Harvard Ignores Title IX Exemption

Tim Burke, Manley Burke, tburke@manleyburke.com

Harvard University’s final report of its Task Force on the Prevention of Sexual Assault, March 7, 2016, begins “Sexual Assault exacts a profoundly negative personal and academic toll on those students who experience it.”  Who would have thought that Harvard’s solution would, among other things, exact an additional personal toll on victims who were also members of women’s fraternities?  Yet that is one of the impacts of Harvard’s “solution” announced on May 6, 2016.

Harvard has long struggled with what, if anything, to do about its Finals Clubs.  These organizations have historically been all-male, the oldest of which dates back more than two centuries.  While there is one all-female Finals Club and a few clubs have gone co-ed, none are now recognized by the University – Harvard ended its recognition of Finals Club more than 30 years ago.  A modern addition to the unrecognized single-sex organization associated with Harvard are both men’s and women’s fraternal organizations whose membership now finds themselves caught up in Harvard’s effort to deal with Finals Clubs.

The Prevention of Sexual Assault Report contains a series of recommendations which are rather non-controversial.  The Report does pay special attention to Finals Clubs, noting that “Finals Clubs present special concerns related to impact on campus culture, gender equality, sexual misconduct and the role of alcohol.”  The Report refers several times to an Association of American Universities (AAU) Campus Survey which found that “female Harvard college students participating in Final Club activities are more likely to be sexually assaulted than participants in any other student organizations.”  The Report goes on to state:

“We also heard reports of deeply misogynistic attitudes reflected by the long-standing refusal of many clubs to admit women as members; parties at which the only non-members in attendance were women, selected mainly by virtue of their physical appearance; party themes depicting women as sexual objects; competition among members for sexual conquests.  In our view, the very structure of the clubs – men in positions of power engaging with women on unequal and too often very sexual terms – speaks tellingly to the work ahead of us if we are to create an environment where all students, of all genders, can thrive.”

Even after its conclusion, the report adds another three full single-spaced typewritten pages entitled ‘Further Observations on the Finals Clubs,’ noting in part that “nearly one out of every two (47%) female college seniors who participated in Final Club events, experienced ‘non-consensual sexual contact.”

Only the very last paragraph of the entire report addresses fraternal organizations, stating:

“Finally, we should say a word about Greek life on the Harvard campus.  Historically, fraternities have had little presence on campus.  However, in recent years, the presence of Greek organizations has been steadily growing, not as a formal part of the institution, but, like the Finals Clubs, as unrecognized social organizations outside the supervision of the college.

According to the results from the AAU survey, students participating in fraternities and sororities have a higher than average likelihood of experiencing sexual assault (roughly 40% of female Harvard college seniors participating in these organizations report having been sexually assaulted, as compared with the campus-wide average of 31%). Given this experience, and the implications of gender-exclusionary social organizations in a campus working toward broad inclusivity, we recommend that any review of social spaces and Finals Clubs include the role of fraternities, sororities and other unrecognized single-gender social organizations at the college.”

Obviously, it is good that Harvard has recognized the serious issue of sexual assault.  But the Report is not without flaws.  While it acknowledges, almost as an afterthought, that it is in Harvard’s own dormitories where sexual assault is most likely to happen, that fact is not mentioned again.  What both the Report and Harvard’s proposed solutions ignore is any effort to identify and punish the wrongdoers.  That is, those who engage in sexual assault.  Harvard may well have a program in place to do that; nonetheless, it is surprising that it is not mentioned in any of these documents.  The Harvard Crimson has not ignored that issue and on May 13, 2016, published an article headlined “Student Sexual Assault Investigations Last Months Past 60-Day Federal Guideline.”  The article reports that in 2014-2015, sexual assault investigations were averaging more than five months to complete and in 2015-2016, almost four months.  The disciplinary process proceeds after the investigation is complete.

Instead, on May 6, 2016, Rakesh Khurana, the Dean of Harvard College, wrote to the Harvard President, Drew Gilpin Faust, recommending that “students matriculating in the Fall of 2017 and thereafter … 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 the Dean’s endorsement letter for fellowships that require such endorsements.

President Faust responded that same day, an unusually quick response, approving those recommendations.  Stopping short of adopting a rule prohibiting students from joining unrecognized social organizations, she wrote:

“Students will decide for themselves whether to engage with these organizations, as members or otherwise, but just as students have choice, so too the college must determine for itself the structure of activities that it funds or endorses (including through fellowship recommendations from the Dean), or that otherwise occur under its auspices.  Captains of intercollegiate sports teams and leaders of organizations funded, sponsored or recognized by Harvard College in a very real sense represent the College … the College’s right to ensure that areas in which it provides resources and endorsement advance and reinforce its values of non-discrimination.”

Not surprisingly, these sanctions have not been met with universal popularity.

The Foundation for Individual Rights in Education (FIRE) called them “a stunning attack on Freedom of Association” and suggested in a video it quickly posted that Harvard would have to enforce its sanctions by asking its students a version of the 1950s question “Are you now or have you ever been a member of a single-sex organization?”

Charles Lane, writing in The Washington Post¹ compared Harvard’s decision to the “clueless illiberalism” against which French sociologist Alexis de Tocqueville warned, and accused Dean Khurana of engaging in “chilly authoritarianism” directed at the approximately 25% of Harvard students who belong to the impacted groups.

No doubt, various groups are considering legal action.  The question is what form it might take.

Harvard’s sanctions directly impact the right of its students to freely associate as they choose in groups to which they desire to belong.  Harvard is a private university.  It is not necessarily required to afford its students the constitutional rights recognized by the United States Constitution of Freedom of Speech and Freedom of Association.  Even saying that is particularly disheartening given that we are dealing with one of the oldest and most prestigious educational institutions in this country which, for decades, has hailed the wisdom of our country’s founders in adopting the Bill of Rights.  And certainly, its faculty adamantly supports the concept of academic freedom.  Yet a direct claim based on the Federal Constitution may be difficult.

Could there be a contract claims brought against Harvard based on statements contained in university catalogs or student handbooks?  Perhaps Harvard chose not to enforce these sanctions against its current students, but only to first impose them on students entering in 2017 in order to give it time to search for and eliminate any statements that could give rise to contract claims.

So, is Harvard totally protected against any successful litigation?  Perhaps not.  Just as the moral and public relations high ground on this matter belongs to the members of women’s organizations who had no connection to the problem of sexual assault other than as victims, so too women may hold the legal high ground.

And it may well be that the letter from the Justice Department to the President of the University of North Carolina system and the lawsuit Justice has filed in North Carolina provides a strategy that could be employed against Harvard.

There is broad recognition that women benefit from having organizations and places where they can feel safe and supported and discuss among themselves issues that are private and important to themselves.  Women’s Greek groups provide that and more.  It can certainly be argued that for Harvard to penalize them for exercising that right discriminates against them based upon their sex.  It is therefore a violation of Title IX and of the Violence Against Women’s Act, just as Justice is arguing that the University of North Carolina’s system is violating those statutes.

SOME members of Finals Clubs may have assaulted women.  Harvard ought to be punishing them.  Hold the wrongdoers responsible, but to instead determine that ALL the members of those clubs are bad and so must be the members of any other single-sex social club suggests that Harvard simply borrowed an idea from the presidential candidate who argues that SOME Muslims have engaged in terrorism, so let’s prohibit ALL Muslims from coming to our country.

No doubt, we have not heard the last of either the North Carolina or Harvard controversy.  Fraternal Law will continue to follow both.