Fight for Your Right to Party

An Analysis of the Harvard College Single-Gender Social Organizations Litigation

To the Reader of the New-England Courant—

I apologize for my absence in these past weeks. I hope that you have been able to get on without my musings. As recompense, please see my latest legal analysis of the ordeal surrounding Harvard’s attempt to punish members of single-gender social organizations. It’s a long one, but I hope you will read it to gain a better sense of how the Supreme Court’s ruling in Bostock v. Clayton County will have widespread implications far beyond the workplace. For those of you not interested in the social lives of drunken Harvard students, feel free to skip to Section IV.B, where I allow myself to editorialize on the unintended, and largely unnoticed, consequences that Bostock will have in the future. Some may be optimistic, some less so. I am keen to hear your thoughts. To those of you who wish to discuss these matters further, do not hesitate in reaching out to,

Your Humble Servant,

Silence Dogood

~

I.               Introduction

We are living in an increasingly gender-neutral society.[1][2] From egalitarian movements to expand the representation of women within the highest echelons of American business, government, and academia[3] to the full integration of combat roles in the United States military,[4] a person’s sex plays an increasingly smaller role in determining her career opportunities and social station. Broadly speaking, the noble vision of the Civil Rights and Women’s Movements to establish “the equality and full humanity of women and men” becomes truer each day.[5]

            As such, institutions founded in a bygone era have undergone significant reforms to respect the equal citizenship and dignity of women in present-day America. For instance, Augusta National Golf Club—the exclusive Georgia country club that hosts the annual Masters Tournament—broke its eighty-year policy of offering membership only to men in 2012, finally opening its clubhouse and greens to women.[6] Los Angeles’s tony Jonathan Club, a mainstay of elite California society, has allowed women to be full members since 1987.[7]

            Such calls for egalitarian integration also swept across the ivy-covered campuses of America’s most august universities. In 1969, both Princeton University and Yale University allowed women to enroll as undergraduates and gain full access to all educational opportunities schools had to offer.[8] Though it took several years from the day that women arrived on campus, the exclusive social clubs open to undergraduates at these schools also rescinded their male-only membership policies to welcome women into their ranks. By 1991, all of Princeton’s Eating Clubs[9] and Yale’s Secret Societies[10]—including the famed Skull & Bones[11]—voluntarily elected to accept female members.

            The story of women at Harvard University, however, has been different. While Harvard merged with its all-female sister school, Radcliffe College, in 1977,[12] the mahogany doors of its own exclusive social clubs—the Final Clubs—widely remain locked to female undergraduates.

            This is not to say, however, that Harvard has not attempted to force the Final Clubs to accept women. Most recently, in 2016, Harvard announced a dramatic new policy—colloquially dubbed the “Sanctions”—that would prohibit any member of a single-gender social organization, like the Final Clubs, from “holding athletic team captaincies and leadership positions in all recognized student groups . . . [and from receiving College endorsement for top fellowships like the Rhodes and Marshall scholarships.”[13] Such penalties applied to men and women alike. This intervention into the social lives of its students in the name of gender equality represented the culmination of Harvard’s “long and complex history of grappling with gender discrimination.”[14] In an age of increased emphasis on diversity, equity, and inclusion,[15] Harvard’s punishing of students who chose to join single-gender social organizations represented a stalwart effort to rid the campus of exclusive clubs that “have lagged behind in ways that are untenable in the 21st century.”[16]

            The Sanctions, however, failed. Despite the university’s best efforts to curb the influence and lure of the allegedly “offensive, crude, and sexist” Final Clubs,[17] the Sanctions were lifted in the summer of 2020 after Harvard realized that it was no longer “able to carry forward with the existing policy under the prevailing interpretation of federal law.”[18] Perhaps surprisingly, the developments in federal law that spurred Harvard to drop the Sanctions did not come from a case dealing with an individual’s right to free association or protections for private institutions from tortious interference. Of all places, the saving grace for Harvard’s elite, all-male Final Clubs emanated from a case that expanded the rights of homosexual and transgender Americans to be free from discrimination in the workplace—Bostock v. Clayton County.[19]

            Popularly heralded as a triumph for gay and transgender rights, Bostock is widely recognized as the case that established that “LGBTQ employees cannot, under [Title VII of the Civil Rights Act of 1964], be fired simply because of their sexuality or gender identity.”[20] This description of the holding, while not incorrect, is a woefully inadequate characterization of the sheer impact Bostock had on the doctrine of antidiscrimination and civil-rights law. To reach its egalitarian conclusion, the Bostock Court had to adopt two theories of sex discrimination that had yet to be endorsed by the Supreme Court—the “comparative” test for determining per se discrimination and the “associational” theory of discrimination[21]—widely expanding the types of actions that could constitute illegal discrimination.

            At this point, it may seem rather counterintuitive that a case providing expanded protections against sex discrimination bears any support for all-male social clubs at Harvard College to continue their policies of discrimination against women in their membership. The spirit of Bostock seemingly shared the Sanctions’ goal of reifying the gender-neutral society, not undermining it. As one legal commentator noted, “[A] social organization that refuses to accept someone on the basis of sex is itself committing sex discrimination,”[22] further complicating how Bostock could help these discriminatory organizations. But in the federal lawsuit that a group of students affected by the Sanctions filed against Harvard,[23] the plaintiffs cleverly framed their injuries as instances of sex discrimination and carefully crafted their claims within the logic of the very doctrinal developments that Bostock ultimately accepted.

            Drawing on a then-little-known case out of the Second Circuit called Zarda v. Altitude Express, Inc., the plaintiffs argued that Harvard’s punishment of students who join single-gender social organizations constituted per se discrimination on the basis of sex because a student’s sex is a “but-for” cause for punishment.[24] In other words, “[b]ut for the fact that he is a man, a man could freely join an all-male organization [without being punished]. . . . Changing the sex of the student who joins a single-sex organization changes the student’s treatment under Harvard’s policy.”[25] The plaintiffs also drew upon Zarda’s endorsement of an “associational” theory of sex discrimination—or that sex discrimination could be established by showing that a party took an adverse action against the complainant because of his “association with a person of another” sex.[26] Applying this rule to their own case, the single-gender social organization members suing Harvard argued that the Sanctions represented associational discrimination because they punished a student based on the sex of the clubmates with which he or she chooses to associate.[27]

            While the popular media initially framed this legal challenge as “really a stretch” in an attempt to “attract public attention and sympathy,”[28] the Bostock Court ultimately accepted the legal reasoning of Zarda—and, by extension that of the aggrieved students suing Harvard. Acknowledging the strength of the plaintiff’s antidiscrimination claim in light of Bostock, Harvard dropped the Sanctions.[29]

            Although the Harvard administration seemed confident that the Bostock ruling was dispositive against its defense of the Sanctions, some members of the faculty were less sure. As Jeannie Suk Gersen of Harvard Law School told The Harvard Crimson, “I don’t see how Harvard’s policy on single-sex organizations, whatever its merits, is analogous to treating a man who marries a man worse than a woman who marries a man.”[30] Obviously, there is a wide gulf of moral and practical differences between a bigoted employer discriminating against his employee for being in a same-sex relationship and a university telling a group of twenty-one year old guys in matching summer ties that they can no longer exclude women from having from equal access to their multimillion-dollar clubhouse. But Professor Suk Gerson fails to appreciate the crucial doctrinal link that makes these two cases legally indistinguishable—that in both instances a person is being punished specifically because he or she is not a member of the other sex. As Bostock found that firing a man for marrying a man constitutes sex discrimination because such a punishment would not be placed on a similarly situated woman, so too is sanctioning a man for being in a club with only men when no punishment would ensue if he were instead a woman associating with those same men in a co-ed organization. Despite the vastly different situations of the victims of such discrimination, both actions amount to sex discrimination, nonetheless.

            When viewed in the context of Bostock’s legal reasoning and doctrinal developments, Harvard’s decision to rescind the Sanctions in the wake of this ruling was not only a reasonable choice, but a telling indication of the wide-reaching implications of the Bostock ruling beyond merely providing legal protection for homosexual and transgender people in the workplace—regardless of whether such consequences were intended or not.

II.               Harvard’s Sanctions on Single-Gender Social Organizations

The Final Clubs stand at the center of Harvard College’s social scene. While these historically all-male social clubs were originally viewed as mere relics of old society, they rose to central prominence on campus in the late 1980s, as the rise in the legal drinking age to twenty-one created a void for underaged undergraduates to party.[31] As the social scene moved away from the purview of the Harvard administration and into the dimly lit, wood-paneled basements of the Clubs’ Mt. Auburn mansions, Harvard began to grow increasingly concerned with the power that the exclusive all-male institutions wielded on campus. Additionally, the administration blamed the Final Clubs for contributing to the rising incidents of sexual assault on campus.[32]

Over thirty years after the Final Clubs officially severed ties with the University for refusing to admit women, the Harvard administration issued a new ultimatum to the Clubs in the Spring of 2016—accept women or face the consequences. These consequences came in the form of sanctions on members of all single-gender social organizations. Beginning with the Class of 2021, any member of either an all-male or all-female Final Club, fraternity, or sorority would be ineligible for athletic captaincies, extracurricular club leadership, or University endorsement for post-graduate fellowships.[33] And while the rationale for the Sanctions continually shifted from combatting sexual assault,[34] to ending gender discrimination,[35] to addressing exclusivity in the abstract,[36] the administration remained undeterred in their quest to, once and for all, root out the stronghold of the Final Clubs on campus—no matter the collateral consequences.

a.    The Harvard College Social Scene Prior to the Sanctions

Harvard is hardly a party school. As one undergraduate commented, “Harvard is lackluster and the parties aren’t as fun as the ones at the state schools their friends attend.”[37] Such is to be expected in an environment ripe with type-A overachievers who spent the majority of their time in high school in the library rather than in a friend’s basement drinking whatever cheap liquor they could swipe from their parents’ stash. According to The Harvard Crimson’s annual lifestyle survey of rising freshmen, 52.9% of incoming members of the Class of 2024 did not drink alcohol, 60.2% had never had sex, and only 14% had a fake ID.[38] Evidently, most students at Harvard have other things on their mind besides the raucous bacchanal of sex, drugs, and rock n’ roll stereotypically associated with a college campus.[39]

            This is not to say, however, that Harvard Square is a dearth of social activity on any given Saturday night for those who seek it out. While the College itself may fail to provide adequate social spaces for its students,[40] several private social clubs—officially unaffiliated with the University yet comprised entirely of Harvard undergraduates—fill this void. And no independent social organizations at Harvard are more prestigious, and more notorious, than the Final Clubs.

            The Final Clubs have a storied history at Harvard, existing long before their parties were famously portrayed in David Fincher’s 2010 dramatization of the founding of Facebook at Harvard, The Social Network.[41] All of Harvard’s eight historically all-male clubs—the A.D., the Delphic, the Fly, the Fox, the Owl, the Phoenix S.K., the Porcellian, and the Spee—were founded before the turn of the twentieth century.[42]

            In essence, Final Clubs are not dissimilar from the fraternities that populate college campuses nationwide. In fact, many of the clubs actually once were fraternities affiliated with a national organization. For example, both the A.D. Club and the Fly Club were founded in 1836 after the dissolution of Harvard’s Alpha Delta Phi fraternity.[43] In addition to their shared ancestry with fraternal organizations, Final Clubs essentially serve the same functions as fraternities on campus—they host meals for members, date events and mixers with sororities from schools across the greater Boston area, and parties in the clubhouse on any given weekend evening. Basically, “it’s like any other frat party . . . except for the tuxedos and the middle-aged bouncer and the rooms that feel disturbingly fancy for the college students dancing in them.”[44] And, like a fraternity, their membership is of course only open to men.

            Yet perhaps unlike that of any given fraternity, membership in a Harvard Final Club is rather exclusive. For example, southern universities like Florida A & M University boast over 60% fraternity membership among its students.[45] In contrast, only “[b]etween 10 and 20 percent of male students . . . are initiated into a club” at Harvard.[46] Entrance into a storied Final Club party is usually limited to male members and their female guests from Harvard or neighboring schools like Lesley University, Wellesley College, and Boston University.[47] According to one Harvard undergraduate quoted in The Atlantic’s exposé on the clubs, “freshman guys are never let in, and older non-member guys are very rarely let in.”[48] Additionally, because of their relatively high initiation fees and dues, Final Club membership has been criticized as  “embody[ing] the confluence of exclusion, wealth, and whiteness,”  creating an additional dimension of pomposity.[49]

            Even though the all-male Final Clubs may be the social centers of campus, they were not the only unaffiliated social organizations at Harvard prior to the Sanctions. Though certainly less established than their all-male counterparts, female-only Final Clubs do exist at Harvard. In 1991, “a group of undergraduate women formed an all-female social club they called the Bee.”[50] Since then, the Bee Club has grown to become the most desirable female Final Club at Harvard. After the advent of the Bee, several other female Final Clubs formed, including La Vie Club, the I.C., the Pleiades Society, and the Sablière Society.[51] If they have a space at all, the women’s clubs must rent their property, often from all-male Final Clubs: The I.C. rents out the former steward’s quarters of the Owl Club and, prior to the Sanctions, the Bee Club rented a property owned by the Fly Club. [52] As such, there remains increased reliance among women’s groups on their more-established male counterparts, compounding the financial differences between them.

            Harvard undergrads may also join one of the several fraternities and sororities open to students at the College. While these organizations may not command the same prestige as do the Final Clubs, they similarly offer students the opportunity to experience membership in a single-gender social organization. Prior to the Sanctions, Harvard had chapters of the nationally chartered Alpha Epsilon Pi, Kappa Sigma, Delta Kappa Epsilon, Sigma Alpha Epsilon, and Sigma Chi fraternities.[53] Women could bid to join the Alpha Phi, Delta Gamma, and Kappa Alpha Theta, and Kappa Kappa Gamma sororities.[54] None of these organizations had any official affiliation with the University and were instead governed by national Greek organizations, as well as the North-American Interfraternity Conference and National Panhellenic Conference.[55]

            Evidently, despite Harvard’s shortcomings in proving adequate social programming for its undergraduates, there was no shortage of unaffiliated student groups to provide parties. Without sufficient school-sponsored spaces, Harvard students retreated from the gated walls of Harvard Yard into the tony Georgian clubhouses that speckle Mt. Auburn Street—and outside the direct purview of the University.

b.    The (Shifting) Rationales for the Sanctions

While the Final Clubs currently remain independent from the University, this has not always been the case. In fact, prior to 1984, the Final Clubs had official ties with the University and were able to use school-sponsored services, “including University steam heat . . . telephone service, alumni mailing lists, and sophomore housing lists” to identify new punches.[56] However, in the early 1980s, then-Dean of Harvard College Archie Epps became disenchanted with the presence of the Clubs on campus. As Epps saw it, “Harvard had been co-educational for more than a decade,” leading the administration to be “increasingly worried about a social scene dominated by all-male groups.”[57] As such, Epps and the administration “gave the final clubs an ultimatum: Admit women, or lose the privileges that come with official recognition.”[58] All of the nine all-male Final Clubs that existed at the time declined to admit women, and subsequently severed ties with the University and lost access to the University services that came with official relations.[59]

            At the time, some members of the Harvard community felt that this change of policy represented a diminution of the influence that the Clubs would have on campus. According to Dr. Warren E.C. Wacker, then-director of Harvard’s University Health Services and member of the 1984 Committee on College Life that oversaw the disaffiliation of the Clubs, “times have changed, and [the Clubs] are really a very small minority [of students]. This won't have the impact it would have had in 1918.”[60] This sentiment—that Final Clubs were losing their influence—seemed to be pervasive throughout the campus in the mid-twentieth century. In an exceptionally critical 1958 Crimson Article on the Clubs, one undergraduate lambasted them as nothing more than “Little Bastions of Society In a University World that No Longer Cares [sic].”[61] The Author went on to claim that the Clubs’ “effect on the college as a whole is practically nil” as their “snobbishness, their secrecy, their uncreativity, [and] their preoccupation with an isolated social world all tend to dissuade most undergraduates from any[] wish to join.”[62]

            However, while the Final Clubs may have had only a limited presence on campus at the time that they disaffiliated in 1984, much has changed over the past four decades. Perhaps most consequential was the increase in the legal age to purchase alcohol from eighteen to twenty-one. In 1984, Congress passed the National Minimum Drinking Age Act, which punished states who refused to raise their drinking age by withholding federal highway funding.[63] Soon after, Massachusetts followed suit in prohibiting those under twenty-one from purchasing alcoholic beverages.[64] At Harvard, this led to a drastic shift in the campus’s social scene. No longer was alcohol readily available at University-sponsored parties within the undergraduate residential houses, as “House Masters were now being forced to comply with the long-standing regulations banning alcohol at House or campus-wide events.”[65]

            It is difficult to overstate just how much the change in the drinking age shifted Harvard’s social scene from the dorms and common rooms of the undergraduate houses to the wood-paneled basements of the Final Clubs. At Harvard, not unlike any college across the country, “[a]lcohol is an integral part of many students’ social lives on campus.”[66] And because this fixture of college life was illegal for the majority of students to purchase or keep in their dorms, the Final Clubs once again rose as the center of the Harvard social scene.

            The Final Clubs, now independent from the College’s oversight and monopolists in the market for underaged drinking, were equipped to host the bacchanal bashes of any young man’s dreams. However, as the cheap alcohol flowed, so did the controversy. Leading up to the years before the most recent Sanctions, Final Clubs drew heavy criticism for apparent sexism,[67] violence at parties,[68] and allowing binge drinking among minors.[69] Unfortunately, yet as to be expected, when young people and alcohol mix, problems are bound to ensue. The relevant psychological literature demonstrates that binge drinking on college campuses is associated with increases in “regretted sexual situations,”[70] violent altercations,[71] and even sexual assaults.[72] And by 2014, this last consequence—the apparent spike in campus sexual assaults—most got the attention of the Harvard administration.

            Under President Drew Gilpin Faust, the first female president of Harvard University, combatting sexual assault on campus became a preeminent issue for the administration. In 2014, President Faust convened a task force to “develop recommendations about how Harvard can improve efforts to prevent sexual misconduct and develop insight into these issues based on input from both within and beyond our community.”[73] At the center of this task force’s work was the distribution of a campus-wide survey aimed at assessing the proportion of the Harvard undergraduates who experienced some form of sexual assault while students at the College. The definition of sexual assault given by the survey was capacious, encompassing “three forms of nonconsensual behavior: sexual touching, attempted penetration, and completed penetration.”[74]

            The results of the survey were published in the Fall of 2015. Of the female respondents to the survey, 53.2 percent answered that they had experienced some form of sexual assault, with 13 percent indicating that they had experienced unwanted sexual penetration.[75] The survey also asked respondents for the location of the incidents. Most incidents, a whopping 75 percent, occurred within Harvard-owned dormitories.[76] In a distant second place, 15 percent were said to have occurred at “single-sex organizations that are not fraternities or sororities,” meaning Final Clubs.[77]

            Still, despite the fact that an overwhelming majority of sexual assaults occurred within the walls of Harvard’s own property, the administration took these data as a mandate to confront the Clubs once again. According to the administration, the all-male Final Clubs were “emblematic of sexual entitlement” and “troubling areas of potential alcohol abuse and sexual assault” as “[their] very structure . . . [of] men in positions of power engaging with women on unequal and too often on very sexual terms,” posed an intolerable risk factor for sexual assault.[78]

            Shortly after the release of the survey’s results, the Harvard administration announced their response to the apparent sexual-assault crisis burgeoning at the Final Clubs—the Sanctions. In the Spring of 2016, the University announced that beginning with the Class of 2021, “undergraduate members of unrecognized single-gender social organizations will be banned from holding athletic team captaincies and leadership positions in all recognized student groups,” as well as deemed ineligible for postgraduate fellowships such as the Rhodes Scholarship.[79] Despite the initial goal of the Sanctions to address the supposed connection between all-male Final Club membership and sexual assault on campus, the Sanctions applied not only to members of the all-male Clubs, but also to those in all-female Final Clubs, sororities, and fraternities.

            To escape the Sanctions, Final Clubs and other unrecognized single-gender social organizations, would need to apply for formal recognition from the College. This process called for a fundamental shift in the policies and practices of the organizations, mandating that the groups desist from discriminating on the basis of sex, provide financial aid for members, provide College administrators with data on the gender makeup of the club, surrender governance of the organization from a graduate board of directors,[80] and undergo annual sexual assault response training.[81] In exchange for such drastic concessions, newly-recognizing social organizations would be able to obtain some funding from the College and access to on-campus spaces for social events[82]—incentives far more appealing to the financially insecure all-female organizations than the property-owning all-male Final Clubs.

            Even before the initial unveiling of the Sanctions in the Spring of 2016, two of the historically all-male Clubs had already decided to end their single-gender membership policy and invite women into their ranks due to pressure from the College. The Spee Club became the first to go co-ed in September 2015 by inviting female undergraduates to partake in the punch process.[83] Six weeks later, the undergraduate members of the Fox Club penned a letter to their graduate board to notify them that “[a] group of junior and senior women have accepted an offer of membership and, in their capacity as members, will be advising [the Fox Club’s] transition to a fully co-ed club over the next year.”[84] However, unlike the Spee Club, which remains co-ed to this day, the Fox Club only briefly flirted with a gender-neutral membership policy. In July 2017, notably after Harvard had decided to sanction single-gender social clubs, the graduate board overturned the undergraduate membership’s decision and formally revoked the “provisional” membership of the women accepted in the previous year.[85]

            Other all-male Final Clubs explored merger options with female Clubs to avoid the Sanctions. For example, the Delphic Club entered into an agreement with the Bee Club to “share membership and [the Delphic’s] clubhouse.”[86] The all-female I.C. attempted to pursue a similar agreement with the Owl Club, but this merger was ultimately rejected by the latter.[87] Without a male club to merge with, the I.C., as well as every other female Final Club and sorority on campus, decided to “admit people of all genders and . . . applied for recognition from Harvard” by the Fall of 2018.[88] However, not every single-gender social organization on campus was willing to give up so easily. Unlike the all-female organizations, the remaining male Final Clubs had the significant advantages of real estate, endowments, committed alumni involvement, and social capital on campus to help them weather the storm and prepare to fight the Sanctions—and take the offensive they did.

            The first blow to the College’s credibility in justifying the Sanctions came before they were even officially unveiled, when the Porcellian Club commissioned an independent consulting firm to review the methodology of the sexual-assault survey that inspired the administration’s drastic actions.[89] This review was damning. The Author of the study lambasted the initial survey’s definition of “participation” in Final Clubs as “too nebulous to be meaningful,” as it included both those who were members of Clubs and those who only attended events there.[90] Under the survey’s methodology, “a woman who received an unwanted kiss in her dorm room while a freshman would be counted as [a participant in a single-gender organization] if she later joined an all-female Final Club in her sophomore year,” thus inflating the reported instances of sexual assault among “participants in the Clubs.”[91] Additionally, the Author criticized the survey for failing to show causality between the Final Clubs and sexual assaults, failing to report that indices of sexual assault among other Harvard student organizations are “not statistically distinct” from that of the Clubs, and using “overly broad language” in the framing of questions to create a bias against the Clubs.[92]

            With its supposed rationale for the Sanctions apparently discredited, the Harvard administration quickly shifted its justification from combatting sexual assault to broadly addressing gender discrimination on campus. In a 2016 Crimson op-ed, Drew G. Faust, President of Harvard University, framed the Sanctions as “another step in the long and historic movement to ensure that opportunities central to Harvard undergraduate life are not limited by accident of birth, but open to every student.”[93] The stated rationale for the Sanctions was now not to punish the all-male Clubs for contributing to campus sexual assault—no evidence of such a relationship existed—but merely to ensure that “all undergraduates . . . ha[d] the experience of full citizenship” at Harvard.[94]

            However, the Sanctions as they were written seemed like an odd way to address either issue. Recall that the Sanctions did not simply punish those who were members in the loathed all-male organizations, but those who were in any “single-gender social organization[].”[95] If the original motivation of the Sanctions was, in fact, to address sexual assault, then letting men roam freely in the on-campus refuges of women appears to be counterproductive. Even assuming the administration’s new, perhaps arbitrary and capricious, justification of improving the college experience of female undergraduates, forcing all social organizations to go co-ed does not readily appear to serve this goal. Though the male Final Clubs may have had some advantages over their female counterparts,[96] female undergraduates largely supported the availability of all-women spaces on campus.  In the wake of the announcement of the Sanctions, “[m]embers of Harvard’s unrecognized sororities and female final clubs” took to social media to argue for the importance of the all-female groups and express “outrage” that the Sanctions “broadly penalize[d] all unrecognized single gender social groups, making no distinction between all-male and all-female organizations.”[97]

            This outrage culminated on May 10, 2016, when over 200 female Harvard undergraduates and alumnae marched on Harvard Yard to protest how female-focused organizations would be decimated by the Sanctions.[98] Brandishing signs reading “#HearHerHarvard,” “Don’t Make Women Collateral Damage,” and “Value Women’s Spaces & Voices,”[99] these women made it clear that Harvard’s paternalist intervention in their name would not be well received.

            And if the goal of the Sanctions was truly to improve the college experience of its female undergraduates, Harvard failed at this miserably. Though in the following year, sorority recruitment numbers reached a record high,[100] by 2018 these figures plummeted by over fifty percent, as the Sanctions would apply to the new members of the Class of 2021.[101] The relatively lower value proposition offered by the all-female organizations, who did not own property or host daily meals, did not outweigh the costs of being sanctioned for most students. With dwindling membership numbers and little institutional support, these female-focused organizations had no choice but to accept men. By the Fall of 2018, no female-only Clubs or sororities existed at Harvard.[102] In a cruel irony, yet one that was hardly surprising given the law of unintended consequences,[103] Harvard’s attempt to open opportunities for female students annihilated all-women’s organizations while most of the male Final Clubs—the actual desired target of the Sanctions–continued to operate unscathed because they had the resources and the draw to do so.

            The initial justification for the Sanctions—addressing the supposed relationship between Final Club activity and sexual assault—was discredited by basic statistical analysis. Their second rationale—ending gender discrimination—only worked to harm the female constituency Harvard was trying to serve. Still, the administration could not be phased in its crusade against the Clubs. The erasure of all-female social organizations from the Harvard campus, in the administration’s view, was a small price to pay to continue the Sanctions against the all-male Final Clubs.[104]

            Instead of reconsidering the Sanctions in the wake of this debacle, Harvard doubled down and shifted its justification for the Sanctions from combatting gender exclusivity to combatting exclusivity in general.[105] When Harvard unveiled the official application forms for recognition, Clubs hoping to escape sanction needed to not just affirm that they would not discriminate based on gender, but also upon a plethora of characteristics, including “race, color, religion, creed, sex, sexual orientation, gender identity, national origin, ancestry, age, veteran status, disability, genetic information, military status, or any other protected status.”[106]

            Again, like the administration’s initial claim that Final Clubs were hunting grounds for sexual assault,[107] this novel justification appeared to be based more on innuendo and assumption than data. While there is a perception that Final Clubs members are overwhelmingly white and wealthy,[108] this claim is not easily supported by the evidence. According to an informal survey conducted by The Harvard Crimson, “Black and African-American respondents . . . disproportionately reported being current members of a final club.”[109] Additionally, “[f]orty-four percent of self-identified final club members reported that they receive financial aid from the College,” undermining the assertion that members of Final Clubs are monolithically wealthy.[110] While Asian—and particularly, South Asian—students are underrepresented in the Clubs as compared to their proportion of the undergraduate population, “people of color . . . are hard to miss” within the ranks of the Final Clubs, according to one Crimson staff writer.[111] Furthermore, it is a bit ironic that Harvard University, a school with a staggeringly low undergraduate-admissions rate of 3.43%,[112] took up proverbial arms in a war against “exclusivity.”

            Despite this apparent hypocrisy, Harvard continued to support the Sanctions under the guise of inclusivity beginning in the Fall of 2018. At this time, the Harvard undergraduate social scene looked significantly different than it did only a few years prior. As Noah D. Dasanaike, an editorial commentator for The Harvard Crimson, put it at the time, “[n]o longer may sororities serve as safe spaces for the women within; no longer may a diversity of thought differing from the Cambridge norm prosper; no longer may bonds of camaraderie and friendship develop without the interfering hands of those fearful of personal freedoms.”[113]

            All the female-only social organizations that existed before the Sanctions were no more—the Bee Club merged with the Delphic,[114] the I.C., Sablière Society, Pleiades Society, and La Vie Club all announced they would be accepting men, and the sororities disaffiliated from their nationally chartered organization to form new co-ed clubs.[115] Among the fraternities, only Alpha Epsilon Pi and Kappa Sigma decided to admit women, disaffiliating from their national parent organizations and forming new co-ed clubs called the Aleph and the KS, respectively.[116] As for the Final Clubs, the Spee was the only one to fully integrate (and stay integrated),[117] while the Delphic undertook its merger with the Bee.[118] Every other Final Club—the A.D., the Fly, the Fox, the Owl, the Phoenix S.K., and the Porcellian—was practically unaffected by the Sanctions.

III.            The Final Clubs Strike Back: The Single-Gender Social Organizations Lobbying & Litigation

Even as many once-single-gender social organizations caved to Harvard’s demands to go co-ed, a majority of the Final Clubs remained steadfast in their decision to retain a male-only membership. Infuriated by Harvard’s encroachment on their sovereignty, the Final Clubs and other single-gender social groups at Harvard were not going to accept the Sanctions’ authoritarian demands without a fight. Facing an existential to their existence and governance, the Clubs pursued two options to push back against the Sanctions—first, lobbying, and ultimately, litigation.

A.    From Mt. Auburn Street to Capitol Hill: The Cambridge Coalition’s Lobbying Campaign

Soon after the Sanctions were officially unveiled in the Spring of 2018, several Final Club alumni began flexing their influence in order to induce federal policy to protect single-gender social clubs. The Cambridge Coalition, a consortium of Final Club alumni from the all-male A.D., Fly, and Porcellian Clubs, spent $40,000 to retain D.C. law firm Arnold & Porter to spearhead a lobbying effort on their behalf on Capitol Hill.[119] The Fraternal Government Relations Coalition, a partnership of the national Greek-life organizations North American Interfraternity Conference, National Panhellenic Conference, and Fraternity & Sorority Political Action Committee, also hired Arnold & Porter to lobby for the interests of Harvard’s fraternities and sororities—for a fee of $50,000.

            These lobbying efforts principally focused on one member of Congress—Representative Elise Stefanik. While she later rose to national prominence as a staunch defender of President Trump during his first impeachment hearing and later attempt to question the results of the 2020 Presidential Election, [120] the young two-term Republican congresswoman was relatively unknown and hardly in the Party leadership in 2018. Still, Elise Stefanik was a Harvard graduate with a long track record of supporting free-speech issues on college campuses.[121]

            With a sympathetic congresswoman leading the charge on Capitol Hill, the Cambridge Coalition leadership homed in on the PROSPER Act as their legislative silver bullet to ending Harvard’s Sanctions. Under this law, which would reauthorize the Higher Education Act of 1965, private universities that received federal funding—like Harvard—would be barred from taking “any adverse action against a student’s membership in [a] recognized organization . . . based on the organization’s single-sex status or its criteria for defining its single-sex status.”[122] In its proposed language, however, the PROSPER Act would be little help to the Final Clubs. The Act protected only single-sex student organizations that were recognized by a university. And under its policies, Harvard would never recognize single-sex groups, as gender-neutral membership was the key criterion of university affiliation.[123] If it were 1984, and the Final Clubs were still recognized, the PROSPER Act would have been sufficient to enjoin Harvard from punishing the Clubs on the basis of their single-gender status. However, the unrecognized status of the Clubs and Harvard’s unwillingness to compromise on gender equity placed the Clubs in textbook Kobayashi Maru—a no-win scenario.[124] As such, the Cambridge Coalition was tasked with not only lobbying for the passing of the bill, but also its amendment to also include unrecognized social organizations.

            By the end of 2018, it became clear that lobbying for legislation alone would be insufficient for tackling the Sanctions. In response to the Cambridge Coalition’s actions, Harvard also flexed its own influence on Capitol Hill to protect its decision to punish members of single-gender social organizations. Faust hoped to frame any legislation targeting Harvard as an illegitimate infringement on Harvard’s autonomy to regulate its own affairs.[125] As part of Harvard’s lobbying efforts, Faust wrote a letter to Representative Stefanik in May of 2018, calling any legislative attempt to overrule Harvard’s Sanctions “an effort by Congress to regulate student life and the shape and character of private institutions in a way that threatens to undermine that diversity of choice and experience.”[126]

            Despite the deep pockets of the Cambridge Coalition, Harvard ultimately prevailed in the legislative lobbying battle. By 2019, the Republican-backed PROSPER Act gave way to the new Democrat-written College Affordability Act—with the left-wing party winning back the House in the Midterm Elections—as the new vehicle for reauthorization of the Higher Education Act.[127] While this new bill did include similar language to the PROSPER Act in protecting recognized single-gender social institutions,[128] the changes that the Cambridge Coalition hoped to make through their lobbying efforts were never reified.  According to several education policy scholars, such lobbying efforts were doomed to fail from the start, as the debates around the law were primarily focused on “spending issues and . . . aid programs”[129]— and not what a twenty-year-old Harvard student could or could not do on a Saturday night.

            As such, the Cambridge Coalition and the national fraternity and sorority organizations were left with but one choice to take the Sanctions down–litigation. On December 3, 2018, two lawsuits were filed against Harvard.[130] One of these lawsuits was brought in federal court by members of sororities Kappa Alpha Theta (Theta) and Kappa Kappa Gamma, members of fraternities Sigma Chi and Sigma Alpha Epsilon, members of three unnamed male-only Final Clubs.[131] The other was filed in Massachusetts state court by members of the sororities Alpha Phi and Delta Gamma.[132] In both cases, the aggrieved social-organization members argued that Harvard’s Sanctions were a violation of their civil rights and, specifically, an instance of illegal gender discrimination under Title IX of the federal Higher Education Amendments of 1972 or the Massachusetts Civil Rights Act.[133]

            At first blush, it is rather counterintuitive that Harvard’s attempt to address gender inequality on campus could be viewed as further gender discrimination. After all, Harvard’s erstwhile rationale for the Sanctions was to “ensure that opportunities central to Harvard undergraduate life are not limited by accident of birth, but open to every student.”[134] However, in light of contemporaneous doctrinal developments in federal antidiscrimination law, such a claim was not as far-fetched as it may have seemed.

B.    The Civil-Rights Theory of the Single-Gender Social Organizations Litigation

The crux of Theta’s federal lawsuit against Harvard relied on the assertion that the Sanctions violated Title IX of the Education Amendments of 1972. This law commands that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”[135] Despite it being a “private university,” Harvard actually receives a significant amount of federal research funding—over $560 Million in 2019[136]—making it subject to Title IX. Certainly, the Sanction’s “denied” members of single-gender social organizations “the benefits of . . . education program[s] or activit[ies]”[137] as these students were no longer eligible to enjoy full participation on athletic teams as captains or receive official endorsements for postgraduate fellowships—opportunities that were available to other students.[138] Thus, the only question that remained was whether these students were being discriminated against “on the basis of sex”[139] for participating in these organizations (which, ironically, excluded membership on the basis of sex themselves).

In its federal lawsuit, Theta alleged four theories of gender discrimination brought on by the Sanctions: (1) Per se discrimination; (2) Associational discrimination; (3) Sex-stereotyping; and (4) Anti-male bias.[140] Substantiating these claims would be no easy task, with one legal commentator noting that applying antidiscrimination law to protect fraternities and sororities was “a novel way of twisting Title IX.”[141] In addition to the apparent unorthodoxy of their claims, the plaintiffs’ argument had to rely heavily on developments in antidiscrimination doctrine from appellate courts outside of the First Circuit—which we only persuasive authority—making their seemingly quixotic “fishing expedition” all the more difficult.[142]

Take, for instance, the plaintiffs’ per se discrimination claim. Per se discrimination is established if a plaintiff can show “treatment of a person in a manner which but for that person’s sex would be different.”[143] In elucidating this doctrine, the First Circuit has held that the relevant threshold question is “whether the defendant intentionally discriminated against the plaintiff on the basis of a protected attribute,” such as gender.[144] Under this test alone, it appears that the Sanctions would not qualify as per se discrimination. As Harvard argued, its policy of punishing members of single-gender social organizations “treat[ed] male and female students exactly the same.”[145] Even though the Sanctions were initially inspired by hostility towards the all-male Final Clubs, they ultimately were applied uniformly against all members of single-gender groups.

      Thus, the plaintiffs had to get creative and look beyond the First Circuit for caselaw to support their claim. Theta’s per se discrimination case relied heavily on two then-little known, but nonetheless groundbreaking, developments in antidiscrimination doctrine—Zarda v. Altitude Express Inc. and Hively v. Ivy Tech Community College.

In Hively, the Seventh Circuit explained that per se discrimination could be established even when a given policy applied equally to both sexes.[146] In this case, the court had to consider whether the firing of a lesbian woman constituted sex discrimination under Title VII. To evaluate this question, the court posed a hypothetical: “[H]ad [Hively] been a man married to a woman and everything else had stayed the same” would she have been fired?”[147] The Seventh Circuit concluded that she would not have been fired under this circumstance, yielding that her sexual orientation was actually a function of her sex when viewed under this test.[148] In Zarda, the Second Circuit adopted the Hively inquiry for determining per se discrimination as well.[149]

Running with this novel approach to antidiscrimination law, Theta extended the Seventh Circuit’s reasoning to its own case. Applying the Hively test, Theta argued that the Sanctions were per se sex discrimination because “[b]ut for her sex, a woman could join a [fraternity]; but for his sex, a man could join a [sorority].”[150] Given that co-ed social organizations were not sanctioned by Harvard, plaintiffs argued, “it is per se sex discrimination for Harvard to instruct [students] only to join clubs that include members of the opposite sex.”[151]  Additionally, plaintiffs relied on Zarda to argue that that per se sex discrimination occurs regardless of whether the discriminating party “uses a double-edged sword that cuts both men and women,” challenging Harvard’s equal-application defense.[152]

Without Hively’s “comparative test” and Zarda’s criticism of equal application, Theta likely would have not been able to overcome the fact that the Sanctions applied equally to men and women alike. However, with this doctrinal development, the plaintiffs were able to at least offer a potentially viable claim–although it was not binding precedent on the First Circuit.

These cases were also crucial for Theta to establish its associational discrimination theory of gender discrimination under Title IX. Broadly, associational discrimination occurs when a party is discriminated against not because of his or her own manifestation of a protected characteristic, but because of his or her association with another person based on a protected characteristic. Such a theory has widely been applied to the context of racial discrimination, and explicitly to the context of Title VII by the Second Circuit in Holcomb v. Iona College.[153] However, at the time Theta filed its suit against Harvard, neither the First Circuit nor the Supreme Court had ever applied the associational theory of discrimination to gender.

As such, Theta once again turned to Zarda and Hively to support its claim of gender discrimination. In Hively, the Seventh Circuit extended Holcomb’s protection against associational discrimination on the basis of race to gender discrimination. Under its offered analogy, the Hively court supposed that if it “were to change the sex of one partner in a lesbian relationship”—to form a straight couple—“the outcome would be different,” as that person would not face discrimination due to the sex of her partner.[154] Thus, the Seventh Circuit found that discrimination based on sexual orientation “rests on distinctions drawn according to sex.”[155] The Zarda court reached a similar conclusion, applying the associational theory to hold that “the prohibition on associational discrimination applies with equal force to all the classes protected by Title VII, including sex.[156] The Second Circuit also affirmed that equal application of a discriminatory policy was no defense against such claims, calling the practice “unthinkable” and explicitly extending such protections “to association based on sex.”[157]

The Zarda and Hively reasoning became the centerpiece of Theta’s associational discrimination claim against Harvard. Under the logic of these cases, Theta argued that “Harvard’s Sanctions Policy punishes students because they associate with individuals of a particular sex. . . . But for the sex of those with whom a student chooses to associate, that student would not be punished.”[158] Plainly, students who sought to join co-ed clubs were not sanctioned, while those who participated in single-gender clubs were sanctioned. While cogent under Zarda and Hively, this application of the associational theory of discrimination was foreign to the First Circuit, again leading Harvard to counter that such a claim was “legally unsupported” under controlling precedent.[159]

Unlike the previous two claims, Theta’s claims for discrimination on the basis of sex-stereotyping and anti-male bias did not rely on Hively and Zarda, but rather appealed to longstanding, and binding, Supreme Court precedent. Under Price Waterhouse v. Hopkins, “stereotyped remarks can certainly be evidence that gender played a part” in discrimination but are not dispositive, as the defendant may rebut such a claim in showing “that it would have made the same decision in the absence of the unlawful motive.”[160] Here, plaintiffs claimed that “Harvard expressed the view that men who join all-male organizations are prone to sexual violence and promote and engage in bigotry . . . [and that it] expressed the view that women who join all-female organizations do so only as a way of coping with exclusion from all-male organizations.”[161]

Similarly, Theta relied on the binding precedent of University of Texas Southwest Medical Center v. Nassar, which held that “[i]t suffices . . .  to show that the motive to discriminate was one of the [discriminating party’s] motives, even if the employer also had other, lawful motives that were causative,” to make its anti-male bias claim.[162] To this end, plaintiffs pointed to the fact that even though Harvard’s eventual rationale for the Sanctions was to address exclusivity as such, and that the Sanctions were ultimately applied uniformly across all single-gender groups, “[a] considerable public record supports the inference that Harvard enacted its Sanctions Policy specifically to eliminate men’s organizations out of bias against men.”[163] Thus, while Harvard’s hope to “marginalize the . . . social power” of the Final Clubs may not have been the only reason offered for the Sanctions, Theta argued that this in itself was sufficient to establish a gender discrimination claim under Nassar.[164]

Despite Harvard’s best efforts to argue distinguish the facts of this case from precedent,[165] point to the non-binding nature of plaintiff’s authorities,[166] and defend the Sanctions on the grounds of equal application,[167] its motion to dismiss the four Title IX claims was ultimately denied.[168] While there was little precedent from the First Circuit applying plaintiffs theories of gender discrimination, the court found that Theta had alleged sufficient facts to establish all four of its federal gender-discrimination claims, and even directly noted that “the decisions in Zarda and Hively [were] particularly instructive” in establishing the per se and associational discrimination claims.[169]

Of course, this small victory was not the end of the litigation. Though these federal claims survived Harvard’s motion to dismiss, this only meant that plaintiffs sufficiently presented “a plausible claim for relief”—and did not necessarily mean that the court would ultimately rule for them.[170] In several ways, the plaintiffs here still faced a potentially uphill battle in continuing the litigation. For one thing, while the district court appeared sympathetic to the reasoning of Zarda and Hively, the facts of these cases still differed significantly from that of the Final Club litigation. The courts in Zarda and Hively employed their novel comparative analysis to hold that the immutable characteristic of sexual orientation[171] fell within Title VII’s definition of “sex” discrimination. Theta, instead, employed this logic not to create a new category of sex discrimination, but to argue that the Sanctions were sex-based discrimination against college students who voluntarily chose to self-segregate into single-gender social organizations. As such, a reviewing court in the First Circuit would not only have to accept Zarda and Hively as correct on the merits, but further extend their holdings to this new context.

In addition to these factual concerns over Theta’s case, it was unclear to plaintiffs in August 2019, when the motion to dismiss was denied, whether Zarda and Hively would even remain good law. Only a few months prior in April 2019, the Supreme Court granted certiorari to the Second Circuit to review Zarda.[172] In a comparable case, Bostock v. Clayton County, the Eleventh Circuit rejected that Title VII protected against discrimination on the basis of sexual orientation, [173] thus creating a circuit split as to the validity of Zarda’s reasoning—the very reasoning on which Theta relied to establish its own sex-discrimination claims. While Theta may have offered a plausible theory of discrimination, the Supreme Court would ultimately have the last word as to its validity, only increasing the uncertainty surrounding the litigation.

And it was by no means certain that the Supreme Court would accept Zarda’s comparative or associational theories of sex discrimination. As Judge Livingston noted in her Zarda dissent, “it is not ‘even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination “because of sex” also banned discrimination because of sexual orientation.’”[174] At the time, it appeared likely that such an appeal to the statute’s original public meaning would be well received by the increasingly textualist Supreme Court—and especially by its recently minted conservative majority.[175]

Beyond textualist criticisms of the extension to Title VII protections to sexual orientation, the Zarda dissenters also presented cogent arguments to challenge the majority’s theory of associational discrimination. For instance, Judge Lynch highlighted the stark contrast between gender discrimination and the racial-discrimination context from which this doctrine arose, writing that here there was no possible “discriminatory animus”[176] against men, unlike that against the Black people with whom plaintiffs associated in Holcomb and Loving. He went on to write that “[t]here is no allegation in this case, nor could there plausibly be, that the defendant discriminated against Zarda because it had something against men, and therefore discriminated not only against men, but also against anyone, male or female, who associated with them.”[177] To Judge Lynch, the majority’s test did not precisely or faithfully analyze sex discrimination—and sex discrimination alone—because the defendants harbored no categorical bias against men, the group against whom they were allegedly discriminating.

Such reasoning was manifest throughout Harvard’s defense of the Sanctions. As Harvard argued, the Sanctions were not motived by or prejudiced against distaste for “against friendships or any other form of personal relationship between people of the same sex” as, under the Sanctions, “all students remain free to associate with as many women or men as they like.”[178] Without the novel logic of Zarda and its capacious comparative test, Theta could not likely establish that Harvard discriminated against members of single-gender social organizations on the basis of sex. Therefore, if the Supreme Court were ultimately to overturn this case, it seemed all but certain that Harvard would prevail in defending the Sanctions against Theta’s federal claims.

C.    The Massachusetts Civil Rights Act Claims in the Single-Gender Social Organizations Litigation

In addition to the four federal sex-discrimination claims, Theta, as well as Alpha Phi, brought state-law claims against Harvard under the Massachusetts Civil Rights Act (MCRA).[179] The MCRA creates a private cause of action for civil-rights violations, stating that “[a]ny person whose . . . rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, ha[ve] been interfered with . . . may institute and prosecute . . . a civil action for injunctive and other appropriate equitable relief.”[180] Here, Theta claimed that it was entitled to relief under the MCRA because Harvard had violated its members’ Fourteenth Amendment right to equal protection “by attempting to interfere and actually interfering with Plaintiffs’ constitutional right to be free from sex discrimination” through the Sanctions.[181] Similarly, Alpha Phi pleaded that it had a cause of action under the MCRA, for the Sanctions allegedly violated plaintiff’s “right to associate with other individuals in a private organization” and “right to be ‘free [from sex discrimination] and equal’” under the Massachusetts Constitution.[182]

To prove a claim under the MCRA, a plaintiff must not only show the interference of a positive right, but also that “such interference was by threats, intimidation, or coercion.”[183] State caselaw defines a “threat” as “the intentional exertion of pressure to make another fearful or apprehensive of injury or harm,” “intimidation” as “putting in fear for the purpose of compelling or deterring conduct,” and “coercion” as “the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done.” [184] In its complaint, Alpha Phi pointed to several seemingly threatening, intimidating, and coercive actions that the Harvard administration undertook over the rollout of the Sanctions, including “[c]oercing [single-gender social organizations] to go co-ed by punishing their undergraduate members . . . [t]hreatening to suspend or expel Harvard undergraduates who join these lawful organizations . . . [and] [i]ntimidating clubs by publicly and unfairly blaming them for a high reported incidence of sexual assault.”[185] Theta also alleged that Harvard undertook such illegal actions “by threatening substantial harm to Plaintiffs’ future professional opportunities and professional reputations by withholding valuable opportunities and sowing a culture of fear and intimidation in the Harvard University community.”[186]

In response, Harvard argued that its students’ voluntary decision to attend the College, and thus consent to its rules, undermines any assertion that the school’s action was “threatening, intimidating, or coercive.”[187] As the Sanctions applied “only prospectively to students who had not yet chosen to matriculate at the time the policy was enacted,” no student already enrolled at Harvard in 2018—when the Sanctions were announced—would actually be subject to them.[188] Instead, the prospective students who would be governed by the policy could freely weigh this cost as one of many factors in their decision of choosing where to attend college. Furthermore, not only were students freely allowed to attend another school, Harvard argued, but they also were free to choose whether to join a single-gender social organization and voluntarily accept the consequences of that decision.[189]

Though both plaintiffs brought similar claims under the MCRA, Alpha Phi prevailed in state court in surviving Harvard’s motion to dismiss while the federal district court rejected Theta’s MCRA claim.[190] In explaining its decision to uphold Alpha Phi’s MCRA claim past Harvard’s motion to dismiss, the state court held that the “complaint alleges that Harvard engaged in a course of conduct before, during, and after the implementation of the Policy that was meant to coerce undergraduate students to forgo membership in Alpha Phi . . . including by questioning the values of single-gender organizations and suggesting that [its] members may be subject to expulsion.”[191] As such, the court believed that Alpha Phi had stated a plausible claim that Harvard violated its members’ civil rights and discriminated against them based on sex through the Sanctions.

Contrastingly, Theta’s MCRA claim in federal court was dismissed. That court reasoned that because “[t]he only students subject to the Policy are those who were aware of the Policy before enrolling at Harvard and nevertheless chose to attend that school,” such a voluntary decision “negates any inference of threats, intimidation or coercion on the part of [Harvard].”[192] The district court cited no authority to support its claim that voluntarily entering into a contract immunizes the counterparty from being held liable for all civil-rights violations under the MCRA as a matter of law.

1.    Analyzing the Enforceability of the Sanctions as a Morality Clause

The dearth of caselaw supporting the federal court’s judgment here is rather unsurprising, as the lack of uniform doctrine surrounding this issue—morality clauses in contracts—is well-documented in the literature.[193] Morality clauses are “contractual terms that cite certain behavior of the contracting individual and serve as a basis for termination of the agreement” if such restricted behavior occurs.[194] At their core, the Sanctions as implemented are really are nothing more than a morality clause in the contract between Harvard and its students restricting certain behavior.   The Sanctions were codified in the Harvard College Handbook for Students,[195] a document which the College requires all students to “comply with.”[196] In enrolling at Harvard College, a student accepts the “rules and procedures” of the College, effectively creating a contract between the parties.[197] Thus, students at Harvard College must agree to abide by the school’s policy against joining single-gender social organizations, or face the enumerated Sanctions.

            While ubiquitous in the context of employment contracts in industries such as entertainment and sports,[198] courts across the country have yet to come to a consensus on how to analyze morality clauses. According to Patricia Sánchez Abril and Nicholas Greene, “there is no uniform rubric for assessing whether and to what extent morality clauses are enforceable, fairly imposed, and lawfully interpreted.”[199] Because of this, courts generally will not subject morality clauses to much scrutiny, holding them to be “valid and enforceable.”[200]

            Still, the two courts presiding over the single-gender social organizations litigation came to opposite conclusions regarding whether students’ voluntary assent to Harvard’s Sanctions protected the University from claims alleging civil-rights violations—the very goal of a morality clause.[201] While the Massachusetts state court did not explicitly hold that the Sanctions were unenforceable as a matter of law, it refused to simply bar plaintiff’s MCRA claim on the grounds of contractual assent as the federal district court did. As the court noted, “it is reasonable to infer from the allegations in the complaint that students received notice and the Policy took effect after some affected students decided to attend the college.”[202] Thus, the state court viewed such considerations regarding the voluntary nature of compliance with the Sanctions as “a fact-intensive inquiry that cannot be undertaken at the motion to dismiss stage,” preserving the claim for a potential trial.[203]

            All in all, the existing caselaw alone provides little guidance in determining which court correctly ruled on the plaintiffs’ similar MCRA claims. While it is true that both state and federal courts in Massachusetts have relied on voluntary contracts to dismiss allegations of civil-rights abuses,[204] this doctrine alone does not clarify whether morality clauses—like that enforcing the Sanctions—specifically would (and should) necessarily be upheld as valid and dispositive in such instances.

            While the relevant doctrine in Massachusetts thus far fails to offer an applicable test for analyzing the enforceability of morality clauses, the academic literature is teeming with proposals of sound doctrinal solutions. One such test, offered by Abril & Green in their Article, Contracting Correctness: A Rubric for Analyzing Morality Clauses, builds off existing doctrine used to analyze non-compete clauses, employment disputes, and protections for intellectual property to present a five-factor test for evaluating morality-clause validity.[205] These factors include: (1) The “nexus” between the prohibited behavior and the [university’s] legitimate business interest;[206] (2) the “degree” to which the contracting agent is associated with the business “in the minds of the public”;[207] (3) the “[s]cope and [d]efiniteness”[208] of the morality clause; (4) the damage caused by the restricted behavior;[209] and (5) the “burden” placed “on the restricted party.”[210] Like many factor tests present throughout American jurisprudence, Abril & Greene’s test for analyzing morality clauses suggests that “each factor [should be] assessed on a sliding scale,” allowing courts sufficient discretion in determining the weight of each factor.[211]

            Applying the facts of the Sanctions and the responsibilities of undergraduates to adhere to the policies of the Student Handbook due to their contractual relationship with Harvard, it seems likely that Harvard’s morality clause barring membership in single-gender social organizations would fail the Abril & Green test and be held to be unenforceable.

            First, it is plausible, though not certain, that there is a sufficient nexus between Harvard’s restrictions on social-organization membership and its mission as a university. Drawing upon government-employment doctrine, Abril & Green’s test considers three factors in evaluating the strength of this nexus: “(1) harm to [a university’s] reputation or product, (2) the ability of an offending [student] to perform assigned duties or to appear at [class], or (3) the refusal or reluctance of other [students] to work with the person charged with off-duty misconduct.”[212]

            To begin with, Harvard certainly could—and has tried to—make a case that the existence of single-gender social organizations sullies its reputation. After all, the (third) reason Harvard offered for the Sanctions was that the presence of Final Clubs on campus undermined all students’ abilities to fully access the “intellectual, social, and cultural resources that is Harvard.”[213] And certainly, the exclusive nature of Final Clubs generated much criticism in the mainstream media, chiding the Clubs as chauvinistic relics of a bygone era.[214] However, the elimination of female-only clubs appeared to damage Harvard’s reputation, muddying this consideration.[215] As to the second factor, it is less clear that membership in single-gender social organizations undermined a student’s ability to perform in the classroom or on the field and proving such a claim would be rather difficult for Harvard. Lastly, it is possible that Harvard could establish that other students harbored a “reluctance” to associate with members of single-gender social organizations—especially Final Clubs. According to a 2018 survey conducted by The Harvard Crimson, only 26% of graduating seniors held a favorable view of the Clubs, while 55% held an unfavorable view.[216] While little data exists on the favorability of sororities—or whether students’ unfavorability of the Final Clubs as institutions translates into an aversion to associating with their members—Harvard could use these data as evidence that membership in exclusive single-gender social organizations created divisions within the student body. Thus, it is possible that Harvard could establish a sufficient nexus between the Sanctions and its educational mission, although this claim is not especially strong.

            Second, Harvard should be able to establish that there is a sufficient degree of association between the University and its students who are members of single-gender social organizations. Applying comparable trademark doctrine, Abril & Green explain that this prong is evaluated by viewing “the degree that the agent is or can be associated with the [university] in the minds of the public.”[217] Although the Clubs are not officially affiliated with Harvard, all of their members are Harvard undergraduates. Therefore, if the public thinks about Final Clubs members at all,[218] it is reasonable to assume that there is an adequate connection between them and the university at which they are students.

            Third, it does not seem likely that a court would view the Sanctions policy as “sufficiently narrow and definite.”[219] While it is true that the Harvard Student Handbook clearly outlines the prohibited behavior of, and subsequent consequences for, joining a single-gender social organization “so as to allow a party to predict with reasonable certainty what conduct will trigger the clause,” definitive language alone is insufficient to establish validity under the Abril & Green test.[220] In addition to evaluating the clarity of the clause, “[c]ourts should analyze morality clauses that prohibit legal behavior with higher scrutiny than those that are triggered only by unlawful activity.”[221] Furthermore, Abril & Green note that heightened scrutiny should also be triggered by certain violations of the First Amendment as a matter of public policy.[222] Such violations should be especially suspect in analyzing the validity of Harvard’s Sanctions as a morality clause, given the MCRA’s protections for constitutional-rights violations by private entities. As such, Harvard’s restriction of its students’ ability to freely and lawfully associate in single-gender social organizations doubly triggers strict scrutiny under the Abril & Green test, suggesting that the scale in evaluating the enforceability of the clause “should slide ever closer towards unenforceability.”[223]

Fourth, it appears that Harvard may have difficulty in showing a significant negative impact from its students being members in single-gender social organizations. To assess the impact of restricted behavior, “fairly enforcing a morality clause should require a showing that the offending behavior (a) actually occurred, (b) is known or likely to be known, and (c) is likely to cause damage to the imposing party.”[224]

In practice, it may be difficult for Harvard to assess whether a student was actually in a sanctioned club. Harvard empowered the Administrative Board—the College’s main disciplinary and adjudicative body—to enforce the Sanctions. However, the College would not require students to sign any affirmative pledge stating their compliance with the new policy.[225] The College also would not  “solicit or act on ‘anonymous complaints’ to discover violators.”[226] On the one hand, this honor-system method of enforcement lends itself to fundamental fairness under the Abril & Green metrics, as its policy of not entertaining anonymous tips allowed Harvard to circumvent the “grave injustice [that] would ensue if the law allowed for the [punishment] of [a student] who was merely the victim of defamation.”[227] On the other hand, however, such toothless enforcement actually undermined Harvard’s ability to prove the “actual occurrence” of a student being a member of a sanctioned club. Furthermore, the relative secrecy of final club membership undermines the claim that such an affiliation would likely be known by the public—or by the University itself.[228]

Nor is it clear that Harvard could easily prove “that the offending behavior [of joining a sanctioned organization] caused harm or [] reputational harm” to the University. While it is certainly true that the ongoing presence of the “little bastions of society” that are the Final Clubs spurred several media articles chiding Harvard for perpetuating exclusivity,[229] it is equally true that the imposition of the Sanctions itself created a negative media firestorm criticizing the University’s heavy-handed intervention.[230] Additionally, Harvard’s initial justifications for the Sanctions as a means of combatting sexual assault and gender exclusivity have since been widely discredited.[231] Thus, Harvard’s only remaining argument for establishing reputational harm would be that the presence of single-gender social organizations negatively impacts the University by generally perpetuating “exclusivity”—an absurd proposition, given the fact that Harvard revels in its reputation as one of the most exclusive universities in the world.[232] As such, it seems unlikely that Harvard would be able to sufficiently establish that single-gender social organizations adversely impacted its reputation in justifying the validity of the Sanctions.

Fifth and finally, it seems that Harvard would have trouble justifying the burden the Sanctions impose on its students. To weigh the relative burdens, courts may consider both the parties’ relative bargaining power and the restriction’s impact on the “reputation and future opportunities of the restricted party.”[233] Regarding bargaining power, it appears that by making the Sanctions effective only on students who had not yet matriculated at the time, Harvard may bolster the claim that it did not wrongfully punish current students who had little voice in the matter.[234] Additionally, Harvard consulted several student leaders (both of Final Clubs and other non-social Harvard organizations) in crafting the ultimate policy, though it is unclear to what extent the administration considered such input.[235] Thus, Harvard would likely be able to make a sufficient showing that the process did not exploit the limited bargaining power of affected students.

However, the same cannot be said for the Sanction’s substantial curtailment of students’ potential opportunities and reputation. First, in its campaign of lambasting members of Final Clubs as lechers possessing “deeply misogynistic attitudes” and senses of “sexual entitlement,”[236] the Harvard Administration irreparably damaged the reputations of anyone associated with a Club without due process or personalized evidence. Second, the very project of the Sanctions was to limit the future opportunities of those students in single-gender social organizations. Membership in such a club permanently barred a student from undertaking leadership roles while an undergraduate and from receiving postgraduate-fellowship opportunities beyond Harvard—and any of the collateral benefits that may come with such accolades.[237] Therefore, the structure of the Sanctions allowed such punishment “to follow [a student] much longer than it would absent the clause,”[238] unjustifiably harming the reputation and opportunities of an affected student long beyond the gated grounds of Harvard Yard.

Altogether, it seems unlikely that a court would choose to enforce the morality clause punishing Harvard students from joining single-gender social organizations under the Abril & Green test. As Harvard’s restriction on a student’s membership in single-gender Clubs represents a prohibition on legal behavior, such a clause would trigger heightened scrutiny, making it all the more difficult for Harvard to prevail in arguing enforceability. The Sanctions’ longstanding effect past a student’s undergraduate career, lack of a clear relationship with protecting Harvard’s reputation, and encroachment upon legal activities together suggest that the factors of the Abril & Green balance against the validity of the morality clause. As such, a court evaluating Harvard’s restriction on membership in single-gender social organizations as a morality clause constituent to the contract between the University and its students under this framework would likely not view a student’s voluntary matriculation as a dispositive bar to an MCRA claim.

Of course, the test offered in Abril & Green’s Article is not currently binding doctrine in any jurisdiction. Still, the aforementioned analysis is useful for providing insight into the disparate outcomes regarding the MCRA claim in Theta and Alpha Phi. The more rigorous scrutiny of morality clauses, as proposed in the relevant academic literature, suggests that the state court in Alpha Phi more fairly evaluated Harvard’s morality clause against membership in single-gender social organizations by holding that voluntary assent to Harvard’s conditions of enrollment itself was not dispositive in shielding the University from liability under the MCRA for allegedly infringing upon students’ individual rights.

IV.            Bostock: An Unlikely Friend to the Final Clubs

Despite Harvard’s best efforts, many of the sorority-plaintiffs’ claims survived the motion-to-dismiss stage of the litigation—including Theta’s federal causes-of-action for gender discrimination under Title IX and Alpha Phi’s state-law claim for gender discrimination under the MCRA.[239] Still, by September 2019 and January 2020, when the Theta and Alpha Phi decisions were respectively released, it was unclear whether the plaintiffs would ultimately prevail in suing Harvard under their creative theories of liability—especially Theta’s associational theory of discrimination. While Zarda provided Theta with a plausible theory of liability to survive the motion to dismiss, such a claim was not yet binding on the First Circuit. Additionally, there was little certainty as to whether Zarda would even remain good law for the near future.

            Only a few weeks after the federal District of Massachusetts allowed Theta’s claim of associational discrimination to proceed, the Supreme Court of the United States heard oral arguments in the seminal case that would ultimately make such a theory the law of the land—Bostock v. Clayton County. Heard together with Zarda and another sex-discrimination case with similar facts, EEOC v. R.G.,[240] Bostock chiefly gave the Supreme Court the opportunity to decide whether “discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of . . . sex’” under Title VII.[241]

To the country at large, Bostock represented a landmark decision that granted LGBT Americans vast statutory protections from discrimination in employment through its chief holding that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”[242] But to the students suing Harvard for discriminating against them based on sex through the Sanctions, Bostock represented a resounding command from the country’s highest Court that their theories of the case were not a mere “fishing expedition,”[243] but the law of the land.

In the wake of Bostock, Harvard decided that its years-long crusade against single-gender social organizations could no longer stand. Only two weeks after the decision in Bostock was announced, Harvard dropped all Sanctions against these groups.[244] According to Harvard President Lawrence S. Bacow, the ruling of Bostock made it clear that Harvard would “be legally barred from further enforcing the policy,” as the district court in Theta “accepted the plaintiffs’ legal theory that the policy, although adopted to counteract discrimination based on sex, is itself an instance of discrimination based on sex.”[245] With Bostock now binding authority on the lower courts hearing Theta, Harvard had little choice but to abandon the Sanctions in light of the overwhelming likelihood that they would soon be found unlawful if the litigation continued. No rhetoric of diversity, equity, or inclusion could overcome the Court’s implication that Harvard was engaging in the very type of discrimination that it accused the Final Clubs of doing.

In this sense, the application of Bostock—a ruling championed by the far-left ACLU as “a huge victory for . . . equality”[246]—as a bar to Harvard’s policy of punishing organizations that discriminate based on sex represents a rather sardonic irony. While Bostock certainly expanded legal protections for certain marginalized groups, it also inadvertently made it more difficult for some institutions, like universities receiving public funding, from furthering their own missions of rooting out perceived instances of gender inequity. As such, the ultimate demise of the Sanctions at the hands of Bostock poses a cautionary tale for how capacious judicial commands in service of equality may actually undermine the reification of this goal in practice.

A.    Assessing the Single-Gender Social Organizations Litigation Under Bostock

The principal holdings of Bostock make it clear that Theta likely would have prevailed in its claims against Harvard for gender discrimination as a matter of law, had Harvard not dropped the Sanctions.

Perhaps most pertinent to Theta’s challenges against the Sanctions is that the Court wholly endorsed the comparative test underpinning Theta’s per se discrimination claim. Justice Gorsuch explained that the relevant test for reviewing such a claim commands that “a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.”[247] In analyzing what constitutes a “but-for” cause of sex discrimination, Justice Gorsuch broadly adopted Zarda’s analysis, writing that “[i]f the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”[248]

Such a framework directly bolsters Theta’s application of this doctrine to the facts of its own case. The Sanctions discriminated based on sex, as understood by the Bostock Court, because sex is necessarily a but-for cause of whether a student joining a certain organization would face punishment. The Sanctions only applied to single-gender organizations—co-ed groups would not be punished.[249] A man who wanted to join, say, the all-male A.D. Club would be sanctioned, while a woman who wanted to join that same club would not. Thus, “[b]ut for the fact that he is a man, a man could freely join an all-male organization.”[250] One concern with this reasoning by analogy is the fact that despite her honest desire to do so, a woman almost certainly could not join the A.D. Club, as it did not accept women.[251] Still, such consideration did not matter to the district court in Theta, as “[t]he 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.”[252] With their logic of showing per se discrimination adopted by the Court in Bostock, it appears all but certain that Theta would have prevailed on this claim had the case have needed to move to the summary-judgment phase of litigation.[253]

The Bostock opinion also solidified the doctrinal footing for Theta’s associational discrimination claim. In establishing a textualist basis for his argument that associational discrimination constitutes discrimination “on the basis of . . . sex” as outlawed by Title VII,[254] Justice Gorsuch put forth the following hypothetical:

The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy [to discriminate based on sexual orientation] works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.[255]

Harvard’s policy of punishing only members of single-gender social organizations is legally indistinguishable from that of the discriminating employer. Consider the hypothetical scenario of a male Harvard student walking into a Holyoke Street mansion for a Thursday night Club dinner. Upon arrival, he is greeted at the door by his best friend and co-club member, Hayden. Would that student be sanctioned? Like that of Justice Gorsuch’s hypothetical, “the answer to that question depends entirely on whether [Hayden] is a man or a woman.”[256] By punishing only students who chose to associate with members of their own sex, Harvard committed illegal sex-based discrimination—a rule that was clearly established by Bostock.

In addition to vindicating these theories of sex discrimination put forth by the Theta plaintiffs, Bostock also implicitly rejected Harvard’s chief defenses for the legality of the Sanctions. For instance, Harvard argued that “[s]ubjecting men and women to the same rule is precisely what makes a policy nondiscriminatory” in an effort to justify the Sanctions.[257] Bostock directly rejects such reasoning, holding that it is not “a defense for an employer to say it discriminates against both men and women because of sex.”[258] If anything, such discrimination against both genders “doubles” Harvard’s liability.[259]

Nor does it appear that Harvard’s argument that because its “policy provides students with a choice and attaches consequences only to joining other members of the same sex in a particular setting” would hold weight in overcoming the association discrimination claim, in light of Bostock.[260] As analogized from the employment context, an employer-defendant would be laughed out of court for arguing that his discriminatory policies only apply to the particular setting of the workplace and that such a policy is acceptable because an employee retains the choice of submitting to bigot policies or foregoing the opportunity of employment.[261] While this regime may be a libertarian’s fever dream,[262] the very purpose of Title VII—and by doctrinal extension, Title IX—is for the government to restrict by law the discriminatory discretion of employers and universities receiving public funding.[263] Furthermore, Bostock clarifies that a discriminatory policy does not escape judicial scrutiny when a party treats another “worse because of that individual’s sex [although] other factors may contribute to the decision.”[264] In the context of protections for homosexual employees, “male sex and attraction to men are but-for factors that can combine to get them fired.”[265] In Harvard’s case, the but-for causes of a student’s sex and his desire to join an all-male Final club combine to get them sanctioned. Even though two interacting factors are at play, “Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.”[266] Likewise, the discrimination on the basis of sex established through Theta’s per se or associational discrimination claims is a sufficient but-for cause to establish Harvard’s liability here—irrespective of any other factors that may have contributed to the decision.

As such, the holding and reasoning of Bostock present a widely viable doctrinal base on which Theta could veritably mount its sex-discrimination case against Harvard.[267] In choosing to drop the Sanctions in the wake of this case, Harvard apparently recognized that Theta had a very strong argument for proving sex discrimination under its pleaded theories. Though initially counterintuitive that Harvard would be forced to end its policy punishing gender-exclusive clubs due to a Supreme Court ruling thought to promote gender equality, such a decision appears to be wholly reasonable considering the theories of per se and associational discrimination accepted by the Bostock Court.

B.    The Ironies and Consequences of Bostock

Certainly, it came as a surprise to many not astutely familiar with the logic behind Theta’s antidiscrimination lawsuit against Harvard that a ruling providing protections in employment for homosexual and transgender people—perhaps some of the most marginalized people in American society—could simultaneously benefit a club of overprivileged men trying to keep women from joining their social ranks. Even to some law professors familiar with civil-rights doctine, Harvard’s decision to drop the Sanctions after Bostock was unexpected, given the widely different facts of the two cases.[268] Perhaps more awkward is the implication that Bostock placed Harvard—an institution that prides itself on being committed “to trac[ing] the roots of inequality and its pernicious effects and to equip[ping its] students with the understanding and insight needed to create a better world”[269]—on the same legal footing as the bigots that it claims to “stand as a bulwark against.”[270] In all of the fervor celebrating the Bostock decision,[271] it may have been lost on the American public to fully flesh out the greater consequences of this decision.

            First to comment on such consequences, of course, were the dissenters in the case itself. As Justice Kavanaugh chided, the majority’s ruling represented “a novel form of living literalism [employed] to rewrite ordinary meaning and remake American law”[272] in a manner contradictory to the Court’s constitutionally defined role to “interpret and follow the law as written.”[273] Justice Alito echoed this concern over Justice Gorsuch’s application of textualism, equating the majority’s opinion to “a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation . . . that courts should ‘update’ old statutes so that they better reflect the current values of society.”[274]

            This Essay is not the proper forum to adjudicate the relative merits of the majority and dissent’s textualism—a scholarly endeavor that has enamored the legal academy for the past several years.[275] Instead, the Bostock dissents are relevant here simply because they note a growing concern as to wider implications of Bostock’s strict construction of Title VII and creative reasoning to a range of political and legal decisions.

            Bostock, like any landmark Supreme Court ruling, means different things to different people. To gay- and trans-rights advocates, Bostock represents a “watershed moment” of the Supreme Court stepping in to protect marginalized Americans from discrimination.[276] For the reactionary right, Bostock is evidence of the conservative legal movement’s failure to bring about desired policy outcomes and, ironically, of how the Supreme Court has been tainted by ends-driven reasoning.[277] To proponents of religious liberty, Bostock presents a troubling lack of clarification as to the relationship between statutory protections against discrimination and constitutional protections for the free exercise of religion.[278] And to professors of statutory interpretation, Bostock provided a salient case study in the variants of textualism that will no doubt inspire countless law-review articles and classroom hypotheticals for years to come.[279]

            Yet beyond these possible policy implications, the very doctrinal landscape of civil-rights law—and potentially beyond it—changed greatly in the wake of Bostock. Whether Bostock is “correct” will always be a matter of debate. But it is wholly clear that the majority’s logic employed here has opened the door to litigation extending far beyond what the framers of the Civil Rights Act ever could have imagined. In effect, the creative legal reasoning of Bostock has inspired activists and issue lawyers across the country to co-opt the opinion’s broad language and apply it to a host of seemingly unrelated fact patterns. Across the academy and popular media,[280] Bostock has been floated as providing potential legal arguments for everything from overhauling the McDonnell Douglas framework for evaluating pretextual explanations in employment discrimination[281] to “using the Clean Air Act to regulate the greenhouse gas emissions that cause climate change.”[282]

            In addition to its use by Harvard’s Final Clubs and sororities to protect themselves from having to admit members of the opposite sex, Bostock may very well be employed to further instances of other private-discriminatory acts that fall outside of Title VII’s protection, while simultaneously restraining a covered institution from remedying such actions—as was the case with Harvard. For example, Bostock’s relevant test for analyzing per se discrimination may very well protect employees who commit discriminatory or bigoted acts on the job site from punishment from their employers, on the grounds that such retaliation would be religious discrimination. As Vivek Ramaswamy explains:

            [After Bostock, if a] company fires Y for saying Z and wouldn’t fire them if they      were religious and said the same thing means Y’s lack of religion is a but-for     cause of their firing, [this is per se discrimination] using Bostock’s method of           recognizing discrimination.

            In other words, because the Civil Rights Act of 1964 says [an employer]    can’t fire a Muslim employee for asserting that transgender women are actually     men because the Quran says so, it must also say that [the employer] can’t fire        [a non-religious person] for asserting the same thing.[283]

The potential for Bostock to be used to protect such speech in the workplace largely undermines the cases’ public perception as a clear triumph of “social justice.”[284] As both Ramaswamy’s hypothetical and the very real outcome of the litigation regarding Harvard’s Sanctions demonstrate, Bostock’s departure from the statute’s original public meaning[285] and adoption of novel definitions of illegal discrimination have opened the floodgates for its doctrine to be coopted to combat the supposedly egalitarian project that the case largely stands for. Despite the alleged flaws of its textualist analysis, Bostock undisputedly got at least one thing right—that “[t]hose who adopted the Civil Rights Act [could] not have anticipated their work would lead to this particular result” of a cohort of elite Harvard undergraduates employing civil-rights law to allow their bacchanalian bashes in the Georgian mansions of Mt. Auburn Street to continue unperturbed, protected from any consequences by the University.[286]

V.             Conclusion

            When analyzed in the context of Bostock’s adoption of the comparative test for per se discrimination and associational theory of sex discrimination, Harvard’s decision to no longer enforce the Sanctions after this ruling begins to make sense.  Such logic, however, may not rebut the palpable irony that Bostock provided the legal vessel for the Final Clubs to continue its discriminatory membership policy. The paradoxes raised by the relationship between Bostock and Theta are many: the use of antidiscrimination law to further discrimination, the appeal to government intervention into private actions to promote free association; the cooptation of a victory for some of society’s most oppressed members to assist some of its most privileged; and the application of a case thought to hasten the march towards the gender-neutral society to only impede its advent. All of these propositions coexist as truths in the murky doctrinal landscape unsettled by the unanswered questions of Bostock.

            But it also must be remembered that Bostock was not only a case about statutory protections for homosexual and transgender Americans, just as Theta was not only a case about whether “frat bros [] have a [] right to only ever hang out with the guys.”[287] On the contrary, both cases equally were about the logical limits of Title VII and what precisely we mean when we say that it is illegal to discriminate “on the basis of . . . sex.”[288] When Bostock is divorced from its mythic status as a “landmark moment in the on-going fight for LGBTQ equality,”[289] its rule perhaps becomes more agreeable to the novel contexts to which it will be applied and any uneasy ironies begin to dissipate. After all, textualism steadfastly sets out to “reject judicial speculation about . . . the desirability of the fair reading’s anticipated consequences.”[290] So too should it reject a canon of avoiding superficial thematic inconsistencies between the facts of the case that engenders a legal rule and that rule’s later application to new circumstances.

            We have yet to see what the lasting implications of Bostock will be in practice. Perhaps its unintended application of barring Harvard from punishing students who join single-gender social clubs will be a mere blip in Bostock’s ultimately legacy of egalitarianism.[291] Or, to the contrary, the Theta decision stands at the vanguard of an impending line of cases that faithfully apply Bostock to expand legal protections under Title VII and Title IX for just about any action that can be imagined. Only time will tell.

            While it remains unclear what the legacy of Bostock will be, it is relatively certain that Harvard’s Final Clubs will be able to press on without interference from the University. Theta represented a resounding victory for single-gender social clubs both at Harvard and across the country. As arguments concerning the logical extensions of Bostock will no doubt continue to echo through courtrooms for years to come, so too will revelrous cheers and booming music emanating from the backyards of Final Clubs echo off the red-brick buildings of Harvard Square and beyond. “Because of Bostock,”[292] the party goes on.

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[1] Robert Capodilupo, Yale Law School, J.D. expected Spring 2023; M.Phil., Magdalene College, University of Cambridge; A.B. magna cum laude in Government, Harvard College. In the spirit of full disclosure, the Author would like to acknowledge that as an undergraduate at Harvard, he was a member of the Owl Club, an all-male Final Club, and continues to be an active graduate member. This paper was submitted as a final paper for Professor Amy Chua’s “Advanced Contracts” class, Yale Law School, Fall 2021.

[2] See generally Harvey C. Mansfield, Manliness 1 (2006) (“Our society has adopted, quite without realizing the magnitude of the change, a practice of equality between the sexes that has never been known before in all human history.”).

[3] See e.g., Jennifer Hayes, Melissa Artabane & Brittany Martin, Gender Parity: Inspiring Women to Reach for the C-Suite, Bain & Co. (Mar. 4, 2020), https://www.bain.com/insights/gender-parity-inspiring-women-to-reach-for-the-c-suite/ (analyzing strategies for women to excel their careers in business); Rachel Epstein, EMILY’s List President Laphonza Butler Has Big Plans for the Organization, Marie Claire (Sept. 30, 2021), https://www.marieclaire.com/politics/a37771417/emilys-list-laphonza-butler-interview-2021/ (“I still believe that the mission of EMILY's List is very clear: That what we bring to the party is a continued focus on electing Democratic pro-choice women.”); Kat J. McAlpine, “Let Us Be the Architects of a New World”: Moms in Academia Speak Out to Address Workplace Inequalities, Brink (Mar. 9, 2021), https://www.bu.edu/articles/2021/addressing-workplace-inequalities/.

[4] See Eyder Peralta, Panetta is Lifting Ban on Women in Combat Roles, Nat’l Pub. Radio (Jan. 23, 2013, 3:17 PM), https://www.npr.org/sections/thetwo-way/2013/01/23/170093351/panetta-is-lifting-ban-on-women-in-combat-roles.

[5] See Kathleen McCartney, Happy 80th, Gloria Steinem, CNN (Mar. 25, 2014, 2:19 PM), https://www.cnn.com/2014/03/24/opinion/mcccartney-steinem-at-80/index.html; see also Rosemarie Fike, Adjusting for Gender Disparity in Economic Freedom and Why It Matters, in Economic Freedom of the World: 2017 Annual Report 210 (Cato Inst., 2017) (noting the high level of gender parity in American society).

[6] See Elisabeth Bumiller, Avid Golfer Rice Jumps a Barrier Again, NY Times (Aug. 20, 2012), https://www.nytimes.com/2012/08/21/sports/golf/condoleezza-rice-joins-augusta-national-golf-club.html. The club’s first female members were former U.S. Secretary of State Condoleezza Rice and businesswoman Darla Moore. Id.

[7] Kenneth Reich, Jonathan Club’s Members Vote 4 to 1 to Admit Women, LA Times (Apr. 30, 1987, 12:00 AM), https://www.latimes.com/archives/la-xpm-1987-04-30-mn-2840-story.html.

[8] See Brett Tomlinson, 50 Years Ago, Princeton Trustees Voted to Admit Women as Undergraduates, Princeton Alumni Wkly. (Jan. 11, 2019), https://paw.princeton.edu/article/50-years-ago-princeton-trustees-voted-admit-women-undergraduates; Ashley Fetters, The First of the ‘Yale Women,’ Atlantic (Sept. 22, 2019), https://www.theatlantic.com/education/archive/2019/09/first-undergraduate-women-yale/598216/.

[9] See Eliza Mott, Princeton’s Eating Clubs Have Benefitted from Going Coed, NY Times (Sept. 16, 2015, 3:30 AM), https://www.nytimes.com/roomfordebate/2015/09/16/should-college-fraternities-and-sororities-be-coed/princetons-eating-clubs-have-benefitted-from-going-coed; Evelyn Doskock & Alex Gjaja, How the Eating Clubs Went Coed, Daily Princetonian (July 13, 2020), https://projects.dailyprincetonian.com/how-the-eating-clubs-went-coed/.

[10] A Timeline of Women at Yale, Yale, https://celebratewomen.yale.edu/history/timeline-women-yale (last visited Jan. 4, 2021).

[11] See Dennis Hevesi, Shh! Yale’s Skull and Bones Admits Women, NY Times (Oct. 26, 1991), https://www.nytimes.com/1991/10/26/nyregion/shh-yale-s-skull-and-bones-admits-women.html.

[12] The timing of the consolidation between Harvard and Radcliffe is rather complicated. In 1946, Harvard began allowing the women of Radcliffe to attend coeducation classes on Harvard’s campus. See Katelyn X. Li, When Harvard Met Radcliffe, Harv. Crimson (May 27, 2019), https://www.thecrimson.com/article/2019/5/27/harvard-radcliffe-1969/. In 1977, “the two institutions achieved financial integration.” Id. For practical purposes, this date represents the de facto merging between Harvard and Radcliffe. However, it was not until 1999 that the merger between the two schools was officially formalized, with Radcliffe altering its mission from an undergraduate-instructional institution to the “Radcliffe Institute for Advanced Study, a center for research and graduate-level education.” Pamela Ferdin, Radcliffe to Merge with Harvard, Become a Center for Advanced Study, Wash. Post (Apr. 21, 1999), https://www.washingtonpost.com/archive/politics/1999/04/21/radcliffe-to-merge-with-harvard-become-a-center-for-advanced-study/67f6fe2e-b1e2-4b59-9d15-090799c0d572/.

[13] C. Ramsey Fahs, In Historic Move, Harvard to Penalize Final Clubs, Greek Organizations, Harv. Crimson (May 3, 2016, 3:01 AM), https://www.thecrimson.com/article/2016/5/6/college-sanctions-clubs-greeklife/.

[14] Id.

[15] See generally Ellen McGirt, Why a Commitment to Equity Should Be Everyone’s Resolution, Fortune (Jan. 4, 2022, 4:42 PM), https://fortune.com/2022/01/04/2022-new-year-resolution-equity-inclusion-diversity/ (“‘It’s the foundation of all the work we need to do.’ . . . Empathy, creativity, transformation, justice, all of it.”).

[16] Fahs, supra note 13.

[17] Theodore R. Delwiche & Noah J. Delwiche, Khurana Sharply Condemns Controversial Party Invitation, Harv. Crimson (Mar. 7, 2015), https://www.thecrimson.com/article/2015/3/7/khurana-responds-spee-controversy/.

[18] Valerie Strauss, Harvard rescinds policy against fraternities, sororities and other single-gender organization, Wash. Post (June 30, 2020), https://www.washingtonpost.com/education/2020/06/30/harvard-rescinds-policy-against-fraternities-sororities-other-single-gender-organizations/.

[19] See Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).

[20] Samantha Schmidt, Fired After Joining a Gay Softball League, Gerald Bostock Wins Landmark Supreme Court Case, Wash. Post (Jun. 15, 2020), https://www.washingtonpost.com/dc-md-va/2020/06/15/fired-after-joining-gay-softball-league-gerald-bostock-wins-landmark-supreme-court-case/.

[21] See Bostock, 140 S. Ct. at 1740-43; see also Zarda v. Altitude Express, Inc., 883 F.3d 100, 119 (2d Cir. 2018) (explaining the comparative test for per se discrimination). As the Zarda court noted, and the Bostock Court adopted, the comparative test for per se discrimination in the context of Title VII asks “whether the employee would have been treated differently ‘but for’ his or her sex. In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women.” Id. Associational discrimination is established when “an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.” Id. at 109.

[22] Olivia Goldhill, No, There’s No Constitutional Right to Fraternity Life, Quartz (Dec. 11, 2018), https://qz.com/1488484/why-harvard-students-lawsuit-over-single-sex-social-clubs-wont-win/.

[23] See Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019); see also See Douglas Belkin, Harvard Faces Lawsuits Over Sanctions on Single-Sex Clubs, Wall St. J. (Dec. 3, 2018 4:40 pm), https://www.wsj.com/articles/harvard-faces-lawsuits-over-sanctions-on-single-sex-clubs-1543873206 (“The federal suit claims the university is in violation of federal gender-equity rules under the law known as Title IX.”).

[24] 883 F.3d 100 (2d Cir. 2018). In Zarda, the Second Circuit devised a novel “but-for” test for analyzing discrimination cases, explain that “[t]o determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently ‘but for’ his or her sex. In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women.” Id. at 119.

[25] Plaintiffs’ Opposition to Motion to Dismiss at 16, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG).

[26] Zarda, 883 F.3d at 124 (quoting Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008)).

[27] See Plaintiffs’ Opposition to Motion to Dismiss at 18, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG).

[28] Id.

[29] See Strauss, supra note 18.

[30] Sydnie M. Cobb, Harvard Law Professors Split on Legal Reasoning Behind Dropping Social Group Sanctions, Harv. Crimson (July 2, 2020), https://www.thecrimson.com/article/2020/7/2/sanctions-ending-legal-experts-split/.

[31] See Kenneth Auchincloss, The Final Clubs: Little Bastions of Society in a University World that No Longer Cares, Harv. Crimson (Nov. 22, 1958), https://www.thecrimson.com/article/1958/11/22/the-final-clubs-little-bastions-of/.

[32] See, e.g., Laura Krantz, Sex assault prevention report highlights Harvard ‘final clubs’, Boston Globe (Mar. 8, 2016, 2:05 PM), https://www.bostonglobe.com/metro/2016/03/08/sex-assault-prevention-report-highlights-harvard-final-clubs/KSELbVQeEax90SohLJOwEN/story.html.

[33] Fahs, supra note 13.

[34] See Krantz, supra note 32.

[35] See Graham W. Bishai, With Sanctions Goal, Admins Shift for Sexual Assault Prevention, Harv. Crimson (Mar. 27, 2017), https://www.thecrimson.com/article/2017/3/27/sanctions-sexual-assault-debate/.

[36] See Sarah Maslin Nir, Are Final Clubs Too Exclusive For Harvard?, N.Y. Times (Aug. 2, 2016), https://www.nytimes.com/2016/08/07/education/edlife/are-final-clubs-too-exclusive-for-harvard.html.

[37] Ruben E. Reyes, Jr., Harvard Parties Aren’t That Bad, Harv. Crimson (Aug. 8, 2018), https://www.thecrimson.com/column/pop-cultural/article/2018/8/8/reyes-harvard-parties/.

[38] Steve S. Li, Meet the Class of 2024, Harv. Crimson (Sept. 2, 2020), https://features.thecrimson.com/2020/freshman-survey/.

[39] See generally Animal House (Universal Pictures 1978) (providing a portrayal of the stereotypical American college experience). It is perhaps ironic that though this depiction of campus life does not reflect Harvard’s social scene, one of the writers of Animal House, Doug Kenney, is a Harvard graduate and was a member of the Spee Club during his time at the College.

[40] See, e.g., Graham W. Bishai, Women’s Groups Plan [Blank] Party to Fill Gap in Social Scene, Harv. Crimson (Sept. 19, 2016, 9:20 AM), https://www.thecrimson.com/article/2016/9/19/blank-party-second-year/; see also Katie A. Farineau, Problems at Home: Take the Pulse in the Houses, Harv. Crimson, https://www.thecrimson.com/article/2019/4/8/farineau-problems-at-home/ (“Our House believed in hosting activities such as financially sponsoring pastry decorating contests, in screening Finding Nemo, and in doing Disney Karaoke with tutors’ kids in the main common rooms on weekends. I might sound like a jerk for saying this, but no thanks.”).

[41] The Social Network (Columbia Pictures 2010) (“[Final clubs are] exclusive. And fun and lead to a better life.”).

[42] See James K. McAuley, The Men’s Final Clubs, Harv. Crimson (Oct. 6, 2010, 2:09 AM), https://www.thecrimson.com/flyby/article/2010/10/5/series-men-final-clubs/.

[43] See id. The respective names of the two clubs were likely derived from the original “Alpha Delta Phi” name (as “Alpha Delta” was shorted to “A.D.” and “Fly” was rather circuitously derived from the ph in “Alpha,” the l in “Delta” and the i in “Phi” to form the new name). See Douglass Shand-Tucci, Harvard University: An Architectural Tour 101 (2001).

[44] Elyse D. Pham, A Diversified Debauchery, Harv. Crimson (Apr. 8, 2021), https://www.thecrimson.com/article/2021/4/8/final-club-diversity/.

[45] See Most Students in Fraternities, U.S. News & World Rep. (2021), https://www.usnews.com/best-colleges/rankings/most-frats.

[46] Philip Sopher, Still White, Still Male: The Anachronism of Harvard’s Final Clubs, Atlantic (Aug. 7, 2014), https://www.theatlantic.com/education/archive/2014/08/are-harvards-final-clubs-on-the-wrong-side-of-history/375699/.

[47] See, e.g., Eliya O. Smith, To Bed, to Wed, to Talk to, Harv. Crimson (Nov. 20, 2018), https://www.thecrimson.com/article/2018/11/20/to-bed-to-wed-to-talk-to/.

[48] Sopher, supra note 46.

[49] Pham, supra note 44.

[50] William L. Wang, From a Queen to a Colony: The Bee Club was Born, Harv. Crimson (May 22, 2017), https://www.thecrimson.com/article/2017/5/22/bee-is-born-1992/.

[51] See Shera S. Avi-Yonah et al., Harvard is Without All-Female Social Groups After Last Three Holdouts Agree to Go Co-Ed, Harv. Crimson (Aug. 24, 2018), https://www.thecrimson.com/article/2018/8/24/no-more-female-clubs/.

[52] See Avi-Yonah et al., supra note 51; Danielle J. Kolin & Naveen N. Srivatsa, Hasty Pudding, Chabad, Bee Among Bidders for Fly’s Dunster St. Building, Harv. Crimson (May 1, 2010), https://www.thecrimson.com/article/2010/5/1/fly-club-board-powers/. In 2021, after the Sanctions were lifted, an undergraduate member of the Bee personally purchased a property in Harvard Square for the Bee to use as a clubhouse for $2.2 Million. See Alex M. Koller & Taylor C. Peterman, Bee Club Buzzes into Former Café Pamplona Location, Harv. Crimson (Sept. 24, 2021), https://www.thecrimson.com/article/2021/9/24/bee-purchases-cafe-pamplona/.

[53] See Derek G. Xiao, National Fraternity CEO Denounces College Policy, Harv. Crimson (Mar. 31, 2017), https://www.thecrimson.com/article/2017/3/31/national-greek-umbrella-groups-question-bridge-program/.

[54] See Caroline S. Engelmayer & Michael E. Xie, Harvard’s Last Sorority Disappears as Alpha Phi Buckles to College Pressure, Goes Co-Ed, Harv. Crimson (Aug. 19, 2018), https://www.thecrimson.com/article/2018/8/19/last-sorority-alpha-phi-co-ed/. These organizations all existed as female-only sororities prior to Harvard’s Sanctions on single-gender social organizations. For a discussion of how these organizations altered their names and membership requirements in light of the Sanctions, see infra Section II.B.

[55] See Engelmayer & Xie, supra note 54.

[56] Melissa I. Weissberg, College, Final Clubs Agree to Sever All of Their Ties, Harv. Crimson (Dec. 11, 1984), https://www.thecrimson.com/article/1984/12/11/college-final-clubs-agree-to-sever/. The term “punches” refers to sophomore men who wish to compete for membership in a Final Club. For a detailed account of the punch process, see Auchincloss, supra note 31. Although this Article was written over sixty years ago, it still rather accurately describes how punch works to this day (or at least as it was in 2016 when the Author of this Essay went through the process).

[57] Theodore R. Delwiche & Noah J. Delwiche, Unrecognized but Engaged, Harv. Crimson (Mar. 30, 2015), https://www.thecrimson.com/article/2015/3/30/final-club-administration-khurana/.

[58] Id.

[59] See Weissberg, supra note 56.

[60] Id.

[61] Auchincloss, supra note 31.

[62] Id.

[63] National Minimum Drinking Age Act of 1984, Pub. L. No. 98-363, § 6(a), 98 Stat. 437 (1984).

[64] Mass. Gen. Laws ch. 138, § 34A (1984).

[65] Sarah J. Howland, Route to 21: Drinking Age Arrives, Harv. Crimson (June 2, 2009), thecrimson.com/article/2009/6/2/route-to-21-drinking-age-arrives/ (analyzing the impact of the new drinking age on Harvard’s undergraduate social scene).

[66] Christian A. Rivera, It’s 21, Not 18: Deal With It, Harv. Crimson (Oct. 6, 2011), https://www.thecrimson.com/article/2011/10/6/drinking-parties-students-age/.

[67] See, e.g., Theodore R. Delwiche & Andrew M. Duehren, Spee Club Apologizes After Party Invitation Controversy, Harv. Crimson (Mar. 6, 2015).

[68] See, e.g., Julia K. Dean, Individual Apprehended Outside Fly Club After Altercation, Harv. Crimson (Apr. 19, 2012), https://www.thecrimson.com/article/2012/4/19/fly-club-hupd-apprehended/; Kerry M. Flynn, Assaults Occur Outside Final Clubs on Consecutive Weekends, Harv. Crimson (Apr. 15, 2011), https://www.thecrimson.com/article/2011/4/15/police-student-suspect-one/.

[69] See, e.g., Emma. M. Lind, Too Much of a Bad Thing, Harv. Crimson (June 7, 2007), https://www.thecrimson.com/article/2007/6/7/too-much-of-a-bad-thing/ (“Final clubs—which are unrecognized by the College because they are single-sex—are Harvard’s social powerhouses and traditionally involve heavy drinking during their ‘punch’ events and at their parties.”).

[70] Julia A. Martinez, Kenneth J. Sher & Phillip K. Wood, Drinking Consequences and Subsequent Drinking in College Students Over 4 Years, 28 Psych. Addictive Behavs. 1240, 1243 (2014).

[71] See, e.g., Mary E. Nicholson et al., Trends in Alcohol-Related Campus Violence: Implications for Prevention, 43 J. Alcohol & Drug Educ. 35 (1998); Paul E. Pezza & Ann Bellotti, College Campus Violence: Origins, Impacts, and Responses, 7 Educ. Psych. R. 105 (1993).

[72] See, e.g., Nicholson et al., supra note 71; Antonia Abbey, Alcohol-Related Sexual Assault: A Common Problem Among College Students, 14 J. Stud. Alcohol Supp. 118 (2002); Jessie V. Ford, Sexual Assault on College Hookups: The Role of Alcohol and Acquaintances, 32 Socio. F. 381 (2017).

[73] Christine Y. Cahill & Noah J. Delwiche, Amid Debate, Faust Announces Creation of Sexual Assault Task Force, Harv. Crimson (Apr. 3, 2014), https://www.thecrimson.com/article/2014/4/3/faust-sexual-misconduct-task-force/.

[74] Theodore R. Delwiche & Mariel A. Klein, Survey Reveals ‘Troubling’ Sexual Assault Climate at Harvard, Faust Says, Harv. Crimson (Sept. 21, 2015), https://www.thecrimson.com/article/2015/9/21/sexual-assault-climate-results/.

[75] Id.

[76] Id.

[77] Id.

[78] C. Ramsey Fahs, Sexual Assault Report Lambasts Final Clubs, Harv. Crimson (Mar. 9, 2016), https://www.thecrimson.com/article/2016/3/9/report-lambasts-final-clubs/.

[79] Fahs, supra note 13. Given that Final Club membership is largely comprised of athletes, see Lynn Miao, Are All Final Club Members Really White and Rich? Our Survey Says No, Harv. Crimson (Oct. 2, 2013), https://www.thecrimson.com/flyby/article/2013/10/2/final-club-demographics/, the restriction on captaincies appeared to be more impactful than that on academic fellowships. In the Author’s experience, few Final Club members known to him appeared to be qualified for or even interested in such fellowships.  However, one bright member of the Owl Club during the Author’s time as an undergraduate did earn a Rhodes Scholarship before the Sanctions would have taken effect.

[80] See Caroline S. Engelmayer & Michael E. Xie, What Harvard’s Social Group Recognition Form Reveals About the Sanction, Harv. Crimson (Sept. 5, 2018), https://www.thecrimson.com/article/2018/9/5/annotated-social-group-app/.

[81] See Caroline S. Engelmayer & Michael E. Xie, Social Groups’ Grad Boards Could Pose Obstacle to Avoiding Sanctions Under New Plan, Harv. Crimson (May 11, 2018), https://www.thecrimson.com/article/2018/5/11/sanctions-recognition-plan-announcement/.

[82] See id.

[83] See Noah J. Delwiche, In Historic Move, Spee Club Invites Women to Punch, Harv. Crimson (Sept. 11, 2015, 5:40 AM), https://www.thecrimson.com/article/2015/9/11/spee-club-punch-women/.

[84] Theodore R. Delwiche & Noah J. Delwiche, Fox Club Accepts Group of Women to Its Membership, Harv. Crimson (Oct. 26, 2015, 2:41 AM), https://www.thecrimson.com/article/2015/10/25/fox-accepts-women-to-join/ (internal quotations omitted).

[85] Hannah Natanson & Derek G. Xiao, Fox Club Again All-Male After ‘Provision’ Membership Revoked for Women, Harv. Crimson (July 4, 2017), https://www.thecrimson.com/article/2017/7/4/fox-club-all-male-again/.

[86] Hannah Natanson, Bee and Delphic to Share Membership, Clubhouse, Harv. Crimson (Aug. 30, 2017), https://www.thecrimson.com/article/2017/8/30/delphic-bee-union/.

[87] See Avi-Yonah et al., supra note 51.

[88] Id.

[89] See C. Ramsey Fahs, In Letter to Khurana, Porcellian-Commissioned Report Scrutinizes Final Club Statistics, Harv. Crimson (Apr. 29, 2016), https://www.thecrimson.com/article/2016/4/29/porcellian-analysis-criticize-stats/.

[90] Jora Stixrud, The AAU Sexual Assault Survey Data Cannot Substantiate Claims Regarding Harvard Final Clubs 7 (2016), https://www.thecrimson.com/article/2016/4/29/porcellian-analysis-criticize-stats/.

[91] Id., at 7, 5.

[92] Id., at 7-8.

[93] Drew G. Faust, Claiming Full Citizenship, Harv. Crimson (Sept. 21, 2016), https://www.thecrimson.com/article/2016/9/21/oped-faust-sgso/; see also Bishai, supra note 35 (“Administrators have shifted their focus from sexual assault to gender exclusivity as a rationale for their unprecedented involvement in undergraduate social life.”).

[94] Faust, supra note 93.

[95] Fahs, supra note 79.

[96] See supra Section II.A.

[97] C. Ramsey Fahs & Derek G. Xiao, Sorority, Club Women Denounce New Policy on Facebook, Harv. Crimson (May 9, 2016), https://www.thecrimson.com/article/2016/5/9/female-clubs-sororities-response/.

[98] C. Ramsey Fahs, Hundreds of Women Protest Harvard Sanctions, Harv. Crimson (May 10, 2016), https://www.thecrimson.com/article/2016/5/10/women-oppose-sanctions/.

[99] Id.

[100] Hannah Natanson, Despite Sanctions, Record 286 Women Rush Sororities, Harv. Crimson (Jan. 27, 2017), https://www.thecrimson.com/article/2017/1/27/286-rush-sororities/.

[101] Caroline S. Engelmayer & Michael E. Xie, As Sanctions Take Effect, Sorority Interest Halves, Harv. Crimson (Feb. 5, 2018), https://www.thecrimson.com/article/2018/2/5/sorority-interest-dips/.

[102] See Avi-Yonah et al., supra note 51.

[103] See generally Joshua C. Hall & Jason E. Taylor, Introduction: Unintended Consequences of Government Intervention, 36 Cato J. 1, 1 (“At the core of the economic way of thinking is the notion that well-intentioned public policies often have unintended consequences that lessen or negate the intended outcomes of the policy.”).

[104] In defending the Sanctions, Rakesh Khurana, Dean of Harvard College, dismissed the women’s protesting, stating that “[i]n every era, change has come slowly and often with fierce opposition.” Fahs & Xiao, supra note 97.

[105] See Caroline S. Engelmeyer & Michael E. Xie, Harvard Switched the Rationale for the Sanctions Again. Now It Wants to End All Forms of Discrimination, Harv. Crimson (Sept. 5, 2018), https://www.thecrimson.com/article/2018/9/5/registration-application-shows-new-rationale-usgso-sanctions/.

[106] Engelmeyer & Xie, supra note 80.

[107] See, e.g., Fahs, supra note 79. In 2015, CNN aired a documentary profiling the prevalence of sexual assaults at colleges, including Harvard. See The Hunting Ground (Radius-TWC 2015). The irony should not be lost that this film was distributed by a subsidiary of The Weinstein Company. The film’s narrative received significant criticism, including one press release written by seventeen members of the Harvard Law School faculty, such as Duncan M. Kennedy, Laurence H. Tribe, and Nancy Gertner, for its biased narrative and distortion of fact. See Press Release, Elizabeth Bartholet et. al, Re: The Hunting Ground (Nov. 11, 2015), https://kcjohnson.files.wordpress.com/2013/08/hls-pressrelease.pdf (“We denounce this film as prolonging [an accused student’s] ordeal with its unfair and misleading portrayal of the facts of his case.”); see also Emily Yoffe, How The Hunting Ground Blurs the Truth, Slate (“[I]t is crucial, in telling stories of sexual assault, not to be blinded by advocacy, but to fairly examine the assertions of both sides. Despite the filmmakers’ assurances, The Hunting Ground fails in this regard.”).

[108] See, e.g., Kalos K. Chu, Growing Pains, Harv. Crimson (Oct. 24, 2020) (“Why anyone would want their worth assessed by a few dozen privileged, straight, white 19-22-year-olds . . . was beyond me.”); Sopher, supra note 46 (“The men who belong to [Finals Clubs] are typically athletes or from prominent or affluent families, and they tend to be white.”).

[109] Miao, supra note 79.

[110] Id.

[111] Pham, supra note 44.

[112] See Mark Gartsbeyn, Harvard Announces Lowest Ever Acceptance Rate After Surge in Application, Boston.com (Apr. 7, 2021), https://www.boston.com/news/schools/2021/04/07/harvard-low-acceptance-rate/.

[113] Noah D. Dasanaike, Include Exclusivity, Harv. Crimson (Feb. 11, 2019), https://www.thecrimson.com/article/2019/2/11/dasanaike-include-exclusivity/.

[114] See Natanson, supra note 86.

[115] See Avi-Yonah et al., supra note 51.

[116] See Graham W. Bishai, Alpha Epsilon Pi Now Gender-Neutral Club ‘The Aleph’, Harv. Crimson (Sept. 7, 2017), https://www.thecrimson.com/article/2017/9/7/aepi-the-aleph/.

[117] See Delwiche, supra note 83.

[118] See Natanson, supra note 86.

[119] Caroline S. Engelmayer & Michael E. Xie, Social Groups Spent $90,000 Lobbying Congress to Cancel Sanctions in Second Quarter of 2018, Harv. Crimson (Sept. 6, 2018), https://www.thecrimson.com/article/2018/9/6/second-quarter-final-club-lobbying/.

[120] See, e.g., Patrick Kelley, Stefanik Seizes the Spotlight at Trump Impeachment Proceedings, Roll Call (Nov. 18, 2019, 4:36 PM), https://www.rollcall.com/2019/11/18/stefanik-seizes-the-spotlight-at-trump-impeachment-proceedings/ (“The House Intelligence Committee had gathered Friday for its second open hearing of the impeachment inquiry into President Donald Trump when Rep. Elise Stefanik stormed into the spotlight.”); Coby Itkowitz, Stefanik Emphasizes Support for False Election Claims, Trump Movement Ahead of Leadership Vote, Wash. Post (May 6, 2021, 7:37 AM), https://www.washingtonpost.com/politics/stefanik-cheney-trump/2021/05/06/eee70eb8-ae94-11eb-acd3-24b44a57093a_story.html (“Rep. Elise Stefanik on Thursday emphasized her support for former president Donald Trump’s false claims that the2020 election was stolen through voter fraud as she seeks to lock down support to replace Rep. Liz Cheney as the third-ranking House Republican.”). Ironically, while her unwavering support for President Trump catapulted Representative Stefanik to become Chair of the House Republican Conference, it also got her blacklisted from Harvard. In 2021, Harvard’s Institute of Politics voted to remove her from its Advisory Committee. See Stephanie Murray, Harvard Removes Republican Elise Stefanik from Advisory Committee, Politico (Jan. 12, 2021, 12:59 PM),  https://www.politico.com/news/2021/01/12/harvard-removes-elise-stefanik-advisory-commitee-458141. This decision came in response to a larger effort at Harvard to “establish ‘accountability guidelines’ for inviting former Trump administration officials to campus” in the wake of the January 6th Capitol Protests. Alex M. Koller & Taylor C. Peterman, Hundreds Petition for IOP to Sever Ties with U.S. Rep. Elise Stefanik ’06, Harv. Crimson (Jan. 8, 2021), https://www.thecrimson.com/article/2021/1/8/iop-petition-against-stefanik/.

[121] It is rather rare for politicians to vocally support or associate with Final Clubs, as many have faced criticism for their affiliations with them. For instance, Massachusetts Senator Edward M. Kennedy renounced his membership in the Owl Club in 2006 after being called hypocritical for criticizing then-Judge Samuel Alito for his membership in Concerned Alumni of Princeton, “a conservative group founded in 1972 in part to oppose coeducation at the university,” during the latter’s Supreme Court confirmation hearings. Paras D. Bhayani & Natalie I. Sherman, Alum’s Owl Ties Draw Ire, Harv. Crimson (Jan. 13, 2006), https://www.thecrimson.com/article/2006/1/13/alums-owl-ties-draw-ire-the/. However, Senator Kennedy officially remained a member of the Owl Club until his death in 2009, as the Club has no process for disaffiliation. For a photograph of a young Teddy Kennedy sporting the Owl Club spring tie, see Linda Wertheimer, Ted Kennedy: The Last of a Family Power Dynasty, N. Cnty. Pub. Radio (Aug. 28, 2009), https://www.northcountrypublicradio.org/news/npr/112250503/ted-kennedy-the-last-of-a-family-power-dynasty (first image). Additionally, distancing oneself from Final Club membership has almost become a rite of passage for Massachusetts gubernatorial hopefuls in recent years. See Frank Phillips, Patrick Says He Quit The Fly Club in 1983, Boston Globe (Aug 3, 2006),  http://archive.boston.com/news/education/higher/articles/2006/08/03/patrick_says_he_quit_tth_fly_club_in_1983/ (discussing how then-gubernatorial candidate Deval Patrick severed ties with the Fly Club after his wife “told him it was inappropriate for him to belong”); Bella English, Baker: Happy Days, High Expectations, Boston Globe (Oct. 3, 2010),  http://archive.boston.com/news/politics/articles/2010/10/03/baker_happy_days_high_expectatexpe/?page=full (noting that although then-gubernatorial candidate Charlie Baker was a member of now-defunct all-male D.U. Club while he was a Harvard undergraduate, he “didn’t spend much time there”).

[122] PROSPER Act, H.R. 4508, 115th Cong. § 119(a)(3)-(4) (2018).

[123] See Engelmeyer & Xie, supra note 80.

[124] If this reference has not quite reached the popular-culture zeitgeist, the Kobayashi Maru is a Starfleet Academy training simulation from Star Trek universe. During this exercise, the cadet is faced with the “no-win scenario” of either rescuing the crew of the Kobayashi Maru and facing imminent death at the hands of Klingon warbirds or aborting the rescue operation to the Kobayashi Maru’s demise. See Star Trek II: The Wrath of Khan (Paramount Pictures 1982); see also Star Trek (Paramount Pictures 2009) (“The test itself is a cheat, isn't it? You programmed it to be unwinnable.”).

[125] See Leah S. Yared, Faust Condemns Congressional Legislation that Could Affect Sanctions, Harv. Crimson (Mar. 9, 2018), https://www.thecrimson.com/article/2018/3/9/faust-social-groups-dc/. The irony should not be lost to the fact that while Faust championed Harvard’s own freedom to conduct its affairs without meddling, she did not extend this benefit to her students to regulate their social lives as they deemed fit.

[126] Kristine E. Guillaume, Faust Penned Letter to Stefanik Arguing Against Legislation that Could Imperil Sanctions, Harv. Crimson (May 4, 2018), https://www.thecrimson.com/article/2018/5/4/sanctions-stefanik-faust-meeting/. Again, no such considerations regarding the “choice” of students were mentioned.

[127] See Alexandra A. Chaidez & Aidan F. Ryan, Harvard Admins ‘Pleased’ with House Democrats' Bill to Reauthorize Higher Ed Act, Harv. Crimson (Nov. 12, 2019), https://www.thecrimson.com/article/2019/11/12/harvard-admins-pleased-house-bill/; see also College Affordability Act, H.R. 4674, 116th Cong. (2019) (aiming “[t]o amend and strengthen the Higher Education Act of 1965 to lower the cost of college for students and families, to hold colleges accountable for students' success, and to give a new generation of students the opportunity to graduate on-time and transition to a successful career”).

[128] See College Affordability Act, H.R. 4674, 116th Cong. § 130 (2019).

[129] Caroline S. Engelmayer & Michael E. Xie, To Fight Sanctions, Harvard Social Groups Take 'The Legislative Path', Harv. Crimson (May 23, 2018), https://www.thecrimson.com/article/2018/5/23/the-legislative-path/; see also Caroline S. Engelmayer & Michael E. Xie, Bill That Could Endanger Harvard's Sanctions Won’t Pass, Experts Say —Particularly After Blue Wave, Harv. Crimson (Oct. 19, 2018), https://www.thecrimson.com/article/2018/10/19/prosper-act-expert-analysis/ (“Supporting the bill would be ‘an act of political suicide,’ according to Barmak Nassirian, director of federal relations and policy analysis for the American Association of State Colleges and Universities. He jokingly estimated the odds that the bill passes this term are ‘in negative territory.’”).

[130] See Belkin, supra note 23.

[131] See Complaint at 12-20, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG) [hereinafter Theta Complaint].

[132] See Complaint at 4-8, Alpha Phi Int’l Fraternity, Inc. v. President & Fellows of Harvard Coll., 2020 WL 741544 (Mass. Dist. Ct. Jan. 14, 2020) (SUCV2018-03729-E) [hereinafter Alpha Phi Complaint].

[133] Id. at 32-34; Theta Complaint, supra note 131, at 7.

[134] Faust, supra note 93.

[135] 20 U.S.C. § 1681(a) (1972).

[136] See With Federal Funds, Harvard Helps Drive Local Economy, Harv. Gazette (Mar. 1, 2020), https://news.harvard.edu/gazette/story/2020/03/harvard-attracts-federal-funding-supports-economy/.

[137] 20 U.S.C. § 1681(a).

[138] Fahs, supra note 13.

[139] 20 U.S.C. § 1681(a).

[140] Theta Complaint, supra note 131, at 64-70. Such antidiscrimination claims emanate from judicial doctrine interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e17. In interpreting Title IX claims, federal courts will analogize to Title VII jurisprudence. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 282 (1998).

[141] Caroline S. Engelmayer & Delano R. Franklin, ‘Plowing New Ground’: Experts Say Harvard Sanctions Suits Employ Unusual Legal Arguments, Harv. Crimson (Dec. 5, 2018), https://www.thecrimson.com/article/2018/12/5/greek-lawsuit-viability-analysis/.

[142] Id.

[143] City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (quoting Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1170 (1971)).

[144] Cumpiano v. Banco Santander P.R., 902 F.2d 148, 153 (1st Cir. 1990).

[145] Motion to Dismiss at 11, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG).

[146] See Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 345-47 (7th Cir. 2017) (en banc).

[147] Id. at 345.

[148] Id.

[149] See Zarda v. Altitude Express, Inc., 883 F.3d 100, 119 (2d. Cir. 2018) (en banc).

[150] Theta Complaint, supra note 131, at 64.

[151] Id.

[152] Plaintiffs’ Opposition to Motion to Dismiss at 11, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG) (quoting Zarda, 883 F.3d at 123) (internal quotations omitted).

[153] 521 F.3d 130, 131 (2d Cir. 2008) (“[A]n employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race.”); see also Loving v. Virginia, 388 U.S. 1, 11 (“The [unconstitutional miscegenation] statutes proscribe generally accepted conduct if engaged in by members of different races.”); Bob Jones Univ. v. United States, 461 U.S. 574, 605 (1983) (“[D]iscrimination on the basis of racial . . . association is a form of racial discrimination.”).

[154] Hively, 853 F.3d at 349.

[155] Id.

[156] Zarda, 883 F.3d at 125.

[157] Id. at 126.

[158] Theta Complaint, supra note 131, at 66.

[159] Motion to Dismiss at 12, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG).

[160] 490 U.S. 228, 251 (1989) (plurality opinion); Id. at 250.

[161] Theta Complaint, supra note 131, at 66-67.

[162] Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 343 (2013).

[163] Theta Complaint, supra note 131, at 68.

[164] Id.

[165] Motion to Dismiss at 13, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG).

[166] Id. at 12.

[167] Id. at 11.

[168] See Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97, 109 (D. Mass. 2019).

[169] Id. at 108.

[170] Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2006) (“Factual allegations must be enough to raise a right to relief above the speculative level.”).

[171] See generally Anthony F. Bogaert & Malvina N. Skorska, A Short Review of Biological Research on the Development of Sexual Orientation, 119 Hormones & Behavior 104659 (reviewing the relevant scientific literature establishing evidence for the biological causes of homosexuality).

[172] Altitude Express, Inc. v. Zarda, 139 S.Ct. 1599 (2019) (granting cert).

[173] Bostock v. Clayton Cnty. Bd. Comm’rs, 723 Fed. App’x. 964 (2018) (“This circuit has previously held that ‘[d]ischarge for homosexuality is not prohibited by Title VII.’” (internal citation omitted)); see Bostock v. Clayton Cnty., 139 S.Ct. 1599 (2019) (granting cert).

[174] See Zarda v. Altitude Express, Inc., 883 F.3d 100, 167 (2d. Cir. 2018) (en banc) (Livingston, J., dissenting) (quoting Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 362 (7th Cir. 2017) (en banc) (Sykes, J., dissenting)).

[175] See, e.g., Richard Primus, The Supreme Court Case Testing the Limits of Gorsuch’s Textualism, Politico Mag. (Oct. 15, 2019), https://www.politico.com/magazine/story/2019/10/15/lgbt-discrimination-supreme-court-gorsuch-textualism-229850/; see also Elena Kagan, Assc. J. U.S. Supreme Ct., 2015 Scalia Lecture at Harvard Law School (Nov. 18, 2015),

(“We’re all textualists now.”).

[176] Zarda, 883 F.3d at 160 (Lynch, J., dissenting).

[177] Id.

[178] Motion to Dismiss at 13, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG).

[179] See Theta Complaint, supra note 131, at 70-71; Alpha Phi Complaint, supra note 132, 32-34.

[180] Mass. Gen. Laws ch. 12, § 11I (1979).

[181] Theta Complaint, supra note 131, at 71.

[182] Alpha Phi Complaint, supra note 132, at 32; id. at 33 (quoting Mass. Const. pt. 1, art. I).

[183] Currier v. National Bd. of Med. Examiners, 965 N.E.2d 829, 838 (Mass. 2012).

[184] Planned Parenthood League of Massachusetts v. Blake, 631 N.E.2d 985, 990, cert. denied, 513 U.S. 868 (1994).

[185] Alpha Phi Complaint, supra note 132, at 32. For reporting on Harvard’s allegedly coercive actions, see Noah J. Delwiche, On Final Clubs, Khurana is Mostly Mum, Harv. Crimson (Sept. 14, 2015), https://www.thecrimson.com/article/2015/9/14/khurana-final-clubs-mum/ (“There is nothing off the table.”); Theodore R. Delwiche & Noah J. Delwiche, ‘Harvard Has Forced Our Hand,’ Fox Club Letter Says, Harv. Crimson (Oct. 26, 2015), https://www.thecrimson.com/article/2015/10/26/fox-letter-accept-women/ (“The Fox Club’s recent decision to accept a group of women into its all-male membership follows student members’ growing support for going co-ed and, more recently, an extended back and forth with Harvard administrators that left the club’s undergraduate leadership feeling that its hand was ‘forced.’”); and Fahs, supra note 78 (“In a scathing report released Tuesday, the University’s Task Force on Sexual Assault Prevention blasts historically male final clubs for ‘deeply misogynistic attitudes,’ and calls on the College to formulate ‘a plan to address the problems presented by Final Clubs,’ in what is one of the strongest University-sponsored condemnations of the clubs to date.”).

[186] Theta Complaint, supra note 131, at 71. For reporting on the Harvard administration’s threats against, and decision to withhold certain privileges from, Final Club members, see, for example, Hannah Natanson & Derek G. Xiao, Seven Votes, Harv. Crimson (July 22, 2017), https://www.thecrimson.com/article/2017/7/22/inside-social-ban-committee/ (“The most severe option, barring student membership in ‘fraternities, sororities, and similar organizations,’ would eventually become the committee’s official recommendation and the capstone of Harvard administrators’ year-long effort to curtail the influence of the groups.”); and Fahs, supra note 13 (detailing the penalties for joining single-gender social organizations).

[187] Motion to Dismiss at 18, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG)

[188] Id.

[189] See id.

[190] See Alpha Phi Int’l Fraternity, Inc. v. President & Fellows of Harvard Coll., 2020 WL 741544, at *6 (Mass. Dist. Ct. Jan. 14, 2020); Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97, 109 (D. Mass. 2019).

[191] Alpha Phi Int’l Fraternity, Inc., 2020 WL 741544, at *6.

[192] Kappa Alpha Theta Fraternity, Inc., 397 F. Supp. 3d at 109.

[193] See, e.g., Patricia Sánchez Abril & Nicholas Greene, Contracting Correctness: A Rubric for Analyzing Morality Clauses, 74 Wash & Lee L. Rev 3, 8 (2017); Stephen D. Sugarman, Lifestyle Discrimination in Employment, 24 Berkeley J. Emp. & Lab. L 377, 416 (2003); Fernando M. Pinguelo & Timothy D. Cedrone, Morals? Who Cares About Morals? An Examination of Morals Clauses in Talent Contracts and What Talent Needs to Know, 19 Seton Hall J. Sports & Enl. L. 347, 374-75 (2009).

[194] Pinguelo & Smith, supra note 193, at 351. Throughout the literature, these clauses are also referred to as “morals clauses,” “public image clauses,” “good-conduct clauses,” “moral turpitude clauses,” “personal conduct clauses,” and “behavioral clauses.” See id. at 351 n.10.

[195] See FAS Registrar’s Office, The 2019-2020 Harvard College Handbook for Students 142 (2019), https://registrar.fas.harvard.edu/files/fas-registrar/files/2019-2020-college-student-handbook-06.12.2020.pdf.

[196] Id. at 2.

[197] Id. For case law expounding upon the contractual relationship between universities and students, see, generally, In re Univ. of S. Cal. Tuition & Fees Covid-19 Refund Litig., 2021 WL 3560783 (C.D. Cal. Aug. 6, 2021) (“It is well-established that the basic legal relationship between a student and a university is contractual in nature.”).

[198] See Pinguelo & Smith, supra note 193, at 349 (exploring the use of morality clauses in the entertainment industry); Daniel Auerbach, Morals Clauses as Corporate Protection in Athlete Endorsement Contracts, 3 DePaul J. Sports L. 1, 3 (2005) (exploring the use of morality clauses in the sports industry).

[199] Abril & Greene, supra note 193, at 8-9.

[200] Id. at 7.

[201] See Id. (“Any contract clause that broadly and vaguely restricts civil liberties deserves close inquiry, especially when imposed on parties with little bargaining power.”).

[202] Alpha Phi Int’l Fraternity, Inc., 2020 WL 741544, at *6 n.10.

[203] Id. at *5.

[204] See Johnson v. Town of Duxbury, 2018 WL 5269989 (D. Mass. Oct. 23, 2018); Webster v. Motorola, Inc., 637 N.E.2d 203 (Mass. 1994).

[205] See Abril & Greene, supra note 193, at 50.

[206] Id. at 51.

[207] Id. at 55.

[208] Id. at 58.

[209] Id. at 62.

[210] Id. at 64.

[211] Id. at 50-51.

[212] Id. at 53.

[213] Faust, supra note 93.

[214] See e.g., Willaim Stadiem, Can Harvard’s Storied Final Clubs Resist the Tides of Change?, Town & Country (Aug. 2, 2016), https://www.townandcountrymag.com/society/tradition/a7263/future-of-harvard-final-clubs/; Nir, supra note 36; Sopher, supra note 46.

[215] See, e.g., Erin Hawley, Harvard’s Ban on Single-Sex Organizations Hurts Women, Nat’l Rev. (Aug. 19, 2019), https://www.nationalreview.com/2019/08/harvard-ban-single-sex-organizations-hurts-women/; Fahs, supra note 98.

[216] The Graduating Class of 2018 by the Numbers: Campus Politics, Harv. Crimson (May 2018), https://features.thecrimson.com/2018/senior-survey/campus-politics-narrative/.

[217] See Abril & Greene, supra note 193, at 55.

[218] Given the plethora of think pieces written on the subject of Final Clubs, it appears that the public (or at least the reading class) spends a good deal of intellectual energy writing and musing about what Harvard undergraduates do on a Friday night. See supra note 214. The connection between Harvard, privilege, and exclusivity certainly creates a juicy human-interest story that allows writers to publish low-hanging cultural criticisms agreeable with a public zeitgeist obsessed with social justice and equity.

[219] See Abril & Greene, supra note 193, at 58.

[220] Id.

[221] Id. at 59.

[222] See id. at 60-61. The Abril & Green Article focuses only on the First Amendment protection for the freedom of speech. In adapting their framework from the employment context to the education context, I am assuming a broader protection for First Amendment rights.

[223] Id. at 61.

[224] Id. at 62.

[225] Caroline S. Engelmayer & Michael E. Xie, Ad Board Will Enforce Sanctions Under College’s Final Plan, Harv. Crimson (Mar. 1, 2018), https://www.thecrimson.com/article/2018/3/1/final-implementation-plan-sanctions/.

[226] Id.

[227] Abril & Greene, supra note 193, at 62.

[228] Final Clubs do not publish lists of the membership and attempt to establish an aura of secrecy by restricting access to the clubhouse. Such restrictions exist on a sliding scale. For instance, clubs like the Delphic, Fly, Fox, Owl, Phoenix S.K. famously throws several parties a year for invited male and female guests in their courtyards and allow female guests to enter the clubhouse for designated date events, mixers, and parties. See, e.g., Antonio Coppola & John P. Finnegan, Ellison, CPD, HUPD Descend on Final Club Parties Saturday, Harv. Crimson (Oct. 1, 2013), https://www.thecrimson.com/article/2013/10/1/final-club-shutdown-owl/ (“An Owl member present at the party characterized the police response as normal for a weekend night up until the final complaint.”); Smith, supra note 47 (“[T]he PSK in particular has a reputation for packing its parties with women from other schools.”). For these clubs, membership is more likely to be widely known among students. On the other side of the spectrum, the Porcellian Club is closed to all non-members, except for women married to a member on her wedding day and twenty-fifth anniversary, and “[d]istinguished” guests. See Philip Ardery, College’s Final Clubs Enjoy Secluded Life in a World that Pays Little Attention to Them, Harv. Crimson (June 16, 1966), https://www.thecrimson.com/article/1966/6/16/colleges-final-clubs-enjoy-secluded-life/ (“Distinguished guests of Porcellian members may visit—but only once. (The club turned down President Eisenhower's request for a second look).”). Despite this nominal secrecy, members of the student body often know whether someone is a member of a club, though it is less clear to what extent such information is known to the administration, given its unwillingness to actively determine compliance with the Sanctions. Englemayer & Xie, supra note 225. Harvard’s choice to not require that to release the names or demographic information of their membership in order to avoid the Sanctions, see Englemayer & Xie, supra note 225, thus further undermines the College’s ability to prove violations of the policy.

[229] See supra note 214 & accompanying text.

[230] See, e.g., Dasanaike, supra note 113; The Crimson Editorial Board, Sanctions for Show, Harv. Crimson (Apr. 18, 2016), https://www.thecrimson.com/article/2016/4/18/final-clubs-sanction-staff/ (“The College should not sanction final club members”; Alex Morey, Harvard Students, Faculty, Alumni Vow Fight Against ‘Deeply Disturbing’ Social Club Ban, Found. Individual Rts. Educ. (July 17, 2017), https://www.thefire.org/harvard-students-faculty-alumni-vow-fight-against-deeply-disturbing-social-club-ban/ (“‘In the face of a regressive crusade by the Harvard administration to remake human interaction in its own ideological image, action must be taken.’”); Ginnie Graham, Harvard’s Banning of Sororities and Fraternities Doesn’t Fix Problems of Discrimination, Sexual Assault, Tulsa World (Dec. 8, 2018), https://tulsaworld.com/opinion/columnists/ginnie-graham-harvards-banning-of-sororities-and-fraternities-doesnt-fix-problems-of-discrimination-sexual-assault/article_78a245da-bb0f-5cb9-95ca-d1f667bcf9e4.html (“Banishing the entire system doesn’t change the root of those problems, it’s just moves them around and underground.”).

[231] See Jora Stixrud, supra note 90; Fahs & Xiao, supra note 97; supra note 107 & accompanying text.

[232] See Gartsbeyn, supra note 112; Dasanaike, supra note 113; Jeffrey J. Selingo, Harvard and Its Peers Should Be Embarrassed About How Few Students They Educate, Wash. Post (Apr. 8, 2021, 1:19 PM), https://www.washingtonpost.com/outlook/harvard-and-its-peers-should-be-embarrassed-about-how-few-students-they-educate/2021/04/08/3c0be99c-97cb-11eb-b28d-bfa7bb5cb2a5_story.html; see also Mathis Bitton, America’s Next Aristocracy, Palladium (Oct. 29, 2021), https://palladiummag.com/2021/10/29/americas-next-aristocracy/ (“In 1820, Harvard paid lip service to meritocratic virtues while producing aristocrats. In 2021, Harvard pays lip service to aristocratic virtues while producing meritocrats.”).

[233] Abril & Greene, supra note 193, at 64, 66.

[234] See Fahs, supra note 13. Muddying this argument, however, is Alpha Phi’s claim that some “students received notice [in August 2017 as to when] the Policy took effect after some affected students decided to attend the college.” Alpha Phi Int’l Fraternity, Inc. v. President & Fellows of Harvard Coll., 2020 WL 741544, at *6, n.10 (Mass. Dist. Ct. Jan. 14, 2020). Still, The Harvard Crimson reported that the Sanctions—though not fully fleshed out at this point—would first apply to the Class of 2021 in May 2016, undermining this supposed reliance interest. Fahs, supra note 13.

[235] See Natanson & Xiao, supra note 186.

[236] Fahs, supra note 78.

[237] See Fahs, supra note 13.

[238] Abril & Greene, supra note 193, at 66.

[239] See Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97, 108-09 (D. Mass. 2019) (holding that Theta sufficiently plead allegations of per se gender discrimination, associational discrimination, sex stereotyping, and anti-male bias); Alpha Phi Int’l Fraternity, Inc., 2020 WL 741544, at *5-6.

[240] See EEOC v. R.G., 884 F.3d 560, 569 (6th Cir. 2018) (“[Defendant] Rost testified that he fired Stephens because ‘he was no longer going to represent himself as a man. He wanted to dress as a woman.’”).

[241] Brief for Petitioner at i, Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) (No. 17-1618).

[242] Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).

[243] Engelmeyer & Franklin, supra note 141.

[244] See Declan J. Knieriem & Ema R. Schumer, Harvard Drops Social Group Sanctions Following Supreme Court Sex Discrimination Decision, Harv. Crimson (June 30, 2020), https://www.thecrimson.com/article/2020/6/30/harvard-ends-social-group-sanctions/.

[245] Id.

[246] Press Release, Am. C. L. Union, Supreme Court Rules It Is Against the Law to Fire LGBTQ People (June 15, 2020), https://www.aclu.org/press-releases/supreme-court-rules-it-against-law-fire-lgbtq-people.

[247] Bostock, 140 S. Ct. at 1739.

[248] Id. at 1741.

[249] Officially, unrecognized-student organizations had to submit to a lengthy process in order to receive recognition from the College and escape the Sanctions. One of the terms of reaffiliation was that the Club should “‘affirm a commitment’ to going gender neutral.” Engelmayer & Xie, supra note 81. In practice, however, such a requirement was rather loosely enforced. Groups could simply “demonstrate a commitment to going gender-neutral down the road” without needing to actually adopt a gender-neutral membership within any immediate timeframe. Id. For example, the I.C. Club applied for interim recognition but never accepted any male members. See Avi-Yonah et al., supra note 51.

[250] Plaintiffs’ Opposition to Motion to Dismiss at 10, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG)

[251] This proposition is not merely a hypothetical. In 2016, the A.D. Club hosted an “open punch” process in which any male undergraduate was allowed to attend the Club’s first round of membership screening. To boost turnout, the Club sent email invitations to all male students listed in the Harvard Facebook. In a rather comical moment of Shakespearean mistaken identity, the Club accidentally invited a female undergraduate who was called the traditionally male name “Cory.” As this Cory told The Harvard Crimson before the punch event, “unless the A.D. offers her an apology for the mix-up, she will attend the first punch event on Tuesday evening at the Sheraton Commander.” C. Ramsey Fahs, With Stumbles, Final Clubs Prep For Unique ‘Punch’ Season, Harv. Crimson (Sept. 9, 2016, 11:26 AM), https://www.thecrimson.com/article/2016/9/9/ad-club-woman-invite/. There is no evidence to suggest that Cory was ever offered membership in the A.D. Club.

[252] Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97, 108 (D. Mass. 2019).

[253] A party in litigation may be granted summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a). On this claim, a trial would likely not be necessary, as Theta would likely be entitled to relief as a matter of law.

[254] 20 U.S.C. § 1681(a).

[255] Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1742 (2020).

[256] Id.

[257] Motion to Dismiss at 17, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG).

[258] Bostock, 140 S. Ct. at 1741.

[259] Id. at 1747.

[260] Motion to Dismiss at 18, Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019) (No. 18-12485-NMG).

[261] See, e.g., Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stan. L. Rev. 1205 (2014).

[262] See generally Murray N. Rothbard, The Great Thomas & Hill Show: Stopping the Monstrous Regiment, 2 Rothbard-Rockwell Rpt. 2, 10 (Dec. 1991), https://www.rothbard.it/articles/great-thomas.pdf (“The start of the evil can be pinpointed precisely: the monstrous Civil Rights Act of 1964, specifically Title VII, prohibited discrimination in employment on the basis of race, religion, sex, and other possible characteristics. This horrendous invasion of the property rights of the employer is the source of all the rest of the ills, neocons and sellout Libertarians to the contrary notwithstanding. If I am an employer and, for whatever reason, I wish to hire only five-foot-four albinos. I should have the absolute right to do so. Period.”).

[263] See, e.g., Christine J. Back, Cong. Rsch. Serv., R46534, The Civil Rights Act of 1964: An Overview 1 (2020) (“As originally enacted, every title that created or enforced protections addressed discriminatory actions on the basis of race, color, religion, or national origin, with one title—Title VII— including a prohibition against sex discrimination.”).

[264] Bostock, 140 S. Ct. at 1742.

[265] Id. at 1748.

[266] Id. at 1742.

[267] Bostock does not appear to address especially relevant considerations for analyzing Theta’s sex-stereotype claim or its anti-male bias claim. Nor does it provide relevant guidance for analyzing either Theta or Alpha Phi’s MRCA claim. Further analysis of these claims, however, is not necessary as Bostock’s resounding adoption of the legal theories underpinning Theta’s other claims appear to be sufficient for relief as a matter of law.

[268] See Cobb, supra note 30.

[269] Letter from Claudine Gay, Edgerley Fam. Dean, Harv. Fac. Arts & Scis., The Ongoing Work of Justice (Apr. 20, 2021), https://www.fas.harvard.edu/news/ongoing-work-justice.

[270] Letter from Lawrence S. Bacow, President, Harv. Univ., Standing Together (Mar. 18, 2021), https://www.harvard.edu/president/news/2021/standing-together.

[271] See generally Adam Liptak, Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules, N.Y. Times (June 15, 2020), https://www.nytimes.com/2020/06/15/us/gay-transgender-workers-supreme-court.html (“‘This is a simple and profound victory for L.G.B.T. civil rights,’ said Suzanne B. Goldberg, a law professor at Columbia. ‘Many of us feared that the court was poised to gut sex discrimination protections and allow employers to discriminate based on sexual orientation and gender identity, yet it declined the federal government’s invitation to take that damaging path.’”).

[272] Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1836 (2020) (Kavanaugh, J., dissenting).

[273] Id. at 1823.

[274] Id. at 1755-56 (Alito, J., dissenting).

[275] For a taste of the scholarly commentary emerging from the Bostock ruling, see, for example, Victoria Nourse & William N. Eskridge, Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism, 96 N.Y.U. L. Rev. 1718 (2021); Marc Spindelman, Bostock’s Paradox: Textualism, Legal Justice, and the Constitution, 69 Buffalo L. Rev. 553 (2021); William N. Eskridge Jr., Brian G. Slocum & Stefan Th. Gries, The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning, 119 Mich. L. Rev. 1503 (2021); and Justin Blount, Sex-Differentiated Appearance Standards Post-Bostock, 31 Geo. Mason U. Civ. Rts. L.J. 217 (2021).

[276] Press Release, GLAAD, GLAAD Applauds Watershed Moment as the U.S. Supreme Court Rules that Firing an Employee for Being LGBTQ Violates Title VII (June 15, 2020), https://www.glaad.org/releases/glaad-applauds-watershed-moment-us-supreme-court-rules-firing-employee-being-lgbtq-violates; see also Sharita Gruber, Beyond Bostock: The Future of LGBTQ Civil Rights, Ctr. Am. Progress (Aug. 26, 2020), https://www.americanprogress.org/article/beyond-bostock-future-lgbtq-civil-rights/ (“The Supreme Court’s decision in Bostock was a massive step forward in protecting millions of LGBTQ workers from discrimination and advancing equal rights for LGBTQ people.”).

[277] See, e.g., Adrian Vermeule, Beyond Originalism, Atlantic (March 31, 2020), https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/ (“I am talking about a different, more ambitious project, one that abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism.”); Robert P. George, The Bostock Case and the Rule of Law, Mirror Just. (June 15, 2020), https://mirrorofjustice.blogs.com/mirrorofjustice/2020/06/the-bostock-case-and-the-rule-of-law.html (noting that Justice Gorsuch’s opinion “vindicates Adrian Vermeule’s warning to conservatives that trying to combat the longstanding ‘progressive’ strategy of imposing a substantive moral-political agenda through the courts by appointing ‘originalist’ and ‘textualist’ judges is hopeless”); Ben Shapiro (@benshapiro), Twitter (June 15, 2020, 10:58 AM),

Ben Shapiro @benshapiro

Out: Textualism means interpreting a statute according to the meaning of its verbiage when written. In: Textualism means progressive jurisprudence.

(“This Gorsuch decision is not originalist in any way . . . . It is simply a bad, outcome-driven decision.”).

[278] See John McCormack, Religious Liberty after Bostock and Our Lady of Guadalupe, Nat’l Rev. (July 15, 2020), https://www.nationalreview.com/2020/07/religious-liberty-after-bostock-and-our-lady-of-guadalupe/.

[279] See supra note 275 & accompanying text.

[280] This consortium is often referred to as “the cathedral.” See, e.g., Curtis Yarvin, A Brief Explanation of the Cathedral, Gray Mirror (Jan. 21, 2021), https://graymirror.substack.com/p/a-brief-explanation-of-the-cathedral (“‘The cathedral’ is just a short way to say ‘journalism plus academia’—in other words, the intellectual institutions at the center of modern society, just as the Church was the intellectual institution at the center of medieval society.”).

[281] See Noelle N. Wyman, Because of Bostock, 199 Mich. L. Rev. Online 61 (2021); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (“Title VII does not . . . permit [an employer] to use [an employee’s] conduct as a pretext for the sort of discrimination prohibited.”).

[282] John Swartz & Geneva Abdul, How a Ruling on Gay and Transgender Rights May Help the Climate, N.Y. Times (June 24, 2020), https://www.nytimes.com/2020/06/24/climate/how-a-ruling-on-gay-and-transgender-rights-may-help-the-climate.html.

[283] Vivek Ramaswamy, Woke, Inc. 247-48. Ramaswamy attributes this novel application of Bostock to Professor Jed Rubenfeld of Yale Law School. See id. at 253.

[284] Nicole Berner & Monica Jin Joo Wilk, The Moral Arc Bends Toward Justice: Toward an Intersectional Legal Analysis of LGBTQ Rights, ScotusBlog (June 16, 2020), https://www.scotusblog.com/2020/06/symposium-the-moral-arc-bends-toward-justice-toward-an-intersectional-legal-analysis-of-lgbtq-rights/.

[285] See Bostock, 140 S. Ct. at 1755-56 (Alito, J., dissenting).

[286] Id. at 1737 (2020) (majority opinion).

[287] Goldhill, supra note 22.

[288] 20 U.S.C. § 1681(a).

[289] Aryn Fields, Human Rights Campaign President Celebrates One-Year Anniversary of Supreme Court Bostock Decision, Hum. Rts. Campaign (June 15, 2021), https://www.hrc.org/press-releases/human-rights-campaign-president-celebrates-one-year-anniversary-of-supreme-court-bostock-decision.

[290] Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, at xxvii (2012).

[291] It is wildly unreasonable to think that Justice Gorsuch had the Fly or Delphic Club in mind when he was penning the Bostock decision. Still, it bears mentioning that a young Neil Gorsuch was himself a member of the all-male Phi Gamma Delta fraternity while he was an undergraduate at Columbia University. See Annmarie Fertoli & Mary Wang, Columbia Classmates Recall Judge Neil Gorsuch’s Time in New York, WNYC (Feb. 1, 2017), https://www.wnyc.org/story/columbia-classmates-recall-gorsuchs-time-new-york-scotus-trump/. The Author invites any interested scholars to pursue further research on whether Neil Gorsuch’s sacrifice of his natural-law sympathies for “the alchemy of ‘textualism,’” see Hadley Arkes, Conservative Jurisprudence Without Truth, First Things, (July 20, 2020), https://www.firstthings.com/web-exclusives/2020/07/conservative-jurisprudence-without-truth, in Bostock was merely an elaborate conspiracy to ensure the continuation of lively fraternity parties across the country. The Author is skeptical of this assertion but is nonetheless interested in reviewing findings to the contrary.

[292] See Wyman, supra note 281, at 61.