Social Groups Sue Harvard Over Sanctions
By Caroline S. Engelmayer and Michael E. Xie, Crimson Staff Writers
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A group of fraternities, sororities, and students is suing Harvard over its social group sanctions, alleging the penalties are discriminatory, coercive, and unconstitutional.
The groups filed two lawsuits Monday, one in federal and one in Massachusetts court. The federal complaint — filed by sororities, fraternities, and three unnamed College students — alleges that the sanctions constitute sex-based discrimination and violate federal anti-sex discrimination law Title IX and the United States Constitution.
The Massachusetts complaint, brought by two Greek organizations, asserts the sanctions violate the state’s Civil Rights Act and the Massachusetts Constitution because they deny students equal treatment based on their sex.
The state case requests an injunction barring Harvard from continuing its sanctions and demands the University pay the plaintiffs an unspecified amount of money to make up for what they allege the penalties cost them. Both cases ask for a court judgment that condemns Harvard’s social group policy and a court order requiring the College to cancel its sanctions.
Harvard’s sanctions — which took effect with the Class of 2021 — bar members of single-gender final clubs and Greek organizations from holding campus leadership positions, varsity team athletic captaincies, and from receiving College endorsement for prestigious fellowships like the Rhodes.
The plaintiffs in the Massachusetts suit are the international parent group of sorority Alpha Phi, Harvard’s newly reinstated chapter of Alpha Phi, and a management company for chapters of sorority Delta Gamma.
In the federal case, the plaintiffs are the international organizations for two sororities, Kappa Alpha Theta and Kappa Kappa Gamma; the parent groups for two fraternities, Sigma Alpha Epsilon and Sigma Chi; Harvard’s chapter of Sigma Alpha Epsilon; and three current Harvard students who are also members of all-male social clubs. The undergraduates are not named in the suit.
Lawyers for the social groups filed the federal suit online, but one attorney — David A. Russcol of law firm Zalkind Duncan & Bernstein — traveled to the Suffolk County Superior Court in person Monday morning to hand-deliver the state complaint. As he left the courthouse, Russcol said he feels confident the suit has a "strong chance of success."
"Harvard has really shown a disregard for the rights of its students to associate with people they want to associate with," he said. "What they do off campus shouldn't be any of Harvard's business. It's disappointing that the plaintiffs have had to take this action."
Harvard could not immediately be reached for comment Monday. When faced with criticisms of the sanctions in the past, administrators have vigorously defended the policy and argued that single-gender social groups promote exclusivity.
“At Harvard, we have a very specific mission of educating citizens and citizen leaders for our diverse and interconnected society,” Dean of the College Rakesh Khurana said in a May interview. “We do not believe that it is effective to basically institutionalize segregation.”
Legal threats began to loom almost immediately after the College debuted its sanctions in May 2016. Four months later in September 2016, the all-male Fly Club retained a group of lawyers to explore its options in defying the sanctions — and the men’s final clubs repeatedly weighed and discounted suing in the years since. Ultimately, no final clubs joined the suits filed Monday.
As recently as October, Khurana seemed confident Harvard would not face a lawsuit over the penalties. Asked how worried he was about litigation, Khurana said no one at Harvard had asked him to start preparing for the possibility that some single-gender groups might sue.
“Personally, I believe that most of these organizations are trying to find a way to become inclusive and evolve,” he said in October. “It’s just not always easy.”
A LONG FIGHT
Long before the sanctions drew legal fire, they earned blowback from Harvard professors, students, and alumni — as well as a campaign to kill the penalties on Capitol Hill.
When former University President Drew G. Faust announced the sanctions roughly two-and-a-half years ago, she spurred the ire of single-gender organizations and some faculty members alike.
Both vowed to resist however they could.
Less than three weeks after Faust’s announcement, Computer Science professor Harry R. Lewis ’68, a former dean of the College, filed a faculty motion meant to strike down the sanctions. Though Lewis temporarily withdrew his motion in January 2017 — after Khurana convened a faculty committee and asked it to revise or replace the policy — he filed another in August, calling the work of that committee disappointing. The faculty committee ultimately opted to keep the sanctions unchanged.
Lewis’s motion failed to pass at a November 2017 Faculty of Arts and Sciences meeting; 90 FAS members voted for it while 130 opposed it. And in December 2017, the Harvard Corporation — the University’s highest governing body — voted to formally adopt the penalties, seemingly guaranteeing they were here to stay.
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Beyond the gates of Harvard Yard, though, the final clubs had started making plans of their own. Rather than accepting the policies, several final clubs and Greek groups opted to take a legislative path to nix the sanctions.
Over the past year, two groups — the Cambridge Coalition and the Fraternal Government Relations Coalition — have worked with D.C. law firm Arnold & Porter to lobby lawmakers to oppose Harvard’s sanctions. Arnold & Porter, which boasts a top-notch reputation in Washington and a long list of contacts inside the government, will also represent the plaintiffs in the federal suit against the sanctions filed Monday.
The Cambridge Coalition, which formed in recent months specifically to counter Harvard’s social group policy, consists of all-male final clubs the Fly Club, the A.D. Club, and the Porcellian Club, as well as the Cambridge chapters of fraternities Sigma Chi, Sigma Alpha Epsilon, and Delta Kappa Epsilon. FGRC — comprising the North American Interfraternity Conference, the National Panhellenic Conference, and the Fraternity and Sorority Political Action Committee — retained Arnold & Porter in 2015.
Neither the Cambridge Coalition nor the FGRC signed on to either suit Monday, though two fraternities who are members of the Cambridge Coalition — Sigma Alpha Epsilon and Sigma Chi — are also plaintiffs in the federal case.
Both groups focused their lobbying efforts on a specific provision in the PROSPER Act — a higher education bill introduced in December 2017 to the U.S. House of Representatives — that aims to prevent colleges and universities from penalizing members of “recognized” single-gender social organizations. Opponents of the sanctions hope to tweak the wording of the bill to ensure it applies to the College’s sanctions.
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If the coalitions succeed and the bill passes, Harvard could be forced to choose between its social group penalties and millions of dollars in federal research funding.
But that almost certainly won’t happen. The PROSPER Act, a Republican proposal, garnered scant support even among conservatives. Given Democrats flipped the House in November, the legislation is unlikely to pass before the end of this congressional term.
Final club affiliates engaged in the lobbying efforts have said they view litigation as a “last resort.”
Harvey A. Silverglate, a lawyer representing the Fly Club, wrote in an April 2017 email to The Crimson that he and his law firm, Zalkind Duncan & Bernstein, would explore the possibility of litigation “just in case” the Fly Club decides that a lawsuit “becomes necessary.”
Now, the final clubs’ “last resort” has become a reality — though no final clubs are formally involved.
A COERCIVE POLICY?
One of the key contentions of both suits is that Harvard used strong-arm tactics to force social groups to go co-ed — strategies, the plaintiffs allege, that amount to coercion frowned upon by state and federal law.
The state suit notes that the Massachusetts Civil Rights Act provides a cause of action against any person who, by threats, intimidation or coercion, interferes with another individual’s enjoyment of his or her constitutional rights.
To prove Harvard coerced campus social groups into going gender-neutral, the state suit details several incidents — some of them previously unreported — in which Khurana and other administrators allegedly pressured social groups to abandon their single-gender status.
One episode the suit cites took place on March 29, 2016, when Khurana allegedly issued an ultimatum to the undergraduate leaders of male and female final clubs.
The clubs’ choice, as Khurana allegedly put it at the time, was simple: go co-ed or face the consequences. He gave leaders of the groups until April 15 to make up their minds. The Crimson reported that Khurana had issued this ultimatum at the time.
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More broadly, College leaders bore a personal vendetta against the groups, the suits allege. The complaints state Harvard officials often threatened to severely punish groups that did not go co-ed and comply with the College’s sanctions.
Khurana’s primary goal as dean, according to the plaintiffs, was to sanction single-gender social groups as part of an effort to ultimately remove them from campus altogether.
Early in his tenure, the dean held a series of meetings with leaders of social groups to make his intentions clear and to impress on them the dire consequences of noncompliance with the sanctions, the suits allege. In October 2014, Khurana met with the undergraduate and graduate leaders of 30 to 40 groups to hold what they thought would be a run-of-the-mill conversation about College policies.
But Khurana had other plans, according to the state complaint. He questioned the organizations’ values and said he doubted whether they aligned with the College’s mission. He closed the session by urging the groups to “do better,” suggesting they should go gender neutral.
The meeting was “uncomfortable and at times confrontational,” per the state filing.
The dean’s unwavering determination to implement the sanctions stemmed in part from a desire to avoid potential legal liability, according to the state brief. Khurana had learned prior to October 2014 that an Office of Civil Rights complaint alleged all-male final clubs were “major site[s] of sexual violence,” and Khurana was determined to address the problem by eliminating them, the suit states.
The Crimson reported in September 2017 that the 2014 OCR complaint — which spurred a federal investigation into the College’s compliance with Title IX — specifically cited all-male final clubs.
After the April 15 deadline passed, Khurana continued his alleged coercion, according to the briefs. In May, he told graduate leaders of male final clubs that he planned to “close” them if they did not go co-ed, the plaintiffs allege.
The state brief alleges Khurana told clubs that, though they had the option of choosing to admit members of all genders on their own, he would soon step in if they failed to do so.
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Khurana’s efforts to push clubs towards co-ed status continued into the fall of 2015, per both suits. In meetings with male clubs’ graduate leadership, he threatened a slew of sanctions should the clubs disobey his urgings to go gender-neutral, per the Massachusetts complaint.
Khurana allegedly told leaders that he could expel undergraduates who chose to join single-gender social groups.
When Alexander R. Miller, the College’s associate dean of student engagement, became a main point of contact for single-gender groups in the last year or so, he adopted similar tactics to Khurana, per the complaints.
“Dean Miller has made veiled threats about the consequences of failing to comply with Harvard’s changing demands (such as, ‘you know what the alternative is’ or ‘we might have to go there’) and has, on at least one reported instance, screamed at a student regarding an aspect of a social organization’s transition,” per the state brief.
Khurana and Miller could not immediately be reached for comment Monday.
Harvard's threats, the plaintiffs allege, are not limited to the two administrators alone.
“Harvard has also singled out students who join single-sex organizations for scathing criticism in university-wide letters, emails, reports, and media articles,” the federal complaint reads. “Harvard has threatened to deny future professional opportunities beyond those specified in the Sanctions Policy.”
DISCRIMINATION OR DIVERSITY?
Another central claim of both suits is that Harvard displayed a pattern of gender-based discrimination in pursuing and implementing its sanctions.
In the federal lawsuit, plaintiffs allege that Harvard has acted in violation of Title IX policies that forbid discrimination. The federal complaint specifically alleges that the College’s sanctions unlawfully discipline students because they “associate with individuals of a particular sex.”
“Because Harvard’s Sanctions Policy metes out its punishment based on the sex of both the student who joins the forbidden organization and the other members of the forbidden organization, Harvard’s Sanctions Policy is sex discrimination twice over,” lawyers wrote.
In addition, the federal complaint alleges Harvard relied on stereotypes of men and women to justify the sanctions. The federal suit states the University promoted the view that men in all-male social groups are likely to engage in sexual violence and bigotry and that women join all-female social groups to deal with exclusion from all-male clubs.
The plaintiffs allege that, in an August 2016 meeting with members of some sororities, a Harvard administrator said sororities have “no value” on campus.
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The plaintiffs further allege Harvard’s sanctions reflect the school’s skewed and biased vision of how male and female students should behave. The federal suit states the University subscribes to the notion that men and women who join single-gender social groups are failing to act like members of a “21st century society.”
“Harvard expressed the view that men and women who join single-sex organizations are do not act like modern men and women, exhibiting ‘behaviors and attitudes... at odds with the aspirations of the 21st century society to which the College hopes and expects our students will contribute,’” the lawyers wrote in the federal suit.
Moreover, the plaintiffs in the federal suit allege Harvard’s motivation for implementing the sanctions is inherently discriminatory. The complaint includes an accusation that the College hoped to “negatively affect” male students solely because they opt to join all-male groups in violation of Title IX.
The plaintiffs cite previous Harvard reports that allegedly connect “the single-sex character of all-male organizations to a raft of negative characteristics.” The lawyers claim that this constitutes an “anti-male bias” held by the crafters of the social group policy.
Khurana and other administrators, however, have repeatedly said the sanctions are meant to help improve diversity and inclusion on campus.
In December 2017, Faust and William F. Lee ’72, the senior fellow of the Corporation, wrote that single-gender social groups “stand in the way of our ability to provide a fully challenging and inclusive educational experience to the diverse students currently on our campus.”
Harvard has 20 days to file a response to the state suit, according to Russcol.
—Staff photographer Kai R. McNamee contributed reporting.
—Staff writer Caroline S. Engelmayer can be reached at caroline.engelmayer@thecrimson.com. Follow her on Twitter @cengelmayer13.
—Staff writer Michael E. Xie can be reached at michael.xie@thecrimson.com. Follow him on Twitter @MichaelEXie1.