The College Fix

His school within Harvard claims it’s not bound by universitywide policy

The alleged sexual assault took place “hundreds of miles away from Harvard,” outside the academic year, outside any Harvard academic program, with a complainant who has no connection to Harvard, and “apparently does not involve any other connection with Harvard whatsoever.”

The Ivy League university’s own Title IX coordinator admitted the alleged conduct would not create “a hostile environment for a member of the University community.”

Harvard still chose to investigate the accused student, in blatant violation of its own rules and with no requirement under Title IX, according to a federal lawsuit filed Wednesday.

“John Doe” accuses Harvard of breach of contract and the covenant of good faith and fair dealing, saying it does not have “carte blanche to discard its own policies, or to act arbitrarily, capriciously, maliciously, or otherwise in bad faith.”

The school put the third-year student into a process that could end with his suspension or expulsion, despite having no authority to investigate the alleged conduct, the suit argues.

Doe’s accuser filed a civil lawsuit against him several months ago, meaning “discovery in
that case will go forward regarding the alleged assault” regardless of anything Harvard does, he said:

Likewise, Mr. Doe will be entitled to all the protections of a defendant in a civil case. For example, he will have subpoena power to obtain witnesses and documents—something that he will not have in Harvard’s campus proceeding. And he will have the right to cross-examine Ms. Roe and any other witness— something that, again, he will not have the right to do in Harvard’s campus proceeding.

It’s not clear how Harvard even learned about the allegations by “Jane Roe” – whether she, her lawyer or “some other source” told the school – because the administration is withholding “a full accounting of the complaint against him,” the suit says.

It refuses to answer, “stating only that the official ‘Reporter’ of the offense was the Harvard Title IX Coordinator, and declining to reveal how that official became aware of the allegation.”

Roe initially filed a police report against Doe, claiming that their July 2017 sexual encounter at a party – while both were interns – was not consensual. Doe claims that “law enforcement declined to prosecute,” and Roe filed the civil suit the following March.

Latest campus due process lawsuit–62nd federal one this year–against @Harvard. (Second lawsuit against Harvard this fall.)
Complaint filed by accuser who doesn't attend Harvard & who has no connection to Harvard. Full complaint:https://t.co/hrlw7oaJEs pic.twitter.com/9JlFWZC1Za

— KC Johnson (@kcjohnson9) November 29, 2018

Letting non-student ‘abuse the Title IX process to gain leverage in a civil suit’

The university only told Doe it was investigating the allegations last month. When his lawyer asked what authority Harvard had under its own rules to investigate a complaint that had no known connection to Harvard, the Title IX investigator simply cited Faculty of Arts and Sciences policies and procedures on “sexual and gender-based harassment.” (Doe is a student in FAS.)

These rules claim that FAS is exempt from Harvard’s jurisdictional limits and is “responsible for elaborating on and supplementing them to suit our own needs and goals.” They read:

[I]t is the expectation of the Faculty of Arts and Sciences that all students, whether or not they are on campus or are currently enrolled in a degree program, will behave in a mature and responsible manner. Consistent with this principle, sexual and gender-based misconduct are not tolerated by the FAS even when, because they do not have the effect of creating a hostile environment for a member of the University community, they fall outside the jurisdiction of the University Policy.

The Title IX investigator quickly rejected Doe’s claims that its investigation could compromise his defense in the civil case and exceeded the university’s own stated jurisdiction in any case. She said FAS has “the authority to adopt [its] own policies regarding student conduct” without citing a source for that authority, Doe claims.

MORE: Harvard paper ignores dozens of law faculty critics of Obama’s Title IX rules

The university agreed to “temporarily pause” the investigation after the Department of Education issued proposed regulations for Title IX in mid-November. But on Tuesday, the Title IX investigator ended that pause and ordered Doe to appear for an interview sometime during the week, he says.

“Harvard’s proposed campus case is about whether Harvard may be complicit, notwithstanding its own policies and the lack of any connection between the university and the alleged incident, in allowing a non-Harvard student to abuse the school’s Title IX process to gain leverage in a civil suit she has filed against a Harvard student,” according to Doe.

The university has already harmed Doe by forcing him to “expend substantial amounts of his own time and resources” on the disciplinary process, rather than his studies or his on-campus job. He’s also spending “substantial amounts of money in legal fees to defend himself in this case,” even before the investigation proceeds.

Doe faces “a grave risk of being incorrectly branded a rapist,” which would plague his transcripts and “substantially limit his opportunities for employment or graduate schooling,” the suit claims.

He’s asking the U.S. District Court in Boston to issue a temporary restraining order and injunctive relief to stop Harvard’s investigation, and order Harvard to pay compensatory damages above $75,000.

The College Fix has asked Harvard to explain the scope of FAS policy and the function of universitywide policy if components can freely exceed its limitations.

Read the lawsuit.

MORE: Harvard hit with first Title IX suit by accused male; claims racial discrimination

IMAGE: Andrey Burmakin/Shutterstock

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