U.S. Department of Education Finds Harvard Law School To Be In Violation of Title IX

It may seem hard to believe – but even one of the most prestigious law schools in the country got mixed in the U.S. Department of Education’s recent crackdown on campus sexual misconduct.

On Tuesday, December 30, 2014, the U.S. Department of Education’s Office of Civil Rights (“OCR”) sent a letter to Harvard Law School announcing its noncompliance with Title IX. The Department’s recent finding stems from a formal Title IX complaint that was filed with OCR in 2010 by Wendy Murphy, a professor at New England School of Law.

By way of brief background, Title IX is a federal law that requires institutions that receive federal funding to prevent, address and investigate incidents of sexual harassment and sexual assault. OCR enforces Title IX by investigating complaints and conducting compliance reviews. Anyone who believes that there has been a violation of Title IX may file a complaint with OCR against an institution. In other words, the person filing the OCR complaint need not be an alleged victim or accused student.

After a lengthy four-year investigation, OCR found that Harvard Law School failed to “comply with the Title IX requirements for the prompt and equitable response to complaints of sexual harassment and sexual assault.” The school improperly used a "clear and convincing" evidence standard when adjudicating sexual misconduct complaints instead of the federally suggested "preponderance of evidence" standard. Moreover, the school “did not appropriately respond to two student complaints of sexual assault.” In one case, "the Law School took over a year to make its final determination and the complainant was not allowed to participate in [an] extended appeal process, which ultimately resulted in the reversal of the initial decision to dismiss the accused student." In another case, the Law School failed to provide adequate interim measures to a complainant after she reported being sexually assaulted.

As a result of the violation, Harvard Law School entered into a resolution agreement with OCR that will seek to remedy its noncompliance with Title IX. Under the terms of the agreement, the Law School must:

• Revise all applicable sexual harassment policies and procedures to comply with Title IX and provide clear notice of which policy and procedure applies to Law School complaints;
• Educate both students and employees on what types of conduct constitute sexual misconduct and the school’s grievance procedures;
• Conduct “climate assessments”;
• Review all complaints filed in the past two years to determine if those investigations were conducted in line with Title IX;
• Provide training on sexual harassment and assault and Title IX compliance to all those involved in addressing and adjudicating claims of sexual misconduct;
• Notify complainants of their right to file a Title IX complaint with the Law School as well as to pursue the criminal process in cases of sexual assault or other sexual violence.

Following the announcement, Catherine Lhamon, the Department’s Assistant Secretary for Civil Rights praised Harvard Law School. "I am very pleased to bring to close one of our longest-running sexual violence investigations, and I congratulate Harvard Law School for now committing to comply with Title IX and immediately implement steps to provide a safe learning environment for its students," said Lhamon. However, as the letter addresses, Tuesday's finding and agreement are separate from OCR’s investigation into Harvard College, which is still ongoing at this time.

Harvard Law School was also quick to respond. “As the conversation about sexual assault at colleges and universities spread to campuses across the nation, Harvard recognized that, like many peer institutions around the country, we could and should do more” Harvard said in a statement on Tuesday. "This voluntary resolution agreement approves and enshrines many of the pro-active changes Harvard has made in recent years," the statement said, and in the coming months school officials "will continue the critical work of preventing sexual harassment and assault among our students, faculty and staff, and responding effectively when incidents do occur."

Harvard Law School is not the first, nor is it the last higher education institution to be placed in the national spotlight over its alleged mishandling of sexual harassment and sexual assault complaints. In fact, to date, nearly ninety institutions are currently under investigation by the U.S. Department of Education for allegedly mishandling complaints of sexual assault and sexual harassment in violation of Title IX. In light of this new era of Title IX enforcement by the federal government, we encourage schools to provide regular Title IX training to students, educators and all members of the campus community. Schools must comprehensively review their investigation procedures, sexual misconduct policies, and prevention techniques in order to ensure compliance with Title IX and the Department of Education’s heightened expectations.

Please note that this is a general overview of developments in the law and does not constitute legal advice. Nothing herein creates an attorney-client relationship between the sender and recipient.