Iron Arrow Honor Soc. v. Hufstedler, 76-1850-Civ-EPS.

Decision Date12 August 1980
Docket NumberNo. 76-1850-Civ-EPS.,76-1850-Civ-EPS.
Citation499 F. Supp. 496
PartiesIRON ARROW HONOR SOCIETY, a "tap" or recognition association for men; and John I. Benedict, individually and as Chief of Iron Arrow Honor Society, Plaintiffs, v. Shirley M. HUFSTEDLER, Secretary of the Department of Education; William H. Thomas, Director, Office for Civil Rights, Department of Health, Education and Welfare (Region IV) et al., Defendants.
CourtU.S. District Court — Southern District of Florida

COPYRIGHT MATERIAL OMITTED

Elizabeth Du Fresne, Du Fresne & Du Fresne, Miami, Fla., for plaintiffs.

Alexander Ross, Dept. of Justice, Washington, D. C., for defendants.

ORDER AND MEMORANDUM OPINION

SPELLMAN, District Judge.

Early in the morning, while the sky is still pale with night and the dew still wet on the grass, Iron Arrows begin to congregate at the tapping mound. There, on a small knoll beneath a shady ficus tree is the Iron Arrow monument. A few sticks of wood are placed in the firebowl, and soon the smell of smoke begins to drift across the campus. It is the tapping day. (Plaintiffs' Complaint, p. 3).

Thus begins the tapping ceremony of the Iron Arrow Honor Society, an organization steeped in tradition and proud of its long association with the University of Miami. A major part of the tradition of the organization is its male—only membership policy. With the inexorable movement toward recognition and advancement of women's rights in the past decade, Iron Arrow's exclusive membership policy has naturally met strong opposition and hostility, yet the organization has steadfastly refused to admit women, even when the federal government's threatened withdrawal of access to the federal fisc forced the University of Miami to disassociate itself from Iron Arrow. Resisting this intrusion by the federal government, which was apparently intended through indirection to work a transformation in the sexual attitudes of Iron Arrow, the organization has instead fought back by filing the present action.

In this action, the plaintiffs seek to enjoin the federal defendant from issuing or interpreting its Regulation 86.31(b)(7) in such a way as to deter the University of Miami from permitting the Iron Arrow Honor Society to conduct certain functions on the University campus. The plaintiffs also seek a declaration of their rights with regard to the issuance and enforcement of Regulation 86.31(b)(7). Jurisdiction is founded on 28 U.S.C. §§ 1331 and 2201, 20 U.S.C. § 1683, and 5 U.S.C. § 701, et seq.

This suit was originally brought by the plaintiffs in October, 1976 against defendants Department of Health, Education, and Welfare (hereafter "H.E.W.") and the University of Miami. The District Court heard the case upon the plaintiffs' demand for a temporary injunction, denied temporary relief, and subsequently dismissed the action as to the University, stating that the plaintiffs have no federal cause of action against the University. The Court also dismissed the complaint as to H.E.W. on the ground that the plaintiffs lacked standing to complain of an H.E.W. action which only indirectly affected the plaintiffs. On appeal, the decision of the District Court was affirmed as to the dismissal of the complaint against the University, but reversed as to the dismissal of the complaint against H.E.W., 597 F.2d 590 (5th Cir. 1979).

Referring to a statement made by the University which this Court has been unable to find in the record or the pleadings, the Fifth Circuit held:

In light of the unequivocal statement of the position of the University of Miami that but for the action of the Secretary of Health, Education and Welfare it would not have and would not in the future bar the Iron Arrow Honor Society from its campus, the decision of the district court on standing of the Society is reversed.

Id., at 590.

The case is presently before this Court on cross-motions for summary judgment. All the parties agree that there are no factual issues to be resolved. Despite the previous dismissal of the University defendant, the Court has sua sponte joined the University of Miami as an indispensable party in order to assure that adequate relief can be afforded by the decision of this Court. Fed.R. Civ.Proc. 19.

The facts are undisputed. In 1973, the Office of Civil Rights, a subdivision of H.E.W., received a personal complaint charging that Iron Arrow Honor Society (hereafter "Iron Arrow") systematically discriminated against females by excluding them from membership in the society. The complaint also charged that Iron Arrow discriminated against American Indians, both in membership policies and by adopting certain Seminole Indian customs and attire for the society's activities. H.E.W. notified the University of Miami that these complaints were being investigated, and in October, 1973 H.E.W. informed the University that the complaint as to discrimination against American Indians was not supported by the facts.

We do not find evidence to support a claim that the Society's use of Indian ritual and appurtenances is, per se, demeaning of either Seminole or Mikasukee Indians or Indians in general. Indeed, our investigation shows that qualities of life and philosophy portrayed in the Society's ritual show Indians in what must be considered a positive or favorable light.

(Letter of William H. Thomas, Office of Civil Rights, to the University of Miami, dated October 25, 1973).

The University was simultaneously informed that consideration of the sex discrimination claim had been postponed.

Our resolution of the sex discrimination aspect of this complaint will have to await the issuance of guidelines for the implementation of Title IX of the Education Amendments of 1972. These should be ready sometime in the fall, at which time we will pursue our investigation into the status of the Iron Arrow Society and the University's obligations to comply with the requirements of Title IX and implementing rules and regulations issued pursuant to the legislation.

Id.

H.E.W. regulations implementing the Title IX legislation were subsequently issued and became effective on July 21, 1975. On May 25, 1976, H.E.W.'s Office of Civil Rights informed the University that it had concluded its investigation of Iron Arrow and found that the University was in violation of H.E.W. Regulation 45 C.F.R. 86.31(b)(7), which states:

... a recipient shall not, on the basis of sex:
Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees: ...
H.E.W. stated to the University,
Accordingly, we are informing you that in order for the University of Miami to fulfill its obligations under Title IX, it must either require the Iron Arrow Honor Society to eliminate its policy of excluding women or discontinue its support of the Iron Arrow Society.

(Letter of William H. Thomas, Office of Civil Rights, to the University of Miami, received May 25, 1976).

The facts relied on in the above letter for the conclusion that the University provided "significant assistance" to Iron Arrow include the following: the University's provision of secretarial services, alumni mailings, and meeting rooms to Iron Arrow; the establishment of Iron Arrow by the founding President of the University of Miami in the year that the University was founded; the signature of the President of the University on the Iron Arrow constitution; the charter issued to Iron Arrow by the University; reference in the University catalogue to Iron Arrow as "the highest recognition society for men"; the existence of a monument to Iron Arrow on a mound outside the University's student union building; other campus plaques and statutes honoring Iron Arrow and its members; the University's acquiescence in the association of the University faculty as advisors and as screening committees for admission of new members to the society; and the Iron Arrow tapping ceremony, which was regularly conducted on the University's campus.

In June, 1976, the University requested additional time before compliance with the requirements of Title IX was ordered and requested of H.E.W. that it consider Iron Arrow's contention that it no longer received significant assistance from the University. The extension of time was granted, but reconsideration of Iron Arrow's position did not alter H.E.W.'s findings, and H.E.W.'s position with regard to seeking compliance by the University remained unchanged. (Plaintiffs' exhibit # 3).

In September, 1976, after meetings with Iron Arrow members, President Stanford of the University of Miami requested of H.E.W. an additional extension of time before any action was taken against the University. H.E.W. responded by allowing an extension until December 15, 1976, upon the condition that the campus tapping ceremony of Iron Arrow could not take place until the compliance question was resolved.

The University thereupon prohibited Iron Arrow from performing its tapping ceremony on the campus. Iron Arrow responded by bringing this lawsuit.

I.

Scope of review.

The regulation which H.E.W. relied on in seeking compliance by the University was adopted pursuant to 20 U.S.C. § 1682, which states, in pertinent part,

Each Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity, by way of grant, loan, or contract ... is authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with the statute authorizing the financial assistance in connection with which the action is taken. ... Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination or refusal to grant or to continue assistance under such program or activity to any
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