The uncertain legal future of single-sex organizations on college campuses

By Jessica "Lulu" Lipman
Jessica “Lulu” Lipman is a sophomore at the University of Pennsylvania studying English.

Fraternities, a word which originates from the Latin frater, meaning brother, have always been organizations exclusively for men. However, in our evolving world, and with the prevalence of sexual assault that has occurred at fraternities, many have argued that the organizations should be more inclusive and allow women and gender nonconforming individuals to join.

In 2019, three women filed a lawsuit against the nine fraternities at Yale University, asserting that they should “gender-integrate.” The women argued that it was gender discrimination to only offer men membership to fraternities. Additionally, the lawsuit also claimed that harassment and sexual abuse had occurred at various fraternity events, and the school had failed to address these concerns. [1]

On January 30th, 2020, a federal judge dismissed most of the claims made by the women, quoting an exemption in Title IX. [2] Title IX, which was enacted in 1972, prevents an institution from “excluding, separating, denying benefits to, or otherwise treating students differently on the bases of sex…” (U.S. Department of Education). However, certain clubs and organizations, including Boy Scouts, Girl Scouts, fraternities and sororities, are exempt from Title IX. [3]

Other institutions of higher education have attempted to prohibit single-sex organizations on campus. In 2016, Harvard University enacted a rule to discourage students from joining such clubs, by prohibiting those who are in single-gender organizations from being the captain of a sports team or leading any groups on campus. Moreover, the school will not endorse students in gender-specific clubs for distinguished fellowships, such as the Rhodes Scholarship. Not only does the rule affect sororities and fraternities, but single-sex performing arts groups are also forced to disband or become co-ed. [4]

In retaliation, the parent groups of two sororities and two fraternities, as well as Harvard’s chapter of Sigma Alpha Epsilon and three anonymous Harvard students sued Harvard in Boston’s Federal Court. Two seperate Greek organizations sued in Massachusetts state court. The 2018 lawsuits both claimed that the policy imposed in 2016 “discriminates against students based on their sex and spreads negative stereotypes about students who join all-male or all-female organizations” (Associated Press). [5]

The federal case, ironically, argues that Harvard’s new policy is in direct violation of Title IX because the rule unfairly penalizes students based on their gender and enforces negative societal stereotypes. The lawsuit in the state court focuses on the civil rights aspect, highlighting the fact that it is illegal to discriminate based on association with a group and thus that the new rule is a blatant violation of the First Amendment. [6] 

On January 9th, 2020, the Suffolk Superior Court judge ruled against Harvard’s motion to dismiss the state’s case. The motion to dismiss was based on two arguments; the first was that the two Greek organizations acted beyond the confines of Massachusetts Civil Rights because they brought up claims in the interests of their members and the second that the plaintiffs had failed to show enough evidence to actually claim there was a violation of the Massachusetts Civil Rights Act. [7]
The judge, however, determined that both of these points were invalid because associations do, under specific conditions, have the right to bring up claims on behalf of members. Moreover, the court concluded that the suing parties had provided adequate proof to file a claim under the Mass. Civil Rights Act. Thus, Harvard’s motion to dismiss was promptly rejected. [8]

A judge came to the same conclusion regarding the federal case. The plantiffs in the federal case are the parent organizations of two fratermities and two sororities, a Harvard chapter of a fraternity and three unnamed Harvard students who hold membership in a single-sex social club. In August 2019, Harvard’s motion was dismissed, but a judge did agree with the institution that three of the aforementioned plaintiff do not have the right to sue. In the motion, the defense argued that, since both men and women were both affected equally by the new policy, it did not qualify as gender-based discrimination. The judge disagreed, stating that even though a rule may affect both genders in the same way, it can still be unjust. [9]

Since the two sororities who were suing do not currently not have chapters on Harvard’s campus, the judge determined that neither organization had the right to sue. Further, one of the three unnamed students was an upperclassman, who also does not have the right to file a claim because the rule only applies to the classes under him. The others plan to continue with their lawsuits.  [10]

In essence, the lawsuits against Yale and Harvard are contradictory. Harvard is being sued because they acted against non-gender integrated clubs, whereas Yale is getting sued for not taking action against such organizations. Thus, the schools are in a predicament, because it appears that regardless of what they decide to do regarding single-sex organizations, someone will take issue. [11]

It is unclear what will happen next in regards to both Harvard and Yale’s conflicting lawsuits. Because of the contradictory nature of the two cases, how the outcome of the lawsuits will influence the future of fraternities and sororities is uncertain. Soon it will become apparent if single-sex organizations will withstand the test of time.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients. 
Sources:

[1] and [2] Article is no longer available on New York Times Website. https://www.nytimes.com/aponline/2020/02/05/us/ap-us-yale-fraternities.html

[3] Taylor, Hannah. “What You Need to Know About Title IX and How It Could Affect Your Greek Life” (20 April 2015). Odyssey. https://www.theodysseyonline.com/political-issue-should-care-about-title-ix-how-could-affect-greek-life

[4] and [5] Associated Press. “Harvard sued by fraternities and sororities over single-sex rule” (3 December 2018). NBC News. https://www.nbcnews.com/news/us-news/harvard-sued-fraternities-sororities-over-single-sex-rule-n942961
[6] Ma, Annie. “Harvard’s War on Single-Sex Clubs Has Opened a New Battle Over Sex Discrimination” (9 January 2019). Mother Jones. https://www.motherjones.com/politics/2019/01/harvard-sorority-fraternity-lawsuit-title-ix/
[7] and [8] Cobb, Sydnie. “State Court Denies Harvard Motion to Dismiss Sanctions Lawsuit” (18 January 2020). The Harvard Crimson. https://www.thecrimson.com/article/2020/1/18/state-sanctions-lawsuit-dismiss-denied/
[9] and [10] Sanjana Narayanan and Samuel Zwickel. “Sanctions Lawsuit Will Proceed in Federal Court, Judge Rules” (19 August 2019). The Harvard Crimson. https://www.thecrimson.com/article/2019/8/19/federal-sanctions-suit-continues/
 [11] Gerstmann, Evan. “Understanding The Dueling Lawsuits Against Yale And Harvard Over Fraternities And Sororities” (19 February 2019). Forbes. https://www.forbes.com/sites/evangerstmann/2019/02/19/understanding-the-dueling-lawsuits-against-yale-and-harvard-over-fraternities-and-sororities/#46ff03bb3516

Photo source: Martin Cuff