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In Memo, Law Profs Pushed for Title IX Procedural Changes

By Andrew M. Duehren, Crimson Staff Writer

UPDATED: February 14, 2015, at 12:27 p.m.

Twenty Harvard Law School professors who had publicly spoken out against Harvard’s University-wide sexual harassment policy submitted a memo last fall requesting that the Law School investigate its own sexual harassment cases, rather than go through Harvard’s central investigation office.

The 20 faculty members submitted the memo, dated Nov. 11, 2014, to a faculty committee that Dean of the Law School Martha L. Minow tasked last fall with creating new Law School-specific Title IX procedures following widespread faculty discontent over Harvard’s central framework, which administrators unveiled last summer.

The document, parts of which signatory and Law School professor Elizabeth Bartholet shared with The Crimson this week, sheds light on the process that led to the adoption of the local procedures that, if implemented, in many respects will circumvent Harvard’s newly centralized approach to handling sexual misconduct.

Several of the principles that the professors laid out in the memo, though not all, mirror elements of the Law School’s new Title IX procedures, which have not yet been fully implemented but were approved by the faculty in December. In particular, the memo requested that the Law School provide complainants and respondents with attorneys, a provision that is included in the Law School's new procedures.

Law School professor John Coates, who chaired the committee that wrote the school’s new procedures, confirmed in an email that the committee considered the memo’s principles when it drafted the procedures.

The procedures that the Law School faculty voted to adopt in December—and that the November memo sought to influence—were created after 28 professors signed an open letter in October in The Boston Globe criticizing Harvard’s new policy and procedures, which created the central Office for Sexual and Gender-Based Dispute Resolution. The professors argued that the central policy and procedures were biased against the accused and lacked due process.

All 20 signatories of the Nov. 11 memo, which the professors also shared with Minow and the full Law School faculty, were signatories of the open letter in the Globe.

Some of the Globe letter’s signatories have already voiced their approval for the Law School’s new procedures, and the November memo confirms that many of those signatories actively lobbied for specific procedural changes.

Specifically, the memo makes clear that its authors did not want the Law School to follow Harvard’s central procedures, which sought to make Harvard’s approach to handling sexual harassment consistent across all of its schools. Specifically, the memo states that “No aspect of proceeding should be allocated to new ODR office. HLS should retain responsibility for investigation, adjudication, appeal, and sanction.”

Still, not every demand laid out in the memo matches the recently adopted procedures, nor is every request in the memo unanimous; the memo indicates that some sections represented the opinions of “most” or “some,” but not all, of its authors. Signatories were in disagreement, for example, about the role the full faculty should play in reviewing expulsions and dismissal decisions as well as the appeals process.

Some parts of the memo that Bartholet said are related to internal faculty affairs were redacted before she shared it with The Crimson. She said in an interview that she “felt that it was really important to take advantage of this separate space the Law School had been given to come up with sexual harassment policies.”

Both Bartholet and signatory and Law professor Janet E. Halley said the November memo was the only such memo on the procedures circulated among the full faculty.

Minow declined to comment.

In addition to Bartholet and Halley, the Law professors who signed the November memo include:

Scott Brewer, Robert C. Clark, Charles J. Donahue ’62, Einer R. Elhauge ’83, Martha A. Field ’66, Jesse M. Fried, Nancy Gertner, Bruce L. Hay, Philip B. Heymann, David W. Kennedy, Duncan Kennedy, Robert H. Mnookin ’64, Charles J. Ogletree, Richard D. Parker, J. Mark Ramseyer, David Rosenberg, Lewis D. Sargentich, and Jeannie C. Suk.

Amid controversy over Harvard’s policy governing its handling of sexual harassment, the federal government found the Law School in violation of the anti-sex discrimination law Title IX in December.

—Staff writer Andrew M. Duehren can be reached at andy.duehren@thecrimson.com. Follow him on Twitter @aduehren.

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Harvard Law SchoolUniversityUniversity NewsSexual AssaultTitle IXODROffice for Civil RightsDepartment of Education