Chi Iota Col. of Alpha Epsilon v. City Univ. Of Ny, 05-CV-2919(DLI)(MDG).
| Decision Date | 11 August 2006 |
| Docket Number | No. 05-CV-2919(DLI)(MDG).,05-CV-2919(DLI)(MDG). |
| Citation | 443 F.Supp.2d 374 |
| Parties | CHI IOTA COLONY OF ALPHA EPSILON PI FRATERNITY, Alex Khaychuk, Konstantin Novodorsky, Vitaly Ushrenko, Gennady Akselrud, Aleksander Baranov, David Borowik, Roman Burtman, Danny Kane, Mike Lantino, Josh Malek, Danny Markowitz, Even McKiernan, Ryan Richmond, Billy Ruppert, Brian Thomson, Jonathan Torres, Steve Verbitsky, and Moshe Zeitouni, Plaintiffs, v. CITY UNIVERSITY OF NEW YORK, Marlene Springer, Carol L. Jackson, and Carol Brower, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Gregory F. Hauser, Alston & Bird LLP, New York City, for Plaintiffs.
Eugene Benger, NYS Office of the Attorney General, Stephen Michael Jacoby, New York State Attorney General, Litigation Bureau, New York City, for Defendants.
This case concerns the constitutional limits of a state university to deny official recognition to an all-male social fraternity group on the basis that such group violates the university's policy against gender discrimination. Before the court is plaintiffs' motion for a preliminary injunction and defendants' cross-motion to dismiss plaintiffs' claims pursuant to Fed.R.Civ.P. 12(b)(6). The court considers plaintiffs' claims, under 42 U.S.C. § 1983, that defendants violated their rights to intimate and expressive association and equal protection. The court also addresses plaintiffs' claim under Title IX of the Civil Rights Act of 1972. The court has received an amici curiae memorandum submitted by the North-American Interfraternity Conference and the National Panhellenic Conference in support of plaintiffs' claims. The court held oral argument on March 1, 2006, during which plaintiffs and defendants agreed that a hearing was unnecessary, and the court considers the record before it sufficient at this time. For the reasons set forth below, the court grants plaintiffs' motion for a preliminary injunction. Defendants' motion to dismiss is denied with respect to plaintiffs' claims of intimate and expressive association but granted with respect to plaintiffs' equal protection and Title IX claims. The claims against Marlene Springer and Carol L. Jackson in their individual capacities, for monetary relief, are dismissed on grounds of qualified immunity.
The individual plaintiffs in this action are male students at the College of Staten Island ("CSI"), a senior college of defendant City University of New York ("CUNY"),1 who are members of the Chi Iota Colony, a group in the process of becoming a chapter of the international college social fraternity Alpha Epsilon Pi ("AEPi"). The factual background presented herein draws primarily from deposition testimony and declarations from Alex Khaychuk ("Mr.Khaychuk"), one of the named plaintiffs and President of Chi Iota Colony from late spring 2004 to fall 2005.
Plaintiff Chi Iota Colony of AEPi (hereinafter the "Fraternity") was formed around October 2002. Currently, there are eighteen members in the Fraternity, and plaintiffs estimate that the Fraternity is unlikely to exceed fifty members, though there is no set membership limit. (Khaychuk Decl. ¶¶ 14, 23-24.) CSI has an undergraduate student population of around 11,100, approximately 4500 of which are males.2
Plaintiffs state that the Fraternity's purpose and membership requirements have been established to be consistent with those of AEPi. (Khaychuk Decl. ¶ 19.) AEPi, which describes itself as "the Jewish Fraternity of North America" but is "nondiscriminatory and open to all who are willing to espouse its purpose and values," was founded in 1913 "to provide opportunities for the Jewish college man seeking the best possible college and fraternity experience." The Mission Statement of Alpha Epsilon Pi, http://www.aepi.org/information/mission.html (last visited August 11, 2006). AEPi's basic purpose is enabling "a Jewish man to be able to join a Jewish organization whose purpose is not specifically religious, but rather social and cultural in nature." (Id. AEPi associates itself with Jewish organizations such as the Foundation for Jewish Campus Life/International Hillel and the Israel on Campus Coalition. AEPi Partnerships, http://www.aepi.org/information/partner.html (last visited August 11, 2006). AEPi has also partnered with the organization "Taglit-birthright israel" to send members on cost-free trips to Israel. (Id.)
The Supreme Constitution of AEPi provides that membership in a particular chapter is conferred to "any male student attending the college or university where such chapter is located." (Am. Compl. Ex. 1, art. II § 1(a)(1).)3 AEPi's Constitution states as the group's purpose ... to promote and encourage, among its members:
Personal perfection, a reverence for God and an honorable life devoted to the ideal of service to all mankind; lasting friendships and the attainment of nobility of action and better understanding among all faiths;
The pursuits of those benefits which derive from vigorous participation in university and college activities and from pleasant application to literary, cultural and general social undertakings; and
The unbiased judgment of our fellows, not by their rank nor worldly goods, but by their deeds and their worth as men.
(Id. pmbl.) The Fraternity's bylaws present the following purpose:
To foster and promote brotherly love, to inaugurate a spirit of cooperation and helpfulness, to create a better understanding among our brothers, [and] to encourage vigorous participation in university, college and general activities in our community, to the mutual advantage of all concerned... .
(Id. Ex. 2 pmbl.) Plaintiffs further describe the Fraternity's purpose as achieving a "lifelong interpersonal bond termed brotherhood," which "results in deep attachments and commitments to the other members of the Fraternity among whom is shared a community of thoughts, experiences, beliefs and distinctly personal aspects of their lives." (Khaychuk Decl. ¶¶ 32-33.) Plaintiffs explain that (Id. ¶¶ 34-35.)
Plaintiffs acknowledge that there have been at least two bisexual members in the Fraternity, though, to their knowledge, there have never been any homosexual members. Mr. Khaychuk explains that potential members are asked about their sexual orientation, partly to gather facts about the individual and partly because it may affect the individual's fitness to become a member, though sexual orientation may or may not affect the individual's chances at receiving a bid. It is unclear when the two members may have indicated to others that they were bisexual. (Khaychuk Dep. at 87-97.) Mr. Khaychuk explains that, had he known that there were bisexual members in the Fraternity, it "might have made [him] uncomfortable" but that he did not know whether it would have affected his choice to join the Fraternity. (Id. at 108.) Mr. Khaychuk was asked whether admitting a lesbian would be acceptable to the Fraternity, as the chance of romantic relationships or jealousies would presumably be eliminated, to which he replied that "[h]aving a female in the fraternity is an issue itself" and that a lesbian is "still a female." (Id. at 103-04.) Mr. Khaychuk further explains that a man "could be close to a female as friends, but in a fraternity it's a different kind of bond." (Id. at 138.) Mr. Khaychuk testified that there are certain matters he might share with a fellow member, or "brother," in the Fraternity that he would not share with his family and vice versa. (Id. at 145.)
When asked whether the Fraternity expresses any kind of public message, Mr. Khaychuk replied that the group's public message is that it is a "predominantly Jewish male fraternity." (Khaychuk Dep. at 120.) Mr. Khaychuk explains that, in private meetings, the Fraternity members "are not extremely religious, but [they] do talk about things that [they] contribute to the community, an expression of Judaism." (Id. at 124.) Members sometimes wear t-shirts identifying themselves as members of AEPi. The Fraternity receives assistance from the AEPi national organization, for example concerning member recruitment and running the Fraternity, and sometimes receives visits from an AEPi national advisor. (Id. at 152.)
In accordance with the mission and purposes of the Fraternity, in evaluating prospective members, the Fraternity considers congeniality, social compatibility, and the man's level of interest in joining the Fraternity, potential for loyalty and commitment to AEPi and its purposes, existing relationships with members, character, and potential for affection, admiration, cooperation, and respect among members. (Khaychuk Decl. ¶ 38.) Neither the Fraternity nor AEPi requires members to be Jewish, and the Fraternity does have non-Jewish members, but Mr. Khaychuk remarks, (Khaychuk Dep. at 69.) However, Mr. Khaychuk also comments that extending bids to non-Jewish potential members has been "an issue with some brothers" in the Fraternity. (Id. at 75-76.) Membership is for life, unless a member is expelled for disciplinary reasons. No man who is a member of another college social fraternity may become a member of AEPi.
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