Secretary of Education Betsy DeVos at CPAC

On September 7, Education Secretary Betsy DeVos announced plans to reverse several Obama-era Title IX guidelines regarding sexual assault investigations at U.S. colleges and universities. Since then, Harvard students have received little assurance from their administration that protections for Harvard’s sexual assault victims are here to stay.

DeVos specifically revoked the Department of Education’s 2011 “Dear Colleague” letter—a landmark policy change establishing the preponderance of evidence standard for all colleges’ internal sexual assault investigations. In fact, it directly spurred Harvard’s 2014 policy shift to the preponderance of evidence standard—a reduction from the previously more strict “clear and convincing” standard. Now that the Department of Education no longer mandates this policy, many are asking: Will Harvard go back?

Harvard eventually must choose whether to side with legal purists, who tend to favor higher evidentiary standards, or anti-sexual assault activists, who are defending the current standard. However, its noncommittal stance and lack of transparency alienate both sides and dismiss the importance of Title IX for its students.

Harvard’s Embattled History on Title IX

Even before the Obama administration’s new guidelines, the Harvard administration had been under consistent fire from students—especially undergraduates—about sexual assault issues. For years, student activists from groups such as Our Harvard Can Do Better have been pushing the administration to provide more resources for sexual assault survivors and change its enforcement policies. Alongside the evidentiary standard debate, many student activists have long advocated for a change in Harvard’s consent policy—from banning “unwelcome conduct” to requiring “affirmative consent.”

Disapproval of Harvard’s Title IX policies extend beyond frustrated student activists. When Harvard announced the 2014 reduction to its evidentiary standard, 28 Harvard Law School professors condemned the decision in a Boston Globe op-ed, claiming the new procedures “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX.” And in Washington, the Department of Education’s Office for Civil Rights has kept a watchful eye over Harvard. In 2014, Harvard Law School was found in violation of Title IX for its sexual harassment policies. Harvard is currently under three additional Office for Civil Rights investigations, as well as a Title IX lawsuit filed by a recent graduate.

Federal Policy and Harvard’s Response

On September 7, Sec. DeVos gave a speech emphasizing her desire for more protections for the accused and criticized the Obama administration’s policies, saying, “if everything is harassment, then nothing is,” and, “the prior administration weaponized the Office for Civil Rights.” Later that day, during an interview with CBS News, she explicitly announced the Department of Education’s “intention to revoke or rescind” the Obama administration’s 2011 directive, which includes the “preponderance of evidence” evidentiary standard guideline.

Harvard’s response to DeVos’s speech was mild-mannered and unsubstantial. Asked twice about DeVos’s remarks in a CBS News interview the following day, Harvard University president Drew Faust declined to comment directly on them. Instead, she discussed the general importance of sexual assault issues as well as Harvard’s “really robust” policy, saying, “I feel that we have a strong policy in place now that addresses [sexual assault].” This is not typical of Faust, who has been politically active in the past—even lambasting Trump’s “cruel” revocation of DACA. The Harvard administration stayed silent on Title IX for the next two weeks. On September 24, two days after DeVos officially rescinded the Obama-era guidelines, a Harvard spokesperson announced that the administration was “reviewing” the change in Title IX policy.

Meanwhile, other university presidents and administrations across the United States expressed varying degrees of dissent over DeVos’s speech. University of California president Janet Napolitano immediately called the announcement “extremely troubling,” describing it as an “unwelcome change” while praising the Obama administration’s 2011 guidelines. Yale College Dean Marvin Chun also described it as “troubling.” An official statement from Washington University in St. Louis expressed “real concerns” that DeVos could “undermine progress that has been made.” Stanford University provost Persis Drell promised students, “Stanford has no intention of retreating, in any way, on the subjects of sexual assault and harassment”; similar promises were made by many other administrators nationwide.

Responding to outcry from student activists, Harvard University Title IX Officer Nicole Merhill issued a statement on September 27. She wrote, “The Title IX Office has heard from many community members expressing concerns … Harvard’s Sexual and Gender-Based Harassment Policy and Procedures are grounded in the Violence Against Women Act (VAWA) and the 2001 Revised Sexual Harassment Guidance as well as Massachusetts laws … all of which remain in place…” An attorney, Merhill leads the Title IX office at Harvard, but her legal claims here are dubious. While it is true that the VAWA and Massachusetts law have established important protections against sexual assault, they do not regulate the evidentiary standards that colleges use in investigations, which is the chief concern of activists opposing DeVos’s policy changes. In fact, Harvard only raised its standard of evidence to its current level as a direct result of the Obama administration’s 2011 guidelines. Merhill’s statement did not include any information about whether Harvard now intends to make any policy changes, such as lowering its standard of evidence. Five weeks later, Merhill wrote an op-ed with other Harvard administrators, stating that the University does not intend to make changes “at this time.” Following multiple correspondences, Merhill and a spokesperson for Harvard did not respond to the HPR’s request for comment.

Ultimately, Harvard’s uniquely muted and untransparent attitude toward its Title IX policies contradict its claimed commitment to addressing sexual assault as one of the most serious issues on its campus.

Outrage and Activism Continue

Since DeVos’s announcement, activists on campus have been vigorously fighting back. Some penned an op-ed in the Harvard Crimson accusing the University of “complicity” with DeVos, some protested DeVos when she delivered a speech at the Harvard Kennedy School of Government, and many have been organizing their game plan for the path ahead.

On October 17, dozens of students gathered to discuss their frustration with the administration’s “silence” and coordinate their activism moving forward. Representatives from student organizations Our Harvard Can Do Better, the Harassment/Assault Law Student Team, and the Graduate Students Union, as well as a representative from Know Your IX, a national Title IX advocacy program, spoke at the event. The students were proud of their advocacy work—even taking some credit for the current preponderance of evidence standard—but the meeting was largely focused on criticizing rape culture, the Trump administration, and the Harvard administration, as well as discussing their advocacy strategies.

Speakers assailed the Trump administration’s attitudes toward sexual assault. Sejal Singh, a Harvard Law student and representative of Know Your IX, said at the meeting that President Trump “clearly doesn’t care about rape victims.” She detailed the various ways that DeVos’s policies jeopardize the fairness of campus sexual assault investigations for victims, focusing especially on the appeals process and the evidentiary standard. “This guidance [from DeVos] will allow schools to tilt investigations against survivors,” she warned.

Singh also responded to criticisms that are commonly made—including by many professors at Harvard Law School—that the preponderance of evidence standard is unfair to the accused. “Nothing, I think, could be further from the truth,” she said. She noted that preponderance of evidence is the same standard used by U.S. courts in civil sexual assault cases, and argued that every student’s equal right to an education makes campus sexual assault cases fundamentally different from criminal cases. She also argued that colleges are better equipped than law enforcement to support victims, and noted that colleges routinely handle cases of non-sexual violence without police involvement.

Sarah Ryan, a College sophomore and member of Our Harvard Can Do Better, lambasted the University’s treatment of sexual assault. “Harvard is essentially refusing to change the policies in relation to a lot of the things that students are calling for and students are demanding,” she said. Ryan specifically cited the administration’s refusal to adopt an affirmative consent requirement or release more of its data on campus sexual assault cases. She also celebrated a recent Undergraduate Council vote, which expressed the student body’s “disappointment in the Administration’s failure to officially announce its decision regarding Secretary DeVos’s letter.” More than anything else—perhaps even more their policy platform—activists want transparency from their school.

While the law professors and administrators who oppose the preponderance of evidence standard have avoided this kind of outwardly visible activism, they almost certainly see DeVos’s policy change as a golden opportunity to restore the rights of the accused at Harvard. Unless the administration has been more transparent with them than with student activists, these legal purists are likely also anxious to know more about Harvard’s plans.

Ironically, activists on opposing sides of Title IX changes are united in frustration with the administration’s silence. Instead of withholding its plans, Harvard could easily choose to answer the questions that activists are so desperate over. Regardless of the decision it makes, Harvard owes its students and faculty as much transparency as possible—especially for an issue as critical as sexual assault. Its silence has caused student activists to question the administration’s commitment to preventing sexual assault, and legal scholars to question its commitment to due process. The university has already proven that it can handle their opposition; it prevailed against student activist demands for a lower standard of evidence until the change in 2014, and it has prevailed against scholarly opposition since then. Harvard ought to cut its own burden of criticism in half and put all of its campus activists at ease by opening about its Title IX plans.

Members of a divided Harvard community feel either threatened by or optimistic about policy changes in Washington, but they all look fleetingly toward a silent Harvard administration for answers. As graduate student Niharika Singh told fellow student activists, “We need a way to hold our institutions accountable and the systems accountable.”

Image Source: Wikimedia/Michael Vadon

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