ASSOCIATION RIGHTS OF CHAPTER DENIED

Timothy M. Burke, Manley & Burke

Last summer, the United States District Court in Pennsylvania struck a blow to Pi Lambda Phi’s efforts to regain recognition at the University of Pittsburgh.’ In its decision, the Court gave surprisingly little credence to the First Amendment Freedom of Association claims of the fraternity. In late April of 1996, police raided the Pi Lambda Phi Chapter   at   the  University of  Pittsburgh.²  Four fraternity members and four other individuals were arrested for possession or distribution of drugs. Both the university and the fraternity’s international office initially suspended the chapter. While the international ultimately reinstated the chapter, the college has continued to refuse to do so, and has instead extended the chapter’s indefinite suspension. The fraternity sought relief from the university’s refusal to recognize the chapter, arguing that it had both First Amendment freedom of association rights and Fourteenth Amendment equal protection rights to be recognized.

With regard to the freedom of association claims, the Court noted that:

“There are two types of association protected by the Constitution: (I) intimate association, based on intimate human relationships; and (2) associations formed ‘for the purpose of engaging in those activities protected by the First Amendment – speech, assembly, petition for the redress of grievances, and the exercise of religion.”‘

The Court made short work of the intimate association claim stating that right was limited to familial relationships such as found in a marriage, the raising and education of children, or co-habitation with one’s relatives. While quoting from Roberts v. United States Jaycees, 468 U.S. 609 (1984), one of the lead cases of freedom of association rights and their limits, the Court failed to note that in its discussion of intimate association rights, the United States Supreme Court in Roberts, defined intimate association relationships, such as families, as those which:

“Involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctively personal aspect of one’s life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion of others in critical aspects of the relationship.” 468 U.S. at 619-620.

It is not clear from the Court’s decision that it considered or had before it facts which would have demonstrated that the chapter fit within those guidelines. Certainly, the Court does not discuss them. Yet, assuming that chapter operates  like the vast majority of other fraternity chapters, it is relatively small, its members are selected through a process of rush and pledgeship activities that make the ultimate bonds of membership highly selective, and through their ritual and private meetings, important aspects of membership are private, shielded from public view or intrusion. Fraternities and sororities ought to be able to establish that they  meet the tests of intimate association articulated by the Supreme Court, yet the trial judge in the Pi Lambda Phi case rejected that out of hand.

[With regard to expressive association, the Pennsylvania Court held that: “While the fraternity has several purposes, we find that the central purpose of the fraternity is social.”]

With regard to expressive association, the Pennsylvania Court held that: “While the fraternity has several purposes, we find that the central purpose of the fraternity is social.” Again, from the brief discussion of this issue engaged in by the Court it is impossible to determine whether or not it examined the many other aspects of Pi Lambda Phi or fraternities in general. For example, it is not unusual to find in the governing documents of fraternities and sororities purpose language that establishes a high moral purpose to the organization, sometimes based on religious beliefs, but almost always with an eye toward the betterment of society. Fraternities are intended to be far more than simply “social clubs.” Those chapters which lose track of their broader purpose run the risk of losing their freedom of association rights just as did the Pi Lambda Phi Chapter in the trial court’s decision.

Pi Lambda Phi, for example, points to its status as “North America’s first non-sectarian and non-discriminatory fraternity.” While not advocating a religious basis to the organization founded more than I 00 years ago, the fraternity  makes clear that its purpose is to promote equality. Certainly, its formation was an effort to assemble people of like-minded  views in order to ultimately build a better society. That is an expressive activity protected by the First Amendment.

The Court noted that even if the fraternity was an expressive association with First Amendment protection, the university’s refusal to recognize the fraternity under the facts before the Court was justified. In Healey v. James, 408 U.S. 169 (1972), the Supreme Court looked at the First Amendment freedom of association rights of a local chapter of Students for a Democratic Society (SDS). While ruling that the university had improperly denied SDS the right to recognition, the Court did note that a university may adopt reasonable regulations with respect to the time, the place and the manner in which student groups may conduct their speech-related activities and may suspend or withdraw recognition from groups which violate valid university rules.

The University of Pittsburgh claimed that the Pi Lambda Phi Chapter, which under the university’s rules relating to fraternities was responsible for violations by its members, had violated university rules when drugs were found in the house  in the possession of members and other occupants. There is nothing to suggest that the fraternity affirmatively authorized or knew of the presence of those drugs, but the university’s assumption was that the fraternity was responsible for the rule violations of its members. The Court noted that even where there is a First Amendment right, university actions may be valid if they are supported by a compelling state interest. Here, the Court found a compelling state interest in maintaining a safe educational environment and in combating the evils of drugs. The Court refused to review the expansiveness of the university’s withdrawal of recognition which deprived, not only the wrongdoers of the benefit of university recognition, but those members who joined the fraternity even long after the wrongdoers had been removed from campus. As the Court stated: “We will not sit in place of the university and second guess whether the sanction was the most appropriate method of promoting the university’s interest.”

On the equal protection issue, the Court first recognized that there is a heightened awareness of equal protection rights where discrimination occurs between individuals classified by race or national origin. In those circumstances, such classifications are subject to strict scrutiny and must meet a compelling state interest. On the other hand, a classification such as the distinction between fraternity groups and non-fraternity groups on a campus was viewed by the Court as not involving a suspect class. Therefore, the distinction was presumed to be constitutional and the Court found that the burden of challenging that distinction fell to the fraternity which was required to demonstrate there was no conceivable rational basis for the distinction.

In the Pi Lambda Phi case, the judge noted that the rule regarding corporation liability of the fraternity for the individual conduct of its members, was little different from similar obligations imposed on other students and student groups. According to the Court, the University of Pittsburgh Student Code of Conduct imposed on all residents of campus housing, liability for the conduct of  their  guests. As a result, the Court argued that the plaintiffs had “failed to show how fraternities and sororities are treated differently from the rest of the student body, therefore, plaintiffs have failed to show an equal protection violation.” The Court went on to point out that even if there were a difference in how fraternity and non-fraternity groups were treated, there was a rational basis for that distinction. The Court summarized that distinction as:

“Unlike other student groups, fraternity and sorority members often live in the same house together, inductees undergo an intense ‘rush’ and/or pledging, and fraternities and sororities frequently serve alcohol at social functions.”

Pi Lambda Phi has determined that it will appeal this decision. In the meantime, this decision ought to be a warning to chapters across the country to exercise significant care in ensuring that they do not lose track of the real purposes for which they were founded and exist, that they celebrate and honor those purposes and that they revisit the seriousness with which they enforce their prohibitions against illegal drugs in the house on fraternity property.

¹     Pi Lambda Phi vs. Univ. of Pittsburgh, U.S. District Court, Western Dist. of Pennsylvania (August 4, 1999).

²     Fraternal Law has followed the legal issues arising in the aftermath of the raid. See “Two Cases of Note in Pennsylvania,” Fraternal Law, No. 62, November 1997; “Update on Pi Lambda Phi Pennsylvania Case,” Fraternal Law, No. 65, September 1998; and “Pi Lambda Phi Case Awaits Word from Pennsylvania Supreme Court,” Fraternal Law, No. 67, January 1999.