‘We are a law school.’ Harvard Memo Reveals Turning Point in Battle to Restore Campus Fairness.
SAVE
May 13, 2021
On April 4, 2011 the Department of Education issued its notorious Dear Colleague Letter on sexual violence. Within months, SAVE wrote the Department urging that the unlawful policy be withdrawn. Following intense public criticism and numerous lawsuits against universities, on September 22, 2017 the Office for Civil Rights announced its withdrawal of the 2011 Dear Colleague Letter and its 2014 Questions and Answers on Title IX and Sexual Violence.
One of the most important milestones in the six-year quest for campus justice was a Statement signed by 28 faculty members at Harvard Law School (HLS). The faculty members wrote “to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school.”
But how did this Statement come to pass? On September 10, 2014, faculty member Richard Parker circulated an internal memo that began with the words, “We are a law school.” The memo outlines six constitutional values that are threatened by draconian campus policies:
- Procedural Due Process
- Equal Protection / Gender Discrimination
- Confrontation
- Coerced Self-Incrimination
- Free Speech
- Academic Freedom / Free Association
A month later, the Harvard Statement was published. And the rest is history.
Professor Parker’s entire memo is reprinted with permission, below.
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September 10, 2014
To: The Faculty
From: Richard Parker
We are a law school. As an institution, we have a long and deep tradition of both integrity and embarrassment. Our moments of collective integrity have come when we have thought and acted as a law school.
When our committee says that the Interim Sexual Harassment Policy and Procedures “meet legal requirements,” we know it’s never so simple. Where, in the committee’s report, is the grappling with ambiguity and argument that is the essence of doing law — and that we demand of our students? Is there no tension among “legal requirements”? Where is discussion of constitutional “requirements” or values?
When the dean says, “the discretionary ‘space’ for revisions is narrow,” we know enough, as law teachers, to be … respectfully skeptical.
Once again, we are indebted to Betsy and Janet and Phil for waking us up. For now, I won’t address the proposal of a disruption of our longstanding institutional processes – our small-c “constitutional” understanding of our responsibilities. Nor will I address the departures of the “policy” from the Supreme Court’s reading of Title IX. Instead, I’ll focus on big-C Constitutional values and requirements. And I won’t discuss them in depth. My aim is just to flag some issues and encourage you to engage, on your own as lawyers, with the legal rat king we face.
I’ll conclude with a few thoughts on the part we now ought to play as a law school — the only one at Harvard University.
SIX CONSTITUTIONAL VALUES
[1] Procedural Due Process
Wikipedia entry on Kangaroo Court: “A kangaroo court is a judicial tribunal or assembly that blatantly disregards recognized standards of law or justice, and often carries little or no official standing in the territory within which it resides. Merriam-Webster defines it as ‘a mock court in which the principles of law and justice are disregarded or perverted’.”
The Supreme Court tends to determine the process that is “due” along a sliding scale. It weighs administrative interests and the interests of one party against whatever is at stake for the other party along with our traditions of “law and justice.” Sometimes those traditions short circuit the weighing of interests [see Fuentes v. Shevin], but most often it is the interests of the “defendant”, so to speak, that focus the analysis. [see Goldberg v. Kelly] In the context of a SH proceeding, those interests are huge – so huge as to amount to a constitutionally protected “liberty” interest. [See Board of Regents v. Roth]
Please compare the procedures required in Goldberg – what were at stake were welfare benefits — with the proposed SH procedures:
The Court insisted on procedures with “ancient roots.” It emphasized the right to “an effective opportunity to defend.” That required, inter alia, notice of the “evidence” against one, especially vital when “credibility or veracity are at issue”; oral participation in a hearing before the decision-maker; cross-examination of witnesses [see below]; an “impartial decision-maker” – who must not have participated in making a prior determination in the case.
On every one of those counts the proposed procedures are either utterly ambiguous or fall short.
Of course, the SH “complainant” also has weighty interests at stake, and they may cut, to some extent, against certain traditional protections for the “respondent.” I’m not saying the resolution of this issue is a slam dunk. But if you think carefully about each point, I believe you’ll conclude that, on any fair balance, removed just a notch from the politics of the moment, the proposed procedures amount to a disappointing denial of due process of law
[2] Equal Protection/ Gender Discrimination
The SH policy and procedures are gender-neutral on their face. But their probable effect and the proclaimed purpose behind them are not. Hence, they discriminate by gender and must be subjected to “exacting” scrutiny under long-established Equal Protection norms. [See Personnel Administrator v. Feeney] It is no less well established that gender discrimination “against” men must be subjected to no less “exacting” scrutiny than gender-discrimination “against” women. [See Craig v. Boren]
To assess the gender discrimination worked by the proposed procedures before us, compare them with [a] those followed by other institutions in comparable contexts and [b] those followed by HLS in comparable contexts [eg, plagiarism] and in similar contexts in the past. And, most important, compare [c] the procedural opportunities provided “complainants” with those provided “respondents”.
Among the provisions to be evaluated in this light should be the lower standard of proof, the “complainant’s” opportunity to remain anonymous, the truncated role of the Ad Board and the faculty, the limited opportunity for appeal and the stunning finality of the Final Report.
As we all know, the gender bias of the proposed procedures is justified as necessary to make up for a contrary gender bias embedded in our culture and practices – a sort of affirmative action argument, though having to do with the distribution of punishments rather than benefits.
That similarity and that difference ought to invite your further scrutiny.
[3] Confrontation
In the context of terminating welfare benefits, the Goldberg Court said of the opportunity to confront witnesses, especially one’s accuser: “While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.”
Under the proposed SH procedures, the “respondent” is denied any such opportunity! [Indeed, it’s possible that the “complainant” may remain anonymous!]`
Can it be that the Investigating Team, conducting individual
Interviews, is so reliable that we should dispense with this vital feature of adversary procedure? Will they be so effectively “trained” as to guarantee their reliability? And what does that mean? I had thought a faculty full of lawyers was “trained” in a relevant respect. Can we be sure that the special SH “training” of those to whom we’re being asked to give up most of our responsibility won’t be … ideologically biased?
Or is this extraordinary feature of the proposed procedures driven by an extraordinary claim: the weakness/victimization of “complainants”? Most of them? Do we really believe that of our female students? Could it justify potential ruination of our male students’ lives? Do we have no “space” to resist and revise that?
[4] Coerced Self-Incrimination
Under the proposed procedures, when the Investigative Team notifies the “respondent” of the allegations against him, he has a week to submit a written “response”. Then, the Team will “request” separate “individual interviews” with him and the “complainant” and possibly with witnesses. They will also “request” separate a “follow-up interviews” with both the principal parties. They will then make their findings of fact and law, giving the parties a week to respond to it in writing. Then, they complete their Final Report.
Because many [or most] cases will be “she said/he said” disputes, he’ll know that he is in dire peril if he declines the “request” to respond. If the Team has only the “she said”, and a refusal to offer any ‘he said”, they probably will — the proposed procedures include no equivalent of the Griffin safeguards — count the latter against him. He will feel under terrific pressure — time pressure added to the prospect of punishment up to expulsion — to provide some “he said”… which may wind up dooming him, at least, to those very punishments. Long ago, in a situation involving discharge from office, the Supreme Court held that this kind of pressure, outside the criminal process, amounts to “coercion”. [See Garrity v. New Jersey]
This is, of course, the same kind coercion employed by Joe McCarthy and General Electric to force GE workers to speak in the 1950’s.
The proposed SH procedures do touch on the possibility of formal “incrimination” resulting from such “coercion”. The Final Report and/or evidence gathered by the Team may very well find its way to a DA. What the University’s proposed procedures say about this prospect is interesting.
Twice, the University says that [a] “when the allegations, if true, might constitute criminal conduct [b] the respondent “is hereby advised to seek legal counsel before making written or oral statements”. The key words are “might” and “hereby.” The latter makes it clear that the “trained’ Officers and Investigators will not offer him – he is as much our student as she is – any such advice. [Why not?] And that makes it clear that he — especially during the week that he has to respond after first receiving the allegation – will be at sea and quite probably unable to figure out the former and lack time to find counsel anyway.
There is one other relevant provision. There, the University says that, if an allegation “includes behavior or actions that are under review by law-enforcement authorities,” the Team may go ahead and impose “interim measures” [eg, suspension] but will “assess and reassess the timing” of its investigation “so that it does not compromise the criminal investigation.” Is this reassuring, from our lawyer’s point of view? The key word may be “are.” Isn’t the real problem that the Team’s interviews and Final Report may play into – and distort — a later criminal investigation? Why is nothing said about that?
[5] Free Speech
The University’s definition of “sexual harassment” includes “verbal” and “graphic” conduct “of a sexual nature” that is “unwelcome” – which it defines, inter alia, as “undesirable or offensive”. [It need not be “persistent or pervasive” creating a “hostile environment”. That goes beyond the reach of Title VII. Is there precedent for it? ]
Anyone who knows anything about First Amendment law knows that this text flies flagrantly in the face of established general free speech norms.
It must be that the University hopes to operate in a special “domain” where such norms may be overridden. [See Post, Citizens Divided] But the extent of the overriding cannot be unlimited. It must, presumably, be tailored to good reasons for setting up the special “domain” in the first place. And those who “manage” it should exercise wise “discretion” in deciding how far to go in suppressing speech.
How different, in relevant respect, is a college setting from a high school setting – and a graduate school from a college setting? What sorts and degrees of harassment have been common [how common?] in each type of school? In the whole USA? In each individual school? To what degree, for instance, has “unwelcome” verbal conduct, absent a hostile environment, been a problem?
Did the University drafters care? Our law school committee?
Our committee does offer a sort of proviso. “The policies and procedures,” it says, “uphold traditions of … uncensored debate on matters of public concern. They effect no compromise of freedom of thought, inquiry, or debate. Rather, they seek to ensure an environment in which education [etc] … are not corrupted by sexual and gender based harassment. Nothing in them shall be construed to abridge … principles of free speech’.
What will that be taken to mean? Its contrast – particularly, the contrast of the fourth sentence — with the definition of [non-environmental] “verbal harassment” is stark, to put it politely. Most probably, it will simply put off debate to each individual case. Is that the best we can do? … Oh, I forgot that since the Team’s Final Report is Final, we, the faculty, will not be allowed to engage in such debate …
How different is all this from the old “speech codes” which bit the dust under “principles of free speech”? [See also RAV v. St. Paul]
[6] Academic Freedom/Free Association
Several colleagues signed a brief arguing that the Solomon Amendment – pressuring us to allow military recruiters on our campus – violated principles of free association and academic freedom. Their argument failed. [It was, I believe, extremely weak since the Amendment’s impact on those values was too small.] [See Rumsfeld v. FAIR] We should look forward to hearing from those colleagues now.
Later, I’ll touch [below] on the government’s “conscription” of private schools of higher education to adopt and administer prescribed policies and procedures. This intrusion is plainly far broader and far deeper than any effected by the Solomon Amendment.
What’s more: enforcement of OCR’s directives will involve official investigations of these schools – like the one now targeting HLS. The investigations, in turn, will scoop up emails and memos by and to faculty members – like this one! – debating general matters, taking positions that may be unpopular, even “incorrect.” Thus they will invade “the intellectual life of a university” and do “grave harm”. [See Sweezy v. New Hampshire]
Again, our committee applies its wan proviso to “academic freedom.” [See above]
CONSTITUTIONAL REQUIREMENTS?
So far, I’ve addressed constitutional “values” – which should carry great weight in a law faculty. Now: Is HLS, as a private school, subject to constitutional “requirements” vindicating those “values”?
Throughout the country, male students at private universities – most recently, Brandeis — are filing lawsuits challenging SH policies and procedures on grounds, inter alia, of gender discrimination and denial of due process. More and more and more are on the way – coming our way.
I’ve been asked: Where is the “state [ie, federal government] action”? In my view, this is no problem.
Since the 1970’s, “state action” issues have tended to break into three parts. [a] Who “initiated” the “action” in question? Typically, it has been a private party – which sets up the issue of how to tie it to the state. But in this case it is the federal government itself that initiated the SH policy and procedures!
[b] How “specifically” has governmental power been used to effectuate the challenged aspects of the “action” in question? Has government participation been “focused” specifically on those aspects? In our case, the government has indeed specifically prescribed many of the features of the SH policies and procedures [eg, the preponderance standard] that are being challenged. To be sure, the University and HLS seem to want to add further features which are probably unconstitutional. But they have simply been elaborating on federal instructions. As quiet collaborators?
[c] … Or in fear of threatened federal penalties? This goes to the third issue: how much governmental power – intruding into the private institution – has been applied? In Harvard’s case, the threatened penalties are massive. And the federal intrusion is astonishing – to borrow a term from the law of federalism, the government proposes to “commandeer” not just the internal policymaking process, but also the internal disciplinary process, of private colleges and universities.
[In April 2014, Justice Kennedy’s plurality opinion in Schuette interpreted past “state action” decisions even more broadly – so that governmental “encouragement” or “authorization”, rather than enforcement,” may suffice.]
Try to imagine a more blatant instance of “state action” than the one before us …
The upshot: We will be sued. We probably will lose. [Our SH procedures and policies will go the way of the “speech codes” of yesteryear.] We deserve to lose. Much worse, we are actually inviting this constitutional condemnation!
WHAT PART SHOULD HLS NOW PLAY?
Resistance.
Harvard Law School’s history is full of stories of resistance –resistance by faculty members to the “authorities” in the name of legal values, often values of civil liberty. Some are about challenges to the dean. Think of Frankfurter and Pound. Or Byse and Griswold. As often, the stories – the ones that last – are about challenges to the University governing boards and President. Think of Frankfurter or Chaffee or Howe or Dershowitz. “The Trial at the Harvard Club.”
My point doesn’t have to do with the details or even the truth of the stories. Instead, it has to do with their staying power, their power to make many faculty members and alumni a bit proud to be associated with the School. These are the stories we are likely to tell when recruiting new students – not the ones about our passivity, our helpful rule-following. Not the ones where we act as obedient “employees” of the Central Administration rather than tenured “officers” of the University. Not the ones where we abandon our tradition of institutional autonomy. And not the ones where we show we don’t take seriously – because we don’t act on – the values we pretend to take seriously in our classes.
There is one story in particular that we might profit from now. It has to do with a concerted effort by the federal government to reach inside colleges and universities in order to correct a pathology believed to fester there. It was an effort that involved conscription of Harvard University officials, who then commandeered its processes and pressured the schools to fall in line.
It was, of course, in the early 1950’s. The pathology was the supposed “communist infiltration of education.” Instead of the Education Department, it was the FBI that was the point of the federal spear. The officials conscripted included both President Pusey and McGeorge Bundy, dean of the college. The appointments process was commandeered, going so far as to throw out lowly lecturers. [See Sigmund Diamond, Compromised Campus] The intrusion extended into the Law School – resulting, most notoriously, in the removal from the law review of a student who said he’d refuse to answer certain questions about his political activity.
The dean was Erwin Griswold. His actual behavior in the circumstance is not entirely clear. In fact, it appears that in the law review affair he played the good soldier. But shortly thereafter he went to Worcester and gave the first of a series of 1954 speeches explaining and justifying the exercise of rights under the Fifth Amendment. In 1955, he published them as The Fifth Amendment Today. It made his national reputation. Google him: he became a man of “courage,” “a champion of individual liberty.” Upon his death, HLS issued a statement recalling him as “a foe of McCarthyism”. [Print the legend.] Imagine if he had done more!
My point, again, isn’t to equate the SH policy and procedures with McCarthyism. It is, instead, to speak to our sense of self-respect, our integrity as a law school.
If you agree with some of what we critics have to say about the proposed SH policy and procedures, please be aware that we can resist. We ought to.