Harvard Law Professors Split on Legal Reasoning Behind Dropping Social Group Sanctions

Harvard Law School professors are split on the validity of University President Lawrence S. Bacow’s legal arguments in his Monday announcement that the University would abandon its social group sanctions in response to a recent Supreme Court decision on sex discrimination.

The College introduced the sanctions in 2016, effectively barring members of single-gender final clubs and Greek organizations from receiving postgraduate fellowships and holding athletics captaincies or leadership positions in extracurricular groups.

In an email to Harvard affiliates, Bacow explained that the June 15 Supreme Court decision in Bostock vs. Clayton County — which determined that Title VII of the Civil Rights Act of 1964 prohibits discrimination against BGLTQ employees — would make the sanctions unlikely to survive judicial scrutiny.

Law School professor Noah R. Feldman ’92 described the University’s decision to drop the sanctions in light of the Supreme Court ruling as a “reasonable position.”

“I am open to the argument that structural logic of the Bostock ruling, with its formalism in the treatment of what counts as discrimination because of sex, is certainly very likely to be considered relevant by the judge deciding the Harvard case,” Feldman said.

In his email announcement, Bacow explained that the judge overseeing a pending lawsuit over the sanctions, district court judge Nathaniel M. Gorton, heavily referenced an appellate decision affirmed by the Bostock ruling when he rejected Harvard’s request to dismiss the sanctions suit. This fact, Bacow argued, would make Gorton unlikely to side with Harvard if the lawsuit progressed.

Other experts, however, were more skeptical of Harvard’s legal logic. Law School professor Benjamin M. Eidelson wrote in an email that he believes the Bostock ruling does not directly undermine the University’s social sanctions.

“The argument that was apparently decisive here strikes me as quite weak. If the policy were based on whether you’re in a club with just people of the same sex, then sure, maybe that’s like a policy based on whether you’re in a relationship with someone of the same sex,” Eidelson wrote.

“But as I understand it, the policy is actually based on whether you’re in a club that itself discriminates on the basis of sex—or at least, the policy could easily be reformulated that way. And that anti-discrimination policy doesn’t turn on any facts about how any student's sex compares to the sex of anybody else, so it doesn’t fall within the logic of the Supreme Court’s decision in Bostock,” he wrote.

Law School professor Jeannie Suk Gersen also wrote in an email that she believes the sanctions were not “analogous” to the subject of the Bostock case.

“I don’t see how Harvard’s policy on single-sex organizations, whatever its merits, is analogous to treating a man who marries a man worse than a woman who marries a man,” Gersen wrote. “In my view, that analogy is an incorrect application of Bostock.”

Though Gersen wrote that she does not believe the Supreme Court’s decision “would vindicate” Harvard’s analysis of the Bostock decision, she also wrote that she understands Harvard’s desire to stop litigating the sanctions.

“I think President Bacow made the right decision,” Gersen said of the decision to drop the sanctions. “I do not think it was compelled by Bostock, but it arguably could be seen through the light of Bostock.”

“I think Harvard has to make choices about which lawsuits it feels like defending and which issues are important enough to really fight for, and I think Harvard has made the decision that that one is not as important as some other things it is currently defending in the courts, such as the Harvard admissions case,” she said.

—Staff writer Sydnie M. Cobb can be reached at sydnie.cobb@thecrimson.com. Follow her on Twitter @cobbsydnie.