Law Professor Janet Halley on Why Harvard’s Sexual Harassment Policy Must Change

Harvard Law School Professor Janet Halley has been a strong advocate for due process rights for college and university students accused of sexual assault. On October 15, she joined 27 other Harvard Law faculty members in criticizing Harvard’s new Sexual Harassment Policy and Procedures in The Boston Globe, and she provided further analysis of the policy’s problems in a memo released at the end of last month. Writing today on WBUR’s Cognoscenti blog, she urges the university to change its policy and procedures so that they do not continue to chill protected speech and cannot be used to expel students without a fair hearing.

In her article, Halley acknowledges universities’ efforts to take a stand against sexual abuse. “But,” she warns, “as often happens when public indignation and government power combine to force reform, it is easy to go too far and to make hasty fixes that threaten values that are forgotten at the moment of crisis.”

Harvard’s sexual harassment policy goes too far in several ways. First, as Halley points out, its definition of “harassment” is broad enough to encompass a wide range of protected speech:

The Harvard policy states that, “sexual advances, requests for sexual favors, and other verbal … conduct of a sexual nature” can constitute sexual harassment. As examples, it lists “sexual advances, whether or not they include physical touching” and “lewd or sexually suggestive comments, jokes, innuendoes, or gestures.” Classroom instruction, academic debate and normal everyday conversation can and will – and at other institutions already have – become the basis of complaints and sanctions.

Such a broad definition, Halley argues, will shut down exactly the kind of conversations that are necessary in order to educate students about, and help prevent, sexual assault.

Chill is already happening.  Teachers at Harvard, alarmed by the policy’s expansive scope, are jettisoning teaching tools that make any reference to human sexuality. For teachers, students, scholars and participants in public debate whose topic is human sexuality, this is not an option. In these areas, much of what teachers have to teach and students have to learn and debate will be – must be – conveyed by words that are unwelcome, undesirable or offensive to some. The very topic of the policy is a dangerous place for teachers and students to be. Indeed, it is hard to imagine a more counterproductive thing for a sexual harassment policy to do than to make it harder for us to discuss, teach, debate and improve sexual harassment policy – but that is what the university policy threatens to do.

Halley further writes that the policy and procedures violate the rights of students accused of sexual assault:

The procedures, too, risk making victims of the unharmed and villains of the innocent. They deprive accused students of due process by placing the entire decision-making process in the hands of a single university officer, who has the authority to charge, investigate, adjudicate and hear appeals, all in a single case. That officer is in the impossible position of checking, testing and reviewing her own decisions.

The new policy also deprives accused students of due process by according complainants at least 14 procedural advantages that are withheld from the accused. For example, the accused is totally locked out of the inquiry into whether the alleged conduct, if it occurred, constitutes sexual harassment. These tilts go so far that the very presumption of innocence is under threat.

For more of Halley’s insights and analysis, head over to Cognoscenti.