Wednesday, October 11, 2017

Professor Allen's Puzzling Motion, Part 2

When I introduced my motion, I referred to Professor Allen’s motion as “astonishingly sweeping.” Yet I did not appreciate how sweeping it was until a student asked me a question. Before I report her question, let’s back up and parse the motion as best we can.

Opinion is divided among my colleagues about the significance of the Allen motion. Some think it is tautologous, therefore meaningless, and therefore harmless. Others see it as threatening and disingenuous. Given the confusion, after more than a year of debate and with an impending vote, it is safer to respond to the motion’s intentions and to assume that the text is just badly drafted—in spite of being a third draft.

And in spite of having been supported by a 17-0 vote of the Faculty Council. That vote suggests that the Council may have thought the motion uncontroversial. But that only adds to the puzzle, since Dean Smith, who chairs the Council but is not a voting member of it, seems uncertain what its impact would be:
“Personally I don’t see all the clear next steps,” Smith said of Allen’s motion. “I’m not a lawyer, so I’m not even going to try to play one here.”
What sort of group dynamics resulted in a 17-0 vote by a faculty committee whose chair won’t opine on the motion’s meaning?

Adding to the irony of an ambiguous motion being voted up 17-0 by the Faculty Council is that the same body (with the same chair and significantly overlapping membership) refused to take a vote on the motion I filed last year, “citing uncertainty about whether a vote for the motion would impact the policy,” as the Crimson paraphrased the body’s reasoning.

In any case, let’s assume that the intention is, as Professor Allen explained in supporting materials, to require all student organizations to which Harvard students belong to adhere to the nondiscrimination and other rules Harvard requires of recognized student organizations. A student belonging to a noncompliant organization would have three choices: force the organization to change, resign from it, or be “suspended or expelled.” (Professor Allen uses the term “expel,” so I too am using it and its cognates. Again, it is unclear whether what she says is what she really means—in Harvard parlance, to “expel” is more severe than to dismiss, which is more severe than requirement to withdraw. In modern times very few students have been expelled or dismissed. Expulsion is the equivalent of capital punishment--permanent separation with no possibility of return.)

The motion uses the Massachusetts anti-hazing statute to define “student organization.” That criminal statute applies to
every student group, student team or student organization which is part of such institution or is recognized by the institution or permitted by the institution to use its name or facilities or is known by the institution to exist as an unaffiliated student group, student team or student organization.
That broad definition is of course meant to hold colleges’ feet to the fire. I am not a lawyer either, but it’s plainly an anti-hazing statute, not a nondiscrimination statute. It says that colleges have to communicate with off-campus fraternities and the like. In fact, communication is all the statute actually requires colleges to do: to inform the organizations of their responsibilities under the law, to inform all students of the statute, and to attest to the Commonwealth that it has done so.

Professor Allen’s motion puts this category to an entirely different use: to force Harvard’s nondiscrimination rules on them. That is why the Allen motion is such an astounding assertion of power over private associations, far beyond anything Dean Khurana or the Clark-Khurana committee proposed. As I observed in my previous blog post, it would cover ROTC. Indeed, ROTC is exactly the sort of organization the state might want warned about hazing. The statutory definition would also cover the interuniversity fraternities and sororities, including the ones to which many African-American and Hispanic students belong. Again, it makes perfect sense that the anti-hazing statute would apply to them—if we accept the intent of that statute as legitimate, then such organizations and the student bodies from which they draw their members shouldn’t miss out on those warnings just because the students aren’t exclusively drawn from one school.

Like it or not, the definition of “student organization” in the anti-hazing statute makes sense for an anti-hazing statute. But that definition has no rational applicability to the membership policies of organizations Harvard students join. By what legal or ethical reasoning can that definition be used to threaten their student members with expulsion if the clubs they join aren’t co-educational?

And so to the student’s question. I was asked about the impact of the Allen motion on the Harvard Knights of Columbus and the Harvard Daughters of Isabella. Until I got the question, I had no idea these organizations even existed. They aren’t recognized student organizations, and indeed they run afoul of several of the requirements for recognition. They are single-sex organizations. They are under outside control. They may even impose a religious test on their members. They use the Harvard name, probably without permission. In compliance terms, they are worse than final clubs.

Will the Faculty of Arts and Sciences, by passing the Allen motion, assert its authority to force the Knights of Columbus and the Daughters of Isabella to go co-ed, and to expel their members if they do not?

Doubtless there are other student organizations which will unexpectedly fall under Harvard’s authority if the Allen motion passes. Harvard students are both diverse and creative. They are constantly forming new groups, recognized and unrecognized, in response to common interests and commitments.

If the text of Professor Allen’s motion is not further revised as such absurdities become apparent, those supporting the motion may point to the vague language about writing rules that will balance freedoms and rights. But that would simply authorize the administration to use its best judgment to decide whether to sanction individual clubs and organizations, without any unambiguous direction from the faculty about the meaning of its standards of nondiscrimination. The way out of this snarl is not to get into it, which is the idea behind my motion.

In retrospect, the Verba report now seems such a masterpiece. It took Harvard’s nondiscrimination rules seriously, and concluded they applied even to ROTC. Some of us gasped at that, but its logic was inescapable. But the report also recognized the illogic and illiberality of punishing student members for what Harvard might regard as an organization’s shortcomings. It combined moral clarity with humility. Not so the Allen motion, which lacks both.

(Corrected 10/14 as to the use of expulsion in response to a comment.)


Monday, October 9, 2017

Remarks of Professor James Engell at the October 3 FAS meeting


[These remarks were delivered from handwritten notes, not a full script. Furthermore, the Parliamentarian, literally one minute prior to the meeting being called to order, urged great brevity on the speaker personally, so some of the notes were condensed and several paragraphs crossed out, which then required ex tempore transitions. This is the best reconstruction of what was said.]
It’s good we are discussing this vexed topic today. The Clark-Khurana Committee would not exist were it not for Prof. Lewis’s motion made last December [2016], when I spoke of the statutory power of discipline resting with the Faculty.
The Clark-Khurana Committee presents a narrative both explicit and implied. Explicitly, there exist problems with some of these organizations and some new action is required. Yes. There is also an underlying narrative. It goes something like this. “Most, or many”—the Report cannot make up its mind on that score and it names no names—of these organizations are not only exclusionary in the sense of not admitting every student who wishes to join, they are places where misogyny, racism, and class prejudice are fostered and practiced. From the Report: “While the larger issue of selective membership on campus is worth further discussion, our committee’s charge was to address those groups whose members and leadership are committed to practicing discrimination against their fellow students on such bases as gender, race, and class.” Acts demeaning to women have occurred at at least a few of these clubs. The kind of racial slur mentioned in the Report is abhorrent. Some of these clubs have dues not purely nominal.
However, the Report estimates that up to one-quarter of undergraduates belong to these organizations, and more women than men. Given that first-year students don’t often belong, that pushes up the fraction to closer to one-third of students in sophomore through senior years. The Report implies that these students are undermining the educational mission of the College.
Are one-third of our students in sophomore through senior year going to private spaces to practice misogyny, racism, and class prejudice? Is that why these organizations exist and attract many students? These are the students we accept and teach and whom we graduate. The College does not require students to live in the Houses, but more than 98% of them, including more than 98% of those who join these organizations, live in the Houses and participate fully in House life. The nature of some of these organizations is evolving and for some of them quite quickly. It would be unfortunate to take a sudden and absolute action regarding these organizations.
I would ask colleagues to consider what the Report implies about these organizations, and to consider that the story of the students in these organizations is more complex and often far more benign than what the Report does imply.
James Engell, Gurney Professor of English and Professor of Comparative Literature 

Sunday, October 8, 2017

Professor Allen’s puzzling motion


Harvard Magazine gives the text of the motion Professor Danielle Allen offered at the October 3 FAS meeting:
that the policies of the Harvard College Handbook for Students for student organizations pertain to students participating in all student organizations recognized as such by the Commonwealth of Massachusetts. The Faculty recognizes that on a college campus, as in society, basic freedoms and rights can come into conflict with each other. In such situations, the faculty and administration of Harvard College shall establish policies that protect individual freedoms while upholding the educational mission of the College.
This must have seemed benign and unobjectionable to the Faculty Council, since the Council voted in favor, 17-0. (Actually, the wording of the motion was changed after the Faculty Council voted for it – the revised version was distributed on paper at the beginning of the FAS meeting. Neither of these is the draft motion included in the report of the Clark-Khurana committee. So Professor Allen has offered three versions of her motion so far; perhaps a fourth will be offered before a vote gets taken. The Faculty Council opposed my motion, 2-16, so at least one faculty member, and perhaps two, voted for both.)

What is puzzling is that in a letter to the Crimson, Professor Allen describes the actual effect her motion would have.
Its effect would be that students who join student social groups that have become co-educational and that otherwise adhere to campus policies for student organizations will not face repercussions from the administration. Students who join social groups that have not become co-educational will be ineligible to continue enrollment at the College.
I have no idea how these conclusions follow from the text of the motion. The motion gives no protection to membership in any organization, as my motion would; it simply suggests which organizations would immediately be subject to institutional control. The statement that, if Professor Allen’s motion passes, members of noncompliant student groups would be punished harshly was also made at the FAS meeting and in an FAQ. As Harvard Magazine reports,
This approach seemingly would have the virtue of bringing regulation of USGSOs under FAS’s auspices, rather than relegating the decision to the president (to which some faculty members have objected, as described above). But it leaves what to do up to the dean. As for the risks students might face if they do not comply with regular oversight and regulation, Allen’s FAQ points, briskly, to “suspension or expulsion.”
In the Crimson, Professor Allen describes this way of proceeding as a “middle way between the two poles of the argument.” Hardly.

There is nothing new in the idea that Harvard should be trying to get all single-gender clubs to go co-ed; Dean Khurana has been doing his best at that for the past couple of years, with some success. Professor Allen’s recourse to Massachusetts Law as justifying such efforts to regulate the clubs is, as far as I can tell, without teeth. Indeed, it was exactly the fact that threats from Harvard could not be enforced that led the Clark-Khurana committee to reject the earlier draft of Professor Allen’s motion. So the argument that Harvard can legally regulate the clubs doesn’t advance the ball at all, and leaves the original question: what to do if the clubs do not cooperate. Professor Allen says their members should be suspended or expelled, and suggests that her motion implies that, but it doesn’t.

Let’s read it again:
that the policies of the Harvard College Handbook for Students for student organizations pertain to students participating in all student organizations recognized as such by the Commonwealth of Massachusetts.
Yes, of course, the policies of Harvard College apply to Harvard students—to all Harvard students. The restrictive clause that follows (students participating in this or that) adds nothing to what we already know about the applicability of Harvard rules to Harvard students. The motion does not say that students may not participate in organizations that do not comply with rules governing recognized student organizations. That is, of course, the very question my motion seeks to clarify, by guaranteeing that they may.

-o-

Professor Allen seems to have couched her motion in bland language so that it will receive broad support, on the understanding that it would authorize the administration to work out the details without ever bringing anything contentious to a vote of the full Faculty of Arts and Sciences. Bland motions are dangerous. Even the unanimously voted FAS statement in favor of student body diversity has unexpectedly been cited by the president in justifying her attack on students’ freedom to join outside organizations.

The Allen motion offers a theory to justify Harvard’s legal right to regulate outside organizations—something I haven’t questioned (though others may have). So for me, the reference to Massachusetts anti-hazing statutes seems beside the point. I am not a lawyer, but it seems to me that if Harvard wants to make a rule that no member of the Bee or the Kappa Kappa Gamma may enroll, it can. My entire argument is that it shouldn’t have rules of that kind. In the particular hypothetical Professor Allen posed, in which a Harvard Pokémon Club staged cheating as an annual club ritual, she argued that all its members should be expelled. I am all in favor of throwing out cheaters, but I don’t see why some Pokémon-loving reformer who refused to go along with the crowd should get tossed too. As I have said many times, students should be punished for what they do, not for what clubs they join.

In the course of arguing that even the state sometimes steps in to regulate private organizations, the assurances in the First Amendment notwithstanding, Professor Allen makes a curious citation to support her case. (This and other documents are available here.)
[W]hen the Supreme Court handed down its 1987 decision in Rotary International, affirming California’s decision to prohibit gender-exclusive membership policies for clubs of that kind, the Court argued that “the State’s compelling interests in eliminating discrimination against women and in assuring them equal access to public accommodations. . . extends to the acquisition of leadership skills and business contacts, as well as tangible goods and services” (481 U.S. 537 [1987]: 548-549, emphasis added).
What is odd about that citation is how the Court got to the conclusion that, in the case of the Rotary Club, it could override the usual protections of free association. It was because the Rotary Club was so … inclusive. “The evidence in this case indicates that the relationship among Rotary Club members is not the kind of intimate or private relation that warrants constitutional protection,” Justice Powell states in his opinion. As the syllabus summarizes the argument,
In determining whether a particular association is sufficiently intimate or private to warrant constitutional protection, consideration must be given to factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship. Here, the relationship among Rotary Club members does not warrant protection, in light of the potentially large size of local clubs, the high turnover rate among club members, the inclusive nature of each club's membership, the public purposes behind clubs' service activities, and the fact that the clubs encourage the participation of strangers in, and welcome media coverage of, many of their central activities
To apply this to the final clubs seems to require arguing simultaneously that Harvard should regulate them because they are exclusive and can regulate them because they are inclusive! And to the extent that certain clubs are not particularly selective (some of the sororities, for example), that makes them more vulnerable to intervention by the authorities, not less.

I am, in any case, skeptical that Harvard’s interest in getting women jobs in investment banking has much to do with its insistence that the Porcellian Club go co-ed. It would be the easiest thing in the world to ramp up the support of women who wanted high-paying jobs in the financial sector; the industry would gladly help any Harvard effort to do that. No Harvard administrator has ever said that anything of the kind was an institutional priority, except when complaining about the final clubs.

There are other curious aspects to the argument for the motion, for example the relevance of the anti-hazing statute:
The law has been taken to apply to final clubs since it was introduced, and the final clubs adhere to its provisions.
Taken by whom? But yes. It’s a criminal statute. I am not surprised that the clubs acknowledge that they comply with it. It is a huge leap to suggest that this statute somehow justifies Harvard intervening in their membership practices. And to take another matter Professor Allen cites, I am also not persuaded that a Harvard rule against faculty having sex with students—a condition of an employment relationship—has any relevance to students’ club memberships.

Of course there can be such limits on individual freedoms in the context of our contractual relationship with the institution. The question is which ones Harvard should impose. The motion is dangerously vague on that substantive question, handing it off to “the faculty and administration.” Which seems to mean that another Clark-Khurana committee will make the rules, and the Faculty, corporately, will have no say.

I have from the beginning cited the Verba report and its explicit rejection of the idea of punishing ROTC students for joining what was then a discriminatory organization. It seems that we can infer how Professor Allen would want such a dilemma of conflicting freedoms and rights to be handled in the future. If Harvard is unable to persuade the government to drop its transgender ban in the military, will we expel our ROTC cadets?

So what should happen to a motion when its explanatory materials state a good deal more about its purpose and effects than does its text? It should be defeated. It is plainly intended as an alternative to my motion, and if it passes, the administration will surely use the apparatus surrounding the text to justify its harsh interpretation of the Faculty’s intentions.

-o-

One final point. The motion claims to be moderate because it limits the scope of institutional reach to student organizations as defined by Massachusetts Law. So it is meant to swat away the questions about political parties and the like.

What seems not to have been stated anywhere is that Professor Allen’s Index of Prohibited Organizations is a great deal longer than that of the Clark-Khurana Committee. For example, it would include all the ethnic fraternities and sororities. They were excluded from the Clark-Khurana list because that list was restricted to organizations that consisted mostly or entirely of Harvard students, and these organizations (the ones I know about, anyway) are joint with MIT, Tufts, BU, and/or Wellesley. (Here is a link to one of them.)

The ethnic fraternities and sororities are a piece of Harvard culture I don’t know much about. They do not turn up on police blotters or Ad Board dockets. The only time I ever hear about them is when students tell me how important their organizations are to them. They are old, some of them; W.E.B. Dubois was a member of one.

The recent funeral of Dr. Allen Counter, whose name is synonymous with inclusiveness and diversity at Harvard, ended with a moving display. About 40 of his fraternity brothers, old and young, including several senior African-American Harvard faculty and administrators, rose from the congregation, assembled in the front of the chapel, formed a ring by linking their little fingers, and gave him a solemn ritual sendoff.


I am not at all sure that Harvard understands the social structures it is seeking to destroy.