Harvard Will Not Alter Its Sexual Assault Policies in Response to Yale

A Harvard administrator said the University does not intend to alter its sexual assault policies in response to Yale’s recent settlement over a complaint that alleged that Yale’s sexual misconduct grievance procedures violated Title IX.

In an agreement with the Department of Education’s Office for Civil Rights, Yale agreed to uphold its recent policy changes—including its adoption of the lower “preponderance of the evidence” standard, which requires the university to be at least 51 percent certain of an alleged perpetrator’s guilt before issuing a guilty verdict. The previous policy required a “clear preponderance of the evidence,” a more stringent burden of proof.

“We don’t have any plans to make changes but we are still looking at our policy and our practices,” Secretary of the Administrative Board John “Jay” L. Ellison wrote in an email. “Yale’s situation was different than ours but we can learn from them.”

Currently, Harvard employs different standards of evidence among its various schools. The Law School uses the more stringent “burden of proof” standard--which requires about 80 percent proof for a guilty verdict--while the Faculty of Arts and Sciences requires that the Administrative Board be “sufficiently persuaded” of an accused student’s responsibility for an alleged incident.

For the past two years, Harvard has been in the process of conducting an internal review of its sexual assault grievance procedures to ensure that it is compliant with the guidelines set forth in a “Dear Colleague” letter, which was released in April 2011 by the OCR.

Harvard Law School is also currently under investigation by the OCR for alleged violations of Title IX in its sexual misconduct grievance procedures. A spokesperson for the OCR said that federal officials do not have a timetable in place for resolving the complaint.

Yale’s settlement with the OCR was announced on June 15 after a fifteen-month investigation. The OCR’s probe of Yale was launched after 16 Yale students and alumni filed a complaint in March 2011 alleging that Yale had not responded “in a prompt and equitable” manner to correct a sexually hostile campus environment. The complaint came just months after a video of a group of Delta Kappa Epsilon fraternity members chanting “No means yes! Yes means anal!” during a pledge event on Yale’s Old Campus made national headlines.

During the OCR’s investigation, Yale moved to update its procedures, establishing the University Wide Committee on Sexual Misconduct last July—which was already in motion before the complaint—and naming a campus Title IX coordinator last November.

Although the OCR did not find Yale guilty of noncompliance with Title IX, Yale’s settlement stipulated that the University report to the OCR until the end of May 2014.

Wendy Murphy, the lawyer who filed the complaint against Harvard Law School in 2010, said she thinks that the OCR would be inconsistent if it did not require Harvard to make the same changes that Yale agreed to as part of its settlement agreement.

Murphy pointed to three changes made by Yale in advance of the settlement—its adoption of the “preponderance of the evidence” standard, its new standard for prompt resolution of complaints, and its new requirement to lay out clear timeframes about the duration of an investigation—as issues that are being explored in the investigation of Harvard Law School that is currently underway.

“It may not be mandatory binding legal precedent on all schools to have something happen to Yale, but it matters and schools should pay attention because it’s the writing on the wall,” said Murphy, who is a professor at the New England School of Law.

Still, Murphy said, the OCR’s hesitance to universally enforce mandates delivered in individual cases may allow Harvard to maintain its existing policies, at least for some time.

“OCR has never been clear that there’s real force in the rulings against other schools,” Murphy said. “Most schools—I’ll put Harvard in that list—think that they’re not necessarily required to abide by a ruling if it comes down against another school.”

This past spring, several of Harvard’s peer institutions—including the University of Pennsylvania and Cornell—made changes to their sexual assault policies that also sparked speculation that Harvard may be persuaded to follow suit.