CHI IOTA COLONY V. CSI: WHAT HAPPENED AND WHY

Gregory Hauser, Wuersch & Gering, LLP

The United States Court of Appeals for the Second Circuit issued an opinion on September 13, 2007, that poses a potential problem for social fraternities and sororities asserting freedom of association rights against public colleges and universities.  While the appellate court found that the plaintiff fraternity colony, which was seeking official college recognition, was indeed an intimate association as that term is used in constitutional law, the court also held that the fraternity was not “intimate enough” and the defendant college’s denial of official recognition and its benefits was not burden enough, defeating the fraternity members’ claim that their constitutional right to freedom of intimate association had been violated.  Ironically, while the court rested the second finding in part on the fact that the colony had persisted despite the absence of recognition, the colony folded while the appeal was pending, at least in part from the limitations of and frustrations from being denied recognition.

Policy on Recognition

The defendant was the College of Staten Island (“CSI”), a senior college unit of the City University of New York (despite its name, a state institution as a legacy of New York City’s fiscal crisis in the 1970s) and an overwhelmingly commuter school.  For official recognition of a student organization, CSI requires, among other conditions:  that the organization be open to all students, i.e., that it not be selective; that it not discriminate on the basis of a litany of bases including sex; that its meetings be open to all students; and that it not engage in any activity constituting “rush” or pledging.  The policy was very obviously aimed at social fraternities and sororities.  Official recognition brings with it access to campus facilities, College publications concerning student organizations, and periodic student activity “fairs” that attract students interested in joining campus organizations.  In addition, each officially recognized student organization receives an allotment of money but is in return prohibited from charging dues.

AEPi Starts a Colony and Challenges Policy

CSI had no fraternity until a group of students established a colony of Alpha Epsilon Pi in 2004.  They sought recognition, which was denied based on the long-standing recognition policy.  The colony and its members sued CUNY in federal court in June 2005 claiming a violation of their constitutional rights to intimate association, expressive association and equal protection as well violation of Title IX and certain civil rights provisions of New York State law, and they sought both recognition and an exemption from the rules against selectivity, sex discrimination, closed meetings, rush, pledging and charging dues (in return for which they agreed to forego any money from the College).  The plaintiffs moved for a preliminary injunction requiring recognition during the pendency of the suit, and the state moved to dismiss.  The state law claims were withdrawn once the state raised the 11th Amendment.

The state deposed the colony president, who testified at length concerning their membership selection practices, why the group chose to be and wished to remain single sex, the burdens imposed by lack of recognition (including the difficulty for commuter students dependent on mass transportation in setting up meetings off campus), and other topics.  Relying on his testimony and a handful of documents produced by the fraternity, the matter was argued at a lengthy hearing before the district court judge.  The plaintiffs argued: (1) that their size, selectivity, exclusion of non-members from “critical aspects” of their relationship, and their purposes entitled them to constitutional protection as an intimate association; (2) that their expressive message on the merits of an all-male organization entitled them to constitutional protection as an expressive association; (3) that denial of recognition violated equal protection since other student groups were granted recognition; and (4) that the College’s denial of recognition, because it was based on the fraternity’s single sex nature, was a violation of Title IX.

The state argued that the eighteen man group was too large compared to other groups that had been granted intimate association by the courts, that they were insufficiently selective, and that because they engaged in public recruitment and invited outsiders to their social activities they were insufficiently intimate to qualify for constitutional protection, that their application for official recognition by a public institution was inconsistent with their claim of intimacy, that the lack of recognition was not a constitutionally cognizable burden, and that the state had a sufficiently compelling interest in the prevention of discrimination to justify enforcement of the current policy.

The plaintiffs countered that the landmark Supreme Court decision of Healy v. James¹ established that denial of recognition to a student organization by a public institution of higher education on an unconstitutional basis was undue interference with freedom of association and that the specific exemption of the membership practices of fraternities and sororities from the federal and state civil rights statutes defeated any finding that there was a state interest in reaching those practices with anti-discrimination rules.

The District Court Grants Plaintiff’s Motion

The district court spent most of its August 2006 opinion analyzing the intimate association claim and found that the plaintiffs had established a likelihood of prevailing on the merits of that claim, including that the claim required the application of strict scrutiny, which the state’s asserted interest could not satisfy, and granted a preliminary injunction.  The trial court also found that the expressive association was a closer call and held any further finding on the issue for trial and, in brief discussions, dismissed the equal protection and Title IX claims.

Reversal on Appeal

The state appealed, making the same arguments it had made in the district court but placed heavier emphasis on an argument it had raised only in passing at the oral argument, that the fraternity was effectively seeking a subsidy for its discriminatory activities to which it was not entitled.  The plaintiffs pointed out that part of the relief they sought was exemption from the financial straight jacket imposed by the College’s policy, including foregoing any monetary support.

The Court of Appeals reversed to District Court.  The decision applied a balancing test, with a sliding scale standard, in which the extent of the association’s intimacy is assessed to determine the extent to which it is entitled to protection and to which the contested state action might be an infringement.  The Court held that, while the fraternity colony was an association of some intimacy, there was insufficient intimacy when compared to the paradigmatic intimate association of a family to merit strict scrutiny, that the college’s policy was only a limited interference with the plaintiffs’ associational rights, and that the college’s interest in preventing discrimination was both compelling and substantial.  The decision completely ignored both Healy v. James and the blatant conflict with federal and state policy as established by the legislatures in the statutes relied upon by plaintiffs.  (At oral argument, two of the judges seemed to express a tendency to view the expressive association claim with less skepticism than the intimate association claim, but the opinion did not address the issue, apparently leaving it for further proceedings by the district court.)

Consequences for the Colony and Other Greeks

In the meantime, while the appeal worked its way to a decision, the colony gave up the ghost, mooting the plaintiffs’ claims.  The colony’s demise defeated the possibility of pursuing the expressive association claim before the district court.

The Second Circuit decision was not necessarily a fatal blow to an intimate association claim by a social fraternity and sorority against a state public institution of higher education. It leaves open (a) a limited possibility that in another situation denial of recognition might be a sufficient burden to constitute a civil rights violation, e.g., if the campus were so small and isolated that non-recognition is more clearly effectively an insurmountable barrier for existence, or (b) the claim that any attempt by a college or university to restrict students from participating in a non-recognized fraternity or sorority is a more direct and substantial infringement of associational rights meriting relief. The decision also, in applying the balancing test, augmented an existing conflict among the circuits concerning the standard to apply in freedom of intimate association claims.

The Second Circuit’s decision poses a potential conflict with Healy v. James and blew right by a weighty issue of how a state college could have a compelling interest in opposing fraternity and sorority membership practices that the state’s own legislature had decided by statute should be exempt from any state concern.  Law review commentators have noted both the lack of uniformity among the circuits in the standard applied in intimate association cases and the lack of clarity in federal jurisprudence concerning what constitutes a compelling state interest, making both candidates for resolution by the U.S. Supreme Court.

The case nonetheless poses a major challenge to fraternities and sororities in any effort to assert that the constitution and the civil rights laws provide them with rights and protection from certain treatment by public institutions of higher education.  Beginning to meet that challenge on the intimate association side requires taking the risk of pursuing a similar claim in a different circuit and hoping for a better result.  On the expressive association side, the district court’s finding that the fraternity’s documents and activities did not necessarily add up to a convincing claim of expressive association is a clarion call for every fraternity and sorority to examine the extent to which they actually do constitute organizations that by word and deed express explicitly that among their purposes is promoting the value of single sex organizations.

¹  Healy v. James, 408 U.S. 169 (1972).