Harvard law professors: stand up to feds on campus-sex courts

This is big:

As members of the faculty of Harvard Law School, we write to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration…

Amid the clamor to provide fuller remedies to complainants who file sexual assault and harassment charges, the university is preparing to trample the interests of others:

Harvard has adopted procedures for deciding cases of alleged sexual misconduct which 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.

Among the problems: overly broad definitions of misconduct in situations like that of mutual incapacitation by alcohol, and procedures that deny “any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.”

Had Harvard arrived at these rules as a result of purely internal deliberations, it would be one thing. But in practice it’s yielding to strong-arm pressure from the combined efforts of the Obama Department of Justice and Education Department Office for Civil Rights (for more details, see my article for Commentary last year.)  Like hundreds of other colleges and universities over the past year, Harvard responded to this pressure by meekly folding its hand:

The university’s sexual harassment policy departs dramatically from [existing] legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials.

We recognize that large amounts of federal funding may ultimately be at stake. But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats.

It’s especially gratifying to see that the letter’s 28 signers include prominent scholars associated over the years variously with feminist, liberal, and left-leaning causes, such as Nancy Gertner, Charles Ogletree, Charles Nesson, Janet Halley, and Elizabeth Bartholet, along with perhaps more expected names like longtime contrarian Alan Dershowitz. A turning point? Let’s hope so. The letter is here (h/t Eugene Volokh; & further Boston Globe coverage). [cross-posted from Cato at Liberty]

Also: “the danger of holding an innocent person responsible is real.” [Judith Shulevitz, New Republic, quoting Prof. Halley]


  • Libertarian liberalism finally confronting totalitarian liberalism.

  • Does this mean a change in Harvard Law’s take on Federal regulation?

    Old Joke:
    An ancient beldame was seated in her pew at church, dipping snuff, while the pastor rained Hellfire down on sinners.

    “Those with the vice of smoking cigarettes shall burn in Satan’s fire!”
    “Amen, preacher!” she said, and dipped some snuff.
    “Those who chew tobacco shall be chewed in Satan’s maw!”
    “Tell them, preacher!” she said, a dipped more snuff.
    “And those who dip snuff shall be drowned in Satan’s sputum!”
    “Now he’s gone too far,” she said, and dipped more snuff.

    I expect that the Harvard professors think that the Federal government has gone too far and are too busy dipping snuff to analyze it any further.

  • I read the manifesto to be sure the professors were concerned about the students and not themselves. Either way it looks like some bright boy is going to notice he’s being penalized for getting an education while his peers in the body shop business still have an appeal to the courts.
    The big worry is that if we train our next generation of leadership that this is OK, there’s nothing to stop them from implementing it across the board when they start to hold power.
    On a related note I hear John Pistole is joining Janet Napolitano in the halls of academe.