Hang ‘em all…it is easier than figuring out who is guilty.

Tim Burke, Manley Burke, tburke@manleyburke.com

As reported in the March 2019 issue of Fraternal Law, the zoning ordinance of the City of Bloomington, Indiana, was found to violate both the Indiana and U.S. Constitutions  because of the manner in which it regulated fraternity and sorority houses. The ordinance stated that, in order for chapter houses to be a legal use in the only zoning district where they were allowed, it was required that “Indiana University has sanctioned or recognized the students living in the building as being members of a fraternity or sorority through whatever procedures Indiana University uses to render such sanction or recognition.” The trial court found that requirement to be an unconstitutional delegation of legislative authority to the University, in violation of the Due Process Clause of the U.S. Constitution.

Not surprisingly, Bloominton has appealed that decision. What is slightly more surprising is that Indiana University (IU) has filed an amicus curiae brief in support of Bloomington. The justification for the University’s support is disturbing, yet provides proof of what many leaders in the fraternity and sorority world have voiced concern about for some time. Too often universities fail to deal appropriately with the wrongdoers who harm both their college and their fraternity or sorority.  Instead, schools attribute the misconduct of a small number of wrongdoers to a chapter that could number into the hundreds.  On many occasions, members of fraternities or sororities who violate both the rules of their own organization as well as of the university end up causing an entire chapter, and in some cases even the entire Greek system, to be punished.

One paragraph in Indiana University’s amicus argument makes clear why:

Although IU could try to discipline individual members, this proves to be difficult in practice given the reluctance of individuals to provide information and/or evidence against a single student rather than against an entire organization.  It is also inefficient, placing many students at risk, and does not allow IU to effectively mitigate against the risk posed by the problematic culture, attitude, and behavior fostered by the organization .

The bottom line is that IU—and frankly many other universities across the country—finds it easier to act against an entire chapter, punishing the many innocents, rather than to take the time and make the effort to identify and deal with the far fewer wrongdoers.

To be clear, when chapter leaders or members with knowledge seek to cover up for the wrongdoer, they too should be held accountable.  Indeed, in cases like Tim Piazza’s death at Penn State, chapter leaders who lied to investigators and attempted to cover up facts and evidence were criminally charged. Members need to understand that they  only bring greater harm to the larger brotherhood or sisterhood they are a part of when, through misguided loyalty, they cover up for wrongdoers; those who engage in a cover up bring no honor to themselves and jeopardize the entire organization.

Yet such cover ups remain no excuse for a university to punish those who did no wrong, hoping to catch the wrongdoers with a broad net of punishment, just because it is easier and more efficient.

Later in its brief IU claims to recognize that: “IU must respect and adhere to the students and student organizations due process rights and these Procedures [the Student Code of Conduct] are designed to protect those rights.”

Nowhere do they bother to explain how they are protecting the rights of the innocent when they know they are punishing both miscreants and those who did no wrong.

The growth of zoning codes across the country linking legal status for chapter houses with a requirement that the fraternity or sorority be recognized by a local university will likely have the opposite effect that universities who are cooperating in that effort hope for.

Fraternity and sorority houses are often worth hundreds of thousands, and not infrequently millions, of dollars. They are just as critical of assets to the house corporations that own them as a university’s dormitories are to a university. House corporations are going to take action to defend their assets in court if they are forced to do so.

Zoning litigation is happening more and more across the country. In recent months, in addition to the Bloomington case, Fraternal Law has reported on litigation in New Hampshire (Dartmouth) and State College of Pennsylvania (Penn State). When efforts are underway to amend zoning codes to add such a requirement, it is quite likely that local house corporations, just as many did in Ann Arbor, may well abandon university recognition before such zoning amendments can become effective. In that way, they may preserve their status as a legal, even though nonconforming, use.  Zoning law is clear: once a legal use is established, even a change in zoning law cannot make the use illegal.  And to the extent that the local university is working with the local zoning authority to change the law to mandate such a requirement, it will make it all the more difficult for fraternities and sororities to work with universities for the betterment of their members and the universities students.