Harvard gets legal setback in its “ban” on single-sex organizations not affiliated with the University « Why Evolution Is True

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.


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.


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