Congressional bill imperils Harvard’s sanctions for students who belong to single-gender off-campus clubs

June 10, 2019 • 12:45 pm

Greg Mayer and I written four times (123, 4) about Harvard’s misguided decision to punish students who joined off-campus single-sex clubs. These clubs—there are now eleven—are both all-male and all-female, and comprise the famous “finals clubs”, which are basically social organizations, equivalent, I suppose, to fraternities and sororities.

While I never had any interest in joining such clubs, it’s beyond Harvard’s ambit to punish students who join groups that are not affiliated with the University. This violates freedom of association, and the existence of the clubs themselves is not illegal.  Yet Harvard, at the instigation of ex-President Drew Faust and Dean Rakesh Khurana, went ahead and imposed sanctions on students joining these clubs. As I wrote in December of 2017:

Beginning with the class of 2017 [now with students entering in 2018; see below], any Harvard student found belonging to a gender-exclusive group will experience these sanctions (taken from the Post article):

  • Those students won’t be able to hold any leadership position in Harvard’s undergraduate organizations, including sports teams. That means that if you belong to an off-campus fraternity, you can’t be captain of the all-male football team. Or if you belong to a sorority, you can’t be president of the women’s crew team. Ironic, isn’t it?
  • Those students will not be able to apply for prestigious fellowships, like the Rhodes and Marshall scholarships, that require endorsements from Harvard. Harvard will not support the students by sending the required university recommendation and endorsement.

I thought, and continue to think, that this is a terrible idea, for it violates Harvard’s own policy of allowing students freedom of association. Why should they be punished for what they do off campus so long as they adhere to the student code of conduct on campus? And I’m not the only one who thinks this; Steve Pinker weighed in here, agreeing with many Harvard faculty as well as the Foundation for Individual Rights in Education (FIRE), which sent a letter of protest to Harvard.

Now, according to the Harvard Crimson, a group of lawmakers in the House of Representatives has introduced a law that would prevent colleges from blocking students’ freedom of association. Unlike a previous Republican bill that included freedom of association as one provision, and failed, this bill is sponsored by 8 Democrats and 6 Republicans. Click on the screenshot to read the Crimson‘s piece:

A bipartisan group of lawmakers introduced a bill in the House of Representatives that could imperil Harvard College’s social group sanctions Wednesday.

The bill — called the College Freedom of Association Act — seeks to amend the Higher Education Act “to uphold freedom of association protections,” according to a summary.

The CFAA would prevent universities from penalizing students who are members of single-gender organizations, whether or not the groups are officially recognized. If passed, it would almost certainly bar the College from enforcing its policies.

The College’s sanctions — which took effect with the Class of 2021 — bar members of unrecognized single-gender final clubs, fraternities, and sororities from holding leadership positions in recognized student groups, captaining varsity athletic teams, and receiving College endorsements for certain prestigious fellowships like the Rhodes.

Rep. Ruben M. Gallego ’02 (D-AZ), who introduced the bill, wrote in an emailed statement that his decision to support it is rooted in his own fraternity experience at the College.

“All Americans have a constitutional right to freedom of association, and this legislation merely reinforces these rights for students enrolled in college,” he wrote. “I have personally benefited from opportunities to form life-long friends at Harvard University as a member of Sigma Chi, and that support system helped me through difficult times after I returned from the Iraq war.”

The CFAA marks the second legislative attempt that could impact the sanctions in the past two years. A group of Republican representatives spent much of 2018 pushing for a revision to existing higher education law called the PROSPER Actthat dealt in part with social group policies. Last year, experts said that bill was almost certainly doomed.

The new bill is slightly different, however. Its sponsors, numbering eight Democrats and six Republicans, represent a cross-section of the 116th Congress. At least one of them — Rep. Elise M. Stefanik ’06 (R-NY) — was also involved in pushing PROSPER.

Now I’m not sure whether a college can refuse to officially recognize single-sex or single-gender organizations. Although I’m not a lawyer, on what grounds could anybody force a university, either private or public, to recognize University-affiliated single-sex clubs? Would that have anything to do with recognizing men’s sports teams versus women’s sports teams? It seems to me that a university, especially a private one, could do what it wants about this issue when the proposed organizations have a formal affiliation with the college.

But off-campus organizations are a different matter. There is no justification I can see for Harvard punishing students for joining unofficial finals clubs, and it was wrong to do so. I don’t know if this bill will pass. And I don’t know Gallego very well (he’s a Harvard alum), but he doesn’t seem to be a conservative Democrat. As far as I’m concerned, this provision of the bill should pass, and has the bonus of being a slap in the face to the odious Rakesh Khurana.

33 thoughts on “Congressional bill imperils Harvard’s sanctions for students who belong to single-gender off-campus clubs

  1. Isn’t Harvard one of those uberwoke places that now has segregated dorms based on identity traits like race and sexuality, that now has segregated commencements for black students? And now they are punishing students for self-segregating off campus based on identity traits? Go figure.

  2. This [gender-exclusive clubs] violates freedom of association …

    I think things like “finals clubs” are silly, and would never join one. But I think it’s even sillier for anyone to try to ban them.

    I must confess to some uneasiness, nevertheless, regarding the nature, source, and scope of the so-called “freedom of association.” The United States constitution makes no mention of such a freedom (though the courts have found a limited right to form organizations for the purpose of speaking out on public issues, as an adjunct of the First Amendment clauses guaranteeing Free Speech and the ability to petition the government for a redress of grievances).

    It may be that a more general “freedom of association” is one of those non-textual rights that emanates from the “penumbras” cast by the freedoms expressly guaranteed by our Bill of Rights — a freedom, that is, like the “right of privacy” that guarantees women’s reproductive freedom, or the right to marry, or the right to travel freely from state-to-state (none of which appears in the text of the US constitution either). Odd thing is, though, that it is generally the people most keen to see Roe v. Wade overruled who are the ones also most keen to assert this broad “freedom of association,” as was the case regarding the efforts to have the Civil Rights Act of 1964’s prohibition on private discrimination in places of public accommodation declared unconstitutional.

    1. Ken, why wouldn’t “freedom of association” be covered under “…right of the people peaceably to assemble…”?

      1. I think both its language and its position within the text of the First amendment suggest that “the right of the people peaceably to assemble” was meant to address citizens’ ability to gather together in public places, not a right to form private, exclusionary clubs.

    2. I have to agree with Ken.

      Democracy flourishes when you ban people from associating with political parties besides either the Communist and/or Fascist party (take your choice, they aren’t all that different).

      Also, you can’t have Masons and secret societies plotting against the Tzar and corrupting the State Church. Nor can you have heretics gathering with one another in association and challenging Religious Orthodoxy. If you let the heretics gather, the next thing you know, they will teach evolution in the schools.

      Speaking of which, freedom of speech and freedom of religion are great if you can ban people from actually using them by freely associating with one another.

      This is why the Soviet Constitution had a promise of freedom of religion. As long as you can’t associate with others of your persuasion without facing government repression, it is dead letter. Freedom is slavery, after all.

      1. The question what freedoms should be recognized by an idealized society is, of course, different than the question what freedoms are actually included in the US constitution.

        I have no objection to recognizing the constitutional basis of non-textual rights; what I object to is people claiming to be be “strict constructionists” or “texualists” as to some rights, while making inconsistent assertions as to other rights when it serves their purpose.

        1. “Freedom of Association” represents a conceptual broadening of “Freedom of Assembly” in the same sense that “Free Speech” represents a conceptual broadening of “Freedom of the Press”. Both are embedded in the classical liberal/republican tradition as essential to democracy (where people join parties and conduct public debates on matters of law and public policy).

          Plus, in your classical liberal order, you have much smaller state governments and a tiny federal government, and so most of the social order would be governed by private contract which entails freedom of association. Most of your early Constitutional jurisprudence concerned itself with the State’s (limited) power to intervene in matters of private contract. Very different stuff from the subject matter of Roe or Bowers.

          Not to defend “strict constructionism” or “textualism”, but there is both a textual basis for freedom of association in the U.S. Constitution, as well as a historical form based on freedom of association (which did not come under serious attack until the Civil Rights Era of the 1960’s). Further, it is typically in the Civil Rights context only that freedom of association is abrogated, unless your “association” is a terrorist organization or the Mafia. It is amazing how little scrutiny is given to home-schooling or private school arrangements for example.

          It is interesting that historically, the government felt it had authority to intervene in private contractual relations to uphold traditional morality (for example, Reynolds v. U.S. in 1879), whereas now traditional moral arrangements are abrogated on private contractual rationales (if Adam wants to marry Steve and not Eve, how can the State say no). I think this is less of a question of “textualism” versus some other school of jurisprudence, and more of a question of whether traditional morality is sound and whether imposing it is rationally justified.

          1. “Free Speech” isn’t a “conceptual broadening of ‘Freedom of the Press’”; it is a separate, co-equal right expressly guaranteed by its own clause in the First Amendment.

            Seems to me that if what you want is “classical liberal order” with limited government intrusion, the place to start is with individual bodily autonomy, including the right to make private decisions regarding reproduction (as well as the freedom to marry the mate of one’s choosing).

            The “right of private contract” is not sacrosanct under the US constitution. As Justice Oliver Wendell Holmes noted back in 1905, during the so-called “Lochner era” — when reactionary justices on SCOTUS were striking down legislation like child labor laws and the 40-hour work week — the US Constitution “does not enact Mr. Herbert Spencer’s Social Statics.”

            I see no “textual basis” for the “freedom of association” in the US Constitution. The freedoms enshrined in the Bill of Rights are those that were then in jeopardy from government interference. After all, the First Amendment itself begins with the phrase “Congress shall make no law” (a prohibition that has been extend by SCOTUS to include laws made by the executive and judicial branches as well as state governments). I see no evidence that the framers of the First Amendment were concerned that private associations (unlike the right to gather together to protest in public) were endangered during colonial times.

            Some traditional morality is sound, some much less so. That’s why standards of decency evolve, as Steven Pinker has well documented. The “freedom of association,” for example, was used not just to oppose the CRA 1964, but to justify the inclusion by private homeowners’ associations of restrictive covenants in deeds prohibiting the sale of homes to Jews or Blacks or other “undesirables.” Do you think that type of “freedom of association” is protected by the US constitution? If not, why not? How do you distinguish it from the “right of association” that private businesses like the Heart of Atlanta Motel claimed authorized it to refuse service to any customers it saw fit?

            1. You are correct, “freedom of association” is similar to “freedom of expression”, not freedom of speech. However, the point remains you can’t have a meaningful democracy without meaningful freedom of association. In terms of a “Constitutional Text” it doesn’t matter what it says. No real freedom of association means totalitarian society.

              I am probably closest to legal realism, the Constitution says and means what Judges say it means. If federal judges decide they prefer totalitarianism to liberalism, then we will get a totalitarian constitution and a totalitarian society.

              I made the descriptive point that, in general, broad support for freedom of association remains, while support for abridgment of that freedom remains on civil rights rationales. As far as my personal opinion on restrictive covenants targeting people on ethnicity, I can’t see any reason why society should enforce them.

              But I think you are clever enough to understand that even if the U.S. Constitution implicitly endorses “freedom of association”, such a right is not absolute, any more than any other right (freedom of religion does not grant the right to practice human sacrifice for example). Further, abridgments of that right will no doubt reflect the concerns and issues of the times.

              1. At a minimum, a democratic society requires:

                A. Freedom of Association;
                B. Freedom of Speech;
                C. Freedom of Religion.

                Freedom of religion probably needs to be broadened, as in a “secular age”, secular orthodoxies like Communism and “social justice” are as anti-science, totalitarian and not subject to falsification as religious claims. [Of course, the above rights need not be interpreted in an absolutist formulation, for practical reasons at very least.]

                Government requires a separation of powers into three branches, to allow for peaceful mediation of disputes between two branches, and to check the power of other branches.

                Basic liberalism requires a separation of powers in government, and a meaningful distinction between the public sphere and the private sphere (which traditional civil liberties creates). Any system of totalitarianism seeks to concentrate power in one branch–usually the executive–and eradicate the public/private distinction by eliminating civil liberties.

                Any liberal democratic constitutional order would preserve all of the above elements to function, regardless of what it said on the papers. Any papers that said the above, but which were not de facto followed would not be democratic.

              2. For what little it is worth, I regard freedom of religion to have as “parent” freedom of association. (It also has as parent freedom of speech.)

                The freedom to join a club to play soccer is an example of a non-religious freedom of association.

  3. Harvard’s original plan was to ban male only organizations, but they ran afoul of Title IX, so now the plan is to immediately hit male only organizations with sanctions, but allow female only clubs to remain “gender focused”(exclusive to women)for the next 5 years.

    1. I’m in favor of students being able to join any club of their choosing (if they’re puerile enough to want to). But let’s face it: it’s men-only clubs that have stood as a chief barrier to women’s professional advancement, not the other way round.

      Hell, when I first got out of law school and clerked for a federal judge, some of the male judges on that court still belonged to (and ate lunch almost daily) at a men-only downtown club — a club where the lone woman on the bench could join them only by invitation and only on the club’s weekly “Ladies’ Day.” I thought it was outrageous, and it came to an end not long after, but these guys were dinosaurs who’d come of age, and gone to law school, back in the post-war years of the late ’40s and ’50s (back in the days when women like Sandra Day O’Connor and Ruth Bader Ginsburg couldn’t land a job at a silk-stocking law firm).

        1. True enough, Beej. But you can’t pave the road to equality without surveying and grading the roadbed first, either.

          1. Aphorisms are all well and good, but we’re talking about a specific subject here, and, in this one, they’re trying it with inequality. To follow your metaphor, it seems their engineer’s level is off and he didn’t bother to grade the road in the first place. Or, perhaps more aptly, his own vision is what’s askew.

            1. Hey, you came up with the aphorism, buddy; I just flipped it around on ya. 🙂

              And I’m uncertain who the “they” is you’re referring to when you say “they’re trying it with inequality.” Harvard?

              As far as I know, Harvard bans all gender-exclusive clubs (which, as I’ve said, I think is wrong). Pablo speculated above that Harvard will enforce this ban discriminatorily as between men’s groups and women’s groups. I don’t know that to be the case. All I’m pointing out is that none of this is written upon a cultural blank slate.

              1. Yes, Harvard. The topic of thread was what Pablo said. I don’t know if that’s still what they’re doing, but it is what they did when they instituted this policy a couple of years ago.

                Additionally, the kinds of clubs you’re talking about are very different from finals clubs, and clubs like Skull and Bones (which is Yale, I know), and those old cigar and whiskey-filled mega-millionaires male clubs from way back. I feel like you just kind of tried to dismiss points here by seriously expanding the scope first, and then sort of ignoring the original issue.

                Anyway, did you ever watch that movie I was asking you to watch?!? I don’t even remember what it was anymore! But I have two new ones for ya, both obscure and both seen recently: The Silent Partner (1978) and Bitter Moon (1992, I think? Just got a Blu-Ray release). If you’ve seen either, I’m curious about your thoughts…

              2. Oh, I think the movie I had wanted you to see was The Lobster, which you eventually did and we discussed it already. But I feel like there was another after that…I dunno.

              3. Oh, I can definitely see how it’s not for everyone. I thought it was brilliant, but I think enjoying it requires a very particular sensibility.

              4. Are you talking about Lobster here, BJ? I generally think Colin Farrell’s great (“fuckin’ Bruges”), but don’t have patience for dystopian/fantasy/sci-fi stuff.

              5. Yeah, I think we already discussed The Lobster, which I liked a lot. There was something else you wanted me to see, but I don’t recall what it was. Maybe something else by Y. Lanthimos or by J. McDonagh?

                I saw a special arthouse screening of Blazing Saddles last night, the first time I’ve seen it on the big screen since the ’70s. Laughed my ass off again (though I noticed for the first time how sloppy some of the editing was, at least by contemporary comedic standards). I don’t suppose such a politically incorrect movie could get made nowadays.

              6. Well, Ken, I’m about to make you a bit jealous. A couple of years ago I actually got to see a live screening of Blazing Saddles in a huge NYC theater (can’t remember which one) with an hour-long talk by Brooks after.


                – Mel Brooks was 90 years old at the time and absolutely unstoppable. The interview started with him and the interviewer sitting down, but Brooks was standing before even a minute had passed and he walked back and forth the stage for the entire interview as he told stories, talked about his films, etc. He was as witty and quick as ever and his manic energy was infectious. The interviewer tried to politely get him to sit down several times and succeeded on each of them…only to have Brooks stand up and start talking to the audience members in front of him just a few seconds later. He probably sat for a total of three minutes.

                – The interview was supposed to be an hour, but the interviewer couldn’t stop Brooks. After the hour was up, the interviewer kept trying to end the show, but Brooks kept saying, “OK just one more story/question.” It ended up being one hour and 45 additional minutes.

                – Brooks talked at length about how there was no way he would ever get the film made today, even with the years of clout he’s built up. He figured he’d probably have to finance and distribute it himself and that it was unlikely almost any theater would touch it. (He didn’t talk about the backlash he would personally get)

                – The dude was just awesome. Having dinner with Mel Brooks must be like taking acid at your favorite concert: a complete sensory overload in the best way possible, and you end up smiling and giggling with giddiness a whole hell of a lot.

              7. BJ, I think you’re going to make us ALL jealous. What fun! I did see a PBS special on Brooks (American Masters or something) fairly recently. Unstoppable is right!

      1. But let’s face it: it’s men-only clubs that have stood as a chief barrier to women’s professional advancement, not the other way round.

        Apparently, not very effective barriers after all. . .

        I presume it was similar to the way that super-majorities of powerful heterosexual white men in America used their male-only legislatures to amend the Constitution to extend the vote to women in 1919.

        1. Yeah, took only a hundred and thirty years after constitutional ratification for women to secure the voting franchise, and now a century on since then, they’re still clawing their way to parity in politics and the professions.

          1. There will never be parity unless it’s by enforcement, since women are, on average, more risk-averse, value their time away from work more, and are less willing to sacrifice things in the name of ambition. Among other reasons.

            We should, and I think largely have, equality of opportunity. Equality of outcome doesn’t belie equality of opportunity.

  4. I should repeat that Dean Rakesh Khurana came from the Harvard Business School, and is a specialist in the magical subjects of management and leadership. That Dean Khurana is so “woke” could be an ominous straw in the wind about where business culture in the US is heading. If Harvard claims the right—indeed the responsibility—to penalize its students for engaging in non-woke association off campus,
    one can foresee a plausible next step at the leadership level: perhaps HR departments of business firms could penalize employees when they display signs of non-wokeness outside of working hours.

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