Harvard University officials and dozens of its law professors are locked in a standoff over the university’s new sexual misconduct policy after the administration rejected their demands that the school retract it.

The administration said in a statement that it disagrees with the 28 members of the law school faculty who signed a statement this week condemning a policy that the scholars say lacks “the most basic elements of fairness and due process” protections for students accused by other students of rape or sexual assault.

Harvard law professor Elizabeth Bartholet, who directs the school’s Child Advocacy Program and was among those signed the letter, called the administration’s response to their concerns “unacceptable” in an interview with Law Blog on Thursday.

The quick back story: In response to a push from the Obama administration, Harvard this summer announced a new university-wide policy and set of procedures for dealing with student claims of sexual assaults and harassment. As part of the overhaul, the school also formed a centralized office to probe sexual and gender-based harassment complaints.

But swaths of the law school objected to the policy. Among their objections, the law professors said the policy fails to give the accused student “any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.” They also said it doesn’t “ensure adequate representation for the accused” and puts in place “starkly one-sided” rules governing sexual conduct between students who are impaired or incapacitated.

The wider law school faculty is meeting this afternoon to discuss the concerns raised in the letter, according to law professors.

In response, Harvard’s administration defended the policy in a statement, saying it created a neutral and fair process for investigating sexual misconduct cases. “The University is confident that the policy and procedures meet their promise of a thoughtful, fair and consistent approach to these profoundly complex and sensitive situations,” the statement said.

It noted that Harvard has set up a committee made up of faculty, staff and students to consider whether to adjust the policy in the future.

A spokesperson for Harvard did not immediately respond to a request for comment.

“Something needs to happen now. The law school should not be in the position of having to discipline students based on procedures that we consider fundamentally unfair,” said Ms. Bartholet.

“We find it amazing that they were so oblivious to basic due process,” Martha Field, a Harvard constitutional scholar, told Law Blog. “What they would like to do is nothing, and I’m sure they prefer that we didn’t publicly voice these sentiments.”

The tensions between faculty and the administration heightened Wednesday after the Boston Globe published a statement signed by 28 law professors condemning the new policy as “inconsistent with many of the most basic principles we teach.”

The overhaul of its sexual misconduct policies announced by Harvard president Drew Faust came weeks after the federal government said Harvard and dozens of universities and colleges were under investigation for their handling of sexual violence or harassment complaints.

The probe of possible violations of Title IX, the federal gender-equity law, is part of a broader push by the Obama administration to press schools to take more aggressive steps to prevent and investigate sexual assaults on campuses. 

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

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