A Tragic Mistake

HARVARD'S nine all-male final clubs do, by definition, discriminate against women.

No one would question that. What the Massachusetts Commission Against Discrimination (MCAD) has been investigating for the past two years is whether that discrimination is legal.

And late last month, the commission ruled that the Fly Club's discrimination was legal.

Although we still hold that the final clubs discriminate illegally against women, we cannot simply declare that all of MCAD's findings were wrong. The commission was right that the club's connections to the University do not, of themselves, make the club "public accomodation" under a narrow definition in Massachusetts law. Complainant Lisa J. Schkolnick had to prove that the Fly Club is such "public accommodation" to win her case.

But there is another way to show an organization to be "public accommodation"--if the club is used by members to further their careers. MCAD ruled that the club was not used for this purpose, basing its finding on a poll conducted by the Fly Club of its members.

By placing undue weight on the evidence provided by the final club in its own defense and by placing the burden of proof on Scholnick, MCAD did not successfully undertake the task it was established to perform.

SCHKOLNICK'S case would have been much stronger had she filed it before 1985, when Harvard broke ties with the final clubs. Were they still an official part of the University, the clubs would undoubtedly have been found to violate the Massachusetts General Law provisions on which Schkolnick based her case.

While MCAD accepted the premise that the final clubs have no function within the University now, the report's wording revealed the strong connection that still exists between the two institutions, with sentences such as "Harvard severed ties with its `final clubs.'"

However, in spite of these ties, the final clubs do not serve such a vital public function for the University that they can be seen as places of public accommodation by virtue of that connection.

THE most significant complaint voiced by Scholnick is that the Fly Club serves a business function that makes its discrimination illegal. This argument has been used successfully in many cases across the nation to force all-male clubs to admit women.

And MCAD Commissioner Kathleen M. Allen did acknowledge that "clubs can and do perpetuate networks of social and professional advantage."

Because of this understanding, MCAD ordered the Fly Club to conduct a poll of its own members. Not surprisingly, the club discovered that a majority of its graduate and undergraduate members did not "include club membership on their resumes, discuss club membership with employers, or use club affiliation when applying for jobs." Based on this poll, the commissioner found that networking is not a key component of club activities.

Yet the Fly Club should not have been trusted to conduct an unbiased poll, and--if nothing else--MCAD should never have accepted the Fly Club's word as key and only evidence. The most disturbing result of MCAD's reliance on the Fly Club's evidence is that it was precisely that evidence which invalidated Scholnick's strongest argument.

IN ITS decision, MCAD did what no quasi-judicial agency should do: it accepted at face value evidence provided by a party in the complaint. Even though MCAD charged the club with a failure to cooperate in the investigation and nearly accused it of purposeful delay, the ruling nevertheless found that the club's briefs were both accurate and complete.

Since the early 1970s sex discrimination complaints have been subject to a different standard of scrutiny than other cases. The assumption at the outset of such cases is usually in favor of the plaintiffs. The burden of proof thus should have fallen on the Fly Club. Instead, it seems to have fallen on Schkolnick and her attorney.

The decision is particularly disturbing when viewed in the context of MCAD's supposed role. Agencies such as MCAD were created to counter discrimination in our society. MCAD decided not to rule on discrimination in this case. The ruling--by legitimating discrimination--strikes a blow against all people trying to fight it.

Particularly disturbing is that MCAD's decision does not even find this type of discrimination against women--if not illegal--to be unpleasant. Only in a disclaimer added after the decision's publication did Allen mention that her decision "does not constitute Commission approval of such restrictive clubs."

IT is likely that Schkolnick will appeal her case to MCAD, and receive a judgment from the entire commission instead of just one commissioner. In reviewing Schkolnick's appeal, MCAD should correct the procedural mistakes it has made this time around.

But even if MCAD does more completely fulfill its responsibilities, Schkolnick may lose again. MCAD is also underfunded, overworked and understaffed.

Legal scholars say that a more promising route for combatting the discriminatory policies of the final clubs would be to go through the courts and file a suit against all of the clubs.

But if MCAD and the courts fail to end the discrimination, student activists will have to resort to civil disobedience, such as blocking club entrances and occupying club grounds, in order to achieve their goals.