A judge ruled on earlier this month that a federal lawsuit alleging Harvard College’s social group sanctions are discriminatory will be moving forward with a subset of the original plaintiffs.
A pair of state and federal lawsuits, filed in December 2018, claim the College’s penalties on single-gender social organizations infringe upon students’ freedom of association and discriminate on the basis of sex. The federal complaint asserts the policies are unconstitutional and violate federal anti-discrimination law Title IX and the Massachusetts Civil Rights Act.
The sanctions — which took effect with the Class of 2021 — bar members of single-sex Greek groups and final clubs from obtaining College endorsement for prestigious fellowships like the Rhodes, holding leadership positions in campus extracurricular groups, and receiving athletic team captaincies.
Plaintiffs in the federal case are the parent groups for two fraternities, Sigma Alpha Epsilon and Sigma Chi; Harvard’s chapter of Sigma Alpha Epsilon; the international organizations for two sororities, Kappa Alpha Theta and Kappa Kappa Gamma; and three current Harvard students — unnamed in court filings — who are members of all-male social clubs.
In February, lawyers for Harvard argued that judges should dismiss the suits; they followed with another round of filings defending the sanctions in April. But legal experts said it was unlikely for the complaints to be thrown out during this early stage of litigation.
They were right, for the most part. In his August 9 ruling, United States District Judge Nathaniel M. Gorton denied Harvard’s motion to dismiss the plaintiffs’ allegations of discrimination under Title IX, but he agreed that certain plaintiffs do not have legal standing to bring the suits.
“For the foregoing reasons, Harvard’s motion to dismiss (Docket No. 29) is, with respect to plaintiffs Theta, Kappa and John Doe 3, ALLOWED but is otherwise DENIED,” Gorton ordered.
In Harvard’s motion to dismiss, lawyers for the University argued that the social group penalties apply equally to men and women, and therefore do not constitute sex-based discrimination. Gorton disagreed. He asserted in his memorandum that since Harvard must take into account the sex of a particular social group member and the sex of the other members to administer the sanctions policy, the plaintiffs’ claim for violation of Title IX is “plausible.”
“It is impossible for Harvard to apply its Policy without considering both the sex of the particular student and the sex of the other students with whom he or she seeks to associate,” Gorton wrote. “Whereas a male student seeking to join an all-male organization would be subject to the Policy (and vice versa), a female student seeking to join the same all-male organization would not be subject to the Policy (and vice versa).”
“It is simply irrelevant that the Policy applies equally to both male and female students. A policy is no less discriminatory or motivated by sex simply because it applies equally to members of both sexes,” Gorton added in the memorandum.
R. Stanton Jones — a lawyer for the plaintiffs in the federal suit — wrote in a statement that the decision “rightly recognizes” the plaintiffs’ “viable legal claims” of sex-based discrimination.
“The court acknowledged what is undeniably true: Harvard’s Policy is discriminatory twice-over,” Jones wrote. “Harvard should stop discriminating against its students and trust them to make their own choices about who to associate with.”
Harvard spokesperson Rachael Dane defended against the discrimination allegations in an emailed statement, calling the sanctions “a measured and lawful policy that treats all students equally.”
“Harvard respectfully disagrees with the trial court’s analysis with respect to Title IX and will continue to maintain in court that a policy that applies equally to men and women does not violate the law,” the statement reads.
Gregory F. Hauser, an attorney at Wuersch & Gering LLP, said in a Saturday interview that he thinks Gorton’s “broadening of the concept of what constitutes sex-based discrimination” is the “key part of the opinion.” Peter F. Lake, a law professor at Stetson University, agreed that federal Title IX cases are increasingly entering uncharted territory.
“Harvard is being caught up in a testing time, as lower federal courts explore the boundaries of Title IX with new or not-so-well established theories of liability,” Lake wrote in an emailed statement.
In its motion to dismiss, Harvard also contended that not all the plaintiffs have standing to bring the suits because the Greek organizations, which allege that the sanctions illegally discriminate against students in fraternities and sororities, are speaking on behalf of their members. It also argued that John Doe 3 — one of the anonymous student plaintiffs who, as an upperclassman, is not subject to the sanctions — does not have standing because the penalties do not apply to him.
Gorton’s ruling agreed with Harvard’s second argument: John Does 1 and 2 — the other anonymous student plaintiffs who are subject to the sanctions — have standing to sue, but John Doe 3 does not. Gorton also stated in his memorandum that the parent organizations for Sigma Chi and Sigma Alpha Epsilon and Harvard’s chapter of Sigma Alpha Epsilon — which allegedly have members who are Harvard students subject to the sanctions — do have standing to sue on their members’ behalf.
“Those members certainly suffer a real and particularized injury because they are denied the ability to hold leadership positions on campus or to apply for prestigious, post-graduate fellowships,” Gorton wrote.
The international organizations for Kappa Kappa Gamma and Kappa Alpha Theta, however, do not have standing to sue, according to Gorton, because they do not currently have Harvard chapters.
Gorton ordered that the two male undergraduate plaintiffs who are subject to the sanctions — ”John Doe 1” and “John Doe 2” — must reveal their identities if they wish to proceed with a complaint of threats, intimidation, or coercion under the Massachusetts Civil Rights Act. The judge previously refused a protective order for these students and indicated they would not be allowed to remain anonymous, though he wrote that he will consider sealing individual court filings as the case moves forward.
Sean P. Callan, an attorney at Fraternal Law Partners, wrote in an email that he expects the state lawsuit to continue as well after Gorton’s decision.
“The plaintiffs must be thrilled. This decision is more favorable than I think they would have even hoped for,” Callan wrote. “I think it will certainly bear on the state court’s consideration of the motion to dismiss in that case.”
Hauser suggested that the plaintiffs may even be able to stop Harvard from administering the sanctions policy while the lawsuits are in process.
“Now, in fact, what the plaintiffs are going to have to think about doing, especially given the fairly ringing endorsement of their theory that the judge gave, is whether they’re going to seek a preliminary injunction,” Hauser said. “In other words, whether they’re going to seek a court order halting Harvard from enforcing that policy while this lawsuit is pending.”
Harvard must file a formal response that addresses each of the allegations raised against it within the next two weeks. Judge Gorton will then schedule the discovery stage — a fact-finding period that could include review of internal administrative documents and lengthy depositions from the Harvard officials responsible for formulating and implementing the sanctions.
A hearing on Harvard’s motion to dismiss the state suit is scheduled for Sept. 10.
—Staff writer Sanjana L. Narayanan can be reached at firstname.lastname@example.org.