UNITED STATES DEPARTMENT OF EDUCATION

OFFICE FOR CIVIL RIGHTS, REGION I

5 POST OFFICE SQUARE, 8th FLOOR

BOSTON, MASSACHUSETTS 02109-3921

December 30, 2014

Martha C. Minow, Dean

Harvard Law School
Griswold 200
1525 Massachusetts Avenue
Cambridge, Massachusetts 02138

Re: Complaint No. 01-11-2002

Harvard Law School

Dear Dean Minow:

This letter is to inform you that the U.S. Department of Education, Office for Civil Rights (OCR)
has completed its investigation of the above-referenced complaint, against Harvard Law School
(Law School), alleging discrimination based on sex. The Law School and Harvard University
(University) have agreed to a Resolution Agreement (enclosed), which addresses compliance
concerns identified by OCR during its investigation relating to the Law School. OCR will
monitor the signed Resolution Agreement until the Law School and University have complied
fully with its terms. OCR’s investigation and findings are detailed below.1

The Complainant in this matter alleged that the Law School’s grievance policies and procedures
fail to comply with Title IX by not providing for the prompt and equitable resolution of sexual
harassment complaints, including sexual assault complaints, against students by: 1) requiring
victims to choose between filing criminal charges and filing a Title IX complaint with the Law
School; 2) allowing for “rehearings” in the Law School’s Title IX grievance procedures that
further delay the process; and 3) using a clear and convincing evidence standard of proof in these
procedures.

OCR investigated this complaint under Title IX of the Education Amendments of 1972, as
amended, 20 U.S.C. Sections 1681 et seq., and it implementing regulation at 34 C.F.R. Part 106
(Title IX), which prohibit discrimination on the basis of sex in education programs and activities
that receive Federal financial assistance from the U.S. Department of Education. The Law
School and University are subject to the requirements of Title IX because they receive Federal
financial assistance from the Department. In its investigation, OCR examined the specific
allegations in the complaint and more generally whether the Law School provided for prompt and
equitable responses to complaints of sexual harassment and sexual assault, about which it knew

1
OCR also has an open Title IX investigation of Harvard College and its response to sexual harassment, including
sexual assault, of undergraduate students. The agreement relating to the Law School does not resolve the Harvard
College complaint.
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness
by fostering educational excellence and ensuring equal access.
Page 2 - Dean Martha Minow, OCR Complaint No. 01-11-2002

or reasonably should have known, and whether any failure to respond appropriately allowed for
the creation and continuation of a sexually hostile environment.

Background

According to the most recent Harvard University Fact Book, published annually on the website
of the Office of the University’s Provost, in 2012 the University enrolled just under 6,700
students in undergraduate programs (3,281 female students and 3,378 male students) and
approximately 14,500 students in graduate and professional programs; of those, the Law School
enrolled 1,956 students (1,040 male law students and 916 female law students). According to the
U.S. Department of Education’s Office of Post-Secondary Education Campus Security Clery Act
data, there were 31 reports of forcible sex offenses at the University in 2012, 21 reports in 2011,
and 31 reports in 2010.2 Clery data is not available independently for the Law School. The Law
School is located on the University’s campus in Cambridge, Massachusetts.

Summary of Investigation

In its investigation, OCR reviewed information and documentation provided by the University,
including the Law School’s policies and procedures for addressing sexual harassment
complaints, including complaints of sexual violence and sexual assault. OCR interviewed
University and Law School administrators and staff involved in responding to complaints of
sexual harassment, including the Law School’s Associate Dean and Dean of Students who was
identified as one of the Law School officials responsible for responding to student complaints of
sexual harassment. OCR also interviewed the Director of the University’s Office of Sexual
Assault Prevention and Response, who informed OCR that the Office of Sexual Assault
Prevention and Response functions as a victim advocate, available 24 hours for support and
information. The office supports victims, including connecting them with the grievance process
and/or with police and is also responsible for sexual assault educational awareness on the
University campus, which includes the Law School.

OCR also reviewed documentation and records regarding sexual assault complaints filed with the
Law School dating back to 2005. OCR’s investigation revealed that there had been two sexual
assault cases filed with the Law School during the time period reviewed. OCR interviewed one
of the two Law School student-complainants; the other complainant did not respond to OCR’s
attempts to communicate through the University.

OCR has concluded that the Law School has complied with Title IX regulations regarding notice
of non-discrimination and the provision of notice and contact information for the University’s
Title IX Coordinator and other individuals designated as Title IX Coordinators at the Law
School. However, OCR has concluded that the Law School failed to comply with the Title IX
requirements for the prompt and equitable response to complaints of sexual harassment and
sexual assault. The previous and current sexual harassment policies and procedures used by the
Law School do not, as written and as applied in the two sexual assault cases examined by OCR,
comply with Title IX’s requirements. In addition, the Law School has not ensured that

2
http://ope.ed.gov/security/GetOneInstitutionData.aspx
Page 3 - Dean Martha Minow, OCR Complaint No. 01-11-2002

individuals involved in implementing its sexual harassment policies and procedures have
received training adequate to meet the requirements of OCR policy and guidance. With respect
to the specific allegations raised in this complaint, OCR did not find that the Law School had
either a policy or practice of requiring students to choose between filing a criminal complaint or a
Title IX criminal charge or that the allowance of a “rehearing” resulted in an undue delay in the
one instance where a “rehearing” process was allowed. OCR also found that the Law School
improperly used a “clear and convincing” evidence standard of proof in its Title IX grievance
procedures, in violation of Title IX.

A summary of these findings as well as analysis of the Law School’s compliance with the
requirements of Title IX is discussed below.

Legal Authority

The regulation implementing Title IX, at 34 C.F.R. § 106.31(a), provides that no person shall, on
the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity operated by a recipient. Sexual
harassment that creates a hostile environment is a form of sex discrimination prohibited by Title
IX. Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment can include
unwelcome sexual advances; requests for sexual favors; and other verbal, nonverbal, or physical
conduct of a sexual nature, such as sexual assault or acts of sexual violence. Sexual harassment
of a student creates a hostile environment if the conduct is sufficiently serious that it denies or
limits a student’s ability to participate in or benefit from the recipient’s program.3

In determining whether a student has been subjected to a hostile environment, OCR examines all
of the relevant circumstances from an objective and subjective perspective, including: the type of
harassment (e.g., whether it was verbal or physical); the frequency and severity of the conduct;
the age, sex, and relationship of the individuals involved (e.g., teacher-student or student-
student); the setting and context in which the harassment occurred; whether other incidents have
occurred at the college or university; and other relevant factors. The more severe the conduct,
the less need there is to show a repetitive series of incidents to prove a hostile environment,
particularly if the harassment is physical. For example, a single instance of rape is sufficiently
severe to create a hostile environment. Title IX also protects all students at recipient institutions
from sexual harassment, including male and female students.

If a recipient knows or reasonably should have known about sexual harassment that creates a
hostile environment, a recipient must take immediate and appropriate action to investigate or
otherwise determine what occurred. If an investigation reveals that discriminatory harassment

3
The applicable legal standards described herein are more fully discussed in OCR’s 2011 Dear Colleague letter on
Sexual Violence, which is available at: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html
(April 4, 2011); for further clarification on this topic, see “Questions and Answers on Title IX and Sexual Violence,”
at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (April 29, 2014). See also OCR’s 2010
Dear Colleague letter on Harassment and Bullying, which is available at
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html (October 26, 2010), and OCR’s Revised
Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, at
http://www.ed.gov/about/offices/list/ocr/docs/shguide.html (January 19, 2001).
Page 4 - Dean Martha Minow, OCR Complaint No. 01-11-2002

has occurred, a recipient must take prompt and effective steps reasonably calculated to end the
harassment, eliminate any hostile environment and, where appropriate, remedy its effects, and
prevent the harassment from recurring. These duties are a recipient’s responsibility regardless of
whether a student has complained, asked the recipient to take action, or identified the harassment
as a form of discrimination. Additionally, under Title IX, a recipient must process all
complaints of sexual assault/violence, regardless of where the conduct occurred, at a minimum to
the extent necessary to determine whether the conduct occurred in the context of an education
program or activity of the recipient or had continuing effects on campus or in an off-campus
education program or activity of the recipient. Further, once a school is on notice of off-campus
sexual assault/violence against a student, it must assess whether there are any continuing effects
on campus or in an off-campus education program or activity of the recipient that are creating or
contributing to a hostile environment.

The Title IX regulation, at 34 C.F.R. § 106.8(b), requires recipients to adopt and publish
grievance procedures providing for the prompt and equitable resolution of complaints alleging
any action that would be prohibited by Title IX, including sex discrimination, sexual harassment,
and sexual assault/violence. Title IX does not require a recipient to provide separate grievance
procedures for sexual harassment complaints, including sexual assault/violence complaints. A
recipient may use student disciplinary or other separate procedures for these complaints;
however, a recipient’s grievance procedures for handling discrimination complaints must comply
with the prompt and equitable requirements of Title IX. In evaluating whether a recipient’s
grievance procedures are prompt and equitable, OCR reviews all aspects of a recipient’s policies
and practices, including the following elements that are critical to achieve compliance with Title
IX:

1. notice to students and employees of the procedures, including where complaints may be
filed;

2. application of the procedures to complaints alleging discrimination or harassment carried

out by employees, students, and third parties;

3. provision for adequate, reliable, and impartial investigation of complaints, including an

opportunity for both the complainant and respondent to present witnesses and other
evidence;

4. designated and reasonably prompt timeframes for major stages of the complaint process;

5. written notice to parties of the outcome of the complaint and any appeal; and

6. an assurance that the institution will take steps to prevent recurrence of any sex
discrimination or harassment found to have occurred, and to correct its discriminatory
effects on the complainant and others if appropriate.

To ensure that students and employees have a clear understanding of what constitutes sexual
violence, the potential consequences for such conduct, and how the recipient processes
complaints, the recipient’s Title IX grievance procedures should also include the following in
writing:
Page 5 - Dean Martha Minow, OCR Complaint No. 01-11-2002

1. a statement of the recipient’s jurisdiction over Title IX complaints;

2. adequate definitions of sexual harassment (which includes sexual assault) and an

explanation as to when such conduct creates a hostile environment;

3. reporting policies and protocols, including provisions for confidential reporting;

4. identification of the employee or employees responsible for evaluating requests for

confidentiality;

5. notice that Title IX prohibits retaliation;

6. notice of a student’s right to file a criminal complaint and a Title IX complaint

simultaneously;

7. notice of available interim measures that may be taken to protect the student in the
educational setting;

8. the evidentiary standard that must be used (preponderance of the evidence) in resolving a
complaint;

9. notice of potential remedies for students;

10. notice of potential sanctions against perpetrators; and

11. sources of counseling, advocacy and support.

The procedures for addressing and resolving complaints of sexual harassment should be written
in language that is easily understood, should be easily located, and should be widely distributed.

For Title IX purposes, a recipient must inform the complainant as to whether or not it found that
the alleged conduct occurred, any individual remedies offered or provided to the complainant or
any sanctions imposed on the perpetrator that directly relate to the complainant, and other steps
the recipient has taken to eliminate the hostile environment, if the recipient finds one to exist,
and prevent recurrence. Sanctions imposed after investigation that directly relate to the
complainant (and that may also relate to eliminating the hostile environment and preventing
recurrence) include, but are not limited to, requiring that the perpetrator stay away from the
complainant until both parties graduate, prohibiting the perpetrator from attending school for a
period of time, or transferring the perpetrator to another residence hall, other classes, or another
school. Additional steps the recipient may take to eliminate the hostile environment include
counseling and academic support services for the complainant and other affected students.

To ensure individuals can invoke these grievance procedures without fear of reprisal, Title IX
also prohibits a recipient from retaliating against any individual “for the purpose of interfering
with any right or privilege secured by [Title IX],” or because that individual “has made a
complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing” under Title IX. Prohibited retaliatory acts include intimidation, threats, coercion, or
discrimination against any such individual. Recipients should also take steps to prevent any
retaliation against a student who makes a complaint or any student who provides information
Page 6 - Dean Martha Minow, OCR Complaint No. 01-11-2002

regarding the complaint and take strong responsive action when it occurs. When a recipient
knows or reasonably should know of possible retaliation by other students or third parties, it must
take immediate and appropriate steps to investigate or otherwise determine what occurred. At a
minimum, under Title IX, a recipient must ensure that students and their parents, if appropriate,
know how to report any subsequent problems; should follow up with complainants to determine
whether any retaliation or new incidents of harassment have occurred; and should respond
promptly and appropriately to address continuing or new problems.

Pending the outcome of an investigation, Title IX requires a recipient to take steps to ensure
equal access to its education programs and activities and to protect the complainant from further
harassment as necessary, including taking interim steps before the final outcome of the
investigation. The recipient should undertake these steps promptly once it has notice of a sexual
harassment allegation and should provide the complainant with periodic updates on the status of
the investigation. It should notify the complainant of his or her options to avoid contact with the
alleged perpetrator, and allow students to change academic or living, transportation, dining and
working situations as appropriate. For instance, the recipient may prohibit the alleged perpetrator
from having contact with the complainant pending the results of the investigation. The specific
interim measures implemented and the process for implementing those measures will vary
depending on the facts of each case. When taking steps to separate the complainant and the
alleged perpetrator, a recipient should minimize the burden on the complainant and thus should
not, as a matter of course, remove the complainant from classes or housing while allowing the
alleged perpetrator to remain. If an accused student is found responsible and a recipient
determines that he/she must be separated from the complainant, it must do so in a manner that
minimizes the burden on the complainant. Recipients should also check with complainants to
ensure that the interim measures are effective and, if ineffective, identify alternatives. In addition,
recipients should ensure that complainants are aware of their Title IX rights, any available
resources, such as advocacy, housing assistance, academic support, counseling, health and mental
health services, and legal assistance, and the right to report a crime to campus or local law
enforcement.

In addition, if there is an incident involving potential criminal conduct, a recipient must

determine, consistent with state and local law, whether appropriate law enforcement or other
authorities should be notified, bearing in mind that a recipient’s Title IX investigation is different
from any law enforcement investigation, and a law enforcement investigation does not relieve a
recipient of its independent Title IX obligation to investigate the conduct. A recipient therefore
should not wait for the conclusion of a criminal investigation or criminal proceeding to begin its
own Title IX investigation; and if needed, must take immediate steps, as described above, to
protect the complainant in the educational setting.

Grievance procedures generally may include voluntary informal mechanisms (e.g., mediation) for
resolving some types of sexual harassment complaints; however, it is improper for a complainant
to be required to work out the problem directly with the alleged perpetrator, and certainly not
without appropriate involvement by the recipient (e.g., participation by a trained counselor, a
trained mediator, or, if appropriate, a faculty member or administrator). The complainant must
be notified of the right to end the informal process at any time and begin the formal stage of the
Page 7 - Dean Martha Minow, OCR Complaint No. 01-11-2002

complaint process. Moreover, in cases involving allegations of sexual assault/violence,

mediation is not appropriate even on a voluntary basis.

Throughout the recipient’s investigation and in any hearing, both parties must have equal
opportunity to present relevant witnesses and other evidence and to otherwise participate in the
process. Also, as noted above, in order for a recipient’s grievance procedures to be consistent
with the Title IX evidentiary standard, the recipient must use a preponderance of the evidence
standard for investigating allegations of sexual harassment, including sexual assault/violence. If
a recipient provides for appeal of the findings or remedy, it must do so for both parties. The
recipient must maintain documentation of all proceedings.

In addition, a school must ensure that responsible employees with the authority to address sexual
assault/violence know how to respond appropriately to reports of sexual assault/violence; that
other responsible employees know that they are obligated to report sexual assault/violence to
appropriate school officials; and that all other employees understand how to respond to reports of
sexual assault/violence. A school should provide training to all employees likely to witness or
receive reports of sexual assault/violence, including professors, university law enforcement unit
employees, university administrators, university counselors, general counsel, athletic coaches,
health personnel, and resident advisors. Training for employees should include practical
information about how to prevent and identify sexual assault/violence, including same-sex sexual
assault/violence; the behaviors that may lead to and result in sexual assault/violence; the attitudes
of bystanders that may allow conduct to continue; the potential for revictimization by responders
and its effect on students; appropriate methods for responding to a student who may have
experienced sexual assault/violence, including the use of nonjudgmental language; the impact of
trauma on victims; and, as applicable, the person(s) to whom such misconduct must be reported.
The training also should explain responsible employees’ reporting obligation, including what
should be included in a report and any consequences for the failure to report and the procedure
for responding to students’ requests for confidentiality, and it should provide the contact
information for the school’s Title IX coordinator. A school also should train responsible
employees to inform students of: the reporting obligations of responsible employees; students’
options to request confidentiality, available confidential advocacy, counseling, or other support
services; and students’ rights to file a Title IX complaint with the school and to report a crime to
campus or local law enforcement.

The Title IX implementing regulation, at 34 C.F.R. § 106.8(a), requires that a recipient designate
at least one employee to coordinate its responsibilities to comply with and carry out its
responsibilities under that law. The recipient is further required, by the Title IX implementing
regulation at 34 C.F.R. § 106.9(a), to notify all students and employees of the name (or title),
office address, and telephone number of the designated employee(s). In addition, OCR’s 2011
Dear Colleague Letter on Sexual Violence states that recipients should notify all students and
employees of the electronic mail (email) address of the Title IX Coordinator. The coordinator’s
responsibilities include overseeing the recipient’s response to Title IX reports and complaints of
sexual harassment, including sexual assault/violence, and identifying and addressing any patterns
or systemic problems revealed by such reports and complaints. The coordinator or designee
should be available to meet with students, as needed. The Title IX coordinator should not have
other job responsibilities that may create a conflict of interest. Also, as noted above, recipients
Page 8 - Dean Martha Minow, OCR Complaint No. 01-11-2002

must ensure that employees designated to serve as Title IX coordinators have training or
experience in handling sexual harassment, including sexual assault/violence complaints, and in
the operation of the recipient’s grievance procedures.
The regulation implementing Title IX, at 34 C.F.R. § 106.9, requires that recipients notify
applicants for employment, students, employees, and all unions or professional organizations
holding collective bargaining or professional agreements with the recipient that it does not
discriminate on the basis of sex in its education programs or activities, and that it is required by
Title IX not to discriminate in such a manner. The notice must also state that questions regarding
Title IX may be referred to the recipient’s Title IX coordinator or to OCR.
Facts and Analysis

The Law School’s Title IX information, including its non-discrimination notice, contact
information for the Law School’s Title IX Coordinators as well as the University-wide Policy
and the Law School’s Interim Procedures, which are currently effective, are currently found at
http://hls.harvard.edu/about/title-ix-information.

 Non-discrimination Notice

OCR determined that the Law School’s Notice of Non-discrimination prohibits discrimination on
the basis of sex “in admission to, access to, treatment in, or employment in its programs and
activities.” The Law School’s Notice of Non-discrimination specifies that the Law School does
not discriminate on the basis of sex in the educational program or activity which it operates; the
notice apprises of protection against discrimination based on sex as assured by Title IX; it
specifically states that the requirement not to discriminate in education program or activity
extends to employment and to admission; and it refers inquiries concerning the application of the
Law School’s notice of non-discrimination to certain designated employees. The notice provides
contact information for inquiries regarding its non-discrimination policy as well as contact
information for OCR. OCR concludes that the University has complied with the Title IX
regulation regarding notice of non-discrimination with respect to the Law School’s notice.

OCR noted that the Law School’s previous notice did not include email addresses for the
individuals listed as Law School Title IX Coordinators, did not include information relating to
the University’s Title IX Coordinator and included an incorrect room number listed for OCR
Boston. The Law School’s current Notice of Non-discrimination corrects these omissions and
room number error, and the Resolution Agreement provides that the Law School will continue to
publish an appropriate notice of nondiscrimination.

 Title IX Coordinator

The University informed OCR that there are several Title IX Coordinators who respond to
complaints of discrimination at the Law School depending on whether the complaint involves a
student, faculty or staff member. Previously, the University’s Compliance Officer for Equal
Opportunity Employment and Affirmative Action served as Acting Title IX Coordinator at the
University level. In March 2013, the University hired a new university-wide Title IX
Coordinator.
Page 9 - Dean Martha Minow, OCR Complaint No. 01-11-2002

In the Law School’s former sexual harassment policy, “Policy and Guidelines Related to Sexual
Harassment” (former Sexual Harassment Policy), the listed Title IX Coordinators included: the
University’s Title IX Coordinator, as well as the Law School’s Associate Dean and Dean of
Students, the Law School’s Assistant Dean for Career Services and the Law School’s Assistant
Dean for Public Service. According to the University, the former Sexual Harassment Policy was
included in the Academic Handbook emailed to students each fall and was also available in hard
copy outside of the Dean of Students’ office. The University also reported that the Dean of
Students gave a presentation at student orientation that specifically mentioned the Law School’s
former Sexual Harassment Policy and made students aware that it could be found in the
Handbook.

Contact information for the current Title IX Coordinators is available on the Law School’s Title
IX webpage. The listed individuals include: the University’s Title IX Coordinator, as well as the
Law School’s Associate Dean and Dean of Students and the Law School’s Associate Dean and
Dean for Academic and Faculty Affairs. The Law School’s Handbook of Academic Policies for
the 2014-15 academic year also includes contact information for the University’s Title IX
Coordinator and Law School Title IX Coordinators.4

OCR has determined that the Law School has designated at least one person to coordinate its
compliance with Title IX in accordance with 34 C.F.R. § 106.8(a) and 106.9(a) and has provided
notice and contact information of the University’s Title IX Coordinator and other individuals
designated as Title IX Coordinators at the Law School, with the exception of the email addresses
for these individuals.

As discussed above, OCR’s 2011 Dear Colleague Letter also indicates that recipients must
ensure that employees designated to serve as Title IX coordinators have adequate training
regarding what constitutes sexual harassment, including sexual violence, and that they
understand how the recipient’s grievance procedures operate. In addition, OCR’s Dear Colleague
Letter explains that all persons involved in implementing grievance procedures (including Title
IX coordinators, investigators, adjudicators) must have training or experience on handling
complaints of sexual harassment and violence and on the recipient’s grievance procedures.

During OCR’s investigation, the Law School’s former Sexual Harassment Policy, discussed in
more detail below, stated that “[t]he Dean’s Office, working with the Dean of Students and the
Assistant Dean and Chief Human Resource Officer, as well as with appropriate University
bodies, will endeavor to provide training on issues of harassment to all contact persons and
decisionmakers named in these guidelines.” OCR determined that the Associate Dean of the
Law School and Dean of Student and the Assistant Dean and Chief Human Resource Officer,
both of whom served as responders to Title IX student complaints for the Law School during the
timeframe OCR investigated, had received some training on sexual harassment and/or assault.
However, the evidence did not establish that the Administrative Board (Ad Board) members as
well as other individuals involved in the decision-making process, including Law School faculty,
4
See http://law.harvard.edu/academics/handbook/handbook-of-academic-policies-2014-159.26.142.pdf. As noted,
contact information for the Title IX Coordinators is also available on the Law School’s Title IX webpage, at
http://hls.harvard.edu/about/title-ix-information/.
Page 10 - Dean Martha Minow, OCR Complaint No. 01-11-2002

received appropriate training. The Law School informed OCR that in 2010, the Law School’s
Ad Board members received copies of the Title IX and the 2001 Sexual Harassment guidance.
For the reasons set forth above, OCR determined that the Law School failed to take adequate
steps to ensure that all decision makers were adequately trained to meet the requirements of OCR
policy and guidance. The Resolution Agreement requires training for Title IX coordinators and
others, including faculty, staff, and students.

 Title IX Grievance Procedures

A. Law School’s Former Sexual Harassment Policy and Procedures

Given the specific nature of the allegations, OCR’s investigation focused on the Law School’s
grievance policy and procedures for addressing student-on-student complaints. OCR determined
that, as of the time this complaint was filed, the Law School had adopted a policy and grievance
procedure to address allegations of discrimination or harassment asserted on the basis of sex,
namely its Policy and Guidelines Related to Sexual Harassment (former Sexual Harassment
Policy).5 The Sexual Harassment Policy was available in the Law School’s handbook, posted on
its website and emailed to law students each fall. (Subsequently, separate University-wide Title
IX Policy and Procedures were adopted in July 2014, followed by new Interim Law School
Sexual Harassment Procedures, effective for the 2014-15 academic-year; and on December 18,
2014, the Law School adopted New Procedures incorporating the University-wide policy. Each
of these is discussed in detail below.)

For complaints against students, the Policy designated the Law School’s Ad Board as the
decision-making body and provided that the “Ad Board Procedures” would be used to determine
whether a violation had occurred. The Policy also identified additional procedures relating to
confidentiality, notice, timetable, special investigators/hearing officers, written proceedings,
hearings, burden of proof, and sanctions.6 OCR identified several concerns with these
procedures, described below.

The additional procedures stated, “formal disciplinary sanctions shall be imposed only upon clear
and convincing evidence.” This higher standard of proof was inconsistent with the
preponderance of the evidence standard required by Title IX for investigating allegations of
sexual harassment or violence.

The additional procedures also stated that the “decisionmaker shall establish a timetable for each
case to be followed insofar as reasonably possible to assure a prompt resolution of the formal
complaint procedure.” No specific timeframe was designated for resolution of formal
complaints, as is required by Title IX.

Although the Ad Board Procedures, as written, afforded both complainants and respondents
comparable rights during the hearing process with respect to the presentation of evidence and
5
The Law School had several policies that address claims of harassment including the Law School’s Policy and
Guidelines Related to Sexual Harassment; Notice of Non-Discrimination (as discussed above); and the University
Policy on Sexual Harassment, which relates to employees.
6
The Policy stated that these additional procedures “shall also apply and in cases of conflict shall prevail.”
Page 11 - Dean Martha Minow, OCR Complaint No. 01-11-2002

witnesses, the Ad Board Procedures provided additional post-hearing rights to the respondent if
the sanction imposed involved dismissal or expulsion. In such cases, the respondent-student was
afforded the right to a supplementary hearing on the facts before a hearing officer appointed by
the Dean. The Ad Board Procedures required the hearing officer to issue a written statement of
findings of fact. The Ad Board Procedures provided that the Ad Board then “may modify its
findings of fact in light of the findings of the hearing officer, and may modify the sanction
previously voted.” The Ad Board Procedures further required the faculty to review all cases
where the sanction imposed was dismissal or expulsion and provided that “[n]o student shall be
expelled or dismissed except by the vote of at least two-thirds of the members of the faculty
present and voting at the faculty meeting at which the recommendation of the Administrative
Board is considered.” The Ad Board Procedures also provided that the faculty could substitute
“its judgment for the Board’s on matters of policy including the severity and nature of the
sanction imposed.” The Procedures stated, “The [Ad] Board’s findings of fact shall not be
modified unless, on the basis of the whole record, including the findings, if any, of the hearing
officer, the Board’s findings are not supported by substantial evidence.”

OCR’s 2011 Dear Colleague Letter states, “if a school provides for appeal of the findings or
remedy, it must do so for both parties.” Here, the Ad Board Procedures, on their face and in
practice (as discussed below), did not afford a similar opportunity to both parties to seek review
of Ad Board decisions when the sanction imposed involved dismissal or expulsion. Respondents
were afforded the right to dispute Ad Board findings and to call and examine witnesses during
the supplemental hearing process, while the Procedures did not afford any rights to complainants
during this post-hearing process even though it could result in modified findings of fact and/or
sanctions.

OCR identified other concerns regarding the Law School’s former Sexual Harassment Policy.
The policy addressed complaints of sexual harassment carried out by employees or other
students, but did not address complaints against third parties, as required by Title IX and OCR
policy and guidance. The former Sexual Harassment Policy did not require written notification
of the outcome of the complaint; or contain an assurance that the Law School will take steps to
end and prevent recurrence of harassment and to correct its discriminatory effects on the
complainant and others, if appropriate, as required by Title IX and OCR policy and guidance.

The former Sexual Harassment Policy, on its face, did not contain provisions related to interim
measures to protect the complainants pending the outcome of their complaints, although OCR
noted that information provided by the Law School indicated that no contact orders and
scheduling adjustments were implemented as interim measures.

OCR also determined that, contrary to the guidance detailed in OCR’s 2011 Dear Colleague
Letter, the former Sexual Harassment Policy did not expressly state that mediation must not be
used to resolve complaints of sexual assaults and violence complaints or that complainants in
complaints of sexual assaults and violence should not be required to work out an issue directly
with the accused.

Moreover, the former Sexual Harassment Policy did not mention police involvement or criminal
investigations, contrary to OCR guidance recommending that grievance policies expressly state
Page 12 - Dean Martha Minow, OCR Complaint No. 01-11-2002

that a complainant may proceed with a criminal investigation and a Title IX complaint
simultaneously. OCR interviewed the Associate Dean and Dean of Students (Dean) regarding
the specific complaint allegation that the Law School requires students to choose between
criminal proceedings or filing a complaint with the Law School. The Dean acknowledged that in
one sexual assault case she initially suggested to a complainant-student that she might want to
wait until the criminal matter was resolved before filing a formal complaint with the Law School.
The Dean informed OCR that after she spoke with University legal counsel, she then
immediately followed up with the student to inform her that she could file a formal complaint at
any time. During an interview with OCR, the student confirmed that immediately after telling
her that she might want to wait until the criminal matter was resolved before filing a formal
complaint with the Law School, the Dean notified her that she could file a complaint at any time,
and the student indicated that the initial communication had not deterred her from filing a
complaint.

Finally, the former Sexual Harassment Policy did not specifically define sexual assault and
violence as a form of sexual harassment prohibited by Title IX; and did not specifically provide
for written notification of the outcome of the complaint, though OCR found evidence indicating
that it was the Law School’s practice to provide written notification.

As part of its investigation, OCR also examined the Law School’s handling of the two sexual
assault complaints filed during the time period reviewed, both of which were processed under the
Law School’s Former Sexual Harassment Policy and Procedures. For both complaints examined
by OCR, the Law School improperly used the “clear and convincing” standard of evidence, rather
than the “preponderance of the evidence” standard. For one complainant, OCR found that the
several months it took for a rehearing to be held did not result in an undue delay where the
complainant requested an extension of the process. This was the only instance in which a
rehearing was allowed. However, OCR also noted significant delays between the filing of one
complaint, the Ad Board’s decision (five months after the filing of the complaint), and the
Hearing Officer’s report affirming the Ad Board’s decision (nine months after the complaint
filing), as well as an even greater delay until the final resolution of the case when the Law School
faculty dismissed the complaint (13 months after the initial filing) and provided written notice to
the complainant of this outcome (16 months after the complaint filing). In addition, in that case,
the complainant was excluded from participation in any review of the outcome beyond the Ad
Board’s decision. Specifically, the respondent-student benefited from a supplemental hearing
with representation by counsel and was allowed to provide testimony; the supplemental hearing
and faculty review resulted in the reversal of the decision to dismiss the student. As a result, the
Law School failed to provide an equal opportunity for both parties to participate in the post-
hearing review of the Ad Board’s recommended sanctions for the accused student, and, as such,
the complainant was not provided an adequate, reliable and impartial investigation of that sexual
assault complaint. OCR concluded that the Law School failed to provide a prompt and equitable
resolution of the two complaints. The evidence did not support, however, that the Law School’s
actions allowed either student to be subjected to a continuing sexually hostile environment, as
interim measures were timely implemented to protect the complainants and prevent further
harassment, and the respondent students in both cases were removed from the Law School
campus from the time of the Ad Board decisions through the remainder of the complaining
students’ enrollment at the Law School.
Page 13 - Dean Martha Minow, OCR Complaint No. 01-11-2002

For the reasons detailed above, OCR concluded that the Law School’s former Sexual Harassment
Policy and applicable procedures, as written and as applied, failed to meet the requirements of
Title IX.

B. July 2014 University-wide Policy and Procedures

During OCR’s investigation, University counsel informed OCR that the University was in the
process of conducting a comprehensive, university-wide review of policies and procedures for
addressing sexual harassment, including sexual assault. The University informed OCR that it
hired the new university-wide Title IX Coordinator. OCR also learned that the University had
formed a Committee, composed of more than 40 administrators, to examine the University’s
approach to student sexual and gender-based harassment cases. The University also informed
OCR that it had developed a university-wide Title IX website to serve as a one-stop resource for
the University community: http://diversity.harvard.edu/pages/title-ix-sexual-harassment.

On April 16, 2014, the University’s General Counsel provided OCR with the revised Title IX
Policy and Procedures, “Sexual and Gender-Based Harassment Policy” (“July 2014
University-wide Title IX Policy”) and “Procedures for Handling Complaints Involving Students
Pursuant to the Sexual and Gender-Based Policy” (“July 2014 University-wide Title IX
Procedures”) that the University planned to adopt. The General Counsel indicated that the
policies and procedures “represent careful and extensive work by a committee from across the
University” and have “broader reach” than the Law School as they encompass “all members of
the Harvard community.” He further stated, “The procedures represent a dramatic departure
from Harvard’s ordinary structures, which rely heavily on School-based activities, and instead
create a University-wide approach to the investigation of sexual harassment complaints brought
against a Harvard student.”

The University adopted a Title IX Policy and Procedures in July 2014. The University
emphasized that, because the Policy was adopted by the University, it applies to all Schools,
University-wide, and no School can adopt a conflicting policy. The University also indicated
that the Procedures would be applicable to all University students, including Law School
students, effective at the start of the 2014-15 academic year. Meanwhile, as discussed below, the
Law School examined the content and status of its former Sexual Harassment Policy in
consideration of the July 2014 University-wide Title IX Policy and Procedures.

OCR reviewed the July 2014 University-wide Title IX Policy and Procedures and advised the
University that, in a few respects, they failed to meet the Title IX requirements and
recommendations outlined in OCR’s April 4, 2011 Dear Colleague Letter on Sexual Violence
and OCR’s more recent April 2014 Questions and Answers on Title IX and Sexual Violence.
Specifically, Section II of the University-wide Title IX Procedures, entitled “Requests for
Informal Resolution,” does not include language to make clear that a party has the right to end
the informal process and bring a formal process at any time and that mediation is prohibited in
sexual assault and sexual violence cases. Relatedly, it is not clear that students who report sexual
harassment will not be required to resolve the problem directly with the alleged harasser, as
OCR’s Dear Colleague letter recommends. In Section III, regarding formal complaint
Page 14 - Dean Martha Minow, OCR Complaint No. 01-11-2002

procedures, at H, “Coordination with Law Enforcement Authorities,” the University-wide Title

IX Procedures do not clearly indicate that the complainant has a right to proceed simultaneously
with a criminal investigation and a Title IX investigation, and that the University may defer its
investigation for a limited time for fact gathering but then will promptly resume the investigation.
In the University-wide Title IX Policy’s “Jurisdiction” Section, the language indicates that the
policy applies to conduct that may have the effect of creating a hostile environment on campus,
without making clear that the policy applies to conduct that may have the effect of contributing to
and/or continuing a hostile environment.

In addition, the July 2014 University-wide Title IX Policy and Procedures do not include a
statement ensuring that students know that the University is committed to responding to incidents
of sexual harassment that the University knows or should know about, even if a complaint or
report has not been filed. The July 2014 University-wide Title IX Policy and Procedures do not
include explicit documentation protocols for the University’s responses to sexual harassment and
sexual assault complaints.

Finally, as the University has indicated that the July 2014 University-wide Title IX Policy and
Procedures are intended to be a departure from the University’s traditional School-based
approach to University policymaking, it is critical for the University to make clear that no School
or unit-based policy, procedure or process can reverse or alter a factual finding, remedy, or other
decision made through the University’s Title IX Procedures. Also, to the extent that any School-
based discipline process is part of the review process relating to the Title IX process, both parties
must be provided an equal opportunity to participate in the review process.

Under the Resolution Agreement, the University is required to address each of the concerns
identified relating to the July 2014 University-wide Title IX Policy and Procedures in
supplemental guidance that will be posted and provided with the University-wide Title IX Policy
and Procedures. Specifically, the guidance will include:

1. Language clarifying that the University has an obligation to address incidents of sexual
harassment that it knows or should know about, even when a complaint or report is not
filed, and to respond to all complaints, reports and other incidents of sexual harassment it
knows or should know about;
2. Language clarifying that no School or unit-based policy, procedure or process can reverse
or alter a factual finding, remedy, or other decision made through the University's Title IX
Policy and Procedures;
3. Language clarifying that the University has an obligation to consider the effects of off-
campus conduct when evaluating whether there is a hostile environment in a University
program or activity;
4. A statement that complainants have a right to proceed simultaneously with a criminal
investigation and a Title IX investigation, and that the University may defer its
investigation for a limited time for fact gathering and then will promptly resume its
investigation;
5. Provisions for maintenance of detailed records of each informal and formal complaint,
including individuals involved, investigative steps taken, documentation received,
Page 15 - Dean Martha Minow, OCR Complaint No. 01-11-2002

individuals interviewed, decisions reached, and reason(s) for decision(s) reached;

6. A statement that mediation will not be used in sexual assault and sexual violence cases;
and students who report sexual harassment will not be required to resolve the problem
directly with the alleged harasser; and
7. To the extent that the discipline process is part of the Title IX review and/or appeal
process, assurance that both parties are to be provided an equal opportunity to participate
in the process.

C. September 2014 Law School’s Interim Procedures

As noted, the July 2014 University-wide Title IX Policy and Procedures went into effect at the
start of the 2014-15 academic year. In September 2014, the Law School adopted the “Interim
Harvard Law School Sexual Harassment Policy and Procedures” (“September 2014 Interim
Procedures”) in place of its former Sexual Harassment Policy.7 The Law School indicated that
the Interim Procedures were adopted “on an interim basis to align them with the new University
policy” and would be subject to change upon faculty review. The September 2014 Interim
Procedures include procedures for disciplinary proceedings against students who violate the
University-wide Title IX Policy. The Law School website states that “separate University
procedures now govern the investigation and determination of whether a violation of the
University policy has occurred. Because in cases of alleged sexual harassment by a student, the
Law School’s disciplinary procedures incorporate the University’s investigative procedures . . .”8

OCR reviewed the September 2014 Interim Procedures and noted that a majority of the Title IX
concerns OCR identified with respect to the Law School’s former Sexual Harassment Policy
procedures have been addressed. For example, the Interim Procedures no longer use the “clear
and convincing” evidentiary standard for investigating sexual harassment allegations and instead,
specifically provide for use of “preponderance of evidence standard,” which is consistent with
Title IX and OCR policy. The Interim Procedures also provide both parties an opportunity to
participate in decisions regarding possible sanctions. However, OCR also identified Title IX
deficiencies in the September 2014 Interim Procedures, and the Resolution Agreement requires
that these deficiencies be corrected.

OCR found that the September 2014 Interim Procedures lack specific timeframes for determining
whether disciplinary sanctions will be imposed after a Title IX violation has been found and the
matter has been referred to the Law School for disciplinary proceedings. As noted in Section F-8
of OCR’s “Questions and Answers on Title IX and Sexual Violence,” OCR’s expectation is that
the 60-day timeframe for investigations should include the process of imposing sanctions against
perpetrators and providing remedies for the complainant and school community. It does not
appear that the Law School’s Interim Procedures, when combined with the July 2014 University-
wide procedures, will allow for meeting that standard. Also, the Interim Procedures do not
expressly provide for notification of the outcome of the disciplinary proceedings to both parties,
including any disciplinary sanctions that directly relate to the complaining party.

7
http://hls.harvard.edu/content/uploads/2014/09/hls-titleix-interimpolicy1.pdf
8
http://hls.harvard.edu/about/title-ix-information/
Page 16 - Dean Martha Minow, OCR Complaint No. 01-11-2002

In addition, because the Law School’s September 2014 Interim Procedures state that the July
2014 University-wide Title IX Policy and Procedures adopted in July are fully incorporated in the
Law School’s Interim Procedures, the same concerns OCR identified with regard to the
University-wide Title IX Policy and Procedures apply to the Law School’s Interim Procedures.
We note, however, that the Law School’s Interim Procedures affirmatively state that the Law
School proceedings “must accept as final and non-reviewable the findings of fact and
conclusions as to the presence of a violation contained in the … Final Report” from the
University-wide process.9

The Law School’s September 2014 Interim Procedures do not make clear that, with respect to
sexual harassment, the Interim Procedures supersede all prior Law School-specific policies and
guidelines relating to sexual harassment, including any Ad Board Procedures. In addition,
because the Interim Procedures incorporate the July 2014 University-wide Title IX Policy and
Procedures, but also include summaries of the procedures, separate commentary, complementary
elements (such as the role of the Law School Title IX Coordinator in the process), and distinct
procedures for disciplinary proceedings, OCR found that the interplay between the Law School’s
Interim Procedures and the University-wide Title IX Policy and Procedures may not be clear for a
student seeking to file a complaint. Title IX requires clear notice to students and employees of
procedures relating to sexual harassment and sexual assault, including where complaints may be
filed, that is easily understood, easily located and widely distributed,

The Resolution Agreement includes specific requirements to address the above deficiencies and
also requires that the September 2014 Interim Procedures include:

 A statement that, to the extent the Law School’s Board undertakes any investigation or
solicitation of additional information of any facts or circumstances raised to it, it will
ensure such investigation is conducted in an adequate, reliable, and impartial manner,
including providing the parties an equal opportunity to present witnesses and relevant
evidence;
 A statement of assurance that the Law School will take steps to prevent recurrence of
harassment and to correct its discriminatory effects on the complainant and others, if
appropriate;
 A requirement that the Law School inform the students at regular intervals of the status of
the proceeding; and
 The email addresses for each designated Title IX coordinator.

In summary, based on OCR’s review of the Law School’s Sexual Harassment policies and
procedures, including the former Sexual Harassment Policy and September 2014 Interim
Procedures, and its handling of the two sexual assault cases filed, OCR has concluded that the
Law School’s previous and current sexual harassment policies and procedures, as written and as
applied to the two sexual assault complaints reviewed by OCR, have not provided for a prompt

9
The Law School’s Interim Procedures do carve out “a narrow mechanism by which either party can bring a new
fact or circumstance before the [Law School’s Ad] Board,” when “the fact or circumstance in question was raised
with the Investigative Team, yet was not addressed, explicitly or implicitly, in the Final Report.”
Page 17 - Dean Martha Minow, OCR Complaint No. 01-11-2002

and equitable resolution of complaints of sexual assault and violence, as required by 34 C.F.R.
§§ 106.8(b) and 106.31.

D. December 2014 Law School’s New Procedures

After the Law School’s September 2014 Interim Policy and Procedures became effective for the
2014-2015 academic year, on December 18, 2014, the Law School adopted – but has not
implemented – new Title IX procedures, the Harvard Law School Sexual Harassment Resources
and Procedures for Students (December 2014 New Procedures). The Law School’s December
2014 New Procedures incorporate the July 2014 University-wide Title IX Policy, but unlike the
Interim Procedures, the investigation and adjudication of Title IX grievances filed by Law School
students will be addressed by the Law School through its New Procedures, rather than by the
University. The New Procedures include a Law School Title IX Unit, consisting of a Title IX
Coordinator and two Deputy Title IX Coordinators, which will oversee implementation of the
University-wide Policy, including receiving reports of sexual and gender-based harassment,
determining interim measures, and supervising investigation and resolution of complaints under
the Law School’s New Procedures.

Pending OCR’s review and approval of the Law School’s December 2014 New Procedures as
part of the monitoring of the implementation of the Resolution Agreement, and until such time as
the Law School fully implements the New Procedures, the Interim Policy and Procedures will
continue to apply to sexual harassment and sexual assault complaints by law students. As with
the Law School’s September 2014 Interim Procedures, because the December 2014 New
Procedures state that the University-wide Title IX Policy adopted in July 2014 is incorporated in
the New Procedures, the same concerns OCR identified above with regard to the University-wide
Policy apply to the Law School’s New Procedures. Thus, the Resolution Agreement requires that
the Law School’s New Procedures be in compliance with Title IX and OCR policy and address
the concerns identified for the University-wide Policy.

Conclusion

The Law School and the University have agreed to address OCR’s concerns outlined above
through the attached Resolution Agreement. In the Agreement, subject to OCR’s review and
approval, the University has agreed to revise the guidance it has created to supplement its July
2014 University-wide Policy and Procedures, to ensure compliance with the Title IX regulation
and OCR policy. The Law School, likewise, has agreed to revise its sexual harassment policies
and procedures to ensure consistency with Title IX and OCR policy and to make clear which
policy and procedures (University-wide and/or Law School specific) apply in cases of sexual
harassment and sexual assault involving law students.

Pursuant to the Agreement, the Law School’s Title IX Coordinator will provide information to
students and employees and oversee the Law School’s response to complaints. The Law School
has also agreed to take steps to ensure continued coordination among Title IX coordinators and
student services in both the Law School and the University, including the Harvard University
Police Department.
Page 18 - Dean Martha Minow, OCR Complaint No. 01-11-2002

The Law School has also agreed to offer information sessions for students; and it has committed
to provide training for administrators, faculty and staff, including staff specifically responsible
for recognizing and reporting incidents of sex discrimination, and staff who will be involved in
processing, investigating, resolving and/or reviewing Title IX complaints, which will include any
faculty who participate in the adjudication or review of complaint decisions.

In addition, the Law School will conduct an annual assessment of the campus climate to ascertain
the effectiveness of the steps taken to provide for a campus free of sexual harassment. As part of
this assessment, the Law School will utilize an annual student survey or other instrument to
obtain feedback regarding incidents of, attitudes toward, and effectiveness of responses to sexual
assault and sexual violence. The Law School’s Title IX coordinator will review the results of the
assessment and work to address any systemic problems identified. Throughout the monitoring,
the Law School will submit to OCR copies of all Title IX complaints and its responses.

This letter of finding sets forth OCR’s determination in an individual OCR complaint and should
not be construed to cover any other issue regarding the University’s compliance. This letter is
not a formal statement of OCR policy and should not be relied upon, cited or construed as such.
OCR’s formal policy statements are approved by a duly authorized OCR official and made
available to the public. The Complainant may have the right to file a private suit in federal court
whether or not OCR finds a violation.

It is unlawful to harass, coerce, intimidate or discriminate against any individual who has filed a
complaint, assisted in an OCR investigation, or participated in actions to secure protected rights.

If you have any questions, please contact Attorneys Anthony Cruthird or Jane López, at (617)
289-0037 and (617) 289-0083, respectively, or by email at [email protected] or
[email protected]. You may also contact me directly at (617) 289-0111.

Sincerely,

/s/

Joel J. Berner
Regional Director

Enclosure

cc: Ellen Fels Berkman, University Attorney (w/enclosure)

Updated 12/30/14, 6:30pm