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Reminder to Harvard Law: Department of Ed’s rape standards aren’t enforceable

The university that’s “probably best equipped” to challenge the legal basis for the Department of Education’s slanted sexual-assault guidelines has just given up, the Foundation for Individual Rights in Education says.

This week Harvard Law School resolved a Title IX investigation by the department’s Office for Civil Rights by, among other things, lowering its evidence standard in investigations to “preponderance” from the higher “clear and convincing” standard, as The College Fix noted.

The school should have stood up to the office, citing the procedural irregularities that accompanied its supposedly binding guidance from 2011, FIRE’s Susan Kruth says:

OCR’s repeated findings that using a different evidentiary standard violates Title IX underscores that in issuing its 2011 Dear Colleague letter, OCR effectively enacted new, substantive, binding rules without subjecting those rules to public notice and comment as required by the Administrative Procedure Act. As FIRE has argued, those rules should therefore be considered invalid. Yet no college or university has challenged the rules on those grounds—and of all of the institutions in the country, Harvard was probably best equipped to do so.

FIRE and Harvard Law faculty themselves have previously complained about Harvard University’s new sexual harassment policy, noting that “practically all functions from investigation to appeal are run not by an impartial entity but by the Title IX compliance office.”

FIRE’s co-founder, the criminal defense attorney Harvey Silverglate, also called out Harvard Law’s settlement for setting up “ex post facto review of complaints” from the 2012-2013 and 2013-2014 school years. That means students who were cleared of allegations up to two years ago could find themselves under investigation again.

Read the FIRE post.

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About the Author
Associate Editor
Greg Piper served as associate editor of The College Fix from 2014 to 2021.