Colby College banned fraternities and sororities in 1984 after many years of unsuccessfully attempting to improve fraternity behavior. Sexual harassment and sex discrimination were major reasons for the college's decision. At first the college withheld official recognition of and financial benefits to the fraternities. Membership in fraternities was not punished, although Colby established a policy prohibiting any participation in fraternities. The college had hoped that without houses, financing, and other support from the administration, the fraternities would disband—particularly once all students who had belonged to the officially sanctioned groups had graduated. Although the sororities soon dissolved, most of the male Greek organizations continued and even thrived underground. In 1990, after six years of continuing campus problems related to fraternities, the college decided to punish a group of students for belonging to Lambda Chi. The Maine Civil Liberties Union (MCLU) decided to take up the cause of the punished fraternity members. It initiated a suit under the Maine Civil Rights Act, claiming that Colby had interfered by threat, intimidation, or coercion with the Lambda Chi members' rights to freedom of association and freedom of speech. Civil liberties lawyers joined national fraternity leaders in portraying the fraternity case as part of a dangerous new wave of intolerance sweeping the country as colleges force “politically correct” views on students. Colby College, in reply, argued that it had “the right, and indeed the duty, to determine that its educational mission is furthered by maintaining a college community that is free from fraternity activities and free from sexism, exclusivity, disruptive behavior, hazing, and other antisocial activities of the kind engaged in by Plaintiffs in this case.” The college described the case as a traditional college disciplinary issue, rather than a civil rights issue. Colby further claimed that its constitutionally protected right to freedom of association would be violated by requiring it to enroll students belonging to fraternities. The trial court ruled against the fraternities. Justice Donald Alexander decided that a broad civil rights law barring private interference with First Amendment rights would create a constitutional puzzle. On appeal, the Maine Supreme Judicial Court, sitting as the Law Court, affirmed the decision. The Law Court expanded on the lower court's concern about the issue of conflicting First Amendment rights. At oral argument, one Justice noted an inherent contradiction in the MCLU's defense of the fraternity's freedom of association right against private interference. If the Maine Civil Rights Act requires Colby to sacrifice its associational values to tolerate those it wants to exclude (fraternities), then it would also require Colby's fraternities to sacrifice their associational values to tolerate those they want to exclude (women). How can feminist jurisprudence rewrite this story? The mainstream media tend to portray feminism as an offshoot (or a pawn) of liberalism. Yet the dilemma posed by the Maine Civil Rights Act and the Colby fraternity case—one example of the current debate over “hate speech” and other so-called political correctness issues—brings to the surface some of the conflicts between liberal and feminist methodologies.
Martha T. McCluskey,
Privileged Violence, Principled Fantasy, and Feminist Method: The Colby Fraternity Case,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol44/iss2/3