Banzhaf Lawsuits Lack Foundation: Lawyer and CUA Alumnus Offers Insights

Stephen Tornone, Esq., Class of 2007
November 4, 2011
Filed under Quill

 Discrimination is a loaded word. It excites emotions that can rally support for important causes or tarnish one’s perception of a much less significant matter. Too often the word is used without regard to its implications. Professor John Banzhaf seeks to characterize the decision by Catholic University to transition back to same-sex dorms as discrimination. He seeks to characterize the hanging of crucifixes in classrooms as discrimination. He seeks to characterize the lack of a dedicated prayer space for Muslim students as discrimination. Professor Banzhaf is leveraging the rhetoric of discrimination to prevent a private, Catholic academic institution from deciding how best to fulfill its mission — actions I would argue are in and of themselves discriminatory.

Professor Banzhaf has filed two complaints with the District of Columbia Office of Human Rights. He chose this forum rather than a federal district court because his filing would not have survived long enough in such a court to garner media attention. Professor Banzhaf does not have the standing in federal court to bring these claims. If discrimination occurred, it would be up to the person discriminated against to bring the charge. Here, no complaints have been brought by CUA students. Instead, Professor Banzhaf filed one of his complaints on the basis of a year-old Washington Post article. (See Enrollment of Muslim Students is Growing at Catholic Colleges in U.S., 12/20/10)

Moreover, neither the US Constitution, nor the 1964 Civil Rights Act, nor any related or unrelated federal legislation prohibit same-sex dormitories at private, religious universities. Neither the Constitution nor federal law require a private, religious university to provide icon-free space in which to worship. The DC Human Rights Act of 1977 goes no further. To read such requirements into those laws would lead to preposterous outcomes.

If §2-1402.31 of the Human Rights Act prohibits same-sex dormitories because they deny different genders the full and equal enjoyment of facilities, then same-sex bathrooms are similarly prohibitive. Same-sex locker rooms, same-sex showers, same-sex dorm rooms all deny “full and equal enjoyment” using Professor Banzhaf’s reading of the law. Perhaps Professor Banzhaf would accept, or even advocate, a radical interpretation of DC law that would require CUA to permit co-ed dorm rooms.

Similarly, how can the Human Rights Act require of a Catholic school icon-free prayer spaces for Muslims without requiring that Islamic schools admit Catholic students? CUA chooses to admit students of any religious background, but it is not required to. Jewish schools are free to admit only Jewish students and Islamic schools, Muslim students. Yet Professor Banzhaf would argue that those same schools that can deny admission on the basis of religion must nonetheless accommodate the unique requirements of prayer in other religions. The law simply does not support this.

Constitutional, federal and local laws protect the free exercise of religion. That is why CUA is free to provide extra scholarships to Catholic students, to require that students complete courses in Catholicism, to require that men and women live in different buildings and to hang a crucifix anyplace and everyplace it sees fit. CUA’s students are also free to disagree with any of the decisions the school makes and to attend a different school if they see fit. Those that do attend make a choice. Professor Banzhaf would take away that choice and in doing so would prevent students from pursuing the education they desire. Where, then, lies the discrimination?

Stephen Tornone is an alumnus who earned a Bachelor of Arts degree from Catholic University in 2007 and a Juris Doctorate from Georgetown University Law Center in 2010.