Supreme Court denies 'Yale 4' appeal

BY UNA AU

ZANDER DRYER & NICK ZAMISKA/YH

While most would consider the quirks of Yale's undergraduate accommodations the staples of a good time, a select few considered them to be the stuff that lawsuits are made of.

The saga began in 1997 when five Orthodox Jewish Yalies felt that living in Yale's residential colleges could cause them to violate the tenets of their faith. They protested. They sued. They appealed. And on Sat., Oct. 6, before the U.S. Supreme Court, they lost.

One high-powered Washington attorney, one trial, one Time magazine article, two appeals and four years later, the Yale Four (formerly the Yale Five) lost their long battle with the University over Yale's student housing policy. The problem had taken root not four, but, rather, 32 years ago.

The summer of 1969 was over, but its fall bore the promise of revolution for Yale University. For the first time in the University's 268 year history, Yale men arrived on campus with Yale women.

The 500 women accepted by Yale that semester marked many firsts, including the dawn of the co-educational dormitory. Sixty women were assigned to each of the 12 residential colleges where they were expected to live harmoniously with their fellow male students.

In 1997, five Orthodox Jewish freshmen, Lisa Friedman SY '00, Batsheva Greer '00, Jeremy Hershman SY '00, Elisha Hack ES '02, and Rachel Wohlgelernter TD '00, threatened to file a lawsuit against Yale University for requiring freshmen and sophomores to live on-campus in co-ed dorms.

According to Yale regulations, students who are over 21 or married can live off-campus but all others must live in residential colleges for their first two years of enrollment. The five felt that co-ed bathrooms coupled with Yalies' liberal attitude toward guests of the opposite sex would force them to violate tznius, the Jewish tenet of modesty. They pushed vehemently for off-campus housing, but Yale denied, saying that a cohesive residential college experience is fundamental to a Yale education.

This policy is clearly detailed in all prospective students' reading material as well as throughout the admissions process.

It unambiguously states in the Yale College Blue Book that "the colleges are more than living quarters; they are small communities of men and women, whose members know one another well and learn from one another." Potential students who oppose this policy explicitly would be well advised to seek their education elsewhere.

However, Yale made several efforts to compromise. It offered the students accommodations that the Administration thought would help to preserve modesty within the dorms, including the assignment of suites with internal bathrooms.

The students rejected these concessions, and on Wed., Oct. 15, 1997, filed a lawsuit naming Yale University, Yale College Dean Richard Brodhead, BR '68, GRD '72, and Dean of Student Affairs Betty Trachtenburg as defendants. Shortly before, Wohlgelernter married, exempting her from her on-campus housing obligations and reducing the Yale Five to four.

Prominent Washington lawyer Nathan Lewin of Miller, Cassidy, Larroca and Lewin filed a thirty-page list of eight legal claims. In the suit, Lewin alleged that Yale was religiously discriminating against the students by refusing to grant them an off-campus housing alternative.

He asked the court to abolish Yale's housing policy, and to force Yale to reimburse the students as well as pay for their legal fees.

The crux of Lewin's argument was that the Federal Fair Housing Act of 1968, which protects tenants from religious discrimination by their landlords, prohibits Yale from forcing students to live on campus without proper religious accommodations.

Although the case centered partly on religious discrimination, the Yale Four made additional claims. In an argument considered "creative" by political science lecturer Mark Stein, Lewin accused Yale of "monopolizing" and "tying", both of which are violations of the Sherman Antitrust Act of 1890.

Lewin claimed that Yale was attempting to monopolize the New Haven student housing market as well as illegally restraining trade by forcing students to buy their rooms along with their education. Stein notes, "It was an attempt to bring in a claim on some basis that wasn't really the basis of their complaint."

The Yale Four also failed to establish that Yale is an agency of the state of Connecticut and is therefore bound by the laws that govern public schools. "A private school such as Yale has less of a responsibility to accommodate the free exercise of religion," Stein explains.

The students' federal constitutional claims—that they were entitled to the free exercise of religion, equal protection of the laws, due process of law, and the implied right to privacy—are based wholly on the principle that Yale is a state actor, not a private one.

Despite its status as a private institution, the students argued that Yale's close ties with Connecticut make it a de facto agent of the state.

They raised the fact that Yale is chartered by special legislation that is actually confirmed in the Connecticut Constitution.

They also cited Yale's obligation to submit its annual budget and financial report to the Connecticut legislature as well as the positions of the Governor and Lieutenant Governor as members ex officio of the Yale Corporation, the University's highest governing body.

The Four argued that based on these significant relationships between Yale and the state, Yale remains a government entity.

In the summer of 1998, the U.S. Second District Court ruled that the case of the Yale Four failed to provide sufficient grounds for trial.

The justices specifically addressed the Sherman Antitrust claim, stating, "...if a parietal rule requiring some students to reside in college or university housing runs afoul of the antitrust laws, it has largely escaped the notice of the many colleges and universities...and the notice of the millions of students who have attended those institutions...since the Sherman Act was enacted."

Undaunted, the students pressed on, with Lewin presenting their argument before the U.S. Court of Appeals for the Second Circuit in March of 1999. On Dec. 28, 1999, a panel of three judges reaffirmed the 1998 U.S. District Court decision on the basis that the plaintiffs could have chosen to attend another university if they felt that Yale's housing policy infringed upon their Jewish value of tznius.

The Yale Four made one final case in front of the United States Supreme Court. The Court ruled on Sat., Oct. 6 in favor of Yale University, at long last ending the four year-old legal battle.

The reaction of the student body to this extended drama has subsided, mostly because the students—who were freshmen when this whole episode began—have since graduated. When the case was most visible, the majority of the student body sided strongly with Yale, arguing that a true Yale education extends far beyond the 36-credit course-load to include social interactions among the diverse and eclectic student body.

However, a small but vocal minority insisted that students should have the right to a Yale education without having the various eccentricities of Yale's housing policy forced upon them.

Rabbi James Ponet, the Howard M. Holtzmann Jewish Chaplain at the University, echoes that sentiment, remarking, "It's my hunch that there are a lot of students who wouldn't mind if we altered the living situations...students in the Christian community, Muslim students...who on religious grounds might prefer to have enclosed bathrooms. I also believe there are secular students who might feel more comfortable. It never struck me as a uniquely Jewish situation."

With the conclusion of the court fight, Yale has put this issue behind it. As Dean Brodhead puts it, "Some part of me was amazed to learn that this had a longer life in the courts than it did at this institution. It always had a bigger life in publicity than it did here."

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