Catholic U Gets Intent-to-Sue Notice Over Single-Sex Dorms

June 20, 2011 - PRLog -- Catholic University has received an intent-to-sue legal notice, suggesting that its plan to gender-segregate all of its dormitories would constitute illegal sex discrimination under the District of Columbia's Human Rights Act, which could then leave it liable for statutory damages, attorney fees, and even punitive damages.  The notice was served on the University President, Chairman and Vice Chairman of its Board of Trustees, and two key members of its Academic Senate.

The District's anti-discrimination law prohibits any discrimination based directly or indirectly upon sex unless it is strictly necessary for the entity to remain in business - the "business necessity" exception - says public interest law professor John Banzhaf, who has won more than one hundred legal actions under the statute.

Since Catholic has not only remained in business but also grown considerably for more than 25 years without forcing students into sex-segregated dormitories, and since most universities - including other religious ones - have also remained in business without engaging in this form of discrimination, it is very unlikely that this newly-unveiled plan would qualify for the very narrow "business necessity" exception to the general rule prohibiting sex discrimination, suggests Banzhaf.

"Business necessity is a very narrow exception which is very difficult to meet.  Universities can have separate restrooms and shower facilities for men and women because, without such an arrangement, they probably could not continue in business - which is probably why no university has even tried it.  On the other hand, since Catholic and most other universities have remained in business for dozens of years with mixed-gender dormitories, eliminating them is obviously not a business necessity," argues Banzhaf.

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.  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.

Garvey suggests that forcing the genders into separate sex-segregated dormitories will reduce drinking because young women are supposed to have a "civilizing influence on young men."  He also supports his plan to reduce sexual activity through mandated gender-segregated dorms by arguing that women are more likely than men to suffer because of casual encounters, and that "sexually active young men do more poorly than abstainers in their academic work.”

Banzhaf suggests that, just as the road to hell is said to be paved with good intentions, so to is the road to illegal sex discrimination.  He cites as examples the following arguments which were all used to justify sex discrimination in legal actions he brought.  He notes that all were rejected.
   * The Cosmos Club argued that admitting women to an all-male club would interfere with the comradery of the club, stifle free speech, and violate constitutional freedom of association.
   * V.M.I. claimed that admitting women would destroy the esprit de corps and unique educational mission of the military academy, as well as lead to different physical and dress standards, etc.
   * Dry cleaners were in a position to prove that, in many situations, it did in fact cost them far more to iron women’s shirts than men’s shirts, thus arguably justifying the price difference.
   * Many argue that equalizing lines to restrooms at theaters and stadiums by having more female restrooms would be very expensive and disruptive, and be unfair since women would then have more restroom outlets than men.
   * Hair cutters argued that, because women tend to be fussier about their hair and therefore take longer to satisfy, it was justified to charge them more for the same simple hair cut than men.
    * Bars said ladies nights helped both women and men, since the women were happy to pay less, and the men were happy to have more women coming into the bar because of the lower prices they paid.

The intent-to-sue notice asks Garvey and Catholic to provide, at their earliest convenience, any legal arguments and authority they may have that forcing students to live in sex-segregated dormitories would not constitute illegal sex discrimination under the Human Rights Act.  Any delays in resolving these legal issues could result in major monetary losses of renovations to restrooms and otherwise which would have to be undone, as well as to disruptions in the assignment of rooms to incoming freshmen.

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
http://banzhaf.net/

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John F. Banzhaf III is a Professor of Public Interest Law at George Washington University Law School [http://banzhaf.net/] where he is best known for his work regarding smoking [http://ash.org/], obesity [http://banzhaf.net/obesitylinks.html], etc.