The Debate About Banning Fraternities: Overdue Reform and Possible Unintended Consequences
An issue that has unexpectedly dominated the news in recent weeks is the justified public outrage at Cornell University's wholly unacceptable response to allegations of rape at a 2024 fraternity party, a response that is at long last being exposed and condemned. This entire matter is deeply troubling, and it is a somewhat hopeful sign that the university and local law enforcement -- and now New York State's political leaders -- are being pressured to take it seriously, especially given their earlier attempts to sweep it under the rug (or at least to fail to comprehend its importance, although I find that explanation highly implausible).
(Aside: Donald Trump and his insecure manosphere are anything but outraged, except insofar as he thinks that the men involved "won't get a fair shake," saying "I feel badly" for them. No surprise there.)
Professor Dorf's column this past Saturday considered some of the most important legal issues regarding consent, intoxication, and the conflict among various states' laws regarding whether voluntary intoxication should matter. I highly commend that column to anyone who has not yet read it. Here, I want to address another debate that has arisen as a result of the renewed attention to campus rape. In response to calls to ban fraternities from campus entirely, Cornell University President Michael Kotlikoff responded earlier this week with an argument that upset quite a few people and which thus deserves some scrutiny:
This is obviously an absolutely horrendous and inexcusable situation that occurred in a fraternity. But I have to make the point that this doesn’t only occur in fraternities, I worry about pushing this into the shadows, into houses which we don’t own, which are private houses, which have parties, and which things can occur beyond our purview.
Before beginning my objective analysis, I should start by sharing some subjective thoughts. I never joined a fraternity and never wanted to do so. When I was in middle school, my oldest brother went to college and started the process of joining the equivalent of a fraternity, and even as an 11-year-old, I remember hearing his stories about the hazing rituals and everything else and thinking, "Why would anyone want to be part of that (on either side of the cruelty)?" And even to my pre-adolescent brain, the supposedly fun stuff sounded frankly childish. To be clear, my brother quickly abandoned ship in response to all of that, and I considered it my good luck that I was able to learn from his grim observations.
Those lessons stuck with me, so when I was later applying to colleges, one of my filters was to apply only to schools that had no fraternities. And when I enrolled at Vassar College, I was so annoyed by some of my peers' comments that they wanted to start a fraternity that I wrote a satirical mock proposal for a new fraternity that ridiculed the elitism, sexism, bigotry, and ultimately the utter pointlessness of such organizations. My attitude has not changed in the decades since then.
Although that is simply a personal story, and everyone has their own stories that might be relevant to this situation, I can offer something in the neighborhood of expert testimony when it comes to Kotlikoff's prediction about "pushing into the shadows" the behavior that outrages people of good faith. In a recent Dorf on Law column, I noted that, while I was a graduate student, "Harvard College hired me to create and administer a new program to allow alcohol to be served at undergraduate events, in compliance with a then-new state law restricting such drinking." I brought that up in a context in which there was no reason to go into any detail. Here, however, that experience is useful and relevant.
Why did Harvard College's administrators decide that they needed to create that new program? Massachusetts, like all states at the time that had laws allowing people younger than age 21 to drink, had recently come into compliance with a new federal policy designed to induce states (by threatening to withhold highway funds) to raise their drinking ages. This meant that slightly more than half of college undergraduates who had enrolled straight out of high school would not legally be allowed to drink.
As it happens, the drinking age in Massachusetts had been increased from 18 to 20 only five years before, but enforcement was desultory at best. In any event, it is fair to say that the new 21-year federal requirement changed the realities on the ground, especially on campuses. Because colleges were worried about the legal and insurance liabilities that might ensue from failing to take the new law seriously, they at least needed to put some structures in place to attempt to police the nearly-unenforceable new regime in which college parties would be officially "dry" for half of the students or more.
Notably, the federal law that set all of this in motion had been enacted in response to a surge in public concern over drunk driving. As a result, some colleges considered trying to convince lawmakers to provide a carve-out for residential campuses, on the theory that students stumbling back to their dorm rooms at Barrett Hall after a party at Faber House would not be driving. This idea was quashed quickly, however, because it fairly obviously reeked of elitism. No one wanted to say anything like this: "18-20 year-olds can no longer drink legally, unless they're enrolled at an expensive college with a walkable quad." And thus the law applied to everyone under age 21, regardless of circumstances.
Also notably, this means that the primary concern motivating the attempt to reduce young people's drinking was not the concern that the current Cornell situation highlights. Today, people are rightly focused on the toxic combination of college partying, alcohol (and other drugs), and rape culture. Even back in the 1980's, however, the focus was not entirely on drunk driving. There were some people who viewed the change in the drinking age through the lens of all of the harmful consequences of campus party norms, from binge drinking to property destruction as well as sexual violence.
For those readers looking for a thoughtful and thorough journalistic assessment of Kotlikoff's argument, Garrett Shanley's piece yesterday in The Chronicle of Higher Education is a good place to start. Shanley addresses an important issue implied in Kotlikoff's argument, which is that a ban on fraternities would make it nearly impossible for a university to regulate conduct in such organizations.
In particular, Shanley's piece quotes a professor at Penn State: "Eliminating a fraternity or an entire community may remove one venue for risk, but it does not eliminate the conditions that create it. We need to be more like doctors and surgeons here.” Similarly, a professor at the University of Wisconsin also agreed with Kotlikoff: "He’s not wrong. To the degree that a university ceases all interaction with the fraternity, they do lose any chance of regulation at all."
When Harvard hired me to create from scratch a system to comply with the new law, however, the discussion among the administrators (at least in my presence, although I should say that I have no reason to think that they were hiding anything from me) was about "regulation" in only the most technical sense. That is, any new system could accurately be described as a regulatory regime, because it involved setting up a new structure with rules about how and to whom alcohol could be served at parties in the dorms. Even so, the pressing concern was not with how to regulate behavior but with the "into the shadows" idea more directly. They were concerned that students would drink out of view and end up in worse shape -- and do worse things to themselves and other students -- because furtive drinking is more likely to be done to excess.
And based on what we saw, that concern was well founded. By the time we were able to get the new system up and running, many students had concluded (based in part on extremely bad reporting in the student newspaper, but I digress) that what had previously been "normal" dorm parties would suddenly be all but alcohol-free and thus little more than high school hops. As a result, students were buying loads of alcohol and getting "pre-drunk" in their rooms before going to the parties. Administrators and dorm advisors were in general agreement that the drinking had become much worse than it was before.
Because the College's leaders were worried about that exact problem, they encouraged me to set up the new system in a way that made it simple for of-age students to be served and for all of the students not to feel that they were under surveillance. After a few months, as students came to realize that the new system was not the prohibition that they feared it would be, they came out of the shadows and found a new equilibrium under a system that they certainly did not like but that they could work with.
To be very, very clear, I absolutely understand why people are calling for Cornell and other universities to ban fraternities. As I noted above, I have no use for fraternities and wish that they would go away, ideally because no one should want to be part of one. In addition, there are other issues that should weigh in any such decision, and it could end up being reasonable to conclude that the unintended consequences of a ban are more than justified by the advantages of directly confronting what has for so long been an epicenter of violence against women. My only goal here is to say that, at least based on a rather noteworthy anecdote with which I am intimately familiar, those unintended consequences can indeed be quite bad.
Most crucially, however, we must figure out how to end rape and to bring those who have committed such horrific crimes to justice.
- Neil H. Buchanan