In Which Harvard Law Students Prove They’re No Smarter Than Any Other Students

In a perverse sort of way, I have always hoped that the students at Harvard Law School were just a little smarter, a little more astute, a little deeper, than others.  It’s not that I thought there was something magical about Harvard, or some sort of negative reaction to Legally Blond, but that I hope that I respect intelligence, and hope that there will be a cadre of smarter lawyers out there than the ones who think they get solid legal advice from the Puddle.

Alas, my hopes were dashed upon reading the response of three Harvard law students to the protest of 28 of their professors to Harvard’s sexual assault policy.  In a Boston Globe essay, Anna Byers, Anna Joseph and Maggie Dunbar went public to express their disagreement, and disappointment, in their professors.

As students of Harvard Law School, we write to voice our support for survivors of sexual assault, for promoting equal access to the benefits of education, and for administrators who treated federal civil rights law as a floor rather than a ceiling.

Perspective is immediately revealed in their use of the word “survivors,” as if death was the alternative to agreement.  But the more significant fallacy appears in the phrase, “a floor rather than a ceiling.”  While a catchy phrase, it’s inapposite to the concept of a well-balanced law, which should be neither floor nor ceiling, but well-balanced.

Members of the HLS community need to take seriously the epidemic of sexual assault on campuses around the country. For university sexual assault hearings, the criminal justice model may not be appropriate to address the unique problems both student complainants and accused face.

The students embrace the usual assumptions, the epidemic, with usual hyperbole, the “unique problems.”  Bald assertions such as “the criminal justice model may not be appropriate,” beg an explanation as to why. One would expect Harvard law students to realize this.

Regarding your due process concerns, the new university process is administrative rather than criminal, but it still incorporates traditional safeguards of the American legal system.

This is one of the better sentences in the piece, as it artfully glosses over the problem.  There are some traditional safeguards, true, but not most. Those that are included are piecemeal, bits of rights without corresponding bits that make the safeguards viable. And then there are the due process rights denied the accused, the ones that distinguish a fair system from a flagrantly unfair system. The right to present a defense without the right to confront and cross-examine a witness is an empty right. But it’s a right, even if it doesn’t account for much standing alone.

The policy is far from perfect and needs clarification, but it is clear that both sides in the process are encouraged to choose an advisor from among the university’s faculty, are given access to all the facts, have the right to present evidence, and are given the chance to appeal. The new policy explicitly recommends that students seek legal counsel before making written or oral statements. Firmly believing in the importance of due process and the rights of the accused, we recognize the existence of those protections in the new policy.

This tepid grasp of due process (has anyone considered whether the syllabus for criminal law is adequate?) would be bad enough, if it was accurate. Sadly, it’s not.  As noted in a comment to the students’ piece, they’ve left quite a bit off the table:

1. Accused cannot be represented by a lawyer in the process unless the accused is a law student. Accuseds other than law students cannot even have a lawyer present during their interrogation by the University investigator, just a non-lawyer faculty “advisor.”
2. Accuseds must provide a list of all evidence they believe would exonerate them without being told any of the evidence against them. This list must be provided within one week of the demand for it. This list is the only clear opportunity for an accused to present any evidence in the process.
3. The written statement by the accused may be turned over to the police, effectively eliminating any right of an accused to remain silent.
4. Accuseds are not allowed to see the full evidence against them, but only such “redacted” version as the Harvard investigator prepares and delivers. Whether or not the redactions are fair, accurate or complete will never be known.
5. Accuseds have no right to conduct discovery.
6. There is no right of the accused to present evidence to counter the evidence against the accused.
7. Accuseds are not allowed to talk about even the redacted evidence against them outside the interview, even with any lawyer the accused might consult. A breach of this gag order is sufficient in and of itself to expel the student. If an accused later files a lawsuit against Harvard for violation of due process and reveals any of the evidence in the lawsuit that is further grounds for expulsion.
8. Accuseds have no right to read even a transcript of the interview of the accuser.
9. Accuseds have no right to ask questions of the accuser, directly or indirectly.
10. An accused who is found innocent by the investigator can still be ruled guilty on an appeal filed by the accuser; effectively, double jeopardy.
11. Guilt is determined by 50.01% probability – barely more than a coin toss.
12. The entire process is run by the Title IX office, which is under enormous Federal pressure to find every accused guilty. Employees and designees of the Title IX office are the police, prosecutor, judge, jury, and court of appeals. At no point is there any outside review by an independent office or body.
13. An accused found guilty will face expulsion with a note of the conviction on the transcript, virtually guaranteeing that the former student will not be able to transfer to any other institution of higher education and will not ever be employable in any job requiring a college transcript.
14. Accusations may be made after graduation, for an unlimited period of time. A graduate could face an accusation 20, 30 even 40 years after graduation, and if not able to prove innocence, have his or her degree rescinded and perhaps notice of that given to their employer.
15. Accusers are allowed to be anonymous, even to the Harvard investigator. This permits secret “denouncers” to target students who did not engage in any activity at all with the accuser and do not even know the accuser.

But the students attempt to be gracious toward their professors, even if a bit condescending:

We appreciate your interest in assuring that the university’s policy is fair, and we welcome your attempts to remedy its shortcomings. But we worry that your letter has distracted many in our community from an important goal—ending the scourge of sexual assault at our university. On that account, the new policy represents a step in the right direction. Instead of condemning the Title IX Office, we should now focus our energies on improving the university’s policy—always with the twin goals of preventing sexual assault and sexual harassment, and of ensuring that justice and fairness are served.

Preventing sexual assault and harassment and ensuring due process are not “twin goals,” but contradictory goals.  One would suspect they would know this, Harvard and all.

Given that these three students have gone public in opposition to the 28 current and former law professors who challenged the policy, one would expect them to put some serious effort and thought into producing an exemplary response.  If this is the best that Harvard Law* can produce, then the fantasy is dead.

* Lest anyone think, “but there’s always Yale,” it’s no better, and perhaps much worse.

26 thoughts on “In Which Harvard Law Students Prove They’re No Smarter Than Any Other Students

  1. Edward Wiest

    More proof of two sad truths (or in Latin, veritas) :

    1. There is a huge disconnect between law schools (including the one I attended) built on a model of teaching law in an abstract sense and the real lives led and problems faced by lawyers (even those lawyers being programmed to serve in the downtown office towers).

    2, Law schools never seem to impress on their graduates there are problems–indeed real problems—beyond the power of “law”, legal (or legal lite) process, or lawyers to solve.

    1. william doriss

      Oh really! How long did it take you to figure this out?
      IAMNAL–have never wanted to be one–and I have known
      this for a v. long time. Does
      that make ME special? No,… it makes YOU, Edward, unusual,
      in the First Degree! Lawyer or no!
      I agree with SHG below: Yes some folks love the Law too
      much. Truer words never spoken. We call them,… I do not know
      what to call them? There’s more to life than just “laws”.
      There’s food to put on the table, bills to pay, debts to honor, wakes to
      attend, and so on. Child support to pay, kids to put thru
      college, etc. What is a jaywalker to do in a society obsessed with
      a plethora of useless, unenforceable laws? Some laws are
      never, or seldom, broken by anyone (voter impersonation comes to mind);
      others are broken by
      almost everyone on a daily basis. I’m thinking of speeding
      on the nation’s highways. See what I mean?
      On the Mean Streets of L.A.,… only kidding! This is crazy, and bye the
      way, it’s Haaavad for the uninitiated.
      Yale has a law school too, but could never find it. It’s tucked away somewhere
      in the corner of the olde campus.
      Yale is not as proud of its law school as Haaavad. I say that is a good thing,
      although you’ll never find a Yale Law grad serving as a PD in CONnecticut.
      No sireee! (Not that I’m aware of?) Another distinguishing feature of Yale is that
      its busyness school is called the Yale School of Management, as opposed to Haaavad’s
      Busyness School, of Mitt Romney fame (and others). So what’s the difference?
      Manage this, MFs!

  2. Paul the Apostate

    Does Harvard have a Nancy Grace Professor of Criminal Law? It sounds like we have some budding candidates.

  3. Anne Krone

    If I were evil, and I am not, I would anonymously accuse these three of sexual harassment so they would be able to experience the “due process” in their favored policy firsthand.

  4. Marc R

    “Preventing sexual assault and harassment and ensuring due process are not “twin goals,” but contradictory goals.”

    Is that a typo? The university hearings violate our (CDLs) sense of due process (the legally understood definition) but preventing harms has nothing to do with that.

    Overall, those numbered dozen plus points completely articulate to me how there’s no due process. Yeah sex assault is horrible, but there’s no way to ever find the truth when a student would rather drop out of school than incriminate himself without counsel to allegations that could lead to serious prison time.

    1. SHG Post author

      Not at all contradictory. Due process is afforded the innocent and guilty alike. It’s not about preventing crime, but providing systemic fairness to those accused of crime. While remedy after conviction/finding has a preventative component, the process does not.

      1. Marc R

        I see. I took it as saying something like “due process can harm prevention of assaults” or vice-versa. In my mind, due process isn’t related to assaults. A victim has every right to complain about assault but the alleged perpetrator then has every right to defend himself pursuant to the constitutional safeguards. If the universities want to include crimes in their college courts using the same procedures they would with a student charged with, say, plagiarism or playing loud music in the dorms, then they need due process protections built in that at a minimum provide the same protections a criminal court would.

        The problem is that a college finding you guilty of assault has real criminal and civil court implications. Getting kicked out of class for cheating on a test is far, far different. Either colleges need to get out of the business of handling assault allegations or they need to follow the state/commonwealth laws to the letter.

          1. John Barleycorn

            Hey now!

            I call un-sportsman like conduct when you go picking on the non-season ticket holders as though you were entitled to readers without putting on a show seven days a week esteemed one.

            This will lead to agitation amongst the cheap seat season ticket holders who know how to fingerprint banners that will get on CNN. We will bring our grandkids to the big games too, just to get on TeeeeVeeee, so you best be careful!

            Besides, you just relax and learn how to trim your beard before winter sets in…

            Them ha(r)V-Ard girls and boys will get it together and fall into the footsteps of all their alumnae and alumni that have made it all the way to the Supreme Show, in order to keep on guarding freedom and them principle things that, that revolution was all about, soon enough or sometime.

            Hopefully, sometime before Hugh Heffner (Larry Flint is the respectable one BTW but he has more class than to even think about going there) convinces Antonin and Ruth that they should take their “friendship” to sexual operatic heights and wear their robes to whatever “safe for work and the children-s” opera the Kennedy Center is putting on this winter and get each other off under them robes during the final act.

            I should break the rules here with a link to one of my favorite operas but seems as though more than a few of your readers are having a hard time understanding me let alone reading the fingerprint on the banners I have been draping over the section rail up here the cheap seats, so how about some Steve Miller Band? Hell, I hate the Steve Miller Band, but even your gilded readers could probably figure him out and “time keeps on slipping into the future” which fits in with Marc R swinging at pitches that were thrown months ago and your efforts to stop the clock and ed-Du-Ma-Cate-sss or whatever it is you do.

            Oh yeah, if you even think about rising the price of beers and hotdogs next season you will be looking at rough and rowdy revolution next season. And it would not reflect good on you if you we have to smuggle the grandkids inside the beer coolers and then hide the grandkids in the cooler when we start throwing some sense and cogent onto the field especially during the extra innings when concise is long past and your bullpen will need some rowdy support just to keep them from wetting their pants before taking the mound.


            P.S. The Opera links are coming so you best do your best to hire a doorman that can distinguish.

            1. John Barleycorn

              Hey…the spoon rules, even if it is a button, and it really is all about the front pages!

              You don’t need to worry too much about filling the seats.

              Who knows, If you get lucky, you might be invited to a tailgate party one of the days.

  5. John Barleycorn

    Some say Andy Kaufman is still alive.

    Lots of “wrestling” going on…just saying, but Harvard would make for a great venue.

  6. Henry Berry

    HOME / NEWS /
    OSAPR Welcomes New Staff

    I followed one link in SHG’s article, and came upon the following at some Harvard website. I almost got impressed, even awed, starting with the exclamation point which I soon came upon. Sounds like Harvard is not only prepared to deal with sexual abuse, but has discovered it. Just look at all those specialists—average age somewhere in the mid 20s it looks to me making decisions affecting callow youths a few years younger in their upper teens for the rest of their lives. I hope they have a big waiting room as students crowd in to make complaints to the expanded staff, still a work in progress as they seek out one more specialist. OSAPR stands for something like Office of Sexual Abuse Prevention…. I forget what the “R” stands for. And I’m not going back to find out. I’ve had enough.

    August 11, 2014
    OSAPR Welcomes New Staff
    For the first time since its inception in 2003, OSAPR has expanded from a 2.5 person staff to a 6 person office! As of August 11, OSAPR Director Alicia Oeser welcomes Meera Seshadri as College Education Specialist, Alyssa Green as Survivor Advocate, Eunice Kwon as Administrative Assistant, and Chris Gilbert in his expanded role as full-time Prevention Specialist. A search is still in progress for a Graduate and Professional School Education Specialist.

    1. Edward Wiest

      When I was at the law school in question, neither Parkinson’s Law (nor Gresham’s Law, which may also be applied to the circumstances) was incorporated into doctrinal training. One wonders if the powers that be at any post-secondary institution has ever mastered them (and their implications).

    2. SHG Post author

      Much as I despise the misuse of the word “survivor” with regard to anything that won’t kill someone, I wonder if you recall whether the “Survivor Advocate’s” job description referred to advocating for someone who suffered from sexual assault or someone who suffered from having to endure the process of accusation.

      1. Henry Berry

        I expect you’re being wry because you know the answer. But I’ll say anyway—I presume almost with certainty that it refers to the individual (in most cases a woman) making the accusations of sexual abuse. Actually, I linked this appearance of “survivor” with comment on it in the article. Although now that you bring it up, it could refer to the one who’s being accused, although this is highly doubtful. Incidentally, in the photo at the Harvard website, four or five of the six members of the agency (I forget the acronym) are youngish woman. All the members were smiling, even the one male. If the group wasn’t identified, you’d think the photo was a yearbook picture of some college club—the individuals were all so chirpy and eager. Like you’re saying, pity any accused of sexual abuse. It’ll be death by well-meant intentions. As the Harvard law professors protesting to the new agency formed around the hazy Harvard policies recognize, the policies reflect an ideological position with tailored—and dangerous—practices, not a concern with lawful or even much relevant concerns.

    3. Cal

      OSAPR stands for Office of Sexual Assault Prevention and Response. I recently had the pleasure of sitting through one of their workshops. It was billed as an educational delve into what university resources were available for the community and what the community considered consent, but the emphasis seemed focused more on advocating for their ideas on gender roles, power, and privilege, and prescribing affirmative consent, with a side of advertising their affiliated student organizations. My questions complicating the agenda of the night were gently brushed aside, though I did get a pat on the back on the way out for asking good questions.

  7. Mirriam Seddiq

    I wonder how I made it through college and law school without all these folks around ready to protect my gentle femininity. I cannot understand how ass backwards this whole thing has become.

  8. Pingback: Thought Rape By The @NYTimes, Courtesy of Yale Law’s Jed Rubenfeld (Update x3) | Simple Justice

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