HARVARD PROFESSOR: The Government's Position On College Rape Is 'Madness'

A Harvard Law School professor criticised how the federal government regulates colleges’ sexual assault policies in an email to The Wall Street Journal’s Law Blog Wednesday, writing that the government’s approach fails to protect students wrongfully accused of rape.

The Department of Education announced Tuesday that Harvard Law School was in violation of Title IX for mishandling student sexual assault complaints.

As Law Blog notes, Harvard law professor Elizabeth Bartholet  —  who teaches civil rights and family law at the university — is “an outspoken opponent of policies that she and other law professors say strip students accused of sexual assault of their due-process rights.” 

Bartholet wrote that “history will demonstrate the federal government’s position to be wrong” and “our society will look back on this time as a moment of madness.”

According to a statement from the DOE’s Office for Civil Rights, the specific violations include a failure “to comply with the Title IX requirements for the prompt and equitable response to complaints of sexual harassment and sexual assault.”

Harvard Law School also improperly used a “clear and convincing” evidence standard in complaints, rather than the federally required “preponderance of evidence,” the DOE found. The government’s standard makes it easier to find a student responsible for sexual assault.

In her email to Law Blog, Bartholet writes:

The federal government’s decision that Harvard Law School violated Title IX represents nothing more than the government’s flawed view of Title IX law. The Department of Education’s Office of Civil Rights, which issued the decision, is not the ultimate decision-maker on law. The courts are responsible for interpreting the law. And I trust that the courts will eventually reject the federal government’s current views … 

I believe that history will demonstrate the federal government’s position to be wrong, that our society will look back on this time as a moment of madness, and that Harvard University will be deeply shamed at the role it played in simply caving to the government’s position.

The updated Harvard policies have come under attack from both students and faculty, with 28 current and former Harvard Law School professors — including Bartholet — writing an op-ed in The Boston Globe in October calling on the university to withdraw its new sexual harassment and misconduct policy, arguing that “we find the new sexual harassment policy inconsistent with many of the most basic principles we teach.”

Former star Yale University quarterback — and current Harvard Law student —  Patrick Witt also came out against Harvard’s new sexual assault policy in a separate Boston Globe op-ed, writing that his life was “nearly ruined” by a similar policy at Yale.

Bartholet is not alone in her criticism. Last month, Yale Law School professor Jeb Rubenfeld wrote an op-ed in The New York Times, voicing his own problems with college sexual assault policies.

As Rubenfeld notes, recent controversial changes to many colleges’ sexual assault policies such as affirmative consent and a lowered burden of proof are not necessarily preventative measures, except as a deterrent for students who might be afraid of the potential consequences of assaulting a classmate. 

“If schools are genuinely interested in preventing sexual assault, they need to overhaul how they think about assault and what they do about it,” Rubenfeld writes. “Prevention, rather than adjudication, should be a college’s priority.”

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