Complications Delay Final Clubs Complaint

When Lisa J. Schkolnick '88 walked into the offices of the Massachusetts Commission Against Discrimination (MCAD) in December, 1987 to file a gender discrimination complaint against the all-male Fly Club, she expected to spark long-term debate over the fate of the final clubs. But she probably had no idea how long that debate would last.

Almost 18 months have passed since Schkolnick filed her complaint. But the case has still not been resolved, have also prolonged the investigation. In addition, MCAD's own lawyers have had to consider the legal implications of a decision.

MCAD normally takes 288 days to complete an investigation. Already, the Fly Club case has greatly exceeded that period, and Kathleen M. Allen, the commissioner assigned to the case, declines to speculate on when the investigation will end. She had originally expected to wrap up the proceedings last spring, but lawyers for both sides kept submitting more and more briefs for the commission to examine.

"We have many more facts than a year ago," she says. "New stuff has come up."

Allen says the complexity of public accommodations law and the sheer bulk of information submitted by attorneys have also prolonged the investigation. In addition, MCAD's own lawyers have had to consider the legal implications of a decision.

"The [time] issue is not about the number of lawyers," says Allen. "Each party wants to submit substantial details that support their case."

The case hinges on whether or not the club is a public organization, which is legally prohibited from discriminating on the basis of sex. Schkolnick's attorney has argued that the club's connections with graduate members, fundraising practices, open parties and the garden plot it manages jointly with the University make the Fly Club clearly public.

"We support the position that the club is subject to the law. What it is doing is illegal," says Kevin G. Baker, who is representing Schkolnick and the student group Stop Withholding Access Today (SWAT) as a public service. SWAT was added as a plaintiff to the case this spring.

But making a decision in the case is not as simple as Baker may portray it. "Someone just hearing about the case could say, 'That's easy--it has to be this,'" or 'It's couldn't possibly be this,'" says Allen. "It's not an easy question."

While Fly Club attorney Judith Malone says the agency should take "as much time as they feel they need" to completethe investigation, the plaintiffs' lawyer is notso sure.

"It is proper for the commission to keep up theinvestigating process, if it will make it morecomplete," says Baker. But he adds that the FlyClub's efforts to get in the last word are"petty," saying they have unnecessarily delayedthe case.

"They have had their chance to make theirargument," he says, although he adds, "I won'tbegrudge them the chance to rehash their argument.The fact of matter is they are thoroughly wrong."

Allen says that one reason the investigationproceedings seem to take so long is because thecommission is required to keep their proceedingsprivate. She admitted, however, that theinvestigation is taking longer than usual.

And the length of the investigation has had itseffects on SWAT and other groups trying to turnstudent opinion against the clubs. Earlier thisyear, Zealots in Protest (ZIP) started putting up"humorous" posters urging undergraduates to "ZIPthe Fly." But by the spring the posters haddisappeared. And many say that SWAT has lost themomentum it had in the months after Schkolnickfiled her complaint.

"Definitely enthusiasm waxes and wanes," saysSWAT President Jeanne F. Theoharis '91, sayingthat the best time for the MCAD to make a decisionwould have been at the end of last year, when SWATwas one of the major undergraduate clubs oncampus.

But, Theoharis adds, "I think that [the longwait] is fine. It gives us a chance to keeptalking to people--to keep harping on the issue."

When the commission finally rules on the case,Allen says that decision will rest ondetails--information on who comes in and out ofthe club, and how and from whom the club receivesmoney.

Allen says that if MCAD decides there is a"reasonable likelihood" that the Fly Clubdiscriminates, the case would go in front of apublic hearing. If the commission decided in favorof either the plaintiffs or the defendant at thatpoint, the parties could appeal the case in thecivil courts.

Both sides would have the opportunity to fileappeals--appeals that could take years tocomplete, as it has with Sally Frank's caseagainst all-male "eating clubs" at Princeton.

And even if MCAD rules in Schkolnick's favorand orders the club to admit women, the othereight clubs would not necessarily be obligated tofollow suit, Allen adds. Small differences betweenthem may make it possible that some could belegally considered private and others public.

Radcliffe

In the meantime, SWAT is continuing efforts tochange public opinion about the clubs. The groupis still lobbying Radcliffe to back the complaint.Although Schkolnick approached Radcliffe's Boardof Trustees last year, she failed to gain anendorsement of her case.

But with a new Radcliffe president that couldchange. Outgoing President Matina S. Horner hassays that the Board could review last year'sdecision if circumstances have changed.

"If final clubs get in the way of the[educational] pipeline, then I think we need toaddress how and why they're a barrier and what wecan do to remove it," says Horner. She adds thatshe personally supports Schkolnick's cause,although she is not sure what Radcliffe's positionshould be.

"If it were Harvard University that wasproviding the final clubs, then Radcliffe has avery specific thing that it could do legally andother-wise," Horner says. "If they are not part ofHarvard, then Radcliffe has a different kind oflens with which to look [at the issue]."

The University officially severed ties with thenine clubs five years ago, but Schkolnick and SWAThave argued that the clubs remain an importantpart of undergraduate life.

And if Horner is not sure whether the clubsshould admit women or go extinct, she is certainthat the age of these elite groups has passed.

"As my personal view, the final clubs intoday's world are really outmoded. It will soon bedamaging to someone to put their membership ontheir resume."An aerial view of the Fly Club, one ofHarvard's nine all-male final clubs. The FlyClub--located on Mount Auburn St.--is currentlyunder investigation by the MassachusettsCommission Against Discrimination.