Hack, et al. v. The President and Fellows of Yale College, et al.
United States District Court for the District of Connecticut
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
ELISHA D. HACK, JEREMY A. HERSHMAN, BATSHEVA GREER, and LISA B. FRIEDMAN,
THE PRESIDENT AND FELLOWS OF YALE COLLEGE d/b/a/ YALE CORPORATION and YALE
UNIVERSITY, RICHARD H. BRODHEAD, and BETTY TRACHTENBERG,
No. 3:97CV02212 (AVC)
PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
The defendants ("Yale") have a rule that they purport to apply inflexibly:
Yale requires all college freshmen and sophomores to reside in Yale's
co-educational dormitories. The plaintiffs, however, cannot reside in
these dormitories because to do so would conflict with their religious
convictions and obligations.
The plaintiffs contend -- and believe they can prove at trial -- that Yale's
refusal to exempt them from its purportedly across-the-board residence rule
is illegal because the rule is discriminatorily enforced against students
who have religious objections to co-educational housing. Yale admits that
it excuses everyone who is over 21 years of age from the rule, as well as
anyone who is married -- whether or not the student resides off-campus
with his or her spouse. And until very recently, any Yale student whose
immediate family lived in New Haven was also exempted. Indeed, Yale
appears willing to excuse any student who pays for a dormitory room from
the requirement that the student actually live in the room -- thereby
putting the lie to the assertion that residence in the dormitory is "important
to its educational philosophy." Defendants' Memorandum in Support of Motion
to Dismiss, p. 2 (hereinafter "Yale Memo").
Discovery will demonstrate, we believe, that there have been -- and continue
to be -- other exemptions granted by Yale for a variety of reasons other than
religious objection. Yale's arbitrary policy, under which religion-based
exemption requests are denied while secular objections are respected and often
accommodated, amounts to unlawful discrimination against religion and violates
the plaintiffs' constitutional rights, which are protected by 42 U.S.C. §
1983. Yale, however, fails to address or defend, in its Motion to Dismiss, this
discrimination against religion. Instead, Yale contends that it is legally
free to discriminate at will against students who have religious objections
to co-educational housing because, Yale claims, it is a "private college."
This argument, if sustained, would enable Yale to exclude all students of the
Jewish faith from Yale College simply because they are Jewish. The very same
constitutional rationale that today purportedly entitles Yale to require
Orthodox Jewish students to reside in co-educational dormitories in violation
of their religious convictions could, in theory, be applied tomorrow to justify
a numerus clausus on Jewish admissions to Yale or a prohibition on the practice
of Catholicism or Islam on the Yale campus. Assume, for example, that Yale
had a residence rule excluding students of the Jewish faith from the most
desirable suites in its dormitories. Or imagine that Yale segregated all
Catholic students in one dormitory. The same reasoning that Yale embraces
in its Motion to Dismiss could be used to justify the legality of those rules.
Our contention is that, notwithstanding its claim to be a "private college,"
Yale could not legally enforce a residence rule that so patently discriminated
on the basis of religion. By the same token, it may not now enforce a rule
that discriminates, both in its practical effect and in its exemptions, against
We acknowledge that the United States Constitution does not apply to
discrimination on the basis of religion by schools that are truly private.
But the same Constitution does forbid an institution like Yale -- a perpetual
fixture of Connecticut's educational landscape that is enshrined in Connecticut's
Constitution; a school with a long history of close interrelation and entanglement
with, and financing by, the governments of the State of Connecticut, the City of
New Haven, and the United States; and an institution that is governed by a board
on which the Governor and Lieutenant Governor of Connecticut sit ex officio -- to
engage in religious discrimination or to invoke and administer rules that deny to
religious observers the same freedom and latitude given to non-observers. In
short, this is not a case that challenges the housing policies of all private
universities or that seeks to forge new constitutional principles affecting
non-public entities. Rather, five claims in the plaintiffs' Amended Complaint
rest on the legal proposition that Yale -- uniquely and distinctively -- has
sufficient earmarks of a governmental institution so that, for the specific
purpose of protecting the plaintiffs' constitutional rights that are violated
by Yale's housing policy, Yale must be treated as a state actor.
The plaintiffs do not, as Yale suggests, reject "toleration." Yale Memo, p. 15.
Indeed, these four students welcome the opportunity to live and learn with
students from diverse backgrounds and traditions. That is why they applied to
Yale, are still attending its classes, and are participating in its extra-curricular
activities. But this openness to diversity does not mean that they can or should
surrender their own religious principles.
The plaintiffs do object to Yale's intolerant, illiberal, and dismissive attitude
toward their religious obligations. Yale's response to the plaintiffs' requests
for accommodation makes it clear that Yale neither appreciates nor understands the
nature of religious obligation and that it regards religion as no more than a
hobby -- an idiosyncratic preference or taste. Yale's own Professor Stephen Carter
severely criticized this attitude in The Culture of Disbelief (1993). Because of
this dismissive attitude, Yale persists in demanding that its current educational
and residential philosophy -- which mirrors trends in popular culture and
morality -- should override conscientious convictions based on beliefs and laws
that are over three thousand years old.
We also note that Yale is trying, before the case even begins, to choke off the
discovery that is needed to develop more fully the factual basis for the
plaintiffs' "state-action" allegations. We will respond separately to Yale's
Motion to Stay Discovery. But it should be clear to the Court that the
plaintiffs would be denied the due process granted and guaranteed by the Federal
Rules of Civil Procedure if they were barred at the very inception of this
litigation from obtaining information that is exclusively within Yale's control
and that will demonstrate not only the discriminatory nature of Yale's housing
policy but also the substantial interrelationship and interdependence between
Yale and the government of the State of Connecticut.
THE PLAINTIFFS SHOULD BE PERMITTED TO PROVE THAT YALE IS SUBJECT TO CONSTITUTIONAL LIMITATIONS AS A "STATE ACTOR"
The plaintiffs allege that Yale is subject to the constitutional limitations
of the First and Fourteenth Amendments regarding free exercise of religion because,
in the words used by the Supreme Court in Lebron v. National Railroad Passenger
Corp., 513 U.S. 374, 383 (1995), Yale is a "nominally a private corporation"
that "must be regarded as a Government entity for First Amendment purposes."
The plaintiffs' Amended Complaint sets out, in detail, some of the historical
basis for this assertion, and the plaintiffs are "entitled to offer evidence
to support [their] claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
A. Dismissal at this Early Stage Is Improper.
Yale forgets that the Supreme Court warned in Scheuer that "[t]he issue
on a motion to dismiss] is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the claims."
Ibid. The Court added that even if, at this early stage, "recovery is
very remote and unlikely," a plaintiff is entitled to proceed. Ibid.
"[D]ismissal is warranted only if, under any set of facts that the plaintiff
can prove consistent with the allegations, it is clear that no relief can be
granted." Kramer v. Pollock-Krasner Foundation, 890 F. Supp. 250, 254
(S.D.N.Y. 1995) (citing Hishon v. King & Spaulding, 467 U.S. 69, 73
(1984); Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir.
These principles are particularly applicable in a case such as this one, where
the plaintiffs' claims are necessarily factbound and context-sensitive. Our
allegation that Yale's housing policy is not in fact "generally applicable" within
the meaning of Employment Division v. Smith, 494 U.S. 872 (1990), and
our claim that Yale's housing policy is "state action" under § 1983,
will require careful analysis of the particular facts of this case. These claims
should not be dismissed before the plaintiffs have had an opportunity to engage
in the discovery to which they are entitled and to introduce supporting evidence.
In Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996), for example, the
court determined that the University of Nebraska's refusal to exempt an evangelical
Christian student from the University's rule requiring freshmen to live in
co-educational dormitories violated the Free Exercise Clause. Discovery and
a bench trial had revealed that exemptions were often granted for non-religious
reasons. 924 F. Supp. at 1543 & n. 2, 1546-49. Such proof was not available
to Douglas Rader at the time he filed his complaint, yet it proved crucial to
the court's decision.
B. "State Action" Depends on Multiple Factors.
There is no "unitary test" for determining whether an institution that calls
itself private is a "state actor" for constitutional purposes. Rather, the
"facts of each case determine the test." Imperiale v. Hahnemann University,
776 F. Supp. 189, 195 (E.D. Pa. 1991). "The Supreme Court demands that that each
case stand solely on its facts . . . . The cases on state action suggest principles
not rules." Guillory v. Administrators of Tulane Univ.,
212 F. Supp. 674, 683 (E.D. La. 1962). There will rarely be a "bright line"
separating conduct governed by the Bill of Rights from conduct that is not.
As the Supreme Court observed in Moose Lodge v. Irvis, 407 U.S. 163, 172
(1972), "[T]he question of whether particular discriminatory conduct is private,
on the one hand, or amounts to 'State action,' on the other hand, frequently
admits of no easy answer."
C. Yale Will Be Shown To Be a "Government Entity" Under Lebron.
The plaintiffs' initial "state action" theory is that Yale will, after discovery
and a presentation of evidence, be shown to be a "Government entity" under
Lebron, supra. The Lebron case concerned Amtrak, which
was created explicitly as a "for profit corporation" to assume services previously
provided by private railroads to the traveling public. 513 U.S. at 385. Amtrak
was incorporated as a private business under the District of Columbia Business
Corporation Act. Ibid. Its authorizing federal statute explicitly declared
that Amtrak "will not be an agency or establishment of the United States Government."
513 U.S. at 391 (quoting 84 Stat. 1330).
The Supreme Court - with only one Justice dissenting - held that Amtrak is "an
agency or instrumentality of the United States for the purpose of individual
rights guaranteed against the Government by the Constitution." 513 U.S. at 394.
The Court rested that conclusion on an analysis of the reasons for Amtrak's creation,
the objectives it was designed to further, and the President's role in appointing
directors of the corporation. 513 U.S. at 394-400. These same factors result
in a determination that Yale, as well, is "an agency or instrumentality" of government
"for the purpose of individual rights guaranteed" by the United States Constitution.
(1) Creation of Yale - Not only was Yale created by official organs
of Connecticut government, but it has been given permanent status by its enshrinement
in the Connecticut Constitution. The Supreme Court emphasized that "Amtrak was
created by a special statute, explicitly for the furtherance of federal governmental
goals." 513 U.S. at 397. Can there be any doubt that if Amtrak had been explicitly
named in the United States Constitution and its existence thereby insured for
the entire life of the Republic, that fact alone would have made it "an agency
or instrumentality of the United States"? Indeed, we know of no entity specifically
named and granted permanent existence by the Constitution of the United States
that is not an "agency or instrumentality of the United States."
(2) Objectives of Yale - Whereas Amtrak was created by federal
statute to take over functions that had previously been carried out by private
railroad companies, Yale was created to provide a public service that was thought,
at the time, to be a governmental duty - providing an education at the college
level. Those who drafted the 1701 Act for Liberty to Erect a Collegiate School
were clear about their public purpose in seeking a school "wherein Youth may
be instructed in the Arts & Sciences who [through] the blessing of Almighty
God may be fitted for Publick employment . . .." See Amended Complaint ¶
18. And that public governmental function served by Yale has been perpetuated
by its explicit designation in the Connecticut Constitution and the great degree
of financial and other assistance that Connecticut and the City of New Haven -
as well as the federal government - have provided to Yale. The inclusion, at
a later date, of the University of Connecticut in the Connecticut Constitution
as another educational institution supports the conclusion that both Yale
and the University of Connecticut are equal partners in furthering the public
objective of providing quality education at the college and graduate level.
(3) Yale's governmental directors - By statute, the Governor and
Lieutenant Governor of Yale are ex officio members of Yale's governing
board. Amended Complaint ¶¶ 39, 45. If the President and
Vice-President of the United States had been designated by statute to sit on
Amtrak's board, would there have been any doubt whatever that it was a "governmental
The fact that, in addition to the Secretary of Transportation, the President
appoints five members of the Amtrak board - whom he does not control after the
initial appointment and whom he cannot remove from office - provides less
governmental control than does continuing membership on Yale's governing board
by the State's Chief Executive Officer and his deputy. Nor are the Presidential
appointees on the Amtrak board selected from the public at large. The statute
specifies a limited group of individuals - only one of whom occupies any governmental
position - who may qualify. And as to two of the Presidential appointees, they
must be chosen "from a list of names submitted by various commuter rail authorities";
two others must be selected from individuals recommended by labor unions and
railway-business interests. 513 U.S. at 385. The relevant Amtrak statutes therefore
give the federal government less control over that entity than might appear at
(4) The Lebron "formula" - Yale asks this Court to extract from
Lebron's fact-intensive inquiry a "three-pronged" formula that would limit
Lebron's reasoning to the particular facts of that case. Yale Memo, p.
7. As it happens, the first two factors relied on in Lebron are indisputably
present in this case: Yale is without question, as the plaintiffs have alleged,
a creature of the State of Connecticut, and it was formed to advance important
Yale insists that it cannot be a state actor under Lebron for the
single, simple reason that the State of Connecticut has not "retained permanent
authority to appoint a majority of the members of the Yale Corporation or any
governing body at Yale University." Yale Memo, p. 7. The Court in Lebron
did not hold that state-action analysis hinges on the number of directors
who are public officials or who are appointed by public officials. Instead,
the Court held that, for a variety of reasons, Amtrak was an agency of the United
States for the purposes of the individual rights guaranteed against the government
by the Constitution. 513 U.S. at 394. The question in Lebron was not
how many ex officio directors there were, but whether particular conduct
or a particular policy could be fairly attributed to the government for
individual-rights purposes. In answering this question, courts may and should
consider all the facts that, individually or collectively, indicate government
influence. Compare, e.g., Krynicky v. University of Pittsburgh,
742 F.2d 94, 102-103 (3d Cir. 1984) (finding state action where, inter alia,
several government officials were ex officio trustees and the state appointed
one-third of the trustees); Isaacs v. Board of Trustees of Temple
University, 385 F. Supp. 473 (E.D.Pa. 1974) (same).
The Court made it clear in Lebron that it was not imposing a rigid
"three-pronged" test and that a corporation need not look exactly like Amtrak
to be a state actor for individual-rights purposes. 513 U.S. at 386-391. Instead,
the Court "place[d] Amtrak within its proper context." 513 U.S. at 386. For
example, although the federal government has long created corporations to achieve
public purposes - beginning with the Bank of the United States, authorized in
1791 - only in this century, with the building of the Panama Canal, did it begin
to appoint a majority of the directors of those corporations. 513 U.S. at 386-387.
Throughout the Twentieth Century, the Court noted, the government has often resorted
to the corporate form, sometimes purporting to create "private" entities that
were controlled by government officials, other times not. 513 U.S. at 390-391.
Comsat, for example, was controlled by private shareholders, and only 3 of 15
directors were appointed by the President. Ibid. Amtrak, the Lebron
Court noted, was simply "another variation upon the Comsat theme." 513 U.S. at 391.
Yale and Amtrak were both created to promote and advance what the government
believed was a public good. Yale and Amtrak both have ex officio directors
and both have directors drawn from the private sector. Yale's status as a public
actor has been confirmed for nearly 200 years in the Constitution of the State
of Connecticut; Amtrak has no such long public pedigree. Both Amtrak and Yale
are heavily subsidized by government funds. The plaintiffs have alleged a variety
of facts - and will, after discovery, produce more - that demonstrate sufficient
government involvement and control to bring this case within the rule of Lebron.
See Amended Complaint ¶¶ 39-52. Lebron compels one conclusion:
The plaintiffs have stated a claim that Yale, like Amtrak, may not violate the
plaintiffs' constitutionally protected rights.
D. For a Combination of Reasons, Yale's Acts Are "Governmental Action"
For Purposes of Preventing Unconstitutional Religious Discrimination.
The Second Circuit has repeatedly observed that the balancing of factors required
by the inquiry into "state action" will vary depending on the nature of the constitutional
right asserted. Weise v. Syracuse University, 522 F.2d 397, 406 (2d Cir.
1975) ("[A] consideration of whether there is state action necessarily entails
a balancing process."); Wahba v. New York University, 492 F.2d 96, 100
(2d Cir. 1974) ("We do not find decisions dealing with one form of state involvement
and a particular provision of the Bill of Rights at all determinative in passing
upon claims concerning different forms of government involvement and other constitutional
guarantees."). Accordingly, as Judge Friendly once observed, courts are more
likely to find state action when conduct that is particularly offensive to constitutional
norms - such as discrimination on the basis of race, religion, or sex - is alleged.
Grafton v. Brooklyn Law School, 478 F.2d 1137, 1142 (2d Cir. 1973); see
Weise, 522 F.2d at 405-407; Coleman v. Wagner College, 429 F.2d
1120, 1127 (2d Cir. 1970) (Friendly, J., concurring); Jackson v. Statler
Foundation, 496 F.2d 623, 635 (2d Cir. 1974).
Judge Higginbotham provided a helpful illustration of factbound, context-sensitive,
state-action analysis in Isaacs v. Board of Trustees of Temple Univ.,
385 F. Supp. 473 (E.D.Pa. 1974). In that case, two former faculty members sued
the University under § 1983 and the University responded, as Yale does
here, by insisting that it was a "purely private" institution. 385 F. Supp.
at 474. After a detailed analysis of prior case-law, Judge Higginbotham concluded
that "[o]n the basis of my reading of the extensive record in this case, I have
concluded that the Commonwealth of Pennsylvania has so significantly involved
itself in the affairs of Temple University that the latter's activities satisfy
the requirements of 'state action' and action 'under color of' state law as set
forth in Burton v. Wilmington Parking Authority, . . . , and its progeny."
385 F. Supp. at 495. Although Isaacs was decided before the Supreme Court's
1982 trilogy of state-action cases, it has been subsequently re-affirmed, and
it remains good law. See Schier v. Temple University, 576 F. Supp. 1569
(E.D.Pa. 1984); Krynicky v. University of Pittsburgh, 742 F.2d 94 (3d
Cir. 1984), cert. denied, 471 U.S. 1015 (1985).
The plaintiffs have alleged, as did the plaintiffs in Isaacs, a variety
of facts establishing that Yale's housing policy is state action for purposes
of § 1983 because of the unique nature of the relationship between Yale
and the government. See Amended Complaint ¶¶ 18-52. All of these
facts tend to show that Yale is a state actor and its housing policy is state
action for § 1983 purposes. When combined, these facts are at the very
least sufficient to permit the plaintiffs to discover and introduce evidence
to support their civil-rights claims.
II: YALE'S EXEMPTIONS FROM ITS RESIDENCE RULES ARE NOT NEUTRAL AND DISCRIMINATE
The First Amendment's Free Exercise Clause shields religious observers against
non-neutral laws or unequal administration of laws that inhibit religious observance.
Employment Division v. Smith, 494 U.S. 872 (1990); Church of the Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). "A law burdening religious
practice that is not neutral or not of general application must undergo the
most rigorous of scrutiny." Lukumi, supra, 508 U.S.
at 546 (emphasis added); see Hartmann v. Stone, 68 F.3d 973, 978-79 (6th
Cir. 1995). Yale acknowledges that its housing policy interferes with the plaintiffs'
religious obligations as Orthodox Jews, but it claims that its "residential requirement
is neutral and generally applicable because it applies to all single freshmen
and sophomores who are under the age of 21." Yale Memo, p. 14. This is no more
than a "conclusory statement" that will be refuted by the plaintiffs with evidence
regarding the selective administration and application of the residence rules.
The plaintiffs will show that Yale's policy is not, in fact, "neutral"
and "generally applicable" because exemptions are granted on an ad hoc
and arbitrary basis that discriminates against the objections of religious believers.
Such a policy is unconstitutional. See Smith, 494 U.S. at 884; Lukumi,
508 U.S. at 533-540; Rader v. Johnston, 924 F. Supp. 1540, 1552-1553
& n. 23 (D. Neb. 1996).
Rader v. Johnston soundly refutes Yale's claim that its housing rule is
immune from constitutional attack merely because of its facial neutrality.
Rader not only vindicates the plaintiffs' constitutional argument, it
also demonstrates why this Court should not dismiss this case before the plaintiffs
have had the opportunity to conduct discovery regarding Yale's discriminatory
housing policy. Yet Yale banishes its discussion of this crucial case to a footnote
and only half-heartedly attempts to distinguish it.
In Rader, a freshman at the University of Nebraska-Kearney ("UNK") claimed
that the University's rule requiring all freshmen to live on campus violated
the First Amendment. Like the plaintiffs in this case, Douglas Rader argued
that his religious lifestyle and duties would be disrupted if he were forced
to live in the University's dormitories because of the prevalence of underage
drinking, drug use, co-habitation and sexual activity, smoking, etc. 924 F.
Supp. at 1544-1546. The University administrators, like the defendants in this
case, refused any exemption or accommodation, insisting that the residence rule
"fosters diversity, promotes tolerance, increases the level of academic achievement,
and improves the graduation rate of its students." Ibid.
After discovery, a bench trial, and a thorough and detailed review of the facts
and evidence, the court concluded that UNK's policy, at least as applied to Douglas
Rader, violated the First Amendment. First, the court concluded that the policy
was not "generally applicable," because "administrators grant exceptions to the
policy, at their discretion, in a broad range of circumstances not enumerated
in the rule and not well defined or limited." 924 F. Supp. at 1552. The UNK's
on-campus housing requirement, like Yale's, provided explicitly for only a few
exemptions: (a) students living at home and commuting; (b) freshmen students
over the age of 19; and (c) married freshmen students. 924 F. Supp. at 1544.
The court found, however, that "[f]urther exceptions are granted on an ad hoc
basis. . . ." 924 F. Supp. at 1544. The court discussed how UNK officials had
over the years granted exemptions for a variety of personal reasons, yet had
stubbornly refused to let any freshmen live at the Christian Student Fellowship
house. 924 F. Supp. at 1554.
The court also determined that the policy was not neutral "in purpose and effect"
(924 F. Supp. at 1553) because Douglas Rader was able to show that administrators
treated his religion-based request for an exemption with less care and consideration
than other requests. The court observed that the testimony of administrators
"manifested a degree of antipathy toward members of [the Christian Student Fellowship]."
924 F. Supp. at 1554 & n. 26. Using language strikingly similar to that
used by Yale officials in this case, the UNK Chancellor testified that "students
who do not wish to live in the residence halls for religious reasons should not
attend UNK." 924 F. Supp. at 1549. Because UNK's rule was - despite appearances
to the contrary - not in fact neutral, the court required UNK to justify its
infringement of Douglas Rader's fundamental rights with a compelling state interest,
a burden that UNK was unable to meet. 924 F. Supp. at 1556. The court concluded
that "although [the University's] interests are certainly legitimate, . . . they
do not rise to the level of 'interests of the highest order' not otherwise served."
924 F. Supp. at 1556-1558.
Three important lessons that apply to this case may be derived from Rader.
First, despite the residence rule's facial neutrality, the court in
Rader held that the rule did not measure up to the standard of Smith.
"A finding of mere facial neutrality . . . does not end the inquiry. To pass
constitutional muster a governmental law or policy must also be neutral in purpose
and effect." Rader, 924 F. Supp. at 1553; see Lukumi, 508 U.S.
at 531-533. Second, despite the University's protests to the contrary,
the court in Rader determined that the housing policy was not in fact
generally applicable, and that the policy in fact discriminated against
religion-based requests for exemptions. Third, the court in Rader
provided the plaintiff with adequate opportunity to discover and present evidence
regarding the University's policy and past practices, evidence that proved crucial
to the court's decision. See also Storm v. Town Of Woodstock, 944 F.
Supp. 139, 145 (N.D.N.Y. 1996) (noting that "[w]hether a challenged law is generally
applicable or not is not always readily apparent" and concluding that free-exercise
plaintiffs were entitled to discovery regarding the issue of fact regarding the
law's general applicability); Toback v. Bratton, 903 F. Supp. 556, 558
(S.D.N.Y. 1995) (factual issues regarding general applicability prevented summary
Moreover, in this case, the plaintiffs are asserting "hybrid" constitutional
claims. They claim that the Free Exercise Clause is involved "in conjunction
with other constitutional protections." Smith, supra, 494 U.S.
at 881. The plaintiffs contend that their rights of privacy are infringed as
well as their First Amendment right of association. See pp. 18-19, 23-24,
infra. Therefore, even if Yale were able to prove that its residence
policy were truly "neutral" toward religion and in fact "generally applicable,"
the First Amendment would require this Court to subject the policy to the most
rigorous scrutiny. See Brown v. Hot, Sexy, and Safer Productions, Inc.,
68 F.3d 525, 539 (1st Cir. 1995) (recognizing availability of "hybrid" claims),
cert. denied, 116 S.Ct. 1044 (1996); Cornerstone Bible Church v. City
of Hastings, 948 F.2d 464, 472-473 (8th Cir. 1991) (remanding for consideration
of hybrid free-exercise / equal-protection / free-speech claim).
III: YALE'S RESIDENCE POLICY CONSTITUTES COMPELLED EXPRESSIVE ASSOCIATION
By requiring the plaintiffs to live in Yale's co-educational housing, where sexual
immodesty and promiscuity are both common and tolerated, Yale has unconstitutionally
compelled the plaintiffs to engage in expressive association. Amended Complaint
¶¶ 82, 83. It is "firm constitutional doctrine," however, that state
actors may not "compel individuals to speak or think in prescribed ways" or act
as the "molder of minds." Carroll v. Blinken, 957 F.2d 991, 995-996
(2d Cir. 1992), cert. denied, 506 U.S. 906 (1992); see West Virginia
Board of Education v. Barnette, 319 U.S. 624, 645 (1943); Wooley v Maynard,
430 U.S. 705, 714-715 (1977).
In a long line of cases, most noteworthy of which is Abood v. Detroit Board
of Education, 431 U.S. 209 (1977), the United States Supreme Court has recognized
that the First Amendment protects against compelled expressive association.
While Abood and its progeny have involved the member-funded activities of labor
unions and integrated state bar associations, it is clear that the principles
outlined in those cases apply in the context of a university as well. See Carroll,
957 F.2d at 997; Galda v. Rutgers, 772 F.2d 1060, 1064 (3d Cir. 1985), cert.
denied, 475 U.S. 1065 (1986).
Yale repeatedly asserts that "there is no particular ideological organization
or ideology which plaintiffs would be compelled to join, associate with or support."
Yale Memo, pp. 14-16. This assertion simply demonstrates that Yale misunderstands
the plaintiffs' compelled-expressive-association claim. We are not seeking to
prevent Yale from tolerating a "full range of political and social views." Yale
Memo, p. 15. Nor do the plaintiffs object to "encountering" sexual immodesty
or associating with students whose beliefs they find offensive and wrong. Id.
at 16. Rather, the plaintiffs assert that they are being forced by Yale
to engage in expressive association by sleeping, bathing, and living in the
co-educational, rule-less dormitories that Yale claims best serve its own educational
"philosophy." See Yale Memo, p. 2 & nn. 2-3.
The plaintiffs believe, as a matter of religious faith and obligation, that it
is wrong for unmarried people of the opposite sex to live, sleep, dress, and
bathe together in the manner Yale requires of its students. Amended Complaint
¶¶ 1, 57. This belief is, of course, protected by the First Amendment.
Moreover, Yale acknowledges, as it must, that the First Amendment forbids compelled
expression with which one disagrees. At the same time, Yale admits that its
housing policy is part and parcel of its educational philosophy about how best
to mold and change its students' minds. See Yale Memo, p. 2 n.2. The plaintiffs
contend that Yale's mandatory co-educational housing policy advances and is part
of a "politically correct" ideology of sexual permissiveness and moral relativism,
a secular orthodoxy that is both hostile and dismissive of traditional and especially
religious values, beliefs, and obligations. By requiring the plaintiffs to pay
for rooms in Yale's co-educational dormitories and to sleep in those rooms, Yale
has gone beyond compelling the plaintiffs to meet and "encounter" other people
with different ideas. It has compelled the plaintiffs themselves to engage in
and financially support expressive and symbolic activity which they find objectionable.
IV: YALE'S RESIDENCE POLICY DENIES THE PLAINTIFFS EQUAL PROTECTION OF THE LAWS
Yale's housing policy creates classifications that result in the disparate treatment
of similarly situated students. These classifications impose a substantial burden
on the students' fundamental rights. We submit that there is no rational basis
for the policy's classifications. Nor can Yale justify the policy with a "compelling
public interest," as is required under strict-scrutiny analysis. See, e.g.,
Brown v. Borough of Mahaffey, PA, 35 F.3d 846, 850 (3d Cir. 1994) (reciting
constitutional equal-protection tests). These allegations therefore clearly
state a claim under the Equal Protection Clause.
To be sure, some courts have upheld university residence rules in the face of
equal-protection challenges. See Yale Memo, pp. 17-18 & n. 17. The only
one of these decisions that binds this Court is Bynes v. Toll, 512 F.2d
252 (2d Cir. 1975), which is easily distinguishable from this case. In that
case, students argued that the State University of New York at Stony Brook was
required to let married students with children live in housing designated
for married students without children. 512 F.2d at 253. The court correctly
held that the University's "no children" rule was rationally related to the legitimate
public interest in child safety. 512 F.2d at 256-257. The rationality of Yale
s particular residence rule - especially given the fact that Yale requires
co-educational housing - is an open question for this Court. See Cooper v
Nix, 343 F. Supp. 1101 (W.D.La. 1972), aff'd in relevant part, 496
F.2d 1285 (5th Cir. 1974); Mollere v. Southeastern Louisiana College,
304 F. Supp. 826, 828 (E.D. La. 1969) (residence rule that applied to freshmen
men and to women under 21 lacked a rational basis).
In any event, the mere rationality of Yale's rule would not alone be sufficient
to sustain it. The plaintiffs have alleged that Yale's housing policy burdens
their fundamental rights, and the policy is therefore subject to "strict scrutiny."
Yale has not even attempted to meet its burden under this standard. The court
in Bynes was careful to note that SUNY's "no children" rule did not burden
the plaintiffs' fundamental rights, and that "strict-scrutiny" review was therefore
not warranted. 512 F.2d at 256. Similarly, in Prostrollo, the court
refused to apply "strict scrutiny" to the challenged housing rule because "the
right to choose one's residence is [not] a fundamental right" and the alleged
interference with the "freedom of association" was "too insignificant to invoke
strict scrutiny of the statute." 507 F.2d at 781.
Contrary to Yale's assertion, the plaintiffs do not have to allege, let alone
prove, that they have been treated differently from other religious groups
in order to invoke "strict scrutiny" review. See Yale Memo, p. 18. Instead,
they must allege - as they have - that their fundamental rights are burdened
by the classifications contained in Yale's housing policy and by Yale's practice
of treating requests for religion-based exemptions less favorably than others.
A classification that might otherwise be subject only to rational-basis review -
a classification that distinguished between religious groups would certainly
not be such a classification - is subject to strict scrutiny when it burdens
fundamental rights. It is the nature of the burden, not the nature of
the classification, that triggers strict scrutiny. Yale must therefore
demonstrate that its rule requiring residence in co-educational dormitories by
all freshmen and sophomores, including those with religious convictions but excepting
those over 21 or married, is "narrowly tailored" to advance a "compelling state
V: YALE'S HOUSING POLICY VIOLATES THE PLAINTIFFS' PROTECTED RIGHTS OF PRIVACY
The plaintiffs have presented this Court with specific allegations regarding
the intrusions upon their personal privacy that Yale's housing policy forces
them to endure as a condition of enrollment. Amended Complaint ¶¶
95, 96. Yale responds by mischaracterizing their claims. We agree that, of
course, there is no "fundamental right to live precisely where one chooses."
Yale Memo, p. 18. But such a claim is entirely different from the allegation
that "[s]tudents who are forced to reside in Yale's co-educational housing are
subjected to frequent and repeated invasions of their privacy in their rooms
and bathrooms. They are unable to avoid such invasions." Amended Complaint ¶ 96.
By relying on cases dealing with the disclosure of personal papers such as
Nixon v. Administrator of General Services, 433 U.S. 425 (1977), or with
"autonomy" such Paul v. Davis, 424 U.S. 693 (1976), Yale misses the more
pedestrian, everyday, core nature of the plaintiffs' privacy claims.
It cannot be doubted that one has a "privacy" interest in preventing intrusions
on one's bedroom, bathroom, shower, and toilet. As the Court observed in
York v. Story, 324 F.2d 450, 455 (9th Cir. 1963), cert. denied,
376 U.S. 939 (1964):
We cannot conceive of a more basic subject of privacy than the naked body. The
desire to shield one's unclothed figure from the view of strangers, and particularly
strangers of the opposite sex, is impelled by elementary self-respect and personal
VI: YALE'S REFUSAL TO EXEMPT RELIGIOUS OBSERVERS FROM CO-EDUCATIONAL HOUSING
VIOLATES THE FAIR HOUSING ACT
The Fair Housing Act prohibits, inter alia, discrimination "in the terms,
conditions, or privileges of sale or rental of a dwelling, or in the provision
of services or facilities in connection therewith, because of race, color, religion,
sex, familial status, or national origin." 42 U.S.C. § 3604(b). The plaintiffs
have alleged that by refusing to honor their religion-based requests for single-sex
housing, either by exempting them from the on-campus housing requirement or by
providing single-sex housing on or off campus, Yale has discriminated against
the plaintiffs "because of . . . religion" and has therefore violated the Fair
Housing Act. Amended Complaint ¶ 99. Providing only co-educational housing
facilities, which are known to be unacceptable to these students because of their
religious beliefs, is a "term" or "condition" of the rental of a dwelling, and
is an aspect of the "provision of services or facilities in connection [with
a dwelling]," under the Act. Moreover, Yale's policy of granting ad hoc
exemptions and accommodations for secular reasons but not for religious reasons
is similarly covered by the Act. These allegations are sufficient to state a
claim for relief under the Fair Housing Act, especially given that the United
States Supreme Court has called for a "generous construction" of the Act in light
of its important purposes. Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205, 211-212 (1972).
The law is clear that a plaintiff can establish illegal discrimination under
the Fair Housing Act by proving either disparate treatment or disparate impact.
The Act prohibits all housing policies that have a discriminatory effect. See,
e.g., United States v. Incorporated Village of Island Park,
888 F. Supp. 419, 445 (E.D.N.Y. 1995). Treating religion-based requests for
exemptions differently from other requests is discrimination. "[W]here the State
has in place a system of individual exemptions, it may not refuse to extend that
system to cases of 'religious hardship' without compelling reason." Smith,
494 U.S. at 884 (citation omitted); see Lukumi, 508 U.S. at 536-38 (regulation
not generally applicable for First Amendment purposes because of non-religious
exemptions); Rader, 924 F. Supp. at 1552 n. 23 ("[W]hen government grants
exemptions to a general rule on an individualized basis and refuses to extend
an exemption to a religious observer, strict scrutiny applies.").
The plaintiffs allege that Yale has discriminated against them "because of religion"
by requiring students to live in co-educational housing, by treating their
religion-based requests for exemptions from co-educational housing differently
from other requests, and by exempting students from the on-campus housing requirement
for non-religious reasons while refusing to exempt those who have invoked religious
reasons. The facial neutrality of providing co-educational housing to all students
does not defeat the plaintiffs' Fair Housing Act claim because that kind of housing,
in and of itself, violates the students' religious convictions. See, e.g.,
United States v. Badgett, 976 F.2d 1176, 1179 (8th Cir. 1992) ("[T]he Fair
Housing Act requires that a court examine the totality of the circumstances to
determine whether [a] facially neutral standard results in discrimination against
a protected class."); Incorporated Village of Island Park, 888 F. Supp.
at 446; Huertas v. East River Housing Corp., 674 F. Supp. 440,
454-455 (S.D.N.Y. 1987) (policies that were purportedly neutral were not neutral
in fact). Indeed, Yale's discriminatory application of its on-campus housing
requirement is a paradigmatic Fair Housing Act violation. See, e.g., Incorporated
Village of Island Park, supra, 888 F. Supp. at 446-448 (Village's
nepotistic pre-selection procedures were a "perversion of the first-come
first-served requirements for the program). This is true even if Yale
were not required, as an initial matter, to "accommodate" the plaintiffs in the
same way it would be required to accommodate a physical handicap. 42 U.S.C.
§ 3604(f). The plain, straightforward text of § 3604(b) requires Yale
to treat the plaintiffs' religion-based objections to Yale's co-educational housing
requirement no less favorably than it treats other objections and exemption requests.
VII: YALE'S RESIDENCE REQUIREMENT IS A TYING AGREEMENT THAT VIOLATES FEDERAL
Yale does not deny that the plaintiffs' Amended Complaint sufficiently alleges
four elements of a tying-arrangement claim. It challenges only the claim that
Yale has the requisite economic power in the tying product market. Yale Memo,
p. 27. Yale contends that allegations regarding the uniqueness of a Yale education
and its benefits do not sufficiently allege market power. Id., p. 28.
This argument fails for two reasons: First, whether the uniqueness of
a Yale education can supply the required market power is a factual question that
cannot be resolved on a motion to dismiss. Second, even if "uniqueness"
were a question that could be resolved on a motion to dismiss, the plaintiffs
have adequately alleged that element.
An antitrust claim need not be pleaded with heightened specificity. The plaintiff
need only give a "short plain statement of a claim for relief which gives notice
to the opposing party." George C. Frey Ready-Mix Concrete, Inc. v. Pine Hill
Concrete Mix Corp., 554 F.2d 551, 554 (2d Cir. 1977). A plaintiff making
a tying-agreement claim need not assert that the defendant has full-blown monopoly
power, or even that he has a dominant position in the tying product market.
The element of economic power can be satisfied simply by alleging that the product
is unique. U.S. Steel Corp. v. Fortner Enterprises, 429 U.S. 610, 620
21 (1977) ("Fortner II"). Whether a tying product is sufficiently unique
to create economic power within the meaning of the Act is ordinarily a question
of fact, and courts have consistently held that it is inappropriate to resolve
such a disputed issue before trial. See, e.g., Fortner Enterprises
v. U.S. Steel Corp., 394 U.S. 495, 506 (1969) ("Fortner I").
Because the plaintiffs have alleged that a Yale education is unique (Amended
Complaint ¶ 124), they have sufficiently stated their tying claim.
The Court of Appeals for the Second Circuit has recognized that whether a tying
product is sufficiently unique to meet the requirements of a tying claim is a
question of fact that should not be determined on a pre-trial dispositive motion.
See Hill v. A-T-O, Inc., 535 F.2d 1349, 1354 (2d Cir. 1976). In Hill,
the Second Circuit reversed a district court's grant of summary judgment for
the defendant, noting that a factual question is raised where the plaintiff alleges
and offers evidence of uniqueness which the defendant denies.
The plaintiffs here have alleged that a Yale education is sufficiently unique
to confer economic power: "[A] Yale degree has unique attributes that make it
without substitute or equal." Amended Complaint ¶ 124. The plaintiffs
have added specific facts supporting that allegation, stating, for example, that
a Yale degree is of incomparable value to potential employers and to graduate
schools and that only a Yale degree provides certain unique lifetime advantages,
including access to the worldwide network of Yale alumni. Like the allegations
in Fortner I and Hill, these allegations of uniqueness meet the
burden of pleading the market power element of a tying claim.
Yale argues that there is a higher standard for a tying-agreement claim in which
market power is based on the uniqueness of the tying product. See Yale Memo,
p. 27. But Yale's arguments are premature. These are matters that must be resolved
through discovery and trial. Moreover, the plaintiffs have sufficiently
alleged Yale's market power in the tying product market because there are obvious
barriers to the entry of others.
The Supreme Court noted in Fortner I (394 U.S. at 505 n.2):
Uniqueness confers economic power only when other competitors are in some
way prevented from offering the distinctive product themselves. Such barriers
may be legal, as in the case of patented and copyrighted products . . . or physical,
as when the product is land . . . . [T]he barriers may also be economic, as
when competitors are simply unable to produce the distinctive product profitably . . . .
Accord Will v. Comprehensive Accounting Corp., 776 F.2d 665, 672
(7th Cir. 1985), cert. denied, 475 U.S. 1129 (1986).
The plaintiffs will prove at trial that there are significant barriers to entry
into the market for the type of Ivy League education Yale offers. One obvious
barrier is the time it takes to develop an established reputation. Yale's tradition
and history are integral elements of its reputation. It took centuries for Yale
to establish itself as one of the world's elite academic institutions. A potential
competitor could not build a comparable institution in a single generation.
This means that Yale has an "advantage not shared by [its] competitors in the
market for the tying product." Fortner II, 429 U.S. at 620.
VIII: YALE MONOPOLIZES STUDENT HOUSING IN NEW HAVEN
Yale's on-campus residence rules for its college freshmen and sophomores exert
market power that monopolists would envy. The relevant market is Yale student
housing, and Yale exercises monopoly power over it. Yale has the power to dictate
to consumers in the market what product they may and may not purchase. Amended
Complaint ¶ 112. Yale claims that this market definition is insufficient
and seeks dismissal of plaintiffs' monopolization claim. Yale Memo, pp. 29,
31. But the allegation properly defines the relevant market, and the complaint
supports that definition in the factual context in which it arises. Amended
Complaint ¶¶ 112-114. The plaintiffs' claims are supported by a recent
decision of the Court of Appeals for the Second Circuit. Hamilton Chapter
of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59 (2d Cir. 1997).
The requirements for stating a monopolization claim are simple and do not call
for lengthy description. In order to withstand a motion to dismiss, a plaintiff
need only allege "(1) the possession of monopoly power in the relevant market
and (2) the willful acquisition or maintenance of that power as distinguished
from growth or development as a consequence of superior product, business acumen,
or historic accident." United States v. Grinnell Corp., 384 U.S.
563, 570-71 (1966). Furthermore, a "generous approach to pleading applies in
the antitrust context." Hamilton Chapter, supra, 128 F.3d at 63
(citing Furlong v. Long Island Hospital, 710 F.2d 922, 927 (2d Cir. 1983)).
As the Second Circuit recently stated in Hamilton Chapter (128 F.3d at
62-63) (citations and quotations omitted):
The issue is not whether a plaintiff will or might ultimately prevail on her
claim, but whether she is entitled to offer evidence in support of the allegations
in the complaint. Indeed it may appear on the face of the pleadings that a recovery
is very remote and unlikely but that is not the test. A dismissal is warranted
under Rule 12(b)(6) only if it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.
Hamilton Chapter was a challenge to a private university's housing policy
requiring students to purchase on-campus housing. The plaintiffs alleged that
the policy constituted illegal monopolization of "residential services in Clinton,
New York." 128 F.3d at 61. The Second Circuit held that the plaintiffs' allegations
of a nexus to interstate commerce must be accepted as true. 128 F.3d at 66.
The Court of Appeals noted that "where proof of the alleged antitrust violation
is largely in the hands of the defendants, dismissals prior to giving the plaintiff
an opportunity for discovery should be granted sparingly." 128 F.3d at 63.
Like the plaintiffs in Hamilton, the plaintiffs in this case have alleged
that the relevant market is the housing market for Yale students in New Haven.
Amended Complaint ¶ 112. Plaintiffs also allege that no cross-elasticity
of demand exists between Yale housing and other housing in the area. Amended
Complaint ¶ 113. The clear thrust of these allegations is that the market
for Yale student housing is a distinct market because Yale housing and other
housing in New Haven are not reasonably interchangeable. Further proof of these
allegations is in Yale's hands, and will be brought out through discovery.
Yale takes issue with the plaintiffs' definition of the relevant market, insisting
that it "ignores housing not owned by Yale." Yale Memo, p. 31. The plaintiffs
allege, however, that Yale's on-campus housing is not interchangeable with housing
not owned by Yale in the New Haven area by virtue of Yale's housing policy.
Amended Complaint ¶¶ 111, 112. For pleading purposes, the plaintiffs
have defined the relevant market by proper "reference to the rule of reasonable
interchangeability and cross-elasticity of demand." Queen City Pizza, Inc.
v. Domino's Pizza, Inc., 124 F.3d 430, 436 (3d Cir. 1997).
Yale also raises arguments that address the weight of evidence rather than the
sufficiency of the pleadings. Yale cites Ortho Diagnostic Systems, Inc. v.
Abbott Laboratories, Inc., 822 F. Supp. 145, 153 (S.D.N.Y. 1993), which involved
a motion for preliminary injunction, not a decision on the sufficiency of the
complaint. At the pleading stage, the plaintiffs do not need to make a showing
of success on the merits. The allegation of market share need not, therefore,
be made in the pleadings; it is an issue for trial. Yale also disputes the significance
of the plaintiffs' factual assertion that Yale is able to raise the price of
its on-campus housing without losing any students. Yale Memo, p. 33. Yale argues
that such an assertion has "nothing to do with Yale's market power over student
housing." Ibid. In fact, this argument has everything to do with
Yale's market power, as the Second Circuit recently reaffirmed. It said in
Hamilton Chapter, supra, 128 F.3d at 67, that "the fraternities
allege that Hamilton can restrict output and raise prices without losing any
students. That is precisely the vice of a monopoly." At best, Yale has raised
a factual dispute about the source of Yale's power. The factual dispute should
not be resolved now. It must await a trial.
Finally, in arguing that the plaintiffs must allege the factual basis on which
their definition of the relevant geographic market rests, Yale is asking this
Court to create an entirely novel requirement for pleading a monopolization claim.
Yale Memo, p. 35. Such a factual allegation is not a required element of pleading
a monopolization claim. On the contrary, a plaintiff need only allege a relevant
geographic market in the complaint. See, e.g., Hamilton Chapter,
supra, 128 F.3d at 61 (relevant geographic market defined by town where college
was located). Because the plaintiffs have alleged the elements of a monopolization
claim, and because Yale's arguments have not undermined the sufficiency of the
plaintiffs' allegations, this Court should deny Yale's motion to dismiss that claim.
IX: YALE IS LIABLE FOR UNJUST ENRICHMENT
Yale seeks to dismiss the plaintiffs' unjust-enrichment claim on the assertion
that the plaintiffs have not alleged that they provided property to Yale or that
Yale has failed to compensate them for that property. Yale Memo, pp. 24-25.
Yale also contends that, even if the equitable doctrine of unjust enrichment
did apply here, the plaintiffs have not alleged facts that would support such
a claim. But the plaintiffs have alleged all the elements of unjust enrichment.
Moreover, unjust enrichment is particularly appropriate here because it is an
equitable remedy awarded when it would be "contrary to equity and good conscience
for one to retain a benefit which has come to him at the expense of another."
Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn.
276, 282, 649 A.2d 518, 521 (1994).
Under Connecticut law, a plaintiff "seeking recovery for unjust enrichment must
prove (1) that the defendants were benefited, (2) that the defendants unjustly
did not pay the plaintiffs for the benefits, and (3) that the failure of payment
was to the plaintiffs' detriment." 231 Conn. at 283, 649 A.2d at 522. The plaintiffs
allege that Yale benefited from their payments for on-campus housing. Amended
Complaint ¶ 101. They also allege that Yale unjustly failed to compensate
them by providing them with housing that they could use in exchange for their
payments. Amended Complaint ¶ 103. Finally, they allege that they are
harmed by this failure on Yale's part. Amended Complaint ¶¶ 101, 103.
It is significant, considering the equitable nature of the unjust-enrichment
remedy, that Yale knew the housing it was "providing" to the plaintiffs
was utterly worthless to them. Amended Complaint ¶ 104. Under threat of
forced withdrawal from the college (Amended Complaint ¶ 102) - a threat
that goes unmentioned in Yale's Motion to Dismiss - Yale billed the plaintiffs
for this worthless housing, and it received plaintiffs' payments - which were
made under protest (Amended Complaint ¶ 101). Yale knew that it
had not provided anything of value in return. Yale cannot in good conscience
be allowed to retain payments it received for housing that is worthless to the
plaintiffs and that Yale knows is worthless to the plaintiffs. Yale's
protests notwithstanding, the equitable remedy of unjust enrichment is perfectly
suited to this case.
Yale insists, however, that the plaintiffs have not alleged that "they provided . . .
property to Yale and that Yale has failed to compensate them." Yale Memo, p.
25. How does Yale define "property" if the term does not include the plaintiffs'
forced payments of money to Yale? And does Yale define "compensation" to include
giving something known to be of no value to the recipient in return for payment?
Such arguments require a Through-The-Looking-Glass lexicon, in which words mean
whatever Yale wants them to mean.
X: YALE HAS BREACHED A CONTRACT WITH THE PLAINTIFFS
Yale denies that its dormitory rules give freshman and sophomore students a contract
right to live off-campus. It ignores Yale's promise not to discriminate on the
basis of religion. Yale Memo, p. 36. We do not allege that Yale's dormitory
regulations create a right to live off-campus. We do allege that Yale's
promise not to discriminate on the basis of religion does give rise to
a contractual obligation.
In determining whether a plaintiff has stated a valid claim for breach of contract
under Connecticut law, the Court need not go behind the plaintiff's allegations.
If the plaintiff has alleged existence of a contract, breach, and damages, he
has adequately pleaded a claim for breach of contract. Chem-Tek, Inc. v.
General Motors Corp., 816 F. Supp. 123, 131 (D. Conn. 1993) (citing
O'Hara v. State, 218 Conn. 628, 590 A.2d 948 (1991)). The plaintiffs
here have satisfied each of the three elements required under Connecticut law
for pleading a breach-of-contract claim. First, they have alleged that
a contract exists here by virtue of Yale's promises not to discriminate on the
basis of religion. Amended Complaint ¶¶ 130-31. The plaintiffs have
also alleged that they relied on those promises. Amended Complaint ¶ 131.
Second, the plaintiffs have properly alleged that Yale breached the contract
when it refused to "accommodate the bona fide religious convictions of the plaintiffs
by granting them the same exception from the housing requirement that it grants
to thousands of other Yale students." Amended Complaint ¶ 132. Third,
the plaintiffs allege that they have sustained damages as a result of that breach.
Prayer for Relief ¶ 4. The Court need not look behind these allegations
at this stage of the case, and Yale's Motion to Dismiss the breach-of-contract
claim should therefore be denied.
In Soderbloom v. Yale University, 1992 Conn. Super. LEXIS 256 (Feb. 3,
1992) (copy attached as Exhibit 1) - a case that is directly on point - a group
of Yale students sought to enjoin Yale's termination of its varsity wrestling
program, alleging that the termination constituted a breach of their contract
with Yale for educational services. Id. at *1. The Court rejected the
students' request for a temporary injunction, but it held that their relationship
with Yale was governed by a contract whose terms were embodied in the "catalogs,
bulletins, circulars, and regulations of the institution." Id.
at *4. The court considered the terms of the contract to be a question of fact,
and it determined that there was no binding contract to maintain a wrestling
team because Yale "must have the flexibility to make changes" in its extracurricular
programs. Ibid. The same "flexibility" to change from year to year does
not apply, however, to the promise to accommodate religious diversity and respect
religious convictions. The plaintiffs' relationship with Yale is governed by
a contract, the terms of which are embodied in, among other things, Yale's recruiting
brochures. The brochures specifically promise, among other things, that Yale
promotes diversity and will not discriminate on the basis of religion. That
is not a promise that Yale may modify each year. The plaintiffs relied on that
promise in those brochures when they decided to come to Yale.
Yale argues alternatively that, even if there were a contract, Yale has
not breached it because it has not discriminated against the plaintiffs in the
sense required to constitute a Free Exercise or Equal Protection violation.
Yale Memo, p. 37. As the plaintiffs have demonstrated, however, Yale's conduct
here does amount to unconstitutional discrimination and it does
burden the free exercise of their religion. Such unconstitutional discrimination
amounts to a clear breach of Yale's contractual promise.
XI: REQUIRING THE PLAINTIFFS TO RESIDE IN CO-EDUCATIONAL DORMITORIES VIOLATES
THE DUE PROCESS CLAUSE
We have alleged that Yale violates the Due Process Clause by forcing students
into the "Hobson's Choice" of either withdrawing from Yale or living in a situation
in which they may acquire actual knowledge of federal crimes and therefore face
prosecution for misprision of felony if they conceal and do not report those
crimes. Amended Complaint ¶¶ 134-36, 138. Yale contends that
the plaintiffs' allegations "knowingly stop short of stating the necessary elements
of a cause of action," because they have not "established" that "child pornography
occurs at Yale." Yale Memo, pp. 20, 21. Yale also insists that the plaintiffs
cannot "state a claim for misprision of felony." Id., p. 22. Of course,
the plaintiffs have not attempted to "state a claim for misprision of felony."
Liability for misprision of felony is precisely what the plaintiffs want to avoid.
Instead, the plaintiffs contend that by forcing them to live in a situation where
they are likely to acquire knowledge of federal crimes, and where they are correspondingly
subject to prosecution for misprision of felony if they conceal and do
not report those crimes, Yale has violated the Due Process Clause.
Yale disingenuously professes shock at the plaintiffs' allegation that they are
likely to witness or acquire knowledge of sexual activity involving unmarried
minors in the Yale dormitories. Yale Memo, pp. 21-22. Yale's disagreement with
the underlying factual allegations is not relevant to this Court's determination
under Rule 12 of the Federal Rules of Civil Procedure. Since many freshmen and
some sophomores at Yale are under 18 years of age and the activity prohibited
by federal law takes place if any photographs of sexual activity involving a
minor were taken in the co-educational Yale dormitories, it is significantly
probable that an entering Yale freshmen would witness such activity. He or she
would then be faced with the dilemma described in the plaintiffs' complaint.
Whether or not such incidents are likely can only be determined after discovery
and the presentation of evidence. The allegations are sufficient to entitle
the plaintiffs to proceed with their claim.
The plaintiffs' allegations are sufficient to entitle them to introduce evidence
to support their claims that Yale's mandatory co-educational housing policy constitutes
discrimination on the basis of religion and is otherwise both unconstitutional
and illegal. For all of the foregoing reasons, Yale's Motion to Dismiss should be denied.
NATHAN LEWIN (ct# 18376)
RICHARD W. GARNETT
MILLER, CASSIDY, LARROCA & LEWIN
2555 M Street, N.W.
Washington, D.C. 20037
WILLIAM F. GALLAGHER (ct# 04147)
BARBARA L. COX (ct# 08523)
GALLAGHER, GALLAGHER & CALISTRO
1377 Ella Grasso Boulevard
New Haven, CT 06511
Attorneys for Plaintiffs