'Plowing New Ground’: Experts Say Harvard Sanctions Suits Employ Unusual Legal Arguments

The pair of lawsuits challenging Harvard’s sanctions rely on unusual and in some cases far-fetched legal arguments — but it is too early to know whether the complaints will be successful, experts say.

Analysts said the plaintiffs in the twin suits — two fraternities, two sororities, and three anonymous College students — are pursuing creative legal strategies in arguing the sanctions constitute civil rights violations and sex-based discrimination. Experts added the decision to file suit in both federal and state court is a savvy move and may bolster the social groups’ chances of victory.

The federal suit alleges the sanctions amount to sex-based discrimination and violate Title IX, an anti-sex discrimination law, and the United States Constitution. The state-level case argues the sanctions violate the Massachusetts Civil Rights Act and the Massachusetts Constitution because the penalties cause students to receive unequal treatment based on their sex.

Harvard’s sanctions prohibit members of single-gender final clubs and Greek organizations from holding campus leadership positions, varsity team athletic captaincies, and from receiving College endorsement for prestigious fellowships including the Rhodes. The sanctions took effect with the Class of 2021.

College spokesperson Rachael Dane defended the school’s policy in a written statement Tuesday.

“Harvard College seeks to build a community in which every student can thrive, and it does so on a foundation of shared values, including belonging, inclusion, and non-discrimination,” she wrote. “Harvard should not have to change its commitment to non-discrimination and educational philosophy for outside organizations that are not aligned with our long-standing mission.”

Experts said that, by citing several different laws in two different courts, the social groups are essentially throwing out as as many claims as they can and hoping one sticks.

Merrick T. Rossein, a professor at the CUNY School of Law who has litigated Title IX cases, said students and social groups probably also hope the slew of complaints will attract significant media attention.

“I’m assuming that they’re just feeling that they’re going to try to put as many of their claims in as many of the kitchen sinks as possible to see which one would stick,” Rossein said. “They might also be doing it just for the media interest in a suit that gets filed simultaneously in both the state and federal courts that’s of interest to people.”

Douglas E. Fierberg, an attorney who specializes in sexual violence cases involving fraternities, said the fact there are two separate suits could increase the likelihood that the courts will take up some of the allegations. He said the social groups’ path to victory is clearest through state court.

The social groups’ strategy may be “to protect some of the state claims and allow them to go forward while they engage in a fishing expedition in federal court,” Fierberg said. “Perhaps the plaintiffs aren’t confident — they shouldn’t be — about federal law applying to Harvard’s decision and prohibiting Harvard’s decision.”

Both Fierberg and Rossein said some of the suits’ allegations are unlikely to hold up in court.

“There’s some claims that I think are really more than stretching it,” Rossein said. “They’re claiming a violation of equal protection. The Constitution, the federal Constitution, applies to states, not to private entities.”

The federal complaint alleges Harvard’s sanctions violate the Massachusetts Civil Rights Act by infringing on students’ Fourteenth Amendment right to equal protection under the law. The state law includes a provision that specifically affirms this right.

Harvard Law School professor Noah R. Feldman ’92 said lawyers will have to get “creative” going forward if they hope to argue Massachusetts state law protects students’ right to join social groups. The attorneys are specifically alleging the penalties violate undergraduates’ freedom of association as guaranteed under the Massachusetts Civil Rights Act.

Feldman said the freedom of association argument may prove viable. But he also noted Harvard may have its own claim to freedom of association under Massachusetts law: the University could argue that it has the freedom to associate — and not associate — with whomever it chooses, he said. Under this interpretation of the law, Harvard would have broad discretion to sanction social groups.

It’s unclear whether Harvard or the Greek groups are more likely to win in court, analysts said — in part because the Monday lawsuits raise uncommon legal arguments for which there is little precedent.

Fierberg said he is not aware of any previous case in which fraternities or sororities used Title IX to defend their existence on a university’s campus.

“I don’t know if they’ve tried it before,” Fierberg said. “I’ve not directly heard of it. It’s a novel way of twisting Title IX.”

Gregory F. Hauser, an attorney who has worked on a number of cases involving fraternities, also called the plaintiffs’ use of Title IX unusual.

“When Title IX says you can’t discriminate against anybody on the basis of sex, it doesn’t reach this kind of decision by Harvard,” Hauser said. “So the argument that the plaintiffs are making — that prohibiting joining single-sex organizations is discrimination on the basis of sex — is plowing new ground.”

Rossein pointed to several historical court cases that involved single-gender social organizations including the 1984 Supreme Court case Roberts v. United States Jaycees, which addressed questions of sex-based discrimination and freedom of association.

While experts generally agreed on the novel nature of the lawsuits, they disagreed on the ultimate outcome.

“At the end of the day the fraternities are going to lose — just a question of timing,” Fierberg said.

Hauser, though, said Harvard could run into difficulties — particularly if it tries to argue that the University’s right to “academic freedom” means it can limit student involvement in private, off-campus organizations.

“The extent to which a court would recognize Harvard’s academic freedom at issue here — and they might — I’m sure Harvard’s going to make the argument — is an open question,” Hauser said. “Is an argument available to Harvard? Absolutely yes. Is an argument that’s going to win? Not necessarily.”

As legal experts ponder the case, others are picking sides. Scores of fraternities and sororities across the nation announced support for the plaintiffs on Monday. A petition hosted on the plaintiffs’ website that asks signatories to “stand up to Harvard” had garnered more than 45,000 signatures as of Tuesday evening.

—Staff writer Caroline S. Engelmayer can be reached at caroline.engelmayer@thecrimson.com. Follow her on Twitter @cengelmayer13.

—Staff writer Delano R. Franklin can be reached at delano.franklin@thecrimson.com. Follow him on Twitter @delanofranklin_