On Thursday the Second Circuit Court of Appeals overturned a lower court's injunction that had barred CUNY from enforcing its gender nondiscrimination policy against a fraternity.
The College of Staten Island, part of the CUNY system, requires student clubs seeking official recognition to agree not to discriminate on the basis of sex. A recognized student club is entitled to use College facilities and services, in contrast to an unrecognized club, which may exist but is not eligible for such privileges. The College turned down Chi Iota, a Jewish fraternity, for official recognition because it excludes women from membership. The fraternity challenged this decision, and a lower court enjoined the College from withholding recognition to the fraternity. Specifically, it held that the College's policy infringes on the fraternity's First Amendment rights as an expressive association. (Title IX is not implicated in this case because the statute expressly excludes fraternities and sororities from its scope. 20 U.S.C. 1681(a)(6)).
The Second Circuit disagreed, reasoning that some restrictions on an expressive association are permissible, so long as they don't unreasonably infringe on the organization's strongly-held interest in associating with an exclusive membership.
First, the court reasoned that the fraternity did not have a strong interest in exclusivity. Its "broad, public-minded goals" -- including promoting respect for “the traditional values of men’s college social fraternities, community service, and the expression of Jewish culture" -- "do not depend for their promotion on close-knit bonds." While fraternity brothers may seek to form "deep attachments and commitments" and share "a community of thoughts, experiences, beliefs and distinctly personal aspects of their lives," the "same can be said of nearly any student group in which members become close friends." The court also considered the fact that the fraternity is otherwise an inclusive organization (one needn't be Jewish to join) and the fact that it regularly includes women in its social activities as evidence that its claimed associational interest in restrictive membership is relatively weak. (Tangentially, I think the court's close examination of the organization's purpose is more evidence that the deference the Supreme Court extended to the Boy Scouts to determine whether its purpose was compitable with its exclusion of an openly gay scoutmaster was erroneous and appropriately confined to that particular case.)
Second, it was significant to the court that the College's policy does not prohibit the fraternity from existing on campus, it merely denies them official recognition and the use of college facilities and services. "[The College's] refusal to subsidize the Fraternity’s activities does not constitute a substantial imposition on the group’s associational freedom." The court also considered the College's compelling interest in ensuring that its resources are equally available to all its students.
It will be interesting to see whether more colleges and universities chose not to officially sanction fraternities and sororities in light of this decision. Significantly, the decision does not threaten the existence of single-sex fraternities and sororities. It merely affirms that the scope of private discrimination is, appropriately, kept private.