By Zoe Seaman-Grant
In February, three undergraduate women attending Yale filed a class-action lawsuit in federal court requesting a court order that Yale-affiliated fraternities allow women to join. The plaintiffs allege that the exclusively male fraternities create a hostile environment on campus for women and that, by excluding women, only men can access the unique benefits that fraternities offer to their members. All three of the named plaintiffs were groped at parties hosted by fraternities.[1] Yale fraternities have a history of infamously misogynistic behavior, dating back to 2009 when a fraternity, to which now-Supreme Court Justice Brett Kavanaugh belonged, marched around campus chanting, “No means yes! Yes means anal!” Though the fraternity was banned from campus for five years, ten women have filed sexual misconduct allegations against it since its return to campus in 2014.[2]
The Yale plaintiffs’ request that fraternities be forced to allow women to join is a novel, yet potentially exciting, legal strategy. Historically, plaintiffs have sought to ban Greek life entirely, which has proved largely unsuccessful. At most, when plaintiffs do win cases, Greek organizations continue to operate with only minor changes in oversight.[3] By seeking to integrate single-sex organizations, the Yale lawsuit could fundamentally alter the current culture of fraternities that depends on exclusively male membership. In an all-male environment, fraternity members are often insulated from the perspectives and experiences of women on campus, leaving fraternity members in a bubble where misogynistic behavior is often unchallenged or encouraged.
Winning a lawsuit against a fraternity can prove difficult, however, for two reasons. First, Title IX, a federal civil rights law that imposes certain requirements on educational institutions to promote sex equality, includes an exemption for sorority and fraternity membership policies. The exemption permits fraternities and sororities to categorically deny membership based on an applicant’s gender, which Title IX typically forbids other organizations on campus from doing.[4] Second, fraternities and universities have developed a complicated system of risk-shifting that effectively insulates local fraternity chapters from their members. Fraternities do this by claiming that the behavior of their members was in no way supported or endorsed by the fraternity chapter, or the national organization. Therefore, when plaintiffs win, they are only able to recover from individual members of fraternities, and the organizations themselves are rarely exposed to the kind of large-scale liability that might encourage structural changes. Additionally, many fraternities are insured by the Fraternity Risk Management Fund, which provides a large pool of money funded by fraternity alumni that fraternity chapters can use to pay for lawsuits.[5]
Although the difficulty of winning lawsuits against fraternities might be disheartening, lawsuits can still prove valuable to the fight against single-sex Greek organizations beyond the decision in the courtroom. Lawsuits, even if ultimately unsuccessful, can increase the operation costs to fraternities by forcing them to pay legal fees and comply with discovery orders. The insurance market for fraternities is small, and therefore high legal costs can make insurance unaffordable to fraternities, effectively forcing them to cut down on high risk activity or shut down entirely.[6]
Additionally, and most importantly, lawsuits bring national attention to the role of fraternities on campus. Inside Higher Ed, The New York Times, and CBS all covered the Yale lawsuit, chronicling the litany of misogynistic behavior allegedly perpetrated by the defendants. This attention will hopefully encourage students to speak out about their own experiences with Greek life. Discovery orders can also make internal documents available to the public and illuminate the scope of harmful behavior fostered in all-male social spaces. All of this negative publicity can encourage a university to voluntarily force single-gender organizations to integrate, as Harvard has done with its Greek life and single-gender finals clubs.[7]
The lawsuit against Yale is the first to demand that fraternities become mixed-gender. Given the historically limited impact of lawsuits against fraternities, it is encouraging to see a new approach to combatting the misogyny that often flourishes in all-male social environments. The Yale lawsuit might not achieve the plaintiffs’ ultimate goal of integrating the fraternities, but the lawsuit has still drawn national attention to fraternity culture on Yale’s campus, and the various ways that culture has hurt non-male students.
[1] Anemona Hartocollis, Women Sue Yale Over a Fraternity Culture They Say Enables Harassment, N.Y. Times (Feb. 12, 2019), https://www.nytimes.com/2019/02/12/us/yale-fraternities.html.
[2] Eren Orbay, The Long Decline of DKE, Brett Kavanaugh’s Fraternity at Yale, The New Yorker (Sep. 25, 2018), https://www.newyorker.com/culture/culture-desk/the-long-decline-of-dke-brett-kavanaughs-fraternity-at-yale.
[3] Jeremy Bauer-Wolf, A Different Challenge to Fraternities, Inside Higher Ed (Feb. 13, 2019), https://www.insidehighered.com/news/2019/02/13/yale-university-sued-over-fraternity-culture-and-plaintiffs-demand-coeducation.
[4] 20 U.S.C. § 1681 (2018).
[5] Frank Dimatria, Lawsuits Against Fraternities: Reveal Risks and Responsibilities, Insurance News (July 25, 2014), https://insurancenewsnet.com/oarticle/Lawsuits-Against-Fraternities-Reveal-Risks-and-Responsibilities-a-535697#.XRpR4ZNKgWo.
[6] Sigma Chi, Frequently Asked Questions, http://www.sigmachi.org/sites/default/files/EDU/Risk%20Managers/RMF_Frequently_Asked_Questions.pdf (last visited July 17, 2019).
[7] Caroline S. Engelmayer and Michael E. Xie, Fox, Delphic-Bee Clubs Among 15 Social Groups to Promise Co-Ed Status, Escaping Sanctions, The Harvard Crimson (Sep. 8, 2018), https://www.thecrimson.com/article/2018/9/8/15-groups-recognized/.