Washington. Princeton's Tiger got tamed the other day. This particular Tiger is the legendary Tiger Inn, located on Prospect Avenue just off the campus. For the past hundred years, its dining tables have served men only. Henceforth women must be admitted to the revelries.
This is regrettable, or so it seems to me, and I raise a forlorn three cheers for the good fight Tiger has made. The club has spent a modest fortune in its effort to preserve a right of free association that is precious to all of us. In the end, the club lost, and so did we all.
The facts were not greatly in dispute. It was the interpretation placed upon the facts that led to 12 years of litigation. Some of the facts clearly support Tiger's contention that it is a separate private entity. Other facts support the contrary position that the club is tied closely to Princeton in an "integral and symbiotic relationship."
The story dates from 1856, when Princeton's refectory burned. Students were required to eat out, chiefly at nearby boarding houses. The houses gradually took on the nature of clubs. Tiger Inn, founded in 1890, built its clubhouse on private land in 1894. Today it is one of 12 dining clubs that collectively provide meals for about two-thirds of the juniors and seniors.
Tiger makes these points to demonstrate that it is not a "place of public accommodation" under New Jersey law: It derives no financial support from Princeton. It pays its own taxes, hires its own employees, chooses its own members from a system known as "bickering." The club is both exclusive and selective; its functions are for members only, and its facilities are rented for special occasions solely to members and their families. The New York Times reports that the Tiger charges active members an initiation fee of $3,500.
On the other hand, the Tiger Inn exists because Princeton exists. The twice-a-year rush weeks, known as "bickers," are coordinated by the university. Tiger's 125 active members are always, or nearly always, Princeton students. The university reimburses the dining clubs for meals served to invited sophomores. Intramural sports are organized around the clubs. Beyond question, the university itself is a place of public accommodation.
Princeton began admitting women in 1969. In 1979, as a junior, Sally Frank, sought admission to one of the five clubs that then were restricted to men only. They all turned her down. Persisting, she brought suit under New Jersey law to compel a club to accept her. One by one, four of the five caved in. Tiger alone held out. Last year the New Jersey Supreme Court ordered an end to the discrimination and awarded Ms. Frank $5,000 for the humiliation and mental anguish she had suffered.
So much for the facts. What about the law? Three times in recent years the Supreme Court has dealt with the issue. In 1984 the court ordered the Jaycees of Minnesota to admit women. In 1987 it extended its ruling to Rotarians in California. In 1988 the court upheld an ordinance of New York City prohibiting sexual discrimination in private clubs having more than 400 members. No justice has dissented.
Nor has any justice ever dissented from the idea that freedom of association is precious. It depends, however, on the kind of association. "Intimate" associations clearly are exempt from anti-discrimination laws. "Expressive" associations also are protected, but less so. Places of public accommodation are not protected at all.
In the court's view, the state has a compelling interest in ensuring "non-discriminatory access to commercial opportunities." Service clubs, civic clubs and large social clubs provide business and professional contacts of great value. There is nothing very "intimate" about them.
My own thought is that this rationale has little application to Princeton's Tiger Inn or to fraternities and sororities across the nation. Forty states have anti-discrimination laws like New Jersey's law. By refusing to review the Tiger case, the high court leaves a large area of uncertainty.
From time to time the court has seemed to uphold Tiger's basic position. Said Justice William Brennan in the Jaycees case: "There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire . . . Freedom of association plainly presupposes a freedom not to associate."
That was sound doctrine. It ought to be resolutely defended.
James J. Kilpatrick is a syndicated columnist.