New York State Club Association, Inc. v. City of New York Motion for Leave to File and Brief of Amici Curiae

    No. 86-1386

In the

Supreme (Enurt of tlje lErtite5 States
October Term, 1987

New York State Club Association, Inc.,

Appellant,

The City of New York, The Mayor of the City of New 
York, The City Human Rights Commission and The 
Members of the City Human Rights Commission,

Appellees.

appeal from the court of appeals of the state OF NEW YORK

MOTION FOR LEAVE TO FILE AND 
BRIEF OF AMICI CURIAE 

NOW Legal Defense and Education Fund; American 
Association of University Women; American Jewish 

Committee; American Jewish Congress; Americans for 
Democratic Action; Association of Black Women Attor­

neys of New York; California Women Lawyers; Con­
necticut Women’s Educational and Legal Fund, Inc.; 

Equal Rights Advocates; Financial Women’s Association 
of New York; Hawaii Women Lawyers; Hawaii Women 
Lawyer’s Foundation; Metropolitan Women’s Bar Asso­

ciation; NAACP Legal Defense and

(caption and counsel continued on inside front cover)



Educational Fund, Inc.; National Coalition of Labor 
Union Women; National Conference of Women’s Bar 

Associations; National Organization for Women; 
National Organization for Women-New York City: 
National Organization for Women-New York State; 

New York City Commission on the Status of Women; 
New York Coalition of 100 Black Women; New York 
Women in Communication; New York Women’s Bar 
Association; Northwest Women’s Law Center; San 

Francisco Women Lawyers Alliance; Women 
Employed; Women and Foundations/Corporate Phil­
anthropy; Women’s Action Alliance; Women’s Bar of 
the District of Columbia; Women’s Bar Association 
of the State of New York; Women’s Law Project;

Women’s Legal Defense Fund 
In Support of Appellees.

Counsel o f  Record:
Lynn Hecht Schafran 
Sarah E. Burns 
NOW Legal Defense 

and Education Fund 
99 Hudson Street 
Suite 1201
New York, N.Y. 10013 
(212) 925-6635

O f Counsel:
Judith I. Avner 
54 Fernbank Ave. 
Delmar, N.Y. 12054 
(518) 439-7752

Beverly Gross 
525 West End Ave. 
New York, N.Y. 
(212) 877-8109



MOTION FOR LEAVE TO FILE 
AS AMICI CURIAE 

ON BEHALF OF APPELLEES

Pursuant to Rule 36.3 of the Rules of 
this Court the American Association of 
University Women, American Jewish Commit­
tee, American Jewish Congress,Americans for 
Democratic Action, Association of Black 
Women Attorneys of New York, California 
Women Lawyers, Connecticut Women's Educa­
tional and Legal Fund, Inc., Equal Rights 
Advocates, Financial Women's Association of 
New York, Hawaii Women Lawyers, Hawaii 
Women Lawyer's Foundation, Metropolitan 
Women's Bar Association, Naacp Legal 
Defense and Educational Fund, Inc.,
National Coalition of Labor Union Women, 
National Conference of Women's Bar Associ­
ations, National Organization for Women, 
National Organization for Women-New York 
City, National Organization for Women-New

1



York State, New York City Commission on the 
Status of Women, New York Coalition of 100 
Black Women, New York Women in Communica­
tion, New York Women's Bar Association, 
Northwest Women's Law Center, San Francisco 
Women Lawyers Alliance, Women Employed, 
Women and Foundations/Corporate Philan­
thropy, Women's Action Alliance, Women's 
Bar of the District of Columbia, Women's 
Bar Association of the State of New York, 
Women's Law Project, Women's Legal Defense 
Fund in Support of Appellees seek permis­
sion of this Court for leave to join the 
brief amicus curiae of the NOW Legal 
Defense and Education Fund (NOW LDEF) in 
support of appellees in this case. The 
brief of amici curiae is submitted here­
with.

The grounds for granting the motion 
for leave are as follows:

2



1. NOW LDEF requested permission from 
Appellant and Appellees to file a Brief of 
Amici Curiae on behalf of itself and other 
interested organizations in the above 
captioned case. Permission was sought by- 
letter to appellant's counsel, Phillips, 
Nizer, Benjamin, Krim & Ballon, 40 West 
57th Street, New York, N.Y., dated October 
27, 1987 and by telephone from counsel for 
appellees, the New York City Corporation 
Counsel, 100 Church Street, New York, N.Y. 
10007. As noted above, the permission 
sought requested approval for a brief to be 
filed by the "NOW Legal Defense and Educa­
tion Fund ... on behalf of itself and other 
interested organizations..."

Counsel for appellees gave consent by 
letter dated January 7, 1987 [sic] from 
Leonard J. Koerner, a copy of which is 
attached. Counsel for appellant gave 
consent by letter dated November 4, 1987

3



from Alan Mansfield, a copy of which is 
attached, to the filing of a brief amicus 
curiae by the NOW Legal Defense and Educa­
tion Fund only. Counsel for appellant has 
refused NOW LDEF's request to expand that 
permission to include the thirty-two organ­
izations listed above.
2. These thirty-two organizations have a 
vital interest in this case. As described 
in the Statement of Interest in the brief 
submitted herewith, they are national and 
state organizations, open to women and men, 
committed to achieving equal opportunity 
for women and minorities in the business, 
professional and civic life of our country. 
Each has a unique perspective and expertise 
on the case at bar. The members of these 
organizations are personally aware of the 
high level of business activity at many of 
the country's purportedly ’’private" clubs, 
and of business opportunities lost to

4



themselves and others when women and 
minorities are barred from membership at 
these business oriented clubs.

Many of these organizations' members 
have been in the difficult position, when 
invited to attend business functions at 
these clubs as guests or directed to attend 
them by an employer, or having to decide 
whether the business opportunity or the 
employer's directive outweighs their 
personal repugnance at having to attend a 
business event in a discriminatory setting. 
When attending business functions at these 
"private" clubs, many of these organiza­
tions' women members have been personally 
humiliated by being directed by club 
personnel not to sit the lobby, use the 
main elevator, walk on the stairs or enter 
certain rooms or floor of these clubs.

Because of the direct impact on 
women's and minorities' full access to

5



clubs and organizations which are centers 
of business and decision making activity, 
these thirty-two organizations have closely 
followed the progress of the case at bar 
and similar cases. Many of these organiza­
tions appeared before this Court as amici 
in Roberts v. Javcees. 468 U.S. 609 (1984) 
and Rotary Club v. Directors of Rotary
International. 481 U.S.__, 107 S.Ct. 1940
(1987) and before the New York Court of 
Appeals in the case at bar, New York State 
Club Association. Inc, v. City of New York. 
69 N.Y.2d 211 (1987).

The individual Statements of Interest 
of these thirty-two organizations appear as 
an Appendix to the brief submitted here­
with.

6



3. The thirty-two organizations listed 
above request that this Court grant 
permission for leave to join the attached 
brief amicus curiae of the NOW LDEF in 
support of appellees.

Respectfully submitted,

Lynn Hecht Schafran 
NOW Legal Defense and 

Education Fund 
99 Hudson St., 12th Floor 
New York, N.Y. 10013 
(212) 925-6635

Counsel of Record for 
Amici Curiae

Dated, January 11, 1988

7



January 7, 1987
Lynn Hecht Schafran 
N.O.W. Legal Defense and 

Education Fund 
99 Hudson Street - 12th Floor 
New York, New York 10013

Re: N YS Club Assoc. Inc. v. City o f  New York 
Supreme Court Docket No. 86-1836

Dear Ms. Schafran:

You have requested appellees’ consent for your client, 
N.O.W. Legal Defense and Education Fund and other inter­
ested parties to appear as amici curiae in the United States 
Supreme Court where this case is now pending. Appellees have 
no objection to the participation of N.O.W. and the other 
interested parties as amici curiae.

Very truly yours,

/ s /  Leonard J. Koerner____________
Leonard J. Koerner
Chief Assistant Corporation Counsel

[Letterhead of The City of New York,
Law Department, New York, N.Y.]



November 4, 1987

Lynn Hecht Schafran, Esq.
NOW Legal Defense and Educational Fund 
99 Hudson Street 
12th Floor
New York, New York 10013

Re: New York State Club Association, Inc. v.
The City o f  New York, et al.

Dear Ms. Schafran:
In accordance with your request, appellant New York State 

Club Association, Inc. hereby consents to the filing of a brief 
amici curiae by the NOW Legal Defense and Educational Fund 
in accordance with Supreme Court Rule 36.2.

Sincerely,

/%/ Alan Mansfield______
Alan Mansfield 
Counsel of Record

/jhm

[Letterhead of PHILLIPS, NlZER, BENJAMIN,
Krim & Ballon, New York, N.Y.]



TABLE OF CONTENTS
PageTABLE OF AUTHORITIES..............  i

INTEREST OF AMICI.................  1
STATEMENT OF THE CASE.............  2
SUMMARY OF ARGUMENT...............  3
ARGUMENT..........................  4

A. INTRODUCTION..............  4
B. THE STATE HAS A "PROFOUNDLY
IMPORTANT" INTEREST IN ENSURING 
NONDISCRIMINATORY ACCESS TO 
COMMERCIAL OPPORTUNITIES.....  8
C. LOCAL LAW 63 DOES NOT INFRINGE
THE FIRST AMENDMENT RIGHTS OF 
BUSINESS-RELATED CLUBS.......  35
1. Enforcement of Local Law 63

Does Not Abridge Club Mem­
bers' Freedom of Intimate 
Association..............  35

2. Local Law 63 Does Not Vio­
late Club Members' Right Of 
Expressive Association. Any 
Infringement Of Club Members' 
Freedom Of Expressive Associa­
tion Is Outweighed By The 
Compelling State Interest In 
Ensuring Nondiscriminatory Ac­
cess To Commercial Opportuni­
ties.....................  51

V. CONCLUSION...............  55



APPENDIX: AMICI'S INDIVIDUAL STATEMENTS OF INTEREST



TABLE OF AUTHORITIES
Federal Cases Page(s)
Board of Directors of Rotary 
International v. Rotary Club 
of Duarte. 481 U.S.__, 170
S.Ct. 1940 (1987)...  8,9,35,

37,49,
53

California Federal Savings &
Loan Association v. Guerra. 481 
U.S.__107 S.Ct. 683 (1987)...  26
Carey v. Population Services
International. 431 U.S. 678
(1977).......................  35
Hishon v. King & Spaulding. 467 
U.S. 69 (1984)................  51
NAACP v. Alabama. 357 U.S. 449,
460 (1958)...................  51
Ohralik v. Ohio State Bar Ass'n.
436 U.S. 447, 459 (1978).......  51,52
Pierce v. Society of Sisters.
268 U.S. 510 (1925)...........  35
Roberts v. U.S. Javcees. 468
U.S. 609, (1984)..............  7,8,9,

26,34,
35,48,
49,52,
54

Runyon v. McCrary. 427 U.S.
160, (1976)..................  36,52,

53

l



United States Power Squadrons 
v. State Human Rights Appeals
Board. 59 N.Y.2d 401 452 N.E.2d 
1199 (1983)................... 49
Villaae of Belle Terre v. 
Boraas. 416 U.S. 1 (1974)..... 36
Zablocki v. Redhail. 434 U.S. 
473 (1978).................... 35
Citv Council v. Taxpayers for 
Vincent. 466 U.S. 789. (1984).. 54
Norwood v. Harrison. 413 U.S. 
455, 469 (1977)............... 53

State Cases
New York State Club Association. 
Inc. v. Citv of New York, 69 
N .Y.2d at 211, 505 N.E.2d 915, 
513 N .Y.S.2d 349 (1987)....... 49,50,

53

Constitutional Provisions
U.S. CONST, amend I........... passim

Statutes and Orders
Buffalo, N.Y. Ordinance Amend­
ment - New Article XXIII Added 
to Ch. VII - Discriminatory 
Practices Concerning Membership 
or Facilities (Sept. 16, 1987).. 32

ii



Cal. Admin. Code, tit. 18, ch.3,
Subch. 2.5 and 3.5, §§ 17201
and 24343 (Amended 1987)......  34
Cal. Code of Jud'l Conduct,
Canon 2C (Deering's Cal. Ann.
Codes, Rules [Appen.] (1987
Pocket Supp.).................  29
Commentary to Canon 2 of the 
U.S. Code of Judicial Conduct,
Adopted by the United States 
Judicial Conference on Mar.
13, 1981.......................  30
District of Columbia Law 7-50,
Amendment to, Sec. 102(x) of 
the Human Rights Act of 1977 
(D.C. Law 2-38; D.C. Code, Sec.
1-2502 [24]) (Effective Dec. 10,
1977).........................  33
Exec. Order No. 17; Governor 
Mario M. Cuomo, Establishing 
State Policy on Private Institu­
tions Which Discriminate May 31,
1983..........................  31
Exec. Order No. 69, Mayor Edward 
I. Koch, Prohibition of the Con­
duct of City Business at Private 
Clubs that Engage in Discrimina­
tory Membership Practices Sept.
28, 1983.......................  31
Los Angeles, Cal. Ordinance
No. 162426, adding Sec. 59 to
Chpt. IV of the L.A. Municipal
Code..........................  32,33

iii



(Local Law 63) N.Y.C. Admin.
Code, § 8-102(9) (1984).... passim
Philadelphia Code, Ch. 17-400
and § 20-307 (1980)...........  31
Philadelphia, Pa. Bill No. 581,
Ch. 9-1100 of the Philadelphia
Code (Introduced May 16, 1985). 33
Rule of the Boston Licensing 
Board on Membership in Clubs 
(Adopted July 21, 1987).......  33
Rules of the Chief Judge, 22 
NYCRR 20.21 (Adopted Nov. 24,
1980)........................  32
San Francisco, Cal. article 33 
(b)(Part 11) Ch.VIII of the San 
Francisco Municipal Code (Dec.
17, 1987).....................  33
Treas. Reg. 1.274-2(e)(4)(iii)
(1982).......................  47
26 U.S.C. § 162 (West 1978)... 47
Utah Code of Jud'l Conduct,
Canon 2, Utah Jud'l Council 
Reference Book (1987).........  29
Wilmington, De. Ordinance No.
87,063 (Sept. 30, 1987)......  33

N.Y.C. Admin. Code, Title 8,
§ 8-101.......................  17

iv



Articles. Books, and Studies
Admit Women? No Deal. Letter 
from George W. Ball to the N.Y.
Times, Jan. 14, 1983, at A18,
col. 1........................  39
American Air's Lov-Cost Program.
N.Y. Times, Mar. 1, 1984, at Dl, 
col. 2.......................  43
Ansberry, Board Games. Wall St.
J., Mar. 24, 1985, at 4D,
col. 1........................  14
Apartheid Discussion at an All- 
Male Club. N.Y. Times, Nov. 11,
1985, at A18, col. 3..........  43,44
Avner & Bachrach, Let's Make A 
Deal - When Private Means Busi­
ness . N.Y. St. B.J. Oct. 1985 
at 12.........................  5
Bartlette, Poulton-Callahan &
Somers, What's Holding Women 
Back, Mgmt. Weekly, Nov. 8,
1982..........................  15
Bell, Power Networking. Black 
Enterprises 111 (Feb. 1986)... 15
Bettner, Executive Dreams: What 
Benefits to Request Under New 
Tax Law. Wall St. J., Oct. 28,
1986 at 37, col. 3...........  47
Bracewell, Sanctuaries of Power.
Houston City Mag., May 1980
at 50........................  5

v



Bureau of Labor Statistics, U.S.
Dep't of Labor, Job Seeking 
Methods Used by American Workers.
Bull. No. 1886, Table 3 (1972).. 12
Burns, The Exclusion of Women 
from Influential Men's Clubs:
The Inner Sanctum and the Myth 
of Full Equality. 18 Harv.
C.R.-C.L. 321 L. Rev. (1983).. 5,9,47,

48
Business Has No Business at 
Century Club. Letter from Theo­
dore H. White to the N.Y. Times,
Nov. 17, 1984 at A22, col. 4... 39
C. Kleiman, Women's Networks
(1980).......................  12
California Lawyers Move On All- 
Male Clubs. N.Y. Times, Aug. 31,
1986, at 35A, col. 1 ..........  29
Century Club's Timesmen Stuck 
with the Tab. N.Y. Post, Dec.
12, 1983, at 6, col. 1.........  27
Commission on Professionals in 
Science and Technology, Profes­
sional Women and Minorities: A 
Manpower rsicl Data Resource 
Service (1987)................  16
Diamond, The Tisch is in the
Mail. N.Y. Sept. 1, 1986, (Mag.)
at 36.........................  42
Executive Compensation Services,
Inc., Executive Perquisites
Report 1986/87. (1986)........  48

vi



Fitzgerald, Fun 15 Months of the 
Year. N.Y. Times, Book Review,
Nov. 3, 1985, at 1............  40
Francke, Club Mad. N.Y. June 2,
1980, at 29...................  44
Ginsburg, Women as Full Members 
of the Club: An Evolving Ameri­
can Ideal. 6 Hum. Rts. 1 (1975). 5,16,17
Harlem Housing Failure: Jailed 
Landlord Says He Lost to System.
N.Y. Times, Mar. 24, 1984, at
B25, col. 3...................  41,42
Hollingsworth, Sex Discrimina­
tion in Private Clubs. 29 Hast­
ings L.J. 417 (1977)..........  5,15
Howell, Man's Place. Daily News,
June 4, 1980, at 37, col. 1.... 27
Hymowitz & Schellhardt, The Glass 
Ceiling. Wall St. J., Mar. 24,
1986, at ID, col. 1..............  13
Improved Braniff Aid Plan Report­
ed . N.Y. Times, Apr. 1983, at 29, 
col. 1........................... 42
Korn/Ferry Int'l Board of Direc­
tors Fourteenth Annual Study 
(1987)........................... 14
Korn/Ferry Int'l, Executive Pro­
file Study: A Survey of Corporate 
Leaders in the Eighties,
(1986)........................... 14

vii



Legal Couples. Balancing Act.
Legal Times of N.Y., Nov. 21,
1983, at 1, col. 1............  43
Leinster, Black Executive: Hov 
They're Doing. Fortune, Jan. 18,1988 at 109...................  13
Lynton, Behind Closed Doors: 
Discrimination by Private Clubs: 
A Report Based on City Commis­
sion on Human Rights Hearings. 
N.Y.C. Commission on Human
Rights (1975)................  5,10,19
"Male11 Clubs: Bar Leaders are 
Members, The Recorder, July 22,
1986 at 1.....................  23,48
Night Full of Literary Parties 
Attracts Big Names. N.Y. Times,
Oct. 25, 1984, at Bl, col. 1.... 40,41
O'Brien, Women Helping Women.
Det. Free Press, Nov. 13, 1978.. 11,12
Ralph: Get Dressed. N.Y. Post,
Apr. 30, 1984, at 6, col. 1.... 42
Reibstein, Many Hurdles. Old and 
New, Keep Black Managers Out of 
Top Jobs. Wall St. J., July 10,
1986, § 2 at 1.................  14,15
Ryback, Encounters at the Schloss.
Harv. Nov.-Dec. 1987 (Mag.),at 67.........................  39

viii



Schafran, Welcome to the Club! 
CNo Women Need Apply). Women and
Foundations/Corporate Philan­
thropy, N.Y. (1981)...........  5
Schanberg, Some of Their Best 
Friends. N.Y. Times, Mar. 26,
1983, at A23, col. 4...........  39
Shumer, A Woman at Old Exeter.
N.Y. Times, Oct. 11, 1987
(Mag.) , at 98.................  40
The All-Male Club: Threatened 
On All Sides. Business Week,
Aug. 11, 1980, at 90..........  5,46
Three Writers Win Book Awards.
N.Y. Times, Nov. 16, 1984, at
C32, col. 1....................  40
Topics: Witness. N.Y. Times,
Oct. 29, 1984, at A22,
col. 1........................  38
2 Utilities Halt Dues for De­
troit Men's Club. N.Y. Times,
Feb. 12, 1986, at 10, col. 5.. 27
U.S. Dep't of Commerce, 1982 
Economic Censuses, WB82-1 Women 
Owned Businesses (1986).......  16
U.S. Dep't of Commerce, 1982 
Survey of Minority Owned Busi­
ness Enterprises. MB82-1 Black.
(1986), MB82-2, Hispanic 
(1986), MB82-3 Asian Americans. 
American Indians and Other 
Minorities (1986).............  16

IX



Vogel, The Trend Setting Tradi­
tionalism of Architect Robert 
A.M. Stern. N.Y. Times, Jan. 14,
1985 (Magazine), at 41........  39
Weiner, Tax Tips: When Record
Keeping Pays Off. U.S. News and
World Report, Mar. 17, 1986, at
BC-2..........................  46,47
Wise, A Who's Who of Tax Lawyers.
N.Y.L.J., June 20, 1983, at 1,col. 1........................ 43
Women Slowly Enter Upper Manage­
ment; Companies Devise Wavs to 
Assist Them. 5 Employee Rela­
tions Weekly (BNA) 1123 (Sept.
14, 1987).....................  13

Other Authorities
Babcock & Kay, Statement Submit­
ted to the Senate Comm, on the 
Judiciary, June 23, 1979 .... 25
Bank of America 1980 Expense 
Account Guidelines...........  27
CBS, Policy, Delegations of Au­
thority, Reimbursable Business 
Expenses. Par. 16, (Adopted Jan.
31, 1981).....................  27,42
Club Membership Practices of 
Financial Institutions: Hearing 
Before the Senate Comm, on Bank­
ing Housing, and Urban Affairs.
96 Cong., 1st Sess. 172 (1979).. 10,11

x



Columbia University, Resolution 
Concerning University Participa­
tion in Clubs with Discriminatory 
Admissions Policies. (Adopted 
Jan. 23, 1981)................  30
Comments of the National Club 
Association re Regulations Pro­
posed by the Dep't of Labor,
OFCCP, Dealing with Payments 
by Federal Contractors to 
Private Organizations (Mar. 24,
1980) .........................  46
"Council Policy on the Use of 
Private Clubs," Council on Foun­
dations (Adopted Oct. 19,
1981) ........................  28
Guidelines for Extra-Judicial 
Activities and Report of [New 
Jersey] Supreme Court on Extra- 
Judicial Activities, Sec 
IV (D) (1) (Oct. 1987)........  30
IBM, Position of Non-Support for 
Organizations or Service Clubs 
Which Exclude Persons on the 
Basis of Race, Color. Sex,
Religion or National Origin
(Adopted 1980)................  27
Letter of J. Wilson Newman,
President, University Club (New 
York City) dated Mar. 31,
1980..........................  45
Memorandum from Lowdrick M. Cook, 
Chairman and CEO of ARCO to 
ARCO Senior Management (May 
28, 1986).....................  27

xi



Memorandum of President C. Peter
McGrath, University of Minnesota (June 1984)................... 30
New York State Bar Association, 
Resolution (Adopted Jan. 23, 1981)......................... 28
"Policy on Situs of Association 
Council Meetings and Situs of 
Meetings Of Association Officers 
and Staff," The Ass'n of the Bar 
of the City of N.Y. (Adopted Apr. 9, 1981)...................... 28
Resolution of the New York 
County Bar Association Respect­
ing Use of Discriminatory Clubs 
(Adopted Apr. 14, 1986)....... 28
San Francisco Bar Association 
Resolution (Adopted June 11, 1986)......................... 29
Statement of Patricia Hewitt 
before the N.Y.C. Council Comm, 
on General Welfare July 30,1980......................... 21,22
Statement of Gail Wright on be­
half of the Ass'n of Black Women 
Attorneys of N.Y. and the Harlem 
Lawyers Ass'n before the N.Y.C. 
Council Comm, on General Welfare July 30, 1980................ 22,23

xii



Statements on behalf of the 
N.Y.C. Commission on the Status 
of Women in Support of Intro.
513 before the N.Y.C. Council
General Welfare Committee, July
30, 1980, and Dec. 22, 1983____ 24,25
Testimony of Henry G. Miller be­
fore the N.Y. Task Force on 
Women in the Courts, Nov. 19,
1985..........................  41
Testimony of Muriel Siebert 
before the New York City Commis­
sion on Human Rights, Nov. 13,
1975.........................  20
"The Use of Private Clubs for 
Association Functions," American 
Bar Association (Adopted Oct.
1973)........................  28
USC Transcript (Dec. 2, 1985).. 30,31

xiii



STATEMENT OF INTEREST OF AMICI CURIAE
Amici are national and state organiza­

tions, open to women and men, committed to 
achieving equal opportunity for women and 
minorities in the business, professional 
and civic life of our country. Amici ' s
individual statements of interest appear in 
Appendix A. Amici's members are personally 
aware of the high level of business 
activity at many of the country's purport­
edly "private" clubs, and of the lost 
business opportunities to themselves and to 
others when women and minorities are barred 
from membership at these business oriented 
clubs. Many of amici's members have been 
in the difficult position, when invited to 
attend business functions at these clubs as 
guests or directed to attend them by an 
employer, of having to decide whether the

I .

1



business opportunity or the employer's 
directive outweighs their personal repug­
nance at having to attend a business event 
in a discriminatory setting. When attend­
ing business functions at these "private" 
clubs, many of amici's women members have 
been personally humiliated by being 
directed by club personnel not to sit in 
the lobby, use the main elevator, walk on 
the stairs, or enter certain rooms or 
floors of these clubs. Because of its 
direct impact on women's and minorities' 
full access to clubs which are centers of 
business and decision making activity, 
amici have closely followed the progress of 
the case at bar and are deeply concerned 
with its outcome.

II.
STATEMENT OF THE CASE

Amici adopt the Statement of the Case 
set forth by Appellee, The City of New

2



York, The Mayor of the City of New York, 
The City Human Rights Commission and the 
Members of the City Human Rights Commis­
sion.

III.
SUMMARY OF ARGUMENT

Purportedly "private" business related 
clubs confer significant business advan­
tages on their members. Local Law 63 
narrowly serves the profoundly important 
state interest of ensuring nondiscrimina- 
tory access to the commercial opportunities 
afforded by membership in such clubs. 
Discriminatory membership policies at these 
clubs have a deleterious effect on the 
professional opportunities and advancement 
of women and minorities.

Application of Local Law 63 to 
business-related clubs does not infringe 
members' First Amendment rights of either 
intimate or expressive association.

3



Because of the size and high level of busi­
ness activity at the clubs affected by 
Local Law 63, they can have no legitimate 
expectation of a protected right of 
intimate association. The business related 
clubs affected by Local Law 63 do not 
engage in the types of expressive activi­
ties protected by the First Amendment. If 
there is any infringement of club members' 
freedom of expressive association, it is 
outweighed by New York City's compelling 
interest in removing barriers to the 
economic advancement and political and 
social integration of all its citizens.

IV
ARGUMENT

A. INTRODUCTION
In recent years, the impact on women 

and minorities of exclusion from so-called 
"private” clubs and organizations that are 
in fact centers of business activity has

4



received wide attention.1 Such exclusion 
deprives women and minorities of equal 
economic opportunity, subjects them to 
personal humiliation and, by barring them 
from informal centers of power, confirms in 
majority group men the belief that women 
and minorities are inappropriate partici­
pants where formal power is exercised. An 
understanding that such exclusion is

1 See. e.q., Avner and Bachrach, 
Let's Make a Deal - When Private Means
Business, N.Y. St. Bar J., Oct. 1985, at 
12; Burns, The Exclusion of Women from
Influential Men's Clubs; The Inner Sanctum 
and the Myth of Full Equality. 18 Harv. 
C.R-C.L. 321 L. Rev. (1983); Schafran, 
WELCOME TO THE CLUB!(No Women Need Aoolv^ 
Women and Foundations/Corporate Philanth­
ropy, N.Y. (Apr. 1981) ; The All-Male 
Club: Threatened On All Sides. Business 
Week, Aug. 11, 1980, at 90; Bracewell,
Sanctuaries of Power. Houston City Maga­
zine, May 1980, at 50; Hollingsworth, Sex 
Discrimination in Private Clubs. 29 
Hastings L.J. 417 (1977); Lynton, Behind
Closed Doors: Discrimination by Private 
Clubs: A Report Based on City Commission on 
Human Rights Hearings. New York City Com­
mission on Human Rights (1975) ; Ginsburg, 
Women as Full Members of the Club: An 
Evolving American Ideal. 6 Hum. Rts. 1 (1975).

5



neither unimportant nor benign and that 
there is indeed extensive business activity 
at so-called "private" clubs is implicit in 
the resolutions, executive orders and 
personnel policies recently promulgated by 
numerous organizations, government offi­
cials, corporations and academic institu­
tions barring the conduct of official 
business at discriminatory clubs and other 
facilities, and the response of municipali­
ties across the country to the enactment of 
Local Law 63. N.Y.C. Admin. Code 
§ 8-102(9) (1984). See page 27-35 infra.

The challenged amendment to New York 
City's public accommodations law is a 
legislative acknowledgment of what these 
organizations, government officials, cor­
porations and academic institutions have 
already recognized: the business nature of
many so-called "private" clubs. Local Law 
63's definition of clubs which are "dis-

6



tinctly private in nature" to exclude those 
which are in fact centers of business 
activity is a constitutionally valid effort 
on the part of the city to remove discrim­
inatory barriers to women's and minorities' 
full participation in the business, 
professional, civic and political life of 
the community.

As this Court wrote in Roberts 
v. United States Javcees. 468 U.S. 609, 625 
(1984), commenting on Minnesota's public 
accommodations law:

Like many States and Municipalities, 
Minnesota has adopted a functional 
definition of public accommodations 
that reaches various forms of public, 
quasi-commercial conduct . . . .  This 
expansive definition reflects a 
recognition of the changing nature of 
the American economy and of the 
importance, both to the individual and 
to society, of removing the barriers 
to economic advancement and political 
and social integration that have 
historically plagued certain disadvan­
taged groups, including women. 
(Citations omitted.)

7



B. THE STATE HAS A "PROFOUNDLY IMPORTANT" 
INTEREST IN ENSURING NONDISCRIMINATORY 
ACCESS TO COMMERCIAL OPPORTUNITIES.
As in Roberts v. United States 

Javcees, 468 U.S. 609 (1984) and Rotary
Club v. Directors of Rotary Int.. 481 U.S.

107 S.Ct. 1940 (1987), this case
requires the Court to "address a conflict 
between a State's efforts to eliminate 
gender-based discrimination against its 
citizens and the constitutional freedom of 
association asserted by members of a 
private organization." Roberts. 468 U.S.
at 612. In this case we address discrimi­
nation on the basis of race, creed, color 
and national origin, as well. New York 
City has enacted legislation to further the 
compelling state interest of assuring that 
women and minorities will not be denied 
access to the commercial advantages 
available through membership in "private" 
clubs engaged in substantial business

8



activity. The same objective was deemed to 
be a "compelling state interest[] of the 
highest order" in Roberts. 468 U.S. at 624
and Rotary. 481 U.S. at  , 107 S.Ct. at
1948.

It is well documented that exclusive 
clubs and organizations afford their 
members unigue opportunities for business 
contacts and business deals. A study 
sponsored by the American Jewish Committee 
revealed that more than half the corporate 
executives interviewed believed clubs 
provided valuable business contacts; over 
two-thirds reported that such membership 
adds to one's status in his firm or 
community. Burns, supra note 1, quoting R. 
Powell, The Social Milieu as a Force of 
Executive Promotion 105 (1969). After
holding extensive hearings on business- 
oriented private clubs the New York City 
Commission on Human Rights concluded:

9



Irrespective of the reasons, major 
companies, banks, law firms and trade 
and professional associations rou­
tinely use club facilities rather than 
public accommodations [sic] for 
meetings of all kinds, informal and 
formal . . . [Witnesses testified 
from personal experience that clubs 
are the preferred setting for sche­
duled group meetings ranging from the 
inner circle of a particular firm, to 
the leaders of an industry, profession 
or governmental agency, to special 
events at which prominent persons 
address a select audience on matters 
of special or general current inte­rest.

Lynton, supra. n.l at 15.
At Congressional hearings investigat­

ing the payment of "private" club dues by 
financial institutions, Vern Atwaters, 
former chairman of Central Savings Bank, 
testified:

I believe that access to member­
ship in private clubs does have 
significant career and business 
value to an executive or profes­
sional, whether or not actual 
business or banking negotiations 
are conducted at the club. The 
opportunities for convenient and 
friendly association with 
clients, colleagues or prospects 
in a congenial setting is con­

10



ducive to the establishment of 
longer term business relation­
ships which may have future value 
to an individual's career or 
business.

Club Membership Practices of Financial
Institutions: Hearings Before the Senate
Comm. on Bankincr. Housing, and Urban
Affairs, 96th Cong., 1st Sess. 172 (1979).

In essence, private clubs provide 
members with an entree to the "Old Boy 
Network", which provides majority group men 
with knowledgeable allies who help them 
advance in their careers, teach them the 
cast of characters, and advise them of job 
openings and business opportunities. The 
importance of access to such networks 
cannot be overestimated. The Detroit Free 
Press has described the Old Boy Network as 
"where the power really is the 
mechanism that gives men a chance to push 
the right buttons and meet the right people 
at the right time." O'Brien, Women Helping

11



Women. Det. Free Press, Nov. 13, 1978. 
Promotions and high-level jobs are often 
based on the personal relationships forged 
in the closed meetings of private clubs. 
The Bureau of Labor Statistics reported 
that almost one-third of all jobs men hold 
come through personal contacts. U.S. Dep't 
of Labor, Bureau of Labor Statistics, Job 
Seeking Methods Used by American Workers. 
Table 3 (1972). The percentage is believed 
to be even higher for high-level positions.
C. Kleiman, Women's Networks 2 (1980).

Women and minorities need access to 
informal career-enhancing networks at least 
as much as majority group men. Despite the 
gains that women and minorities have made 
in the job market in the last 2 0 years, 
they have not attained the same profes­
sional status as their white male col­
leagues. Although women now fill nearly 
one-third of all management positions, most

12



are in jobs which command little authority
and relatively low pay. Hymowitz &
Schellhardt, The Glass Ceiling. Wall St. 
J., Mar. 24, 1986, at ID, col. 1. A 1986
survey of 586 organizations found that 71 
percent of respondents had only one or no 
female executives. Women Slowly Enter 
Upper Management. 5 Employee Relations 
Weekly (BNA) 1123 (1987) citing Hansen
Survey of Executive Compensation Practices 
and Perquisites (1986). With respect to 
minorities, a 1986 survey of 400 Fortune 
1,000 companies by the Rutgers University 
Graduate School of Management and the 
Program to Increase Minorities in Business 
found that less than 9% of all managers 
were blacks, Asians or Hispanics. Leins­
ter, Black Executives; How They're Doing, 
Fortune, Jan. 18, 1988 (Magazine) at 109.
A recent survey of 1,362 senior executives 
in positions just under chief executive at

13



the nation's largest companies found just 
29 women and 4 blacks. Korn/Ferry Interna­
tional, Executive Profile Study: A Survey 
of Corporate Leaders in the Eighties 23 
(1986).

Of 532 firms responding to a 1986 
board of directors survey only 43% had a 
woman on the board. Even fewer, 30%, had a 
minority on the board. Korn/Ferry Interna­
tional, Board of Directors Fourteenth 
Annual Study at 6 (1987). Women hold only 
three to four percent of Fortune 1000 
directorships. Ansberry, Board Games. Wall 
St. J., Mar. 24, 1985, at 4D, col.l.

Aspiration, drive and talent are not 
enough for women and minorities seeking to 
equal the professional accomplishments of 
their majority group male counterparts. As 
stated by John L. Jones, a black corporate 
executive, there is an "invisible ceiling 
that blacks, and women as well, hit as they

14



move up the corporate ladder, regardless of 
their achievements, motivation, preparation 
and training." Reibstein, Many Hurdles, 
Old and New, Keep Black Managers Out of T od 

Jobs, Wall St. J., July 10, 1986, at § 2, 
p. 1. Women and minorities need the 
informal contacts, networking, and profes­
sional support that membership in purpor­
tedly "private" clubs offers. See Bart- 
lette, Poulton-Callahan & Somers, What's 
Holding Women Back. Management Weekly, Nov. 
8, 1982; Hollingsworth, supra. n.l at 420 
("The exclusion of a segment of the popula­
tion from such private clubs works to 
severely limit the economic mobility of 
that segment."); Bell, Power Networking. 
Black Enterprise 111 (Feb. 1986) ("[T]o be 
truly successful, you have to become a part 
of the internal, often invisible, old boy 
network, too.")

15



At one time, when few women and 
minorities aspired to the positions of 
influence and affluence traditionally held 
by majority group men, the question of 
access to "private" business oriented clubs 
may have seemed of de minimis importance. 
But the increasing number of minorities and 
women taking professional, business and 
management degrees and opening their own 
businesses,2 demonstrates the need for 
access to what Judge Ruth Bader Ginsburg 
has called "places for profitable exchanges 
with business and professional colleagues 
and clients, . . . settings where indivi­

 ̂ See generally Commission on 
Professionals in Science and Technology, 
Professional Women and Minorities: A 
Manpower [sic] Data Resource Service 
(1987) ; and U.S. Department of Commerce, 
1982 Survey of Minority Owned Business 
Enterprises. MB82-1 Black (1986), MB82-2 
Hispanic (1986), MB82-3 Asian Americans. 
American Indians and Other Minorities 
(1986) and U.S. Department of Commerce, 
1982 Economic Censuses WB/82-1 Women Owned Businesses (1986).

16



duals pursuing career-related ventures have 
opportunities to display their talents and 
may be helped on their way." Ginsburg, 
supra. n.l at 19. Further, "If women [and 
minorities] are not offered equal access, 
if they are not welcomed as full members of 
the club, they are kept away from a tradi­
tional avenue of self-growth, economic and 
political opportunity and advancement." 
Id.

The Legislative Declaration preceding 
Local Law 63 acknowledges that "[o]ne 
barrier to the advancement of women and 
minorities in the business and professional 
life of the city is the discriminatory 
practices of certain membership organiza­
tions where business deals are often made 
and personal contacts valuable for business 
purposes, employment and professional 
advancement are formed." N.Y.C. Admin. 
Code, Tit. 8 § 8-101 (1984).

17



Local Law 63 itself states that a club 
"shall not be considered in its nature 
distinctly private if it has more than four 
hundred members, provides regular meal 
service, and regularly receives payment for 
dues, fees, use of space, facilities, 
services, meals or beverages directly or 
indirectly from or on behalf of nonmembers 
for the furtherance of trade or business." 
N.Y.C. Admin. Code, Tit. 8 § 8-102(9) (c). 
(Emphasis supplied.) A club which is not 
"distinctly private" must "evaluat[e] 
applications for membership. . . without 
discrimination based on race, creed, color, 
national origin or sex." Id.

The amendment was narrowly drawn to 
differentiate between clubs that are truly 
private and those that are centers of 
business activity. It was enacted after a 
four year (1980-1984) legislative process 
during which the New York City Council

18



developed extensive documentation respect­
ing discriminatory practices at business 
related "private" clubs and the harms 
caused by these practices. This documen­
tation built on similar information 
gathered through public hearings held by 
the New York City Commission on Human 
Rights in 1973. The testimony offered at 
these hearings makes clear that the clubs 
reached by Local Law 63 are only those 
where the prevalence of activities in 
furtherance of trade or business obviates 
any countervailing concern that the 
legislation, in furthering aims of non­
discrimination, breaches any rights of free 
association.

One of the witnesses at the 1973 
hearing of the New York City Commission on 
Human Rights (Lynton at n.l supra) was 
Muriel Siebert, the first woman to purchase 
her own seat on the New York Stock

19



Exchange. She described in detail the dis­
advantages she suffered because of exclu­
sion from clubs at which corporate meetings 
were held, both early in her career and 
after she established her own firm. 
Siebert also discussed the reasons why the 
opportunity for informal contacts at these 
clubs is a virtual business necessity.

There are a lot of times where men who 
do not have a luncheon appointment 
will go up to the Bankers' Club or 
some of the other clubs and have 
lunches and they will meet other 
people in the industry and they will 
sit and talk. Now...a woman being 
denied this is denied an essential 
part of the business because we do a 
lot of our business at lunch.

Testimony of Muriel Siebert before the New
York City Commission on Human Rights, Nov.
13, 1975 at 72-77.

The New York City Council held 
hearings on Intro. 513, the predecessor to

20



Local Law 63, in 1980 and 1983.3 At the 
1980 hearing Patricia Hewitt, Executive 
Director of Joint Foundation Support, 
illustrated the dilemma faced by women and 
minorities who are required by business 
necessity to attend meetings at discrimina­
tory clubs despite their personal objec­
tions to such clubs.

From my personal knowledge...business 
is regularly conducted at private 
clubs which do not accept women as 
members. Moreover, in my experience, 
meetings held at these clubs are often 
those that would be most difficult for 
me to miss, since they are often 
called by the lawyers or trustees to 
whom I am most directly accountable. 
...This September, for example, 
another private foundation in the city 
is hosting a meeting at the [men only] 
University Club to which... 300 
foundation trustees, staff and other 
interested persons have been invited.

3 The statements offered in support 
of Local Law 63 were not transcribed and 
published by the New York City Council. 
Because of their importance to the legisla­
tive history, the full texts of the state­
ments cited herein have been lodged with 
the Court.

21



Statement of Patricia Hewitt before the
New York City Council General Welfare
Committee, July 30, 1980, at 1-2.

At the same hearing, Gail J. Wright, a
black woman attorney appearing on behalf of
the Association of Black Women Attorneys of
New York, an amicus herein, and the Harlem
Lawyers Association, testified about
minority attorneys' experiences with the
City's business oriented clubs.

The Association of Black Women 
Attorneys of New York and The Harlem 
Lawyers Association are most dis­
tressed that due to our race we have 
been denied the opportunity of fully 
participating in all aspects of the 
legal and business community. We are 
aware that at least eight of the major 
"private clubs" with substantial 
memberships do not have any blacks- 
male or female.

• • • •

Members of both the Association of 
Black Women Attorneys of New York and 
the Harlem Lawyers Association 
experienced trauma after having sub­
mitted applications for membership to 
private clubs only to have requests 
for consideration go unanswered. Such 
overt rejection of persons who main­
tain outstanding professional creden­

22



tials is degrading, frustrating and 
embarrassing - a true stigma of 
inferiority based solely on color or 
sex. As a result, many members of 
these two groups have ceased to seek 
private club membership.4
Testimony offered at the 1980 and 1983

New York City Council hearings by the New
York City Commission on the Status of
Women, an amicus herein, detailed numerous
instances of business at "private" clubs,
the exclusion of women from such business
events, the humiliation of women while in
attendance at these events (such as having
to use a separate entrance or being

4 Statement of Gail J. Wright 
before the New York City Council General 
Welfare Committee, July 30, 1980 at 2 and 
8 . The President of the Bar Association 
of San Francisco recently conceded that 
important legal business, both commercial 
and professional, is transacted at so- 
called "private" clubs, stating: "The 
exclusion of women and minorities [from 
private clubs] operates as an impediment to 
their full participation in the legal 
profession." "Male" Clubs: Bar Leaders are 
Members, The Recorder, July 22, 1986 at 1.

23



directed not to sit in the lobby) and the 
importance of the legislation challenged 
herein. The Commission's 1983 testimony 
concluded:

Women need to be able to meet their 
clients, colleagues and prospects in 
what Vern Atwaters, former Chairman of 
the Board of the Central Savings Bank, 
has described as "a congenial setting 
... conducive to the establishment of 
longer term business relationships 
which may have future value to an 
individual's career or business.” 
Women need not to be demeaned in the 
course of their business and profes­
sional obligations by having to be 
guests at clubs where they cannot be 
members or lunch in the main dining 
room or enter the bar or set foot on certain floors.

Statement on Behalf of the New York City 
Commission on the Status of Women before 
the New York City Council General Welfare 
Committee, Dec. 22, 1983 at 8.

Discriminatory business-related clubs 
also perpetuate the treatment of women and 
minorities as second-class citizens. As

24



two women law professors testified before
the United States Senate:

The existence of such clubs today is 
evidence that there are still many who 
think that minorities are not fit 
persons with whom to associate. The 
exclusion of women from private clubs 
delivers a different but no less 
offensive message. It, too, is a 
reminder that the legal, political, 
and economic role assigned to women 
throughout most of our history was a 
quite restricted one.

Barbara Allen Babcock and Herma Hill Kay, 
Statement Submitted to the United States 
Senate Committee on the Judiciary, June 23, 
1979, at 1-2.

Our society itself suffers when women 
and minorities are excluded from the 
opportunities presented by membership in 
business-oriented clubs and organizations. 
This Court has often condemned discrimina­
tion based on arcane and stereotypical 
assumptions about the relative needs and 
capacities of the sexes or races that bear 
no relationship to the actual ability of

25



individuals. See Roberts. 468 U.S. at 625; 
see also Cal. Fed. Sav. & Loan Ass7n v.
Guerra. 481 U.S. __, 107 S.Ct. 683 (1987).
Not only does the exclusion of women and 
minorities from discriminatory clubs demean 
an enlightened society by its implicit 
denigration of these individuals7 worth and 
abilities, it also tangibly injures the 
commercial and non-commercial foundation of 
our nation by depriving us of their full 
contribution. See generally Roberts. 468
U.S. 609.

Corporate America has begun to 
publicly acknowledge that so-called 
"private" clubs provide a forum for expan­
sion of commercial activities and that 
excluding women and minorities from member­
ship in these clubs is discriminatory.

Among corporations, ARCO, Michigan 
Consolidated Gas Company, CBS, IBM, The New 
York Times and Bank of America have revoked

26



their prior policies of paying for their 
officers to be members of such clubs or 
reimburse business expenses incurred 
there.5

Among law firms, Sherman & Sterling 
stopped reimbursing attorneys for dues or 
business lunches at clubs barring women or 
minorities when it made its first woman 
partner.6

Numerous organizations, academic 
institutions and governmental entities have

5 Memorandum from Lowdrick M. Cook,
Chairman and Chief Executive Officer of 
ARCO to ARCO Senior Management (May 28, 
198 6) ; 2 Utilities Halt Dues for Detroit
Men's Club. N.Y. Times, Feb. 12, 1986, at
10, Col 5; CBS, Policy, Delegations of 
Authority, Reimbursable Business Expenses, 
Paragraph 16 (Adopted Jan. 31, 1981); IBM,
Position of Non-Support for Organizations 
or Service Clubs Which Exclude Persons on 
the Basis of Race, Color. Sex, Religion or 
National Origin (Adopted 198 0) ; Century 
Club's Timesmen Stuck With the Tab. N.Y. 
Post, Dec. 12, 1983, at 6, col. 1; Bank of 
America, 1980 Expense Account Guidelines.

6 Howell, Man's Place. Daily News, 
June 4, 1980, at 37, col. 1.

27



recently undertaken measures to combat 
discriminatory membership policies of 
"private" clubs. The Association of the 
Bar of the City of New York, New York 
County Lawyer's Association, New York State 
Bar Association, American Bar Association 
and Council on Foundations prohibit their 
committees, sections and staffs from 
holding meetings and other official 
functions at clubs that discriminate.7

In 1986, both the Bar Association of 
San Francisco and the California State Bar

7 "Policy on Situs of Association 
Council Meetings and Situs of Meetings of 
Association Officers and Staff," The 
Association of the Bar of the City of New 
York (Adopted Apr. 9, 1981); Resolution of 
the New York County Bar Association 
Respecting Use of Discriminatory Clubs 
(Adopted Apr. 14, 1986); New York State Bar 
Association, Resolution (Adopted Jan. 23, 
1981); "The Use of Private Clubs for 
Association Functions," American Bar 
Association (Adopted Oct. 1978); "Council 
Policy on the Use of Private Clubs," 
Council on Foundations (Adopted Oct. 19, 
1981).

28



Board of Governors adopted resolutions 
urging law firms and corporate legal 
departments to refrain from scheduling 
meetings or reimbursing dues or expenses at 
such clubs. California Lawyers Move on 
All-Male Club. N.Y. Times, Aug. 31, 1986, 
at 3 5A, col. 1. The Bar recognized that 
"continued adherence to those policies and 
practices imposes an unfair and arbitrary 
professional disadvantage on those members 
of the [Bar] Association who are subjected 
to discrimination . . . "  San Francisco Bar 
Ass'n Resolution (Adopted June 11, 1986).

California and Utah amended their 
codes of judicial conduct8 and the Judicial 
Conference of the United States amended the 
commentary to Canon 2 of its Code of 
Judicial Conduct to declare that it is * 2

8 Cal. Code of Jud'l Conduct, Canon
2 C (Deering's Supp. 1987) ; Utah Code of 
Judicial Conduct, Canon 2, Utah Judicial 
Council Reference Book (1987).

29



"inappropriate" for members of the judi­
ciary to hold membership in organizations 
which practice invidious discrimination on 
the basis of race, sex, religion or 
national origin.9 The New Jersey Supreme 
Court has taken similar action.10 Columbia 
University, the University of Minnesota and 
the University of Southern California are 
among the academic institutions which 
expressly bar the conduct of university 
business or activities at discriminatory 
facilities.11

Commentary to Canon 2 of the 
United States Code of Judicial Conduct. 
Adopted by the United States Judicial 
Conference on Mar. 13, 1981.

10 Guidelines for Extra Judicial 
Activities and Report of [New Jersey] 
Supreme Court on Extra Judicial Activities, 
§ IV (D)(1) (Oct. 1987) at 9.

11 Columbia University, Resolution 
Concerning University Participation in 
Clubs with Discriminatory Admissions 
Policies (Adopted Jan. 23, 1981); Memoran­
dum of President C. Peter McGrath, June 
1984, University of Minnesota; USC Trans-

30



Among governmental entities, Philadel­
phia adopted legislation banning the city 
from awarding contracts to any company that 
pays for membership or expenses at such 
clubs and from reimbursing public officials 
for expenses incurred at such clubs. 
Philadelphia Code Ch. 17-400 and Sec. 20- 
307 (1980). New York City Mayor Edward I. 
Koch and New York State Governor Mario 
Cuomo have issued Executive Orders barring 
the conduct of official City and State 
business at such facilities.* 12 The New 
York Court of Appeals amended the Rules of 
the Chief Judge to include a similar

cript (Dec. 2, 1985) at 2.
12 Exec. Order No. 69, Mayor Edward 

I. Koch, "Prohibition of the Conduct of 
City Business at Private Clubs That Engage 
in Discriminatory Membership Practices," 
(Sept. 28, 1983); Exec. Order No. 17,
Governor Mario M. Cuomo, "Establishing 
State Policy on Private Institutions Which 
Discriminate," (May 31, 1983).

31



prohibition for the Unified Court System.13
Nothing could better demonstrate the 

deep and widespread concern with the true 
implications for women and minorities of 
exclusion from business oriented "private" 
clubs than the response of municipalities 
and states across the country to New York 
City's enactment of Local Law 63. Numerous 
governmental entities, inspired by New York 
City's approach to this serious problem, 
have taken similar action in a variety of 
ways. Legislation patterned on New York's 
ordinance has been adopted in Buffalo, Los 
Angeles, San Francisco, Wilmington, and the 
District of Columbia.14 Similar legisla­

13 Rules of the Chief Judge, 22 NYCRR 20.21 (Adopted Nov. 24, 1980).
14 Buffalo, N.Y., Ordinance Amend­

ment - New Article XXIII Added to Chapter 
VII - Discriminatory Practices Concerning 
Membership or Facilities (enacted Sept. 16, 
1987) (100); Los Angeles, CA. , Ordinance
No. 162426, Adding Sec. 59 to Chapter IV of 
the Los Angeles Municipal Code (enacted May

32



tion is under consideration in Philadel­
phia15 .

The Liquor Licensing Board for the 
City of Boston adopted a regulation barring 
liquor licenses to discriminatory business 
oriented clubs.16 The California Franchise 
Tax Board ruled that after Jan. 1, 1988
business expense tax deductions will not be

28, 1987); San Francisco, CA. , article 33
(b) (Part 11) chapter VIII of the San
Francisco Municipal Code (effective Dec. 
17, 1987); Wilmington, DE, Ordinance No. 
87-063, as amended (Sept. 30, 1987); Dis­
trict of Columbia Law 7-50, Amendment to 
Sec. 102 (x) of the Human Rights Act of 
1977, (D.C. Law 2-38; D.C. Code, Sec.
1-2502 [24]) (effective Dec. 10, 1977).

15 Bill No. 581, chapter 9-1100 of 
the Philadelphia Code (Introduced May 16, 1985) .

16 Rule of the Boston Licensing Board 
on Membership in Clubs (Adopted July 21, 
1987). Enforcement of this regulation has 
been stayed pending this Court's decision 
in the case at bar.

33



allowed for payments to discriminatory 
clubs.17

All these actions were taken after 
extensive debate on the policies and 
practices of purportedly "private" clubs 
and their business related discriminatory 
impact. The conclusions of the organiza­
tions, cities and states which reviewed the 
matter were clear. All these new policies 
embody "a recognition...of the importance, 
both to the individual and to society, of 
removing the barriers to economic advance­
ment and political and social integration 
that have historically plagued certain 
disadvantaged groups, including women." 
Roberts. 468 U.S. at 626.

1 / Tit. 18, ch. 3, Subch. 2.5 and 
3.5, Cal. Admin. Code, §§ 17201 and 24343. 
(Amended 1987).

34



C. LOCAL LAW 63 DOES NOT INFRINGE EITHER 
THE INTIMATE OR EXPRESSIVE FIRST 
AMENDMENT ASSOCIATIONAL RIGHTS OF 
MEMBERS OF BUSINESS RELATED CLUBS.
1. Enforcement of Local Law 63 Does 

Not Abridge Club Members' Freedom Of Intimate Association
Under the two-branched analysis of 

freedom of association discussed by this 
Court in Roberts. 468 U.S. 609 (1984) and
Rotary, 481 U.S. __, S.Ct. 1940 107, (1987)
the constitutional guarantee afforded 
"intimate association" protects "the forma­
tion and preservation of certain kinds of 
highly personal relationships." Roberts.
4 68 U.S. at 618; Rotary. 481 U.S. at __,
107 S.Ct. at 1945. See. e. g. . Zablocki v. 
Redhail. 434 U.S. 374 (1978) (marriage);
Carey v. Population Services Int'l. 431 
U.S. 678 (1977) (childbirth); Pierce v.
Society of Sisters. 268 U.S. 510 (1925)
(child rearing and education).

35



Significantly, this Court has consis­
tently refused to consider as intimate 
those relationships that are removed from 
the core concept of the home as the 
province of constitutionally protected 
privacy. See, e.q.. Runvon v. McCrary. 
427 U.S. 160, (1976) (prohibiting racially 
discriminatory admissions policies of 
private school "does not represent govern­
mental intrusion into the privacy of the 
home or a similarly intimate setting"); 
Village of Belle Terre v. Boraas. 416 U.S. 
1 (1974) (court dismissed associational 
freedom challenge to ordinance preventing 
six unrelated individuals from living 
together).

Determining whether an institution is 
so private as to warrant constitutional 
protection "entails a careful assessment of 
where that relationship's objective 
characteristics locate it on a spectrum

36



from the most intimate to the most attenu­
ated of personal attachments," and requires 
consideration of such factors as "size, 
purpose, selectivity and whether others are 
excluded from critical aspects of the 
relationship." Roberts. 468 U.S. at 620,
Rotary, 481 U.S. at _, 107 S.Ct. at 1946.
Local Law 63 defines as "not . . . dis­
tinctly private" those clubs which by 
virtue of their size and the commercial 
activities conducted by members and 
nonmembers on club premises are deprived of 
any claims to intimate association of the 
kind this Court has traditionally pro­
tected.

With respect to size, Local Law 63 
applies only to clubs with more than 400 
members. In Roberts this Court character­
ized a membership of 400 as too large to 
foster the kind of intimate, personal 
relationship between members that is worthy

37



of constitutional protection. Roberts. 468 
U.S. at 609.

With respect to purpose and the exclu­
sion of outsiders from critical aspects of 
the relationship, Local Law 63 addresses 
the reality, readily apparent to readers of 
local and national newspapers and maga­
zines, that many of the city's most presti­
gious "private" clubs, clubs which are 
members of appellant, are in fact centers 
for business activity of every possible 
kind, a point which appellant does not 
deny.18

It is interesting to note that appellant does not deny this point. For 
years many individual members of New York 
City's "private" clubs have asserted that 
the discrimination they practice in their 
clubs is as protected as the discrimination 
they practice at home, and attempted to 
deny, by minimizing or distinguishing the 
commercial conduct at these clubs, that 
activities in furtherance of trade or 
business are conducted there. See e.q. . 
Topics: Witness. N.Y. Times, Oct. 29, 1984
at A22, col. 1, (quoting Theodore White's 
statement at Atheneum Publisher's 25th

38



Phillip Johnson, one of the country's 
leading architects, periodically convenes 
"architectural luminaries" for "stag 
dinners at the all male Century Associa­
tion." Vogel, The Trend-Setting Tradition­
alism of Architect Robert A.M. Stern. N.Y. 
Times, Jan. 14, 1985, at 41, 47. Harvard 
presidents use the Century to interview 
faculty prospects, Ryback, Encounters at 
the Schloss. Harvard, Nov.-Dec. 1987, at

Anniversary party at the Century Club on 
October 24, 1984 that "The first book they
signed up was mine ... and it was agreed to 
here in this club.") and Letter from 
Theodore H. White to the N.Y. Times, 
Business Has No Business at Century Club. 
Nov. 17, 1984 at A22, col. 4, (claiming
that despite the above quoted remarks the 
discussion did not count as business 
because the actual contract was not signed 
at the club). See also. Schanberg, Some of 
Their Best Friends. N.Y. Times, Mar. 26, 
1983, at A23, col. 4 (describing Associa­
tion of the Bar of the City of New York 
forum regarding legislation challenged 
herein); Admit Women? No Deal. Letter from 
George W. Ball to the N.Y. Times, Jan. 14, 
1983, at A18, col. 1, (claiming that no 
business is conducted at the Century Club.)

39



67, and book publishers use it to woo book 
club editors. Fitzgerald, Fun 15 Months of 
the Year. N.Y. Times, Book Review, Nov. 3, 
1985, at 1.

In a particularly ironic instance, it 
was at the Century that the search commit­
tee for a new principal of Phillips Exeter 
Academy recently met with the school's 
board of trustees to insist on its choice 
of a woman for the post. Shumer, A Woman 
at Old Exeter. N.Y. Times, Oct. 11, 1987, 
at 98. The Century Club was also the site 
for Atheneum Publishers' 25th anniversary 
party, Night Full of Literary Parties 
Attracts Big Names. N.Y. Times, Oct. 25, 
1984, at Bl, col. 1, and would have been 
the site for the 1984 American Book Awards 
dinner had not objections to use of a sex- 
discriminatory facility caused its removal 
to the New York Public Library, Three 
Writers Win Book Awards. N.Y. Times, Nov.

40



Night Full of16, 1984, at C32, col. I.19
Literary Parties Attracts Big Names, supra. 
also described a party for 350 at the Lotos 
Club on the same night celebrating the 50th 
anniversary of Partisan Review.

A landlord said of his memberships in 
the Union League, Yale and American Yacht 
Clubs that the clubs were "an essential 
part of my business." "I used the clubs. 
My business is sales. I have to meet 
people to transact business." Harlem

19 The business nature of many 
Century Club activities is also evident 
from the testimony offered by then New York 
State Bar Association President Henry G. 
Miller before the New York Task Force on 
Women in the Courts. Mr. Miller stated 
that until a particular incident caused the 
Executive Committee of the State Bar to 
realize that women's exclusion from 
business oriented clubs constituted a 
barrier to their full participation in the 
profession and propose a policy barring the 
conduct of official business at places 
which discriminate against women, the State 
Bar "had many meetings" at the Century 
Club. Testimony of Henry G. Miller before 
the New York Task Force on Women in the 
Courts, Nov. 19, 1985, at 55-56.

41



Housing Failure: Jailed Landlord S a vs  Ho

Lost to System, N.Y. Times, Mar. 24, 1984, 
at B2 5, col. 3. Ralph Lauren showed his 
1984 fall collection at the Union League 
Club, Ralph: Get Dressed. New York Post,
Apr. 30, 1984, at 6, col. 1. The Union
League was also the site chosen by Hyatt 
Corporation Chairman Jay A. Pritzker for a 
meeting with Braniff Airline creditors to 
discuss a takeover proposal. Improved 
Braniff Aid Plan Reported. N.Y. Times, Apr. 
1983, at 29, col. 1.

Despite CBS' company policy of nonsup­
port for discriminatory private clubs, see 
footnote 5, supra. the CBS board of 
directors met with Lawrence Tisch at the 
Links Club to discuss his purchase of CBS 
stock. Diamond, The Tisch is in the Mail. 
N.Y., Sept. 1, 1986, at 36. The president
and chief operating officer of American 
Airlines met with securities analysts at

42



the Union Club. American Air's Lov-Cost
Program. N.Y. Times, Mar. 1, 1984, at Dl,
col. 2. Clearly, Gottlieb, Steen &
Hamilton held its 1983 semi-annual dinner 
at the Harmonie Club, Legal Couples. 
Balancing Act. Legal Times of N.Y., Nov. 
21, 1983, at 1, col. I.20

On the first Monday of each month the 
Tax Forum, a group of New York's leading 
tax attorneys, meets at the University Club 
to explore current taxation problems and 
deliver papers which are subsequently 
published in professional journals. Wise, 
A Who's Who of Tax Lawyers. N.Y.L.J., June 
20, 1983, at 1, col. 1. The University
Club was also the site for a public forum 
on apartheid and disinvestment convened by 
the Manhattan Institute for Policy Re-

20 The Harmonie Club has recently
changed its rules and admitted women to 
membership in conformance with Local Law63.

43



search. Apartheid Discussion at an All- 
Male Club. N.Y. Times, Nov. 11, 1985, at
A18, col. 3. In a 1980 letter to its 
membership, the University Club's president 
advised that in 1979 the club has derived 
$1,072,200 from business entertaining and 
stated that this figure represented a
"significant percentage" of the club's
total revenue. Francke, 
June 2, 1980, at 29, 30.21

Club Mad. N.Y. ,

These are but a few examples of the 
extensive business activities conducted at 
so-called "private" clubs in New York 
City.22 One can begin to gauge the full

21 The University Club has also 
recently changed its rules and admitted 
women to membership.

Amici have cited these particular 
examples of business at New York City's 
"private" clubs because the public report­
ing of these events makes clear that the 
commercial nature of much of the activity 
at these clubs is widely known. The New 
York City Commission on Human Rights 
documented numerous other instances of

44



extent of this activity from the letter of
the former University Club president to its
membership cited above:

A recent analysis of dues and expense 
payment showed that nearly 40% of 
receipts were paid by checks drawn on 
business accounts; this is only a part 
of the total, since many persons pay 
on their own account and then obtain 
reimbursement from employers. It may 
be assumed conservatively that 
employers are the source of well over 
50% of our dues and fees.

Letter of J. Wilson Newman, dated March 31,
1980.23

That clubs are an integral part of 
business life throughout the country is 
evident from numerous sources. In 1980 the

business events at "private" clubs in the 
complaints initiated by the Commission 
against the Century Association, Union 
League and University Club (Jan. 31, 1986)
and the New York Athletic Club (Mar. 19, 1987) .

23 This letter is appended to the 
1980 Statement on Behalf of the New York 
City Commission on the Status of Women 
cited at 24 infra. which has been lodged 
with the Court.

45



National Club Association estimated that
37% of city clubs' income and 26% of 
country clubs' income came from company 
paid memberships, The All-Male Club; 
Threatened on all Sides, supra. n.l at 90, 
and that half of the approximately 300,000 
federal contractors paid or reimbursed 
certain dues or expenses incurred by their 
employees at private clubs, Comments of the 
Nat'l Club Ass'n re: Regulations Proposed 
by the Dep't. of Labor, Office of Federal 
Contract Compliance Programs, Dealing With 
Payments by Federal Contractors to Private 
Organizations (Mar. 24, 1980). Tax 
deduction of members' dues and club-related 
expenses in private clubs is pervasive. In 
1986 a U.S. News and World Report "Tax 
Tips" column listed as an item that may be 
deducted in whole or in part "Dues to a

46



luncheon club used for business meet­
ings."24 When Record Keeping Pavs Off. 
U.S. News and World Report, Mar. 17, 1986, 
at BC-218. The Wall Street Journal coun­
seled executives to seek club memberships 
as an executive perquisite, Executive 
Dreams: What Benefits to Request Under New 
Tax Law. Wall St. J., Oct. 28, 1986 at 37, 
col. 3. One survey found that 58% of the 
banks and 53% of the savings and loan

24 Since each deduction constitutes 
a representation to the government that 
club activities are business-related, such 
practices contradict any argument that 
clubs are purely social organizations. The 
federal Internal Revenue Code provides that 
only "the ordinary and necessary expenses 
paid or incurred during the taxable year in 
carrying on any trade or business" may be 
deducted from income taxes. 26 U.S.C. § 
162. For the deduction to be allowed for a 
club-related expense, federal tax regula­
tions further require that a club be used 
for business purposes at least 50 percent 
of the time. Treas. Reg. § 1.274- 
2(e)(4)(iii) (1982). Treating club-related expenses as a business deduction is thus 
prima facie evidence that membership is for 
a business purpose rather than an intimate 
association.

47



associations contacted regularly paid 
membership dues in private organizations 
for their executives. Burns, supra n.l, 18 
Harv. C.R.-C.L. L. Rev. at 329 n.22. A 
recent comprehensive survey of executive 
perquisites revealed substantial percen­
tages of the seven industry groups studied 
paying for luncheon and supper club dues 
for one or more management levels. 
Executive Compensation Services, Inc., 
Executive Perquisites Report 1986/87 66-69 
(1986) . Many law firms reimburse lawyers 
for dues and even those that do not repay 
client entertainment charges spent at such 
clubs. ’’Male11 Clubs: Bar Leaders are 
Members, supra. n.4 at 1.

In considering where "on the spectrum 
from the most intimate to the most attenu­
ated of personal attachments," a club falls 
and "whether others are excluded from 
critical aspects of the relationship"

48



Roberts. 468 U.S. at 620; Rotary. 481 U.S.
at ___, 107 S.Ct. at 1946, business
activity on club premises must be taken 
into account. Appellant places great 
weight on U.S. Power Squadrons v. State 
Human Rights Appeal Board 59 N.Y.2d 410, 
452 N .E.2d 1199, 465 N.Y.S.2d 871 (1983) in 
which the New York Court of Appeals 
enunciated factors to be used in determin­
ing whether a club is "distinctly private", 
and presses its members' selectivity in 
membership choices. But however its members 
are chosen, when those members regularly 
use their clubs as extensions of their 
businesses, the clubs forfeit any claim to 
a right of intimate association.

As the New York Court of Appeals 
stated in rejecting appellant's challenge 
to the legislation here at issue:

[Local 63] merely spells out objec­
tively in more concrete terms the 
circumstances when a club, because of

49



its large size, "public nature,” and 
volume of business-related activities 
will be deemed to have lost the 
essential characteristic of private­
ness i.e., selectivity. It is not 
unreasonable to determine that a large 
club which receives substantial 
business-related income from nonmem­
bers cannot be selective in its 
membership and use of its facilities.

New York State Club Association. Inc, v. 
City of New York 69 N.Y.2d 211, 221 (1987).

Local Law 63 does not eliminate 
private clubs. Rather it defines a 
previously undefined term in the New York 
City Human Rights Law, "distinctly pri­
vate", to differentiate between those clubs 
which function as intimate, social organi­
zations and those which function as 
extensions of the boardroom and the 
business office. Clubs which are truly 
private are not affected by Local Law 63. 
Clubs which are not currently "distinctly 
private" but wish to avoid Local Law 63's 
coverage can become so by genuinely pro­

50



hibiting business activity on their 
premises.

2. Local Law 63 Does Not Violate
Club Members7 Right Of Expressive 
Association. Any Infringement Of 
Club Members7 Freedom Of Expres­
sive Association Is Outweighed By 
The Compelling State Interest In 
Ensuring Nondiscriminatory Ac­
cess To Commercial Opportunities.

The right to associate for expressive 
purposes, the second branch of the freedom 
of association analysis, is grounded in
protecting the interests of organizations 
whose purpose for associating is "the 
advancement of beliefs and ideas." NAACP 
v. Alabama 357 U.S. 449, 460 (1958). The
impact of Local Law 63 is confined to clubs 
which, by virtue of the business related 
activities carried on there, demonstrate a 
commercial rather than an expressive 
purpose. See. e.g. . Hishon v. King and
Spaulding. 467 U.S. 69 (1984); Ohralik v.
Ohio State Bar Association. 436 U.S. 447,

51



459 (1978). When a club "enters the market 
place of commerce in any substantial degree 
it loses the complete control over its 
membership that it would otherwise enjoy if 
it confined its affairs to the market place 
of ideas." Roberts. 468 U.S. at 636, 
(O'Connor, J., concurring).

Members' social preference to perpetu­
ate the exclusion of women and minorities 
from business oriented clubs is not suf­
ficient to invoke First Amendment protec­
tion. As the New York Court of Appeals 
observed, "[A]lthough plaintiff's consti­
tuent members have a right to free speech 
and to association, they lack the right to 
practice invidious discrimination against 
women and minorities in the distribution of 
important business advantages and privi­
leges (see, Roberts v. United States 
Javcees 468 U.S. at p. [sic] 628, 104 S.Ct. 
at 3255 supra; Runyon v. McCrary. 427 U.S.

52



160, 175-176, 96 S.Ct. 2586, 2596-97, 49
L. Ed. 2d 415; Norwood v. Harrison. 413 U.S.
455, 469,, 93 S.Ct . 2804, 2812, 37 L.Ed. 2d
723) .II New York State Club Association,
Inc. V . Citv of New York. 69 N.Y .2d. at
224. (Emphasis in original.)

If there is any infringement of 
NYSCA's member's right of expressive 
association, "that infringement is justi­
fied because it serves the State's compel­
ling interest in eliminating discrimina­
tion..." Rotary. 481 U.S. at _, 107 S.Ct.
at 1947. Local Law 63 does not require 
clubs to abandon their membership criteria 
or alter their activities, except insofar 
as necessary to eliminate invidious dis­
crimination in the choice of members and 
members' and guests use of facilities. The 
law requires only that women and minorities 
be given the same opportunity as majority 
group men to join and benefit from the

53



commercial services and advantages that
membership in business oriented clubs
provides. As such, Local Law 63, "' res-
ponds precisely to the substantive problem 
which legitimately concerns' the State and 
abridges no more speech or associational 
freedom than is necessary to accomplish 
that purpose." Roberts. 468 U.S. at 629 
(quoting City Council v. Taxpayers for 
Vincent. 466 U.S. 789, 819 (1984)).

54



V

CONCLUSION
Local Law 63 is a constitutionally 

valid expression of New York City's compel­
ling interest in eliminating discrimination 
in the availability of commercial opportun­
ities and in no way infringes the right to 
either intimate or expressive free associa­
tion. Amici therefore submit that this 
Court should affirm the decision below.

Respectfully submitted,

Lynn Hecht Schafran 
Sarah E. Burns 
NOW Legal Defense and 

Education Fund 
99 Hudson Street 
New York, NY 10013 
Telephone: (212) 925-6635
Attorneys for Amici Curiae

Of Counsel:
Judith I. Avner 
54 Fernbank Ave. 
Delmar, NY 12054 
Telephone:

(518) 439-7752

Beverly Gross 
525 West End Ave. 
New York, NY 10024 
Telephone:

(212) 877-8109

55



A P P E N D I X



APPENDIX

AMICI'S STATEMENTS OF INTEREST

American Association of University 
Women (AAUW), a national organization of 
over 150,000 college-educated women and 
men, is strongly committed to achieving 
legal, social, educational and economic 
equity for women. For more than a century 
AAUW has worked toward those goals by 
responsible participation in public policy 
issues at local, state, national and 
international levels. In addition, AAUW 
has promoted the attainment of higher 
education for women in traditional and non- 
traditional fields by awarding fellowships 
totalling one million dollars annually.
Many AAUW members and former fellows are 
distinguished professional women whose 
exclusion from business-oriented private 
clubs has had a discriminatory impact upon

la



their careers and lives. AAUW opposes all 
forms of discrimination. Therefore AAUW 
has a strong interest in the outcome of 
this case.

American Jewish Committee ("AJC") is 
an organization of some 50,000 members 
which was founded in 1906 to protect the 
civil and religious rights of Jews. AJC 
has always believed that the civil and 
religious rights of Jews cannot be secure 
unless the civil and religious rights of 
all Americans are equally secure. AJC, 
therefore, is resolutely opposed to discri­
mination based on sex, race, religion or 
national origin. Our opposition to 
discrimination is not limited to matters of 
employment, housing and education, though 
it surely includes all of those. It 
extends also to discrimination by so-called 
private clubs, almost all of which are very 
much business-related. AJC considers club

2a



discrimination to be among the last major 
bastions of bigotry in our country, which 
must be eradicated. AJC has appeared 
before this Court as an amicus curiae in 
Roberts v. U.S. Javcees. supra and Rotary 
International v. Rotary Club of Duarte. 
supra. That is why AJC now joins in this 
brief in the instant case.

American Jewish Congress is an 
organization of American Jews founded in 
1918 dedicated to the preservation of the 
security and constitutional rights of Jews 
in America. It brings to the issue raised 
in this appeal the perspective of a 
national organization, selective in 
membership, with a particularist agenda 
dictated by that selectivity, yet one that 
is firmly committed to opposing racial, 
religious and sexual distinction and 
assuring all citizens equal access to truly 
public facilities.

3a



At the same time, American Jewish 
Congress is particularly sensitive to the 
need for protecting rights of intimate 
association and the concommittant right of 
expressive association to limit membership 
in ways which preserve and advance bona 
fide, ideological, religious, cultural or 
ethnic values and practices. We believe, 
however, that no true rights of expressive 
association are implicated by Local Law 63.

Americans for Democratic Action (ADA), 
is a progressive, independent political 
organization, is a national coalition of 
civil rights and feminist leaders, academi­
cians, business people and trade unionists, 
grass roots activists, elected officials, 
church leaders, professionals, members of 
Congress and many others. ADA is dedicated 
to the achievement of freedom, equality of 
opportunity, economic security and peace

4a



for all people through education and 
political action.

Association of Black Women Attorneys 
of New York is an organization of approxi­
mately 250 women committed to the advance­
ment of black women in the legal community 
as well as the profession. Our members are 
well aware that many "private" clubs in the 
city are centers for business activities 
and discussions, and serve as "extensions" 
of the office where business transactions 
are often initiated and concluded and 
important contacts are made. In addition, 
many of our members are invited to be 
present at these business events and are 
uncomfortable and inconvenienced at these 
"private" clubs, where women and minorities 
are officially excluded and/or denied 
membership and equal treatment. We are 
concerned about the impact of this situa­
tion upon our membership's professional

5a



careers and ability to function effectively 
as business partners. We support Local Law 
63 as a necessary measure to remedy this 
discrimination and appeared as an amicus in 
the case at bar before the New York Court 
of Appeals. New York State Club Associa­
tion v. City of New York, supra.

California Women Lawyers ("CWL") is a 
statewide bar association representing the 
interests of the approximately 15,000 women 
lawyers in the State of California. It has 
both individual members and 24 local 
affiliates throughout the state. The 
membership of CWL includes both male and 
female lawyers, judges and law students, 
all of whom are concerned with the legal 
rights and equal treatment of women. The 
ability of women to compete effectively in 
the marketplace has been and is being 
hindered by their exclusion from discrimi­
natory private clubs and organizations that

6a



foster the business goals of their all 
male, mostly all-white, membership. For 
this reason CWL took an active role in 
urging the California State Bar and the 
California Judicial Council to adopt a 
resolution and an amendment to the code of 
ethics, respectively, discouraging partici­
pation in private clubs which discriminate 
on the basis of sex, race or religion and 
in urging the adoption by the cities of San 
Francisco and Los Angeles of regulations 
similar to the one at issue in this case. 
CWL appeared before this Court as amicus 
curiae in Board of Directors of Rotary Int. 
v. Rotary Club, supra.

Connecticut Women's Educational and 
Legal Fund, Inc, is a non-profit organiza­
tion working for women's legal rights 
through litigation, public policy research, 
community education, and information and 
referral. It has over 400 members and

7a



serves over 3,000 individuals a year.
CWEALF has learned from the many women who 
call its organization with complaints of 
sex discrimination that it is as important 
to have equal access to the networks, 
information and support provided by 
activities and organizations outside of 
work as it is to receive equal treatment on 
the job. CWEALF joins this case because it 
supports Local Law 63 and other public 
accommodations statutes which prohibit 
discrimination against women and minorities 
in those clubs and activities which are a 
part of the commerce and civic life of our 
communities. CWEALF appeared before this 
court as amicus curiae in Roberts v. U.S 
Jaycees. supra and Rotary Int. v. Rotary 
Club, supra.

Equal Rights Advocates. Inc, is a San 
Francisco based, public interest legal and 
educational corporation specializing in the

8a



area of sex discrimination. It has a long 
history of interest, activism and advocacy 
in all areas of the law which affect 
equality between the sexes. Equal Rights 
Advocates, Inc. has been particularly 
concerned with gender equality in other 
aspects of society. ERA appeared before 
this court as amicus curiae in Roberts v. 
U.S. Javcees. supra and Rotary Interna­
tional v. Rotary Club of Duarte, supra.

Financial Women's Association of New 
York, Inc, is a non-profit organization 
composed of nearly 600 women and men 
members in the financial industries or in 
financial positions in other industries. 
FWA is a 31 year-old organization; it 
attracts speakers from the highest levels 
of business and government and has a full 
program year. In addition, it gives 
scholarships to MBA students, supports a 
high school mentoring program and every

9a



summer runs a college intern program. FWA 
is concerned that its members are denied 
access to private club where significant 
business decisions and activities are 
taking place. FWA supports Local Law 63 as 
a necessary measure to remedy this discri­
mination and appeared as amicus curiae in 
the case at bar before the New York Court 
of Appeals. New York State Club Associa­
tion v. City of New York, supra.

Hawaii Women Lawyers (HWL), an organ­
ization of approximately 200 members, was 
founded in 1976 for the purpose of further­
ing the goals of women attorneys in Hawaii. 
HWL was incorporated in 1982. The members 
have been involved in many projects which 
aid women lawyers and women in the commun­
ity in general. HWL has always viewed 
"private" clubs as discriminatory toward 
women and minorities. HWL members played 
key roles in opening the membership of the

10a



Honolulu Pacific Club to women. HWL sup­
ports Local Law 63 as a necessary measure 
to remedy the discrimination at business- 
related "private" clubs.

Hawaii Women Lawyers Foundation is a 
professional organization of women and men 
attorneys and others. One of its main 
purposes is to advance the status of women 
in the community. Members have been in­
volved in many projects which aid women 
lawyers and women in the community in 
general.

Foundation members are aware that many 
law firms and businesses sponsor membership 
for their key executives, pay for their 
club charges including meal bills and 
annual dues, and regularly use club facili­
ties for entertaining clients and conduct­
ing meetings.

The HWL Foundation supports the New 
York city Local Law 63 as a necessary

11a



measure to ensure women and minorities 
access to important business opportun­
ities .

Metropolitan Woman/s Bar Association 
(MWBA) is an organization of approximately 
350 men and women mainly involved in the 
trial bar in the metropolitan area of the 
City of New York and dedicated to the 
purpose of advancing women in the legal 
profession. Our women members are affected 
by exclusion from business oriented clubs 
in that this is a limitation on their 
access to business opportunities, business 
contacts and the power structures of the 
legal profession. MWBA supports Local Law 
63 as a first step in remedying this 
situation and appeared as amicus curiae in 
the case at bar before the New York Court 
of Appeals. New York State Club Associa­
tion v. City of New York, supra.

12a



The NAACP Legal Defense and Education
Fund. Inc., is a non-profit corporation, 
incorporated under the laws of the State of 
New York in 1939. It was formed to assist 
Black citizens in securing their constitu­
tional rights. In numerous cases before 
this Court, it has challenged discrimina­
tion against Blacks under the Constitution, 
and has also urged the full enforcement of 
the Civil Rights Act of 1964 to remedy the 
causes and effects of such prohibited and 
invidious discrimination.

Amicus has several interests in the 
outcome of the case. The NAACP Legal 
Defense Fund is committed to the elimina­
tion of all vestiges of discrimination on 
the basis of race and sex, and seeks to 
enforce the right of Blacks and women to 
access to opportunities from which they 
have so long been excluded. It recognizes 
the legal right of Blacks and women to gain

13a



entry into all aspects of their profes­
sional community. Amicus is acutely aware 
of the gross underrepresentation of Blacks 
in the professional arena, resulting from 
historical and persisten patterns of racial 
discrimination. An affirmance of the New 
York State Court of Appeals would notify 
private clubs who discriminate that they 
are not immune from the scrutiny under the 
laws prohibiting such discrimination.

National Coalition of Labor Union 
Women (CLUW) is an organization of 20,000 
members in 38 states. New York CLUW is an 
organization of approximately 600 men and 
women committed to the legal, economic and 
social advancement of women in the work­
force. CLUW members are well aware that 
many "private" clubs in the city are 
centers for business activities and 
discussions, and serve as "extensions" of 
the office where business transactions are

14a



often initiated and concluded and important 
contacts are made. In addition, many 
members are invited to be present at these 
events and are uncomfortable and incon­
venienced at these "private clubs," where 
women and minorities are officially 
excluded and/or denied membership and equal 
treatment. CLUW is concerned about the 
impact of this situation upon its member­
ship's professional careers and ability to 
function effectively. CLUW appeared before 
this Court as amicus curiae in Roberts v. 
U.S. Javcees. supra and Rotary Interna­
tional v. Rotary Club of Duarte, supra.

National Conference of Women's Bar 
Associations (NCWBA) is comprised of state 
and local women's bar groups across the 
nation, representing more than 10,000 women 
lawyers. Continued denial of access to the 
business contacts and amenities of leading 
discriminatory private clubs seriously

15a



impairs the ability of these women attorn­
eys to develop their client bases and 
advance their legal careers. Therefore, 
opening discriminatory clubs to women 
members has been one of NCWBA's priority 
goals since its founding in 1981.

National Organization for Women 
("NOW") is a national membership organiza­
tion of 150,000 women and men in over 750 
chapters throughout the country dedicated 
to assuring equal economic, social and 
political opportunity for all women. Since 
its founding in 1967, NOW has been the 
largest feminist membership organization 
dedicated to combatting sex discrimination 
and removing barriers to women's full 
participation in all aspects of American 
society. NOW participated as amicus before 
this court in Roberts v. U.S. Javcees. 
supra and Rotary International v. Rotary 
Club of Duarte, supra. NOW recognizes the

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importance of equal access for women to 
clubs which facilitate entry into a network 
of influential business and community 
leaders.

National Organization for Women Legal 
Defense and Education Fund (NOW LDEF) is a 
not-for-profit civil rights organization 
that performs a broad range of legal and 
educational services in support of women's 
efforts to eliminate sex-based discrimina­
tion and secure equal rights. NOW LDEF was 
founded in 1970 by leaders of the National 
Organization for Women.

Because the exclusion of women from 
clubs and organizations which significantly 
impact the business and civic life of the 
community affects far more women than is 
generally supposed, this is an issue with 
which NOW LDEF has been involved for many 
years. NOW LDEF worked closely with the 
Minnesota Attorney General over a five year

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period and filed several amicus briefs
including one before this Court in Roberts 
v. United States Javcees. supra. NOW LDEF 
also appeared before this court as amicus 
curiae in Rotary International v. Rotary 
Club of Duarte, supra. With respect to the 
case at bar NOW LDEF appeared as amicus 
curiae twice before the New York Appellate 
Division and before the New York of 
Appeals. The New York State Club Asso­
ciation v. City of New York, supra.

National Organization for Women-New 
York City (NOW-NYC) is a membership 
organization of 3,500 women and men 
committed to assuring economic, social and 
political opportunity for all women. NOW- 
NYC is the largest organization in the city 
dedicated to combatting sex discrimination 
and removing barriers to women's full 
participation in all aspects of American 
society. NOW-NYC has been an active

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supporter of Local Law 63, the legislation 
challenged herein, since its introduction 
in the New York City Council in 1980, and 
testified in support of the predecessor to 
this legislation, Intro. 513, at the City 
Council's July, 1980 hearings. NOW-NYC was 
an amicus in the case at bar before the New 
York Court of Appeals. New York State Club 
Association v. City of New York, supra.

National Organization for Women - New 
York State (NOW-NYS) is a membership 
organization of 20,000 women and men in 34 
chapters throughout the state committed to 
assuring equal economic, social and 
political opportunity for all women. NOW- 
NYS is the largest membership organization 
in the state dedicated to combatting sex 
discrimination and removing barriers to 
full participation of women in all aspects 
of American Society. Exclusion of women 
from clubs and organizations important to

19a



the community is a long standing concern of 
NOW-NYS, which participated as amicus 
curiae in the case at bar before the New 
York Court of Appeals. New York State 
Clubs Association v. City of New York. 
supra.

New York City Commission on the Status 
of Women was established by Mayoral 
Executive Order in 1975 to advise the Mayor 
of New York City on issues affecting the 
City's 3.5 million women, to support and 
promote the rights of women in the private 
and public sectors of New York City and to 
advocate change to promote women's equal­
ity. In 1980 and 1983 the Commission 
offered extensive testimony before the City 
Council in support of Intro. 513, now Local 
Law 63, the statute challenged herein.
This testimony addressed the extent of 
business activity at so-called "private" 
clubs, the exclusion of women from business

20a



events there or their humiliation while in
attendance (e.g. being directed not to sit 
in the lobby) and the importance of the 
proposed legislation.

In the years since Local Law 63 was 
originally introduced and since its 
enactment, whenever Commission officers or 
members have discussed this legislation at 
public fora, it has consistently evoked a 
high degree of positive repsonse from the 
audience, with many audience members 
subsequently advising the speaker that they 
are personally aware of business conducted 
at the city's "private" clubs because they 
had to attend meetings there in the course 
of their work, or, in some cases, have 
actually scheduled such meetings themselves 
for their employer organizations, unaware 
of the club's discriminatory membership 
policices. The Commission was an amicus in 
the case at bar before the New York Court

21a



of Appeals. New York State Club Associa­
tion v. City of New York, supra.

New York Coalition of 100 Black Women 
is a not-for-profit organization of 
aproximately 600 members organized under 
the laws of the State of New York. Its 
purpose is to act as an advocacy and 
educational organization of behalf of Black 
women and their families. Among the 
Coalition's goal is the advancement of 
Black women in business and community life. 
Our members are aware that substantial 
business is conducted at many of New York 
City's "private" clubs. The exclusion of 
women and minorities from membership in 
these clubs and the disparate treatment of 
women when they are guests at business 
functions at these clubs is a barrier to 
equal business opportunity and advancement. 
Local Law 63 is a necessary measure to 
remedy this discrimination. The Coalition

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appeared as an amicus in the case at bar 
before the New York Court of Appeals. New 
York State Club Association v. City of New 
York, supra.

New York Women in Communications.
Inc.. is an organization of approximately 
1,000 men and women committed to the 
advancement of women in the various areas 
of the communications industry, including 
advertising, newspapers, magazines, 
broadcasting, public relations, publishing, 
and film. Our members are well aware that 
many "private clubs in the city are centers 
for business activities and discussions, 
and serve as "extensions" of the office 
where business transactions are often 
initiated and concluded and important 
contacts are made. In addition, many of 
our members are invited to be present at 
these business events and are uncomfortable 
and inconvenienced at these private clubs,

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where women and minorities are officially 
excluded and/or denied membership and equal 
treatment. We are concerned about the 
impact of this situation upon our member­
ship's professional careers and ability to 
function effectively as business partners. 
We support Local Law 63 as a necessary 
measure to remedy this discrimination and 
appeared as an amicus curiae in the case at 
bar before the New York Court of Appeals. 
New York State Club Association v. City of 
New York, supra.

New York Women's Bar Association. The 
New York Women's Bar Association (NYWBA) is 
a non-profit membership organization of 
approximately 750 female and male attor­
neys, law graduates and law students 
committed to the advancement of women's 
rights. NYWBA cooperates with and aids and 
supports organizations and causes which 
advance the status and progress of women in

24a



society. NYWBA's primary goals are full 
access by women to equal opportunity in 
business, commerce, the professions and the 
community, to promote reforms in the law, 
to facilitate the administration of justice 
and the attainment of equality and justice 
under the law. NYWBA appeared as an amicus 
curiae in teh case at bar before the New 
York Court of Appeals. New York State Club 
Association v. City of New York, supra♦ 

Northwest Women's Law Center ("Law 
Center") is a non-profit, membership- 
supported organization based in Seattle, 
ashington, that seeks to promote the rights 
of women through law. The Law Center 
conducts educational programs as well as an 
information and referral service to advise 
women in the Pacific Northwest of their 
legal rights. It also sponsors litigation 
working toward the total elimination of sex 
discrimination, including the eradication

25a



of employment discrimination and of social 
and legal barriers that deny women full 
participation in the business and profes­
sional world. The Law Center appeared 
before this Court as amicus curiae in two 
previous cases involving issues similar to 
those in the case at bar. Roberts v. U.S. 
Javcees. supra. and Board of Directors of 
Rotary International v. Rotary Club of 
Duarte. supra.

San Francisco Women Lawyers Alliance 
(SFWLA) is a bar association comprised of 
women lawyers and other legal professionals 
practicing in the San Francisco bay area. 
The organization has filed a number of 
amicus briefs and lobbied for state and 
local legislation affecting economic and 
employment opportunities for women, 
including participating in regulatory 
proceedings to prevent private clubs that 
discriminate from receiving state liquor

26a



licenses and tax benefits. Recently, the 
Alliance assumed a leadership role in 
persuading both the Bar Association of San 
Francisco and the California State Bar 
Board of Governors to adopt resolutions 
denouncing the discriminatory membership 
policies of private clubs. In addition, 
the organization has helped secure local 
legislation similar to the New York. City 
Human Rights law that is currently under 
review. SFWLA appeared as an amicus before 
this Court in Board of Directors of Rotary 
International v. Rotary Club of Duarte. 
supra.

Women and Foundations/Corporate 
Philanthropy (WAF/CP) is a not-for-profit 
organization incorporated within the State 
of New York whose purposes are to increase 
the amount of money for programs that 
benefit women and girls and to enhance the 
status of women as decision-makers within

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private philanthropy. Its 700 female and 
male members are grantmakers, staff, 
trustees and individual donors and persons 
from organizations which serve the field of 
philanthropy. It is no secret that certain 
kinds of philanthropic work, e.g. trustee 
meetings, high level program presentations 
and policy luncheons, are often conducted 
in those important clubs founded originally 
by wealthy individuals (who make much of 
philanthropy possible) but now sustained 
largely by business dollars. Because 
WAF/CP's interest in ending this inequity 
is such that in 1981 it commissioned and 
published a paper, by Lynn Hecht Schafran, 
WELCOME TO THE CLUB! (No Women Need Apply): 
Withdrawing Financial Support from Clubs 
that Discriminate Against Women which went 
through two printings, sold approximately 
2,500 copies, and was the impetus for the 
adoption of policies by the Council on

28a



Foundations, similar organizations and 
foundations barring the use of discrimina­
tory clubs for business functions. WAF/CP 
supports Local 63 as a necessary measure to 
remedy this discrimination and appeared as 
a amicus in the case at bar before the New 
York Court of Appeals. New York State 
Clubs Association v. City of New York, 
supra.

Women7s Action Alliance is a national 
organization, founded in 1971, committed to 
furthering the goal of full equality for 
all women. The Alliance works toward this 
end by providing educational programs and 
services that assist women and women's 
organizations to accomplish their goals.
The Alliance recognizes the importance of 
women's access to "private clubs". These 
clubs serves as important vehicles for 
women and men alike as areas for network­
ing, informal negotiations, and business

29a



transactions. Barring women from these 
selective clubs prevents them from engaging 
in important transactions and inhibits 
their ability to function fully as busi­
nesswomen. The Alliance supports Local Law 
63 as a necessary measure to remedy this 
discrimination and appeared as amicus 
curiae in the case at bar before the New 
York Court of Appeals. New York State Club 
Association v. City of New York, supra.

Women's Bar Association of the 
District of Columbia (WBA), founded in 
1917, is a non-profit organization of 
approximately 1,600 attorneys with member­
ship open to members of the legal profes­
sion regardless of sex, race, creed, 
religion or national origin. The WBA was 
organized to maintain the honor and 
integrity of the legal profession, to 
promote the adminstration of justice, and 
to promote the advancement of women

30a



attorneys. Because the WBA is committed to 
these goals, we are concerned that member­
ship in such "private" clubs in the 
District of Columbia, New York City and 
other metropolitan areas not be closed to 
women attorneys and judges since these 
clubs are often centers of business 
activity and discussions. Contacts made 
there result in clients and bench appoint­
ments. To exclude women lawyers from such 
a source of professional development has a 
negative impact upon the careers of many of 
our members. This organization has sup­
ported a similar ordinance recently passed 
by the District of Columbia City Council 
outlawing discrimination in business- 
related "private" clubs.

Women's Bar Association of the State 
of New York (WBASNY) is a state-wide 
membership organization of more than 2,500 
female and male attorneys, law graduates

31a



and law students. WBASNY is concerned not 
only with the professional status of women 
attorneys, but also with the protection of 
the rights of all women in every field of 
human endeavor. It is commited to the 
removal of barriers which prevent women 
from achieving their full potential as 
equal participants in all facets of our 
society. In pursuit of this goal, WBASNY 
sought and was granted amicus status by the 
Court in Hishon v. Kina and Spaulding. 467 
U.S. 69 (1984) and in Meritor Savings Bank,
F.S.B. v. Vinson. 477 U.S. __, 106 S.Ct.
2399 (1986).

This organization has consistently 
opposed the exclusion of women from member­
ship in clubs nad organizations which do 
not function simply as social groups but 
which solicit, and are largely supported 
by, the revenue from business meetings and 
functions. Most such organizations

32a



tolerate the presence of women at some 
functions (frequently held in special rooms 
set aside for that purpose). However, the 
conduct of business in such a milieu denies 
women equal status with their male col­
leagues who retain power to decide whether 
women will be given even the opportunity to 
participate in decision making. For these 
reasons, WBASNY appeared as amicus curiae 
in the case at bar before the Court of 
Appeals of the State of New York. New York 
State Club Association v. City of New York. 
supra.

The Women's Equity Action League 
(WEAL) is a national non-profit membership 
organization specializing in economic 
issues affecting women and sponsors 
research, education projects, litigation 
and legislative advocacy. WEAL is commit­
ted to the full and effective enforcement 
of anti-discrimination laws at both the

33a



federal and state levels, to assure that 
all economic opportunities are available to 
women as well as men. WEAL participated as 
amicus curiae before this Court in Roberts 
v. U.S. Javcees. supra and Board of 
Directors of Rotary International v. Rotary 
of Duarte, supra.

Women's Law Project ("WLP") is a non­
profit feminist law firm dedicated to 
eliminating sex discrimination through 
litigation and public education. Since its 
founding in 1973, WLP has been concerned 
with institutional barriers to the advan­
cement of women at all levels of partici­
pation in society. WLP has represented 
women seeking admission to all male 
educational institutions and community 
organizations and strongly believes that 
participation in such organizations is 
fundamental to the ability of women to 
compete equally in business and community

34a



life. WLP appeared before this Court as 
amicus curiae in Roberts v. Javcees. supra 
and Rotary International v. Rotary Club of 
Duarte. supra.

Women's Legal Defense Fund ("WLDF") is 
a non-profit, tax exempt membership 
organization, founded in 1971 to provide 
pro bono legal assistance to women who have 
been discriminated against on the basis of 
sex. The fund devotes a major portion of 
its resources to combatting sex discrimina­
tion in employment, through litigation of 
significant employment discrimination 
cases, operation of an employment discrimi­
nation counselling program, and public 
education. WLDF's experience and knowledge 
—  gained from its members who, as profe­
ssionals, are disadvantaged by discrimina­
tory membership policies and from its 
clients who are similarly disadvantaged by 
exclusion from community and business

35a



organizations —  have demonstrated that 
such exclusionary policies result in a 
diminution of employment opportunities. 
WLDF appeared before this Court as amicus 
curiae in Roberts v. Javcees. supra and 
Rotary International v. Rotary Club of 
Duarte. supra.

36a