The increasingly contentious debate about the proper response to sexual assault on college campuses took a new turn on Oct. 15, when The Boston Globe ran an op-ed signed by twenty-eight current and retired Harvard Law School professors expressing “strong objections” to the school’s new Sexual Harassment Policy and Procedures. The sharply worded statement not only slammed the university administration for forcing the policy on all of Harvard’s schools without adequate discussion but also charged that the new procedures for handling complaints of sexual misconduct “lack the most basic elements of fairness and due process [and] are overwhelmingly stacked against the accused.” It even went so far as to urge Harvard to defy federal guidelines on addressing such complaints and “stand up for principle in the face of funding threats.” This is the latest, and biggest, volley in a mounting revolt against the overreach of government-led initiatives to curb campus rape—coming from unusual suspects.I do not believe that universities will drop this regulation without a battle royal; the sheer number (over 800 colleges) makes that an impossibility. But impressive and famous names have joined the fight, and with "a spike in lawsuits against colleges by male defendants in sexual misconduct cases claiming they were denied due process", the obvious injustice of the rules becomes increasingly difficult to defend.
Thus, the Harvard signatories include not only noted criminal defense attorney Alan Dershowitz, who has long been viewed as right of center in the culture wars, but preeminent African-American law professor and Barack Obama’s mentor Charles Ogletree and several renowned female jurists such as veteran civil rights attorney Nancy Gertner, constitutional scholar Martha Field, and feminist legal theorist Janet Halley. This protest is not easy to dismiss as a right-wing anti-woman backlash.
Postscript: I didn't initially want to write about this Feministing piece by Alexandra Brodsky, which I treated a week ago. Some additional thoughts in light of this event:
Brodsky glibly moves the goalposts from "due process" to "fair process", a shabby misuse of the words. She smirks about opponents who decry "student-survivors" (her loaded term) that "obviously [want] rigged disciplinary hearings that don’t give respondents a chance to stand up for themselves." How can Yale Law student Brodsky really not know, as the "Harvard 28" observed, that the system she lauds lacks adequate representation, discovery, and the creation of a parallel adjudication system that is investigator, judge, and jury? "It’s an easy, seductive political narrative, but it’s not true", she intones, as though we should simply ignore the realities increasingly uncovered by those who would be affected by these parallel and unfair traps.
If anyone — anyone — should be familiar with due process, it ought to be a law student, and yet this piece finds all manner of excuses to avoid such discussions. I do not know but suspect that Russlyn Ali's "Dear Colleague" letter was largely concocted in a policy echo chamber, wherein dissenting voices simply did not exist. As Brodsky is about to discover, it is one thing to propose among political friends, and quite another to get something past a legislature or the courts. She might have previously gotten away with shadow boxing straw men in moot court, but she cannot escape answering their arguments in broader forums.