A Need for “Real Recourse”

A key sticking point in negotiations between Harvard Graduate Student Union-United Auto Workers and Harvard administrators has been the union’s demand for what it calls “real recourse” — a third-party grievance procedure through which allegations of discrimination, harassment, and intimidation can be arbitrated impartially. While the union recently conceded their demand for an entirely third-party arbitration process, this concession is far from a vindication of Harvard’s current, internally-controlled procedures. HGSU-UAW is still demanding significant involvement of third-party individuals and assistance with legal support for students within the University’s Title IX process.

But student workers are not the only critics of Harvard’s existing internal system for investigating such allegations. As faculty, we agree that Harvard’s existing Title IX mechanisms and resources for addressing sex- and gender-based misconduct do not ensure the safety and well-being of its members. Rather, they pose serious problems for governance and redress.

Title IX stipulates that all Harvard employees are mandatory reporters who must refer sex- and gender-based misconduct allegations to a Title IX coordinator. The mandate removes discretionary power from departments and individual faculty, and concentrates authority to mediate and investigate misconduct at higher levels of the University. As such, Title IX introduces a fundamental conflict between being accountable to an institutional level above the department and the departmental commitment to cultivating forms of mutuality and accountability that are key to forging a moral community.

The process of managing complaints amplifies this conflict. Title IX is not a confidential resource. Its officers share information on a “need to know” basis but because very few, if any, faculty are made aware of allegations and complaints, they cannot take action as members of departmental communities to identify and address problems. Moreover, the lack of clarity around institutional rules for permissible speech about misconduct fosters a climate where departmental members are encouraged to choose silence and respect for privacy over active engagement in the interest of mutual accountability. This allows for the spread of hurt and suspicion within departments and undercuts the ability of faculty to share necessary information and act to limit the potential for future harm.

The extant Title IX mechanisms also fail to ensure proper redress for survivors of discrimination and harassment. First, when an allegation is made, the burden of investigation falls on one or two individuals within the Office for Dispute Resolution, which prolongs the process unreasonably and leaves hugely consequential decisions to the discretion of too few. Second, participants in ODR investigations are expected to devote an inordinate amount of time to the process. A participant may spend over a hundred hours, sit through numerous days of interviews, and write hundreds of pages over the course of many months to see a complaint through. The impact of this protracted process on training and scholarship can be severe. Third, the ODR process lacks opportunities for participants to educate themselves. The secrecy of proceedings makes it impossible for participants to understand what is entailed in participating in an ODR investigation and impossible for other members of the University to assess whether ODR is applying rules and standards of evidence consistently.

Perhaps the only way to navigate the process knowledgeably is with legal assistance. Yet ODR investigations do not grant complainants or respondents free legal counsel. In instances where the complainant is a student and the accused is a faculty member who has secured legal counsel, the ODR process exacerbates an already existing difference in institutional power and status. Moreover, existing pro bono legal resources are severely overstretched and do not apply to most of the cases handled by ODR.

On the matter of overstretched resources, the existing and documented difficulty of accessing mental health services on campus in a timely manner has been compounded by the turnover and shrinkage of staff in the Office of Sexual Assault Prevention and Response, followed by its absorption into the Office of Gender Equity — even as it is well known that the effects of misconduct can be severe for those who have first and second-hand experiences with the behavior in question or even for those who have experienced sexual harassment in the past.

And, finally, there is the issue of neutrality. Complaints submitted to Title IX are sent to ODR for investigation. ODR is staffed by University employees and its findings can be reached in consultation with Harvard’s Office of General Counsel. ODR submits its findings to the appropriate dean who decides on remedial measures. An internal process conducted by University employees can favor protecting the institution from legal liability over a just outcome.

We, on behalf of the signatories of the faculty statement in support of “real recourse,” find these to be insurmountable challenges of the current system and support HGSU's call for a process that is more expedient, transparent, equitable, and independent.

Ajantha Subramanian is Chair of the Anthropology Department and Professor of Anthropology and South Asian Studies. Kirsten A. Weld is a Professor of History. Vijay Iyer is a Professor of Music and African and African American Studies.

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