IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

INTRODUCTION

The defendants ("Yale") have a rule that they purport to apply inflexibly: Yale requires all college freshmen and sophomores to reside in Yale's co-educational dormitories. The plaintiffs, however, cannot reside in these dormitories because to do so would conflict with their religious convictions and obligations.

The plaintiffs contend -- and believe they can prove at trial -- that Yale's refusal to exempt them from its purportedly across-the-board residence rule is illegal because the rule is discriminatorily enforced against students who have religious objections to co-educational housing. Yale admits that it excuses everyone who is over 21 years of age from the rule, as well as anyone who is married -- whether or not the student resides off-campus with his or her spouse. And until very recently, any Yale student whose immediate family lived in New Haven was also exempted. Indeed, Yale appears willing to excuse any student who pays for a dormitory room from the requirement that the student actually live in the room -- thereby putting the lie to the assertion that residence in the dormitory is "important to its educational philosophy." Defendants' Memorandum in Support of Motion to Dismiss, p. 2 (hereinafter "Yale Memo").

Discovery will demonstrate, we believe, that there have been -- and continue to be -- other exemptions granted by Yale for a variety of reasons other than religious objection. Yale's arbitrary policy, under which religion-based exemption requests are denied while secular objections are respected and often accommodated, amounts to unlawful discrimination against religion and violates the plaintiffs' constitutional rights, which are protected by 42 U.S.C. § 1983. Yale, however, fails to address or defend, in its Motion to Dismiss, this discrimination against religion. Instead, Yale contends that it is legally free to discriminate at will against students who have religious objections to co-educational housing because, Yale claims, it is a "private college."

This argument, if sustained, would enable Yale to exclude all students of the Jewish faith from Yale College simply because they are Jewish. The very same constitutional rationale that today purportedly entitles Yale to require Orthodox Jewish students to reside in co-educational dormitories in violation of their religious convictions could, in theory, be applied tomorrow to justify a numerus clausus on Jewish admissions to Yale or a prohibition on the practice of Catholicism or Islam on the Yale campus. Assume, for example, that Yale had a residence rule excluding students of the Jewish faith from the most desirable suites in its dormitories. Or imagine that Yale segregated all Catholic students in one dormitory. The same reasoning that Yale embraces in its Motion to Dismiss could be used to justify the legality of those rules. Our contention is that, notwithstanding its claim to be a "private college," Yale could not legally enforce a residence rule that so patently discriminated on the basis of religion. By the same token, it may not now enforce a rule that discriminates, both in its practical effect and in its exemptions, against religious observers.

We acknowledge that the United States Constitution does not apply to discrimination on the basis of religion by schools that are truly private. But the same Constitution does forbid an institution like Yale -- a perpetual fixture of Connecticut's educational landscape that is enshrined in Connecticut's Constitution; a school with a long history of close interrelation and entanglement with, and financing by, the governments of the State of Connecticut, the City of New Haven, and the United States; and an institution that is governed by a board on which the Governor and Lieutenant Governor of Connecticut sit ex officio -- to engage in religious discrimination or to invoke and administer rules that deny to religious observers the same freedom and latitude given to non-observers. In short, this is not a case that challenges the housing policies of all private universities or that seeks to forge new constitutional principles affecting non-public entities. Rather, five claims in the plaintiffs' Amended Complaint rest on the legal proposition that Yale -- uniquely and distinctively -- has sufficient earmarks of a governmental institution so that, for the specific purpose of protecting the plaintiffs' constitutional rights that are violated by Yale's housing policy, Yale must be treated as a state actor.

The plaintiffs do not, as Yale suggests, reject "toleration." Yale Memo, p. 15. Indeed, these four students welcome the opportunity to live and learn with students from diverse backgrounds and traditions. That is why they applied to Yale, are still attending its classes, and are participating in its extra-curricular activities. But this openness to diversity does not mean that they can or should surrender their own religious principles.

The plaintiffs do object to Yale's intolerant, illiberal, and dismissive attitude toward their religious obligations. Yale's response to the plaintiffs' requests for accommodation makes it clear that Yale neither appreciates nor understands the nature of religious obligation and that it regards religion as no more than a hobby -- an idiosyncratic preference or taste. Yale's own Professor Stephen Carter severely criticized this attitude in The Culture of Disbelief (1993). Because of this dismissive attitude, Yale persists in demanding that its current educational and residential philosophy -- which mirrors trends in popular culture and morality -- should override conscientious convictions based on beliefs and laws that are over three thousand years old.

We also note that Yale is trying, before the case even begins, to choke off the discovery that is needed to develop more fully the factual basis for the plaintiffs' "state-action" allegations. We will respond separately to Yale's Motion to Stay Discovery. But it should be clear to the Court that the plaintiffs would be denied the due process granted and guaranteed by the Federal Rules of Civil Procedure if they were barred at the very inception of this litigation from obtaining information that is exclusively within Yale's control and that will demonstrate not only the discriminatory nature of Yale's housing policy but also the substantial interrelationship and interdependence between Yale and the government of the State of Connecticut.

ARGUMENT I:
THE PLAINTIFFS SHOULD BE PERMITTED TO PROVE THAT YALE IS SUBJECT TO CONSTITUTIONAL LIMITATIONS AS A "STATE ACTOR"

The plaintiffs allege that Yale is subject to the constitutional limitations of the First and Fourteenth Amendments regarding free exercise of religion because, in the words used by the Supreme Court in Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 383 (1995), Yale is a "nominally a private corporation" that "must be regarded as a Government entity for First Amendment purposes." The plaintiffs' Amended Complaint sets out, in detail, some of the historical basis for this assertion, and the plaintiffs are "entitled to offer evidence to support [their] claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

A. Dismissal at this Early Stage Is Improper.

Yale forgets that the Supreme Court warned in Scheuer that "[t]he issue on a motion to dismiss] is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Ibid. The Court added that even if, at this early stage, "recovery is very remote and unlikely," a plaintiff is entitled to proceed. Ibid. "[D]ismissal is warranted only if, under any set of facts that the plaintiff can prove consistent with the allegations, it is clear that no relief can be granted." Kramer v. Pollock-Krasner Foundation, 890 F. Supp. 250, 254 (S.D.N.Y. 1995) (citing Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991)).

These principles are particularly applicable in a case such as this one, where the plaintiffs' claims are necessarily factbound and context-sensitive. Our allegation that Yale's housing policy is not in fact "generally applicable" within the meaning of Employment Division v. Smith, 494 U.S. 872 (1990), and our claim that Yale's housing policy is "state action" under § 1983, will require careful analysis of the particular facts of this case. These claims should not be dismissed before the plaintiffs have had an opportunity to engage in the discovery to which they are entitled and to introduce supporting evidence. In Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996), for example, the court determined that the University of Nebraska's refusal to exempt an evangelical Christian student from the University's rule requiring freshmen to live in co-educational dormitories violated the Free Exercise Clause. Discovery and a bench trial had revealed that exemptions were often granted for non-religious reasons. 924 F. Supp. at 1543 & n. 2, 1546-49. Such proof was not available to Douglas Rader at the time he filed his complaint, yet it proved crucial to the court's decision.

B. "State Action" Depends on Multiple Factors.

There is no "unitary test" for determining whether an institution that calls itself private is a "state actor" for constitutional purposes. Rather, the "facts of each case determine the test." Imperiale v. Hahnemann University, 776 F. Supp. 189, 195 (E.D. Pa. 1991). "The Supreme Court demands that that each case stand solely on its facts . . . . The cases on state action suggest principles not rules." Guillory v. Administrators of Tulane Univ., 212 F. Supp. 674, 683 (E.D. La. 1962). There will rarely be a "bright line" separating conduct governed by the Bill of Rights from conduct that is not. As the Supreme Court observed in Moose Lodge v. Irvis, 407 U.S. 163, 172 (1972), "[T]he question of whether particular discriminatory conduct is private, on the one hand, or amounts to 'State action,' on the other hand, frequently admits of no easy answer."

C. Yale Will Be Shown To Be a "Government Entity" Under Lebron.

The plaintiffs' initial "state action" theory is that Yale will, after discovery and a presentation of evidence, be shown to be a "Government entity" under Lebron, supra. The Lebron case concerned Amtrak, which was created explicitly as a "for profit corporation" to assume services previously provided by private railroads to the traveling public. 513 U.S. at 385. Amtrak was incorporated as a private business under the District of Columbia Business Corporation Act. Ibid. Its authorizing federal statute explicitly declared that Amtrak "will not be an agency or establishment of the United States Government." 513 U.S. at 391 (quoting 84 Stat. 1330).

The Supreme Court - with only one Justice dissenting - held that Amtrak is "an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution." 513 U.S. at 394. The Court rested that conclusion on an analysis of the reasons for Amtrak's creation, the objectives it was designed to further, and the President's role in appointing directors of the corporation. 513 U.S. at 394-400. These same factors result in a determination that Yale, as well, is "an agency or instrumentality" of government "for the purpose of individual rights guaranteed" by the United States Constitution.

(1) Creation of Yale - Not only was Yale created by official organs of Connecticut government, but it has been given permanent status by its enshrinement in the Connecticut Constitution. The Supreme Court emphasized that "Amtrak was created by a special statute, explicitly for the furtherance of federal governmental goals." 513 U.S. at 397. Can there be any doubt that if Amtrak had been explicitly named in the United States Constitution and its existence thereby insured for the entire life of the Republic, that fact alone would have made it "an agency or instrumentality of the United States"? Indeed, we know of no entity specifically named and granted permanent existence by the Constitution of the United States that is not an "agency or instrumentality of the United States."

(2) Objectives of Yale - Whereas Amtrak was created by federal statute to take over functions that had previously been carried out by private railroad companies, Yale was created to provide a public service that was thought, at the time, to be a governmental duty - providing an education at the college level. Those who drafted the 1701 Act for Liberty to Erect a Collegiate School were clear about their public purpose in seeking a school "wherein Youth may be instructed in the Arts & Sciences who [through] the blessing of Almighty God may be fitted for Publick employment . . .." See Amended Complaint ¶ 18. And that public governmental function served by Yale has been perpetuated by its explicit designation in the Connecticut Constitution and the great degree of financial and other assistance that Connecticut and the City of New Haven - as well as the federal government - have provided to Yale. The inclusion, at a later date, of the University of Connecticut in the Connecticut Constitution as another educational institution supports the conclusion that both Yale and the University of Connecticut are equal partners in furthering the public objective of providing quality education at the college and graduate level.

(3) Yale's governmental directors - By statute, the Governor and Lieutenant Governor of Yale are ex officio members of Yale's governing board. Amended Complaint ¶¶ 39, 45. If the President and Vice-President of the United States had been designated by statute to sit on Amtrak's board, would there have been any doubt whatever that it was a "governmental entity"?

The fact that, in addition to the Secretary of Transportation, the President appoints five members of the Amtrak board - whom he does not control after the initial appointment and whom he cannot remove from office - provides less governmental control than does continuing membership on Yale's governing board by the State's Chief Executive Officer and his deputy. Nor are the Presidential appointees on the Amtrak board selected from the public at large. The statute specifies a limited group of individuals - only one of whom occupies any governmental position - who may qualify. And as to two of the Presidential appointees, they must be chosen "from a list of names submitted by various commuter rail authorities"; two others must be selected from individuals recommended by labor unions and railway-business interests. 513 U.S. at 385. The relevant Amtrak statutes therefore give the federal government less control over that entity than might appear at first blush.

(4) The Lebron "formula" - Yale asks this Court to extract from Lebron's fact-intensive inquiry a "three-pronged" formula that would limit Lebron's reasoning to the particular facts of that case. Yale Memo, p. 7. As it happens, the first two factors relied on in Lebron are indisputably present in this case: Yale is without question, as the plaintiffs have alleged, a creature of the State of Connecticut, and it was formed to advance important public objectives.

Yale insists that it cannot be a state actor under Lebron for the single, simple reason that the State of Connecticut has not "retained permanent authority to appoint a majority of the members of the Yale Corporation or any governing body at Yale University." Yale Memo, p. 7. The Court in Lebron did not hold that state-action analysis hinges on the number of directors who are public officials or who are appointed by public officials. Instead, the Court held that, for a variety of reasons, Amtrak was an agency of the United States for the purposes of the individual rights guaranteed against the government by the Constitution. 513 U.S. at 394. The question in Lebron was not how many ex officio directors there were, but whether particular conduct or a particular policy could be fairly attributed to the government for individual-rights purposes. In answering this question, courts may and should consider all the facts that, individually or collectively, indicate government influence. Compare, e.g., Krynicky v. University of Pittsburgh, 742 F.2d 94, 102-103 (3d Cir. 1984) (finding state action where, inter alia, several government officials were ex officio trustees and the state appointed one-third of the trustees); Isaacs v. Board of Trustees of Temple University, 385 F. Supp. 473 (E.D.Pa. 1974) (same).

The Court made it clear in Lebron that it was not imposing a rigid "three-pronged" test and that a corporation need not look exactly like Amtrak to be a state actor for individual-rights purposes. 513 U.S. at 386-391. Instead, the Court "place[d] Amtrak within its proper context." 513 U.S. at 386. For example, although the federal government has long created corporations to achieve public purposes - beginning with the Bank of the United States, authorized in 1791 - only in this century, with the building of the Panama Canal, did it begin to appoint a majority of the directors of those corporations. 513 U.S. at 386-387. Throughout the Twentieth Century, the Court noted, the government has often resorted to the corporate form, sometimes purporting to create "private" entities that were controlled by government officials, other times not. 513 U.S. at 390-391. Comsat, for example, was controlled by private shareholders, and only 3 of 15 directors were appointed by the President. Ibid. Amtrak, the Lebron Court noted, was simply "another variation upon the Comsat theme." 513 U.S. at 391.

Yale and Amtrak were both created to promote and advance what the government believed was a public good. Yale and Amtrak both have ex officio directors and both have directors drawn from the private sector. Yale's status as a public actor has been confirmed for nearly 200 years in the Constitution of the State of Connecticut; Amtrak has no such long public pedigree. Both Amtrak and Yale are heavily subsidized by government funds. The plaintiffs have alleged a variety of facts - and will, after discovery, produce more - that demonstrate sufficient government involvement and control to bring this case within the rule of Lebron. See Amended Complaint ¶¶ 39-52. Lebron compels one conclusion: The plaintiffs have stated a claim that Yale, like Amtrak, may not violate the plaintiffs' constitutionally protected rights.

D. For a Combination of Reasons, Yale's Acts Are "Governmental Action" For Purposes of Preventing Unconstitutional Religious Discrimination.

The Second Circuit has repeatedly observed that the balancing of factors required by the inquiry into "state action" will vary depending on the nature of the constitutional right asserted. Weise v. Syracuse University, 522 F.2d 397, 406 (2d Cir. 1975) ("[A] consideration of whether there is state action necessarily entails a balancing process."); Wahba v. New York University, 492 F.2d 96, 100 (2d Cir. 1974) ("We do not find decisions dealing with one form of state involvement and a particular provision of the Bill of Rights at all determinative in passing upon claims concerning different forms of government involvement and other constitutional guarantees."). Accordingly, as Judge Friendly once observed, courts are more likely to find state action when conduct that is particularly offensive to constitutional norms - such as discrimination on the basis of race, religion, or sex - is alleged. Grafton v. Brooklyn Law School, 478 F.2d 1137, 1142 (2d Cir. 1973); see Weise, 522 F.2d at 405-407; Coleman v. Wagner College, 429 F.2d 1120, 1127 (2d Cir. 1970) (Friendly, J., concurring); Jackson v. Statler Foundation, 496 F.2d 623, 635 (2d Cir. 1974).

Judge Higginbotham provided a helpful illustration of factbound, context-sensitive, state-action analysis in Isaacs v. Board of Trustees of Temple Univ., 385 F. Supp. 473 (E.D.Pa. 1974). In that case, two former faculty members sued the University under § 1983 and the University responded, as Yale does here, by insisting that it was a "purely private" institution. 385 F. Supp. at 474. After a detailed analysis of prior case-law, Judge Higginbotham concluded that "[o]n the basis of my reading of the extensive record in this case, I have concluded that the Commonwealth of Pennsylvania has so significantly involved itself in the affairs of Temple University that the latter's activities satisfy the requirements of 'state action' and action 'under color of' state law as set forth in Burton v. Wilmington Parking Authority, . . . , and its progeny." 385 F. Supp. at 495. Although Isaacs was decided before the Supreme Court's 1982 trilogy of state-action cases, it has been subsequently re-affirmed, and it remains good law. See Schier v. Temple University, 576 F. Supp. 1569 (E.D.Pa. 1984); Krynicky v. University of Pittsburgh, 742 F.2d 94 (3d Cir. 1984), cert. denied, 471 U.S. 1015 (1985).

The plaintiffs have alleged, as did the plaintiffs in Isaacs, a variety of facts establishing that Yale's housing policy is state action for purposes of § 1983 because of the unique nature of the relationship between Yale and the government. See Amended Complaint ¶¶ 18-52. All of these facts tend to show that Yale is a state actor and its housing policy is state action for § 1983 purposes. When combined, these facts are at the very least sufficient to permit the plaintiffs to discover and introduce evidence to support their civil-rights claims.

II: YALE'S EXEMPTIONS FROM ITS RESIDENCE RULES ARE NOT NEUTRAL AND DISCRIMINATE AGAINST RELIGION

The First Amendment's Free Exercise Clause shields religious observers against non-neutral laws or unequal administration of laws that inhibit religious observance. Employment Division v. Smith, 494 U.S. 872 (1990); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). "A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny." Lukumi, supra, 508 U.S. at 546 (emphasis added); see Hartmann v. Stone, 68 F.3d 973, 978-79 (6th Cir. 1995). Yale acknowledges that its housing policy interferes with the plaintiffs' religious obligations as Orthodox Jews, but it claims that its "residential requirement is neutral and generally applicable because it applies to all single freshmen and sophomores who are under the age of 21." Yale Memo, p. 14. This is no more than a "conclusory statement" that will be refuted by the plaintiffs with evidence regarding the selective administration and application of the residence rules. The plaintiffs will show that Yale's policy is not, in fact, "neutral" and "generally applicable" because exemptions are granted on an ad hoc and arbitrary basis that discriminates against the objections of religious believers. Such a policy is unconstitutional. See Smith, 494 U.S. at 884; Lukumi, 508 U.S. at 533-540; Rader v. Johnston, 924 F. Supp. 1540, 1552-1553 & n. 23 (D. Neb. 1996).

Rader v. Johnston soundly refutes Yale's claim that its housing rule is immune from constitutional attack merely because of its facial neutrality. Rader not only vindicates the plaintiffs' constitutional argument, it also demonstrates why this Court should not dismiss this case before the plaintiffs have had the opportunity to conduct discovery regarding Yale's discriminatory housing policy. Yet Yale banishes its discussion of this crucial case to a footnote and only half-heartedly attempts to distinguish it.

In Rader, a freshman at the University of Nebraska-Kearney ("UNK") claimed that the University's rule requiring all freshmen to live on campus violated the First Amendment. Like the plaintiffs in this case, Douglas Rader argued that his religious lifestyle and duties would be disrupted if he were forced to live in the University's dormitories because of the prevalence of underage drinking, drug use, co-habitation and sexual activity, smoking, etc. 924 F. Supp. at 1544-1546. The University administrators, like the defendants in this case, refused any exemption or accommodation, insisting that the residence rule "fosters diversity, promotes tolerance, increases the level of academic achievement, and improves the graduation rate of its students." Ibid.

After discovery, a bench trial, and a thorough and detailed review of the facts and evidence, the court concluded that UNK's policy, at least as applied to Douglas Rader, violated the First Amendment. First, the court concluded that the policy was not "generally applicable," because "administrators grant exceptions to the policy, at their discretion, in a broad range of circumstances not enumerated in the rule and not well defined or limited." 924 F. Supp. at 1552. The UNK's on-campus housing requirement, like Yale's, provided explicitly for only a few exemptions: (a) students living at home and commuting; (b) freshmen students over the age of 19; and (c) married freshmen students. 924 F. Supp. at 1544. The court found, however, that "[f]urther exceptions are granted on an ad hoc basis. . . ." 924 F. Supp. at 1544. The court discussed how UNK officials had over the years granted exemptions for a variety of personal reasons, yet had stubbornly refused to let any freshmen live at the Christian Student Fellowship house. 924 F. Supp. at 1554.

The court also determined that the policy was not neutral "in purpose and effect" (924 F. Supp. at 1553) because Douglas Rader was able to show that administrators treated his religion-based request for an exemption with less care and consideration than other requests. The court observed that the testimony of administrators "manifested a degree of antipathy toward members of [the Christian Student Fellowship]." 924 F. Supp. at 1554 & n. 26. Using language strikingly similar to that used by Yale officials in this case, the UNK Chancellor testified that "students who do not wish to live in the residence halls for religious reasons should not attend UNK." 924 F. Supp. at 1549. Because UNK's rule was - despite appearances to the contrary - not in fact neutral, the court required UNK to justify its infringement of Douglas Rader's fundamental rights with a compelling state interest, a burden that UNK was unable to meet. 924 F. Supp. at 1556. The court concluded that "although [the University's] interests are certainly legitimate, . . . they do not rise to the level of 'interests of the highest order' not otherwise served." 924 F. Supp. at 1556-1558.

Three important lessons that apply to this case may be derived from Rader. First, despite the residence rule's facial neutrality, the court in Rader held that the rule did not measure up to the standard of Smith. "A finding of mere facial neutrality . . . does not end the inquiry. To pass constitutional muster a governmental law or policy must also be neutral in purpose and effect." Rader, 924 F. Supp. at 1553; see Lukumi, 508 U.S. at 531-533. Second, despite the University's protests to the contrary, the court in Rader determined that the housing policy was not in fact generally applicable, and that the policy in fact discriminated against religion-based requests for exemptions. Third, the court in Rader provided the plaintiff with adequate opportunity to discover and present evidence regarding the University's policy and past practices, evidence that proved crucial to the court's decision. See also Storm v. Town Of Woodstock, 944 F. Supp. 139, 145 (N.D.N.Y. 1996) (noting that "[w]hether a challenged law is generally applicable or not is not always readily apparent" and concluding that free-exercise plaintiffs were entitled to discovery regarding the issue of fact regarding the law's general applicability); Toback v. Bratton, 903 F. Supp. 556, 558 (S.D.N.Y. 1995) (factual issues regarding general applicability prevented summary judgment).

Moreover, in this case, the plaintiffs are asserting "hybrid" constitutional claims. They claim that the Free Exercise Clause is involved "in conjunction with other constitutional protections." Smith, supra, 494 U.S. at 881. The plaintiffs contend that their rights of privacy are infringed as well as their First Amendment right of association. See pp. 18-19, 23-24, infra. Therefore, even if Yale were able to prove that its residence policy were truly "neutral" toward religion and in fact "generally applicable," the First Amendment would require this Court to subject the policy to the most rigorous scrutiny. See Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525, 539 (1st Cir. 1995) (recognizing availability of "hybrid" claims), cert. denied, 116 S.Ct. 1044 (1996); Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 472-473 (8th Cir. 1991) (remanding for consideration of hybrid free-exercise / equal-protection / free-speech claim).

III: YALE'S RESIDENCE POLICY CONSTITUTES COMPELLED EXPRESSIVE ASSOCIATION

By requiring the plaintiffs to live in Yale's co-educational housing, where sexual immodesty and promiscuity are both common and tolerated, Yale has unconstitutionally compelled the plaintiffs to engage in expressive association. Amended Complaint ¶¶ 82, 83. It is "firm constitutional doctrine," however, that state actors may not "compel individuals to speak or think in prescribed ways" or act as the "molder of minds." Carroll v. Blinken, 957 F.2d 991, 995-996 (2d Cir. 1992), cert. denied, 506 U.S. 906 (1992); see West Virginia Board of Education v. Barnette, 319 U.S. 624, 645 (1943); Wooley v Maynard, 430 U.S. 705, 714-715 (1977).

In a long line of cases, most noteworthy of which is Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the United States Supreme Court has recognized that the First Amendment protects against compelled expressive association. While Abood and its progeny have involved the member-funded activities of labor unions and integrated state bar associations, it is clear that the principles outlined in those cases apply in the context of a university as well. See Carroll, 957 F.2d at 997; Galda v. Rutgers, 772 F.2d 1060, 1064 (3d Cir. 1985), cert. denied, 475 U.S. 1065 (1986).

Yale repeatedly asserts that "there is no particular ideological organization or ideology which plaintiffs would be compelled to join, associate with or support." Yale Memo, pp. 14-16. This assertion simply demonstrates that Yale misunderstands the plaintiffs' compelled-expressive-association claim. We are not seeking to prevent Yale from tolerating a "full range of political and social views." Yale Memo, p. 15. Nor do the plaintiffs object to "encountering" sexual immodesty or associating with students whose beliefs they find offensive and wrong. Id. at 16. Rather, the plaintiffs assert that they are being forced by Yale to engage in expressive association by sleeping, bathing, and living in the co-educational, rule-less dormitories that Yale claims best serve its own educational "philosophy." See Yale Memo, p. 2 & nn. 2-3.

The plaintiffs believe, as a matter of religious faith and obligation, that it is wrong for unmarried people of the opposite sex to live, sleep, dress, and bathe together in the manner Yale requires of its students. Amended Complaint ¶¶ 1, 57. This belief is, of course, protected by the First Amendment. Moreover, Yale acknowledges, as it must, that the First Amendment forbids compelled expression with which one disagrees. At the same time, Yale admits that its housing policy is part and parcel of its educational philosophy about how best to mold and change its students' minds. See Yale Memo, p. 2 n.2. The plaintiffs contend that Yale's mandatory co-educational housing policy advances and is part of a "politically correct" ideology of sexual permissiveness and moral relativism, a secular orthodoxy that is both hostile and dismissive of traditional and especially religious values, beliefs, and obligations. By requiring the plaintiffs to pay for rooms in Yale's co-educational dormitories and to sleep in those rooms, Yale has gone beyond compelling the plaintiffs to meet and "encounter" other people with different ideas. It has compelled the plaintiffs themselves to engage in and financially support expressive and symbolic activity which they find objectionable.

IV: YALE'S RESIDENCE POLICY DENIES THE PLAINTIFFS EQUAL PROTECTION OF THE LAWS

Yale's housing policy creates classifications that result in the disparate treatment of similarly situated students. These classifications impose a substantial burden on the students' fundamental rights. We submit that there is no rational basis for the policy's classifications. Nor can Yale justify the policy with a "compelling public interest," as is required under strict-scrutiny analysis. See, e.g., Brown v. Borough of Mahaffey, PA, 35 F.3d 846, 850 (3d Cir. 1994) (reciting constitutional equal-protection tests). These allegations therefore clearly state a claim under the Equal Protection Clause.

To be sure, some courts have upheld university residence rules in the face of equal-protection challenges. See Yale Memo, pp. 17-18 & n. 17. The only one of these decisions that binds this Court is Bynes v. Toll, 512 F.2d 252 (2d Cir. 1975), which is easily distinguishable from this case. In that case, students argued that the State University of New York at Stony Brook was required to let married students with children live in housing designated for married students without children. 512 F.2d at 253. The court correctly held that the University's "no children" rule was rationally related to the legitimate public interest in child safety. 512 F.2d at 256-257. The rationality of Yale s particular residence rule - especially given the fact that Yale requires co-educational housing - is an open question for this Court. See Cooper v Nix, 343 F. Supp. 1101 (W.D.La. 1972), aff'd in relevant part, 496 F.2d 1285 (5th Cir. 1974); Mollere v. Southeastern Louisiana College, 304 F. Supp. 826, 828 (E.D. La. 1969) (residence rule that applied to freshmen men and to women under 21 lacked a rational basis).

In any event, the mere rationality of Yale's rule would not alone be sufficient to sustain it. The plaintiffs have alleged that Yale's housing policy burdens their fundamental rights, and the policy is therefore subject to "strict scrutiny." Yale has not even attempted to meet its burden under this standard. The court in Bynes was careful to note that SUNY's "no children" rule did not burden the plaintiffs' fundamental rights, and that "strict-scrutiny" review was therefore not warranted. 512 F.2d at 256. Similarly, in Prostrollo, the court refused to apply "strict scrutiny" to the challenged housing rule because "the right to choose one's residence is [not] a fundamental right" and the alleged interference with the "freedom of association" was "too insignificant to invoke strict scrutiny of the statute." 507 F.2d at 781.

Contrary to Yale's assertion, the plaintiffs do not have to allege, let alone prove, that they have been treated differently from other religious groups in order to invoke "strict scrutiny" review. See Yale Memo, p. 18. Instead, they must allege - as they have - that their fundamental rights are burdened by the classifications contained in Yale's housing policy and by Yale's practice of treating requests for religion-based exemptions less favorably than others. A classification that might otherwise be subject only to rational-basis review - a classification that distinguished between religious groups would certainly not be such a classification - is subject to strict scrutiny when it burdens fundamental rights. It is the nature of the burden, not the nature of the classification, that triggers strict scrutiny. Yale must therefore demonstrate that its rule requiring residence in co-educational dormitories by all freshmen and sophomores, including those with religious convictions but excepting those over 21 or married, is "narrowly tailored" to advance a "compelling state interest."

V: YALE'S HOUSING POLICY VIOLATES THE PLAINTIFFS' PROTECTED RIGHTS OF PRIVACY

The plaintiffs have presented this Court with specific allegations regarding the intrusions upon their personal privacy that Yale's housing policy forces them to endure as a condition of enrollment. Amended Complaint ¶¶ 95, 96. Yale responds by mischaracterizing their claims. We agree that, of course, there is no "fundamental right to live precisely where one chooses." Yale Memo, p. 18. But such a claim is entirely different from the allegation that "[s]tudents who are forced to reside in Yale's co-educational housing are subjected to frequent and repeated invasions of their privacy in their rooms and bathrooms. They are unable to avoid such invasions." Amended Complaint ¶ 96.

By relying on cases dealing with the disclosure of personal papers such as Nixon v. Administrator of General Services, 433 U.S. 425 (1977), or with "autonomy" such Paul v. Davis, 424 U.S. 693 (1976), Yale misses the more pedestrian, everyday, core nature of the plaintiffs' privacy claims. It cannot be doubted that one has a "privacy" interest in preventing intrusions on one's bedroom, bathroom, shower, and toilet. As the Court observed in York v. Story, 324 F.2d 450, 455 (9th Cir. 1963), cert. denied, 376 U.S. 939 (1964):

We cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one's unclothed figure from the view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.

VI: YALE'S REFUSAL TO EXEMPT RELIGIOUS OBSERVERS FROM CO-EDUCATIONAL HOUSING VIOLATES THE FAIR HOUSING ACT

The Fair Housing Act prohibits, inter alia, discrimination "in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(b). The plaintiffs have alleged that by refusing to honor their religion-based requests for single-sex housing, either by exempting them from the on-campus housing requirement or by providing single-sex housing on or off campus, Yale has discriminated against the plaintiffs "because of . . . religion" and has therefore violated the Fair Housing Act. Amended Complaint ¶ 99. Providing only co-educational housing facilities, which are known to be unacceptable to these students because of their religious beliefs, is a "term" or "condition" of the rental of a dwelling, and is an aspect of the "provision of services or facilities in connection [with a dwelling]," under the Act. Moreover, Yale's policy of granting ad hoc exemptions and accommodations for secular reasons but not for religious reasons is similarly covered by the Act. These allegations are sufficient to state a claim for relief under the Fair Housing Act, especially given that the United States Supreme Court has called for a "generous construction" of the Act in light of its important purposes. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211-212 (1972).

The law is clear that a plaintiff can establish illegal discrimination under the Fair Housing Act by proving either disparate treatment or disparate impact. The Act prohibits all housing policies that have a discriminatory effect. See, e.g., United States v. Incorporated Village of Island Park, 888 F. Supp. 419, 445 (E.D.N.Y. 1995). Treating religion-based requests for exemptions differently from other requests is discrimination. "[W]here the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason." Smith, 494 U.S. at 884 (citation omitted); see Lukumi, 508 U.S. at 536-38 (regulation not generally applicable for First Amendment purposes because of non-religious exemptions); Rader, 924 F. Supp. at 1552 n. 23 ("[W]hen government grants exemptions to a general rule on an individualized basis and refuses to extend an exemption to a religious observer, strict scrutiny applies.").

The plaintiffs allege that Yale has discriminated against them "because of religion" by requiring students to live in co-educational housing, by treating their religion-based requests for exemptions from co-educational housing differently from other requests, and by exempting students from the on-campus housing requirement for non-religious reasons while refusing to exempt those who have invoked religious reasons. The facial neutrality of providing co-educational housing to all students does not defeat the plaintiffs' Fair Housing Act claim because that kind of housing, in and of itself, violates the students' religious convictions. See, e.g., United States v. Badgett, 976 F.2d 1176, 1179 (8th Cir. 1992) ("[T]he Fair Housing Act requires that a court examine the totality of the circumstances to determine whether [a] facially neutral standard results in discrimination against a protected class."); Incorporated Village of Island Park, 888 F. Supp. at 446; Huertas v. East River Housing Corp., 674 F. Supp. 440, 454-455 (S.D.N.Y. 1987) (policies that were purportedly neutral were not neutral in fact). Indeed, Yale's discriminatory application of its on-campus housing requirement is a paradigmatic Fair Housing Act violation. See, e.g., Incorporated Village of Island Park, supra, 888 F. Supp. at 446-448 (Village's nepotistic pre-selection procedures were a "perversion of the first-come first-served requirements for the program). This is true even if Yale were not required, as an initial matter, to "accommodate" the plaintiffs in the same way it would be required to accommodate a physical handicap. 42 U.S.C. § 3604(f). The plain, straightforward text of § 3604(b) requires Yale to treat the plaintiffs' religion-based objections to Yale's co-educational housing requirement no less favorably than it treats other objections and exemption requests.

VII: YALE'S RESIDENCE REQUIREMENT IS A TYING AGREEMENT THAT VIOLATES FEDERAL ANTITRUST LAW

Yale does not deny that the plaintiffs' Amended Complaint sufficiently alleges four elements of a tying-arrangement claim. It challenges only the claim that Yale has the requisite economic power in the tying product market. Yale Memo, p. 27. Yale contends that allegations regarding the uniqueness of a Yale education and its benefits do not sufficiently allege market power. Id., p. 28. This argument fails for two reasons: First, whether the uniqueness of a Yale education can supply the required market power is a factual question that cannot be resolved on a motion to dismiss. Second, even if "uniqueness" were a question that could be resolved on a motion to dismiss, the plaintiffs have adequately alleged that element.

An antitrust claim need not be pleaded with heightened specificity. The plaintiff need only give a "short plain statement of a claim for relief which gives notice to the opposing party." George C. Frey Ready-Mix Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 554 (2d Cir. 1977). A plaintiff making a tying-agreement claim need not assert that the defendant has full-blown monopoly power, or even that he has a dominant position in the tying product market. The element of economic power can be satisfied simply by alleging that the product is unique. U.S. Steel Corp. v. Fortner Enterprises, 429 U.S. 610, 620 21 (1977) ("Fortner II"). Whether a tying product is sufficiently unique to create economic power within the meaning of the Act is ordinarily a question of fact, and courts have consistently held that it is inappropriate to resolve such a disputed issue before trial. See, e.g., Fortner Enterprises v. U.S. Steel Corp., 394 U.S. 495, 506 (1969) ("Fortner I"). Because the plaintiffs have alleged that a Yale education is unique (Amended Complaint ¶ 124), they have sufficiently stated their tying claim.

The Court of Appeals for the Second Circuit has recognized that whether a tying product is sufficiently unique to meet the requirements of a tying claim is a question of fact that should not be determined on a pre-trial dispositive motion. See Hill v. A-T-O, Inc., 535 F.2d 1349, 1354 (2d Cir. 1976). In Hill, the Second Circuit reversed a district court's grant of summary judgment for the defendant, noting that a factual question is raised where the plaintiff alleges and offers evidence of uniqueness which the defendant denies.

The plaintiffs here have alleged that a Yale education is sufficiently unique to confer economic power: "[A] Yale degree has unique attributes that make it without substitute or equal." Amended Complaint ¶ 124. The plaintiffs have added specific facts supporting that allegation, stating, for example, that a Yale degree is of incomparable value to potential employers and to graduate schools and that only a Yale degree provides certain unique lifetime advantages, including access to the worldwide network of Yale alumni. Like the allegations in Fortner I and Hill, these allegations of uniqueness meet the burden of pleading the market power element of a tying claim.

Yale argues that there is a higher standard for a tying-agreement claim in which market power is based on the uniqueness of the tying product. See Yale Memo, p. 27. But Yale's arguments are premature. These are matters that must be resolved through discovery and trial. Moreover, the plaintiffs have sufficiently alleged Yale's market power in the tying product market because there are obvious barriers to the entry of others.

The Supreme Court noted in Fortner I (394 U.S. at 505 n.2):

Uniqueness confers economic power only when other competitors are in some way prevented from offering the distinctive product themselves. Such barriers may be legal, as in the case of patented and copyrighted products . . . or physical, as when the product is land . . . . [T]he barriers may also be economic, as when competitors are simply unable to produce the distinctive product profitably . . . .

Accord Will v. Comprehensive Accounting Corp., 776 F.2d 665, 672 (7th Cir. 1985), cert. denied, 475 U.S. 1129 (1986).

The plaintiffs will prove at trial that there are significant barriers to entry into the market for the type of Ivy League education Yale offers. One obvious barrier is the time it takes to develop an established reputation. Yale's tradition and history are integral elements of its reputation. It took centuries for Yale to establish itself as one of the world's elite academic institutions. A potential competitor could not build a comparable institution in a single generation. This means that Yale has an "advantage not shared by [its] competitors in the market for the tying product." Fortner II, 429 U.S. at 620.

VIII: YALE MONOPOLIZES STUDENT HOUSING IN NEW HAVEN

Yale's on-campus residence rules for its college freshmen and sophomores exert market power that monopolists would envy. The relevant market is Yale student housing, and Yale exercises monopoly power over it. Yale has the power to dictate to consumers in the market what product they may and may not purchase. Amended Complaint ¶ 112. Yale claims that this market definition is insufficient and seeks dismissal of plaintiffs' monopolization claim. Yale Memo, pp. 29, 31. But the allegation properly defines the relevant market, and the complaint supports that definition in the factual context in which it arises. Amended Complaint ¶¶ 112-114. The plaintiffs' claims are supported by a recent decision of the Court of Appeals for the Second Circuit. Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59 (2d Cir. 1997).

The requirements for stating a monopolization claim are simple and do not call for lengthy description. In order to withstand a motion to dismiss, a plaintiff need only allege "(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of superior product, business acumen, or historic accident." United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966). Furthermore, a "generous approach to pleading applies in the antitrust context." Hamilton Chapter, supra, 128 F.3d at 63 (citing Furlong v. Long Island Hospital, 710 F.2d 922, 927 (2d Cir. 1983)). As the Second Circuit recently stated in Hamilton Chapter (128 F.3d at 62-63) (citations and quotations omitted):

The issue is not whether a plaintiff will or might ultimately prevail on her claim, but whether she is entitled to offer evidence in support of the allegations in the complaint. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. A dismissal is warranted under Rule 12(b)(6) only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Hamilton Chapter was a challenge to a private university's housing policy requiring students to purchase on-campus housing. The plaintiffs alleged that the policy constituted illegal monopolization of "residential services in Clinton, New York." 128 F.3d at 61. The Second Circuit held that the plaintiffs' allegations of a nexus to interstate commerce must be accepted as true. 128 F.3d at 66. The Court of Appeals noted that "where proof of the alleged antitrust violation is largely in the hands of the defendants, dismissals prior to giving the plaintiff an opportunity for discovery should be granted sparingly." 128 F.3d at 63.

Like the plaintiffs in Hamilton, the plaintiffs in this case have alleged that the relevant market is the housing market for Yale students in New Haven. Amended Complaint ¶ 112. Plaintiffs also allege that no cross-elasticity of demand exists between Yale housing and other housing in the area. Amended Complaint ¶ 113. The clear thrust of these allegations is that the market for Yale student housing is a distinct market because Yale housing and other housing in New Haven are not reasonably interchangeable. Further proof of these allegations is in Yale's hands, and will be brought out through discovery.

Yale takes issue with the plaintiffs' definition of the relevant market, insisting that it "ignores housing not owned by Yale." Yale Memo, p. 31. The plaintiffs allege, however, that Yale's on-campus housing is not interchangeable with housing not owned by Yale in the New Haven area by virtue of Yale's housing policy. Amended Complaint ¶¶ 111, 112. For pleading purposes, the plaintiffs have defined the relevant market by proper "reference to the rule of reasonable interchangeability and cross-elasticity of demand." Queen City Pizza, Inc. v. Domino's Pizza, Inc., 124 F.3d 430, 436 (3d Cir. 1997).

Yale also raises arguments that address the weight of evidence rather than the sufficiency of the pleadings. Yale cites Ortho Diagnostic Systems, Inc. v. Abbott Laboratories, Inc., 822 F. Supp. 145, 153 (S.D.N.Y. 1993), which involved a motion for preliminary injunction, not a decision on the sufficiency of the complaint. At the pleading stage, the plaintiffs do not need to make a showing of success on the merits. The allegation of market share need not, therefore, be made in the pleadings; it is an issue for trial. Yale also disputes the significance of the plaintiffs' factual assertion that Yale is able to raise the price of its on-campus housing without losing any students. Yale Memo, p. 33. Yale argues that such an assertion has "nothing to do with Yale's market power over student housing." Ibid. In fact, this argument has everything to do with Yale's market power, as the Second Circuit recently reaffirmed. It said in Hamilton Chapter, supra, 128 F.3d at 67, that "the fraternities allege that Hamilton can restrict output and raise prices without losing any students. That is precisely the vice of a monopoly." At best, Yale has raised a factual dispute about the source of Yale's power. The factual dispute should not be resolved now. It must await a trial.

Finally, in arguing that the plaintiffs must allege the factual basis on which their definition of the relevant geographic market rests, Yale is asking this Court to create an entirely novel requirement for pleading a monopolization claim. Yale Memo, p. 35. Such a factual allegation is not a required element of pleading a monopolization claim. On the contrary, a plaintiff need only allege a relevant geographic market in the complaint. See, e.g., Hamilton Chapter, supra, 128 F.3d at 61 (relevant geographic market defined by town where college was located). Because the plaintiffs have alleged the elements of a monopolization claim, and because Yale's arguments have not undermined the sufficiency of the plaintiffs' allegations, this Court should deny Yale's motion to dismiss that claim.

IX: YALE IS LIABLE FOR UNJUST ENRICHMENT

Yale seeks to dismiss the plaintiffs' unjust-enrichment claim on the assertion that the plaintiffs have not alleged that they provided property to Yale or that Yale has failed to compensate them for that property. Yale Memo, pp. 24-25. Yale also contends that, even if the equitable doctrine of unjust enrichment did apply here, the plaintiffs have not alleged facts that would support such a claim. But the plaintiffs have alleged all the elements of unjust enrichment. Moreover, unjust enrichment is particularly appropriate here because it is an equitable remedy awarded when it would be "contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another." Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282, 649 A.2d 518, 521 (1994).

Under Connecticut law, a plaintiff "seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." 231 Conn. at 283, 649 A.2d at 522. The plaintiffs allege that Yale benefited from their payments for on-campus housing. Amended Complaint ¶ 101. They also allege that Yale unjustly failed to compensate them by providing them with housing that they could use in exchange for their payments. Amended Complaint ¶ 103. Finally, they allege that they are harmed by this failure on Yale's part. Amended Complaint ¶¶ 101, 103.

It is significant, considering the equitable nature of the unjust-enrichment remedy, that Yale knew the housing it was "providing" to the plaintiffs was utterly worthless to them. Amended Complaint ¶ 104. Under threat of forced withdrawal from the college (Amended Complaint ¶ 102) - a threat that goes unmentioned in Yale's Motion to Dismiss - Yale billed the plaintiffs for this worthless housing, and it received plaintiffs' payments - which were made under protest (Amended Complaint ¶ 101). Yale knew that it had not provided anything of value in return. Yale cannot in good conscience be allowed to retain payments it received for housing that is worthless to the plaintiffs and that Yale knows is worthless to the plaintiffs. Yale's protests notwithstanding, the equitable remedy of unjust enrichment is perfectly suited to this case.

Yale insists, however, that the plaintiffs have not alleged that "they provided . . . property to Yale and that Yale has failed to compensate them." Yale Memo, p. 25. How does Yale define "property" if the term does not include the plaintiffs' forced payments of money to Yale? And does Yale define "compensation" to include giving something known to be of no value to the recipient in return for payment? Such arguments require a Through-The-Looking-Glass lexicon, in which words mean whatever Yale wants them to mean.

X: YALE HAS BREACHED A CONTRACT WITH THE PLAINTIFFS

Yale denies that its dormitory rules give freshman and sophomore students a contract right to live off-campus. It ignores Yale's promise not to discriminate on the basis of religion. Yale Memo, p. 36. We do not allege that Yale's dormitory regulations create a right to live off-campus. We do allege that Yale's promise not to discriminate on the basis of religion does give rise to a contractual obligation.

In determining whether a plaintiff has stated a valid claim for breach of contract under Connecticut law, the Court need not go behind the plaintiff's allegations. If the plaintiff has alleged existence of a contract, breach, and damages, he has adequately pleaded a claim for breach of contract. Chem-Tek, Inc. v. General Motors Corp., 816 F. Supp. 123, 131 (D. Conn. 1993) (citing O'Hara v. State, 218 Conn. 628, 590 A.2d 948 (1991)). The plaintiffs here have satisfied each of the three elements required under Connecticut law for pleading a breach-of-contract claim. First, they have alleged that a contract exists here by virtue of Yale's promises not to discriminate on the basis of religion. Amended Complaint ¶¶ 130-31. The plaintiffs have also alleged that they relied on those promises. Amended Complaint ¶ 131. Second, the plaintiffs have properly alleged that Yale breached the contract when it refused to "accommodate the bona fide religious convictions of the plaintiffs by granting them the same exception from the housing requirement that it grants to thousands of other Yale students." Amended Complaint ¶ 132. Third, the plaintiffs allege that they have sustained damages as a result of that breach. Prayer for Relief ¶ 4. The Court need not look behind these allegations at this stage of the case, and Yale's Motion to Dismiss the breach-of-contract claim should therefore be denied.

In Soderbloom v. Yale University, 1992 Conn. Super. LEXIS 256 (Feb. 3, 1992) (copy attached as Exhibit 1) - a case that is directly on point - a group of Yale students sought to enjoin Yale's termination of its varsity wrestling program, alleging that the termination constituted a breach of their contract with Yale for educational services. Id. at *1. The Court rejected the students' request for a temporary injunction, but it held that their relationship with Yale was governed by a contract whose terms were embodied in the "catalogs, bulletins, circulars, and regulations of the institution." Id. at *4. The court considered the terms of the contract to be a question of fact, and it determined that there was no binding contract to maintain a wrestling team because Yale "must have the flexibility to make changes" in its extracurricular programs. Ibid. The same "flexibility" to change from year to year does not apply, however, to the promise to accommodate religious diversity and respect religious convictions. The plaintiffs' relationship with Yale is governed by a contract, the terms of which are embodied in, among other things, Yale's recruiting brochures. The brochures specifically promise, among other things, that Yale promotes diversity and will not discriminate on the basis of religion. That is not a promise that Yale may modify each year. The plaintiffs relied on that promise in those brochures when they decided to come to Yale.

Yale argues alternatively that, even if there were a contract, Yale has not breached it because it has not discriminated against the plaintiffs in the sense required to constitute a Free Exercise or Equal Protection violation. Yale Memo, p. 37. As the plaintiffs have demonstrated, however, Yale's conduct here does amount to unconstitutional discrimination and it does burden the free exercise of their religion. Such unconstitutional discrimination amounts to a clear breach of Yale's contractual promise.

XI: REQUIRING THE PLAINTIFFS TO RESIDE IN CO-EDUCATIONAL DORMITORIES VIOLATES THE DUE PROCESS CLAUSE

We have alleged that Yale violates the Due Process Clause by forcing students into the "Hobson's Choice" of either withdrawing from Yale or living in a situation in which they may acquire actual knowledge of federal crimes and therefore face prosecution for misprision of felony if they conceal and do not report those crimes. Amended Complaint ¶¶ 134-36, 138. Yale contends that the plaintiffs' allegations "knowingly stop short of stating the necessary elements of a cause of action," because they have not "established" that "child pornography occurs at Yale." Yale Memo, pp. 20, 21. Yale also insists that the plaintiffs cannot "state a claim for misprision of felony." Id., p. 22. Of course, the plaintiffs have not attempted to "state a claim for misprision of felony." Liability for misprision of felony is precisely what the plaintiffs want to avoid. Instead, the plaintiffs contend that by forcing them to live in a situation where they are likely to acquire knowledge of federal crimes, and where they are correspondingly subject to prosecution for misprision of felony if they conceal and do not report those crimes, Yale has violated the Due Process Clause.

Yale disingenuously professes shock at the plaintiffs' allegation that they are likely to witness or acquire knowledge of sexual activity involving unmarried minors in the Yale dormitories. Yale Memo, pp. 21-22. Yale's disagreement with the underlying factual allegations is not relevant to this Court's determination under Rule 12 of the Federal Rules of Civil Procedure. Since many freshmen and some sophomores at Yale are under 18 years of age and the activity prohibited by federal law takes place if any photographs of sexual activity involving a minor were taken in the co-educational Yale dormitories, it is significantly probable that an entering Yale freshmen would witness such activity. He or she would then be faced with the dilemma described in the plaintiffs' complaint. Whether or not such incidents are likely can only be determined after discovery and the presentation of evidence. The allegations are sufficient to entitle the plaintiffs to proceed with their claim.

CONCLUSION

The plaintiffs' allegations are sufficient to entitle them to introduce evidence to support their claims that Yale's mandatory co-educational housing policy constitutes discrimination on the basis of religion and is otherwise both unconstitutional and illegal. For all of the foregoing reasons, Yale's Motion to Dismiss should be denied.