Thursday, September 14, 2017

Motion update

For those who are just coming up to speed, Harvard Magazine published a good summary of the situation at the time I filed the new version of the motion about club memberships.
The Crimson reports, on authority of a member of the Faculty Council, that the motion will be discussed at the October meeting of the Faculty, but not voted until the November meeting. This may or may not be true; I can't confirm it, since these matters are decided by the Docket Committee, which has not communicated any such decision to me. (The December 2016 FAS meeting was adjourned without a vote in a rather odd way, so the signatories to the motion are watching these procedural decisions rather closely this time.)
The Crimson has another story of interest, about a Title IX complaint against the University in which the Final Clubs are featured prominently. This news tends to support the theory that what got the ball rolling toward the mess we are in was fear that Harvard might be legally liable for a tort that happened at a final club. That would explain, for example, the insistence that the final decision about the clubs is for the president to make rather than the Faculty, in spite of the unambiguous language of the Statutes (she would be acting as a fiduciary, would go the logic, notwithstanding the assignment to the Faculty of responsibility for the discipline of students). It would explain the early public involvement of the Senior Fellow, who traditionally has not weighed in on questions about student parties, and the "regular" discussions taking place about final clubs between the College administration and the Corporation.  It would also explain the otherwise peculiar decision, even in the recent harsh version of the proposals, that the ethnic fraternities and sororities would be left alone, in spite of being doubly "exclusionary," on the basis of both gender and ethnicity. As they draw from several local universities, Harvard may have calculated that the risk of liability was small for events that might happen at them.
Connecting these dots suggests how the ball may have gotten rolling, but it is not in meant to question the sincerity of those who support the sanctions for other reasons. Whether or not this speculation is correct, I would fully support Harvard taking strong action to limit its risks, and protect students' safety to boot. (Though if risk mitigation really got this started, I wish the Corporation had been equally risk-conscious back in 2008, when it lost billions from the endowment overnight.)
On the other hand, the Title IX origin would make a great deal of what has been said over the past year rather incomplete and beside the point, if not disingenuous, and the actual solution proposed both overbroad and not even sure to include the original target in its kill zone. (Is the champagne being chilled in anticipation of Harvard's glorious victory over the KKG sorority?) It would also be worrisome in suggesting that the Corporation's interpretation of University governance is that the president has limitless authority to make any kind of decision over matters in which the University can be said to have any risk.
One more news item. The President has some words about the motion in her opening of term greetings. I will leave it to readers to make up their own minds about her characterization of the matter under discussion. But I would note that it is fairly unusual, and perhaps unprecedented, for the president to speak so strongly in public against a motion to be debated and voted by the Faculty at a meeting over which she will preside.

The first Crimson story linked above describes a one-pager I shared with the Faculty Council; I include it below for your information.


Harvard College shall not discipline, penalize, or otherwise sanction students for joining, or affiliating with, any lawful organization, political party, or social, political, or other affinity group.

Explanatory note. This motion is intended to give students who join or form legal clubs or similar organizations the same protections that existing policies afford to all other students.  It also secures their right of free association.  If the policy is adopted, students could not, simply because of membership in a legal club, social or political organization, be sanctioned by the Administrative Board or by the Honor Council, or deprived of any academic or extracurricular opportunity or honor for which they would otherwise be eligible.

This motion is a version of the motion submitted last year in response to the USGSO policy announced in May of 2016. When that policy was reconsidered, the motion was withdrawn. Now that the recommendations of the Clark-Khurana committee have proven to be even more expansive than the original proposal, it is time for the full Faculty to debate and decide the question of principle: should students ever be punished for joining private organizations?

To recap very briefly the main points raised in support of the motion last year:
  • Students should be punished for their acts, not their memberships.
  • The right of free association, like the right of free speech, should apply to students as it applies to all US citizens.
  • Harvard has never in modern times blacklisted any organization by prohibiting membership.
  • Harvard specifically prohibits even asking faculty candidates about club memberships.
  • In the 1950s, Harvard famously stood behind the right of faculty to join publicly unpopular but legally constituted organizations.
  • The Verba report on ROTC (written while ROTC banned gay students) stated the principle explicitly: To punish students for joining a discriminatory organization would be “a paternalistic policy inconsistent with Harvard’s general approach.” The Verba principle is in diametrical contrast to the view expressed last year that “of course we can discriminate against people who discriminate.”
The motion has been reworded to drop the term “discrimination,” which some found confusing or objectionable, and to use direct language instead. Further relevant discussion appears on the FAS Wiki.

In response to last year’s motion, some protested that bringing the McCarthy era into the conversation was alarmist, as the policy then proposed was narrowly targeted and could not possibly be a step down any slippery slope. The fact that the new proposal does indeed take several steps down that slope confirms that a broad statement of principle is needed.

It is urgent that the Faculty’s voice be heard corporately, not via hand-picked representatives. When the USGSO policy was announced in 2016, the president accepted it simultaneously. When the Implementation Committee report was issued last year, Dean Khurana accepted most of its recommendations simultaneously. There has been no indication that the Faculty will be asked to vote on the final policy. The president, the deans, and the Faculty itself need to know the Faculty’s view on the fundamental question asserted by this motion.

This motion has twenty-one signatories, including all twelve who signed last year’s version.

Harry Lewis, 12 September 2017

Tuesday, August 22, 2017

Guest post about the social club policy by Professor Richard Thomas

For now I would just associate myself with Daniel Gilbert's post. While I appreciate the time colleagues and staff members on the USGSO have put into the process, I find myself in complete disagreement with this recommendation, and consider David Haig's dissent the only reasonable response to the matter. By the Statutes of the University this issue belongs with the FAS faculty, and the attempt to finesse that reality is to be resisted in the most vigorous ways. Otherwise, why bother turning up to faculty meetings, standing for Faculty Council, doing anything but teach, advise students and write. If this maneuver works, I'll certainly save myself the monthly 2 hours.
More importantly the notion that we would forbid students from joining clubs that are not involved in illegal activities is odious. I hold no brief for these off-campus (they are) Final Clubs, but the idea that we would dismiss a student for belonging to them is repugnant and a moment's reflection about recent and less recent history would back that up. I also don't see why fraternities and sororities should be effectively banned. What harm do they do beyond taking students away from the Houses and (soon) the Smith Center?
The trumpeting of the cases of Bowdoin and Williams–fine colleges–is not encouraging. Is that what we aspire to be? Are their locations, size, complexity, truly comparable? I also gather the reality of the Williams situation may have been slightly misrepresented. 
Finally, there may be a student death tomorrow that may be connected somehow to one of these Clubs. So far I think those have happened mostly in the Houses. If that happens it will be tragic but would not change anything. The very possibility seems to have become a weapon in the arsenal of those who want this policy to happen. I think we should all resist this sort of sophistry.
Richard F. Thomas, George Martin Lane Professor of the Classics
(cross posted with permission from the FAS Wiki)

Monday, August 21, 2017

Motion filed concerning club membership

Along with the co-signers listed below, I have submitted the following motion for the October 3 meeting of the Faculty of Arts and Sciences.


Harvard College shall not discipline, penalize, or otherwise sanction students for joining, or affiliating with, any lawful organization, political party, or social, political, or other affinity group.

Explanatory note. This motion is intended to give students who join or form legal clubs or similar organizations the same protections that existing policies afford to all other students.  It also secures their right of free association.  If the policy is adopted, students could not, simply because of membership in a legal club, social or political organization, be sanctioned by the Administrative Board or by the Honor Council, or deprived of any academic or extracurricular opportunity or honor for which they would otherwise be eligible.

Boaz Barak
Shaye J. D. Cohen
Kathleen Coleman
Grzegorz Ekiert
James Engell
Benjamin M. Friedman
Daniel Gilbert
Barbara J. Grosz
David Haig
Harry Lewis
Richard Losick
Jason P. Mitchell
Michael Mitzenmacher
Eric M. Nelson
Steven Pinker
Hanspeter Pfister
Wilfried Schmid
Margo Seltzer
Richard Thomas
Helen Vendler
James Waldo

Guest post by Boaz Barak on the social club policy

I thank the committee for their work, but find it unfortunate that two distinct issues have been entangled in this discussion.
One is the issue of promoting Harvard's "values" and in particular diversity and inclusivity, and the other is the issue of student safety.
Regarding the former, I find the suggested policy excessive. Between classes, the houses, and Harvard-sponsored extracurricular activities, we have enough access to the students to educate them as citizens and future leaders. We do not need to control their every waking moment. There is enough work for us to do to lead by example in promoting diversity on campus (in particular in fields such as computer science).
Student safety is paramount - we can't educate students if they are unsafe. Alcohol abuse and sexual assault are real issues that we should combat. Final clubs are not inherently unsafe (for example, to my knowledge, such concerns have not been raised regarding the all-female clubs). Rather it is the *actions* of *some* clubs that are problematic. I think Harvard can and should discipline students for harming fellow students or putting them at risk, whether on or off campus. (For example, by organizing a party in which students are encouraged to drink to excess and sexual assault takes place.) Indeed, in some cases Cambridge PD should be involved as well. But the key point is that we discipline students for their actions and not their associations.
Finally, the issue of sexual assault is far too important to be used as a pretext or vehicle for promoting grand social objectives, no matter how positive. The task force on the prevention of sexual assault had a great number of important recommendations, most of which had nothing to do with final clubs (which, as their report stated are "not the exclusive or even the principal cause of sexual assault").  I find it unfortunate that this issue has become the "tail that wags the dog" and a distraction from the efforts to address what is a real and urgent safety concern.
Boaz Barak, Gordon McKay Professor of Computer Science 
cross-posted with permission from the FAS Wiki

Thursday, August 17, 2017

Guest Post by Professor Daniel Gilbert on the social club policy

This well-intentioned attempt to promote values that the Harvard community generally shares, such as egalitarianism, tramples on other values that the Harvard community generally shares, such as individual responsibility, freedom of choice and assembly, and so on. The USGSO Committee's letter to the faculty states "Core to our stated aspiration is the need to diminish the role of final clubs, fraternities and sororities and/or equivalent exclusive-membership private social clubs on Harvard's campus." If the last three words of this sentence were true, there would be few objections to the proposal. But they are not true. The committee proposes to punish students for engaging in lawful behavior off campus and not on it. In so doing, the proposal abrogates fundamental rights enjoyed by all American citizens, and treats our students like children whose behavior must be coerced rather than as adults who can and should be making decisions for themselves. There are a host of other things Harvard could consider doing to achieve its goals without resorting to draconian and paternalistic sanctions, and yet sanctions are the first and only thing it has ever tried. In addition, as Prof. Engell noted last year during a faculty meeting, Harvard's 5th statute clearly states that decisions about disciplinary matters rest with the faculty, and not with the President. The faculty, and only the faculty, should decide whether to accept the USGSO Committee's proposal.

Daniel Gilbert
Edgar Pierce Professor of Psychology

Cross posted with permission from the FAS Wiki

Saturday, August 5, 2017

Guest post about governance by Professor James Engell

This comment addresses issues of University governance.  The current policy of discipline (“sanctions”) for students entering the College this fall was never voted by the Faculty and cannot be regarded as legitimate.  Any policy regarding discipline (“sanctions”) or prohibitions against certain behaviors should be voted by the Faculty.  This is clearly stipulated by the University Statutes (especially the 5th and 11th Statutes).  This includes any determination to phase out student membership in USGSOs (or other organizations) and effectively to prohibit such membership as a precondition of being a member of the College.  No administrator—Dean or President—has the inherent statutory power to make or change any policy of discipline or sanction.  This power belongs to the Faculty.  If the Faculty permit this particular power to be exercised by some other body or by any administrator without expressly delegating it, then the Faculty will forever cede an important power and will diminish their own standing to effect or change any policy.  Furthermore, any policy that has not been voted and adopted by the Faculty, and thus does not appear in the Handbook for Students, would almost surely be subject to legal challenge if that policy were enforced.  Despite this, even this current website declares, "The President will make the final decision."  This is not shared governance.  Such an assumption of presidential power further diminishes the power of the Faculty.  As such power is further eroded, members of the Faculty will inevitably take less interest in matters that they feel–that they are told--they cannot decide.  Already many colleagues believe that Faculty meetings are too orchestrated and consistently assume a preordained outcome.
The Committee on Unrecognized Single-Gender Social Organizations (the committee) co-chaired by Dean Khurana and Professor Clark is nota faculty committee and should not be called a faculty committee.  It is an administration-faculty-student committee.  (Or it may be called, as the ROTC committee of similar composition was called in the early 1990s, simply a committee.)  I have never heard a committee with such a composition ever before referred to as a “faculty committee.”  Calling it that gives the false impression that all or almost all its members belong to the teaching faculty.  I believe that the report of the committee never refers to the committee itself as a faculty committee.  Of twenty-seven members, eleven are tenured faculty, two are untenured faculty, two Allston Burr assistant deans, six are administrators appointed by various deans or other administrators, and six are students apparently selected by administrators and not elected or selected by their peers as representatives.  This mix of members may be desirable.  However, a committee so composed is not a faculty committee.  In fact, teaching faculty are in a minority unless the Allston Burr assistant deans are counted as teaching faculty (the masthead of the committee does not indicate a teaching appointment for either).  Even if they are counted, then Faculty are in the barest majority.  Despite all this, according to the Crimson (July 21, 2017), a spokesperson for Dean Khurana, Rachael Dane, in an email to the Crimson referred to the committee as “the faculty committee.”
As reference to my remarks at the December 6, 2016, FAS Faculty meeting will indicate, the current policy of sanctioning students, which is a policy of discipline, cannot be regarded as institutionally legitimate.  By extension, despite its good will and work, the Implementation Committee is also illegitimate.  All disciplinary policy and its enforcement comes directly by a vote of the Faculty unless the Faculty delegates it to some other body or person by a vote, or unless in very rare cases there is strong evidence that a student has violated the University policy on Rights and Responsibilities.  That is what the Fifth and Eleventh Statutes of the University clearly and unambiguously state.
The Faculty have never taken a vote on the current policy.  The Administration never presented that policy to the Faculty for a vote, despite several opportunities.
The recommendation of the committee as issued constitutes a form of discipline, too; or if it is argued that it does not, then it forms a sweeping change in the manner in which the College will police and dictate the social lives of students and take action against students (discipline them) if they violate the policy.  Such a change should be voted by the Faculty.
For Dean Smith to say in his charge to the committee that, “Any recommended change to our current policy must be approved by the President of the University” is to abrogate without warrant or precedent whatever mode of shared governance we enjoy.  It also further ensconces the “current policy” as legitimate when it is not.
Dean Smith also stated at a Faculty meeting this spring that the manner in which we are proceeding is what “we have always done.”  With forty years experience on the Faculty and attendance at nearly every FAS Faculty meeting during those decades (when I was not on leave), as well as membership in over three dozen faculty committees (including Faculty Council, twice, and its Docket Committee), as well as committees with students and administrators as equal voting members, including the Committee on College Life in the 1980s at the time when the University and the male final clubs parted ways, I disagree.
In press reports late in 2016, Senior Fellow Lee is quoted as saying, “I think rather than getting into a struggle over who has the right to do what, I think what [Faust] said is we have a shared responsibility to solve these issues.  I think the first major step was the policy,” meaning the current policy of disciplinary sanctions.
The Senior Fellow of the Corporation, a lawyer, thus stated that it is not worth deciding who, or what body, in the University, has the right to do what.  Taken at face value, imagine what that statement means.  He does not reference the Statutes.  They do not favor his view.  The Statutes do not struggle on this matter.  The Statutes are clear.  Only the Faculty as a body has the power to act in this matter.  Yes, we have a shared responsibility to solve these issues.  Yet, the actual power to discipline—“power” is the word in the Statues—is vested in the Faculty.  Mr. Lee thinks the first step should be certain disciplinary sanctions, and that is his opinion.  But such power unambiguously rests with this Faculty.  Otherwise, the Faculty might as well never meet again and simply do whatever the Dean, the President, and the Senior Fellow of the Corporation say should be done, no matter what issue is at stake.  Not even power over the curriculum is granted Faculty privilege in the Statutes equal to the power of the Faculty to determine discipline.
Mr. Lee said, “I think rather than getting into a struggle over who has the right to do what . . . we have a shared responsibility to solve these issues.” Yes, we have that responsibility.  So, why worry who or what body or person has the right to act or to set any policy?  In a weird mirror image of what sometimes—and perhaps even now—occurs in our national polity, why indeed worry?  Why not let the executive do what it wishes—especially if the executive deems that it alone has ultimate power to determine how to “solve these issues”?  As Dean Smith told the committee, “Any recommended change to our current policy [itself a policy never voted upon] must be approved by the President of the University.”  Who cares about precedents, process, Statutes, or the constitutional fabric?  Why not summarily strip flag burners of citizenship and students of fellowship eligibility?  Why bother with written Statutes and honored principles?  Why deliberate?  Why vote?
It is said by some that a vote will come—though perhaps it will be cast procedurally as simply a vote on relatively brief language, perhaps involving multiple changes, in the Handbook, and reserved, as such a vote usually is, for the last FAS faculty meeting of the year, May 2018.  What we need is a vigorous Faculty debate on the current policy of sanctions and on the recommendations of this committee.  We need that debate sooner rather than later.
Town Halls and meetings outside regular Faculty Meetings are no substitute for Faculty debate in Faculty meetings.  Town Halls may be useful, but Town Halls also permit one to say that Faculty have been consulted and heard without actually calling anything to a debate or vote of the Faculty.
The Administration has done much maneuvering to keep Faculty votes from occurring.  Rules of Faculty Procedure were violated in the December 2016 meeting more than once.  That meeting was even adjourned contrary to the Rules of Faculty Procedure.  Professor Haig’s motion this past spring was referred to the committee in a manner extremely rare and only at the behest of the Docket Committee.  His motion concerning oaths (affirmations, pledges—a part of the recommendations of the committee) pertains to the actual though illegitimate current policy, which remains in force, but the committee appears to fail to address directly Professor Haig’s motion in any context other than, it seems, to advocate that the recommendation of the committee not be embodied in an explicit pledge or oath but in language contained in the Handbook.
Finally, if the account of the committee votes and voting procedure given in the Crimson (July 21) is accurate, then there is no basis to believe that a majority or even the largest plurality of the committee voted in favor of what was stated as the recommendation of the committee.  This is deeply disturbing.  Even if one eliminates the four options that received no votes, voting on 6 options when several have significant overlap, and permitting each committee member to vote for more than one option though not at the same time stipulating the exact number of votes that each committee member must cast (two, for example, or three), produces unclear results.  At best the process of voting was so irregular and botched as to be inconsequential or nugatory, giving only the most general impression of committee views; certainly, the process of voting in the committee cannot be regarded as determinative nor as a genuine measure of the varied views of the committee members.  If it is argued that it was “approval voting,” then committee members should have been told that.  And, despite its advocates, approval voting cannot measure the degree of preference that members may have between one option they view as preferable to the status quo versus another option they also view as preferable to the status quo.  At worst, the process of voting may have been designed to obfuscate and make elastic the very act of voting itself in order to permit the declaration of a recommendation that had been determined beforehand by one or both the co-chairs of the committee who knew that such a recommendation had at least some support.  Moreover, neither of the two options that received the most votes became the recommendation of the committee.
James Engell

Professor, FAS

(Updated August 17, 2017 to match final version of the text posted to the FAS Wiki)