Professor Allen's Puzzling Motion, Part 2

When I introduced my motion, I referred to Professor Allen’s motion as “astonishingly sweeping.” Yet I did not appreciate how sweeping it was until a student asked me a question. Before I report her question, let’s back up and parse the motion as best we can.

Opinion is divided among my colleagues about the significance of the Allen motion. Some think it is tautologous, therefore meaningless, and therefore harmless. Others see it as threatening and disingenuous. Given the confusion, after more than a year of debate and with an impending vote, it is safer to respond to the motion’s intentions and to assume that the text is just badly drafted—in spite of being a third draft.

And in spite of having been supported by a 17-0 vote of the Faculty Council. That vote suggests that the Council may have thought the motion uncontroversial. But that only adds to the puzzle, since Dean Smith, who chairs the Council but is not a voting member of it, seems uncertain what its impact would be:

“Personally I don’t see all the clear next steps,” Smith said of Allen’s motion. “I’m not a lawyer, so I’m not even going to try to play one here.”

What sort of group dynamics resulted in a 17-0 vote by a faculty committee whose chair won’t opine on the motion’s meaning?

Adding to the irony of an ambiguous motion being voted up 17-0 by the Faculty Council is that the same body (with the same chair and significantly overlapping membership) refused to take a vote on the motion I filed last year, “citing uncertainty about whether a vote for the motion would impact the policy,” as the Crimson paraphrased the body’s reasoning.

In any case, let’s assume that the intention is, as Professor Allen explained in supporting materials, to require all student organizations to which Harvard students belong to adhere to the nondiscrimination and other rules Harvard requires of recognized student organizations. A student belonging to a noncompliant organization would have three choices: force the organization to change, resign from it, or be “suspended or expelled.” (Professor Allen uses the term “expel,” so I too am using it and its cognates. Again, it is unclear whether what she says is what she really means—in Harvard parlance, to “expel” is more severe than to dismiss, which is more severe than requirement to withdraw. In modern times very few students have been expelled or dismissed. Expulsion is the equivalent of capital punishment--permanent separation with no possibility of return.)

The motion uses the Massachusetts anti-hazing statute to define “student organization.” That criminal statute applies to

every student group, student team or student organization which is part of such institution or is recognized by the institution or permitted by the institution to use its name or facilities or is known by the institution to exist as an unaffiliated student group, student team or student organization.

That broad definition is of course meant to hold colleges’ feet to the fire. I am not a lawyer either, but it’s plainly an anti-hazing statute, not a nondiscrimination statute. It says that colleges have to communicate with off-campus fraternities and the like. In fact, communication is all the statute actually requires colleges to do: to inform the organizations of their responsibilities under the law, to inform all students of the statute, and to attest to the Commonwealth that it has done so.

Professor Allen’s motion puts this category to an entirely different use: to force Harvard’s nondiscrimination rules on them. That is why the Allen motion is such an astounding assertion of power over private associations, far beyond anything Dean Khurana or the Clark-Khurana committee proposed. As I observed in my previous blog post, it would cover ROTC. Indeed, ROTC is exactly the sort of organization the state might want warned about hazing. The statutory definition would also cover the interuniversity fraternities and sororities, including the ones to which many African-American and Hispanic students belong. Again, it makes perfect sense that the anti-hazing statute would apply to them—if we accept the intent of that statute as legitimate, then such organizations and the student bodies from which they draw their members shouldn’t miss out on those warnings just because the students aren’t exclusively drawn from one school.

Like it or not, the definition of “student organization” in the anti-hazing statute makes sense for an anti-hazing statute. But that definition has no rational applicability to the membership policies of organizations Harvard students join. By what legal or ethical reasoning can that definition be used to threaten their student members with expulsion if the clubs they join aren’t co-educational?

And so to the student’s question. I was asked about the impact of the Allen motion on the Harvard Knights of Columbus and the Harvard Daughters of Isabella. Until I got the question, I had no idea these organizations even existed. They aren’t recognized student organizations, and indeed they run afoul of several of the requirements for recognition. They are single-sex organizations. They are under outside control. They may even impose a religious test on their members. They use the Harvard name, probably without permission. In compliance terms, they are worse than final clubs.

Will the Faculty of Arts and Sciences, by passing the Allen motion, assert its authority to force the Knights of Columbus and the Daughters of Isabella to go co-ed, and to expel their members if they do not?

Doubtless there are other student organizations which will unexpectedly fall under Harvard’s authority if the Allen motion passes. Harvard students are both diverse and creative. They are constantly forming new groups, recognized and unrecognized, in response to common interests and commitments.

If the text of Professor Allen’s motion is not further revised as such absurdities become apparent, those supporting the motion may point to the vague language about writing rules that will balance freedoms and rights. But that would simply authorize the administration to use its best judgment to decide whether to sanction individual clubs and organizations, without any unambiguous direction from the faculty about the meaning of its standards of nondiscrimination. The way out of this snarl is not to get into it, which is the idea behind my motion.

In retrospect, the Verba report now seems such a masterpiece. It took Harvard’s nondiscrimination rules seriously, and concluded they applied even to ROTC. Some of us gasped at that, but its logic was inescapable. But the report also recognized the illogic and illiberality of punishing student members for what Harvard might regard as an organization’s shortcomings. It combined moral clarity with humility. Not so the Allen motion, which lacks both.

(Corrected 10/14 as to the use of expulsion in response to a comment.)