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Kronman's "Assault on American Excellence"

Anthony Kronman at Yale wrote a book a few years ago called Education's End(a pun), which had some resonance with Excellence Without a Soul. He has another book out about higher education, The Assault on American Excellence. It's pretty much guaranteed to make you angry in places, either because you think he misrepresents something you think important, or because you think he exposes some stupidity you can't believe is actually dignified at places like Yale. For me it does some of both, but I tried to swallow all that and write a dispassionate review when asked to. I entitled the review "Overlapping Magisteria" in homage to Steve Gould, and used it in part as an opportunity riff on a problem that doesn't get discussed much.

Let the snitching 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 Alex R.] 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?

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. The Crimson just wrote up the decision too.

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.

The College Freedom of Association Act

As reported in the Crimson last week, two Harvard alums, Ruben Gallego and Elise Stefanik, have been joined by 12 other members of congress in putting forward an amendment by that name to the Higher Education Act. The group includes seven Republicans and seven Democrats. The text is given below; a nicely formatted version is downloadable here or can be viewed on the web here along with other information about the bill.

I will have more to say about this bill at some point, but it looks like the drafters have done a good job not only lining up broad support but anticipating (in the "Rules of Construction") needed carve-outs of importance to religious institutions, for example.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3128 Introduced in House (IH)]

  1st Session
                                H. R. 3128

    To amend the Higher Education Act of 1965 to uphold freedom of 
            association protections, and for other purposes.



                              June 5, 2019

Mr. Gallego (for himself, Ms. Stefanik, Mr. Stivers, Mrs. Murphy, Mrs. 
   Brooks of Indiana, Mr. Gottheimer, Mr. Shimkus, Mr. Cleaver, Mrs. 
Kirkpatrick, Ms. Kendra S. Horn of Oklahoma, Mrs. Lawrence, Ms. Fudge, 
  Mr. Byrne, and Mr. Hudson) introduced the following bill; which was 
            referred to the Committee on Education and Labor


                                 A BILL

    To amend the Higher Education Act of 1965 to uphold freedom of 
            association protections, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,


    This Act may be cited as the ``Collegiate Freedom of Association 


    (a) Findings.--Congress finds the following:
            (1) Single-sex social organizations, including sororities, 
        fraternities, and private social clubs, have existed at 
        institutions of higher education for over 200 years, where they 
        have played, and should continue to play, unique roles in the 
        development of young women and men by creating sisterhoods and 
        brotherhoods that foster leadership, promote academic 
        achievement, and encourage civic and campus involvement through 
        philanthropic activities.
            (2) The freedom of association--that is, the freedom of 
        joining, assembling, and residing with others--is protected 
        under the First and Fourteenth Amendments to the Constitution, 
        and allows individuals to create spaces that are safe, 
        welcoming, empowering, enabling, uninhibited, and free.
            (3) Single-sex social sororities, fraternities, and private 
        social clubs meet the requirements for intimate and expressive 
        associations protected by the freedom of association because 
        they are small and selective, are bound together by friendship, 
        common interests, and common purpose, and create safe and 
        empowering spaces for their members.
            (4) Some institutions of higher education, which stand in 
        positions of power and authority over their students, have 
        increasingly sought to eliminate or restrict access to single-
        sex social organizations, which are designed to nurture, lift, 
        and empower students.
            (5) While the history of equal access in higher education 
        includes discriminatory actions taken on the basis of race, 
        religion, national origin, and sex by students, faculty, staff, 
        and social organizations, many members of these same groups 
        have taken, and continue to take actions to make the higher 
        education community more open and inclusive to all.
            (6) While sex discrimination remains a serious problem in 
        our society, allowing institutions of higher education to 
        sanction members of sororities, fraternities, and private 
        social clubs based solely on the single-sex status of the 
        organization that the student belongs to will not solve these 
        problems, is counterproductive, and violates an individual's 
        constitutional right to freedom of association.
    (b) Purposes.--The purposes of this Act are as follows:
            (1) Protect any student in a single-sex social organization 
        or any single-sex social organization from any adverse action 
        by an institution of higher education based solely on the 
        membership practice of such organization of limiting membership 
        to only individuals of one sex.
            (2) Ensure any student in a single-sex social organization 
        or any single-sex social organization is treated equitably in 
        comparison to students at an institution of higher education 
        who do not participate in single-sex social organizations, or 
        other social organizations at an institution of higher 
        education that are not single-sex.
            (3) Protect the rights of students to freely associate with 
        and participate in social organizations, including single-sex 
        social organizations.


    Part B of title I of the Higher Education Act of 1965 (20 U.S.C. 
1011 et seq.) is amended by adding at the end the following:


    ``(a) Upholding Freedom of Association Protections.--Any student 
(or group of students) enrolled in an institution of higher education 
            ``(1) have a right to form or apply to join any social 
        organization, including any single-sex social organization; and
            ``(2) if selected for membership by any social 
        organization, have a right to join such social organization and 
        participate in such social organization.
    ``(b) Non-Retaliation Against Members of Single-Sex Social 
Organizations.--An institution of higher education that receives funds 
under this Act shall not--
            ``(1) take any action to require or coerce a student or 
        social organization to waive the rights of the student or 
        organization, respectively, under this section;
            ``(2) take any adverse action against a student who is a 
        member of a single-sex social organization, or a single-sex 
        social organization, based solely on the membership practice of 
        such organization of limiting membership to only individuals of 
        one sex; or
            ``(3) impose a recruitment restriction (including a 
        recruitment restriction relating to the schedule for membership 
        recruitment) on a single-sex social organization recognized by 
        the institution, which is not imposed upon other student 
        organizations by the institution, unless the organization and 
        the institution have entered into a mutually agreed-upon 
        written agreement that allows the institution to impose such 
    ``(c) Rules of Construction.--Nothing in this section shall--
            ``(1) require an institution of higher education to 
        officially recognize, or enter into a mutually agreed-upon 
        written agreement with, a social organization (such as a social 
        organization whose purpose is incompatible with the religious 
        or cultural mission of the institution of higher education);
            ``(2) prohibit an institution of higher education from 
        taking an adverse action, which is not based solely on the 
        membership practice of a social organization of limiting 
        membership to only individuals of one sex, against a student 
        who joins such social organization or such social 
                    ``(A) whose purpose is incompatible with the 
                religious or cultural mission of the institution of 
                higher education; or
                    ``(B) for another reason (such as academic or 
                nonacademic misconduct);
            ``(3) subject to subsection (b)(3), prevent a social 
        organization from regulating its own membership;
            ``(4) inhibit the ability of the faculty of an institution 
        of higher education to express an opinion (either individually 
        or collectively) on a single-sex social organization, or 
        otherwise inhibit the academic freedom of such faculty to 
        research, write, or publish material on such an organization; 
            ``(5) create enforceable rights against a social 
        organization or against an institution of higher education due 
        to the decision of such social organization to deny membership 
        to an individual student.
    ``(d) Definitions.--In this section:
            ``(1) Adverse action.--The term `adverse action' includes 
        the following with respect to a single-sex social organization 
        or a member of such organization:
                    ``(A) Expulsion, suspension, probation, censure, 
                condemnation, reprimand, or any other disciplinary, 
                coercive, or sanction taken by an institution of higher 
                education or administrative unit of such institution.
                    ``(B) An oral or written warning with respect to an 
                action described in subparagraph (A) made by an 
                official of an institution of higher education acting 
                in the official capacity of the official.
                    ``(C) An action to deny participation in any 
                education program or activity, including the 
                withholding of any rights, privileges, or 
                    ``(D) An action to withhold, in whole or in part, 
                any financial assistance (including scholarships and on 
                campus employment), or denying the opportunity to apply 
                for financial assistance, a scholarship, a graduate 
                fellowship, or on-campus employment.
                    ``(E) An action to deny or restrict access to on-
                campus housing.
                    ``(F) An action to deny any certification, 
                endorsement, or letter of recommendation that may be 
                required by a student's current or future employer, a 
                government agency, a licensing board, an institution of 
                higher education, a scholarship program, or a graduate 
                fellowship to which the student seeks to apply.
                    ``(G) An action to deny participation in any sports 
                team, club, or other student organization, including a 
                denial of any leadership position in any sports team, 
                club, or other student organization.
                    ``(H) An action to withdraw official recognition by 
                an institution of higher education.
                    ``(I) An action to require any student to certify 
                that such student is not a member of a single-sex 
                social organization or to disclose the student's 
                membership in a single-sex social organization.
                    ``(J) An action by an institution of higher 
                education to interject its own criteria into the 
                membership practices of the organization in any manner 
                that conflicts with the rights of such organization 
                under title IX of the Education Amendments of 1972 (20 
                U.S.C. 1681 et seq.) or this section.
                    ``(K) An action to impose any operational policy or 
                restriction that is in violation of this section.
            ``(2) Single-sex social organization.--The term `single-sex 
        social organization' means--
                    ``(A) a social fraternity or sorority that is an 
                organization described in section 501(c) of the 
                Internal Revenue Code of 1986 which is exempt from 
                taxation under section 501(a) of such Code, the active 
                membership of which consists primarily of students in 
                attendance at an institution of higher education;
                    ``(B) the Young Men's Christian Association, Young 
                Women's Christian Association, Girl Scouts, Boy Scouts, 
                Camp Fire Girls, and voluntary youth service 
                organizations which are so exempt, the membership of 
                which has traditionally been limited to persons of one 
                sex and principally to persons of less than nineteen 
                years of age; or
                    ``(C) a single-sex private social club (including 
                an independent organization located off-campus) that 
                consists primarily of students or alumni of an 
                institution of higher education.''.


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