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In October of 1997, four Jewish Yale undergraduates (initially five) filed a federal law suit against Yale University charging that the school’s housing policy requiring unmarried freshmen and sophomores to live in coed dorms was discriminatory against Orthodox Jews. Required coed housing and being denied single-sex bathrooms was a violation of the laws and teachings of the Jewish concept of modesty and thus untenable to the plaintiffs.

The suit charged that Yale’s housing rule violated the First, Fourth and Fourteenth Amendments to the United States Constitution for the university allows freshmen and sophomores to reside off-campus for reasons other than religious conviction, but discriminates against issuing exemptions to the housing requirement because of religious belief. Those students who cannot, because of religious reasons, reside in the Yale coed dormitories are denied the permission granted to students who have non-religious reasons for living off-campus, such as age or marital status.

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It was further charged that Yale had violated the Federal Fair Housing Act because it insisted that the plaintiffs compromise their religious obligations by living in co-educational residence halls. Yale had assured that it does not discriminate on the basis of race or religion and would provide for the various needs of its diverse student body. And yet it would not accommodate the bona fide religious convictions of students to allow them to live off-campus as it has to other students.

The plaintiffs also have a fundamental constitutionally protected right not to be compelled to associate with a permissive ideology regarding sexuality. Yale’s housing policy, which entails repeated and frequent invasions of privacy in dormitory rooms and bathrooms, effects the plaintiffs’ exercise and enjoyment of these rights resulting in a violation of the plaintiffs’ equal protection of the laws guaranteed by the Fourteenth Amendment.

The suit also charged that by requiring the plaintiffs to pay for and live in coed dorms despite their religious objections this was a violation of the Fair Housing Act. In addition there were other claims such as Unjust Enrichment, Monoplization, Breach of Contract – altogether ten claims.

Yale countered with a motion for dismissal on the grounds that the lawsuit was, “Imaginative but wholly wrongheaded attempt to challenge… a private college’s prerogative to maintain… a rule important to its educational philosophy.”

In July 1998, Judge Alfredo Covello in the U.S. District Court in Hartford, Connecticut ruled against the Yale Five. He did not accept that Yale was a “state actor” and accordingly the school was not subject to the constitutional guarantee of religious freedom and federal laws regarding fair housing. The judge concluded, in wording reminiscent of Betty Trachtenberg’s dismissal, “The plaintiffs could have opted to attend a different college or university if they were not satisfied with Yale’s housing policy.”

Nathan Lewin appealed the case to the appellate panel of the District Court located in New York City. His argument that the requirement to force Yale students to live in co-ed dorms was the same as barring Orthodox Jews from attending Yale. He cited several federal cases as precedents substantiating why Yale should be viewed as a state actor and pressed for more discovery to prove that Yale granted exemptions to other students while denying them to Orthodox Jews.

Mr. Lewin’s reasoning and substantiation seemed to be compelling. But that was not the take of the judges. Confirming the football adage, “On any given Sunday…” The judges did not appear sympathetic to his argument and were of the opinion that giving in to this grievance would open the floodgates to endless objections by religious groups regarding any number of rules which they believe violate their religious rights. The case was adjourned less than an hour after it began.

The court did not rule in favor of the plaintiffs. Mr. Lewin had nobly lost the battle, but in fact he won the war. Subsequently Yale became more elastic with its housing policy.

Chodesh Tov – have a pleasant month!

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Rabbi Hanoch Teller is the award-winning producer of three films, a popular teacher in Jerusalem yeshivos and seminaries, and the author of 28 books, the latest entitled Heroic Children, chronicling the lives of nine child survivors of the Holocaust. Rabbi Teller is also a senior docent in Yad Vashem and is frequently invited to lecture to different communities throughout the world.