A coalition of fraternities and final clubs will lobby Congress this month as they prepare to file a lawsuit against Harvard for placing sanctions on single-gender social clubs, according to internal documents from the National Interfraternity Conference obtained by the News and to two sources with knowledge of the situation.
The sanctions bar students in the class of 2021 and all successive classes who are members of single-gender final clubs, sororities and fraternities from becoming varsity captains, holding leadership roles in recognized student groups or applying for sponsored grants or fellowships.
Unless the lobbying on Capitol Hill goes well, the lawsuit against Harvard will likely begin in the next two months, one source speculated. If successful in ending Harvard’s sanctions against final clubs, the legal and lobbying efforts would set a strong precedent for other colleges, such as Yale, also weighing how to handle debates over the place on campus of single-sex social groups.
The Wall Street Journal reported in February that graduate members of Harvard’s final clubs already had begun lobbying Congress to alter an amendment in the PROSPER Act, a newly proposed education bill that would prevent colleges from penalizing students for joining single-sex student organizations. The “Cambridge Coalition” — consisting of the Porcellian Club, Fly Club, the AD Club and the national organizations of Sigma Chi, Sigma Alpha Epsilon and Delta Kappa Epsilon — was registered as a lobbying client of Arnold & Porter Kaye Scholer LLP law firm on March 30, the latest the coalition was permitted by law to disclose its lobbying efforts.
“We agreed [at a meeting with final clubs and Greek life leadership] to craft a potential litigation plan that each group will consider by mid-February,” wrote Judson Horras, president and CEO of the National Interfraternity Conference in a late January email. “Assuming each directly impacted group approves the plan, we will present it in April in DC (Hill visit time) to all [International Presidents from Sororities] and the NIC [Greek Council]. The plan will include a blueprint for litigation, PR plan for pressuring Harvard and a funding plan… The women seem very open to support a well-thought out plan. The Final Clubs see litigation as the last resort for them to support.”
In early February, Horras wrote another email to fraternity leaders to confirm that the final clubs were joining their efforts on the “legislative front” and, in another email sent at the beginning of March, that they would consider a full report of their litigation options against Harvard as they lobby Congress in April.
Horras did not respond over the weekend to request for comment on this story. Kevin O’Neill, the Arnold & Porter lawyer handling the NIC’s legal work, was not available for comment over the weekend. Representatives from Harvard did not respond to request for comment this weekend.
Arnold & Porter offered to fully research a potential lawsuit against Harvard for $65,000, although Horras wrote at the beginning of March that the NIC would counter with an offer of $50,000.
But not all in the NIC’s ranks are fully behind the fight against Harvard’s push to sanction single-sex groups. Doug Lanpher, the executive director of DKE, told others on the NIC’s team of fraternity leaders that he could not support their legal fund until he spoke with the DKE chapter at Harvard because the chapter “lean[s] toward supporting all-gender fraternities,” in a March 4 email.
Over the past school year, Lanpher has also been working on a plan to launch a new co-ed fraternity at Harvard. The fraternity would be a subsidiary of DKE and, in Lanpher’s vision, better suited to changing political climates on college campuses. Still, he agreed to have DKE listed on the Cambridge Coalition’s lobbying registration form at the end of March.
Since Harvard placed sanctions on single-gender social groups, various final clubs have threatened legal action. But many legal experts have questioned on what legal grounds a lawsuit could find Harvard guilty of breaking a law by enacting sanctions against students who participate in single-sex social clubs. As a private institution, Harvard is not beholden to the First Amendment’s guarantee of the right to freely associate, said Erica Goldberg, a lecturer at Harvard Law School in a Boston.com article.
“I’m not really sure what the basis of a legal challenge would be because Harvard is a private university,” Goldberg said. “I don’t see any way around it.”
The legal outcome of the standoff could have serious implications for colleges, such as Yale, where debates over gender inclusivity in fraternities have long been brewing. In a previous interview with the News, Associate Vice President of Student Life Burgwell Howard, who frequently works with Yale’s Greek life community, said that he is not confident in the legality of Harvard’s sanctions.
“The administration at Harvard has made a set of unique choices for their community, and we here at Yale will look for opportunities and approaches appropriate for the Yale community,” Howard said this weekend when asked about the potential lawsuit. “To my knowledge, no other school in the country has made the choices that Harvard has, but I’m sure many universities and organizations are watching to see how it plays out.”
According to a legal memo from February outlining the costs of researching a lawsuit against Harvard that Arnold & Porter provided to the NIC, there are several legal arguments that Arnold & Porter think could win a case against Harvard. The first hinges on a claim under Title IX that “Harvard is discriminating based on sex because it is excluding students from full participation in university activities simply based on the sex of the persons with whom they associate.”
The legal theory behind the argument draws on lawsuits that have successfully classified sexual orientation discrimination as sex discrimination under Title VII, the memo says, citing Hively v. Ivy Tech Community College. The argument also would rely on Supreme Court cases where the court has “construe[d] ‘discrimination’ under Title IX broadly” to hold that an educational institution is discriminating against an individual “on the basis of sex” without actually discriminating against an individual person because of that person’s sex.
But according to the memo, the strongest argument against Harvard focuses on a specific Massachusetts state law.
“We think our best chance of success would be to assert Massachusetts state law claims,” the memo reads. “First, we could bring a claim under the Massachusetts Civil Rights Act, which permits a suit by “[a]ny 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 [Massachusetts], has been interfered” by “threats, intimidation or coercion.”
According to the memo, this strategy would involve investigating whether the clubs have a First Amendment right to maintain their single-sex status and whether Harvard’s sanctions constitute “threats, intimidation, or coercion” as defined by Massachusetts law. Arnold & Porter said that “based on preliminary review, we think this claim is our strongest.”
The memo also floats the idea of investigating claims against Harvard for interference with economic relations, namely that the university promotes unfair competition by permitting students to join its own same-sex clubs “e.g. its sports teams” while “abusing its market power” to prevent clubs, fraternities and sororities from competing for student participation in the “market for student social activities.”
Harvard first announced sanctions against single-gender social organizations in 2016.
Britton O’Daly | firstname.lastname@example.org