Harvard and 9

Apart from the litigation against Harvard concerning admissions and single-sex unofficial clubs (which has been discussed in prior blog posts), another lawsuit is pending that could affect UC's procedures with regard to Title 9 complaints. A hearing is set for this coming Tuesday:

Student Sues Harvard for Investigating Alleged Sexual Assault That Took Place Off-Campus

By Angela N. Fu and Molly C. McCafferty, Harvard Crimson, December 3, 2018/Modified December 8, 2018

A Harvard undergraduate has filed suit against the University charging it overstepped when it opened an investigation this October into allegations he raped a non-Harvard student in an apartment building located hundreds of miles from campus in summer 2017. The unnamed male student, dubbed “John Doe” in the complaint, filed a civil lawsuit Wednesday in the U.S. District Court in Massachusetts. He contends that Harvard does not have the authority to open an investigation into sexual assault allegations levied by a non-Harvard student regarding an incident that did not take place on University property. He is demanding Harvard cease to investigate him and pay him $75,000 in damages, as well as compensate him for any costs incurred during litigation.

Doe’s suit states that, during summer 2017, Doe and “Jane Roe” — the unnamed woman he allegedly raped — were both working internships “in a city hundreds of miles away from Harvard.” That city was almost certainly Washington, D.C. Additional court filings state that the D.C. Metropolitan Police Department investigated the alleged assault but ultimately decided not to prosecute the case. Doe wrote in his suit against Harvard that he is currently facing a civil lawsuit filed by Roe.

The University’s Office for Dispute Resolution opened an investigation into Doe in October 2018, according to Doe’s complaint. ODR handles all allegations of sexual or gender-based harassment at Harvard in keeping with Title IX, a federal anti-sex discrimination law. In arguing ODR does not have the jurisdiction to investigate his case, Doe pointed to University policies related to sexual and gender-based harassment. Those policies — available online — apply only to misconduct perpetrated by University affiliates while on campus or in connection with University-recognized activities. The policy also covers harassment that may create a “hostile environment” for other Harvard affiliates.

Doe, though, is likely subject to both University policy and guidelines followed by the Faculty of Arts and Sciences (FAS) as a student of the College. The University's overarching policy — which Doe referenced — does not preclude schools within Harvard from producing and enforcing their own, more expansive sets of rules. FAS policies and procedures are broader in scope than comparable University policies. Per its guidelines, FAS may hold all students to the expectation that they behave in a “in a mature and responsible manner” no matter where they are.

“It 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,” the policy reads. “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.”

Recent federal Title IX guidelines proposed by Education Secretary Betsy DeVos could complicate Doe’s suit. The new rules, released by the department on Nov. 16, limit the scope of acts of sexual harassment universities are required to investigate. Specifically, the rules stipulate schools are not required to open investigations into alleged acts of sexual misconduct that took place outside the bounds of a school "program or activity."

In his complaint, Doe charges Harvard with two counts: breach of contract and breach of covenant of faith and fair dealing. He alleges that, in allowing him to attend classes in exchange for “substantial amounts of money,” Harvard created a reasonable expectation that Doe would earn a degree from the school. One possible outcome of an ODR investigation is expulsion.

“Harvard has breached, and is breaching, its contractual obligations by subjecting Mr. Doe to a disciplinary process that—in the ways, and for the reasons, set out above—is arbitrary, capricious, malicious, and being conducted in bad faith,” the complaint states. Harvard spokesperson Rachael Dane declined to comment.

The complaint states that Doe met Roe on the night of July 22, 2017 at a party held at Roe’s apartment. There, they “engaged in sexual activity,” to which Doe alleges Roe consented. Roe, however, alleges Doe raped her, according to the lawsuit. The suit states Roe later filed a complaint with the local police department. Roe filed a civil personal injury suit against Doe in March 2018. That suit is currently ongoing.

Doe states that ODR informed him that the investigation into him is based on Roe’s allegations. In an email submitted as an exhibit in the lawsuit, Ilissa K. Povich, ODR senior investigator, wrote that the College Title IX coordinator filed the case, then reached out to Roe to ask her to participate as a complainant in the investigation.

After first questioning ODR’s jurisdiction, Doe asked Povich to temporarily suspend the investigation pending the results of the lawsuit filed in March by Roe. Doe stated a simultaneous ODR investigation would have a “serious impact” on his ability to defend himself in the ongoing civil case, according to the complaint. But Povich rejected this request, stating that Harvard University Police Department confirmed with D.C. police that law enforcement did not plan to investigate the allegations, according to an email filed as an exhibit.

Though FAS policy allows the school to pause an investigation in order to avoid interfering with active criminal investigations, it does not mention the possibility of deferring an investigation to accommodate ongoing civil litigation. 

In his complaint, Doe states that the ODR investigation is unnecessary because Roe is already “assured of having her day in court” through her civil suit. He adds that, in that suit, Doe “will be entitled to all the protections of a defendant in a civil case,” including subpoena power and the right to cross-examine Roe and other witnesses. On Nov. 15, Harvard temporarily paused its investigation into Doe, the complaint states. It reopened the investigation on Nov. 27 “with no changes to its existing procedures” and requested an interview with Doe the next day, according to the complaint.

Doe noted in his complaint that the temporary suspension of the investigation coincided with the Education Department’s release of new Title IX guidelines — “rules with which Harvard’s current proceedings do not comply,” the suit reads.

University spokesperson Melodie L. Jackson did not respond to questions regarding Harvard’s decision to pause the investigation and whether it related to DeVos’s new guidelines. In addition to filing a motion requesting a temporary restraining order and a preliminary injunction, Doe has filed a motion to proceed with the case under a pseudonym. Judge Indira Talwani ’82, who is presiding over the case, set a date of Dec. 11 for a hearing on Doe’s motion for a temporary restraining order and preliminary injunction.

Source: https://www.thecrimson.com/article/2018/12/3/student-sues-harvard-odr-off-campus/