Yesterday, the All-Campus Judicial Council (ACJC) issued a ruling declaring that the Students’ Association (SA) Government must review all SA-affiliated organizations to determine whether they are violating the SA Constitution’s non-discrimination clause. In its ruling, ACJC specified actions and text that, in its view, are discriminatory.
Here’s a walkthrough of the background, reasoning, and ramifications of ACJC’s ruling.
Background
The SA Constitution only addresses discrimination in a single paragraph: “Neither the Students’ Association nor any affiliated organization may discriminate against any person because of age, color, disability, ethnicity, gender identity, gender expression, marital status, national origin, race, religion, sex, sexual orientation, veteran status, or political affiliation.”
There are no amendments, nor exceptions, listed in the constitution’s text.
Petitioners to ACJC claimed that 37 student organizations, governed by this clause, were discriminating based on gender. Gendered club sports teams, gender-exclusive a cappella groups, and Greek organizations were cited.
SA’s legislative branch and its committee overseeing groups, the respondents, argued that Greek organizations are SA-recognized but not SA-affiliated, and thus not governed by the text. However, according to the ruling, legislative branch officials conceded discrimination in the constitutions of gender-exclusive club sports and a cappella groups.
On April 21, ACJC heard arguments from both sides and on May 5, it issued the ruling.
Reasoning
ACJC’s decision in the case revolved around two issues. First, the court had to decide whether fraternities and sororities should be considered SA-affiliated, and by extension, the meaning of that term. Second, ACJC had to decide what constituted discrimination in SA-affiliated organizations.
ACJC decided to look at whether Greek groups received “direct and indirect resource assistance.” Respondents argued that the petitioners were taking a broad view of the term “affiliated” and that since the term is not specifically defined in the constitution, the legislative branch’s interpretation of the word should be accepted. ACJC rejected this argument and ruled that the intent of the non-discrimination clause governs the use of the term. The ruling says one intent of the clause is to prevent student activities fees from funding discrimination. This means that organizations receiving resources from SA, which uses those student activities fees to provide those resources, are subject to the non-discrimination clause.
Examples of these sorts of resources might be a Campus Community Connection website page, or room reservation subsidies. ACJC’s reasoning puts Greek organizations squarely in the category of SA-affiliated organizations, subjecting them to the non-discrimination clause.
The second issue was what exactly constitutes gender discrimination under the constitution. In its ruling, ACJC made a distinction between two types of discriminatory behavior. The ruling discussed textual discrimination and practical discrimination.
For textual discrimination, ACJC ruled that if an organization uses “gendered language” the organization is de facto discriminating based on gender.
This means that many sports teams, with names like Women’s Club Soccer or Men’s Club Ice Hockey, are automatically violating the clause because their titles use gendered language. Applying this further, an organization like Alpha Phi Omega is also in violation, even though it accepts members regardless of their gender. That’s because APO uses terms like fraternity to describe itself and brother to refer to its members, which ACJC ruled is inherently discriminatory.
For practical discrimination, ACJC said that organizations cannot simply eliminate gendered language in their constitutions, titles, and advertising materials. Their actions must go beyond fixing the text. Any recruitment strategy based on gender, or activities based on gender, violate the SA Constitution as well. This means, for example, that affiliation with a gendered league, or national organization, would be a violation of the non-discrimination clause.
Ramifications
First, it’s important to note that nothing will happen immediately. ACJC’s ruling requires SA to review its affiliated organizations, but the court has made no determinations on its own. Thus, there are currently no organizations officially in violation of the non-discrimination clause.
Given that, there are several ways SA can move forward.
For one, it could amend the SA Constitution to eliminate the basis of ACJC’s ruling. Specifically, SA could add exceptions to gender non-discrimination for broad reasons, or for specific types of organizations. Broad language might detail that organizations affiliated with gendered leagues, or national organizations, can apply for a waiver. Alternatively, exceptions for specific types of groups could be added. This could waive a cappella groups, clubs sports, and similar organizations from the gender non-discrimination policy. Schools like Cornell University use this sort of language in their student government constitutions. This amendment could even happen before the end of any review, effectively ensuring these organizations never face any ramifications related to the ruling.
There is also a chance that SA will ignore ACJC’s ruling. At the end of the ruling, ACJC did not list any organization it found in violation, but instead ordered SA to review all of the organizations under its purview and decide whether they are violating the non-discrimination clause. ACJC also did not list a timeline for such an extensive review. This means SA, if it wanted to, could delay the start of the reviews, ensure the review process takes a substantial amount of time, or say that it did not find any violations. It could even do all three.
But barring a constitutional amendment or a bad-faith effort on SA’s part, this ruling has the potential to have wide-ranging effects.
For one, the ruling may see club sports merge gendered teams or switch leagues to retain SA-affiliation. This year, club sports in total are set to receive nearly $100,000 from the SA Government. Their heavily reliance on SA funds make them vulnerable to sanctions. Based on the ruling, any club sport that has a gendered name, or participates in a gendered league, is in violation and thus cannot receive a share of those funds. Men’s Rugby, for example, receives over half of its budget from SA. This loss of funds would be compounded by the elimination of SA resources that club sports organizations rely upon during recruitment season, training, and actual competitions.
Gendered a cappella groups should be less harmed by this order, but may still be in trouble. They do not receive money from SA, but do use SA resources. So their ability to use SA-associated spaces, cheaply, or at all, is in jeopardy based on the order.
Greek organizations, out of the three, are in perhaps in the least vulnerable position. They do not receive money from SA and are not hugely reliant on the student government. They don’t need practice spaces, nor would they be crippled without the ability to use SA resources during their recruitment process, or the rest of the year. They have national organizations for support, their own spaces, and often alumni willing to go to bat for them.
But the wording of the ruling may have implications far beyond club sports, a cappella groups, and Greek organizations.
The ruling states that “even if an organization’s practices are not discriminatory based on gender, presence of gendered language in a constitution amounts to de facto discrimination in that it promotes a chilling effect on the number of students seeking membership in that group.”
This has the potential to stretch much farther than gender discrimination. Based on the reasoning of the court, any organization whose name, or constitution, references part of a protected class might promote a chilling effect on others joining and thus would be in violation of the non-discrimination clause.
The ruling says that gendered language in the constitution, or title, of an organization makes the organization de facto unconstitutional. Applying this to political groups, this means College Republicans, College Democrats, and other political organizations on campus may face trouble. They explicitly reference a specific “political affiliation,” one of the protected classes in the SA constitution. There is a potential chilling effect on non-Republican students joining a club called College Republicans.
Organizations related to race, ethnicity, or national origin may also be vulnerable to review. Based on the written reasoning of ACJC, the title of, for example, the Chinese Student Association could create a chilling effect on the number of non-Chinese students joining the group. This may also be applied to religious groups like Catholic Newman Community, for using language directly referring to a religious affiliation, or organizations like the National Society of Black Engineers, for referencing color.
Moving forward, SA will either have to amend its constitution, drag its feet in the ACJC ordered review, or follow through on the order from ACJC in full. At the same time, organizations subject to this ruling will have to carefully weigh changes to their text and practices, or risk being sanctioned by SA.
