Court: Harvard policy on single-sex orgs may be unlawful discrimination

A federal court on Friday dealt a significant blow to Harvard University’s misguided efforts at social engineering when it held that the university’s policy punishing members of unrecognized single-sex student organizations may have constituted sex discrimination. It also indirectly dealt a blow to Social-Engineer-in-Chief Rakesh Khurana, Dean of Harvard College, when it cited his statements to the Harvard Crimson as evidence of impermissible sex-stereotyping. 

The lawsuit stems from Harvard’s adoption, in May 2016, of a policy that blacklisted members of independent, single-sex, off-campus organizations (such as fraternities, sororities, and Harvard’s all-male “final clubs”) from Rhodes and Marshall scholarships and banned them from leading on-campus organizations or athletic teams. At the time, FIRE called the new policy “a stunning attack on freedom of association.” 

In December, a group of single-sex Harvard organizations, and student members of those organizations, filed a federal lawsuit alleging Harvard’s blacklist policy violated Title IX’s ban on sex discrimination as well as the Massachusetts Civil Rights Act. Harvard moved to dismiss the lawsuit, and on Friday, Judge Nathaniel Gorton of the U.S. District Court for the District of Massachusetts issued a decision on that ruling. 

Judge Gorton first addressed Harvard’s claim that some of the organizations and students did not legally have standing to challenge the policy. While the fraternity plaintiffs had members who were students at Harvard, the sorority plaintiffs did not — because they had chosen to close down as a result of the policy. The court held that without members who were currently Harvard students, and who were thus adversely affected by the policy, the sororities did not have standing to challenge it. The fraternities, however, did have standing because they have current members who are ineligible for Rhodes and Marshall scholarships, as well as for leadership roles in Harvard organizations, because of their fraternity membership. 

Of the three student plaintiffs, two (John Does 1 and 2) were underclassmen affected by the policy (which applies to students who matriculated in Fall 2017 or later), and one (John Doe 3) was an upper class fraternity member not affected by the policy. The court held that Does 1 and 2, but not Doe 3, had standing to sue. 

After dismissing the two sororities and John Doe 3 from the lawsuit, the court proceeded to consider the merits of the plaintiffs’ claims. 

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.

The plaintiffs’ Title IX claims will move forward.

The court dismissed the plaintiffs’ state-law claims under the Massachusetts Civil Rights Act, but a parallel MCRA lawsuit is still ongoing in state court. 

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.