On August 9, a federal judge, Nathaniel Gorton, rejected, for the most part, Harvard's request that the case against its policy about single-sex organizations be dismissed. The judge agreed that a couple of the sororities and a couple of the students did not have standing to sue, but let the suit proceed with other organizations and students as plaintiffs.
But the opinion says much more than that. It corrects Harvard’s representation of the relevance of Title IX, and does so in such clear and strong terms as to signal that Harvard is going to lose the argument if it goes to trial. Moreover, a separate part of the opinion suggests that the negative statements Harvard officials have made about all-male clubs in order to justify the policy may amount to unlawful discrimination on the basis of gender stereotyping.
Two good summaries have been offered by The College Fix and by Forbes. The Crimson just wrote up the decision too.
Harvard argued that its policy is not discriminatory because it applies equally to all-male and all-female organizations. The opinion swats that argument down quite unequivocally.
Applying the comparative or but-for test to the situation of Harvard students subject to the Policy demonstrates that the Policy discriminates on the basis of sex.
The but-for test is this: If a plaintiff is subject to the policy but would not be subject to it but for his or her sex, then the policy is unlawfully discriminatory under Title IX.
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). The fact that the female student would otherwise not be allowed to join the all-male organization because of the organization’s own discriminatory policy does not alter the conclusion that the sex of the student is a substantial motivating factor behind the Policy. Indeed, sex is essential to the application of the Policy to any particular student.
So it is the situation of the individual that matters. The opinion cites precedents in employment situations in which the but-for test implied that it was unlawful, under Title IX, to fire a worker for being in a same-sex marriage (if the sex of the worker were changed, the worker would be in a heterosexual marriage and would not be fired). The Forbes columnist, Evan Gerstmann, cites an even more arresting precedent. It was unlawful for the State of Virginia to ban interracial marriage, and the fact that the ban applied equally to blacks and whites was irrelevant. How awkward for Harvard to be placed in that company!
I am happy to acknowledge that non-lawyer that I am, I did not see this coming. I argued from the beginning that the policy was wrong, but I always thought that as a private institution, Harvard could implement it if it chose to, however unwisely. I was wrong.
That said, I nonetheless am surprised that Harvard got it wrong. As Gerstmann says, “Harvard should have known better.” It is a mystery that Harvard’s lawyers—who are both good and conservative—could have missed the applicability of Title IX precedents here. Gerstmann goes on to advise Harvard to settle the case before it gets to a jury. I don’t see how Harvard can settle it except by backtracking on the policy, as it should have done long ago. Now, it seems, it has to.
Unless, of course, it is prepared to lose and to appeal, in the hope that the federal appeals court will reverse Judge Gorton and use a different interpretation of Title IX requirements. That seems like a risky proposition—especially given that a separate and parallel case is working its way through the Massachusetts court system, and there is legislation afoot in Congress that would outlaw the policy anyway.
And even aside from these problems, Judge Gorton’s opinion takes Harvard to task for gender stereotyping.
… [P]laintiffs have alleged facts sufficient to state a plausible claim under a theory of gender stereotyping. Plaintiffs have asserted that Harvard’s Policy was motivated, in part, by the view that single- sex, social organizations promote sexual assault and bigotry on campus and produce individuals who fail to act as modern men and women should. It is certainly plausible that Harvard’s purported ideal of the “modern” man or woman is informed by stereotypes about how men and women should act. Withholding benefits from students who fail to conform to such stereotypes violates Title IX
Ouch. From the beginning, the policy has been justified on the basis of Harvard’s commitment to nondiscrimination; now it turns out that it is exactly the opposite. I always thought Harvard’s argument was hypocritical; I didn’t realize it was illegal. Three years ago I noted how odd it was “to hear the Harvard leadership brandishing a stereotype in the interest of promoting diversity and inclusivity”; I didn’t know it was unlawful too.
The ball is in Harvard’s court.
