Harvard University is rescinding its controversial policy that penalized students who were members of fraternities, sororities and other single-gender clubs. First imposed on the grounds that the clubs were discriminatory, Harvard officials said they were dropping it because the policy itself, announced in 2016, could be seen as legally discriminatory.
The policy, imposed under the administration of President Drew Gilpin Faust in 2017, had barred students from leadership positions in university-recognized organizations and from athletic teams if they joined single-sex clubs not recognized by Harvard. Those students also were ineligible for college-administered fellowships, including the Rhodes, Marshall and Mitchell scholarships.
Harvard’s traditionally male “final clubs” — the school’s oldest social clubs — were among the organizations affected by the policy. So were fraternities and sororities, which are not sanctioned by the university and were beyond the school’s disciplinary reach. Students who join them, however, were not.
Faust said at the time the policy was enacted that Harvard could no longer “endorse selection criteria [in clubs] that reject much of the student body merely because of gender.”
Bacow said he made the decision after the June 15 ruling by the U.S. Supreme Court, which found that a federal civil rights law from the 1960s does protect gay and transgender workers. It was a huge boost to LGBTQ rights but, Bacow said, had an unexpected impact on Harvard’s policy.
The other decision involved a lawsuit against Harvard filed by five national or local fraternities and sororities that claimed the university was discriminating against them with the policy. In August, a federal judge refused to dismiss that lawsuit, which alleged that Harvard was violating the Massachusetts Civil Rights Act and Title IX, the federal law that prohibits discrimination on the basis of gender in educational programs and activities that receive federal funds. Shortly before Harvard made its announcement on Monday, the plaintiffs had filed a motion for preliminary or permanent injunction.
Harvard attorneys had 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.
But U.S. District Judge Nathaniel M. Gorton, who belonged to a fraternity as a student at Dartmouth College that was not part of the lawsuit, said last year: “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.”
Bacow wrote in his letter to the Harvard community:
While marking a major advance for LGBTQ rights, the [Supreme] Court’s decision in Bostock v. Clayton County also has significant implications for Harvard College’s policy on unrecognized single-gender social organizations. That policy itself does not concern sexual orientation or transgender status. It was adopted for the purpose of counteracting overt discrimination on the basis of sex — specifically, the exclusion of Harvard College students from social organizations because of their gender.
But, he said, Gorton in his ruling in August in deciding not to drop the lawsuit had “accepted the plaintiffs’ legal theory that the policy, although adopted to counteract discrimination based on sex, is itself an instance of discrimination based on sex.”
After discussing the issue with lawyers and other Harvard officials, the school’s governing board voted to no longer enforce the policy.
Here’s the text of Bacow’s letter.
June 29, 2020Dear Members of the Harvard Community,Like many of us, I was greatly heartened by the landmark Supreme Court decision holding that federal law bars employers from discriminating on the basis of sexual orientation or transgender status. This civil rights milestone secures vital protections for millions of individuals who have so long been vulnerable under the law.While marking a major advance for LGBTQ rights, the Court’s decision in Bostock v. Clayton County also has significant implications for Harvard College’s policy on unrecognized single-gender social organizations. That policy itself does not concern sexual orientation or transgender status. It was adopted for the purpose of counteracting overt discrimination on the basis of sex—specifically, the exclusion of Harvard College students from social organizations because of their gender.Last August, in a lawsuit brought by fraternities and sororities to challenge the policy, Judge Gorton of the United States District Court in Boston denied Harvard’s motion to dismiss the case. In essence, the court accepted the plaintiffs’ legal theory that the policy, although adopted to counteract discrimination based on sex, is itself an instance of discrimination based on sex. The court reasoned that the policy applies to men but not women who seek to join all-male social organizations and applies to women but not men who seek to join all-female social organizations, and that this constitutes sex discrimination under federal law. In reaching this view, Judge Gorton relied heavily on the reasoning in one of the appellate decisions (Zarda v. Altitude Express) that was affirmed by the Supreme Court. It now seems clear that Judge Gorton would ultimately grant judgment in the plaintiffs’ favor in the pending lawsuit and that Harvard would be legally barred from further enforcing the policy.In view of the Supreme Court’s decision, following Judge Gorton’s prior opinion in the lawsuit against Harvard, the Corporation consulted with the Dean of the Faculty of Arts and Sciences, the Dean of Harvard College, and the University’s General Counsel last week. We together came to the view that, in the circumstances, the College will not be able to carry forward with the existing policy under the prevailing interpretation of federal law. As a result, following a vote of the Corporation on Friday to rescind its prior approval, the policy will no longer be enforced.Let me emphasize, however, that while we will not be replacing the policy, the guiding purpose behind the policy remains as important as ever. The policy was adopted to advance the essential and unfinished work of making Harvard a more inclusive and welcoming environment for all our students—of creating a community in which students are not denied the opportunity to participate in aspects of undergraduate life simply because of their gender. Harvard is fairer and better when a student’s gender does not stand as a barrier to social opportunities while in college or inhibit students’ access to alumni networks that can help enable opportunities later in life.We applaud the many previously single-gender social organizations that have changed their membership policies to become more inclusive since the College first announced its policy in 2016. And, especially at a time of intense nationwide scrutiny directed at structures and systems that have reinforced privilege and inequity throughout society, we urge the remaining unrecognized single-gender social organizations to take this occasion to reflect further on their own membership policies. This is a moment when many organizations are questioning and rethinking longstanding practices that have contributed to exclusion and unequal opportunity. I hope that both the students who lead the remaining single-gender social organizations and the graduates who govern them will see fit to join in that effort, in the spirit of inclusion that our students deserve and our times demand.Sincerely,Larry
And here is a related letter to Harvard students from Rakesh Khurana, dean of Harvard College.
Dear Harvard College Students,Following President Bacow’s announcement, I want to share a few thoughts with you about the issue of social inclusion at Harvard College.Our decision to institute the USGSO policy in 2016 stemmed from a belief that our community is strongest when opportunities to engage and thrive are available to all students, and from the conviction that no one should be excluded from fully participating in College life because of their gender. While Harvard is withdrawing the policy, I still strongly believe that gender discrimination undermines our community’s values.I echo President Bacow in calling for all of us to rethink the ways in which our actions and practices contribute to exclusion and inequality both within and beyond our campus community. I hope that for each of you that work will begin by examining the organizations you participate in, and asking yourselves who has access, and why. And I hope that you will consider making changes from within those organizations even in the absence of a College policy. I am committed to working with you as you think about what kind of organizations you wish to build, both on and off campus.Warmly,Rakesh KhuranaDanoff Dean of Harvard College
(Adding detail about plaintiffs)