Federal Judge Rules That Harvard May Be Discriminating Against Single Sex Organizations
Harvard University does not approve of single-sex organizations such as fraternities, sororities and what Harvard calls “finals clubs.” It doesn’t have the power to outright ban these organizations because they operate as off-campus entities and do not receive any recognition or benefit from the university. So, instead, it punishes the students who join them. In 2016, the school passed the following rule: “students who become members of unrecognized single-gender social organizations will not be eligible to hold leadership positions in recognized student organizations or athletic teams . . . [and] will not be eligible to receive College-Administered fellowships.”
A number of fraternities and sororities, as well as some of their members, sued Harvard under Title IX, the federal law prohibiting discrimination on the basis of sex. The school tried to get the court to throw out the lawsuit, arguing that since the rule applied with equal force to both men and women it couldn’t be a form of gender discrimination.
Harvard should have known better. This is similar to Virginia’s argument before the Supreme Court in the 1960s when it defended its ban on interracial marriage. Virginia claimed that since both African Americans and whites were subject to the same rule—you must marry within your race—it couldn’t be race discrimination. As many people know, the Supreme Court batted that argument away and struck down the law.
The judge in the Harvard case found the school’s argument equally weak. He noted that courts have found laws based on sexual orientation to be a form of gender discrimination even though they didn’t distinguish between gay men and lesbians.
The judge also ruled that Harvard’s policy could be an example of sex discrimination based on association. Students are being sanctioned based upon the gender of the people they are associating with. This can violate Title IX just as laws that prohibited interracial cohabitation violated the constitutional prohibition on racial discrimination.
Finally, the judge ruled that Harvard’s policy might be a form of negative sex stereotyping. He ruled that “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,” could be reasonably seen by the jury as a negative stereotype based upon gender.
To be clear, the plaintiffs have not yet won their case. They have only defeated Harvard’s motion to dismiss the case and have won the right to present their case to a jury.
Harvard would be wise to settle this case though, well before it actually gets to a jury. Their best hope of winning is to convince the jury that single-sex organizations are inherently bad. They will likely rely on a report by the University’s Task Force on Sexual Assault Prevention that said that historically male final clubs have “deeply misogynistic attitudes” and that they have a high prevalence of “nonconsensual sexual contact.”
However, it is one thing to come down hard on an organization that has actually promoted sexual assault and misogyny. It is quite another to preemptively sanction all members of single-sex organizations.
The sanctioning of sorority members is even more indefensible than sanctioning members of all-male organizations. Harvard presumably acted against sororities as well as fraternities to avoid claims that it was discriminating against men. But if Harvard really believes that all-male organizations inherently promote sexual assault (and presumably does not believe the same thing about sororities) then its policy should apply only to all-male organizations. It is ironic that Harvard is sanctioning blameless women in the name of fighting gender discrimination.
Harvard would be much better off simply enforcing rules against sexual assault and sexual harassment. If the university’s task force is correct that sexual assault and harassment are rampant, then aggressive enforcement of prohibitions of such conduct should result in the sanctioning, and perhaps expulsion, of the students in these organizations who actually engage in impermissible behavior.
But that is very different from sanctioning every single person who joins these organizations, whether they are guilty of any misconduct or not. And it is even more wrong-headed to sanction sorority members as well. The judge was right to deny Harvard’s attempt to dismiss the case. Harvard should repeal this rule and devote its resources to investigating and sanctioning actual wrong-doings.