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Harvard Law School Found In Violation Of Title IX For The First Time In History

A first-of-its kind Title IX complaint against Harvard Law School, which I filed with the Office for Civil Rights at the U.S. Department of Education in the fall of 2010, was finally decided last week after an investigation that lasted more than four years.

OCR found that Harvard Law School systematically violated women’s rights under Title IX in myriad ways, including that it applied a burden of proof more onerous than the mandatory and equitable “preponderance of the evidence” rule and accorded accused students more rights than victims even though federal constitutional law, and federal civil rights laws such as Title IX, grant far superior legal status to students who suffer Title IX violations compared to those who commit them. The Law School was also cited for violating Title IX’s promptness mandate, and for having no “timeframes” in place for resolving complaints.

While some stories failed to note the significance of the decision, the Boston Globe’s reporting on the story stands out for its odd decision to quote two individuals who had no involvement in the case; one of which has ties to Harvard that were not revealed in the story. Both individuals quoted in the story about Harvard were also quoted in a different Globe story about Princeton University (also my case) after OCR issued a similar ruling against that university several weeks ago, though neither individual had any involvement in that case, either.

I wasn’t even contacted by the Boston Globe for comment about my Princeton case—even though they knew it was mine—and while the Globe used a single quote from me in its long article about the Harvard Law School decision, the reporter strangely wrote “Murphy says” she filed the complaint, as if there’s some doubt that it was my case. The reporter with whom I spoke also declined to note that I filed the case after Harvard Law School hired me as a consultant in early 2010, in connection with a Title IX matter. When I pointed out to Harvard officials that their policies were noncompliant, and they refused to fix them, I filed an OCR complaint.

Most of the media failed (or refused) to mention that the OCR ruling against Harvard Law School was unprecedented and that it was the case that started all the recent activism and public attention to the epidemic of campus sexual assault. Indeed, my cases against Princeton and Harvard Law School led to the issuance of the well-known “Dear Colleague Letter” in April 2011, which provided excellent clarity and guidance for schools on the requirements of Title IX.

The ruling against Harvard Law School is noteworthy for its detailed analysis and strong language in which OCR emphasizes that despite four years and many improvements, Harvard has yet to bring its policies fully into compliance and, like Princeton and Yale, will remain under review by OCR for the near future as more changes are made.

As an impact litigator who has filed numerous Title IX complaints over the past twenty years, including a successful landmark case against Harvard College in 2002, I filed in 2010 against Harvard Law School in order to provoke change not only at Harvard but also at colleges and universities across the nation.. To do that, I sent the Harvard and Princeton cases to OCR Headquarters in DC in the fall of 2010 and asked them to issue some form of “global guidance” because problems at both schools were systemic in higher education.

I had amicus letters of support from two influential organizations: The National Center for Higher Education Risk Management and Security on Campus.

OCR agreed with my request for global guidance, and in April 2011 it issued a Dear Colleague Letter was issued in which OCR expressed new clarity regarding Title IX compliance standards. That “Letter” made clear that my complaints about Harvard and Princeton were correct, and that both schools were substantially noncompliant.

Thereafter, many other schools such as Yale, Amherst, UNC, Occidental, etc., were investigated and forced to change their policies. The fact that Harvard and Princeton were on the hot seat helped to liberate victims to speak out, especially victims from ivy league and elite schools where silence was particularly problematic because victims disproportionately feared the future career consequences of complaining. Silence was made worse by self-described Title IX “experts” at Harvard and other elite schools who regularly advised victims not to file complaints, and either lacked sufficient knowledge of Title IX, or intentionally failed to inform anyone on campus, including victimized students, that the school’s policies were noncompliant.

In the years between 2010 and 2014, there has been tremendous progress and consciousness-raising about sex-based violence and inequality endured by college women, but more needs to be done to prevent the legitimizing of women’s subjugation via segregationist policies, including those permitted by the abominable SaVE Act, which was passed by Congress in 2013 (took effect in March 2014). The SaVE Act was enacted to overturn the April 2011 Dear Colleague Letter and weaken Title IX.

Among other things, students and advocates should be working together to stop the SaVE Act, and interrupt the propagandizing of silly ideas such as “affirmative consent,” which sounds desirable and progressive but as a legal definitional standard significantly weakens Title IX’s preferred standard of “unwelcome and offensive.”

Here’s hoping the new year brings even more attention to the nonnegotiable, fundamental idea that all schools should have a single unified policy that redresses all forms of targeted harassment and violence, including violence against women, promptly, equitably, and effectively under the same “gold standard” civil rights provisions. The era of segregationist “special” policies that impose worse standards only on victims of sex-based violence is over. With a little luck, a few federal courts will say so explicitly very soon. Lawsuits have been filed seeking to stop SaVE from being enforced on the grounds that Congress has no authority to enact a law allowing schools to treat violence against women as second-class harm, and any law that purports to legitimize such a view violates women’s equal protection and due process rights.

After more than forty years, college women have waited long enough for their rightful EQUAL seat at the civil right table of justice.

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Wendy Murphy
Wendy is an adjunct professor at New England Law|Boston where she has taught a seminar on sexual violence for more than ten years. She developed and directs two projects in conjunction with the school’s Center for Law and Social Responsibility. The “Sexual Violence Legal News” project is an alert service that distributes appellate cases of interest, with editorial comment, related to interpersonal violence. The “Judicial Language Project” uses socio-linguistic research to critique the language used in law and society to describe violence against women and children. She was a Visiting Scholar at Harvard Law School from 2002-2003 where her work focused on the status of women in their capacity as victims in the criminal justice system. Wendy previously taught “Reproductive Rights and Technologies” at the Massachusetts Institute of Technology and in 2002 served as the Mary Joe Frug Visiting Assistant Professor of Law at New England Law|Boston where she has also taught courses in reproductive technologies and constitutional criminal procedure. She is a trial and appellate attorney specializing in the representation of crime victims, women, children and victim service providers and is the founder and director of the Victim Advocacy & Research Group, a volunteer legal advocacy organization that has provided free legal services to victims and other third-parties in the criminal justice system since 1992. Wendy wrote the first-ever law review article connecting sexual assault to Title IX in 2006 and filed the first-ever OCR policy complaint against a university in 2002.

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