NEW YORK SUIT SEEKS TO PROTECT FREEDOM OF ASSOCIATION RIGHTS

Tim Burke, Manley Burke, tburke@manleyburke.com

In December, a local fraternity in Alfred, New York, and several students of Alfred University, brought suit against Alfred University and the State University of New York (SUNY).  The suit challenges the actions of Alfred University in closing its fraternities and threatening to expel any students who remain or become active in fraternities.

David Murello, the lead plaintiff in the litigation, graduated in December from the New York State College of Ceramics at Alfred University.  He was also President of the Clan Alpine, Inc. and its predecessor Klan Alpine Fraternity, Inc.  The local fraternity has owned a house adjacent to the Alfred campus for many years.  Klan Alpine was one of eight fraternities and four sororities functioning at Alfred at the time the Board of Trustees of the University voted in May 2002 to eliminate fraternal organizations.

When in the spring of 2003 Alfred administrators heard rumors that Murello and others were continuing to engage in membership recruitment, Alfred’s Vice President for Student Affairs sent a letter to Murello’s mother and subsequently sent one to Murello and other members of Clan Alpine threatening suspension or expulsion.

Alfred holds itself out as a private college, but operates the New York State College of Ceramics as a statutory college for the State of New York.  Thus, the suit alleges that Alfred University is a state actor under the Federal Civil Rights Statute (42 U.S.C. §1983) and is seeking to deprive its students of their constitutionally-protected First Amendment right to freedom of association.  The suit also alleges breach of contract, interference with contractual relations, intentional infliction of emotional distress, and a violation of the Higher Education Amendments of 1998 (20 U.S.C. §1011a).  That section of federal law provides:

It is the sense of Congress that no student attending an institution of higher education on a full- or part-time basis should, on the basis of participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under any education program, activity, or division of the institution directly or indirectly receiving financial assistance under this act, whether or not such program, activity, or division is sponsored or officially sanctioned by the institution.

It is believed that this is the first litigation using this sense of Congress provision in an effort to defend the rights of students to freedom of association.

The suit is pending in the United States District Court for the Northern District of New York at Albany.¹ This month both the Alfred and SUNY filed motions to dismiss to which the plaintiffs will respond.

¹  Murello, et al. v. State University of New York, et al., Case No. 03-CV-1409.