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Harvard Sex Harassment Policy Denies Due Process - 28 Harvard Law Professors
Students' Fundamental Rights Violated Under Pressure From Government - Administrators Could Be Sued For Damages for Violating Constitution
I think most law professors would agree, says public interest law professor John Banzhaf, who has been arguing that such policies, at least at public colleges, violate the U.S. Constitution, and specifically the very clear rules set forth in the well known case of Mathews v. Eldridge.
Here is some of what the Harvard law professors wrote:
"Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation."
Their concerns include: "The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing," and "the failure to ensure adequate representation for the accused, particularly for students unable to afford representation."
They also complain that the rules empower one biased office to investigate, prosecute, decide, and review all accusations, adopt "a definition of sexual harassment that goes significantly beyond Title IX and Title VII law," and adopt "rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents.”
Banzhaf notes that the Supreme Court has repeatedly held that in situations in which the accused face serious consequences, they must be provided with significant procedural Due Process protections generally including the right to cross examine adverse witnesses, to be represented by counsel, and to have an impartial adjudicator separate from those who investigated or prosecuted.
In short, says Banzhaf, the policies of many if not most public universities would be found unconstitutional if challenged in court, and administrators might even be found liable for damages.
More than a dozen students accused under various university sexual harassment policies have been successful in court, and more than two dozen such cases are still currently pending.
Partially in response to new policies, male students are being advised to videotape their sexual encounters - a practice which surprisingly is not illegal in many states, says Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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