Bloomington Zoning Ordinance Unconstitutional Says Indiana Court Of Appeals

Sean P. Callan, Fraternal Law Partners, sean.callan@fraternallaw.com

To say Indiana University (“IU”) aggressively sanctions fraternities and sororities may understate IU’s posture. In the 2019–2020 academic year, about half of IU Greek letter organizations, men’s and women’s groups, found themselves under suspension of one sort of another. While recognition by IU is likely desired by many of these groups, that recognition proved critical to sustainable operations.

Readers of Fraternal Law may remember that the City of Bloomington has a zoning ordinance that conditioned lawful operation of a chapter house on recognition by IU. Specifically, the Bloomington Ordinance required that in order to lawfully operate a chapter house, the following condition must be met:

all students living in the building are enrolled at Indiana University, Bloomington Campus; and Indiana University has sanctioned or recognized the students living in the building as being members of a fraternity or sorority through whatever procedures Indiana University uses to render such a sanction or recognition.

UJ-Eighty Corporation (“UJ-Eighty”) challenged the Ordinance asserting, among other things, that it was an unlawful delegation of Bloomington’s municipal zoning authority to IU. The trial court agreed with UJ-Eighty, holding the Ordinance an unconstitutional delegation of authority. (Click here for further discussion of the trial court opinion).

The City of Bloomington appealed the trial court decision to the Indiana Court of Appeals. Of note, IU filed an amicus brief in support of the City’s appeal. In its amicus papers, IU explained its disciplinary philosophy confirming what many already suspected—IU is committed to punishing groups for the errors of individual members of the group:

Although IU could try to discipline individual members, this proves to be difficult in practice given the reluctance of individuals to provide information and/or evidence against a single student rather than against an entire organization. It is also inefficient, placing many students at risk, and does not allow IU to effectively mitigate against the risk posed by the problematic culture, attitude, and behavior fostered by the organization.

Stated differently, IU is committed to group, as opposed to individual, discipline.

IU’s admitted position is even more troubling when one applies the Bloomington zoning ordinance. Again, the ordinance gave to IU, an entity with a stated bias against student groups, the power to determine not only whether the group was a recognized student organization, but whether its chapter house use was lawful.

We are pleased to report that the Indiana Court of Appeals understood the import of the Bloomington ordinance. Upholding the trial court decision finding the Bloomington ordinance to be an unconstitutional delegation of authority, the Court succinctly wrote as follows:

Accordingly, we hold that the City, via its Ordinance, impermissibly delegated to Indiana University the authority to decide whether a group of people will be recognized or sanctioned as members of a fraternity or sorority for purposes of determining whether a property owner complies with the Ordinance, in violation of the Fourteenth Amendment. Therefore, we affirm the judgment of the trial court.

            We congratulate UJ-Eighty and the attorneys at Mallor Grodner for the victory in this case. While the City of Bloomington has requested that the Court of Appeals rehear the case, a decision on that request is still pending. The Court of Appeals decision is another brick in a wall of cases establishing that these types of delegatory ordinances cannot sustain constitutional scrutiny. As this line of cases continues to build, we hope that other municipalities may take notice and change their unconstitutional ordinances without litigation. Click here for the full opinion.