Elections Have Consequences for Fraternal Law Too

Micah Kamrass, Manley Burke, mkmrass@manleyburke.com

Like all other fields of law, fraternal law is highly dependent on our government decision makers. Congress passes laws, which are then enforced by the President and the Presidential appointees in the Executive Branch. Ultimately, Judges in various courts around the country interpret many of these laws, with the final say typically belonging to the United States Supreme Court. Now that the 2016 election is behind us, we know that there will be some major changes in all three branches of our federal government. While the impact of this change is impossible to predict, here are some areas of potential changes that members of the fraternity community should be looking out for:

Legislation:

For the first time in a decade, both houses of Congress and the Presidency will be under Republican control. As a result of this, the prevailing wisdom is that this end of divided government may also lead to an end in the gridlock that has prevented legislative action these past few years. This means there will be renewed opportunity for advocacy of legislation that is important to fraternities and sororities.

Chief among these proposals is the Collegiate Housing Infrastructure Act (CHIA), which would rewrite the federal tax code to make donations to fund Greek student housing fully tax-deductible.  CHIA was first introduced in the House in 2003 by Congressman Paul Ryan (who is now Speaker of the House), but despite immense lobbying efforts, has not yet become law. With the potential for increased legislative action, there is now hope that CHIA could be included in some larger legislative proposal under the new Congress.

Similarly, as recently as last year, a coalition of fraternities and sororities retained lobbyists to advocate for a legislative package focused on due process protections.¹  The Fair Campus Act proposal outlines a series of due process reforms for the university disciplinary process.²  This includes a right to a lawyer, the right to examine witnesses, the right to review all inculpatory and exculpatory evidence, and the right to an adjudicator who was not part of the university’s investigation.³  The bill also provides for the elimination of the Office of Civil Right’s mandate that “preponderance of the evidence” is the appropriate standard in these hearings.⁴  There is also hope in the fraternal community that a longer legislative proposal of this nature could include strengthening the single-sex status of social fraternities and sororities.⁵

Perhaps this election means fraternities and sororities will see a vote on some version of the more recent legislative proposals.

The Executive Branch:

The turnover from President Obama’s administration to the administration of President-elect Trump is likely to lead to significant changes in policies and priorities. President Obama’s Office of Civil Rights in the Department of Education has been incredibly active in Title IX enforcement in the form of investigations and significant guidance in the form of Dear Colleague Letters.

While it is still far too early to know what the Department of Education will look like under the Trump Administration, the rhetoric from his campaign indicates that there are likely to be major changes in this area. At the most recent Republican National Convention, the Republican Party adopted a platform that allegations of sexual assault should be “prosecuted in a courtroom, not a faculty lounge.”⁷ According to a recent article in the Chronicle of Higher Education, many experts predict that the Trump Administration will revisit the role of the Office of Civil Rights. Some predict it may move to the Justice Department, as President-elect Trump has called for the complete elimination of the Department of Education. Others predict it will remain in place but that it will no longer conduct sexual assault investigations.⁸

No matter the procedural mechanism, it is highly likely that the Trump Administration will revoke much of the Title IX guidance from the Obama Administration. This may mean an end to the mandate for the “preponderance of evidence” standard, the end of the federal government’s involvement in sexual assault proceedings on campus, and the end of the most recent guidance documents that dictated procedures for the inclusion of transgender students on campus.

The Courts:

As is typical, numerous higher education and fraternal law questions are litigated in the federal court system. President-elect Trump will inherit an extraordinary amount of vacancies on the federal bench, including one at the Supreme Court.  President-elect Trump published a list of 21 individuals he would consider for the open Supreme Court Seat.⁹  Many believe that replacing the deceased Justice Scalia with an individual from this list would not drastically alter the Supreme Court’s ideology from the past decade. However, we could see a conservative shift if President-elect Trump later has the opportunity to make additional appointments to the Supreme Court.

However, as President-elect Trump fills vacancies on the other federal courts, he will have an opportunity to make a more immediate impact on federal jurisprudence. How this impacts fraternities and sororities is yet to be seen.

Conclusion:

Members of the fraternal community can expect some major legal developments as a result of the election. There is a renewed opportunity for legislation on important issues such as CHIA, university due process reform, and strengthening single-sex status protections. There is also likelihood that federal executive branch actions regarding Title IX will be revoked or relaxed in a substantial way. The federal judiciary will begin the slow process of changing as well, which will of course impact the fraternal law-related cases that are litigated in federal courts. Of course, it is too early know how exactly these changes will impact the fraternal community, but the community should expect changes. Fraternal Law will continue to report on these changes.