Final Clubs Have No Immediate Plans to Sue Harvard

UPDATED: April 12, 2018 at 3:40 a.m.

Harvard’s final clubs are not preparing to file suit against the University for its social group policy any time in the near future and view legal action as a last resort, multiple club affiliates said Monday.

Harvard’s policy, which took effect with the Class of 2021, bars members of single-gender final clubs and Greek organizations from holding campus leadership positions, varsity athletic team captaincies, and from receiving College endorsement for certain prestigious fellowships. Since its debut in May 2016, the policy has sparked turmoil on campus and significant backlash from members of social clubs—including a recent push by some final club graduate members to lobby Congress for legislation that could threaten Harvard’s ability to enforce the sanctions.

The Wall Street Journal reported in Feb. 2018 that some final club graduates are lobbying members of Congress in favor of the PROSPER Act, a piece of legislation—meant as an update to the Higher Education Act—that contains a provision that could force the University to choose between the sanctions and millions of dollars in research funding.

In its current form, the PROSPER Act does not apply to Harvard; final club members hope to change that by altering the wording of the legislation. Multiple leaders of final clubs said these lobbying efforts remain their main focus and that the clubs do not plan to sue the University in the next few months.

“It’s the type of thing that you allow for the possibility but you don’t plan for its being an eventuality,” said Richard T. Porteus Jr. ’78, the graduate president of the all-male Fly Club. “I know litigation is always the sexiest thing to go for [but] the legislative remedy is of most promise to us.”

He added the clubs consider the lobbying effort the “most prudent and effective thing” to do in the “near term.”

Harvey A. Silverglate, a lawyer who has represented the Fly Club since the group retained legal counsel in Sept. 2016, wrote in an email that litigation was “always seen as a last resort.”

Silverglate wrote that the decision to sue—not yet made—will depend both on the outcome of the lobbying push and on the “details” of Harvard’s ongoing implementation of the social group policy. As part of that implementation, the College’s Office of Student Life is working to create a “new framework for governing primarily social organizations”—a framework set to be finalized next fall, Dean of Students Katherine G. O’Dair wrote in a March email to students.

Silverglate added he and his law firm, Zalkind Duncan & Bernstein, will continue to explore the possibility of litigation “just in case” the Fly Club decides that a lawsuit “becomes necessary.”

The final clubs are not alone in their efforts to oppose the sanctions; some have joined forces with various Greek organizations to form the Cambridge Coalition, a group comprising the Fly Club, the AD Club, the Porcellian Club, and the national organizations of the Sigma Alpha Epsilon, Sigma Chi, and Delta Kappa Epsilon fraternities. This group has engaged the law firm Arnold & Porter Kaye Scholer LLP to help conduct its lobbying efforts, according to public filings.

The Yale Daily News reported Monday that the final clubs and Greek organizations comprising this group are preparing a lawsuit against Harvard. Citing speculation from one anonymous source, the Yale Daily News reported that—unless lobbying efforts are successful—the coalition will likely file suit in the next two months.

Multiple final club affiliates said Monday that this timeline is incorrect.

The coalition does not have a definite sense of when it will consider legal action if lobbying does not succeed, but it will almost certainly not be within the next two months, Porteus said.

“As far as the timeline goes, no, we don’t know exactly how things will unfold,” he said. “So, we’re prepared to stay the course.”

Congress must reauthorize the Higher Education Act—legislation that the PROSPER Act would renew—approximately every six to eight years. Porteus said this gives final clubs and Greek organizations an “opportunity to influence” the terms of the act so as to cancel Harvard’s sanctions.

Heather M. Kirk, chief communication officer for the North-American Interfraternity Conference, wrote in an emailed statement Monday that the group plans to fight the sanctions however possible.

“We will vigorously defend students’ right to choose the organization that best suits their needs and are actively weighing all options—including legal and legislative routes—to protect students’ rights,” Kirk wrote.

This article has been updated to reflect the following correction:

CORRECTION: April 12, 2018

Due to an editing error, a previous version of this article incorrectly identified the firm retained by the Cambridge Coalition. It is Arnold & Porter Kaye Scholer LLP, not Arnold & Porter Kaye Scholar.

—Staff writer Caroline S. Engelmayer can be reached at caroline.engelmayer@thecrimson.com. Follow her on Twitter @cengelmayer13.

—Staff writer Michael E. Xie can be reached at michael.xie@thecrimson.com. Follow him on Twitter@MichaelEXie1.