Wednesday, January 9, 2019

How far do the sanctions go?

Apologies to my regular readers for the long silence. I have been busy! I finished a discrete math textbook I have been working on for a while with my former teaching assistant Rachel Zax (now an engineer at Google). It will be out in March, published by Princeton University Press. I started on an edited collection of classic papers of computer science, to be published by MIT Press. And I’m working on a second edition of Blown to Bits with my previous co-authors plus Wendy Seltzer of the W3C.

In the meantime, the College’s sanctions regime has been challenged in two lawsuits, one in federal and one in state court. The group behind the challenge is called Stand Up to Harvard. Links to the two complaints are on this page. The state complaint is particularly interesting, because it is based in part on a specific Massachusetts statute, in Chapter 12:

Section 11H. Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured. 

Section 11I. Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages. Any aggrieved person or persons who prevail in an action authorized by this section shall be entitled to an award of the costs of the litigation and reasonable attorneys' fees in an amount to be fixed by the court.

I am not a lawyer and I have no idea what precedents exist for the application of Section 11I, but I can certainly see the argument for its relevance to this situation, in spite of Harvard’s status as a private institution.




From the beginning, some colleagues have suggested that I am making a mountain out of a molehill, that there is no danger of any larger infringement of students’ liberties since the sanctions policy is narrowly targeted and just aimed at killing off the Final Clubs, which everybody hates anyway. Of course it has turned out, as the Chronicle documents, that if that was the aim the policy has missed badly. (And to the friend who told me not to make a federal case out of it, it really is a federal case now.)

But here is the thing that I’ve been worried about all along. I don’t believe the actual reach of the policy is nearly as limited as the written rules suggest.

Do the sanctions have sharp edges, rendering students ineligible for certain specific distinctions and leadership opportunities if they belong to one of a specific list of clubs, but having no consequence for students who don’t seek those specific honors or are not members of any of the blacklisted clubs? Or do the sanctions have a penumbra? When Harvard administrators make a narrow ranking choice between two students for some distinction that is NOT on the official list, will their judgment be colored, explicitly or unconsciously, by the knowledge that one of the students is a member of one of the blacklisted organizations? Letters of recommendation are the obvious example. If a student is a member of a USGSO, how will the dean answer the question, “Is this student really one of your best?” for distinctions that are NOT on the official list of prizes and positions unavailable to USGSO members?

Or what if the student is not a member of any of those organizations, but is a member of some other non-Harvard organization that would fail to meet Harvard’s nondiscrimination standards if it tried to gain official recognition from the College? One of the ethnic sororities, for example, which escape the sanctions regime since they are deemed “inclusive” by virtue of admitting Wellesley students? Or the Harvard Knights of Columbus chapter? There is nothing in the Handbook for Students to suggest that there is any problem with joining these groups. But wouldn’t the deans consider joining such a group to be, if not over the line, at least a little bit out of step with Harvard’s deep values of inclusivity? If strict adherence to Harvard values is so important that you can’t be captain of the Tiddlywinks team if you belong to a noncompliant organization, then when Harvard is making decisions on the basis of featherweight differences, why wouldn’t it take into account such slightly off-target indicators of students’ values?

What does Harvard Law School think about the character of students who belong to organizations that the College has blacklisted, or organizations that resemble them? After all, the sanctions policy has been voted by the President and Fellows, so students are warranted in wondering if HLS is making its judgments in the spirit of the College’s club-membership test of Harvard’s “deepest values”. (This fear is mentioned in the Chronicle piece cited above. Previously, when this question came to me from a student, I asked HLS, but in response got only a link to the Law School’s admission site.)

Now it may well be that nobody is willing to say anything in the middle of ongoing litigation. But there is another possibility. The policies have been word-smithed to crush the single-gender organizations in a legally defensible way. It would then serve Harvard’s purposes to leave doubt about the borderline cases. “If you are worried that the values of your organization aren’t wholly consistent with Harvard’s values, well, we’re not going to help you by saying you shouldn’t be worried. But you don’t really need to know the answer; you can protect yourself by not joining the organization or keeping quiet about your membership.” Keeping 'em guessing expands the de facto reach of the sanctions without the legal risks that would come with articulating a broader reach.

But without some clarity about the extent of the penumbra, students would then be justified in worrying that they are living in a police state in which everyone is an informant and that every private deviation from Harvard’s definition of “inclusiveness” risks being held against them. 

Here’s a realistic thought experiment. Suppose you were a senior at Harvard applying to law school and needed a letter from your dean. (The deans live and eat with the students in the Houses so they get to know them personally and understand them as whole, complex people.) Now suppose you were a member of a conservative religious congregation, one that separates men and women in services, and your dean is of the same faith but of a more liberal persuasion. Would you invite your dean to services? 

That is the sort of sharing of cultural richness on which the entire College enterprise is grounded and all our theories of learning in a diverse community are based. We are all about getting out of our comfort zones and sharing our differences. But if a student asked me whether I thought such a generous invitation was wise idea, I’d advise against it today. In a Harvard where students are expected to adhere to complete gender inclusiveness as a mark of devotion to Harvard deepest institutional values, there would be too much risk that the dean would come away thinking that a student willing to be relegated to the back of the house at services did not bleed true Crimson.

Bonus links: My letter to a congressional committee about all this, and the wonderful remarks of William James from which I quote at the end: “The day when Harvard shall stamp a single hard and fast type of character upon her children, will be that of her downfall. Our undisciplinables are our proudest product. Let us agree together in hoping that the output of them will never cease.”