MANHATTAN (CN) — A panel of the Second Circuit heard a bid Thursday from a group of Yale University students who say the school’s fraternities violated the Fair Housing Act by not allowing students of any gender to live in their houses.
In 2016, Yale students formed the organization Engender, which seeks to advocate equity and inclusion on and around campus. Their first initiative was to integrate the school’s gender-segregated Greek life organizations.
When several of their female-identifying members were denied membership from multiple fraternities, the organization sued Yale and some of the fraternities in 2019 for denying them access to fair housing.
In January, a federal judge dismissed Engender’s claims, finding no violation of the FHA. Engender has since dropped claims against Yale and a few of the fraternities, leaving only seven Greek organizations active in the case.
David Tracey, of Sanford Heisler Sharp LLP, represented Engender on Thursday, arguing for a reversal on the grounds that the fraternities’ behavior clearly violates the FHA.
U.S. Circuit Judge Rosemary Pooler pressed Tracey on the fact that his clients did not ask to live in the fraternity houses, but rather only asked to be members.
Tracey pushed back, saying that wanting to live in the house is implied when applying to be a member of the fraternity.
“The plaintiffs did everything a man would do to live in a fraternity house,” said Tracey. “You join a frat in part because you want to live in the house.”
Attorney for the fraternities Joan Gillbride, of Kaufman Borgeest and Ryan LLP, disagreed, saying a student cannot assume they will get housing with the fraternity simply for becoming a member; they still have to apply.
Further, Gillbride added that the students with Engender did not finish their membership applications nor did they attempt to apply to live in fraternity housing, where she notes non-fraternity members do live.
U.S. District Judge Paul Engelmayer, an Obama appointee sitting in on the panel, questioned why the girls would bother applying for housing or a membership when many of the fraternities said “women need not apply.”
The fraternities’ counsel agreed.
“I agree that if they applied they would be denied,” said Gillbride. “We are not disputing that these are single-sex fraternities.”
Pooler, a Clinton appointee, pressed Tracey on rebuttal again as to why his clients did not specifically apply for housing.
Tracey argued his clients would not have thought to apply for housing when they were already denied membership.
“If you are told you can’t be a member because you are a woman, then the ordinary listener — which is the standard — the ordinary listener would understand that you also cannot get housing at a fraternity because you are a woman,” replied Tracey.
Pooler appeared unconvinced.
“You don’t know that they would have said that because you never asked,” said Pooler.
Engender says gender integration is crucial to create an equitable society for women and members of the LGBTQ+ community.
“Segregating people by gender at any stage of their lives teaches them in-group biases and out-group stereotypes based on antiquated, sexist notions of men’s versus women’s roles in society,” Engender states on its website. “Gender segregationist policies fail trans and gender-nonconforming people by refusing the legitimacy of their gender identities and often excluding them entirely.”
Robert Silverman, a professor at Buffalo University, says Engender may have an uphill battle trying to prove their FHA claims.
“I think it is a difficult case to win because same-sex organizations are typically exempted from that part of the Fair Housing Act,” Silverman said. “There may be a route for the group to pursue through the university. They could try to get the university to change its policies on same-sex organizations affiliated with it, if there is a conflict with other university policies.”
Neither Tracey nor Gillbride immediately responded to email seeking comment.
U.S. Circuit Judge Eunice Lee, a Biden appointee, rounded out Thursday’s panel of three.
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