Rushing to Get Rid of Greek Life and Social Clubs: The Impact of Bostock on Single-Sex College Organizations.

• Author: Scherer, Christine

CONTENTS I. THE CURRENT STATUS OF SINGLE-SEX ORGANIZATIONS ON CAMPUS A. Greek Life: Where Binge Drinking, Hazing, and Sexual Assault Run Rampant B. Social Clubs: Only for the Most Elite C. Why Don't Schools Ban Single-Sex Organizations? It's All About the Money II. WHAT HAVE THE SUPREME COURT AND CONGRESS SAID ABOUT SINGLE-SEX ORGANIZATIONS? A. What the Supreme Court Has Said About the Freedom of Association B. Congress Passed Title IX and Exempted Greek Life from Its Requirements III. HARVARD DECIDES TO PUNISH STUDENTS WHO PARTICIPATE IN SINGLE-SEX ORGANIZATIONS IV. THE BOSTOCK OPINION CALLS INTO QUESTION HARVARD'S POLICY V. A RACE TO FILE: PLAINTIFFS IN THE HARVARD CASE FILED FOR A PRELIMINARY INJUNCTION VI. NOW WHAT? WHAT COLLEGES AND UNIVERSITIES CAN DO TO REGULATE EXISTING GREEK LIFE ORGANIZATIONS ON THEIR CAMPUSES A. Colleges and Universities Could Force All Greek Life Organizations to Become Unrecognized Student Groups B. Keeping Greek Life on Campus Allows Colleges and Universities to Exert Greater Control on Greek Organizations 1. Forcing Greek Chapters to Become Non-Residential 2. Regulating When Students Can Rush CONCLUSION The death of George Floyd in May of 2020 pushed America to a point of reckoning with its history of systemic racism still permeating in society today. (1) America has been forced to reflect on the injustices our country was built upon, to reimagine a new way forward, and to scrutinize the organizations that are considered staples in our culture and acknowledge how they play a part in racism and other forms of discrimination. (2) From workplace diversity to culture on college campuses, nearly every aspect of life is under examination to determine ways to dismantle systemic racism and push for a truly inclusive society. (3)

Greek Life organizations were hit particularly hard by the nation's self-reflection. (4) Throughout the spring and summer of 2020, Greek Life members disaffiliated (5) from their chapters in mass, (6) with some colleges and universities estimating that nearly 10% of all active Greek Life members disaffiliated from their chapters. (7) Coupled with the mass disaffiliation were calls from students for colleges and universities to abolish Greek Life. (8) But this is not the first time there has been a push to abolish Greek Life--calls to do so have been loud for decades. Campus Greek Life has had a problematic history filled with racism, sexism, alcohol abuse, and sexual assault. (9) Colleges and universities are in the tough position of having to regulate a powerful system that many see as a ticking time bomb.

In 2016, Harvard issued a controversial Policy that barred students who participated in single-sex organizations, even those not affiliated with campus, from holding leadership positions, athletic team captain positions, and obtaining prestigious fellowships. (10) As the premiere university in the United States, Harvard's policies and procedures often set an example or serve as a template for other colleges and universities, and this Policy was no exception. Had Harvard finally found a way to conveniently rid itself of Greek Life all while promoting a more inclusive campus? The Policy promised to send sweeping reform across college and university campuses across the country. To prevent this from happening, sororities and fraternities that catered to Harvard students sued the university, arguing that the Policy discriminated against students on the basis of sex. (11) Harvard initially fought the lawsuit, but in June of 2020, the school announced it would no longer enforce the Policy. (12) In announcing its reasoning, Harvard pointed to the Supreme Court's decision in Bostock v. Clayton County (13)--which was decided only fourteen days prior to the announcement.

To be clear, Harvard's decision to no longer enforce the single-sex Policy is not binding on other colleges and universities. There was never a federal or state court decision that decided the merits of the fraternity and sorority's claims that the Policy discriminated on the basis of sex. But there is no doubt that having such an elite university interpret a Supreme Court decision this way will deter other colleges and universities from enacting similar policies. And this creates an obstacle in colleges' and universities' ability to respond to the growing public relations problem that is the American Greek Life system.

This Comment seeks to examine the background of the Harvard single-sex Policy and how the Supreme Court's Bostock opinion now prevents Harvard from enforcing that Policy. Part I will examine the current status of single-sex organizations on college campuses. Part II will lay out current Supreme Court jurisprudence and Congressional action on the matter. Part III will provide a background into Harvard's Policy. Part IV will analyze the effect of the Bostock opinion on Harvard's single-sex Policy. Finally, Part V will explore what this means for colleges who wish to exert more control over their Greek organizations.

As an initial matter, it is important to note that this Comment will only be examining social Greek organizations that are members of the National Panhellenic Conference (14) or the North American Interfraternity Conference. (15) Greek Life in reality is much more expansive. It also includes local Greek organizations, (16) Historically Black Greek Letter Organizations, (17) academic honor fraternities, (18) major-specific fraternities, (19) and service fraternities. (20) Though all aspects of Greek Life should be examined and reimagined to promote inclusiveness and equality on college and university campuses, these types of Greek organizations are beyond the purview of this Comment.

1. THE CURRENT STATUS OF SINGLE-SEX ORGANIZATIONS ON CAMPUS

   College campuses are ripe with opportunities for students to expand their horizons through involvement in various campus groups. Groups may organize over a shared interest in all kinds of subject matter. These groups can include political groups, (21) charitable organizations, (22) and major-specific clubs designed to provide students networking opportunities. (23) In general, college and university campuses aim to be inclusive and tolerant of different upbringings, viewpoints, and socioeconomic status. (24) But some college organizations have requirements to become members, which inherently goes against the inclusiveness campuses purport to value. For example, some organizations require a certain GPA to be offered membership. (25) Other performance-based groups may require an audition. (26) But the most controversial types of groups, of which social Greek organizations are a part of, are those that require members to identify as a certain sex for membership. (27)

   Single-sex organizations are typically some of the oldest and most established organizations on campus. The most obvious and widespread are Greek organizations, where fraternities cater to men and sororities cater to women. (28) But, at some of the elite Ivy league universities, the wealthiest and most qualified men are members of "social clubs." (29) Traditionally, Greek organizations and social clubs have a history of promoting underage-drinking and committing sexual assault at parties that their members throw. (30) More recently, as the concept of gender and sex become more fluid, there is concern that Greek Life organizations and social clubs discriminate against members of the other sex and those who do not identify as strictly male or female. Thus, there is a growing argument that the continuation of single-sex organizations is an antiquated tradition that colleges and universities should abandon. (31)

   1. Greek Life: Where Binge Drinking, Hazing, and Sexual Assault Run Rampant

      The first fraternal organization, Phi Beta Kappa, was founded in 1776 as a literary and social club at the College of William and Mary. (32) It had the characteristics found in most present-day fraternities: an emphasis of friendship, oaths, ritual, a badge, and a desire for nationwide expansion. (33) In 1779, the organization expanded and chartered chapters at Harvard and Yale. (34) Sororities followed in 1851 at Wesleyan Female College with the Adelphean Society, now known as Alpha Delta Pi. (35) Kappa Alpha Theta was founded in 1870 at DePauw University, which was the first sorority to be founded with Greek letters. (36) Sororities and fraternities eventually created councils to govern all the organizations, the National Panhellenic Conference (37) and the North American Interfraternity Conference. (38)

      As the Baird's Manual notes, " [t]he American college fraternity is an American institution and the chapter in the form it ideally exists on the college campus is a miniature of the larger American democracy." (39) Fraternities are formed through mutual selection where younger members share a common purpose to promote the well-being of the group and the older members aim to teach and guide the younger members in their training. (40) Until the middle of the nineteenth century, Greek organizations were prohibited on most college campuses and usually required faculty members supervise meetings. (41) Francis Wayland, president of Brown University from 1827 until 1855 once wrote, "I would incomparably rather resign my place than allow young men the right to meet in secret when they choose without the knowledge of the Faculty." (42) Because of widespread prohibitions on meeting, a major component of fraternities and sororities was, and still is, secrecy.

      An important part of this secrecy is each fraternity or sorority's ritual. The ritual is a somber ceremony where initiated members reflect on the purpose for their fraternity and proclaim their loyalty to these ideals and to their brothers. (43) Though fraternity values can be publicly proclaimed, each organization's ritual is secret, and Greek members are sworn to secrecy as to the specifics of the ceremonies. (44) Ritual ceremonies bind...