Experts and lawyers say a pair of lawsuits challenging Harvard’s sanctions could prompt a protracted — and pricey — legal battle.
Sororities, fraternities, and three anonymous College students filed the twin suits — one in state court, one in federal court — on Dec. 3. In their filings, the groups allege the sanctions discriminate against students on the basis of sex and violate undergraduates’ freedom of association.
The pair of suits mark the latest move in a years-long battle between single-gender social organizations and the College over Harvard’s controversial social group policy. The sanctions, which administrators debuted in May 2016, bar members of single-gender final clubs and Greek organizations from holding campus leadership positions, varsity athletic captaincies, and from receiving College endorsement for prestigious fellowships like the Rhodes. The penalties took effect starting with the Class of 2021.
Though the lawsuits may continue for several years, the coming months will see Harvard and the plaintiffs make their cases in writing — not yet in court. Here’s what you need to know about what happens next.
Harvard has until Feb. 8 in the state suit and Feb. 4 in the federal suit to file a written response in court, according to Heather M. Kirk, the chief communications officer for the North-American Interfraternity Conference. She said Harvard was originally due to file the responses this month, but that the University requested more time to craft the documents.
Experts said Harvard lawyers will likely spend the next several weeks fine-tuning the school’s case.
CUNY School of Law Professor Merrick T. Rossein said Harvard’s responses will offer insight into the legal defenses its lawyers plan to make.
“When you see the answer you’re probably going to see some possible strategies,” Rossein said.
Attorney Gregory F. Hauser, who has previously counseled fraternities, said Harvard will “almost certainly” motion to dismiss the federal suit, arguing that — even if all facts in the lawsuits are true — the University did not break the law. The plaintiffs then have a “second shot” at making their case, after which a judge will decide whether to let the suit proceed, Hauser said.
Rossein agreed with Hauser. He said there is a “fairly good chance” Harvard’s lawyers will aim to dismiss the suit. But he added that the strength of the plaintiffs’ claims — as well as the selected judge’s previous rulings in similar cases — may influence Harvard’s decision to try the tactic.
The legal back-and-forth could take months. Harvard may have to fork over relevant documents and allow the plaintiffs’ lawyers to question key administrators and faculty, according to Rossein.
Hauser pointed to two arguments he expects Harvard may make in future legal documents. He said University lawyers will likely argue the sanctions do not discriminate of the basis of sex because the penalties affect students of all gender identities.
And he said Harvard may claim the sanctions are permissible under the principle of academic freedom — universities’ and colleges’ legal right to freedom from government interference.
“They’re likely to argue that prohibiting people from joining single-sex organizations is, in fact, something that applies to people of all sexes. It's not aimed at people of a particular sex, it's not because of their sex, it's because they choose to go into an organization that's surrounded by only people of the same sex,” Hauser said.
University President Lawrence S. Bacow took a similar stance in a December interview with The Crimson. He said he finds it “difficult to understand” how the sanctions could discriminate against female College students.
Harvard has asked “that these organizations be co-ed, so that applies equally to all male and all female institutions, so it’s hard to see how that discriminates against women, which is the specific allegation,” Bacow said.
For now though, the University is likely focusing all its energy on the responses due in early February, according to Rossein.
“What the Harvard lawyers are doing now is coming up with their litigation plan and their strategy,” Rossein said.
The plaintiffs say they will keep fighting until the sanctions are canceled.
Kirk wrote in an email that the sororities and fraternities “intend to litigate until the policy is withdrawn and Harvard undergraduates are free to join independent single-sex organizations without penalty.”
“If Harvard is willing to take these steps, we are certainly willing to discuss settlement,” she wrote.
The plaintiffs in the state suit are the international parent group of sorority Alpha Phi, Harvard’s newly reinstated chapter of Alpha Phi, and a management company for chapters of sorority Delta Gamma.
The federal plaintiffs are the international organizations for two sororities, Kappa Alpha Theta and Kappa Kappa Gamma; the parent groups for two fraternities, Sigma Alpha Epsilon and Sigma Chi; Harvard’s chapter of Sigma Alpha Epsilon; and three current Harvard students who are also members of all-male social clubs. The undergraduates are not named in the suit.
University administrators, though, appear equally determined to keep the sanctions intact for years to come. In an interview last week — after the suits were filed — Dean of the College Rakesh Khurana said faculty and administrators stand behind the policy which many view as the signature legacy of his deanship.
“For more than a century, Harvard has not been a Greek school — that is, a school that has a fraternity and sorority system,” Khurana said. “As the faculty, as President Faust, as the Harvard Corporation reaffirmed in 2017, it is the expressed belief and expectation of this community that we should not become a Greek school.”
Rossein said a settlement is probably on the table, but that he thinks it is unlikely.
“Settlement is always a possibility,” Rossein said. “Very few cases go to trial nowadays, but I imagine Harvard is going to dig in deep.”
Rossein said the “discovery” period — meaning the time allotted for conducting interviews and exchanges — could be a “fairly lengthy” process. The federal suit may also trigger a prolonged debate over the possibility of summary judgement, a scenario in which a judge would decide the case without a trial.
The duration of the case depends on how things proceed over the next couple of months, legal experts said. At the very least, it is likely to continue throughout 2019, according to Rossein.
“It would certainly be no less than a year,” he said. “If it goes to summary judgement or beyond you’re talking about multiple years.”
Attorney Sean P. Callan said the sanctions lawsuits are unlikely to last as long as the four-year — and counting — Harvard admissions case, but that it could come close. He said the entire process could take anywhere from one to two years. Callan, who works at a law firm specifically meant to serve Greek groups, has often represented fraternities and sororities in court.
“More typically what you would see is anywhere from a year to 18 months and then a trial,” Callan said.
Legal experts were split over the exact price tag of the suits, but they agreed on one thing: It will be sizable.
Rossein said if the plaintiffs and the University both motion for summary judgement, it will prove “fairly costly” for both. Hauser called the suits “expensive.”
“Harvard is certainly paying top dollar,” Rossein said. “They’ll have a national law firm representing them. And it will cost them probably millions of dollars to defend this suit.”
—Staff writer Shera S. Avi-Yonah can be reached at firstname.lastname@example.org. Follow her on Twitter at @saviyonah.
—Staff writer Delano R. Franklin can be reached at email@example.com. Follow him on Twitter at @delanofranklin_.