Following Defeats in Court, Harvard Abandons Its Anti-Fraternity and Sorority Policy

Tim Burke, Fraternal Law Partners, tburke@fraternallaw.com

Harvard, perhaps the most prestigious and powerful university in the country, has apparently given up its fight to punish its students who elect to join off-campus single sex organizations.  Facing litigation in both state and federal court brought by some students and their fraternities and sororities, Harvard’s President Lawrence S. Bacow announced on June 29, 2020 that Harvard concluded it was going to lose the federal case.  That case argued that Harvard’s regulations discriminated based on sex,and therefore violated Title IX of the Higher Education Act.

As reported in the Harvard Crimson, President Bacow acknowledged that the federal judge handling that case had accepted the legal argument of the Plaintiffs that while Harvard may attempt to justify its position by arguing it was intended to counteract discrimination based on sex, Harvard’s “policy . . . is itself an instance of discrimination based on sex.”  Bacow and Harvard were prompted to review the University’s position after the U.S. Supreme Court’s decision earlier in June, which had ruled that Title VII of the Civil Rights Act prohibited discrimination against LGBTQ workers.[1]

It never helped Harvard that this premier liberal arts institution was set to use severe anti-intellectual forms of punishment against any members of the 2021 graduating class and beyond who dared to join single sex private organizations.[2]  They would be banned from holding leadership positions in campus organizations, including being captains on Harvard’s athletic teams.  Even more incredibly, those students would be blocked by the University from obtaining major scholarship opportunities like Marshall and Rhodes fellowships.

Dani Weatherford, CEO of the National Panhellenic Conference, and Judson Horras, CEO of the North American Interfraternity Conference, promptly released a statement making it clear that “[t]his should serve as a lesson to Harvard and other universities—students are free to associate with other students without regard to their gender, and targeting student organizations is illegal and wrong.”  They went on to note that “[w]hile we are pleased that this policy will no longer hang over Harvard students, we are also painfully aware that its effects will linger—particularly for women’s-only organizations that were decimated by this policy.”

In a news release, the Fraternity and Sorority Political Action Committee stated “[e]very Greek man and woman should celebrate V-H Day. It’s a tremendous win for all of us but most especially our students at Harvard who can now be a part of the organization of their choice without reprisal.”

“Harvard’s effort to crush one of America’s most fundamental freedoms for its students failed in the court of public opinion and was failing the in court of law,” said Foundation for Individual Rights in Education (FIRE) Executive Director Robert Shibley.  “Harvard squandered time, resources, and most of all its credibility defending its indefensible blacklist policy. While this ‘Crimson Scare’ is finally over, lasting damage has been done to many cherished men’s and women’s groups that either shut down or were muscled into changing their policies against their wishes.”

Harvard’s decision may indeed have far reaching impacts on those universities that impose different standards and requirements on single-sex organizations than on other student organizations.

[1]Bostock v. Clayton Cty., No. 17-1618, 2020 WL 3146686 (June 15, 2020).

[2]Tim Burke, Two Lawsuits Filed Against Harvard, 158 Fraternal Law(Jan. 2019); Sean Callan, Major Early Victory for Greek Organizations in Federal Suit Against Harvard, 161 Fraternal Law(Sep. 2019).