Ema R. Schumer, Crimson Staff Writer | The Harvard Crimson | April 29, 2020
Two Harvard College students suing Harvard over its sanctions against unrecognized single-gender social groups will be allowed to move forward with their lawsuit using pseudonyms, a federal judge ruled Tuesday.
The students’ attorneys filed an April 17 motion claiming that “crucial new facts” about whether the students are in violation of the sanctions policy justified their request for anonymity in the lawsuit. The motion did not detail what those new facts are and Harvard’s lawyers did not protest the motion.
The two students, who are members of all-male social groups at Harvard and are listed as “John Does 1 and 2” in court records, are the only individual plaintiffs in the lawsuit. They are joined by other plaintiffs including the international parent organizations of two sororities and two fraternities, as well as the Harvard chapter of Sigma Alpha Epsilon.
The groups and the students first filed suit against Harvard in December 2018, alleging that the University’s sanctions illegally discriminate against them on the basis of gender.
Harvard imposed sanctions in 2016 on members of single-gender Greek organizations and final clubs, barring those students from accepting fellowships, athletics captaincies, and leadership positions in extracurricular groups. The sanctions, which first applied to the Class of 2021, have come under fierce scrutiny and sparked a pair of lawsuits in federal court and state court.
North American Interfraternity Conference spokesperson Todd Shelton wrote in an emailed statement that Tuesday’s ruling will enable the student plaintiffs to freely move forward with their suit.
“Today’s decision means that the courageous students standing up to Harvard by bringing this lawsuit can now participate without fear of retaliation or reprisal by their school,” he wrote.
Harvard College spokesperson Rachael Dane declined to provide comment in addition to Harvard lawyers’ previous filings in the case.
Legal experts said in interviews that it is unclear what kind of new information had convinced the judge to grant anonymity to the students.
Merrick T. Rossein, a law professor at the City University of New York, said he thinks additional information played a role in the judge’s decision to grant anonymity.
“The fact that they may be in violation and therefore subject to discipline to me would be insufficient to make this an exceptional case. There are facts that we simply don’t know here,” Rossein said.
Attorney Douglas E. Fierberg, who litigates college campus violence cases, said Harvard’s lawyers may not have contested the anonymity motion because there may be other information they want to keep private.
“There was some additional information that came out that at least permitted Harvard not to contest the request. And that information isn’t disclosed,” Fierberg said. “Harvard has an obligation to protect student privacy but it also has an interest in protecting the privacy of its own confidential information.”
Fierberg said he thinks the judge’s order to conceal the students’ identities would not advantage one side over the other in the case.
“It’ll be decided on the law, not whether or not somebody is identified,” he said.
Tuesday’s ruling by Nathaniel M. Gorton, the federal judge presiding over the case, supplants his January 2019 decision stating that the student plaintiffs would not be allowed to remain anonymous if the case proceeded beyond a motion to dismiss. Months later, in August of 2019, Gorton denied Harvard’s motion to dismiss the lawsuit.
In their initial court filings on Dec. 3, 2018, the student plaintiffs wrote that they would only proceed with the case if their identities were protected. They wrote that they feared harm to their reputation and their future professional opportunities if their identities were made public, and that they believed they might face retaliation from Harvard.
Since then, the plaintiffs submitted their April 17 request for anonymity on the basis of new information that they allege demonstrates they have “a compelling need for privacy.”
“Counsel for the John Does have learned facts that they believe raise questions as to whether the John Does are in violation of the Policy and what the ramifications may be,” the motion reads. “Harvard, though currently unaware of whether the John Does are, in fact, in violation of the Policy, is sensitive to these concerns.”
As a part of the motion, the plaintiffs’ attorneys cited a March court order, emphasizing that both Harvard and the plaintiffs acknowledged privacy concerns in the case. That order stipulated that confidential information, such as the names of Harvard affiliates, must be kept private.