FRATERNITIES PROTECTED AS INTIMATE ASSOCIATIONS

“For the reasons set forth above, the court grants Plaintiff’s Motion for a Preliminary Injunction on the basis of their intimate association claim” — with those words, United States District Judge Dora L. Irizarry upheld the right of Alpha Epsilon Pi’s Chi Iota Colony to operate as a single sex membership organization.¹  The decision, entered on August 11, 2006, exempts AEPi, at least for now, from the regulations of CUNY’s College of Staten Island, which required that “for an organization to be officially recognized at the College of Staten Island, membership and participation in it must be available to all eligible students of the College.  In addition, in order to be recognized, each organization must agree not to discriminate on the basis of age, alienage or citizenship, color, gender, differing ability, national or ethnic origin, race, religion, sexual orientation, veteran or marital status or social class.”

As with most national social fraternities and sororities, AEPi had a long and unbroken history of limiting its members to a single sex.  The court’s 39-page decision offers a detailed analysis of the First Amendment Freedom of Association Rights of fraternities and sororities and examines the question of whether or not the College’s regulations interferes with those rights.  The court examined the various decisions of the United States Supreme Court and other courts that have considered the associational rights of private membership organizations, ranging from the United States Jaycees and the Rotary Club, to smaller men’s clubs like the Louisiana Debating and Literary Association.  In those cases, the courts have considered whether or not the organization involved was either an intimate or an expressive association.

The freedom of intimate association has generally been described as protecting “the choices to enter into and maintain certain intimate human relationships … against undo intrusion by the state.”  Freedom of expressive association has been stated to be the “right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion.”

As the United States Supreme Court noted in the Rotary Club case, “When the state interferes with individuals’ selection of those with whom they wish to join in a common endeavor, Freedom of Association in both of its forms may be implicated.”²

In examining whether or not the AEPi Colony was an intimate association, the court considered the standards articulated in previous private association decisions — was it relatively small, did it have a high degree of selectivity in decisions to begin and maintain membership, and did it exclude non-members from critical aspects of the relationship?

The only previous case to consider these issues as it applied to fraternities was a case decided by the United States Third Circuit Court of Appeals.³  In that case, the University of Pittsburgh stripped a Pi Lambda Phi Chapter of its recognized status after a drug raid on the house resulted in four arrests after officials found a significant amount of drugs, including heroine, cocaine, opium and rohypnol.  The court held that the Chapter, in that case, failed to establish that it was very selective in its membership practices or that it excluded non-members from its critical activities.  The Chapter also failed miserably in attempting to establish that it was an expressive association because the Chapter “(1) ‘Never took a public stance on any issue of public political, social or cultural importance;’ (2) Had never ‘done anything to actively pursue the ideals underlying’ its connection to the international organization of Pi Lambda Phi, ‘the country’s first non-sectarian fraternity;’ (3) Had never participated in any individual development programs run by the International Pi Lambda Phi organization; and (4) Showed ‘underwhelming’ participation in only ‘a couple of relatively minor acts of charity.’”

The AEPi decision analyzed and distinguished the facts present in that case from the facts in the Pittsburgh case.  In completing its analysis of the AEPi Colony’s intimate association, the court held that having a membership of 18 with a potential estimated membership of 50 out of an undergraduate student population of 11,000 made the colony “relatively small.”

The court examined in some detail the membership practices of AEPi and found them to be selective, with an emphasis on determining that new members would be socially and philosophically compatible with existing members.  The fraternity was an exclusive organization with highly selective membership policies.

On the question of seclusion, the court was not bothered by the fact that the fraternity sponsored certain social events to which non-members were invited.  Importantly, the court noted that the fraternity excludes “non-members from initiation and pledgeship ceremonies, which include rituals, and weekly business meetings,” and that “shared rituals are activities central to the fraternity’s purposes of brotherhood, congeniality, functioning as a surrogate family and sharing a community of thoughts, experiences and beliefs.”

The court held that the fraternity was indeed a protected intimate association.  Next, the court examined the College’s intent in banning single-sex organizations.

The court recognized that there was indeed a compelling interest in eradicating discrimination based on gender, but it also recognized the long-standing traditions of single-sex membership of fraternities and sororities at educational institutions throughout the United States.  Federal law has clearly exempted fraternities and sororities from the generalized prohibition against sexual discrimination.  The court favorably noted the explanation of former United States Senator Birch Bayh, who was the author and prime sponsor of Title IX, that Congress did not intend to cause a change in the membership practices of social fraternities and sororities.  The court referred to Bayh’s letter to the Secretary of the Department of Health, Education and Welfare when Bayh wrote that “[f]raternities and sororities have been a tradition in the country for over 200 years.  Greek organizations … must not be destroyed in misdirected effort to apply Title IX.”

Therefore, the court concluded the AEPi Colony and its members formed an intimate association whose rights would be violated if required to admit members not wanted and that the College’s interests did not justify a violation of the fraternity’s associated rights.

The court also considered whether or not the AEPi Colony was an expressive association.  After detailing AEPi’s emphasis on its Jewish heritage and culture, the court also noted the philanthropic activities which the colony had engaged in.  The court recognized the expressive nature of these activities and concluded that the fraternity was a protected expressive association.  However, the court determined that “based on the record before the court, the Plaintiffs[AEPi] have not shown a ‘clear’ or ‘substantial’ likelihood of success on the merits that admitting women would significantly effect the fraternity’s expressive purposes.”  Therefore, the court declined to grant any relief on that basis.

This was a decision on a preliminary injunction.  It is not necessarily the final decision of the court, but in order to receive a preliminary injunction, it was necessary for the fraternity to establish to the satisfaction of the court that it had a likelihood of prevailing on the merits.  That is, ultimately winning the case.  The fraternity met that burden with regard to its intimate association rights.  AEPi will have another opportunity to prove to the court that it is also entitled to protection against the College’s anti single-sex membership policies because they interfere with the expressive nature of the organization.

This case is of particular importance because it appears to be only the second time that a federal court has specifically dealt with the Freedom of Association Rights of a fraternity.

AEPi and the other plaintiffs were represented by Gregory Hauser, a member of the NIC Legal Committee and an attorney with the New York firm of Alston & Bird.

The North-American Interfraternity Conference (NIC) and the National Panhellenic Conference (NPC) filed an amicus curiae (friend of the court) memorandum in support of AEPi, prepared by Manley Burke.  The court acknowledged that memorandum and quoted from it in its decision.

¹ Chi Iota Colony of Alpha Epsilon Pi v. City University of New York, U.S. D.Ct., Eastern Dist. of N.Y., Case No. 05-CV-2919(DLI)(MDG).

² Bd. of Directors of Rotary Int’l v. Rotary Club of Doarte, 481 U.S. 537 (1987).

³ Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435 (3d Cir. 2000).