BAD FACTS MAKE BAD LAW AND FRATERNITIES SUFFER

James C. Harvey

Mr. Harvey is an attorney in Newport Beach, California. He  is  a member of Phi Delta Theta and a member of the NIC Law Committee. The assistance of Timothy M. Burke and Gregory F. Hauser is gratefully acknowledged.

For the first time, a published court opinion has addressed the question of whether a Greek-letter student organization is protected by “freedom of association” against disciplinary action by its host university, and the news is not good. In Pi Lambda Phi Fraternity v. University of Pittsburgh, 229 F .3d 435 (3rd Cir. 2000), a federal court held that the Pi Lambda Phi chapter at the University of Pittsburgh was not entitled to constitutional protections as either an “intimate” or “expressive” association. The decision is unfortunate, because it was based on an embarrassing factual record which overshadowed the fraternity’s legal arguments. The case should be a reminder that litigation of this type should not be pursued lightly because all fraternities and sororities can be affected by the outcome.

[A federal court held that the Pi Lambda Phi chapter at the University of Pittsburgh was not entitled to constitutional protections as either an “intimate” or “expressive” association.]

In April 1996, Pittsburgh police raided the house belonging to the University of Pittsburgh chapter of Pi Lambda Phi fraternity. A search found a large quantity of drugs and drug paraphernalia, including heroin, cocaine, hashish, and the so-called “date rape” drug, Rohypnol. Four chapter members were arrested; among the four were the chapter’s risk manager and the University’s IFC  president. The University’s investigating panel recommended the  chapter be placed on three years of probation, in part because the chapter had previously been sanctioned for drug activity within its house.¹ The University’s Vice Chancellor instead suspended the chapter’s status as a recognized student organization for one year, and barred it from hosting social events or participating in rush, intramural sports, or IFC activities during that suspension. Despite the suspension, the chapter continued to recruit new members and to host social events at its house.

In April 1997, after the University refused to lift the suspension (in part because of local community opposition), the chapter filed suit against the University and several individuals in the United States District Court, alleging violation of its members’ right of association, as well as violation of the Equal Protection Clause of the 14th Amendment. The chapter’s request for a preliminary injunction was denied. After discovery and testimony at fact-finding hearings, on July 28, 1999 the District Court  granted summary judgment in favor of the University.² The District Court determined that the chapter’s activities were social in nature, and that it merited no freedom of association protection. The court also held that even if the chapter did merit such protection, the University’s interest in enforcing campus order justified the infringement of the  chapter’s rights. The court also rejected the chapter’s Equal Protection argument, holding that the University did not treat the fraternity differently than any other group of students by imposing liability for the acts of its members and guests.

The chapter appealed to the Third Circuit Court of Appeals. In an opinion issued on October 25, 2000, the court upheld the judgment in favor of the University, albeit using a slightly different analysis than that applied by the District Court. The court agreed that the chapter did not qualify as either an intimate or expressive association on the facts  before it. The court further held that even if the chapter  was an expressive association, the University’s action  was justified by its interest in maintaining order on campus.

Freedom of Association

In Roberts v. United States Jaycees, 468 U.S.  609 (1984), the U.S. Supreme Court explained that there are two distinct types of freedom of association which may protect an organization from government interference. First, there is the right to associate with others in close personal relationships, which the court labeled the right of “intimate association.”

Second, there is the right to associate with others to conduct activities protected by the First Amendment, which the court labeled the right of “expressive association.” Even earning the status of intimate or expressive association is not a complete defense to government intrusion; there is still the government’s interests to be considered, and the  nature  of the infringement being imposed on the group’s associational activities.

The question of whether fraternities and sororities are entitled to claim constitutional protection under either branch of freedom of association had been extensively debated in Fraternal Law and in several law review articles, with most commentators opining that fraternities stood a good  chance of successfully claiming protection under one or both branches. It is unfortunate that the first case to actually test those theories had a factual background involving drug activity, which gave the University a strong basis for its actions and diminished the fraternity’s position.

Intimate Association

The Supreme Court has held that groups protected  by the right of intimate association would be characterized by relative smallness, a high degree of selectivity in decisions to begin and maintain the relationship, and seclusion from others in critical aspects of the relationship. In separate cases, the Court held that Jaycees chapters and Rotary Clubs fell on the unprotected side of the scale, primarily due to their unselective membership policies and practice of involving non-members in most of their activities.

Reviewing the evidence, the Pi Lambda Phi court determined that the University of Pittsburgh chapter was not sufficiently “small” to merit protection. Its membership had been reduced to 22 in the aftermath of the drug raid. However, in the year prior to the raid it had initiated 20 new members, and the court extrapolated from this a normal chapter size of 80. The court held that a chapter size of 20 to 80 would place it within the same range as the Jaycees chapters and Rotary Clubs which had been held not to be intimate associations. The court also noted that the chapter recruits actively from within the University  population, and is “not particularly selective” in whom it admits, although it did not explain what evidence led to this conclusion. The court also decided that the chapter was not secluded in its activities; it invites members of the public into its house for social events and participates in many public university events. The court therefore held that the chapter was not an “intimate” association.

The court can be criticized for its emphasis on size; the Supreme court has never stated that size is the most important factor, and other courts have held far larger groups to be sufficiently “small.” In Pacific-Union Club v. Superior Court, 283 Cal. Rptr. 287 (Cal App. 1991 ), a California appellate court held that a club with fixed membership of over 900 was small enough, given the other evidence  of  the club’s selectivity  and seclusion  from  the  public.  In Louisiana Debating and Literary Ass ‘n v. City of New Orleans, 42 F.3d 1483 (5th Cir. 1995), clubs with sizes of between 325 and 600 were held to be “relatively small in size” and found to be intimate associations because of their selectivity and seclusion from others. (Neither case was cited to the court  by Pi Lambda Phi.)

[It appears  that this fraternity  chapter  was hardly the ideal  model  to serve  as the  basis  for a case  with implications for all Greek-letter groups.]

The other factors set forth by the Supreme Court in Roberts, selectivity, congeniality, and seclusion from others in critical aspects of the relationship, have seemed to be the most important factors in practice, and most commentary has held that a fraternity would have a·strong argument as to all such factors. However, Pi Lambda Phi did not present evidence on these issues, which allowed the court to simply apply the stereotype of fraternities as drinking clubs and thereby dismiss its intimate association claim.

Expressive Association

The District Court had summarily rejected Pi Lambda Phi’s claim to be an expressive association,  assuming  that the fraternity was merely a “social” organization which conducted no activity protected by the First Amendment. However, in June 2000, in Boy Scouts of America v. Dale,

120 S.Ct. 2446 (2000), the U.S. Supreme Court had expanded the scope of “expressive association.” The Dale Court explained, “The First Amendment’s protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private.” The Court then quoted portions of the Boy Scouts’ mission statement, Scout Oath, and Scout Law, and concluded: “Thus, the general mission of the Boy Scouts is clear: To instill  values in young people…. It seems  indisputable  that an association that seeks to transmit such a system of values engages in expressive activity.”

In Pi Lambda Phi, the court recognized that in light of Dale, even the associational claims of a “social” organization are not so easily dismissed, and require reference to the evidentiary record:

“The expansive notions of expressive association used in Roberts and Dale demonstrate that there is no requirement that an organization be primarily political (or even primarily expressive) in order to receive constitutional protection for expressive associational activity.”

Pi Lambda Phi argued that it engaged in expressive activity through its charity work and by promoting the ideals embraced by its parent organization. This was the right argument to make, since the very purpose of a fraternity is to instill positive values in its members. Unfortunately, in the court’s view, the actual evidence to support those assertions was lacking:

“Although members of the Chapter claimed  in their deposition testimony that the Chapter still promotes those ideals, they did not give any specific examples of how it does so. Furthermore, while Pi Lambda Phi’s international organization runs various programs aimed at individual development, there is no evidence in the  record that even a single member of the University chapter participated in any of these programs.”

The court also found the evidence of Pi Lambda Phi’s charity work to be “underwhelming,” consisting of just three relatively minor acts of charity, apparently performed after the disciplinary suspension. Further, the chapter did not show that these activities had any connection to its purpose. Aside from the drug activity itself, it appears that this fraternity chapter was hardly the ideal model to serve as the basis for a case with implications for all Greek-letter groups.

[The  case  should  be  a  reminder that  litigation of this type  should  not  be  pursued  lightly  because all fraternities  and  sororities  can  be affected  by the outcome.]

Even if a better evidentiary record had allowed Pi Lambda Phi to successfully claim the status of an “expressive” association, the court held that the action under challenge (revoking the chapter’s campus recognition because of the drug activity) would still have been upheld as a permissible infringement of the chapter’s rights. The court noted that universities have traditionally been given power to regulate student behavior to maintain campus order. Even under Healy v. James, 408 U.S. 169 (1972), which mandates that student groups be given the benefits of campus recognition from a student group which violates campus rules or disrupts campus order. Here, the court held that the University of Pittsburgh reasonably concluded that the chapter was fostering illegal and disruptive activity.

The only good news was that the court confined its holding to the particular facts before it, and expressly left the door open for other fraternities:

“We add that we are not holding  that fraternities per se do not engage in constitutionally protected expressive association. It is entirely possible that a fraternity (or sorority, or similar group) could make out a successful expressive  association claim … We hold only that the University chapter of Pi Lambda Phi has failed to make out such a claim on the record before us.”

A Bad Precedent is Set

Prior to Pi Lambda Phi, there was no published case precedent involving fraternity associational rights. Although the weight of academic opinion favored fraternities, it was critical that the first actual case be based on a factual record which was carefully and fully developed. Many fraternity legal observers believed that Pi Lambda Phi was far from the ideal case, and should not have been pursued. Pi Lambda Phi’s request for financial assistance from the NIC Legal Advocacy Fund was denied for this reason, although the NIC did separately file an amicus brief supporting the fraternity.

[A defense by a fraternity or sorority with a record of campus involvement, high academic standing, and community service, with the evidence   and   legal   arguments   properly   presented, would have a good chance of success.]

Rather than a chapter facing disciplinary action, a far better “test” case might involve a chapter resisting university regulations which seek to control its private associational activities. For example, some universities have recently adopted standards documents requiring a wide range of information from chapters. Some of these are quite intrusive, even inquiring into chapter finances and ritual practices. A defense by a fraternity or sorority with a record of campus involvement, high academic standing, and community service, with the evidence and legal arguments properly presented, would have a good chance of success.

Although Pi Lambda Phi was based on unfortunate facts, it is currently the only available precedent, and will  have to  be dealt with by any future Greek-letter group seeking to establish or protect its rights via litigation.

¹ According to the  University  of Pittsburgh’s  brief on appeal,  page 4, fn. 3.

² Pi Lambda  Phi v. University of Pittsburgh, 58 F.Supp.2d  619  (W.D. Pa. 1999)