Harvard Law Professors Decry Sexual Harassment Policy... Dumbly

Elie thinks the professors are right. Elie has been duped. This law professors' letter is really kind of offensively dumb...

A gaggle of Harvard Law professors took to the pages of the Boston Globe to complain about Harvard University’s new sexual harassment policy. Some are siding with the professors who raise serious-sounding concerns about the lack of “due process” in the Harvard policy, drafted in rapid response to the Department of Education’s report calling out a number of campuses for woefully inadequate sexual misconduct policies.

It’s the sort of thing professors like to do because it makes them feel cool to be all contrarian to suggest that cracking down on the systematic mistreatment of women is somehow a bad thing. Throwing the veneer of “rights” in there makes it sound all highfalutin too. And there’s good reason to worry about due process generally. Over at Redline, Elie is super concerned about it. Elie has been duped.

But when you dig into the law professors’ letter, it’s really kind of offensively dumb…

This letter would be hilarious if it wasn’t so shameful. Actually, scratch that. This letter is still hilarious while being shameful. Sometimes you need to read between the lines to catch a peek at what motivates people, and then sometimes they put it right out there — just underneath something sanctimonious to disguise their intent. Let’s take it from the latter section of the letter, which, for the record, is longer than any other grievance raised in the letter:

Harvard has pursued a process in arriving at its new sexual harassment policy which violates its own finest traditions of academic freedom and faculty governance, including by the following:

■ Harvard apparently decided simply to defer to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger university community.

■ Harvard failed to engage a broad group of faculty from its different schools, including the law school, in the development of the new sexual harassment policy. And Harvard imposed its new sexual harassment policy on all the schools by fiat without any adequate opportunity for consultation by the relevant faculties.

■ Harvard undermined and effectively destroyed the individual schools’ traditional authority to decide discipline for their own students. The sexual harassment policy’s provision purporting to leave the schools with decision-making authority over discipline is negated by the university’s insistence that its Title IX compliance office’s report be totally binding with respect to fact findings and violation decisions.

You have got to be f**king kidding me. Law professors took to the press to say they’re butthurt that their bosses went ahead and made a policy without them. Take heart women! Harvard Law professors worry about you right up until it feels like a professional slight. They want the right to discipline their own students? Why in seven hells would a university let its departments cobble together their own patchwork of conduct standards? This isn’t like an attendance policy, this is about pervasive sexual misconduct. Have some perspective people.

Sponsored

Well, let’s also address the fig leaf of due process they use to cover their junk of institutional territorialism.

Elie makes some good points about due process:

The objections, posted in full on the Boston Globe, center on the lack of due process for those accused of sexual harassment. The professors point out that the policy does not provide the accused the ability to see the facts against them, face their accusers, or have counsel present during investigative proceedings. The letter reads: “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.”

It might be counter-intuitive, but a sexual harassment policy with strong process protections for the accused is an essential part of a policy that protects women and victims of harassment and assault. You can’t have one without the other.

Sure. That said, there’s nothing in the actual Harvard policy that suggests that any of this is true. There’s a confidentiality provision but there’s no suggestion that the school would pursue an adversarial proceeding without allowing the accused to confront the evidence against them. The confidentiality provision allows the school to gather information and take vaguely defined remedial actions but there’s nothing at all to suggest they are kicking kids out of school via Star Chamber. It should probably be more clear, but that’s not fodder for an op-ed unless your goal is publicity-seeking hackery.

And what, exactly, is the ideal procedure according to these Harvard Law professors? Oh, nothing. They implicitly seem to be defending the old process of ad hoc commissions of their own faculty over a standardized procedure run by professionals and calling that “fair.” That’s laughable. Elie fears the policy will lead to inconsistent prosecution. I think a standardized practice employing a preponderance of the evidence standard is way more protection than anything these professors are defending.

Sponsored

They also complain that the definition of sexual harassment goes beyond that mandated by Title IX. The professors don’t go into specifics because they don’t really have any. Title IX defines harassment as “any unwelcome conduct of a sexual nature” and this is to be interpreted broadly. The Harvard policy outlines a bunch of specific instances that would fall under this broad interpretation. Not so much beyond Title IX unless you contest the interpretation of Title IX, which is fair, but that’s not the fight on the table.

Elie also takes aim at some of this, I guess, straw woman:

Take, for instance, the maddeningly nebulous prohibition against “lewd or sexually suggestive comments, jokes, innuendoes, or gestures.” Let’s ignore for a second the issue of how one person’s “lewd” joke is another person’s “joke” joke, and that depending on the context, “let me buy you breakfast” can be an offer to continue a discussion or a creepy statement from a dirty old man.

Jesus that’s lazy. Look, I make lots of inappropriate jokes. Kind of my thing. But I’m cognizant of where I think the line is, and I’m sensitive to the fact that my line may not be right for everyone. I’m not offended if someone tells me I’ve gone too far. Frankly it would be kind of a dick move if I were. I also don’t think the highest freedom on the frigging planet is the ability to say “that’s what she said” at will.

It’s also doubly again sexist because the crux of the sentiment is that women are too stupid to distinguish humor from statements designed consciously or subconsciously to create a hostile environment and that’s going to spoil the foundation of Western society. I thought we dealt with this when we had a conversation over how to make funny rape jokes. There’s a whole lot more to this policy than “don’t tell jokes about sex” that a bunch of folks want to ignore so they can lob hyperbole about how sexual harassment laws are ridiculous. Like the whole “severe, persistent, and pervasive” part that qualifies ALL of the examples that people like Elie enjoy cherry picking.

There’s a reason we don’t see hundreds upon hundreds of cases against men for objectively innocent comments. It has something to do with women having the agency to recognize and fairly assess the s**t people say.

If the professors have serious concerns about how the policy will be applied, then write a pointed letter privately to the school about specific procedural issues. That would be prudent.

Don’t go grandstand in the paper with a vague rant.

Rethink Harvard’s sexual harassment policy [Boston Globe]
Everything Wrong With Your School’s Enhanced Sexual Harassment Policy​ [Redline]
Harvard Sexual Harassment Policy [Harvard University]