As Khurana Meets With Final Clubs, He Has Many Options

News analysis: Harvard can argue that it has the right to make the final clubs defunct, experts say

As sophomores wine and dine at Harvard’s male and female final clubs this month as part of a decades-old selection ritual—the punch process—Harvard administrators will also gather to meet with the elite unrecognized groups.

But unlike the stream of sophomores eager for entry into the clubs, College officials have their own agenda.

On Thursday, administrators will join graduate board leaders of Harvard’s final clubs for a meeting, one highly anticipated among circles of club members. Dean of the College Rakesh Khurana is expected to attend, according to a final club graduate board president who will go to the meeting.

The meeting is not out of character for the College administration; representatives from the Office of Student Life routinely meet with final club leaders, despite the groups’ officially unrecognized status. But this meeting comes at a time of swirling uncertainty about the future of the final clubs. As the groups face mounting scrutiny from administrators, they have hosted fewer parties, and one all-male club has moved to go co-ed.

Extracurriculars and Academics Town Hall
Dean of the College Rakesh Khurana has been vocal about his concerns about unrecognized social clubs and their impact on campus.

Khurana, for his part, has been working on a set of recommendations about campus social life and unrecognized social organizations, and both he and University President Drew G. Faust have made clear that “nothing” is off the table in terms of their willingness or ability to regulate them.

It is unclear what topics the group will address on Thursday. Although he declined to discuss the upcoming graduate board meeting in an interview last week, Khurana has said that he will eventually discuss his recommendations with stakeholders. He has declined to say what they include.

According to some legal experts, though, he has many options if he wants to influence the groups.

Experts said this week that Harvard can reasonably argue that it has the power to make the clubs essentially defunct. While administrators have not said that they want to eliminate the groups, if they chose to do so, the University would have a relatively strong backing in court, lawyers said.

According to Gregory F. Hauser, an attorney and alumnus of the fraternity Delta Chi who has represented fraternities, the fact that the relationship between private universities and their students is essentially contractual gives the colleges a lot of leeway. Private institutions have the power to impose restrictions on joining certain organizations as a condition of enrollment, he said.

In 2014, Amherst College in Massachusetts did just that, prohibiting student participation “in off-campus fraternities and sororities and fraternity-like and sorority-like organizations,” according to its undergraduate policies.

Hauser said courts have not settled just how far such regulations can go, but he predicted that Harvard could successfully defend a policy banning students from joining final clubs.

“Because they limit their membership to Harvard students, because their activities are centered on the status of the members as Harvard students, I suspect a court would probably uphold a ruling by Harvard,” Hauser said.

The limitations on how strictly universities like Harvard can regulate their students’ private activities depend on whether the action in question is in sync with the larger institution’s mission, he added.

Khurana, for his part, has made clear his stance that single-gender organizations are not “appropriate” for the College. He also suggested in an interview last week that he is working with unrecognized social organizations to brainstorm “a different kind of relationship with the College that’s not just an unrecognized status.”

Harvey A. Silverglate, an attorney who has advised Harvard students facing Administrative Board investigations, said he disagrees with the idea of Harvard becoming more involved in students’ private lives. But he nonetheless agreed that Harvard could place restrictions on final clubs.

“Harvard could issue a rule that disallows its students from joining these clubs or any clubs which have gender exclusive policies,” Silverglate said.

Using anti-sex discrimination law Title IX as a means to control the groups, though, might prove more difficult, according to Hauser and Peter F. Lake ’81, a professor at Stetson University College of Law and an expert in higher education law. They were both skeptical of the legal backing of using the law to further regulate or pressure single-gender social organizations to go co-ed.

“If you are using Title IX as sort of a weapon to control the groups, it’s probably not what Title IX is intended for,” Lake said.

Still, legal experts agreed that the final clubs, whether through irate almuni or more formal litigation, would probably challenge any regulation that barred students from joining them.

Hauser said final club leaders could go through Harvard’s handbook to see if a new regulation constitutes a breach in contract. Silverglate suggested that the clubs might also argue that restrictions on membership violate freedom of association protections in the state constitution, although he questioned whether they would have a high chance of succeeding in court.

Regardless of what Harvard could legally accomplish, however, a more fundamental question remains, experts say.

“If you can do it, is it something you should do?” Lake asked.

—Staff writer Noah J. Delwiche can be reached at noah.delwiche@thecrimson.com. Follow him on Twitter @ndelwiche.

—Staff writer Theodore R. Delwiche can be reached at theodore.delwiche@thecrimson.com. Follow him on Twitter @trdelwic.

Tags