The Act prohibits discrimination based upon gender unless the respondent can prove that, "without such exception, such business cannot be conducted." The very strict statute specifically states that an "exception cannot be justified by . . . business efficiency, the comparative characteristics of one group as opposed to another, the stereotyped characterization of one group as opposed to another, and the preferences of co-workers, employers, customers or any other person."
"Since most other universities - including even religious universities - manage to operate without sex-segregated dormitories, and since CU itself has been able to grow and prosper since at least 1982 without such discrimination, it seems impossible for it to meet this very high 'business necessity' standard of showing that, suddenly, 'such business cannot be conducted' without this sex discrimination,"
Moreover, as the President of CU admitted in the Wall Street Journal, the university is changing its policy not because it suddenly found that, without such discrimination, it cannot conduct its business as a teaching institution, but rather for reasons President John Garvey labels "ethical."
In explaining his two reasons behind the sudden change - to reduce students' drinking and casual sexual encounters - he makes it clear that the policy is in fact based upon "the stereotyped characterization of one group as opposed to another" - the very thing the statute prohibits.
Garvey opines that he thinks women are more "civilized" than men, and that men are more interested in casual sex (and perhaps drinking) than women: "I would have thought that young women would have a civilizing influence on young men. Yet the causal arrow seems to run the other way. Young women are trying to keep up—and young men are encouraging them (maybe because it facilitates hooking up)," he wrote.
Whether or not his proposed "countercultural"
A university may of course segregate on the basis of gender in permitting students to use showing facilities or locker rooms at its gymnasium, and in maintaining separate restrooms for men and women - but not blacks and whites - because, without such discrimination, it would likely not be able to conduct its business. Apparently, no university has mixed-gender shower and changing facilities, restrooms, etc.
But, says Banzhaf, that is a far cry from insisting that men and women cannot be housed in the same dormitory building - even if they are assigned different rooms, or even if they are assigned rooms on different and separate floors - since most universities, including even CU, has proven that the practice works, and permits the universities to conduct their business.
Another problems which Garvey mentions in passing, but does not address or seek to justify, is that if incoming male and female students will be assigned to dormitories of different capacities, the University may have to favor men (or women) in admissions based upon their gender, rather than upon their academic qualifications, in order to assure that there will be the correct number to fit into each of the separate dormitories.
As the president puts it in casually dismissing this concern, "We won't be able to let the ratio of men and women we admit into the freshman class vary from year to year with the size and quality of the pools. But our students will be better off," apparently because there will be less drinking and sexual activity.
"Just as the desires of women for half-priced drink - and the desires of men for women who have consumed them - cannot justify sex discrimination under the guise of ladies nights, so to the desires of college presidents to reduce female drinking and sexual activities by protecting them from men cannot legally justify imposing sex discrimination leading to a return to the segregated campus housing of the 1950s," argues Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
Creator, Banzhaf Index of Voting Power
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
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John F. Banzhaf III is a Professor of Public Interest Law at George Washington University Law School [http://banzhaf.net/]