Congratulations are owed to Yale for its dean of students’ decision to provide single-gender housing options to students beginning with the 2023-24 school year. News reports say that this decision followed “weeks of demands” from Muslim students who were being “forced to change their habits to avoid sacrificing their religious beliefs.”
“Mandatory mixed-gender bathrooms directly interfere with students’ rights to their religious practices,” said an open letter signed by advocates of single-gender housing, including the Muslim Students Association and the Black Muslim Students Association.
In fact, it took a quarter-century for Yale to acknowledge that forcing its students to live on campus in mixed-gender housing is a violation of the basic American value of religious liberty.
In 1998, I filed a federal lawsuit on behalf of four Orthodox Jewish freshmen and sophomores at Yale College that made an identical claim regarding religious liberty. Yale fought us tooth and nail. It opposed the Orthodox Jewish students’ request in meetings we had with administrators and then in the federal district and appellate courts. Yale claimed, “It would defeat the purpose of the residential-college system if students could opt out of it.”
Jewish appellate judges ruled against us. The only judge sympathetic to the Orthodox Jewish claim was James B. Moran, a visiting federal judge from Illinois. In an opinion dissenting from a dismissal of our case, he said that a trial was needed to decide “whether [Yale’s] policy had a discriminatory effect on Orthodox Jews” and “whether the mandatory on-campus policy is reasonably necessary to achieve an important business objective of
Yale College.”
The religious rights denied to Jews by Yale in 1998 have now been granted to Muslims in 2023. This may reflect Yale’s greater tolerance of minority religious practices. Or it may reflect a difference in American institutions’ willingness to accommodate Muslims, in contrast to their attitude toward Orthodox Jews.
Our claim against Yale was criticized at the time by some American Jewish secular organizations and spokesmen. It was, they asserted, harmful to the standing of American Jewry in contemporary society.
Maybe if America’s Jews had been as united in seeking recognition of traditional Jewish values — as America’s Muslims are united today in regard to their values — the result of our lawsuit would have been different.
Nathan Lewin is a Washington, D.C. lawyer, with a Supreme Court practice who has taught at leading national law schools.
