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The College of Staten Island can enforce its nondiscrimination policy by barring from campus facilities a fraternity that does not admit women but holds events at mixed-gender venues such as strip clubs. The Second Circuit U.S. Court of Appeals reversed a lower court for applying the wrong standard and said the fraternity’s “interests in intimate association are relatively weak” while the City University of New York college’s policy “serves several important state interests.” The panel in Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 06-4111-cv., vacated an injunction blocking the college from enforcing the policy in June. On Thursday, Second Circuit Judges Pierre Leval and Guido Calabresi, and Judge John Gibson of the Eighth Circuit, sitting by designation, explained their reasoning in a 23-page opinion. The decision will be published Wednesday. Chi Iota is a 19-member Jewish fraternity that sued the City University of New York, the college and several officials for not granting it official recognition. Recognition gives student organizations, among other advantages, access to college facilities, use of campus bulletin boards and the chance to apply for special funding through the college’s student government. Chi Iota, whose membership consists mostly of nonpracticing Jews but also has several current members who are not Jewish, is devoted to “the inculcation of the traditional values of men’s college social fraternities … community service, and the expression of Jewish culture.” Its president in court papers defended the “selective, single-sex, all-male nature of the Fraternity” as essential to “achieving and maintaining the congeniality, cohesion and stability that enable it to function as a surrogate family and to meet [the] social, emotional and cultural needs of its members.” The fraternity also has activities that include nonmembers, including women, and a “rush” week every February during which it has planned events that include laser tag, a visit to a strip club and a karaoke party. Eastern District Judge Dora Irizarry granted the fraternity’s motion for a preliminary injunction, finding it was substantially likely that Chi Iota qualified as a “intimate association” and forcing it to admit women would burden its associational rights. Assuming such a burden, Judge Irizarry concluded, the college’s intrusion should be subject to the exacting “strict scrutiny” First Amendment standard of review. That was the wrong standard, Judge Leval said for the circuit. As expressed by the U.S. Supreme Court in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), courts considering whether a government rule infringes on the freedom of association engage in a balancing test, considering “the strength of the associational interest,” the “degree to which the rule interferes with those interests,” the “public interests or policies served by the rule” and “the tailoring of the rule to effectuate those interests or policies.” “Rather than balancing [the college's] interests in its non-discrimination policy against the Fraternity’s interests in opposing the policy, the district court adopted a categorical approach: Either the policy affected a constitutionally protected liberty or it did not,” Leval said. He added later, “In other words, the district court made no distinction between association claims that are strongly protected by the First Amendment and those that are weakly protected; as long as some First Amendment interest was implicated in the policy, the policy would be subjected to the rigors of strict scrutiny.” Instead, Leval said, “Associational claims populate all ground from the heart of the First Amendment to its periphery, resisting facile attempts to divide them neatly into two piles.” Chi Iota is small but hopes to grow to 50 pledges per semester, so its “size limitation is a product of circumstances, not a desire to maintain intimacy,” he said, and “the degree of selectivity” the fraternity employs in choosing new members “compares unfavorably with that employed in creating the strongest of associational interests, as in the cases of marriage or adoption.” The purpose of the group is “generally inclusive” and tries to promote “broad, public-minded goals that do not depend for their promotion on close-knit bonds,” he said, and while the fraternity also seeks to “foster personal, intimate relationships,” the “same can be said of nearly any student group in which members become close friends.” And while some of the groups activities take place only among members, “it also involves non-members in several crucial aspects of its existence,” he said. It was important to the court that the college’s nondiscrimination policy only interfered with the associational rights of Chi Iota in a “limited” way. For example, “The fraternity has not shown that the unavailability of school facilities makes it impossible, or even difficult, to find suitable places for meetings.” The college’s interests in enforcing the policy was substantial, the court concluded, and the means it chose to pursue its goals were “well tailored to effectuate those interests.” The court then vacated the preliminary injunction and remanded the case for further proceedings. Gregory Hauser of Wuersch & Gering represented the fraternity. While disappointed in the result, Hauser said Thursday that the “good news” was that the court affirmed the fraternity is an intimate association. It did not, however, grant the fraternity the level of constitutional protection his clients sought, he said. Hauser added that he expected the fraternity “will still pursue its claim for protection of its right to expressive association” on remand “as well as consider other options such as applying for certiorari from the U.S. Supreme Court.” Attorney General Andrew Cuomo issued a statement saying, “We are pleased that the court has recognized the school’s right to deny funds and official recognition to a student organization which discriminates against women. This opinion rightly enables the College of Staten Island to pursue their commitment to creating a community devoid of prejudice.” Solicitor General Barbara Underwood, Assistant Solicitor General Gregory Silbert and Deputy Solicitor General Michelle Aronowitz represented the state. Mark Hamblett is a reporter with the New York Law Journal, a Recorder affiliate.

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