Harvard Law School (HLS) will change its sexual assault policy to conform better to Title IX standards, after a report by the Department of Education (ED) found flaws with how the administration adjudicates rape allegations on campus.
The ED’s Office of Civil Rights (OCR) reached an agreement with the law school to reform its process for handling sexual assault cases, including lowering the standard of evidence needed to convict the accused from “clear and convincing” to “preponderance of evidence.”
The agreement comes as a conclusion of the OCR’s four-year investigation of Harvard, which found that the school had violated Title IX in three major ways: by forcing accusers to choose between filing a criminal complaint and a Title IX complaint, giving the accused “rehearings” after being found guilty, and using a “clear and convincing evidence standard of proof.” The rehearings would extend the process of settling a complaint and extend the time an accuser and accused would have to share the campus.
Title IX is a federal law prohibiting sex discrimination in educational institutions. It’s part of the Educational Amendments Act of 1972 (amending the Higher Education Act of 1965), according to the National Center for Education Statistics. Title IX is the piece of federal legislation that authorizes most federal student assistance programs. It has a huge influence on schools and universities.
Failure to comply with the agreement could result in HLS being cut off from federal funding.
The report is part of a wave of investigations the OCR has conducted on more than 50 college campuses for noncompliance with Title IX, among them other elite institutions including Dartmouth and Princeton.
New Standard of Evidence
In November, Princeton reached an agreement with the OCR to drop its “clear and convincing” standard for adjudicating sexual assault cases in favor of “preponderance of evidence.”
Harvard University adopted a new sexual assault policy in July in cooperation with the OCR, including switching to a preponderance of evidence standard, but has faced resistance from members of the law school.
A letter signed by 28 HLS professors said the new standards “lack the most basic elements of fairness and due process,” fails to “ensure adequate representation for the accused,” and defines sexual harassment much more broadly than is described in “Title IX and Title VII law.”
They also wanted the new policy to be developed on campus, by dialogue and consensus, rather than being imposed by the federal government.
“As teachers responsible for educating our students about due process of law, the substantive law governing discrimination and violence, appropriate administrative decision-making, and the rule of law generally, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach,” wrote the teachers.
In criminal courts, the accused are usually convicted when their guilt is “beyond reasonable doubt,” whereas most college courts, who at most punish students with expulsion, only require “a preponderance of evidence,” a much lower standard.