Since August of last year, the Department of Education's Office for Civil Rights (OCR) has been investigating Harvard because of its new rule requiring sexual assault victims on campus to produce "sufficient independent corroboration" as a prerequisite to a full investigation and adjudicatory resolution of their claims. Since the inception of OCR's investigation, Harvard has substantially revised its policy. When revisions were complete, OCR issued its ruling finding no violation of Title IX and "closing the case" on April 1, 2003.
By "closing the case" and concluding after the revisions were completed that the current iteration of the policy did not constitute a violation of Title IX, OCR did not rule that Harvard's policy was lawful when first enacted. To the contrary. The best way to assess the significance of OCR's final ruling is to compare and contrast the policy as it was first enacted in May of 2002 to the current policy.
The new rule generated a great deal of controversy when it was announced in the spring of 2002. Hundreds of students protested not only the new policy but the covert manner by which the policy was enacted because the faculty was asked to approve the new rule without being told what they were voting for.
When Harvard insisted despite the protests that it was appropriate to require campus rape victims to produce "sufficient independent corroboration" as a prerequisite to a full investigation and adjudicatory resolution of their claims, students filed a formal complaint with OCR in June 2002. The complaint was accepted for formal investigation in August 2002 on the students' request that OCR decide the narrow issue whether the "corroboration" rule violates Title IX's requirement that student rape victims have access to "prompt and equitable" grievance procedures.
Since the initiation of its formal investigation, Harvard has had a lot of time to clarify and modify the rule. Harvard has not only changed the meaning of "corroboration" but has developed new educational and support programs for students.
These are the specific ways in which Harvard's policy has "evolved" during OCR's investigation:
1-Instead of "sufficient independent corroboration," Harvard now states they require only a list of "supporting information." The elimination of the word "independent" is important because it means a student can "self-support" her claim by, for example, telling a friend she was raped. The elimination of the word "sufficient" is also important because it means no person at Harvard has discretion to weigh or determine whether the "supporting information" rises to a level "worthy" of Harvard's adjudicatory resources. It is important to note that the change in the language evolved from "sufficient independent corroboration" in June 2002, to "corroborating information" in September 2002 and finally to "supporting information" later in the fall of 2002. This suggests that OCR would not accept the use of the word "corroboration" in the title of the standard and that "supporting information" need not necessarily rise to the level of "corroborative" evidence.
2-The original policy proposed that if a student victim could produce NO supporting information, Harvard could decline to take any steps to respond to the complaint - including refusing to require even that the accused student submit a response.
The new policy provides that Harvard must, at a minimum, obtain a written responsive statement from the accused student. This is the case even if the victim produces absolutely nothing but her word and even if a long time has passed since the incident.
3-The original policy proposed that if a student victim produced insufficient "independent" corroborating information, the administration could exercise basically unchecked discretion not to forward the complaint to the Ad Board.
The new policy provides that after the accused student submits a statement, the entire matter must be provided to the full Adjudicatory Board for their review and for placement in their files. The Ad Board's role as a repository of all sexual assault complaints, irrespective of "supportive information," helps to ensure that the magnitude of the problem as well as the identities of repeat offenders will be identified, and that compliance with the Clery Act will not be affected. Simply put, there is no longer a concern that Harvard can decline to report publicly the true number of sexual assaults under the Campus Reporting Act - because all complaints must be disclosed and counted regardless of the availability of "supporting information."
4-The original policy was announced by Harvard as applying only to sexual assault and sexual assault-based discrimination cases. This placed a disproportionately unjust burden on women suffering a gender-based form of violence by subjecting them to a higher degree of scrutiny than that which was imposed on other "types" of students.
Harvard recently announced that, under its revised policy, students reporting any form of discrimination, based on race, ethnicity, sexual orientation, religion, etc., - are all subject to the same requirement of "supporting information."
5-The original policy made no mention of the need to educate Harvard’s Ad Board on the nature of sexual assault, the proper approach to investigations, etc.
Harvard has since created the "Leaning Committee," headed by Professor Jennifer Leaning, which is focused on education and related issues around campus sexual assault policies. Harvard also hired Susan Marine as a source of education, counseling and programming information regarding student services, etc.
While it is problematic that there is no formal approach to providing students with legal advocacy, students are working together to form their own resource groups to ensure the availability of zealous "legal advocacy" for victims.
Harvard retains the authority to refuse to conduct a "full investigation" and adjudicatory hearing of claims based on the word, alone, of a student reporting rape or discrimination based on race, sexual orientation, religion, etc. This is also problematic because although the standard of "sufficient independent corroboration" has been substantially watered-down, no amount of "supporting information" should be required of any student before a full investigation and Ad Board hearing will be initiated in response to a claim of sexual assault or any other from of harassment or discrimination on campus. This unfortunate reality should inspire students to work closely with one another to carefully monitor the implementation of this revised rule. Ironically, if Harvard had rescinded the policy outright, students might have been less motivated to organize, build coalitions and join forces to stand watch as this newly revised policy takes form in practice.
Students can and should create their own data-gathering services, conduct their own annual surveys and create their own "annual reports" of discrimination and harassment on campus. In this way, students can help to ensure not only that the public will receive honest information about the problems and risks students face at particular institutions, but that the administration is truly respectful of the constitutionally guaranteed right of all students to an equal educational opportunity.
Copyright 2003 Wendy Murphy, Used With Permission.
