COUNTERPOINT: RELATIONSHIP STATEMENTS AS AN EFFORT TO USURP CONTROL

James C. Harvey

The November 2002 issue of Fraternal Law featured an article by Holiday Hart McKiernan of Alpha Chi Omega on the subject of relationship statements. Ms. McKiernan recommended that Greek-letter groups cooperate with their host universities in developing relationship statements which set forth mutual expectations, as well as procedures for accountability and enforcement. She argued that trends in academia and society compel this process, and that Greeks should not resist by emphasizing their associational rights.

On the contrary, Greek organizations should firmly assert their associational rights at every opportunity. Although this may be perceived in some quarters  as  an  uncooperative attitude, it is the Greeks’ best defense against heavy-handed university administrators whose goals, in many cases, are not consistent with the rights of Greek organizations.  Those goals often involve bringing Greek groups under tight university control.

This is most clearly seen in one of the publications cited by Ms. McKiernan, “Greek Organizations on the College Campus: Guidelines for Institutional Action,” a 1990 product of the American Council on Education (ACE). Because ACE viewed Greek groups as being “particularly visible and susceptible” to regulatory action, its report recommended that member institutions implement a series of “activist” measures. These included issuance of strict standards for Greek organizations (with penalties for violation), deferred rush, a minimum GPA for membership, elimination of pledge status, designating a staff member to supervise Greek affair s, and required educational programming. To enforce these measures, ACE recommended that Greek groups’ status as recognized campus organizations be made to expire regularly, and be renewed only if university requirements have  been met. ACE boldly described regular renewal as “the key to institutional control of Greek organizations.”

The problem with ACE’s plan is that campus recognition is not a mere privilege, to be dispensed on whatever terms the university chooses; it is an affirmative right anchored in the First Amendment. Beginning with the U.S. Supreme Court’s decision in Healy v. James, 408 U.S. 169 (1972), courts have consistently held that student groups are entitled to the benefits of university recognition unless the group disrupts campus order. A university must shoulder a “heavy burden” to justify denying or removing those benefits, a burden of proof the Supreme Court explicitly placed on the university, not the students. This is the foundation of freedom of association for students.

However, many universities have denied that Greek organizations have any such rights, characterizing them as merely “social” groups not protected by the First Amendment and Healy. There has also been an assertion that Greek groups, because of their visibility, are fundamentally different than other student organizations and are therefore fair game for intrusive regulations and forced programming. An ACE­ style system of regular renewal, found in several relationship statements, provides the coveted ” institutional control” by making a Greek group’s very existence conditional. That is a fundamental threat that must be opposed.

Some universities have implemented ACE-inspired rules based on their alleged fear of liability for Greek activities. Ironically, ACE made its recommendations despite warnings about possible institutional liability contained in a “White Paper” that ACE itself commissioned the previous year. The author of that paper (Sheldon Steinbach, now ACE’s general counsel) noted that issuing a detailed  relationship statement  in an effort to control Greek activities may actually increase a university’s risk, because a court  could  then  reasonably  find that  the   university   has   assumed   a   legal   duty   to   prevent injuries. In fact, the relative handful of  reported  cases  in which a university has been held  liable  for  injuries  arising from Greek activities (as opposed to merely being named in a lawsuit) have each been based  on  a  finding  of  an  assumed duty .

Ms.  McKiernan argued that today’s legal climate does not favor an emphasis on Greek associational rights. On the contrary, this author believe s that legal trends are actually running in the Greeks’ favor. After  the U.S. Supreme Court’s decision in Boy Scouts of America v. Dale, 530 U.S.  640 (2000), it seems clear that fraternities and sororities are not merely social groups, they are “expressive associations” entitled to the same rights and campus  privileges  as  any political  or  advocacy group. (Although the later case of Pi Lambda Phi v. Univ. of Pittsburgh, 229 F.3d 435 (3^rd Cir. 2000) reminded us that such status cannot be taken for granted, but instead depends on proper presentation of evidence.)

Although most universities have not yet attempted to impose   draconian   ACE-style   measures,  the  relationship statements that are being issued are increasingly  intrusive and controlling. Whether they disguise their intentions by using euphemisms like “expectations” or “standards,” the goal of many university administrators appears to be to erode student rights and obtain by contract what they cannot obtain by law. And that must be resisted, even at the expense of a cooperative relationship.

Mr. Harvey is an attorney in Orange County, California. He is a member of Phi Delta Theta and the NIC Law Committee. The opinions expressed herein are solely those of the author.