Wesleyan University has ruled that on campus fraternities must become co-ed over the next three years or forfeit access to meeting spaces and on campus housing. See here. Many will argue that this move violates freedom of association. Indeed Peter Smithhiser, head of the North-American Interfraternity Conference has insisted that the move violates fundamental First Amendment principles. In fact, the First Amendment does not apply because Wesleyan is a private university. But let us leave that to the side.
Even assuming the First Amendment applies, it applies in complicated ways. In Christian Legal Society v. Martinez, the Supreme Court held that the Hastings law school could deny privileges to student organizations that did not admit all students (the so-called all comers policy). Given Martinez, although the policy is not precisely an all comers policy, it seems clear to me that Wesleyan can condition access to on campus housing on the condition that the organization stop discriminating on the basis of gender. Cf. Alpha Delta Chi-Delta v. Reed, 648 F.3d 790 (9th Cir. 2012)(state university can deny privileges to organizations that discriminate on the basis of religion even religious organizations).
Whether the university can deny access to meeting spaces is less clear. In Martinez and Reed, the organizations denied university privileges still had access to meeting spaces. There is a difference in the amount of discretion afforded to government when it denies subsidies and when it effectively drives organizations off campus. Neither Martinez nor Reed authorize the latter level of sanction.
That leads to the question whether the First Amendment to association includes the right to discriminate on the basis of gender. If not, the university could exclude the offending fraternity from using university spaces. The answer to that question depends, however, on facts we do not have. Roberts v. Jaycees held that Minnesota could compel a men’s association to admit women when neither the right to intimate association nor expressive association was infringed. To know how Roberts would apply depends at least upon the size of the organization, the expressive mission of the organization and whether it would be compromised by the admission of women (though the Court in Roberts seemed to look the other way), and the extent to which the organization offered commercial networking advantages otherwise not available to women. On the latter point, it is worthy of note that Wesleyan sororities do exist, but are off campus and not addressed by the campus rules.
But let’s assume the sororities are on campus. Could Wesleyan forbid gender discrimination by fraternities without forbidding gender discrimination by sororities? One might justify the distinction on the ground that discrimination against women (including violence against women on campus) is not just a thing of the past. There is a stronger case for permitting members of oppressed groups to gather together in associations than those that exclude the members of oppressed groups. I wished we lived in a country where the law would take that distinction to heart. We don’t.
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