Fraternity House Corporation Seeks Writ of Certiorari From the Supreme Court of the United States in Bloomington Zoning Case

Micah Kamrass, Fraternal Law Partners, mkamrass@manleyburke.com

In the March 2021 Edition of Fraternal Law, we reported on the disappointing decision from the Indiana Supreme Court in City of Bloomington Board of Zoning Appeals v UJ-Eighty Corp.^[1] In that decision, the Indiana Supreme Court reversed a decision where the court of appeals previously held that the definition of fraternity house in Bloomington’s zoning ordinance was unconstitutional.

            Since the Indiana Supreme Court’s decision held that the Bloomington zoning ordinance did not violate the federal constitution, UJ-Eighty Corp., the fraternity house corporation that has litigated this matter for several years, had the option to petition the Supreme Court of The United States to hear this case. On July 23, 2021, UJ-Eighty Corp. officially petitioned the Supreme Court of the United States to grant a writ of certiorari and to take up the case. UJ-Eighty’s petition was authored by attorneys at Arnold & Porter Kaye Scholer LLP and Manley Burke, LPA. A copy of the full petition can be found here: https://www.supremecourt.gov/DocketPDF/21/21-113/184824/20210723153238596_UJ-Eighty%20–%20Petition.pdf

            The petition presents the question of whether or not the due process clause of the United States Constitution prohibits the government (like Bloomington) from vesting an economically self-interested entity (like Indiana University) with regulatory power over its rivals (like fraternity house corporations who compete with the University for the same potential tenants). The petition advances four primary reasons for why the Supreme Court should hear the case. They include: 1) The decision below deepens a division among state appellate courts and federal courts of appeals, 2) the decision below is wrong, 3) the question presented is exceptionally important and warrants review in this case, and 4) this case is the right vehicle to resolve the question presented.

            Two amicus briefs were also filed, encouraging the Court to hear the case. The first was submitted on behalf of the North American Interfraternity Conference (NIC) and the National Panhellenic Conference (NPC) and was authored by Alexander Volokh of Emory Law School. The second was submitted on behalf of the Fraternity Forward Coalition (FFC) and the Fraternal Housing Association (FHA) and was authored by the McCarthy Law Office. Both amicus briefs discuss the national significance of this legal issue and how it impacts fraternities, sororities, and house corporations. Copies of the amicus briefs can be found here: https://www.supremecourt.gov/DocketPDF/21/21-113/188650/20210826153512943_uj80-brief-3.wpd%208.26.21.pdf and here: https://www.supremecourt.gov/DocketPDF/21/21-113/188637/20210902132837628_20210902-132648-95754582-00000419.pdf

            The Supreme Court grants writs of certiorari in less than five percent of the petitions that it receives, so any petitioner faces long odds. The petition (and amicus briefs) were distributed to the Justices who are currently scheduled to conference on the petition on September 27, 2021. Fraternal Law will certainly report further on this matter after the Supreme Court decides whether or not to hear the case.

[1] Timothy M. Burke, Indiana Supreme Court Decides Bloomington Case, 169 Fraternal L. 1 (Mar. 2021).