcohol increases the complexity of a sexual assault is particularly baffling coming from legal scholars. Massachusetts courts have repeatedly held that “diminished capacity resulting from the voluntary use of intoxicating liquor is not a defense to rape.”

We cannot speak to the needs of the current student body at Harvard Law School, and we do not want to. But we ask that Law School professors and administrators look directly to the current students for more information about what they need and what their concerns are. We write as alumnae who have witnessed the law school’s failure to serve survivors, and who believe that our professors’ willingness to outrightly reject an improved-but-imperfect policy perpetuates that unacceptable legacy.

Stephanie E. Davidson HLS ’13, Kristi L. Jobson ’06, HLS ’12, and Katherine L. Kraschel HLS ’12 are alumnae of Harvard Law School.

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