Harvard Assault Regulations About Inequality Before the Law

Despite objections from 28 law professors, Harvard University Law School is going to subject its students to a potentially misguided interpretation of Title IX's sexual assault rules in order to preserve its federal funding.

Sexual assault is a serious matter. That is why it is unfortunate that the U.S. Department of Education has pressured universities and colleges since 2011 to lower the standard of evidence for convicting people of sexual assault. Through a guidance letter, the prior standard of "clear and convincing" evidence is no longer required for conviction. Instead, schools must show "a preponderance of the evidence," a lower standard.

Professors at Harvard University Law School fought against the new regulations, which had already been adopted by the rest of the University. The 28 law professors wrote in October 2014 that "Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation. "

Among their concerns, the professors, including Alan Dershowitz, Charles Ogletree, and David Shapiro, listed the lack of opportunity for accused students to discover the facts, confront witnesses, and offer a defense. The professors thought it was inappropriate that one university office, the Title IX office, was responsible for investigation, prosecution, fact-finding, and review. Finally, they were worried that accused students would not have the means for legal representation to fight the charges, which could sully their records forever.

The professors concluded, "We recognize that large amounts of federal funding may ultimately be at stake. But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats. The issues at stake are vitally important to our students, faculties, and entire community."

But on December 30, the law school had to give in and adopt the University's new standards, based on the Education Department's 2011 letter, or risk the loss of federal funding. Harvard's sexual assault policy was coordinated by Title IX Officer Mia Karvonides, a lawyer who came from the Boston office of the U.S. Department of Education's Office for Civil Rights in 2013 to direct the university's compliance with the new rules.

The rationale for the Education Department guidance letter is a 2010 report by the Centers for Disease Control concluding that 18% of women have been raped at some time in their lives. Similarly, the White House stated in a January 2014 report, Rape and Sexual Assault: A Renewed Call to Action, that one in five women has been sexually assaulted while in college, an assertion frequently repeated by President Obama.

Even if true, these data would not justify stripping the accused of their rights. But the figures do not match data from the Department of Justice's Bureau of Justice Statistics, released in October 2013, which show rape/sexual assault rates of 1.3 per 1,000 people in 2012, both reported and unreported rapes. The Education Department assumes a crisis where none exists, and interferes in university affairs for no cause.

University of Michigan professor Mark Perry has effectively debunked the CDC number using actual number of reported sexual assaults on college campuses combined with the White House's underreporting percentage. He concludes that 3% to 5% of women will be sexually assaulted at college -too high, but not 20%.

Why the difference?

The CDC survey that originated the 20 percent number is flawed. The survey starts out with 201,881 phone numbers, but whittles it down to only 8 percent of the original sample. Fifty-three percent of the phone numbers are of "unknown eligibility," hence unused.

Further, it is the surveyors, rather than the respondents, who determine whether the respondent has been raped. In the CDC's own words, "the survey is designed to assess violence in a way that is consistent across states." In addition, some questions are ambiguous.

Nevertheless, the survey is a catalyst for harmful new government regulations which are being forced on universities using the threat of removing federal funding.

Harvard may have temporarily preserved federal aid, but the university has left itself open to legal liability from falsely accused students. They will not accept the university kangaroo courts, but will go to real courts of law where real evidence is required.

The Obama administration is interpreting Title IX to say that the justice system does not ensure fair outcomes, and that fairness is only achieved through its guidance letters. The administration wants to substitute an Education Department's mandated system that applies only on college campuses, whereas ordinary Americans, who are not in college, have the normal criminal justice system.

If one system is superior, then the other should be abolished. Why should some Americans have a better justice system than others? The obvious answer is that the court system is superior.

What the Education Department is really doing is creating jobs outside the rule of law for a new tier of university bureaucrats, such as Harvard's Mia Karvonides. Every university in America will be forced to hire a Mia Karvonides, to reinvent the wheel of what is commonly known as the American justice system.