Wednesday, July 12, 2017

The new policy about social clubs

The report of the committee chaired by Professor Clark and Dean Khurana has now been posted. Harvard Magazine has a good summary, including a link to the report: Harvard Committee Recommends Banning Clubs. The Boston Globe also has a story, in which I am quoted: Harvard panel recommends barring students from final clubs. Here is the full text of what I sent the reporter:
The recommendation manages to put Harvard in a position that combines arrogance with insecurity. The University would suspend ordinary freedom of association rights so that Harvard can pick which off-campus clubs students can join. And at the same time the report displays a lack of confidence in Harvard's mission to educate students to make choices for themselves. Instead Harvard would do the easy thing: make a law and punish the nonconformists. This is not the way to prepare the citizens of a free society. 
It contains one particularly significant sentence: “The President will make the final decision.” So we have a committee, hand-picked by the dean, declaring that the matter is not under Faculty jurisdiction. I don’t know how the Faculty will react to the policy itself — I would like to think they would not support it — but I would be very surprised if they would agree that this matter is not within their authority to decide.
There is a great deal more to be said about this. The same rhetorical devices are being used as in the past: Some clubs are bad, so we must ban all clubs. We'll have to figure out later how to replace the positive roles some clubs play in the lives of some students, once we have killed them off. No data (read Professor Haig's minority opinion at the end). No acknowledgment that most of the groups and students affected are not the final clubs and their members.

I think the most interesting question may prove to be the constitutional issue suggested in the second part of my statement to the Globe. The report assigns responsibility for enforcing the policy to the Administrative Board. The Administrative Board administers the policies for undergraduate affairs adopted by the Faculty, which draws its authority over undergraduate affairs from the Fifth and Twelfth Statutes. The report says that no special oaths will be needed because the policy will be incorporated into the Handbook. But nothing gets incorporated into the Handbook by presidential fiat. The Faculty votes the Handbook every year, and votes major changes to it individually before the Handbook as a whole gets voted at the end of the academic year. It simply makes no sense to say that the President will decide this and then it will go into the Handbook, unless the fundamental principle of faculty governance over undergraduate affairs has been altered in the Statutes. "The President will decide" and "it will go in the Handbook and be enforced by the Administrative Board, whether the Faculty like it or not" are inconsistent statements, unless the Statutes have changed.


  1. No law school professors on the committee, if I read the membership list correctly. It shows.

    What should have been the carefully honed point of the report -- the proposed policy -- is disturbingly vague. All of the work is done by the words "private" and "exclusionary." What kinds of exclusion are to be prohibited? While the report focuses on single-gender organizations, it refers more broadly to "gender, race, class, and sexual orientation." But the proposal itself isn't even qualified by a list of protected classes, and it makes clear that dropping gender-discriminatory policies is not by itself sufficient "transformation." All that seems to be left, then, is having a selective membership process and events open only to members and their guests. But if that's the issue, then numerous Harvard institutions -- the Lampoon, the Advocate, the Hasty Pudding Theatricals, many singing groups, perhaps even the Crimson -- might seem to be "exclusionary" in the same unacceptable way.

    The important contrast, then, is between "recognized independent" student organizations (ISOs) and "unrecognized" ones. The report seems to contemplate a future in which the unrecognized organizations simply disappear. But in such a world the recognized ones will continue, and some of the unrecognized ones will attempt to convert to recognized ones while making as few other changes as possible, and the report seems to consider this state of affairs fine. The argument goes that the recognized organizations are subject to College oversight and comply with an appropriate list of College policies in the Handbook for Students. The most relevant ones seem to be non-discrimination, anti-hazing, disclosure of membership, local autonomy, training, insurance, consultation on events, and a vague pledge to "[o]perate in a manner consistent with the goals and standards of the University."

    The crucial question, then, is which of these the unrecognized organizations are -- as a group -- falling short of. Even if this policy never comes before a court, this is the kind of question a thoughtful lawyer would ask. It goes to the degree of fit between the goal of the regulation and the means adopted for achieving it, and to the rationality of the distinction adopted by the regulation, matters that any conscientious regulator should attend to closely. The report is essentially silent on these points. It says much about the harms of exclusion, but little about why the policy would actually root out the exclusion that matters.

    The policy proposes a severe restriction on students' freedom of association, one that infringes on fundamental University values. Even without considering whether the policy is worth the harms it will inflict, the report fails almost utterly to establish that the policy will do what it sets out to do.

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