Due Process

DOE's Office for Civil Rights Is a Rogue Agency That Must Be Stopped

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Harvard
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Earlier this week, the Department of Education's Office for Civil Rights announced a resolution agreement with Harvard University's Law School, one of 90 colleges under investigation for violating federal gender equality laws. Notably, OCR determined that Harvard's "current and past" sexual harassment policies were inadequate. This means, in a sense, that Harvard's recently implemented policy, which was deemed unfair to accused students by several members of the law faculty, is still not good enough for OCR. Evidently, the agency wants measures put in place that trample due process even more egregiously.

Here is a list of OCR's demands:

Under the terms of the agreement, the Law School must:

  • Revise all applicable sexual harassment policies and procedures to comply with Title IX and provide clear notice of which policy and procedure applies to Law School complaints;
  • Through its Title IX Coordinator, coordinate provision of appropriate interim steps to provide for the safety of the complainant and campus community during an investigation;
  • Share information between the Harvard University Police Department and the University and notify complainants of their right to file a Title IX complaint with the Law School as well as to pursue the criminal process in cases of sexual assault or other sexual violence;
  • Notify students and employees about the Law School's Title IX coordinators and their contact information;
  • Train staff and provide information sessions for students on the policies and procedures applicable to Law School complaints;
  • Conduct annual climate assessments to assess whether the steps and measures being taken by the Law School are effective and to inform future proactive steps to be taken by Law School;
  • Review any complaints of sexual harassment filed during the 2012-13 and 2013-14 school years to carefully scrutinize whether the Law School investigated the complaints consistent with Title IX and provide any additional remedies necessary for the complainants; and
  • Track and submit for OCR's review information on all sexual harassment/violence complaints and reports of sexual harassment/violence filed during the course of the monitoring and responsive action taken by the Law School.

All this, in addition to the changes the law school already meekly submitted to, including implementation of a "preponderance of the evidence standard" and an appeal option for both parties in rape disputes. That's right: this federal civil rights agency is forcing Harvard to allow accusers to appeal verdicts if the accused is found innocent.

Harvard's spineless administration has accepted these insane dictates without protest. But Harvard's law professors won't be cowed so easily. Most recently, Harvard Law Professor Elizabeth Bartholet blasted OCR for inventing an interpretation of the law that no court has ever recognized:

The federal government's decision that Harvard Law School violated Title IX represents nothing more than the government's flawed view of Title IX law. The Department of Education's Office of Civil Rights, which issued the decision, is not the ultimate decision-maker on law. The courts are responsible for interpreting the law. And I trust that the courts will eventually reject the federal government's current views. The courts' decisions to date, including the U.S. Supreme Court, show a much more balanced approach to sexual harassment, one which recognizes the importance of vindicating the rights of those victimized by wrongful sexual misconduct, while at the same time protecting the rights of those wrongfully accused, and protecting the rights of individual autonomy in romantic relationships.

OCR has essentially gone rogue, and is pushing colleges to adopt painfully unfair legal standards. But nothing will change until one institution or another stands up to the agency. Unfortunately, that institution won't be Harvard.