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Let the stniching begin

Too much to discuss today. Of course I am ecstatic about the decision in the Admissions lawsuit; the opinion is well worth reading. (Even if you are just curious to learn how the process works.) And Senator Grassley has taken an interest in what I called The political execution of Dean Sullivan.

But other matters will have to wait. I wanted to call attention to today's report in the Crimson explaining how the USGSO policy will be implemented. From the beginning I have been asking how the College will know who is in a prohibited Unrecognized Single Gender Social Organization, given that only fellow students are likely to know. The published policy reads,
Student Organizations who are found to have elected a member of a USGSO to a leadership position will be put through the Student Organization Discipline process and that student will be removed from the leadership position.
And how will those errant students be found?
[Associate Dean of Student Engagement Stephen] Miller also said there is no formal process in place for reporting violations of the sanctions policy by student group leaders. The person launching the complaint cannot be anonymous but can be any member of the Harvard community.,“It can be email, it can be a phone call, it would have to be someone coming forward to communicate with our office, whether verbally or in writing, but there is no form,” Miller said. 
Could be anyone with a grievance, or even a dean who notices a student entering the Porcellian. Then what happens? "After the initial report, Miller said that the College would meet with the student in question and `find out more information.' ”

All this is in tension with with the Implementation Committee's commitment to keep other people out of the enforcement of the policy.
We consider compliance with the policy to be a matter between the individual student and the College. Other parties—faculty, faculty deans and tutors, athletic coaches, fellow organization members, teammates—should not be responsible for policing the policy or ensuring that it is complied with.  
Dean of Students Katherine O'Dair tried gamely to split the difference.
"We don’t consider it students’ responsibility to enforce University policy. …That said, students should know that our doors are open if they want to bring concerns to us about any number of policies.” 
So if you are the runner-up in the voting for the presidency of the Republican Club or the captaincy of the women's ice hockey team, and you think that the winner might be in an unrecognized club, you now have a strong incentive to walk through an open door to express what is delicately described as a concern about policy--a concern that just might make you head of the organization.

And there is no official list of prohibited organizations (so I still don't know if the Knights of Columbus is on it). Miller added, "We don’t give instructions to student organizations, but we do give them guidance on policy." One alum who wrote to me described this style as Maoist, another as Stalinist.

I am quite surprised that Harvard is going full speed ahead with enforcement, given the legal setback the policy suffered some weeks ago. To be going on the record in the Crimson today inviting students to start turning on their fellow students, the administration of the College must be confident that it will ultimately prevail on the question of whether the policy constitutes unlawful discrimination under Title IX. Won't Harvard be inviting a civil suit if it damages a student's reputation and professional opportunities by depriving her of a leadership position as it enforces what it has good reason to think is an unlawful policy?

Can I still use my Chromebook now it is no longer supported?

Bill’s Acer Chromebook C720 will not receive further updates. It works well so can he still use it?

I have recently got the message that my Acer Chromebook C720 will not be receiving any further updates as Google no longer supports Chromebooks older than six years. I use mine for surfing the internet, email and creating documents, which I send as email attachments. The machine still works as well as when I first bought it, and I’m reluctant to dump it for a new one.

I understand that I can install a new operating system myself but I really can’t be bothered. The reason I bought a Chromebook in the first place was because of ease of use, simplicity and reliability. What are the risks if I just continue to use it without receiving any more updates? Bill

There is no way to assess the risk because it depends partly on what you use your Chromebook for, and how careful you are. Nowadays, most attacks require some kind of user assistance. This can mean, among other things, installing fake Android apps with hidden features, installing bogus Chrome extensions, visiting malicious websites, falling for phishing attacks, falling for man-in-the-middle attacks and failing to install essential security updates.

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How can I force my Windows 10 laptop to update?

Windows Update tells Frank that Windows 10 is up to date, but he still needs to install a new version

Why does my HP Pavilion laptop tell me that Windows 10 is up to date, but at the same time tells me I’m running a version that’s nearing the end of support, and recommends that I update to the most recent version? Frank

First, some background. Microsoft used to provide new versions of Windows every three or more years, and support them for 10 years. Examples included Windows XP and Windows 7. They didn’t change unless Microsoft released a service pack update, such as Windows 7 SP1.

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How do I take better photos? | Ask Jack

Lyndsay wants people to post better pictures on Facebook. Here’s how to get the shot right on your phone or camera

So many people post pictures on Facebook with very advanced cameras, eg from iPhones. Alas, many do not crop their photos, the horizon is not horizontal, there are dark shadows … Some people do not even know the camera can face outwards: I notice so many selfies! I think a gentle article from Jack Schofield on how not to disappoint your friends with holiday pics would be wonderful. Lyndsay (via Facebook)

There are some terrible photos on Facebook, but I think the average level is very high. Back in the dark ages BC (before computers), I edited several photographic magazines and a partwork, You and Your Camera. Then, the quality of the average enprint, as enlarged prints were called, was extremely low, and you couldn’t edit pictures unless you printed them yourself. Photos taken with small-frame film formats – like the 110 cartridges used by Kodak’s Pocket Instamatic cameras, introduced in 1972 – could be dire.

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But for

On August 9, a federal judge, Nathaniel Gorton, rejected, for the most part, Harvard's request that the case against its policy about single-sex organizations be dismissed. The judge agreed that a couple of the sororities and a couple of the students did not have standing to sue, but let the suit proceed with other organizations and students as plaintiffs. 

But the opinion says much more than that. It corrects Harvard’s representation of the relevance of Title IX, and does so in such clear and strong terms as to signal that Harvard is going to lose the argument if it goes to trial. Moreover, a separate part of the opinion suggests that the negative statements Harvard officials have made about all-male clubs in order to justify the policy may amount to unlawful discrimination on the basis of gender stereotyping. 

Two good summaries have been offered by The College Fix and by Forbes. Remarkably, the Crimson has not reported anything about the decision.

Harvard argued that its policy is not discriminatory because it applies equally to all-male and all-female organizations. The opinion swats that argument down quite unequivocally.
Applying the comparative or but-for test to the situation of Harvard students subject to the Policy demonstrates that the Policy discriminates on the basis of sex.
The but-for test is this: If a plaintiff is subject to the policy but would not be subject to it but for his or her sex, then the policy is unlawfully discriminatory under Title IX. 
Whereas a male student seeking to join an all-male organization would be subject to the Policy (and vice versa), a female student seeking to join the same all-male organization would not be subject to the Policy (and vice versa).  The fact that the female student would otherwise not be allowed to join the all-male organization because of the organization’s own discriminatory policy does not alter the conclusion that the sex of the student is a substantial motivating factor behind the Policy.  Indeed, sex is essential to the application of the Policy to any particular student.
So it is the situation of the individual that matters. The opinion cites precedents in employment situations in which the but-for test implied that it was unlawful, under Title IX, to fire a worker for being in a same-sex marriage (if the sex of the worker were changed, the worker would be in a heterosexual marriage and would not be fired). The Forbes columnist, Evan Gerstmann, cites an even more arresting precedent. It was unlawful for the State of Virginia to ban interracial marriage, and the fact that the ban applied equally to blacks and whites was irrelevant. How awkward for Harvard to be placed in that company!

I am happy to acknowledge that non-lawyer that I am, I did not see this coming. I argued from the beginning that the policy was wrong, but I always thought that as a private institution, Harvard could implement it if it chose to, however unwisely. I was wrong.

That said, I nonetheless am surprised that Harvard got it wrong. As Gerstmann says, “Harvard should have known better.” It is a mystery that Harvard’s lawyers—who are both good and conservative—could have missed the applicability of Title IX precedents here. Gerstmann goes on to advise Harvard to settle the case before it gets to a jury. I don’t see how Harvard can settle it except by backtracking on the policy, as it should have done long ago. Now, it seems, it has to.

Unless, of course, it is prepared to lose and to appeal, in the hope that the federal appeals court will reverse Judge Gorton and use a different interpretation of Title IX requirements. That seems like a risky proposition—especially given that a separate and parallel case is working its way through the Massachusetts court system, and there is legislation afoot in Congress that would outlaw the policy anyway.

And even aside from these problems, Judge Gorton’s opinion takes Harvard to task for gender stereotyping. 
… [P]laintiffs have alleged facts sufficient to state a plausible claim under a theory of gender stereotyping. Plaintiffs have asserted that Harvard’s Policy was motivated, in part, by the view that single-  sex, social organizations promote sexual assault and bigotry on campus and produce individuals who fail to act as modern men and women should.  It is certainly plausible that Harvard’s purported ideal of the “modern” man or woman is informed by stereotypes about how men and women should act.  Withholding benefits from students who fail to conform to such stereotypes violates Title IX
Ouch. From the beginning, the policy has been justified on the basis of Harvard’s commitment to nondiscrimination; now it turns out that it is exactly the opposite. I always thought Harvard’s argument was hypocritical; I didn’t realize it was illegal. Three years ago I noted how odd it was “to hear the Harvard leadership brandishing a stereotype in the interest of promoting diversity and inclusivity”; I didn’t know it was unlawful too.

The ball is in Harvard’s court.



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