Ridgefield Women's Political Caucus, Inc. v. Fossi, Civ. No. B-74-425.

• Decision Date: 02 October 1978
• Docket Number: Civ. No. B-74-425.
• Citation: 458 F. Supp. 117
• Court: U.S. District Court — District of Connecticut
• Parties: The RIDGEFIELD WOMEN'S POLITICAL CAUCUS, INC., et al. v. Louis J. FOSSI, Individually and as First Selectman of the Town of Ridgefield, et al.

458 F. Supp. 117

The RIDGEFIELD WOMEN'S POLITICAL CAUCUS, INC., et al. v. Louis J. FOSSI, Individually and as First Selectman of the Town of Ridgefield, et al.

Civ. No. B-74-425.

United States District Court, D. Connecticut.

October 2, 1978.

Beverly J. Hodgson, Koskoff, Koskoff, Rutkin & Bieder, Bridgeport, Conn., for plaintiffs.

Richard J. Fricke, Ridgefield, Conn., for defendants.

MEMORANDUM OF DECISION

NEWMAN, District Judge.

This suit raises the question of whether, under the circumstances of this case, a town may constitutionally convey property for a nominal consideration to a private organization that discriminates on the basis of sex. Plaintiffs Carol Octeau, Barbara Wardenburg, and Allison McLean are residents and taxpayers of the Town of Ridgefield, Connecticut, and plaintiffs Nan Octeau and Elizabeth Parkhurst are minor residents of Ridgefield; plaintiff Ridgefield Women's Political Caucus, Inc. is an organization of women, a purpose of which is to abolish discrimination based on sex in Ridgefield. Defendants are the Selectmen of the Town. Plaintiffs seek to enjoin defendants from "conveying, granting or otherwise transferring any interest in real property owned by the Town of Ridgefield to the Ridgefield Boy's Club, Inc.," an organization alleged to restrict membership to males. This action is brought under 42 U.S.C. § 1983, with jurisdiction based on 28 U.S.C. § 1343(3), and is now before the Court on cross motions for summary judgment.

The parties have entered into a stipulation of facts for the purpose of the summary judgment motions. The Town of Ridgefield owns approximately 5.8 acres of land on Governor Street in Ridgefield, valued in excess of fifty thousand dollars. On December 1, 1957, the Town leased a portion of that property to the Ridgefield Boy's Club for a term of twenty-five years at an annual rental of one dollar, and in December, 1967, the Town increased the area of land included in the lease to 4.9 acres. The original lease provided that the lessee could, at its option, renew the lease on the same terms for an additional term of twenty-five years, and that the lessee could construct "a suitable building on the premises to provide adequate facilities incidental to the operation of the Boy's Club." Subsequently the Boy's Club constructed a building that contains recreational and other facilities.

On November 20, 1974, the Town held a town meeting for the purpose of deciding whether the Town should authorize the Board of Selectmen to convey to the Boy's Club the 5.8 acres of land on Governor Street for the price of one dollar. This conveyance was approved at the meeting. However, in March, 1974, the plaintiffs brought suit to enjoin the conveyance of the property to the Boy's Club, and this Court deferred decision on the plaintiffs' application in order to determine whether the Ridgefield Boy's Club would admit females to membership in the Club. On or about December 30, 1974, plaintiffs Elizabeth Parkhurst and Nan Octeau applied for membership, and on January 8, 1975, the Board of Directors of the Boy's Club rejected the two applications, stating that

whereas the Ridgefield Boy's Club does not have the physical capabilities nor financial resources nor an adequate staff to provide a duplicate program, the board of directors of the Ridgefield Boy's Club is unable to accept application for common membership from other than boys at this time.¹

Ten other girls who subsequently applied for membership in the Boy's Club were also denied admission. Thus, as of September 12, 1977, the date of the stipulation, the Ridgefield Boy's Club had accepted no girls as regular members. However, at a point in time not specified in the stipulation, the Boy's Club admitted at least some girls as associate members. Girls admitted as associate members were permitted to use the Boy's Club's facilities on Mondays and for occasional special events; the boys admitted as regular members were permitted to use the Club's facilities on Tuesdays through Sundays and for occasional special events. However, at oral argument on the cross motions for summary judgment, the Court was informed that the Club's program for girls had been discontinued due to lack of participation.

Plaintiffs claim that the conveyance of the Town's property by the defendant selectmen² to the Boy's Club constitutes governmental support of sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.³

Several distinctions must be drawn between the issues in this case and in similar cases in order to bring the dispute into sharp focus. This is not an attack on the discriminatory practices of a private organization on the ground that the private organization has received so much governmental support that the private organization is subject to Fourteenth Amendment limitations. See Wahba v. New York University, 492 F.2d 96 (2d Cir. 1974); Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d Cir. 1973). The plaintiffs are not suing the Boy's Club in an effort to strike down its discriminatory admissions policy. That type of attack would raise the issue of whether the Boy's Club is subject to the Fourteenth Amendment. This attack is upon the financial benefit that the Town seeks to confer upon the Boy's Club. Unquestionably the Fourteenth Amendment applies to official action of the Town, and the issue is whether, in the circumstances of this case, significant financial support by a town to a private organization that limits membership to boys violates the Fourteenth Amendment. The distinction between suits against the discriminating private organization and suits against the public body offering public assistance to such organizations has been pointedly recognized in this Circuit. See Jackson v. Statler Foundation, 496 F.2d 623, 637 (2d Cir. 1974) (Friendly, J., dissenting from denial of reconsideration en banc).

Within the broad area of challenges to governmental aid to private organizations that discriminate, several distinctions must be made. This case does not involve an attack on governmental services provided generally to all private organizations, such as police and fire protection. See Norwood v. Harrison, 413 U.S. 455, 465, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973). A virtual gift of valuable land is an even greater departure from "generalized services" than the loan of textbooks in Norwood, ibid. Nor does this case involve a public benefit funneled through a discriminating private organization to discrete projects whose benefits are available to all. See New York City Jaycees, Inc. v. United States Jaycees, Inc., 512 F.2d 856, 859 (2d Cir. 1975).

At one level of analysis, this case is an attack on a public financial benefit alleged to support private discrimination. As such, a substantial challenge is presented. Inquiry would focus on whether the private entity is receiving significant support and whether the entity is discriminating. See Gilmore v. Montgomery, 417 U.S. 556, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974); Norwood v. Harrison, supra. While the stipulated facts do not disclose the relative significance of the proposed donation to the total assets or operating budget of the Boy's Club, there can be little doubt that the significance of the proposed assistance exceeds that of the textbook loans in Norwood. Here, as in Norwood, there is no evidence that lack of the public benefit would cause abandonment of the discrimination, but the Constitution does not permit public funds "to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued well-being of that school. A State may not grant the type of tangible financial aid here involved if that aid has a significant tendency to facilitate, reinforce, and support private discrimination." 413 U.S. at 466, 93 S.Ct. at 2811. Of course, that observation was made in the context of racial separation in education, a context where separation is inherently unequal. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). No comparable ruling has been made as to whether separation of the sexes in undergraduate education is an unlawful discrimination.⁴ See Vorchheimer v. School District of Philadelphia, 532 F.2d 880 (3d Cir. 1976), aff'd by an equally divided court, 430 U.S. 703, 97 S.Ct. 1671, 51 L.Ed.2d 750 (1977) (upholding separate but substantially equal high school educational opportunities for boys and girls).

But at a more basic level of analysis, this case is an attack on a public financial benefit that is alleged not only to support private discrimination, but also to discriminate of its own force because it benefits boys without any comparable benefit for girls. There is no serious dispute that the public benefit the Town proposes to provide for boys has no equivalent counterpart for girls.⁵ While it may be assumed that the public educational system of Ridgefield is not devoid of all recreational opportunities for girls, there is no claim that Ridgefield provides for girls anything like a clubhouse with an organized program of varied after-school activities such as are available to boys through the Boy's Club. Nor can there be any serious claim that the one-day-a-week access for girls formerly available at the Boy's Club on Mondays provided opportunity of substantial equality to that available to boys. Whatever the rough contours of "separate but equal," they are not met by a policy of "never on Sunday or Tuesday through Saturday."

Governmental action that benefits members of only one sex is scrutinized for constitutional validity under a test that requires the discrimination to bear a fair and substantial relationship to a legitimate governmental objective. Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). Ridgefield contends that a substantial public purpose is...