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.