- - Wednesday, October 22, 2014

Mirabile dictu. Fully 28 professors and former professors from Harvard Law School have taken a stand for freedom and for the rule of law. They are on the side of the Constitution and simple fairness.

As Ivy Leaguers go, their stand took courage. No other Ivy League school has had the temerity to buck the bullying of the federal government’s Department of Education over its threat to punish universities that it adjudges as being lax on allegations of sexual assault or sexual harassment. That is right. The Department of Education says it will withhold funding if its ukase is not followed by suspect universities. Harvard is suspected of such laxity by the Department of Education, and so the university hopes to mollify the government bureaucrats by enforcing a draconian policy toward alleged sex offenders.

The Harvard 28 responds that this policy is unfair. Furthermore, the university has a vast enough endowment to go, if need be, its own way. What is an endowment for anyway, if not to ensure the independence of a university? Raise a toast to Harvard Law.

Says professor Janet Halley, one of the Harvard 28: “It’s a totally secret process, in which real genuine unfairness can happen, and it’s so airtight that no one would know” if it were to happen. According to an op-ed piece signed by Harvard’s heroic 28 and posted online in The Boston Globe, “Harvard has adopted procedures [in its recently adopted sexual-misconduct policy] for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required” by the Department of Education’s anti-discrimination law.

What are these processes? They are processes that would not be brought against a person accused of sexual misbehavior in a court of law anywhere in America. Possibly they would be applied to the accused in courts governed by Shariah law, but not in an American court governed by the protections of the Constitution. Here our Constitution assures the accused of the right to counsel, the right to confront a witness against him or her (though probably only him), and the right to cross-examine the witness, including the right to expose any biases or reason for lying. Yes, lying. A startlingly high percentage of sexual-misconduct cases have been thrown out of court because the alleged victim was caught in a lie. Yet the Harvard policy denies the accused any of these elemental rights.

In response to the Harvard 28’s op-ed piece, a Harvard sophomore bearing the geographically fetching name of Savannah Fritz sniffed that the profs’ piece was a “a step backward.” She elaborated, “It just seems like they’re defending those who are accused of sexual assault.” Yes, I think that is true, but are not adepts at the law supposed to protect the accused from a rush to judgment? Is not everyone presumed innocent until proven guilty? And have not all the aforementioned protections of the Constitution been adopted to ensure that the innocent go free and the guilty are punished? What makes a sex offense different from any other criminal offense?

Sexual disagreements have, over the years, particularly among students and within universities, defied satire. Another Harvard student, MaryRose (that is the correct spacing of her name) Mazzola, a member of something called “Harvard Students Demand Respect,” says that her group is insisting upon even more stringent measures against sexual misconduct. They have begun circulating a petition demanding that students sign a “consent decree” before embarking upon lovemaking. Presumably it would involve checking off a box for each stage in the march toward coital bliss. For instance, check off “Now we kiss disinterestedly” or “Now we kiss passionately.” Then “Now we take a break.” Later, Ms. Mazzola might authorize a check mark adjacent to “You may touch my breast,” being careful to specify “The one on the left” or “The one on the right.” And so it would go until the final tremulously scratched check: “Now, you idiot!”

May I suggest that all students possessed of a healthy libido avoid Harvard Yard, at least until the heroic Harvard 28 ensure their rights?

R. Emmett Tyrrell Jr. is editor in chief of the American Spectator, a senior fellow at the London Center for Policy Research and the author of “The Death of Liberalism” (Thomas Nelson, 2012).

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