Harvard anti-gender discrimination policy threatens to violate Title IX by recommending gender discrimination

We’ve chronicled the myriad problems with Harvard’s plan to sanction members of single gender organizations, initially proposed last May as as a means of ending “gender-based discrimination [which] is understood as unwise, unenlightened, and untenable.” While a worthy objective, the policy would destroy Harvard students’ right to freedom of association by blacklisting and sanctioning members of off-campus groups like final clubs, fraternities, and sororities. It has also been mired in months of controversy after being introduced with little student or faculty input and, apparently, even less thought about its practical consequences.

Never has that been clearer than right now, after the recent revelation that female-only groups will be allowed to keep their “gender focus” for 5 years or more, while all-male groups must conform to the new regulations immediately. Harvard’s latest ex post facto update to this disastrously-conceived rule doesn’t just underscore FIRE’s long-held fears about the policy’s haphazard enforcement, but it also — in a truly stunning show of hypocrisy — appears to violate the anti-gender discrimination law, Title IX of the Education Amendments of 1972.

An unlawful carve-out: an exception for women’s groups

We recently highlighted some of the most troubling parts of a report of recommendations by the policy’s implementation committee, “nearly all” of which Dean of Harvard College Rakesh Khurana, the policy’s architect, has already said he would accept. (Khurana has also appointed himself to head a second, faculty-oversight committee with the power to “revise or replace” the rules that he himself created and recently recommitted to upholding.)

Nestled in that 46-page report is “A Special Note on Transition of Traditionally Female Clubs and Female Greek Organizations” that is now receiving more attention:

Given the late entry of women into Harvard College and the fact that they have not had access to the same financial support or facilities for social life, we suggest introducing a longer, and substantially-supported five-year “bridge period” for the existing traditionally female clubs and sororities beginning when the new policy goes into effect for freshmen in fall 2017. … The committee supports the idea of continuing to allow the female final clubs and sororities to operate with gender focused missions, with the understanding that the positive contributions of those organizations to the campus community would be assessed in three to five years.

Khurana acknowledged this specific recommendation in a recent email, writing that “historical inequities faced by women in College social life may require that we provide additional resources for certain organizations to transition into inclusive organizations.”

“I will consult with the Dean of Students and the Committee on Student Life on how to best support a vigorous and non-discriminatory social experience responsive to the realities that our students, and the [Unrecognized Single Gender Social Organizations] themselves, are not all starting from the same place.”

Harvard’s desire for such an exception is not surprising. Hundreds of women marched in protest of the blacklist only days after it was announced, and Harvard administrators told at least one female-only club it would still be allowed to carry on as a single-gender organization in practice, if they nominally complied with the policy in their bylaws. (In layman’s terms, this is known as lying.) The eradication of all-women’s groups carries with it a significant political cost, since many see it as Harvard eliminating organizations that have historically served as “safe spaces” for women on campus. Accordingly, the implementation committee’s recommendation implies that women’s organizations are not a problem and their elimination, collateral damage.

A bridge (period) too far.

In that sense, this “bridge period” seems like a play by Harvard administrators to have their cake and eat it too. The implementation committee does not even commit to ever making the female organizations co-ed. Rather, it says that in three to five years “the positive contributions of those organizations to the campus community [will] be assessed.” It is not hard to imagine that Harvard could, at the end of that period, say something like “Due to the outstanding positive contributions of [all-female group] for their [charity campaign], we would be remiss if we asked them to change anything, and [all-female group] is hereby granted permanent status.”

This is a clever trick. It makes a permanent exception for women’s groups (as opposed to men’s) much harder to fight. By the end of the bridge period, people are less likely to object to preferential treatment for the women’s groups, since they’ve already experienced it as the status quo for five years. In addition, any of the formerly all-men’s groups that would want to protest their disparate treatment will have either dissolved or will have to oust five years’-worth of female members to return to their grudgingly-relinquished, single-gender status quo.

If you think we’re giving Harvard too much credit, well, we have to give credit where credit is due. Khurana’s transparently political maneuvers to curtail the policy’s opposition have been effective thus far.

Facing down a faculty motion that aimed to counteract the blacklist policy, Khurana pretended to take faculty concerns seriously and announced the creation of a faculty committee to “revise or replace” the policy. This seeming gesture of good faith led the motion’s author, Harry Lewis, to retract the motion. Little did he know that Khurana would next accept the policy, then appoint himself head of the committee to revise or replace it, while appointing only one person who opposes the sanctions to the 19-member council. Are Khurana’s tactics brazen? Yes. Are they clever? To some extent, yes, but they could only work in an environment where appeals to reason can be ignored and accountability is nonexistent. That just happens to be the environment in which Harvard administrators reside.

The Harvard brand versus Title IX.

However, a potential stumbling block for the “bridge period” may be found in federal anti-discrimination law. Title IX of the Education Amendments of 1972 reads, in pertinent part, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” There is a prominent exception for single-sex social organizations, which notes that “this section shall not apply to membership practices… of a social fraternity or social sorority.” But that protects the membership policies of those organizations. It does not give schools carte blanche to decide that women’s groups can exist but men’s cannot.

If Harvard enacts the blacklist policy, and allows women-only groups to continue to operate unaffected while men in all-male groups are denied academic, leadership, and professional privileges, Harvard will not only be immorally discriminating on the basis of sex, it will also be violating Title IX.

Harvard must undoubtedly have realized this, which likely explains an otherwise curious addition to the faculty committee, as reported by The Crimson.

The faculty committee will have dedicated legal counsel in University attorney Ara Gershengorn.

Harvard is likely weighing which risk is bigger: the PR battle over taking away safe spaces for women in an effort that is obviously directed at the male clubs, or the potential legal battle over officially implementing institutional sex discrimination in violation of Title IX.

To address some of the moral implications of the latter, I’d like to bring your attention to a particular passage from the very same final report from the Implementation Committee:

What students and faculty have said, however, is that they do not understand how a policy which they view as discriminatory can operate to address discrimination. In response, we echo the words of one of our members, who said that “of course we can be intolerant of intolerance, and of course we can discriminate against people who discriminate. That’s what liberal societies do. Even if you are skeptical about the Dean’s policy, please, let us not endorse what amounts to a pledge to abdicate our responsibility to see that everyone in our community is treated equally.”

The irony seems completely lost on them.