In fall of 2011, Yale announced that it would adopt the lower standard after the Department of Education’s Office for Civil Rights launched a 15-month investigation of the university for alleged violations of Title IX.
Last June, Harvard’s Secretary of the Administrative Board John “Jay” L. Ellison said that Harvard did not have plans to change its sexual assault policies in response to Yale’s move.
When asked for comment on the Senate’s VAWA bill, a Harvard spokesperson revealed that the University has hired a Title IX coordinator to oversee compliance with the law across Harvard’s schools.
“We think we have some strong policies and processes in place at Harvard. That said, we are continually reviewing our practices and we are always open to refinements,” Faculty of Arts and Sciences spokesperson Jeff Neal wrote in an email. “Going forward, we are continuing to think hard about these issues, which we know are of such importance to students.”
UNDER PRESSURE
Although the current text of the VAWA bill would not require Harvard to change its standard of evidence, the University may still face pressure to change its procedures in compliance with Title IX of the Education Amendments of 1972, which requires schools receiving federal funding to implement sexual assault policies that promote “equal access” to education for women.
In April 2011, the Office for Civil Rights sent out a “Dear Colleague” letter to colleges and universities, recommending that schools that receive federal funding use the preponderance of the evidence standard in their grievance procedures in order to remain in compliance with Title IX.
But the letter—which the Department of Education calls a “significant guidance document”—is neither a regulation nor a mandate which schools are legally required to follow. Still, schools that refuse to adopt the new standards risk a formal investigation of Title IX compliance by the Office for Civil Rights, which could result in the loss of federal funding.
S. Daniel Carter, a campus safety advocate who helped lobby for the Campus SaVE Act, said that the Senate’s VAWA bill “neither affirms nor undermines” the preponderance of the evidence standard as promoted by the Office for Civil Rights.
“We do not believe that the VAWA reauthorization is structured in a way that will undermine Title IX,” said Carter, who works for the VTV Family Outreach Foundation, a nonprofit group that pushed for the revised version of the act.
Carter added that the “substantive essence” of the bill remained intact, even though the preponderance of evidence clause had been removed.
But Wendy Murphy, a law professor at the New England School of Law who filed a 2011 Title IX complaint against Harvard Law School that is currently being investigated by the Office for Civil Rights, expressed concerns about the revised VAWA’s impact on the OCR’s “Dear Colleague” letter. Since VAWA does not explicitly codify the preponderance of evidence standard, she said, schools might point to the bill as proof that the lower standard is not required by federal law.
Still, Murphy said, “It’s better to have nothing in place than to codify a higher standard.”
Even the detractors of the “preponderance of evidence” benchmark agree that the new law will push universities towards the less stringent standard.
“Even if that standard is not codified in federal law, it’s being promulgated by a federal regulatory agency, and many schools will probably start to abide by it,” said Wendy Kaminer, a lawyer who has spoken out against the act.
—Staff writer Michelle Denise L. Ferreol can be reached at mferreol@college.harvard.edu. Follow her on Twitter @michiferreol.
—Staff writer Jared T. Lucky can be reached at lucky@college.harvard.edu. Follow him on Twitter @jared_lucky.