The Legal Issues Behind a Moral Debate

As the nine all-male final clubs in Harvard Square begin once again their fall membership--or "punching"--drives, there are real indicators that a gender discrimination complaint filed with the Massachusetts Commission Against Discrimination (MCAD) may finally clear the first hurdle in what will likely be a landmark decision involving private clubs' right to discriminate.

The complaint, filed against the Fly Club by Lisa J. Schkolnick '88, has languished in the bureaucracy of the MCAD for more than a year-and-a-half, but spokespersons at the commission have said, for the first time, that the case will be decided in the next few weeks.

Despite the heated controversy set off by Schkolnick's case, most of the campus debate has centered on the moral--and not the legal--implications of whether or not the club should be forced to admit women, in part because the legal aspects of the complaint have remained vague.

The laywers for the Fly Club have refused since the beginning to speak to the press, and MCAD is not legally permitted to discuss many of the details of the case.

But the extensive briefs filed so far by Schkolnick's lawyer, Kevin G. Baker, do provide a glimpse at some of the more specific points of contention in Massachusetts law concerning gender discrimination and freedom of association.

Because the state code is unclear with respect to the rights of clubs such as the Fly Club, those who argue that they should be opened to women bear a heavy burden of proof, according to legal experts. As Judith K. Wright, spokesperson for MCAD, says, "It's all based on precedent."

At the heart of the legal arguments that Baker has presented to MCAD in the legal manuevering of the past year is the Fly Club's status as a private association.

Baker argues in a document filed with the state discrimination agency last May that the club "is a place of public accommodation and a provider of services within the meaning of the antidiscrimination statutes." In other words, the right of association does not apply to Harvard's all-male clubs, according to the Baker legal strategy, because it functions as a semi-official network providing services to an extensive group of members past and present.

And while this accusation represents no legal breakthrough, several of the affidavits and citations filed to date reveal in more concrete terms how Schkolnick and her lawyers hope to force the Fly Club to admit women. The main document that lays out this legal argument is mostly a 29-page compilation of state and federal anti-discrimination precedents--but legal experts say the issues it raises will be around for a long time.

The background to the complaint is fairly straightforward:

The Fly Club is one of the nine all-male final clubs whose roots at Harvard go back to the late 19th century. In 1984, the University severed ties with the clubs because they violated a College rule against single-sex organizations. Schkolnick, who conceived the idea with other editors of the liberal monthly Perspective, filed her complaint with MCAD in 1987, saying she was unable to hold membership in the club because of her gender. The student group Stop Withholding Access Today (SWAT) was added as a co-complainant in April of this year.

SWAT joined the complaint partly to dispel club charges that the complaint was invalid because Schkolnick had already graduated from the College. Members of SWAT said in April that including their organization as a party would guarantee that there would always be a direct connection between the case and current Harvard College students.

But while the circumstances surrounding the complaint's origins are clear, its current legal status is more ambiguous. Essentially, Baker has divided his legal argument into four major components, although it is impossible to tell which will be the most compelling until MCAD issues its decision.

Public or Private?

Perhaps the most pressing legal issue is whether or not the Fly Club and the other eight clubs are public or private organizations. It is the lengthiest part of Baker's brief and the one which quotes the most extensively from precedent-setting cases.

"The Fly Club is doubtless...a membership club traditionally viewed as private," one document states. "However, as is recognized in the increasingly expansive scope of the public accommodation statute, such discriminatory men-only clubs significantly and adversely impact the economic, political and professional advancement of women."

To bear out this contention, the legal brief sets up several standards for determining if a membership club is public or private. These include: "The degree of selectiveness in membership requirements...the use of facilities by nonmembers...and the the performance of a public function." And even if the MCAD chooses not use Baker's framework, he insists that "No one factor is required, and many are absent in clubs which are nonetheless held to be places of public accommodation."

The complaint contends that the Fly Club is open to non-members, especially at club parties. For example, former Perspective writer Frank E. Lockwood '89 says in an affidavit that he attended a party at the club in July of 1988. "Although I did not receive an invitation from any member, I was admitted to the club with my friend without either of us being asked if we had an invitation," he says.

Lockwood also states that there were between 100 and 200 people attending the party. "This regular admission of nonmembers demonstrates that the Club is not purely private," according to Baker's interpretation.

Schkolnick, who is now a first-year student at the Law School, says she thinks the numbers of non-members attending Fly Club parties could be a central facet of her legal case. "They [the club] are generally not very selective with who come to their parties," Schkolnick says.

The Fly Club's garden, which is adajecnt to University property and in the past has been jointly maintained, is also an important element of the case, Schkolnick says. "The garden is unique to the Fly. I'm lucky I chose it," she says. According documents filed with MCAD, the garden allows for Harvard students to have unrestricted access through the University to the club grounds.

An affidavit signed by Jeanne F. Theoharis '91, another Perspective writer and president of SWAT, states that she was given permission to use the garden in April of 1988. She says in her statement that she asked Ellen Hatfield Towne, then-assistant to Dean of Students Archie C. Epps III, if it were necessary to mark the boundary between Harvard property and club property. Hatfield said that this was not necessary, Theoharis says.

Club Network: Are They Services?

In the Supreme Court case New York State Club Association v. City of New York, New York City successfully contended that private all-male clubs served as places of business and should therefore be opened to women. This argument may provide another legal avenue for Schkolnick. But while it could be the foundation of a strong case, experts say it may well be more difficult to prove than assertions of the Fly Club's public nature.

Baker's brief states that the Fly Club provides many services, ranging from business and professional contacts to serving meals and providing campus social life.

For example, an affidavit signed by Chrystia Freeland '90 states that when she was interviewing former Fly Club president Ian M. Huschle '88 for Perspective, he said that University faculty members often take meals at the Fly Club. Huschle also said the club keeps listings of club graduates and their places of employment, according to Freeland.

"Huschle stated to me that if he decided not to work for a year after he graduated from college, he would not be concerned about hurting his later job prospects by not being in touch with job recruiters at school because he knew that he could contact graduate club members through the directory to get a job," Freeland says.

In addition, the legal papers filed at MCAD say that Shilepsky, Messing and Rudavsky, Baker's firm, has received an unsolicited resume that highlights Fly Club affiliation in seeking employment. The document also says that former and current club members have said they discuss their club membership with prospective employers.

Who Can Be Members?

Much of the MCAD's decision may hinge on whether club alumni are still members. If they are, then the membership of the club is quite large, and therefore may be more accountable to the laws against gender discrimination.

For example, the New York State law specified at least 400 members as one of the characteristics of a public accommodation. On the other hand, if graduates are non-members, then they allegedly have an extensive involvement with the club.

The brief states," A club which receives any significant portion of its funds from nonmembers cannot claim to be private." The complainants' repsonse contends that graduate contributions are "substantially similar" to the amount of membership dues in one year. The document estimates total membership dues at $27,000 to $35,100 for 1988 and non-member--graduate--contributions for 1987 at $16,718.

"Membership clubs in which the members do not hold club property or otherwise do not have exclusive control over the government and activities of the organization cannot claim to be private," the response states. Because the club property is held by a trust controlled by non-member, graduate trustees and the government of the club consists of 14 graduate members and two present members of the Fly, the document alleges that it cannot claim to be a solely undergraduate organization.

The Crimson and many other officially recognized Harvard student groups have similar organizational setups.

But still, Baker's brief contends that the graduate-controlled governing body changes the nature of the club's status. In particular, the document says that even if the members of the club decided to admit women, its trustees could prevent it.

The brief also takes issue with the way in which the Fly Club describes its membership process. The club has claimed its "punching season" is more selective than it actually is, the Baker document says. Specifically, it says that former club president Huschle has said some members are admitted to the Fly without sponsorship of a current undergraduate member, and some sponsers do not even know their candidate. Huschle also has said that students can become members without attending an event at the club, according to the brief.

These statements are important to the legal tests Baker has set up in his brief, as he contends that the Fly Club members' associational rights would not be infringed upon if women were admitted to the club. "Where strangers participate in the relationship the association is not a private one, even if some private association occurs with in the setting...More importantly, the club allows nonmembers to participate in critical aspects of the relationship it contends is private."

The brief says, "The club itself admits that it is not organized for any advocacy pupose," so the members' rights will not be infringed upon by the admittance of women. "The anti-discrimination statutes merely prevent the club from using sex as a shorthand measure for selecting members in place of more legitimate criteria for determining membership," it states.

Although the Fly Club has insisted that Schkolnick's complaint has no merit because she never sought admission to the club, Baker's brief concudes, "There is no mechanism by which any woman could ever apply or otherwise be considered for membership."