Bartholet was speaking out against recent findings by the U.S. Department of Education’s Office for Civil Rights (OCR) that Harvard Law School was in violation of Title IX for failing to provide a “prompt and equitable” response to sexual harassment complaints.
Harvard’s new school-wide sexual harassment policy, which it crafted in response to pressure from the federal government, was slammed by Bartholet and 27 other Harvard Law School faculty members in an October op-ed in The Boston Globe.
The faculty expressed concern that “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which 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 law or regulation.”
“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,” which forbids gender discrimination at schools receiving federal aid, Bartholet said in a recent e-mail to The Wall Street Journal’s Law Blog.
“The Department of Education’s (DOE) Office of Civil Rights (OCR), which issued the decision, is not the ultimate decision-maker on law,” she pointed out.
Bartholet, who is an expert on civil rights and family law at Harvard Law, where she has taught since 1977, also condemned the law school's agreement to cooperate with OCR.
“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,” she wrote.
“The courts are responsible for interpreting the law,” she explained. “And I trust that the courts will eventually reject the federal government’s current views.
“The courts’ decisions to date, including the U.S. Supreme Court, show a much more balanced approach to sexual harassment, one which recognizes the importance of vindicating the rights of those victimized by wrongful sexual misconduct, while at the same time protecting the rights of those wrongfully accused, and protecting the rights of individual autonomy in romantic relationships.”
President Obama began a push last January for changes to sexual harassment policies on campuses nationwide with an executive order to establish a White House task force to protect students from sexual assault.
In May, Harvard Law School was put on a growing list of schools facing federal investigation by DOE for their handling of sexual abuse allegations. The list increased 50 percent in just six months last year.
However, Bartholet and other members of the Harvard Law School faculty complained that the new policy, which “expands the scope of forbidden conduct” while “lodging…the functions of investigation, prosecution, fact-finding, and appellate review in one office,” is “inconsistent with many of the most basic principles we teach.”
“The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment,” they wrote. “The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom.”
“The law that the Supreme Court and lower federal courts have developed under Title IX and Title VII attempts to balance all these important interests,” they noted.
In contrast, “the university’s sexual harassment policy departs dramatically from these legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials,” the professors concluded.