The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
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"),*fn1 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.*fn2 (See Galvez Decl. Ex. A.)
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 "non-discriminatory 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).)*fn3 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, previously pledged by the chapter and who has complied with all the requirements of the chapter and Supreme Board of Governors, each chapter determining for itself whether such election shall be by a unanimous vote of the members of the chapter or with negatives [sic] votes not exceeding 10% of its members; provided, however, that any chapter shall have the discretion to require up to three (3) negative votes for such an election; provided, however, the Supreme Board of Governors shall be empowered to waive and/or suspend such requirements to comply with the rules, regulations and declarations of the administrators of the college or university where any such chapter or colony is located or to be located [emphasis added.] beliefs and distinctly personal aspects of their lives." (Khaychuk Decl. ¶¶ 32--33.) Plaintiffs explain that "[t]he single-sex, all-male nature of the Fraternity is essential to achieving and maintaining the congeniality, cohesion and stability that enable it to function as a surrogate family and to meet social, emotional and cultural needs of its members. Furthermore, non-platonic, i.e., romantic relationships between members and the inevitable jealousies and other conflicts would pose a grave threat to the group's brotherhood, thus, maintaining the Fraternity's brotherhood is best achieved by maintaining an all-male membership." (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, "We explain to the rushes that we're a Jewish fraternity, and what we stand for. If they're okay with that, then obviously they accept that we're a Jewish fraternity, and then we just look for the qualities that they would better us as a fraternity." (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.
Individuals become members of the Fraternity through processes known as "rush" and "pledging." Plaintiffs define "rush" as the "process by which a fraternity group communicates with prospective members and recruits and selects new members and during which prospective members evaluate the group and their own interest in joining." (Khaychuk Decl. ¶ 27.) Plaintiffs define "pledging" as the "period of transition between (a) the acceptance of an invitation to membership in a fraternity chapter/colony and (b) the conferral of full membership." (Id. ¶ 28.) Pledging, which occurs twice per year, lasts one to five weeks. During this time, transitional members, or "pledges," get to know one another and the members and, through weekly meetings conducted by a "pledge master," are taught about and tested on AEPi's history, purposes, and values. (See Khaychuk Dep. at 35--37, 111--14, 133.) AEPi's Constitution provides:
The course of pledge training may include duties about the house and other duties for the chapter, but shall not include any personal service for members of the chapter or visiting alumni. Extra pledge duties may be imposed as discipline, but no pledge shall be subject to corporal punishment of any kind. Practices which have been known as "Hell Week" and any similar practices are strictly forbidden.
No pledge shall be subject to paddling or any other form of corporal punishment or be placed in physical peril. Undignified methods, either private or public, such as quests, treasure hunts and road trips are specifically prohibited. (Am. Compl. Ex. 1, art. XII §§ 1--2.)
Plaintiffs explain that selectivity in membership is achieved through several steps involving mutual decisions by the Fraternity and potential members. During rush, members will extend an invitation to attend a rush event to around ten percent of men they meet on CSI's campus, and around one third of such men have become acquainted with members through attending Hillel or Jewish Awareness Movement activities. Most, but not all, of such men are invited to attend additional rush events, and not all invited men return. During the rush process, each prospective member goes through a structured interview during which he is asked about his interest in joining the Fraternity, family and personal life, academic and career plans, religion and attitude towards religion, views on social issues, and what he seeks from membership in the Fraternity. The majority of men who attend repeated rush events are asked to join the Fraternity, and the final decision offering each bid is made by a member of the Fraternity's executive committee after discussion with all members, ensuring that serious dissent is not expressed by more than one member. As an example, around eight to twelve men per semester might be asked to join the Fraternity and start the pledging process.*fn4 Of these, around six to ten might decide to go through pledging, and around five to six might be initiated as members. Sometimes, a pledge may drop out or, occasionally, the Fraternity "depledges" a man, i.e., halts the membership process with him. (Khaychuk Reply Decl. ¶¶ 9--15.)
As a group, plaintiffs participate in a variety of activities, both with and without non-members, and ranging from formal to informal. The Fraternity excludes non-members from "meetings at which it discusses whether to offer membership to a man; meetings at which the ceremony commencing pledgeship is performed; meetings at which the ceremony initiating a man into full membership is performed; meetings at which it considers terminating a man's membership; and from certain other business meetings." (Khaychuk Decl. ¶ 40.) The initiation ceremony includes rituals about which only members are allowed to know. (Khaychuk Dep. at 39.) On a given week, around half of the Fraternity members, including those who are not Jewish, attend a weekly meeting with a Rabbi organized by the Jewish Awareness Movement at CSI. Once, during pledging, pledges built a sukkah,*fn5 which Mr. Khaychuk testified was part of the Fraternity's expression of its Jewish message, with another Jewish campus group. Another time, the Fraternity invited the Rabbi from the Jewish Awareness Movement to speak about Israel at one of the Fraternity's meetings. Plaintiffs occasionally have social parties to which they invite non-members. These parties are publicized by word of mouth and flyers. (Id. at 113, 120--21, 124--25, 127.) Plaintiffs further describe the nature of their activities as follows:
While social events to which we invite non-members are certainly a part of our activities, since one purpose of a social fraternity is to develop a variety of social skills, they are not a major part of our activities, occurring perhaps once or twice a month. In contrast, we have our colony business meetings weekly and less formal gatherings of the members (brothers) on at least a weekly basis and often more than once a week. In addition, through much of the semester, there are activities involving the teaching of, and getting to know, the pledges on a weekly basis or more frequently, and a community service event an average of one per semester. As should be apparent, social events to which we invite non-members are a minority of our activities. (Khaychuk Reply Decl. ¶ 8.)
On or about March 3, 2004, the Fraternity applied to be chartered and officially recognized by CSI. By memorandum dated March 29, 2004, Carol Brower, Director of the Office of Student Life at CSI, denied the Fraternity's application because it did not comply with CSI policy: "Membership in a chartered club must be open to all students. Because your constitution appears to exclude females, it contravenes the College's non-discrimination policy. . . . In addition, I note that your proposed constitution provides for the practices of rushing and pledging. College policy . . . prohibits rushing and pledging." (Am. Compl. Ex. 6.) CSI delineates the following policies in its "Club Chartering Packet":
In order for an organization to be officially recognized at the College of Staten Island, membership and participation in it must be available to all eligible students of the College. In addition, in order to be recognized, each organization must agree not to discriminate on the basis of age, alienage or citizenship, color, gender, differing ability, national or ethnic origin, race, religion, sexual orientation, veteran or marital status, or social class.
Furthermore, the practices commonly referred to as pledging and rushing are not permitted. (Id. Ex. 5 at 6 (emphasis added).)
The benefits and privileges that CSI confers to recognized student organizations include the use of CSI's facilities, services, bulletin boards, and centralized mailbox; the opportunity to apply for special funding through the CSI Student Government or to solicit contributions outside of CSI; the right to use the CSI name in conjunction with the organization's name; the inclusion of events in monthly calendars and the ability to arrange news coverage through the Office of Student Life; the use of workspace in the Campus Center or meeting space in CSI's academic buildings; and eligibility for insurance through the CSI Association. (Am. Compl. Ex. 5 at 3.) Plaintiffs explain that denial of official recognition has precluded them from setting up tables at new student orientations, receiving funds from CSI, and being able to hang banners or chalk announcements on campus. Plaintiffs claim that they were specifically prohibited from handing out flyers to students on campus. Plaintiffs explain that having to hold meetings off-campus has caused difficulty for students who depend on public transportation. (Khaychuk Reply Decl. ¶¶ 3--5. )*fn6
More than a year after the denial of the club chartering application, plaintiffs filed the instant action on June 17, 2005, claiming, under 42 U.S.C. § 1983, that the defendants have violated their rights to intimate and expressive association and equal protection. Plaintiffs move for a preliminary injunction on these claims, "requiring [d]efendants . . . to recognize the Fraternity on behalf of CSI, to grant the Fraternity a charter and all the rights and privileges accorded recognized/chartered student organizations at CSI, and to refrain from discriminating against [p]laintiffs on the basis of their membership practices or on any other unlawful basis." (Am. Compl. ¶ 142.) Plaintiffs also seek monetary and injunctive relieve under 42 U.S.C. § 1983 against CSI President Marlene Springer ("Springer") and Carol L. Jackson ("Jackson"), Vice President for Student Affairs at CSI, in their individual capacities, for alleged violations of plaintiffs' constitutional rights. Plaintiffs' last remaining claim*fn7 is that defendants violated Title IX of the Civil Rights Act of 1972, 20 U.S.C. § 1681(a). Defendants cross-move to dismiss plaintiffs' claims under Fed. R. Civ. P. 12(b)(6).
II. Motion to Dismiss Standard
In analyzing the plaintiffs' motion for a preliminary injunction below, the court also considers defendants' cross-motion to dismiss.
A motion to dismiss under Fed. R. Civ. P. 12(b)(6), for "failure to state a claim upon which relief can be granted," must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45--46, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957). The court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in the plaintiff's favor. E.g., Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999).
III. Preliminary Injunction Standard
A party seeking a preliminary injunction must show "(1) that it will be irreparably harmed if an injunction is not granted, and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of the hardships tipping decidedly in its favor." Bronx Household of Faith v. Bd. of Educ. of the City of New York, 331 F.3d 342, 348--49 (2d Cir. 2003). Where, as in the present case, a mandatory injunction is sought, i.e., one that seeks to alter rather than maintain the status quo, a heightened ...