After Harvard issued new restrictions on students who join single-sex social groups, opponents raised the possibility of challenging the university in court on the grounds that Harvard violated the right to free association.
“[L]itigation is certainly not off the table,” Richard Porteus Jr., the graduate board president of the Fly Club, told The New York Times. Porteus also told The Wall Street Journal that the group would spend “serious money on a legal challenge.”
But experts said a legal challenge against Harvard would have to clear a high hurdle: Harvard University is a private institution. Therefore, the U.S. Constitution’s first amendment protections, such as the freedom of association, don’t apply.
“I’m not really sure what the basis of a legal challenge would be because Harvard is a private university,” said Erica Goldberg, the Climenko Fellow and Lecturer on Law at Harvard Law School. “I don’t see any way around it.”
“Harvard University does not have to comply with the Constitution in terms of speech with its students or staff the way University of Massachusetts would,” said George Washington University Law professor John F. Banzhaf III. “Harvard can do things in free speech that a public university cannot.”
The legal question could be relevant given the harsh backlash to Harvard’s new policies, which primarily target its exclusive all-male final clubs. For months, Harvard has pressured the clubs to accept women into their ranks, but most of them have refused.
On Friday, administrators announced that students who are members of single-sex unsanctioned social organizations would be banned from leadership positions on campus and would not receive recommendations for prestigious scholarships.
The new rules sparked campus protests and criticisms from the civil rights group Foundation for Individual Rights in Education (FIRE).
“Harvard’s decision simply demonstrates that it is willing to sacrifice students’ basic freedom of association to the whims of whoever occupies the administrative suites today,” FIRE co-founder Harvey Silverglate said in a statement.
But even those who oppose the new policy admit that opponents have little standing for a constitutional challenge.
“Of course Harvard is a private organization, so they can do whatever they want, and as a legal matter, I agree that they should be able to do whatever they want,” Sasha Volokh, an associate professor at Emory Law School, wrote in The Washington Post.
In a statement, Harvard College spokeswoman Rachael Dane defended the restrictions.
“These new policies will not prevent undergraduates from choosing their own paths while at Harvard,” Dave said. “We are not seeking to regulate the internal affairs of the unrecognized social organizations; they retain the authority to set their membership criteria, even as the College will continue to urge them to adopt inclusive and non-discriminatory policies.”
Although Harvard is private, it does accept federal funding. Goldberg, the Harvard Law School lecturer, said opponents could try to argue that those federal funds mean Harvard is effectively a public institution and therefore not allowed to restrict first amendment rights.
“But that is a losing argument, I think,” Goldberg said.
Opponents could also try to say that Harvard is violating its contract with students by making this change without telling them beforehand. But the new restrictions on single-sex group membership only apply to next year’s freshmen, so the breach of contract wouldn’t apply.
In the end, the legal challenge against Harvard faces a formidable uphill battle.
“They’re a private school,” Banzhaf said. “They can do whatever they want, provided the students are aware of it.”