- The legality of women swimming alone (Photo: Associated Press)
Last month, the George Washington University announced its new women-only swim hour, a weekly "Sister Splash" meant to accommodate Muslim women on campus who feel that swimming in the presence of men conflicts with their religious beliefs. In Sister Splash's wake, we entertained the opinions of students on campus: Those who have the chance to swim at college for the first time; those who find the event an idiotic and sexist act of politically correct nonsense that represents the dangerous "Islamization of America"; and those who don't really care if they can't access the exercise pool one hour a week.
Now, we turn to the legal perspective. Four takes on the legality of the "Sisters swim," below:
THE CHURCH AND STATE PERSPECTIVE: Inside Higher Ed quotes Americans United for Separation of Church and State legal director Ayesha N. Kham on the issue:
Because George Washington is a private university, there are no constitutional issues with the swim hour, said Ayesha N. Khan, legal director of Americans United for Separation of Church and State. Should a similar program start up at a public university, the presence of church-state issues would depend on the many facts of the situation, such as whether access is religion-specific, Khan said.
THE RELIGIOUS LIBERTY PERSPECTIVE John L. Esposito, founding director of Georgetown University's Prince Alwaleed Bin Talal Center for Muslim-Christian Understanding, offers his take:
Esposito cited numerous other ways institutions serve different groups: parking for people with disabilities, campus chapels for various religions, and excusing attendance for students celebrating religious holidays other than the traditionally recognized Christmas or Easter. “If there’s a segment of the community that can benefit from an accommodation, you make it when you can,” he said. “The fact is, they have rights and you have to accept it.”
THE TITLE IX PERSPECTIVE: Western New England College associate professor Erin E. Buzuvis contributes:
[Buzuvis] said it's unclear whether barring men from the pool constitutes a violation of Title IX of the Education Amendments of 1972, the law requiring gender equity in educational programs at federally funded schools and colleges. Men can still swim 95 percent of the time, so they're not completely excluded. And if the program's purpose is to accommodate a religious group, rather than women in general, that could work in the university's favor.
"The university might have a plausible defense that while this would technically be a form of gender discrimination, that they're doing it to accommodate a student's religion," Buzuvis said. "If that weren't an issue, I would say a female-only swim hour would be highly questionable under Title IX."
THE MALE PERSPECTIVE: The Washington Post consulted GW law professor Ira Lupu on the battling issues of gender and religious discrimination at play in the swim hour:
I asked him if Muslim women could argue religious discrimination if they couldn't use the pool because of men, or if male students could argue they were losing out? He seemed to think the latter camp had a better argument due to Title IX's ban on sexual discrimination in educational programs that get federal money.
"If I was in the [university's] office of general counsel, I'd say make it the same for men as women," said Lupu.
The focus on what some critics call "creeping sharia" (the term implies a subtle encroachment of orthodox Islam onto American freedoms) comes at an interesting time. Conservative religious groups - mostly evangelicals, but also Jews and Catholics - have just spent the past few decades pouring money into legal cases establishing access for religious groups to public spaces; cases have focused on everything from Bible groups' right to advertise and meet on public school property after-hours to religious holiday displays on public land.
"When you push for equal access, it really means that. Not just for your own folks," Lupu said. "So here we go."