Fraternities Fight Back With Lawsuits Against Colleges

Legal tensions grow as colleges try to rein in Greek groups
The Connecticut Law Tribune
Jay Stapleton
March 03, 2015

The lurid scenes of rowdy fraternity brothers binge-drinking, destroying property and seducing underage girls turned "Animal House" into an instant cult classic. That was 1978. Since then, too many toga parties, hazing incidents, sex-assault scandals and alcohol-related deaths have led to arrests and negligence lawsuits. Fed-up colleges have sanctioned, suspended or flat-out banned problematic Greek organizations.

Last year, for example, the Massachusetts Institute of Technology banned all fraternity gatherings of larger than 49 people after a woman fell from a window at a fraternity. Clemson suspended all fraternities in response to several incidents, including a sophomore falling to his death. In January, Duke announced it had suspended Alpha Delta Phi while police investigated a sexual assault reported at an off-campus house leased by fraternity members.

Closer to home, Yale University, Trinity College and Wesleyan University have all seen their share of negative publicity surrounding fraternities. All have taken administrative steps to address the situation. Last year, Trinity and Wesleyan, in what was billed as a first-in-the-nation move, adopted rules requiring Greek groups with houses on campus to have both male and female members.

But in recent years, fraternities and sororities have started firing back. Noting that Greek organizations are not college clubs, but private social groups often with their own national leadership and bylaws, they have headed to court to challenge what they believe is unjust interference from college administrators.

Some examples from the past decade: A DePauw University sorority accused of purging its ranks of minorities sued administrators after the Indiana college tried to shut down the chapter. The alumni group of the Merriman Club fraternity filed an injunction to stop Ripon College in Wisconsin from closing down a historic fraternity house after administrators said the old building didn't meet acceptable living standards. And a University of Florida fraternity sued after the school refused to sanction it because the Greek organization would accept only Christian men.

More recently, and closer to home, an all-male residential fraternity at Wesleyan, Delta Kappa Epsilon, and an alumni group that owns its house on campus, have filed a state lawsuit against the university. Kathleen Eldergill, of Beck & Eldergill in Manchester, said she filed the lawsuit to protect the fraternity members' rights. She characterized the behavior of the private liberal arts school, known for its progressive student body and faculty, as committing "reverse discrimination" against men.

"The fraternity I'm representing hasn't had any claims against it, like having a party or anything like that," she said. "This fraternity is not being attacked because it did anything wrong." Instead, she said, members of the fraternity are being discriminated against because of "political correctness gone awry."

When the university implemented the coed policy for all fraternities last year, the 32 members were told to recruit females or face losing their university recognition. Eldergill said they were initially given three years to comply, but then the university "changed its position."

The fraternity members were told earlier this year to move out of their house, which the organization has occupied since 1888, because they "were not complying with the university mandate to admit women." Eldergill said the order is a problem for the members, especially since university rules require all students to live on campus. The lawsuit asks for a court order to allow the fraternity to stay in the house.

The university has not formally responded to the lawsuit. But in a statement, Wesleyan spokesman Bill Holder said DKE's annual housing agreement was terminated for the next academic year "only after the organization repeatedly failed to take any meaningful steps or make any reasonable commitments toward residential co-education before the date on which the housing selection process began."

Holder did not specifically address the claims raised in the lawsuit, which seeks a court order allowing fraternity members to remain in the house. However, he said, "The university is confident that this lawsuit has no merit."

Lawyers who represent colleges and fraternities all over the country are watching to see what happens. Most of the time, they said, the legal issues involving fraternities come in the form of negligence lawsuits for wrongful death or personal injury.

Those cases, though of a different ilk than disputes between fraternities and colleges, nevertheless reveal the power and resolve of national fraternity groups. Often, when faced with lawsuits claiming negligent supervision, national fraternities, which reap millions of dollars in annual membership dues from local chapters, have argued in court that they're not responsible for misconduct by campus affiliates because they don't actively supervise them.

In one pending lawsuit, Joel Faxon, of Faxon Law Group in New Haven, is representing the estate of a Yale student who was killed at the 2011 Harvard-Yale tailgate party when a truck driven by a fraternity member ran into a crowd of people. The lawsuit against the Sigma Phi Epsilon fraternity for contributory negligence remains pending. Faxon also represented the estate of a Yale student killed in a 2003 crash on Interstate 95 in a lawsuit against Delta Kappa Epsilon. The lawsuit was settled in 2013 with the terms kept confidential.

Faxon said in his experience, the national fraternities often try to distance themselves from national chapters or universities when tragedy strikes. "They'll say, we have nothing to do with the local chapter, when the reality is, they're joined at the hip," Faxon said.

But fraternities are now being targeted by some powerful forces, including the White House. President Barack Obama told colleges and universities last year that they would have to take more action to prevent sexual assaults on campus. In response, many colleges and universities have made efforts to more closely govern the activities of all-male fraternities.

Peter Smithhisler, who is the chief executive of the North American Interfraternity Conference, said the moves by the schools to require fraternities to accept women can be a slippery legal slope. Especially if the rules are created just to remove fraternities.

Any college that dictates what type of organization students can join is "inhibiting fundamental principles of freedom of expression and freedom of association upon which our country is premised and upon which it functions," said Smithhisler, whose trade association represents 74 male fraternities.

"It is essential that fraternities be allowed to decide for themselves if they wish to offer coed membership," Smithhisler said.

Kevin Schiferl, of Frost Brown Todd in Indianapolis, has represented national fraternities for many years. He said fraternities were less closely monitored in the 1940s and 1950s, when they were founded with "more scholastic endeavors" in mind.

But he's noticing a shift. There is a growing tension between universities and national fraternity groups over the activities in the house. While fraternity houses at some colleges are privately owned, there is a trend toward requiring fraternities to use student housing. By owning fraternity housing, the universities can exercise more control over fraternity policies and what goes on inside houses.

Case law has been mixed, but is moving toward the rights of universities to more closely regulate fraternities. In 2007, the U.S. Court of Appeals for the Second Circuit allowed the College of Staten Island, which is part of the City University of New York (CUNY), to remove a fraternity in a groundbreaking decision.

The appeals court overturned a lower court's 2006 ruling which ordered CUNY to recognize the new chapter of Alpha Epsilon Pi on the Staten Island campus. The university argued that the fraternity's refusal to admit women as members violated a university policy barring discrimination based on gender. The fraternity, however, argued that the lack of recognition was costing it university funding and put a burden on members who had to travel off campus for events. It argued that members had a constitutional right to associate with whom they pleased.

But the Second Circuit found that constitutional rights in this case didn't trump the college's right to decide about which groups to recognize and to fund.

"Based on its size, level of selectivity, purpose and inclusion of non-members, the fraternity lacks the characteristics that typify groups with strong claims to intimate associations," the panel wrote.

Nicole Fournier Gelston, who is associate general counsel at the University of Connecticut, said there have been no recent legal matters directly pitting the university against a sanctioned fraternity.

Like other universities, UConn has implemented many regulations that fraternities must follow in order to remain in good standing. "Operation of unrecognized Greek organizations is against university policy," she said. "So to that extent, the university has control over the Greek organization."

Additionally, she said, "the conduct of our students, whether individually or collectively as a recognized student group, is subject to the student code of conduct."

Under the rules of conduct, "there is an expectation of community values and principles" to be adhered to by student groups, including fraternities and sororities, Gelston said. "Failure to meet those expectations can result in discipline, both at the individual level and the organizational level, including withdrawal or suspension of university recognition."

Highly publicized incidents of members' behavior have not helped fraternities in general, attorneys say. Nor have changing attitudes toward alcohol and the treatment of women. Floyd Dugas, a senior partner at Berchem, Moses & Devlin whose practice includes public education law, said "decades of inappropriate behavior" at fraternities have taken their toll.

In response to social pressure, he noted, many all-male private clubs, like sporting organizations, have adapted to allow women. "The frat house is almost the last bastion," Dugas said. "I think in part because of some of the issues you've seen and the lack of oversight for this 'boys will be boys'-type behavior, you will see a watering down of fraternities in the future."