Can Fraternities Be Required to Admit Women Under Title IX?

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In February 2019, three female Yale students, Anna McNeil ’20, Ry Walker ’20 and Ellie Singer ’21, filed a lawsuit against Yale University, arguing that fraternities should be required to admit women and nonbinary students under Title IX as well as the Fair Housing Act. In May 2019, an on-campus group named Engender, which fights for gender integration in on-campus activities and groups, joined the suit. Their reasoning is that fraternities, with their social clout, student housing and alumni networks create an unbalanced environment where sexual harassment runs rampant and there is no similar network available to women or nonbinary students.

Yale, in turn, argues that they cannot control fraternity membership qualifications, and they already respond to claims that fall under the scope of their control. At the end of January, Federal Judge Victor Bolden for the most part agreed with the University.

In his thorough opinion, Judge Bolden writes: “The scope of Title IX forecloses nearly all of the Plaintiffs’ Title IX claim. Accepting their allegations as true, as the Court must at this stage of the case, … Congress has expressly limited Title IX and made the membership practices of the Fraternity Defendants beyond Title IX’s scope…. As a result, to the extent that their membership practices create or help maintain a hostile educational environment for the Plaintiffs, Title IX cannot be used to remedy them.”

As one might imagine, this is a polarizing case.

What Title IX Guarantees

Title IX guarantees that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Any school or school organization that receives federal funding cannot engage in discrimination, lest they lose their funding. That nondiscriminatory requirement extends to “recruitment, admissions, and counseling; financial assistance; athletics; sex-based harassment; treatment of pregnant and parenting students; discipline; single-sex education; and employment”—but does that include monitoring Greek organizations? This question is what drives the lawsuit.

When Betsy DeVos’ Department of Education suggested new regulations for Title IX, the DOE indicated that it would very likely consider universities and colleges responsible for the activities of fraternities and sororities. Otherwise, her administration decided to shrink the reach of Title IX “on-campus” activities: “in a location or in a context where the [university] owned the premises; exercised oversight, supervision, or discipline; or funded, sponsored, promoted, or endorsed the event or circumstance.” Proposed 34 C.F.R. § 106.44(a).

In its notice of proposed rulemaking, the Office for Civil Rights of the Department of Education favorably cited a District of Kansas case finding that a Kansas State University fraternity was a “university organization” for the purposes of Title IX.

Those rules are set to be published and finalized in the coming months. Whether the Department of Education under the Trump Administration ways in further on sororities and fraternities under Title IX is yet to be seen.

How Fraternities May Be Violating Title IX

In a press release, the lead attorney in the McNeil lawsuit against Yale said, “Women on campus must navigate a hostile, all-male fraternity scene that plays a significant role in campus social life. Male members of the fraternities control and create dangerous party environments in which sexual misconduct thrives…Yale has known about these conditions for more than a decade, [but] the University has failed to protect its students. Faced with Yale’s deliberate indifference and the continuing dangers, students now turn to federal court to make their campus safe.”

Essentially, the plaintiffs argued that even if Yale doesn’t have control over fraternities’ membership policies, the current status quo so endangers and discriminates against women and nonbinary students that it should be elevated to a Title IX violation. Because, the plaintiffs claim, fraternities so control the social scene, students have a choice between either attending fraternity parties and social events or having no social life at all.

Yale’s position in their October 2019 motions to dismiss, on the other hand, is that the university has protocols in place for dealing with reports of sexual misconduct and harassment, but as fraternities are independent student groups, monitoring their membership and parties does not fall under their purview.

Critics of the lawsuit have pointed out that sororities also exist on campus, but the plaintiffs and their lawyers point out that Yale fraternities—which have nurtured the early careers of U.S. Presidents, among other highly influential persons—have more connections and power than the female-led organizations.

Only one count survived in Judge Bolden’s opinion. This is an allegation by the Plaintiff McNeil that a first-year counselor “shrugged” and dismissed her report of sexual assault. Where a school receives notice of sexual misconduct but deliberately does nothing, this creates liability for the university and a viable claim for the alleged victim.

This remaining claim does not promise much leverage over the membership practices of fraternities at Yale, however. The plaintiffs in the lawsuit are apparently weighing their next steps about whether to proceed.

If you suspect that your college campus may be committing Title IX violations by allowing a toxic culture of sexual discrimination and harassment, contact a lawyer immediately to discuss your options.