If you express an opinion at Harvard University, and someone feels “humiliated” by it and that you were “aggressive” in expressing it, they can now accuse you of bullying them through your “words.” Harvard will also hire new bureaucrats to enforce its antibullying policy.
“The University already prohibits illegal forms of discrimination, so that piece isn’t new,” Deputy Provost Peggy Newell told The Harvard Gazette in an interview last month about the policies. “What is completely new today, though, is a University-wide policy on bullying.”
Newell says the new policies will require more administrators to enforce, and an expansion of Harvard’s training and communications and training. “People are going to need to be hired and trained, handbooks and other materials need to be updated, and websites need to be created and changed to ensure we are meeting the need for clarity and understanding around the policies and the supporting procedures.”
“Bullying” means “harmful interpersonal aggression by words or actions that humiliate, degrade, demean, intimidate, or threaten an individual or individuals,” according to the new policy. The policy also prohibits “discrimination,” defined as “adverse treatment of an individual” based on one of more than a dozen listed “protected characteristics,” including “creed” and “political beliefs,” going well beyond the categories covered by state and federal antidiscrimination law.
“Last year, I sent a message to the community that included drafts of new policies to address discrimination and bullying at Harvard,” University Provost Alan Garber wrote in a recent open letter to the Harvard community. “Following several months of community input, including email comments and dozens of outreach conversations organized by Schools and Units, the proposed policies were further revised.”
The new policies reflect the university’s priority to “provide an environment where each of us can feel that we are truly welcome to participate in the full range of University life,” Garber wrote.
“First, our policies and procedures must clearly and consistently demonstrate that our community will not tolerate misconduct and, when it does occur, enable us to hold members of our community accountable. Second, our efforts need to extend beyond systems that establish minimum standards of conduct, and we must discipline those who fail to meet those standards.”
There are many potential penalties for faculty or students found guilty of bullying, harassment, or discrimination. Potential sanctions includes anything from a “warning,” “mandatory coaching and training” or “community service” to “expulsion” or “termination, including possible recommendation of tenure termination.”
Laura Beltz of the Foundation for Individual Rights and Expression Laura Beltz says the new policy will have a “chilling effect on free speech.” “Harvard’s definitions of discriminatory harassment and bullying only require that conduct is severe or pervasive, rather than both severe and pervasive. As a result, [constitutionally] protected speech that is particularly severe, but not pervasive, or vice-versa, may be subject to punishment.”
Moreover, “students may fear their speech on controversial issues will be deemed harassment or bullying and sanctioned by the university. Students may reasonably self-censor in order to avoid punishment, preventing the true marketplace of ideas that a university should embody.”
Harvard has a poor record of respecting student and faculty free speech rights, such as its railroading the black economics professor Roland Fryer for “harassment” over remarks that legally did not rise to the level of sexual harassment, after he published peer-reviewed research calling into question claims that racism is ubiquitous in police shootings. The Harvard administrator deeply involved in that railroading — Claudine Gay — was recently appointed President of Harvard University, even though she lacks the scholarly credentials of past Harvard presidents.
In Jan 2023, two Harvard graduates created the Harvard Alumni for Free Speech group in response to Harvard University being ranked in the bottom 20 percent on the Foundation for Individual Rights and Expression’s free speech rankings.
Under the new policy, a student or faculty member who believes they have been bullied or discriminated against can file a formal complaint with the university, identifying parties involved. The university will then assign a “trained investigator” who “will make preliminary findings of fact, applying a preponderance of the evidence standard, and make a recommended finding as to whether there was a violation of this Policy,” according to the document.
From there, trained “Determination Panel Members” will be appointed “to review the investigative report and determine, using a preponderance of the evidence standard, whether the Policy was violated.”
It used to be thought that a mere preponderance standard was insufficient to protect accused people’s due process rights. As James Picozzi noted in 1987 in the Yale Law Journal, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987)).
But Harvard adopted a lower standard of proof.
In adopting the new policy, Harvard ignored recommendations contained in a letter from the Foundation for Individual Rights and Expression (FIRE), suggesting revisions to protect academic freedom. FIRE’s concerns included “overbroad definitions and examples of harassing conduct,” “a problematic definition of consent,” and a lack of “sufficient due process protections in disciplinary proceedings,” as noted on FIRE’s website.
