Surbhi Bharadwaj

The class-action lawsuit against the University and its nine fraternity chapters to mandate that Yale fraternities gender integrate will not be an easy one to win for the three undergraduate plaintiffs, according to three legal experts interviewed by the News.

The lawsuit, which was filed in the United States District Court in Connecticut on Feb. 12, alleges that Yale fraternities discriminate based on gender and foster sexually hostile environments in their houses. The three plaintiffs — Anna McNeil ’20, Ry Walker ’20 and Ellie Singer ’21 — claim that the University and its fraternities violate state and federal laws intended to prevent gender-based discrimination, citing Title IX and the Fair Housing Act specifically. Title IX prevents discrimination on the basis of sex within educational programs and activities receiving federal financial assistance, but makes exemptions for certain gender-specific organizations. The Fair Housing Act prohibits gender-based discrimination in housing.

In order to win the lawsuit, the plaintiffs will need to prove the majority of their claims, according to Andrew Miltenberg, a managing partner at Nesenoff & Miltenberg LLP who specializes in campus misconduct due process and Title IX. Due to the length and breadth of the complaint, the plaintiffs may have a hard time supporting their case in court.

“If winning the Yale lawsuit means the plaintiffs have to prove the majority of the claims in their case, it’s a tough case,” Miltenberg said. “It’s headline grabbing, and it allows us to start a dialogue and a discourse on the issues, but I think as a standalone lawsuit, it’s a tough case.”

The complaint argues that there is a “shortage of University-run social spaces” at Yale, calling fraternities the “de-facto social environment” for students on campus.

This designation of fraternities as socially influential spaces that the University uses and depends on as social spaces is important because of certain exemptions offered under Title IX. Traditionally, fraternities, similar to Boy Scout troops and other single-gender groups, are exempt from Title IX provisions, but Yale is not. Designating Yale’s fraternities as within the University’s oversight would lift Yale fraternities’ exemption from complying with Title IX as well, according to Katharine Baker, a professor of law at Chicago-Kent College of Law.

Baker said that cases of gender discrimination are not always as clear-cut as cases of race discrimination, as there remain instances when public gender segregation is not considered discriminatory, citing single-sex restrooms as an example.

She added that because fraternities themselves are generally private entities, it is unclear how instances of their alleged gender discrimination would be classified. Baker said that in order to build a strong case, the plaintiffs must have strong evidence that the University relies on its fraternities as major social spaces.

“They are trying to establish that there is a synergistic relationship between Yale and the fraternities,” she said. “They are saying Yale delegates social functions to the fraternities, and the more they can paint a picture of interdependence, the stronger their case will be.”

According to Michael Gerhardt ’78, a professor in constitutional law at the University of North Carolina Chapel Hill School of Law, it will be an extra hurdle to hold Yale accountable for events that happen off campus. Since a very small number of Yale students actually live in the fraternity houses, Gerhardt said that it is challenging to argue that they fall under the University’s purview.

“It’s really the plaintiffs’ challenge to argue that whatever happened — even off campus— remains the responsibility of Yale and the fraternity organizations,” Gerhardt said. “The question is, is it under Yale’s supervisory authority?”

He added that answering whether off-campus activities legally fall under the University’s jurisdiction will be important to universities across the country, as they grapple with how they should monitor off-campus social spaces. He said that while fraternities may be a part of the Yale community, they are not on-campus organizations and that “at some point jurisdiction ends and [the University] can’t be responsible.”

Miltenberg said that while he does not believe Yale is directly responsible for the actions of the fraternities, the issues of discrimination and sexual misconduct do arise in part because of the lack of oversight by the University.

“I don’t know that getting rid of fraternities makes the environment free of discrimination, and I don’t believe they are inherently discriminatory,” Miltenberg said. “However, I think many fraternities and sororities in many cases are sort of unrestrained — there’s no oversight, and even though the school may say there is, there’s too much ‘anything goes’ [attitude], and that’s why you see a lot of sexual misconduct cases arising out of fraternity events.”

Citing the ongoing Harvard lawsuit in which fraternities and sororities are suing the university over a rule barring members of single-sex clubs from holding leadership positions in other campus groups, Miltenberg said that the two universities may be asking themselves the same question — what role should fraternities and sororities play on campus? Still, he believed the plaintiffs in the Harvard case had a better chance of winning in court, given the “very overreaching” nature of McNeil, Walker and Singer’s allegations against Yale.

“This lawsuit is new in effect and its concept,” Miltenberg said. “It’s long been thought that it’s high time to end the fraternity as a predominant social means on campus, and many universities have been little by little trying to limit them.”

Title IX was passed in 1972.

Audrey Steinkamp | audrey.steinkamp@yale.edu