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Moral, but Lawful?

June 21, 2011

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.

Catholic responded to an interview request with the following statement: "The Catholic University of America has not received service of any legal proceedings from Professor John Banzhaf regarding the University’s plan to phase in single-gender residence halls. The university will review any legal documents if and when they are received. The university is confident that the law does not require men and women be housed together in residence halls." (When Inside Higher Ed received this statement late Monday afternoon and shared it with Banzhaf, he said the formal notice was in the mail but then e-mailed a version to two Catholic trustees and members of the Academic Senate, to permit them to comment. When reached again, Catholic declined to comment further.)

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.

The statute makes a single exception for “business necessities.” If Catholic can show that it cannot operate the institution without offering only single-sex dorms, it will meet this test. But Banzhaf doesn’t think that will be the case. “There are similar establishments which don’t discriminate and remain in business,” he said, referring to the 90 percent of colleges and universities that offer coed housing, often in addition to a single-sex option (as has been the case at Catholic for about 30 years). “I’ve won more than 100 of these cases under the D.C. Human Rights Act, so I don’t think I’m missing too much.”

Catholic President John Garvey’s announcement last week caused quite a stir. He chose to break the news via an op-ed in The Wall Street Journal, in which he explained that colleges have a moral obligation to help their students live virtuous lives. He also cited a handful of studies that have linked coed college living to escalated levels of binge drinking and casual sex. (Correlation may not equal causation, though; officials at the Association of College and University Housing Officers-International said there hasn’t been enough research to establish a conclusive link.)

Banzhaf says Garvey’s entire case for single-sex dorms is based on stereotypes, and it’s a basis that’s illegal under the D.C. statute. “The statute expressly states that a ‘business necessity’ exception cannot be justified by, among many factors, the stereotyped characterization of one group as opposed to another,” Banzhaf said in the press release announcing the intent-to-sue. “Yet, as Catholic's President John Garvey has explained, the justification for the discrimination – to improve ‘virtue’ and/or ethics (including ‘Nicomachean ethics’), promote ‘good habits,’ and/or reduce sexual activity and drinking – rests on exactly such sexual stereotypes.”

How Banzhaf proceeds from here will depend on how Catholic responds to the intent-to-sue. If the university can’t make a legal case for moving to same-sex dorms but doesn’t back down from the change, Banzhaf can either take his cause to court or file a complaint with D.C.'s Human Rights Office. He said the notice was meant to “take the wind out of their sails,” before the institution started modifying residence hall bathrooms or making roommate assignments.

 

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