The Law School’s procedures correct for these deficiencies by granting access to legal counsel at all stages of the process, and paying for adequate counsel to those who cannot afford it. They grant hearings, allow for evidence to be responded to directly, and provide a path for appeal to both parties.
These procedures provide an even playing field to traditionally underprivileged groups.
“I’ve been aware of and involved in several Harvard cases, and the majority have been against black respondents,” Law School professor Janet Halley wrote in an email.
Though the Law School committee had to keep to the preponderance of evidence standard held by the University, the better standard of “clear and convincing evidence,” currently used in all Law School disciplinary proceedings, should be the one used University-wide.
Though substantive policy was beyond the ability of the committee to change, Law School professors still raise two serious objections to it—one more concerning the other.
The first points to the overly broad definition of sexual harassment about the ability of “impaired or incapacitated” persons to consent. The policy lacks a reasonable person standard that is found in most case law, and seems to imply that the “complainant may be incapable of consent by dint of that impairment while the same level of impairment gives [the] respondent no mitigation,” Suk wrote in an email.
“I’m terrified on behalf of college students,” said one professor who worried that the clause, without clarification, would sweep consensual sex between two students after moderate drinking into the category of sexual harassment.
Other professors indicated their worries that the policy would impinge on academic freedom, as discussions on rape law or hypotheticals involving gender or sex could be claimed to constitute harassment.
The University policy has a single line that claims no part of it shall be construed to abridge academic freedom and inquiry, while the Law School interim procedures spend several more lines elaborating. Though it seems far-fetched that the University would sanction an instructor for any academic discussion in the classroom, Coates seems right when he says that “it’s slightly embarrassing that it’s a single sentence.”
Despite its many faults, the University policy was certainly a step in the right direction. But though its deficits come not from ill will, they must still be rectified. The original error of the University was moving the policy forward without adequate consultation of the school’s faculty, especially those Law School faculty who might have a wise thing or two to say on the issue.
We could not locate a single law professor who had gone on the record in defense of the University’s policy and against the Law School’s new ones.
But the mistakes are not as important as the opportunity to improve in the future. Harvard Law School has constructed a process immensely better than the one governing the conduct of most Harvard students. It’s time to change that.