"It's strange that CU would defiantly announce that it will continue with its plans to segregate at the same time it says it will begin studying the legal complaint served by the Office of Human Rights to see if the new policy constitutes illegal sex discrimination, and even stranger since the new arrangements were primarily designed to teach CU students 'virtue,'" says public interest law professor John Banzhaf, who is behind the complaint.
"Indeed, it is both bizarre and suspicious that for over a month the university has refused to release any explanation as to how its plan could be legal in the face of the very broad prohibitions of the Act, and has ducked numerous opportunities -- including at least two on national television -- to provide a spokesperson to explain its position," says Banzhaf. Perhaps its time for the media to press CU for some explanation of its understanding on this important issue, he suggests.
He notes that a copy of the letter of intent was served about a month ago on the David A. Donohoe, Esq., who, at the time he was served, was listed as Vice Chairman of CU's Board of Trustees, and is a noted attorney with the Akin Gump law firm. A copy of the letter of intent was also served upon Professors Veryl V. Miles and Suzanne Fischer of CU's well known law school, both of whom were listed as law school members of CU's Academic Senate at the time. All should be in a position to offer some explanation and statement of CU's legal position, suggests Banzhaf.
So, in the meantime, stepping forward to provide a legal defense for CU is one of its "educational allies," the Alliance Defense Fund [ADF], which has produced a 5-page memo purporting to show how CU's sex segregation policy is supposedly legal, even though it doesn't meet the requirements of the Human Rights Act. Unfortunately for CU, the memo defending it may be neither persuasive nor effective, says Banzhaf.
"The memo has two clear errors on the first page alone, is written by a member of ADF's "marriage litigation team" who is a recent graduate of a law school which isn't even ranked by US News, and who is not qualified to practice in D.C. although that's where the litigation is occurring. Not surprisingly, the ADF memo ignores D.C. law, and instead relies primarily upon a thoroughly discredited legal doctrine: "separate but equal."
According to the ADF memo, segregation is legal provided that no particular group is discriminated against. In other words, it's legal to discriminate on the various bases protected by the Act such as race, national origin, and sex, provided only that discrimination is the same for everyone.
By this logic, CU could decide to reduce tensions on campus, and promote the virtue of good well towards men, by requiring all freshmen to reside in dorms segregated by race (with white dorms, black dorms, Asian dorms, etc.) or by religion (with Jewish and Muslim dorms), or sexual preferences (with gay males all forced to live in a dorm away from heterosexual males), as well as by sex -- provided only that the dorms were in some sense "equal," which they never truly are.
Similarly, it appears that the ADF is prepared to argue on behalf of CU that the university could, in addition to having all sex-segregated dorms, also have sex-segregated parking lots, shops, computer rooms, laboratories, and even classes (with separate Physics for Men and Physics for Women). Simply to state this argument in these terms is to show how ludicrous and outdated it is, argues Prof. Banzhaf.
More of the law cited in the ADF memo supposedly supporting "separate but equal" relates to employment discrimination, and more specifically to so-called grooming cases, where men, for example, might be required to have shorter hair than women. But the federal statute involved in all of those cases requires that someone be hurt by the discrimination -- that they be discriminated against -- a requirement which is not included under the D.C. act.
Moreover, notes Banzhaf, in the grooming cases, all any employee being discriminated against has to do to avoid being denied access to a job or other employment benefit is make a very minor change -- e.g., a man may have to cut his hair somewhat shorter.
But, argues Prof. Banzhaf, a man who wishes to apply to reside in a particular CU dorm -- perhaps because it is closest to a campus building housing a lab where he must frequently work, often at night -- can't simply cut something off to be eligible to reside there.
Similarly, a woman who wishes to apply to reside in a particular CU dorm -- perhaps to avoid having a long and dangerous walk home at night from a lab in a nearby building, or to be able to work more closely with colleagues in a male-dominated field like mechanical engineering -- can't make any changes at all to make that possible. In short, sex-segregated dorms are very different from different hair-length requirements for men and women. One is legal and the other is not.
While Garvey has argued that his reasons for moving to sex-segregated dorms are secular and not religious, and has invited other non-religious universities to join in the discriminatory practice, some have argued that there is a constitutional or other exception for discrimination which is religiously motivated.
But, notes Banzhaf, D.C.'s highest court has held for more than 20 years that even the most fundamental tenet of the Catholic Church will not permit discrimination under the statue. In that case, Georgetown's policy of discriminating on the basis of sexual orientation was held illegal, even though it is a Catholic university which was following fundamental Catholic tenets concerning homosexuality. More recently, the EEOC held that another Catholic college could not discriminate against women regarding birth control, even in furtherance of the Catholic Church's strong religious prohibition against contraception.
Moreover, just last month, D.C.'s highest court reaffirmed that legal doctrine, holding that mere religious belief does not protect an otherwise illegal act. Unless a religious institution is forced “to engage in conduct that their religion forbids or . . . prevents them from engaging in conduct their religion requires" -- an action which violates "some central tenet" of the religion -- they enjoy no protection, the court reiterated, based upon a number of prior court decisions.
Obviously, although Catholics may oppose various sins -- which might include pre-marital sex and excessive drinking -- there is nothing in their religious beliefs, no basic and fundamental tenet, that absolutely forbids mixed-gender dorms, nor requires them to have sex-segregated dorms. If there were, CU, Georgetown, and many other Catholic universities would have been in direct violation of this religious tenet for more than 25 years, argues Banzhaf.
"That's why the D.C. statute prohibits discrimination, even where it is based upon good intentions like reducing sex and drinking, or even good religious intentions like preventing sin or enhancing Catholic values."
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of 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/]