Does a university have the responsibility — or even the right — to investigate a claim that one of its students raped someone hundreds of miles away?
The question is central to a case filed in federal court by a Harvard University student who argues the school is overstepping its authority by investigating him for a rape allegation lodged by a nonstudent in a city where police declined to prosecute.
Saying he faces “a grave risk of being incorrectly branded a rapist,” the unnamed male Harvard student argues in the suit that the school has no jurisdiction and he wants the investigation halted.
The lawsuit was filed Nov. 28, less than two weeks after the Trump administration proposed revising the rules for college sex assault investigations — including by stipulating that colleges are responsible for policing misconduct that occurs only on their property or within their programs.
The suit signaled to some worried Harvard activists that Education Secretary Betsy DeVos’s efforts to overhaul the Title IX process are altering the landscape of sex assault investigations before they’re finalized.
“That demonstrated to me that [there are] students who see the Department of Education backing away from enforcing strong protections against sexual violence on campus and taking advantage of this political moment,” said Amelia Y. Goldberg, 21, a Harvard senior from New York City. “Title IX is about enforcing a violence-free campus.”
Like DeVos’s rewrite of the regulations, the lawsuit aims to rein in the perceived excesses of the campus disciplinary process that men’s rights advocates and civil rights attorneys have described in recent years as Kafkaesque.
Harvard’s Title IX officer launched an investigation after learning about the allegation. It’s unclear, the suit says, whether the woman sought Harvard’s investigation. But since she is not a student at Harvard — and never was — the school does not need to make accommodations to safeguard her education and presence on campus, as required by Title IX.
“I don’t think there’s much the school can or really should do unless the evidence is so bad that this person is deemed an obvious danger on campus,” said Robert Shibley, executive director of the Foundation for Individual Rights in Education, which has fought for greater due process in college disciplinary actions.
But women’s rights groups fighting the new federal proposal say that interpretation misunderstands the purpose of Title IX, the civil rights law that guards women’s education from sexual discrimination or harassment. Shiwali Patel, senior counsel for the National Women’s Law Center, said schools such as Harvard should know about such troubling behavior from a student — or an employee for that matter — whether on campus or off.
Imagine, Patel said, if a college learned about a rape allegation against an incoming professor relocating from a different school. “Wouldn’t you have an obligation at a school to ensure this behavior isn’t continuing against your own students?” Patel asked.
Moreover, Patel said, the new federal limit would ignore a host of behavior off campus, including sexual assaults that occur in apartments.
“Our concern is that by forcing schools to not investigate these complaints and dismiss them, they’re ignoring a lot of sexual harassment and not taking into account the reality of how often off-campus sexual harassment or sexual assault occurs,” Patel said, noting that many survivors of sexual assault eventually drop out of school. “This will exacerbate a very significant problem.”
The scope and reach of a college’s sexual harassment policy are at the heart of the lawsuit filed by a Harvard student identified by the pseudonym John Doe. In the suit, Doe claims he had a consensual sexual encounter in July 2017 with a fellow summer intern in an undisclosed city. The woman later filed a rape complaint with local police, who declined to prosecute, according to the lawsuit; she also filed a civil suit in that jurisdiction in March.
“The incident did not take place at Harvard, anywhere close to Harvard, or even in-state; the incident did not take place during the academic year or in connection with any Harvard program; and none of the witnesses to Mr. Doe’s knowledge were, or are, connected to Harvard in any way,” says the lawsuit.
Doe’s lawsuit argues that Harvard’s Office of Dispute Resolution does not have jurisdiction to investigate.
Harvard’s policy on sexual- and gender-based harassment does not cover off-campus behavior, except in university-recognized programs or activities. But the Faculty of Arts and Sciences — one of several colleges that fall beneath the university’s umbrella policy — has its own standard that goes further, mandating that students “behave in a mature and responsible manner.” The policy also notes that sexual misconduct will not be tolerated, even when it falls outside the jurisdiction of the universitywide policy.
Harvard paused the disciplinary proceedings on Nov. 15 — the day the US Education Department issued its proposed new rule, the suit states. But on Nov. 27, Harvard’s Title IX investigator announced the investigation would continue, with no changes to procedures, and asked Doe to appear for an interview the following day or the following week. Instead, he sued the next day.
Harvard officials would not speak to the details of the lawsuit. On the broader Title IX changes proposed by DeVos, a spokesman said the university is still reviewing them to determine how they would affect current policies and practices.
“Harvard’s top priority remains ensuring the safety and well-being of every member of our community, supported through thoughtful and fair policies and procedures,” Harvard spokesman Jonathan Swain said in a statement. “Essential to this is ensuring that all members of our community are both encouraged to report and feel comfortable in reporting incidents of sexual and gender-based harassment, including sexual assault.”
Enacted in 1972, Title IX is intended to ensure women and girls have equal opportunities at school.
In 2011, amid concerns about an unchecked rape culture on college campuses, the Obama administration tightened schools’ requirements for investigating assault and harassment and threatened to withhold federal funding from schools that were noncompliant.
But in the ensuing years, many lawyers argued the scales of justice tipped too far, with the accused not receiving due process. Many colleges did not guarantee the accused student would have a hearing, a lawyer, or the right to see evidence.
“I think that the Obama administration so egregiously overdid it,” said Janet Halley, a Harvard Law School professor. “We started out with a bad situation of underenforcement. The Obama administration corrected that by moving in the direction of overenforcement, overly broad definitions, and lack of fundamental fairness in the process.”
The changes proposed by DeVos would require colleges to hold live hearings to review the evidence in any sexual assault allegation. Many schools had adopted a “single investigator” model, in which an employee or professional hired by the Title IX officer assesses the evidence.
In addition, under DeVos’s revisions, a student accused of sexual harassment could not go unrepresented by a lawyer; the university would have to appoint a representative.
The draft rule DeVos proposed is up for public comment through Jan. 28.