Harvard Law Faculty Members Blast New Sexual Harassment Policy; National Debate Rages Over ‘Affirmative Consent’ Law

BOSTON, Oct. 15, 2014—Today, 28 members of the Harvard Law School faculty released a statement in The Boston Globe strongly objecting to Harvard University’s new sexual harassment policy. The Harvard faculty’s open letter reflects growing concerns among many commentators about new laws, federal guidance, and campus policies that sacrifice due process and constitutional values like “innocent until proven guilty” in order to address sexual misconduct on campus.

“We are gratified to see so many Harvard Law faculty members speak out against Harvard University’s participation in what is a continued and inexcusable disregard for student and faculty due process rights,” said FIRE President Greg Lukianoff. “This should serve as a desperately needed wake-up call for those who have ignored or dismissed the fact that fundamental fairness is being unnecessarily jettisoned in the otherwise laudable quest to tackle campus sexual misconduct.”

The Harvard faculty statement, signed by some of the nation’s top legal luminaries, expresses grave concerns about the process Harvard recently adopted to handle sexual misconduct, including both sexual harassment and sexual assault. Among their complaints are that accused students and faculty are denied a meaningful opportunity to present a defense or even confront the witnesses against them, and that students are not ensured adequate representation. Further, practically all functions from investigation to appeal are run not by an impartial entity but by the Title IX compliance office, a step signatory Professor Janet Halley told The New Republic was “fundamentally not due process.”

The professors also note that the definition of sexual harassment adopted by Harvard goes far beyond Title IX requirements and is especially one-sided in its treatment of students who are under the influence of alcohol or drugs, and that Harvard adopted these policies without sufficient faculty input in an apparent rush to placate federal officials.

Harvard Law faculty are weighing in on what’s become a fierce national debate about sexual misconduct on campus, most recently spurred by the state of California’s adoption of an “affirmative consent” law requiring continuous affirmations of consent throughout any sexual interaction between college students. Vox co-founder Ezra Klein recently poured gas on the fire in an op-ed where he declared the bill “terrible” but nonetheless affirmed his strong support of it, saying that “To work, [the law] needs to create a world where men are afraid,” and that unfair findings that students are rapists are “necessary for the law’s success.” Affirmative consent policies similar to California’s law have spread to the State University of New York System and are being proposed by lawmakers in other states.

Thankfully, the fight for due process on campus is not going unremarked upon by those outside FIRE and the Harvard Law faculty. Politically and intellectually diverse commentators across the country have been pointing out the many pitfalls of institutionalizing unfair and biased procedures on our nation’s college campuses. FIRE has provided links to many of the best articles on the continuing controversy below.

“Policies that essentially presume guilty anyone who is accused of a crime are an affront to our constitutional values and to the idea of justice more generally,” said FIRE’s Lukianoff. “No matter how severe the social evil we are fighting, a free society’s answer cannot be to turn every student and faculty member into a criminal and then require them to somehow prove their innocence when accused.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and freedom of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.

• New York, “Liberals Get Illiberal on Campus Rape,” Jonathan Chait
• The New York Times, “Liberals and Affirmative Consent,” Ross Douthat
• Los Angeles Times, “Sex and college students: Should the Legislature be in the mix too?,” The Times Editorial Board
• The Week, “The big problem with California’s new sexual consent law,” Shikha Dalmia
• spiked, “Affirmative Consent: A Crime Against Liberty,” Wendy Kaminer
• The New Republic, “‘Affirmative Consent’ Is Bad for Women,” Batya Ungar-Sargon
• Bloomberg View, “Frat Boys, Drunken Girls and Paternalism,” Virginia Postrel
• TIME, “Campus Rape: The Problem With ‘Yes Means Yes’,” Cathy Young
• The Economist, “Yes Means Yes, Says Mr Brown”
• “The burden of expanding the police state’s power to prosecute sex crimes will fall on the poor and the black,” Fredrik deBoer

CONTACT:
Greg Lukianoff, President, FIRE: 215-717-3473; greg_lukianoff@thefire.org