Sometimes Stupid Things Are Constitutional: On The Legality of Social Sanctions

As soon as President Faust announced new restrictions on members of single sex-organizations, virtually every affected group on campus displayed conspicuous outrage. Fraternity members lashed out in conversation and online, sorority sisters unified on Facebook, and final club members—well, as usual, they said little. Members of some single-gender organizations even started to make a legal argument, citing their right to freedom of association. While philosophical arguments about the importance of free association may be valid, legal arguments that claim Harvard has violated the Constitution are misguided.

Many students seem to believe that they have a protected right to freely associate. For instance, the Harvard College Republicans put out an essay that cites “freedom of association,” a phrase coined by the Warren Court in 1958 when it struck down an Alabama State Attorney’s demand for a list of local NAACP members. Students have copied and pasted passages from the majority opinion, smugly assuming that the new restrictions on single sex organizations were undoubtedly unconstitutional.

Unfortunately for these opponents of the restrictions, their reasoning does not hold up in a legal setting. In fact, it probably will not even come up if any potential case is held. The crucial part missing from this month’s copy-paste citations is in a line from the majority opinion in which Justice John Marshall Harlan II states that private clubs have, “immunity from state scrutiny of petitioner’s membership lists” (emphasis mine). The fact that Harvard is a private organization interacting with students on a contractual basis, not a public entity making demands of private citizens, makes the connection between Alabama’s orders and Harvard’s sanctions tentative at best. Additionally, this freedom of association goes both ways; if a student wishes to associate with a final club, fraternity, or sorority, they can. But Harvard (as a private entity) can choose to not associate with that student, for whichever reason it sees fit—including involvement with a single-sex organization. This was the reasoning behind the Second Circuit Court’s 2007 decision to allow the College of Staten Island (part of the CUNY system) to officially unrecognize a fraternity chapter on its campus. The fact that Harvard is a private university further strengthens Harvard’s potential legal defense.

Although it appears that some clubs are already pursuing legal action, the outlook isn’t very promising. Previous lawsuits haven’t been very fruitful, and most have been predicated on some sort of contractual breach with students, like forcing students to move out of fraternity houses during a term period. Harvard has protected itself from such scrutiny by giving the single-sex organizations ample time to adjust. Additionally, the university does not explicitly forbid any student from participating in a single-sex organization—it just institutes a reprimand if a student does. In this careful construction of the new policies, the university has essentially isolated themselves from any effective legal action by the clubs and organizations (including the final clubs, some of which have legal counsel chairs).

I doubt that Harvard’s single-sex organizations would accomplish much through potential legal actions. However, if they do, they’ll have to appeal to the Supreme Court before they can expect anything to change. Even if they make it there, they won’t be invoking any 1958 civil rights cases.

 

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