Clubs Weigh Potential Legal Action Against Harvard Policy

UPDATED: May 11, 2016, at 11:35 p.m.

As the backlash against a new Harvard policy continues, unrecognized single-gender social organizations are weighing their legal options, although experts disagree about the viability of any potential litigation.

While no one fraternity, sorority, or final club has yet publicly announced plans to pursue legal action against the policy starting with the Class of 2021—which will bar their members from holding leadership positions and team captaincies and receiving College endorsement for prestigious fellowships—few are explicitly abandoning the option.

When Harvard administrators announced the change Friday, the graduate president of the Fly Club, Richard T. Porteus Jr. ’78 and Jonathan M. Pierce, a national spokesperson for the Alpha Epsilon Pi fraternity, did not rule out legal action. Pierce said Alpha Epsilon Pi would “be forwarding this to our legal counsel and be reaching out to our partners at other Greek organizations and other clubs.” Porteus, meanwhile, said the Fly would not “rule out anything that was within the law and morally and ethically defensible.”

Representatives of the two national umbrella organizations for fraternities and sororities—the North American Interfraternity Conference and the National Panhellenic Conference—emphasized their desire for a negotiated agreement with the University before turning to litigation. Both organizations contributed to a joint statement against the sanctions released Monday.

“Our current focus is on advocacy to implore Harvard to reconsider this policy, and further, to recognize fraternities and sororities,” Heather Kirk, national spokesperson for the North American Interfraternity Conference, wrote in an email. “There is greater opportunity to improve the university community and campus safety if we work collaboratively.”

In an emailed statement, National Panhellenic Conference Executive Director Dani Weatherford called discussion of legal action “premature.”

“Our priority right now is doing the advocacy work to highlight the value of the spaces, support networks and opportunities inherent to the sorority experience,” Weatherford wrote. “Ultimately, we urge our Harvard colleagues to listen to the women on their campus and re-think this policy.”

In an emailed statement, College spokesperson Rachael Dane wrote that the policy would not prevent students “from choosing their own paths while at Harvard.”

“We are not seeking to regulate the internal affairs of the unrecognized social organizations; they retain the authority to set their membership criteria, even as the College will continue to urge them to adopt inclusive and non-discriminatory policies,” Dane wrote. “Likewise, students will be able to continue to join these organizations and remain in good academic standing with the College. The recommendations are instead focused exclusively on decisions belonging to the College.”

While few organizations are ruling out litigation entirely, legal experts disagree on the feasibility of a possible suit.

Harvey A. Silverglate, a historically vocal opponent of Harvard administrators and the most optimistic of the four legal experts interviewed, said a potential suit against the University would have “a slightly better than 50-50 chance of winning,” adding that a more definitive guess would be impossible given that such a suit would be “pretty much unprecedented.”

Greg F. Hauser, an attorney who has worked extensively with Greek organizations, said he thought Harvard’s policy left the University on firm legal footing.

“I don’t like coming to that conclusion, but the way existing law is concerning private colleges and universities, I don’t think I see any very serious grounds for a challenge,” Hauser said. “That’s not to say you couldn’t come up with some creative arguments.”

One such argument might consist of filing a suit in the Massachusetts court as opposed to in the federal system. Peter F. Lake ’81, a higher education law expert at Stetson University College of Law and Silverglate both pointed to Massachusetts’ unique state laws, which place more emphasis on freedom of association than federal statutes, as a possible wildcard in potential legal proceedings.

“Under the Massachusetts constitution... there is a minimal level of fair dealing that a private association owes to its members,” Silverglate said. “That doctrine has been held to apply to the obligations of private universities to its students.”

Silverglate is a co-founder of the Foundation for Individual Rights in Education, which recently posted a petition requesting that University Drew G. Faust to “restore freedom of association at Harvard.”

Lake shared Silverglate’s view for the most part, saying that he didn’t think “the Massachusetts Supreme judicial court would be completely oblivious to the rights of individuals to associate in large private associations like Harvard.”

Still, Lake and other lawyers agreed that Harvard’s status as a private institution grants it more leeway than a public university would have in a similar situation.

“Because Harvard is private, its predominate relationship with students is contractual,” Lake said. “It does give a private institution the right to set certain standards for students that might not be acceptable at a public institutions. But that’s just part of the story.”

Lake said that if any new policies violated “promises that have been made to students based on student handbooks” or other official documents, a suit could be strengthened.

Timothy M. Burke, a lawyer with a history of representing Greek organizations, said Harvard’s decision to begin enforcement of the policy for members of the Class of 2021, who have yet to apply to Harvard, could serve to sidestep any arguments of “contractual breach.”

“Harvard has its very bright attorneys that have been looking at this,” Burke said, though he added that the delayed enforcement also gives affected single-gender organizations more time “to analyze the problems that are going to be created.”

James M. Myers ’77, who said he was a member of the Porcellian Club, also questioned the viability of taking on Harvard in court.

“Last time I checked, you don’t sue someone who has a law school on retainer,” Myers said.

—Staff writers Andrew M. Duehren and Daphne C. Thompson contributed to the reporting of this story.

—Staff writer C. Ramsey Fahs can be reached at ramsey.fahs@thecrimson.com. Follow him on Twitter @ramseyfahs.