For example, the New York State law specified at least 400 members as one of the characteristics of a public accommodation. On the other hand, if graduates are non-members, then they allegedly have an extensive involvement with the club.

The brief states," A club which receives any significant portion of its funds from nonmembers cannot claim to be private." The complainants' repsonse contends that graduate contributions are "substantially similar" to the amount of membership dues in one year. The document estimates total membership dues at $27,000 to $35,100 for 1988 and non-member--graduate--contributions for 1987 at $16,718.

"Membership clubs in which the members do not hold club property or otherwise do not have exclusive control over the government and activities of the organization cannot claim to be private," the response states. Because the club property is held by a trust controlled by non-member, graduate trustees and the government of the club consists of 14 graduate members and two present members of the Fly, the document alleges that it cannot claim to be a solely undergraduate organization.

The Crimson and many other officially recognized Harvard student groups have similar organizational setups.

But still, Baker's brief contends that the graduate-controlled governing body changes the nature of the club's status. In particular, the document says that even if the members of the club decided to admit women, its trustees could prevent it.

The brief also takes issue with the way in which the Fly Club describes its membership process. The club has claimed its "punching season" is more selective than it actually is, the Baker document says. Specifically, it says that former club president Huschle has said some members are admitted to the Fly without sponsorship of a current undergraduate member, and some sponsers do not even know their candidate. Huschle also has said that students can become members without attending an event at the club, according to the brief.

These statements are important to the legal tests Baker has set up in his brief, as he contends that the Fly Club members' associational rights would not be infringed upon if women were admitted to the club. "Where strangers participate in the relationship the association is not a private one, even if some private association occurs with in the setting...More importantly, the club allows nonmembers to participate in critical aspects of the relationship it contends is private."

The brief says, "The club itself admits that it is not organized for any advocacy pupose," so the members' rights will not be infringed upon by the admittance of women. "The anti-discrimination statutes merely prevent the club from using sex as a shorthand measure for selecting members in place of more legitimate criteria for determining membership," it states.

Although the Fly Club has insisted that Schkolnick's complaint has no merit because she never sought admission to the club, Baker's brief concudes, "There is no mechanism by which any woman could ever apply or otherwise be considered for membership."