Press Statement RE: Harvard Law School Found in Violation of Title IX

Our Harvard Can Do Better is pleased to see that the Office of Civil Rights is holding Harvard Law School accountable to the community and to national legal standards by finding it in violation of Title IX. As this finding of noncompliance and Our Harvard’s complaint against the College both evidence, Harvard University continues to lag behind in its response to gender-based violence across its schools. We encourage the university to continue cooperating with the OCR’s Resolution Agreement in order to ensure its policies and practices reach and maintain compliance with Title IX.

Though much of the Agreement pertains only to the Law School, there are points with wider implications for the University at large. Importantly, the OCR has not yet accepted the University policy as compliant with Title IX: this approval remains contingent upon review of Supplemental Guidances due to the OCR by January 15th. These supplementary materials are meant to address important issues left out of the original policy and procedures as well as to clarify their existing content. It has taken the University an unacceptably long time to submit and publish these necessary additions and resolve questions raised by survivors and community members. We urge Harvard to submit these as soon as possible both so that the OCR may judge their acceptability and so that students, faculty, and staff may better understand the University policy and procedures surrounding sexual violence.

Also in need of submission to the OCR is the yearly campus climate survey, which Harvard is currently developing with a number of other schools in the Association of American Universities (AAU). Our Harvard shares the concerns of over 60 leading scientific experts about the AAU survey’s methods. Harvard’s survey team must work with the OCR to create a transparent and scientifically sound survey.

Though they so far apply only to HLS, Our Harvard welcomes the addition of yearly trainings and the law school’s explicit commitment to informing students and staff about their rights and University policies and procedures. We hope the University will commit to strengthening its trainings across all of its schools in order to provide students, faculty, and staff with the information required to understand and comply with the new policy. Clarity in writing is only the first step; making sure every community member actively engages with this policy at least once a year is necessary to ensuring the safety of everyone at Harvard.


We urge Harvard Law School, and the entire University, to commit itself to substantively addressing OCR’s concerns, cooperating with the Office in an expedient manner in all investigations, and recognizing the importance of Title IX in ensuring the safety and educational rights of survivors. We furthermore call on Harvard to go beyond mere compliance with its bare minimum legal obligations and to adopt the best practices for Title IX. We hope the University will not be content to merely avoid further legal reprimand, but will instead proactively implement policies that will best protect the entire Harvard community.  

OHCDB Recommendations for University Policy and Procedures Supplements

In October, Our Harvard Can Do Better submitted recommendations to the Title IX Office re: Harvard's university-wide sexual harassment policy and procedures released in July. The purpose of these recommendations was to highlight the areas in which the existing policy and procedures fall short and to attempt to suggest supplemental information or language that would begin to address these shortcomings. 

OHCDB organizers were invited to submit these recommendations in late September when the Title IX Office began the process of drafting their own Q&A, hypotheticals, and other supplementary materials explaining the policy and procedures to the student body. Two months later, this process at the Title IX Office still appears to be ongoing (or stalled). Organizers have been told to expect the first batch of these official supplementary materials in late December.

OHCDB is publishing the full text of its recommendations with the hope that they may serve the wider community as a resource for engaging critically with the current policy and procedures and better understanding the ways in which they address or fail to address student, survivor, and activist concerns. OHCDB's recommendations have not been endorsed by the Title IX Office or the University and their content has not been committed to by the administration. In addition, by submitting recommendations OHCDB in no way means to endorse the (yet to be released) official documents under production by the Title IX Office in supplement to the university policy and procedures. 

The recommendations may be found here. 

Press statement RE: HLS Professors' Piece in Boston Globe

As documented in more than one active Title IX investigation against the University, Harvard’s problem has been and continues to be consistent disadvantaging and abridgment of the protected rights of survivors of sexual violence. 

In sharp contrast to the professors’ claims, Harvard’s new policy is the first intermediate step we have seen from the administration to address their federally mandated obligation to place an equal burden on the respondent -- that is, alleged perpetrator -- and complainant -- that is, survivor – during the investigation and resolution process. The new university policy affords complainant and respondent equal opportunity to present evidence to investigators and review and comment upon the investigative reports. In fact, it continues to advise respondents of their right to seek outside legal counsel without similar advisories for complainants. The policy is furthermore ridden with vagueness and loopholes that advantage the respondent over the complainant in disciplinary outcomes, evidence, and appeals. In these instances, the policy is stacked against one party - and the party at disadvantage is still the survivor, not the respondent.

 

Harvard’s sexual harassment policy is not criminal justice law. The newly-created Office of Dispute Resolution (ODR) is not part of the criminal justice system. None of the possible outcomes of an ODR complaint hold anywhere near the severity or longevity of any criminal justice outcome. As an anti-discrimination framework, the Title IX complaint process is meant to decide which of two equally situated parties on campus requires additional support from the school to remain on equal educational footing. The spirit of Title IX is to protect every member of an educational environment from violent and discriminatory conduct - sexual and gender based harassment - that poses a serious threat to their safety and ability to learn. 

By implying Harvard should disregard its legal obligation to protect all of its students and ensure a safe and anti-discriminatory environment, this piece displays a callous lack of understanding of sexual violence and its effect on survivors in educational institutions. 

In reality, Harvard’s policy and procedures still fall short in making this campus safe for everyone. That is why Our Harvard Can Do Better continues to advocate for increasing student and survivor representation in the policy-making process to create a genuinely just system on campus. Compliance with the bare minimum federal standard should be considered a step forward, and only a preliminary one. We call on our university to demonstrate leadership on best practices for protecting survivors of sexual violence and in creating a safe and supportive community for all. 

Additional response to HLS Globe Piece

Kelly Moore, Boalt Hall School of Law, '82

"The Harvard Law School Faculty ("the Faculty") lodge three key objections to Harvard's new Sexual Harassment Policy and Procedures.  The Faculty expresses its concern that due process be extended to the accused; the Faculty objects to the way the rules deal with two students who are incapacitated by drugs or alcohol; and the Faculty protests the University's efforts to impose a single uniform policy and enforcement procedure throughout the different Schools at Harvard.

Let us consider each in turn.

DUE PROCESS CONCERNS:

Many parties have expressed concerns about protecting the accused individual's "due process" rights in adjudications involving Title IX interests, but there are two important points to remember about these adjudications.  The first -- these adjudications are not criminal in nature and therefore do not require the kind of protections we normally afford criminal defendants.  The second -- the purpose of the adjudication is to determine which of two equally-situated parties should be given the school's protection and continued affiliation, the accuser or the accused.  Hence, the preponderance of the evidence standard is utilized, because it furthers both of these interests:  it recognizes that the right being adjudicated is a kind of property right, subject to the standard evidentiary burden applied in tort or contract cases, and it gives both parties the same burden to meet in his or her efforts to preserve his or her education, that is, to prove his or her case "more likely than not."

It is critical and mandatory to preserve this balance of equal treatment between accuser and accused.  If the University generously agrees to extend greater protections to the accused, under Title IX and the various documents interpreting its application, the exact same protections must be extended to the accuser.  So, if the University opts to extend greater protections to BOTH parties (e.g., furnish them both attorneys) no Title IX activist could have objection.

The Faculty makes an error, however, in seeking to provide criminal procedural protections in what is merely a property right adjudication.  For example, the right to confront the accuser should not be a requirement for these hearings, as it would exert an enormous chilling effect on the lodging of such complaints.  A huge percentage of rape victims are unwilling to confront the party who has caused such terrible humiliation, degradation and injury in their lives.  Confrontation of the victim is not necessary as long as the accused's questions can be submitted to the accuser, and vice versa.  

Likewise, to suggest that there is a "prosecution" in these cases is to misperceive the dynamic involved in the adjudication, and to falsely impute a "criminal" significance to the outcome.  Rather, in this kind of adjudication, both parties are responsible for providing facts and evidence that supports his or her version of the events so that the trier of fact can determine whose version wins by a preponderance.

INCAPACITATION BY ALCOHOL

The Faculty has also objected to the rules now applicable to sexual conduct with an inebriated partner, stating that the University has inappropriately expanded the scope of forbidden conduct in new "[r]ules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues involved in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students."

This expressed concern displays the Faculty's outmoded bias against an inebriated rape victim, as well as the Faculty's ignorance of the manner in which serial predators hide their conduct under a pall of alcohol.  What the new rules do, in effect, is recognize the legitimacy of a victim's outrage at having been used sexually when he or she was unable to consent due to intoxication.  It places a burden -- an appropriate and seemly burden -- on the party who wants sexual activity, to make sure her partner is sober enough to consent.  This placement of the burden recognizes that the risk of "mistaken" sexual activity will likely be an emotional scarring that impacts an unwilling participant for years, even decades.  In engaging in sexual activity despite inebriation, the willing partner is now being asked to assume the risk of being held accountable for not obtaining true and knowing consent.

This placement of the burden also recognizes what Dr. David Lisak has repeatedly established: that sexual predators tend to be serial offenders (60% of rapists rape, on average, six victims each) who have readily disclosed that they use alcohol as a weapon and as a cover.  They use liquor and other drugs to incapacitate their victims so that the victim has decreased ability to object or protect him- or herself, and they themselves drink alcohol so they can claim that the sex they have forced was just a "drunken mistake."  This predatory pattern has been amazingly successful for decades.  The University's willingness to impose the burden of responsibility on the enthusiastic partner will finally begin to strip away the camouflage that has for so long hidden our serial rapists." 

 

A renewed call for affirmative consent

Our Harvard Can Do Better has cosigned a new petition renewing the call for an affirmative consent policy across Harvard. The petition is a joint effort between our undergraduate group and two graduate groups, Harvard Students Demand Respect and Harvard Graduate Students Advocating for Gender Equality. Be sure to add your name! 

Our Harvard Can Do Better has been advocating for affirmative consent for over two years. In 2012 we put forward a referendum through our undergraduate student government in which 85% of undergrad voters supported revisions to Harvard's sexual violence policy including affirmative consent. 

Then, this past summer, Harvard's released a new sexual and gender based harassment policy, which covers sexual assault. This new policy, the first revision in 20+ years, was drafted by administration with zero student input. It does not contain affirmative consent, or any consent language whatsoever, and we continue to feel that this absence works to the detriment of efforts to support survivors and hold each other accountable to creating a safe and respectful environment for everyone on campus. 

This petition demonstrates a united student front across all schools at Harvard with a clear message: affirmative consent is the best standard for our community. 

Our Harvard Can Do Better does not use or endorse the phrase "yes means yes." Affirmative consent shifts the burden away from survivors to have to physically or verbally resistance or protest; it requires us to cease conceptualizing sexual language or advances as consensual unless demonstrated otherwise and instead recognize that  consent must be a continuous, free expression of positive agency. That is not the same as issuing a blanket "yes means yes" decree in ignorance of factors of coercion and other power structures that may compel a "yes." We have been disappointed by the pervasive use of "yes means yes" in the media coverage of the events in California and New York. 

For a more detailed exposition of our position on affirmative consent, please see the following article we authored in the Harvard Political Review. http://harvardpolitics.com/harvard/defining-affirmative-consent/

"Defining Affirmative Consent" published in HPR

Our Harvard Can Do Better organizers Jessica Fournier and Emily Fox-Penner have joined with the President and Vice President Gus Mayopolous and Sietse Goffard of the Undergraduate Council, Harvard's student government, to lay out the case for affirmative consent in an new article published by the Harvard Political Review. Check it out here

new university-wide policy and procedures

On July 2nd, Harvard University's Title IX office announced new university-wide policy and procedures pertaining to sexual violence (under the umbrella of sexual harassment). 

Here you can find the statement of the new policy and procedures, which include the formation of a new Office for Dispute Resolution to which all complaints against a student of the University will be filed starting in the Fall 2014 semester. 

Our Harvard Can Do Better welcomes the creation of a new centralized office to investigate sexual assault cases across all schools as a crucial and long-overdue step towards simplifying and streamlining the complaint process for survivors campus-wide.

However, we are disappointed to see that Harvard has not shifted to an affirmative consent policy. OHCDB advocates for a policy of affirmative consent – which we define as an unambiguous and voluntary agreement throughout sexual activity. Such a policy best clarifies expectations for all participants, while also facilitating a more mutual and equitable understanding of sexual activity. Affirmative consent is regrettably absent from the new policy. The new language of unwelcomeness remains opaque to students and was implemented without substantive student input.

Moving forward, OHCDB is committed to work towards reconciling official policy with student experience, and will continue to advocate for policies that will support survivors throughout the University. 

 

Harvard Class of 2014 supports survivors!

At Harvard's 2014 commencement, graduating seniors wore red tape on their mortarboards to stand in solidarity with survivors and to celebrate the activism in the Class of '14. Thanks to everyone who made our demonstration such a great success! 

Did you miss it? Check out http://www.ourharvard14.com/#about 

News coverage: 

And this picture in the Boston Globe print edition! 

Like many graduates, Pearl Bhatnagar decorated her mortar board with a piece of red tape as part of a protest against sexual assault on campus. She is part of the group Our Harvard Can Do Better. According to their website, Our Harvard Can Do Better advocates for a broadly intersectional, inclusive, survivor-centric, Title IX compliant approach to combating sexual assault and rape culture on campus. Bhatnagar was at the Harvard commencement in the Tercentenary Theatre of Harvard Yard. (Photo by Lane Turner/The Boston Globe via Getty Images)

Like many graduates, Pearl Bhatnagar decorated her mortar board with a piece of red tape as part of a protest against sexual assault on campus. She is part of the group Our Harvard Can Do Better. According to their website, Our Harvard Can Do Better advocates for a broadly intersectional, inclusive, survivor-centric, Title IX compliant approach to combating sexual assault and rape culture on campus. Bhatnagar was at the Harvard commencement in the Tercentenary Theatre of Harvard Yard. (Photo by Lane Turner/The Boston Globe via Getty Images)


Task Force Count: 2 New Ones!

Dean of the Faculty of Arts and Sciences Michael Smith has announced a new committee chaired by Prof. Alison Johnson to bring the College and GSAS sexual assault policies and procedures into line with the new university-wide standards, still pending approval (so we are told) by the OCR.  Read the Crimson story here

Prof. Johnson is also a member of the slightly less recent Presidential Task Force on Prevention announced by Drew Faust at the beginning of April and headed by Prof. Steven Hyman. Read the Crimson story here.   

Our Harvard files Title IX Complaint

Press Statement - April 3, 2014 

Our Harvard Can Do Better Files Title IX Complaint against Harvard College

On Friday, March 28, 2014, a group of students from Harvard College filed a Title IX sexual assault complaint to the Office of Civil Rights. For the past year, the organizers of Our Harvard Can Do Better have been working with survivors and allies - including the author of this week’s Crimson op-ed, “Dear Harvard, You Win” - to document the ways in which Harvard has created and perpetuated a hostile environment on campus for many students and especially for survivors of sexual assault. The experiences recounted in Monday’s op-ed reflect systematic Title IX violations in Harvard’s accommodations, disciplinary processes, and training, and demonstrate the University’s continued dismissal of student input.

 

The experiences of the anonymous survivor who wrote “Dear Harvard, You Win” exemplify a greater campus environment of victim-blaming and university indifference. Harvard’s pattern of discounting the psychological and emotional trauma of survivors as legitimate grounds for academic and residential accommodations results in survivors being forced to live in the same dorm and eat in the same dining hall as their perpetrator and to remain in severely triggering academic settings at the expense of their well-being and educational experience.   

 

Survivors with whom we have worked have repeatedly been given false or inadequate information from administrators about pursuing accommodations, including coursework extensions, no-contact orders, and housing changes. Survivors have regularly been discouraged from pursuing disciplinary cases. Those who did pursue a case sometimes were not notified before their case was heard and learned that the Administrative Board had proceeded only after hearing the verdict. Some survivors have received this verdict verbally without any formal written notice.

 

We acknowledge the recent steps Harvard has taken to reexamine Title IX compliance on campus. Nevertheless, Harvard’s consistent shunning of student voice on the issue of sexual assault policy has led us to believe in the need for an externally-imposed mechanism for oversight of the policy review process to ensure its accountability to survivors.

 

Last spring, Our Harvard Can Do Better posed a referendum question in the Undergraduate Council (UC) elections asking students, “Do you think Harvard should re-examine its sexual assault policies and practices?” The referendum passed with 85% of votes. In an effort to appear responsive to student voice in the wake of the referendum question, Harvard convened a Sexual Assault Resources Student Working Group but proceeded to ignore the suggestions of the students who participated. Students unanimously agreed to recommend policy revisions in the working group report, but the administration removed these policy recommendations from the final document before its presentation to the Dean of the College in disregard of student voice.

 

The outcome of the Student Working Group demonstrates the need for external oversight in order to ensure Harvard’s accountability to survivors. We call on the Office of Civil Rights to open an investigation to ensure that Harvard not only reforms its policies on paper, but commits itself wholeheartedly to creating a safer and more just campus.

(PDF here)

New UC working group on sexual assault policy

We were quoted in today's Crimson article about the formation of the new UC working group.  

Read our full statement here: 

  • We (Our Harvard) welcome the active inclusion of as many student voices - especially voices of students with diverse identities - on this issue as possible.  We know that this is also a priority of Gus and Sietse and we are looking forward to using this working group as a springboard for engaging more people in this discussion. 

  • We hope the UC can also draw on our existing network of student cultural and activist organization allies on campus to help foster this diverse dialogue. 

  • Given Harvard's shunning of student input on policy, despite the fact that this policy primarily affects us, we think that the formation of this UC working group is an important step as it provides some formal acknowledgement of the wide consensus among students that current policy needs to change and that student and survivor experience should inform these changes. 

  • We look forward to sharing with the UC our knowledge that's drawn from over two years of close scrutiny of Harvard's policy, as well as comparisons we have conducted with peer institutions. We have begun to share this knowledge in preliminary meetings with Sietse and Gus and will be delighted to welcome the new working group members into these conversations. 

  • Additionally, we are looking forward to sharing our knowledge gleaned from conversations with survivors about what is and isn't working in terms of implementation of current policy, and we hope that accountability to survivors will be a central focus of this working group  

We value the current and previous UC administrations' commitment to this issue. As yesterday's op-ed demonstrated, Harvard's current policy is harming survivors on this campus every day, but we believe that our broad student coalition has the power to bring about the change that needs to happen.  

Dear Harvard

"You might have won, but I still have a voice." A first person account of institutional betrayal on this campus: http://www.thecrimson.com/article/2014/3/31/Harvard-sexual-assault/

Dear Harvard: this must end. Never again.

Know Your IX team building!

Know Your IX team building!

Know Your IX is a campaign founded and led by student survivors and allies to educate students about Title IX, which mandates that universities that receive federal funding proactively create a campus free of sexual discrimination/violence. Our organizers have contributed to various sections of the website. KYIX is looking for anti-violence activists to be part of this team. 
 
The media coverage of sexual assault on college campuses in the past year has been very white washed, even though sexual violence continues to haunt the lives of those who are not wealthy heterosexual white women who did everything "right." To counter the media erasure of the "more difficult narratives" (read: not white, not woman, not straight), KYIX is encouraging: 
 

We particularly encourage people from historically marginalized groups, including but not limited to people with disabilities, people of color, trans people, queer people, first- or second-generation immigrants (including undocumented people), and people from low income families. We also encourage students from types of schools often overlooked in discussions of campus violence, and survivors of forms of sexual and gender-based violence commonly ignored by anti-violence efforts (relationship abuse, same-sex violence, etc.) to apply. KYIX is a student-driven campaign, so we will prioritize applications from those currently or recently enrolled as students and those directly impacted by campus violence.

 
You can see the application HERE. Please consider joining the team! 

[LA Times] Sexual violence common among teens. Feeling responsible isn't.

Sexual violence common among teens. Feeling responsible isn't.

"While those most likely to report initiating unwanted sexual contact in their early to mid-teens were boys, girls were among the perpetrators as the age of respondents increased. Latino and African American youths, and those from low-income families, were less likely to have coerced another person to engage in sex than were whites and those from higher-income families, the study found.

[...]

Coercive tactics, including arguing, pressuring, getting angry or making someone feel guilty, were most commonly reported by those who acknowledged attempted or completed rape. And the study found that 75% of the cases of sexual violence occurred in the context of a boyfriend-girlfriend relationship."