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Frank v. Ivy Club

Decided: July 3, 1990.

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



On certification to the Superior Court, Appellate Division, whose opinion is reported at 228 N.J. Super. 40 (1988).

Concurring in result -- Justices Clifford and O'Hern. For reversal and reinstatement -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Garibaldi, J. Clifford and O'Hern, JJ., concurring in judgment.

Garibaldi

[120 NJ Page 78] This appeal concerns whether the New Jersey Division on Civil Rights (Division) followed the proper administrative procedure in concluding that it had jurisdiction under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), over the Tiger Inn and Ivy Club (Clubs), all-male eating Clubs at Princeton University. Central to the resolution of the jurisdictional issue is whether the Clubs are "places of accommodation" within the meaning of LAD, or are exempt from LAD because they are "distinctly private." The Division found that the Clubs have an integral relationship of mutual benefit with

Princeton which deprives them of private status and makes them subject to the Division's jurisdiction. Whether the Clubs are "distinctly private" or have lost claim to private status by their association with Princeton University is initially a factual issue. The Clubs assert that material facts remain in dispute on this issue and hence, they should have been afforded a plenary hearing before the Division determined that it had jurisdiction. The Division and plaintiff assert that there are no material facts in dispute relevant to the issue of jurisdiction.

The procedural record discloses that the parties had numerous hearings before the Division and the Office of Administrative Law at which time they presented their factual contentions and legal arguments. The Appellate Division also reviewed this case twice. Based on our examination of the record, we find that this procedure accorded the parties their administrative due process rights. Moreover, we conclude that there are no disputed facts that are material to the jurisdictional issue; hence, the Division properly invoked its jurisdiction. We also conclude that the Division properly found that the clubs discriminated against plaintiff on the basis of her gender and affirm the Division's remedies against the Clubs.

I

A. Procedural History Up To The Division's Finding of Probable Cause.

This case has a protracted history. Plaintiff, Sally Frank was a student in Princeton in 1979 when she commenced the action. She since has graduated from Princeton, finished Law School, and is now counsel of record in this case. The record consists of 31 volumes, comprising nearly 6,000 pages.

The saga began in February, 1979 when Frank filed a complaint with the Division against Princeton and three male-only eating clubs associated with Princeton, namely, Ivy Club, University

Cottage Club*fn1 and Tiger Inn, alleging that they had discriminated against her on the basis of her gender in violation of LAD. The Division refused to process that complaint.

In November of 1979 Frank filed another complaint, again alleging gender discrimination by the same parties. This complaint asserted that the Clubs were "public accommodations" because the Clubs functioned as "arms of Princeton. * * *" and because they were public accommodations in their own right. The Club filed answers denying that they were places of public accommodation and denying that they functioned as arms of Princeton. They claimed they were "bona fide private clubs" and therefore exempt from jurisdiction under N.J.S.A. 10:5-5 l. Princeton filed an answer denying that it was a place of public accommodation "with respect to the eating and social activities of its students." Princeton also claimed that as a factual matter, the Clubs were not part of the University.

The Civil Rights Division dismissed Frank's complaints. The Appellate Division, emphasizing that it was taking no position of the merits, vacated the Division's order because of the Division's failure to make findings of fact and to grant a hearing, and remanded the matter to the Division for further proceedings consistent with its opinion. 228 N.J. Super. 40, 548 A.2d 1142.

The Division moved for reconsideration and for a clarification of the requirements of the remand. In its motion the Division advised the court of the procedure it intended to follow on remand:

In the absence of further guidance from the Court in this case, the Division would propose initially to hold a fact-finding conference in order to determine which, if any, of the mass of facts collected by the Division are actually in dispute, and whether there are further facts which the parties wish to bring to the Division's attention. Thereafter, if there were disputed issues of material fact, it would be appropriate to hold a plenary contested case hearing to determine jurisdiction. If there are no material facts in dispute, the Division

would issue a determination of jurisdiction containing appropriate findings of fact and conclusion of law, with further proceedings to be held if the Division has jurisdiction. As previously indicated, however, the Division is of course willing to follow whatever procedures the Court mandates.

(Emphasis added).

The Appellate Division denied the Motion for Reconsideration, without any guidance as to what procedure should be followed. The Division, therefore, followed the procedure outlined in its motion.

Shortly after the Motion to Reconsider was denied, James Sincaglia, Chief of the Bureau of Enforcement for the Division, brought the parties together to begin the fact-finding process. Frank served interrogatories on the Clubs and Princeton. The University responded by making hundreds of pages of documents available for inspection and copying to all parties. Many of these documents were then submitted to the Division. The Clubs served interrogatories on Frank. The parties also exchanged lists of proposed stipulations and each side noted on the other's list those stipulations that were acceptable and those that were disputed.

The Chief held two day-long fact-finding conferences in March and April, 1984. During the conferences the Chief lead the attorneys through the lists, noting those facts to which everyone agreed to stipulate and conducting a painstaking discussion on those facts disputed by the parties. In addition, the parties introduced documents, presented unsworn testimony, cross-examined witnesses and presented both oral and written legal arguments. The Chief accepted only documents that the parties agreed were authentic.

After the two-day conference hearings, the record was kept open until April 30, 1984 to allow the parties to submit additional documents. On May 31, 1984, the parties were served with the Chief's formulation of the stipulations discussed at the Conference (Accepted Stipulations and the Chief's Rulings). In his letter the Chief stated that "your review of these rulings will demonstrate that sufficient evidence existed in the record

to issue Findings on the disputed stipulations. Therefore, no material facts remain in dispute. You will be expected to raise any objections to the stipulations and rulings not previously proffered within ten days."

The stipulations fell into three categories:

(1) Stipulations accepted as proposed;

(2) Stipulations not accepted as proposed but resolved by the Division on the basis of evidence (mostly documentary) submitted by the parties; and

(3) Stipulations neither accepted nor rejected because they required legal conclusions of the kind that would be made by the Division upon review of the entire record.

The vast majority of the stipulations were accepted as proposed. Of 39 stipulations proposed by Sally Frank, 29 were accepted. Eight fell into the second category and two fell into the third category. The Clubs submitted 191 stipulations. 180 were accepted, ten fell into the second category and one required resolution by the Division upon review of the entire record. Thus, over 200 stipulations were accepted as proposed. It is the eighteen stipulations that fell into the second category of stipulations -- those disputed by the parties but resolved by the Chief on the basis of documentary evidence, unsworn witness testimony and discussions at the Conference that give rise to the controversy underlying this appeal.

The parties filed comments and objections to the Chief's proposed rulings. The entire record was then transferred to the Director. The parties submitted briefs to the Director wherein Ivy and Cottage wrote "[n]ow after nearly 12 months of supplemental investigation, this matter is being submitted to the Director of the Division on Civil Rights for a final ruling as to whether jurisdiction exists." Tiger acknowledged that its brief was being submitted "on the sole issue raised by this proceeding: Whether the Division has jurisdiction over Tiger under the Law Against Discrimination."

The Division issued a "Finding of Probable Cause" on May 14, 1985 (the "Finding"). The Finding established that the Division had jurisdiction over the Clubs and that probable cause existed to believe that the Clubs had discriminated against women. The bulk of the document was dedicated to a discussion of jurisdiction. At the beginning of the jurisdiction portion of the Finding, "Undisputed facts" are set forth, extracted from Stipulations submitted and agreed to by the parties and from documents submitted by them. Authenticity of the documents is not in dispute.

B. Facts Derived From the Division's Finding of Probable Cause

Princeton University is a private, non-sectarian institution of higher education, founded in 1746. The University is located in Princeton, New Jersey. From 1746 to 1968, Princeton University admitted only male students as undergraduates. In 1969, the University for the first time admitted women as undergraduate degree candidates.

From approximately 1803 to 1843, Princeton University required all undergraduate students to take their meals in commons operated by the college steward. In 1843, Princeton permitted its undergraduate students to board off-campus. The Princeton college refectory burned down in 1856 and was closed for fifty years. During that time, all students took their meals in boarding houses that were not affiliated with the college. In the mid-1800's several groups of Princeton students formed "select associations" to reduce the cost of their off campus living and dining expenses. By 1876 twenty five "select associations" or eating clubs were in existence.

The club system associated with Princeton University, which began with these "select associations," presently [sic] consists of thirteen clubs, eight of which are non-selective clubs and five of which are selective clubs. Campus, Charter, Cloister Inn, Colonial, Dial Lodge, Elm, Quadrangle and Terrace are the eight non-selective clubs. These clubs, formerly all male and

selective, are now co-ed. The non-selective clubs offer social, recreational and dining activities.

Admission to the non-selective or open clubs is by a lottery system. Students who are not accepted into the "open clubs" of their choice are given the opportunity to go through subsequent lottery rounds at any "open club" that has additional available contracts to offer.

The five selective clubs are Ivy, Cottage, Tiger Inn, Cap & Gown and Tower. The selective clubs also offer social, recreation and dining activities. Tower, Cap & Gown and Cottage accept male and female members. From their inception until the present, Ivy and Tiger have only accepted male members.

Ivy was found in 1879. During its 110 years it has occupied four different clubhouses, all of which it either owned or rented independently of Princeton University. It now owns the land and clubhouse at 143 Prospect Street in Princeton and pays all of its local and state taxes, maintenance, utility and insurance costs. Ivy is incorporated in New Jersey, tax-exempt under the Internal Revenue Code and at one time had a liquor license. It is supervised by a Board of Governors. It has 3 classes of membership: honorary, graduate and undergraduate.

As of 1984, Ivy had 1,500 graduate members, 79 undergraduate members and 39 sophomores who accepted bids. Ivy's Constitution does not require that the Club's membership be restricted to men. Tiger was founded in 1890. Its history parallels that of the Ivy. Its membership rules and constitution are also similar to Ivy's.

Membership in the selective clubs is presently by invitation only. The general public is not invited to join Tiger or Ivy. Bicker is the term the five selective Clubs use for the process of interviewing and selecting new members. The sophomore class at one time administered Bicker, but ceased doing so in 1978. Since 1978, the sophomore class has not provided direct funding for the Bicker process. The process is now totally funded by the individual Clubs.

Since at least 1977, there has been a fall and spring Bicker. Spring Bicker has taken place in late January to early February. Fall Bicker is an optional activity for selective clubs and is usually restricted to seniors. Two purposes of fall Bicker are to fill section sizes to their optimal level and provide new members with an introduction to the Bicker process.

The Clubs administer fall Bicker entirely. The Committee on Bicker Administration (CBA), made up of students, presently coordinates spring Bicker. The CBA has, in the past, used University office space to coordinate its week-long Bicker effort. At one time the University assessed no rental charge, but does so now.

The Bicker process is divided into steps: (1) registration; (2) Bicker sessions; (3) bid sessions, and (4) sign-in. Since at least 1977, Bicker sessions consist of visits made by the Bickerees to each of the selective clubs, and are held every night. The primary purpose of Bicker sessions is to give Club members the opportunity to individually evaluate the Bickerees as prospective Club members.

A bid session is a meeting of the Club members to decide which Bickerees will be invited to join a selective eating Club. A bid is an invitation to join one of the selective Clubs. There is not a set number of bids that each Club is required to offer, and the process whereby Bickerees are extended invitations to join varies from Club to Club. Since at least 1977, after each Bicker session, members of Tiger Inn and Ivy have submitted written comments to their Bicker chairman about each Bickeree with whom they had significant contact. These confidential comments are read at bid sessions.

Undergraduate members of Ivy are elected by consensus at a meeting of a majority of its current membership. Tiger Inn requires unanimous agreement of its undergraduate members for a sophomore to be admitted. Cap & Gown, Cottage and Tower require a 2/3 majority vote of their memberships for a sophomore to be admitted. In 1984, 114 sophomores completed

Bicker at Ivy: 40 received bids and 19 accepted their bids. At Cottage Club, 107 sophomores completed Bicker: 72 received bids and 69 accepted. At Tiger Inn, 112 sophomores completed Bicker: 91 received bids and 70 accepted. Cap & Gown had 114 sophomores who completed Bicker: 85 received bids and 70 bids were accepted. At Tower, 106 sophomores completed Bicker: 71 received bids and 69 bids were accepted.

The Clubs require their undergraduate members to pay an initiation fee together with a yearly fee for board and social activities. All fees are paid by the student directly to the clubs. These fees are not part of Princeton University's undergraduate tuition. Membership dues and contributions to Ivy and Tiger are not tax deductible as contributions to educational institutions. Respondent Clubs provide food for consumption on their premises by contract with club members, the club agreeing to provide specific meals to their members for specific sums. All the Clubs charge members who bring a guest to dinner for the guest's meal unless the guest holds a University dining contract, and both the club member and the guest uses the Meal Exchange Program.

Respondent Clubs at times have paid for and placed announcements in The Daily Princetonian which advertise Bicker, open-house-events and parties. The Clubs are rented out from time to time to club members or their relatives for private non-club functions which are attended by non-members. Employees of the Clubs are not employees of Princeton University. Employees of the clubs are not covered by University-provided benefits such as health insurance, pension plans or Social Security contributions.

The Clubs use zip code 08540. Zip code 08544 is only used by Princeton University. Respondent clubs do not have campus mail delivery, nor can they use Princeton University's non-profit mailing permit.

Princeton University requires all freshman and sophomore students to have University dining contracts. Princeton University

juniors and seniors generally dine in one of the following ways (figures are for 1983-84): DS (dining service) contracts (191); club membership (1570); living off-campus (98); living in Spelman Hall, apartment-style with kitchens (156); living at 2 Dickinson Street and participating in the co-op there (20); and living in other upperclass residential halls and eating in an undetermined manner (194).

Adlai Stevenson Hall is a University-operated facility consisting of two buildings at 83 and 91 Prospect Street. It was originally founded in 1970 after the University purchased the facilities of Court and Key & Seal Clubs, both now defunct. Any junior or senior may hold a meal contract at Stevenson Hall. In addition, a limited number of juniors and seniors may hold a meal contract at each of the residential colleges. Some of these are "Resident Advisors," appointed to counsel freshmen and sophomores. Others are selected through a "college lottery" system, under which a small number of upperclassmen are allowed to continue to reside in the residential college where they resided as underclassmen.

The Club system has consistently been the most popular eating option available to upperclass students. In school year 1983-84, 1570 out of 2230 of Princeton's juniors and seniors took meals at one of the eating clubs.

Three meal-exchange programs exist between the University food services and Respondent Clubs. The general Meal Exchange Program allows students to dine with their friends at other facilities at no additional cost. The Program is administered, and all costs are jointly shared, by the Inter-club Council and the University's Department of Food Services. The general Meal Exchange Program works as follows: if a Club member invites a Princeton student having a University dining contract to a meal at his club as his guest, and the guest reciprocates and invites the club member to dinner at a University dining facility within one calendar month, neither party will be charged for the guest's meal. If no reciprocal meal is exchanged

within one month, the sponsor will be charged for the guest's meal by his Club or the University.

The Upperclass Choice Meal Exchange provides sophomore class members with the opportunity to eat in facilities they may select for their junior year without the expenditure of additional funds. The meal exchange operates during the fall from the first Monday of November through the first Thursday in December. The precise dates are established by the Upper Class Choice Committee and the University Department of Food Services. The program is for dinner meals, typically Monday through Thursday. The Department of Food Services reimburses the individual clubs per dinner meal for contract-holders who participate in the program.

The Sophomore Club Meal Participation Program allows sophomores who are new members to dine at a club during the spring semester of their sophomore year. The University reimburses the Club a percentage of the University food costs for the meal. At Ivy, the sophomore member is charged the difference between the University's reimbursement and the club's charge for the meal.

University proctors are not responsible for the security at Tiger Inn or Ivy and do not regularly patrol the Clubs' grounds or premises. Princeton University students involved in off-campus altercations are subject to discipline by the University. Princeton University has no authority to discipline a graduate member of Tiger or Ivy for objectionable conduct by that graduate member on the club's premises. Tiger and Ivy discipline their own members for disturbances connected with the clubs regardless of whether any action was taken by public or University authorities.

From at least 1977, Tiger and Ivy have not been listed as officially recognized student organizations by the Dean of Students of Princeton University. Princeton University does not presently provide any assistance to Tiger or Ivy in their fundraising efforts. However, the Princeton University Alumni

Records and Mailing Services ("ARMS") makes certain services available to University alumni, including supplying updated mailing lists and processing mailings. There is a single ratesheet for all such services, applicable to the eating clubs and to other ...


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