Paul L. Caron

Tuesday, June 21, 2011

GW Law Prof Sues Catholic U. to Stop Same-Sex Dorms

Following up on last week's post on the op-ed by former Boston College Law School Dean and AALS President John Garvey, announcing that Catholic University would be implementing same-sex dorms in an attempt to counter the binge drinking and hook up culture: Inside Higher Ed, Moral, but Lawful?:

The Catholic University of America generated much press last week when its president announced that, beginning next year, it would transition to single-sex only housing. Considering that such a move was previously unheard-of, the attention wasn’t shocking.

What may have caught Catholic officials more off-guard is the intent-to-sue notice they were served with this week.

Completely eliminating coeducational dorms would violate the District of Columbia’s Human Rights Act, says John F. Banzhaf, a law professor at George Washington University who is known for public interest suits of this nature. That statute prohibits discrimination in employment, housing and commercial space, and public accommodations on the basis of sex and other factors like race, religion and marital status. ...

Banzhaf likens Catholic’s move to a “separate but equal” scenario. “Suppose a university decided that there would be less racial tension if all the blacks were in a black dorm, all the whites were in a white dorm,” Banzhaf said. “Each one is, quote, getting their own dormitory, and maybe some of them would be happier that way. But surely no one would suggest that it’s lawful.” The statute does not require that a certain population be disadvantaged for an action to be illegal; the simple act of segregating the genders is enough, Banzhaf said.

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Does this mean that the "Men Only" restrooms are also unlawful, or is there specific provision made for such things in the law?

Posted by: Jeremy Fardoff | Jun 21, 2011 11:16:25 AM

Why not offer a choice of both kinds of dorms then?

Posted by: Michael A. Livingston | Jun 21, 2011 1:09:45 PM

“Suppose a university decided that there would be less racial tension if all the blacks were in a black dorm, all the whites were in a white dorm,” Banzhaf said.

I had thought that I remembered reading about black-only dorms, and a quick Google search reveals that USC offers Somerville Place, a blacks-only dorm floor, for the declared purpose of fostering African-American culture. How is that not discrimination against all non-blacks (even if they are not disadvantaged thereby)?

Filing a lawsuit is such an egregious waste of resources for both sides. How interesting is the comment that this Mr. Banzhaf is known for filing public interest suits of this nature. To my way of reckoning, it's in the public interest for a university to experiment with single-sex dorms -- the marketplace will grade it a pass or fail.

After all, it's not as though there are no other choices of university available, should one not wish to experience a single-sex dorm.

Posted by: ColoComment | Jun 21, 2011 1:15:56 PM

This is misguided on multiple levels, in addition to Jeremy's excellent point about restrooms.

Separate but equal was devised by one class of persons to prevent integration with another class of persons considered undesirable. In this case, each class of persons considers integration with the other class of persons highly desirable!

Separate but equal was all about contact; the university's actions are all about behavior. When your children behave badly, you don't send them to the same room.

Posted by: Ed | Jun 21, 2011 9:27:22 PM

All excellent points so far. To go a step further, CUA is the university of the Holy See of the Roman Catholic Church. The Church's university in America is trying to prevent activity that the Church deems immoral (premarital sex, binge drinking, etc.). These are a good 2,000 years old, and the Pope has written on the idea of the Catholic university as recently as the mid-1990s. Does this move by CUA actually surprise anyone? (GASP! A Catholic school is trying to prevent young adults from having premarital sex!) Come on Banzhaf! Aren't their more important issues to focus on? Stop wasting your time with CUA and come sue me for using a 100 watt lightbulb instead.

Posted by: Jack | Jun 22, 2011 5:59:42 AM

Does Banzhaf have standing?

Posted by: eli bortman | Jun 22, 2011 6:19:02 AM

If the Human Rights Act is construed as the plaintiff contends, doesn't it mean that the relevant institutions actually cannot offer single-sex dorms and must offer coeducational dorms, regardless of what they currently offer?

Posted by: asdf | Jun 22, 2011 6:22:55 AM

Consider a suit from the other direction: Plaintiffs who wanted Yale to offer a single-sex dorm. In Hack v. President and Fellows of Yale College, 237 F.3d 81 (2d Cir. 2000), the Second Circuit ruled that Yale University was not a state actor or instrumentality, and so did not violate plaintiffs’ religious rights protected under the Constitution and § 1983 by requiring all unmarried freshmen and sophomores under the age of 21 to reside in college dormitories, all of which are co-educational; nor did Yale’s refusal to exempt religious observers from co-educational housing violate the Fair Housing Act, 41 U.S.C. § 3601 et seq. Because Yale is so old that it came into being by a specific statute, the Hack court followed a 1995 Supreme Court case setting forth the test for such a corporation: “[O]nly if (1) the government created the corporate entity by special law, (2) the government created the entity to further governmental objectives, and (3) the government retains ‘permanent authority to appoint a majority of the directors of the corporation’ will the corporation be deemed a government entity for the purpose of the state action requirement.” 237 F.3d at 83-84 (citation omitted). The Hack court ruled, “Here, the first two factors are easily satisfied: the State of Connecticut created the corporate entity by special law, and higher education is a governmental objective (although not the exclusive province of government). Two of nineteen board members is, however, a long way from control.” Moreover, the court added, “It is equally clear that the state could not control Yale’s policies and operations even if it chose to become involved. Yale, as a private university, did not act under color of law.” Id. at 84.

Posted by: Evelyn Brody | Jun 22, 2011 7:44:06 PM