December 14, 1990 — Ivy Club and Tiger Inn are now pursuing separate paths in their legal battles with Sally Frank '80 as Ivy has missed its deadline to file a petition with the U.S. Supreme Court appealing its case.
Ivy's deadline to file the certiorare petition requesting that the Supreme Court take its case was Nov. 30. An official in the court clerk's office Wednesday said Ivy could no longer file a petition.
By not filing a petition, Ivy has elected to pursue its case within the federal court system, while TI is attempting to appeal directly to the U.S. Supreme Court. TI's appeal addresses a July decision by the New Jersey Supreme Court, which ordered the clubs to include women in the Bicker process.
"Ivy seeks to have a federal trial court rule on the federal constitutional issue [of freedom of association]," said Ivy lawyer Barbara Nelson, adding that the U.S. Supreme Court would serve as an appellate court in this case.
First Amendment
Though Ivy members admitted women this fall, the club is continuing to pursue its case. "They have strong beliefs in freedom of association and First Amendment rights," Nelson said, adding that "preserving First Amendment rights and admitting women are not mutually exclusive."
Frank said she believes it would have been untenable for Ivy to pursue both an appeal in the U.S. Supreme Court and a ruling in federal court. She explained that Ivy's rationale for re-opening the district court case was that the state court ruling ignored freedom of association. But, in order to appeal to the Supreme Court, Ivy would have had to argue that the state ruled incorrectly on the freedom of association issue, she added.
"I think they found themselves in a position where they couldn't do both," Frank said.
Tiger Inn attorney Russel Beatie '59 yesterday said that the path Ivy is taking through the federal court system presents many options and offers a clearer chance for a full trial, but in his judgment, was a more risky route. In order to argue a constitutional issue before the Supreme Court, a party must have been arguing the constitutional issue at every opportunity in the state process.
However, if a litigant chooses to sue over a constitutional issue in federal court, as Ivy is doing, he would have had to not press the issue in the state court.
While it would be desirable to argue the constitutional issue in the federal trial court, it would have been more risky, Beatie said. He explained that if the district court did not accept the case, then going to the Supreme Court would no longer be an option because the litigant would have already renounced the right to argue the constitutional question.
Ivy originally filed the federal court suit in 1986, arguing that as a private club, it was entitled to freedom of association, an issue that should be ruled on by a federal judge. However, a judge stayed further action on the case until state proceedings were completed.
The July New Jersey ruling completed state proceedings, and in September U.S. District Judge John Lifland ruled that Ivy could re-open its suit in district court.
However, Lifland recently stayed any ruling on the district court case pending the outcome of an appeal of his September decision in the 3rd Circuit Court of Appeals, which was filed by the State of New Jersey.
Because all parties to the case must file briefs in the circuit court case and the state must then file a response to Ivy's brief, Frank said the circuit court would not decide whether to take the case for at least 90 days, perhaps longer.
TI and the Supreme Court
Frank has until Dec. 31 to respond to TI's petition to appeal in the U.S. Supreme Court, after which the court could take from one to three months to decide whether to accept the case.
In order to keep this year's TI Bicker process male-only, the club recently filed a motion to stay the July N.J. Supreme Court decision while it is pursuing the U.S. Supreme Court appeal. Frank and the state have until noon Monday to file their responses to the motion.
"If some court doesn't intervene, or if we don't make some change in the procedural process, it is clear that we will not be able to conduct Bicker in the traditional manner," Beatie said.
If the court does not grant the stay, TI would be forced to abide by the New Jersey ruling and include women in Bicker — if it is held.
TI president Stockton Williams '91 on Monday said he would not comment on whether TI will begin Bicker during the first week of February, when it usually occurs.
If the court were to deny the stay, the club would examine the order before proceeding with any change, Beatie said. "TI does not want to violate any order or any statute in determining its course of action," he added.
Frank said the court should grant the stay "only if the court wants to hear the full appeal," because "every year that TI remains all-male harms the women of Princeton."
Justice David Souter, who is responsible for all motions from the 3rd Circuit, could rule on the stay beginning Monday afternoon until the beginning of February.
If Souter denies the motion, TI could present the motion to another justice, who would likely refer the ruling to the rest of the court, Frank said.
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