Janet Halley

A new article in the Harvard Law Review argues the university's new sexual assault policy makes it too easy to believe victims and automatically discredit those who are accused of sexual misconduct. In an article called "Trading the Megaphone for the Gavel in Title IX Enforcement," Harvard law professor Janet Halley identifies scenarios that could potentially lead to biased hearings against accused students. As awareness of rape on campus has grown, many schools have changed their rules so there's a lower burden of proof needed to find students "responsible" for sexual assault.

As Harvard Law School moves to depart from Harvard’s newly centralized procedures for investigating cases of alleged sexual misconduct, a group of Law professors continue to criticize the University-wide policy that defines sexual harassment, claiming that it offers lackluster protections of academic freedom...Calling the policy’s statement on academic freedom “unhelpful,” Janet E. Halley, a Law School professor, argued that “speech [in an academic context] can be a form of sexual conduct under the policy, and if it’s unwanted, speech acts could become the basis for charges of sexual harassment.”

The University of Virginia held a two-day conference last February on “Sexual Misconduct Among College Students.” One of the speakers was the Education Department’s Assistant Secretary for Civil Rights, Catherine Lhamon, who touted her office’s efforts to compel colleges and universities, under pain of losing federal funds, to adopt draconian policies on sexual harassment and assault. These policies have raised serious concerns about due process and basic fairness for the accused, and an audience member asked Ms. Lhamon how she planned to deal with such “push-back.” Her reply: “We’ve received a lot of push-back, and we need to push forward notwithstanding.” The recent experience of Harvard Law School demonstrates the value of pushing back...Most institutions yield to OCR’s pressure without significant dissent. But at Harvard, 28 law professors—including liberal luminaries Elizabeth Bartholet, Alan Dershowitz, Nancy Gertner, Janet Halley, Duncan Kennedy and Charles Ogletree —signed an open letter, published in the Boston Globe, in which they described the new policies and procedures as “inconsistent with many of the most basic principles we teach.”...Still, the law school’s new procedures are a significant improvement over the university’s, and they promise more fairness than the kangaroo-court systems many universities have adopted under OCR pressure. The investigation of Harvard College is still under way, and the university could do far worse than to follow the lead of Harvard Law, the school that pushed back.

An op-ed by Janet Halley. Students have rightly protested shoddy and outright malign handling of sexual harassment and sexual misconduct claims and demanded fairer procedures on college campuses. Many of the resulting reforms will improve things by sending the clear message that sexual abuse will not be tolerated or condoned. But, as often happens when public indignation and government power combine to force reform, it is easy to go too far and to make hasty fixes that threaten values that are forgotten at the moment of crisis...We have reached that point in the institutional, political and governmental demand for stricter enforcement of sexual harassment policies by institutions of higher education. Harvard University’s new Sexual and Gender-Based Harassment Policy, and its new procedures for student discipline, exemplify this trend.

Just a few months after Harvard University announced a new, tougher policy against campus sexual assault, a group of Harvard law professors is blasting the rules as unfair..."The Harvard policy goes so far that it's pretty shocking," says Harvard Law professor Janet Halley. She says Harvard's process, at its core, is biased, because it is run by a single Title IX compliance office that's under pressure to show the government results. "It's the charging agent like the prosecutor, it's the investigator — they're the judge, and they're the [people] who hears the appeal from all those decisions," she says. "So they're not neutral. They're there to increase the number of persons held responsible."Halley is also troubled that the policy, she says, gives alleged victims many more rights and protections than the accused. She says it is also too broad in what it considers sexual misconduct. The school, she argues, relies too much on what a victim says is a violation, and too little on what a "reasonable person might say," as federal law requires.

Dozens of Harvard Law School faculty members are asking the university to withdraw its new sexual misconduct policy, saying that it violates basic principles of fairness and would do more harm than good...“It’s a totally secret process, in which real genuine unfairnesses can happen, and it’s so airtight that no one would know,” Janet Halley, one of the professors who signed the article, said Wednesday.

This August, Columbia University released a new policy for handling “gender-based” misconduct among students. Since April, universities around the country have been rewriting their guidelines after a White House task force urged them to do more to fight sexual assault. I was curious to know what a lawyer outside the university system would make of one of these codes. So I sent the document to Robin Steinberg, a public defender and a feminist. A few hours later, Steinberg wrote back in alarm. She had read the document with colleagues at the Bronx legal-aid center she runs. They were horrified, she said—not because Columbia still hadn’t sufficiently protected survivors of assault, as some critics charge, but because its procedures revealed a cavalier disregard for the civil rights of people accused of rape, assault, and other gender-based crimes...“We need to take into account our obligations to due process not because we are soft on rapists and other exploiters of women,” says [Janet] Halley, but because “the danger of holding an innocent person responsible is real.”

It’s been just three weeks since Gov. Jerry Brown, D-Calif., signed the nation's first “affirmative consent” — or “yes means yes" — law, yet already lawmakers across the country are copying it....Shulevitz also spoke with Harvard Law School professor Janet Halley, who teaches feminist legal theory. Halley said the notion that universities play investigator, prosecutor, judge, jury and executioner is “fundamentally not due process.”

“After Sex? On Writing Since Queer Theory” (Duke), edited by Professor Janet Halley and Andrew Parker. Contributors to the development of queer studies offer personal reflections on the potential and limitations of the field, asking to what extent it is defined by a focus on sex and sexuality.

Janet Halley, an authority on legal issues surrounding gender, identity, and sexual orientation, has been appointed professor of law at HLS. “Janet Halley is one…