2011-06-27 16:12:04 - Although Catholic University has refused more than a dozen media requests through Thursday for an explanation of why its announced plan to require all students to live in sex-segregated dormitories does not violate the D.C. Human Rights Act, claiming that it hadn't received any legal papers, a postal receipt shows that a formal Notice of Intent to Take Legal Action was served upon it on Wednesday - so it is now clearly able to explain its legal position if it wishes in response to renewed media requests.

Meanwhile, the public interest law professor who first raised the issue has been personally attacked on the web site of the Archdiocese of Washington with claims that he is a "secularist" attempting to "erode religious freedom," suggesting that he is "neo-pagan," and comparing him to those who "spy on the freedom we have in Christ Jesus, and to make us all slaves (Gal 2;4 The personal attack, apparently sanctioned by the Archdiocese, was written by Msgr. Charles Pope. blog.adw.org/2011/06/single-sex-dorms-at-catholic-university-bri ..

Law professor John Banzhaf has suggested that Catholic's unwillingness to explain why it is so confident that segregating students on the basis of gender does not violate the law, especially in the face of controlling legal precedent that even the religious

motivations and the strongly held religious beliefs of a university do not excuse discrimination, suggests that the university may not have any legal basis, although it has repeatedly stated that it is confident of its legal position. www.foxnews.com/on-air/america-live/index.html

Professor Banzhaf has provided the following summary of the relevant law to assist in evaluating any legal arguments Catholic may now advance if called upon by the media to explain its position now that it can no longer claim that it hasn't been served or otherwise hadn't seen the legal documents.

The D.C. Human Rights Act is regarded as the toughest and most comprehensive anti-discrimination statute in the country, and it provides for many penalties, attorney fees, and even punitive damages. The D.C. Court of Appeals has held that it applies to universities, even Catholic ones, despite their teachings.

The statute prohibits any discrimination based upon factors like race, sex, or sexual orientation unless such discrimination is absolutely necessary for conducting business. For example, a university may segregate its locker/changing rooms and communal shower facilities on the basis of sex because it is absolutely necessary - that's why, for example, virtually every university and business finds it necessary to do so - but it cannot, for example, restrict its course offerings on the basis of gender.

Thus, since Catholic University itself has had mixed-gender dormitories since 1982, as do virtually all other universities in DC and elsewhere - including Georgetown, which is also Catholic - it seems clear that CU cannot meet the statutory test: "a 'business necessity' exception is applicable only in each individual case where it can be proved by a respondent that, without such exception, such business cannot be conducted." ohr.dc.gov/ohr/cwp/view,a,3,q,491858,ohrNav,|30953|.asp

The motivation or purpose behind the discrimination is legally irrelevant. As the statute expressly states: "a 'business necessity' exception cannot be justified by . . . the preferences of co-workers, employers, customers or any other person." As Prof. Banzhaf put it, the road to sex discrimination, like the road to hell, is often paved with good intentions, but they are no defense to illegal conduct.

Discrimination by a university also cannot be justified by a religious purpose or by its religious teachings or mission. For example, the District's highest court ruled that Georgetown University's refusal to provide equal access of its facilities to an organization of gay students promoting homosexuality was a violation of the act, despite the very strong teachings of the Catholic Church on this subject, and the university's expressed purpose of seeking to discourage such sexual acts.

Here's how the court summarized its ruling: "The Human Rights Act does, however, mandate that the student groups be given equal access to any additional 'facilities and services' triggered by that status. Georgetown's asserted free exercise [of religion] defense does not overcome the Human Rights Act's edict that the tangible benefits be distributed without regard to sexual orientation." Similarly, facilities, services and other benefits, including the option to seeking housing in different residential dormitories (since each has unique features and advantages) must be distributed without regard to gender, argues Banzhaf. www.leagle.com/xmlResult.aspx?xmldoc=1987537536A2d1_1537.xml&doc ..

There are only two very narrow exemptions written into the Act for religious organizations. Under the statute, religious organizations are expressly permitted - in admissions and in providing housing accommodations - to limit or give preference to "persons of the same religion or political persuasion"; i.e., to discriminate against persons on the basis of their religion, but not on the basis of their gender.

Since the statute does carve out two exceptions to its general prohibitions for religious organizations, it would seem very likely that the statutory exemptions would also have included permission to discriminate on the basis of gender (as well as religion) if that was what the legislators intended. Since these two sections of the act expressly permit discrimination based upon religion but not upon gender, it's clear that the legislators did not intend to permit discrimination based upon gender simply because the organization involved is a religious one, suggests Banzhaf

The statute also provides that discrimination cannot be justified by the characteristics or stereotypes of different groups. Yet, as President Garvey has said in justifying this new policy, he regards women as more civilized than men - a clear stereotyped view of the genders. Garvey opined: "I would have thought that young women would have a civilizing influence on young men. . . . Young women are trying to keep up—and young men are encouraging them (maybe because it facilitates hooking up online.wsj.com/article/SB100014240527023044323045763698435922423 ..

Garvey also emphasized, in support of his plan to segregate all dormitories on the basis of sex, that: "Rates of depression reach 20% for young women who have had two or more sexual partners in the last year, almost double the rate for women who have had none. Sexually active young men do more poorly than abstainers in their academic work."

Thus the sex discrimination appears to be based not upon business necessity or even Catholic doctrine, but rather upon his preferences, and upon his stereotypical characterization of one group as opposed to another; the two basis which are clearly illegal under the act which expressly provides: "a 'business necessity' exception cannot be justified by the facts of increased cost to business, business efficiency, the comparative characteristics of one group as opposed to another, the stereotyped characterization of one group as opposed to another, and the preferences of co-workers, employers, customers or any other person."

As noted above, sex discrimination cannot be justified by anything short of proof that, without such discrimination, the institution would go out of business. Here are examples, from the many proceedings in which Prof. Banzhaf has been successful, of the arguments which have been made, and 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. Nevertheless, the Club was ordered to admit female members.
* V.M.I. claimed that admitting women would destroy the esprit de corps and unique educational mission of the school, lead to different physical and dress standards, and violate the university's and students' constitutional freedom of association. Yet the courts ordered women to be admitted
* 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. But they were forced to agree to settlements prohibiting different rates for laundering shirts based upon gender.
* Bars argued that it was OK to charge men more than women for drinks and/or admission on ladies nights because both genders benefited: women were happy to get cheap drinks, and men were happy to have more women come into the bar to drink the cheap drinks. But bars and nightclubs in the District were forced to agree to end this gender discrimination; a result consistent with many other jurisdictions around the country.
* 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. But such stereotypes were not a legal defense, and the hair cutters were forced to sign settlement agreements ending the practice.
* The D.C. City Paper argued that the First Amendment permitted it to run ads for ladies nights in bars located outside D.C. where the practice hadn't been outlawed, but they were forced cease the practice, and apologize for the ads, as a result of a settlement with the D.C. Office of Human Rights.

Although the individual views of others - including the perpetrator John Garvey, or even students at his university - are irrelevant to the issue of the legality of gender-segregated dorms, current students do seem to clearly prefer mixed-gender dormitories. Of the university's 17 residence halls and 25 modular housing units, only 6 are currently segregated by sex. www.washingtontimes.com/news/2011/jun/17/single-sex-dorms-right- ..

Moreover, looking at the study upon which Garvey principally relied in deciding to end mixed-gender dorms in an effort to reduce drinking and sex, the author of the study himself said that's an improper use of his research. As Prof. Banzhaf notes, "when your own expert witness disagrees with you, you are on pretty shaky legal ground."

As NPR put it: "Garvey also cites a 2009 study that found students in co-ed dorms are twice as likely to binge drink and have multiple sexual partners. Brian Willoughby, a professor at Brigham Young University, authored the study. 'A lot of people will ask me, 'So, is your research saying we should just get rid of co-ed dorms? And I don't think that's what the research is saying" he says. www.npr.org/2011/06/21/137303208/catholic-university-to-phase-ou ..

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest 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
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