Janet Halley

Vice President Kamala Harris cast the tie-breaking vote in October to confirm Catherine Lhamon to lead the Department of Education's Office for Civil Rights (OCR). When Lhamon held the same position under the Obama administration, her office enforced Title IX—the federal statute prohibiting sex-based discrimination in education—in a manner that endangered fundamental free speech and due process rights. ... Last year, the Department of Education enacted new, balanced regulations that protect the rights of all students, consistent with many judicial rulings. ... Prominent feminist legal scholars, including Harvard Law professors Jeannie Suk Gersen and Janet Halley, as well as the University of San Francisco Law School's Lara Bazelon, heralded the regulations for their overall fairness and for rectifying injustices in OCR's prior policies.

When a Massachusetts woman and her partner learned neither of them could carry a child, the women turned to their Facebook friends for help. “[W]ho wants to pop out a baby for my [fiancee] and I?!” the Massachusetts woman posted in early 2017, according to court documents. It wasn’t long before she received a private message. “Hey, if you and [fiancee] were serious about a baby … then I would do it,” wrote a woman who said she was childhood friends with the fiancee. ... “This case is truly amazing,” Janet Halley, a Harvard law professor, told The Post. “The court had no law to apply.”

When I spoke to the Princeton University legal scholar and political philosopher Robert P. George in August, he offered a vivid zoological metaphor to describe what happens when outrage mobs attack academics. When hunted by lions, herds of zebras “fly off in a million directions, and the targeted member is easily taken down and destroyed and eaten.” A herd of elephants, by contrast, will “circle around the vulnerable elephant.” ... George was then recruiting the founding members of an organization designed to fix the collective-action problem that causes academics to scatter like zebras. What had begun as a group of 20 Princeton professors organized to defend academic freedom at one college was rapidly scaling up its ambitions and capacity: It would become a nationwide organization...Today, that organization, the Academic Freedom Alliance, formally issued a manifesto declaring that “an attack on academic freedom anywhere is an attack on academic freedom everywhere,” and committing its nearly 200 members to providing aid and support in defense of “freedom of thought and expression in their work as researchers and writers or in their lives as citizens,” “freedom to design courses and conduct classes using reasonable pedagogical judgment,” and “freedom from ideological tests, affirmations, and oaths.” ... Some of the founding members from outside of Princeton include Randall L. Kennedy, Orlando Patterson, Jeannie Suk Gersen, Janet Halley, and Cornel West at Harvard; Brian Leiter and Dorian S. Abbot at the University of Chicago; Sheri Berman at Barnard; and Kathryn L. Lynch at Wellesley.

Education Secretary Betsy DeVos fired a shot last month in the nation’s culture wars, overhauling how colleges handle investigations of sexual assault and ending what she called Obama-era “kangaroo courts” on campus. The new Education Department rules give more protections to the accused, primarily young men who face discipline or expulsion as a result of allegations of sexual misconduct...But Ms. Devos’s actions won praise from a surprising audience: an influential group of feminist legal scholars who applauded the administration for repairing what they viewed as unconscionable breaches in the rights of the accused. “The new system is vastly better and fairer,” said Prof. Janet Halley, who specializes in gender and sexuality at Harvard Law School. “The fact that we’re getting good things from the Trump administration is confusing, but isn’t it better than an unbroken avalanche of bad things?” There are few more contested cultural battlegrounds than college campuses and the rules that govern sexual misconduct and due process, and thorny questions of how to define sexual consent... “I’m a feminist, but I’m also a defense attorney who recognizes the importance of due process,” said Prof. Nancy Gertner, a retired federal judge and lecturer in law at Harvard, who opposed the Obama-era rules. “These are fences I’ve straddled all my life.” ...Jeannie Suk Gersen and her husband, Jacob E. Gersen, also Harvard professors, have joined in the critique of Title IX. They wrote a law review article critiquing the creation of a federal “sex bureaucracy,” which they said leveraged “sexual violence and harassment policy to regulate ordinary sex.” Professor Suk Gersen’s assessment of the DeVos changes appeared in The New Yorker.

Four feminist law professors at Harvard Law School have been telling some alarming truths about the tribunals that have been adjudicating collegiate sex for the past five years. Campus Title IX tribunals are “so unfair as to be truly shocking,” Janet Halley, Jeannie Suk Gersen, Elizabeth Bartholet, and Nancy Gertner proclaimed in a jointly authored document titled “Fairness for All Students.” That document followed up on a previous open letter signed by 28 members of the Harvard Law School faculty in 2014 arguing that the updated sexual assault policy recently installed at Harvard was “inconsistent with some of the most basic principles we teach” and “would do more harm than good.”

On a crisp and gray September morning, Jeannie Suk Gersen stepped into a lecture hall at Tufts University...Gersen is a feminist legal scholar and a writer of wry, slightly elliptical commentary on legal matters at The New Yorker. She is our foremost guide to the challenges that the #MeToo movement poses to the legal system. She has staked out a position at once conventional and embattled. She shares #MeToo’s goal of ending the impunity surrounding sexual assault. But she remains committed to the principles of due process, presumption of innocence, and the right to a fair hearing. This commitment places her in tension with some of the most impassioned actors in American public life, some of whom have come to regard due process as a fatal obstacle to deterring and punishing sexual misconduct...Gersen, [Janet] Halley, [Elizabeth] Bartholet, and [Nancy] Gertner designed an alternative set of Title IX procedures — applicable only to Harvard Law students — that the Office for Civil Rights eventually certified as meeting the requirements laid out in the Dear Colleague letter, while also satisfying the principles of fair process as Gersen and her colleagues understood them.

In just the last few weeks, activists have helped shut down fraternities at Swarthmore, ousted a dormitory leader at Harvard who had signed on as a lawyer for Harvey Weinstein and pushed Princeton to review the way it handles sexual assault complaints. Administrators have initiated talks with the protesters to address their concerns...Janet Halley, a legal and feminist scholar at Harvard, said she supported the right of students to demand that Ronald Sullivan Jr., a fellow law professor, be removed from his dormitory position for representing Mr. Weinstein. But she thought it “cowardly” of the university not to be more forceful in defending the legal principle at stake. “We’re living in a hyper-polarized time,” Dr. Halley said. “If we can all be fired because of people who can be offended, there’s going to be a gigantic housecleaning around here.”

In the tumultuous few months since students began objecting to Harvard Law professor Ronald S. Sullivan Jr.’s decision to defend Hollywood producer Harvey Weinstein at his rape trial, the college has been reviewing the living climate at Winthrop House, the residential community he leads as faculty dean. But, suffice it to say, the climate is anything but copacetic. ...“It’s a constitutional right that [Weinstein] would have a defense,” Harvard Law professor Janet Halley said. “Some of us would represent Harvey Weinstein. Some of us would never, ever. Telling someone else they can’t do it? Or if they do it they’re not fit to walk the halls of a residential house, that they’re a danger to the community or somehow not respectable anymore? Those are bad things for our leadership to be thinking.”

A Letter to the Editor: We the 52 undersigned members of the Harvard Law School faculty support our colleague Ronald S. Sullivan Jr.’s dedication to the professional tradition of providing representation to people accused of crimes and other misconduct, including to those who are reviled. For the past 10 years while serving as faculty dean of Winthrop House, professor Sullivan has represented alleged victims of sexual assault as well as people accused of sexual assault, murder, and terrorism. [Editor’s note: Sullivan is representing Harvey Weinstein in his current criminal case, which has generated protests at Harvard.] We call upon our university’s administration to recognize that such legal advocacy in service of constitutional principles is not only fully consistent with Sullivan’s roles of law professor and dean of an undergraduate house, but also one of the many possible models that resident deans can provide in teaching, mentoring, and advising students. The university owes a robust response to allegations of sexual harassment and other sexual misconduct. We respect students’ right to protest professor Sullivan’s choice of clients. But we view any pressure by Harvard’s administration for him to resign as faculty dean of Winthrop, because of his representation or speaking on behalf of clients, as inconsistent with the university’s commitment to the freedom to defend ideas, however unpopular.

The law professor Ronald S. Sullivan Jr. is among the most accomplished people at Harvard. He has helped to overturn scores of wrongful convictions and to free thousands from wrongful incarceration. ... Sullivan faces this “clamor of popular suspicions and prejudices” because he agreed to act as a criminal-defense attorney for an object of scorn and hatred: Harvey Weinstein. ... Catharine MacKinnon, Harvard’s James Barr Ames Visiting Professor of Law, emailed: The issue is not whether Ron can represent reviled clients accused of crimes and still be the faculty dean of a college. Of course he can. The issue is substantive. ...The Harvard law professor Lawrence Lessig echoes the argument that it’s possible to be a survivor of sexual assault and feel comfortable with Sullivan’s choice. ...“The skills, capacities, and dispositions that would help to make a person a valued defense counsel are also the skills, capacities, and dispositions that would help to make a person a valued Faculty Dean,” [Randall Kennedy] argued.  ... The Harvard professor Jeannie Suk Gersen emailed me her concerns with such “processes”: "Professor Sullivan has chosen to represent and defend persons whom many people would not defend. Strong disagreement with those choices is of course part of the exploration of differences of principle and opinion that we’d hope for in a university." ... “Little more than half a century ago, mainstream lawyers were frightened away from defending alleged Communists who faced congressional witch hunts, blacklisting, criminal trials, and even execution,” Harvard Law’s Alan Dershowitz wrote. ... The Harvard professor Janet Halley calls Harvard’s actions “deeply disturbing.” She explained in an email: The right to counsel even for the most despised defendants, the basic role of counsel in our legal order, the presumption of innocence, academic freedom, and the right of University employees to assist persons accused in the University’s Title IX proceedings—are all implicated here. ... The Harvard law professor Scott Westfahl, however, defended the idea of a climate review, also by email. ... “We are all better off as a result,” and he noted, “I completely support the right of Professor Sullivan, an extremely talented defense lawyer, to take on a very difficult case. Should Mr. Weinstein be convicted, there will be absolutely no doubt that he received a fair hearing with the best possible defense counsel.”

Harvard Law School Professors Jeannie Suk Gersen ’02 and Janet Halley, and Senior Lecturer on Law Nancy Gertner have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement.

Education Secretary Betsy DeVos has already rescinded Obama-era guidelines for how schools handle sexual harassment and assault claims. Now, she is hoping to give what she calls fair protections to the accused. Advocates for survivors see this as a big step backward and they are making their voices heard. The deadline for public comment has been extended to Wednesday, Jan. 30. On the latest episode of On Campus Radio, we'll look into DeVos' proposed changes and how students and educators are responding to them. ... We'll then talk to Harvard law professors Janet Halley and Diane Rosenfeld about the debate over Title IX regulations.