FIRE Responds to Ohio University’s Unconstitutional Restrictions

Tim Burke, Manley Burke LPA, tburke@manleyburke.com

The Foundation for Individual Rights in Education (FIRE) weighed in on how Ohio University [OU] initially handled its broad investigation into alleged instances of misconduct by fraternities, three sororities, the University band, and its rugby team, that was previously reported in the November, 2019 issue of Fraternal Law.

FIRE, whose mission is to defend and sustain the individual rights of students and faculty members at America’s colleges and universities, has a substantial record of challenging universities who fail to recognize those rights.

A nine page, single-spaced letter to Ohio University President, Marvin Nellis, began:

FIRE is concerned about the threat to freedom of expression and freedom of association at Ohio University (OU) posed by cease and desist letters issued to several student groups accused of hazing. By restricting these groups from meeting in any capacity or engaging in communication through social media platforms, OU has exceeded the lawful scope of its authority under the First Amendment.[1]

In a broad suspension of student organizations, OU had prohibited virtually all conduct by those groups, including business meetings, and had initially gone as far as attempting to restrict the ability of members of those groups to communicate with one another regarding the groups.  One University administrator dictated in writing to each group involved that “I expect there to be no other communication with your members unless it is preapproved by me.” Another University document prohibited members from discussing sorority or fraternity matters with one another, and prohibited members who did not live in a chapter house from congregating at their respective chapter houses.

Zachary Greenburg, the Program Officer for FIRE’s Individual Rights Defense Program and author of the letter mentioned above, was not amused. His letter carefully documented why OU’s actions could not be reconciled with its obligations under the First Amendment, providing numerous legal citations, including two critical U.S. Supreme Court cases. As the letter states,

It has long been settled that the First Amendment is fully binding on public colleges, like OU. Widmar v. Vincent, 454 U.S. 263, 268-69 (1981) (“Our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”); Healy v. James, 408 U.S. 169, 180 (1972) (“The precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.  Quite to the contrary, ‘the vigilant protections of constitutional freedoms is nowhere more vital than in the community of American schools.”).

The letter makes the following points that are equally applicable in  many of the situations in the last few years when a state university has shut down an entire fraternity system even though most members of the restricted groups were not even accused of misconduct, let alone found responsible for wrongdoing: (1) The groups at OU had a strong interest in their associational freedoms; (2) OU’s restrictions substantially interfered with those associational interests; (3) The restrictions were not narrowly tailored to further the University’s compelling interests in addressing unlawful hazing; (4) The prohibitions on group activities were unconstitutionally vague; (5) The restrictions on the use of social medial violate the First Amendment as online speech is protected by the First Amendment; (6) The mandate requiring preapproval by a university administrator before communicating with members constitutes an unconstitutional prior restraint on freedom of speech. 

OU’s then Interim General Counsel, Barbara Nalazek, responded to the FIRE letter, noting that “while not agreeing…that the original directives were constitutionally infirm,” the University had lifted or significant modified the limitations and eliminated entirely restrictions on communication.[2]

There is no doubt that colleges and universities are very concerned about hazing-related issues, just as national fraternities and sororities are; too many tragedies have occurred not to take those matters very seriously. But the constitutional rights of fraternities and sororities chapters and their members remain real and substantial, and therefore they must be honored at least by state universities.

NOTE: Additional information about FIRE can be found on its website, www.thefire.org/.

[1]Letter from Zachery Greenburg, Program Officer, FIRE, to Marvin Duane Nellis, President, Ohio University (Nov. 12, 2019).

[2]Letter from Barbara U. Nalaek, Interim General Counsel, Ohio University, to Zachery Greenburg, Program Officer, FIRE (Nov. 22, 2019).