Harvard Gym’s Creation of “Women Only” Hours

NBC’s Today show reported on March 10, 2008, that one workout facility at Harvard University has closed its doors to men for six out of its 70 operating hours per week.  There is also a website version of the story.

The subtext of the story is that it is discriminatory to exclude men from the gymnasium for these six hours.  Is this really discriminatory?  If so, who is doing the discriminating and who is suffering the harm?  As a 501(c)(3) nonprofit, what’s so wrong with Harvard making the choice to accommodate the needs of an admitted minority portion of its student population?  Remember, Harvard is not a state, or even quasi-state, actor like Virginia Military Institute.  The Supreme Court ruled a dozen years ago that VMI unlawfully discriminated against women when it held that VMI’s policy of admitting only men to the state school violated equal protection.  See United States v. Virginia, 518 U.S. 515, 556-58 (1996).  But, as we all know, 501(c)(3) entities like Harvard are not state actors – right?  So the equal protection clause of the constitution does not directly apply.  Even if it did, would the court have reached the same result if the alleged constitutional violator were an all female school?  The Court has not yet answered this question.  My suspicion is that, if it did address the issue, it would do so using a different constitutional law standard than it did in US v. Virginia.

DAB