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Freedom of association officially dead at Harvard

Marcio Jose Bastos Silva/

The Harvard University Faculty of Arts and Sciences has conclusively voted to introduce the blacklist policy against members of unregistered single-gender organizations into the student handbook, hammering in the proverbial final nail in the coffin the school has been assembling for nearly two years around the right of free association.

The policy — which punishes members of fraternities, sororities, and so-called final clubs — was first announced in May of 2016 and, despite undergoing numerous revisions and vetting by at least two secretive committees, there remains significant confusion as to what the final rules will look like. And while Harvard’s most recent statements on the policy do provide some answers, this finalized policy leaves many unanswered questions.

Final list of lost privileges now includes fellowships, but also carve-outs

As when it was first announced, the current version of the policy preserves most of the key restrictions against members of unregistered single-gender organizations, barring them from leadership roles on varsity sports teams and official student organizations. According to the policy page on Harvard’s website, members of single-gender organizations will not, however, be banned from leadership roles at the Harvard Crimson — the student newspaper which is financially and administratively independent from Harvard — or from the Undergraduate Council, which functions similarly to an elected student government.

A new addition to the policy, following from the Implementation Committee’s recommendations, is that members of single gender organizations will be barred from Harvard fellowships in addition to the previously announced bar from programs such as the Rhodes and Marshall scholarships, which require an endorsement from the college.

No “Bridge Period” for women’s groups

One of the more surprising recommendations made by the Implementation Committee was that the traditionally women-only groups would be allowed to continue with a “gender focus” for 3–5 years and would be re-evaluated after that period. This, after a number of women’s groups protested the sanctions, arguing they disadvantaged women and devalued their “safe spaces” on campus. According to The Crimson, this recommendation was initially accepted by Dean of Harvard College Rakesh Khurana and Associate Dean of Student Life David R. Friedrich. But Harvard now seems to be reneging on that promise.

The Crimson reports “[a]dministrators ultimately chose not to accept that program—and the process to go gender-neutral will now be the same for both men’s and women’s groups.” It is possible that Harvard knew that a policy that would allow men to be punished for participating in single-gender groups, while offering amnesty of at least 3–5 years to women’s groups could be a violation of Title IX, the federal statute that bars discrimination on the basis of sex at schools that accept federal funds (as Harvard does through research grants and federal financial aid programs).

Kudos, I guess, for not discriminating, but it’s nevertheless sad that Harvard’s apparent animus against men’s groups prevented it from just giving a bridge period to both the men’s and women’s groups. While the bridge period was far from an ideal solution to the policy’s insurmountable problems, giving students 3 to 5 more years to transition into coed status is better than punishing them immediately. In that vein, Harvard deserves additional criticism for choosing the more odious solution to the bridge period's gender discrimination problem.

Harvard will not solicit, investigate anonymous tips

Punishment for violators of the policy will be overseen by Harvard’s Administrative Board, which oversees general, non-academic misconduct. Most likely understanding that this policy creates a perverse incentive to inform upon one’s fellow classmates in order to take them out of the running for various positions and honors, Harvard announced that it won’t take or act on any anonymous tips, or “actively search” for violators (whatever that means). How will Harvard actually find violators, then, and determine if they are now, or have ever been, a member of the Communist Party a men’s or women’s group?

Named snitches only, one guesses.

Harvard hasn’t explained this further, which does not engender confidence that whatever mechanism they use to punish people under this draconian policy will be fair, or their process transparent.

What’s next?

This policy has been a long time coming. Given the near-total lack of accountability for Harvard administrators, and the nearly bulletproof nature of the institution thanks to its massive, $36 billion endowment, it’s amazing that opponents of this illiberal policy from within and without Harvard held off its enshrinement for so long. Going forward, sunlight on the process will be the best disinfectant.

We ask anyone punished under this policy to email us at Harvard will find it no easier to look good while punishing people for their associations than it did in the 1920s, when it drove men accused of associating too closely with homosexual people off campus (and in one case, to suicide), or than Joseph McCarthy did in mid-century, with his crusade against “crypto-Communists” in the government.

There’s just no right way to run a witch hunt.

We at FIRE anticipate that Harvard’s policy will not only ultimately fail, but come to be seen as one of the more shameful interludes in the institution’s history. But there is still hope to stave off the witch-burning before it really gets underway, as Congress considers the PROSPER Act, a re-authorization of the Higher Education Act. It is our hope that the Act will include language that will bar secular institutions receiving federal funds from discriminating against students for their lawful associations. Doing so would preserve freedom of association at Harvard, and at any school that tries to follow in Harvard’s footsteps.

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