APPEAL FILED IN AEPI FREEDOM OF ASSOCIATION CASE

Dan McCarthy, Manley Burke

The City University of New York, College of Staten Island (“CSI”) recently appealed to the Second Circuit Court of Appeals the August 11, 2006 opinion from the United States District Court that granted the Chi Iota Colony of Alpha Epsilon Pi’s motion for preliminary injunction.¹  As has been previously reported in Fraternal Law, the Colony sought relief against CSI’s policy prohibiting single-sex student organizations.  The Court, for the first time in any court, found that the Colony was a constitutionally protected intimate and expressive association (the injunction was only granted on the intimate association claim because the Colony did not establish that CSI’s policies would affect the Colony’s expressive purposes).

In its appeal, CSI states that it “extends official recognition to student clubs only if they do not discriminate on the basis of, inter alia, gender, and only if membership is available to all students.”  Both sides agree that the heart of this case is about whether or not a public college or university may prohibit single-sex organizations on campus.

In its appeal, CSI first argues that the District Court erred in finding that the Colony was an intimate association.  CSI argues that the Colony does not conduct its “core activities” in seclusion because it meets weekly with a rabbi, hosts parties and social events, and conducts philanthropic events that are open to the public.  CSI also argues that the Colony is neither a relatively small organization nor a particularly selective organization.  The College then argues that even if the Colony was a protected intimate association, the Court still should not have granted the injunction because “CSI would have no duty to support the exercise of that right” by giving the Colony the benefits of official recognition.

On the expressive association claim, CSI argues that their policies have not infringed on the Colony’s right of expressive association because the Colony is still able to carry out its expressive purposes.  CSI argues that it has not forced the Colony to accept women, but has only stated that the Colony must open its membership to women if it wants official recognition.  CSI then states that even if it did force the Colony to accept women, the Colony’s expressive rights would not have been infringed because the inclusion of women would not affect the Colony’s ability to advocate its viewpoints.

This appeal is still in the briefing stages.  The Colony has not yet filed its brief in response to CSI’s brief.  This case is extremely important for Greek organizations across the country because it will provide an answer to the question of whether or not a public university can prohibit traditional fraternities and sororities on campus by prohibiting single-sex organizations.

¹ Chi Iota Colony of Alpha Epsilon Pi v. City University of New York, 443 F.Supp. 2d 374 (E.D.N.Y. 2006).