Harvard will divide its sexual misconduct policies in two in response to the U.S. Department of Education’s new Title IX regulations — one interim policy to hew to the new federal guidelines, the other to address behavior they no longer span.
Given the limited timeframe within which Harvard had to develop a new policy — in addition to constraints presented by the coronavirus pandemic — the new policies represent “interim” measures Harvard intends to evaluate and modify over the next 12 months. Still, they represent the most significant change to campus sexual misconduct rules in years.
In an emailed statement announcing the shift Friday, University President Lawrence S. Bacow wrote that the school is "committed to fostering a safe environment” where affiliates can achieve “their best work.”
“Despite changes we have been compelled to make by the DOE, the University will go beyond the minimum requirements stipulated by the new regulations and continue to address the same level of conduct that was addressed under our prior policy,” he wrote.
Secretary of Education Betsy DeVos passed her new, controversial Title IX rule in early May. At the time, the Department of Education informed universities that they had until August 14 to update their policies to comply with federal law.
Harvard’s response includes both an “Interim Title IX Sexual Harassment Policy” and an “Interim Other Sexual Misconduct Policy.”
The first is designed to comply with DeVos's changes. Under the new interim policy, Harvard will implement a grievance process — including a live hearing and witness cross-examination — through which formal Title IX complaints will be investigated.
In previous years, Harvard has used a single-investigator model to investigate Title IX complaints. Now, the Office for Dispute Resolution’s initial investigation will proceed to a “hearing panel,” which will issue a report in each case after consulting with the disciplinary board of the relevant school. The hearing panel will be “composed of trained experts within the Harvard community and trained experts outside of the Harvard community.” Of each panel’s three members, two will come from a list of faculty and administrators, and the other from a list of external attorneys.
In an interview with the Harvard Gazette, a University-run publication, Harvard Title IX Officer Nicole M. Merhill said her office based the structure of the hearing on community feedback it has received since DeVos announced the proposed guidelines.
“What we heard from people is that it would be beneficial to have some internal individuals who are familiar with the culture and structures at Harvard, along with some external to Harvard,” she said. “Based on this input, Harvard will adopt a hybrid panel of two individuals from a list of trained administrators and faculty, and one person from a list of external attorneys.”
The panel will issue findings to the respondent’s school, which will determine sanctions accordingly if the group found violations of Harvard’s policy.
In addition to the grievance procedure requirement, DeVos’s new policy also restricts what kinds of sexual misconduct university Title IX departments may investigate. For instance, the new regulations classify complaints about sexual misconduct that took place in an off-campus setting without significant university control, such as a study abroad program, as “Title IX invalid” and prohibits university Title IX departments from investigating them.
Moreover, the regulations also define sexual harassment as conduct that is both “severe” and “pervasive,” rather than severe or pervasive.
In response to Harvard affiliates’ concerns that the federal policy neglects to fully protect students from all forms and in all circumstances of sexual harassment or assault, the University introduced a second Interim Other Sexual Misconduct Policy to “address misconduct that falls outside the jurisdiction of the Interim Title IX Sexual Harassment Policy.”
Under the Interim Other Sexual Misconduct Policy, if a formal complaint does not qualify for investigation under Title IX proceedings, the Office of Dispute Resolution will conduct an internal investigation. It will issue its findings directly to the relevant school, which can determine sanctions accordingly. This second process will enable the University to investigate off-campus sexual misconduct through its own channels, Merhill told the Gazette.
“Harvard remains committed to going beyond the minimum requirements stipulated by the new Title IX regulations and to addressing the same types of conduct we addressed prior to the DOE’s changes,” Merhill said.
Despite the major changes, federal authorities also gave universities some leeway.
Harvard said, for example, that it will continue to use a “preponderance of the evidence” standard in all its investigations of sexual misconduct, despite the Department of Education offering schools the option to adopt a “clear and convincing” standard which would raise the burden of proof.
Moreover, though the new federal Title IX regulations do not designate a wide range of university personnel as mandated reporters, the University’s interim policy will maintain Harvard’s pre-existing “responsible employee model,” which requires all staff and faculty members to report any instances of sexual misconduct of which they become aware.
—Staff writer Isabel L. Isselbacher can be reached at firstname.lastname@example.org. Follow her on Twitter @IsabelLarkin.