A crucial meta-argument is not about the policy per se but about the process by which it came into being and the presumption that "we had to do it, the feds were holding a gun to our head." Professor Halley writes,
Thanks to Professor Halley for inviting me to link to her memo.This memo is thus addressed to an unclear situation. University officials have acceded to mandates from federal regulators that, in my view and the view of many others, were adopted without proper procedures and lack any grounding in the statutes that the regulators are charged with enforcing. As I attempt to show in Parts I and II of this memorandum, many of these mandates, and hence many of the resulting provisions of the University Policy and Procedures, offend basic principles of fairness – what you could call constitutional values. But it is often said that the University and its sub-entities are without choice in installing and implementing these policies. This claim presents our community choices of a different kind, ones that may have Big C Constitutional implications.In responding to government pressure in the current crisis, institutions of higher education – Harvard included – bear responsibility for far more than sheer compliance with federal regulators inventing ever-new requirements in the name of sexual harassment enforcement. They bear responsibility for victim protection and redress, justice for all parties, due process for the accused as well as complainants. They must protect not only women but also other vulnerable minorities. They must advance, not undermine, the cause of free speech and academic freedom; must preserve respect for the autonomy and privacy of adults in their relationships; and must think not only in punitive but also in public health terms about harmful cultural practices among our students. All of this can be done without giving up the current opportunity to make protection and redress for victims of sexual harassment far better than it has been in the past.
So here is a crucial question. To resist, must a university wait until the feds have charged it with some specific malfeasance as a result of a Title IX complaint -- which if true, would be a very unattractive proposition, risking huge amounts of federal funding under circumstances when there would be enormous public sympathy for the complaint against it? Or could it pro-actively protest on principle, and, without any presenting complaint against it, seek to have statutes, regulations, and executive dicta overturned because it thought it was being unlawfully or even unconstitutionally required to comply with them?
I am trying to get a clear answer to that question.
In the meantime, it is interesting to note that much of the meta-argument of certain FAS faculty about the adoption of the new health benefit policies is exactly the same: The policy was adopted too quickly and without adequate consultation, not merely with the rank and file of faculty and students but with members of the faculty who would bring nationally recognized expertise to the deliberations. (NB: Professor Mary Lewis, who will on Tuesday formally move that the FAS ask that the new policies be suspended, is not related to me.)