Stephen Bernstein & Rob Derdiger ¹

Increasingly, chapters chartered by national fraternal organizations operate without university recognition. National organizations generally prefer to maintain formal alliances with universities, but some also assert their freedom to exist and perpetuate regardless of university recognition. The legal right of fraternal organizations to operate independently and without university governance is well established at public universities.2 Private universities appear unwilling to take the risk of establishment of case law.3

Some groups do not seek to affiliate, and others have voluntarily (or been involuntarily) disaffiliated. Reasons for operating without affiliation include, but are not limited to real estate and zoning issues, expansion policies, issues with policy, unwillingness to be subjected to biased or unfair conduct processes, and denial/revocation of recognition. These relationships impact various issues, including loss mitigation, insurance, freedom of association, student conduct, and access to resources and facilities. Increasingly, issues best addressed collaboratively are complicated by various rules and often become adversarial.

There are certainly benefits to both schools and fraternal organizations to maintain recognizing Greek chapters as student organizations. Historically, Greek alumni generously support and donate to their alma maters.4Affiliation also provides to the colleges some governance over the organization itself, although, pursuant to student codes of conduct, the universities retain jurisdiction over individuals, even if the chapter is unrecognized. On some campuses, unaffiliated fraternal organizations have formed independent inter fraternity councils, frequently self-imposing rules similar or identical to university requirements for recognized organizations.5 Often, both local chapters and national organizations maintain a working relationship with universities notwithstanding the disaffiliation.6 Elsewhere, universities publish cautions and even threaten students who join unaffiliated organizations.

Traditionally recognized student organizations are entitled to certain rights and privileges. Some of the benefits of university recognition extended to student organizations and their members may include use of the university name and trademarks, student activity fee funding, listing on announcements of student activities, use of campus facilities and services, sponsorship of campus programs and activities, participation in student organization recruitment activities, and educational workshops. Recognizing student organizations provides a structure through which students may exercise their right to freely associate in pursuit of a common purpose or goal that enhances community. Recognized student organizations create opportunities for leadership development, learning, student engagement, and fostering of shared interests.

Yet a system of recognition also has legal ramifications for universities who must comply with provisions of the U.S. Department of Education. These entice universities to create policies that infringe on the rights of private organizations and students.7

Increasingly, universities have created a separate class of recognition that applies only to fraternal organizations. This class mandates unique requirements be fulfilled such as additional fees paid, inclusion of the universities as named insured on the organization’s insurance policies, and adherence to additional rules and regulations. Additional benefits to students are, however, limited or nonexistent under this class of recognition.

One must ask themselves, why is this structure of recognition in place and why do universities perpetuate it? In a changing landscape, does this system serve universities or fraternities?

Fraternal organizations often believe that University systems to which recognized chapters are subjected are often punitive rather than educational in philosophy and direction. Recognition is sometimes withdrawn from an entire group based on the actions of a few, but universities do not simultaneously discipline the responsible individuals. There is clear disparity between how a university treats a fraternity and how it treats other organizations, especially athletic teams.8 Universities often opine that the actions of the few are the result of a culture or lack of supervision by the national office all the while maintaining campus-based staff that oversee Greek activities and setting the policies which govern them. There are certainly cases where collective accountability is warranted due to theactions of the leadership or broad membership of an organization. In these cases, it is suggested to adopt a system of joint and several accountabilities where each member of an organization is held equally accountable for any corrective actions or sanctions, regardless of changes in their membership status. Chapters maintain their own peer conduct procedures and national headquarters staff provides training and guidance. Few other types of student organizations maintain systems forpeer accountability. It is notable that unrecognized organizations sometimes continue to operate with no oversight from a university, parent organization, or any group insurance. Fraternities and sororities disaffiliated from both the university and national pose additional, serious safety and liability risks to universities, which they may be legally bound to manage, especially if they are aware of such organizations but do nothing to curtail their activities.9

Both fraternal organizations and universities face similar loss mitigation and insurance challenges.10 Clearly universities see fraternities as an additional risk. It is worth considering whether, for insurance purposes, universities and national organizations are both better off unaffiliated with one another. In the case of the University of Colorado, this arrangement has been in place since the early 2000s and both the university and fraternal system have flourished.Universities work with a variety of outside organizations including police, fire departments, city councils, charities, and local clubs without recognition agreements, suggesting that separation from one another may allow greater flexibility to work together without the burden of policy and legal compliance. Those with more distant and less structured affiliations would face fewer liability issues.11

Zoning issues for fraternal housing have also sometimes been a cause for disaffiliation. Courts have upheld local zoning ordinances that terminated special use exceptions for Greek housing if university recognition was withdrawn.12 At the University of Michigan, Greek organizations disaffiliated in 2018 to avoid a similar new local zoning ordinance.13Several of the disaffiliated organizations have maintained close working relationships with various university administrators and departments since that time.

As the college landscape becomes more complex for undergraduates to navigate, investments should be made by universities in their fraternity and sorority affairs offices, and by national organizations in staff at a level that embodies a collaborative and educational—rather than punitive—philosophy and approach to chapter issues. It is our strong opinion that doing so not only promotes better resolutions, but also contributes to loss mitigation and insurance management. We believe universities need to get back to the core business of education and get out of the business of overseeing independent organizations. This core philosophy would allow students the right to affiliate with any organization of their choosing at any time, including fraternal organizations, clubs, political parties, advocacy groups, religious communities, trade associations, or any other type of organization.

2 Christian Legal Society v. Martinez, 561 U.S. 661 (2010); Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136 (2d Cir. 2007).

3 Kappa Alpha Theta Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97 (D. Mass. 2019); Harvard Drops its Sanctions Policy, Kappa Alpha Theta(July 3, 2020).

4 Patricia Purish O’Neill, The Impact of Undergraduate Greek Membership on Alumni Giving at the College of William and Mary (2005) (Ph.D. dissertation, College of William & Mary); The Alumni Segment That Gave at Nearly 2x Greater Rate at College Of Charleston, EAB (Nov. 22, 2019);Gallup Survey, Found. for Fraternal Excellence (2021); Jeremy Bauer-Wolf, Greek Life Chapters Are Rejecting Their Colleges. Here’s What it Means., Higher Ed Dive (Aug. 23, 2022).

5 Rachel Cunningham, Disaffiliated Frats Create Independent Interfraternity Council, Mich. Daily (Sept. 13, 2018).

6 Maroon Editorial Bd., The Unsung Dilemmas of Unrecognized Greek Life, Chicago Maroon (Mar. 3, 2020).

7 See, e.g., the Clery Act, 20 U.S.C. § 1092(f); Code of Federal Regulations, 34 CFR § 668.46; and Titles VI & IX, 42 U.S.C. § 2000d.

8 Michael Schill, Update on Hazing Investigation; Northwestern Leadership Notes (July 8, 2023); Yates v Northwestern, No. 2023L007300 (Cook Cty. Ill. July 14, 2023); Impact, Northwestern Hazing Prevention, https://www.northwestern.edu/hazing-prevention/responsibilities/impact.html (last visited Mar. 25, 2024).

9 Melanie Bennett, Manage Unsanctioned Fraternities and Sororities, United Educs. (July 2023); Suspended Organizations, Miami Univ., https://miamioh.edu/life-at-miami/student-involvement/fraternity-sorority-life/chapters/organization-judicial-history/suspended-organizations.html(last visited Mar. 25, 2024).

¹⁰ See, e.g,, Insurance Requirements for Fraternities and Sororities, Rutgers Univ.,https://greeklife.rutgers.edu/sites/default/files/pdf/Insurance_Requirements_OFSA.pdf (last visited Mar. 25, 2024); Insurance Requirements for Auburn University Greek Life Organizations, Auburn, https://cws.auburn.edu/rms/pm/GreekInsurance (last visted Mar. 25, 2024).

11Liberty! Fraternity! Liability!, Risk & Insur. (Apr. 2015).

12 Schweizer v. Bd. of Adjustment of Newark, 980 A.2d 383, 384 (Del. 2009); City of Bloomington Board of Zoning Appeals v. UJ-Eighty Corp., No. 21S-PL-77, 2021 WL 717972 (Ind. 2021).

13 Sonia Lee, City Council Approves New Code For Greek Housing, Mich. Daily (July 18, 2018); Sasha Volokh, Can Universities Control the Operation of Municipal Zoning Ordinances?, Reason Magazine (Sept. 23, 2021).