Same Sex Student Clubs Consider Legal Action Against Harvard University

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Massachusetts state law extends constitutional protections to non government actors. MGL Chap. 265, Sec 37, applies to the person, The President and Fellows of Harvard College. More important than having a law school "on retainer" is too many judges in the First Circuit and Massachusetts state courts are Harvard Law graduates and university degree holders. They have a habit of allowing exceptions to laws for the university.

[From article]
Lake and other lawyers agreed that Harvard’s status as a private institution grants it more leeway than a public university would have in a similar situation.
[. . .]
“Because Harvard is private, its predominate relationship with students is contractual,” Lake said. “It does give a private institution the right to set certain standards for students that might not be acceptable at a public institutions.
[. . .]
“Last time I checked, you don’t sue someone who has a law school on retainer,” James M. Myers ’77, said.

http://www.thecrimson.com/article/2016/5/11/clubs-weigh-legal-options/

Clubs Weigh Potential Legal Action Against Harvard Policy
By C. RAMSEY FAHS, 

Harvard CRIMSON STAFF WRITER

May 10, 2016