Interesting Settlement from Utah State

Settlements of lawsuits are not unusual. They are often frequently preferred to the uncertainty and huge expense of protracted litigation. Settlements, when opposing parties agree, can include provisions requiring parties to do things that a court decision could not. For instance, the parties could agree to implement certain changes in practices instead of simply recovering monetary damages. And it is not unusual for one party to settle while claims remain pending against other parties.

But in a somewhat unusual move, Utah State University (USU) recently settled a sexual assault case against the University, Sigma Chi, the fraternity chapter, it’s alumni foundation, the chapter house corporation, numerous individuals named as John Does, and the assailant, Jason Relopez. USU agreed to pay the plaintiff, Victoria Hewlett, and her attorney, $250,000.00,¹ but the settlement didn’t end with the monetary payment. USU agreed to numerous other steps, including a joint op -ed statement and a series of changes in how USU interacts with Greek organizations. Under the settlement agreement, all Greek organizations will be required to be recognized and approved as official university student organizations. Each chapter will be required to submit a report once a semester, including the summer semester, identifying “all known allegations or reports of misconduct, including sexual or other misconduct; all known allegations or reports of alcohol or controlled substances; actions taken by the chapter to internally address report of misconduct and infractions; descriptions of actions taken by the chapter to prevent sexual harassment, underage drinking and alcohol and substance abuse; and the chapter’s GPA.”

The settlement also requires that each chapter must agree to allow “periodic, random, unannounced inspection by representatives of USU” of their houses.

USU also agrees to hire new full-time Greek Life Coordinator; provide trauma informed training for its employees; conduct an annual campus climate survey; require all students to take primary prevention training on sexual harassment; and provide “annual training and sexual harassment for all high-risk groups, including, but not limited to, all members of fraternities and sororities, and student members and staff of athletic programs.”

USU is also required to hire a consultant to develop training in sexual harassment prevention and response. Surprisingly, Hewlett’s attorney will pay $10,000.00 towards the consultant’s fees.

While some of the terms of the settlement may certainly be helpful, other terms are concerning, particularly because they appear to have been entered into without appropriate consultation with those who will be impacted by the settlement. At least two of the provisions appear to violate the constitutional rights of USU students who belong to Greek organizations. Specifically, contrary to USU’s new policy, fraternity chapters at a state university whose members are otherwise in compliance with all university regulations and laws cannot be required to be recognized by the university without violating the Freedom of Association rights of those students. Could the university require that all religious organizations which their students belong to must be recognized by the university? Of course not. It would be a violation of the student’s First Amendment Freedom of Speech and Freedom of Association rights, in addition to being a violation of their Freedom of Religion rights.

Similarly, the requirement that privately-owned chapter houses are subject to “periodic, random, unannounced inspections by a representative of USU,” appears to be a clear violation of the student’s Fourth Amendment Rights “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”² The provision of the settlement that such inspections “shall occur at least twice during each semester, including summer semester, during times when formal or informal social gatherings are expected, does not eliminate the Constitutional violations” does not comply with the Fourth Amendment.