ALABAMA’S LEARNING OPPORTUNITY

Robert E. Manley, Manley & Burke

Fall rush at the University of Alabama was accompanied by effervescent racial rhetoric. The Faculty Senate is reported by the Associated Press to have unanimously approved a resolution for white fraternities and sororities on campus to accept black members or “risk penalties.”

[The campus NAACP Chapter President suggested that the existence of black and white fraternities “has more  to  do  with  cultural  differences than racism.” He added, “I haven’t experienced racism with the Greek system. I think the organizations are doing their best.”]

In August, President Andrew Sorensen was quoted in the media about the racial divide in the fraternity system: “We clearly cannot tolerate that.” He was later reported on September 18, 2001 as stating he would not mandate integration or institute a quota system for fraternities.

Reporting these affairs, The Christian Science Monitor of September 18, 2001 reflected back nearly forty years when Governor George Wallace  opposed  integration  at  this campus. The Faculty Senate President, Norm Baldwin, was quoted as saying, “The whole history of desegregation clearly illustrates you have to have forceful intervention to bring it about.”

The campus NAACP Chapter President, Dave Washington, was reported in the national media as saying that integration of fraternities and sororities should be left to students and the faculty, and the news media should stop interfering. He suggested that the existence of black and white fraternities “has more to do with cultural differences than racism.” He added, “I haven’t experienced racism with the Greek system. I think the organizations are doing their best.”

The university administration modified the rush schedule with the hope of increasing diversity in the Greek groups. This change was attributed to criticisms  from  Melody  Twilley, a black undergraduate who complained that she was not accepted by any white sorority.

After the eruption of this controversy, more national news arose when it was reported that Christian Houston, whose father is black, joined a previously all-white chapter of Gamma Phi Beta in November 2000 as a freshman, without any fanfare. She was quoted by the Associated Press  as saying that she felt “very, very accepted” by her sorority sisters. She complained about hostile remarks by some fraternity men.

If the faculty members want to bring about change in the racial composition of Greek chapters on the Alabama campus, they ought to continue to talk about the wisdom of this policy, rather than about force. Faculty members should be able to talk endlessly and eloquently about the wisdom of racial integration and use their intellectual powers of persuasion to move students in that direction, if that is the goal they want.

What is more, if national fraternities want to exist fifty years from now, they ought to be encouraging their chapters to look for diversity on the Alabama campus and elsewhere. The reason is that by the middle of the 21st Century, people of white, northern European ancestry will be just one more minority in the United States. Already on many campuses, people of white, northern European ancestry are a minority. Unless the Greek organizations achieve diversity now, they may be writing their own death warrants for the future. That is simple, demographic reality.

If Alabama keeps these discussions  at  the  level  of rational analysis and persuasion and avoids coercion, there can be a great learning experience for the Greek system throughout North America. If they fall into coercion, it can produce expensive litigation that almost certainly will not solve any problems, but instead fatten the wallets of attorneys.

[YOU’VE WON THE ELECTION:

With chapter elections taking place over the next few months, your new chapter officers need factual, clear and concise information regarding their specific duties and responsibilities as newly elected representatives of their fraternities or sororities. The pamphlet “You’ve Won the Election!” provides just that information. These pocket-sized pamphlets are available for $1.00 each from Fraternal Law, 225 West Court Street, Cincinnati, Ohio 45202.]

A number of fraternities have fraternity houses on university property which they lease for $100.00 a year.

[If national fraternities want to exist fifty years from now, they ought to be encouraging their chapters to look for diversity on the Alabama campus and elsewhere.]

The fact that fraternity houses occupy state land for a nominal rent is not enough to entangle the State of Alabama into the internal affairs of the fraternities to bring the civil rights laws to bear on the fraternities. Even if it were true that the fraternities had a racially exclusionary policy, there probably would be no court remedy.

Examples of this exist in previous case law. The Biscayne Bay Yacht Club leased land from the City of Miami for the “token rental of $1.00 per year.” The Yacht Club built a “genuinely private” club on property owned by the City. Persons who claimed to be excluded for racial and ethnic reasons filed suit. The Federal District Court found:

1. That the policy, practice and custom of the Defendant Biscayne Bay Yacht Club in denying membership to the members of the Jewish religion and black race is hereby declared violative of the Fourteenth Amendment to the United States
2. Defendant Biscayne Bay Yacht Club is hereby ordered to cease the barring of membership to applicants solely on the account of their race and religious affiliations***
3. Jurisdiction is retained for the enforcement of the

The District Court’s finding was appealed to the Court  of Appeals for the Fifth Circuit, which initially affirmed it, but then after a motion for rehearing en bane, reversed the District Court’s decision.

The mere fact that the Yacht Club leased land from the City of Miami was not enough to create state action to bring to bear the civil rights laws. In order to have a remedy under the civil rights laws, it would be necessary to show that the City of Miami had “significantly involved itself with the invidious discrimination.” Golden v. Biscayne Yacht Club, 530 F.2d.16 (5th Cir. 1976).

Ironically, for faculty members to be talking about coercion implies the need to cure a civil rights wrong. In order to prove that there is a civil rights remedy, the faculty would have to prove that the state university that employs the faculty had “significantly involved itself with the invidious discrimination.” In other words, the faculty would have to prove that they, or other state officials of the university, had encouraged, promoted and fostered racial exclusion by the Greek organizations.

It may very well be true that, as suggested by the NAACP campus chapter president, the matter is not racial, but is based upon cultural differences. If that is the case, education, not coercion, is the only appropriate answer.

In light of a whole series of recent decisions about racially-shaped admission decisions by academic institutions, for the University of Alabama to impose quotas or other University sanctions to promote integration of the fraternity system seems to invite celebrated litigation that will probably make the situation less desirable for everyone. Preferential admissions policies at the University of Georgia have been held unlawful. Johnson v. Board of Regents at the University of Georgia, 2001 U.S. App.  Lexis  19154  (11th  Cir. 200 l ). The Court held an admissions policy that gives preference based upon race unconstitutional by a state university “not because student body diversity can never be a compelling interest (we assume for the present purposes it can be), rather because the policy is not narrowly tailored to serve that interest.” This is just one of many cases that has applied the “strict scrutiny” test on all actions by state agencies based upon race.

In City of Richmond v. J.A. Croson Company, 488 U.S. 469 (1989), the U.S. Supreme Court found unconstitutional the City of Richmond’s attempt to create racial quotas for contractors. It said that:

The Equal Protection Clause of the Fourteenth Amendment provides that, ‘ [n]o state shall… deny to any person within its jurisdiction the equal protection of the laws.’ (emphasis added). As this court has noted in the past, the ‘rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.’ …The Richmond Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race. To whatever racial group these citizens belong, their ‘personal rights’ to be treated with equal dignity and respect are implicated by a rigid rule erecting race as the sole criterion in an aspect of public decision making.

Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test always ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.

If the University of Alabama is going to be faced with controversy over the racial composition of Greek chapters, it must be discussed rationally by the students and by the faculty. Coercion should not be used unless the advocates of coercion are prepared to engage in multi-year litigation that will probably strike down the coercive efforts.

[If they fall into coercion, it can produce expensive litigation that almost certainly will not solve any problems, but instead fatten the wallets of attorneys.]

The faculty must stress their educational role and avoid engaging in what the Supreme Court calls “simple racial politics.” To the extent that they bring the majesty of the state action enforced by Alabama down on the fraternities, they may be defeating a great educational opportunity and leading the university into wasteful litigation.

The First Amendment of the United States Constitution protects the rights of state university faculty members to express their opinions about fraternities and to urge that they embrace minority members. The same First Amendment also protects the freedom of association of the undergraduate members of fraternity chapters. Freedom of association is a First Amendment right just like freedom of speech. There exists a hazard that racial politics in the faculty can cause a university administration to breech the First Amendment rights of freedom of association of undergraduate students. This leads to a legal morass that any rational university leadership will avoid.

Faculty can and should teach. Students can learn and also teach. The professional leadership of fraternities has a teaching role, also.

Every campus has its own culture and its own way of doing things. If the fraternity chapters on the University of Alabama campus can find their way clear to  voluntarily attract minority students, they will demonstrate the effectiveness of faculty who teach. They also may be leading the way for the future survival of Greek organizations, because that survival is weakened by the demographic reality that white people of northern European ancestry inevitably will become just another minority in the United States. This has not happened at the University of Alabama, but it already has happened on numerous campuses across the country.

Dialogue is not dramatic, but dialogue can produce results that litigation, coercion and regulation will never produce.