Two Lawsuits Filed Against Harvard

Tim Burke, Manley Burke, tburke@manleyburke.com

On December 3, 2018, two separate lawsuits, one in federal court and one in state court, were filed against Harvard by several Fraternities and Sororities. The suits challenge Harvard’s controversial decision to penalize students who chose to be members of single- sex organizations, whether they are men’s or women’s Greek social groups or unique Finals Clubs composed of Harvard students. Harvard’s position is that the students who choose to belong to single sex organizations, effective with the class of 2021, will be prohibited from holding leadership positions in many University Supported Organizations including being captains of athletic teams or from receiving critical University support for certain fellowships such as
Fulbright and Rhodes scholarships.

While initially these penalties were explained by the University as a way of addressing sexual assaults it alleged to have occurred at Finals Clubs events[1], over  the 2 years of controversy before the final decision to impose these penalties, Harvard’s justification changed. Instead, it became Harvard’s position that single-sex organizations were inconsistent with the goals of the University “to improve the sense of inclusion among our diverse community members.”[2]

Facing threats of discipline by the University, some Finals Clubs became co-ed, and some Greek organizations simply closed their chapters. While the initial justification for the University position was to address assaults against women, the effect of the policy was that the safe spaces many women found in single sex Greek organizations were eliminated. The lawsuits are a direct challenge to the University position on multiple fronts and allege a variety of illegalities by Harvard.

The state court case[3] alleges that the University has violated the Constitutional rights of its students and their single sex fraternal organizations. At first blush, that might seem like a strange claim because Harvard is a private school. In most cases, private schools are not required to comply with the U.S. Constitution in its dealings with its students. However, the 38 page 147 paragraph state court complaint bases the argument that Harvard’s student are entitled to the rights protected in the Constitution of the United States because the Massachusetts Declaration of Rights, set forth in the Massachusetts Civil Rights Act[4], provides those protections by reference, stating:

Any person whose exercise or enjoyment of rights secured by the Constitution or Laws of the United States, or of rights secured by the Constitution or Laws of the Commonwealth, has been interfered with, or attempted to be interfered with, . . . may institute and prosecute in his own name on his own behalf a civil action for injunctive and other appropriate injunctive relief as provided for in said section, including the award of compensatory money damages. Any aggrieved person or persons who prevail in an action authorized by this section shall be entitled to an award of the costs of the litigation and reasonable amount of attorney’s fees in an amount to be fixed by the court.

In using a state law to attempt to enforce constitutional rights against a private school this effort is similar to that in the lawsuit currently pending in a California Court of Appeals[5] against the University of Southern California’s (USC) imposition of deferred recruitment.

The first two of the three causes of action in the state court case are based on the Massachusetts Civil Rights Act. Count one argues that Harvard has interfered with the Freedom of Association Rights protected by the Constitution, specifically including the right to enjoy intimate association with other people who identify as women; the right to associate with individuals in a private organization without interference in the inner workings of that organization, and the right to express a common interest and message of sisterhood by associating together with other people who identify as women. The Plaintiffs in the state court action, Alpha Phi International and its local Chapter and the Delta Gamma Management Corporation, are all organizations of women.

The second count of the state complaint alleges sex-based discrimination.

Count three of the complaint was specifically brought by Delta Gamma’s Fraternity Management Corporation and claims that Harvard has tortuously interfered with the advantageous business relationships of the organization. Specifically, Delta Gamma Fraternity Management Corporation had entered into an expensive lease running through January 31, 2020 to provide space for its Harvard Chapter where women could gather.

The arguments made in this cause of action are similar to those successfully made by Delta Kappa Epsilon against Wesleyan University in Middleton, CT. In that case Wesleyan was found by a jury to be in violation of the Connecticut Unfair Trade Practices Act and DKE obtained both injunctive relief and an award of damages in amount of $386,000 to which the trial judge later added the recovery of attorney’s fees and costs of another $411,363.44.[6] The state court lawsuit against Harvard is being handled by the Boston law firm of Zalkind Duncan & Bernstein LLP.

The federal case [7] was filed against Harvard on behalf of Kappa Alpha Theta, Kappa Kappa Gamma, Sigma Chi, Sigma Alpha Epsilon, and the Sigma Alpha Epsilon Massachusetts Gamma Chapter as well as several John Doe’s. The 73 page 222 paragraph complaint was filed by attorney’s from Arnold & Porter Kaye ScholermLLP law firm. Four of the five causes of action in the federal complaint are based on Title IX of the Higher Education Act. 20 U.S.C. Section 1681.

The first count argues that Harvard’s actions constitute per se disparate treatment because it prohibits individuals from joining organizations that do not include members of the opposite sex. It argues that “just as it would be per se sex discrimination for Harvard to mandate that students only marry people of the
opposite sex, it is per se discrimination to instruct them only to join clubs that include members of the opposite sex.”

Count two argues that Title IX is violated by Harvard’s associational discrimination on the basis of sex. That is “Harvard’s sanctions policy punishes students because they associate with individuals of a particular sex.” Count three alleges “Harvard’s sanctions policy violates Title IX because it impermissibly discriminates against men and women on the basis of stereotypes about how men and women intrinsically behave and how men and women ought to behave.”

Count four specifically claims a violation of the rights of male students, arguing that “Harvard’s sanction policy violates Title IX because it was intended to disproportionately negatively effect certain male students in the Harvard University Community for no other reason than because they are men who chose to socialize with men.”

The fifth and final count of the federal complaint relies on the court’s supplemental jurisdiction to allege that Harvard has violated the United States Constitution’s Equal Protection Clause as applicable to Harvard through the Massachusetts Civil Rights Act (the same law that much of the state court case is based on). There can be little doubt that these two cases are of major importance and their outcomes may well impact far beyond how Harvard attempts to regulate Greek Organizations. The massive amount of national publicity these cases have already received is a strong indication of that.

[1] Fraternal Law, May 2016 “Harvard Ignores Title IX Exemption”
[2] Fraternal Law, March 2017 “Are You Now or Have You Ever Been A Member Of…?”
[3] Alpha Phi International Fraternity et. al. v. President and Fellows of Harvard College, Commonwealth of Massachusetts, Suffolk Superior Court, Civil Action No. 1884cv03729
[4] G.L.C 12, Section 111
[5] Fraternal Law, June 2018 “New Lawsuit Challenges Deferred Recruitment” and September 2018 “USC
Deferred Recruitment Case Now In Court of Appeals”
[6] Wesleyan’s appeal is pending.
[7] Kappa Alpha Theta Fraternity Inc. et al. v. Harvard University et al. Case 1:18-cv-12485, now pending in
the United States District Court for the District of Massachusetts