Harvard University is one of America’s great institutions. It is a place of scholarship, its name is renowned across the globe, and its prestige adds to American power and influence. Harvard plays a key role in the development of the American elite, where the future titans of industry, politics, and culture intermingle, learning from one another and honing their skills for their illustrious careers to come.
It is also, apparently, a place that has forgotten the virtues of free association.
That is the lesson to be learned from the Report of the Committee on Unrecognized Single-Gender Social Organizations, made public earlier this week. The background: Last year, Drew Faust and Rakesh Khurana, respectively president of the university and dean of the college, announced that any member of an unrecognized single-gender social organization would be barred from holding leadership positions in recognized student organizations — including captaincies on sports teams — and from receiving the university’s endorsement for scholarships such as the Rhodes and the Marshall. Single-gender organizations, the reasoning went, run counter to the Harvard ethos, and the time for their elimination has come. Alumni objected, members of the organizations — the vaunted “final clubs” as well as run-of-the-mill fraternities and sororities — objected, and the student body voted overwhelmingly to repeal the sanctions. A new committee was convened, presumably to tone down the heat of the edicts.
The opposite has occurred. Instead of producing a policy more amenable to the various interest groups, the committee of faculty members and a few students has recommended that the policy take an even more radical direction. If the recommendations are implemented, students will be prohibited from joining or participating in “final clubs, fraternities and sororities, or other private, exclusionary social organizations that are exclusively or predominantly made up of Harvard students.” The purview of the edicts has expanded, from single-gender social organizations to all of them, and the prosecutorial power has increased: Those believed to be in violation of the policy will be hauled before the disciplinary board, not merely banned from the Rhodes scholarship.
That this constitutes an open attack on the freedom of association is obvious. If enacted, the policy will prohibit students from forming private clubs for the sake of discussion and enjoyment, among less salutary things. Doing so will carry the risk of serious censure from the university. The defense to be offered is the classical one, dating back to John Stuart Mill: Insofar as the freedom of association is an outgrowth of and accessory to the freedom of speech, it is a fundamental component of the university’s proper search for truth.
The typical response to the freedom-of-association argument is that the First Amendment, which codifies the principles in our constitutional regime, applies to the government, not to private actors, and that Harvard is free to impose whatever restrictions it likes on the conduct of its students. That is correct, as far as legal analysis goes. It would be fanciful to use the First Amendment as the basis of a legal case against Faust and Khurana. But this does not mean they have not violated one of its core principles, which aims to prescribe the ideal social ethic on the vast tapestry of American life.