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Judge rejects Harvard’s bid to dismiss lawsuit challenging its policy on single-sex organizations

A federal judge has refused to dismiss a lawsuit accusing Harvard University of sex discrimination because of a policy governing students in single-gender social organizations. (Steven Senne/AP)

A federal judge has refused to dismiss a lawsuit accusing Harvard University of sex discrimination because of its policy governing students who join single-gender social organizations, including fraternities and sororities.

The policy bars students from leadership positions in university-recognized organizations and from athletic teams if they join single-sex clubs not recognized by Harvard. Those students also are ineligible to receive college-administered fellowships, including the Rhodes, Marshall and Mitchell scholarships. Harvard’s traditionally male “final clubs” — the oldest social clubs at the school — are among the organizations affected by the university’s policy.

Harvard was sued by five national or local fraternities and sororities and three anonymous members of those organizations who want the court to force Harvard to drop its policy, which was announced in 2016 and put into force a year later. The lawsuit alleges that Harvard is violating the Massachusetts Civil Rights Act (MCRA) and Title IX, the federal law that prohibits discrimination on the basis of gender in educational programs and activities that receive federal funds.

U.S. District Judge Nathaniel M. Gorton rejected Harvard’s bid to drop the lawsuit but dismissed three of the plaintiffs, finding they have no legal standing. That included two sororities with no members at Harvard, and one of the students suing.

Harvard enacted the policy, officials said, because the school’s culture has changed over decades and they can no longer ignore student participation in organizations that are not recognized by the school and that are discriminatory. A 2016 statement by Drew Gilpin Faust, then Harvard’s president, said:

A truly inclusive community requires that students have the opportunity to participate in the life of the campus free from exclusion on arbitrary grounds. Although the fraternities, sororities, and final clubs are not formally recognized by the College, they play an unmistakable and growing role in student life, in many cases enacting forms of privilege and exclusion at odds with our deepest values. The College cannot ignore these organizations if it is to advance our shared commitment to broadening opportunity and making Harvard a campus for all of its students. Nor can it endorse selection criteria that reject much of the student body merely because of gender.

Harvard attorneys have argued that the school’s policy on single-sex clubs is not discriminatory because it includes all students who matriculated after 2016, men and women. Harvard has also declared, Gorton wrote, that the policy “is necessary to promote its values of inclusivity and nondiscrimination which are ‘essential to its pedagogical objects and institutional mission.’ ”

But Gorton, who as a Dartmouth College student belonged to a fraternity that is not part of the lawsuit, said in his decision:

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.

Gorton said that to win their Massachusetts civil rights claim, the student groups must prove that the “exercise or enjoyment of rights” established in the Constitution and by federal and state law have been “interfered with or attempted to be interfered with by threats, intimidation, or coercion.” And the threat must “be aimed at a particular individual or group of individuals.”

He wrote:

Policy alone cannot constitute the threats, intimidation or coercion sufficient to prevail on that claim. . . . Even if the Policy were found to be coercive despite the students’ voluntary choice to attend Harvard, the alleged threats, intimidation and coercion are insufficiently particularized to be actionable under the MCRA.

But he rejected Harvard’s request to drop this part of the lawsuit because, he said, he “is unable to determine at this stage whether such separate threats, intimidation or coercion (if identified through discovery) are sufficiently serious to be actionable under the MCRA.”

He said the student groups “have alleged a plausible claim for associational discrimination under Title IX” under “a theory of gender stereotyping.” He wrote:

Plaintiffs have asserted that Harvard’s Policy was motivated, in part, by the view that single-sex, social organizations promote sexual assault and bigotry on campus and produce individuals who fail to act as modern men and women should. 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.
For similar reasons, plaintiffs have alleged facts sufficient to state a plausible claim under a theory of antimale bias. Simply because the Policy applies equally to men and women and has purportedly had a greater impact upon all-female organizations than upon all-male organizations does not mean that the Policy was not originally motivated by bias against all-male social organizations. Indeed, plaintiffs allege that various Harvard committees and administrators have made disparaging comments about all-male “final clubs”, indicating that such organizations promote sexual violence, misogyny and bigotry. While the alleged bias is not against men generally, it is a bias against a certain subset of men and the Court must accept plaintiff’s factual allegations as true for purposes of a motion to dismiss.

The student groups are seeking damages from Harvard. Gorton wrote that they allege that students are harmed by the policy because “they are forced to for valuable leadership and postgraduate opportunities which can impact future professional opportunities,” and that “these students have purportedly suffered emotional and reputational harm and embarrassment as a result of the stigma produced by Harvard’s alleged campaign against fraternities and sororities.”

Harvard spokeswoman Rachael Dane said in a statement:

Harvard’s policy on unrecognized single-gender social organizations does not discriminate against any student, but rather is a measured and lawful policy that treats all students equally. As such, Harvard respectfully disagrees with the trial court’s analysis with respect to Tile IX and will continue to maintain in court that a policy that applies equally to men and women does not violate the law. We are gratified that the trial court agreed with Harvard that the policy allows students to make a fully-informed choice and that the policy is not coercive under the Massachusetts Civil Rights Act.

R. Stanton Jones, an attorney for the plaintiffs, said in a statement:

The court acknowledged what is undeniably true: Harvard’s Policy is discriminatory twice-over. As the court said, the Policy ‘discriminates both on the basis of the sex of the students in the social organization and the sex of the student who associates with that organization.’ The time has come for Harvard to end this discriminatory policy and do the right thing. Harvard should stop discriminating against its students and trust them to make their own choices about who to associate with.