No, there’s no constitutional right to fraternity life

Single sex socializing can have corrosive effects.
Single sex socializing can have corrosive effects.
Image: Reuters/ Carlo Allegri
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Harvard University, never exactly a bastion of fairness and equality, has finally gone too far. The university has started penalizing membership in fraternities, sororities, and final clubs—the single-sex organizations that mimic many characteristics of Greek life but exist only on Harvard’s campus—and students will not stand for it. Two fraternities, two sororities, and three anonymous college students filed a lawsuit last week claiming that the university’s rejection of single-sex social organizations is itself a form of sex discrimination. (Full disclosure: I graduated from Harvard 2011 and, though I didn’t join a final club or sorority, I did attend some of their parties.)

The lawsuit makes the case that it’s discriminatory to ban single-sex organizations and that, as such, Harvard’s policy violates Title IX, a federal civil rights law dating from 1972, originally created to protect women who were being denied the same opportunities—such as scholarships and athletics clubs—as men. “It’s going to be a difficult case for them,” says Rick Rossein, a professor at CUNY law school who’s litigated several sex discrimination cases. After all, a social organization that refuses to accept someone on the basis of sex is itself committing sex discrimination. Perhaps the students and fraternities would have a case if Harvard had penalized membership only in sororities and not fraternities, but given that they’ve taken the same approach to both, there’s no legal basis for saying that either men or women are being discriminated against in this case under Title IX.

Juliet Williams, a professor of gender studies at UCLA who researches gender and the law, agrees that it’s “really a stretch” to use Title IX in this case. “Generally [the argument] would be, ‘If I were a man, I wouldn’t be punished, but I’m being punished as a woman.’ The court could just come back and say male and female undergraduates are equally barred from single-sex final clubs’ activities.” Indeed, Williams considers it “galling” that students would appropriate Title TX for their case. “These are already very privileged students who are aggrieved because they’re being denied one more form of privilege,” she says.

The lawsuit also claims that Harvard’s policy violates the equal protection clause of the Fourteenth Amendment to the United States Constitution for the same reasons that it violates Title IX. This claim is even more tenuous. “The constitutional claim is going to fail,” says Rossein. The equal protection clause applies to state actors and public institutions, such as public institutions; Rossein says there’s no legal precedent of it applying to a private institution, even one such as Harvard that receives federal funding.

Harvard isn’t strictly speaking banning the existence of such clubs; the university announced in May 2016 that those who join won’t be eligible for campus leadership positions or varsity team athletic captaincies, and wouldn’t receive endorsements for scholarships such as the Rhodes. “A private university has, clearly within its rights, the ability to say what kind of environment it wants to create,” says Williams. Those who have a deep desire to belong to single-sex social groups, can, after all, simply choose to go to another university. “There’s no absolute right to do whatever you want to, which is the premise of the lawsuit,” she says. “It would be completely within Harvard’s purview” to pass a policy that penalized membership in the Ku Klux Klan. The university can similarly choose to penalize membership in social single-sex organizations.

The lawsuit also claims that Harvard University is unfairly stereotyping men by condemning male final clubs for perpetuating sexual violence and generally portraying them as exclusive, discriminatory institutions. “Harvard’s view that all-male clubs — because they are all-male — are misogynistic, racist, homophobic, and classist, is also sexist,” reads the lawsuits, as reported in the Harvard Crimson.

Rossein notes that there’s legal precedent that shows sex stereotyping constitutes discrimination; a 1989 lawsuit found that accounting company Price Waterhouse refused to promote a woman to partner because she didn’t meet their notions of femininity. But he says it’s “pushing the limits” to expect this legal precedent to apply to male final clubs. “Historically, many of these societies were very exclusionary,” he says. “Depending on the facts they could make a claim of defamation, but interestingly they have not.” While I studied at Harvard, the clubs were notorious for casual homophobia and selecting overwhelmingly white members. Meanwhile, the selection process works by older students inviting younger students to join; those who attended wealthy private schools made up a hefty proportion of those making selections and tended to choose those from their same schools. This ensured the clubs remained hugely wealthy (a necessity as membership is expensive). It’s not hard to see why they decided against launching a defamation suit.

If the legal case is so weak, why would the students file a lawsuit in the first place? Rossein says that simply creating a legal case can attract public attention and sympathy, which can put a pressure on universities to change their policies. He notes that, earlier this year, the women-only social organization The Wing was investigated for sex discrimination against men, and there was public outcry over sex discrimination policies being used to target a women’s organization. Though the investigation hasn’t been formally dropped, there’s been no news of any updates since the investigation was first announced in March. Based on the long silence, Rossein suspects the investigation has been quietly dropped.

In a similar vein, Rossein says he has “sympathy” for the women’s social organizations at Harvard, many of which have made the case in public protests that the university is denying them a “safe space.” There can certainly be value, Rossein believes, in giving women the space to form communities without men present. Indeed, an organization that’s focused on the particular concerns of one sex—for example, one that provides support for women’s health issues or how women are subject to sexual violence—would be justified in excluding people on the basis of sex. But Harvard hasn’t taken an opposition to all single-sex groups—only to those social groups that have no clear justification for sex discrimination. There are still women-only groups on campus, from sports clubs to Asian American and Black Harvard Women groups, to those focused on particular interests such as women’s empowerment, law, and computer science. Members of these groups do not face penalization.

Meanwhile, though some women may enjoy only hanging out with other women, there’s no legal basis for protecting social organizations on these grounds. And Williams notes that perpetuating single-sex institutions can create the impression that “safe spaces” only exist in single sex environments. “The problems in our world aren’t just about preserving the right to a single-sex environment but also recognizing how much people have in common across a gender boundary,” she says.

While Harvard’s final clubs may reek particularly strongly of privilege and inequality, there’s a similar absence of legal protection for the rights of single-sex fraternities and sororities to exist across the country. Title IX does have an exemption, which means that fraternities and sororities are permitted to exist should the university support them. But, should all universities declare that they’d like to ban single-sex social groups on campus, Rossein notes that this would be perfectly legally acceptable: There’s no constitutional or national law that would make it illegal to disband Greek life. Ultimately, frat bros don’t have a constitutional right to only ever hang out with the guys.