As the nine all-male final clubs in Harvard Square begin once again their fall membership--or "punching"--drives, there are real indicators that a gender discrimination complaint filed with the Massachusetts Commission Against Discrimination (MCAD) may finally clear the first hurdle in what will likely be a landmark decision involving private clubs' right to discriminate.

The complaint, filed against the Fly Club by Lisa J. Schkolnick '88, has languished in the bureaucracy of the MCAD for more than a year-and-a-half, but spokespersons at the commission have said, for the first time, that the case will be decided in the next few weeks.

Despite the heated controversy set off by Schkolnick's case, most of the campus debate has centered on the moral--and not the legal--implications of whether or not the club should be forced to admit women, in part because the legal aspects of the complaint have remained vague.

The laywers for the Fly Club have refused since the beginning to speak to the press, and MCAD is not legally permitted to discuss many of the details of the case.

But the extensive briefs filed so far by Schkolnick's lawyer, Kevin G. Baker, do provide a glimpse at some of the more specific points of contention in Massachusetts law concerning gender discrimination and freedom of association.

Because the state code is unclear with respect to the rights of clubs such as the Fly Club, those who argue that they should be opened to women bear a heavy burden of proof, according to legal experts. As Judith K. Wright, spokesperson for MCAD, says, "It's all based on precedent."

At the heart of the legal arguments that Baker has presented to MCAD in the legal manuevering of the past year is the Fly Club's status as a private association.

Baker argues in a document filed with the state discrimination agency last May that the club "is a place of public accommodation and a provider of services within the meaning of the antidiscrimination statutes." In other words, the right of association does not apply to Harvard's all-male clubs, according to the Baker legal strategy, because it functions as a semi-official network providing services to an extensive group of members past and present.

And while this accusation represents no legal breakthrough, several of the affidavits and citations filed to date reveal in more concrete terms how Schkolnick and her lawyers hope to force the Fly Club to admit women. The main document that lays out this legal argument is mostly a 29-page compilation of state and federal anti-discrimination precedents--but legal experts say the issues it raises will be around for a long time.

The background to the complaint is fairly straightforward:

The Fly Club is one of the nine all-male final clubs whose roots at Harvard go back to the late 19th century. In 1984, the University severed ties with the clubs because they violated a College rule against single-sex organizations. Schkolnick, who conceived the idea with other editors of the liberal monthly Perspective, filed her complaint with MCAD in 1987, saying she was unable to hold membership in the club because of her gender. The student group Stop Withholding Access Today (SWAT) was added as a co-complainant in April of this year.

SWAT joined the complaint partly to dispel club charges that the complaint was invalid because Schkolnick had already graduated from the College. Members of SWAT said in April that including their organization as a party would guarantee that there would always be a direct connection between the case and current Harvard College students.

But while the circumstances surrounding the complaint's origins are clear, its current legal status is more ambiguous. Essentially, Baker has divided his legal argument into four major components, although it is impossible to tell which will be the most compelling until MCAD issues its decision.

Public or Private?

Perhaps the most pressing legal issue is whether or not the Fly Club and the other eight clubs are public or private organizations. It is the lengthiest part of Baker's brief and the one which quotes the most extensively from precedent-setting cases.