Major Early Victory for Greek Organizations in Federal Suit Against Harvard

Sean Callan, Manley Burke, sean.callan@manleyburke.com

We all know Harvard cannot abide fraternities or men’s finals clubs. That distaste, seemingly rooted in a patriarchal notion that the administration knows “what’s best” for Harvard students, has been on display for years. That patriarchy culminated in the adoption of a punitive policy targeting all single-sex student organizations including women’s groups. Specifically, Harvard adopted a policy stating that “any . . . 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” (the “Policy”). These fellowships include the Rhodes, Marshal, and Mitchell fellowships that require Harvard’s imprimatur of the applicant.

In December 2018, several men’s and women’s Greek letter organizations, as well as individual members of those organizations, challenged the Policy in Federal court. Harvard moved to dismiss.

On August 8, 2019, the Federal District Court issued its ruling on Harvard’s pending motion to dismiss. (The full decision can be found here). In a significant victory for the plaintiffs, the Court denied Harvard’s motion as to Sigma Chi, SAE, and the SAE chapter, as well as two individual plaintiffs. Unfortunately, the Court granted the motion as to Kappa Kappa Gamma and Kappa Alpha Theta, as well as the third individual “John Doe” plaintiff, finding that these plaintiffs lacked standing to challenge the Policy. As discussed below, this decision is important not just to the future of this litigation, but also as a prominent demonstration of how courts are pushing the boundaries of Title IX liability.

Title IX Liability Requires Disparate Treatment – Right?

Title IX demands equal treatment of men and women. So, a policy that makes no such male/female distinction is fine, right? Harvard thought so.

Throughout the proceedings, Harvard has consistently asserted that “.Harvard’s policy treats male and female students exactly the same. Plaintiffs therefore cannot show the ‘disparate treatment based on sex’ that is the touchstone of . . . Title IX claims.” (Harvard Motion to Dismiss, p.11).

The Court dismantled this argument:

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. See Loving, 388 U.S. at 10-11; see also Zarda, 883 F.3d at 126;

Hively, 853 F.3d at 348-49. What matters is that the Policy, as applied to any particular individual, draws distinctions based on the sex of that individual.

(Order, p.20)

The Court’s finding on this point is conclusive. Harvard’s argument that “disparate treatment” is the sine qua non of Title IX liability is wrong, at least in this Court. There is nothing that could be unearthed in discovery that could change the Court’s view of the operation of the Policy. Moreover, there would seem nothing left to prove to convince the Court that the Policy is discriminatory in a way that violates Title IX.

Equally important, the Court found that the three men’s groups stated a claim for associational discrimination:

In determining whether a policy discriminates against a student on the basis of the sex of those with whom he or she associates, fundamental consideration must be given to his or her own sex. Here, Harvard’s Policy can be applied to any particular student only after analyzing the sex of the students in a social organization with which the student seeks to associate. In doing so, Harvard 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.

(Order, pp. 20–21). (emphasis added).

Again, the Court is not concerned with disparate treatment. In this Court’s view, if sex drives the result of the application of the Policy, then the Policy violates Title IX. As above, on this claim, the Policy is the Policy; nothing found in discovery will change the Policy; nothing remains to be proved. This claim too seems established.

Finally, the Court found that the plaintiffs stated a “plausible claim” for gender-stereotyping and anti-male discrimination. In particular, the Court seemed moved by Harvard’s own statements about the students that choose to join single-sex organizations. For instance, the Court cited a statement by the Harvard Dean of Students that “students who join single-sex organizations do not act like modern men and women because they exhibit behaviors and attitudes . . . ‘at odds with the aspirations of the 21st century society to which the College hopes and expects our students will contribute.’” (Order, p.4) (emphasis added). The Court seized on that statement noting that “[i]t 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.” (Order, p. 21) (emphasis added).

Again, disparate treatment is irrelevant to the Court’s finding. While this finding of potential stereotyping/anti-male bias is a substantial victory for plaintiffs, questions of proof remain. Before the plaintiffs can prevail, they will need to develop facts demonstrating Harvard’s bias to present at trial.

Title IX Protects Women – Right?

Title IX is about ensuring that women have equal access to education and opportunity in education. So, Kappa and Theta must have survived Harvard’s motion to dismiss, right?

Nope – as good as the decision is, it is beyond disappointing that the Court dismissed the claims of the women’s groups. The Court noted that the sororities alleged that the Policy resulted in the closure of their chapters at Harvard. Despite that allegation, the Court found that because the women’s groups had no current members subject to the Policy, they did not have standing to sue. There is a disturbing irony when one considers that the result of a Policy purportedly adopted to protect women’s safety not only resulted in the destruction of women’s student organizations, but also the complete foreclosure of any judicial remedy due to the completeness of that destruction.

National media has noticed the inequities of the fallout resultant from Harvard’s Policy.“The sanctioning of sorority members is even more indefensible than sanctioning members of all-male organizations. . . . It is ironic that Harvard is sanctioning blameless women in the name of fighting gender discrimination.” [1]

What’s Going on with Title IX?

This decision is not so much a perversion of Title IX as it is reflective of the chaos created by Harvard’s lineal determination to destroy men’s groups and finals clubs. That determination forced the Court to consider the application of Title IX in ways that led to unpredictable results. Indeed, a pattern is emerging which shows reviewing courts finding Title IX somewhat malleable, applicable in ways not previously understood.

This refraction of Title IX is likely to continue. As noted by Peter Lake, a law professor at Stetson University, “Harvard is being caught up in a testing time, as lower federal courts explore the boundaries of Title IX with new or not-so-well established theories of liability,” Sanctions Lawsuit Will Proceed in Federal Court, Judge Rules, Harvard Crimson, Sanjana L. Narayanan and Samuel W. Zwickel, August 19, 2019. Gregory F. Hauser, an attorney at Wuersch & Gering LLP, agreed telling the Crimson that he thinks Gorton’s “broadening of the concept of what constitutes sex-based discrimination” is the “key part of the opinion.”[2]

What’s Next?

What happens next in this case will be interesting to watch (to those who enjoy this kind of thing). It appears that the remaining plaintiffs could seek an injunction against the operation of the Policy. As noted above, the Court conclusively determined that the Policy discriminates unlawfully. Based on that ruling, the possibility on injunctive relief looks promising.

Whether plaintiffs seek injunctive relief or not, lengthy discovery is likely to follow. Plaintiffs will try to further develop their claims for gender stereotyping and anti-male bias. Harvard, meanwhile, will look for new information to somehow change the Court’s mind. Unless Harvard discovers a sense of self-awareness as to the public perception of this Policy, settlement would seem unlikely.

No matter what happens in this case, the boundaries of Title IX are permanently expanded –at least until the First Circuit weighs in. We look forward to reporting what happens next!

[1]

[2] Id.