Harvard Pressuring Fraternities to Admit Women
WASHINGTON, D.C. (May 7, 2016): Harvard University, in an effort to pressure student entities associated with it to begin admitting women, has announced that it would bar student members of any such groups from leadership roles in campus organizations and sports teams.
Although media reports have emphasized its major impact on so-called final clubs, the rule would also apply to five of Harvard’s fraternities, as well as to its four sororities.
While some argue that it violates the constitutional Freedom of Association, this is not true for at least two reasons, says public interest law professor John Banzhaf, who has actually litigated such cases.
Those who argue that the Constitution’s Freedom of Association prohibits Harvard from restricting its students’ membership in single-sex fraternities and other discriminatory organizations are dead wrong for at least two different reasons, he says.
The first reason is that the Supreme Court has held that there is no general freedom of association. Rather there are two types of association which are protected, but neither is applicable here.
The first is a freedom of expressive association which permit organizations to discriminate on otherwise impermissible factors, but which are essential to its role in speaking out on public issues.
For example, an organization of police officers who are both black and female, and formed for the primary purpose of speaking out on issues and expressing viewpoints on issues from a black and female point of view, need not admit white male officers to its membership. Fraternities do not fall into this category because they do not regularly engage in speaking out on public issues from a male point of view.
The second is a freedom of intimate association which applies only to very small groups such as families, tiny groups of people sharing communal living, etc. This would not appear to apply to fraternities, says Banzhaf, but they are rather more like private clubs. He notes that, for this reason, he was able to sue to force the Cosmos Club in Washington DC to change its 100+ year rule against admitting female members.
The second reason why discriminatory organizations cannot rely on the U.S. Constitution is that, with only very narrow exceptions, it applies only to governmental bodies, and does not restrict what a private institution such as Harvard can do.
That’s why private colleges, for example, may discriminate on the basis of gender, but state supported ones cannot, says Banzhaf, whose legal action forced a previously all-male state-supported college to admit a female cadet for the first time.
To those who argue that a university should not try to interfere in student memberships in private organizations, Banzhaf wonders if Harvard or any other major university would do nothing if it were widely known that its leaders were joining organizations closely associated with college life and made up of its students, but which refused to consider for membership any students who were black or Jewish.
If not, it would seem that the same policy should apply to university organizations – including final clubs, fraternities and sororities – which discriminate on the basis of gender rather than race or religion.
Such an argument, he notes, would apply whether or not eliminating male-only organizations would tend to reduce sexual assaults on campus – the ostensible reason behind the new Harvard policy.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School