How far do the sanctions go?

Apologies to my regular readers for the long silence. I have been busy! I finished a discrete math textbook I have been working on for a while with my former teaching assistant Rachel Zax (now an engineer at Google). It will be out in March, published by Princeton University Press. I started on an edited collection of classic papers of computer science, to be published by MIT Press. And I’m working on a second edition of Blown to Bits with my previous co-authors plus Wendy Seltzer of the W3C.

In the meantime, the College’s sanctions regime has been challenged in two lawsuits, one in federal and one in state court. The group behind the challenge is called Stand Up to Harvard. Links to the two complaints are on this page. The state complaint is particularly interesting, because it is based in part on a specific Massachusetts statute, in Chapter 12:

Section 11H. Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured. 

Section 11I. Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages. Any aggrieved person or persons who prevail in an action authorized by this section shall be entitled to an award of the costs of the litigation and reasonable attorneys' fees in an amount to be fixed by the court.

I am not a lawyer and I have no idea what precedents exist for the application of Section 11I, but I can certainly see the argument for its relevance to this situation, in spite of Harvard’s status as a private institution.

The Chronicle of Higher Education and Mother Jones both have articles about the continuing drama (Harvard cracks down on all-male clubs, but it’s women’s groups that have vanished; Harvard’s war on single-sex clubs has opened a new battle over sex discrimination). 

From the beginning, some colleagues have suggested that I am making a mountain out of a molehill, that there is no danger of any larger infringement of students’ liberties since the sanctions policy is narrowly targeted and just aimed at killing off the Final Clubs, which everybody hates anyway. Of course it has turned out, as the Chronicle documents, that if that was the aim the policy has missed badly. (And to the friend who told me not to make a federal case out of it, it really is a federal case now.)

But here is the thing that I’ve been worried about all along. I don’t believe the actual reach of the policy is nearly as limited as the written rules suggest.

Do the sanctions have sharp edges, rendering students ineligible for certain specific distinctions and leadership opportunities if they belong to one of a specific list of clubs, but having no consequence for students who don’t seek those specific honors or are not members of any of the blacklisted clubs? Or do the sanctions have a penumbra? When Harvard administrators make a narrow ranking choice between two students for some distinction that is NOT on the official list, will their judgment be colored, explicitly or unconsciously, by the knowledge that one of the students is a member of one of the blacklisted organizations? Letters of recommendation are the obvious example. If a student is a member of a USGSO, how will the dean answer the question, “Is this student really one of your best?” for distinctions that are NOT on the official list of prizes and positions unavailable to USGSO members?

Or what if the student is not a member of any of those organizations, but is a member of some other non-Harvard organization that would fail to meet H