Opposition Brief — Tiger Inn v. Frank

)

No. 90-575

IN THE oe

Supreme Court of the United States

OCTOBER TERM, 1990

oa

TIGER INN,

Petitioner,

—vV -

SALLY FRANK,

Respondent.

BRIEF IN OPPOSITION TO ISSUANCE OF

THE WRIT OF CERTIORARI

SALLY FRANK, Pro Se

Drake Law School

Legal Clinic

2400 University Avenue

Des Moines, lowa 50311

(515) 271-3851

Counsel of Record

NADINE TAUB

Women’s Rights Litigation

Clinic

Rutgers Law School

15 Washington Street

Newark, New Jersey 07102

(201) 648-5637

(on behalf of the AMERICAN

CIVIL LIBERTIES UNION

OF NEW JERSEY)

i

QUESTION PRESENTED

May New Jersey constitutionally apply its Law Against

Discrimination to an 1800 member eating club that has an

integral relationship of mutual benefit with Princeton

University, a public accommodation?

11

LIST OF PARTIES

The parties to the proceedings below were the

petitioner, the Tiger Inn, The Ivy Club, The University

Cottage Club, the Trustees of Princeton University, Sally

Frank, and the New Jersey Division of Civil Rights. The

University Cottage Club settled the case with Ms. Frank and

did not participate in the proceedings before the New Jersey

Supreme Court. All other parties listed above participated in

the New Jersey Supreme Court hearings.

Respondent, Sally Frank, is an individual and

therefore has no parent companies, subsidiaries, or affiliates

to list pursuant to Rule 28.1.

- 231i =

TABLE OF CONTENTS

PAGE

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REASONS FOR DENYING THE WRIT ...........cceeeeeees 10

I. THE NEW JERSEY SUPREME COURT

DECISION APPLYING ITS STATE

LAW AGAINST DISCRIMINATION

TO REMEDY TIGER INN’S CLEAR

SEX DISCRIMINATION CONFORMED

TO THE SETTLED LAW OF THIS

El cea datanetivahenhchansowensosoneviastseoes 10

A. Tiger Fails to Meet the

Criteria for Protection

Clearly Set Forth by this

i aicllaies cidddneminiiphionsenpansnacrsenconsiens 12

B. |The Only Unique Consideration

Operative in this Case Is

The Symbiotic Relationship

Between Tiger Inn and

Princeton University,

» iy «

Which Is a Special Factor

Further Undercutting Tiger’s

Claim of Intimate

I satadacsthinihaoentncanenitthcitcenitivensconeninee 15

C. Even If Tiger Inn Did

Have a Right to Intimate

Association, the State’s

Compelling Interest in

Ending Discrimination Allows

Be Oy TE IIE I iscssscccncctenscicnsecensnces, 17

IT. CONTRARY TO THE ARGUMENTS

OF PETITIONER AND AMICUS,

THIS CASE DOES NOT INVOLVE

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a aa TG Nic ductors stile naanniecasnavonenigheahiinnactinhoivenibaphinatinedinenanis 23

- VYeq-=

TABLE OF AUTHORITIES

CASES:

Adams v. Miami Police Benevolent Ass’n,

454 F. 2d 1315 (Sth Cir. 1972),

cert. denied, 409 U.S. 843

gees 2 Nena

Bd. of Directors of Rotary Int’l

v. Rotary Club, 481 U.S. 537

|, SARL inate Pe

Broadrick v. Oklahoma, 413 U.S. 601

fb SRS eee

Carey v. Population Services Int’l,

1 US, CRON oc.

Dixon v. Rutgers, The State University,

110 N.J. 432, 451 (1988) ....................

Frank v. Ivy Club, 120 N.J. 73

LEAS Sr RO ee

Franklin v. Order of United Commercial

Travellers, 590 F. Supp. 225

(ee _; GNC e eene e-

Fuchilla v. Layman,

109 N.J. 319, 334 (1988),

cert. denied, 488 U.S. 826

I rt A

Hebard v. Basking Ridge Volunteer

POPPE ROCCO COCOOCOOOO OOOO O

Pee meee eee eeeeeeneeeeee

10,11,12,13,14,18

-vi-

Fire Co., 104 N.J. Super. 77

(App. Div. 1978), cert. denied,

OE Fa. Fer eet aetacnniatcnapieveinscnenijesastaninenicinns 17

Moore v. City of East Cleveland,

BE Re eis arietnahaitnctnkescncenistnnstancresintininaninnt 1]

New_York State Club Ass’n v. City

of New York, 108 S. Ct. 2225

LR CIS es a - 10,12,14,18,21

| Peper v. Princeton University Board

| of Trustees, 77 N.J. 55

FIP W IED kceistatsncsaipiionsiatienisiotanstenmepaneenthenssaushbehuteenasnnupbebines 17,18

Pierce v. Society of Sisters,

I baie cnchcceenceniscenitctsassnnsonivrnanannrvvinnine 11

Roberts v. United States Jaycees,

468 U.S. 609

f REPUTE ‘suteisesensieadccninotaibeinnaiarpeetbhasnidiavie: tt 10,11,12,14,15,18

Zablocki v. Redhail, 434 U.S. 374

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STATUTES:

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20 U.S.C. Sectiem BBC) ..crccreresesnresnscnsasssnsaaneavisnsensensereisoases 20

- vii -

Ie ra a ceeebictaelanaaiias Y

OTHER AUTHORITIES:

Discrimination on Campus: A Critical

Examination of Single Sex College

Social Organizations, 75 Cal. L.

a aed ccc cnepeehndeseceenmnntinenimersensesons 19

Fraternities and Sororities on the

Contemnorary College Campus,

Winston, Nettles, & Opper, Jr.,

editors, Jossey Bass, Inc.,

OTE ssiseksenciuibibicaetbishsadastlbiiealolesnibutiainnontsasiancedeaitemdttnetaeninhioohi 22

No. 90-575

EF ES EEE AEE OEE EEA OEE

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

TIGER INN,

Petitioner

SALLY FRANK,

Respondent

CEE EEE EE EEE EAE EEE

BRIEF IN OPPOSITION TO ISSUANCE OF THE

WRIT OF CERTIORARI

eee

STATEMENT OF THE FACTS

Princeton University ("Princeton" or "the University")

is a nonsectarian, residential institution of higher education

founded in 1746 and located in Princeton, New Jersey. (Stip.

#1 & 2, Ja 3157).! It was an all-male university until 1969

|. “Stuip" refers to the parties’ stipulations as to undistiputed facts entered

nthe record. “Ja " refers to the Joint Appendix submitted to the New

lersev Appellate Division, which contained, inter alia, the stipulations

2

(Stip. #24, Ja 3159), when it admitted women as

undergraduates. (Stip. #3, Ja 3157).

In 1856, the University’s dining hall burnt down. It

was not replaced for many years. Students were then faced

with finding alternative arrangements, which could not be

fraternities because fraternities had been banned at

approximately the same time. (Ja 1396, 1397, 1449). In 1879,

a group of students joined together to form the Ivy Club

("Ivy") as a permanent eating and social facility for Princeton

students. (Stip. #9, Ja 3157). The University Cottage Club

("Cottage") was the second to form in 1886 (Stip. #10, Ja

3157) and the Petitioner, Tiger Inn ("Tiger"), was third,

forming in 1890. (Stip. #11, Ja 3158). Princeton took care

that these organizations were not fraternities. Indeed, the

clubs were seen as an "antidote to fraternities.” (Ja 2076).

By 1979, when Ms. Frank instituted this action,

Princeton had thirteen eating clubs. Five of the clubs were

selective, choosing their new members through an interview

process known as "bicker." Three of those clubs, the subjects

of Ms. Frank’s complaints, were all-male as well as selective.

(Stip. #1, Ja 3160)... The other eight were coed and

nonselective, choosing their new members through a lottery

system. (Stip. #28, Ja 3160).

The sophomore class at Princeton prepares, prints and

pays for an annual booklet that discusses student eating

options for the junior and senior years. The clubs assist the

sophomore class in compiling the pamphlet, which, in 1984,

was called Princeton’s Guide to Academic and Social Life.

3

(Stip. #27, Ja 3160). This pamphlet serves to begin the

selection process for all of the clubs. Each year students are

organized for the selection process at the selective clubs,

known as "bicker," by a committee chaired by a sophomore.”

(Stip. #64, Ja 3164). The clubs work together to coordinate

their selection procedures, with the nonselective clubs

coordinating their sign-in procedures and the selective clubs

coordinating bicker. (Stip. #64 & #75, Ja 3164). Spring

bicker is held at the same time for all of the clubs, and

registration for spring bicker is held at one place. (Stip. #72

& #73, Ja 3165).

Tiger is a large club consisting of over 1800 members.

(Cert. Pet., p.3) This year, approximately 125 of those

members were undergraduates. (Cert. Pet., p.3) According to

iger’s constitution, new undergraduate members are chosen

by the undergraduate members "from the Senior, Junior, and

Sophomore classes of Princeton University only, in

accordance with the rules established by the University

authorities." (Tiger Constitution, Ja 563). The other

classifications for membership are graduate, associate, and

honorary members (Stip. #189, Ja 4177). Upon graduation or

leaving Princeton, undergraduate members automatically

become graduate members. (Ja 563). In 1972, there were

only six honorary members and fifteen associate members.

(Ja 5597)

’

2. In 1979, the degree of support for bicker from the University

administration has varied. See Frank v. Ivy Club, 120 NJ. 73, 84-85 (1990).

When Ms. Frank first bickered, students registered for bicker by completing

one form, available in the Dean of Students Office, and depositing the form in

that office. (Stip. #31, Ja 3152).

4

While Tiger requires a unanimous vote by a given

year’s undergraduate members to accept new undergraduate

members (Stip. #90, Ja 3167), most applicants are, in fact,

offered membership. In 1984, for example, 81.25 percent of

the applicants for undergraduate membership in Tiger Inn

received offers of membership, "bids." (Stip. #96, Ja 3167).

All non-undergraduate members are elected to club

membership by a three-fourth vote of the appropriate

segment of the club. (Ja 563) Through 1983, Tiger

participated in the "hat bid” system, a system under which the

selective clubs guaranteed that any man who sought

membership in all of the selective clubs and who kept every

bicker appointment, but who did not receive an offer to join

any club, would be guaranteed membership in one of the

selective clubs. (Stip. #24, Ja 3151; Stip. #99, Ja 3168) In

1980, the club assignment for a hat bid was determined by a

roll of the dice. (Ja 4831)

Tiger delegates the selection of new members to a

small portion of its membership. Tiger advertises its fall

bicker in the school paper. (Ja 1478, 1481, 1484). Club

minutes repeatedly reflect Tiger’s concern for obtaining a

membership size that will help pay its bills. (Ja 5613, 5647). If

bicker is successful, the undergraduate class size (number of

admittees) is large. (Ja 5613, 5647) b

The eating clubs constitute the primary dining option

for upperclass students at Princeton. During the 1983-84

school year, 1570 out of 2230 juniors and seniors (more than

70%) had meal contracts with one of the thirteen eating clubs.

-

-

(Stip. #50, Ja 3163) Princeton’s dining halls, as currently

constituted, do not have the capacity to feed these 1570 extra

students during meal hours. In fact, the University plans on

the majority of its upperclass students eating in eating clubs.

(Stip. #29, Ja 3152) Thus, as the New Jersey Division on Civil

Rights found in a conclusion upheld by the New Jersey

Supreme Court, Princeton relies on the eating clubs to feed a

majority of its upperclass students. See Frank, supra, 120 N_J.

at 91. Tiger is part of that system. It provides daily meal

service to its members while school is in session.

Nonmembers, including women, also eat regularly at the club.

(Ja 3019-21, 3030)

The eating elubs, which hold parties regularly, also

serve as centers for upperclass student social life. At times,

these parties are advertised as open generally to the entire

Princeton University community or to all sophomores. (Ja

1480, 2813, 2819). At other times, although passes are

nominally required for admission to a party, the passes are

available on request. (Ja 2821). Moreover, women are

frequently admitted to parties at Tiger without having been

given a pass. (Ja 1717-1719). Wives of graduate members

frequent the club. (Ja 5692). Non-members also visit Tiger

when it is rented for weddings or other affairs. (Ja 5602, 5614,

5626, 5664, 5672, 5674). The clubs do not, however, serve a

major residential function for the University. In fact, very few

members live at Tiger, or any of the other clubs. Thus, Tiger

characterizes itself as a "social and dining facility,” not a

dormitory. (Ja 5028).

- Throughout the clubs’ history, Princeton has subjected

6

them to substantial regulation. Princeton has disciplined club

members for activity in the clubs and at times has even

disciplined officers for the activities of members of the club,

holding the officers vicariously liable.2 This regulation is

accepted by Tiger Inn in its house rules, which state, inter alia:

6. No member of the freshman class nor first

term sophomores shall be admitted to the

Clubhouse, unless so authorized by University

authorities ....

11. Undergraduate members are not allowed

to consume alcoholic beverages in the

clubhouse unless special permission has been

secured by the Undergraduate President from

the office of the Dean and the Board of

Governors of the Club. (Ja 565) ’

Tiger’s relationship with the University has remained

close through the almost twelve years this lawsuit has been

pending. Although Tiger recently claimed to sever a few of its

superficial ties with Princeton, as recently as the fall of 1989, a

section of a university class met regularly at Tiger Inn. (Aff.

of Jennifer Weiner in Support of Motion of Princeton

Undergraduates for Coeducated Eating Clubs to File an

Amicus Brief in the New Jersey Supreme Court at para. 5).

Moreover, Tiger continues to maintain a close relationship

with the other clubs.

3. On one of those occasions, those disciplined were officers of a club that

was once a party to these proceedings. (Stip. #22, Ja 3151)

7

In short, the uncontested facts, as stipulated to by the

parties and as explicitly found by the New Jersey Supreme

Court, show that Tiger and Princeton "have an integral

relationship of mutual benefit." Frank, supra, 120 N.J. at 110.

The conclusion of Tiger Inn’s own official history underscores

Tiger’s close relationship with Princeton:

Through all these first fifty years one thing,

above all others, had remained typical of Tiger

Inn -- the loyalty of undergraduates and alumni

alike. No one who had kept in close touch with

the Club could doubt this loyalty. And all

Tiger Inn men could be proud of the fact that

affection for the Club had been secondary to a

love of Princeton without which loyalty to

Tiger Inn would be meaningless. (Ja 543).

PROCEDURAI. HISTORY

Respondent, Sally Frank, enrolled in Princeton as a

first-year student in September, 1976. She was graduated with

an A.B. degree in 1980. (Stip. #103, Ja 3168) During her

sophomore, junior, and senior years, Ms. Frank attempted to

join each of Princeton’s all-male eating clubs. After being

denied membership in Ivy and denied the opportunity even to

bicker at Tiger and Cottage during her junior year because of

her sex (Stip. #’s 106 & 107, Ja 3168), Ms. Frank filed

discrimination complaints against Princeton and each of the

three all-male clubs in February, 1979.

The New Jersey Division on Civil Rights ("Division")

8

initially refused to process these complaints. When Ms. Frank

was once again denied membership and the opportunity to

bicker during her senior year, she refiled the complaints. This

time, the Division issued the verified complaints in December,

1979. In December, 1981, after a cursory investigation, the

Division dismissed the complaints, and Ms. Frank appealed.

The New Jersey Appellate Division reversed and remanded

the case for further investigation and fact finding in August,

1983.

The Division then conducted a thorough investigation

of her complaints, holding two day-long fact finding

conferences at which it heard testimony from a witness for

each party and accepted over 200 stipulations agreed upon by

the parties. It also accepted thousands of pages of documents

from each party. Following the investigation, on May 14,

1985, the Director of the Division ("Director") issued a

Finding of Probable Cause and found that the Division had

jurisdiction over the complaints.

The case was then transferred to the New Jersey

Office of Administrative Law ("OAL") for hearings. The

Director granted Ms. Frank’s motions for partial summary

decision on jurisdiction and on liability based on the

uncontested facts in the stipulations and documents in the

record. Ms. Frank settled her claims against Cottage after it

agreed to admit women in February, 19&0. In July, 1986, Ms.

Frank settled almost all of her claims against Princeton,

which, however, remained a party to the case. A formal six-

day hearing on remedy took place in the OAL in July and

August, 1986.

9

Following the hearing, the Administrative Law Judge

("ALJ") recommended to the Director that Ivy and Tiger be

ordered to sever their ties with Princeton rather than

requiring them to admit women; that Ms. Frank be paid

damages for the harassment she suffered as a student

challenging the clubs’ discriminatory practices; and that she

not be awarded membership in the clubs. Ms. Frank and

Princeton filed exceptions to these recommendations with the

Director. In May 1987, the Director ordered Tiger and Ivy to

admit women as members and doubled the damages they

were required to pay to Ms. Frank, but declined to order them

to offer membership to Ms. Frank.

Tiger and Ivy appealed the order of the Director. In

October, 1988, the New Jersey Appellate Division reversed

and remanded on the procedural ground that summary

decision was improper and that a hearing should have been

heid on all issues. Ms. Frank then sought state Supreme

Court review of the decision. Finding that there were no

material facts in dispute requiring hearings on jurisdiction or

liability and that the Director’s remedial order was

appropriate, the New Jersey Supreme Court reversed the

Appellate Division and reinstated the Director’s order on July

3, 1990. The instant Petition for certiorari followed.4

4. Ivy Club chose not to request certiorari. Instead, it pursued a 42

U.S.C. Section 1983 suit against the state and Ms. Frank, claiming its rights

are being violated. When the federal District Court Judge refused to enjoin

the state from enforcing the New Jersey Supreme Court ruling, Ivy admitted

women.

10

REASONS FO G WRIT

I. THE NEW JERSEY SUPREME COURT

DECISION APPLYING ITS STATE LAW

AGAINST DISCRIMINATION TO

REMEDY TIGER INN’S CLEAR SEX

DISCRIMINATION CONFORMED TO

THE SETTLED LAW OF THIS COURT.

In asking for review of the New Jersey Supreme

Court’s decision that blatant sex discrimination by Princeton

University eating clubs violates the state’s Law Against

Discrimination, Tiger Inn points neither to any novel question

of law nor to any conflict between the circuits. Nor could it.

Instead, it attempts to invoke clear principles of law set forth

in three recent cases, all upholding state anti-discrimination

laws against challenges based on freedom of association and

all issued without dissent by this Court since 1984. Moreover,

in its attempt to come within the purview of Roberts v. US.

Jaycees, 468 U.S. 609 (1984); Bd. of Directors of Rotary Int’!

v. Rotary Club, 481 U.S. 537 (1987); and New York State Club

Ass’n v. City of New York, 108 S. Ct. 2225 (1988), Tiger

ignores both the facts and the reasoning of these decisions.

Disregarding these clear and consistent holdings,

Tiger’s Petition for Certiorari would have this Court accord to

the club First Amendment protection as an intimate

association for its consistent practice of discriminating against

women.> Tiger is, however, unable to show it is the type of

intimate association the Constitution was designed to protect.

5. Tiger makes no pretense of a claim to expressive association.

ll

Tiger Inn neither furthers the purpose this Court has

identified for protecting intimate associations, nor does it

satisfy the criteria that this Court repeatedly set forth for

identifying such associations. As the cases make clear, the

purpose of protecting intimate associations is to ensure that

individuals are able to enter into and maintain the special sort

of ties that are essential to emotional enrichment and

definition of one’s identity. Jaycees, supra, at 619; Rotary

Club, supra, at 544. Though the Court has not marked the

precise boundaries of the type of private or intimate

association it accords constitutional protection, it has pointed

repeatedly to family-like relationships as the prototype

intimate association. Jaycees, supra, at 619-620; Rotary Club,

supra, at 545.6 Thus this Court has "emphasized the First

Amendment protected those relationships, including family

relationships that presuppose ’deep attachments and

commitments to the necessarily few individuals with whom

one shares not only a special community of thoughts,

experiences and beliefs but also distinctly personal aspects of

one’s life.” Rotary Club, supra, at 545, quoting Jaycees,

supra, at 619-620.

The Court has set forth a list of those factors to assist

in identifying those special relationships meriting

constitutional protection. Such intimate associations "are

6. For example, Justice Powell pointed out in Rotary Club that the "the

intimate relationships to which we have accorded constitutional protection

include marriage, Zablocki v. Redhail, 434 U.S. 374 (1978); the begetting and

bearing of children, Carey v. Population Services Int’l, 431 U.S. 678 (1977);

childrearing and education, Pierce v. Society of Sisters, 268 U.S. 510 (1925),

and cohabitation with relatives, Moore v. East Cleveland, 431 U.S. 494 (1977)

(parallel citations omitted.supra, 481 U.S. at 545.

a

‘29

distinguished by such attributes as relative smallness, a high

degree of selectivity in decisions to begin and maintain the

affiliation, and seciusion from others in critical aspects of the

relationship," Jaycees, supra, at 620. Further, even if an

organization is sufficiently small, selective, seclusive and

otherwise private as to merit protection as an intimate

association, it still may be subjected to state legislation if

necessary to serve a compelling state interest. Moreover, New

Jersey’s public accommodations law, like those before the

Court in Jaycees, Rotary Club, and New York State Club

Ass’n., "plainly serv(e) compelling state interests of the

highest order." Jaycees, supra, at 624, quoted in Rotary Club,

supra, at 549,

A. Tiger Fails to Meet the Criteria for Protection

Clearly Set Forth by this Court.

In its 1984 Jaycees opinion, explicitly reaffirmed in

Rotary and New York State Club Ass’n, this Court clearly

outlined the criteria for invoking the right of intimate

association. Like the clubs involved in those cases, Tiger Inn

fails to show it is the sort of small, selective and secluded

organization that merits constitutional protection.

Size. As it itself concedes, Tiger has over 1800

members. Thus Tiger’s membership is almost ten times the

size this Court considered too large for constitutional

protection in Rotary Club, supra, 481 U.S. at 546, and far

bigger than the 400 or so member chapters that the Court

found too big in Jaycees, supra, 468 U.S. at 621. Similarly, the

New York City law upheld in New York State Club Ass’n,

13

supra, 108 S. Ct. at 2233, regulated New York City clubs with

400 or more members.

Indeed, given Tiger’s size, it is highly unlikely that all

of Tiger’s 1800 members have even met one another, much

less developed close personal relationships, particularly in

cases where there may be as much as 70 years between their

admissions. Tiger Inn attempts to avoid the clear holdings of

these three cases by seeking to distinguish active

undergraduate and inactive graduate members. There is, of

course, no basis for disregarding Tiger’s approximately 1675

alumni members. Moreover, in asserting that the

undergraduate body -- whose membership changes annually --

amounts to an intimate association, Tiger simply ignores the

fact that its 125-man membership is more than six times that

found not to merit constitutional protection in Rotary Club,

supra, 482 U.S. at 546.

Selectivity. There are at least three reasons why the

process by which Tiger’s members are chosen does not

demonstrate the necessary selectivity for constitutional

protection. First, most applicants are admitted to Tiger. For

example, in 1984, 81.25 percent of the applicants were offered

membership. Tiger’s concern to maintain a certain

undergraduate membership size to break even for its meal

service may well explain this lack of selectivity. Second, Tiger

delegates membership selection to a small and changing

segment of the club. Under this delegation, the vast majority

of Tiger’s members never meet, let alone choose to form

personal ties with the new members. Third, Tiger’s

participation in the "hat-bid" system until 1983, by which it

14

agreed to accept any person assigned to the club literally by a

roll of the dice, demonstrates a willingness to share

membership with any Princeton male. In sum, Tiger

admissions have little to do with the sort of intimate

associations and personal relationships the Constitution

shields from government interference.

Seclusivity. The third specific criterion set forth by

this Court, seclusivity, refers to the degree to which

association activities are limited to group members. Critical

to the Court’s decisions in the Jaycees, Rotary Club and New

York State Club Ass’n cases was the important role that

strangers play in all three types of clubs. Thus the Court

pointed to the fact that, "rather than carrying on their

activities in an atmosphere of privacy, [the clubs] seek to keep

their windows and doors open to the whole world,” Rotary

Club, supra, at 547. Indeed, it is the presence of strangers

that distinguishes the public from the private, for, as this

Court said in New York Club Ass’n, "[i]t may well be that a

considerable amount of private or intimate association occurs

in [a club] setting, as is also true in many restaurants and

other places of public accommodation, but that fact alone

does not afford the entity as a whole any constitutional

immunity to practice discrimination when the Government

has barred it from doing so." supra, 108 S. Ct. at 2233-2234.

The provision of dining and social life are the essence

of Tiger Inn’s functions. As a result of undergraduates

continuously bringing guests to meals, alumni returning with

their families, parties being advertised as open to the whole

community or through invitations available to anyone seeking

15

them, nonmembers are a central part of these critical

functions. Further, the club is rented out to members or their

relatives for non-club functions which are obviously attended

by numerous nonmembers. Moreover, Tiger claims no

interest in excluding women. Indeed, the members of Tiger

affirmatively choose to associate with women when

participating in club functions. The nonmembers who visit the

club are frequently women. Women may be present at every

meal and at all parties. Tiger merely wishes to keep those

women in an inferior, nonmember status. The desired and

consistent;presence of strangers means that Tiger cannot

claim constitutional protection for such preferences.

In short, Tiger Inn is not a small, selective, and

secluded association requiring First Amendment protection.

There is no question that members of Tiger do not share the

sort cf intimacy which, if not protected, would deny any

fundamental liberty to its members. For Tiger simply cannot

meet the criteria clearly set forth by this Court in its three

recent cases, and it has shown no reason for their

reevaluation.

. ihe oa li

| be Oak Caque Consideration Wecatiee a this :

ee I Pri University. Which Is a

Special Factor Further Undercutting Tiger's

aim of Inti $

As the Jaycees decision made «lear, in addition to the

three criteria analyzed above, special factors may be pertinent

in particular cases. Jaycees, supra, 468 U.S. at 620.

16

Both the New Jersey Supreme Court and the Division

on Civil Rights specifically found, on the basis of undisputed

facts, that Tiger and Princeton "have an integral relationship

of mutual benefit." Frank, supra, 120 N.J. at 92, 110. The

Division and Court findings were based on substantia!

evidence and turned on their close understanding of the role

of the club system at Princeton University. Reviewing the

facts carefully, the Division gave little weight to Tiger’s

present financial and legal independence from the University.

Frank, supra. 120 N.J. at 103. Far more relevant to both

bodies were the facts that Tiger holds itself out as part of a

club system which serves Princeton students; that Tiger draws

its membership almost exclusively from Princeton students;

and that Princeton relies on the club system to feed a majority

of the upperclass students. Id. Thus, in the New Jersey

Supreme Court’s words, "[t]he finding of an integral and

symbiotic relationship is based on the undisputed factual

conclusions that the Clubs [Tiger and Ivy] need the University

and the University needs the Clubs, rather than on any

particular act of control or integration." Frank, supra, 120

N.J. at 104.

Having sought unsuccessfully to divert attention from

the real workings of the club system and Tiger’s role in it in

the New Jersey agency and court, Tiger seeks once again to

focus attention on "the assiduously maintained legal

senarateness of the club." Frank,supra, 120 N.J. at 103. In

doing so, however, it would have this Court simply ignore

these clear findings and retry the matter de novo.

17

Tiger’s attempt to dispose of the findings below

underscores the significance of the special considerations at

play in this case. Princeton is unquestionably a public

accommodation. Peper v. Princeton University Board of

Trustees, 77 N.J. 55, 67 (1978). As the New Jersey Supreme

Court stated, "[w]here a place of public accommodation and

an organization that deems itself private share a symbiotic

relationship, particularly where the allegedly ’private’ entity

supplies an essential service which is not provided by the

public accommodation, the servicing entity loses its private

character.” Frank, supra, 120 N.J. at 104, citing Hebard v.

Basking Ridge Volunteer Fire Co., 104 N.J. Super. 77 (App.

Div. 1978), cert. denied, 81 N.J. 294 (1979); Franklin v. Order

of United Commercial Travellers, 590 F. Supp. 225 (D. Mass.

1984); Adams v. Miami Police Benevolent Ass’n, 454 F.2d

1315 (Sth Cir. 1972) cert. denied, 409 U.S. 843 (1972).

Given the reality of the integral connection between

Tiger and the University, providing shelter to Tiger’s

discriminatory practice has little to do with fostering the type

of close personal ties that underlie the protection accorded

intimate associations. As the unique relationship between

Tiger and Princeton makes crystal clear, neither First nor

Fourteenth Amendment rights are in jeopardy here.

C. Even If Tiger Inn Did Have a Right to Intimate

Association, the State’s Compelling Interest in

Ending Discrimination Allows It To Limit that

Right

Although Tiger Inn clearly has no claim of intimate

18

association, even if it did, that right would not be absolute. As

the Jaycees, Rotary Club and New York State Club Ass’n

cases make plain, the government may abridge or interfere

with that First Amendment associational right when the

government is pursuing a compelling state interest that cannot

be achieved by means less restrictive of the freedom of

association. Jaycees, supra, 468 U.S.at 623; Rotary Club,

supra, 481 U.S.at 549; New York State Club Ass’n, supra, 108

S. Ct. at 2233-2234. Moreover, this Court has made crystal

clear that the interest in preventing discrimination based on

sex, the very claim in the case at bar, meets the compelling

interest test. For New Jersey, in particulai, "the eradication of

the ’cancer of discrimination’ has long been one of [the]

state's highest priorities." Dixon v. Rutgers, The State

University, 110 N.J. 432, 451 (1988), quoting from Fuchilla v.

Layman, 109 N.J. 319, 334 (1988), cert. denied, 109 S. Ct. 75

(1988).7

The State surely has a compelling interest in freeing

its citizens from the penalties of sex discrimination.

Discrimination based on sex "is peculiarly repugnant in a

society which prides itself on judging each individual by his or

her merits." Peper v. Princeton University Board of Trustees,

supra, 77 N.J. at 80 (1978). Moreover, it is clear that the

order herein uses the least restrictive means to accomplish

7. NJ.S.A. 10:5-3 states that "The Legislature finds and declares that

practices of discrimination against any of its inhabitants because of ... sex ...

are a matter of concern to the government of the State and that such

discrimination threatens not only the rights and proper privileges of the

inhabitants of the State but menaces the institutions and foundations of a

democratic State.

19

that compelling interest, for Tiger is still able to choose which

women to admit. No individual woman, not even Ms. Frank,

is forced on Tiger by the order. Thus, even assuming Tiger

could legitimately assert a claim to protection as an intimate

association, any such claim is outweighed by the State’s need

to eradicate discrimination and the narrowly tailored means

its highest court approved for doing so.

II. CONTRARY TO THE ARGUMENTS

OF PETITIONER AND AMICUS, THIS

CASE DOES NOT INVOLVE FRATERNI-

TIES.

Petitioner and amicus have urged this Court to grant

certiorari on the assertion that the single sex status of all

fraternities in the country have been placed in jeopardy by the

decision below, despite the fact that there is no evidence or

basis for believing that fraternities throughout the nation are

even threatened by the ruling now before the Court.

In many states there would be no question that

fraternities would not be subject to attack under their public

accommodations laws. Ten states lack public

accommodations laws and six of the states and the federal

government that prohibit discrimination in public

accommodations do not bar sex discrimination. See

Discrimination on Campus: A Critical Examination of Single-

Sex College Social Organizations, 75 Cal. L. Rev. 2117, 2125

(1987). The New Jersey Law Against Discrimination, N.J.S.A.

10:5-1 et seq., is one of the broadest anti-discrimination laws

20

in the country. Its exemption for only "distinctly private" clubs

is narrower than other private club exemptions. Thus

fraternities are not vulnerable nationally.

There is not even evidence that fraternities in New

Jersey would be found to be barred from discriminating.

Princeton’s eating clubs have a unique history and status at

Princeton. If a fraternity case came before it, the New Jersey

Supreme Court might well limit its ruling to the facts of the

instant case and find that fraternities are distinctly private

clubs.

Petitioner and amicus also fail to show that if

fraternities as single sex institutions are as valued as the

petitioner and amicus imply, New Jersey’s legislators will not

act to shield their discriminatory practices in the same way

that the federal government has shielded them from its law

barring sex discrimination in educational institutions receiving

federal funds. 20 U.S.C. Sec. 1681(a). Thus, the New Jersey

legislature as a representative body,like any legislature, is

perfectly capable of exempting from its anti-discrimination

laws groups that it finds valuable.

Moreover, Tiger’s argument ignores the fact that Tiger

Inn is not a fraternity. Princeton in fact banned fraternities in

1856 and expelled students for having joined fraternities. The

eating clubs were seen as an "antidote to fraternities", and

Princeton has not recognized any fraternity on campus since.

Thus, the argument appears to be that this Court should grant

certiorari because, even if Tiger is not a fraternity and could

constitutionally be required to admit women, some

21

fraternities on some other campuses might deserve

constitutional protection and might be attacked in the future.

In other words, they suggest that the ruling in this single case

would apply to fraternities throughout the country.

This Court rejected such an overbreadth argument in

New York State Club Association, 487 U.S. supra at 14. In

that case, the Court endorsed the decision in Broadrick v.

Oklahoma, 413 U.S. 601, 615-16 (1973), that said “whatever

overbreadth may exist should be cured through case-by-case

analysis of the fact situations to which its sanctions, assertedly,

may not be applied." The New Jersey Supreme Court

decision carefully analyzed the facts surrounding Tiger Inn to

determine :f the state anti-discrimination law should apply. It

also upheld the Division’s analysis of Tiger which helped it

determine that Tiger had no claim to freedom of intimate

association. There is, however, no evidence in the record on

the workings of any specific fraternity to help this Court

determine whether a fraternity could be constitutionally

required to admit women. Therefore, this Court should not

grant certiorari on this case based on the speculation that

fraternities could be affected.

Indeed, the record and facts clearly show that Tiger is

not a fraternity. Unlike fraternities on most college

campuses, Tiger does not have a large percentage of its

student members living in its building. Thus, unlike most

fraternities, Tiger does not function as a dormitory. If Tiger

were primarily a dormitory, it might have been exempt from

the New Jersey Law Against Discrimination, which exempts

single sex housing from its reach. N.J.S.A. 10:5-12(g).

22

Essential to the New Jersey Supreme Court conclusion

that Tiger is a public accommodation was its finding that

Tiger and the other clubs would not exist were it not for

Princeton University:

It woula be disingenuous for the Clubs to assert that

they could ever exist apart from Princeton University. The

Clubs gather their membership from Princeton and, in turn,

provide the service of feeding Princeton students. Frank,

supra, 120 N.J. at 104.

Such a finding could not be made about most

fraternities and sororities. Generally national organizations,

fraternities and sororities exist at numerous universities but

do not gather their membership from any one university.®

Thus, most such organizations could easily exist apart from

any one university.

Given these and other significant differences between

fraternities and Tiger Inn, this case is not an appropriate

vehicle to determine whether fraternities and sororities

should have a right to discriminate. Each case will have

widely varying facts, and those facts will shape the outcome of

those cases. While a Court might correctly find that one

particular fraternity has a right to discriminate based on the

facts involving that fraternity, the same Court might correctly

find another fraternity must stop discriminating. This Court

8. For a discussion of the benefits to national affiliation that most

fraternities have, see Fraternities and Sororities on the Contemporary College

Campus, Winston, Nettles, & Opper, Jr., editors, Jossey Bass, Inc., 1987, pages

30-31.

23

should allow the states leeway in applying their individual laws

to different factual situations. In short, there is no reason for

this Court to step in at this time.

CONCLUSION

For the foregoing reasons, respondent, Sally Frank,

respectfully requests that this Court not issue the Writ of

Certiorari.

Respectfully submitted,

Sally Frank, pro se

Drake Law School Legal Clinic

2400 University Avenue

Des Moines, Iowa 50311

(S15) 271-3851

Counsel of Record

Nadine Taub

Women’s Rights Litigation Clinic

Rutgers Law School

1S Washington Street

Newark, New Jersey 07102

(201) 648-5637

(on behalf of the American

Civil Liberties Union of New Jersey)