Harvard backs down on punishing students who join extra-University “final clubs”

Several years ago, Harvard University decided to punish students who joined off-campus “final clubs” whose membership was limited to members of one sex only. (These were both all-female and all-male clubs.) Given that these clubs had nothing to do with Harvard, I and others objected to Harvard’s punishing students for off-campus activities that involved freedom of association. (I don’t approve of the clubs, nor would I join one, but there’s nothing illegal about them.) See my reporting on this issue here and here.)

Here’s how Harvard was going to deal with students who joined those clubs; I wrote this in 2016:

  • 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.

Mendaciously, Harvard pretended that these weren’t really punishments (from article below), quoting a statement from then-President of Harvard Drew Faust and senior fellow William Lee:

The policy does not discipline or punish the students; it instead recognizes that students who serve as leaders of our community should exemplify the characteristics of non-discrimination and inclusivity that are so important to our campus. Ultimately, students have the freedom to decide which is more important to them: membership in a gender-discriminatory organization or access to those privileges and resources. The process of making those types of judgments, the struggle of defining oneself, one’s identity, and one’s responsibilities to a broader community, is a valuable part of the personal growth and self-exploration we seek for our undergraduates. The USGSOs, in turn, have the choice to become gender-neutral and thus permit their members full access to all institutional privileges.

That’s a mealymouthed statement if ever there was one. If Harvard won’t endorse your Rhodes Scholarship application, or prevent you from being captain of the crew team, that’s a punishment!

These sanctions were approved not by the faculty, but by the Harvard Corporation, and you can see their rationale in the article below from Harvard Magazine.

And as I reported last year, Harvard’s decision then faced a legal challenge:

Several organizations brought suit against Harvard for this act, and now, according to a post on the Foundation for Individual Rights in Education (FIRE) website, Federal Judge Nathaniel Gorton has denied Harvard’s request to dismiss the suit, implying that what Harvard did might violate Title IX regulations against sex discrimination (the judge’s decision is here).

The suit worried Harvard, and now, a year later, Harvard has simply decided to rescind its rule (something rare for the school)—on the basis that its “punishment” policy may constitute sex discrimination.

Click to read:

I have to say that the judge’s ruling that the suit against Harvard could go forward is a bit tortuous (my emphasis), but here’s why Harvard bailed (my emphasis):

IN A MESSAGE circulated to the community yesterday, [President] Bacow said that a ruling against Harvard last fall in a lawsuit against the policy, and a recent Supreme Court decision, make it likely that the USGSO regulations cannot be legally sustained. He noted, of the decision that federal law prohibits employers from discrimination on the basis of sexual orientation or transgender status:

While marking a major advance for LGBTQ rights, the Court’s decision in Bostock v. Clayton County also has significant implications for Harvard College’s policy on unrecognized single-gender social organizations. That policy itself does not concern sexual orientation or transgender status. It was adopted for the purpose of counteracting overt discrimination on the basis of sex—specifically, the exclusion of Harvard College students from social organizations because of their gender.

Last fall, he continued, in the fraternity and sorority lawsuit against the USGSO policy, the judge denied Harvard’s motion to dismiss the case:

In essence, the court accepted the plaintiffs’ legal theory that the policy, although adopted to counteract discrimination based on sex, is itself an instance of discrimination based on sex. The court reasoned that the policy applies to men but not women who seek to join all-male social organizations and applies to women but not men who seek to join all-female social organizations, and that this constitutes sex discrimination under federal law. In reaching this view, Judge Gorton relied heavily on the reasoning in one of the appellate decisions (Zarda v. Altitude Express) that was affirmed by the Supreme Court. It now seems clear that Judge Gorton would ultimately grant judgment in the plaintiffs’ favor in the pending lawsuit and that Harvard would be legally barred from further enforcing the policy.

Accordingly, the Corporation found, after internal consultations, that “the College will not be able to carry forward with the existing policy under the prevailing interpretation of federal law. As a result, following a vote of the Corporation on Friday to rescind its prior approval, the policy will no longer be enforced.”

The bit in bold seems bizarre: there’s sex discrimination because a Harvard male student gets punished not because he’s violating Title IX or the like, but because he joins an all-male “finals club” but a female can’t join that club. I suppose this makes some sort of legal sense in that Harvard is discriminating against men but not women who strive to join an all-male club, but women aren’t accepted into those clubs! Perhaps one of our many legal experts here can explain.

Anyway, in a rare move, Harvard caved. What about the clubs themselves? The all-women clubs have mostly either closed or become co-ed, while the male clubs remain pretty much as they are. I don’t really get the rationale for one sex club like this, but Harvard (my name for the school is Schmarvard) had no ground for punishing students for joining a legal, extra-University organization. And of course many schools have fraternities and sororities that are not only affiliated with the school but are limited to one sex only. What isn’t that sex discrimination.

Greg has a few words to end:

Addendum by Greg Mayer (who also went to Schmarvard):

I just finished a quick read. First, I must say that I am impressed by the editorial independence of Harvard Magazine– they are clearly not toeing the administration line. The author notes, correctly, that many faculty opposed the rule, and that the faculty did not approve it. (A motion to oppose the policy failed, but a motion to endorse it was never brought.)

As to the case at hand: the rule is gone in its entirety. This is a good thing, for the reasons, you and I and Haig and Pinker said earlier.

The rule that’s now rescinded penalized students for associations with disfavored groups. There had been an even harsher version, promoted by [Dean Rakesh] Khurana, that would have barred association with such groups but this version was never put in place.

At the time the rule was introduced, much was made of the rule as a way to prevent sexual assault. That seems to have disappeared from the discussion. The only thing mentioned now is sex discrimination.

Looking into the details, there was an Orwellian bureaucracy developed whereby groups unrelated to Harvard could apply to be “recognized” by Harvard, and thus be approved, while remaining unrelated to Harvard.

 

5 Comments

  1. jezgrove
    Posted July 2, 2020 at 2:03 pm | Permalink

    Harvard has come to the right decision at last (though it could have saved itself a lot of bother and expense by coming to its senses sooner).

  2. Ken Kukec
    Posted July 2, 2020 at 2:29 pm | Permalink

    The bit in bold seems bizarre: there’s sex discrimination because a Harvard male student gets punished not because he’s violating Title IX or the like, but because he joins an all-male “finals club” but a female can’t join that club. I suppose this makes some sort of legal sense in that Harvard is discriminating against men but not women who strive to join an all-male club, but women aren’t accepted into those clubs!

    Not sure a lawyer could explain that one without sounding like Doc Daneeka explaining Catch-22 to Yosarian:

    There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

    “That’s some catch, that Catch-22,” he observed.

    “It’s the best there is,” Doc Daneeka agreed.

    Think I’ll just go with a respectful whistle regarding the court’s analysis in the Harvard litigation.

  3. pablo
    Posted July 2, 2020 at 3:40 pm | Permalink

    It’s important to note that the original Havard proposal was to first ban male only organizations, giving female only organizations more time and then stipulating that female only organizations would face further review. It was an underhanded way to get rid of exclusively male organizations and they only changed it when they were threatened with Title IX.

  4. Jon Gallant
    Posted July 2, 2020 at 4:50 pm | Permalink

    I think Greg Mayer revealed a significant factor underlying the original decree: “…there was an Orwellian bureaucracy developed whereby groups unrelated to Harvard could apply to be “recognized”…” Everyone connected with academe must by now have noticed the unceasing proliferation of bureaucracies concerned with the holy trinity of D, E, and I, reminiscent of the Medieval Church. The more rules that are decreed, the more clerical offices will be required for interpretation, enforcement, and elaboration of D,E,I Doctrine. Students are getting into the act too, forming their very own little committees and congregations for the promulgation of the faith.

  5. Filippo
    Posted July 2, 2020 at 5:33 pm | Permalink

    sub


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