Injunction Issued Against the Theta Xi Chapter of Delta Tau Delta at Eastern Michigan University

 Timothy M. Burke, Fraternal Law Partners, tburke@manleyburke.com

On January 5, 2022, as reported in the January issue of Fraternal Law, the Prosecutor of Washtenaw County, on behalf of the State of Michigan and joined by the City of Ypsilanti, sued the Theta Xi Chapter of Delta Tau Delta (the “Chapter”) at Eastern Michigan University, alleging the Chapter to be a public nuisance. The Complaint described some eighteen (18) alleged sexual assaults at the chapter over a period of years, explained how numerous people faced criminal charges, and sought to control the Chapter and address allegations of illegal alcohol consumption occurring on chapter-controlled property.

In addition to this lawsuit, individual victims filed suits against a number of fraternities, local chapters, and alleged perpetrators. Some of those claims remain pending while others have been settled.

Earlier this year, the Court, in the case brought on behalf of the State and City, issued a Final Judgment and Order for Injunction (“Injunction”) that was based on an agreement and stipulation reached by all three parties (the City, the County prosecutor on behalf of the State, and the Chapter). That Injunction puts the Washtenaw County Prosecutor in control of many aspects of chapter conduct.

For at least one calendar year from the date of the Injunction, no alcohol may be on any chapter-controlled property,^[1] no matter the age of the person possessing it. Additionally, no more than five (5) guests may be present on any chapter-controlled property at any time. Guests are defined as individuals who do not reside at the property and are not members of the Chapter.

In the Prosecutor’s sole discretion, the Prosecutor “may agree to allow for limited exceptions to this guest restriction to allow non-social gatherings, such as philanthropic or academic events,” which the Prosecutor must permit or deny, in writing.

After the Injunction has been in place for a full year, the Prosecutor and Chapter “will confer in good faith” to determine whether the Chapter has substantially complied with the terms of the Injunction. If not, the initial restrictions will remain in place for another year. However, if substantial compliance has been achieved, certain terms will be liberalized.

For example, while there will still be a prohibition against underage drinking on chapter-controlled property, and alcohol would continue to be prohibited in any situation in which there are five or more guests on the property, the Chapter could begin to host more events without prior approval from the Prosecutor. Such events could include philanthropic, community oriented, academic, or similar gatherings (so long as there is no alcohol). However, if the Chapter wanted to host such a gathering with more than ten (10) guests, at least seven-days advance notice would have to be provided to the Prosecutor. The Prosecutor could object to the gathering proposal based on a fear that terms of the Injunction will be violated. If the prosecutor fails to withdraw the objection, the Chapter may not host the event.

In addition to the guest and alcohol limitations, the Chapter must conduct annual trainings on sexual assault, bystander awareness, and reasonable alcohol consumption. Such training “shall be subject to the Prosecutor’s advance approval to insure they adequately address the cessation and prevention of public nuisance conditions alleged in the Complaint.”  The Chapter is obligated to provide documentation that its members have attended such training and must also ensure “escalating internal enforcement of the requirement, up to and including the removal of the member from the organization” who fails to attend the trainings.

Within one year of the issuance of the Injunction, the Chapter must host a fundraiser for a nonprofit organization—mutually agreed upon by the Chapter and the Prosecutor—that provides assistance to survivors of sexual assault.

Further, the Chapter must post the contact information for Eastern Michigan University’s Title IX Office on all the chapter-controlled properties.

The Injunction will remain in place for ten (10) years unless otherwise terminated by stipulation of the parties or further order of the Court.

To the best of Fraternal Law’s knowledge, this is the first instance where a county prosecutor has had such a role in controlling the conduct of a fraternity chapter.

[1] The Injunction broadly defines chapter “controlled property” to include the chapter house, any future chapter houses, any fraternity annex houses, any location where four or more members of the Chapter reside, “or any proxy location within defendant’s control.”