In a move alternately praised and vilified, Harvard University has adopted a policy, effective beginning with the Fall 2017 semester, providing that any student who becomes a member of any off-campus single-sex social organization is prohibited from holding a leadership position in an officially recognized on-campus organization or athletic team. Members of these off-campus groups will also be ineligible for college endorsement for fellowships such as the prestigious Rhodes or Marshall.
Fraternities, sororities and the notoriously elitist male “Finals Clubs” at Harvard have been off campus since 1984, when Harvard required that they become co-ed in order to be recognized on campus. Harvard has never openly tried to completely close down these white-dominated, exclusive fraternities and sororities.
However, the 2016 the Report of Prevention of Sexual Assault provided what appeared to be the weapon Harvard could use to cast at least the fraternities in an unflattering light. The Report characterized them as bastions of misogyny, with “men in positions of power engaging with women on unequal and too often very sexual terms.” An Appendix to the report included data alleging that females associated with these off-campus organizations were more than one and one-half times as likely to be victims of non-consensual sexual assault.
Armed with the allegations in the Report, Rakesh Khurana, Dean of Harvard College, proposed the new policy. Dean Drew Gilpin Faust, herself a 1968 graduate of single-sex Bryn Mawr College, quickly approved the policy. Faust noted the rising and unmistakable influence of these single-sex groups on student life, shifting the emphasis from sexual assault to elitism, describing these groups as disempowering and exclusionary, and their actions as “enacting forms of privilege and exclusion at odds with [Harvard’s] deepest values.” Faust stated the new policy aimed to eliminate the discriminatory membership selection of these single-sex off-campus social organizations and to marginalize their social power.
While single-sex female social organizations were not specifically criticized in the 2016 Report, they were swept along in this tide of anti-elitism cleansing.
What the fallout for Harvard will be if students are actually subjected to this policy is now being debated.
Although Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex, Senator Birch Bayh in 1974 successfully introduced an amendment to Title IX that shelters from liability educational institutions which recognize single-sex fraternities and sororities. In addition, on May 13, 2016 the Office for Civil Rights (OCR) and the Department of Justice (DOJ) reiterated in a joint Dear Colleague Letter (DCL) that single-sex fraternities and sororities whose membership consists primarily of college and university students, and which do not pay federal taxes under Section 501of the Internal Revenue Code, are exempt from adherence to Title IX.
Opponents of the policy would surely argue that Harvard could not eliminate single-sex social organizations on the basis of violation of Title IX. Could opponents of the policy argue that Harvard was violating the freedom of association guaranteed under the First Amendment? This cause of action is likely unavailing since Harvard is a private institution whose policy makers are not official state actors compelled to uphold Constitutional protections.
Opponents of the policy may argue in state court that Harvard committed breach of contract by abridging students’ freedom of association, but only if contract commitments to students or student codes of conduct actually provide students with freedom of association in student groups.
Other commentators have called the policy a not-so-subtle subversive attempt to eliminate single-sex fraternities and sororities by blaming single-sex social organizations for sexual assaults on campus, as well as a cover up of Harvard’s continuing mismanagement of reports of such assaults.
Several commentators have characterized the policy as creating a “blacklist” of students who join off-campus groups. The Foundation for Individual Rights in Education (FIRE) reported in May 2016 that Harvard made an exception in its on-campus leadership prohibitions for students who would accede to leadership positions at Harvard’s well known magazine, The Crimson Tide, perhaps fearing to tangle with the power of the press.
In August, FIRE blasted Harvard for emails reported by the Tide in which Harvard administrators urged the all-female Seneca sorority to retain its presence off-campus as a single-sex organization by simply reporting the adoption of a gender neutrality clause in its policies. In other words, according to FIRE, Seneca leaders were simply encouraged to lie to retain their single-sex status.
Secondly, Harvard’s threat to refuse endorsements for scholarships and fellowships such as Rhodes and Marshall to members of these off-campus groups may result in second tier candidates being recommended for these scholarships and fellowships. If for no other reasons, these two possibilities caution that Harvard should consider re-thinking its policy and be transparent about its true goals in adopting it.
A November update in The Crimson Tide reported that President Faust has softened her stance on the policy in response to pressure from the Harvard faculty. She has agreed to meet with faculty in December to discuss any alternatives to the policy that would achieve the goal she stated, curtailing the power and influence of the single-sex off-campus social fraternities and sororities on school culture.
Putting aside the wisdom of Harvard’s new policy as it may affect alumni support, student enrollment, and college spirit, (Harvard does not have to worry), the aspect of punishment of the individual for mere association raises an innate sense of injustice bound to express itself as a legal challenge.
Whether a viable Title IX claim can be based on the 1974 Bayh amendments is problematic, but schools with stronger government affiliations would be ripe for First Amendment Right of Association challenges. Colleges would be well advised to carefully consider the wisdom of the Harvard model in addressing issues of sexual assault and single sex organizations.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.