For most students at Harvard, Title IX is just a brief part of a semesterly online training module. However, the truth is that Title IX has been a core component in the background of university life since its 1972 inception. The law prohibits sex-based discrimination in schools that receive federal funding, encompassing sports, harassment, legal procedures, and more.
In recent months, a lawsuit against Harvard has renewed scrutiny of these sexual harassment policies. On February 9th 2022, three female graduate students – Margaret G. Czerwienski, Lilia M. Kilburn, and Amulya Mandava – sued the University, alleging that the Title IX office and the school had neglected and mishandled her sexual harassment complaints against Professor John Comaroff over multiple years.
The following day, Nicole Merhill, the University Title IX Coordinator and the Director of the Office for Gender Equity (OGE), released a statement criticizing unfair representations that “may have a potential chilling effect on our community members’ confidence in the investigatory process and their ability to access counseling and other resources.” The OGE did not comment on the ongoing lawsuit. Merhill later apologized for potentially undermining students’ trust in the office with her statement.
The lawsuit Czerwienski et al. v. Harvard contends that Harvard’s Title IX process was broken and discriminatory. The graduate students involved in the case allege three counts of violation of the Title IX federal law and seven counts of violations of Massachusetts state and common law. According to Carolin Guentert, the Senior Litigation Counsel of the firm representing the students, “Harvard’s Title IX process is a labyrinth of arcane rules that make it exceedingly difficult for students who have experienced harassment to be heard and get the help they need.”
In 2021, in part due to mishandled allegations against a different professor, Harvard merged its Title IX office and its Office for Sexual Assault Prevention and Response under the new OGE. One common misconception is that Title IX Coordinators conduct investigations themselves. In reality, this responsibility falls on the Office of Dispute Resolution (ODR). After the OGE receives an initial disclosure and provides support, they then provide the accuser the option of filing a formal complaint, either by emailing the Coordinator or submitting an online form. The OGE then reviews the filed complaint while providing the student with more support services in the interim. Ultimately, a student is given the chance to file the complaint with the ODR. If the student chooses to do so, an investigation begins.
The complexity of this process is one of the lawsuit’s major critiques of Harvard’s Title IX. They argue that requiring students to file a complaint with the ODR places an additional burden on students. “Harvard does not investigate credible reports of sexual harassment unless a student is willing to file a formal complaint with the ODR herself,” Guentert said. “And then when the student does file a formal complaint, in practice, Harvard wants her to offer independent written corroboration of what happened. This process deters survivors and protects faculty; that was the experience of our clients.”
The lawsuit alleges that Harvard’s Title IX office took little action on its own when multiple complaints were brought to the office. The plaintiffs and other students reported incidents to Seth Avakian, a Title IX Coordinator for the FAS, whom they allege took no action in reporting their complaints to the University Title IX Coordinator or investigating them on his own. Avakian is also alleged to have discouraged filing an ODR report because, in his opinion, it would be futile.
Another point of contention in the lawsuit is faculty preparedness. The OGE holds 90-minute meetings every month with a mix of Coordinators, staffers, faculty, and anyone whose work intersects with Title IX. During these meetings, the OGE discusses offices, resources, and pertinent recent events. In theory, faculty and staff are properly trained to handle any disclosures from students.
The suit alleges that the plaintiffs had reached out to multiple professors with concerns about Comaroff’s behavior, but that none of these faculty ever raised the complaints to a Title IX Coordinator or the ODR, either due to improper training or a misunderstanding of their role. These allegations of improper training were made in 2017, and Harvard instituted a new mandatory training for faculty in 2018.
At one point, the suit even alleges that Avakian, Anthropology Department Chair Ajantha Subramanian, and Dean Nina Zipser told the plaintiffs to report their allegations to news outlets rather than go through the ODR process. After The Crimson and The Chronicle of Higher Education reported the allegations in 2020, Akavin allegedly said he had filed a complaint himself, then later said he had not and asked the plaintiffs to file complaints themselves.
The ODR does not usually search for new leads on its own. Instead, it gathers the impacted parties and collaborates with them, using any information and contacts provided. After interviewing contacts provided by both parties, the ODR issues a draft report that both parties can respond to and eventually a final report that they can each appeal. Discipline falls on offices outside of the ODR.
Guentert states that the ODR consulted the plaintiffs during the investigation and provided them with draft reports. However, the lawsuit claims that the ODR also allowed Comaroff to tamper with evidence and retaliate during the investigation. The primary allegation is that the ODR let Comaroff call in three professors from one of the plaintiffs’ academic departments as witnesses, along with one of her dissertation committee members. These individuals had no direct knowledge or information regarding the incidents. The ODR also allegedly ignored two-thirds of interviewees that the plaintiffs suggested.
The lawsuit also alleges that the ODR obtained a plaintiff’s private psychotherapy notes without her consent, shared them with Comaroff, and then published them in the final report. Merhill’s initial statement said the ODR “does not contact a party’s medical care provider except when a party has indicated that the provider has relevant information that the party wants ODR to consider.” The statement also said, “HIPAA privacy obligations apply to medical care providers, not the ODR.” The suit alleges that the ODR then presented the plaintiff with a redacted version of her own records, but then questioned her about the information that had been redacted.
The process following the initial complaints took over a year, and it is at the center of many counts in the lawsuit. “The ODR process places inordinate demands on students. Our clients had to delay their degrees by at least a year,” Guentert said. “And in the end, Harvard’s ODR made only one finding against Professor Comaroff, and ignored clear evidence that he harassed and retaliated against students.”
The lawsuit has progressed through the Massachusetts District Court. The most recent update from April 4th states that Harvard has named three defense lawyers and that both parties have consented to the jurisdiction of a magistrate judge for the case. While Harvard’s Title IX and ODR are receiving heightened scrutiny now, Guentert pointed to a similar lawsuit Rapuano et al v. Trustees of Dartmouth College that alleged a similar unwillingness to protect students and investigate claims. She remarks, “In our experience, Title IX offices at universities unfortunately often fall short of their duty to protect students and effectively and promptly investigate allegations of gender discrimination.”
Ryan Golemme ’23 (ryangolemme@college.harvard.edu), who was surprised at the lack of legalese, writes for the Independent.