Amicus Curiae Brief — Tiger Inn v. Frank

Supreme Court, U.S

? FILED

No. 90-575 1 | 5 190

| JO oH ©. SPANIOL, JR.

IN THE CLERK

—————

—

—_———

Ocroser TERM, 1990

TIGER INN,

Petitioner,

eas

SALLY FRANK,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

BRIEF OF AMICUS CURIAE NATIONAL INTER-

FRATERNITY CONFERENCE IN SUPPORT OF

THE PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

Grecory F. HAusER

90 Park Avenue, 15th Floor

New York, New York 10016

(212) 210-9400

Counsel of Record

Of Counsel:

Ropert D. Lynp

Rosert L. MARCHMAN, III

James C. HARVEY

TABLE OF CONTENTS

TABLE OF BUCO Ee 6 eect cctcecce....

INTEREST OF AMICUS CURIAE NATIONAL

INTERFRATERNITY CONFERENCE........

SUMMARY OF ARGUMENT..................

ARGUMENT

POINT I

il

The Decision of the Supreme Court of New

Jersey Conflicts with Federal Law as Applied

in Prior Decisions of This Court and Lower

PPR og Sel yuo ge ck SU bo ou Gs 6 00 8 le oe

POINT II

The Legal Uncertainty Created by the Decision

Below Urgently Needs to Be Addressed........

UES Goce Gots a sc oe ee aes

TABLE OF AUTHORITIES

Cases Pages

Adams v. Miami Police Benevolent Assoc., 454

F.2d 1315 (5th Cir.), cert. denied, 409 U.S.

es Ge fick a hie eile dy 6 bs ¥ ev > #0 0° 5

Board of Directors v. Rotary Club, 481 U.S. 537

are NG Sub ik 6 d's Sw bce Ped bee 3, 6

Boreugh of Glassboro v. Vallorosi, 117 N.J. 421,

I on cn cv ck vccvbescences 6

Frank v. Ivy Club, 120 N.J. 73, 576 A.2d 24]

A EEEESE Sgn ra fr Sg 4,7

Frank v. Ivy Club, 228 N.J. Super. 40, 548 A.2d

1142 (Super. Ct. App. Div. 1989) ............ 4

Franklin v. Order of United Commercial

Travelers, 590 F. Supp. 255 (D. Mass. 1984)... ~ 5

Healy v. James, 408 U.S. 169 (1972)............ 2.3, 5.8

NAACP vw. Alabama ex rel. Patterson, 357 U.S.

Se Roce ea oo ya's vos 3

New York Club Assoc. v. City of New York, 487

U.S. 1 88) AS es eg de ne ate 4

ce 5

Nc ee a 3

Schkolnick v. Fly Club, No. 87-BPA-0097 (Mass.

Comm. Against Discrimination, March 24,

SY Se ree ao 7

iv

State v. Schmid, 84 N.J. 535, 423 A.2d 615,

appeal dismissed, 455 U.S. 100 (1982) ........

United States v. Beach Assoc., 286 F. Supp. 801

Ag OLN eS weal ake

United States v. Medical Soc., 298 F. Supp. 145

EE ie coe els ta et phic eee cera vos

Widmar v. Vincent, 454 U.S. 263 | ee

Books and Articles

Baird’s Manual of American College Fraternities

CR ig oe Ces Lakh acu eai as.

Comment, Discrimination on Campus: A Critical

Examination of Single-Sex College Social

Organizations, 75 Calif. L. Rev. 2117 (1987) ..

Harmon, Single Sex Status of Fraternities,

Fraternal Law, January 1985................

Harvey, Fraternities and the Constitution:

University-Imposed Relationship Statements

May Violate Student Associational Rights, 17

Sg re PE ee ewe hak as A asaee eas ee

Jones, The Future of Single Sex Fraternitics,

Fraternal Law, January 1988................

Linder, Freedom of Association After Roberts v.

United States Jaycees, 82 Mich. L. Rev. 1878

RE a i ToS Rg er

Manley, Fraternal Selectivity v. Jaycees

Commerciality, Fraternal Law, September

BEE RSP ti ra Ter a os Rec a

Pages

2, 3, 4

Pages

National Interfraternity Conference, Annual

Re ee nee ae ee ]

Note, Alcohol and Hazing Risks in College

Fraternities, 7 Rev. of Lit. 19] (1988) ........ 3

Note, Freedom of Association: The Attack on

Single-Sex College Social Organizations, 4 Yale

Sov Es I Oe bok c cea be hueeds 3

No. 90-575

IN THE

Supreme Court of the United States

OcTosBeERr ‘TERM, 1990

TIGER INN,

Petitioner,

Yo

SALLY FRANK,

Respondent.

BRIEF OF AMICUS CURIAE NATIONAL INTER-

FRATERNITY CONFERENCE IN SUPPORT OF

THE PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

INTEREST OF AMICUS CURIAE

NATIONAL INTERFRATERNITY CONFERENCE

The National Interfraternity Conference (“NIC”) was founded

in 1909 as an organization for national and international men’s

college social fraternities. It is presently composed of 59 such

fraternities with approximately 5600 chapters and colonies at

nearly 900 colleges and universities; those chapters and colonies

have approximately 400,000 active student members and nearly

four and one-half million alumni. NIC, Annual Report 1989.

The vast majority of the student members belong to chapters

and colonies at campuses in the United States (fewer than 100

of the chapters and colonies are in Canada).

aia caantitiiaees

Of the approximately 5600 student groups, all but 32 are af-

filiated with the 58 NIC member fraternities that restrict their

membership to men. A significant number of the groups have

similar or even closer relationships with their “host” institutions

than the eating clubs’ relationship with Princeton University that

is the factual basis for the judgment and opinion of the Supreme

Court of New Jersey in this case. See, e.g., Baird's Manual of

American College Fraternities 10-11, 23, 45-244 (19th ed. 1977);

Comment, Discrimination on Campus: A Critical Examination

of Single-Sex College Social Organizations, 75 Calif. L. Rev.

2117, 2137-39 (1987). Furthermore, that judgment and opinion,

in prohibiting the eating clubs from restricting their member-

ship to men, applied an anti-discrimination statute similar in

relevant respects to statutes in a majority of the states. See, e.g.,

Comment, Discrimination on Campus, supra, at 2124-26. Thus,

the decision provides a precedent that threatens the member-

ship practices of thousands of the student chapters and colonies

of the NIC member fraternities, to which hundreds of thousands

of members of those fraternities belong.

SUMMARY OF ARGUMENT

College student organizations such as Princeton's eating clubs

and the nation’s fraternities and sororities are entitled to the pro-

tection of the federally guaranteed right of private association.

The decision by the Supreme Court of New Jersey in this case

refused to recognize that entitlement. Its conclusion that the

eating clubs’ relationship with Princeton University precludes

them from being a private association is both unsupported by

the federal cases cited to support that conclusion and conflicts

with the implications of this Court’s decision in Healy v. James,

408 U.S. 169 (1972).

The decision below and the potential cost of fighting its ex-

tension to thousands of similar college student groups across the

country present a grave threat to the right of private associa-

tion at the nation’s colleges and universities.

ARGUMENT

POINT I

The Decision of the Supreme Court of New Jersey

Conflicts With Federal Law As Applied in Prior

Decisions of This Court And Lower Federal Courts.

This Court’s decision in NAACP v. Alabama ex rel. Patter-

son, 357 U.S. 449 (1958), and its legion of progeny have estab-

lished that the Bill of Rights of the United States Constitution

guarantees and protects the right to freedom of association. This

right extends to college students in their campus organizations.

Healy v. James, 408 U.S. 169 (1972).

More recently, this Court has defined the freedom of associa-

tion to include a right of private association, which protects

groups that are congenial, relatively small, selective in their

membership practices, and secluded from non-members in

critical aspects of the association. See Board of Directors v.

Rotary Club, 481 U.S. 537, 546 (1987); Roberts v. United States

Jaycees, 468 U.S. 609, 620 (1984).

College social organizations such as the Princeton eating clubs

and the nation’s fraternities and sororities 2ze paradignixs of such

groups, matching well each of these cziteria, as commentators

have nearly unanimously concluded. See Harvey, Fraternities

and the Constitution: University-Imposed Relationship

Statements May Violate Student Associational Rights, 17

J.C.U.L. ll, 23-26 (1990); Jones, The Future of Single Sex Frater-

nities, Fraternal Law, January 1988, at 1, 3-4; Harmon, Single

Sex Status of Fraternities, Fraternal Law, January 1985, at 1,

2-3; Linder, Freedom of Association After Roberts v. United

States Jaycees, 82 Mich. L. Rev. 1878, 1886 (1984); Manley,

Fraternal Selectivity v. Jaycees Commerciality, Fraternal Law,

September 1984, at 1-3; Note, Alcohol and Hazing Risks in Col-

lege Fraternities, 7 Rev. of Lit. 191, 1$3 n.6 (1988); Note, Freedom

of Association: The Attack on Single-Sex College Social

Organizations, 4 Yale L. & Pol’y Rev. 426, 433-44 (1986). But

see Comrinent, Discrimination on Campus, supra, at 2142-47.

EE

Although Petitioner Tiger Inn urged this same conclusion

below, the Supreme Court of New Jersey did not address the

applicability vel non of the right of private association. In-

escapably implicit in its holding, however, is either (a) that the

legislative policy of the State of New Jersey embodied in the anti-

discrimination statute at issue is superior to that right, or (b)

that the eating clubs cannot for some other reason invoke the

right of private association.

The failure by the court below to provide an explicit justifica-

tion for its conclusion is at best a subtle affront to the Supremacy

Clause and the Bill of Rights. It certainly does not evidence the

heightened scrutiny that governmental encroachment on associa-

tional rights requires. See New York Club Assoc. v. City of New

York, 487 U.S. 1, 15-16 (1989). In fact, given the decisions of this

Court on the nature of the right of private association and its

close match with the nature of the eating clubs, the decision

below is a violation of that right.

The decision of the court below advanced as its legal under-

pinning a line of federal and New Jersey cases purportedly

holding that a symbiotic and integral relationship between a

private association and a place of public accommodation destroys

the private nature of the association. See Frank v. Ivy Club, 120

N.J. 73, 104, 576 A.2d 241, 257 (1990); see also id., 228 N.J. Super.

40, 52, 548 A.2d 1142, 1148 (Super. Ct. App. Div. 1988). Com-

mentary has advanced this same argument. See Comment,

supra, Discrimination on Campus, at 2137 n. 127.

The federal cases relied upon to maintain this argument,

however, all concerned situations in which one of two impor-

tant policy considerations played a critical role. Neither of these

considerations is present in the case at bar.

The federal cases each involved either: (a) discrimination by

a private commercial establishment that was physically a part

of a place of public accommodation; or (b) discrimination by

a private association of public employees that was closely

associated with their public employer. See Adams v. Miami

Police Benevolent Assoc., 454 F.2d 1315 (5th Cir.), cert. denied,

409 U.S. 843 (1972); Franklin v. Order of United Commercial

Travelers, 590 F. Supp. 255 (D. Mass. 1984); United States v.

Medical Soc., 298 F. Supp. 145 (D.S.C. 1969); United States v.

Beach Assoc., 286 F. Supp. 801 (D. Md. 1968); Pinkney v. Meloy,

241 F. Supp. 943 (N.D. Fla. 1965). In the first group of cases,

the overtly commercial nature of the activity in question both

implicated the governmental interest in regulating commerce

and failed to implicate any private associational rights. In the

second, the activity in question clearly implicated the right to

equal access to direct economic benefits from the state, an in-

terest wholly absent in the present case. Without either of these

critical considerations, there is no basis to apply the holdings

of these decisions as precedent, much less to invoke them to over-

rule the constitutionally guaranteed right to freedom of

association.

There is an additional problem with the New Jersey Supreme

Court’s conclusion that the relationship of the eating clubs with

Princeton University determined that they were not private

associations. The right to freedom of association of the members

of a college student organization generally entitles the organiza-

tion to recognition by the students’ college. See Healy v. James,

408 U.S. 169 (1972)! It would be ironic indeed if a group of

students could seek the institutional relationship to which

freedom of association entitles them only at the risk of destroy-

ing any further right to invoke that freedom. As a result, there

must be a corollary principle that this relationship cannot itself

confer a public character on a private association. Cf. Widmar

v. Vincent, 454 U.S. 263, 271 n.10 (1981) (university recogni-

tion does not amount to official endorsement of ideas of stu-

dent organization). Otherwise, the right of private association

could effectively have no existence at a college or university cam-

pus. See Healy v. James, 408 U.S. at 176, 181-82.

' Healy dealt solely with the issue of a public university. In New Jersey, however,

private universities are subject to state constitutional restrictions that federal

law applies to public universities. See State v. Schmid, 84 N.J. 535, 553-69,

423 A.2d 615, 625-35, appeal dismissed, 455 U.S. 100 (1982).

In Borough of Glassboro v. Vallorosi, 117 N.J. 421, 568 A.2d

888 (1990), the New Jersey Supreme Court held that a group

of unrelated college students living together and sharing meals

was the “functional equivalent” of a family and protected from

governmental interference in the form of zoning. It is precisely

the family and family style relationships that are the focus of

the right of private association. Board of Directors v. Rotary

Club, 481 U.S.537, 545, 547 n.6 (1987). There are differences

between the group of students in Vallorosi and the eating clubs

at Princeton, for example, few of the eating club members at

Princeton actually live together (as distinguished from many

fraternities and sororities). The Vallorosi decision nonetheless

highlights that the same court’s decision in Frank v. Ivy Club

inadequately considered the nature of the eating clubs, the rela-

tionships among their members, and the associational rights they

deserve.

POINT II

The Legal Uncertainty Created by the Decision

Below Urgently Needs to Be Addressed.

There are two reported cases on whether a relatively small,

selective, social organization of college students is a private

association entitled to restrict its membership on the basis of

gender. These two decisions reached opposite conclusions. Com-

pare Schkolnick v. Fly Club, No. 87-BPA-0097 (Mass. Comm.

Against Discrimination, March 24, 1990) (Harvard final club

was not a place of public accommodation) with Frank v. Ivy

Club, 120 N.J. 73, 576 A.2d 241 (1990). There wiil doubtless

be further challenges to such membership practices, spurred

especially by the latter decision.

There are thousands of such organizations across this coun-

try, as noted supra and in the petition (at 14). They are virtual-

ly all non-profit organizations with limited resources. They can-

not afford to litigate their constitutional rights on a case by case

basis. Attacks on their membership practices under state anti-

discrimination statutes could destroy these organizations simply

from the cost of defending their members’ right of private

association. Even the threat of such litigation is a cost that would

not only chill their exercise of that right but could freeze it out

entirely. The case at bar provides an efficient and early means

to forestall any such nationwide struggle.

It is one thing for a state's constitution to entitle its citizens

to broader rights than guaranteed by federal law. It is quite

another for a state law effectively to vitiate a right guaranteed

by the United States Constitution. The injustice is only com-

pounded when such a result is visited upon students who are

sorely limited in their ability to fight for the rights. The best

possible lesson for the nation’s college and university students

would be that federal law stands by their side against the un-

constitutional application of state statutes.

CONCLUSION

For the foregoing reasons, the NIC respectfully urges that this

Court issue a writ of certiorari to review the decision of the

Supreme Court of New Jersey.

Dated: October 31, 1990

Respectfully Submitted,

a

Avenue, 15th Floor

New York, New York 10016

(212) 210-9400

Counsel of Record for Amicus Curiae

National Interfraternity Conference

Of Counsel

Rosert D. Lynp

RosBert L. MARCHMAN, III

James C. Harvey