Harvard is regarded as North America’s premier institution of higher education. Many of its graduates occupy the commanding heights of American business, culture, and politics. It is precisely this power and prestige that makes Harvard’s policy decisions a matter of national importance.
While Harvard’s admissions practices have recently been the subject of public scrutiny, another controversial policy has received less attention. In 2016, the university announced that members of unrecognized single-sex organizations would be ineligible to receive faculty recommendations for the Rhodes and Marshall scholarships, leadership roles in on-campus groups, and captaincies on sports teams. The policy, called a “blacklist” by its critics, was instituted to “address deeply rooted gender attitudes,” according to then-Harvard president Drew Gilpin Faust.
Rakesh Khurana, dean of Harvard’s undergraduate college, was a zealous defender of the sanctions, which the college did not formally adopt until 2018 due to a procedural controversy.
“I have a strong, social science-supported idea but also a deep belief that inclusive organizations [are] more effective,” Khurana told the Harvard Crimson in reference to the sanctions. “I just don’t know any other way of being and wanting the world like that.”
Khurana saw the sanctions as a way to change the culture at Harvard. Mihir J. Chaudhary, a Harvard alumnus, told the Crimson that Khurana couched discussion of the sanctions “within a larger narrative of cultural and social change.” He added that Khurana’s activist leadership style reflected the dean’s belief “that you have to initiate social and cultural campaigns to convince people of the importance of things.”
Not everyone was convinced by Khurana’s campaign against single-sex organizations. A group of fraternities, sororities, and anonymous students sued Harvard in both Massachusetts and federal court months after the sanctions were formally adopted, alleging that the school discriminated against them on the basis of their sex. Since Harvard imposed sanctions on female students who joined female-only clubs because the students were female, the plaintiffs argued, the school was discriminating on the basis of sex in violation of Title IX of the Education Amendments of 1972.
“Harvard’s sanctions policy discriminates on the basis of sex and punishes students because they associate with people of their own sex,” said Emma Quinn-Judge, a lawyer for the plaintiffs in the Massachusetts case.
The plaintiffs’ line of argument eventually prompted Harvard to revoke the policy in 2020, when this reasoning was used by the Supreme Court’s majority in Bostock v. Clayton County.
Referring to a lower court’s ruling that the Supreme Court had affirmed in Bostock, Harvard University Ppresident Lawrence Bacow released a statement following the decision:
In essence, the court accepted the plaintiffs’ legal theory that the policy, although adopted to counteract discrimination based on sex, is itself an instance of discrimination based on sex . . . In reaching this view, [U.S. District Court] Judge Gorton relied heavily on the reasoning in one of the appellate decisions (Zarda v. Altitude Express) that was affirmed by the Supreme Court [in Bostock]. It now seems clear that Judge Gorton would ultimately grant judgment in the plaintiffs’ favor in the pending lawsuit and that Harvard would be legally barred from further enforcing the policy.
While Harvard’s decision to abandon the policy was celebrated by students involved in single-sex groups, its ardor in pursuing the policy in the first place raises two essential questions.
First, Harvard insisted on pursuing the sanctions while retaining a nominal commitment to student liberties. In its University-Wide Statement on Rights and Responsibilities, Harvard asserts that the “rights of members of the University are not fundamentally different from those of other members of society,” and adds that its students are to enjoy “freedom of movement” and the right “to organize and join political associations.”
It’s hard to understand how a policy that penalizes students involved in certain types of social organizations is consonant with the rights of students as set forth in the university’s statement. RealClearEducation asked Harvard whether the “free expression” clause of the statement implicitly protects students’ right to free association, but the university did not respond to the request.
The second important question relates to Harvard’s stated justification for the policy—“address[ing] deeply rooted gender attitudes” among its students. Should a private school treat students’ expressive and associational rights as expendable in the pursuit of improved gender relations on campus?
Ryne Weiss, chief research officer to the president at the Foundation for Individual Rights in Education (FIRE), told RealClearEducation that framing expressive freedoms in opposition to diversity and inclusion is a mistake.
“The costs of eroding fundamental civil liberties like the freedom of association are borne heaviest by women and racial minorities throughout history,” Weiss said.
Editor’s note: This article is part of a series of investigative reports by RealClearEducation: Inside the College Greek Life Report Card: A Survey of Greek-Letter Organizations Assessing Freedom of Association and Speech at U.S. Colleges and Universities.