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Kappa Alpha Theta Fraternity, Inc. v. Harvard University

United States District Court, D. Massachusetts

August 9, 2019

KAPPA ALPHA THETA FRATERNITY, INC., KAPPA KAPPA GAMMA FRATERNITY, SIGMA CHI, SIGMA ALPHA EPSILON, SIGMA ALPHA EPSILON - MASSACHUSETTS GAMMA, JOHN DOE 1, JOHN DOE 2 and JOHN DOE 3, Plaintiffs,
v.
HARVARD UNIVERSITY and PRESIDENT AND FELLOWS OF HARVARD COLLEGE, Defendants.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         This case involves claims for declaratory and injunctive relief, as well as damages, pursuant to Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 et seq., and the regulations and policies thereunder (“Title IX”), and the Massachusetts Civil Rights Act, M.G.L. c. 12, §§ 11H, 11I (“the MCRA”). Five national or local fraternities and sororities (“the organizational plaintiffs”) and three anonymous members of those organizations (“the individual plaintiffs”) have brought suit against Harvard University and the President and Fellows of Harvard College (collectively “Harvard” or “defendant”) for sex discrimination. They allege that Harvard has adopted and enforced a student-conduct policy which withholds eligibility for certain benefits and opportunities from students who choose to join unrecognized, single-sex, social organizations (“the Policy”).

         Before the Court is Harvard's motion to dismiss the complaint (Docket No. 29). For the reasons that follow, that motion will be allowed, in part, and denied, in part.

         I. Background

         A. The Parties

         Harvard is a renowned private university with both undergraduate and graduate students. As an educational institution receiving federal funds, it must comply with the requirements of Title IX which prohibits discrimination on the basis of sex in any educational program or activity receiving such assistance.

         Plaintiffs Sigma Chi and Sigma Alpha Epsilon (“SAE”) are respected national fraternities and Sigma Alpha Epsilon- Massachusetts Gamma (“Mass Gamma”) is SAE's local chapter. All three of those fraternities have members who are students at Harvard. Plaintiffs Kappa Alpha Theta Fraternity, Inc. (“Theta”) and Kappa Kappa Gamma Fraternity (“Kappa”) are prominent national sororities, neither of which currently has members who are students at Harvard. John Does 1 and 2 are members of all-male organizations at Harvard who are currently subject to the Policy at issue. John Doe 3 is also a member of an all-male organization at Harvard but, as an upperclassman, is not subject to that Policy.

         B. The Policy

         In May, 2016, after extended debate among interested parties on campus, Harvard announced a new policy which provided that

[f]or students matriculating in the fall of 2017 and thereafter: any such students who become members of unrecognized single-gender social organizations will not be eligible to hold leadership positions in recognized student organizations or athletic teams . . . [and] will not be eligible to receive College-Administered fellowships [including the Rhodes, Marshall and Mitchell Scholarships which require the University's endorsement].

         Harvard declares that the Policy is necessary to promote its values of inclusivity and non-discrimination which are “essential to its pedagogical objects and institutional mission.” The Policy applies prospectively, beginning with students who matriculated in the fall of 2017. It does not prohibit students from joining single-sex organizations nor does it regulate the activities of those organizations. It applies only to students who choose to become members of such organizations and applies equally to men who join all-male organizations and women who join all-female organizations. The organizational plaintiffs are all considered unrecognized, single-sex organizations under the Policy.

         The organizational plaintiffs (some of whose members are subject to the Policy) allege that it is part of a broader campaign of intimidation and coercion against students who join single-sex, social organizations, specifically fraternities, sororities and so-called “final clubs”. They assert that Harvard has singled out students who join such organizations and has criticized them in University-wide letters, emails, reports and media articles. Harvard administrators have purportedly suggested that 1) students could be expelled for joining such organizations, 2) men who join all-male social organizations are more likely to engage in sexual violence, misogyny and bigotry and 3) women who join all-female social organizations only do so to cope with their exclusion from all-male organizations and that those clubs otherwise have no value. A month before enacting the Policy, the Dean of Harvard College allegedly expressed to staff at Harvard's daily student newspaper the view that students who join single-sex organizations do not act like modern men and women because they exhibit

behaviors and attitudes . . . at odds with the aspirations of the 21st century society to which the College hopes and expects our students will contribute.

         Plaintiffs assert that students who join unrecognized, single-sex organizations are harmed as a result of the Policy because they are forced to forego valuable leadership and postgraduate opportunities which can impact future professional opportunities. Those students have purportedly suffered emotional and reputational harm and embarrassment as a result of the stigma produced by Harvard's alleged campaign against fraternities and sororities. The organizational plaintiffs claim that they, in turn, have been injured because the Policy has made it more difficult for them to recruit and maintain members and to raise money. Indeed, Theta and Kappa have both closed their Harvard Chapters allegedly as a result of the Policy.

         C. Procedural History

         In December, 2018, plaintiffs filed a complaint in this Court alleging: 1) disparate treatment on the basis of sex in violation of Title IX (Count I); 2) associational discrimination on the basis of sex in violation of Title IX (Count II); 3) gender stereotyping in violation of Title IX (Count III); 4) discrimination on the basis of anti-male bias in violation of Title IX (Count IV); and 5) interference with plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by way of threats, intimidation or coercion in violation of the MCRA.

         In conjunction with their complaint, plaintiffs also filed a motion to permit the individual plaintiffs to proceed under pseudonyms and for a protective order to protect their identities. In January, 2019, this Court entered an Order (Docket No. 25) allowing the individual plaintiffs to proceed, for the time being, under pseudonyms, with the understanding that, if the case proceeds beyond the motion to dismiss stage, they will be required to reveal their identities.

         In February, 2019, Harvard filed a motion to dismiss the complaint. It contends that the organizational plaintiffs lack standing 1) to sue on their own behalf because the Policy does not apply directly to them and 2) to sue on behalf of their members because they fail to satisfy the requirements for associational standing. It also submits that John Doe 3 lacks standing because, as an upperclassman, the Policy does not apply to him and the alleged injury to his ability to recruit or fundraise is derivative from the alleged harm to his organization. Furthermore, Harvard maintains that, to the extent any of the plaintiffs has standing, he or it has failed to state a claim 1) for violation of Title IX because the Policy applies equally to both male and female students and thus does not discriminate on the basis of sex and 2) for violation of the MCRA because students subject to the Policy knowingly and voluntarily accepted it in deciding to attend Harvard and thus have not been threatened, intimidated or coerced within the meaning of that statute.

         The organizational plaintiffs respond that they have established standing both on their own behalf and on behalf of their members and that Harvard has conceded that John Does 1 and 2 have standing as students currently subject to the Policy. Plaintiffs also assert that the equal application of the Policy to both male and female students is irrelevant for purposes of Title IX because it, nevertheless, treats individual students differently based on their sex. Moreover, they aver that Harvard discriminates against students based on the sex of those with whom they associate and based on impermissible gender stereotypes. Finally, plaintiffs contend that the Policy and alleged campaign against fraternities, sororities and “final clubs” constitutes actionable economic coercion that is sufficiently particularized and serious for purposes of the MCRA.

         II. ...


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