The issuance of the “Dear Colleague” letter in 2011 triggered a race to the bottom for due process in the Ivy League. The contest began with Yale, which adopted a new sexual assault policy that prevented accused students from presenting evidence of innocence in “informal” complaints and redefined the concept beyond recognition in formal complaints. The race then moved to Cornell, whose policy was so unfriendly to due process that it aroused intense (but ignored) public opposition from the university’s law faculty. Brown was next, with administrators boasting about their desire to keep lawyers out. The latest entrant is Harvard, where students will be greeted by a new policy when they return to school this fall.
Harvard’s plan—which is disturbingly opaque in several key respects—contains many of the due process-unfriendly procedures that have come to dominate the post-“Dear Colleague” letter landscape. Students will be branded rapists based on a “preponderance-of-evidence” (50.01 percent) threshold, even as the accused student will receive virtually none of the protections available in civil litigation, which uses the same standard. In the college version of double jeopardy, accusers can appeal a not-guilty finding. And undergraduate students accused of sexual assault can’t use an attorney in the disciplinary hearing. But the Harvard policy goes beyond OCR’s requirements in multiple respects.
Harvard’s new procedure is based on the central role of investigators, who the university proclaims “will have appropriate training, so that they have the specialized skill and understanding to conduct prompt and effective sexual and gender-based harassment investigations.” The policy doesn’t say what qualifications these investigators will have, nor which aspect of the Harvard bureaucracy—security or Title IX—will supervise their employment.
When a student files a sexual assault complaint, the matter is referred to an investigator and (depending on which Harvard school the student attends) a “School designee.” Harvard doesn’t explain how the designee’s role will differ from that of the investigator; a cynical person might anticipate that the designee will function as an ideological commissar guiding the inquiry to the desired outcome. In the event, the investigator and designee have up to one week to gather the necessary evidence, meet with the accuser, and determine whether the accusation “would constitute a violation of the Policy.” They must perform this task, of course, without subpoena power.
Once the investigator/designee combination has cleared the inquiry, the investigator contacts the accused student. The student receives one week to present his side of the story—without being informed of the evidence that the investigator/designee duo gathered in their snapshot investigation. This is the only stage in the process in which the accused student has a clearly delineated opportunity to present evidence of his own, chiefly “a list of all sources of information (for example, witnesses, correspondence, records, and the like) that the Respondent believes may be relevant to the investigation.”
That list must be attached to a written statement written “in the Respondent’s own words,” not by an attorney. A few paragraphs later, however, the policy suggests that the accused student “might wish to obtain legal advice about how this process could affect any criminal case in which they are or may become involved.” (The White House Task Force, recall, urges colleges to coordinate with law enforcement when their investigations find evidence of sexual assault.) Harvard doesn’t say what the accused should do if his attorney—as, presumably, most competent attorneys would—recommends against providing a written statement under these circumstances.
Once the accused student produces his statement, the investigator/designee duo interviews him, the accuser, and any relevant witnesses. The accused student receives a college “advisor,” who must be a member of his Harvard school—meaning that only a law student (who could seek a member of the law faculty as their “advisor”) has a chance of a lawyer representing him at this stage. While the “advisor” can sit alongside him during the interview, the “advisor” cannot speak other than to request a short break. Only at this stage does the accused student obtain the evidence being used against him, but only in a “redacted” form. And he must commit to not share the evidence with anyone outside of this stage of the process—seemingly including his attorney, who Harvard forbids from the interview.
The investigator/designee duo then produces a written document determining whether or not—on the basis of a preponderance of evidence—it believes that the accused student is a rapist. (In one of the guidelines’ many vague aspects, Harvard’s policy doesn’t specify what happens when the members of this two-person committee disagree.) The accused student and the accuser have a week to respond to the written findings, at which point the proceedings close. While it’s possible that the accused student might have a chance to present additional evidence at this stage (perhaps to respond to accusing witnesses of whose existence he previously would have been unaware?), nothing in the policy guarantees that right, nor does the policy require the investigator/designee duo to consider this new information after they already have affirmed in writing its belief that the student is a rapist.
Due Process, Ivy League-Style
Note what does not appear anywhere in the above description. At no point does the accused student—or even his “advisor”—have a right to cross-examine his accuser, or to receive a full transcript of the accuser’s interview. The accused student doesn’t have the right to cross-examine any witness. (Indeed, the accused student doesn’t even have a right to know the identities of all witnesses who gave the investigator/designee duo evidence against him, much less a full transcript of what they said.) Neither the policy nor Harvard’s statement announcing the policy explains why the university has eliminated cross-examination—although, as seen with Michele Dauber’s efforts at Stanford, it’s reasonable to speculate that the university concluded that cross-examination makes exonerations more likely.
Moreover, since Harvard provides only a “redacted version” of the documentary evidence to the accused student, it’s possible that the student can be branded a rapist based on information that he never had a chance to see, much less rebut. Reflecting their overall vagueness, the guidelines do not list the criteria under which the investigator/designee duo can redact evidence, nor do they spell out the grounds for appealing such a decision.
Finally, Harvard included a fallback provision to prevent exposure of any dubious conduct by the university. The policy holds that if an accused student making public the evidence the university used against him, this move in and of itself could constitute a retaliatory act, and “retaliation of any kind is a separate violation of the Policy and may lead to an additional complaint and consequences.” Therefore, the filing of a due process lawsuit against Harvard—if, like the Occidental lawsuit, the student’s filing included evidence used by the university—or the leaking of exculpatory material to a watchdog in the media could be grounds for the university to level additional charges against the accused student.
As tilted as these procedures are against the accused student, the Harvard plan contains two elements that are all but unique in their breadth.
First, a Harvard student could be branded a rapist based on the filing of an anonymous complaint. It’s true, the guidelines state, that in some instances “a request for anonymity may mean an investigation cannot go forward.” But on other occasions, the investigator/designee duo, or the Harvard Title IX coordinator, might “determine that the matter can be appropriately resolved without further investigation and without revealing the Complainant’s identity.” (The guidelines don’t identify how this determination will be made.) How a student can defend himself on a charge of rape from an accuser whose identity he doesn’t know Harvard elects not to explain.
Second, virtually every university sexual assault policy has a statute of limitations, frequently of a year. The new Harvard policy, however, “does not limit the timeframe for filing a complaint.” (Continuing the vagueness pattern, it isn’t clear whether current, or merely future, alumni will have the right to file sexual assault complaints through the policy.) The guidelines concede that an accuser acting years after the alleged incident might complicate the investigation—but, incredibly, imply that Harvard retains jurisdiction over cases even after the students graduate. (“The University’s ability to complete its processes may be limited with respect to Respondents who have graduated.”) Note the word choice: “limited,” not “devoid of authority.”
This provision raises a host of questions. How, for instance, would Harvard even track down a student who had graduated against whom a complaint is subsequently filed? Would the Alumni Association be required to turn over its current contact information? Once the investigation commenced, how would the university assemble relevant witnesses? Will the university advise members of the current graduating class to retain their e-mails and other electronic information lest they need this material to defend themselves from a complaint filed years later through the university process? If the investigator/designee duo concludes there’s a 50.01 percent chance that the graduate is actually a rapist, what sanctions could the university employ? Retroactively withdrawing the degree? Contacting the graduate’s current employer?
Despite the threat of additional “retaliation” charges against students who take such a course, this new policy is a lawsuit waiting to happen.