Amicus Brief — Roberts v. United States Jaycees

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Office - Supreme Court, U.S,

No. 83-724 FILED

FEB 27 984

IN THE

. ALEXANDER U. STEVAS,

Supreme Court of the United Sates con

OCTOBER TERM, 1983

IRENE GOMEZ-BETHKE, HUBERT H. HUMPHREY III,

and GEORGE A. BECK.

Appellants,

—

THE UNITED STATES JAYCEES,

Appellee.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF AMICUS CURIAE OF THE NATIONAL ORGANIZATION FOR

WOMEN, AMERICAN JEWISH COMMITTEE, CENTER FOR CON-

STITUTIONAL RIGHTS, COALITION OF LABOR UNION WOMEN,

CONNECTICUT WOMEN’S EDUCATIONAL AND LEGAL FUND,

EQUAL RIGHTS ADVOCATES, INC., NATIONAL CONFERENCE OF

BLACK LAWYERS, NATIONAL CONFERENCE OF WOMEN’S BAR

ASSOCIATIONS, NATIONAL FEDERATION OF BUSINESS AND

PROFESSIONAL WOMEN’S CLUBS, INC., NORTHWEST WOMEN’S

LAW CENTER, WOMEN EMPLOYED, WOMEN’S ACTION AL-

LIANCE, INC., WOMEN’S BAR ASSOCIATION OF THE STATE OF

NEW YORK, WOMEN’S EQUITY ACTION LEAGUE, WOMEN’S LAW

PROJECT, WOMEN’S LEGAL DEFENSE FUND AND WOMEN U.S.A.

i: SUPPORT OF REVERSAL

CHARLOTTE M. FISCHMAN MARSHA LEVICK

ScoTT D. HELLER JUDITH I. AVNER

ABBE L. DIENSTAG Counsel of Record

Kramer, Levin, Nessen, LYNN HECHT SCHAFRAN

Kamin & Frankel NOW Legal Defense and

919 Third Avenue Education Fund

New York, New York 10022 132 West 43rd Street

(212) 715-9100 New York, New York 10036

(212) 354-1225

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...........000+- (iii)

STATEMENT OF THE CASE .......... sean l

INTEREST OF AMICI ...........05- 80 4

SUMMARY OF ARE Äxg-- 6

I THE JAYCEES IS A LEADERSHIP

TRAINING ORGANIZATION INTIMATE-

LY TIED TO ADVANCEMENT IN BUSI-

NESS AND CIVIC LIFE ᷣ F. 10

A. The Jaycees offers leadership

training leading to advancement in

business and civic life..........+. 11

B. Membership in the Jaycees enhances

members“ career opportunities by

providing affiliation with a network

of upwardly mobile peers and access

to the leaders of the

community 18

_0 THE FIRST AMENDMENT DOES NOT

PREVENT THE STATE OF MINNESOTA

FROM COMPELLING THE JAYCEES TO

COMPLY WITH STATE LAW BANNING

SEX DISCRIMINATION LW... 30

A. The discriminatory policies of the

Jaycees are not constitutionally :

protected by a right of freedom of 9

Wc... eee 32

0 “aa

(i 5

— 1 Ne

Page

B. State insistence upon compliance

with its anti-discrimination law does

not infringe upon the Jaycees' free-

dom of speech, petition, and

QSSOMB]y.c 6 37

C. Membership organizations such as

the Jaycees do not enjoy a per se

exemption from the application of

anti-discrimination las 43

D. The Eighth Circuit has impaired the

ability of the State of Minnesota to

function in an area of vital local

COO en . . . . . „ „ „ „% % % % % % % % „ „ 0 51

II THE EIGHTH CIRCUIT ERRED N

HOLDING THAT THE MINNESOTA

HUMAN RIGHTS ACT AS_INTER-

PRETED BY THE STATE'S HIGHEST -

COURT IS UNCONSTITUTIONALLY

VARI Bik sc wed ese cee eee eee 56

The Minnesota Supreme Court articu-

lated clear standards for determining

whether a civic ization falls within

the State's Human ights Act .....066- 57

„

nee eee ee ee e e e e 64 55

APPENDIX eoeeeeoeepeeveeeeeeeeeeeeeeeeee a-l

) N Statements of Interest eeeeeeeeeeeeee a-l 9 a

3 ;

TABLE OF AUTHORITIES

CASES:

Abood v. Detroit Board of Education, 431

Boule v. City of Columbia, 378 U.S. 347

~~(1 964)

1797205 v. Hayes, 408 U.S. 665

Brown v. Loudoun Golf & 99 Club,

3) * upp. . . a.

Brown v. Socialist Workers '74 95 W

mm ee, . * — .

Huskies v. Valeo, 424 US 1

City of Los

les v. Lyons, 103 S. Ct.

Civil Service Commission v. National

tion of Letter ers, 41

Coates uv. City of Cincinnati, 402 U.S.

v. Benevolent

nnn

52-53

Curran v. Mount Diabio Council of the

“Boy Scouts of America, 147 Cal. App.

3d ff, 198 Cal. Rptr. 325

Daniel v. Paul, 395 U.S. 298

Democratic Party v. Wisconsin, 450 U.S.

Fletcher v. United States Jaycees, Nos.

78-BPA 0058-0081 (Mass. Comm'n

inst Discrimination Jan. 27,

l %% ˙ wea wbe Cela ceeccenne

Giaccio v. Pennsylvania, 382 U.S. 399

Crayne! v. City of Rockford, 408 U.S,

Healy v. James, 408 US. 169

Heart of Atlanta M Ine. v. United

tates, 379

Hoffman Estates v. 19 11902 Hoffman

1. „„ „„ „„ „„ „

In re Primus, 436 U.S, 412 (1978))ꝓ7ꝓ ʒꝛ

wood

3 619 F.2d 747 (8th

3in

Mee v. Pontikes, 414 U.S. 51

o „ „ „ „ „ „ „ e 35

Marchioro v. Chaney, 442 U.S. 191

eeeeeeeeeeeeeeeeeeeeeeeeeeee 42

Minnesota v. United States Jaycees

(Minn. Dept. of Human Rights Oat. J,

F passim

NAACP v. Alabama, 357 U.S. 449

rene come 34

NAACP vy. Button, 71 U.S. 415

Diesen Gaeb-ececeeeses bese seces 36

pp. Div.), aff'd, 67 N.J.

320, 338 A.2d 198 (1974)... -

eeeeeeeeeneeeeee 47

eeeeweveeeeeeeeeeeeeeeeeeeeeeeee 44

Nesmith v. YMCA, 397 F.2d 96 (4th Cir.

~~ 1968)

New State Ice Co. v. Liebmann, 285 U.S.

eeeeeeeeeeeeeeeeeeeeeeeee 54

New York City Ja Inc. v. United

eoeeeeeeveeeeeeeeeeeeeeeeeee 16

1 Rights Jan. 4,

e xan eee 48

Rose v. Locke, 423 U.S. 48 (197)

eeeeweeeeeeee

Hany on v. MeCrary, 427 U.S. 160

Shelton v. Tucker, 364 U.S, 479

fhepherdstown Volunteer Fire

rtment F. Swain, Nos. 15467,

Ta Sup. Ct. App. Nov. 10,

P avdessgeaetes otek

Sullivan v. Little Hunting Park, 396 U.S.

Tillman v. Wheaton-Haven Recreation

Association, 410 US. II

United Mine Workers v. Illinois Bar

United States Wie v. McClure, 305

United States Jaycees v. M 534 F.

„Erd, 709

passim

F.2d 1560 (8th Cir, 1983)... . sc. sseceeee passim

Sta v. Ri 666

Zin

” a

United States Power drons v. State

uman

. . * . 871

Walen y. Roe, 429 U.S. 589

seeeeeee eee eeeeeeeeeeeeeeeeee 54

Widmar_v. Vincent, 454 U.S. 263

EP Satoh obese cesceeracessseeancer 34

arg v. Cork Club, 315 F. Supp. 1143

„ ex. *eeeeeeteeneeeeeeeeeeeeee 44-45

I v. Harris, 401 US. 37

th mate 606 7 U@@GSe eee evsv ee Uwe eae ese = S6 52

CODES, STATUTES AND RULES:

. cb 0-04.0400% 38

1966 & Supp. 18863) „66 passim

Minn. Stat. Ann. § 363.01(18) (West 1966

Sen.. .... . „„ „eiiie 3,57

Minn. Stat. Ann. 8 363.0303) (West 1966

L r 57

Minn. Stat. Ann. 8 363.12(1X3) (West

1966 & Supp. 1983) 52

Minn. Stat. Ann. § 460. 06 1(3) (West 1966

ies. o oc.c ceded ee'ecvececsvi'e 3

Lr 51

43 U.S.C. § een to - „ „„ „„ „„ „„ 2 53

42 U.S.C. § 2000e to e-[i777F rece ences 53

Page

OTHER AUTHORITIES:

Bartlett, Poulton-Callahan & Somers,

What's Hold Women Back?

anagement Weekly, Nov. 8, 00 „6 „ i 23

Brief of the United States Jaycees,

United States Jaycees v. McClure, 305

6 6 % %% % % % % % 06% % 0 0 24n

39-40

Burns, The Exclusion of Women from

Influential Men's Clubs: The Inner

))) Ion

M. Causey, Old Girl Network 45 08

Washington Post, Oct. 5, „ 4 ’

Oks be . . e e %% % % % e 0 e e e e eee eee eee 20

Devanna, Male/Female e The t

First Decade ty :

Graduate School of Business, Center

for Research in Career Development :

(BOGE) 6 ca 6 cok du eee alee bale oes Hees 21-22 2

Harlan & Weiss, M Up: Women in

M ial Caree

esley ter or

Research on Women (1986 1)))))) 22

Johnson, For Students a Dramatic Shift 4

in "Goals", N.Y. Times, Feb. 28, 1983, *

at B 5, col. 2 „ „„ „„ „% „„ „„ „ „ „„ „ „ „„ „„ „„ „ „ „ „„ „ „„ „6 „ 21 “4

C. Kleiman, Women's Networks — “a

Gee „ere ds bveeeuse 21

4 *

‘a *

Moses, Network Black Enterprise,

Sept. 1980, at 29 „ e „ „„ „ „ 20

O'Brien, Women Helping Women, Detroit

Free ess, Ov. * W W O „ „„ „„ „ 19-20

J. O'Hara, From the Terrace (Popular

Library 00, 1060) „„ 19n

Project, Discrimination in Access to

Public Places: A Survey of State and

Federal Public „ Laws, 7

N.Y.U. Rev. L. & Soc. Change 215

. ̃ ̃ͤ m1 bes hese „„ „„ SOC

Simpson, Ja Challenged on Men

' Rule Working Wousn. at 61,

ay 1979

e „„ „„ In, 15

18,24, 27

The All-Male Club: Threatened on All

Si Business Week, Aug. 11, 1980 at

e*eeeeeeeeneenereneteeneeeeeneeneteeeeneeeeneee 15

Transcript of Apr. 23-24, 1979,

ta v. United States Jaycees

= Dep't of Human Rights Oct. 9,

i „„ „„ „ 26

U.S. Bureau of Labor Statistics, Bull. No.

1886, fob, Seeing tetas sey

1972 e*eeeeoeeeeeeveeeeeeeeeeeeeeeneee 21

U.S. Jaycees, Service to Humanity: The R

Jaycees Future eoeseeveeeeaeeeaeeeeenee lin,15

16n,25n,27-28

STATEMENT OF THE CASE

The United States Jaycees (the "U.S.

Jaycees" or "Jaycees") is a civic organization of some

300,000 members with numerous local chapters nation-

wide. The U.S. Jaycees refuses to admit women to full

membership, according them only associate status.

Associate members are ineligible to vote, hold office or

receive awards. The issues to be resolved in this case

are whether application to the Jaycees of the Minnesota

Human Rights Act (the Act“), Minn. Stat. Ann. 35

363.01-.14 (West 1966 & Supp. 1983), which prohibits sex

discrimination in places of public accommodation,

unconstitutionally interferes with the Jaycees' First

Amendment rights and whether, as applied to the

Jaycees, the Act is unconstitutionally vague.

Since 1974 and 1975, the Minneapolis and

St. Paul chapters of the Jaycees have admitted women

as full members, in violation of the rules of the national

organization. When the national organization threat-

ened in 1978 to revoke the charters of these chapters,

the chapters filed charges with the Minnesota Depart-

ment of Human Rights claiming violation of the

Minnesota Human Rights Act. The Act prohibits sex

discrimination in places of public accommodation and

defines place of public accommodation to include "a

business .. facility of any kind .. whose goods .. [and]

privileges .. are .. sold or otherwise made available to

the public."

Hearing Examiner George Beck held in-

depth hearings on the claims against the Jaycees and on

October 9, 1979 issued a decision finding that the

Jaycees was a place of public accommodation whose

discriminatory practices violated the Minnesota Human

Rights Act. The U.S. Jaycees was enjoined from revok-

ing the local chapters' charters and from discriminating

against any members or applicants for membership on

the basis of sex. Minnesota v. United States Jaycees

(Minn. Dep't of Human Rights Oct. 9, 1979) ("DHR

Findings" and "DHR Memorandum"), at 493.7)

The Jaycees then instituted an action in

federal district court claiming that application of the

Minnesota Human Rights Act violated a constitutionally

protected right of freedom of association, and,

subsequently, that the Minnesota statute was unconsti-

tutionally vague. Under the procedure of Minn. Stat.

Ann. 5 480.061(3) (West 1966 & Supp. 1983), the district

court certified to the Minnesota Supreme Court the

question of whether the Jaycees was a place of public

accommodation within the meaning of Minn. Stat. Ann.

3 363.01 (18). The Minnesota Supreme Court answered

affirmatively. United States Jaycees v. McClure, 305

N.W.2d 764 (Minn. 1981). The district court then upheld

the application of the Minnesota Human Rights Act to

the Jaycees, finding that the State's compelling interest

in prohibiting sex discrimination outweighed any associ-

A. refers to Appellants Appendix.

ational rights of the Jaycees and rejecting the Jaycees'

vagueness claim. 534 F. Supp. 766 (D. Minn. 1982).

A divided panel of the Eighth Circuit, Chief

Judge Lay dissenting, reversed. The lower court

rejected the findings of the district court and the

Minnesota Supreme Court that the Jaycees was a

business organization and held that the Jaycees was a

public advocacy group whose right of association and

First Amendment rights were violated by application of

the Minnesota Human Rights Act and, in the alterna-

tive, that the Act was unconstitutionally vague as

applied. 709 F.2d 1560 (8th Cir. 1983). A petition for

rehearing en banc was rejected by an equally divided

Eighth Circuit on August 1, 1983. (Appellants' Appendix

at A-131). The appeal to this Court ensued. Probable

jurisdiction was noted on January 9, 1984.

INTEREST OF AMICI

This brief amicus curiae is submitted on

behalf of the National Organization for Women,

Se aa Os

g. Gott oS. 2h ee

American Jewish Committee, Center for Constitutional

Rights, Coalition of Labor Union Women, Connecticut

Women's Educational and Legal Fund, Equal Rights

Advocates, Inc., National Conference of Black Lawyers,

National Conference of Women's Bar Associations,

National Federation of Business & Professional Women's

Clubs, Inc., Northwest Women's Law Center, Women

Employed, Women's Action Alliance, Inc., Women's Bar

Association of the State of New York, Women's Equity

Action League, Women's Law Project, Women's Legal

Defense Fund and Women U.S.A. in support of

Appellants' position that the State of Minnesota may

constitutionally apply its Human Rights Act to the

Jaycees. These organizations oppose gender-based

discrimination and recognize the importance of equal

access for women to organizations like the Jaycees.

2 Appendix to this brief.

Pet ts 5

Consent to file this brief on behalf of the

named organizations has been obtained from the parties

pursuant to Supreme Court Rule 36.2. Letters of

consent are being filed together with this brief.

SUMMARY OF ARGUMENT

The U.S. Jaycees is a leadership training

organization intimately tied to advancement in business

and civic life. It provides leadership training by

offering courses in such areas as management skills and

public speaking, and providing members with various

opportunities to exercise and thereby develop their

leadership skills through community projects and as

officers, directors, and committee chairmen. Female

and male members of the Jaycees have pointed to the |

personal and professional gains they have realized as a

result of participating in the leadership-building

programs of the Jaycees. Because the Jaycees members

are in the early stages of their careers, 8

opportunities provided by the Jaycees to know and work

~6-

with peers and business and civic leaders in the com-

munity are critical to future job success. Serving as an

officer of the Jaycees, which women, as associate

members may not do, further enhances this opportunity

to make contacts among community leaders.

Full participation in these opportunities is

equally important for women. Recent studies of college

students amply demonstrate growing convergence of

men's and women's career goals including the identi-

fication of career as their highest priority. To deny

women leadership positions, voting rights, and awards in

organizations like the Jaycees is to place women at a

significant competitive disadvantage in their career

development.

Current constitutional jurisprudence does

a SS, f

; not prevent the state of Minnesota from compelling the N

Nuyoses to comply with Minnesota law prohibiting sex :

discrimination. ‘The Constitution recognizes a protected 4

N freedom of association, but only when tied to the i

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exercise of an explicit First Amendment right. This

Court has not extended such protection to organizations

like the Jaycees, which primarily engage in business or

commercial activities. Although the Jaycees has on

occasion taken political positions, such stands are

peripheral to the organization's core purpose. Because

the political pronouncements of the Jaycees are gender

neutral, application to the Jaycees of Minnesota law

banning sex discrimination would not infringe on any

First Amendment activities in which the Jaycees do

engage.

The fact that the Jaycees is a membership

organization does not in itself insulate the Jaycees from

anti-discrimination law. Moreover, since the Jaycees

currently admits women as associate members, compel-

ling it to grant full equality to women does not dras-

tically interfere with the Jaycees or threaten other,

truly private organizations, The interest of the State in

applying its Human Rights Act to the Jaycees is

one of vital local concern and should not be impaired by

the federal courts. “

The Minnesota Human Rights Act is not un-

constitutionally vague. The Minnesota Supreme Court,

interpreting its own statutes, articulated clear

standards for determining eoptieaticn of the statute to A

civie organizations. There is ample notice which allows :

the public to distinguish readily between acts that are

permissible and those that run afoul of the law. %

=. =>

THE JAYCEES IS A LEADERSHIP TRAIN-

ING ORGANIZATION INTIMATELY TIED

TO ADVANCEMENT IN BUSINESS AND

CIVIC LIFE

After two days of hearings, eight

witnesses, and 100 exhibits, DHR Memorandum,

at A-94, the Minnesota Department of Human

Rights concluded that the Jaycees was a place of

public accommodation within the meaning of the

State Human Rights Act and ordered the Jaycees

to comply with the Act by admitting women to

full membership. The Hearing Officer per-

ceptively recognized that Ado deny [Jaycee

training and help in advancement to women in

business while it is fully available to men would

place women at a significant competitive disad-

vantage.“ DHR Memorandum, at A-121. These

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A. The Jaycees offers leadership

training leading to advancement in

business and civic life.

Providing leadership training is the primary

purpose of the U.S. Jaycees. The organization adver-

‘

tises as its motto, "Build Tomorrow's Leaders Today, "3/

and describes itself as "an action organization with the

purpose and object of building leadership."4/ Its

recruiting materials boast that übe United States

Jaycees has provided thousands of eager young leaders

to America's vast business complex. S/ This self-

professed purpose was accurately perceived by the

Minnesota Department of Human Rights: "The by-laws

„/ Simpeon, Jaycees e on 'Men Only! Rule, 2

4 Working oman, t. ’ at 61. { 7

= ee a. . me

of the U.S. Jaycees make it clear that they are not

merely an organization designed to engage in good

works. They are rather an organization primarily de-

signed to train future leaders for civic and business

responsibilities." DHR Memorandum, at A-121, quoting

Junior Chamber of Commerce of Kansas City v. The _

Missouri State Junior Chamber of Commerce and the

U.S. Jaycees, 508 F.2d 1031, 1035 (8th Cir. 1975)

(Heany, J., dissenting). /

The Jaycees provides leadership training in

two ways: (1) courses in areas such as management skills

and public speaking, and (2) opportunities to exercise

and thereby develop leadership skills through community

projects and as officers, directors or committee chair-

“4

The leadership training courses, which the

Jaycees calls "individual development" programs, are

Findings No. 19, at A-102 to A-103. ‘The Jaycees course

entitled "Personal Dynamics" teaches self-awareness

and evaluation, goal setting, personal planning and

personal skills; "Communication Dynamics" deals with

problems such as listening skills, human relations and

letter writing; "Speak-Up" is a public: speaking course;

"Leadership Dynamics" discusses leadership styles and

skills and personnel management. See Complainants’

Exhibits 22, 23, 41, 53, listed at A-125 to A-127. A

small fee is charged for the materials used in these

courses, which include workbooks, a chairman's guide

and diplomas. Complainants’ Exhibit 33, listed at A-

126,

Jaycees members are well aware of the

value of these courses. One Minnesota Jaycees member

stated in testimony before the Department of Human

Rights that the Jaycees' "Speak-Up" program developed

her speaking abilities and aided in her presentations at

work. DHR Findings No. 17, at A-101 to A-102. Indeed,

a Jaycees recruitment manual coaches recruiters to use

the following dialogue:

What other organization will provide you

with a personal development education for

$25.00 a year? Just being in the Speak-Up

program and being able to speak more

effectively could mean a $25.00/month

raise in pay the next time you and your boss

talk about salaries.

See Complainants' Exhibits 24, 7, listed at A-125. On

the basis of such evidence, the Minnesota Department

of Human Rights correctly found that "the payment of

dues by members and the return of leadership training

programs »y the Jaycees is not unlike the purchase of

training courses from a for-profit organization such as

Dale Carnegie." DHR Memorandum, at A-115.

In addition to the instructional program

provided through formal courses, the U.S. Jaycees

offers its members a laboratory with unique opportuni-

ties to exercise and develop leadership skills iirough 7

committee work, community service projects and hold-

1 a2 N es .

P eh i a ae

Lee

ing office in the organization. Women who have been

admitted to membership in the Jaycees have pointed to

the personal and professional gains they have realized as

a result of participating in a leadership-building volun-

teer group that cuts across career lines. See Simpson,

Jaycees Challenged on 'Men Only' Rule, supra, at 65.

One Minnesota Jaycee testified that through her Jaycee

participation she acquired speaking, leadership and

organizational skills at a young age that helped her to

gain a promotion. DHR Findings No. 16, at A-100 to A-

101. Another Minnesota woman, who joined the Jaycees

at her supervisor's request, described the organization

as offering "probably the best leadership training for

women in the country." The All-Male Club: Threatened

on All Sides, Business Week, August 11, 1980, at 90, 91.

Clearly the Jaycees' leadership training,

although described in the organization's publications as

"Service to Humanity," does not take place in a rarified .

<2 yer.

La © oath»

; <

—

atmosphere of purely altruistie concerns. / Indeed, the

Jaycees was "originally organized for the sole purpose

of promoting the business interests of its members."

New York City Jaycees, Inc. v. United States Jaycees,

Inc., 512 F.2d 856, 858 (2d Cir. 1975).

The value of the Jaycees“ leadership train-

ing services in business has been acknowledged by the

business community itself. Corporations frequently

sponsor their employees for membership, DHR Findings

o. 23, at A-105, and encourage employees to become

Jayoees. Y The benefit to the corporation comes from

7 Service to aman, is the title of a

¥ aycees recruitm K.. Si Bir ow Rte

Jaycees projects are of great value to the

community, there is no question that the Jaycees

member derives very tangible benefits directly

affecting his business life by participating in those

projects.

the improved management skills of its employees and

the publicity the corporation obtains when one of its

employees receives public recognition for participation

in a Jaycees public service project.

Individuals who join the Jaycees are seeking

to enhance their career potential through both leader-

ship training courses and the experience gained in

running large-scale volunteer projects in an ofganization

with high visibility and respect in the community.

Members do not use the Jaycees as a vehicle for taking

positions .on public issues, except as such incidental

activity may lead to visible public projects. The value

of the Jaycees' leadership training services was sum-

marized by the Department of Human Rights' Hearing

ail * . a 1 a 1 * i tae 6

4 * 5 * 7 a

[sic]. The record shows that not only have

these women benefited generally from the

skills that they acquired in the Jaycees, but

participation has also led to promotion.

DHR Memorandum, at A-120 to A-121. The same

perception was stated more succinctly by John

Kendrick, President of the Boston Jaycees: "My own

value in the marketplace has increased dramatically by

my Jaycees experience." Simpson, Jaycees Challenged

on Men Only' Rule, supra, at 68.

B. Membership jn the Jaycees enhances

members’ er opportunities by

providing affiliation with a network

of upwardly mobile peers and access

to the leaders of the community.

One of the most important services pro- 8

vided by the Jaycees to its members is affiliation with a oti

2 network of upwardly mobile peers and access to the 5

business and civic leaders of the community. Although 72

2 not formally advertised in any Jaycees Handbook, the 4

q value of this service is well recognized. It provides

OR members with an entree to the "Old Boys Network.”

—

** *

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Sa. de * 4 .

D ‘A * (pees

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eee, eee Lo”.

The Old Boys Network is that series of link-

ages with influential elders, ambitious peers and

younger men on their way up which men develop as they

move through school, work, professional and community

service organizations, and private clubs. It provides

men with knowledgeable allies who help them to

advance in their careers, teach them who the cast of

characters is and how to behave in a new position, and

assist them in getting the earliest news of job openings,

business opportunities and financial grants.

The importance of access to such a network

cannot be overestimated.2/ The Detroit Free Press has

Members of these networks are fond of denying

their importance, and even their existence, but

trenchant observers of American society have no

;

— —

described the Old Boys Network as "where the power

really is ... the mechanism that gives men a chance to

push the right buttons and meet the right people at the

right time.” O'Brien, Women Helping Women, Detroit

Free Press, Nov. 13, 1978. The Washington, D.C. Old

Boys Network has been characterized as "a power

source men have used since the beginning here; the who-

do~you-know pipeline. ... The Old Boys Network“ that

runs the capital, irrespective of political creed... ."

Causey, Old Girl Network Growing, Washington Post,

Oct. 5, 1978. According to Meryl James-Gray, interna-

tional public relations director of Avon Products,

"networking is one essential way in which the corporate

system works." Moses, Networking, Black Enterprise,

Sept. 1980, at 29, 30. Promotions and high-level jobs

are often based on the kind of personal relationships

that are forged in the Old Boys Network. The Bureau of

Labor Statistics reported that almost one third of all

jobs held by males comes through personal contacts.

U.S. Bureau of Labor Statistics, Bull. No. 1886, Job

Seeking Methods Used by American Workers, Table 3

(1972). Most people believe that the percentage is even

higher for high-level jobs. C. Kleiman, Women's

Networks 2 (1980).

Women are as much in need of access to

career enhancing networks as are men. The numerous

studies of college students that have been conducted

over the past fifteen years have demonstrated a growing

convergence in men's and women's career and family

goals. See, e.g., Johnson, For Students a Dramatic Shift

in "Goals", N.Y. Times, Feb. 28, 1983, at Bs, col. 25

Devanna, Male/Female The First Decade

Columbia University Graduate School of Business,

Center for Research in Career Development (1984) (the

"Columbia Study"). Ninety percent of both men and

women college students plan to obtain graduate degrees,

and one-third of both women and men expect their

careers to be their highest priority in 15 to 20 years.

The Columbia Study of male and female graduates of

the classes of 1969-1972 revealed that men and women

graduates chose the same types of jobs upon graduation.

Further, there was no evidence that women work fewer

hours or drop out of the labor force due to marriage or

childbirth, explanations often given for the small

representation of women in the ranks of management.

The study also revealed a strong correlation between

mentoring and success for women. In fact 72% of the

women without mentors were in the low success group

(as defined by salary). In a recent study of male and

female managers in two unnamed companies, re-

searchers found that women and men both had high

power and achievement drives, and strong motivation to

manage. Harlan & Weiss, Moving Up: Women in

Managerial Careers, Final Report, Wellesley College

Center for Research on Women (1981).

a Aspirations and drive, however, are not

enough for women seeking to equal the professional 8

achievements of their male counterparts. "[Wlho knows

whom...is important [in career advancement]. In this

regard, women suffer because men tend to socialize in

activities which exclude women." Bartlett, Poulton-

Callahan, Somers, What's Holding Women Baek,

Management Weekly, November 8, 1982. Women need

the contacts, networking, and professional support

provided by organizations like the Jaycees.

Members of the Jaycees automatically be-

come a part of an extensive and influential network of

current Jaycees. Because the Jaycees is a national

organization with more than 300,000 members in 9,000

local chapters, this network reaches far beyond an

individual member's chapter to provide ties to Jaycees

members throughout the country. Locally, the Jaycees'

program provides many opportunities for each Jaycees

member to know and work with peers in the community.

These individuals are in the early stages of their careers

and share aspirations for career advancement. / at

the same time there is enough range in the organiza-

tion's age parameters to allow the senior members to

provide the juniors with advice, contacts, and a wide

variety of business opportunity and employment. An

Alaska insurance broker who participates in several

professional groups has stated that no group matched

the Jaycees for making professional contacts and that

many of her clients had been referred to her by other

Jaycees. Simpson, Jaycees Challenged on Men Only'

Rule, supra at 65.

Every Jaycee is also part of a network

which encompasses all past members of the Jaycees.

Many of these alumni hold influential positions in the

10/ Although Jaycee membership is open to any male

between the ages of 18 and 35, many Jaycees are

young business and professional men who aspire to

o; ~

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= 5

‘

business and civic arenas, locally and across the

country. It is these direct connections with the sources

of community power, the decision makers of the busi-

ness and civic worlds, that are so critical for future

advancement.

The Jaycees network provides its members

with access to local community leaders not only through

links to Jaycees "graduates" but also through the many

community service projects sponsored by the local chap-

ters. The projects range from providing free holiday

dinners to CPR training I/ In the course of carrying

out these projects, Jaycees members meet and work ~~

u) DHR Findings No. 19 and 20, at A-102 to 104.

et. > er

sale)

ois

closely with the business and civic leaders of their

communities, individuals whom it is doubtful these

young Jaycees would otherwise have the opportunity to

meet and who may well have a major impact on their

lives. Serving as an officer of the Jaycees, which

women, as associate members, may not do, further

enhances this opportunity to make contacts among

community leaders. For example, the president of the

St. Paul Jaycees sits on the St. Paul Chamber of

Commerce as an ex-officio member. Transcript of Apr.

23-24, 1979, at 179, Minnesota v. United States Jaycees,

(Minn. Dep't of Human Rights Oct. 9, 1979).

The Jaycees is able to provide its members

with access to the business and civic leaders of the

community because of the recognition and respect the

organization enjoys in the community42/ A Jaycees

: *

The Department of Human Rights found that a

„ 3

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* *

’

recruitment brochure boasts "In Canton, Ohio, being a

Jaycee is important. Industry considers it important.

City officials and news media consider it important."

Service to Humanity, supra, at 8. And a Jaycees

chapter president has said, "There's a lot of validity to

the Jaycees' motto Build Tomorrow's Leaders

Today'....Corporate doors open when you say you're from

the Boston Jaycees." Simpson, Jaycees Chall on

"Men Only' Rule, supra, at 68.

Affiliation with a network of past and

present members and access to community leaders is

not simply an incidental aspect of Jaycees mem-

bership. The Jaycees advertises its ability to plug a new

member into the community quickly and at the highest

levels. Indeed, one Jaycees recruitment publication tells

the story of "an average Jaycee," a thirty-year old man

transferred to a new town, uneasy because he knows no

one and encouraged by his boss to join the Jaycees,

After attending his first meeting, this "average Jaycee"

is approached by a committee chairman and asked for a

1 *

2 *

his opinions and suggestions about the previous night's

discussion, joins the committee, assumes "a position of

leadership," and in short order finds himself "confront-

ing community officials with the key problems that the

citizens had cited which the Jaycees could do something

about." Service to Humanity, supra, at 3-4.

Denying women the right to exercise mem-

bership privileges such as voting, holding office or

receiving awards creates a "together but unequal"

environment with many serious disadvantages to the

second-class participants. Relegating women to such

secondary citizenship in organizations such as the

Jaycees denies them the substantially greater leadership

training and contacts development afforded those who

serve as officers and directors, creates feelings of

inferiority in women, and reinforces the handmaiden

mentality in men — the notion that women are always

the Women's Auxiliary, there to serve without praise or

pay. Moreover, to deny women leadership positions and

awards in an organization like the Jaycees, which —

> . |

wen

1 S ee

V rin EL nee Re ee Ore SO

W intensely on competition and honors to spur

members' achievement, is to deny women recognition in

every sense of the word.

THE FIRST AMENDMENT DOES NOT

PREVENT THE STATE OF MINNESOTA

FROM COMPELLING THE JAYCEES TO

COMPLY WITH STATE LAW BANNING

SEX DISCRIMINATION

In ruling the application of the Minnesota

Human Rights Act to the membership practices of the

Jaycees unconstitutional, the Eighth Circuit has

essentially precluded the State of Minnesota from

effectuating its important policy of eradicating sex

discrimination in businesses and marketplaces within the

State. Minnesota has been ordered to condone the

discriminatory practices of the Jaycees and ignore an

administrative and trial record that demonstrate the

deleterious effect that this will have on the ability of

women to compete for career opportunities in the

State. The Court of Appeals' decision mischaracterizes

the factual record with respect to the operation of the

Jaycees in Minnesota and rests on freedom of asso-

yee

5 a

> 2 © oe

ciation and First Amendment doctrine inconsistent with

this Court's jurisprudence.

The Eighth Circuit stands alone, among the

courts that have considered this case, in invalidating the

application of the Minnesota Human Rights Act to the

Jaycees. The Minnesota Supreme Court confirmed that

the Jaycees was a place of public accommodation within

the meaning of the State's anti-discrimination statute

because of the organization's vigorous but non-selective

recruitment policies and the organization's emphasis on

leadership and management training programs. L

Addressing the const itutionality of the Human Rights

Act as applied to the Jaycees, the district court

13/ Like the tribunals in Minnesota, the Massachusetts

Commission Against Discrimination has held the

Jaycees subject to public accommodations laws in

3 =

declared, "Minnesota's interest in prohibiting public

business facilities from sex discrimination outweighs

any protected right of freedom of association the

Jaycees may have." 534 F. Supp. at 774. The decision of

the Eighth Circuit overturning these decisions should be

reversed, lest it signal to sister states a backward trend

in the national move towards equal opportunities for

both sexes.

A. The discriminatory policies of the

Jaycees are not constitutionally

protected by a right of freedom of

association.

in seeking to prodee: tne Jaycees from the

reach of the State's anti-discrimination laws, the Eighth

Circuit has relied upon an unusually broad and

amorphous concept of freedom of association. Stating

that the Circuit's "own cases have recognized a right of

association in ... broad terms" and that both its opinions

and those of this Court have not restricted rights of

-32-

within the specific guarantees of the First Amendment,"

709 F.2d at 1568, the lower court has held in substance

that the discriminatory practices of the Jaycees are

constitutionally protected because they are practiced by

a group rather than by individuals. Group practice of

discrimination, however, is a greater evil than diffuse

and uncennected bias exhibited by individuals. Women

are disadvantaged by exetusion from full membership in

the Jaycees precisely because they cannot benefit from

the full range of contacts, leadership experience, and

organizational work that the Jaycees has to offer.

. —

Review of the Court's pronouncements on

freedom of association reveals that the Court has

extended constitutional bales to association that is

tied to the textually explicit First Amendment rights of

freedom of speech, petition, and assembly. Protection

of beliefs lies behind many of the Court's cases. Thus,

the Court has held on numerous occasions that a state

cannot compel disclosure of affiliation with groups

organized to advance particular, usually unpopular,

beliefs, because to do so would stifle freedom of

speech. See, e.g., Brown v. Socialist Workers '74

Campaign Committee, 459 U.S. 87, 103 S. Ct. 416, 419-

20 (1982) ("The Constitution protects against compelled

disclosure of political association and beliefs."); Shelton

v. Tucker, 364 U.S. 479, 485-86 (1960) ("to compel a

teacher to disclose his every associational tie is to

impair that teacher's right of free association, a right |

closely allied to freedom of speech"); NAACP v. th

Alabama, 357 U.S. 449, 460 (1958) ("It is beyond debate

that freedom to engage in association for the advance- 1

ment of beliefs and ideas is an insepareble aspect of mũwe

Tiberty' assured by the Due reg Clause of me

Fourteenth Amendment, which embraces freedom of

; speech.") Freedom of association has been invoked to

forbid states from depriving educational forums to

groups solely because of the beliefs they espouse, -

| " Widmar u. Vincent, 454 U.S, 263, 269 (1981); Healy v.

: James, 408 U.S. 169, 181 (1972), or foreing a mon

5 member to contribute in support of causes foreign to his

ee ee

beliefs. Abood x. Detroit Board of Education, 431 U.S.

209, 233 (1977).

Similarly, it has been held that government

may not infringe on the right to associate in political

parties, a right clearly related to freedom of expres-

sion. See, e.g., Democratic Party v. Wisconsin, 450 U.S.

107, 121 (1981) ("First Amendment freedom to gather in

association for the purpose of advancing shared beliefs

is protected by the Fourteenth Amendment from in-

fringement by any State"); Buckley v. Valeo, 424 U.S. 1,

22 (1976) ("associations ... effectively amplifying the

; voice of their adherents [ig the original basis for the

i recognition of First Amendment protection of the free-

2 dom of association"); Kusper v. Pontikes, 414 U.S. 51, 57

’ (1973) ("The right to associate with the political party

of ones choice is an integral part of . . . basic

constitutional freedom"). Associational rights have also

been implicated when government has sought to curtail

"collective activity undertaken to obtain meaningful

access.to the courts,” In re Primus, 436 Us. 412, 426

wor

(1978) quoting United ion v. Mich

Bar, 401 U.S. 576, 585 (1971), a freedom related to "the

right to assemble peaceably and to petition for redress

of grievances." See United Mine Workers v. Dlinois Bar

Association, 389 U.S. 217, 222 (1967). See also NAACP

v. Button, 371 U.S. 415, 430-31 (1963) ("the First and

Fourteenth Amendments protect certain forms bf order-

ly group activity ... association for litigation may be the

most effective form of political expression").

These casés illustrate the contours of the

right of association. The Court has not established a

constitutional right of group e that turns only i

on the fact that individuals have chosen to pursue 4

collectively interests otherwise not entitled to 8

constitutional protection. For group activity to be

protected it must embody appropriate First Amendment

4 content. The Jaycees does not enjoy a constitutional -

: shield for its discriminatory practices simply because its

skills, provide themselves with civic exposure, and

enhance their opportunities in the business world.

B. State insistance upon compliance

with its anti-discrimination law does

not infringe upon the Jaycees' free-

dom of speech, petition and assem-

bly. 1

The Eighth Circuit has also relied upon

traditional freedom of association principles connected

with First Amendment exercise to prohibit application

of the Minnesota Human Rights Act to the Jaycees.

Contrary to every other tribunal that has considered

this case, the Eighth Circuit has concluded that the

» Jaycees are entitled to First Amendment proteetion as

an organization devoted to the espousal of political

beliefs and social ideology. in this regard the Bighth

Circuit has committed errors of fact and law and should a

be reversed. |

The district court, relying in part on the

testimony of Arthur W. Bouliette, Executive Vice

President of the Jaycees and the organization's his-

tor ian, arrived at the following factual description of

the Jaycees:

The Jaycees considers itself to be a

young men's leadership training iza-

tion, serving the goals of idual

development, community development, and

development of management ability. It

claims that the training it offers gives

members an advantage in business and civic

advancement, and businesses are in fact

sometimes requested to pay the dues for

individual members ... In addition, the

Jaycees from time to time issues various

policy statements on political and social

issues ....

534 F. Supp. at 769 (footnote omitted).

‘ule. 326g) of we Federal Rules of Civil

Procedure provides that "[flindings of fact shall not be

set aside unless clearly erroneous, and due regard shall

be given to the opportunity of the trial court to judge

the credibility ot the witnesses." As this Court has

recently observed, "Because of the deference due the

trial judge, unless an appellate court is left with the

‘definite and firm conviction mat a misteke has been

“iy

committed,' United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948), it must accept the trial court's

findings." Inwood Laboratories v. Ives Laboratories, 456

U.S. 844, 855 (1982) (footnote omitted). Failing to heed

the direction of the Federal Rules and this Court, the

Eighth Circuit has improperly subsituted its own factual

characterization of the Jaycees for that of the district

court.

The trial court and other tribunals justifi-

ably found the political and ideological pronouncements

of the Jaycees to be only occasional and peripheral to

the Jaycees' principal business activities of recruitment

and training. As the record demonstrates, members do

not join the Jaycees in order to engage in political advo-

cacy, nor do corporations sponsor their employees“

membership in order to promote political ends. The

Jaycees stresses training and exposure, not opportunity

for political expression, in its recruitment of new mem-

bers. Indeed, in its brief before the Minnesota Supreme

Court, the Jaycees did not make the slightest reference

eren

to its political pronouncements. Brief of the United

States Jaycees, at 28-35, United States Jaycees v.

McClure, 305 N.W.2d 764 (Minn. 1981).

The Eighth Circuit, acting as if it were a

court of first instance, exaggerated the Jaycees' poli-

tical posturing beyond all reasonable bounds, charac-

terizing it as a major focus of the Jaycees’ endeavors.

The appellate court made the further factual finding

that "all of [the Jaycees'] doings are colored by the

adoption and recitation at meetings of the Jaycee

Creed .. which espouses ‘faith in God' and free

enterprise' and declares that 'the brotherhood of man

transcends the sovereignty of nations.“ 709 F.2d at

1570. The hollowness of this conclusion is readily

appreciated when the Jaycee ‘Creed’ is juxtaposed with

the Jaycees recruitment literature which loudly an-

nounces "JAYCEES, THE PRODUCT you are selling, is 3

outstanding from any angle. Jayoees is the best value! =

4 305 2

u. u. 20 764, 769 (Minn. 1961), quoting The eee

ee: 2

* 1

Recruitment Manual (emphasis in original). As the

record clearly demonstrates, the Court of Appeals’

"sonception of the Jaycees is based upon factual error.“

709 F.2d at 1579-80 (Lay, C.J., dissenting).

The quantum of First Amendment activity

in which the Jaycees does engage is not infringed upon

by the application of the Minnesota Human Rights Act.

An economically and socially oriented entity cannot, by

occasional political pronouncement, insulate itself from

the reach of anti-discrimination laws. Otherwise,

virtually all anti-discrimination laws, both state and

federal, could be evaded by issuing a few statements on

public affairs.

Even groups that are primarily engaged in

First Amendment activities must conform their conduct

to laws of general application that do not impinge on

any First Amendment exercise. "The [First] Amend-

ment does not forbid lal regulation which ends in no

restraint upon expression or in eny other evil outlawed

Be ote

~ +

by its terms and purposes." Oklahoma Press Publishing

Co. v. Walling, 327 U.S. 186, 193 (1946). Thus press .

organizations are subject to the National Labor

Relations Act, the Fair Labor Standards Act, the

Sherman Act and general nondiscriminatory tax legisla-

tion. See Branzburg v. Hayes, 408 U.S. 665, 682-83

(1972). Similarly, the right to associate for political

purposes is not infringed upon by state regulation of

political parties that does not in fact burden the

exercise of any political rights. See Marchioro v.

Chaney, 442 U.S. 191 (1979).

The State of Minnesota does not seek to

interfere with the Jaycees' occasional political pro-

nouncements or dictate its ideologies. The political

positions of the Jaycees cited by the Eighth Circuit in

support of its ruling — support for the draft, the FBI,

the United Nations, corporate income tax, the Hoover

Commission, the vote for 18-year-olds and citizens of

the District of Columbia — are striking for their gender

neutrality. See 709 F.2d at 1570. The "Jaycee Creed,"

heavily emphasized by the Eighth Circuit, 709 F.2d at

1570, contains nothing that espouses discrimination on

the basis of sex. Women are presently admitted as

associate members, presumably engaging in exchange of

ideas with their male counterparts. The Eighth Circuit's

mere speculation tha? full participation by women would

alter the "philosophical cast fof the Jaycees]", 709 F.2d

at 1571, is an insufficient basis upon which to preclude

the State from applying its anti-discrimination law to

the Jaycees.

C. Membership organizations such as

the Jaycees do not enjoy a per se

exemption from the application of

anti-discrimination laws.

The Jaycees has sought to invoke constitu-

tional protection of its discriminatory practices with

the argument that it is a private membership organiza-

tion whose forced admission of women would portend

government interference with practices and policies of

all private groups. The Jaycees' contention rests on the

erroneous premises that a group qualifies as a private

organization merely because it chooses to characterize

itself as such and that the courts are precluded from or

incapable of distinguishing between groups that are

truly private and those that are not. Both the federal

and state courts have refused to accept these premises.

A membership group, such as the Jaycees, is not exempt

from the application of anti-discrimination laws unless

the group exhibits identifiable features of exclusivity.

Criteria have been developed in the federal

courts for determining whether a group is truly private.

Among the criteria are selectivity of the group in the

admission of members, Tillman x. Wheaton - Haven

Recreation Association, 410 U.S. 431, 438 (1973);

Sullivan v. Little Hunting Park, 396 U.S. 229, 236 (1969); 1

existence of limits on the size of membership, Nesmith 5

f v. YMCA, 397 F. 20 96, 102 (4th Cir. 1968); formality of

a membership procedures, Cornelius „ Benevolent Order =

8 of Elks, 382 F. Supp. 1182, 1203 (D. Conn. 1974); MEM 2

v. Cork Club, 315 F. Supp. 1143, 1153 G. D. Tex. 1970);

attributes of self-government and member ownership,

Daniel v. Paul, 395 U.S. 298, 301 (1969); and the absence

of advertising directed to non-members, Runyon v.

McCrary, 427 U.S. 160, 172 n.10 (1976). See also, Brown

v. Loudoun Golf & Country Club he., 573 F. Supp. 399,

402-03 (E.D. Va. 1983) ("In determining whether an

establishment is a truly private club ... [t]he key factor

is whether the club's membership is truly selective.").

Employing these criteria, the Minnesota

Supreme Court found the Jaycees to be a public

membership organization. This conclusion was amply

supported by the record. Members are referred to as

"customers," and membership in the organization is

referred to in the organization's published material as

"the product" or "the goods." Moreover, the sale of

memberships occupies a tremendous amount of officers'

time, and recruitment achievement is recognized in the

organization's awards system, more than half of which

deals with "record breaking performance in selling

~45-

memberships." United States Jaycees v. McClure, 305

N. W. 2d 764, 771 (Minn. 1981). There are no published

criteria by which members are selected, and no evi-

dence in the record that any applicant for membership

has ever been rejected — except women applying for

"full" membership rather than "associate" membership.

See 534 F. Supp. at 769.

Various other state courts have rejected the

claims of open membership organizations that they were

private groups immune from the states’ public accom-

modations laws. A recent unanimous decision of the

New York Court of Appeals, United States Power

Squadrons x. State Human Rights Appeal Board, 59

N.Y.2d 401, 465 N. V. S. 2d 871 (1983), relied upon many

of the factors just enumerated to find an organization

of power-boating enthusiasts subject to the state's laws

against sex discrimination. Like the Jaycees, the Power

Squadrons offered social, civic, and educational pro-

grams. The court noted that the group had "no plan or

purpose of exclusivity other than sexual discrimination

-46-

+» encourageld) and solieitled public participation in

their programs, courses and membership ... [and did not]

direct publicity exclusively and only to the members

eee” 59 N.Y.2d at 413, 465 N.Y.S.2d at 877. A challenge

to the constitutionality of the state civil rights law as

applied to the Power Squadrons was summarily dis-

missed with the observation that the constitution

places no value on [private discrimination].'" 59 N.Y.2d

at 414, 465 N.Y.S.2d at 877, quoting Norwood x.

Harrison, 413 U.S. 455, 470 (1973). Compare Curran v.

Mount Diablo Council of the Boy Scouts of America, 147

Cal. App. 3d 717, 195 Cal. Rptr. 325 (1983) (Boy Scouts

is a “business establishment" forbidden under California

law from discriminating on the basis of sexual

preference); National Organization for Women, Essex

County Chapter v. Little League Baseball Inc., 127 N.J.

Super. 522, 318 A.2d 33 (App. Div.), aff'd, 67 N.J. 320,

338 A.2d 198 (1974) (Little League held a "place of

public accommodation" forbidden under New Jersey law

from discriminating against girls); Shepherdstown

Volunteer Fire Department v. Swain, Nos. 15467, 15749

(W. Va. Sup. Ct. App. Nov. 10, 1983) (volunteer fire

departments held not to be private clubs and thus ‘to

have viclated West Virginia Human Rights Act prohibit-

ing sex discrimination in places of public accommoda-

tion); Pollard v. Quinnipac Council, Boy Scouts of

America, No. PA-SEX-37-3 (Conn. Comm'n Human

Rights Jan. 4, 1984) (Boy Scouts, as a place of public

accommodation, is forbidden from discriminating

against applicant for scoutmaster on the basis of sex).

- The Jaycees seeks to upset this established

jurisprudence by presenting the Court with the specter

of Minnesota's invading all kinds of membership organi-

zations, from B'nai Brith to the Polish Women's

Alliance. See Appellee's Motion to Affirm at 13. The

records of neither these nor any other organizations are

rights of each organization can only be determined after

a detailed examination of the organization's practices

and policies, as the Minnesota tribunals and the district

court have done with respect to the Jaycees.

The Jaycees'’ attempt to compare itself to

other organizations is flawed for yet another reason.

The Jaycees is not in fact the men's organization that it

purports to be. The Jaycees does admit women to its

ranks, albeit as associate members without the right to

vote, hold office or obtain awards, but with the right to

participate in all of the organization's activities. 534 F.

Supp. at 769. Moreover, nothing that the Jaycees does

— not its recruitment and training, not its internal

decisionmaking, not its community projects, not its

occassional political expression — is uniquely related to

the interests of men. It is only by affixing to itself the

label of a young men's group that the Jaycees defends

its discriminatory policies. The State has done no more

than insist that the Jaycees eliminate women's second

class status within the organization. This is hardly a

demand that drastically alters the nature of the

organization, threatens the identity of other truly

—

homogeneous groups or rises to constitutional

significance.

The judgment of the State embodied in the

Minnesota Human Rights Act is entitled to a good deal

more credit than the Jaycees allows. Minnesota has

brought businesses like the Jaycees within the ambit of

its discrimination laws because the State has correctly

determined that such groups are commercially oriented

entities which, like traditional places of public

accommodation such as hotels and restaurants, have a

significant public impact. It is absurd to posit that, if

the decision of the Minnesota Supreme Court is allowed

to stand, the State will blindly undertake to erase all

ethnic, religious, and political pluralism within its

jurisdiction.

The decision of the Minnesota Supreme

Court applying the State's public accommodation law to

the Jaycees is consistent with the proposition that the

constitutic., provides no safe harbor against the applica-

* 8 ~ Cue

tion of civil rights laws for enterprises operating in the

public domain. In Heart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241 (1964), a case upholding the consti-

tutionality of the federal publie accommodation statute,

42 U.S.C. 8 2000a, the Court noted:

[N]o case has been cited to us where the

attack on a state [public accommodation]

statute has been either in

federal or state courts .... he constitu-

tionality of such state statutes stands

unquestioned.

379 U.S. at 260. These statutes remained unchallenged

until the decision in this case, the first instance in

which a federal court has found a state public accom-

modation statute unconstitutional.

D. The Eighth Circuit has impaired the

fune in an area of vital local

concern.

Amici agree with the finding of the district

court that "Minnesota's interest in preventing discri-

mination in public accommodations is compelling." That

interest is succinctly embodied in Minn. Stat. Ann.

3 363.12(1(3) (West 1966 & Supp. 1983) which declares,

"It is the public policy of this state to secure for persons

in this state, freedom from discrimination ... IIn public

accommodations because of ... sex ...." Discrimination

against women in business and career advancement is

not only repugnant to social and moral sensitivities, it

also deprives the State of the full potential contribution

of women to the State's economic growth and develop-

ment.

This Court has long been sensitive to those

aspects of our federal system which require the national

government to tread carefully when called upon to

interfere with state functions. See Railroad Commis-

sion v. Pullman Co., 312 U.S. 496, 498 (1941) (recogniz-

ing "sensitive areald of social policy upon which the

federal courts ought not to enter" absent pressing

exigency); Younger v. Harris, 401 U.S. 37, 44 (1971)

(emphasizing "the notion of comity, that is a proper

respect for state functions"). Just last term, in City of

‘

» ee

Los Angeles v. Lyons, 103 8. Ct. 1660 (1983), the Court

refused to sanction the issuance of an injunction against

state law enforcement officials out of consideration of

"normal principles of equity, comity, and federalism"

and " {t]he special delicacy of the adjustment to be

preserved between federal equitable power and state

administration of its own law.“ 103 8. Ct. at 1670,

quoting Stefanelli v. Minard, 342 U.S. 117, 120 (1951).

This is not an instance in which a state has

chosen to flout overriding federal law or policy.

Congress has forbidden discrimination on the bases of

race, religion, color, and national origin in places of

public aétommodations, 42 U.S.C. 88 2000a to 2000a-6,

and discrimination, including sex discrimination, in

places of employment, 42 U.S.C. $$ 2000e to 2000e-17.

Many states, however, have chosen to go further. At

least thirty-eight states and the District of Columbia

have public accommodation laws and more than half of

these prohibit sex discrimination. Project, Diserimina-

tion in Access to Public Places:_A Survey of State and_

Federal Public Accommodations Laws, 7 N.Y.U. Rev. L.

& Soc. Change 215, 292-93 (1978).

The wisdom of allowing the states a free

hand to legislate where national policy has not cry-

stalized has been captured in the oft-quoted remarks of

Justice Brandeis:

It is one of the happy incidents of the

federal system that a single courageous

State may, if its citizens chose, serve as a

laboratory; and try novel social and econo-

mic experiments without risk to the rest of

the country.

New State Ice Co, v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting). See also Whalen v. Roe, 429

U.S. 589, 597 & n.20 (1977) ("Wie have frequently

recognized that individual states have broad latitude in

experimenting with possible solutions to problems of

vital local concern."). The lower federal court should

not be permitted to prevent the State of Minnesota

from implementing its statutory solution to the

Nina Ot n pen ere et Fav’ bs VAR EE ka ee

5 aA

‘ 4

5 . * * ‘ vay

persistent problem of women's inability to compete

i effectively with men for career opportunity and

III.

THE EIGHTH CIRCUIT ERRED IN

HOLDING THAT THE MINNESOTA

HUMAN RIGHTS ACT AS INTERPRETED

BY THE STATE'S HIGHEST COURT IS

UNCONSTITUTIONALLY VAGUE

The Eighth Circuit has also invalidated the

Minnesota Human Rights Act as applied to the Jaycees

~ because, in its view, the state court "introduced such an

element of uncertainty [into the statute] as to make it

impossible for people of common intelligence to know

whether their organizations are subject to the law or

not.“ 709 F.2d at 1577. This vagueness analysis erro-

neously invalidated an otherwise unobjectionable

statute, disregarding detailed statutory definitions, the

reasoned interpretation of the statute by the State's

highest court, and the judicial consensus sustaining

substantially similar statutes.

The Minnesota Supreme Court articulated

clear standards for determining whether a

civic organization falls within the State's

Human Rights Act.

The Minnesota Human Rights Act, which

forbids sex discrimination in places of public accommo-

dation defines public accommodation to include "a

business . facility of any kind .. whose goods .. [and

privileges ... are ... sold, or otherwise made available to

the public." Minn. Stat. Ann. $§ 363.01(18), .03(3) (West

1966 & Supp. 1983). The Minnesota Supreme Court

determined that the Jaycees organization is a business

"in that it sells goods and extends privileges in exchange

for annual membership dues"; that it is a public business

in that it "solicits and recruits dues paying members but

is unselective in admitting them"; and that it is a public

business facility "in that it continuously recruits and

sells memberships at sites within the State of

Minnesota." United States Jaycees v. McClure, 305

N.W.2d 764, 768 (Minn. 1981). in its decision the

Minnesota Supreme Court focused on the panoply of

—

training programs offered by the Jaycees to its mem-

bers in order to enhance the members’ professional

prospects and on the organization's aggressive, non-

selective recruitment practices.

The Minnesota Human Rights Act, as

applied by the States highest court to the Jaycees,

readily passes muster under the criteria for evaluating

vagueness formulated by this Court. As announced in

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)

those criteria are:

First ... laws [must] give the person of ordi-

nary intelligence a reasonable opportunity

to know A 2 Sag a aes De

act accordingly. Vague laws ae trap the

innocent 7 not providing fair warning.

Second, i discrimina

enforcement 3 laws |

provide explicit standards for those who j

apply them. (Footnotes omitted) 4

By imposing a notice requirement, the 8

vagueness doctrine allows the public to distinguish

between acts that are permissible and those that are

not. Here, the Jaycees cannot claim failure to worn

As construed by the district court, the order of the

Minnesota Department of Human Rights is one of pro-

spective reach only. "The purpose of the order was to

require the Jaycees to do business in compliance with

Minnesota law, if at all.“ 534 F. Supp. at 772. Accord

709 F.2d at 1580 n.4 (Lay, C.J., dissenting). The

Jaycees has been told in precise and explicit detail how

in the future it must conduct itself in Minnesota in

order to comply with state law.

As to the second element of the vagueness

doctrine, the carefully reasoned opinion of the

Minnesota Supreme Court convincingly demonstrates

that the court has not arbitrarily brought the Jaycees

within the scope of the Minnesota Human Rights Act.

Rather the court has rendered an interpretation of the

statute consistent with the intent of the statutory

framers and within the mainstream of Minnesota civil

rights law. Given the court's detailed discussion of the

Jaycees' aggressive recruitment practices, the non-

selectivity of its membership criteria, and the organiza-

tion's business-like orientation towards its membership

and the services offered to them, the court's decision is

anything but “vague and standardless." Giaccio :

Pennsylvania, 3d 2 U.S. 399, 402 (1966).

Of course there may be lingering uncertain-

ties concerning the future application of the statute to

other groups. This court has repeatedly stated, how-

ever, that marginal imprecision does not render a

statute defective. See Coates v. City of Cincinnati, 402

U.S. 611, 613-14 (1971). "Many statutes will have some

inherent vagueness, for In most English words and

phrases there lurk uncertainties.'" Rose v. Locke, 423

U.S. 48, 49-50 (1975), citing Robinson v. United States,

324 U.S. 282, 286 (1945). See also Civil Service

Commission x. National Association of Letter Carriers,

413 U.S. 548, 578-79 (1973) ("there are limitations in the

English language with respect to being both specific and

manageably brief"), The Eighth Circuit has itself upheld

the retrospective application of a criminal statute, even

while conceding that the statute's "application to every

future situation is not clear on the face of the words."

Knutson v. Brewer, 619 F.2d 747, 750 (8th Cir. 1980).

The Eighth Circuit remarked that this infirmity was

"true of all, or at any rate of most, criminal statutes."

Id.

The application of the Minnesota Human

Rights Act does not collide with the Jaycees' exercise

of any First Amendment rights, so that the statute and

its application need not be subjected to an especially

rigorous vagueness test. See Hoffman Estates .

Flipside, Hoffman Estates, 455 U.S. 489, 499 (1982). On

the contrary, this Court has concurred in the perception

that Tun applying the rule against vagueness . . . some-

thing . . . should depend on the moral quality of the

conduct." Bouie v. City of Columbia, 378 U.S, 347, 362

n. (1964), quoting Freund, The Supreme Court and Civil

Liberties, 4 Vand. L. Rev. 533, 540 (1951). Since the

Jaycees' discrimination against women is devoid of any

positive moral content, the state statute at issue should

be construed with great deference. Moreover, because

the statute as applied threatens no First Amendment

right, the Jaycees does not have standing to raise the

possible vagueness of the statute as it might be app "ed

to other groups. See Hoffman Estates v. Flipside

Hoffman Estates, 455 U.S. at 495 n.7.

In its vagueness attack, the Eighth Circuit

has focused on a single off-handed dictum in the state

court opinion purporting to distinguish the Jaycees and

another organization that was not before the Court.

Without explanation, the Minnesota Supreme Court

stated that the Jaycees was not "analogous[] to private

organizations such as Kiwanis International Organiza-

tion.“ United States Jaycees v. McClure, 305 N.W.2d

764, 771 (Minn. 1981). On this basis alone, the Eighth

Circuit has found the application of the Minnesota

public accommodation statute to the Jaycees fatally

vague.

The answer to this challenge has been

i e ene ee "There is

cae

insufficient evidence in the record pertaining to the

activities of [the Kiwanis Organization and other]

groups to allow any determination whether the statute

would apply to them and whether the groups engage in

protected First Admendment activity. The record as to

the Jaycees is, however, well developed.“ 534 F. Supp.

at 773. The Eighth Circuit, without the benefit of a

lower court record, has erroneously attempted to draw a

profile of the Kiwanis Club and compare it with the

record developed for the Jaycees. 709 F.2d at 757-78.

A determination of whether the Kiwanis Club is in

violation of the Minnesota Human Rights Act cannot be

accomplished in this manner. As to the Jaycees,

however, the Minnesota court has given a clear and

unequivocal ruling based on a comprehensive record.

There being no vagueness infirmity in the state court's

ruling, the decision of the court of appeals should be

reversed.

a5 ee

> ae

CONCLUSION

For these reasons, the Court should reverse

the decision of the Court of Appeals.

Respectfully submitted,

Marsha Levick

Judith I. Avner

Lynn Hecht Schafran,

* Counsel of Record

NOW Legal Defense and

Education Fund

132 West 43rd Street g

N New York, New York 10036

(212) 354-1225

Charlotte M. Fischman

Scott D. Heller

Abbe L. Dienstag .

Kramer, Levin, Nessen, 5

i Kamin & Frankel

Me 919 Third Avenue

New York, New York 10022

(212) 715-9100

Attorneys for Amici Curiae*

in February 23, 1984

5 |

5 * Attorneys for the Amici gratefully =

in the rs

* preparation of this brief. |

APPENDIX

Statements of Interest

NATIONAL ORGANIZATION FOR WOMEN

("NOW") is a national membership organization of

200,000 women and men in over 750 chapters throughout

the country dedicated to assuring equal economic, social

and political opportunity for all women. Since its

founding in 1967, NOW has been the largest feminist

membership organization dedicated to combatting sex

discrimination and removing barriers to women's full

participation in all aspects of American society. The

Minnesota Chapter of NOW participated as amicus

curiae in this case before the Minnesota Supreme Court

and in the Eighth Circuit. NOW recognizes the import-

ance of equal access for women to organizations like

the U.S. Jaycees which provide leadership development

and management skills and facilitate entry into a net-

work of influential business and community leaders.

a-l

rr eee

AMERICAN JEWISH COMMITTEE ("AJC")

is a national organization of approximately 50,000

members which was founded in 1906 for the purpose of

protecting the civil and religious rights of Jews. AJC

believes this goal can best be accomplished by helping

to preserve and promote the constitutional rights of all

Americans. Specifically, AJC supports equal rights

under the law for women and is committed to the

elimination of gender-based discrimination.

CENTER FOR CONSTITUTIONAL RIGHTS

("CCR") was born of the civil rights movement in the

South. CCR attorneys have been active in many of the

struggles for equality waged by different groups in our

society. CCR attorneys have been involved in cases

dealing with employment discrimination, reproductive

rights, voting rights and fair housing. Through litigation

and public education, CCR has worked to protect and

make meaningful the constitutional and statutory rights

of women, Blacks, Puerto Ricans, Native Americans and

COALITION OF LABOR UNION WOMEN

("CLUW") is a membership organization of labor union

women who are interested in improving working

conditions and eradicating sex discrimination in all

aspects of employment and employment related

advancement. CLUW believes that organized and

unorganized women are entitled to full participation in

all facets of business and civic life.

CONNECTICUT WOMEN'S EDUCATIONAL

AND LEGAL FUND ("CWEALF") is a non-profit public

interest law firm specializing in cases of sex

discrimination. Since its inception in 1975, CWEALF

has represented women in numerous cases, including

women seeking equal access to organizations with

discriminatory mouberthle policies. CWEALF has also

been active in educating women about their legal rights.

EQUAL RIGHTS ADVOCATES, INC. is a

San Francisco based, public interest legal and educa-

tional corporation specializing in the area of sex

discrimination. It has a long history of interest,

activism and advocacy in all areas of the law which

affect equality between the sexes. Equal Rights

Advocates, Inc. has been particularly concerned with

gender equality in career development because

economic equality is fundamental to women's ability to

achieve equality in other aspects of society.

NATIONAL CONFERENCE OF BLACK

LAWYERS ("N.C.B.L.") is a membership organization of

lawyers, scholars, legal workers, law students and other

legal activitists in the United States, Canada, and the

Caribbean, which has had a long-standing commitment

to the struggle against sexism. One of its primary goals

is to promote and protect the rights of Black women and

all minorities in all spheres of their lives. N. C. B. L. 2

believes that discriminatory membership policies of i

community and business organizations hinder the

attempts of all women to achieve full equality in this

society.

NATIONAL CONFERENCE OF WOMEN'S

BAR ASSOCIATIONS is an organization of women's bar

associations located in 40 states. Membership in these

associations includes more than 70,000 women lawyers

who share a dedication to the advancement of women in

law and in the society as a whole. Equal access to

organizations such as the United States Jaycees is vital

for women's advancement in the business and

professional world; such organizations provide members

with the skills, contacts and support needed for

success. By withholding membership from women

professionals, such organizations restrict the

opportunities avallable to the members of the

NATIONAL CONFERENCE OF WOMEN'S BAR ASSO-

CIATIONS to succeed in their chosen occupation.

NATIONAL FEDERATION OF BUSINESS

AND PROFESSIONAL WOMEN'S CLUBS, INC.

("B.P.W./U.S.A.") promotes full participation, equity, .

and economic self-sufficiency for working women. 2

Founded in 1919, B. p. w. / U. S. A. represents over 150,000 51

1 Af 1

women and men in 3500 organizations, with at least one

local organization in every Congressional district in the

United States.

NORTHWEST WOMEN'S LAW CENTER

("Law Center") is a non-profit, membership-supported

organization based in Seattle, Washington, that seeks to

promote the rights of women through law. The Law

Center conducts educational and informational referral

programs to advise women in the Pacific Northwest of

their legal rights. It also sponsors litigation working

towards the total elimination of sex discrimination,

including the eradication of employment discrimination

and of social and legal barriers that deny women full

participation in the business and professionel world.

The Law Center has filed briefs amicus curiae before

this Court and before the United States Court of

Appeals for the Ninth Circuit, and has participated as

counsel and as amicus curiae before state trial and

WOMEN EMPLOYED is a Chicago-based or-

ganization with a membership of 3,000 women workers.

Over the past nine years, the organization has assisted

working women with problems of sex discrimination.

WOMEN EMPLOYED also monitors the enforcement,

actions and policies of the EEOC and Office of Federal

Contract Compliance Programs with regard to a broad

range of sex discrimination issues,

WOMEN'S ACTION ALLIANCE, NC., a

national non-profit organization, works towards full

equality for women by developing educational programs

and services that assist women and women's organiza-

tions. The issues at stake in this case are critical to

that equality which is denied whenever women are bar-

red from full participation in institutions crucial to

their development.

WOMEN'S BAR ASSOCIATION OF THE

STATE OF NEW YORK ("WBASNY") is a membership

organization of approximately 2,000 female and male

attorneys, law graduates and law students committed to

the advancement of women's rights. WBASNY coope-

rates with and aids and supports organizations and

causes which advance the status and progress of women

in society. Full access by women to decision making

positions is one of its primary goals.

WOMEN'S EQUITY ACTION LEAGUE

("WEAL") is a national non-profit membership organiza-

tion specializing in economic issues affecting women

and sponsors research, education projects, litigation and

legislative advocacy. WEAL is committed to the full

and effective enforcement of anti-discrimination laws

at both the federal and state levels, to assure that all

economic opportunities are available to women as well

WOMEN'S LAW PROJECT ("WLP") is a non-

profit feminist law firm dedicated to eliminating sex

discrimination through litigation and public education.

Since its founding in 1973, WLP has been concerned with

owe

institutional barriers to the advancement of women at

all levels of participation in society. WLP has

represented women seeking admission to all male

educational institutions and community organizations,

and strongly believes that participation in such

organizations is fundamental to the ability of women to

compete equally in business and community life.

WOMENS LEGAL DEFENSE FUND

("WLDF") is a non-profit, tax-exempt membership

organization, founded in 1971 to provide pro bono legal

assistance to women who have been discriminated

against on the basis of sex. The Fund devotes a major

portion of its resources to combatting sex discrimi-

nation in employment, through litigation of significant

employment discrimination cases, operation of an

employment discrimination counselling program, and

public education. WLDF's experience and knowledge —

gained from its members who, as professionals, are

disadvantaged by discriminatory membership policies

and from its clients who are similarly disadvantaged by

f ff .

Ps The

exclusion from community and business organizations —

have demonstrated that such exclusionary policies result

in a diminution of employment opportunities.

WOMEN U.S.A. is an organization

interested in the grass roots concerns of promoting

women's need to participate in the economic, social and

cultural life of America. It expresses its concern

wherever women are prevented from realizing their goal

of full equality. Exclusion from full participation in

organizations like the Jaycees is discrimination which

prevents women from achieving this goal.

eee

0 Le

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