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BECAUSE of constitutional limits, state and federal anti-discrimination statues apply to places of public accommodation. Only an establishment that "is open to and accepts or solicits the patronage of the general public" is within the legitimate jurisdiction of the Massachusetts Commission Against Discrimination (MCAD).
To decide whether a group is private or public, MCAD and courts look at several factors, including public access, selectivity in membership and the existence of commercial activity.
It is in the area of business functions that recent challenges against private clubs have been most successful. In California and New York, dozens of private clubs, including the prominent Rotary International, have been forced to admit women because of business deals transacted during club meetings and on club grounds.
If such activity was going on at the Fly Club, MCAD should have taken action to end the club's discrimination against women. But Lisa J. Schkolnick '88 never even claimed that any business was actually done at the club. She merely alleged that club members later used their club connections to advance their careers.
You don't have to be Albert Einstein to figure out that people who socialize together are going to be more likely to be found in similar employment 10 years from now than people selected at random. The fact that the Fly Club is selective in its membership only makes it more probable that its members will lead similar lives.
The staff attacks MCAD for allowing the Fly Club to poll its own alumni about their business activities. Clearly, such a poll is far from scientific or conclusive. But the issue of whether members do a lot of post-college networking or just a little is not at the center of the legal debate. The issue is whether actual business activity goes on on club property, and Schkolnick evidently concedes that it does not. The final clubs exist to fulfill young men's desires to drink, socialize with people like themselves and "socialize" with women. While the clubs are undoubtedly offensive, they are not centers of commerce.
THE constitutional protection of freedom of association and the staff's broad definition of business activity are incompatible. Under the staff's interpretation of anti-discrimination law, every group which met to play cards or watch TV would not only be subject to sanctions from MCAD, but would bear the burden of proving its innocence as well.
As the staff bashes freedom of association in its quest for equality, it should pause to consider the importance of that freedom. Freedom of association does more than guarantee the rights of racists and sexists to privately congregate. The most renowned Supreme Court cases involving freedom of association protected the NAACP and the Communist Party from government intrusion.
"Freedom of association...plainly presupposes a freedom not to associate," wrote liberal Justice William J. Brennan in a 1984 Supreme Court decision.
The staff should have more regard for this vital liberty.
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