It was quietly posted on the website of the Title IX Office last week. Though billed as “Frequently Asked Questions” on the university’s newly created sexual assault policies, the 10-page document reads like much more than that: a backdoor revision to the existing procedures that appears to contradict or significantly alter the meaning of some policy provisions.
Examples of these contradictions and alterations abound. Though the procedures say that personal advisers “should be an officer of the University who is affiliated with the School or unit in which the advisee is enrolled or employed,” the FAQs specifies that students may use attorneys as well. While the procedures specify that appeals are heard by “the Title IX Officer or designee,” the FAQ expands the meaning of designee from one person to an entire “standing committee of faculty and senior administrators.”
Significantly, the FAQs also explain for the first time that the Office for Sexual and Gender-Based Dispute Resolution, which investigates University-wide allegations of sexual assault and harassment, will use a “reasonable person” standard to determine if sexual harassment occurred. The move addresses serious concerns about academic freedom. The document also establishes a difference between “intoxication” and “incapacitation.”
To be sure, all of these changes are for the better. But significant updates to the policy ought to be codified in the official policies and procedures themselves, not in separate, disjointed documents of unknown standing in actual adjudication.
Many of the questions posed and answered seem to be direct responses to the concerns of Harvard Law School professors, who broke away and established their own, significantly better sexual assault policy last year.
So while it is good that the University has responded to the critiques and made sure to dispel worries about academic freedom and the possible forbidding of consensual sex between intoxicated students, those important protections need to be institutionally recognized in more than an FAQ document. That would be for the benefit of all—accusers and accused.
The release of the FAQ also seems a tacit acknowledgment that the University erred when it first rolled out its new, centralized sexual harassment policy. Law School professors complained that they weren’t consulted in the first drafting, and that their concerns were ignored in the months after it was put into effect, leading them to publish an embarrassing condemnation of the policy in the Boston Globe.
Even now, issues remain. The University’s policy still centralizes fact-finding and adjudication in a single body. Though students now apparently have the right to attorneys, no mention is made of providing lawyers to students who cannot afford one—a key measure that the Law School procedures do include. And all cases will operate on the Department of Education-preferred “preponderance of evidence” standard, while the “clear and convincing evidence” standard proposed by some law professors is better.
These quibbles may seem small, but they are not. On something as consequential as sexual assault policy, the University must ensure that its policies are as fair and coherent as possible. And sometimes, to make things better, we have to admit that we made mistakes.