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Frank v. Ivy Club

Decided: October 4, 1988.

SALLY FRANK, COMPLAINANT-RESPONDENT,
v.
IVY CLUB AND TIGER INN, RESPONDENTS-APPELLANTS. AND TRUSTEES OF PRINCETON UNIVERSITY, RESPONDENT, AND UNIVERSITY COTTAGE CLUB, DEFENDANT



On appeal from New Jersey Department of Law and Public Safety, Division of Civil Rights.

J. H. Coleman, Havey and Stern. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

[228 NJSuper Page 43] The crucial issue raised in these sex based discrimination appeals is whether the Division on Civil Rights (Division) followed the appropriate procedure before concluding that eating clubs located on Prospect Avenue, in Princeton, New Jersey, are subject to the public accommodations provision of New Jersey Law Against Discrimination (N.J.S.A. 10:5-12f). We conclude it did not. We therefore reverse in part and remand for new proceedings.

BACKGROUND

The following background is essential to an understanding of the case. Princeton University (Princeton), located in Princeton, New Jersey, is a private, nonsectarian institution of higher education, founded in 1746. Princeton admitted only male students as undergraduates until 1969. Upperclassmen social life on Princeton's campus revolve around thirteen eating clubs which Princeton depends on to feed a large percentage of its upperclass students. Ivy Club, University Cottage Club and The Tiger Inn are among the thirteen. This case involves complainant's attempt to join one of these all male eating clubs.

Between 1803 and 1843 Princeton required all of its undergraduate students to eat at the University Commons. Beginning in 1843, however, students were permitted to eat off campus. Princeton's eating facility burned down in 1856. After the fire, all of the students ate their meals in boarding houses not affiliated with Princeton until 1906-1907 when Princeton reestablished eating commons for freshman and sophomores. Beginning in the mid-1800's several groups of Princeton students formed "select associations" to provide off campus boarding and lodging. The associations were careful not to become secret societies, which were not permitted at Princeton. The Ivy Club, The University Cottage Club and The Tiger Inn were established as associations which became permanent clubs.

The clubs offer social, recreational and dining activities to Princeton undergraduates. Eight of the thirteen clubs are nonselective, choosing their members by a lottery if demand is too great to accommodate everyone. All of the nonselective clubs are coeducational. Five clubs are selective, choosing their members through a system of interviews known as "bicker." Ivy, Tiger Inn and The University Cottage Club are selective. When the litigation was commenced, these were the only remaining all male clubs. All three clubs are located off campus on Prospect Avenue in separate buildings which they own.

They were chartered between 1883 and 1892 pursuant to "an Act to Incorporate Societies or Clubs for Social, Intellectual and Recreative Purposes." L. 1878, c. CXI, p. 175. The clubs are neither owned nor operated by Princeton.

Sally Frank (Frank) enrolled as an undergraduate at Princeton in the fall of 1976. During her junior and senior years (1978-1979 respectively) she attempted to join one of the three all male clubs. Although Frank dined at the Tiger Inn and Ivy Club on a number of occasions, neither of the three all male clubs offered her membership. Frank graduated in 1980. Because the issues raised are of substantial public importance, we concluded in a prior appeal (on August 1, 1983) that despite her graduation, the issues should be resolved. See Busik v. Levine, 63 N.J. 351, 364 (1973), app. dis. 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973).

PROCEDURAL HISTORY

This case has a tortuously complex and protracted procedural history. The appellate record consists of eight volumes of transcripts consisting of 1,527 pages and over 6,000 pages of documents. Frank filed a complaint with the Division pursuant to N.J.S.A. 10:5-13 alleging unlawful discrimination based on sex by Princeton, Ivy Club, University Cottage Club and Tiger Inn contrary to N.J.S.A. 10:5-12f. In a letter dated June 7, 1979, the Division advised Frank that after reviewing her complaint the Division "has decided that the N.J. Law Against Discrimination exempts the aforesaid clubs because they are distinctly private, as provided for in N.J.S.A. 10:5-5(1). Accordingly, the Division will not process this complaint." The Division also found no probable cause to credit the allegation made against Princeton. A similar complaint against Princeton was filed with the Department of Health, Education and Welfare, The Office for Civil Rights, alleging a violation of Title IX of the Education Amendments of 1972, 20 U.S.C. ยง 1681 et seq. The Office for Civil Rights terminated its investigation in April

1980 when it concluded the "eating clubs are private social organizations whose membership practices are exempt from the requirements of Title IX." That office dismissed the complaint after finding "no violation of Title IX on the part of Princeton University against Ms. Sally Frank."

After extensive discussions, the Division eventually agreed that it would process a second complaint if filed. On November 26, 1979, Frank filed another complaint with the Division against the same parties. This complaint alleged the clubs were "public accommodations" because they functioned "as arms for Princeton University." A verified complaint was issued by the Division on December 19, 1979. On January 28, 1980, the three clubs filed answers in which they denied they were places of public accommodation affiliated with Princeton University. The clubs also asserted their members' rights to freedom of association under the First Amendment would be violated if the relief sought by Frank were granted. Similarly, Princeton filed an answer denying that it was a place of public accommodation and that it had sanctioned or committed unlawful acts of discrimination.

The Division conducted a preliminary investigation pursuant to N.J.S.A. 10:5-14 to determine whether it had jurisdiction and whether "probable cause exists for crediting the allegations of the complaint. . . ." Without conducting any type of a hearing or holding a fact-finding conference (see N.J.A.C. 13:4-2.3), the Division dismissed the second complaint on December 9, 1981. Frank was not afforded any opportunity to participate in the investigation. The Division made no findings of fact. The Division concluded "the Clubs are by their nature distinctly private and as such these responding Clubs are excluded from the jurisdiction of the Division on Civil Rights pursuant to N.J.S.A. 10:5-5(1)." The Division also found no probable cause to support the allegations against Princeton.

Frank filed a notice of appeal from the dismissal of the second complaint. On August 1, 1983 a different part of this

court issued its decision. Without reaching the merits of the issues raised by the complaint, we reversed the dismissal of the complaint on procedural grounds: the lack of findings of fact and the lack of a hearing. We concluded that a hearing and factual findings were essential requirements before determining whether the Division has jurisdiction because "a denial of jurisdiction is as significant to a complainant as would be the ultimate determination regarding discrimination." We reversed the dismissal of the complaint and remanded the case to the Division to conduct "a more formal inquiry as to the factual issues as they relate to jurisdiction of the Division," probable cause and the substantive issues presented. The Division was directed to make adequate findings of fact and conclusions of law.

Before resuming its investigation pursuant to our mandate, the Division filed a motion on August 11, 1983 for reconsideration of our decision. The purpose of the motion was to seek clarification as to the kind of hearing required by our decision. The motion was denied on September 6, 1983 without further directions.

By letter dated October 5, 1983 the Division notified the parties that a fact-finding conference would be held pursuant to N.J.A.C. 13:4-2.3 "to make a preliminary determination as to whether there are material facts in dispute. In the event that there exists genuine issues of material fact, the Division will conduct a public hearing to resolve the disputed issues."

The parties were directed to meet with the Division's Chief of the Enforcement Bureau, James Sincaglia (Sincaglia), on November 16, 1983. The parties were told to be prepared to discuss only the jurisdictional aspects of the case at the fact-finding conference. They were also advised to provide a reiteration of all documentation previously submitted to the Division and "any other materials which you deem relevant and which have not been previously submitted." Interrogatories were exchanged between the parties. On December 19, 1983

the parties were again assured that if the fact-finding conference did not resolve all of the facts, "it would then be appropriate to conduct a plenary hearing. See Cunningham v. Department of Civil Service, 69 N.J. 13, 19-24 (1975)."

On March 12 and April 3, 1984 fact-finding conferences were held by Sincaglia. Frank filed an amended verified complaint on March 12, 1984 in which she made the additional allegations that the clubs individually were public accommodations apart from any relationship with Princeton. The parties denied these new allegations.

On April 18, 1984 the parties were notified by the Division that the record would close on April 30, 1984. The parties were advised to review their files and to submit any additional documentation they desired. The Division granted the parties an extension of the deadline for submitting materials to permit additional information concerning "the number of hat bids*fn1 extended during the years that Sally Frank was at Princeton as well as the number of persons who bickered and were extended bids in recent years." By letter dated April 30, 1984, counsel for the Ivy Club submitted additional information.

On May 31, 1984, Sincaglia notified the parties of the fact-finder's Rulings and the stipulations accepted. The findings were divided into five categories: (1) stipulations proposed by the complainant and accepted by the respondents; (2) stipulations proposed by the respondents and accepted by the complainant; (3) the Division fact-finder's Ruling on the stipulations that were proposed by the complainant and not accepted by the respondents; (4) the Division fact-finder's ruling on the stipulations that were proposed by the respondents and not accepted by the complainant; and (5) stipulations that would require conclusions that would be made by the Director upon

review of the entire record which were not accepted or rejected by the Division's fact-finder.

Following the transfer of the entire record to the Director, the parties were given 45 days "to submit proposed findings of fact and conclusions of law on the entire record."

On May 14, 1985 the Director issued a Finding of Probable Cause. The Director found the Division had jurisdiction over the three eating clubs and that probable cause to believe sex discrimination existed. Three weeks after the Finding of Probable Cause was issued (June 7, 1985), Frank requested the case be transferred to the Office of Administrative Law (OAL) as a contested case. See N.J.S.A. 10:5-13 and N.J.A.C. 13:4-12.1(c) and (d). In compliance with this request, the case was transferred to the OAL on July 18, 1985 or August 20, 1985, the exact date is not made clear by the record.

The case was assigned to an Administrative Law Judge (ALJ) who scheduled a prehearing conference for September 26, 1985 to identify the issues and the nature of the proceeding. A "Prehearing Order" was issued by the ALJ on October 1, 1985. That order provided, among other things, that "Complainant is considering moving for summary judgment on the issue of discrimination and liability. If complainant does make such a motion, it is to be filed and served in accordance with the Uniform Administrative Procedures Rules (N.J.S.A. [sic] [N.J.A.C.] 1:1-1 et seq.) on or before (October 17, 1985)."

October 16, 1985, Frank filed a motion pursuant to N.J.A.C. 1:1-12.5 et seq. for partial summary decision on the issue of jurisdiction. The Ivy Club and Tiger Inn filed briefs in opposition to the motion. On December 12, 1985 the ALJ issued his Initial Decision on Partial Summary Decision. He granted the motion finding that the Director's May 14, 1985 finding that the Division had jurisdiction should be considered final. The ALJ also found there were no material facts in dispute and that the facts which the clubs alleged were disputed were found to be immaterial to the May 14, 1985 decision of the Director. On

February 16, 1986, the Director issued an Order of Partial Summary Decision on Jurisdiction which adopted the recommendations of the ALJ.

The University Cottage Club settled with Frank on February 26, 1986. As part of the settlement, women are permitted to seek membership in the club and the club paid Frank $20,000. See Tiger Inn v. Edwards, 636 F. Supp. 787, 789 n. 1 (D.N.J.1986) (in which Tiger Inn and Ivy Club sought to enjoin the Division from hearing the case). Consequently, The University Cottage Club has not participated in these appeals as the claims against it were dismissed as part of the settlement.

After the ALJ's ruling of December 12, 1985, Frank filed a Motion for Summary Decision against the clubs and Princeton on the issue of liability. The ALJ issued an Initial Decision on June 16, 1986, granting the Motion for Partial Summary Decision. He ruled that liability existed with regard to the two clubs, but not against Princeton, stating that more information was necessary to address the issue of what constituted "aiding and abetting" discrimination by Princeton.

On July 26, 1986, Frank and Princeton entered into a Stipulation and Order of Partial Settlement. Princeton continued to participate in the proceedings because of the potential involvement it would have in whatever remedies were ultimately ordered by the Division.

On July 28, 1986, the Director adopted the ALJ's Initial Decision of Partial Summary Decision on liability respecting the two clubs. The Director found the claims against Princeton were moot based on the settlement agreement between Frank and Princeton. There has been no appeal from that determination. The Order remanded the matter back to the OAL for further proceedings on remedies to be afforded Frank. Following that remand, the ALJ conducted hearings for six days between July 29 and August 6, 1986, during which sworn testimony subject to cross-examination and additional documents were admitted as evidence.

On January 29, 1987, the ALJ issued his Initial Decision on the issues of damages and remedies. In his decision, he afforded the following remedies:

(a) that Ms. Frank be awarded $2,500 in compensatory damages by the two Clubs;

(b) that Ms. Frank not be awarded membership in either club;

(c) that the two Clubs should sever certain ties to Princeton in order to attain 'distinctly private' status under N.J.S.A. 10:5-5(l);

(d) that Princeton should avoid reference to the two Clubs as being affiliated or connected with the University in all future publications.

On May 26, 1987, the Director issued the Final Administrative Decision and Order. The Initial Decision of the ALJ was adopted in part and modified in part: (a) the compensatory damages were increased to $5,000; (b) the two Clubs were ordered to admit women, but not Frank, and (c) the two Clubs were not permitted to sever ties with Princeton.

The Ivy Club filed an appeal on July 10, 1987 and was assigned Docket No. A-5304-86T5. The Tiger Inn filed its appeal on the same day and was assigned Docket No. A-6058-86T5. The Director granted a stay of her final decision directing the Clubs to admit women. The damages awarded have been paid and are held in escrow by the Division. The appeals have been consolidated.

OBJECTIVE OF LAW AGAINST DISCRIMINATION

Eradication of the "cancer of discrimination" has long been one of this State's highest priorities. Fuchilla v. Layman, 109 N.J. 319, 334 (1988), cert. denied, sub nom., University of Medicine and Dentistry of N.J. v. Fuchilla, U.S. , 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). 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, 77 N.J. 55, 80 (1978). Generally, it has been recognized that the Division has expertise "in recognizing acts of unlawful discrimination, no matter how subtle they may be." Clowes v. Terminix Intern., Inc., 109 N.J. 575, 588 (1988).

N.J.S.A. 10:5-4 declares as a civil right the opportunity of all persons to obtain and enjoy all the rights and privileges of a "public accommodation." Princeton is a public accommodation within the meaning of the Law Against Discrimination. N.J.S.A. 10:5-5(1); N.J.S.A. 10:5-12f; Dixon v. Rutgers, the State University of N.J., 110 N.J. 432, 452 (1988); Peper, supra, 77 N.J. at 67. The ban against invidious discrimination by a public accommodation relates to a facility used by or maintained for the use of the general public. Ibid.

Despite Ivy's and the Tiger Inn's contentions otherwise, there is a developing body of law holding that the Law Against Discrimination also covers private establishments which have altered their distinctly private character through close association with a public accommodation. See Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25 (1966); Hebard v. Basking Ridge Fire Company No. 1, 164 N.J. Super. 77 (App.Div.1978), app. dis. 81 N.J. 294 (1979); Nat. Org. for Women v. Little League Baseball, 127 N.J. Super. 522 (App.Div.1974), aff'd 67 N.J. 320 (1974). See also Bob Jones University v. Johnson, 396 F. Supp. 597, 602-604 (S.C.1974); Pinkney v. Mallory, 241 F. Supp. 943 (N.D.Fla.1965).

Princeton as a public accommodation for higher education performs a significant social function by promoting "the pursuit of truth, the discovery of new knowledge through scholarship and research, the teaching and general development of students, and the transmission of knowledge and learning to society at large." State v. Schmid, 84 N.J. 535, 564 (1980), app.dis. 455 U.S. 100, 102 S. Ct. 867, 70 L. Ed. 2d 855 (1982) (quoting from Princeton University Regulations passed by the Council of the Princeton University Community, May 1975, as amended 1976). Hence, it is important to eradicate sex discrimination at Princeton and private establishments associated with Princeton which have ...


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