Phi Beta Cons

The Right take on higher education.

The Second Circuit and the Perils of Compromise


In a case decided today, the Second Circuit Court of appeals held that the College of Staten Island could deny recognition to an all-male Jewish fraternity on the grounds that the fraternity discriminated on the basis of gender.   In other words, the college will only recognize the “fraternity” if it’s open to women.

The constitutional issue was slightly different than that presented in cases like the Christian Legal Society’s lawsuit against Southern Illinois or the Roman Catholic Foundation’s recent challenge to the University of Wisconsin’s nondiscrimination laws.  In the CLS and RCF cases, the decisions turned on the groups’ right to expressive association (i.e. whether the state could force the inclusion of members or leaders who did not share the group’s beliefs).  In the Staten Island case, the decision turned on the group’s right to intimate association (which focuses less on the group’s message and much more on the right include/exclude individuals from one’s close inner circle of relationships). 

In finding that the university’s nondiscrimination rules trumped the fraternity’s right to intimate association, the fraternity appeared to have been legally crippled by its efforts to accommodate the university’s diversity/nondiscrimination dogma.  The court found that the fraternity’s intimate associational interests were weak in part because it (i) was seeking to grow larger (to 50 pledges per semester) ; (ii) was not terribly selective in its membership; and (iii) had a generally inclusive purpose.  In other words, the group lost its rights because it was not small, selective, and insular.  Its efforts to open up membership to non-Jews, its events to women, and to adopt inclusive statements actually worked against the fraternity.   Because the fraternity had gone most of the way to accommodate the university, the court required it go all the way.

Student groups are under relentless pressure to bow before university inclusion policies, and compromise is extremely common.  “This far but no farther” is a common refrain from embattled student groups.  The Second Circuit’s decision shows that flexibility can present its own risks.  By punishing the fraternity’s inclusiveness, the Second Circuit has succeeded primarily in deterring compromise and increasing polarization.  What good is dialogue and give and take if the result could be the total (and inadvertent) surrender of fundamental rights?


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