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Last July, Harvard could seemingly breathe a sigh of relief.
The University had just unveiled a new policy and set of procedures intended to centralize and revamp its approach to handling sexual harassment and to ensure compliance with the anti-sex discrimination law Title IX. Within the new framework, Harvard was now in close line with increasingly demanding federal standards from the Department of Education’s Office for Civil Rights, and many activists on campus lauded the new policy as an important step to reform Harvard’s approach to an issue that had recently begun to dominate national discourse.
But within days, the sense of ease faded, once again, into months-long controversy, criticism, and debate. Undergraduates continued to criticize the policy on the grounds that its language needed clarifying and that it lacked an explicit affirmative consent clause. They argued that the College also needed to augment mandatory Title IX training, increase the transparency of its disciplinary board, and further centralize accommodations for victims of sexual violence.
Other Harvard affiliates had their own concerns and used the same tactic of public engagement to air them. As it quickly became clear, however, the messages did not always align and were at times directly in conflict.
In October, a group of 28 professors at Harvard Law School published an open letter in The Boston Globe that slammed Harvard’s new policy and procedures, arguing that they were “overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”
The Law School professors followed through with their criticisms, adopting a set of Title IX procedures totally separate from the University’s. The undergraduate activists also did more than speak out: In December, they organized a satirical bake sale to fundraise for the understaffed Office for Sexual and Gender-Based Dispute Resolution, the new central office responsible for investigating cases of alleged sexual misconduct. The federal government, for its part, found Harvard Law School in violation of Title IX in December, bringing to an end its years-long probe. Harvard College remains under investigation.
In a year marked by heightened federal scrutiny of sexual harassment at colleges and universities across the country, Harvard is faced with the task of accommodating disparate demands from both outside and within the University. Administrators can hold town halls and open their doors to feedback from critics on campus, but while stuck in the midst of a polarizing argument over how best to address sexual assault and disagreements over the basic interpretation of Title IX, Harvard, realistically, cannot please everyone. Compromise, as this year has shown, is no solution to such a heated debate.
“What we're seeing very prominently now is that people are getting criticized from just about every direction,” said Peter F. Lake '81, a professor at Stetson University College of Law who specializes in higher education law.
The past academic year has seen increased federal scrutiny and media attention to sexual assault on campus, leaving many universities, including and especially Harvard, scrambling and often debating best practices to meet Title IX requirements, according to experts in higher education law.
“The last academic year has seen more tension in higher education on the issue of sexual violence than any academic year in history, without question,” said S. Daniel Carter, the director of 32 National Campus Safety Initiative, a group that advises colleges on campus safety issues.
With dozens of outstanding investigations into higher education institutions’ Title IX compliance, OCR is also more visibly and critically evaluating universities than in years past. Between this and last April alone, the federal government has released more than 90 pages of regulatory guidance on Title IX, covering topics from the preferred evidence standard for investigations to the role of Title IX coordinators.
Coupled with increased federal oversight, media attention to the issue of campus sexual violence has emblazoned a national fervor for debates over Title IX, ranging from technical procedural questions about investigation and discipline to broader disagreements about OCR’s jurisdiction. Attempts to appease everyone while complying with federal law are at best naive, according to legal experts.
“I don’t think you can please everybody,” said Colby Bruno, the senior legal counsel at the Victim Rights Law Center. “I just don't think you can.”
STUCK IN THE MIDDLE
At Harvard in particular, the attention, debate, and public activism have hit home. From federal oversight to petitions, posters, and public demonstrations from student activist groups, the University is facing, and responding to, increased pressures.
But these debates are hardly uniform. They extend beyond demands from students to administrators: Across Harvard Yard at the Law School, a group of vocal professors have rallied against Harvard’s approach to the issue, and even in some cases the government’s own interpretation of federal policy.
Undergraduate activists, Law School professors, and other affiliates all want Harvard, as a nationally renowned institution, to play a leadership role in redressing sexual violence—but there is no consensus about just what that should look like. The University, entangled between varying and at times oppositional voices, struggles to stand on neutral ground while accommodating its constituents.
University Title IX Officer Mia Karvonides, who worked at OCR before coming to Harvard, said she does not expect agreement on an issue as complicated as sexual violence and finds its necessary to hear differing views. But increasingly this year, Harvard, like other universities across the nation, seems all the more caught in between criticisms.
“In many ways, when you start to run a grievance process, you become the entity in the middle,” Lake said. “Often we find that what satisfies one interest is potentially against another.”
Although not strictly dichotomous, Law School professors and student activists have aired starkly divergent concerns over Title IX policy and implementation. Through the seemingly disparate visions, however, critics all seem to agree on the same guiding public strategy: visibly criticizing the University.
The difference in their visions but similarity in their strategies came through perhaps most clearly in debate over the University’s centralized investigatory office. Law School professors castigated ODR in public statements and communications to administrators, eventually circumventing the body entirely by creating separate Title IX procedures for their own school; at the same time, undergraduates pitched outside Lamont Library in a satirical bake sale demanding that the University amp up institutional support for the office, which was understaffed.
When it comes to the role of the federal government, parties also diverge. Some critics—most prominently the Law School professors who signed the Globe letter—lambast Harvard on the grounds that it should push back against the government’s interpretation of Title IX, which they consider flawed; other activists call on Harvard to proactively modify their policies to go above and beyond what the government requires. Undergraduates, by and large, speak not of faculty governance and federal regulatory jurisdiction, but of cultural forces. All parties, however, fault Harvard.
Elizabeth Bartholet, a Law School professor who signed the Globe letter, said she wishes Harvard had taken more of a leadership role against the federal government, which she claims is pressuring universities to lead investigation processes that deny due process rights to the accused.
“I think the federal government is primarily at fault, if you will, but then I fault Harvard University for not taking a good look at what the the federal government was demanding, deciding on the merits whether it was good or bad, making the commitment to fight against those aspects that were being pushed that were in fact bad policy, and then performing a leadership role,” Bartholet said.
And while praising the University’s new policy, undergraduate and graduate activists then argue that Harvard is not doing enough. Instead of primarily lobbying for procedural changes, they hold that Harvard must bolster training, transparency, and consistency in resources for victims. In direct response to students, the Title IX office released additional information on the University’s policy this semester, but leaders of student activist group Our Harvard Can Do Better argue that more clarifying materials must be quickly released.
“Harvard has made all these statements in the past year and made all these surface level cosmetic changes to the policy, but in practice the way that they do things really hasn’t changed at all," said Jessica R. Fournier ’17, an organizer for Our Harvard Can Do Better.
SEEKING AN INTERSECTION
Pulled in different directions by its affiliates, it is essentially impossible for Harvard, activists and lawyers acknowledge, to satisfy all critics. But even with that reality, some call on Harvard to increase avenues for input on the issue to alleviate tensions.
“I think the University is pulled in a lot of different directions when it comes to trying to do the right thing,” Bruno said. “I think it's a good thing for them to be swayed by the public consciousness on their campus.”
Undergraduate organizers cautioned against extrapolating strong disagreement in values from the critical Law School professors, but argued that if the debate has shown anything, it is that Harvard needs to better consult all of its constituents.
“You might think that at core there is a disagreement in values that might be happening between, say, student activists and Law School professors, but I think that's an assumption that I would really push on, because we haven’t seen an open and honest discussion,” said Emily M. Fox-Penner ’17 of Our Harvard Can Do Better.
Janet E. Halley, one of the Law professors who signed the Globe letter and has played a leadership role in pushing for changes to the Law School’s Title IX procedures, also argued that engaging students is crucial.
“We really need to be walking towards the students and saying, 'What is this really about?'” Halley said.
Student activists also caution that the debate should not stall change: “Increased training and increased resources can be done regardless of where this debate over the policy stands,” said MaryRose Mazzola, a Kennedy School of Government student and organizer for Harvard Students Demand Respect, a graduate student group focused on sexual violence prevention.
For the time being, Karvonides and the University said they will continue to respond to concerns from various constituents. But Karvonides said she hopes next year will bring a new form of dissonance.
“I hope as we go into next year that some of the debate might be less polarized,” Karvonides said.
—Staff writer Noah J. Delwiche can be reached at email@example.com. Follow him on Twitter @ndelwiche.
—Staff writer Andrew M. Duehren can be reached at firstname.lastname@example.org. Follow him on Twitter @aduehren.
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