The District of Columbia Office of Human Rights has held that John Garvey, president of Catholic University of America did not violate a District law banning sex discrimination by returning the institution he leads to single-sex dormitories.  As I mentioned in a summer blog post, George Washington University law professor John Banzhaf filed a charge of discrimination against President Garvey.

The DC agency observed that laws banning discrimination on the basis of sex do not categorically forbid all sex-based distinctions.  The DC Human Rights Act, the law under which Prof. Banzhaf sued, prohibits only those policies that are “motivated by an invidious purpose,” not policies that “make distinctions between the sexes for benign purposes.”  Along the same lines, the agency stated that “a policy that makes distinctions between men and women is valid so long as the policy is not motivated by discriminatory animus.”

I must confess that I am slightly amused by the agency’s use of this line of reasoning.  When public universities accuse religious student groups of “discriminating” on the basis of religion by requiring their officers and leaders to share the group’s religious commitments, my ADF colleagues and I typically first argue that what the religious group is doing is simply not “discrimination” – which I would define as the invidious reliance upon irrelevant characteristics.  When the school’s Chess Club says “no Hindus,” that’s discrimination; but when the school’s Jewish Students Association says “our leaders must be Jewish,” it’s not.  Despite the power of this common sense argument, it almost invariably fails when made by religious student groups at public universities.  That’s why I’m amused (and heartened) that the DC agency accepted a conceptually identical argument.

In any event, props to the DC Office of Human Rights for getting this one right — and respecting religious freedom in the process.