DKE Wins Right to Return to its House at Wesleyan and its Attorney’s Fees

Tim Burke, Manley Burke, tburke@manleyburke.com

In 2014, Wesleyan University in Middleton, Connecticut adopted a policy requiring all residential fraternities to become coed.  That policy triggered a long dispute which remains in litigation.  However, it is the University now on the defensive as a result of the successful lawsuit brought by Delta Kappa Epsilon (DKE).

Wesleyan had announced in late 2014 that within three years all residential fraternities there must become fully co-educational.  While DKE took steps toward to making their house coeducational, Wesleyan terminated their agreement with DKE well before the expiration of three years.  In fact, the University did it the day before housing selection for the 15-16 academic year began.  A lawsuit followed.¹

As reported in the June, 2017 issue of Fraternal Law², DKE and its local house corporation, The Kent Literary Club of Wesleyan University at Middletown, won a major victory following a jury trial that ended in a decision requiring the University to pay $386,000 in damages to the fraternal Plaintiffs.  The University was found to be in violation of the Connecticut Unfair Trade Practices Act (CUTPA) as well as its negligent misrepresentations and intentional interference with the Housing Corporation’s business expectations and other torts.  What was left to be determined was whether or not the fraternal Plaintiff could recover punitive damages, their attorney’s fees, and obtain injunctive relief allowing them to continue to house Wesleyan students in its chapter house.

Following a hearing on the Motion for Equitable Relief and other damages in November, the Court announced its “Ruling regarding: Plaintiff’s Post-Verdict Motions”³ on December 14, 2017.  While Wesleyan did not agree that the DKE Plaintiffs were entitled to attorney fees, the University did stipulate that those attorney fees amounted to $398,129 and that there were additional costs of $13,234.44.

CUTPA provides for attorney fees to be awarded to the successful Plaintiff and the Court agreed granting a total of fees and costs of $411,363.44 to the DKE Plaintiffs.  As to their request for punitive damages which are specifically allowed under CUPTA, pursuant to the Court’s discretion, the Court noted that the University probably paid its lawyers a similar amount of attorney fees as to what the Court had just awarded to the Plaintiffs, and in addition to that the University was obligated to pay the damages found in the June trial of another $386,000.  The Court noted “based upon these amounts, the Defendants have paid or will be required to pay, in excess of $1.2 million dollars as a consequence of their actions related to this case.  Payment of this amount is sufficient punishment.”  The Court therefore declined to award punitive damages.

While the University vigorously opposed equitable relief, the Court concluded that pursuant to the jury’s findings, and the history of the case, the Plaintiffs may obtain equitable relief under both CUTPA and specific performance related to the promissory estoppel claim and that “equitable relief is necessary to obtain the full measure of justice for the Plaintiffs.”

The Court began its order addressing the Plaintiffs, requiring DKE and its House Corporation to resubmit their plan for coeducation of the house.  That was the plan that the Fraternity had previously submitted which was rejected by the University.  Wesleyan was specifically ordered to include the DKE house “as an option in its offering of program housing for the fall 2018 semester”.  All parties were ordered to enter into a “Greek standards agreement, which agreement is necessary to allow Kent Literary Club and DKE to house Wesleyan students for the 2018 fall semester”.  That agreement was required to be the same agreement that Wesleyan enters into with other Greek organizations and would contain the same non-discrimination clause previously agreed to by the parties.

In fashioning its order, the Court specifically took into consideration the testimony by the President of the House Corporation that it had the resources and would complete the modifications to the home by the fall 2018 semester.  The Court specifically found his testimony to be credible.

While the Court also found the University’s Vice President’s testimony to be credible, it’s interesting that the decision specifically stated that with regard to the testimony by the University President as to why the DKE plan did not comply with University requirements, “the Court finds that the reasons given by President Roth as to why Plaintiff’s plan does not comply were not supported by sufficient supportive evidence.”

The Court retained jurisdiction over the dispute and provided specific guidance to the parties in the event that there are future proceeding to enforce this order.  Noting:  “It is expected that Plaintiffs will diligently fulfill the obligations they have committed under their co-education plan.  It is also expected that as to the Plaintiffs, Wesleyan will apply the same standards for compliance with the plan of coeducation of residential Greek organizations, that is applied to other similar organizations.”

The Court went on to point out that while “judicial circumspection is warranted with regard to decisions made by educational institutions.   However, educational discretion is not limitless.  As our Supreme Court has stated in Gupta v. New Britain General Hospital, 239 Conn. 574, 595 (1996) ‘in exercising its professional judgment, an educational institution does not have license to act arbitrarily, capriciously, or in bad faith.’  In this case, the jury’s findings cannot be ignored.”

Assuming that the decisions by the Court are not overturned on appeal, how the Wesleyan situation resolves over time will be interesting.  DKE must make its house available to both male and female students at Wesleyan.  DKE, however, is not obligated to admit women as members of the Fraternity.

1 “DKE Sues Wesleyan – Fraternal Law, March, 2015.

2 Jury awards major victory to DKE at Wesleyan – Fraternal Law, June, 2017.

3 Kent Literary Club of Wesleyan University at Middleton, et. al. vs. Wesleyan University et. al. Docket#MMX-CV-15-6013185-S, Ruling Regarding Plaintiff’s Post-Verdict Motions, Superior Court, J.D.of Middlesex December 4, 2017.