From Dean Bacow's email:
Last August, in a lawsuit brought by fraternities and sororities to challenge the policy, Judge Gorton of the United States District Court in Boston denied Harvard’s motion to dismiss the case. In essence, the court accepted the plaintiffs’ legal theory that the policy, although adopted to counteract discrimination based on sex, is itself an instance of discrimination based on sex. The court reasoned that the policy applies to men but not women who seek to join all-male social organizations and applies to women but not men who seek to join all-female social organizations, and that this constitutes sex discrimination under federal law. In reaching this view, Judge Gorton relied heavily on the reasoning in one of the appellate decisions (Zarda v. Altitude Express) that was affirmed by the Supreme Court. It now seems clear that Judge Gorton would ultimately grant judgment in the plaintiffs’ favor in the pending lawsuit and that Harvard would be legally barred from further enforcing the policy.
In view of the Supreme Court’s decision, following Judge Gorton’s prior opinion in the lawsuit against Harvard, the Corporation consulted with the Dean of the Faculty of Arts and Sciences, the Dean of Harvard College, and the University’s General Counsel last week. We together came to the view that, in the circumstances, the College will not be able to carry forward with the existing policy under the prevailing interpretation of federal law. As a result, following a vote of the Corporation on Friday to rescind its prior approval, the policy will no longer be enforced.