Harvard Joins the Ivy League’s Race to the Bottom

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.

Investigators

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.

Related: St. Joe’s, Title IX, and Procedural Unfairness

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.

Defense

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.

Related: A New Organization Aims to Restore Due Process on Campus

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.

Unique Elements

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.

31 thoughts on “Harvard Joins the Ivy League’s Race to the Bottom”

  1. Private schools can get away with it, the reason being that they can neither convict nor jail the people they brand as “rapists.” When the worst punishment on the table is expulsion from a private school, no due process rights attach. It isn’t even debatable.

    That being said, students who disapprove of this policy should definitely vote with their feet and consider taking their business elsewhere. There are still a few Ivy League universities out there that aren’t in full-on “pander bear” mode. Yet. They can apply to those schools.

    1. Harvard has every legal right to do this, just as it would have every legal right to require female students, but not male students, to remain virgins until marriage, and to expel female rape victims for having lost their virginity before marriage.

      And if that means that a harvard degree becomes worth less than a square (let alone a roll) of low grade toilet paper- them’s the breaks.

    2. Actually, its very debatable. These colleges all get federal funds, which makes them subject to Title IX. Title IX bans gender discrimination in education, and includes a disparate impact provision that can be used against facially neutral policies even if there is no discriminatory intent (subject to the institution showing the policy has a legitimate non-discriminatory justification). It can be enforced through a private right of action. I’m going to go out on a limb and guess that the vast majority (maybe even 100%) of the accused are male, so the prima facie case should be easy. The battle would be over whether the policies have a legitimate non-discriminatory justification.

      1. ^ Haha, that’s very cute, but the anti-due process provisions described in this article are THEMSELVES directed at so-called “gender discrimination” by the universities under Title IX (viz., the claim that they are “not doing enough” to fight sexual assault is now “gender discrimination”).

        A private school diesn’t become a “state actor” simply because it receives federal grants/money, any more than a welfare recipient does. What are you trying to say, exactly? That a court somewhere is going to take it upon itself to somehow deny federal grant money to Harvard because they are COMPLYING with the DoE’s funding demands? Good luck with that one. No offense, but anyone who made that argument would literally be laughed out of court.

      2. The argument is this. If the state conditions benefits by requiring the receipient to violate constitutional rights, or to do what the Constitution forbids the state to do, it becomes state action.

        Take, for example, gun stores. A gun store refusing to sell firearms to blacks would not normally be considered state action, even if neither the state nor Congress prohibited racial discrimination by gun stores. But if either Congress or the state conditioned a tax credit on refusing to sell firearms to blacks, it is considered state action even though gun stores would still be free to sell firearms to blacks, and even though neither Congress nor the state has a duty to prohibit racial discrimination by private actors.

        Similarly, even if Congress and the states could make it illegal to prohibit rapists from attending universities, it can not prohibit a particular person from attending a university on this basis absent due process of law. If Title IX were interpreted to require colleges to adopt a preponderance-of-evidence standard, that would implicate the Fifth or Fourteenth Amendment’s procedural due process clause.

      3. @948,

        Uh, dude, a gun store “refusing to sell firearms to blacks” would never, EVER be considered “state action” – under any circumstances whatsoever, absent straight-out government ownership of that gun store by the government.

        Ever.

        Let’s try to keep our feet planted on the ground, if that’s not too much to ask. Your hypothetical Sec. 1983 action against the gun shop owner (!) is cute, but the only way your made-up scenario would actually be litigated successfully would be if a non complying gun shop sued the government for ITS tax credit. Even then it’d be iffy.

      4. “Good luck with that one. No offense, but anyone who made that argument would literally be laughed out of court.”

        Not only have plaintiffs not been “laughed out of court” on this theory, a number of them have successfully gotten settlements and beaten back motions to dismiss. I’m perfectly aware that DOE is using Title IX as a club to get these policies, but that doesn’t mean the courts are obliged to agree with DOE.

    3. Not quite true. You could still file a lawsuit against the college for civil damages, basically the loss of all the time, effort, and expense you had put in toward your degree, which is now worthless.

      1. ^ And the college would give the court a copy of the OCR’s “Dear Colleague” letter and have your lawsuit dismissed on the spot. They were just following orders, like good Germans.

        The lawsuit would have to be fought between a university and the Dept of Ed. The only way the aggrieved student would have a ghost of a chance would be if he were expelled from a public school (and public schools are just as on-board with the OCR position as the private schools).

  2. The elephant in the room here is that universities really shouldn’t even HAVE a role in adjudicating sexual assault accusations. That should be squarely in the department of whatever district attorney it is that prosecutes cases in Cambridge (or wherever). Schools should be adjudicating school-specific offenses that aren’t actual crimes (i.e. cheating, plagiarism). The prosecutor doesn’t need the university to be a “little helper.”

    Accourse, the REAL goal of the schools is to “fill the gap” by using a lower standard of proof to punish the people they (correctly) consider to be beyond the reach of a LAWFUL conviction.

    The school won’t lose any lawsuit that the ACCUSED guy files. But they might lose a lawsuit filed by the alleged victim. It’d be funny if these rape victims turned the tables on the schools by suing the universities for “allowing” the rape and introduced the school’s own 50.01% findings AGAINST the schools to collect tens of millions of dollars.

    1. I think there is a very good chance that schools, such as they are, can and will lose lawsuits pressed by “acused” or “convicted” male students. This is apparrently already causing problems for a plethora of institutions of higher education (laugh track here).

      There is no desire to refer these “cases” to the local gendarmerie because that means that “schools” lose what they hoped to gain by means of this exercise: political power over heterosexual men on campus. They will never willingly relinquish that; the feministas on campus live and breathe politics, and this is the best game in town.

      1. Well, who knows? A brave university might itself have a valid lawsuit against the Secretary of Education himself. The question is simple enough – to wit, CAN the federales condition a private actor’s receipt of federal money on the adoption of conditions that would be illegal for the government itself to adopt? For example, could the DoE withhold all funds from private schools that teach evolution? Could the DoE demand that the private schools deny admission to African-Americans in order to be eligible for federal money? If the condition is unconstitutional/unlawful IN AND OF ITSELF, then it is definitely in a different category than other conditions that the courts have upheld in the past (insisting that states raise the drinking age from 18 to 21 in order to receive highway funds, for example).

  3. Thanks KC (again). I’ve followed your efforts for years and appreciate your persistence. You’be made your mark . . . repeatedly.

  4. Good Lord. This isn’t any better than the show trials that were conducted in the USSR back in Stalin’s day. Instead of “enemies of the people” they’re enemies of “da wimmin.”

  5. When you get accused and you are innocent, sue. Do it as soon as you can and sue as many people as you can with damages accumulating with each due process violation. Add as parties all John Doe anonymous participants. Make it a civil rights suit as the school’s coordination with law enforcement makes them a tool of the state.

    Heck, the class of 2015 en mass should file a class action lawsuit enjoining Harvard from going after them post graduation. Nuke their endowment, it’s the only way to be sure.

  6. Attended Dartmouth in the early 90s. Could see the start of this type of appalling sexism back then. Incoming Freshmen were required to attend an indoctrination detailing ‘proper’ sexual interactions. To my young male mind it was obvious that all the responsibility and liability was on the male. No always meant no, but yes also meant no if either party was drinking or if at any point in the future the female was uncomfortable with what happened. It was intimidating to say the least. In my years there I saw these policies used to large effect to rip into and de-legitamize the fraternity system and to terrorize males who got caught in the crosshairs.
    I have three sons now. There is no way in hell I would ever let them attend a private school, let alone an abusive place like an Ivy. It is no different than playing Russian Roulette with your future.

    1. Don’t think for one second that they’ll be any safer in a public college or university. Holder is trying to force this policy on ALL colleges and universities. The best you can do is sit down with each of your sons and make sure they understand what they’re about to face. And have a good lawyer on speed dial.

  7. First, suing the university would be a violation of the policy, would it not? After all, one would have to discuss what one was suing over, and that would inherently violate what amounts to a “gag order” in the policy.

    Second, notice that this isn’t a “Sexual Assault” policy but a “Sexual & Gender-Based Harassment” policy — a far deeper quagmire. Remember that “Hate Speech” comes under “Harassment” and that in Massachusetts, one’s gender is whatever one wants it to be. It is “harassment” to refuse to affirm someone’s choice of gender identity or to not use the person’s new different-gender first name.

    Hence this policy makes no distinction between violently raping a woman and telling her that she isn’t a man — it makes no distinction between something which is a violent felony and something which 99% of the population would consider not only free speech but common sense.

    Third, the accused student doesn’t even know what he is accused OF — and is asked to present evidence of innocence which essentially becomes a case of trying to prove you didn’t do something you don’t even know about — an impossible task. It does, however, force the student to reveal a whole lot of stuff that can then become the basis of yet MORE charges.

    Fourth, the confidentially of the policy prohibits the student from telling anyone what he was kicked out (or otherwise punished) FOR. You thus are going to have students branded as “rapists” for telling politically incorrect jokes, offending transvestites and the rest. There likely will even be students unknowingly offending people who are convicted of offenses they can’t even comprehend.

    As Silverglate & Kors documented in _Shadow University_, Harvard has already had one suicide caused in this manner — a student who unknowingly committed an act of “homophobia” by essentially not recognizing the acronym of the campus gay group, and this policy likely will cause quite a few more.

    1. Yes, it does look like a lawsuit would violate the policy, but so what? If I’m filing the lawsuit, one of things I’d be suing for would be to overturn the policy. I’d also sue Holder and the Justice Dept. over that infamous letter.

      1. If a private school and the administration have entered into an unholy alliance to brand all their students as rapists, the courts aren’t going to intervene or grant any relief to the student, because he can always go somewhere else.

        On the other hand, things would really get interesting if either (1) a public school were sued for doing this, or (far more credibly) (2) the school sued the DoE for conditioning funding on such a blatantly unreasonable policy.

  8. Rape is a crime. The police should investigate. Schools have no business trying to play the role of judge and jury.

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