A New Supreme Court Justice: What Does It Mean for Sororities and Fraternities?

Micah Kamrass, Fraternal Law Partners, mkamrass@manleyburke.com

On October 27, 2020 Amy Coney Barrett became a new Association Justice of the Supreme Court of the United States when she assumed the seat previously held by Associate Justice Ruth Bader Ginsburg. Many Supreme Court scholars believe that Barrett assuming a seat previously held by Ginsburg represents a dramatic shift in the ideological balance of the Court. Numerous publications and scholars have opined about what this shift may mean in many different areas of the law. So, we at Fraternal Law felt it may be helpful to share with our readers how Justice Barrett may impact Fraternities and Sororities.

Prior to joining the Supreme Court, Justice Barrett was a Judge on the United States Court of Appeals for the Seventh Circuit for almost three years. While serving in that capacity, she authored what has become one of the key judicial decisions on the question of Title IX and due process. In Doe v. Purdue [1], Judge Barrett held that for a variety of reasons that it was possible that Purdue University’s Title IX proceedings discriminated against a male student accused of sexual assault on the basis of his sex. These reasons include the following: pressure from the federal government to discipline sexual assailants, determining that the complainant was more credible than the accused without ever speaking to the complainant, refusing to allow the accused to present witnesses, a lack of familiarity with the details of the case from the fact finders, and social media posts from the University’s Center for Advocacy, Response, and Education (CARE). While Judge Barrett’s decision was controversial, her call for greater procedural protections for those accused of violating Title IX was very much aligned with the new Title IX regulations that were subsequently promulgated by the Department of Education earlier this school year. It is unclear if questions of Title IX due process will reach the Supreme Court any time soon, but it is very clear where Justice Barrett stands on that issue.  Title IX procedures are and will continue to remain deeply relevant to the members of sororities and fraternities.

Another area of law that has the potential to change as a result of Justice Barrett joining the Supreme Court is a possible revisiting of the Supreme Court’s 2010 decision in the Christian Legal Society v. Martinez[2]case, which remains the most recent of the Supreme Court’s decisions on student organization recognition at public universities. In a 5-4 decision authored by Justice Ginsburg (and concurred with by Justice Kennedy) the Court held that it is constitutionally permissible for public universities to impose viewpoint neutral conditions for student organizations as a basis for university recognition (and the resources and benefits that may flow from university recognition). The specific regulation that the Court reviewed in this case was whether a public university may require its recognized student organizations to open their membership to any student who is interested in joining. This is called an “all-comers policy.”

In the opinion permitting the public university to mandate that its recognized student organizations accept all interested students as members, Justice Ginsburg wrote, “[p]rivate groups, from fraternities and sororities to social clubs and secret societies, commonly maintain a presence at universities without official school affiliation.”[3]Essentially, Justice Ginsburg rationalized that universities can force recognized groups to abide by viewpoint neutral restrictions, but in exchange, if groups do not like those restrictions, they can continue to operate independent of university recognition and any resources associated with this recognition.

Justice Alito dissented from this opinion, and was joined by Justice Scalia, whom Justice Barrett clerked for from 1998-1999. Since the Christian Legal Society decision was a 5-4 vote with Justices Kennedy and Ginsburg in the majority, and since both of those Justices have now been replaced by Justice Kavanaugh and Justice Barrett (who are both members of fraternal organizations), there is really no way to predict how the current Supreme Court would rule on a case involving student organization recognition today. However, it is safe to assume that there is a very good chance that the current Court majority may be more ideologically compatible with the dissenters in the Christian Legal Society case that it is with the majority opinion authored by Justice Ginsburg in 2010. Any revisiting of that case or similar issues related to student organization recognition at public universities could have major impacts on fraternities and sororities.

[1]928 F.3d 652 (7^thCir., 2019)

[2]561 U.S. 661 (2010).

[3]Id. at 691.