Harvard Law School finally threw in the towel Tuesday after a four-year fight with the Obama administration over Title IX. The school admitted to violations of Title IX and agreed to revise its policies on sexual assault and harassment in ways that will provide fewer rights to accused students.
The school had been under investigation for four years by the Department of Education, which was seeking to determine whether the school was violating Title IX by providing an unsafe campus environment for female students. By reaching an agreement with the federal government acknowledging past failures and promising certain reforms, Harvard Law was finally able to have the investigation dropped, and remove the specter of a possible loss of federal funding.
A separate investigation of Harvard College, the university’s undergraduate school, remains ongoing, one of over 90 being pursued by the Obama administration.
In order to get the administration to back off, Harvard Law had to admit that it was previously in violation of Title IX, based on failings such as taking more than one year to adjudicate an assault allegation and not doing enough to publicize and clarify the options available to alleged victims.
The school also had to adopt several new policies that weaken the position of students accused of sexual harassment and assault. Most notably, the school’s burden of proof standard was switched from “clear and convincing evidence” to the weaker “preponderance of evidence” standard, where an accused is expected to be found guilty if investigators believe there is a greater than 50% chance they committed a certain wrong.
This standard was adopted by most universities several years ago after a Dear Colleague letter from the Department of Education declared it to be the regulatory expectation, but Harvard was one of the last remaining holdouts. Critics such as the Foundation for Individual Rights in Education (FIRE) have sharply attacked this low standard of proof, arguing that it will encourage the wrongful expulsion of many innocent students while doing little to actively prevent sexual assault.
Harvard’s newer, more punitive sexual harassment policy has already aroused substantial criticism from faculty, 30 of whom published an open letter in the Boston Globe in October condemning it for “lack[ing] the most basic elements of fairness and due process.” However, in the Education Department’s view, even Harvard’s new policy didn’t go far enough and will have to be further revised under the final agreement.
Hans Bader, a senior attorney with the libertarian Competitive Enterprise Institute and contributor to Liberty Unyielding, pointed out that Harvard’s agreement with the feds appears to require that interim punishments be made against students accused of mere harassment as well as full-blown assault.
The final agreement is a win for the Obama administration, which has taken up campus sexual assault as a major issue over the past year. The administration and allied activists have said that major changes are needed to check an epidemic of sexual assault, citing past studies that have found as many as one in five women on campus are sexually assaulted.
Others, including researchers at the Department of Justice, have countered that the supposed “epidemic” is largely a myth, and that women on campus are actually less likely to be raped than their peers.
This report, by Blake Neff, was cross-posted by arrangement with the Daily Caller News Foundation.