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Who Will Fall? Stand Up to Harvard to Challenge Harvard College in Court

by Megan Galbreath | Fall 2019

In May 2016, Harvard University announced a set of policies aimed at private single-gender social organizations. Though the social organizations had coexisted alongside the college for decades, Harvard created a task force to investigate the impact of their presence on campus, with the initial goal of reducing sexual assault rates. After further investigation revealed that nearly 90% of non-consensual sexual contact occurred in university housing, rather than at events hosted by single-gender social organizations, the University maintained its policy in the hopes of creating a more inclusive culture amongst an increasingly-diverse student body. In December 2018, several of those single-gender social organizations, along with three John Doe Harvard students, filed federal and Massachusetts state lawsuits to halt Harvard’s policy on the basis of violation of the First Amendment, the Fourteenth Amendment, and Title IX. Today, the lawsuits stand, after a federal judge denied Harvard’s motion to dismiss in August 2019.

1. Joshua J. Florence, “Harvard’s Sanctions, Explained (Again),” The Crimson, December 6, 2017, http://www.thecrimson.com/article/2017/12/6/sanctions-explainer-v2/.

2. Florence.

3. Marina N. Bolotnikova, “Single-Gender Groups Sue Harvard,” Harvard Magazine, December 5, 2018, https://www.harvardmagazine.com/2018/12/harvard-final-clubs-lawsuit.

4. USGSOs v. Harvard University, No. Civil Action No. 18-12485-NMG (n.d.).

5. USGSOs v. Harvard University.

6. USGSOs v. Harvard University.

8. USGSOs v. Harvard University.

9. USGSOs v. Harvard University.

10. USGSOs v. Harvard University.

11. USGSOs v. Harvard University.

Harvard: hundreds of years of history, hundreds of debatable actions. In May 2016, Harvard’s then-University President, Drew G. Faust, announced an infamous policy sanctioning student members of unrecognized single-gender social organizations (USGSOs).[1] These rules – mostly formulated by faculty committees behind closed doors, with vague and nuanced periodic updates to students – led to a hotbed of debate on Harvard’s campus about the rights of the University to regulate the extracurricular organizations to which Harvard students can belong. In essence, the policy bars members of the Class of 2021 and all future classes from holding leadership positions in university-recognized organizations (including captaincies on sports teams) or from receiving College endorsements for post-graduate fellowships such as the Rhodes and Marshall Scholarships if they belong to a USGSO.[2] Angered by what they deemed to be an overstepping of fundamental Constitutional rights, several of the targeted USGSOs banded together as the Stand Up to Harvard initiative, which filed federal and Massachusetts state lawsuits against Harvard University on the basis of violation of free speech, free association, and equal treatment based on sex in December 2018.[3] While Harvard can capitalize on the positive momentum from their recent win in court against Students for Fair Admissions (SFFA), Stand Up to Harvard brings forth several key freedoms conflicts that leaves uncertainty hanging in the air as the trial approaches.

 

At first citing concerns over sexual assault, Harvard College’s intentions appeared noble: address the pressing issue of unwelcome sexual conduct on university campuses and unite the student body by eliminating the hierarchical exclusionary practices associated with membership to selective organizations.[4] While the university did expect that change would be hard, they failed to anticipate that urging – though some would argue, coercing – single-gender student social organizations to become gender neutral would in turn lead to gender-based policy conflicts over Title IX laws. Title IX of the Educational Amendments of 1972 (20 U.S.C. §§ 1681-1688) prohibits discrimination on the basis of sex in schools that receive federal funding. In a motion to dismiss (February 2019) that was ultimately denied (August 2019), Harvard made the straightforward, albeit surface-level claim that because the sanctions policy applied equally to men and women, it could not possibly be a form of gender discrimination.[5] Federal District Judge Nathanial M. Gorton found against this argument, comparing it to Virginia’s roundabout defense for a former ban on interracial marriage (Loving v. Virginia, 388 U.S. 1, 1967).[6] In a similar way to which Harvard argues that gender discrimination is not applicable because students of all genders are sanctioned for involvement in a USGSO, Virginia alleged that race discrimination was not at play because all races were subject to the same rule (i.e. you must marry within your race).[7] However, because Harvard cannot carry out its policy without drawing distinctions regarding the sex of an individual, Judge Gorton found the plaintiffs to have a plausible claim for discrimination under Title IX.[8][1] 

 

Drawing upon the issue of freedom of association, Harvard holds the view that the University does not limit students’ rights, as the social organizations exist outside of Harvard’s jurisdiction.[9] While it is fair that students theoretically have the freedom to join any social organization – even USGSOs – it is also noted that the denial of benefits available to the rest of the student body serves as a possible coercion mechanism that violates the Massachusetts Civil Rights Act (MCRA).[10] Given that all affected students were aware of the policy prior to their voluntary application, acceptance, and enrollment at the school, it is unreasonable to claim that the sanctions in any way sufficiently threaten or coerce students, particularly because they are not aimed at any specific individual or group of individuals. Judge Gorton affirms the above argument, with the caveat that while the policy alone cannot suffice as coercion, any targeted threats or coercions toward individuals could fall under violation of the MCRA.[11] Consequently, the burden of proof falls to the plaintiffs to show from discovery that the University singled out individuals under threat of the policy if freedom of association and the MCRA are to be relevant to the case at trial.

 

It is undeniable that Harvard’s policy brings to light several conflicts that exist at the core of the country: freedom of association and equal treatment based on sex. Harvard maintains that the two fundamental rights can exist in harmony with a policy that aims to reduce sexual assault and bridge the social gaps at an increasingly diverse university. Stand Up to Harvard, on the other hand, asserts that the current policy violates students’ fundamental rights, while creating a culture of intimidation and fear that has negatively impacted private organizations seeking to provide safe spaces and a sense of belonging and support through tumultuous college years. As fellow single-gender social organizations and universities look on to see whether the oldest college in the country can defend its policy, it is left to the courts to determine whether the sanctions can coexist with some of the oldest fundamental rights in the nation.

 

REFERENCES

[1] Joshua J. Florence, “Harvard’s Sanctions, Explained (Again),” The Crimson, December 6, 2017, http://www.thecrimson.com/article/2017/12/6/sanctions-explainer-v2/.

[2] Florence.

[3] Marina N. Bolotnikova, “Single-Gender Groups Sue Harvard,” Harvard Magazine, December 5, 2018, https://www.harvardmagazine.com/2018/12/harvard-final-clubs-lawsuit.

[4] USGSOs v. Harvard University, No. Civil Action No. 18-12485-NMG (n.d.).

[5] USGSOs v. Harvard University.

[6] USGSOs v. Harvard University.

[7] Evan Gerstmann, “Federal Judge Rules That Harvard May Be Discriminating Against Single Sex Organizations,” Forbes, accessed September 29, 2019, https://www.forbes.com/sites/evangerstmann/2019/08/14/federal-judge-rules-that-harvard-may-be-discriminating-against-single-sex-organizations/.

[8] USGSOs v. Harvard University.

[9] USGSOs v. Harvard University.

[10] USGSOs v. Harvard University.

[11] USGSOs v. Harvard University.

7. Evan Gerstmann, “Federal Judge Rules That Harvard May Be Discriminating Against Single Sex Organizations,” Forbes, accessed September 29, 2019, https://www.forbes.com/sites/evangerstmann/2019/08/14/federal-judge-rules-that-harvard-may-be-discriminating-against-single-sex-organizations/.