Abstract

Excerpted From: Stephen Clowney, Do Fraternities Violate the Fair Housing Act? An Empirical Study of Segregation in the Greek Organizations, 41 Yale Law and Policy Review 152 (Spring, 2023) (310 Footnotes) (Full Document)

The American Greek system has long been the site of fierce resistance to integration. Until quite recently, African Americans, Jews, Asians, and other ethnic and religious minorities found themselves excluded from the bonds of membership. Sororities at the University of Arkansas, for instance, remained entirely segregated until 2004, while the Greek system at the University of Alabama did not begin to desegregate until 2013. It is little wonder that students around the country increasingly view the Greek system as a deep cavity of racial isolation on otherwise diverse campuses.

But can anything be done? Many observers remain skeptical that universities will adopt meaningful reform. They argue that administrators resist cracking down on segregated Greek organizations because the schools have become “bedeviling[ly]” dependent on the fraternities and sororities. The Greek system, for example, provides thousands of students with on-campus housing, Greek alumni donate generous sums during fundraising campaigns, and fraternities provide a kind of social programming that is “highly attractive to legions of potential students.” It takes little imagination to see how these entanglements might encourage universities to overlook the troubling racial composition of the Greek organizations.

This Article argues that, if colleges will not act, civil rights law can serve as a pressure point and a site of intervention. Specifically, I contend that fraternity and sorority housing violates the Fair Housing Act (FHA). The consequences of this argument are significant. Across the country, there are thousands of buildings on university campuses dedicated to Greek life. In the SEC alone, there are almost 200 sorority houses. “A conservative estimate of the collective value of [the nation's Greek] houses ... is $3 billion.” If my argument holds, universities will need to integrate or shutter many of these stately homes, or else sever them from their campuses.

This Article begins by showing that the fraternities and sororities have accomplished what decades of JimCrow rules could not; they have normalized a world where AfricanAmerican and white students inhabit completely different social worlds. In the pages that follow, I present the first large-scale study of the racial composition of fraternity and sorority chapters at American universities. This data has, until now, eluded higher education researchers. No government agency or nonprofit group compiles demographic information on the Greek chapters. Further, the national Greek organizations do not record statistics about the racial identity of their members. How then, can one forge a dataset and construct an accurate portrait of Greek life? This study employed a simple but powerful investigative tool--state FOIA laws. During the spring of 2020, I sent over a hundred FOIA requests to public universities in every region of the country asking for documents about their Greek system. This Article uncovered that many colleges quietly collect and synthesize information about the race of fraternity and sorority members.

The colleges' data are irrefutable; Greek organizations remain profoundly segregated. Sixty-five years after Brown v. Board of Education, many fraternities and sororities still have no AfricanAmerican members and almost all remain “ethnic enclaves for White students.” The sorority chapters at the University of Toledo provide a stark example of the problem. Toledo is well-integrated. Black students make up 9.2% of the student body. However, they account for only 0.8% of the women in the Panhellenic sororities. To put that number in perspective, each year at Toledo, a few more than 630 women enroll in one of the traditionally white Greek organizations on campus. In the spring of 2020, five of those women were Black. Additionally, only one of the nine Panhellenic sorority chapters had at least two Black members. These numbers are not an anomaly, and Toledo is not the worst offender. At many universities, the Greek organizations seem even more committed to the tradition of segregation.

After establishing the whiteness of Greek life, this Article pivots and argues that the Fair Housing Act (FHA) applies to fraternity and sorority housing. More precisely, I allege that universities have violated the FHA by orchestrating the construction of Greek facilities on campus. The basic thrust of the Fair Housing Act is easy to grasp. The statute makes it illegal for landlords and other housing providers to discriminate based on race, national origin, religion, sex, disability, and familial status. Importantly, Supreme Court jurisprudence does not require a showing of discriminatory intent, and this Article makes no claim that universities have plotted to exclude racial minorities from campus. The focus, instead, is on the FHA's disparate impact provisions. Cases brought under the Fair Housing Act can target facially neutral policies that impose discriminatory effects on one of the protected classes. On its face, the erection of thousands of housing units intended to benefit white student groups seems like an obvious breach of the law.

Universities, of course, will not take lightly the claim that they or the Greek clubs have violated the civil rights of their students. Their response is easy to predict. The Fair Housing Act contains an exception that allows private organizations to give housing preferences to their own members. For example, if a Catholic Diocese leases cabins at a church-owned summer retreat, it can favor Catholic renters. In the view of American universities, fraternities and sororities are similar private entities. Therefore, under the terms of the FHA, the Greek organizations ultimately retain the right to build their own facilities and rent to their own members. University presidents have no legal responsibility for the actions of purely independent organizations.

These arguments are widely accepted by college administrators and remain deeply influential on campus. However, they are wrong. This Article uncovers that Greek chapters are not private organizations immune from the weight of civil rights law. Rather, they are part of the official University ecosystem. During the last 20 years, colleges have become intimately involved in the governance of most sororities and fraternities. Fraternity and sorority advising (FSA) has become an acknowledged sub-specialty in the student affairs profession. The University of Alabama, for example, employs ten people in its Office of Fraternity and Sorority Life: an executive director, a director of housing, a director of student life, three assistant directors, two coordinators, and two program assistants.

Perhaps more importantly, many Greek houses sit on land owned by the university. In some states, colleges have a policy of renting land to the national Greek organizations at deeply subsidized rates. In other jurisdictions, the university builds, owns, and operates the Greek houses. All of this is problematic under the Fair Housing Act. State universities across the country have, in practice, created publicly financed neighborhoods that exclude AfricanAmericans in violation the law--a quintessential example of institutional racism.

This Article proceeds in five parts. Part I gives a brief primer on the Greek system and its role in University communities. Outsiders may not fully understand the political and social power that the Greek organizations wield-- especially in the South. In Part II, I present results of the empirical study on segregation in American fraternities and sororities. The most important finding is that the Greek organizations have failed to build a cosmopolitan, multiethnic membership. Under the nose of university administrators, the sororities and fraternities have normalized a campus culture where AfricanAmericans and whites inhabit completely different social worlds. The fine-grained demographic data also offers some clues about the future of racial progress in America. Hispanic students far outnumber AfricanAmericans in the Greek system. This evidence suggests that, while AfricanAmericans remain confined to a separate racial caste, the dividing lines among non-BlackAmericans continue to erode. Part III explores whether the FHA applies to universities that host segregated fraternity and sorority houses. I make two related arguments. First, fraternities and sororities are not immune from the reach of the FHA. Second, one should understand the Greek systems as extensions of the university, as they are enmeshed in a deeply symbiotic relationship. In Part IV, I examine the Supreme Court's recent civil rights jurisprudence and provide an example of how plaintiffs could apply the FHA's disparate impact provisions against a university Greek system. Part V offers brief concluding remarks.

[. . .]

This Article makes three contributions to the literature about the Greek system. First, it empirically confirms what observers have long suspected but never proved: the Panhellenic sororities and IFC fraternities remain profoundly segregated institutions. At universities across the country, white students dominate the membership rolls, very few Asian Americans successfully navigate the rush process, and many chapters have no Black members. The near complete exclusion of AfricanAmericans from such a mainstream feature of undergraduate life remains startling and makes a mockery of the universities' professed values.

Second, this Article also demonstrates that fraternities and sororities are not immune from the remedial power of American civil rights law. Universities and the traditionally white Greek chapters have become so thoroughly entangled that it is impossible to regard the Greeks as independent organizations. On many campuses, the fraternities and sororities have become fully subservient to the higher education bureaucracy. As a result of this entwinement, both the Greek organizations and their parent universities can be sued for facilitating segregated neighborhoods on campus.

Finally, this paper argues that universities are particularly vulnerable targets for impact litigation under the Fair Housing Act. Administrators at many large colleges have openly subsidized the construction of on-campus fraternity and sorority houses for these traditionally white organizations. The universities' role as financiers, builders, and operators of these facilities has imposed a clear discriminatory burden on the housing opportunities of minority students. As a first step toward greater inclusion, universities should be forced to integrate these housing units or unwind their involvement with the Greek organizations. The ideology underlying the status quo is untenable.

Professor of Law, University of Arkansas.