The Title IX Mess

I have refrained from commenting on Harvard's Sexual and Gender-Based Harassment Policy because I figured the University was just doing what it had to do. If the federal government announces that universities have to do X or risk loss of their federal funding, they should, almost always, do X. The rare cases of resistance have had mixed results. Years ago, Brown University resisted a Title IX complaint having to do with what exactly it meant to offer equal athletic opportunities to men and women -- and lost. On the other hand, MIT resisted the antitrust consent degree the other members of the "Overlap Group" signed -- and won. In this case it seemed to me likely to be very risky to resist. At some point prudent fiduciaries have to instruct the executive to settle up with the feds and save their litigation to resist incursions that are closer to the core of the institutional mission. That said, I have thought, since the policy was announced, that it was a disaster to any sense of justice in the American tradition. What has happened here (I wrote about this in EWAS) is that frustration has mounted over the low conviction rate in charges of sexual assault, typically peer sexual assault between drunken undergraduates with no witnesses other than the principals. Rape being a serious felony, Harvard and most other institutions have long observed something like the standard in the criminal justice system, that a pretty high level of certainty should be required before someone is declared a rapist. Universities have never been required to do that, since they are not sending anyone to prison, but it has always seemed the right thing to do given the social consequences of labeling someone a rapist. Of course that resulted in low conviction rates, which have long been a source of frustration for victims and their advocates--in universities just as it is in the "real world." What has happened is that, for fundamentally political reasons (with Joe Biden hugging sexual assault victims and all), the executive branch of the federal government has re-cast rape as a civil rights violation, and insisted that "equity" here means that the two parties have equal standing in colleges and universities receiving federal funds. Findings must be on a "preponderance of evidence" standard -- essentially a 51-49 standard, rather than a beyond-a-reasonable-doubt standard. If one party can appeal the finding of the college judiciary, the other side can too. And so on. More of the guilty will most certainly be convicted in this way -- and more of the innocent too. This isn't what we used to think "fairness" meant -- it used to mean giving an individual defendant a fair shake against the overwhelming power of the prosecutorial entity. If anyone needs a refresher, go look at what is happening in Hong Kong, where the city is fighting about which of the "two systems," democratic or authoritarian, will ultimately govern it. A diverse group of Harvard Law School faculty protested Harvard's Title IX policy, arguing in essence that Harvard caved too easily to the feds. The new policy involves measures, they say, that "are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation." That last phrase is important. What exactly Title IX, the law, requires is very murky -- see Why Colleges Are on the Hook for Sexual Assault - Students … for a good explanation of how scope of the law has expanded over the years far beyond anything the enacting legislators anticipated. What surprises me is the statement that the policy goes beyond anything that regulations require, and that Harvard "decided simply to defer to the demands of certain federal administrative officials." Is that right? We know that managing risk is among the highest priorities of Harvard's governing boards. Did they really instruct the university administration to placate a handful of federal bureaucrats? The Law School letter is worth reading. But I want to point out an inherent contradiction in Harvard's policy that has not been highlighted to my knowledge: The contradiction between the obligation not to allow a "hostile environment," and the obligation to protect the right to free speech. Here are the relevant passages from Harvard's policy. On what's a "hostile environment":

Sexual harassment is unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sex