A recent post discussed Harvard’s policy of punishing every student who belongs to a single-gender organization such as a fraternity, sorority, or “finals club.” Harvard doesn’t have the jurisdiction to ban these off-campus organizations, so instead it imposes blanket sanctions on any Harvard student who joins one of them. In 2016, the school passed the following rule: “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.”
Unsurprisingly, a number of these organizations and some of their members are suing Harvard under Title IX. Their theory is that punishing students for merely joining single-sex organizations is a form of gender discrimination. Harvard has defended itself in court by arguing that since the rule applies with equal force to both men and women it can’t be a form of gender discrimination.
The judge, Nathaniel Gorton, was singularly unimpressed by that argument and refused Harvard’s motion to dismiss the case. Gorton noted that multiple federal courts have held that employment discrimination against gays and lesbians is a form of gender discrimination: “the equal application of the employer’s policy to both men and women did not change the fact that the policy drew distinctions according to the particular individual’s sex.”
Harvard’s attempt to argue that gender discrimination against both genders isn’t gender discrimination at all was especially ill-advised because it led them to sanction sorority members as well as fraternity members. This made no sense because Harvard’s ostensible reason for opposing single-gender institutions was that they promoted an atmosphere that is hostile to women. Presumably, that is a concern about fraternities but not sororities. Throwing sororities under the bus allowed them to make the “we treat both genders equally” argument, but that argument failed, leaving Harvard with a policy against sororities that makes no sense.
Harvard alumni will be happy to know, though, that Harvard’s theory that discrimination against both genders isn’t discrimination at all has at least one new fan: the Trump administration. Last week, the administration filed a brief with the United States Supreme Court echoing Harvard’s argument. The Trump brief argues that in the case of employment discrimination against gay men and lesbians, they “would be similarly situated—and they would be treated the same.”
Judge Gorton is correct that a number of appellate courts have ruled that discrimination against gays and lesbians is gender discrimination, but the United States Supreme Court has never so held. If the Trump administration is successful, the Supreme Court’s eventual decision will overrule the decisions cited by Judge Gorton that protect gay men and lesbians from discrimination. (In a separate case, the Trump administration is also opposing protection from employment discrimination against Trans employees.)
To be clear, the Trump administration is not intervening in the Harvard lawsuit—they are two separate cases. Nonetheless, both Harvard and the Trump administration are making the same argument. Harvard should drop its policy of blanket punishment of all members of all unsanctioned single-gender organizations and settle the lawsuit. It should not continue to put its imprimatur on the Trump administration’s argument. Harvard is one of the nation’s most prestigious institutions. What they say matters.
It is natural for a defendant in a civil case to allow its lawyers to make whatever legal arguments will allow it to win that case. But in this situation, Harvard should be cognizant of its own influence and prestige and of the broader consequences of its legal arguments.
Finally, it is worth noting that it is not a coincidence that Harvard’s arguments echo Trump’s. Fighting sexual harassment and assault on campus is a worthy cause, but in their zeal to do so, progressive educational institutions often pursue decidedly illiberal policies. As numerous previous posts have noted, universities across the country have often denied students accused of sexual assault basic fair process rights. Students have been suspended or expelled for alleged sexual offenses, without hearings or the right to see the evidence against them or even the opportunity to understand exactly what they are being charged with.
Universities must learn that the ends do not justify the means. As noted, fighting sexual assault and harassment are noble goals. Nonetheless, universities should not use illiberal means to pursue that end. As of now, Harvard and the Trump administration are pushing the same legal argument. Harvard is doing so to defend an ill-advised policy of blanket sanctions. Trump is doing so to make it easier for employers to fire gay and lesbian employees with impunity. Unless Harvard wants to be an accessory to this, they should go no further down this path.