Did Harvard Go Too Far?

A collection of the university's law school professors say the school's new sexual harassment policies "lack the most basic elements of fairness and due process."

Graduates from the law school hold up gavels in celebration during their commencement at Harvard University. (Adam Hunger/Reuters)

The issue of sexual assault on the college campus continues to have an extended (and warranted) moment in the spotlight. Late last month, California became the first state to pass an affirmative consent law, which makes "yes means yes" the law of the land on most college campuses there.

On the other coast, students at Columbia University kicked off the year by bringing mattresses to a campus demonstration to protest the administration's perceived failure to eject an alleged rapist from the school. The protest, inspired by a senior's thesis project about her battle with the school over its sexual assault policies, made national headlines.

But as schools draft new policies in response to a White House task force on campus assault, school administrators may be overcorrecting. Take Harvard University's new policy, which was introduced in July and rests on a "preponderance of evidence" benchmark in determining the outcome of sexual assault cases.

Over at The New Republic, Judith Shulevitz explains:

Guilt or innocence hinges on a “preponderance” of evidence, a far lower standard than the “beyond a reasonable doubt” test that prevails in courtrooms. At Harvard, the Title IX enforcement office acts as cop, prosecutor, judge, and juryand also hears the appeals.

On Tuesday evening, Harvard's new policy was decried in an open letter signed by 28 current and former professors from Harvard Law School.

Among their contentions, the professors say the new policies "lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation."

The group, which included Elizabeth Bartholet, Nancy Gertner, Charles Ogletree, and Alan Dershowitz, also accused the university of bowing the federal pressure in reshaping its policy in order to avoid losing funds.

The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment. The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom.

Responding in a statement, a Harvard spokesman defended the new policy: “The university is confident that the policy and procedures meet their promise of a thoughtful, fair and consistent approach to these profoundly complex and sensitive situations. Not every member of the community will agree with every aspect of the new approach."
But as schools grapple with crafting their own policies, others yet believe that the colleges are ill-equipped to properly handle issues like rape and sexual assault at all. In an interview with Bloomberg, Scott Berkowitz of the Rape, Abuse & Incest National Network pushed back: "Most schools’ internal judicial systems are the worst of both worlds. They don’t give the accused the protections of the criminal justice system, and they mistreat the victims, too.”
Then, of course, there are the courts, which don't have a sterling record either when it comes to sexual assault.