How Former Harvard College Dean Harry Lewis Predicted the University’s Social Club Sanctions Decision
By James S. Bikales
Photo By Derek G. Xiao
In a surprise move on June 29, Harvard College dropped its sanctions against single-gender social groups, anticipating the policy would be nullified by a recent Supreme Court decision.
The policy, first applied to the Class of 2021, barred members of unrecognized single-gender social groups from holding certain fellowships and leadership positions on campus.
Harvard administrators believed the Supreme Court ruling in Bostock v. Clayton County earlier in June — that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against BGLTQ workers — would imperil the sanctions in court.
The sanctions were a signature policy of Harvard College Dean Rakesh Khurana’s tenure. After Harvard rescinded them, The Crimson spoke with one longtime opponent of the policy — one of Khurana’s predecessors as Dean of the College, emeritus Computer Science professor Harry R. Lewis.
Lewis no longer has an official role in University governance, but he correctly predicted the Bostock decision would imperil the social group sanctions in a post on his blog June 16. We asked him how he foresaw the end of the policy and what he anticipates the College will do next.
This interview has been edited for brevity and clarity.
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The Harvard Crimson: I want to start with the previous blog post that you wrote. Could you describe your thought process in how you sort of anticipated this? I didn’t see really any other writing or press on how the Bostock decision might apply here.
Harry R. Lewis: I read the decision in the federal case, the decision on the motion to dismiss in which Harvard lost, which President Bacow refers to in his letter. This is the [U.S. District] Judge [Nathaniel M.] Gorton decision. And I was quite struck by the line of reasoning. My position from the beginning on this is that the policy was simply wrong, that it was improper for the University to try to control students’ behavior off campus to that extent.
I just never really imagined that it could be unlawful. And so I was surprised when the lawsuit was first filed and those charges of sex discrimination were made. I thought that was a surprise.
But then as I read Judge Gorton’s decision and looked at the examples that he used, I could see exactly why it made logical sense. And so when the Supreme Court affirmed the employment rights of gay and lesbian people on the basis that the “but for” test fails in the case of the plaintiffs in that case — what I call “but for” test is you just change the gender of one person, the complainant, is the thing they’re doing now okay, when it was considered not okay by the company that was employing them. It just occurred to me that this is exactly the same fact pattern as was at issue in the clubs case.
I mean, in one case you had the fellow who was fired after joining a gay softball team, doing nothing else — merely joining an organization that excluded people who weren’t male and gay. And in the other case you have Harvard students being sanctioned for doing nothing else, no other sin against society, except joining a club that you have to be male to join. So it just seemed like it was exactly parallel.
THC: Once you saw that parallel, did you think that Harvard would make this sudden of a move to lift the sanctions?
HRL: I saw the Supreme Court decision and, as you see, I blogged that this was gonna make it very hard, but Harvard’s stubborn and they might have decided that they were willing to fight for this and lose and try to win on appeal or something like that. But when once the Supreme Court ruling came out, it seemed like even the hope of winning on appeal was going to be so small that it wasn’t worth the trouble.
So I’m not really surprised at this outcome in some sense, but what is interesting to me, though, and this is the thing I was going to blog about, but I’ll put this in your ear, is that Harvard has done anything except acknowledge that they were wrong. They’ve acknowledged that they have a legal judgment that’s compelling and not in their favor, but they pretty much said, but this was the right thing to do all along, regardless of the fact that there’s some … almost technical violation in the opinion of a couple of justices.
THC: Now that we’ve gone through all these years of back and forth and then this decision yesterday, what do you think the legacy of this policy is going to be?
HRL: They clearly haven’t given up on the idea that they want to croak the final clubs and the sororities and whatever other single-gender organizations there are. It seems to me that they’ve gone right out and said, we continue to hate these organizations and we wish they would all go away or become gender integrated, which seems to me to leave open the possibility that they could find another basis other than gender, which is a protected category under Title VII, on the basis of which to attack the clubs, and a way that would be immune to legal challenge.
They could, for example, come back and say the problem with these organizations was that they were socially exclusive, which of course is very consistent with other things that they’ve said about them. So, you could say that there will be a blacklist of organizations that do not get scholarships essentially. Student organizations that charge money and don’t waive those fees for students who are unable to pay so that they have equal access to students regardless of income. That’s a position they could take. And I mean, again, what do I know, I’m not a lawyer, but it seems to me, rich people’s clubs are not a protected category.
I’m not surprised, but I’m nonetheless disappointed that they couldn’t have gone a little bit more towards acknowledging the real problem with this policy, which was the very idea of telling people which clubs Harvard students should and should not join was misguided from the beginning.
THC: So you’d certainly be opposed to any further action?
HRL: Yes. The basis that wound up being the winning argument — this “but for” rule about gender — was the furthest thing from my mind at any of the points along the way. My argument was on the basis of the unequal impact on the women’s clubs and therefore, women were going to be hurt more than men. I argued it on the basis that the right of association was fundamental and we should be teaching students to respect it, not to use it for social engineering. I gave any number of arguments. I never gave the argument that wound up being the crucial argument about why this policy was unlawful. Quite the opposite — I always assumed that the policy was lawful, just unwise.
—Staff writer James S. Bikales can be reached at james.bikales@thecrimson.com. Follow him on Twitter at @jamepdx.
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