Is a Greek Council A State Actor?

Tim Burke, Manley Burke, tburke@manleyburke.com

A recent decision by the Greek Council at Montclair State University in New Jersey may well lead to litigation.  For two years, Alpha Sigma Phi had been working to develop a chapter at Montclair State.  The final steps were to obtain approval from the Montclair State Greek Council.  That is where the trouble began.  The meeting of the Council began as a public meeting.  According to the Montclairion, the campus newspaper, initial comments on Alpha Sigma Phi were positive.  The would-be chapter was particularly recognized for its work supporting the Women Herstory Jeopardy event.

But there had apparently been trouble and one member of the Council raised an issue of potential domestic violence in which the former leader of the Alpha Sigma Phi Interest Group had been arrested.  The individual was not identified, nor did the Montclairion report any details of the alleged event.  That, combined with claims that the interest group had not been involved in enough campus events in the last year, turned the matter controversial.  As the discussion apparently grew heated, the Council chose to go into what the Montclairion described as “closed session.”  When the floor was reopened, the Council proceeded to vote down the request for recognition.

Within a week, the attorney who serves as general counsel of Alpha Sigma Phi Fraternity, Inc. sent a strongly worded letter to the Greek Council, its board expansion and recognition committee members, and to Chapter presidents, threatening litigation if recognition was not granted.  The letter, written by Steven M. Gnewkowski, warned that the action of the Council was “a gross violation of the constitutionally protected rights of free speech and freedom of assembly that cannot and will not be tolerated.”

Gnewkowski’s letter indicated that Alpha Sigma Phi had spent more than $100,000.00 in developing its interest group and potential chapter at Montclair State and that the denial of recognition was not based on any criteria or legitimate reason.  As a result, cautioned Gnewkowski, a lawsuit would “seek to recover costs associated with the establishment of a chapter on your campus, obtain injunctive relief, and seek an additional $5,000,000.00 in exemplary and punitive damages.”

A subsequent article by the Montclairion reported that the Student Government Association (SGA), which received a copy of the letter, because the Greek Council falls under SGA’s jurisdiction, said through its press secretary that “The SGA is confident that this conflict can be resolved without litigation, giving both sides what they want.”

This issue presents an interesting question.  Assuming that the Montclair State University, which is a state institution, has essentially turned over the ability to grant recognition to the Greek Council, has the Greek Council become a state actor under the United States Civil Rights Act, 42 USC § 1983?  If it is the Greek Council that grants university recognition and with it the benefits of recognition that are received from the state university, perhaps it is.  If a court were to agree with that and determine that the Greek Council had violated either the due process rights or the equal protection rights of Alpha Sigma Phi and its potential members, they may be entitled to recover not only damages, but also their attorneys’ fees under 42 USC § 1988.

While several relatively recent cases have gone against student organizations (including fraternities) who have challenged a denial of recognition at state universities, those cases have all turned on the university’s desire to deal with one form or another of discrimination.¹  That doesn’t appear to be the case here.  Healy v. James² is still good law.  If the Students for a Democratic Society (in Healy), generally recognized as an anti-government group, was entitled to recognition, there appears to remain a strong argument that so would any fraternity or sorority, provided it had not violated any law or the regulations properly adopted by the state university from whom recognition was sought.

At press time, this issue is unresolved and Alpha Sigma Phi is pursuing its legal options.

1 Christian Legal Society v Matinez, 130 S.Ct. 2971  (2010) (Discrimination based on sexual preference); Ch. Iota Colony of Alpha Epsilon Pi v. City University of New York, 502 F.3d 136 (2nd Cir. 2007) (discrimination based on sex).

2 408 U.S. 169 (1972)