Exceptionalism usually results in exceptionally bad treatment of victims of sexual harms. Occasionally, though, exceptionalism works the other way, treating these victims particularly well. Those anomalies may seem like victories in the short term. But advocates should be wary.
Before my classmates and I filed our Title IX complaint with the Department of Education, our college had used a single disciplinary process for all misconduct, including sexual harassment. Other schools within the university had their own disciplinary systems, which likewise handled every form of misconduct. Shortly after the Department of Education opened its investigation, the school created a separate, centralized board, known as the University-Wide Committee, to address only disciplinary charges related to sexual harm—an exceptional process. Other schools have done the same. As concern for student survivors started to garner federal attention, these colleges and universities looked to use best practices to reduce opportunities for re-traumatization and conflict—for instance, by hiring professional, external investigators to interview witnesses and collect evidence. But rather than incorporating those practices into their usual discipline systems, the schools set up separate and generally less antagonistic disciplinary protocols just for sexual harassment.
I get the schools’ logic. Their old systems had been terrible. And they were right that adjudicating a sexual harassment allegation requires more sensitivity, knowledge, and training than presiding over a student disciplinary charge for, say, plagiarism. Why not create a separate track?
One answer is that sexual harassment is not the only kind of sensitive allegation schools must address. They receive reports of other forms of discrimination, including harassment on the basis of race, religion, or disability. Sometimes, a victim is harassed based on multiple identities, and so unable to separate out what abuse is “sexual” from, say, what is race-based. Schools also hear from students who have been targeted in equally traumatic ways even if their experiences do not implicate civil rights. The student a year above me in college whose roommate repeatedly vandalized their room and threatened to murder him for getting a better part in a play was, without a doubt, upset and afraid. School administrators should have been trained to question him with care. He, too, would have benefited from an investigation process that avoids unnecessary re-traumatization.
I also fear that even when exceptionalism appears beneficial for survivors of sexual harassment at a given moment, it invariably hurts them in the long run. Nothing illustrates this better than the recent history of sexual harassment at Harvard Law School and its impact on national politics.
Harvard had long come under fire for its mistreatment of sexual harassment survivors. As Michelle Anderson has extensively documented, the university’s policies drew from many of the old, sexist traditions of criminal law, including prompt complaint and corroboration requirements. Administrators were explicit that these rules were designed to help the school quickly dispose of sexual assault allegations, which administrators felt should be handled by criminal law. Unsurprisingly, such policies and attitudes led to terrible outcomes for victims. One undergraduate student reported a rape and submitted a list of fifteen witnesses; the university nevertheless decided it was a “he said, she said” situation that they were powerless to address.
In 2014, the Department of Education announced that an investigation into Harvard had turned up Title IX violations. The government’s focus was the law school, which had its own separate disciplinary procedures, distinct from the rest of the university. In designing its unique system, the law school had made some baffling choices. For example, it permitted a student found responsible for misconduct, including sexual harassment, to appeal the disciplinary finding if the sanction included dismissal or expulsion. No such appellate right was available to the student who had filed the complaint. At that extra hearing, the accused student could call witnesses and present their case, but the complainant could not. That bears repeating: students found responsible were given an additional hearing to challenge the decision, where complainants—the classmates the school believed they had sexually harassed—weren’t allowed to tell their side of the story at all.
During the course of the Title IX investigation, Harvard administrators designed a new university-wide disciplinary system for sexual harassment allegations alone. The new procedures looked much like the processes that Harvard’s college and academic graduate schools already used to investigate other forms of student misconduct. Those general protocols include interviews of the parties but no live, adversarial hearing with cross-examination. Decisions are made based on a unique and ambiguously worded standard—that the disciplinary board be “sufficiently persuaded”—that Harvard’s lawyers have said is equivalent to the preponderance of the evidence.
The new university-wide sexual harassment procedures, however, were a dramatic departure from how Harvard Law School approached student discipline. Unlike the rest of the university, the law school used live hearings with cross-examination and required “clear and convincing” evidence, a higher standard than the preponderance. As a result, when sexual harassment cases were moved into the separate university-wide system, the law school ended up in an unusual position: its students who reported sexual harassment would now face a lower standard of proof than students who reported other misconduct. The new policy also meant that Harvard Law students would now face live, adversarial cross-examination for all complaints other than those related to sexual harassment. Contrary to the usual trend, sexual harassment victims would be treated, at least on paper, exceptionally well.
A group of twenty-eight Harvard Law professors—including many leading voices of the academic left—were displeased, both that they had not been consulted and that the new university-wide policy was, in their view, deeply flawed. In a 2014 public letter in the Boston Globe, the professors laid out their specific procedural concerns with the new system, saying that it was “inconsistent with many of the most basic principles we teach.”
Whether the letter was itself an example of exceptionalism depends on whether your focus is Harvard as a whole or its law school specifically. Anderson, the rape law scholar, notes that much of the professors’ critique—for instance, their insistence that the process had to include a live “adversary hearing”—was equally applicable to the university’s long-standing procedures for other forms of misconduct. Outside the law school, the usual disciplinary process at Harvard did not include such a hearing, regardless of the type of conduct alleged. Where was the professors’ letter objecting to that process? Just a few years before, Harvard College had mass-suspended students accused of cheating on a political science exam. The legal theorist Katharine Baker points out that the same law professors issued no comparable coordinated critique about that incident, even though the suspended students were not given the rights the professors’ letter extolled. Did the signatories only care about ensuring heightened protections when it came to allegations of sexual harassment?
That diagnosis seems less clear if you zoom in on the law professors’ corner of the university. Maybe the scope of their attention wasn’t defined by the topic of sexual harassment but instead by the boundaries of the law school, where they taught, spoke to students, and had power to shape policy. There, regardless of university-wide trends, the process for sexual harassment now looked very different from the process for all other misconduct. One signatory, Jeannie Suk Gersen, told me that she and other professors were in fact motivated by a rejection of sex exceptionalism, insofar as the new policy required a different standard for sex-based harassment than the law school used for race-based harassment. Most of their critique called on the law school to treat sexual harassment more like it treated other harms; it was, in that way, anti-exceptional. A few months after the letter, the university allowed the law school to design its own sexual harassment procedure that looked much more like its usual discipline process, including a live hearing where students could submit questions for the board to pose to the other party and witnesses.
No matter what your view, it’s clear that the discrepancy between the law school’s general disciplinary policy and the new process for sexual harassment made the latter vulnerable to critique. Then, because the professors’ criticism concerned only sexual harassment procedures, their letter created fertile ground for reactionary exceptionalism in line with the historical, misogynist trend: extra skepticism for sexual harassment allegations. When DeVos was pushing to roll back Title IX protections for survivors and impose exceptional procedural requirements on their allegations, the Department of Education and its allies cited the Harvard Law episode to defend DeVos’s proposals. Here were mostly lefty academics agreeing with them—or at least so it seemed at first glance—that schools needed to provide unique protections to students accused of sexual harassment. At an oral argument in a lawsuit challenging DeVos’s treatment of Title IX guidance, for which I served as cocounsel, the judge brought up the Harvard professors. How could DeVos’s actions be illegal sex discrimination if they agreed with her?
In the short run, an exceptionalist policy like the separate university-wide system that Harvard administrators had instituted in 2014—the one law professors criticized—may help victims of sexual harassment. The lower standard of proof obviously increases their chance of a finding of responsibility, for example. But in the long term, practices that treat sexual harassment differently from all other harms will ultimately hurt victims most of all—even if those practices were motivated by unique concerns for survivors. Exceptionalism breeds exceptionalism. Once we start down the road of special procedures, we’re more likely to bring along our cultural baggage about sex and gender, and invite others to do the same. It’s much easier to make the criminal rape trial the yardstick for sexual harassment when school policy separates out discipline for sexual harms from discipline for everything else. Suddenly, the preponderance of the evidence standard, for example, might feel inappropriate for sexual harms even if a school uses that standard for all other student misconduct.
By refusing to treat sexual harassment as a wholly separate issue, we keep our eyes on the right comparison for sexual harassment procedures: other discipline by the same institution with the same stakes and a similar balance of interests. With that context, it becomes clearer which critics want to make it especially hard to prove sexual abuses, and what misogyny drives them to do that.
CRUCIALLY, DE-EXCEPTIONALIZING SEXUAL harassment as a matter of process does not require advocates to minimize the injuries it causes or the special role it plays in reinforcing inequalities. A few years ago, I shared my argument about exceptionalism at a conference. A feminist scholar told me she worried that my position suggested that sexual assault is no different than any other injury, such as, say, being punched. The message then might become that rape victims should just get over it, ignoring the unique forms of trauma sexual victimization carries. Perhaps some might read my push to de-exceptionalize to mean that there is no need for special civil rights protections for victims of sexual harassment.
But we can distinguish substance from process. I obviously think sexual harassment is hugely important; I have devoted most of my adult life to ending it. Not all victims find it life-changing, but many do. And I do think harassment’s ramifications for individuals and society are more sweeping than is typical of the conflicts that institutions are often called on to resolve. We passed vital antidiscrimination civil rights laws precisely because these kinds of offenses really, really matter.
Yet none of the ways in which these offenses matter substantively require entirely separate procedures, so long as the “standard” process is thoughtful, sensitive, and fair. After all, race- and disability-based discrimination really matter, too, and their victims are guaranteed distinct civil rights protections. But those violations are not channeled into single-issue processes. Instead, institutions figure out how to protect race and disability civil rights within the same general procedure used for other interpersonal allegations. Courts, of course, do the same. Prosecutions for lethal hate crimes and for victimless fraud use the same process. So we as feminists can recognize the ways in which sexual harassment is a unique harm for victims and the world, while also deciding it’s wiser not to have it adjudicated through unique procedures.
None of this is to say that, as they stand today, all general disciplinary proceedings in schools and workplaces are well-equipped to respect the rights of victims. But there is no reason those proceedings can’t be improved for everyone’s sake. Similarly, while responses to sexual harassment certainly require more sensitivity than a dispute over a drunken fistfight might, this doesn’t mean that they need an entirely separate process. Rather than set up one thoughtful process and one obnoxious one, why not just create a single good track? There’s no reason, for example, to ever make a complainant submit to direct questioning by someone he has reported, regardless of the specific allegation. And plenty of disciplinary matters that are common in settings like schools and workplaces require sensitivity, training, and expertise. Without a doubt, I would want an HR professional who is investigating a groping allegation to have training to avoid re-traumatizing complainants and check her own biases. But the same goes for an investigator looking into racial harassment. Why not make sure every decision-maker is trained to address whatever set of allegations come before her?
We might take inspiration, too, from the special sex crimes units in police departments and prosecutors’ offices. From experience, law enforcement has learned they need specially trained staff to work with sexual assault victims. They might provide these victims extra forms of support. But then they prosecute sex crimes using standard, trans-substantive procedures.
In retrospect, I wish that rather than creating such a different, separate process, Harvard Law and the Department of Education had figured out a way to improve the school’s broader disciplinary framework so it would be appropriate for allegations of sexual harassment. Perhaps with some small adjustments the law school could have largely preserved the procedures its faculty had endorsed for other disciplinary matters while still protecting the Title IX rights of victims. It might have done so while keeping its “clear and convincing” standard of evidence for all alleged misconduct, except that which threatened another student’s education—including different forms of harassment, bullying, and physical assaults. Maybe those reforms would have sat better with professors, who then wouldn’t have written their letter, which then wouldn’t have provided fodder for Betsy DeVos. I’m not well versed enough in Harvard’s internal politics to know whether such an arrangement would have been feasible. All I know for sure is that when the backlash comes—and it always comes—victims lose when sexual harassment is an island of its own.