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After single-sex group ban, Harvard clubs prepare to sue the university

UPDATED

Lawsuit may challenge sanctions on Title IX grounds.

A “coalition of fraternities and final clubs” will sue Harvard for placing sanctions on single-sex organizations, a policy that has apparently already contributed to a sharp decrease in the recruitment of at least some of the university’s single-sex clubs. 

The lawsuit “will likely begin in the next two months” and if it is successful it “would set a strong precedent for other colleges, such as Yale, also weighing how to handle debates over the place on campus of single-sex social groups,” according to The Yale Daily News.

Harvard’s single-sex club sanctions, which level various administrative penalties against both men and women who join male- or female-only clubs, were finalized last year. They received the support of numerous faculty. The school initially proposed a “bridge program” to allow female-only groups time to transition to gender-neutral organizations, but earlier this year it yanked that program and forced those groups to transition ahead of schedule.

Among the legal arguments that the current lawsuit is alleged to raise is the assertion that “Harvard is discriminating based on sex because it is excluding students from full participation in university activities simply based on the sex of the persons with whom they associate,” according to The News.

That line of attack would “rely on Supreme Court cases where the court has “construe[d] ‘discrimination’ under Title IX broadly” to hold that an educational institution is discriminating against an individual ‘on the basis of sex’ without actually discriminating against an individual person because of that person’s sex,” the paper reports.

A legal memo related to the case states that “the strongest argument against Harvard focuses on a specific Massachusetts state law:”

“We think our best chance of success would be to assert Massachusetts state law claims,” the memo reads. “First, we could bring a claim under the Massachusetts Civil Rights Act, which permits a suit by “[a]ny person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of [Massachusetts], has been interfered” by “threats, intimidation or coercion.”

According to the memo, this strategy would involve investigating whether the clubs have a First Amendment right to maintain their single-sex status and whether Harvard’s sanctions constitute “threats, intimidation, or coercion” as defined by Massachusetts law. Arnold & Porter said that “based on preliminary review, we think this claim is our strongest.”

The memo also proposes the possibility that Harvard has “[interfered] with economic relations” by effectively banning single-sex organizations on campus.

Read the whole report here.

UPDATED: This story originally misidentified the source of the cited news report. It is The Yale Daily News, not The Harvard Crimson.

MORE: Harvard votes to permanently discriminate against all-male and all-female clubs

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