Over a decade ago, Prof. Mark Bauer wrote an article exploring the antitrust implications of a small college’s decision to forbid fraternities from competing in the student housing market and the ensuing litigation. Expanding this line of research, several key holdings—despite contrary antitrust doctrine elsewhere—have granted universities broad authority to control the residential choices of their students qua consumers, bespeaking a unique relationship between university and student to which the fraternity is an interloper. These core cases casually allude to the ostensibly defunct doctrine of in loco parentis, under which colleges were once seen as proxy parents to their pupils, implying that in housing matters the paradigm of the custodial university retains the force to overcome competitive concerns. Given both costs and benefits to that view, this Article calls for more judicial scrutiny of the relations amongst colleges, students, and fraternities.



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