Win in Harvard Case Will Ripple Across Campuses

BOSTON (WOMENSENEWS)– A first-of-its kind Title IX complaint against Harvard Law School was finally decided at the end of December after more than four years of investigation.

You may have missed it in the year-end rush but let’s take a moment to savor this important and hard-fought victory.

The Office for Civil Rights found that Harvard’s law school had systematically violated women’s rights under Title IX, the federal civil rights law that guarantees women equality in education, in myriad ways.

Among other problems, the school imposed a burden of proof on the victim more onerous than the equitable "preponderance of the evidence" rule, which is mandatory under federal law.

It also accorded accused students more rights than victims even though federal law, including Title IX, grants far superior legal status to students who endure civil rights harm compared to those who commit civil rights offenses.

The school was also cited for violating Title IX’s promptness mandate and for having no "timeframes" in place for resolving complaints. The decision notes that Harvard has made many reforms since 2010, but more needs to be done and Harvard will remain under review by the Office for Civil Rights while additional changes are made.

The decision against Harvard Law School is significant for many reasons including that when Harvard gets in trouble, all schools pay attention because if an institution filled with the world’s best legal academics can’t figure out how to comply with Title IX, there’s a good chance lots of schools aren’t doing the right thing.

The case began when Harvard Law School hired me as a consultant in early 2010, in connection with a Title IX matter. When I pointed out to Harvard officials that their policies were noncompliant, and they refused to fix them, I filed a complaint with the Office for Civil Rights in which I identified numerous substantive and procedural violations of Title IX that were then in place in the law school’s policy.

Significance Overlooked

Now that the ruling is out, I’m gratified that the Office for Civil Rights agreed with me about the problems at Harvard, but I was stunned by the way some prominent publications minimized both the significance of the decision and my role in the case. The Boston Globe’s reporting stands out for this. It ran a story quoting two individuals as authorities on the case who had absolutely no involvement. And one of them has ties to Harvard that were not revealed in the story.

These same two people were also quoted in a different Globe story about Princeton University (also my case) after the Office for Civil Rights issued a similar ruling against that university several weeks ago. Once again, neither of them had any involvement in my Princeton case, either.

Most of the news coverage also failed to mention that the case against Harvard Law School was unprecedented and that it was the case that triggered investigations against other schools such as Yale and Amherst, as well as serving as a catalyst for the recent uptick in activism and public attention to the epidemic of campus sexual assault.

The ruling’s detailed analysis and strong language is notable. It emphasizes that despite four years and many improvements Harvard has yet to bring its policies fully into compliance and, like Princeton and Yale, will remain under review as more changes are made. Because the Office for Civil Rights is a coercive more than punitive agency, the power of the ruling lies mostly in the shame that comes from a public revelation that a school systematically refused to comply with women’s civil rights and failed to treat female students as fully equal citizens on campus.

Push to Provoke Change

As an impact litigator, I filed a complaint against Harvard Law School in order to provoke change not only at Harvard but also at all colleges and universities across the country. That’s why, in 2010, I sent the complaint (along with my Princeton case) to the Office for Civil Rights headquarters in Washington, D.C., and asked them to issue some form of "global guidance." I explained that problems at both schools were systemic in higher education and urged them to release new guidance that would clarify the law and apply to all schools nationwide. I obtained letters of support for my request from two influential organizations: The National Center for Higher Education Risk Management and Security on Campus.

The Office for Civil Rights agreed with my request for global guidance and in April 2011 it issued a "Dear Colleague Letter" to school administrators providing new clarity about Title IX compliance standards. The letter made clear that my complaints about Harvard and Princeton were correct, and that both schools were substantially noncompliant.

Thereafter, many other schools were investigated and forced to change their policies. The fact that Harvard and Princeton were on the hot seat helped to liberate victims to speak out, especially victims from Ivy League and elite schools where silence was particularly problematic because victims disproportionately feared career-related and other consequences of complaining.

Without widespread publicity and a deep public appreciation for how and why we’ve seen so much public attention to the need for reforms since 2010, the impact of the decision against Harvard Law School and the value of the tactics I used to provoke national change will have only limited value on the effectiveness of future efforts to hold schools accountable.

Here’s hoping this accurate story about how reforms happen will grow new and stronger seeds of activism in the fight for women’s full equality in education, no matter how hard some media outlets try to hide the fact that elite schools comply with women’s civil rights only when brave women dare to speak out, and brave lawyers forge new legal pathways to hold schools accountable.