Professor Allen’s puzzling motion

Harvard Magazine gives the text of the motion Professor Danielle Allen offered at the October 3 FAS meeting:

that the policies of the Harvard College Handbook for Students for student organizations pertain to students participating in all student organizations recognized as such by the Commonwealth of Massachusetts. The Faculty recognizes that on a college campus, as in society, basic freedoms and rights can come into conflict with each other. In such situations, the faculty and administration of Harvard College shall establish policies that protect individual freedoms while upholding the educational mission of the College.

This must have seemed benign and unobjectionable to the Faculty Council, since the Council voted in favor, 17-0. (Actually, the wording of the motion was changed after the Faculty Council voted for it – the revised version was distributed on paper at the beginning of the FAS meeting. Neither of these is the draft motion included in the report of the Clark-Khurana committee. So Professor Allen has offered three versions of her motion so far; perhaps a fourth will be offered before a vote gets taken. The Faculty Council opposed my motion, 2-16, so at least one faculty member, and perhaps two, voted for both.)

What is puzzling is that in a letter to the Crimson, Professor Allen describes the actual effect her motion would have.

Its effect would be that students who join student social groups that have become co-educational and that otherwise adhere to campus policies for student organizations will not face repercussions from the administration. Students who join social groups that have not become co-educational will be ineligible to continue enrollment at the College.

I have no idea how these conclusions follow from the text of the motion. The motion gives no protection to membership in any organization, as my motion would; it simply suggests which organizations would immediately be subject to institutional control. The statement that, if Professor Allen’s motion passes, members of noncompliant student groups would be punished harshly was also made at the FAS meeting and in an FAQ. As Harvard Magazine reports,

This approach seemingly would have the virtue of bringing regulation of USGSOs under FAS’s auspices, rather than relegating the decision to the president (to which some faculty members have objected, as described above). But it leaves what to do up to the dean. As for the risks students might face if they do not comply with regular oversight and regulation, Allen’s FAQ points, briskly, to “suspension or expulsion.”

In the Crimson, Professor Allen describes this way of proceeding as a “middle way between the two poles of the argument.” Hardly.

There is nothing new in the idea that Harvard should be trying to get all single-gender clubs to go co-ed; Dean Khurana has been doing his best at that for the past couple of years, with some success. Professor Allen’s recourse to Massachusetts Law as justifying such efforts to regulate the clubs is, as far as I can tell, without teeth. Indeed, it was exactly the fact that threats from Harvard could not be enforced that led the Clark-Khurana committee to reject the earlier draft of Professor Allen’s motion. So the argument that Harvard can legally regulate the clubs doesn’t advance the ball at all, and leaves the original question: what to do if the clubs do not cooperate. Professor Allen says their members should be suspended or expelled, and suggests that her motion implies that, but it doesn’t.

Let’s read it again:

that the policies of the Harvard College Handbook for Students for student organizations pertain to students participating in all student organizations recognized as such by the Commonwealth of Massachusetts.

Yes, of course, the policies of Harvard College apply to Harvard students—to all Harvard students. The restrictive clause that follows (students participating in this or that) adds nothing to what we already know about the applicability of Harvard rules to Harvard students. The motion does not say that students may not participate in organizations that do not comply with rules governing recognized student organizations. That is, of course, the very question my motion seeks to clarify, by guaranteeing that they may.

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Professor Allen seems to have couched her motion in bland language so that it will receive broad support, on the understanding that it would authorize the administration to work out the details without ever bringing anything contentious to a vote of the full Faculty of Arts and Sciences. Bland motions are dangerous. Even the unanimously voted FAS statement in favor of student body diversity has unexpectedly been cited by the president in justifying her attack on students’ freedom to join outside organizations.

The Allen motion offers a theory to justify Harvard’s legal right to regulate outside organizations—something I haven’t questioned (though others may have). So for me, the reference to Massachusetts anti-hazing statutes seems beside the point. I am not a lawyer, but it seems to me that if Harvard wants to make a rule that no member of the Bee or the Kappa Kappa Gamma may enroll, it can. My entire argument is that it shouldn’t have rules of that kind. In the particular hypothetical Professor Allen posed, in which a Harvard Pokémon Club staged cheating as an annual club ritual, she argued that all its members should be expelled. I am all in favor of throwing out cheaters, but I don’t see why some Pokémon-loving reformer who refused to go along with the crowd should get tossed too. As I have said many times, students should be punished for what they do, not for what clubs they join.

In the course of arguing that even the state sometimes steps in to regulate private organizations, the assurances in the First Amendment notwithstanding, Professor Allen makes a curious citation to support her case. (This and other documents are available here.)

[W]hen the Supreme Court handed down its 1987 decision in Rotary International, affirming California’s decision to prohibit gender-exclusive membership policies for clubs of that kind, the Court argued that “the State’s compelling interests in eliminating discrimination against women and in assuring them equal access to public accommodations. . . extends to the acquisition of leadership skills and business contacts, as well as tangible goods and services” (481 U.S. 537 [1987]: 548-549, emphasis added).

What is odd about that citation is how the Court got to the conclusion that, in the case of the Rotary Club, it could override the usual protections of free association. It was because the Rotary Club was so … inclusive. “The evidence in this case indicates that the relationship among Rotary Club members is not the kind of intimate or private relation that warrants constitutional protection,” Justice Powell states in his opinion. As the syllabus summarizes the argument,

In determining whether a particular association is sufficiently intimate or private to warrant constitutional protection, consideration must be given to factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship. Here, the relationship among Rotary Club members does not warrant protection, in light of the potentially large size of local clubs, the high turnover rate among club members, the inclusive nature of each club's membership, the public purposes behind clubs' service activities, and the fact that the clubs encourage the participation of strangers in, and welcome media coverage of, many of their central activities

To apply this to the final clubs seems to require arguing simultaneously that Harvard should regulate them because they are exclusive and can regulate them because they are inclusive! And to the extent that certain clubs are not particularly selective (some of the sororities, for example), that makes them more vulnerable to intervention by the authorities, not less.

I am, in any case, skeptical that Harvard’s interest in getting women jobs in investment banking has much to do with its insistence that the Porcellian Club go co-ed. It would be the easiest thing in the world to ramp up the support of women who wanted high-paying jobs in the financial sector; the industry would gladly help any Harvard effort to do that. No Harvard administrator has ever said that anything of the kind was an institutional priority, except when complaining about the final clubs.

There are other curious aspects to the argument for the motion, for example the relevance of the anti-hazing statute:

The law has been taken to apply to final clubs since it was introduced, and the final clubs adhere to its provisions.

Taken by whom? But yes. It’s a criminal statute. I am not surprised that the clubs acknowledge that they comply with it. It is a huge leap to suggest that this statute somehow justifies Harvard intervening in their membership practices. And to take another matter Professor Allen cites, I am also not persuaded that a Harvard rule against faculty having sex with students—a condition of an employment relationship—has any relevance to students’ club memberships.

Of course there can be such limits on individual freedoms in the context of our contractual relationship with the institution. The question is which ones Harvard should impose. The motion is dangerously vague on that substantive question, handing it off to “the faculty and administration.” Which seems to mean that another Clark-Khurana committee will make the rules, and the Faculty, corporately, will have no say.

I have from the beginning cited the Verba report and its explicit rejection of the idea of punishing ROTC students for joining what was then a discriminatory organization. It seems that we can infer how Professor Allen would want such a dilemma of conflicting freedoms and rights to be handled in the future. If Harvard is unable to persuade the government to drop its transgender ban in the military, will we expel our ROTC cadets?

So what should happen to a motion when its explanatory materials state a good deal more about its purpose and effects than does its text? It should be defeated. It is plainly intended as an alternative to my motion, and if it passes, the administration will surely use the apparatus surrounding the text to justify its harsh interpretation of the Faculty’s intentions.

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One final point. The motion claims to be moderate because it limits the scope of institutional reach to student organizations as defined by Massachusetts Law. So it is meant to swat away the questions about political parties and the like.

What seems not to have been stated anywhere is that Professor Allen’s Index of Prohibited Organizations is a great deal longer than that of the Clark-Khurana Committee. For example, it would include all the ethnic fraternities and sororities. They were excluded from the Clark-Khurana list because that list was restricted to organizations that consisted mostly or entirely of Harvard students, and these organizations (the ones I know about, anyway) are joint with MIT, Tufts, BU, and/or Wellesley. (Here is a link to one of them.)

The ethnic fraternities and sororities are a piece of Harvard culture I don’t know much about. They do not turn up on police blotters or Ad Board dockets. The only time I ever hear about them is when students tell me how important their organizations are to them. They are old, some of them; W.E.B. Dubois was a member of one.

The recent funeral of Dr. Allen Counter, whose name is synonymous with inclusiveness and diversity at Harvard, ended with a moving display. About 40 of his fraternity brothers, old and young, including several senior African-American Harvard faculty and administrators, rose from the congregation, assembled in the front of the chapel, formed a ring by linking their little fingers, and gave him a solemn ritual sendoff.

I am not at all sure that Harvard understands the social structures it is seeking to destroy.