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Harvard Single-Gender Social-Club Rules Rescinded

6.30.20


The University announced Monday that in light of seemingly insuperable legal challenges, it is rescinding its policy on unregulated single-gender social organizations (USGSOs: the undergraduate final clubs, fraternities, and sororities). The policy was proposed by President Drew Gilpin Faust and Harvard College dean Rakesh Khurana in May 2016 and finally imposed by the Corporation in late 2017 after a protracted, divisive debate (summarized here) within the Faculty of Arts and Sciences (FAS). The USGSO policy, designed to address discrimination on the basis of gender (and, as a practical matter, to undercut the prowess of the long-established, well endowed final clubs, which have properties in Harvard Square—centers for relatively unsupervised undergraduate social life), attempted to discourage membership (but not to ban or abolish the organizations) by denying members the ability to:

  • serve in a leadership role in recognized student organizations and clubs;
  • be a captain of a sports team; or
  • receive the College’s required endorsement on applications for certain scholarships or fellowships (such as Rhodes or Marshall scholarships). 

Faculty supporters of the proposal argued passionately that gender-based social organizations were incompatible with the College’s values, policies, and norms, and that the final clubs, in particular, represented forms of social differentiation and class privilege that were out of step with a student body that has become increasingly diverse in socioeconomic and other terms. There were also complaints about the social life organized around the final clubs. Faculty opponents (many of whom strongly criticize the final clubs) argued that the proposed rules in effect treated students as juveniles, incapable of making the sorts of responsible decisions that their Harvard educations are intended to advance—and that the restriction on fellowship endorsements represented an unacceptable incursion on faculty members’ prerogative to evaluate their students’ academic performance and potential.

The Policy Adopted

The faculty never voted directly to adopt the policy. The Corporation adopted it, with a statement—released by Faust and senior fellow William F. Lee at the December 5, 2017, FAS meeting (available in full here)—that cited these factors: 

  • “First, the University must act. The final clubs in particular are a product of another era, a time when Harvard’s student body was all male, culturally homogenous, and overwhelmingly white and affluent. Our student body today is significantly different.”
  • “While we should respect tradition, it is incumbent on us to organize the institution for the benefit of our current students and those who will follow. This requires us to create a community where students have the fair opportunity to engage in curricular and extracurricular activities regardless of their gender, socioeconomic status, or other attributes unrelated to merit.”
  • “…at least as an initial step, we should proceed in such a way as to give students both choice and agency in bringing about changes to the campus culture.”

Accordingly, the Corporation voted for the May 2016 sanctions policy. Faust and Lee continued:

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.

Lawrence S. Bacow, now president, was a member of the Corporation then, and supported the policy. Since it has been in place, the sororities have largely either opened their membership or vanished. Although the Delphic and the Bee clubs merged, and the Spee Club has been co-ed since 2015, the male final clubs remain largely unchanged otherwise (the Fox moved to become co-ed, but later reversed that decision). A list of recognized groups under the policy is available here. 

The Policy Withdrawn

In a message circulated to the community yesterday, 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.”

That said, the president concluded, 

[W]hile we will not be replacing the policy, the guiding purpose behind the policy remains as important as ever. The policy was adopted to advance the essential and unfinished work of making Harvard a more inclusive and welcoming environment for all our students—of creating a community in which students are not denied the opportunity to participate in aspects of undergraduate life simply because of their gender. Harvard is fairer and better when a student’s gender does not stand as a barrier to social opportunities while in college or inhibit students’ access to alumni networks that can help enable opportunities later in life. 

We applaud the many previously single-gender social organizations that have changed their membership policies to become more inclusive since the College first announced its policy in 2016. And, especially at a time of intense nationwide scrutiny directed at structures and systems that have reinforced privilege and inequity throughout society, we urge the remaining unrecognized single-gender social organizations to take this occasion to reflect further on their own membership policies. This is a moment when many organizations are questioning and rethinking longstanding practices that have contributed to exclusion and unequal opportunity. I hope that both the students who lead the remaining single-gender social organizations and the graduates who govern them will see fit to join in that effort, in the spirit of inclusion that our students deserve and our times demand. 

(Read President Bacow’s full message here.)

In an accompanying message, Dean Khurana wrote “about the issue of social inclusion at Harvard College.” He wrote:

Our decision to institute the USGSO policy in 2016 stemmed from a belief that our community is strongest when opportunities to engage and thrive are available to all students, and from the conviction that no one should be excluded from fully participating in College life because of their gender. While Harvard is withdrawing the policy, I still strongly believe that gender discrimination undermines our community’s values.
 
I echo President Bacow in calling for all of us to rethink the ways in which our actions and practices contribute to exclusion and inequality both within and beyond our campus community. I hope that for each of you that work will begin by examining the organizations you participate in, and asking yourselves who has access, and why. And I hope that you will consider making changes from within those organizations even in the absence of a College policy. I am committed to working with you as you think about what kind of organizations you wish to build, both on and off campus.

In Context…and in Prospect

The undoing of the USGSO policy comes at a time when the Harvard community, like the larger society, is convulsed about issues of diversity and inclusion. Indeed, President Bacow appointed a senior University diversity and inclusion officer—a new position— just a week before the USGSO announcement. With the regulations and sanctions regime no longer operating, the College would appear faced with a different option if it wishes to discourage membership in final clubs and other gender-based social organizations: moral suasion and education designed to persuade undergraduates that they should evaluate their choices and values, and decide not to join.

Two other policy matters bearing on diversity, inclusion, and community norms, but unrelated to yesterday’s decision, merit mention. The U.S. Department of Education’s regulations on investigation of campus sexual harassment and assault allegations and cases have now taken effect. Harvard, like most higher-education institutions, had set up Title IX processes and procedures conforming to guidance disseminated by the Obama administration. But the new processes narrow the scope of complaints that must be investigated, require that live hearings be held, and allow for cross-examination during adjudication. These more formal processes satisfy critics of the earlier system, who say that it unfairly and improperly disadvantaged those accused of sexual misconduct. Critics of the new procedures say that they will discourage traumatized victims from registering legitimate complaints. Bacow has said that Harvard would explore changes in its processes and procedures necessary to adhere to the new regulations. But the line has clearly been redrawn concerning claims that must be heard, and how—changing a major focus of efforts throughout the last decade to rectify pervasive, gender-based behaviors that society will no longer tolerate.

Looming on the horizon is the diversity and inclusion policy that has mattered most to Harvard and other selective colleges for the past half-century: affirmative action in admissionsAlthough Harvard last fall decisively won the first round of the most recent litigation challenging its holistic admissions policies (with appropriate consideration of race as one factor in properly constructed and conducted admissions procedures), that decision is on appeal now, too.

In her recent commentary for The New Yorker, assessing the Bostock v. Clayton County case that President Bacow cited, and that LGBTQ activists have hailed, Watson professor of law Jeannie Suk Gersen teased out a nuance that non-lawyer readers of the news may have missed. She observed of the case, and of Justice Neil Gorsuch, author of the majority opinion upholding rights for gay and transgender individuals (emphases added):

[T]he Court’s opinion also has some potential land mines for liberals. For one, the extreme formalism of its vision of what it is to discriminate “because of sex” means that a person’s gender, sexual orientation, or transgender status should be irrelevant to institutional decisions. On this theory, heterosexual and cisgender people, too, may have valid Title VII claims if they are not hired or promoted because of their sexual orientation or gender identity, say, by an organization that preferred to hire or promote gay or transgender individuals to work with the communities it serves.

And Bostock surely stands to affect other categories that Title VII addresses, most importantly race. In Steelworkers v. Weber, in 1979, the Court held that race-based affirmative action was legal under Title VII. The decision was a classic example of purposivist interpretation by the great liberal Justice William Brennan, who explicitly focussed on Title VII’s “spirit” rather than its text, using legislative history and historical context to reason that Congress had intended to insure integration of African-Americans through employment opportunities. But, in Bostock, the echo we hear instead is of Chief Justice Roberts in Parents Involved in Community Schools v. Seattle, which found that race-based school assignments undertaken to produce racially diverse schools violated the equal-protection clause of the Constitution. In a famously hyper-formalist statement, Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

With the Court expected to hear affirmative-action cases within two years—including ongoing lawsuits against Harvard and the University of North Carolina at Chapel Hill—there is reason to think that Bostock’s formalist articulations on discrimination will bolster a conservative decision to dismantle race-conscious admissions policies. Gorsuch offers a hint of that logic, writing that Title VII protects “individuals rather than groups,” and that any scheme that treats individuals differently because of their protected characteristic is unlawful, “even if the scheme promotes equality at the group level” and is “motivated by a wish to achieve classwide equality.” These words reveal that he has affirmative action in his sights, because affirmative-action policies necessarily consider race in their treatment of individuals.

Thus, at a time of unprecedented University and national discussion about race, gender, equity, inclusion, and diversity, the details of policies and procedures intended to offer protection or bring about change still matter, a lot. What seems like an opening up and discussion of hidden inequities and paths toward progress may be accompanied, at the same time, by constraints rooted in the nation’s legal system and institutions. Writing about constitutional interpretation, Gersen might as well have been calling the state of play at Harvard during the past few years, and in those to come, as she concluded:

We may try to predict what comes next or in a few decades. But what’s most predictable is that expectations will be unsettled, because words so often have unforeseen meanings for later readers. We obsess over interpretation because it gives rights and takes them away.

 

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