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Analysis: Law School Probe’s End May Mean Closer Scrutiny for College

By Noah J. Delwiche and Ivan B. K. Levingston, Crimson Staff Writers

Now that the U.S. Department of Education’s investigation into Harvard Law School’s compliance with Title IX has concluded, the government’s ongoing probe at the College may focus more specifically on the undergraduate school’s own handling of sexual harassment, rather than the University’s central approach to the issue, according to members of the student group that requested the investigation.

After a years-long probe, the Department of Education’s Office for Civil Rights found the Law School in violation of anti-sex discrimination law Title IX late last month, and Harvard administrators agreed to make several changes to the University’s new central sexual harassment policy to comply with the law. But despite that agreement, a second investigation—this time into Harvard College’s compliance with Title IX—is still underway, meaning that the government has another chance to assess Harvard’s handling of sexual assault.

Members of the student activist group that filed the complaint that prompted the College investigation, Our Harvard Can Do Better, suggest that the outstanding probe will focus on the College specifically.

Jessica R. Fournier ’17 and Emily M. Fox-Penner ’17, organizers for Our Harvard Can Do Better, have met with OCR investigators several times about the case. In their conversations with them, according to Fournier, OCR said the College investigation’s central focus would be on matters specific to the College, rather than the University’s new central policy. OCR evaluated that University-wide policy last month in its resolution agreement with the Law School.

Although all of Harvard’s schools follow the same central sexual harassment policy and complaints against students across the University currently go through the same central investigation process, each individual school is responsible for crafting their own procedures for disciplining students who violate the policy.

Fox-Penner said OCR had indicated that it would examine academic accommodations offered by the College and the roles of deans in the Houses and other House administrators as part of the College investigation. Fox-Penner said OCR said it also would evaluate the Faculty of Arts and Sciences’ school-specific Title IX procedures, which govern the College. The final version of the FAS procedures has not yet been implemented.

“We’ve heard a lot from OCR generally that the timeline for the Law School complaint does affect our timeline and what they’re focusing on,” Fournier said.

Denise Horn, an assistant press secretary at the U.S. Department of Education, wrote in an emailed statement that OCR’s determination of compliance and any resolution agreement with the College would “necessarily involve” analyzing how Harvard’s University-wide Title IX policy and procedures are implemented. She declined to comment on further aspects of the ongoing investigation.

University spokesperson Jeff Neal did not respond to a request for comment on the ongoing College investigation.

Experts say that the Law School resolution agreement will likely have broader implications for OCR’s separate investigation into the College, although pinpointing specific effects could be difficult given the unpredictable nature of OCR investigations.

There is not much precedence for how OCR handles two concurrent investigations or resolution agreements underway at individual schools within one individual university, according to S. Daniel Carter, the director of 32 National Campus Safety Initiative, a group that advises colleges on campus safety issues.

“This is a very unique situation,” Carter said.

A move by OCR to hone in on specific details at the College could be a way for investigators to indicate that they are addressing specific concerns raised by the original complainants, rather than broader University issues, said Peter F. Lake ’81, a professor at Stetson University College of Law who specializes in higher education law. He said this is a growing trend for Title IX investigations.

“They’re coming in with more targeted approaches to investigations that they’re willing to share,” Lake said.

Although Lake said the course of an OCR investigation is hard to predict, he said that it would make sense for OCR to examine factors unique to the College, such as the House system, and how they relate to accommodations the College can provide to complainants during an investigation.

“I think that’s going to draw their interest, because it really isn’t the most common way to manage student life or even academic issues,” Lake said, referring to Harvard’s undergraduate residential system.

Lake said a focus on factors specific to the College could also allow the government to clarify how colleges should interpret new Title IX guidelines it released last spring, which discussed the role of academic accommodations and what OCR called “responsible employees.” Although the ongoing investigation involves only Harvard, materials OCR releases as part of the investigation could show other schools how they ought to interpret the federal recommendations, Lake said.

“Harvard may be the guinea pig in this one,” Lake said.

—Staff writer Noahr J. Delwiche can be reached at Follow him on Twitter @ndelwiche.

—Staff writer Ivan B. K. Levingston can be reached at Follow him on Twitter @IvanLevingston.

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