ASSESSMENTS OR CONSTITUTIONAL VIOLATION?

Timothy M. Burke, Manley & Burke

Several major universities are now considering, or attempting to implement, “assessments” of the Greek systems on their campuses. The Center for the Study of the College Fraternity is serving in an advisory role to the development of the Greek Experience Survey designed to be a self-assessment for Greek systems on campuses. Some of the assessment programs also create standards or requirements that chapters are expected to meet. The consequence of failure to meet those assessments is not always clear.

[Whether or not participation in such assessments or surveys can be made a condition to continued university recognition is a matter of some doubt.]

The University of Arizona recently announced a requirement that chapters annually participate in a Chapter Assessment Tool (CAT) process. That assessment tool is a 22-page document containing at least 473 separate questions, many of which require lengthy responses or reports. Some of those questions are intrusive, requiring information which has historically been maintained privately by each chapter. Among other things, the university would require that each chapter tum over to the university the chapter’s strategies for recruiting new members; information relating to internal disciplinary matters of members of the organization; the financial affairs of the chapters, including revenue. expenditure and tax audit information; the details of the chapter’s philanthropic and community service efforts; and information regarding the use of ritual by chapters. Several questions included in the University of Arizona CAT require chapters to compile information which may not even currently be maintained, including graduation rates, attendance figures for meetings, social event histories for over two years, and so on. Ohio State University, which is still in the process of evaluating the report of its Greek Life Task Force, is considering a series of requirements which would include the imposition of specific academic requirements. Chapters would be required to disclose recruitment plans, and chapter advisors would be required to go through university training programs in order to qualify as a chapter advisor. An earlier draft of the Ohio State proposal would have even  required that chapters submit their financial records for a university audit.

Bucknell University, through its Council on Greek Life, now undertakes an annual evaluation of each chapter awarding points in categories such as facility and fiscal management, alumnae and faculty relations, community service and philanthropy, as well as risk management. Chapters which fail to score 140 points in Bucknell’s evaluation procedure are referred to the Committee on Complimentary Activities for “determination of an appropriate consequence.” A chapter which achieves the minimum number of points, but not as many points as the university expects them to have, may be ordered by the Council on Greek Life to meet specific expectations in the coming year. One chapter at Bucknell which met the university’s minimum requirements, found itself ordered to, among other things, meet the following expectations for the academic year 1999- 2000: conduct at least two major faculty events at which at least 25 faculty members must be in attendance; conduct at least four significant community service projects  involving the contribution of at least 2,000 hours of community service by the chapter’s members; conduct two significant philanthropic projects raising a minimum of $5,000.00 total; and restrict any off-campus member from hosting a social event at their off-campus location where members of the fraternity are in attendance. These were not disciplinary sanctions but rather the consequence of a low – though not failing – assessment.

Whether or not participation in such assessments or surveys can be made a condition to continued university recognition is a matter of some doubt On college campuses, students are, with very few exceptions, adults under the law. There can be no doubt that their entitlement to the protections of the Constitution, and particularly their First Amendment Freedom of Association right is secure from interference by college administrators, at least at state schools. The good faith or “noble” intentions  of  administrators is no excuse for a Constitutional violation.

In Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), the Supreme Court noted that “it can hardly be argued that either students or teachers shed their Constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Similarly, in Shelton v. Tucker, 364 U.S. 479 (1960), the Supreme Court clearly said that:

“The vigilant protection of Constitutional freedoms is nowhere more vital than in the community of American schools.”

Most importantly, in Healy v. James, 408 U.S. 169 (1972), the Supreme Court refused to accept Central Connecticut State College’s justification for the denial of recognition to a local chapter of Students for a Democratic Society (SDS). Even recognizing that a university can impose reasonable regulations regarding time, place and manner of the use of its facilities, the Court held that a state university cannot deny recognition to student groups without substantial justification relating to actual disruption of the campus or illegal conduct. The Supreme Court stated:

“Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the Freedom of Association is not explicitly set out in the [First] Amendment, it has long been held to be implicit in the freedoms of speech, assembly and petition. [Citations omitted.] There can be no doubt that the denial of official recognition, without justification, to college organizations, burdens or abridges that associational right.”

This consistent recognition of the free association rights of students strongly suggests that a state university could not impose mandatory participation in assessments as a condition of recognition.

At private universities, the question of First Amendment Freedom of Association protection is less settled. Last year. the Congress of the United States adopted amendments to the Education Act of 1965, which stated, in part:

“It is the sense of Congress that no student attending an institution of higher education on a full- or part-time basis should, on the basis of participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under an education program, activity, or division of the institution directly or indirectly receiving financial assistance under the Higher Education Act of 1965 “

Congress did not provide a specific statutory scheme for enforcing those amendments. However, private institutions which are overly aggressive in limiting the First Amendment rights of fraternities and sororities  or  other  student  groups may find themselves on the receiving end  of a lawsuit  based  on the 1998 amendments and  brought  under  the  Federal  Civil Rights Statute,  42 U.S.C. Section  1983.   Alternatively, a suit could seek to enjoin the federal government from continuing to provide financial aid to the private university which engages in such conduct.

The last round of arguably well-intentioned but unconstitutional college regulations – the politically correct speech codes – resulted in a series of lawsuits virtually all of which  were  won  by fraternities.¹ Historically,  the  strongest and healthiest relationships between  academic  institutions and Greek groups have existed on  those  campuses  where each respected the rights and goals of the other. Another round of regulation without respect for the rights of Greek groups, responded to by the litigation that is sure to follow, can only damage those relationships.

¹    See for example Fraternal Law No. 37 “Politically Correct in New Mexico,” reporting on Sigma Chi v. University of New Mexico; Fraternal law No. 45 “It’s Ugly, But It’s Free Speech.” regarding Iota Chi Chapter of Sigma Chi v. George Mason University, 993 F.2d 386  (1993);  and Fraternal Law No. 47 “Law Triumphs Over PC.”