Discrimination Concerns at the University of Alabama

Tim Burke, Manley Burke, tburke@manleyburke.com

When the fall 2013 new member recruitment period at the University of Alabama failed to result in any new member offers being made to African American women who had expressed an interest, it made national news.  The timing could not have been worse.  It was the 50^th anniversary of the March on Washington, the Birmingham church bombing that killed four young girls and George Wallace’s stand in the doorway unsuccessfully preventing the integration of the University of Alabama.  It was a perfect storm of reminders of past injustices, how far we have come, and unfortunately how far we have yet to go.  Previously, only one African American woman had ever joined a traditionally white sorority at University of Alabama.

University of Alabama President Dr. Judy Bonner wasted no time in announcing that was unacceptable, and decreed that the chapters of the 17 National Panhellenic Conference organizations at the University of Alabama should immediately reconsider those minority students who were denied new member status and begin a period of Continuous Open Bidding (“COB”) intended to ensure the integration of the Greek system.

Rumors abounded about what happened — Interference by alumnae?  Or by The Machine, a powerful secret society?  Concern about how men’s groups would react?  Did the University President have the right to decree a “do over”?  Or impose COB?

Whatever the powers of the President may or may not have been, or the facts that led to her decision, the national and international women’s groups involved immediately recognized the situation was unacceptable.  All of their national and international organizations have anti-discrimination policies specifically prohibiting membership discrimination on the basis of race.  Many sent national representatives to Tuscaloosa and all cooperated with the President’s decision.  Within a week, eleven bids were extended to minorities, four accepted, and some of the Alabama chapters had their first ever African American members.

Questions remain about how far a university can go in mandating membership in a private social organization.  Recall the controversy at Hastings Law School that resulted in the Supreme Court decision in Christian Legal Society v. Martinez¹ or the bitter debate caused by the imposition of an “all comers” membership policy at Vanderbilt.²

Suffice it to say that in this day and age, it cannot successfully be argued that a private social organization at a university could justify a whites only membership policy or practice.  If such a practice could be proven, no court would have difficulty in finding that it was a violation of law.

Frequently, fraternities and sorority houses offer some of the best housing on campus.  Any chapter that discriminates on the basis of race could find itself in violation of the law.

Federal law prohibits discrimination based on race, color, religion, or national origin in public accommodation. (42 U.S.C. § 2000a-1).  States have adopted similar anti-discrimination provisions.  Federal courts long ago put to rest any challenges to the right of the federal government to prohibit such discrimination when it involved protecting interstate commerce.  There can be little doubt that colleges and universities and fraternities and sororities in their recruitment of students across state lines are engaged in interstate commerce.³  A fraternity or sorority, albeit a private social organization, if found to have engaged in illegal discrimination, can end up not only facing a court order to cease such conduct, but potentially could be called upon to pay damages and the attorney’s fees of the plaintiff.

While federal law does prohibit discrimination on the basis of gender, a specific provision of the federal law exempts social fraternities and sororities from that prohibition and permits them to continue to exist as single gender organizations. However, that exception only applies to gender.  Similarly, a college or university, particularly a public one, which extends recognition and the use of its facilities to private social organizations, like fraternities and sororities, or leases land for a chapter house or reserves exclusive wings in a dormitory for chapter members to live together, cannot allow discriminatory member practices that violate state or federal law to continue.

Given the First Amendment, a public university may not be able to expel a student for advocating racially restrictive policies or engaging in racist speech, but it is unlikely that any court would require the university to extend the benefits of recognition to a student club that imposed racially restrictive membership.

The reality is that diversity of American college and university campuses is only going to continue to grow.  Studies indicate that the percentage of white high school graduates will actually decline over the next decade.  At the same time, the percentage of  Hispanic, Asian and Asian Pacific students will soar.  As a result, those fraternity and sorority chapters that embrace diversity in their membership selection are likely to be the most successful on the college campuses of the future.

There is nothing wrong with making membership selection based on the high moral and ethical standards espoused in the governing documents of each organization or on the commitment of potential new members to the community service and philanthropic projects the chapter promotes.  But there is no reason to believe that such standards and causes are not shared across racial, ethnic, religious and sexual orientation boundaries.  A chapter that welcomes the diversity of the campus in its membership will enhance the educational experience of its members by better preparing them for success in an increasingly diverse world away from campus.  The situation at Alabama is a tremendous reminder that instead of merely having anti-discrimination policies on record, fraternities and sororities should actively embrace diversity in their recruitment processes.

1 Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 319 Fed. Appx. 645 (2010).

2 “Vanderbilt ‘All Comers’ Policy and its Implications for Greek Organizations,” Timothy M. Burke, Fraternal Law, March 2012.

3 See Hamilton Chapter of Alpha Delta Phi v. Hamilton College, 128 F.3d 59 (2^nd Cir. 1997).