December 2017 amendment to a congressional higher education bill that would bar universities from punishing students who join single-gender social groups, the legislation seemed explicitly targeted at Harvard — but it wasn’t quite that simple.
It was unclear at the time whether the bill, a suggested revision to the Higher Education Act, actually applied to the College. The legislation — titled the PROSPER Act — refers only to “recognized” social groups. But Harvard’s controversial sanctions, which took effect with the Class of 2021, only penalize members of “unrecognized” single-gender social organizations.
Opponents of the sanctions have long said they hope to update the wording of the amendment to ensure it would force the University to choose between its sanctions and millions of dollars in federal funding. Now, they’re one step closer to making that happen.
Three weeks ago, the Foundation for Individual Rights in Education — an advocacy group that says it aims to protect freedom of speech and freedom of association on college campuses— proposed an amendment to the PROSPER Act that would shift the bill’s wording to guarantee it endangers Harvard’s social group penalties.
The proposed amendment would prevent any “institution of higher education that receives funds” under the Higher Education Act from punishing students for joining any “constitutionally protected” group — whether or not that group is affiliated with the school.
Still, FIRE’s proposal — dubbed the “HEA Freedom of Association Amendment” — is far from implementation. A member of Congress must formally introduce the amendment before lawmakers can vote on it, according to Neal McCluskey, the director of the Center for Educational Freedom at the Cato Institute.
It is unclear whether any legislators plan to introduce the FIRE amendment, and none have done so to date.
The College’s sanctions, first debuted in May 2016, bar members of unrecognized single-gender final clubs, fraternities, and sororities from holding leadership positions in recognized student groups, serving as the captains of varsity athletic teams, and from receiving College endorsements for certain prestigious fellowships like the Rhodes Scholarship.
Joseph Cohn, FIRE’s legislative and policy director, said his organization drafted the amendment specifically to ensure the PROSPER Act, if ultimately passed, applies to Harvard.
“This amendment would specifically prohibit [Harvard’s sanctions] because it would apply to institutions that accept federal funding which, obviously, Harvard is one,” Cohn said. “So I think that, if this amendment were adopted as written, Harvard would have to stop its plan to crackdown on single-gender organizations and the people who choose to join them.”
Contacted for comment, a Harvard spokesperson pointed to Dean of the College Rakesh Khurana’s previous statements concerning the PROSPER Act. In multiple interviews, Khurana has said he believes the sanctions are key to achieving Harvard’s educational mission.
“People should respect a private institution’s ability to organize itself around its mission,” Khurana said in an April 27 interview.
Former University President Drew G. Faust said in a March 2018 interview that she is “distressed” by any congressional attempts to interfere with “internal University affairs.” In a later letter to Congress, she wrote that attempts by lawmakers to kill the penalties would “undermine [the] diversity of choice and experience” on campus.
Though members of FIRE wrote the amendment themselves, they received “feedback” during the drafting process from some congressional offices, according to Cohn. He said he did not remember which offices chose to offer comments.
FIRE is not the only group seeking to convince Congress to cancel the sanctions. Though roughly a dozen Harvard social groups recently vowed to abandon single-gender status, thus earning College recognition and exemption from the penalties, a handful of holdouts are staunchly campaigning against the policy.
The Cambridge Coalition — comprising all-male final clubs the Fly Club, the A.D. Club, and the Porcellian Club, along with the Harvard chapters of fraternities Delta Kappa Epsilon, Sigma Chi, and Sigma Alpha Epsilon — sent representatives to the Washington in spring 2018 to urge lawmakers to support the PROSPER Act.
Cohn presented FIRE’s amendment to the House Committee on Education and the Workforce during a Sept. 26 hearing on college students’ First Amendment rights.
It is unclear when — or if — the House of Representatives will vote on the PROSPER Act. Though the proposed legislation passed out of committee in December 2017, it has not yet been scheduled for a full vote by the House.
If lawmakers fail to pass the PROSPER Act, the fight over the future of the sanctions could move from Congress to the courthouse. Some final club affiliates have said they would consider suing Harvard, though they view legal action as a “last resort.”
—Staff writer Caroline S. Engelmayer can be reached at firstname.lastname@example.org. Follow her on Twitter @cengelmayer13.
—Staff writer Michael E. Xie can be reached at email@example.com. Follow him on Twitter@MichaelEXie1.