nancy gertner
Aspen Ideas
Published in
2 min readAug 11, 2015

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First of all, it should be said that all of this started with an appropriate and wonderful mobilization of women, who were tired of hearing stories about victims approaching their schools and being told not to bother, because it would hurt the institution. In 2011, the Department of Education threatened to defund universities if they didn’t do something about their sexual misconduct procedures. As a result, Title IX offices were beefed up around the country. Their principal concern was protecting the universities from losing funds.

Harvard addressed the problem by changing its procedures totally. It created a Title IX office. The Title IX officer was supposed to advise accusers whether or not they should file a claim, and whether it should be a claim with the university or the police. This would be followed by an informal investigation, which would decide the course of action. The troubling part was that no lawyers were involved and there was no hearing. The Harvard policy contained an appeal process, but it was an appeal on very limited grounds, so essentially the investigator had all the power.

Our letter did not demand fully-fledged due process, but we felt that some adjustments had to be made. One, Harvard had to provide counsel. Secondly, there had to be some kind of hearing that gave both sides an opportunity to speak before an adjudicator, with a questioning process. This required an adjudicator who was not in the Title IX office — someone who didn’t have a primary interest in protecting the university’s funding.

I signed that letter as a feminist, because I believed that unless the process of determining what happened was fair, women’s efforts in this struggle would be delegitimized. A lot of people still believe that false accusations of rape are everywhere. If we don’t create procedures that are fair, we will buy into those attitudes, and the movement will be undermined.

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nancy gertner
Aspen Ideas

Civil rights/criminal defense lawyer, then a United States District Court judge. Currently teaching at Harvard Law School.