Courtesy of Ian Christmann
The day before Christine Blasey Ford testified in Congress that Supreme Court nominee Brett Kavanaugh ’87 LAW ’90 had attempted to rape her when he was in high school, Ry Walker ’20 climbed onto the Women’s Table in front of hundreds of her classmates. As water rushed over the spiraling zeros, carved into the fountain to represent the number of women at Yale before coeducation, Walker called out to the students who had gathered to protest Kavanaugh’s nomination to highest court in the nation.
“This institution continues to enable powerful and abusive men,” she said to the crowd. “Yale’s complicit, that we know!”
The crowd called back, “Kavanaugh has got to go!”
Two weeks later, the battle over Kavanaugh’s appointment was over. He took his seat as an associate justice on the Supreme Court next to Justice Clarence Thomas LAW ’74. But at Yale, the battle over the social spaces that Kavanaugh once occupied continues. Although Yale had been co-ed for more than a decade when Kavanaugh entered as an undergraduate in 1983, his high school (Georgetown Prep), college fraternity (Delta Kappa Epsilon) and secret society (T&C, which stands for Truth and Courage but was more often called Tit and Clit) were all-male.
“How are we going to talk about Brett Kavanaugh if we don’t criticize the spaces that made him, and that exist now, and are still shaping young men?” asked Anna McNeil ’20, a close friend of Walker.
But McNeil and Walker do not want to just criticize those spaces. They want to join them. On Tuesday, Feb. 12, McNeil and Walker, along with Ellie Singer ’21, filed a class action lawsuit alleging sex discrimination against Yale University, along with the local chapters, national organizations and housing corporations of nine fraternities on campus.
“So many years after Yale’s coeducation, one of the most important spaces on campus for social life and for making connections is still gender-segregated,” Singer said. “And that’s why I’m willing to put myself out there on the complaint.”
Walker, McNeil and Singer explained their arguments over burritos at a taco joint near campus. Though their academic interests differ — the three women are majoring in astrophysics and African American studies, art history, and political science, respectively — they are all directors of Engender, a student organization founded in 2016 to fight for the coeducation of Greek life at Yale. It is a battle Walker felt ready to take on. In high school, she and her friends countered the traditionally male-dominated party scene by hosting an event called Femme Fest. They held the party in a space owned by a woman, with a female DJ, female bouncers and tickets that read “I Heart Consent.”
“I felt so revved up by that experience in high school,” Walker said. “And then to come to college and suddenly be going to frat doors, where once again it was this group of older anonymous men who controlled every bit of the physical spaces of my social life. … [I thought] that’s not the way it has to be.”
The suit alleges two kinds of sex discrimination in Yale fraternities: refusal to admit women and nonbinary members (to which the fraternities freely admit) and perpetuating a hostile sexual environment (to which they do not.)
The complaint argues that Yale violates Title IX by allowing fraternities to discriminate against women and remaining “deliberately indifferent” to the hostile sexual environment that fraternities create. The complaint also alleges that the fraternities are violating the Federal Fair Housing Act by discriminating against women and nonbinary students in their housing; that Yale and the fraternities violate a Connecticut state law that prohibits gender discrimination in “public accommodations”; that Yale has engaged in unfair business practices; and that Yale has breached its contract with its female and nonbinary students.
University spokesperson Tom Conroy told the News that he would not comment on the specifics of the lawsuit, but referred to a recent email from Dean of Yale College Marvin Chun releasing a review on the culture of the DKE fraternity and telling students not to attend parties at Delta Kappa Epsilon. Conroy also referred to “the many ways Yale College is partnering with its students to build a better culture.”
The presidents of the Yale chapters of Chi Psi, Delta Kappa Epsilon, Sigma Chi and Zeta Psi did not respond to requests for comment for this article. The presidents of Alpha Delta Phi, Alpha Epsilon Pi and Sigma Nu referred requests to their national spokespeople, none of whom responded to requests for comment.
The national organizations of all nine fraternities did not reply to requests for comment, except for Zeta Psi, which referred to a statement from its attorney. The president of Leo, formerly known as Sigma Alpha Epsilon, declined a request for comment, stating that it was organizational policy not to have a press representative.
“No Means Yes”
“For over a decade,” the complaint reads, “there have been numerous prominent cases of sexual assault and gender discrimination at Yale University related to all-male fraternities.”
In 2008, Zeta Psi brothers posed outside the Women’s Center with a sign that read “We Love Yale Sluts.” In 2010, DKE brothers stood outside freshman dorms on Old Campus chanting, “No Means Yes! Yes Means Anal.” The group was subsequently suspended from campus for five years.
Scandal engulfed the fraternity again in 2018, after Business Insider published an article about Luke Persichetti, who had served as DKE’s president between 2016 and 2017. Persichetti had been suspended for three semesters for sexually assaulting another student. Persichetti declined to comment for this story. Soon after the Business Insider article was released, the News reported eight more allegations of sexual misconduct against DKE brothers.
DKE’s national organization responded to the allegations by conducting an internal review of the local chapter. After surveying members of the chapter, they concluded that the chapter did not have a hostile sexual climate. In producing the report, the national organization did not ask for the opinions of any women.
At the request of Chun, Yale conducted its own review of DKE.
The three-page report, compiled by Assistant Provost Jason Killheffer, investigated issues of alcohol consumption and party management, but did not address directly the eight accounts of sexual assault published by the News. In his campuswide email, Chun condemned the culture at DKE and the parties it hosts: “I also offer some plain advice about events like these: don’t go to them.”
Not Just DKE
The women emphasize that their lawsuit is not just targeted at DKE.
“Just focusing on those bad fraternities allows every other fraternity to hide behind them and say ‘Oh, we don’t do that. We don’t have seven rape accusations,’” Singer said. “But that doesn’t mean that those spaces don’t perpetuate the same toxic masculinity, the same male privilege, even if they have different ways of doing so.”
Engender organized women and non-binary students to rush Sigma Phi Epsilon, the only fraternity at Yale that has allowed women to rush. Engender’s rush is entirely symbolic, because as per Sig Ep’s national bylaws, only men can receive bids from the fraternity.
Will McGrew ’18, a former member of SigEp and a founding member of Engender who graduated last year, emphasized that “even if there are some [fraternities] that are better than others, the rule that makes them all male has negative impacts.”
The News reported that one member of SigEp was suspended for two semesters in April 2017 for penetration without consent. In February 2018, SigEp implemented new sexual misconduct policies that would require brothers to preemptively withdraw from the fraternity during any pending sexual misconduct investigation of them by Title IX or the University-Wide Committee.
Nevertheless, when another SigEp brother was suspended for sexual assault in April 2018, he did not abide by the chapter’s new policy to inform fraternity leadership about the complaint and to withdraw from the organization. The News reported that it took three months from when the Title IX complaint was filed to when the student left the fraternity for personal reasons.
Yani Fabre ’20, the current president of SigEp, wrote in an email that the fraternity “condemns any form of sexual misconduct and is committed to maintaining the utmost standards of accountability for our membership’s behavior.”
Assault accusations have not been SigEp’s only problem in recent years. “A few years ago, there was an issue where someone in the chapter had killed someone basically,” he said, “had run a car into someone at a tailgating event.” McGrew was referring to a 2011 incident in which a member of the fraternity fatally struck a woman with a U-Haul truck carrying beer kegs in a parking lot before the Harvard-Yale game. According to the Hartford Courant, the driver passed a field sobriety test and was charged with reckless driving and negligent homicide.
According to McGrew, most of the positive changes he saw with respect to SigEp’s sexual culture during his years as a brother came from women who were either dating or friends with members of the chapter. Though he said many brothers have good intentions, “it’s an all-male space, it’s really hard to have a zero tolerance policy [for sexual assault].”
He spoke about a member of SigEp who graduated in 2017, whom he said had a reputation for repeat offenses of sexual harassment and assault.
“People in the organization would say ‘Oh, I hate that guy,’” McGrew said. “But … most people were not going to take the risk to say ‘Let’s kick him out,’ because he has people who are going to come to his defense.”
McGrew explained that because the fraternity is made up of men, they are inclined to sympathize with men over women.
“At the end of the day there is just this bias towards the man, because it’s a male only organization. Just like if there was a white only organization, you would expect there to be a bias towards the white perspective.”
The only solution, McGrew said, is to admit women as full members of the fraternity.
Engender conducts weekly meetings, holds protests, and, for the past two years, has organized women and non-binary students to rush Sigma Phi Epsilon, the only fraternity at Yale that has allowed women to rush. Engender’s rush is entirely symbolic, because as per Sig Ep’s national bylaws, only men can receive bids from the fraternity.
“It Was So Normalized”
The women’s lawsuit alleges a culture of sexual harassment, assault and discrimination at Yale fraternities.
In their first week at Yale, students are assigned to meet in groups with a freshman counselor, whose job is to acquaint incoming first years with Yale’s culture and resources. At one of these early meetings, McNeil told her classmates that she had been groped at a Zeta Psi party.
“I said in front of my FroCo group that I went there, and it was crazy — men were touching women completely without consent, and it was so normalized. No one was doing anything about it,” McNeil said.
According to McNeil, the group of students, in addition to her first-year counselor, who was mandated to report any accounts of sexual misconduct to the Title IX office, treated McNeil’s description of the Zeta party as though it was unpleasant but typical.
McNeil said one of her classmates asked her: “Didn’t you consent just by showing up?”
Jackie Ferro ’17, McNeil’s first-year counselor, confirmed McNeil’s account of what happened. Ferro said that after the meeting she tried to “make an effort to talk to the kid who said the problematic thing about consenting,” but that she now regrets that she did not think to report the assaults at Zeta or speak individually with McNeil about them.
“The fact that, in context, that didn’t even cross my mind is ultimately a bad sign,” Ferro said, “not just about me as a FroCo but about Yale’s sexual culture generally.”
A month into her first year, Walker said, an older student told her she might not be let in at the door of a DKE party because she was black. “I was like ‘aw, damn,’” she said with a sarcastic tinge. “‘That sucks.’”
Walker and her friends went to the DKE party anyway.
“Looking back on it, I don’t know why I still went,” she said. “I guess I thought it wasn’t real.”
When she got to the party, the complaint says, a DKE brother looked Walker up and down, denied her entrance and then admitted several white women behind her.
Neither the president of Zeta nor the last two presidents of DKE responded to requests for comment.
The Legal Strategy
Before filing their class action lawsuit on Tuesday, the women filed a civil rights complaint with the Connecticut Office of Human Rights and Opportunities. The July 12 complaint alleged that Yale’s fraternities violated a state law that offers protection from discrimination based on gender in “public accommodations.”
According to David Tracey ’08, the lawyer for the three women, the CHRO charge was a prerequisite for those charges in the federal lawsuit brought under the Connecticut public accommodations law. Tracey described the CHRO charge as “scaffolding on which you build the larger federal complaint.”
The public accommodations argument, a legal strategy inspired by the one that Princeton student Sally Frank used in the 1980s to force the integration of Princeton’s all-male eating clubs, includes one risky element: For the argument to hold, the women must prove that fraternities qualify as “public accommodations” under the law.
In 1990, the New Jersey Supreme Court found in Frank v. Ivy Club that Princeton’s off-campus eating clubs qualified as “public accommodations” under New Jersey law because they had a relationship of “integral connection and mutual benefit” with Princeton University, which itself is a public accommodation. The application of public accommodation law to Greek Life is new, but the complaint argues that Yale and its fraternities are also “mutually dependent,” with the fraternities operating as an arm of the University. The complaint points to the fact that although the fraternities are technically independent organizations, their membership is made up exclusively of Yale students, allows the organizations to use Yale resources and maintains a Greek life page on its admissions website.
Tracey explained that the CHRO split the July 12 complaint into 84 separate “matters,” to be adjudicated separately. They pitted each woman individually against each fraternity chapter, national organization and housing corporation. For almost every pairing, he explained, the CHRO released jurisdiction without additional comment. But for the pairing of Ellie Singer versus Yale’s chapter of Zeta, the CHRO released jurisdiction to the court while also dismissing the complaint in a two-page case assessment review which argued that because Zeta “mostly consists of the Yale football team or close associates” and most of their “functions are limited to members and guests, not the public at large,” the CHRO does not believe Zeta qualifies as a public accommodation.
The CHRO’s case assessment review, however, applies only to one of the 84 combinations of plaintiffs and defendants — Singer versus the local chapter of Zeta — and is not binding on a federal court. The fact-finding processes are also different. Tracey said he believed the discovery process afforded by a federal case would allow for a better investigation.
“They did no investigation into what Zeta parties are like,” he said. “That is a much shallower inquiry than we will be able to engage in in federal discovery.”
The fraternities are all represented by Joan M. Gilbride, the managing partner of Kaufman Borgeest & Ryan LLP, a New York City law firm that specializes in corporate defense. She called the accusations “baseless and unfounded,” and argued that the public accommodations argument “was already resoundingly rejected just last month by the Connecticut Commission on Human Rights and Opportunities.”
But Tracey argued that this “decision … has no impact on our case.” He explained that the CHRO’s finding was not binding on the federal court, did not address either of the other two plaintiffs or 26 defendants and “does not concern [any of] the claims under Title IX, the Fair Housing Act, Connecticut’s Unfair Trade Practices Act or Breach of Contract.”
Gilbride’s office also referred requests for comment to Heather Kirk, the chief communications officer of the Interfraternity Council. In a statement to the News in November, Kirk said that all-male organizations provide “valuable personal growth opportunities.” Likewise,” she wrote that “there is no question all-women’s organizations are uniquely empowering.”
The three women who filed the lawsuit disagree.
“I don’t believe there is any compelling justification for the separation by gender into fraternities and sororities,” Tracey said. “[It] boils down to stereotypical assumptions about what it means to be a man and what it means to be a woman.”
He added that the separation creates discrimination against non-binary students. Tracey also argued that sororities at Yale have weaker networks and economic resources than fraternities, partly due to the fact that “coeducation [at Yale] is only 50 years old.” He explained that fraternities and sororities have unequal abilities to host parties, due to double standards in their national bylaws, which make the only party spaces for women and non-binary people spaces that are controlled by men.
Kirk made one other argument on behalf of Yale fraternities. She wrote: “We believe this action will not strengthen a sense of community but, regrettably, threaten to erode it by taking away students’ basic freedom of choice to join organizations that best fit their needs.”
David Cohen, a professor of law at Drexel University, who is on Engender’s advisory board, remained unconvinced.
“Just take out sex and put in race,” he said “and you’ll see it’s identical to what was being said before Brown v. Board of Education.”
In 2016, Harvard instituted sanctions against single-gender organizations on its campus, including fraternities, sororities and final clubs.
Rather than discipline fraternities, Yale seems to be distancing itself from its Greek organizations. An analysis of the “Greek Life” page on Yale’s Admissions Website reveals that sometime in the last two years, Yale removed DKE and Zeta from its list of fraternities. Mark Dunn, the associate director of admissions who manages the Yale Admissions website, said the change was part of regular site maintenance, and that organizations are only listed on the Yale Admissions website if they are registered student groups. The admissions website, however, continues to list the Sigma Phi Epsilon, Chi Psi and Sigma Chi fraternities, none of which are registered student groups.
When Chun released the committee’s findings on DKE culture, he also made sure to emphasize Yale’s hands-off approach to Greek Life.
“Although Yale College makes itself available informally to fraternities and sororities,” Chun wrote, “it plays no formal role in the operations of organizations not affiliated with the university, including Greek organizations.”
In addition, a 2016 Yale College Council Task Force report on Greek Life estimates that although Yale advertises a 10 percent participation rate in Greek Life, that number actually describes only students in sororities.
Just two months after the three women’s July 12 civil rights complaint — which cited the fact that Yale made students register off-campus parties as one small piece of proof of the mutually beneficial relationship between Yale and its fraternities — Dean of Student Affairs Camille Lizarribar sent an email announcing that off-campus party registration was cancelled. When asked why, Lizarribar said it was because the policy “wasn’t working.”
This is not the first time that Yale has been a battleground for Title IX case law. As an undergraduate, Ann Olivarius ’77 LAW ’86 SOM ’86 sued Yale as one plaintiff in the Second Circuit case Alexander v. Yale, a landmark case that pioneered sexual harassment law. She said that she was threatened by multiple Yale administrators, one of whom Olivarius said told a TIME Magazine reporter that she was a lesbian (not meant as a compliment) who was flunking out of college. Olivarius went on to graduate summa cum laude and become a Rhodes scholar, and was dating her now-husband at the time.
Today, Olivarius said, she is treated as a hero.
“When I go back to Yale now, I’m treated as a legal celebrity, one of the great success stories of Yale Law School,” she remarked.
Olivarius said that in 2014, when Yale was looking for a new general counsel, several members of the Yale Corporation reached out to her about taking the job. She told them if Yale wanted to run “a legal office that other major educational institutions would want to emulate,” a legal office that would “balance Yale’s interests … with the respect and protections Yale owes to its faculty, employees and students,” she might be “Yale’s girl.” Olivarius said that she later asked that her name be withdrawn from consideration when she realized Yale was not looking “to hire an established leader in education law or an activist general counsel.”
University spokesperson Tom Conroy did not respond to request for comment.
“We Were Afraid”
In April 2018, after conducting its internal report, DKE resumed social events, and hosted its annual spring fling party, known as Tang.
In an anonymous op-ed in the Yale Daily News, a student who said she had been assaulted by a DKE brother asked her classmates to boycott Tang. “Yale students who attend DKE’s parties make their politics explicit,” she wrote. “They care more about kegs of cheap beer and hookups than they do about denouncing assailants and supporting survivors.”
In response to the anonymous op-ed, Engender decided to protest Tang. More than 300 students agreed to boycott Tang by clicking “Going” on the “Boycott Tang” Facebook event. About 10 Engender members decided to protest outside the party itself.
At first, several Engender members said, the fraternity brothers were pleasant, bringing them seats and beer. But as the afternoon went on, a member of the Leo fraternity got increasingly belligerent.
“He was shouting at me very aggressively,” said McNeil, “to the point where one person that I was with said to him ‘please step back, you’re too close to her.’”
The two women with McNeil confirmed her story, and one of them added that Nick Hardy, then president of DKE, also restrained the Leo brother.
“One of the brothers who was physically intoxicated got very close to Anna’s face,” she said, “and at that point, [we] were afraid that it would escalate into something more. The brothers realized this as well and pulled him back. … We decided to leave.” Neither Hardy nor the Leo brother responded to requests for comment.
“It’s been really difficult,” McNeil said. “Friendships have been put at stake, relationships have been damaged.” She said she, Walker and Singer had all faced backlash for filing the complaint.
“If there were some other way that Yale could address this, which there definitely is, because peer institutions have done it, we would much rather have taken that route,” McNeil sighed.
“But Yale told us we were alone.”
Anna Blech | email@example.com .
Correction: A previous version of this article incorrectly stated that the SigEp brother who fatally struck a woman with a U-Haul in 2011 failed a field sobriety test. In fact, he passed the test.