August 7, 2019; Chronicle of Higher Education, “Chronicle Review”
The #MeToo movement has been entwined with controversy from the start. It has pushed into the light the enormous number of incidents of sexual abuse of women and girls that have been hidden in the shadows or brushed aside as part of the way things operate. The wave of cases and incidents now being recalled and reported by women is almost overwhelming. So is the anger. So is the backlash. And according to four Harvard law school professors, all female, so is the loss of due process in pursuing legal redress around cases of sexual abuse, particularly on college campuses.
These law professors consider themselves feminists and align with many of the goals and aims of the #MeToo movement. But their perspective on due process is winning applause from the Trump administration. This was not their intention, and it’s bringing no happiness to the rest of the movement.
NPQ has written extensively about the #MeToo phenomenon. The coverage has reflected the growing pain of women around the world and their desire to end the victimhood and secrecy associated with sexual assault and harassment and to bring a sense of justice to those who find themselves being assaulted and harassed. But for Jeannie Suk Gersen, a law professor at Harvard, and her sister professors, Elizabeth Bartholet, Janet Halley, and Nancy Gertner a different approach should have been taken.
Gersen claims feminist credentials, but also avows an equal commitment to the principles of due process, presumption of innocence, and the right to a fair hearing. It’s here that she comes into conflict with some of the key players in the #MeToo movement, who see these things as a roadblock to stopping and punishing sexual abusers.
This was most evident when the Obama administration issued its guidance for how colleges and universities should handle issues of alleged sexual harassment and abuse on campus. In the fall of 2011, the Department of Education’s Office of Civil Rights issued informal, nonbinding guidance on how to treat claims of sexual harassment and assault in what was referred to as the “Dear Colleague” letter. It was and is a part of Title IX.
Gersen was appalled by this process and its quick adoption by campuses across the country. In 2014, she and her three coauthors pointed out how unfair this system was to the accused. They were joined by 24 of their Harvard Law School colleagues in an open letter to the Boston Globe taking these “Dear Colleague” recommendations to task.
As the Chronicle of Higher Education details, in a statement called “Fairness for All Students Under Title IX,” written in 2017 and jointly authored with Halley, Bartholet, and Gertner, Gersen noted that at many colleges, investigators are trained to start by believing the complainant.
Many schools would “improperly house the functions of investigation and adjudication” in the same office, with “strong incentives” to keep the schools in the Office for Civil Rights’ “good graces.”
“Some schools,” they wrote, “allow appeals only on very narrow grounds such as new evidence or procedural error, providing no meaningful check on the initial decision-maker.” The evidentiary threshold required was the lowest one, the “preponderance of the evidence” standard, meaning anything greater than 50 percent certainty should yield a finding of wrongdoing.
When interviewed for the Chronicle, Professor Halley was asked if any university had asked a court to decide if this guidance was legally binding. She responded, “Every single court would have said, ‘You don’t have to do this.’” But no university wanted the bad press. “They would have been portrayed as protectors of rapists,” Halley said. So, colleges overhauled their Title IX procedures to comply with this guidance.
It should be noted that the “Dear Colleague” letter was accompanied by a veiled threat of withdrawal of all federal funds from universities that did not comply. In response, colleges hastily overhauled their Title IX investigative procedures, with new definitions that were, as Gersen and her colleagues put it in “Fairness for all Students,” “so broad as to put students engaged in behavior that is overwhelmingly common in the context of romantic relationships to be accused of sexual misconduct.”
Gersen, Halley, Bartholet, and Gertner designed an alternative set of Title IX procedures applicable only to Harvard Law students, and the Office for Civil Rights certified them as meeting the criteria laid out in the “Dear Colleague” letter. Students at Harvard Law School (and only Harvard Law School) who are accused of sexual misconduct receive legal representation and the opportunity to review the charges and evidence against them and question witnesses. What the four professors had hoped would be a model for the entire school and the nation was relegated to only the law school:
Now, however, some change is coming, and it is causing a lot of upset. Betsy DeVos, the current Secretary of Education has issued new guidelines that would seem to grant fair process to accused students. These new guidelines have been met with cries of outrage from the #MeToo movement, saying that the presumption of innocence for the accused puts too much burden on the already damaged accuser. What has been seen in the #MeToo movement is that it takes years before many women come forward with their accusations.
But in her assessment of these new guidelines, Gersen likes the commitment to due process, but criticizes how overboard they went in correcting the “Dear Colleague” letter. Overall, Gersen sees this move as a start of a conversation to negotiate the two principles: protection of women, and due process. These would need to be reconciled for the law to be just.
Gersen insists that her critique of domestic violence law, Title IX procedures, and #MeToo emerges from within feminism and in pursuit of its goals. She wants to strengthen the movement by protecting it from some of the dangerous temptations it courts. This is a difficult balance to strike in polarized times, but Gersen has always been acutely sensitive to the unintended consequences of good intentions.
Gersen further notes that had this come from any other administration, it would have been applauded as a move forward and a step toward greater fairness. But are we too angry to balance our need for real justice when it comes to sexual abuse with the right to due process?
This set of issues should sound a little familiar in the wake of the recent reexamination of the Central Park 5. In retrospect, the case, pursued by then-celebrated sex crimes prosecutor Linda Fairstein, is now seen as a miscarriage of justice, where at the time it was seen as a laudable prosecution of a type of crime against women that had been traditionally underprosecuted. As the New York Times recounts, “Until the convictions were overturned, Fairstein had been widely respected as a law enforcement pioneer. The Manhattan sex crimes unit was the first of its kind in the country, and Fairstein was made its chief in 1976, two years after its creation.”—Carole Levine