The Collegiate Freedom of Association Act: A Legislative Response to Harvard University & Deferred Recruitment Mandates

posted in: Nik Koulogeoge | 0

Harvard enacted a policy preventing students who join single-sex organizations from taking positions of leadership on campus and from receiving letters of recommendation for some scholarships in May of 2016. There was immediate pushback from the fraternity/sorority world, and Harvard fraternities filed a lawsuit against the school. (Others, including inter-fraternal and inter/national organizations, have joined on the side of the Harvard groups.)

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The plaintiffs defeated a request by Harvard to dismiss the lawsuit when a federal judge ruled that Harvard’s policy may be discriminatory. That does not mean the fraternities have won their case, only the opportunity for the case to proceed. Still, fraternity leaders and lobbyists want to ensure that – no matter the outcome of the case – other colleges do not follow Harvard’s example.

So, H.R. 3128, the “Collegiate Freedom of Association Act,” (CFAA) was introduced in Congress about a year ago. Like my summary of two federal hazing bills – The END All Hazing Act & REACH Act – this post is my attempt to explain the bill in simple terms.

What’s In CFAA?

The bill starts off with a section called “Findings and Purposes.” It details some of the value of single-sex social organizations and affirms their right to exist under the 1st and 14th amendments. It’s nothing exciting, and is more or less a philosophical argument to serve as context for the bill.

Federal Funding

The bill would amend the Higher Education Act of 1965. This is a typical target for legislation affecting higher education, because it affects a schools ability to receive federal funds in the form of financial aid. Losing access to federal money would obviously raise the out-of-pocket costs for students. No school wants to lose its competitive advantage, and “lowering tuition” is not really in the traditional higher education lexicon.

So, CFAA withholds federal funds from schools which would penalize students for membership in a single-sex organization. It would also affect schools which target the joining practices of single-sex organizations. For example, if West Virginia University doesn’t rescind its “deferred recruitment” mandate, or doesn’t apply it to all student organizations, then WVU would no longer be eligible for federal financial aid money.

Beyond Fraternities

The bill is not limited to fraternities. Schools would be dissuaded from taking “adverse action” against members of youth organizations (like Boy Scouts or YMCA), and other private single-sex clubs.

Speaking practically, these clarifications are probably only included in the bill to generate widespread support for the bill. A Girl Scouts member might say, “Yeah! Harvard shouldn’t prevent me from becoming a soccer captain because I am a Girl Scout!” – even if it is unlikely.

To Be, Or Not To Be?

It is hard to say whether or not this will pass. I love to beat a dead horse: The Collegiate Housing & Infrastructure Act (CHIA) was a great bill (IMO) with supposedly strong multi-partisan support. It never came to be. Plus, the country is pretty focused on the coronavirus and election-year politics. I doubt this is a congressional priority.

Many support the idea of deferred recruitment and moving Greek Life away from a “single-sex” status. Those individuals probably oppose this bill.

Those who read this blog know that I am biased toward the organizational equalities promoted by CFAA. That does not mean – necessarily – that I endorse any federal legislation with those purported aims. How this bill accomplishes those objectives is as important as the objectives themselves.