On February 8, 2019, Harvard College filed motions to dismiss two lawsuits against it, one in Massachusetts state court (“State Motion”) and the other in the United State District Court for the District of Massachusetts (“Federal Motion”). Readers may recall that several fraternities, sororities, a house corporation and three student–members of Greek organizations sued Harvard challenging Harvard’s policy of penalizing students that choose to join a single–sex social organization.

In the state case, the plaintiffs asserted violations of the Massachusetts Civil Rights Act (“MCRA”) by arguing that the Harvard policy impermissibly interferes with the associational rights of the plaintiffs while also discriminating on the basis of sex. In the federal case, plaintiffs asserted that the Harvard policy violates Title IX in that it results in (i) per se disparate treatment discrimination based upon sex, (ii) associational discrimination based upon sex, (iii) unlawful sex discrimination based on sex stereotyping, and (iv) unlawful sex discrimination based on anti–male bias. The federal plaintiffs also alleged that the Harvard policy violates the MCRA by depriving plaintiffs of equal protection by way of sex discrimination.

Harvard moved to dismiss all claims in both complaints. The motions are lengthy, together reaching well over 100 pages. For those readers that are interested, we have linked the full motions in the footnote below. For purposes of this article, we will provide a summary of Harvard’s central arguments.

Harvard’s primary argument was based upon lack of standing. Because the Harvard policy is directed at its students, resulting only in consequences to students as opposed to organizations, Harvard argues that the organizational plaintiffs lack standing to bring these kinds of claims. In support of this argument, Harvard cited the MCRA itself, which permits suit only by a person who “institute[s] and prosecute[s] in his own name and on his own behalf.” State Motion, p. 7 (citing G.L. c. 12, § 111). With respect to the Title IX claims, Harvard argued that “[i]n the discrimination context, as in the law generally, “[i]njured parties usually will be the best proponents of their own rights,” and “third parties are not normally entitled to step into their shoes.” Federal Motion, p. 6 (citing Domino’s Pizza v. McDonald, 546 U.S. 470, 479 (2006).

In arguing the freedom of association claims, Harvard set the legal backdrop noting that the Massachusetts and U.S. Constitution do “not protect just any form of association. [They] protect intimate associations and expressive associations.” State Motion, p.13. Harvard then argued that because fraternities are neither intimate nor expressive associations, they are not legally protected associations.

Turning first to the intimacy question Harvard, citing Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of NY, 502 F.3d 136, 147 (2d Cir. 2007), argued that based upon precedent, “[f]raternities and sororities are not intimate associations.” Harvard also relies on Jaycees, urging that “[i]ntimate associations are ‘distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.’” Id. (citing Roberts v. US. Jaycees, 468 U.S. 609, 620 (1984)). Applying the Jaycees definition of “intimate,” Harvard argued that the complaint describes the plaintiff groups as large organizations as opposed to small, intimate groups, while failing to allege that the plaintiffs’ “admissions policies, recruitment methods, or activities from which this Court could infer that [plaintiffs are] particularly selective or inward–facing.” State Motion, p. 14.

With respect to the expressive nature of these organizations, Harvard noted that “Courts have consistently held that social groups are not expressive associations, absent some further expressive purpose.” Id at 15. Harvard also argued that no allegations in the complaint allege any expressive purpose; “The Complaint does not allege that Iota Tau ever took a public stance on any issue of political, social, or cultural importance.” Id at 16.

Finally, Harvard presented another very simple argument against the plaintiffs’ sex discrimination claims. Harvard argued 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 both Title VII and Title IX claims. . . . Under Harvard’s policy, all students face the same choice, regardless of sex: to remain eligible for the College’s nominations and leadership positions covered by the policy, or to join a gender–exclusionary organization instead.” Federal Motion, p.11.

Evaluating the motions, Harvard advanced simple, effective defenses. That said, it also appears that further factual development will be required to prevail upon those defenses. It is likely that at least some, and maybe all, of plaintiffs’ claims will survive a motion to dismiss. We will watch with interest as the case unfolds. Of course, we will keep our readers updated.

1. A full summary of the complaints and the counts alleged can be found at this link (p.17/22 of linked document).

2.Readers may link to the state court motion to dismiss here.
3.Readers may link to the federal court motion to dismiss here.