A Joyless Victory

The four-year fight over Harvard’s “USGSO” policy is over. (”Unrecognized Single Gender Social Organizations.”) But many questions remain.

This is the policy President Faust and Dean Khurana announced, without any prior public discussion, during spring reading period in 2016. It denied certain honors and privileges to members of single-gender clubs, clubs that had no Harvard space or official recognition. It was clear from the beginning that the policy was aimed at the old male Final Clubs, as the policy was represented early on as a response to the problem of campus sexual assault (the vast majority of which are attacks by men on women) and to pernicious social class hierarchy. Data were presented in support of the first rationale, which withered under scrutiny and was never mentioned again. No attempt was ever made to back up the charge of social or ethnic exclusivity with hard data, though it always seemed clear that even the ritziest of the Final Clubs was far more ethnically diverse than (say) the Black Men’s Forum or the Asian American Sisters in Service, both fully legitimate Harvard-sponsored organizations.

The sanctions had little effect on the Final Clubs. A year or so ago I had lunch at a restaurant in Harvard Square with an undergraduate, and as we were chatting a series of men with athletic physique and impeccable attire came by and exchanged fist bumps and grunted greetings with my companion. “Recruiting?” I naively asked. “No,” he replied. “Punch season.”

But the sanctions all but wiped out the women’s clubs, which did not have the real estate, the alumni backing, or the stabilizing traditions of the men’s clubs. Parties including sororities sued Harvard in Massachusetts and Federal courts, and successfully beat back Harvard’s motion to dismiss in both venues. It was Judge Gorton’s opinion in the federal case that President Bacow cited in dropping the policy yesterday, noting that its reasoning was consistent with the majority opinion in the recent Supreme Court decision about LGBTQ employee rights. (Two weeks ago I pointed out that assonance and why I thought it spelled trouble for Harvard’s USGSO policy.)

So what more is there to say?

First, President Bacow’s retreat on the policy is minimalist, as is Dean Khurana’s supporting statement. Harvard does not acknowledge that the policy was wrong; only that it was likely to be interpreted as technically illegal under a peculiar interpretation of Title VII by a couple of judges. So from a purely personal standpoint, I find the outcome unsatisfying, because I never would have guessed that the policy was unlawful—only unwise and, in restraining students’ freedom of association off-campus, out of step with the spirit of American civil rights. (That is why the American Constitution Society debate held on this topic in November 2016 referred to the policy violating “First Amendment values,” not the First Amendment itself.) President Bacow writes of Judge Gorton’s opinion in denying Harvard’s motion to dismiss,

[T]he court accepted the plaintiffs’ legal theory that the policy, although adopted to counteract discrimination based on sex, is itself an instance of discrimination based on sex.

Now that way of putting it suggests that there is something absurd in the judge’s reasoning, that Harvard’s good intentions should be to its credit in this battle, that you have to tie your brain in a pretzel to make sense of the logical trap into which Harvard fell. That “we’re still right about this” posture echoes through Dean Khurana’s accompanying statement. I would have been happier to think that Harvard leadership had realized that the policy was not just technically wrong but fundamentally misguided, particularly for an educational institution. We should not be teaching students that the way to respond to social problems is to limit the ways in which citizens can peaceably assemble. 

Second, substitute “race” for “sex” in the sentence quoted above, and you have pretty much the basis for the SFFA lawsuit against Harvard, which is now in the hands of a US Court of Appeals. Harvard Magazine does a good job teasing out the uncomfortable implications for Harvard if that case makes it to the Supreme Court and that Court continues this line of reasoning.

A third consequence of the narrowness of the institutional concession is that it leaves open the possibility of a new policy taking squarer aim at the Final Clubs, or some larger set of off-campus organizations. Harvard could, for example, adopt a policy prohibiting (or penalizing) membership in an organization that costs money to join, unless it waives those fees for students who can’t afford to pay them. No Title VII protections would come into play, I suppose. 

Fourth, none of this settles the question of those lawsuits. Harvard has acknowledged it would lose them (or at least the federal case). What happens now? Does Harvard have to pay the plaintiffs? Does it have to do something to restore the women’s clubs it crushed? 

Finally, as the Globe reported this morning, the plaintiffs had yesterday filed a motion for an injunction against Harvard, apparently only hours before the Corporation vote and the president’s announcement. That motion is based on discovery of Harvard internal deliberations, which are unsurprising but damning. To quote (omitting citations to exhibits).

Evidence adduced in discovery reveals, however, that the Sanctions Policy (or something very much like it) was in the works long before May 2016; that the process for adopting the Policy was infused with sex stereotypes and anti-male bias; and that the Implementation and USGSO Committees were constituted to do little more than add a veneer of process to decisions already made by Harvard’s administrators long before. 

In an internal memo and presentation prepared in late 2015 and early 2016, the architect of the Sanctions Policy—Dean Rakesh Khurana—declared that he wanted to punish men who join men’s groups because men’s groups “jeopardize safety.” These documents show that Khurana already planned to target men’s organizations long before Harvard formed any committee or engaged in any kind of deliberative process, and that he was motivated to do so by a view that men’s groups are categorically unsafe places. The documents also show that the supposed “gender equity” rationale for the Policy was nothing but messaging. In a list of “pros” for targeting all single-sex organizations as a way of eliminating men’s groups, Khurana wrote that this ostensibly even-handed approach would improve “public relations: ‘University committed to gender equity.’” 

In an email and attachment sent to Dean Khurana on March 2, 2016, Harvard’s then- President Drew Faust expressed similar anti-male bias in supporting adoption of the Sanctions Policy. Faust declared that “the continuing hegemony of exclusive all male Final Clubs over undergraduate social life is deeply disturbing.” In her view, men’s groups—which she characterized as “overwhelmingly white and largely financially well-off men”—“yield disproportionate numbers of sexual assaults” as “the product of the hierarchical, gendered assumptions that form the very basis for [their] existence.” Id. “These organizations and the attitudes their current structure -- all male, unsupervised access to alcohol, exclusivity of male membership --inevitably encourages pose real dangers,” including to “fundamental physical safety.”

Numerous other previously unavailable documents show that sex stereotypes and anti- male bias shaped the Policy and drove its adoption. In internal Harvard documents, men’s organizations are consistently described as places of misogyny, racism, homophobia, and sexual violence; women are consistently described as unequal, victimized, and disempowered; and women’s organizations are disregarded as an unfortunate consequence of men’s organizations, existing solely as a mechanism to cope with exclusion from men’s spaces. 

Today is my last day as Gordon McKay Professor of Computer Science; starting tomorrow I will be “Gordon McKay Research Professor,” a fancy way of saying that I will be retired but active. It is a happy day for me, but not because it’s a day I am particularly proud to be a Harvard alumnus or faculty member. I am glad that the USGSO policy is no more and grateful to the many alumni and faculty who supported the effort to get rid of it. They are a wonderfully diverse group, starting with the three co-authors of the op-ed No Values Tests back in the fall of 2016, Margo Seltzer, Eric Nelson, and Richard Thomas. We all took some heat from our faculty colleagues and even from our institutional leaders. No matter. 

But what a colossal waste of time, money, and good will this policy has been for Harvard. Good riddance. I wish I could be more confident the University had learned something from the experience.