Professor Allen's Puzzling Motion, Part 2

When I introduced my motion, I referred to Professor Allen’s motionas “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 it 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) refusedto 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. In modern times no one has been expelled, and students have only rarely been dismissed.)

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 defin