Jury Awards Major Victory to DKE at Wesleyan University

Micah Kamrass & Tim Lynch, Manley Burke, mkamrass@manleyburke.com

Introduction:

With Harvard’s recent attempts to punish students who join single-sex organizations, there have been significant discussions recently about the opportunities that exist for fraternities and sororities to challenge these types of policies enacted by private universities. Just this month, a jury delivered a major victory for a fraternity and its house corporation against Wesleyan University, who similarly attempted to punish the group for its status as a single-sex organization.

Facts:

Kent Literary Club of Wesleyan University at Middletown (“KLC”) is the house corporation that owns the “DKE House” at 276 High Street, Middletown, Connecticut next to Wesleyan University. One of the Wesleyan undergraduate students who lived in the DKE House was Jordan Jancze (“Jancze”), a member of Delta Kappa Epsilon (“DKE”) fraternity. Jancze, like many of other DKE members, is a student-athlete. Wesleyan had historically touted the DKE House to prospective athletes in an effort to attract them towards the university. After visiting the DKE House, attending DKE events, talking to DKE brothers and desiring to live in the beautiful DKE House as a future housing option, Jancze, and other members of DKE, chose to attend Wesleyan.

Wesleyan offered Jancze and the DKE members an “equitable and inclusive education,” and a community that is “diverse and unique” and one where they would not be discriminated against on the basis of sex. That was until early April 2014, when Wesleyan secretly began eliminating the DKE House as a residential option for DKE members and any other Wesleyan undergraduates. Calling it the “co-education plan,” Wesleyan desired to eliminate any single-sex residential, social, recreational, or educational use of the DKE House by December 2014.

While the university was crafting this plan, Wesleyan’s Vice President for Student Affairs, Michael Whaley, informed DKE that it had no reason to worry because Wesleyan would not require DKE to accept female members, which was contrary to the previous announcement that the university desired to force DKE to abandon its single-sex status. Instead Whaley stated that KLC would only have to offer female nonmember undergraduates Program Housing at the DKE House and that the fraternity would need to provide “co-educational” programming in its space. While Whaley made these promises to DKE, Wesleyan was plotting behind closed doors to remove the DKE House from Program Housing and prohibit DKE brothers from using the house for any purpose.

KLC and DKE were left in the dark, relying on the word of Michael Whaley until finally, on December 4, 2014, when the President of Wesleyan University Michael Roth surprised everyone by bringing the “co-education” plan out into the spotlight. Roth announced that there would no longer be any single sex residential Greek organizations [on campus] in five years.” Roth also stated that Greek organizations would not exist as residential organizations at Wesleyan if they maintained their single-sex status.

For the first time in DKE’s 147-year presence at Wesleyan, KLC was informed by the university that “residential fraternities must become fully co-educational over the next three years” and that residential fraternities would only be “recognized as offering housing and social spaces for Wesleyan students” if “women as well as men” were “full members and well represented in the body and leadership of the organization.” DKE’s charter does not permit female undergraduates to become members of its fraternity. This “co-educational” policy made it impossible for DKE to comply with Wesleyan’s directive and threatened both their home and their charter.

Even after this announcement, Whaley told KLC and DKE that co-education of DKE as an organization was not going to be required, only co-educating the residence as a condition of continuing in Program Housing. Whaley instructed DKE to submit their plans for co-educating the DKE House. Determined to protect the DKE House, KLC and DKE submitted the requested plans. They also asked for Wesleyan to ensure DKE’s continued status as an all-male organization, but Wesleyan ignored their requests. Instead, Wesleyan imposed more immediate obligations on KLC and DKE to “continue efforts to fully co-educate” the DKE House, but offered no other guidance on how to do so.

KLC and DKE continued to worry over Wesleyan’s “co-education” concept because they were never provided real guidance on what standard they were trying to meet. Nevertheless, they continued to meet all other demands requested by Wesleyan, including choosing a sorority partner (Rho Epsilon Phi) for the DKE House and giving information on how changes were being made to accommodate the new sorority partner. On February 6, 2015, after preparing and handing over all this information to Wesleyan as its condition for preserving the DKE House in Housing Program status, Wesleyan denied the DKE House that status for the 2015-2016 academic year.

Legal Issues:

Following these events, KLC, DKE, and Jancze filed a lawsuit against Wesleyan University. There were four legal issues presented to the jury that had survived Wesleyan’s motion for summary judgment. First, KLC, DKE, and Jancze alleged that Wesleyan violated the Connecticut Unfair Trade Practices Act. (“WTPA”).¹ The jury considered the issue of whether deceptive acts taken by Wesleyan to ultimately remove DKE members from the DKE House and prevent students from using the property for residential, social, or fraternal uses violated the prohibitions against unfair methods of competition.

Second, the Plaintiffs claimed that Wesleyan and its agents had made negligent misrepresentations regarding the future status of the DKE House to KLC, DKE, and Jancze. Whaley’s assurances that DKE would not be required to make their organization co-educational was contrary to the undisclosed plan of preventing DKE from obtaining Program Housing.

Third, whether Wesleyan and its agents had tortuously interfered with KLC’s business expectancies. Namely, whether Wesleyan had been aware that DKE generates income to KLC in the form of payments it receives from Wesleyan students who are DKE House residents and the misrepresentations and actions taken by Wesleyan to drive out DKE from the Wesleyan campus so that Wesleyan might use KLC’s property for Wesleyan’s use and benefit.

Fourth, the jury considered KLC, DKE and Jancze’s claims that under the legal theory of Promissory Estoppel, the jury should find that the fraternity reasonably relied on Wesleyan’s promises and conduct and thus, an award of specific performance should be granted due to Wesleyan’s wrongful and intentional conduct.

Decision:

On June 15, 2017, the jury found in favor of KLC, DKE, and Jancze with regard to each of their claims against Wesleyan, Whaley and Roth, including that Wesleyan and its agents had violated the Connecticut Unfair Trade Practices Act (“CUTPA”), made negligent misrepresentations, committed intentional torts by interfering with KLC’s business expectancies and that they are entitled to recover based upon their promissory estoppel claims.

To the first claim regarding CUTPA, the jury concluded that Wesleyan had engaged in conduct that was, among other things, offensive, unethical, oppressive, or unscrupulous. The jury found that Whaley’s false statements were proof that Wesleyan had engaged in unfair methods of competition to remove DKE from their campus house.

For the second claim of negligent misrepresentations, the jury had found that Wesleyan committed fraud by making false representations. It was clear to the jury that KLC and DKE had relied on the misrepresentations made by Whaley. Wesleyan’s misrepresentations caused significant monetary damages to the Plaintiffs.

For the third claim of tortious interference with business expectancies, the jury found that Wesleyan had engaged in fraud, misrepresentations, or acts of malice. The jury concluded that the statements made by Wesleyan University through Whaley were relied upon by KLC, DKE and Jancze to their detriment. Wesleyan was aware that DKE generates income to KLC in the form of payments it receives from Wesleyan students who are DKE House residents and the misrepresentations and actions taken by Wesleyan to drive out DKE from the Wesleyan campus so that Wesleyan might use KLC’s property for Wesleyan’s use and benefit.

On the fourth claim of promissory estoppel, the jury found that KLC, DKE and Jancze had established that Wesleyan made clear and unambiguous promises, that Wesleyan should have expected KLC, DKE and Jancze would rely upon. To win on a promissory estoppel claim, there must be proof of “two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.”²

In this case, the jury found that the following statements were false promises relied upon by the Plaintiffs: that DKE had at least three years to try and achieve Wesleyan’s “co-education” policy and that Roth and Wesleyan would work with DKE for a “smooth transition”; that DKE was promised that Wesleyan did not require “co-education” of the DKE fraternity; and that the “co-education” policy was based in “equity and inclusion.” The facts of this case show that these promises made by Wesleyan were nothing more than a sham. The true intention of Wesleyan was to mislead the KLC and DKE into believing that the fraternity and DKE House would not change status when, in actuality, Wesleyan was planning on removing the student DKE members from their house and claim the property for themselves.

The jury awarded $386,000.00 in damages to KLC, DKE and Jancze, but the parties claim this is insufficient given the injustice that has been suffered. Since the jury found in their favor on all claims, KLC, DKE, and Jancze are now asking the Court to grant their request of specific performance. Specific performance would force Wesleyan to grant the DKE House Program Housing status for the 2017-2018 year. If the DKE House is not offered as part of Program Housing and Wesleyan does not permit undergraduate students to utilize the DKE House for both residential and social purposes as they were prior to the “co-education” policy, then KLC, DKE and Jancze will continue to be damaged.

Conclusions:

We will continue to monitor this case and write about any future developments. While some of the facts are likely unique to this specific situation at Wesleyan, similar statutory and tort claims may be available to fraternities and sororities throughout the country, both in and outside of Connecticut. Perhaps some private schools will reconsider plans to punish students who join single-sex organizations like fraternities and sororities. Others may ignore these warning signs from Wesleyan, and will likely face similar challenges.

*Timothy J. Lynch is a rising third-year student at the University of Cincinnati College of Law and is a Summer Associate at Manley Burke, LPA.

1              Conn. Gen. Stat. Sec. 42-110b, et. seq.

2              Kent Literacy Club of Wesleyan Univ. at Middletown v. Wesleyan Univ., No. MMXCV156013185, 2016 WL 3912344, at *4 (Conn. Super. Ct. June 17, 2016).