A Call to Arms

UPDATED: May 29, 2015, at 2:48 p.m.

Were it not for Harvard Law School professor Janet E. Halley, the national debate surrounding sexual assault on college campuses may well be in a markedly different place.

Last year, media and government attention to the issue surged as students across the country charged that their schools failed to support sexual assault victims and the federal government launched an unprecedented number of investigations into colleges’ compliance with anti-sex discrimination law Title IX.

Harvard was among them. On the heels of this increasing federal scrutiny and pressure from student activists, the University adopted a new policy and set of procedures that overhauled its approach to handling sexual harassment. Lauded as a newly centralized approach to addressing a controversial issue, the new framework rolled out in the fall and was set to govern all of Harvard’s schools with consistency for years to come.

If, that is, Halley and some of her colleagues at the Law School had not had something to say about it.

Halley’s reaction to Harvard’s new sexual misconduct policy was not just disapproval; to the legal and feminist scholar, the issue at hand was more than just disgruntling bureaucratic decision making. Harvard’s—and the government’s—approach to adjudicating campus sexual harassment, Halley believes, represented an inconsolable breach from the principles of due process and an alarming example of some feminist principles taken too far.

Her position on the contentious issue has its roots in her career as a scholar of both the law and of sexuality.

Halley believes in feminism, but throughout her career, she has pushed against orthodoxy and remained critical of what she sees as the consequences of some of its tenets. And now she is pushing against Harvard’s position on Title IX: Last fall, she took to the forefront of the Harvard Law School faculty’s charge to challenge the University’s approach to the issue, penning memos, conceiving open letters, and mobilizing her colleagues to take a public stance. That push has precipitated not only a change in conversation, but a major break from the vision of Harvard’s central administration.

Halley’s plunge into Harvard politics has changed a swirling campus and nationwide policy debate characterized by institutions of higher education struggling to keep up with increasingly demanding Title IX standards. Not without critics, she is vying not only for a change in policy at Harvard but also for a shift in conversation at the Law School, the University, and the country at large.

“When I read the University policy last July, I said to one of my colleagues at the Law School who works with me on these things, ‘You know we have to change the weather,’” Halley recalled.

In the 'Context of Feminism’

A California native, Halley’s engagement with feminism—a relationship that has characterized her academic career—began during her days as a student. She graduated summa cum laude with the second class of women from Princeton, earned her Ph.D. in English literature from the University of California at Los Angeles, and became a literature professor at Hamilton College around the time it went coeducational. During the integration of those two formerly all-male institutions, Halley said the “flourishing” feminist thought of the time played an important role in her experiences.

Over time, she said, she started to engage with her views on feminism critically and “regard feminism as an alternative, not as a religion,” and she would go on to explore this concept in her scholarship.

Halley described her beliefs in a recent phone interview succinctly: “I'm a leftist, and I'm a crit, but that means for me, hetereosexual men are just as important as lesbian feminists, and I don't care about one identity group more than another. I sympathize with the justice aspirations of all kinds of people,” Halley said.

Since leaving her post at Hamilton, attending Yale Law School, and teaching law at Stanford, where she advised sexual harassment complainants, Halley has maintained this often-times critical bent. A cursory glance at some of her scholarship—of her books, she is most proud of 2006’s “Split Decisions: How and Why To Take a Break From Feminism”—demonstrates her critical approach to the topic.

“She embraces the ways that feminism can sometimes conflict with itself, and she sees that as a strength and not a weakness,” said Rebecca N. Chapman, a third-year Harvard Law student who has taken class with Halley and served as her research assistant.

Today, the Title IX debate has pushed Halley to make what she calls a “shift” in her career to enter not only academic conversations on the topic but a concrete policy debate. To Halley, the debate about sexual assault on college campuses represents what she argues is too much of a focus on women as victims that advances “an image of women that really forgets the power that women have” while simultaneously failing to offer necessary protection for the accused. She is also concerned that the absence of what she considers proper due process would disproportionately hurt minorities involved in proceedings.

“It kind of continues her trajectory of pushing people who are engaged in feminist activism on the topic of sexual assault, and on the topic of sex and sexuality, to think hard about the consequences of their actions, and the consequences those actions might have on other people,” said Aziza Ahmed, an associate law professor at Northeastern who was previously a student of Halley’s.

Although much of Halley’s career has been marked by her willingness to take controversial stances on a range of issues, she generally shies from the limelight and sensationalism; ask her a question, and there is a long, measured pause before she answers. But when Harvard unveiled its new Title IX policy last year, she felt that she had no choice but to respond.

A portrait of Harvard Law School professor Janet E. Halley hangs in Wasserstein Hall next to images of other faculty members. By Alana M Steinberg

“I felt: this is right in my backyard. I’ve been working on this for years,” Halley said. “This is making all kinds of mistakes I’ve been writing about. I can’t just stand by—that would be discontinuous with the commitment I’ve made in my scholarship and teaching to just let this go by without making an objection.”

Her colleagues are not surprised.

“She is in the business of telling the truth about things that other people have an incentive either not to see or not to say,” said Jeannie C. Suk, a Law professor at Harvard who said she attended law school because of Halley’s work and was later her student. “More than anyone else that I have worked with, she has that ability to do it in a way where people will listen.”

Turning the Tide

While Halley says her campaign against Harvard’s Title IX policy and procedures is unusual for her, the movement to break from the University’s centralized sexual harassment policy, which she helped spearhead, is even more so.

A loud challenge to an unprecedented central University policymaking decision, Halley’s efforts are emblematic of the fervor with which many Law School professors oppose Harvard’s new Title IX approach and their genuine belief that it violates legal principles they consider fundamental. To Halley and her colleagues, when Harvard adopted the approach last year, something was going to have to change.

And according to many Law School professors, Halley’s efforts to effect this change were all but essential.

In September, Halley wrote a critical analysis of Harvard’s new framework, arguing that it was “defective on every known scale of equal procedural treatment of the parties and due process.” Halley sent her analysis to the entire Law School faculty and directly to some of Harvard’s top central administrators—University President Drew G. Faust, University General Counsel Robert W. Iuliano ’83, and University Title IX Officer Mia Karvonides—to begin a dialogue with Massachusetts Hall that would later involve the rest of the Law School faculty.

A collection of books—including her own—on topics including law, gender, and sexuality sit on Harvard Law School professor Janet Halley's desk. By Alana M Steinberg

According to Halley’s colleagues, that analysis was an important first step in mobilizing the Law School faculty to push for change. “I think that analysis just proved enormously important in terms of educating the entire Harvard Law School faculty,” said Elizabeth Bartholet, another Law School professor who worked with Halley and several colleagues to lead the effort to bring the issue to the faculty’s attention.

After Halley’s initial analysis, one of several on the policy that were ultimately circulated among the Law School faculty, a group of professors met with Harvard’s general counsel to discuss possible changes to the new policy and procedures. When that meeting proved unsuccessful in prompting immediate policy change, the professors decided to make their concerns public.

In October, a group of 28 Law School professors—including Halley, Suk, and Bartholet—published an open letter in The Boston Globe that sharply criticized Harvard’s Title IX approach, like Halley’s initial analysis, on the grounds that it was unfair to the accused; among other points, it argued that Harvard's central Title IX office, which both investigates complaints and determines whether or not policy violations have occurred, was not structurally impartial, and criticized the process's lack of an adversary hearing. It also charged that it failed to guarantee "adequate representation for the accused, particularly for students unable to afford representation" and that Harvard's definition of sexual harassment "goes significantly beyond Title IX and Title VII law."

According to Law School colleague and co-signatory Charles J. Ogletree, the idea for the letter originated with Halley.

Their efforts saw results. In wake of this widespread faculty pushback, Dean of the Law School Martha L. Minow appointed a committee to craft a set of Title IX procedures specific to the Law School. Halley, in conjunction with 19 other professors who signed the Globe letter, circulated a memo to the full faculty in November, lobbying for the Law School to break from Harvard’s centralized procedures.

By Alana M Steinberg

The committee ultimately proposed a set of procedures that closely resembled what Halley and her colleagues requested: It featured an independent adjudicatory body and attorneys guaranteed to both parties in a case, formally circumventing the central investigatory body that was then responsible for hearing complaints filed against all students at Harvard.

“The tide was going the other way, and people around the state and around the country wanted to make sure, following Title IX, that women could find the kind of support they needed at universities,” Ogletree said. “And the record around the country was not a very positive one. And so she was going against the grain when she took on this issue, and the reality is that she made the Harvard faculty think really hard about it.”

While Halley and her colleagues’ position has drawn praise from some law professors, it is not without its critics. Karvonides maintains that Harvard’s policy is neutral, and Colby Bruno, the senior legal counsel at the Victim Rights Law Center, argued that the Law professors’ position involves “a lot of confusion and a lot of overstepping from the criminal system into the civil system.”

Closer to home, Stephanie E. Davidson, who was president of the Harvard Women’s Law Association before graduating from the Law School in 2013, responded to the Globe letter alongside other alumni with an op-ed in The Crimson. Davidson argues that the professors’ stance is insensitive to the needs of sexual assault victims.

“We felt pretty betrayed by our former professors,” Davidson said.

Seeking a Paradigm Shift

With Harvard Law School’s new Title IX procedures in the implementation stage, Halley continues to call for what amounts to a paradigm shift in the way Harvard and the federal government approach Title IX compliance.

Halley maintains that she will not stop her push while her concerns about the sexual assault debate remain, and her continued involvement has taken her to the pages of the Harvard Law Review and other schools around the country to advance her argument. In February, Halley explored the adjudication of college sexual assault complaints, and again criticized Harvard’s Title IX office, in a piece in the Harvard Law Review.

She has also visited Roanoke College, the University of Chicago, and Hamilton College to discuss Title IX compliance; at Hamilton, she met with the College’s president and Title IX officials to help review their Title IX framework, according to Frank Anechiarico, a professor there. They may call her for future advice this summer as they revise the policy, Anechiarico said.

“She is definitely one of the top experts and perhaps the foremost leader of the pushback that’s been going on this past year against the sexual misconduct policies that have all been crafted in response” to the federal government’s recent Title IX guidance, said Gerald McDermott, a professor at Roanoke.

Back at Harvard, the debate about sexual assault continues. Although the federal government found Harvard Law School in violation of Title IX in December and is now working with the school on its new procedures, an investigation at the College is ongoing, and student activists there continue to seek more administrative support for victims. Halley and her colleagues, meanwhile, seek broader policy change as they continue conversations with administrators about the University’s Title IX approach.

By Alana M Steinberg

Although she declined to offer specifics in an interview last week, Halley alluded to possible change in the future. “There are lots of conversations going on about it now,” she said, “and I think they will be productive."

Halley envisions a new national landscape on the issue, in which a diverse group of people—“politically and generationally and in terms of their relationship to feminism”—think about the sexual assault debate critically.

“When that’s true all over the place, maybe one day I get to let this go,” she said.

—Staff writer Andrew M. Duehren can be reached at andy.duehren@thecrimson.com. Follow him on Twitter @aduehren.