Harvard gets legal setback in its “ban” on single-sex organizations not affiliated with the University

Over three years ago, I reported (see also here: 123) how Harvard University, under the aegis and urging of then President Drew Faust, had proposed punishing students who join single-sex (or rather, single-“gender”) social organizations that aren’t affiliated with the University. These include the famous “finals clubs,” which include all-male and all-female as well as co-ed versions. This was largely the work of Dean Rakesh Khurana (motto: “Not just a dean but a friend” LOL), who for years has tried to regulate student behavior in ideologically approved ways.

Harvard’s mandated punishments for belonging to such groups were quite severe (I don’t know if they applied any). As I wrote in that first post:

“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.”

While I wouldn’t join such clubs, and in fact refused to “rush” for fraternities in college, it is a violation of freedom of association for colleges to police what organizations their students join on their own time. For Harvard to punish students for belonging to such clubs is a form of authoritarian paternalism that in fact seems illegal.

And so it might be. 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). Read the FIRE report, written by Samantha Harris, by clicking on the screenshot below:

.

As the report notes, several of the groups who brought the suit lacked “standing”, since they had no active members attending Harvard, and so those groups (and two individuals) were bounced from the suit. But the rest of the plaintiffs had standing and remained. The Title IX decision is based on Harvard discriminating against students based on the sex they associate with (see below). Ironically, Khurana, by making statements to the press, provided justification for the judge’s ruling.

FIRE:

The court held that, for a variety of reasons, Harvard’s policy appeared to impermissibly discriminate against students on the basis of sex in violation of Title IX.

First, the court held that the policy led to “disparate treatment” of students based on their sex. It did not matter, the court held, that the policy applies equally to both men and women, because it still draws distinctions based on sex (citations omitted):

[I]t is impossible for Harvard to apply its Policy without considering both the sex of the particular student and the sex of the other students with whom he or she seeks to associate. Whereas a male student seeking to join an all-male organization would be subject to the Policy (and vice versa), a female student seeking to join the same all-male organization would not be subject to the Policy (and vice versa). The fact that the female student would otherwise not be allowed to join the all-male organization because of the organization’s own discriminatory policy does not alter the conclusion that the sex of the student is a substantial motivating factor behind the Policy. Indeed, sex is essential to the application of the Policy to any particular student.

It is simply irrelevant that the Policy applies equally to both male and female students. A policy is no less discriminatory or motivated by sex simply because it applies equally to members of both sexes. What matters is that the Policy, as applied to any particular individual, draws distinctions based on the sex of that individual.

For the same reason, the court also held that the plaintiffs had plausibly alleged “associational discrimination” under Title IX, because to apply the policy, the university has to analyze the sex of the people with whom a particular student wishes to associate, which is impermissible.

The court also found that statements Khurana made to Harvard’s student newspaper, The Crimson, were evidence of sex-stereotyping in violation of Title IX. In April 2016, as Harvard was considering the policy that it ultimately adopted, Khurana told the Crimson that:

The College has for many months made it clear that the behaviors and attitudes espoused by unrecognized single gender social organizations at Harvard College remain at odds with the aspirations of the 21st century society to which the College hopes and expects our students will contribute.

Considering this statement, the court held that:

It is certainly plausible that Harvard’s purported ideal of the “modern” man or woman is informed by stereotypes about how men and women should act. Withholding benefits from students who fail to conform to such stereotypes violates Title IX.

That last pithy paragraph is a verbal slap in Harvard’s face.  Author Harris also gets a bit of satisfaction in her closing:

The court’s ruling represents a significant blow to what FIRE has called “Harvard’s disgraceful decision to [institutionalize] official discrimination against members of its community for their supposedly unsavory associations.” Three years ago, Khurana and then-Harvard President Drew Gilpin Faust ignored FIRE’s warnings not to do this. We hope that this time, Khurana and Harvard will heed the warning of a federal judge and withdraw its wrongheaded and discriminatory policy.

Increasingly, colleges are cutting back on their mission of educating students in favor of social engineering: inculcating students with values that professors and administrators deem ideologically appropriate and salubrious. In fact, if you read about places like Middlebury College or Williams College, you can easily get the impression that their most important mission by far is inculcating the student body with certain approved values. That those values are liberal ones, and align with mine, is irrelevant. College is not about brainwashing, but about brain-expanding. Harvard and Khurana screwed up on this one, but they aren’t backing down.

Stay tuned.

 

23 Comments

  1. GBJames
    Posted August 14, 2019 at 12:24 pm | Permalink

    sub

  2. pablo
    Posted August 14, 2019 at 12:36 pm | Permalink

    Harvard’s goal wasn’t to get rid of single sex organizations but specifically all male organizations. They knew they couldn’t get away with that, so the original proposal was to punish men joining all male clubs immediately, and give all female clubs a 5 year grace period, after which the policy would be reviewed. Luckily the courts aren’t buying it.

  3. rickflick
    Posted August 14, 2019 at 12:42 pm | Permalink

    Good grief! Doesn’t Haav’d have an entire law school full of experts at their disposal? They could have simply circulated the first draft of this crazy idea and let it fall dead on the grassy lawn.
    Does anyone know if Haav’d has restrictions on students belonging to all-black clubs, Chinese student organizations, soccer team members, Hitler Youth, Democrats for Trump, etc? It seems everyone has special interests of one sort or another.

    • Saul Sorrell-Till
      Posted August 14, 2019 at 2:12 pm | Permalink

      I doubt it would have been dreamt up by the kind of student who studies law. It’ll probably have been students of something more mushy and academically vaporous, where technical detail is not as important as idealistic fervor.

      Bottom line, this surely isn’t legal, and(as with pretty much every fuckwitted proposal these illiberal-left students dream up) the consequences would be disastrous for them if it was.
      Eg. any conservative university want to ban atheist students gathering off-site? Go ahead. How about banning black student groups from meeting in bars after lectures to discuss Afrocentrism? Again, go ahead.

      I don’t think any of these students are stupid. They’re at Harvard, clearly they’re not.
      My only explanation is that they’ve become so monstrously complacent from the total, spineless acquiescence that meets their every demand that their ability to think things through logically has deserted them.
      They haven’t had to actually argue for anything during their time there – they just use the power of moral shame and groupthink to win debates for them.

      So when they bump up against the real world – where no-one gives a shit about your lived reality or the force majeure of your identity – they fail in spectacular fashion.

  4. Blue
    Posted August 14, 2019 at 12:54 pm | Permalink

    Okay, so in re “it is a violation of freedom
    of association for colleges to police what
    organizations their students join on their
    own time,” then seriously an answer, please:

    How is it that, country – wide, women had had
    up until the 1980s and, in some public
    universities, in to the 1990s, “hours” in re
    their residences within public university –
    dormitories ?

    But.

    The men did not. No such thing as “hours”
    in re any man 18 and older. Uh – uh. No.

    For more than one time, I loathed this
    violation of my freedom on .my time. to
    associate with whomever I wanted to … …
    at my age of 18 and 19 and on and on, .my time.
    being often after 10:30pm Sundays through
    Saturdays … … yeah. that. hours. fuck ’em.

    And for more than one time, I got, well,
    written up. It is of no wonderment to me that:
    stuffs like Woodstock happened. I had had it.

    Blue

    • Blue
      Posted August 14, 2019 at 1:11 pm | Permalink

      And for more than one time, I got, well,
      written up. With, as well, my parents
      telephoned. At age 18, 19, 20 and on
      in to my 20s.

      Why was this not only allowed but written down as “policy” within undergraduates’
      code of conduct – handbooks ? at public institutions of higher learning ?

      “higher,” my ass. Institutions of
      Control Her By Any Means Necessary is
      more the accuracy / is more in line with
      parsing .everything. down to: what I have
      before stated = control her fertility.
      NO matter what. And ANYWHERE within the World.
      Religions or NO religions. Just get her fertility controlled.

      Blue

      • Blue
        Posted August 14, 2019 at 1:13 pm | Permalink

        AS IF: there is no such thing as
        Afternoon Delight.

        How stupid … … of ’em all.

        Blue

    • DrBrydon
      Posted August 14, 2019 at 2:01 pm | Permalink

      Because it was the bad old days, and, presumably, no one thought to sue, and challenge those rules.

      • Ken Kukec
        Posted August 14, 2019 at 4:02 pm | Permalink

        Instead, people got behind the Equal Rights Amendment, which was first proposed by Alice Paul in 1923, and seemed destined for ratification in the 1970s, but came up just short.

        Thanks, Phyllis Schlafly, you hopeless harridan, you virulent virago, you terrible termagant.

        There is pending congressional legislation to reopen the ratification period.

        • Filippo
          Posted August 14, 2019 at 4:48 pm | Permalink

          “Shrill, shrieking shrew”?

        • Blue
          Posted August 14, 2019 at 6:36 pm | Permalink

          O ! Darling, Mr Kukec, for remembering this along with thus: http://www.blueshoenashville.com/suffragehistory.html , the 99th anniversary of which is coming up within just four days’ time ! My own mother was already … … three years old. And my daddy eight months old. Then.

          A 24 – year – old male could, but his own mama, could not vote. So he, upon its third balloting and soooo angering ALL of the red rose lapel – sporters, followed the counsel of his own mama stating the next morning when tempers had somewhat cooled, “A mama would not want for her child something that is wrong or bad. She wouldn’t. She would only want to have happen for her son what was a good thing. So what you saw was my red rose, but what you did not see was the telegram she sent me yesterday morning … … she asked me to help Ms Catt ratify. I followed Mama’s counsel is all.”

          NO history class of which I have EVER heard … … imparts this. Never. Ever. Why the ‘ell not ?! Why the hell is nearly everything racial / racist / anti – racist taught. Yet NO ONE knows of this ? NO one knows of the years and years and decades of gargantuan struggle. Just, alone, for the vote. And not for any other of humans’ rights.

          Consider this: ALL who actually did this law – changing were … … MEN. Women were relegated ONLY to the galleries of law – making bodies. MEN HELPED. THEN. Mr Ken Burns ( no relation ), documentarian, states that NO other event in the 20th Century positively impacted so many people. And there, inside the 20th Century, were many events … … world wars and holocausts, etc. But of those events positively affecting folks ? Women and just the vote alone ? One event hardly heralded.

          cuz: this one of Mr Harry Burn ( with no s ) was not the only deal. Two other men at one other time upon the USA’s Congressional floor came forward: one in a full body cast over roads traveling in August heat inside a wagon drawn by six horses all night long, roads said ” to be most unkind ” to make the vote; the other man leaving his dying wife in upper New York State to do the same and returning there after the vote only to find her already dead.

          SO: WHY NOT NOW ? Where are these men now ?

          Blue

          • Blue
            Posted August 14, 2019 at 6:50 pm | Permalink

            Yes, a depiction.
            Yes, a religious song accompanies.

            Ignore all of that and consider the reality of the Occoquan Workhouse Prison’s Night of Terror, 14 November y1917, when my own mother was exactly that very day eight months of age: http://www.youtube.com/watch?v=uh91kJ5XG_g.

            Know of all of this torture did you ?
            I ‘ld wager not. Certainly not from its being presented within formal history studies.

            I’m done, Boss.
            Blue

          • Ken Kukec
            Posted August 14, 2019 at 6:53 pm | Permalink

            Keep the (secular) faith, Blue.

            As Dr. King said (and as Dr. Steven Pinker has demonstrated empirically), the arc of the moral universe is long, but it bends toward justice.

        • rickflick
          Posted August 14, 2019 at 6:40 pm | Permalink

          Those are wonderful epithets. Too bad I’ll forget them when I really need them.

          • Ken Kukec
            Posted August 14, 2019 at 7:20 pm | Permalink

            I generally avoid these epithets as sexist. But have few qualms about employing them as regards Ms. Schlafly, who promoted sexism, while herself hypocritically eschewing the role of hausfrau and helpmate she pushed upon other women.

            • Jenny Haniver
              Posted August 14, 2019 at 10:03 pm | Permalink

              Your epithets, sexist though they are, are not misplaced when applied to Ms. Schlafly –since she insisted on restricting women to stereotypical societal roles, then drape her in stereotypes of women, but I think what all of you need is an Elizabethan curse generator such as https://trevorstone.org/curse/ or https://www.sam-i-am.com/play/5k/expletives/index.html, which will yield such charming expressions that could be applied to her: sottish fen-sucked harpy! bawdy common-kissing bum-bailey! reeky boiled-brained flax-wench, and so forth.

              • rickflick
                Posted August 14, 2019 at 10:44 pm | Permalink

                These are real gems. Thanks for the link.

                Thou waggish spur-galled varlot!
                Thou knavish reeling-ripe haggard!
                Thou artless shard-borne codpiece!
                Thou whoreson reeling-ripe younker!
                Thou lewd fat-kidneyed hedge-pig!
                Thou mewling evil-eyed jack-a-nape!
                Thou wanton rump-fed whey-face!
                Thou currish fool-born boar-pig!
                Thou tottering fly-bitten nut-hook!
                Thou infectious pox-marked scut!

              • Filippo
                Posted August 15, 2019 at 5:18 pm | Permalink

                I’m reminded that Johnny Carson would occasionally do something like this (as “Karnak the Magnificent” [sp.?]):

                “May an unclean troll fan dangle in your fruit loops!”

              • Filippo
                Posted August 15, 2019 at 5:11 pm | Permalink

                “Saucy wench!” (From some movie I saw.)

            • rickflick
              Posted August 14, 2019 at 10:41 pm | Permalink

              I’m sure Schlafly would be mightily upset to be referred to as Ms., so I’m mightily glad you did.

    • Michael Waterhouse
      Posted August 14, 2019 at 9:58 pm | Permalink

      “It is of no wonderment to me that:
      stuffs like Woodstock happened.”

      Exactly.

  5. Jon Gallant
    Posted August 15, 2019 at 12:26 am | Permalink

    The goal of brainwashing students into a
    particular ideological agenda is obvious from
    Harvard to Evergreen, but this is not exactly what Dean Khurana is doing. Washing brains would be an educational operation of sorts, like that assigned to Народный комиссариат просвещения, Наркомпрос in the late-lamented
    CCCP. Rather than educate anyone, the dean’s regulations impose penalties on students for
    engaging in forbidden association, which is punishment rather than persuasion. This would fit better with the duties of a different Commissariat, perhaps Комите́т Госуда́рственной Безопа́сности.

  6. Posted August 15, 2019 at 11:27 am | Permalink

    Normally I am always ambivalent about legal processes to stop dumbassery at universities, because of the legal costs, etc. falling on innocent students. But I think I can be less ambivalent when it comes to Harvard, which I understand has an endowment larger than than the net worth of several countries.


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